Gauging Control Technology and

Regulatory Impacts in Occupational Safety

and Health: An Appraisal of OSHA's

Analytic Approach

September 1995

OTA-ENV-635

GPO stock #052-003-01445-9
Recommended Citation: U.S. Congress, Office of Technology Assessment,

Gauging Control Technology and Regulatory Impacts in Occupational Safety and

Health—An Appraisal of OSHA’s Analytic Approach, OTA-ENV-635 (Washington, DC: U.S. Government Printing Office, September 1995).
iii

Foreword

auging Control Technology and Regulatory Impacts in Occupational Safety and

Health responds to requests from the Senate Committee on Labor and Human

Resources and the former House Committee on Education and Labor to evaluate the

methods the Occupational Safety and Health Administration (OSHA) uses to examine

hazard control options and estimate regulatory impacts. Setting workplace health and safety compliance standards continues to be one of the more contentious arenas of government regulatory

policy. Debates among labor, industry, outside experts, and various government bodies over the

availability of appropriate technological controls and the economic consequences of their adoption are often at the heart of these matters.

This report reviews the roles that analyses of control technology and regulatory impacts play

in OSHA’s standard setting process, and evaluates the various methods and resources on which

the agency draws in conducting these efforts. In addition, based on findings from close examinations of a number of OSHA’s past rulemakings, the report provides a critical appraisal of how

well these analyses seem to be helping the agency achieve its basic occupational safety and health

mission.

It is apparent that OSHA takes its responsibilities to prepare these analyses seriously. The

agency has established analytical steps that are responsive to its procedural mandates and rely

generally on methods that provide a credible basis for the determinations essential to rulemakings. The agency’s analytical findings and estimates are frequently the subject of vigorous review

and challenge. But, for the most part, this reflects the wide disagreements that inevitably arise

when the interested parties and experts involved in rulemakings have differing visions of the need

for hazard reduction, draw different conclusions about the efficacy of new compliance measures,

and rely on differing data sets and assumptions in estimating the benefits and costs likely to arise.

The principal shortcomings that the Office of Technology Assessment (OTA) perceives in

OSHA’s analytical procedures relate to gauging the potential of leading-edge technologies and

targeted innovations to address workplace hazards in technologically and economically superior

ways, and to generating systematic information about the actual outcomes and effects of the

agency’s regulatory actions. For various reasons, including procedural priorities, rulemaking politics, and budget constraints, neither of these important analytical objectives now receives the

attention warranted. In OTA’s estimation, both of these deficits merit attention, with an eye

toward relevant enhancements of the agency’s capabilities and scope of analytical activities.

In preparing this report, OTA gratefully acknowledges the assistance of the project’s advisory

panel, chaired by John Froines of UCLA. The several contractors involved made essential contributions in conducting original research on rulemaking outcomes. OSHA staff were helpful on a

number of occasions in facilitating OTA’s understanding of the elements of the agency’s regulatory analysis work. Nonetheless, as with all OTA reports, responsibility for the final content rests

with OTA.

ROGER HERDMAN

Director

G
iv

Advisory Panel

John Froines, Chair

Professor

Center for Occupational and 

Environmental Health

University of California

Los Angeles, CA

Nicholas Ashford

Professor

Center for Technology, Policy 

and Industrial Development

Massachusetts Institute of 

Technology

Cambridge, MA

Robert Crandall

Senior Fellow

Economics Study Program

The Brookings Institution

Washington, DC

Morton Corn

Professor

School of Hygiene and Public 

Health

The Johns Hopkins University

Baltimore, MD

William Dickens

Associate Professor

Department of Economics

University of California

Berkeley, CA

James Holt

Senior Economist and Vice 

President for Research

Employment Policy 

Foundation

Washington, DC

William Kelly

Vice President and General 

Manager

Carborundum Company

Fibres Division

Niagra Falls, NY

Karl Kronebusch

Assistant Professor

La Follette Institute of Public 

Affairs

University of Wisconsin

Madison, WI

Lester Lave

Professor

Graduate School of Industrial 

Administration

Carnegie-Mellon University

Pittsburgh, PA

Thomas McGarity

Professor

School of Law

University of Texas

Austin, TX

John Mendeloff

Professor

School of Public and 

International Affairs

University of Pittsburgh

Pittsburgh, PA

Stephen Rappoport

Professor

Department of Environmental 

Sciences and Engineering

University of North Carolina

Chapel Hill, NC
v

Susan Rose-Ackerman

Professor

School of Law

Yale University

New Haven, CT

Margaret Seminario

Director

Department of Occupational 

Safety and Health

AFL-CIO

Washington, DC

Barbara Silverstein1

Department of Labor and 

Industries

State of Washington

Olympia, WA

1 Resigned December 1993 upon accepting federal service appointment.

Note: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by the advisory panel members. The

panel does not, however, necessarily approve, disapprove, or endorse this report. OTA assumes full responsibility for the report and the accuracy of its contents.

James Smith

Chief Economist (retired)

United Steel Workers of 

America

Austin, TX
vi

Project Staff

Clyde Behney

Assistant Director

OTA Health, Education, and 

the Environment Division

Robert Niblock

Program Director

OTA Environment Program

PRINCIPAL STAFF

Mark Boroush

Project Director

David Butler

Analyst

Michael Gough

Senior Associate

Robert Stone

Contractor

CONTRIBUTING STAFF

Dalton Paxman

Senior Analyst

ADMINISTRATIVE STAFF

Kathleen Beil

Office Administrator

Nellie M. Hammond

Administrative Secretary

Kimberly Holmlund

Administrative Secretary

Babette Polzer2

Contractor

CONTRACTORS

Charles River Associates, Inc.

Boston, MA

Priscilla Taylor

Editor

McLean, VA

Robert Goble

Center for Technology, 

Environment, and 

Development

Clark University

Worcester, MA

2 From June 1995.

Dale Hattis

Center for Technology, 

Environment, and 

Development

Clark University

Worcester, MA

Molly Macauley

Washington, DC

Paul Portney

Washington, DC

James Robinson

School of Public Health

University of California

Berkeley, CA

Ruth Ruttenberg

Ruth Ruttenberg and 

Associates, Inc.

Bethesda, MD
vii

Contents

1 Study Overview and Major Conclusions 1

The Context for this Study 1

Study Request and Questions Addressed 9

Major Conclusions 10

The Rest of this Report 14

2 OSHA’s Current Analytic Procedures 15

Elements of OSHA’s Permanent Standards 15

Rulemaking Requirements and Influences 16

Analytical Content and Methods 21

Implementation 39

3 Discussion of Evaluation Findings 43

Appraisal of Methods and Process 43

4 Policy Issues 83

OSHA and the Current Congress 83

Discussion of Salient Issues 84

Appendix A: Extended Summaries of 

Retrospective Case Comparisons 89

Health Rules 89

Safety Standards 96

Appendix B: Working Papers and Commissioned 

Research 101

Project Working Papers 101

Contractor Reports 101
| 1

1

Study

Overview

and Major

Conclusions

his study is broadly concerned with the

processes and methods that the Occupational Safety and Health Administration

(OSHA) employs to examine control

technology options and to estimate compliance

costs and other regulatory impacts in support of

its major regulatory actions.1

 This report

responds to Congress’s interest in better understanding the nature and soundness of the analytical procedures OSHA conducts in these

substantive areas.

In general, the findings and estimates the

agency produces on these matters can significantly influence the course of the policy debate

and the specifics of the health and safety standards ultimately promulgated. In addition, the

process of soliciting comments on drafts of these

analyses from stakeholders and other interested

parties represents one of the principal channels

through which competing interests are engaged

in rulemakings. Thus, the drafting and completion of these analyses in an adequate and credible

1 Health and safety risk assessments are also of central importance in OSHA’s rulemakings. Nonetheless, the agency’s analytical procedures in this respect are not a chief focus of this project, and little comment is provided on them here. OSHA is also required to prepare an

Environmental Impact Statement to accompany rulemakings, in accordance with the Environmental Policy Act of 1969. However, in the vast

majority of rulemakings this is a relatively minor aspect of the regulatory analysis effort, and this report makes no comment on the preparation of these statements.

way are essential in OSHA’s performance of its

regulatory mission.

In brief, this study reviewed the analytical

methods (related to technology options and regulatory impacts) employed by OSHA in a substantial number of past rulemakings; compared

actual industry outcomes with the prior rulemaking estimates in a selected number of cases;

examined the organization and resources supporting the agency’s analytical efforts; and compared the agency’s practices with those of other

regulatory organizations. OTA’s broad appraisal

of OSHA’s capabilities and procedures arises

from findings in each of these areas.

THE CONTEXT FOR THIS STUDY

The Occupational Safety and Health Act of 1970

(29 USC section 651–678) signaled Congress’s

intent that occupational injuries and illnesses

should, as much as possible, be eliminated from

American workplaces. This legislative action

was taken in view of the existing incidence of

T
2 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

occupational fatalities, injuries, and illnesses that

was widely regarded as unacceptable. (Box 1-1

provides some background on the magnitude of

workplace fatalities, injuries, and illnesses.) At

the same time, Congress also recognized that

workplace injuries and illnesses imposed a

BOX 1-1: The Trends In Workplace Fatalities, Injuries, and Illnesses

The principal motivation for enactment of the OSH Act and subsequent establishment of OSHA

stemmed from unacceptably high incidence rates of workplace fatalities, injuries, and illnesses. The discussion below briefly reviews some of the estimates of these rates over the now more than 20 years since

the OSH Act became law.

It should be recognized at the outset, however, that the task of measurement is more difficult than

might first be imagined. In 1985, the Office of Technology Assessment (OTA) discussed the shortcomings of the data that go into workplace fatality, injury and illness rates. Two years later, the National

Research Council drew attention to the deficiencies in data gathering and reporting and suggested a

number of changes in procedures. Improvements have been made since, but varying sources still produce rate estimates that differ widely.

Workplace Fatalities

Year

Fatality rate

(per 100,000 workers)

Injury and Illness rate

(per 100 workers)

Injury rate

(per 100 workers)

1972 17.2 10.9 —

1973 17.0 11.0 10.6

1974 15.7 10.4 10.0

1975 15.3 9.1 8.8

1976 14.2 9.2 8.9

1977 14.1 9.3 9.0

1978 13.7 9.4 9.2

1979 13.2 9.5 9.2

1980 13.4 8.7 8.5

1981 12.5 8.3 8.1

1982 12.0 7.7 7.6

1983 11.7 7.6 7.5

1984 11.0 8.0 7.8

1985 10.8 7.9 7.7

1986 10.2 7.9 7.7

1987 10.1 8.3 8.0

1988 9.6 8.6 8.3

1989 9.2 8.6 8.2

1990 8.7 8.8 8.3

1991 8.4 8.4 7.9

1992 7.9 8.9 8.3

1993 7.7 8.5 7.9

SOURCES: Fatality rates—National Safety Council, 1994. Accident Facts: 1994 Edition. National

Safety Council: Chicago, p. 37. Injury and illness rates—U.S. Department of Labor, Bureau of Labor

Statistics, 1994. Workplace Injuries and Illnesses in 1993, USDL-94-600, Table 3.

(continued)
Chapter 1 Study Overview and Major Conclusions | 3

The National Safety Council (NSC) publishes the most comprehensive estimates of occupational fatalities that cover the entire period of OSHA’s existence. These figures are based on information from death

certificates and from workers’ compensation data from state programs. They are intended to reflect all

unintentional injury-related deaths in the civilian workforce, 14 years and older, with the exception of private household workers. (NSC’s figures exclude workplace deaths from homicides and suicides.)

A 1994 NSC report indicates that the estimated workplace fatality rate dropped from about 17 per

100,000 workers in 1972 to a little less than 8 per 100,000 workers in 1993—a decrease of about

57 percent since establishment of OSHA. Generally speaking, workplace dangers are greatest in the

construction and heavy-industry sectors. Overall, however, motor vehicle accidents continue to be the

single largest component of the fatalities identified by NSC, accounting for 35 percent of all occupational

mortality in 1993, up from 31 percent in 1972. (Other major causes include falls, being struck by various

objects, electrocutions, fires and explosions.)

The National Institute of Occupational Safety and Health (NIOSH) and the Department of Labor’s

Bureau of Labor Statistics (BLS) also have prepared surveys of occupational fatalities. Both of these also

indicate a long-run decrease in workplace fatality rates.

NIOSH’s figures show the death rate as falling from around 9 per 100,000 workers in 1980 to about 5.8

per 100,000 in 1989—a decrease of about 35 percent, similar to the 31 percent decrease in the NSC estimates over the same period. Nonetheless, NSC’s year-to-year figures are consistently a good deal

higher. In part, NIOSH’s figures are based on reviews of death certificates, not all of which contain sufficient information to identify work associations, especially motor vehicle accidents.

BLS changed its method for collecting information on workplace fatalities in 1992, and it now characterizes its prior estimates as too low. Nonetheless, its existing figures for 1970 through 1991 show a generally downward trend. The present BLS system estimated there were 6,083 workplace deaths in 1992,

as compared with NSC’s estimate of 9,200. Unlike the NSC’s figures, however, BLS includes workplace

homicides (associated with robberies, for the most part), which account for 16 percent of the total (now

second only to motor vehicles as a source of fatalities in BLS’s data).

Generally, measurement problems are endemic to all of these estimates. It is important to note that

deaths from workplace illnesses (e.g., health effects like cancer) are not included in either the NSC,

NIOSH, or BLS data. Sorting out whether a particular death was the result of a workplace exposure or

incident that may have occurred years or decades earlier is often very difficult. Thus, in all probability, the

cited workplace fatality rates are underestimates of the actual incidences—and perhaps so to a considerable degree.

Workplace Injuries and Illnesses

The table also lists BLS’s reported rates of workplace injury and illnesses from 1972 through 1993

(injuries are also listed as a subset). As is apparent, the general trend was one of declining rates over the

1972-1983 period—from an average of around 10.8 per 100 workers in the 1972-74 period down to an

average of 7.7 in 1982-83, a cumulative decrease of about 21 percent. However, the annual rate rose

somewhat (to the mid 8’s per 100 workers) thereafter, although remaining well below the much higher levels that prevailed in the early 1970s.

Factors other than increased attention to health and safety, no doubt, contributed to some of these

movements in the rate levels. For example, in the early 1970s, some employers entered “first aid cases”—

minor injuries that involved essentially no lost time—into the records. BLS did not in fact require that such

cases be recorded, and as employers quit entering them, the observed rates fell. For another, the recession of the early 1980s resulted in some workforce layoffs, and, as a rule, younger, less experienced

workers (who tend to have higher accident rates) are laid off first. The modest increase in rates in the second half of the 1980s was a departure from the previous prevailing trend. However, this increase in rates

also coincides with OSHA’s increased emphasis on the accuracy of recordkeeping, and some of the

upward movement is no doubt reflective of this development.

(continued)

BOX 1-1: The Trends In Workplace Fatalities, Injuries, and Illnesses (Cont’d.)
4 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

sizable, systemic burden on the national economy in the form of lost production, lost wages,added medical expenses, and compensation for

disabilities.

Undercounting is a problem in workplace-related illnesses, just as it is with fatalities. There are various

reasons, including the difficulty of distinguishing workplace- and non-workplace-related illnesses, lengthy

latency periods (including long after exposures have ceased), or diagnoses made without investigations

of possible workplace associations. But the magnitude of the undercounting is simply unclear. (However,

in 1992, BLS reported 2.3 million injuries and illnesses that caused workers to miss work beyond the day

of injury or illness onset. Only 105,000 of those lost-day cases related to illnesses. The vast majority were

directly attributable to the workplace, for example, contact dermatitis and repetitive motion task injuries.)

Identifying OSHA’s Impact

Measuring the direct effect of OSHA regulations is a difficult analytical task, given the numerous confounding factors that need to be considered in identifying cause and effect. In part, the share of workers

in higher-risk occupations has been shifting, as manufacturing jobs have ebbed and the services sector

has ascended. Business cycles are also part of the story, in that economic downturns tend to remove less

experienced, and typically higher-risk, workers from the workplace. Employer actions to improve health

and safety conditions taken independent of OSHA’s requirements need to be distinguished. The effect of

worker’s compensation payments on employee behaviors needs to be examined. Changes in recordkeeping practices generally complicate the examination of time series trends. And the undercounting

thought to be endemic in the available incidence data simply leaves a basic gap.

The generally falling workplace fatality rate reported by NCS, NIOSH, and BLS alike since the early

1970s at least provides room for finding an OSHA effect. And in some industries where reasonable data

are available, there is strongly suggestive evidence of an OSHA impact (e.g., nearly 60 percent fewer

deaths from dust-related fires and explosions in the grain-handling sector since OSHA’s 1987 standard

addressing these hazards, around 35 percent fewer deaths from trench cave-ins since the agency’s

1989 standard addressing excavation practices in the construction industry).

Various non-OSHA factors have been suggested to explain the apparent long-run decline in injury and

illness rates—including changes in record collection practices, employer actions taken independent of

OSHA, and business cycle effects. Nonetheless, one well-regarded analyst of the agency’s policies (Viscusi, 1992) has drawn a preliminary conclusion from examination of a number of specific industry sectors

that OSHA regulations during the 1972–83 period have indeed contributed to reduced injury rates. (However, he also cautions that these conclusions “must necessarily be guarded,” with further research

needed to verify and separate the effects of OSHA from other factors.) One graphic example is the textile

manufacturing sector, where reductions of dust levels in compliance with OSHA’s 1978 cotton dust standard cut the incidence of crippling respiratory diseases from 20 percent of the workforce to about

1 percent.

SOURCES: M.J. Moore and W.K. Viscusi, Compensation Mechanisms for Job Risks. (Princeton, NJ: Princeton University Press,

1990). W.K. Viscusi, Fatal Tradeoffs: Public and Private Responsibilities for Risk. (New York: Oxford University Press, 1992).

National Research Council, Counting Injuries and Illnesses in the Workplace: Proposals for a Better System. (Washington DC:

National Academy Press, 1987). National Safety Council, Accident Facts: 1994 Edition. (Chicago: National Safety Council, 1994).

U.S. Congress, Office of Technology Assessment. Preventing Illness and Injury in the Workplace. (Washington DC: U.S. Government Printing Office, 1985). U.S. Department of Labor, Bureau of Labor Statistics, News: Workplace Injuries and Illnesses in 1992,

Washington, DC, December 15, 1993. U.S. Department of Labor, Bureau of Labor Statistics, Fatal Workplace Injuries in 1992: A

Collection of Data and Analysis, Washington, DC, 1994. U.S. Department of Labor, National Institute for Occupational Safety and

Health, Fatal Injuries to Workers in the United States, 1980–1989: A Decade of Surveillance, Department of Health and Human

Services, Washington DC, 1993.

BOX 1-1: The Trends In Workplace Fatalities, Injuries, and Illnesses (Cont’d.)
Chapter 1 Study Overview and Major Conclusions | 5

The OSH Act created OSHA, placed it within

the Department of Labor, and charged the Secretary with the responsibility for setting and

enforcing safety and health standards mandatory

for all businesses in order to secure and maintain

workplaces free from preventable accidents and

occupational diseases. Since 1970, OSHA has

promulgated some two dozen major standards

dealing with health hazards, and nearly five

dozen in the safety arena (see box 1-2). At the

time of this report’s completion (late summer

1995), another three dozen new rulemakings are

at varying stages of development (see box 1-3).

OSHA’s mission principally involves identifying health and safety hazards that exist at unacceptable levels in the workplace and promoting

their removal. Nonetheless, in promulgating

rules, the agency is obliged to consider and

present reasoned evidence concerning the economic consequences of the standards it issues,

the regulatory benefits it anticipates, and, where

compliance involves a technological element

(many, but not all, provisions do), the technical

feasibility of the required actions by the affected

industries. In the course of a rulemaking, OSHA

normally conducts various analyses addressing

these issues: such as, assessments of prospective

control technologies and the steps necessary to

meet other requirements, estimates of the incremental costs to be incurred to achieve compliance, examinations of the cost burdens imposed

on the directly affected industries and the economy at large, estimates of expected benefits, and

the justification for agency intervention into the

workings of the marketplace.

OSHA’s conclusions on these matters are subject to considerable review and oversight. The

public—including workers, employers, their representatives, the professional health and safety

communities, and others with interest in the public policy outcome—has input via established

hearing and comment procedures. Executive

orders have provided the executive branch—particularly the Office of Management and Budget

(OMB)—with the means to oversee and influence the form and content of intended regulatory

actions. In many cases, promulgated standards

are subsequently contested (in whole or part) in

the courts, giving judges the opportunity to

examine the agency’s rulemaking rationale and

corroborating evidence in some detail.

OSHA has long been one of the most criticized regulatory agencies in the federal bureaucracy. This unenviable position is, no doubt, an

inevitable consequence of the agency’s fundamental mission. Establishing, and enforcing,

occupational safety and health regulations invariably pits individuals and groups with strongly

held beliefs and vital interests against one

another in what is often perceived as a zero-sum

game, where as two analysts put it “any decision

that significantly affects workers interests will

just as significantly affect employers interests in

the opposite direction.”2

 Furthermore, the frictions that have long been attendant to labor and

management relations in the United States—

which certainly predate OSHA by well over a

century—are often a palpable undercurrent.

The principal criticisms of the agency today

span a wide range of issues. Many in the labor

and the professional safety and health communities complain about the slow pace and low productivity of the agency’s rulemaking effort—

asserting that although important hazards have

been addressed over the last two decades, many

still remain. Concern is also expressed about the

extent of protection the agency has been targeting in its rulemakings, particularly since the early

1980s. Businesses and those specialists concerned with the impacts of government intervention on the workings of the nation’s economy

often question whether the agency pays enough

attention to the balance between the benefits and

the new cost burdens expected to result from its

regulatory actions. Stakeholders on both sides of

issues and the courts alike often question

2 S.A. Shapiro and T.O. McGarity, “Reorienting OSHA: Regulatory Alternatives and Legislative Reform,” Yale Journal on Regulation 6

(1): 1-63, 1989.
6 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 1-2: Permanent Standards Promulgated By OSHA

HEALTH

Permanent rule Promulgation date

Federal Register 

citation

Asbestos June 7, 1972 37 FR 3155

Fourteen carcinogens Jan. 29, 1974 39 FR 3755

Vinyl chloride Oct. 4, 1974 39 FR 35890

Coke oven emissions Oct. 22, 1976 41 FR 46741

1,2-Dibromo-3-chloropropane Mar. 17, 1978 43 FR 11530

Inorganic arsenic May 5, 1978 43 FR 19584

Cotton dust June 23, 1978 43 FR 27350

Acrylonitrile Oct. 3, 1978 43 FR 45762

Occupational exposures to lead Nov. 14, 1978 43 FR 52952

Medical records May 23, 1980 45 FR 35212

Noise exposure Mar. 8, 1983 48 FR 9738

Hazard communications Nov. 25, 1983 48 FR 53280

Ethylene oxide June 22, 1984 49 FR 25734

Asbestos

(NOTE: this action substantially amended the 1972 

standard)

June 20, 1986 51 FR 22612

Benzene

(NOTE: the benzene standard the agency promulgated in 

1978 was set aside by the courts in 1980)

Sept. 11, 1987 52 FR 34460

Formaldehyde Dec. 4, 1987 52 FR 46168

Air contaminants Jan. 19, 1989 54 FR 2332

Lead, non-ferrous foundries Jan. 30, 1990 55 FR 3146

Toxic substances in laboratories Jan. 31, 1990 55 FR 3300

Bloodborne pathogens Dec. 6, 1991 56 FR 64004

Cadmium Sept. 14, 1992 57 FR 42102

Hazard communications

(NOTE: this action extended the 1983 standard)

Feb. 9, 1994 59 FR 6126

SAFETY

Permanent rule Promulgation date

Federal Register 

citation

Construction safety and health regulations Apr. 17, 1971 36 FR 7340

General industry standards May 29, 1971 36 FR 10466

Construction—roll-over protective structures Apr. 5, 1972 37 FR 6837

Power transmission and distribution Nov. 23, 1972 37 FR 24880

Scaffolds Dec. 2, 1972 37 FR 25712

Lab accreditation Sept. 11, 1973 38 FR 25149

Temporary flooring—steel July 2, 1974 39 FR 24360

Mechanical power presses Dec. 3, 1974 39 FR 41841

Agricultural tractors—roll-over protective structures Apr. 25, 1975 40 FR 18253

Industrial slings June 27, 1975 40 FR 27367

Guarding of farm field equipment, farmstead equipment, and

 cotton gins

Mar. 9, 1976 41 FR 10189

(continued)
Chapter 1 Study Overview and Major Conclusions | 7

SAFETY

Permanent rule Promulgation date

Federal Register 

citation

Ground fault circuit interrupters Dec. 21, 1976 41 FR 55695

Commercial diving operations July 22, 1977 42 FR 37649

Fire prevention Sept. 12, 1980 45 FR 60656

Guarding of low-pitched roof perimeters during performance 

of built-up roofing work

Nov. 14, 1980 45 FR 75618

Electrical safety requirements Jan. 16, 1981 46 FR 4034

Shipyard consolidation Apr. 20, 1982 47 FR 16984

Gasoline dispensing nozzles, removal of ban on latch open

devices

Sept. 7, 1982 47 FR 39161

Marine terminals July 5, 1983 48 FR 30886

Servicing multi- and single-piece rim wheels Feb. 3, 1984 49 FR 4338

Power lawnmowers Feb. 1, 1985 50 FR 4648

Electrical standards for construction July 11, 1986 51 FR 25294

Accident prevention tags Sept. 19, 1986 51 FR 33251

Recordkeeping requirements for tests, inspections, and 

maintenance checks

Sept. 29, 1986 51 FR 34552

Field sanitation May 1, 1987 52 FR 16050

Grain handling facilities Dec. 31, 1987 52 FR 49592

Presence sensing device initiation of mechanical power

presses

Mar. 14, 1988 53 FR 8322

Safety testing/certification of workplace equipment and

materials

Apr. 12, 1988 53 FR 12102

Concrete masonry construction safety June 16, 1988 53 FR 22612

Crane or derrick suspended personnel platforms Aug. 2, 1988 53 FR 29116

Hazardous waste operations and emergency response training Mar. 6, 1989 54 FR 9294

Underground construction June 2, 1989 54 FR 23824

Powered platforms for building maintenance July 28, 1989 54 FR 31408

Control of hazardous energy (lockout/tagout) Sept. 1, 1989 54 FR 36644

Excavations, trenching Oct. 31, 1989 54 FR 45894

Welding, cutting, and brazing Apr. 11, 1990 55 FR 13694

Electrical work practices Aug. 6, 1990 55 FR 31984

Lift slab construction Oct. 18, 1990 55 FR 42306

Stairways and ladders in construction Nov. 14, 1990 55 FR 47660

Process safety management Feb. 24, 1992 57 FR 6356

Confined spaces Jan. 14, 1993 58 FR 4462

Electric power generation, transmission, and distribution Jan. 31, 1994 59 FR 4320

Face, head, eye, and foot protection Apr. 6, 1994 59 FR 16334

Reporting of fatality or multiple hospitalizations May 2, 1994 59 FR 15594

Logging operations Oct. 12, 1994 59 FR 19745

SOURCE: Compiled by Office of Technology Assessment from Federal Register citations and other sources.

BOX 1-2: Permanent Standards Promulgated By OSHA (Cont’d.)
8 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

whether the agency adequately understands the

extent of hazards at hand and the pertinent facts

and considerations essential to forming sound

policy. Some believe the agency spends too little

time probing the potential of new technology for

removing constraints in the way of workplace

BOX 1-3: OSHA Rulemakings in Progress

Title Status

HEALTH

Respiratory protection Proposed rule stage

Occupational exposure to hexavalent chromium Proposed rule stage

Occupational exposure to tuberculosis Proposed rule stage

1,3-Butadiene Final rule stage

Glycol ethers: 2-methoxyethanol, 2-ethoxyethanol, and their acetates Final rule stage

Methylene chloride Final rule stage

Air contaminants rule for construction, agriculture, and maritime Final rule stage

Indoor air quality in the workplace Final rule stage

SAFETY

Steel erection Proposed rule stage

Control of hazardous energy (lockout/tagout)—construction Proposed rule stage

Powered industrial truck operator training Proposed rule stage

Ergonomic protection Proposed rule stage1

Comprehensive occupational safety and health programs Proposed rule stage

Confined spaces—construction Proposed rule stage

Miscellaneous amendments to the safety standards for the construction industry Proposed rule stage

General working conditions in shipyards Proposed rule stage

Fire protection in shipyard employment Proposed rule stage

Permit required confined spaces (amendment to existing standard) Proposed rule stage

Scaffolds—construction Final rule stage

Safety and health regulations for longshoring and marine terminals Final rule stage

Scaffolds in shipyards Final rule stage

Access and egress in shipyards Final rule stage

Personal protective equipment in shipyards Final rule stage

Walking working surfaces and personal fall protection systems Final rule stage

Accreditation of training programs for hazardous waste operations Final rule stage

OTHER

Recording and reporting occupational injuries and illnesses Proposed rule stage

Abatement verification Final rule stage

1 In June 1995 the OSHA director placed the ongoing Ergonomics rulemaking on hold.

SOURCE: Department of Labor, Occupational Safety and Health Administration, “Unified Agenda of Regulations,” Federal Register 60:

23571–23583, May 8, 1995.
Chapter 1 Study Overview and Major Conclusions | 9

hazard reductions. Many of these complaints are

widely shared, but interested parties differ—

often radically—in the specifics of their fault

finding and prescriptions for remedies.

STUDY REQUEST AND QUESTIONS 

ADDRESSED

This study stems from a May 1992 request from

members of the House Committee on Education

and Labor3

 and the Senate Committee on Labor

and Human Resources that the Office of Technology Assessment (OTA) prepare a report

“evaluating OSHA’s methods for selecting and

examining the feasibility of engineering and

other process changes to limit worker exposures

to occupational hazards.”4 The request went on

to express interest in also knowing how well the

agency’s rulemaking estimates of the methods of

control, associated costs, and other economic

effects typically matched the outcomes actually

experienced as affected industries adjusted to the

new compliance requirements.

To satisfy this request, OTA established a

research effort that addressed a number of questions:

■ What is the basic nature—tasks, procedures,

methods—of the technology assessment, cost,

and regulatory impact analyses OSHA normally conducts? Does the agency execute

these efforts soundly?

■ What are the principal criticisms of the

agency’s current analyses in these arenas?

What has the agency done to address these

concerns? What remains to be done?

■ How reliable are the agency’s rulemaking estimates of actual outcomes? What are the apparent major sources of disparities?

3 In the 104th Congress, the responsibilities of this committee have been assumed by the House Committee on Economic and Educational

Opportunities. 4 William D. Ford, Chairman, House Committee on Education and Labor, and Edward M. Kennedy, Chairman, Senate Committee on

Labor and Human Resources, letter to the Director, Office of Technology Assessment, U.S. Congress, Washington, DC, May 27, 1992.

■ What organizational capabilities and resources

does the agency bring to its analytical tasks,

and are these adequate?

■ How do the agency’s analytical approach and

methods compare with those of other organizations with safety and health regulatory

responsibilities?

The nature of the research and of the resources

drawn upon is discussed further in chapter 3 of

this report, which also contains the major evaluative findings. In brief, however, the effort

encompassed four main areas. First, more than a

dozen of OSHA’s major health and safety standards were examined—a few of the major rules

issued in the 1970s, but most from the early

1980s up through the early 1990s. This effort

was intended to appraise the characteristic methods, data foundations, and uses of the feasibility

and regulatory impact analyses prepared for the

agency’s rulemakings. Second, for eight of the

standards, OTA assembled data on the nature of

affected industries’ actual adjustment to the compliance provisions and examined the accuracy of

the rulemaking estimates (vis-à-vis predominant

control measures adopted, compliance costs, and

other economic impacts) against these post-promulgation outcomes. Third, to gain a better

appreciation of the agency’s internal procedures

and capabilities for conducting technology and

regulatory impact analyses, the operation and

budgetary resources of the parts of the agency

principally involved in these efforts were

reviewed. Finally, to judge how OSHA’s practices compared with those of other government

organizations, the health and safety decisionmaking approaches of other federal agencies and

those of some of the major trading partners of the

United States were examined.
10 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

MAJOR CONCLUSIONS

As a preview of the lengthier discussion in chapter 3, the principal findings from OTA’s evaluative research are tabulated in box 1-4. The

overall conclusions that OTA draws from these

are as follows:

1. The 1970 OSH Act, particularly as the courts

have subsequently interpreted its procedural

requirements, executive orders (mandating the

conduct of “regulatory analyses”), and other

legislation (in particular, the 1980 Regulatory

Flexibility Act) combine to impose an extensive set of analysis and evidentiary stipulations concerning hazard control options and

regulatory impacts that OSHA must satisfy in

promulgating its health and safety standards.

By and large, the agency has developed a

coherent and credible set of procedures and

methods that are responsive to these various

requirements—and which generally provide a

reasonable channel for engagement of the

views of direct stakeholders and other interested parties.

2. The agency’s findings and estimates on hazard

control options and regulatory impacts are

often the subject of vigorous review and challenge by stakeholders and various experts on

all sides of rulemaking issues. But this reaction does not generally indicate underlying

agency analytical neglect. The agency’s rulemakings are often lightning rods for controversy and are conducted in a politically

polarized setting. The stakeholders, industrial

health and safety professionals, and various

government bodies involved in rulemakings

often diverge widely when it comes to such

basic issues as the intrinsic need for enhanced

protection, the likely efficacy of new compliance measures, and the benefits and costs to

arise. Furthermore, the analytical questions

with greatest bearing on these matters are

often not amenable to fully conclusive determination for various reasons: the complexity

of the technical considerations involved (e.g.,

to what extent will risk be reduced as a result

of the installation of particular control measures on an existing production process); the

inevitable shortages of data on important

parameters (which arise because, as a practical

matter, the agency often does not have the

budget, work calendar, or access to industry

needed to collect all relevant data on the many

technical factors involved); and attendant

imponderables (such as what pertinent operating conditions will prevail over time in

affected or otherwise involved industries).

3. OSHA’s examinations of prospective control

measures and the possible economic effects of

their adoption occur principally in the course

of procedurally obliged demonstrations that

the compliance provisions of an intended standard are generally feasible in technical and

economic terms for affected industries. It

appears from the sample of existing standards

OTA examined for this report, that the agency

has generally performed this task with workable accuracy—that is, standards determined

by OSHA to be “feasible” in the course of its

analytical deliberations have usually proved to

be so when industries took the necessary steps

to comply. (However, a few failures in this

respect were evident in the cases, and point to

some analytical deficiencies the agency

should consider in future work.)

Nonetheless, the agency’s demonstrations of

feasibility are often based on conservative

assumptions about what compliance responses

will predominate across affected industries.

As a result, there are often sizable disparities

between OSHA’s rulemaking projections of

control technology adoption patterns, compliance spending, and other economic impacts,

and what actually happens when affected

industries respond to an enacted standard. In a

good number of the cases that OTA examined,

the actual compliance response that was

observed included advanced or innovative

control measures that had not been emphasized in the rulemaking analyses, and the

actual cost burden proved to be considerably

less than what OSHA had estimated.

4. Benefit-cost comparisons are not at present a

formal basis on which OSHA sets its stan-
Chapter 1 Study Overview and Major Conclusions | 11

dards—the result of Congress’s original crafting of the 1970 OSH Act and the various

interpretations and guidelines provided by the

courts in the years since. Nonetheless, as a

practical matter of policymaking, such comparisons are often an informal medium

through which the debate among OSHA,

stakeholders, oversight bodies (such as OMB),

and other interested parties proceeds. In light

of this (and the executive order mandate for

conduct of regulatory impact analyses), the

agency normally assembles considerable analytical information on both estimated costs

and benefits for an intended standard—and

has done so largely irrespective of the

expected magnitude of the overall economic

impact on the economy.

Nonetheless, the figures the agency typically

provides are, at best, an imperfect estimate of

what is likely to actually transpire. The

agency’s quantification of benefits in rulemakings tends to focus on only the most

important sources, rather than on the full spectrum of effects expected. Costs are usually

comprehensively quantified, but the estimates

are captive (as discussed earlier and immediately below) of the typically conservative

assumptions about the control measures

adopted.

5. The rulemaking cases OTA examined largely

confirmed one of the stronger criticisms of

OSHA’s analytical priorities and practice: that

the agency devotes relatively little attention to

examining the potential of advanced technologies or the prospect of regulation-induced

innovation to provide technologically and economically superior options for hazard control.

Most attention does appear to be placed on

“conventional” control measures (e.g.,

increased ventilation and production equipment enclosure), rather than on “new technology” (ranging from sophisticated emissions

control devices to technologies capable of

supporting basic shifts in production processes, including process redesigns, product

reformulations, and material substitutions).

Such a bias is not surprising, given the “feasibility demonstration” orientation of the

agency’s rulemaking logic and the need for

control technology assumptions capable of

standing up well under “substantial evidence”

scrutiny by the courts later. But this narrowed

focus leaves a significant gap in the vision of

the potentially available control options that

OSHA can bring to the policymaking debate.

Furthermore, in a few of the rulemakings

OTA examined, it appears that greater attention to the potential of new technology during

the rulemaking might have supported more

stringent hazard reduction provisions than

were actually promulgated.

Arguably, OSHA ought to be a progressive

supporter of innovations and the adoption of

better technology, when such measures may

provide for the cost-effective application of

superior hazard removal measures, work to

the benefit of both industry and workers, and

enhance the agency’s ability to secure additional health and safety protections in the

workplace. However, the agency’s present

approach and priorities in examining control

options do not appear to be providing an

effective means to this end.

In OTA’s opinion, this is a substantive deficit

that particularly deserves OSHA’s consideration. Moreover, it is an area to which Congress may wish to consider encouraging and

facilitating the agency’s more substantial

attention.

6. Finally, it is surprising, given the long-standing and contentious public debate about the

benefits and costs of OSHA’s regulatory interventions, how little systematic knowledge

exists about the actual effects of the agency’s

standards. OSHA would, no doubt, significantly benefit from a more routine effort to

collect and interpret information pertaining to

actual regulatory outcomes and impacts—to

aid the agency in identifying possible needs

for mid-course policy adjustments, to better

inform the public on the balance between new
12 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 1-4: Summary of Principal Evaluative Findings

Appraisal of Methods and Process

■ OSHA’s examination of control measures and the impacts of new compliance requirements arises

chiefly in preparing the procedurally mandated feasibility determinations and regulatory analyses.

Within the confines of these tasks, the broad elements of what the agency prepares are generally

coherent and credible. However, there is a “narrowness” in the questions addressed and findings

provided that needs to be recognized.

■ Typically, the considerations most influential in shaping feasibility and impact findings require substantial factual information about the characteristics of affected industries. Data collection to meet

these needs is generally among the most challenging aspects of the agency’s analytic effort for a

rulemaking.

■ A closely related point is that OSHA’s feasibility and regulatory impact findings are often criticized

as lacking empirical depth. This is a matter not easily dismissed, given the procedural importance

of these findings and the threat of subsequent judicial remand, but it reflects an analytical challenge with few simple solutions.

■ Explicit benefit-cost comparisons are not at present a formal basis for OSHA’s rulemaking actions.

Nonetheless, the agency normally prepares substantial information on the benefits and costs of

intended standards—and, as a practical matter, stakeholders’ competing perceptions about the

benefit-cost balance likely to result are often a major focus of debate in the course of a rulemaking.

■ For the most part, OSHA’s current feasibility analyses devote little attention to the potential of

advanced or emerging technologies to yield technically and economically superior methods for

achieving reductions in workplace hazards. Much of this circumstance reflects the procedural priorities of the rulemaking process, as well as the nature of the hazard reductions the agency has targeted since the early 1980s. But a good case can be made that a lack of continuing insights on the

potential of leading-edge technology hinders the agency in performing its mission.

Lessons from the Retrospective Case Studies

■ Straightforward comparisons of the industry response and regulatory impact circumstances that

have actually occurred with those projected by OSHA in promulgating standards exhibit both “hits”

and “misses.” But most all of the cases contain at least some significant disparities.

■ Nonetheless, if the cases examined are judged on the basis of the accuracy with which feasibility

was determined, OSHA’s rulemaking estimates appear in a more favorable light.

■ A number of larger lessons are suggested by these comparative findings:

— Based on the cases examined for this report, OSHA’s rulemakings are not generally imposing an

unworkable compliance burden on industry.

— OSHA’s present procedures for estimating compliance responses and the associated economic

consequences provide considerable room for actual adjustment outcomes to differ.

— Too narrow a concept of the feasible technology can hinder the agency in establishing justifiable

health and safety protections.

— Feasibility analysis can be short of influence in driving consideration of competing policy

options.

■ One additional lesson from OTA’s case research for this project is that it is surprising how little systematic information on the actual outcomes and impacts of the agency’s standards is available.

(continued)
Chapter 1 Study Overview and Major Conclusions | 13

costs and new benefits being realized, and to

provide insights that might help OSHA shape

the content of future rulemakings.

To be sure, complete answers to these questions imply data collection and analysis efforts

that are probably beyond practical reach (and

beyond beneficial return for the agency’s primary responsibilities). But the experience of

the few existing evaluative studies on past

rulemakings suggest that informative and

useful findings (on industry compliance

responses, incurred costs, and extent of hazard

reductions) can be derived from something

less than exhaustive studies. What is needed is

Organizational and Resource Considerations

■ The level of resources supporting the agency’s technology and regulatory analysis efforts is hard to

pin down precisely, but it is apparent that demand has long been substantial and the resources

thin.

■ The existing resource constraints notwithstanding, developments on the horizon portend the need

for an even larger regulatory analysis effort:

— increased pace of rulemaking;

— new analytic support for priority setting;

— increasing rulemaking controversy;

— an enlarged scope for judicial review;

— expanded analysis of control options and impacts.

■ A number of ways to improve the agency’s existing procedures for conducting and using regulatory

analyses appear to merit consideration:

— improved interoffice integration within OSHA;

— expanded interaction with NIOSH;

— links with new-technology research at EPA;

— renewal of Department of Labor Policy Office inputs;

— increased interdisciplinarity at OSHA’s Office of Regulatory Analysis.

Observations from Benchmarking

■ OSHA’s regulatory analysis tasks are, in some respects, more complicated than those of its counterparts elsewhere in the U.S. federal bureaucracy. Nonetheless, the agency’s work is generally

comparable to the best practices of other health and safety regulatory agencies.

■ OSHA’s regulatory analysis tasks are far more demanding than its foreign counterparts because

the United States requires far more detailed economic and technological analysis to promulgate

occupational safety and health regulations.

■ Occupational safety and health regulators in other nations seem to be able to promulgate standards more quickly than OSHA and without the discord and rancor that often arises in OSHA proceedings. However, applying the means used elsewhere to limit conflict in U.S. rulemakings is

problematic.

■ Some of the initiatives related to safety and health standard setting now underway at EPA, an

agency with similar regulatory analysis requirements, may merit OSHA’s attention and consideration.

SOURCE: Office of Technology Assessment. See chapter 3 for a fuller discussion of each of these findings.

BOX 1-4: Summary of Principal Evaluative Findings (Cont’d.)
14 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

a more systematic effort on the agency’s part

to develop this kind of information.

Nonetheless, the tight constraints of the

agency’s present budget appear to make initiation of such a new evaluative research program difficult without undesirably diverting

resources from other high-priority activities.

Congress may wish to consider how it could

best encourage and facilitate OSHA’s greater

attention to this task.

THE REST OF THIS REPORT

Chapter 2 provides some essential background

on the features of OSHA’s rulemaking procedures, the roles for control technology and regulatory impact analyses, and basic nature of the

data collection and analytic steps taken.

Chapter 3 summarizes the major findings from

OTA’s evaluative research, along the four lines

of inquiry just outlined above. Chapter 4 discusses the policy implications of these findings,

with particular attention to a number of issues of

current Congressional attention regarding

OSHA. Appendices A and B at the end contain

further findings on the eight standards examined

retrospectively and citations to the principal

working papers and research reports prepared

over the course of the project.

This entire report is principally a summary of

a larger body of documented material prepared in

the course of the research for the project. Readers

interested in more details on the findings should

consult the aforementioned working papers and

research reports. OTA is making all these documents available through the National Technical

Information Service (NTIS) in Springfield, VA.
| 15

2

OSHA’s

Current

Analytic

Procedures

efore the project’s principal findings are

discussed (in chapter 3), it is essential to

review OSHA’s principal procedures for

setting standards. The associated steps

and requirements are extensive. As rulemakings

now work, the agency’s examinations of control

technologies and regulatory impacts are prepared

chiefly in response to the particular tasks delegated by these regulatory procedures.

ELEMENTS OF OSHA’S PERMANENT 

STANDARDS

❚ Health Standards

OSHA’s health standards address exposures to

hazardous materials and agents, such as chemicals capable of causing cancer (or other chronic

health effects), poisons, severe noises, or vibrations. In the language of section 6(b)(5) of the

OSH Act, such “toxic materials or harmful physical agents” are specially treated, and the Secretary of Labor is directed to promulgate standards

“which most adequately assure, to the extent feasible, on the basis of the best available evidence,

that no employee will suffer material impairment

of health or functional capacity even if such

employee has regular exposure to the hazard ...

for the period of his working life.”

Standards that the agency promulgates under

this authority typically involve several kinds of

compliance provisions. A requirement for

employers to limit worksite exposures to a specified level or below is usually central—a “permissible exposure limit” (PEL) usually reflecting a

time-weighted average exposure over a full

workshift of 8 hours (TWA8) or a “short term

exposure limit” (STEL) spanning a far shorter

period (often 10 to 15 minutes). Such a requirement may require an employer to install new or

improved engineering controls or to use substitute materials, to modify existing work practices

(to remove workers from contaminated areas or

limit the length of time they are exposed), to

implement new administrative procedures (such

as job rotation)—or often to use some mix of

these various avenues for control.

Other kinds of compliance provisions can

include establishing ongoing programs to monitor workplace exposure levels and to provide

exposed employees with periodic medical surveillance examinations, establishing plans to be

used in emergency exposure circumstances, and

providing employees with up-to-date informaB
16 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

tion about the extent of workplace risks and

training in hazard-reducing work practices.

Typically, the most extensive changes an

affected establishment will have to undertake for

compliance will relate to lowering worksite

exposure levels. Here, modifications to existing

production equipment, processes, and procedures

may need to be made. Nonetheless, PEL or

STEL provisions are intrinsically performance

objectives, where employers are free to achieve

the specified limits through whatever means they

deem most economical. However, in keeping

with industrial hygiene practice and the agency’s

long-standing policy, OSHA’s health standards

have continued to insist on the primacy of feasible engineering controls to lower exposure levels, rather than, say, fitting employees with

personal respirators and protective clothing on a

full-time basis.1

❚ Safety Standards

OSHA’s safety standards address workplace hazards “capable of causing immediately visible

physical harm.” Examples include ordinary

industrial equipment that may, through sudden

movement, cut, crush, or otherwise injure a

worker, or industrial processes whose normal

operation, when combined with other worksite

circumstances, could yield catastrophic incidents

such as explosions or electrocutions. OSHA’s

setting of safety standards comes under the general guidance of the OSH Act’s section 3(8) for

all permanent standards, to require “conditions,

or the adoption or use of one of more practices,

means, methods, operations, or processes, reasonably necessary or appropriate to provide safe

or healthful employment and places of employment.”

1 Industrial hygiene’s “hierarchy of controls” places engineering controls at the top of the priority ladder, reflecting a conclusion (on good

professional practice and risk reduction grounds) that workplace hazards should be removed at the source when at all possible. In parallel,

OSHA’s “methods of compliance” policy, first adopted by the agency from national consensus standards in 1971, has required that employers primarily use feasible engineering controls to achieve PELs. Nevertheless, this priority has been a matter of significant debate over the

years with some segments of industry, wherein the flexibility to substitute respirators and/or personal protective equipment providing equivalent protection to engineering or work practice controls has been sought—and argued (by these proponents) to often provide a more costeffective method of control.

The specific features of safety rulemakings

vary with the nature of the hazard. Generally,

however, the kinds of provisions incorporated

include those such as engineering specifications

for equipment; work practices that seek to minimize the prospect for serious accidents; inspection and maintenance programs; advance

planning for emergency situations; employee

training and hazard communications; and, on

occasion, formal certifications by external parties

of the designs, installation, and operational adequacy of the equipment and work practices

involved.

OSHA’s past safety standards have often

included quite specific requirements for equipment and procedures. In recent years, however,

the agency has sought whenever possible to

establish provisions on a performance basis,

leaving employers with flexibility in choosing

the means to comply.

RULEMAKING REQUIREMENTS AND 

INFLUENCES

As a matter of principle, OSHA has substantial

policymaking discretion, with the latitude to

defer to its own technical expertise in setting

standards. Nonetheless, the agency’s promulgation of rules is subject to considerable review and

influence by various actors outside the agency.

Indeed, as a general rule, OSHA’s rulemakings

need to be supported by an extensive presentation of evidence and rationale, and, along the

way to promulgation, must be responsive to significant comments and submissions to the record

by stakeholders and other interested parties.

Arguably, OSHA faces rulemaking requirements

among the most demanding of all federal agen-
Chapter 2 OSHA’s Current Analytic Procedures | 17

cies with health, safety, and environmental regulatory responsibilities.2

Some of this circumstance stems from the various legal requirements incumbent on the

agency. As the proponent of a rule or an order,

OSHA must provide a demonstration in advance

of promulgation that an intended rule is reasonably necessary, and refer to a documented record

in doing so. As specified by the OSH Act, the

agency is required to conduct rulemakings

through a more demanding, hybrid version of the

“informal” procedure specified by the Administrative Procedures Act.3

 Furthermore, should a

challenge be mounted to a standard after promulgation, the agency’s determinations must be

capable of withstanding a “substantial evidence”

review4 by the courts—rather than the less

demanding “arbitrary and capricious” level of

review normally specified for “informal” agency

2 For a useful discussion of this point with citations, see Sidney A. Shapiro and Thomas O. McGarity, “Reorienting OSHA: Regulatory

Alternatives and Legislative Reform,” Yale Journal on Regulation, 6 (1989), pp. 4–12. Also, an OTA working paper prepared for this project

compares OSHA’s procedures to decisionmaking by other federal regulatory agencies with health and safety responsibilities and by OSHAequivalent organizations abroad: David Butler, “OSHA’s Brethren—Safety and Health Decisionmaking in the U.S. and Abroad,” Office of

Technology Assessment, U.S. Congress, Washington, DC, September 1995. 3 As specified by the Administrative Procedures Act, “informal” rulemakings are conducted through informal notice and comment procedures, akin to a legislative process. By contrast, “formal” rulemaking operates chiefly through judicial procedures, such as swearing of witnesses, taking of depositions, and cross-examination. Congress specified essentially an “informal” procedure for OSHA with a legislativetype public hearing. But to assure the effective participation of concerned stakeholders and a just rulemaking, OSHA’s procedures allow for

cross-examination and specify keeping a verbatim transcript of the proceedings. 4 The U.S. Supreme Court has interpreted substantial evidence to consist of “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion” (Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-20, (1965) ). Nonetheless, the courts have

repeatedly recognized that OSHA’s standard setting involves legislative-type decisions, which are by nature not entirely reducible to determinable facts and often must engage imperfect and contradictory information. Under these circumstances, the courts have generally been deferential to agency actions, construing “substantial evidence” to involve the presentation of pertinent factual evidence, capable of supporting

the rationale used by the agency in reaching its conclusions. Such evidence must be the best available, but it does not have to approach scientific certainty. See Kent D. Strader, “OSHA’s Air Contaminants Standard Revision Succumbs to Substantial Evidence Test,” University of

Cincinnati Law Review, 92 (1993): 358–365.

rulemaking procedures by the Administrative

Procedures Act.5

In addition, since the mid-1970s, the OSH Act

has been the subject of numerous judicial interpretations—arising, for the most part, in thecourse of challenges mounted by stakeholders

dissatisfied with newly promulgated standards.

These decisions have generally been far-reaching

for the agency’s rulemaking procedures. Among

other effects, this evolving body of case law has

mandated or refined various substantive determinations the agency is obliged to make in support

of rulemakings, notably, confirmation of the significance of the hazard being addressed and the

technological and economic feasibility of the

compliance provisions specified. Box 2-1 provides a further discussion of the essential features of these decisions as they affect OSHA’s

analytical activities.

5 Some analysts argue that contemporary reviewing courts applying “hard look” scrutiny to agency actions have, as a practical matter,

removed much of the intended difference between the “arbitrary and capricious” and “substantial evidence” levels of review (see Shapiro and

McGarity, 1989, p. 9 and footnote 50). Nonetheless, the circumstance remains that OSHA is subject to a high standard of review and, because

of the considerable threat of post-promulgation challenge, must generally go the extra mile to assemble an exceptionally strong rationale and

supporting record for its regulatory actions.
18 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 2-1: Court Decisions Affecting OSHA’s Conduct of Rulemakings

Health Standards

Significant Risk. In a 1980 decision, the U.S. Supreme Court (in Industrial Union Dept. v. American

Petroleum Institute, 448 U.S. 607) concluded that OSHA could regulate a substance only after making a

threshold finding (capable of meeting a “substantial evidence” test) that a significant risk of harm existed

and that the standard would eliminate or reduce that risk. Several subsequent U.S. Court of Appeals decisions refined the evidentiary basis for such determinations. In light of these directions, OSHA’s normal initial step in a health rulemaking is to verify that a significant risk exists and that a new/revised standard will

reduce it. Scientific evidence from quantitative risk assessments is the usual foundation for this finding—

although, the courts have made it clear that a positive determination can be made, if necessary, on less

conclusive evidence (e.g., the weight of expert testimony or opinion), as long as it is applicable to the situation that causes the risk. Furthermore, once the agency makes a significance determination, it must

then act to eliminate the hazard—or at least reduce it to the extent feasible.

Technological Feasibility. Reviewing courts have generally interpreted the “to the extent feasible” stipulation of the OSH Act’s section 6(b)(5) to contain separate technological and economic components. On

the technology side, OSHA must establish a general presumption (within the limits of best available evidence, capable of satisfying a substantial evidence level of review) that the typical firm in an affected

industry will reasonably be able to develop and install the necessary engineering and work practice controls in most of its operations. This can be done by pointing to technology already in use. Nevertheless,

the agency is not restricted to presently available technology. It can set a standard at a level achievable

only by the most advanced plants in an industry or one that forces the development and diffusion of new

technology. Here, certainty is not necessary, but the agency must provide a substantial evidence finding

that the necessary technology has been conceived and is reasonably capable of experimental refinement and distribution within the standard’s deadlines by companies acting vigorously and in good faith.

(Decisions by both the U.S. Supreme Court and U.S. Court of Appeals were instrumental in defining these

principles. See particularly Society of the Plastics Industry v. OSHA, 509 F.2d, 1301, 1309 (1975); USWA

v. Marshall, 647 F.2d, 1189 (1980); American Textile Manufacturers v. Donovan, 452 U.S. 490 (1981);

Building and Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258 (1988)).

Economic Feasibility. Similarly, the courts have concluded that OSHA must demonstrate (again, on a

best available evidence basis, capable of substantial evidence review) that a standard is generally economically feasible for each regulated industry (or, potentially, for specific segments therein, if such segments are particularly vulnerable to the ramifications of the standard). In this, the agency must prepare a

sound estimate of compliance costs and show that the standard will not cause massive economic dislocations within, or imperil the existence of, affected industries. Nevertheless, an economically feasible

standard can be financially burdensome, can affect profit margins adversely, and need not guarantee the

continued viability of individual firms that historically have lagged other regulated firms in providing safe

places of employment. (See particularly Industrial Union Dept. v. Hodgson, 499 F.2d 467 (1974); USWA

v. Marshall, 647 F.2d, 1189 (1980); American Textile Manufacturers v. Donovan, 452 U.S. 490 (1981)).

(continued)
Chapter 2 OSHA’s Current Analytic Procedures | 19

Benefit-Cost Balancing. In 1980, the U.S. Supreme Court, in American Textile Manufacturers v. Donovan (452 U.S. 490), directly addressed the use of benefit-cost analysis in establishing OSHA’s health

standards. The court concluded with the agency that section 6(b)(5) of the OSH Act precluded benefitcost analysis as a direct basis—because Congress had placed the benefit of worker health above all

other considerations save those making attainment unachievable, had considered health and safety protections as a reasonable cost of business, and had required feasibility analysis (to limit the prospect of

regulatory overstretch). The Court’s guidance in this area supersedes the executive order requirements

that intended standards necessarily reflect a reasonable benefit-cost relationship. Nevertheless, as a

practical matter, OSHA prepares estimates of regulatory costs and benefits—and often discusses their

relationship in reviewing its economic feasibility findings.

Safety Standards

Significant Risk. OSHA has drawn much the same conclusions about the courts’ guidance on this matter for safety standards as it has for health standards, that is, section 3(8) of the OSH Act requires, prior to

promulgation, a threshold finding that significant risks are present in the workplace and can be eliminated

or reduced by a change in practices. Thus, in this regard, the agency generally approaches a safety

standard much the same as a health standard, and makes a significance determination as an initial rulemaking step.

Technological and Economic Feasibility. OSHA must make threshold determinations in both of these

areas, just as for a health standard. The same burdens of proof prevail: general presumptions of feasibility for each affected industry (or relevant segments thereof), best available evidence, capable of withstanding a substantial evidence level of review by the courts.

Benefit-Cost Balancing. The U.S. Supreme Court’s 1980 decision in American Textile Manufacturers v.

Donovan (cited earlier) addressed the use of benefit-cost analysis only in health standards and left open

the relevance of this method in safety rulemakings. More recently, though, in International Union, UAW v.

OSHA, 938 F.2d 1310 (1991), the District of Columbia Circuit court (addressing various challenges to

OSHA’s 1989 Hazardous Energy Sources [“lockout-tagout”] safety standard) indicated concern that

OSHA’s interpretation of the OSH Act vis-à-vis the procedures for safety rulemakings could lead to very

costly and minimally protective standards. The court expressed the view that safety standards restricted

only by “feasibility” provided unreasonably broad discretion to OSHA. The court remanded the agency’s

interpretation of its procedural requirements for further consideration and suggested that benefit-cost

analysis (though not the only acceptable approach) was consistent with the language of section 3(8) (the

portion of the OSH Act that governs setting safety standards). OSHA’s response to this matter to date

(see 59 Federal Register 4427-4429) has been to argue that a technologically and economically infeasible standard would a fortiori not meet the “reasonably necessary or appropriate” threshold of section 3(8)

and to strongly affirm the adequacy of its existing process for safety standards. (These procedures

include a significant risk finding, technological and economic feasibility determinations, evidence and

rationale capable of withstanding a substantial evidence review by the courts, the need to consider all

serious comments on the record and specify cost-effective measures, but not a benefit-cost test.) Nonetheless, this is a matter that may not yet be resolved, and could well further gravitate toward a need for

more systematic consideration of the balance of benefits and costs in future safety standard rulemakings.

SOURCE: Summarized by OTA from various OSHA rulemaking preamble materials in the Federal Register; Kent D. Strader,

“OSHA’s Air Contaminants Standard Revision Succumbs to Substantial Evidence Test,” University of Cincinnati Law Review 92

(1993): 358-365; and other sources.

BOX 2-1: Court Decisions Affecting OSHA’s Conduct of Rulemakings (Cont’d.)
20 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Presidential orders have added to the analytical requirements for a rulemaking. Nearly every

administration since President Ford’s in 1974 has

issued an executive order mandating that federal

regulatory agencies prepare comprehensive regulatory impact analyses to support rulemakings.

The broad purpose of these orders has been to

assure due consideration of the expected costs

and benefits of new regulations and, since the

early 1980s, to expand the role of White House

and Executive Office of the President oversight

in federal agency rulemaking.6

Additional requirements for analysis derive

from congressional legislation subsequent to the

OSH Act. The 1980 Regulatory Flexibility Act

(5 U.S.C. 60 et seq.) requires that OSHA examine the economic impacts of its standards on

“small entities” (i.e., small businesses, organizations, governmental jurisdictions) and demonstrate that a significant or unnecessary burden

will not result.

6 In general, these orders have reflected the desire that agencies clearly consider economic costs and alternative policies in their rulemakings and that adequate opportunity be provided for public comment on agency assumptions and findings. President Ford’s E.O. 11821 in

1974 required an “inflation impact statement” to assure consideration of the possible inflationary effects of a regulation, where significant

impacts on costs, productivity, competition, or the supply of important products and services were expected. (E.O. 11949 in 1976 extended

the period of applicability of this mandate, and also renamed the required analyses “economic impact statements.”) In 1978, President Carter

replaced the Ford executive orders with his own E.O. 12044, requiring preparation of a “regulatory analysis” for all “major” rules (i.e., those

expected to impose an annual effect of $100 million or more on the economy or give rise to a major increase in costs or prices for individual

industries, levels of government, or geographic areas), showing that alternative policy approaches had been considered, and explaining the

agency’s policy choice. In 1981, President Reagan replaced the Carter order with E.O. 12291, which similarly mandated preparation of a

“regulatory impact analysis” for all “major” rules (defined in most respects along the lines of the Carter order) but required more elaborate

attention to expected costs and benefits, the consideration of policy alternatives (including nonregulatory means of achieving policy goals),

and the net benefit and cost-effectiveness of potential new regulations. The Reagan order also substantially enlarged OMB’s role in overseeing the regulatory impact assessment process and monitoring the preparation of potential regulatory actions. (A second order, E.O. 12498,

issued four years later, authorized OMB’s involvement at an earlier stage in the rulemaking process.) President Clinton’s E.O. 12866 in 1993

replaced both of the Reagan orders, introduced a number of significant changes in the procedures for regulatory planning and executive oversight of rulemakings, but retained a requirement for the preparation of a formal “assessment” for any “significant regulatory action” (defined

similarly to “major” in the Carter and Reagan orders) that considered the potential costs and benefits of the intended action and the policy

alternatives available (including non-regulatory means).

Finally, beyond these formal requirements,

there is also the day-to-day reality that the

agency’s regulatory mission is often exceedingly

controversial and involves stakeholders with

widely diverging interests. There are often substantial differences among affected parties’

assessments of the need to enhance a level of

protection, the likely efficacy of new compliance

measures in reducing existing risks, and the

attendant economic benefits and costs. The threat

that those dissatisfied with an action will seek

post-promulgation redress and a reshaping of the

outcome through the courts is considerable and is

a circumstance that has arisen frequently in

OSHA rulemakings (particularly with respect to

health standards). Beyond the statutory and technical considerations, the agency’s policymaking

invariably faces the challenging task of accomplishing the health and safety mission delegated

to it by Congress and striking a workable balance

among competing stakeholder interests.
Chapter 2 OSHA’s Current Analytic Procedures | 21

ANALYTICAL CONTENT AND METHODS

In light of these various guidelines and requirements, OSHA normally conducts a rulemaking

along a well-defined logical path. In the case of

health standards, the principal steps are to (as

OSHA describes them): 1) demonstrate that the

substance/hazard to be regulated poses a significant risk to workers; 2) identify which if any of

the regulatory policy alternatives being considered will substantially reduce the risk; 3) identify

the most protective control requirements that are

both technologically and economically feasible

for the affected industries; and 4) identify the

most cost-effective way to achieve this risk

reduction objective.7

The agency articulates something quite similar

for safety standards: 1) demonstrate that the proposed standard will substantially reduce a significant risk of material harm; 2) confirm that the

required compliance actions are technologically

feasible for the affected industries (in the sense

that the protective measures required already

exist, can be brought into existence with available technology, or can be created with technology that can reasonably be developed); 3) show

that the new costs arising from these actions are

economically feasible for the affected industries

to bear (in the sense that industry can absorb or

7 See, for example, Department of Labor, Occupational Safety and Health Administration, “Occupational Exposure to Bloodborne Pathogens—Final Rule,” Federal Register 56: 64034, Dec. 6, 1991.

pass on the costs without major dislocation or

threat of instability); and 4) demonstrate that the

standard is cost-effective (in the sense that it

employs the least expensive protective measures

capable of reducing or eliminating significant

risk).8

As the rulemaking process is (and has for

some time been) organized to work, OSHA

defines a target exposure level (e.g., a PEL) that

provides an appropriate degree of protection, on

health/safety grounds and with reference to “significant risk” considerations.9 Such determinations are generally based on findings and risk

modeling methods from the various scientific

fields that comprise the discipline of Quantitative

Risk Assessment (QRA).10 The agency’s conclusions on this matter are normally discussed in

detail in the “preamble” sections published (in

the Federal Register) along with the proposed

and final versions of permanent standards.

Assessments of technological and economic

feasibility are conducted in light of this target

exposure level (or range of levels, if a single

point has not been specified). These determinations, along with the additional analyses needed

to satisfy the executive order-mandated regulatory impact analysis and Regulatory Flexibility

Act requirements, are documented in “Regulatory Impact and Regulatory Flexibility Analysis”

8 See, for example, Department of Labor, Occupational Safety and Health Administration, “Electric Power Generation, Transmission,

and Distribution; Electrical Protective Equipment—Final Rule,” Federal Register 59:4427, Jan. 31, 1994. 9 As discussed earlier in Box 2-1, in setting permanent standards, OSHA is obligated to make a threshold determination (through substantial evidence) that a “significant risk” of harm exists and that new/revised compliance requirements can eliminate or reduce the risk. The U.S.

Supreme Court’s decision in Industrial Union Dept. v. American Petroleum Institute established the “significant risk” test in 1980. (For a further discussion, see Strader, 1993, pp. 365–373.) The Court did not, though, specify the “bright line” dividing significant from non-significant levels of risk. In rulemakings since the early 1980s, and based on an interpretation of Justice Steven’s opinion in the case, OSHA has

placed this “line” at a marginal risk of about one in a thousand over a full working lifetime. Some critics argue, however, that this level is not

sufficiently protective, noting that other agencies such as EPA have been regulating to risk levels as stringent as one in a million. (See, for

example, AFL-CIO, Department of Occupational Safety and Health, “The Workplace: America's Forgotten Environment—A Comparison of

Protections Under U.S. Workplace Safety and Environmental Laws,” Washington, DC, April 1993.) In fact, the Court only gave rough guidance in this matter, by recognizing that one in a thousand risk was “certainly significant” and that one in a billion was certainly not. Some

critics view OSHA’s choice of the least stringent level in this range as evidence of a policy objective to set comparatively relaxed standards

that limit the economic burdens imposed on employers. 10 For background on the issues and methods involved, see U.S. Congress, Office of Technology Assessment, Researching Health Risks,

OTA-BBS-570 (Washington, DC: U.S. Government Printing Office, November 1993), pp. 45–66, or National Research Council, Science

and Judgment in Risk Assessment (Washington, DC: National Academy of Science Press, 1994). A useful example of the current application

(and complexities) of these methods to OSHA rulemakings is the recent health standard for cadmium, 57 Federal Register 42108-42210,

Sept. 14, 1992.
22 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

reports, published in preliminary and final forms

(also summarized in the Federal Register) to

accompany proposed and final rules.

The agency’s regulatory impact/regulatory

flexibility assessments are multifaceted analyses,

which, since the early 1980s, have normally

focused on the following matters:

■ Identification and characterization of affected

industries. Here, the incidence of the hazard is

mapped across industry, identifying those sectors

and occupational groups with existing conditions

and material uses that create exposures relevant

to the intended rulemaking. The resulting profiles are typically quite detailed—usually distinguishing industries at a 3- or 4-digit Standard

Industrial Classification (SIC) level and according to relevant occupational subgroups.11

The key results include estimates of the number of affected establishments and workers in

each industry, existing exposure levels, and the

frequency of health/safety effects. Background

information on the basic business and process

features of each affected industry is also normally assembled at this time. (OSHA’s typical

findings on these topics are illustrated in box 2-2,

drawing on material from the 1992 health standard for cadmium.)

■ Technological feasibility of compliance. On

this matter, the principal task is demonstrating,

for each affected industry, a general presumption

that the compliance steps required by the various

provisions of the intended standard involve control measures that are reasonably available, that

is, they are either in the marketplace currently or

can be developed/implemented consistent with

11 The information used for these tasks varies by the standard and the industries involved. However, recurring sources include data from

OSHA’s Integrated Management Information System (IMIS—which chiefly contains the field data collected during the agency’s inspection

and enforcement efforts) and from the record of prior rulemakings (some of which may have involved large-scale survey efforts collecting

data on exposures, in place production processes, and control measures already used); data from other federal agencies, including the

National Institute of Occupational Safety and Health (particularly from the Institute’s Health Hazard Evaluations), Environmental Protection

Agency (such as information from the Toxic Release Inventory), and the Department of Commerce (particularly from the various periodic

surveys of manufacturers); original research conducted for the rulemaking, such as site visits to establishments in affected industries or largescale industry surveys; and information submitted to the rulemaking docket, such as self-reports provided by individual establishments, surveys prepared by industry representatives, or research findings provided by various experts. OSHA normally assembles a substantial record

of data on these matters. But often the best available information is incomplete, and working estimates must be prepared from what is available.

the court’s guidelines on “feasibility” (as outlined in box 2-1).

Normally this exercise involves detailed consideration of the existing production processes

and work practices, along with the controls and

programs for hazard prevention already in place.

Depending on the specifics of the compliance

provision examined, this analysis may focus on

controls already successfully applied by establishments in the industry, or look more widely—

to approaches in other industries, to experiences

in industries/establishments outside the United

States, or to emerging technologies not yet commercially available. (A further description of the

agency’s approach to this task is in box 2-3.)

By the time of the final rule, the discussion of

technological feasibility is usually tightly

focused on the specific provisions being promulgated. Earlier in the rulemaking, however, the

examination of varying policy options is often

wider (say, to examine the means and feasibility

of achieving exposure ceilings at differing levels

of stringency).

■ Anticipated benefits from regulation. As part

of the rationale for a rulemaking and to comply

with executive order-mandated “regulatory

impact analysis” requirements, OSHA normally

provides quantified estimates of the principal

health and safety benefits (on an annualized

basis) that it expects to result from compliance

(e.g., avoided cancer deaths, avoided cases of

chronic illnesses, avoided permanent disabilities,

avoided injuries involving lost work days).

Typically, these estimates are built up from

detailed, industry-by-industry analyses, using the
Chapter 2 OSHA’s Current Analytic Procedures 23

risk assessment findings and estimates of pre- reluctant to specify a particular monetary value

and post-promulgation compliance levels. For for a statistical life saved or injury avoided. On

the most part, the estimates are presented in occasion, however, the physical units are inforphysical terms (i.e., deaths, diseases, injuries really monetized in the course of discussing the

avoided), as the agency has historically been findings.

Industry sector a,b Existing circumstances Additional controls for compliance

Nickel-cadmium batteries

6 plants. 1,500 potentially

exposed workers, Average

exposure level is 73 μ g/m3

in “high” group, 14 μ g/m3

in “low” group,

SECALs

Zinc/cadmium refining

5 plants. 1,350 potentially

exposed workers. Average

exposure level is 91 μ g/m3

in “high” group, 6 μ g/m3 

in “low” group.

SECAL

Cadmium pigments

4 plants. 100 potentially

exposed workers. Average

exposure level is

130 μ g/m3 in “high“

group, 23 μ g/m3 “low”

group,

SECALs

Dry color formulators

700 plants. 7,000

potentially exposed

workers. Average

exposure level is 10 μ g/m3

Local exhaust ventilation (LEV),

automation, enclosure, housekeeping

practices in place—but used to varying

extent. Respirators standard practice in

high-exposure areas. All processes

pose challenges for compliance through

engineering and work practice controls

alone—but difficulties are greatest in

plate making and plate preparation,

Hoods and baghouses exist in many

process operations. Challenges for

compliance through engineering and

work practice controls alone in some

areas: cadmium refining, casting,

melting, oxide production, and sintering.

Some controls in place, but use of

ventilation systems generally limited.

Large extent of batch production limits

dedicated production lines. All

processes pose challenges for

compliance through engineering and

work practice controls alone-but

difficulties are greatest in calcining,

crushing, milling, and blending.

LEV, general ventilation, good

housekeeping practices (vacuuming,

damp mopping) are already in place.

But batch nature of operations yields

intermittent, variable exposure levels

and frequent cleaning is required.

Further exposure reduction through

expanded use of current practices.

Additional steps include modifications in

materials procedures, upgrade of

hygiene practices, improved

information and training. But continued

respirator use is likely to be necessary in

some high exposure process areas.

Added/improved LEV, mechanization of

material transfer, added enclosures,

centralized vacuum cleaning, clean air

islands, revised work practices,

improved housekeeping (vacuuming,

damp mopping, added cleanup prior to

maintenance). But continued respirator

use is likely to be necessary in some

high exposure process areas.

Extensive expansion of ventilation

systems, enclosure of process

equipment, added central vacuuming

equipment, adjusted work practices,

improved housekeeping. Continued

respirator use is likely to be necessary in

some high-exposure process areas.

Added/improved general ventilation

and LEV, dust collection systems,

central vacuuming. But continued/

expanded respirator use—particularly

during cleaning and maintenance, and

other intermittent activities such as

weighing out pigments.

(continued)
24 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Industry sectora,b Existing circumstancesc Additional controls for compliance

Cadmium stabilizers

5 plants. 200 potentially 

exposed workers. Average 

exposure level is

116 μg/m3 in “high” 

group, 3 μg/m3 in “low” 

group.

SECAL

Some LEV/baghouse control exists in 

dry process operations; little control 

present in wet process operations. 

Challenges for compliance through 

engineering and work practice controls 

alone in some areas: cadmium oxide 

charging, crushing, drying, and 

blending. 

Added/improved LEV, installation of 

centralized vacuum systems, 

containment and enclosure 

improvements, automated material 

handling systems. Continued respirator 

use is likely to be necessary in some 

high-exposure process areas.

Lead smelting/refining

4 plants. 400 potentially 

exposed workers. Average 

exposure level is 43 μg/m3

in “high” group, 3 μg/m3 

in “low” group.

SECAL

Industry is already employing 

engineering controls to the extent 

feasible—because of the OSHA lead 

standard. Respirators used 

substantially in high-exposure areas. But 

particular challenges for compliance 

based on engineering and work practice 

controls alone in sinter, blast furnace, 

baghouse, and yard areas.

Some incremental improvements in 

ventilation and enclosure equipment. 

Marginal expansion of employee 

protection programs (hygiene, medical 

removal, etc.) Many of the requirements 

of the revised cadmium standard 

overlap existing requirements. Existing 

respirator use is expected to continue.

Cadmium plating

400 plants. 1,200 

potentially exposed 

workers. Average 

exposure level is 35 μg/m3 

in “high” group, 2 μg/m3 

in “low” group.

SECAL

Electroplaters make up 90 percent of 

this industry—adequate ventilation 

systems (LEV, hoods over material 

handling areas) are generally in place, 

and exposure levels for most are already 

below the PEL. Mechanical platers make 

up the rest of industry—ventilation 

systems are fairly widely in place, but 

exposure levels are well above the PEL, 

and apparent challenges are posed for 

full compliance based on engineering 

and work practice controls alone.

For mechanical platers: improved 

ventilation equipment, partial 

enclosures, better work practices and 

housekeeping procedures, increased 

respirator use during some operations.

Electric utilities

4,000 plants. 37,000 

potentially exposed 

workers. Average 

exposure level is 1 μg/m3.

Employee exposures generally arise 

during intermittent inspection or 

maintenance activities associated with 

electrostatic precipitators, fly ash 

conveyance, and boiler outages—and 

not during ordinary operations. 

Respirators are already standard 

practice.

Some additional engineering and work 

practice controls may be useful, e.g., 

wash downs of fly ash prior to boiler 

maintenance, fans or ventilation systems 

during maintenance operations. But 

respirators are likely to remain the 

mainstay of protection, due to 

intermittent and unpredictable nature of 

exposures.

Iron & steel

120 plants. 40,000 

potentially exposed 

workers. Average 

exposure level is 2 μg/m3.

“Best adequately demonstrated” 

technological systems for continuous 

emission reductions are generally in 

place in the industry—largely because 

of extensive EPA regulations. Respirator 

use is common in high-exposure areas. 

Job/process classifications with greatest 

risk for above PEL exposures include 

leaded steelmaking, work on air pollution 

control systems, maintenance activities. 

Modest expansion of respirator use.

(continued)

BOX 2-2: An Illustration of OSHA’s Industry Baseline and Control Option Characterizations—

1992 Cadmium Standard (Cont’d.)
Chapter 2 OSHA’s Current Analytic Procedures | 25

Industry sectora,b Existing circumstancesc Additional controls for compliance

Other general industry

50,000 plants. 365,570 

potentially exposed 

workers. Average 

exposure levels for the 10 

occupational classes 

range from 0.4 to 

6.0 μg/m3.

Extent of existing controls varies widely 

across the many industries in this 

analysis group.

Generally applicable steps are improved 

general dilution ventilation, LEV for close 

capture of dusts and fumes, process 

enclosure (e.g., sealed panels, 

equipment covers, enclosed conveyors, 

glove boxes), separation/isolation of 

processes, improved work practices (to 

reduce generation of airborne cadmium 

and risks of exposures to high levels), 

additional cleanup prior to maintenance 

activities. In some cases it may be 

possible to shift to other materials or 

processes. Respirators are likely to be 

necessary in some situations.

Construction

10,000 plants. 70,000 

potentially exposed 

workers. Average 

exposure level is 

0.5 μg/m3.

Construction activities are often 

intermittent and of short duration with 

unpredictable exposures. Activities may 

not involve fixed workplace and 

frequently occur in circumstances where 

engineering controls are not feasible. 

Respirators are widely used.

In some applications, shifts to products 

without cadmium. Feasible engineering 

and work practice controls include: 

portable hoods, exhaust ventilation, 

fans, enclosures, tools and work 

practices capable of minimizing 

exposures. Some further increase in the 

already substantial level of respirator 

use.

aThe rulemaking identified nearly 100 industries as subject to compliance requirements under the new standard. However, for purposes of the analysis, these were grouped into the 11 sectors identified below in the table.

bThe exposure levels listed are all TWA8.

cThe descriptions above are summaries of the more detailed industry characterizations on which OSHA based its control and impact analyses.

dThe final rule specified a uniform TWA8 PEL of 5 μg/m3. However, in six industries, where feasibility limits were judged to exist,

one or more so-called separate engineering control air limits (SECALs) were established (addressing specific production areas), allowing employers to achieve the PEL through application of a wider number of control measures (e.g., personal respirators along with

engineering and work practice controls).

SOURCE: Summarized by OTA from U.S. Dept. of Labor/OSHA, Office of Regulatory Analysis, Final Cadmium Rule, 57 Federal Register

42224-42330, Sept. 14, 1992.

BOX 2-2: An Illustration of OSHA’s Industry Baseline and Control Option Characterizations—

1992 Cadmium Standard (Cont’d.)
26 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 2-3: OSHA’s Approach To Demonstrating Technological Feasibility

OSHA’s consideration of applicable technological measures for hazard control arises chiefly in the

course of providing adequate evidence of the general feasibility of an intended standard’s compliance

requirements across the industries identified as affected. In light of the procedural guidelines from the

courts, such an analysis is normally conducted industry by industry (i.e., at a 3- or 4-digit SIC level of

detail).

In the case of health standards, most of the effort is usually directed toward showing that suitable control measures are available (or can reasonably be developed within the compliance timeframe of the

standard) so that an intended PEL can generally be achieved across an affected industry. Other provisions (medical surveillance, emergency planning, workforce training, and the like) may involve a technological component, but achievability is usually not a matter of debate.

As OSHA’s rulemaking process is now organized to work, “significant risk” considerations define the

target level for hazard reduction. Feasibility analysis proceeds in a “serial” way based on this determination, that is, engineering controls or substitution options are considered first (in keeping with industrial

health’s “hierarchy of controls” and OSHA’s policy priority). If added control measures or substitutes that

reduce exposures to (or below) the target level can be identified, then the analysis moves on to the economic feasibility test. Should some residual significant risk remain beyond the full application of such

controls, however, work practice and administrative measures are considered. As a last resort, respirators and other personal protection equipment are factored in, if necessary.

Safety standards vary widely in the technological content of their provisions. (For example, the 1992

Process Safety Management standard primarily involved safety audit and other procedural requirements.

But the 1987 Grain Handling Facilities standard involved various process equipment improvements and a

major expansion in some housekeeping activities.) Nonetheless, the major issues and demonstration

tasks are essentially the same as those for health standards.

The analyses for both kinds of standards have a number of common features:

■ The consideration of potential means of control normally begins from a fairly detailed description of

the industry baseline—the mix of production processes and equipment running in a typical plant,

the work practices used, level of hazards experienced, and control measures already in place.

Also, where scale effects and/or functional differences among the various subgroups of establishments in an industry are relevant considerations, the industry is often disaggregated into a number

of stylized “model” plants for separate treatment.

■ The primary focus of the analysis is demonstrating feasibility. As a general rule, the agency does

not seek to identify and evaluate all possible control measures available to address the hazard or to

define the frontier of maximally feasible hazard control.

■ The agency’s analyses tend to emphasize those measures whose engineering applicability, effectiveness of control, and cost characteristics can be well documented in the rulemaking record, that

is, already commercially evident technologies with a clear track record are the preferred basis for

feasibility determinations (because they can less easily be contested later in court). Where such

obviously feasible measures cannot be identified or where a standard is deliberately technology

forcing, OSHA must look more widely to analogous measures in other industries or to measures yet

to be developed. Such measures can provide an adequate basis for a standard, as long as the

agency can make a substantial evidence case that the necessary technology can be sufficiently

refined and distributed within the standard’s deadlines (see discussion in box 2-1, presented earlier).

(continued)
Chapter 2 OSHA’s Current Analytic Procedures | 27

OSHA’s analyses also often identify one or

more kinds of direct expenses that are anticipated

to be avoided as a consequence of the hazardreducing effects of the standard (e.g., reduced

insurance premiums or lower costs for companyprovided medical treatments). While these are

tangible benefits of the regulation, OSHA’s normal practice with such effects is to categorize

them as avoided costs and net them against the

estimated compliance spending. (Boxes 2-4 and

2-5, based on material from the 1992 Process

Safety Management standard, illustrate the

agency’s benefits estimation process.)

■ Costs of compliance. Often a considerable proportion of the overall analytical effort is devoted

to identifying where compliance entails new

costs for establishments in affected industries

and preparing quantified estimates of this incremental spending. The agency now usually

reports these figures on a pre-tax and annualized

basis, spanning a time horizon dictated by the

compliance terms of the standard and the depreciable life of the equipment and control actions

involved.12

12 The components of incremental compliance costs can include capital investments in new production equipment or controls, one time

“sunk costs” required to establish required programs, and periodically recurring expenses such as for operations and maintenance. OSHA’s

normal procedure is to amortize capital investments and one-time costs over some appropriate recovery period (dictated by the specifics of

the equipment and actions involved) and then add these as annualized figures to the estimated recurring costs. Where avoided costs (e.g.,

reduced insurance premiums because of reduced risk) are identified, they are quantified and netted out.

■ Finally, the analysis process does not generally seek to forecast expected behaviors. The establishments that make up an affected industry are not, for the most, examined from the standpoint of

the control options perceived to be available or the nature of the incentives at play that influence

the selection of one kind of compliance strategy over another.

To comply, some (perhaps, even many) of an affected industry’s establishments will adopt the control

measures on which the agency’s feasibility determination is based. (These measures are, after all, identified by OSHA because of their workability and usually are, by the ranking procedures employed, low-cost

options among the set of feasible measures identified.) However, other establishments may well decide

that it is more advantageous from a business standpoint to accelerate the turnover of plant equipment in

order to adopt a new generation of production technologies (deriving, perhaps, productivity and product

quality improvements at the same time as providing enhanced health/safety risk protections). Alternatively, some establishments may also choose to pursue opportunities for innovation with the prospect of

yielding new technologies with a superior combination of production and hazard control characteristics.

However, a reasonable estimate of the mix of behaviors among these various responses that one could

expect to see post-promulgation is not something that can readily be discerned from OSHA’s present

analysis process—and actually involves a more complex and extensive analytical effort than what OSHA

routinely performs in the context of feasibility demonstration.

SOURCE: Office of Technology Assessment, based on discussions with OSHA staff and review of various rulemaking docket

materials.

BOX 2-3: OSHA’s Approach To Demonstrating Technological Feasibility (Cont’d.)
28 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Typically, this is a detailed computational

exercise, conducted provision by provision, and

industry by industry.13 In most cases, the calculations assume industry-wide adoption of the

predominant technologies and control steps identified in the “feasible technology” analysis

described earlier.14 The calculations are also

usually prepared to reflect the extent of pre-existing compliance with the new provisions prevailing across the industry—although, this aspect of

the estimation process is often hampered by the

absence of adequate field data pertaining to the

existing baseline. (As an illustration, box 2-6

summarizes the compliance cost calculations for

one of the industries regulated under OSHA’s

1992 cadmium standard.)

Like the examination of feasible technologies,

the version of compliance cost estimates published with the final rule is generally tightly

focused on the provisions actually promulgated.

But at earlier stages in the rulemaking, figures on

13 To put this task in perspective, OSHA’s 1992 health standard for cadmium (57 Federal Register 42104) had 13 major compliance provisions and spanned almost 100 affected industries, with about 65,000 establishments and 525,000 potentially exposed workers. The 1991

standard for process safety management (57 Federal Register 6356) included 14 major provisions and affected 127 industries, with around

153,000 plants and around 3 million affected workers. 14 See box 2-3. As reviewed there, OSHA generally assumes (for any given industry) the adoption of the low-cost, feasible measures relevant to the control needs at hand. The emphasis of attention is usually placed on those measures whose applicability, effectiveness of control, and cost characteristics can be well documented in the rulemaking record (i.e., already commercially evident technologies with a clear

track record).

several competing policy alternatives are often

presented for review and comment.

■ Economic impacts. The main objective of this

portion of the rulemaking analysis is to demonstrate a general presumption of the financial feasibility of the compliance-related spending for

each affected industry. Generally, this task is

addressed by considering the ability of the typical establishment in the industry to either pass

through or absorb these added costs. Analytically, the estimates of annualized compliance

costs are compared with current figures on the

industry’s annual sales and annual profitability;

these findings are supplemented by a discussion

of the fundamental competitive and other economic forces driving the industry. (Box 2-7 provides a more detailed discussion of the agency’s

approach to these determinations. Box 2-8 illustrates the analytic results, drawing on the 1992

cadmium standard.)
Chapter 2 OSHA’s Current Analytic Procedures | 29

BOX 2-4: An Illustration of the Scope of OSHA’s Consideration of Expected Compliance 

Benefits—1992 Process Safety Management Standard

Source identified Treatment in rulemaking analysis

Incident reduction

Fatalities avoided/major incidents Quantified (annual estimates, years 1–5 and 6–10)

Injuries & illnesses avoided/major incidents Quantified (annual estimates, years 1–5 and 6–10)

Injuries & illnesses avoided/less severe incidents Mentioned, but not quantified

Health risk reductions

Lowered risks for long-term health effects—reduced 

chronic exposures to airborne toxics from improved 

process designs

Mentioned, but not quantified

Cost savings

Improved employee productivity Quantified (annual estimates, years 1–5 and 6–10)

Reduced property damage Quantified (annual estimates, years 1–5 and 6–10)

Reduced lost production Quantified (annual estimates, years 1–5 and 6–10)

Reduced employee turnover Quantified (annual estimates, years 1–5 and 6–10)

Lower insurance premiums Mentioned, but not quantified

Reduced administration Mentioned, but not quantified

Other accident prevention costs Mentioned, but not quantified

Other economic benefits

Improved use of space, labor, equipment Mentioned, but not quantified

Efficiency gains from integration of process design, 

construction, operation, and safety 

Mentioned, but not quantified

Reduced loss of raw materials; reduced inadvertent 

generation of waste

Mentioned, but not quantified

Reduced minor process/equipment breakdowns Mentioned, but not quantified

Improved product quality Mentioned, but not quantified

NOTE: OSHA addressed a 10-year post-promulgation time horizon in preparing the regulatory impact calculations for this rulemaking. Separate calculations were prepared (across all measures) for years 1–5 and years 6–10, because some of the major compliance provisions

involved a gradual phase-in and the expectations for regulation-induced reductions in fatalities and injuries/illnesses were accordingly different.

SOURCE: Summarized by Office of Technology Assessment from the preamble to the final rule, 57 Federal Register 6400, 6402, Feb. 24,

1992.
30 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 2-5: An Illustration of OSHA’s Estimation of Cost Savings from Compliance—

1992 Process Safety Management Standard

OSHA’s examination of the economics of compliance by the affected industries with the PSM standard quantified

four sources of associated cost savings: improvements in productivity, reductions in worker turnover, reductions in

lost production, and reductions in property damage. Examples of the estimates for several selected industries (for

the standard as a whole, 127 industries were so identified) appear here, followed by some descriptive comment on

how the calculations were performed.

 SIC industry

Productivity 

improvements

Reduced 

worker 

turnover

Reduced 

lost 

production 

Reduced 

property 

damage

Total 

cost savings

Total 

compliance 

cost1

$ thousands, annually

Years 

1– 5

1321 Natural gas liquids 1,285 344 162 674 2,465 2,900

20 Food and kindred products 12,009 3,219 7,736 25,513 48,477 35,800

22 Textile mill products 2,160 579 125 1,926 4,790 3,200

2431 Millwork 1,105 296 133 3,562 5,097 5,900

25 Furniture and fixtures 9,273 2,486 653 8,472 20,884 44,100

Years 

6–10

1321 Natural gas liquids 2,570 689 323 1,348 4,930 1,100

20 Food and kindred products 24,018 6,438 15,472 51,026 96,955 13,500

22 Textile mill products 4,320 1,158 250 3,851 9,579 1,300

2431 Millwork 2,211 593 266 7,124 10,193 2,400

25 Furniture and fixtures 18,547 4,972 1,305 16,945 41,768 18,100

1Reported here to provide a basis for gauging the magnitude of the estimated cost savings.

Productivity Improvements

Substantial opportunities for improvements in operational efficiencies were expected to result as a by-product of

the standard’s required conduct of process hazard analyses. Some of these improvements related to streamlined

equipment and technology (reducing waste and inefficiency), some to enhanced standardization of operating procedures (improving worker effort per unit of production).

The rulemaking docket contained a number of instances where efficiency gains could be associated quantitatively with the implementation of process safety management procedures. OSHA concluded that 0.5 percent annual

productivity gains in years 1–5 and 1.0 percent annually in years 6–10 were roughly in line with this information. This

gain, in effect, reduced the number of production labor hours required for the same level of output, which yielded an

economic benefit in the form of reduced payroll costs.

(continued)
Chapter 2 OSHA’s Current Analytic Procedures | 31

Reduced Worker Turnover

The level of workplace health and safety risks is generally regarded as an important contributing factor in the rate

of employee turnover that is experienced. Thus the reduction of risk resulting from a program such as PSM was

expected to slow the pace of such turnover. And such an improvement would reduce costs, because expenses are

incurred in hiring and training new employees, and some decrease or interruption in production may be experienced while new workers are screened, hired, and trained to achieve the same efficiency as the previous personnel.

For the PSM rulemaking, OSHA approximated these costs according to the wages of the departed workers.

Industry by industry, the gross payroll cost of production workers (assumed to average 60 percent of all employees)

was multiplied by the overall turnover rate for manufacturing (26.4 percent) and by the fraction of turnover

accounted for by the existence of hazards (33 percent) to establish a worker turnover baseline. The 40 and

80 percent effectiveness rates (Years 1-5 and Years 6-10, respectively) expected for the standard were then

applied to estimate the cost savings.

Reduced Lost Production

Major/catastrophic incidents will often physically damage an affected plant’s final products. Raw materials used

to fashion a final product may be damaged or lost, and have to be purchased anew when production ultimately

resumes. Furthermore, interruptions in production can give rise to unintended physical waste, some of which may

be hazardous and require costly special treatment. Also, beyond the industrial sector that is immediately affected,

sudden production bottlenecks can impose higher prices (OSHA noted that a major explosion at a Phillips Corporation plant in 1989 reduced the supply of high density polyethylene by 18 percent, which, in turn, drove a sharp price

increase for this product.)

OSHA examined lost value added as an indicator of the economic value forgone in the aftermath of an incident—

a measure it recognized as useful but conservative, because labor and overhead expenses were recognized, but

raw materials (which may also be lost) were not. Estimates of the lost value added for the average incident (two

weeks’ shutdown time, on average, at minimum, based on an examination of historical incidents by an OSHA consultant) were developed industry by industry, using data from the Annual Survey of Manufactures, other government

censuses, and private sources. A baseline level (i.e., pre-compliance) for value added lost annually was assembled

by combining these figures with industry-level estimates of the number of incidents. Compliance with the standard

was assumed to lower the number of incidents (in line with the aforementioned 40 and 80 percent effectiveness levels), from which a corresponding savings in value added was estimated.

OSHA went on to note that the PSM rule was also expected to prevent a large number of minor breakdowns.

OSHA placed the annual economic savings of this reduction in the “tens of million” dollars. It did not, however,

include this component in the savings figures reported.

Reduced Property Damage

Here, the main concern was that major/catastrophic incidents could yield significant damage to facilities and the

in-place equipment.

Using analyses of historical incidents by outside consultants, OSHA estimated that average value of property

damage from major/catastrophic incidents was $904,000. (OSHA characterized this as a lower bound, however,

because history clearly indicated that damage ranging up to 10’s of million dollars or more could arise.) This value

for the average incident was then used to prepare savings estimates, industry by industry, in line with the baseline

rate of incidents and the expected effectiveness of the PSM standard.

SOURCE: Summarized by Office of Technology Assessment from U.S. Department of Labor, Occupational Safety and Health Administration,

Office of Regulatory Analysis, “Final Regulatory Impact and Regulatory Flexibility Analysis of the Final Standard for Process Safety Management of Highly Hazardous Chemicals,” Washington, DC, 1992, pp. IV.17-IV.29.

BOX 2-5: An Illustration of OSHA’s Estimation of Cost Savings from Compliance—

1992 Process Safety Management Standard (Cont’d.)
32 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 2-6: An Illustration of OSHA’s Estimation of an Affected Industry’s Compliance Costs—

1992 Cadmium Standard

Compliance cost estimates are often numerically extensive, but usually straightforward in concept. The figures

and text here illustrate the details of these calculations for one of the industries identified as affected in the 1992

revision of the cadmium standard. (Across the entire standard, almost 100 industries were identified as affected.

Similar calculations were prepared for these other industries.)

Nickel-Cadmium Batteries

The industry consists of 6 plants and has 1,500 potentially exposed workers. The average exposure for the

“high” group of workers is 73 μg/m3; that of the “low” group, 14 μg/m3. The final rule established a uniform TWA8

PEL of 5 μg/m3 across all affected industries. However, in the case of this sector, the usual requirement for PEL

compliance principally through engineering and work practice controls was modified by a pair of “separate

engineering control air limits” (SECALs)—which called for engineering/work practice controls to achieve

50 μg/m3 in plate making and plate preparation, 15 μg/m3 for all other processes, with respirators sanctioned

to cover the excess of exposure between the SECAL and PEL (5 μg/m3) levels.

■ The cost of engineering controls

Controls per plant by size 

of plant

Cost per control

(thousand $) Industry costs (thousand $)

Type of 

control Small Med Large

Total 

industrycontrols1 Capital

Ann. 

power

 & 

main.

Ann. 

labor

Total 

capital 

Ann. 

capital 

charge2

Ann. 

power 

& 

main.

Ann. 

labor

Total 

annual 

industry cost 

(thou.$)

Local 

exhaust 

ventilation

1 5 8 29 80 8 0 2,320 377 232 0 609

Clean air 

islands

1 5 10 31 18 2 0 558 91 62 0 153

Central 

vacuum 

systems

1 1 2 7 15 1 7 105 17 7 49 73

Enclosure 0 3 5 17 9 0 0 153 25 0 0 25

TOTAL 84 3,136 511 301 49 861

1The industry consisted of 1 small plant; 4 medium plants; 1 large plant. 2Assumes a 10% interest rate (the OMB “standardized” figure) and an

amortization period of 10 years (in line with the depreciable life of the equipment involved, as defined by the tax code and standard accounting treatment).

The assumptions about the adoption of engineering controls reflected OSHA’s “feasible technology” determination (described earlier), along with what available knowledge (or the most reasonable interpretation thereof) indicated about specific plant circumstances (i.e., existing exposure levels and controls, and process requirements).

The unit cost figures used were the most credible values that OSHA could identify—whether from its own data, the

initial estimates prepared by its contractor, figures submitted to the docket (e.g., those prepared by industry representatives or industry firms), or a reasonable synthesis of all of these. There was some controversy, however, about

the assumptions used for these calculations, because several industry representatives submitted detailed analyses

with findings on the options available, the likely effectiveness of controls, and costs that differed in significant ways

from OSHA’s preliminary estimates.

(continued)
Chapter 2 OSHA’s Current Analytic Procedures | 33

BOX 2-6: An Illustration of OSHA’s Estimation of an Affected Industry’s Compliance Costs—

1992 Cadmium Standard (Cont’d.)

■ The cost of other provisions

Provision

Annualized 

cost 

(thousand $) Basis for calculations

Respirator 

use

180.0 An estimated 80 percent of production and maintenance employees would need 

to wear respirators full time after the implementation of feasible engineering 

controls. Accounting for existing use (which was substantial), the revised 

standard would require respirators for an additional 600 workers (i.e., 40 percent 

of the 1,500 potentially exposed employees). OSHA estimated the unit cost for 

appropriate respiratory protection at about $300 per worker. Thus the added 

annual cost is $300 times 600.

Exposure 

monitoring

16.2 The revised standard requires semi-annual exposure monitoring of “each shift for 

each job classification in each work area,” but also allows representative samples 

to be taken for workers with similar exposures. Such a sampling regime is already 

prepared at the typical plant, but only annually. About 180 jobs would need to be 

monitored: an average of 10 job categories per plant, times 6 plants, times 3 

shifts. OSHA estimated the unit costs at $40 per lab analysis and $1,500 per plant 

for the services of an industrial hygienist (or other qualified professional). Thus the 

incremental annual cost is $40 times 180 plus $1,500 times 6. 

Medical 

surveillance 

(including 

operation of 

the ”medical 

removal” 

program)

387.5 The revised standard’s medical surveillance requirements involve a complex 

combination of various employee categories, action triggers, and types of exams. 

The base requirements call for annual biological monitoring, including tests for 

cadmium in urine, cadmium in blood, and β2-microglobulin in urine, and for a full 

medical examination every two years. More frequent biological monitoring and 

medical exams are required if tests indicate elevated levels. Although medical 

surveillance was already widely done in the industry, the final rule would require 

most establishments to expand their programs. OSHA estimated that 300 

additional medical exams would be needed (for those not currently covered plus 

those needing to be examined more frequently), at about $250 each (professional 

services plus employee wages). Tests for β2-microglobulin were generally not 

currently provided; about 30 percent of the exposed workforce may be subject to 

more frequent biological monitoring, with 20 percent receiving semi-annual 

monitoring and 10 percent, quarterly monitoring. This entails an estimated 2,000 

β2-microglobulin tests annually (at $85 each including collection), 750 additional 

tests for cadmium in the urine (at $65 each, including collection), and 750 tests for 

cadmium in the blood (also $65 each). Based on these figures, the total estimated 

cost for incremental medical exams and biological monitoring is $342,500 

annually. Regarding medical removal, OSHA estimated that on average about 

3 percent of the workforce (i.e., 45 employees) may need to be removed every 

5 years, at a cost of $5,000 per employee—or $45,000 on average annually for 

the industry as a whole.

(continued)
34 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Hygiene 

facilities and 

protection

495.0 Most plants in this industry already comply with the work clothing and regulated 

areas requirements. But some modifications or expansions of lunch and shower 

rooms would be needed. The wages of the additional employees required to 

shower and change (about 300 workers) would also have to be taken into 

account. OSHA concluded that $200,000 in capital costs and $5,000 in annual 

operating costs would be a reasonable working average for the physical plant 

improvements. At about $900 per employee for showering on work time, i.e., 

15 minutes per day, 240 days a year, at an hourly rate of $15, the cost works out 

to $1.2 million in capital spending (or $195,000 appropriately annualized) plus 

$300,000 in annual expenses.

Recordkeeping and 

information

7.5 OSHA estimated an annual cost of $5 per employee—to cover the equipment 

needed and staff time. Thus, the incremental annual cost is $5 times 1,500.

Subtotal 1,086.2 Summing all the “other provisions” components above.

NOTE: OSHA drew the various figures and characterizations for these calculations from its own analyses and those of its contractor’s initial

assessment. The assumptions, however, were generally in line with the testimony and evidence in the rulemaking record and, for the most

part, were not controversial.

■ Total annual cost of compliance

thousand $

Engineering 

controls

861.0 From above

Other 

provisions

1,086.2 From above

TOTAL 1,947.2

SOURCE: Summarized by Office of Technology Assessment from the preamble materials to the final rule prepared by OSHA’s Office of Regulatory Analysis, 57 Federal Register 42235-42239, Sept. 14, 1992.

BOX 2-6: An Illustration of OSHA’s Estimation of an Affected Industry’s Compliance Costs—

1992 Cadmium Standard (Cont’d.)
Chapter 2 OSHA’s Current Analytic Procedures | 35

BOX 2-7: Economic Feasibility—OSHA’s Approach To Determining It

Concept

New regulations ordinarily shift resources toward compliance goods and services and away from production activities. As part of its burden to demonstrate feasibility, OSHA must show that the costs and

other economic consequences of such a redistribution will not threaten the existence or competitive

structure of the affected industries.

Establishments may pass the costs of a new regulation through to their customers as increased product prices or absorb them in the form of reduced profits, or some combination of these two. In markets

where customers have choices (say, for a substitute product or for the equivalent product of a competitor

that may not face the same regulatory requirements), a noticeable increase in price can usually to be

expected to result in a loss of product sales. Alternatively, lower profits may reduce the value of the

industry’s capital, firms operating at the margin may choose to exit the industry, and the desirability of

new investment in the industry may be diminished.

Typically, the most important determinant of a regulated industry’s pricing flexibility is demand elasticity, that is, the extent of change in demand for a product changes with increases (or decreases) in its

price. Where demand is relatively inelastic, producers can increase prices without losing sales. But

where demand is elastic, the opposite circumstance is true. Numerous factors influence demand elasticity, including the availability of a substitute product, the importance of the product in customers’ budgets,

the degree of customers’ technological or contractual dependence on the product, and the relative

importance of price and nonprice attributes of the product.

Analysis and Data

OSHA’s examination concerns the financial and economic impacts of compliance, with particular

attention to changes in prices and profits. But consideration is also given to the effects on industry output,

competition, employment, and international trade.

A first look at feasibility is gleaned by examining the maximum potential impacts on prices and profits.

This is quantified by calculating both the ratio of estimated compliance costs to the industry’s current revenues, and the ratio of compliance costs to the industry’s current (pre-tax) profits. The former ratio

reflects the situation that would arise if demand is price inelastic and compliance costs are fully passed

on to customers as increased product prices. The latter ratio reflects the situation where demand is price

elastic and compliance costs are absorbed by the industry as reduced profits. In most cases, these

ratios reflect extreme circumstances, with the likely reality lying somewhere between. But they provide a

useful perspective on how large the price and profit effects might be if the worst impacts prevail.

The figures used for these comparisons are straightforward. The compliance cost estimates are the

annualized figures discussed earlier. Data on the industry’s annual revenue and profits (usually for the

most recent year available) are drawn from a variety of sources, including from the U.S. Department of

Commerce’s Annual Census of Manufactures and the financial press (Dun & Bradstreet, DIALOGUE,

Dow Jones, etc.). Financial data on individual companies, which may have been submitted to the rulemaking docket, are used also, but OSHA indicates its normal practice is to first verify such figures

through comparison with published sources.

OSHA then combines these ratios with other, and often more qualitative, information on the dynamics

of the industry—demand growth rates, apparent demand elasticity, competitive considerations (both

domestic and international), etc.—to draw its overall conclusions about feasibility. Obviously, where the

ratios alone suggest that compliance costs are a small share of both revenues and profits, there is little

evidence of a threat to the industry’s existence.

SOURCE: Summarized by Office of Technology Assessment from OSHA discussion materials; see also the preamble to the Cadmium Final Rule, 57 Federal Register 42265, 42326, Sept. 14, 1992.
36 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

BOX 2-8: An Illustration of OSHA’s Economic Feasibility Determinations—

1992 Cadmium Standard

Industry sectora

Estimated average annual cost, 

per affected 

establishment Expected economic impacts and feasibility rationaleb

Nickel-cadmium 

batteries

6 plants. 1,500 

potentially exposed 

workers. Average 

exposure level is 

73 μg/m3 in “high” group, 

14 μg/m3 in “low” group.

SECALsc

$324,500 The final version of the standard may impose palpable costs for this 

industry (including reduced profitability). But these effects should 

not be substantial, compared with the other forces already 

operating in the market. Demand for Ni-cad batteries is strong and 

growing, and a 1 percent increase in revenues would completely 

offset the compliance costs, without reduction in profits. But the 

prospects for recouping compliance costs by raising prices are 

limited—as foreign competition is strong and there appears already 

to be enough production capacity outside the United States to 

satisfy current global demand. The standard is not expected to 

yield overall changes in production or result in plant closures. But 

the consequences for new investment or job creation is unclear.

Zinc/cadmium refining

5 plants. 1,350 

potentially exposed 

workers. Average 

exposure level is 

91 μg/m3 in “high” group, 

6 μg/m3 in “low” group.

SECAL

$344,600 By 1989, the U.S. had gone from near self-sufficiency to a net 

import reliance of 62 percent—as the result of environmental 

regulation, labor costs, and other factors. Nonetheless, the effects 

of the revised cadmium standard would be completely 

overshadowed by the basic forces in this industry. Cadmium is a 

necessary by-product of zinc refining, and decisions about its 

production are not made independent of conditions in the zinc 

market—indeed, cadmium revenues are usually considered a 

credit (or negative cost) by zinc refiners. The incremental costs of 

the standard are only a small fraction of present revenues and 

return on equity. Cadmium refining operations are currently 

conducted with extensive use of respirators and would have to 

continue to do so with or without the revised standard. The 

incremental compliance costs would be a very minor factor in 

investment decisions and are unlikely to greatly influence the 

survival of the industry in the United States.

Cadmium pigments

4 plants. 100 potentially 

exposed workers. 

Average exposure level 

is 130 μg/m3 in “high” 

group.

23 μg/m3 “low” group.

SECALs

$118,400 Cadmium pigments are more expensive than other types of 

pigments. But overall demand is relatively inelastic, because of 

superior coloring features and chemical properties. (However, U.S. 

and foreign environmental regulations currently provide incentives 

to substitute away from cadmium pigments. And where their unique 

properties are not essential, the use of cadmium pigments has 

been declining.) Imported pigments reportedly sell for 15 to 

30 percent less than comparable domestic products, but U.S. 

producers have maintained their share (70 to 80 percent) of the 

market. Compliance with the new standard would increase 

production costs for U.S. producers, but the associated changes in 

prices and profits would be relatively small. These changes would 

be overshadowed by more fundamental industry forces—price 

changes in raw materials and labor, tighter environmental 

restrictions at home and abroad, changes in the basic pattern of 

demand.

(continued)
Chapter 2 OSHA’s Current Analytic Procedures | 37

Industry sectora

Estimated average annual cost, 

per affected 

establishment Expected economic impacts and feasibility rationaleb

Dry color formulators

700 plants. 7,000 

potentially exposed 

workers. Average 

exposure level is 

10 μg/m3.

$10,500 Cadmium pigments are essential in many applications, and thus 

demand is inelastic. Only a slight increase in prices is needed to 

recoup compliance costs, and these should not result in plant 

closures, generally threaten the viability of the formulator industry, 

or produce adverse impacts in other industries. However, 

compliance costs can be expected to vary among establishments, 

depending on the type of technology used and the extent of 

existing exposure controls. And competition may limit the ability of 

some producers to raise prices to fully offset these new costs.

Cadmium stabilizers

5 plants. 200 potentially 

exposed workers. 

Average exposure level 

is 116 μg/m3 in “high” 

group, 3 μg/m3 in “low” 

group.

SECAL

$187,100 Demand is inelastic. The dominant, almost exclusive market for 

cadmium stabilizers is for the production of flexible PVC 

compounds—and the stabilizers themselves account for only a 

small share of the cost of the compound. No good substitutes 

currently exist for cadmium stabilizers, imports currently make up 

an insignificant fraction of domestic supply, and domestic suppliers 

have generally similar cost profiles. Manufacturers should be able 

to raise prices sufficiently to recover compliance costs without 

major reductions in profits or sales volumes. The new standard 

poses no apparent threats to the industry’s viability or competitive 

stability, should not result in plant closures, and would have only 

negligible influence on new investment decisions.

Lead smelting/refining

4 plants. 400 potentially 

exposed workers. 

Average exposure level 

is 43 μg/m3 in “high” 

group, 3 μg/m3 in “low” 

group.

SECAL

$70,700 Many of the requirements of the revised standard overlap existing 

requirements (e.g., for control of lead and arsenic exposures) and 

do not create new burdens. The compliance costs imposed 

represent only a modest increase in exposure control costs and a 

marginal expansion of employee protection programs already 

instituted. Lead smelters and refiners should be able to absorb 

these new compliance costs—about equivalent to one new 

employee—into operating expenses.

Cadmium plating

400 plants. 1,200 

potentially exposed 

workers. Average 

exposure level is 

35 μg/m3 in “high” group, 

2 μg/m3 in “low” group.

SECAL

$2,000 Over 90 percent of establishments in this industry are 

electroplaters, generally with low exposures that will require 

minimal or no additional expense to comply with the new standard. 

The costs of compliance are primarily concentrated in mechanical 

plating—the other 10 percent of establishments. But demand for 

this more expensive and specialized service is relatively inelastic 

and should not be significantly affected. A price increase of about 

10 percent would be needed to offset the estimated compliance 

costs for these establishments. Nevertheless, the cost of plating 

components generally is only a small fraction of the cost of final 

products (such as automobiles), and an increase in the cost of 

plating would translate into only a small increase in final product 

cost. Most of the affected establishments are small businesses that 

may need technical assistance in complying.

(continued)

BOX 2-8: An Illustration of OSHA’s Economic Feasibility Determinations—

1992 Cadmium Standard (Cont’d.)
38 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

To satisfy Regulatory Flexibility Act requirements, a similar analysis—one that distinguishes

small establishments from the larger organizational entities in the industry—is performed.

And, in keeping with the executive order mandate, there is generally some discussion of the

Industry sectora

Estimated average annual cost, 

per affected 

establishment Expected economic impacts and feasibility rationaleb

Electric utilities

4,000 plants. 37,000 

potentially exposed 

workers. Average 

exposure level is 

1 μg/m3.

$600 Implementation of the new standard would not involve new 

programs or large changes in procedures. The employees affected 

are already covered by the existing standards for lead and arsenic. 

The expected compliance costs are vanishingly small in 

comparison with the industry’s revenues and operating income. 

There will be no significant impact on electricity demand, prices, 

production, or installed generation capacity.

Iron & steel

120 plants. 40,000 

potentially exposed 

workers. Average 

exposure level is 

2 μg/m3.

$13,700 The value of blast furnace and basic steel industry shipments in 

1989 exceeded $64 billion; new capital expenditures exceeded 

over $3 billion. The prospects for continuing future profitability are 

strong. The industry is subject to environmental and other 

regulations that impose costs far greater than the costs of meeting 

the new cadmium standard. The new standard represents a 

minimal increase in total regulatory burden and involves provisions 

consistent with requirements imposed by existing regulations. The 

standard will not threaten the industry’s existence, reduce its 

competitiveness, or cause its contraction.

Other general industry

50,000 plants. 365,570 

potentially exposed 

workers. Average 

exposure levels for the 

10 occupational classes 

range from 0.4 to 

6.0 μg/m3.

$3,200 The new standard affects only a small part of the workforce in these 

industries and a limited number of activities. The standard’s 

probable effect will be mixed—a combination of increased prices 

and reduced profits in the affected industries. But the estimated 

compliance costs are quite small by comparison to overall 

revenues and profits and are unlikely to affect the viability of 

existing establishments. The overall effect—on prices, output, 

etc.—would be largely undetectable.

Construction

10,000 plants. 70,000 

potentially exposed 

workers. Average 

exposure level is 

0.5 μg/m3.

$1,100 Compliance costs would be incurred on a per-project basis, 

varying according to the size of the project, but would generally not 

require large capital expenditures. These cost increases, estimated 

to be only about 2 percent of the industry’s current revenues, would 

in most cases be passed through to customers.

SOURCE: Summarized by Office of Technology Assessment from U.S. Dept. of Labor/OSHA, Office of Regulatory Analysis, Final Cadmium

Rule, 57 Federal Register 42224-42330, Sept. 14, 1992.

NOTES: aThe rulemaking identified nearly 100 industries as subject to compliance requirements under the new standard. However, for purposes of this analysis these were grouped into the 11 sectors identified in the table. bNot shown here, but an essential consideration in the

findings, are the ratios of estimated annual compliance costs to, first, annual revenues and, then, annual (before tax) profits that OSHA calculated for each industry. cThe final rule specified a uniform TWA8 PEL of 5 μg/m3. However, in 6 industries, where feasibility limits were judged

to exist, so-called separate engineering control air limits (SECALs) were established, allowing employers to achieve the PEL through application of a wider number of control measures (e.g., personal respirators along with engineering and work practice controls).

BOX 2-8: An Illustration of OSHA’s Economic Feasibility Determinations—

1992 Cadmium Standard (Cont’d.)
Chapter 2 OSHA’s Current Analytic Procedures | 39

potential magnitude of the economic impacts

expected to ripple through to the larger economy—for example, on the general level of

prices, levels of employment in affected sectors,

effects on trade and competitiveness, and so

on.15

■ Assessment of “nonregulatory alternatives.”

Finally, the agency’s regulatory impact documents now routinely include a section discussing

why the market itself or other non-governmental

interventions have not provided, and are unlikely

to provide, the level of workplace health and

safety protections envisaged by the standard.

This discussion responds to a stipulation of the

executive order-mandated regulatory analysis

process and a practical need to address the “Why

regulate?” question.

IMPLEMENTATION

Principal responsibility for the conduct of the

agency’s control technology and regulatory analyses is vested in OSHA’s Office of Regulatory

Analysis (ORA), located in the agency’s Directorate of Policy (see figure 2-1). Nonetheless,

other agency offices also contribute; these

include the Health Directorate and Safety Directorate, which often provide some analytic support to ORA on matters related to workplace

15 Much of this kind of analysis has been performed by the agency on a more-or-less qualitative (though, nonetheless, informed) basis.

However, the economic impact analysis for the 1978 cotton dust standard—which was anticipated, at least in the early stages of the rulemaking, to entail comparatively large compliance costs—did rely on simulations from a large-scale input/output model of the U.S. economy.

exposures and control technologies; the Department of Labor’s Office of Regulatory Economics

and Economic Policy Analysis, which in the past

has reviewed OSHA’s regulatory analysis documents and provided technical advice on economic regulatory issues; and the Department of

Labor’s Office of the Solicitor, which extensively reviews OSHA’s regulatory analyses, visà-vis compatibility with statutory requirements.

OSHA continues to rely substantially on outside contractors (usually, expert consultants or

consulting firms with expertise variously in

fields related to engineering, economics, and

industrial health) to conduct the necessary regulatory analysis research.16 OSHA has also sought

to draw, where possible and relevant, on the

expertise and research of other federal agencies,

particularly that of the National Institute of

Occupational Safety and Health (NIOSH).17

The physical production of the analyses of

control technology and regulatory impacts varies

by the specifics of rulemaking and the affected

industries. Nonetheless, most draw on a wide

variety of information sources18 and are produced and completed through a process that

evolves over the course of a rulemaking and is

open to substantial external review and comment.

16 Nonetheless, final responsibility for the content of a feasibility/regulatory impact analysis resides with OSHA. The preliminary version

of the analysis report may well closely reflect the contractor’s findings and conclusions. But the final version is usually substantially revised

by OSHA—to reflect the opinions and data received from the hearings and comment period, any new analytical studies completed, and attendant changes in findings and conclusions. 17 NIOSH is the principal federal agency with responsibility to conduct and disseminate research on occupational safety and health.

NIOSH is formally a part of the Department of Health and Human Services. The staff is predominated by professionals with expertise in the

areas of epidemiology, industrial hygiene, other health sciences, and engineering. NIOSH often makes recommendations to OSHA (in the

form of “Criteria Documents” or other formal statements) concerning safety and health standards. 18 As is perhaps apparent from the few illustrative examples provided in the chapter, the typical feasibility/impact assessment relies on

and is documented through an extensive array of calculations, data points, and expert analytical judgments—documentation that in most

cases defies brief summary. Generally, the kinds of information sources that play key roles include materials on health, safety, control engineering, and various economic matters published by the government, industry, and independent experts; field data from visits to selected

establishments in affected industries and industry survey data (where available in the literature or from previous studies, or prepared specifically for the rulemaking by OSHA or interested parties); and expert judgments from various knowledgeable analysts.
40 Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

1

I Department of Labor I 1 J

I

I 1

Directorate of Policy

1

I

SOURCE: Office of Technology Assessment, 1995.

Normally, a rulemaking is begun when OSHA

issues an Advance Notice of Proposed Rulemaking (ANPR), inviting the submission of data,

opinions, and other information (including that

related to potential control options, compliance

costs, and other regulatory impacts) from stakeholders and knowledgeable commentators.19 In

parallel with or soon thereafter, OSHA usually

commissions one or more outside contractors

(typically, consulting firms with expertise in the

areas of economics, engineering, and industrial

health or specialized knowledge about the

affected industries) to prepare initial studies covering the full spectrum of the feasibility and regulatory impact issues just outlined. The agency

then prepares a proposed standard and a preliminary regulatory impact/regulatory flexibility

assessment reflecting these studies and the comments and other material available in the rulemaking record. Prior to publication, the agency is

required to submit the proposed standard and the

supporting regulatory impact analysis to OMB

for review.

Subsequently, public hearings are held (usually announced in a Notice of Proposed Rulemaking, NOPR), wherein stakeholders, those

with relevant expert knowledge, and other interested parties can comment and/or submit additional information related to the proposed

content of the standard and the preliminary feasibility and regulatory impact findings. OSHA

then uses these comments and other materials,

along with any further studies/analyses that it

may deem necessary, to resolve the final content

19 While an ANPR is the normative first step, OSHA does not always issue one. For example, the rulemaking leading to the 1992 cadmium health standard formally began in 1989, under a court-ordered deadline to quickly issue a proposed standard and move expeditiously to

a final rule. Nonetheless, an ANPR is not the only way that preliminary opinions and information pertaining to a potential rulemaking can be

gathered. In the cadmium case, the need for a standard had been a matter of consideration and debate by OSHA and the industrial health community since the early 1970s and much documented material already existed at the time the rulemaking commenced (see 57 Federal Register

42106, Sept. 14, 1992).
Chapter 2 OSHA’s Current Analytic Procedures | 41

of the permanent standard and complete its

regulatory impact/regulatory flexibility findings.

The flow of these outside comments, recommendations, and new information (which can

include new industry survey data or substantial

technical analyses) is frequently quite heavy20

20 Substantial comments and submissions from stakeholders, experts, and other interested parties in the many hundreds, if not the thousands (yielding many testimony transcript and other written pages) are typical for the agency’s rulemakings. Some of these may be elaborate

and detailed arguments—reflecting significant independent data collection and analysis—which take issue with OSHA’s findings and determinations.

and can lead to significant refinements and revisions in the OSHA’s preliminary findings and

policy decisions. Prior to publication, OSHA

must again submit the final rule and the supporting regulatory impact analysis to OMB for

review.
| 43

3

Discussion of

Evaluation

Findings

s outlined earlier, the research for this

project pursued several avenues of

inquiry: review of the methods and procedures OSHA normally employs in

examining control technologies and regulatory

impacts; conduct of a number of retrospective

case studies on existing standards (comparing

actual post-promulgation outcomes with the rulemaking estimates); examination of OSHA’s current resources and organization for its control

technology and regulatory analysis work; and

comparisons of OSHA’s analytic practices with

those of other comparable regulatory organizations (in both the United States and abroad). This

chapter discusses the major findings in each of

these areas.

APPRAISAL OF METHODS AND PROCESS

OSHA’s rulemakings vary widely with respect to

the specific questions addressed, analytic methods employed, and information bases drawn

upon—and, in most respects, the “real action”

lies in the details. Nonetheless, the agency’s typical examinations of control options and regulatory impacts contain similar elements. The

observations in this section are intended to comment on the broad features of the data-gathering

and analytic processes the agency routinely

employs.

The findings reflect OTA’s review of more

than a dozen past OSHA rulemakings,1

 discussions with agency staff involved in the preparation and use of the analytic material, review of

the scholarly literature on OSHA processes, and

comments from other knowledgeable observers.

■ OSHA’s examination of control measures

and the impacts of new compliance requirements arises chiefly in preparing the procedurally mandated feasibility determinations

and regulatory analyses. Within the confines

1 Over the course of this study, OTA and its contractors examined the preamble and docket materials (focusing chiefly on the feasibility

and regulatory impact analysis aspects) of more than a dozen OSHA health and safety standards promulgated since the mid-1970s: Vinyl

Chloride (1974), Cotton Dust (1978), Occupational Lead (1978), Ethylene Oxide (1984), Formaldehyde (1987), Grain Handling Facilities

(1987), Presence Sensing Device Initiation of Mechanical Power Presses (1988), Powered Platforms for Building Maintenance (1989), Air

Contaminants (1989), Hazardous Energy Sources [“lockout/tagout”] (1989), Bloodborne Pathogens (1991), Process Safety Management

(1992), Cadmium (1992), and Confined Spaces (1993).

A
44 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

of these tasks, the broad elements of what the

agency prepares are generally coherent and

credible. However, there is a “narrowness”

in the questions addressed and findings provided that needs to be recognized.

The agency’s various analytical findings and

estimates are often vigorously disputed in the

course of rulemakings by stakeholders and

expert advisers on all sides of issues. Nonetheless, the broad evidence of the more than a dozen

past rulemakings OTA has examined for this

study indicates that OSHA routinely brings analytic processes to bear that are considerably

detailed, in line with the established practices of

the technical fields involved (whether related to

risk factors, engineering considerations, economic impacts, or other relevant dimensions of

assessment), and generally credible for the

intended purposes.

Control measures and other compliance steps

are normally examined in some depth with

respect to their operational characteristics and

adoption considerations. Estimates of costs and

other economic impacts are developed in a serious way—in extensive detail for compliance

expenditures, usually with substantial attention

to potential effects on productivity and company

viability, although more qualitatively with regard

to impacts on the structure of affected industries

and effects externalized to the larger economy.

Estimates of the major benefits associated with

hazard reduction also are normally prepared in

some detail. Furthermore, the “full cycle” of

events implemented for an analysis—commissioned studies, other expert contributions, OSHA

staff analyses, findings published in preliminary

and final versions, the often extensive comments

and technical submissions during the public

hearings and comment period (from stakeholders, their representatives, and other experts), and

review by external bodies such as OMB—generally provides for an extended and deliberate

examination of the major issues affecting a rulemaking.

Nonetheless, there is some narrowness (that

is, incompleteness) in the content of the agency’s

typical analyses that needs to be recognized in

judging the findings that result. This circumstance variously reflects the agency’s decisionmaking framework, the practical realities of the

rulemaking context, and the specific features of

the information needed to promulgate standards.

Perhaps most important, the agency’s current

estimation process is, by and large, not targeted

on providing a “most likely” forecast of the mix

of control actions, costs, and other economic

impacts to arise as the various establishments

making up an affected industry act to comply

with a hazard reduction requirement established

by the agency. Rather, the analytical effort is

chiefly aimed (in keeping with the agency’s procedural requirements) at providing a defensible

demonstration that the compliance provisions

specified by the preliminary or final version of a

standard are generally achievable across an

affected industry. In this way, the majority of

attention is usually placed on those control measures deemed essential to the feasibility demonstration at hand, rather than to the full scope of

control options that may be available to establishments to comply (which could include significant shifts in production processes or the

adoption of advantageous innovations, in addition to the conventional control measures

OSHA’s analyses tend to emphasize). And,

unless binding technological or economic limits

are encountered in removing what the agency

determines to be an existing “significant risk,”

the analytic process generally does not take on

the task of identifying the most stringent extent

of hazard control that is achievable.
Chapter 3 Discussion of Evaluation Findings | 45

In addition, the agency’s analyses are usually

more comprehensive in charting the cost side of

the regulatory equation than the anticipated benefits.2

 Estimates of the reductions of adverse

health effects or accidents as a result of affected

industry compliance are usually prepared in

some detail.3 But explicit quantification tends to

be limited to the most significant endpoints,

rather than to the more complete set of health and

safety improvements expected.4

 Benefits in the

form of directly avoided costs (e.g., reduced

insurance premiums—because the risk levels

experienced are lower) also are often quantified

and included. But here again, the agency has not

generally sought to be exhaustive.5

■ Typically, the considerations most influential

in shaping feasibility and impact findings

require substantial factual information about

the characteristics of affected industries.

Data collection to meet these needs is generally among the most challenging aspects of

the agency’s analytic effort for a rulemaking.

2 Nevertheless, OSHA’s “imbalance” in this regard is not unlike the circumstances for other agencies with regulatory analysis requirements. Directly incurred costs are usually reasonably identifiable, amenable to estimation, and readily valued in a common economic metric

(i.e., dollars). On the benefit side, the chief sources can usually be reasonably identified. However, credible quantitative estimation is often

quite difficult—because, for example, of limits in the scientific foundation for relating causes to effects or because benefits with the character

of an amenity are involved. And translation into a common economic metric poses a quagmire of conceptual issues of proper valuation. 3 On occasion, OSHA does report a monetization of its benefit estimates. For the most part, however, the agency has sought to avoid the

controversy of identifying a specific value for a statistical life saved or injury avoided. As a result, the benefit projections are generally presented in their native physical terms. 4 OSHA often identifies a substantial list of acute and chronic health effects and hazard factors it expects will be removed or reduced by a

new regulation. But quantification is usually limited to the most predominant effects (e.g., excess deaths from cancer over a working lifetime)

and to situations in which there is a reasonable scientific and evidentiary basis for preparing estimates. 5 For example, for health standards, OSHA has generally not quantified the economic benefits expected to accrue to industry from

improved worker health. Furthermore, the agency has not yet sought for any standard to estimate the benefits from reduced workers’ compensation premiums or reduced payouts (for companies that self-insure) for medical expenses and forgone earnings or reduced risk premiums

paid to workers to accept hazardous workplace conditions (to the extent workers currently receive such premiums).

OSHA usually draws on a sizable array of

information from diverse sources to prepare the

necessary feasibility and impact analyses for

rulemakings—although the specifics vary widely

according to the nature of the standard and the

industries involved.

Published materials from government and private sources are often used—materials such as

Department of Commerce data characterizing the

establishments and employees in particular

industries, the industry financial indicators available from various on-line sources (e.g., Dun &

Bradstreet), and various scientific/engineering

studies (e.g., on production process issues or

control options) in the scholarly or industrial

trade literature. Technical studies prepared by

other agencies, when relevant, are often drawn

upon, for example, the Health Hazard Evaluations (HHEs)6 prepared by NIOSH or industryspecific analyses from agencies such as EPA prepared in support of their own regulatory activities. Databases routinely maintained by OSHA

often provide relevant information for rulemakings, notably, from the Integrated Management

Information System (IMIS), Fatalities/Catastro6 NIOSH conducts industrial hygiene monitoring studies at specific industrial sites (when requested by the Secretary of Health and

Human Services, by an employer, or an authorized worker representative) through a technical assistance program called Health Hazard Evaluations (HHEs). Normally, an HHE assembles detailed information on exposures, existing control measures by job classification, and related

matters. For a further discussion, see J. Froines, D. Wegman, E. Eisen, “Hazard Surveillance in Occupational Disease,” American Journal of

Public Health 79 (Supplement): 26-31, Dec. 1989.
46 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

phes database (FATCAT), and, on occasion, the

record of prior rulemakings.7

Data, analyses, and other materials submitted

by stakeholders and other interested parties during the hearings and public comment period also

often represent a sizable source of information.

The agency is obligated to consider all serious

submissions of this nature, and often a large fraction of a rulemaking’s preamble section is taken

up in acknowledging and responding to this

material. While the potential for self-serving representation is clearly a consideration, it is apparent that OSHA has often been able to use this

information to advantage.

Nonetheless, the considerations typically most

central in making feasibility and impact determinations involve fairly detailed information about

the features of affected industries. The most

notable factors include: the existing distribution

of exposures (or injuries or fatalities) among the

workforce; the production processes and work

practices in place, and the protective controls

already being used; the likely efficacy of potential new compliance measures in reducing principal risk factors; and the various unit costs to be

incurred in taking particular compliance actions.

These factual and technical matters usually cannot be adequately resolved by consulting “off the

7 The Integrated Management Information System is OSHA’s principal database characterizing workers’ exposures to hazardous substances or conditions (see also Froines, Wegman, and Eisen, December 1989). IMIS maintains the monitoring results from both programmed

and complaint inspections performed by the agency’s field compliance officers—although, to date, around three-quarters of IMIS data relates

to only a dozen or so chemicals. OSHA’s Fatalities/Catastrophes database is a part of IMIS and records data from the mandated reports on

workplace incidents involving fatalities or hospitalized injuries. A discussion of the major surveys of industrial establishments OSHA has

conducted to support some past rulemakings follows in footnote 9 below.

shelf” or otherwise readily available information.

Rather some form of primary data collection and

original analysis of engineering, economic, and

risk factors must be mounted for most rulemakings.8

OSHA and its research contractors have

approached these data needs in various ways.

Site visits (to willing establishments) in affected

industries have been a typical feature of the

empirical foundation for most rulemakings.

Also, in recent years, the agency has conducted a

number of large-scale surveys of affected industries (using statistical sampling methods and telephone interviews or written questionnaires or

some combination).9 (And, as noted earlier, in

some cases, the information generated from such

surveys has served to substitute in part for extensive original data collection in later rulemakings.10) On occasion, the agency has relied on a

working panel of experts, with participants contributing information and judgments on affected

industries about which they are particularly

knowledgeable.11

OSHA appears to have used all of these

approaches to advantage in the past. However,

each has strengths and weaknesses. Site visits

have provided substantial useful data on such

matters as existing plant processes and control

8 Some commentators knowledgeable about OSHA’s rulemaking tasks observe that much of the functional content of a standard can be

shaped without exhaustive evidence about the features of affected industries—and that even extensive research efforts will be unlikely to

remove all pertinent uncertainties in key parameters such as those just outlined above. Nonetheless, it is essential to recognize (as a subsequent finding emphasizes) that the agency’s feasibility and impact analyses are performed at least as much to satisfy the evidentiary guidelines specified by the courts and other government actors and to provide a record capable of withstanding future challenges, as to support the

agency’s internal policy design effort. However, information on the nature of impacts is also obviously essential to the agency’s engagement

of stakeholders in rulemakings. 9 For example, to support the 1989 Air Contaminant rulemaking, OSHA collected data (regarding chemicals and processes used, existing

engineering controls and work practices) from 6,500 establishments (sampled at a 4-digit SIC level of detail, but statistically representative

only at 2- and 3-digit levels). In 1990, a survey with similar characteristics was conducted to support the Personal Protective Equipment

Rulemaking; it involved a sample of 5,500 establishments. Survey data from around 3,000 establishments was collected across nearly 20

industries for the 1991 Bloodborne Pathogens standard. 10 In the 1992 Process Safety Management standard, for example, OSHA relied extensively on the information available in the previously

completed (and aforementioned) Air Contaminants and Personal Protective Equipment surveys. 11 In the 1993 Confined Spaces rulemaking, for example, OSHA relied heavily on inputs from a 57-member panel of experts, each with

specific expertise on one or several of over 100 industries determined to be affected.
Chapter 3 Discussion of Evaluation Findings | 47

measures, possible avenues for enhanced hazard

control, insights on the feasibility issues likely to

arise, and the chief considerations affecting compliance expenditures. But given the constraints of

available budget, available work calendar, and

the external review and approval specified by the

Paperwork Reduction Act,12 usually only a small

fraction of the establishments potentially subject

to an intended standard can be visited in the

course of any given rulemaking. This fact and the

potential unrepresentativeness of those facilities

willing to be surveyed make it difficult to construe the data derived through this means as an

adequately representative sample.

Large-scale surveys can address the statistical

representativeness issue but usually cannot collect the detailed data on relevant plant features

that site visits provide. In addition, such surveys

are expensive and time-consuming to implement,

and at present face the need for external review

and sign-off by government personnel outside

OSHA. These surveys have also been subject to

the criticism that they provide essentially unverified data. Expert panels, when competent and

balanced, can be an efficient mechanism to consider complex issues (particularly when standards are expected to require a technologyforcing component).13 Nevertheless, the often

judgmental character of the findings of such

advisory bodies (in contrast to more conven12 Under the OSH Act’s existing requirements, where more than nine industrial sites are to be visited for data collection purposes in a

rulemaking, OSHA must receive OMB’s advance approval of the data collection and sampling plan. OSHA has successfully completed these

steps with its past large-scale industry surveys, but OSHA staff indicate that the problem can be more troublesome when smaller-scale industry data collection efforts are involved. 13 For example, OSHA has the option to appoint special advisory committees to assist with standard setting—which it has used in the

past. In addition, the statutorily established National Advisory Committee on Occupational Safety and Health (NACOSH) could be used as a

forum to discuss compliance options. However, OSHA has not made use of either of these information gathering tools for some time.

tional “hard” numerical analyses) can be a source

of later vulnerability, should a challenge be

mounted.

As a practical matter, OSHA must balance the

needs of a particular rulemaking with the

strengths and weaknesses of the methods available and the operating constraints of tight budget,

constrained work calendar, and external oversight. In most rulemakings, therefore, OSHA has

had to piece together as much relevant published

information as is accessible, supplemented with

original empirical work to the extent allowed by

the prevailing constraints. As is evident in existing rulemaking records, the data and other information assembled by the agency are usually

quite extensive. Nonetheless, as a matter of practice, an exhaustive assembly of all relevant evidence, such as would satisfy normal scientific

research canons, is a difficult, if not impossible,

objective in most cases.14

■ A closely related point is that OSHA’s feasibility and regulatory impact findings are

often criticized as lacking empirical depth.

This matter is not easily dismissed, given the

procedural importance of the findings and

the threat of subsequent judicial remand, but

it is an analytical challenge with few simple

solutions.

14 With even the largest of the industry field surveys the agency has mounted in the past, the sampling of establishments has been too limited to yield statistically reliable projections at an industry-by-industry level, that is, at a 4-digit SIC level of disaggregation.
48 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Criticisms about “data limitations” in OSHA’s

findings and estimates have come from several

quarters. The courts have periodically reminded

the agency of the importance of an adequate

record and due treatment of relevant distinctions

among industries in developing feasibility determinations. The U.S. Court of Appeals (11th Circuit) did this most recently in a 1994 remand of a

portion of the 1992 Cadmium standard, which

arose from a perceived deficiency in the field

data supporting a feasibility determination for

one of the affected industries.15 A few years earlier in 1992, the same court rejected portions of

the rationale of OSHA’s 1989 Air Contaminants

rulemaking, affirming (among other considerations) the need for substantial industrial detail in

technological and economic feasibility determinations.16

In addition, stakeholders comment with some

frequency that the agency makes decisions without a detailed understanding of the relevant existing features of establishments (exposures, inplace controls, practical constraints on control

measures, etc.).17 Whether or not such assertions

are self-serving or fair in recognizing the practical constraints the agency routinely faces in collecting data, they represent a vulnerability for

OSHA in completing and ultimately sustaining a

rulemaking.

15 In 1994, in Color Pigments Manufacturers Association, Inc. v. OSHA (CA 11, No. 92-3057), the appeals court remanded the Cadmium

standard (promulgated in 1992) for a specific inquiry into the feasibility of the standard for the dry color formulator industry (one of the

nearly 100 industries affected). Here, despite the considerable analytical detail of the rulemaking as a whole, the agency’s feasibility finding

was deemed insufficient, because the companies and operations used to make the determination were not adequately representative of the dry

color formulators industry as a whole. 16 In 1992, in AFL-CIO v. OSHA (965 F.2d 962), the appeals court (again the 11th Circuit), reviewing the Air Contaminants standard

(which had been promulgated in 1989, and sought to revise en masse the existing PELs for some 425 hazardous chemicals and substances in

line with the latest American Conference of Governmental Industrial Hygienists recommendations), declared OSHA’s technological and economic feasibility findings insufficient, on the ground that the agency had not demonstrated a general presumption of feasibility for each

affected industry. OSHA’s final analysis had presented feasibility findings classified at a 2-digit SIC level of detail (i.e., in considerably

aggregated “major groups”). The court concluded that such a demonstration of feasibility was wholly inappropriate when disparate industries

were involved whose production technologies or compliance costs were unrepresented by gross sectoral averages. What was needed instead

was industry-specific information, i.e., at a 3-digit or 4-digit SIC level, as relevant differences among industries dictated. 17 See, for example, L.P. Halprin, Keller & Heckman, Washington, DC, “Re: Proposed OSHA Survey on Ergonomic Hazards and Prevention Programs” (and supporting appendix material), unpublished letter to Secretary Lynn Martin (U.S. Department of Labor) and Acting

Assistant Secretary Dorothy Strunk (Occupational Safety and Health Administration), Washington, DC, Dec. 28, 1992.

The problem would be substantially diminished if OSHA could routinely mount primary

data collection (of a site visit nature) from a statistically representative sample of establishments

in most all affected industries. However, such an

effort would entail a budget, a work calendar,

and access to affected industries that are generally beyond the agency’s practical reach. Agency

policymakers and research managers are left to

resolve the tensions between analytic needs and

incumbent constraints as best they can, case by

case.

■ Explicit benefit-cost comparisons are not at

present a formal basis for OSHA’s rulemaking actions. Nonetheless, the agency normally assembles substantial information on

the benefits and costs of an intended standard—and, as a practical matter, stakeholders’ competing perceptions about the benefitcost balance likely to result are often a major

focus of debate in the course of a rulemaking.

One of the enduring critiques of OSHA’s rulemaking procedures (typically coming most vigorously from economists, industry representatives,

and others concerned about the effects of government interventions in the workings of the economy) has been that standards are set without due

consideration of whether the benefits to be
Chapter 3 Discussion of Evaluation Findings | 49

achieved are justified by the new costs incurred.18

Indeed, in being subjected to this criticism, OSHA

is not unlike most other regulatory agencies with

responsibilities in the health, safety, and environmental risk arenas.

Nonetheless, as discussed earlier, OSHA routinely assembles substantial information related

to both costs and benefits for its rulemakings,

and does so largely irrespective of the anticipated

magnitude of the cumulative impact on the

national economy.19 Some of this effort reflects

compliance with the executive order mandate for

conduct of “regulatory analyses.” But it also

reflects the practical reality that perceptions (if

not competing figures) pertaining to the balance

of benefits and costs to result from an intended

regulation are often a focus for vigorous policy

debate among principal stakeholders and in the

agency’s interaction with oversight bodies such

as OMB.

It is true that the agency does not now set and

justify its standards (of either a health or a safety

nature) directly in accordance with the benefitcost marginal analyses and net comparisons normally recommended by those advocating the

“benefit-cost approach” to public policymaking.

This circumstance is not, however, an unconsidered oversight. The roles of benefit and cost estimates in the agency’s policy decisions have been

the subject of substantial past attention by both

Congress and the courts in defining the legal

basis for the agency’s regulatory actions.

In rulemakings on health standards, the

agency has understood its procedural mandate to

involve removing “significant risk” subject to

technological and economic feasibility. In addi18 A useful primer on the benefit-cost concept and associated analytical methods is E. Stokey and R. Zeckhauser, A Primer on Policy

Analysis, New York: W.W. Norton, 1978, pp. 134–158. For a more specific discussion of the approach with regard to OSHA see M. Connerton and M. McCarthy, Cost-Benefit Analysis and Regulation: Expressway to Reform or Blind Alley? (Washington, DC: National Policy

Exchange, October 1982); P.W. Kolp and W.K. Viscusi, “Uncertainty in Risk Analysis: A Retrospective Assessment of the OSHA Cotton

Dust Standard,” Advances in Applied Micro-Economics, 4: 105–130, 1986; and C.R. Sunstein, “Valuing Life,” The New Republic, Feb. 15,

1993, especially pp. 38–40. 19 Since the late 1970s, executive orders have generally mandated preparation of regulatory impact analyses where a cumulative national

impact of $100 million or more annually is expected. Some bills in the present “regulatory reform” debate have proposed substantially tightening this threshold—to as low as a $25 million annual effect. However, OSHA has for some time been preparing the regulatory impact analyses as a routine element of the record, regardless of the expected level of economic impact. 

tion, the courts, interpreting Congress’s legislative intention in the 1970 OSH Act, have directly

precluded benefit-cost comparisons as a basis for

setting health standards—particularly in the U.S.

Supreme Court’s 1980 decision in American

Textile Manufacturers v. Donovan (see

chapter 2, box 2-1). For setting safety standards,

the agency has concluded (at least, to date) that

much the same significant risk and feasibility

analysis procedures provide an adequate procedural basis.

Nevertheless, there is room in the foreseeable

future for these features to change in important

ways—the result of actions by either the courts

or Congress—and with potentially substantial

implications for the agency’s analytical procedures.

First, the role of benefit-cost considerations in

safety-related rulemakings has become less clear

in the wake of a 1991 U.S. Court of Appeals (DC

Circuit) opinion, related to challenges to

OSHA’s 1989 Hazardous Energy Sources (“lock

out/tag out”) rulemaking, where questions about

the breadth of OSHA’s discretion in safety rulemakings were raised and the agency was asked to

consider more explicitly incorporating benefitcost balancing procedure in this type of regulatory action. The court expressed concern that the

agency’s existing basis for setting safety standards (chiefly, findings of “significant risk” and

feasibility demonstrations—just as for health

standards) provided unreasonably broad discretion, which, in the absence of systematic benefitcost balancing, could yield very costly but minimally protective compliance requirements.20 On

this basis, OSHA’s prevailing interpretation of

20 See U.S. Court of Appeals (DC Circuit) 1991 decision in International Union, UAW v. OSHA, 938 F.2d 1310 (particularly pp. 1318–

1321).
50 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

its section 3(8) procedural requirements (the portion of the OSH Act governing safety standards)

was remanded for further consideration—with

the suggestion that benefit-cost analysis

(although not the only possible approach to “balancing” benefits and costs) provided a means to

resolve the problem.

In its subsequent safety rulemakings to date,

OSHA has basically affirmed the adequacy of its

existing procedures (i.e., significant risk findings, feasibility analysis, documentation capable

of withstanding “substantial evidence” review,

consideration of all serious comments in the

record, and the need to identify cost-effective

measures) for meeting the court’s concerns and

has not acted to incorporate more explicit benefit-cost balancing procedures in its rulemaking

steps.21 But it is unclear whether this issue has

reached a point of policy stability—and is a matter to which the DC Circuit (or other court, for

that matter) could return at some future point.

A second and more encompassing command

to revise the role of benefit-cost considerations in

OSHA’s rulemakings—affecting health and

safety standards alike—could come from the

“regulatory reform” debate now underway in

Congress.22 Elevating the influence of explicit

benefit-cost analyses in safety, health, and environmental regulatory rulemaking generally is a

primary consideration in many of the present

House and Senate proposals that have been submitted.

The specifics of any such new guidance from

the courts or Congress are, of course, speculative

at present. Nonetheless, it seems apparent that a

mandate for more explicit benefit-cost consideration would press OSHA to deepen its control

technology and regulatory analysis procedures in

21 See OSHA’s statement on this matter in the preamble to the 1994 Electric Power Generation, Transmission, and Distribution safety

standard, 59 Federal Register 4427–4429, Jan. 31, 1994. 22 A number of bills affecting almost all health and safety regulatory agencies were introduced in both chambers in the present (104th)

Congress. At the time this report is being completed (late summer, 1995), the House has passed a comprehensive regulatory reform measure

as part of H.R. 9 (the Job Creation and Wage Enhancement Act of 1995). Among other provisions, this bill mandates that all major rules must

demonstrate that the benefits resulting from implementation “justify and [are] reasonably related to” their costs. Extensively documented risk

assessments and detailed consideration of regulatory alternatives are also required. In the Senate, several bills, with widely varying provisions, are now under consideration, notably, S. 343 (the “Comprehensive Regulatory Reform Act of 1995). Competing bills include S. 291,

S. 333, and S. 1001.

a number of significant respects. First, there

would be a strong incentive to seek to quantify a

fuller scope of estimated regulatory benefits,

including those that are usually itemized now in

more qualitative terms (particularly those in the

health benefits arena, and the economic benefits

accruing to industry as a result of hazard reductions). Second, the logic of the balancing comparison—whatever it proves to be—would no

doubt press the agency to seek to more nearly

prepare expected outcome forecasts of the costs

from an intended regulation. This is a substantially more demanding analytical task than that

necessary for the prevailing feasibility demonstration test, because the diversity of possible

responses among the various establishments in

affected industries and the prospect for significant shifts in production technologies (e.g., adoption of regulation-induced product/process

innovations, accelerated replacement of plant

equipment to use leading-edge technology, substitutions to alternate materials and products)

would need to be more carefully considered.

■ For the most part, OSHA’s current feasibility

analyses devote little attention to the potential

of advanced or emerging technologies to

yield technically and economically superior

methods for achieving reductions in workplace hazards. Much of this circumstance

reflects the procedural priorities of the existing rulemaking process, as well as the nature

of the hazard reductions the agency has targeted since the early 1980s. But a good case

can be made that a lack of continuing

insights on the potential of leading-edge

technology hinders the agency in performing

its mission.
Chapter 3 Discussion of Evaluation Findings | 51

Another substantial criticism of the agency’s

rulemaking analyses (coming most vigorously

from those advocating the aggressive adoption of

stringent workplace health and safety protections) is that ordinarily there is too narrow a

focus on conventional, well-established control

measures—such as increased ventilation, added

enclosure of existing machines, and improved

housekeeping based on existing technologies and

work practices. According to this view, opportunities are missed to harness leading-edge or innovative production technologies (including input

substitutions, process redesigns, or product reformulations) to society’s collective advantage, and

to achieve greater worker protection with technologically and economically superior means.23

Moreover, a narrow emphasis on only the clearly

apparent means of control at the time of a rulemaking can fail to provide a sound basis for estimating the actual burden an affected industry

may bear in accommodating compliance provisions at any given level of stringency—because

industries (or some of the establishments therein)

may be able (and have an incentive) to exploit

accessible opportunities for substantial product

or process changes to achieve compliance.24

OSHA’s preoccupation in the course of rulemakings with a “static state” characterization of

affected industries and clearly available control

measures is widely apparent in the existing standards OTA has reviewed (which consisted, for

the most part, of rulemakings in the 1980s and

early 1990s). In fairness, OSHA’s examinations

of “feasible technologies” do sometimes comment on control methods potentially available

but not yet adequately demonstrated, and on the

implications of potentially emerging technologi23 There clearly have been occasions in the past when businesses facing OSHA requirements (with or without “technology forcing”

objectives) for more stringent controls responded in ways that relied substantially on process innovations. See, for example, the 1974 Vinyl

Chloride standard discussed in the next section. For a broader discussion, see Nicholas A. Ashford, Christine Ayers, and Robert F. Stone,

“Using Regulation to Change the Market for Innovation,” Harvard Environmental Law Review, 9 (2), 419-466, Summer 1985. See also Ruth

Ruttenberg, The Incorporation of Prospective Technological Change into Regulatory Analysis Which is Used in the Planning of Occupational Safety and Health Regulations, Ph.D. dissertation, University of Pennsylvania, 1981. 24 For example, in OSHA’s 1978 Cotton Dust standard, eroding competitiveness against producers abroad and the need to comply with

the more stringent dust control requirements prompted many U.S. cotton textile manufacturers to aggressively modernize their plants; as a

result dust control was achieved in a less costly way, and productivity and product quality benefits were reaped at the same time. (This case is

discussed later in this chapter.) 

cal capabilities. Nevertheless, the vast majority

of attention in demonstrating feasibility and estimating the costs and other impacts of compliance

is placed on conventional control measures (most

often involving retrofits of in-place production

equipment) with reasonably well established

records of performance.

A good deal of this narrowing of the analytic

inquiry reflects the formal procedures and operational pressures of the existing rulemaking process. As discussed in the previous chapter, the

agency’s considerations of control options and

economic impacts enter chiefly as matters of

confirming a presumption that the compliance

actions necessary to achieve the targeted hazard

reduction goal are generally feasible for the

affected industries. Given the contentiousness

that often marks OSHA’s rulemakings, there is

obvious strategic value in providing such a demonstration based on actions (engineering controls, work practice modifications, etc.) that are

already evident in the affected industry (or in

other industries with reasonably analogous processes). This is because concrete documentation

of applicability, cost, and hazard reduction efficacy is reasonably likely, and the capacity of the

record to withstand later judicial scrutiny is at its

strongest.

Of course, a need to examine other possible

steps, e.g., measures which do not yet have an

established track record or may require further

experimental development, arises in the circumstance that these existing, established means are

not sufficient to enable attaining the extent of

hazard reduction targeted by the agency’s
52 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

“significant risk” findings.25 But, more generally, the agency’s analytic task does not require

charting the maximum extent of hazard reduction

feasible. And the logic of a feasibility demonstration does not depend on cataloging and ranking

all possible means available to establishments to

comply (including the use of new technologies

that might be superior with appropriate further

development) or estimating the share of affected

establishments that may choose to respond

through means other than those identified in the

agency’s rulemaking analyses.26

Another significant influence on the scope of

the control options inquiry is the stringency of

the hazard reductions targeted. Critics of

OSHA’s regulatory priorities, particularly since

the early 1980s, observe that the agency has been

regulating to risk levels that are less protective

by one to several orders of magnitude than the

targets EPA has used in its environmental regulations covering the public at large.27 In addition,

for much the same period, OSHA appears to

have had diminished interest in setting standards

involving technology forcing to any significant

degree.

Both of these circumstances have contributed

to a rulemaking context in which a comparatively narrow discussion of control measures has

largely satisfied the prevailing procedural and

evidentiary needs. Obviously, the nature of the

control measures necessary to invoke in any particular rulemaking is a case-by-case empirical

matter. But it seems likely that an agency policy

decision to target substantially more stringent

hazard reductions or a return to technology-forc25 As observed in the previous chapter, the courts have long affirmed the agency’s authority to establish such “technology forcing”

requirements, conditional on acceptable evidence of feasibility. 26 That such developments should be observed in affected industries’ compliance responses is not all that surprising. The agency’s provisions involving technology for health standards have long been performance based (as opposed to specification based). And the provisions

for new and amended safety standards are increasingly moving in this direction. As such, there are no barriers in the compliance requirement

(other than the normal generic priority on engineering and work practice controls) that prevent an industry from adopting or inventing a better

way to comply, regardless of whether or not such means were discussed in the course of the rulemaking. 27 See Harvard Center for Risk Analysis, “The Role of Significant Risk in OSHA Reform” Risk in Perspective 1(3): August 1993, Harvard School of Public Health, Cambridge, MA. See also, AFL-CIO, Department of Occupational Safety and Health, “The Workplace: America’s Forgotten Environment—A Comparison of Protections Under U.S. Workplace Safety and Environmental Laws,” Washington, DC,

April 1993. The AFL-CIO report (pp. 13–15) notes that with cancer-causing substances, whereas OSHA regulates to a risk level of 1 death

per 1,000 workers, EPA regulates to a level somewhere between 1 death per 10,000 to 10,000,000 persons under the Clean Water Act, and

1 death per 10,000 to 1,000,000 under Superfund and the Clean Air Act.

ing standards—or both—would drive the need

for a wider and more explicit consideration of

control technology options beyond conventional

measures.

Yet even without such shifts in the agency’s

hazard reduction targets, there are several reasons why the narrow consideration of control

options that has prevailed for some time now

should be viewed in a critical light.

First, findings of infeasibility (due to constraints of a technological and/or economic

nature) do arise in rulemakings (particularly in

the health standard arena) and have led to the

promulgation of compliance provisions that the

agency acknowledges are not expected to completely remove significant risk. In such a circumstance, it is only reasonable to question whether

the feasibility analysis has been based on too

limited a concept of the available control measures. OTA has not, in the course of this study,

been able to review all of OSHA’s rulemakings

in this respect. However, in at least one of the

eight existing standards (and perhaps one other)

examined in the retrospective case research (see

next section), consideration of improvements in

technological capabilities that could have been

reasonably anticipated might have supported a

more stringent standard than was ultimately promulgated.

Second, and equally important, it would seem

only common sense that OSHA ought to be a

progressive supporter of innovation and the

adoption of advanced technologies to the extent

that such enhanced capabilities could expand the

set of feasible options for improving workplace
Chapter 3 Discussion of Evaluation Findings | 53

safety and health. There is certainly ample evidence in the record to date that intelligently

directed effort can yield hazard control options

that provide greater protections at reduced cost,

compared with conventional measures—

attributes that would, no doubt, enhance the

“win-win” (for regulated industries and their

workforces) character of OSHA’s compliance

requirements in many cases and support the

achievement of greater hazard reduction.28

Arguably, some of the agency’s attention could

usefully be devoted to promoting (e.g., through

experimental variances or new technology demonstration projects) the longer-term development

and application of hazard reduction measures

that are technologically and economically superior.

To play such a supporting role well, however,

OSHA needs to have an up-to-date and informed

perspective on the nature and relevance of new

technological opportunities on the horizon—in

the control technology industries and among regulated sectors and their competitors and suppliers. Yet the analyses of control technologies now

routinely being performed in the course of rule28 See N.A. Ashford and G.R. Heaton Jr., “Regulation and Technological Innovation in the Chemical Industry” Law and Contemporary

Problems 46:109–157 (1983). See also N.A. Ashford, C. Ayers, and R.F. Stone, “Using Regulation to Change the Market for Innovation,”

Harvard Environmental Law Review 9 (2), 419–466, Summer 1985.

makings do not basically provide this function.

Indeed, to have real impact, such knowledge will

no doubt need to be available and salient before

the terms of the standard-setting “contest”

among the stakeholders become too solidified.

❚ Lessons from the Retrospective

Case Studies

For eight of OSHA’s past rulemakings, OTA collected data on the post-promulgation outcomes in

affected industries. Five health standards were

considered in this way: Vinyl Chloride (1974),

Cotton Dust (1978), Occupational Lead (1978),

Ethylene Oxide (1984), and Formaldehyde

(1987). Three safety standards were similarly

examined: Grain Handling Facilities (1987),

Mechanical Power Presses (1988), and Powered

Platforms (1989). This effort was designed to

examine the nature of the match between the

rulemaking estimates of compliance response,

costs, and other impacts with the corresponding

actual outcomes, and to gain a further basis for

appraising the analytic efforts supporting the

agency’s rulemakings.29

29 To stretch the modest resources OTA had for this project, credible, already published case studies were used were possible. This practice accounts for the Vinyl Chloride, Cotton Dust, and Ethylene Oxide standards in the case study set. (The Vinyl Chloride and Cotton Dust

standards are also widely considered “classic cases” in OSHA’s rulemaking history.) Original research efforts by qualified researchers (see

citations in Appendix B) were commissioned in the other five cases. The Occupational Lead, Formaldehyde, and Grain Handling Facilities

standards were included because of their controversial nature and prominent roles in OSHA’s rulemaking history in the 1980s. The Mechanical Power Presses and Powered Platforms rulemakings were selected more or less at random from among the full group of safety standards

promulgated by OSHA after 1985.
54 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

The essential regulatory elements of these

eight standards are presented in table 3-1.

Tables 3-2 and 3-3 summarize the comparative

information (estimated vs. actual post-promulgation outcomes), with particular attention to the

nature of the industry’s compliance response and

the economic impacts.30 In some cases, to make

the research feasible within OTA’s resources for

the study, the comparisons were focused on a

limited number of affected industries. (An

expanded summary for each of the cases appears

in appendix A of this report. More detailed

reviews of the rulemaking histories, analytical

estimates, and outcome findings are provided in

30 Each of the case studies provides an indication of the apparent change in targeted hazard levels realized in the post-promulgation

period. However, the (important) issue of the benefits derived from regulation was not a principal topic for this study, and has not been

addressed to any substantial detail.

a comprehensive project working paper and in

the individual case study research reports—see

citations in appendix B.)

The eight cases OTA examined reflect a preponderance of rulemakings among the more controversial and challenging in OSHA’s history.

The sample is also a relatively small fraction of

all the standards and all the industries covered by

OSHA’s rulemakings to date. Nonetheless, OTA

believes that, as a whole, the set of cases considered reasonably illustrates the analytical challenges the agency has faced, and now faces, in

promulgating health and safety standards.
Chapter 3 Discussion of Evaluation Findings | 55

TABLE 3-1: Features of the Case Study Standards 

Considered by OTA’s Retrospective Evaluations

Standard Principal features

Health rules

Vinyl Chloride ■ Promulgated in October 1974. Among other provisions, the action reduced the prevailing timeweighted average exposure over an 8-hour workshift (TWA8) permissible exposure limit (PEL)

from 500 parts per million (ppm) to 1 ppm. The case study considered both of the principally

affected industries—vinyl chloride monomer synthesis and polyvinylchloride polymerization.

■ Although conducted in what is now an “earlier era” of OSHA’s rulemaking, the Vinyl Chloride

standard is widely remembered for the steepness of the reduction in exposure required, the difficulty that compliance was perceived to pose for key affected industries, and the agency’s reliance on a “technology-forcing” PEL.

Cotton Dust ■ Promulgated in June 1978. In addition to other provisions, the action tightened the existing

TWA8 PEL from 1,000 micrograms per cubic meter (g/m3) to 200 μg/m3 for yarn manufacturing

operations, 750 μg/m3 for slashing and weaving, and 500 μg/m3 for other operations where airborne cotton dust was generated. The case study examined the textile manufacturing sector—

the half-dozen or so industries principally affected by the rulemaking.

■ Cotton Dust also is widely remembered because of the widespread fears of “high and burdensome compliance costs” and the sizable role that plant modernization played in the affected

industries’ eventual compliance response.

Lead—

Occupational 

Exposures

■ Promulgated in November 1978. The existing TWA8 PEL was tightened from 200 μg/m3 to

50 μg/m3, in addition to various other provisions. The case study focused on the secondary

smelting industry—one of the more than three dozen industries affected by the standard, and

one of the few that had high existing exposure levels and was expected to have to make major

changes in existing process equipment for compliance.

■ Lead exposures, which were (and remain today) widely regarded as a serious health concern,

have been the subject of a long-running series of rulemakings by OSHA (and by EPA, with

respect to environmental sources of exposures). The case study focused on one of the sectors

where the feasibility of control was particularly challenging and controversial.

Ethylene Oxide ■ Promulgated in June 1984. Among other provisions, the existing TWA8 PEL was reduced from

50 ppm to 1 ppm. The case study examined hospitals—one of a half dozen industries identified

as affected, and the sector in which the vast majority of directly exposed employees existed.

■ The EtO rulemaking is illustrative of the substance and approach of the agency’s rulemakings

in the first half of the 1980s that dealt with suspected carcinogens.

Formaldehyde ■ Promulgated in December 1987. The action tightened the existing TWA8 PEL from 3 ppm to

1 ppm, among other provisions. (Note: OSHA amended the PEL to 0.75 ppm on May 27, 1992.

The case discussed here, however, considered only the 1987 action.) The study focused on

metal foundries—one of more than three dozen industries or industry groups identified as

affected, and the industry with a large number of workers with existing exposures above 1 ppm

and compliance costs that were expected to be high.

■ Formaldehyde proved a particularly controversial rulemaking, but otherwise is illustrative of the

substance and approach of the agency’s rulemakings on suspected carcinogens in the mid- to

later 1980s.

(continued)
56 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Standard Principal features

Safety rules

Grain Handling 

Facilities

■ Promulgated in December 1987. Along with more than a dozen other provisions, all grain elevator and grain mill facilities were required to develop and implement housekeeping plans to

reduce dust emissions and to provide for the periodic removal of accumulated dust. The case

study considered all the principally affected industries.

■ The rulemaking sought a wide range of improvements in equipment, work practices, and safety

procedures to deal with a sharply rising incidence of destructive fires and explosions at grainhandling facilities. The action was quite controversial in respect to its anticipated economics.

Mechanical 

Power Presses

■ Promulgated in March 1988. The action amended the existing standard to allow voluntary

adoption of an electronic presence-sensing device (instead of operators who manually moved

a switch) to actuate power press strokes. Various other provisions to ensure the maintenance of

safe conditions for use also were specified. The case study considered all the principally

affected industries, which were widely spread across the manufacturing sector.

■ The rulemaking sought to relax an existing constraint, with the expectation of substantial economic benefits to industry and improvements in workplace safety. The rulemaking contained

some (at the time) novel procedures intended to ensure the continuing maintenance of safe

conditions for power press operations (particularly certification/validation by a qualified and

independent outside organization of the engineering design, installation, and ongoing operational adequacy of the mechanical and control systems involved).

Powered 

Platforms for 

Building 

Maintenance

■ Promulgated in July 1989. The action widened the acceptable technologies for the horizontal

stabilization of work platforms for maintenance activities on high-rise buildings and specified

other provisions concerning the performance capabilities of the equipment used and the work

practices employed. The case study considered all the principally affected industries, which

chiefly included high-rise building owners/developers and the establishments providing various

building maintenance services.

■ The rulemaking sought to accommodate the ongoing changes in the high-rise building designs

with the need to ensure that safe conditions were maintained at building service sites. Generally, the rulemaking and the resulting compliance provisions are illustrative of the substance

and approach of the agency’s safety rulemakings in the later 1980s.

TABLE 3-1: Features of the Case Study Standards 

Considered by OTA’s Retrospective Evaluations (Cont’d.)
Chapter 3 Discussion of Evaluation Findings | 57

TABLE 3-2: OSHA’s Rulemaking Estimates vs. Actual Outcomes

Content of Affected Industries’ Compliance Response

Vinyl Chloride

■ Promulgated in 1974

■ Industries examined: vinyl chloride synthesis and polyvinyl chloride polymerization

In contrast to industry’s vigorous contrary arguments during the rulemaking, full compliance was achieved handily 

within 18 months after the standard was enacted. Most of the actions implemented to reduce exposure levels were 

those anticipated by OSHA during the rulemaking—including reducing leaks and fugitive emissions, improved 

ventilation systems, modified reactor designs and chemistry, and process automation. A significant production 

improvement not foreseen, however, was the proprietary “stripping” process commercialized within a year of 

promulgation, which provided a substantially improved means for producing PVC resin while reducing vinyl chloride 

exposures.

Cotton Dust

■ Promulgated in 1978

■ Industries examined: focus on textile manufacturing sector

Most all of the engineering controls envisaged by OSHA throughout the rulemaking as central for reducing dust levels 

played a role in achieving compliance: retrofits of existing production machinery, such as expanded enclosure, 

added local exhaust ventilation, enhanced general ventilation and filtration. But this group of measures missed the 

sizable extent to which dust control was achieved as a by-product of an aggressive drive to rapidly modernize the 

industry’s production base. The industry’s existing, older equipment was either rebuilt with modern functions or 

replaced outright with modern equipment—all of which enabled improved production speeds, consolidation of 

operations, more effective use of floor space, reduced labor, and better product quality, along with lower dust levels.

Occupational Lead Exposures

■ Promulgated in 1978

■ Industries examined: focus on secondary smelting

To date (early 1994), the secondary smelting industry’s compliance response has differed considerably from the 

control concept on which OSHA’s promulgation of the standard was based. Most producers have adopted some 

additional engineering controls (particularly for point and area ventilation, along with increased automation). But the 

greater emphasis has been on respiratory protection programs (which virtually all producers now use) and improved 

employee hygiene (protective clothing, change houses, personal hygiene practices). Despite the final rule’s mandate, 

few producers have invested in engineering controls to the full extent anticipated to be needed for PEL compliance. 

Airborne lead levels in plants, while lower now than in the late 1970s, still remain substantially above the PEL—with 

decades of further progress needed, given the slow rate of improvement that has prevailed to date. Furthermore, the 

“new technologies” envisaged at the time of rulemaking for compliance in the blast furnace area of plants have not 

progressed; the single U.S. secondary smelter using the Bergsoe process went bankrupt in the mid-1980s, and 

hydrometallurgy still remains “on the horizon.” The new capacity coming on line in recent years (which has been 

substantial since the mid-1980s, particularly in the “integrated” end of the business, where old batteries are broken, 

smelted, and used to manufacture new units) has all relied on conventional control technologies—although, with 

closer attention to plant layout, material transfer/handling, and process operability vis-a-vis emission and exposure 

considerations.

Ethylene Oxide

■ Promulgated in 1984

■ Industries examined: focus on the hospital sector

In the main, the compliance steps taken by hospitals were well in line with what OSHA emphasized in the rulemaking’s 

feasibility analysis, chiefly, retrofits of both post-cycle evacuation systems and local exhaust devices to the existing 

stock of sterilizer units, and various straightforward changes in existing work practices. Nonetheless, some hospitals 

did pursue other courses of action, such as exploiting existing equipment and facilities (e.g., relocating sterilizer 

equipment to a room with a high rate of ventilation) or constructing entirely new facilities with stringent exposure 

reduction capabilities. In addition, a sizable proportion of hospitals (including some already in compliance) acted to 

reduce exposure levels to a point well below the new PEL—the result chiefly of continuing concerns about the health 

risks of long term, low level ethylene oxide exposures and managers’ desires to minimize vulnerability to future tort 

liability claims. A number of substantial improvements in control technology did emerge after the rulemaking, 

particularly the integration of control features into new sterilizer units and significantly expanded exposure 

measurement capabilities. But these advances occurred a good deal later than the main period of the sector’s 

adjustment to the new standard’s compliance requirements.

(continued)
58 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Formaldehyde

■ Promulgated in 1987

■ Industries examined: focus on metal foundries

In the course of the rulemaking, OSHA identified a variety of engineering controls already commercially available for 

reducing exposure levels in the metal foundry industry; these included additional ventilation (fresh air curtains, 

general dilution ventilation, local ventilation), enclosure (e.g., ladle covers, side baffles, ventilated cooling enclosures), 

changes in resin and catalyst formulations (to reduce the level of free formaldehyde present in resin binders or 

released in curing), and isolation of scrap materials. To demonstrate economic feasibility, the agency assumed that 

compliance would be achieved predominantly through added ventilation and enclosure. But as events turned out, 

only a few foundries adopted the “ventilate and enclose” strategy. Most opted for low-formaldehyde resins, which 

were available at the time of the rulemaking, and successively improved in the post-promulgation period.

Grain Handling Facilities

■ Promulgated in 1987

■ Industries examined: grain elevators and grain mills

Housekeeping activities to clean and remove accumulations of grain dust are now clearly recognized throughout the 

grain-handling sector as an essential work practice. Pneumatic dust control systems also are widespread, although 

manual cleaning with brooms is still used and continues to be regarded as an effective method to control dust. 

Treating grain with edible oils, to reduce dust generation and flammability, also is fairly frequently employed. Office 

facilities, welding activities, and employee smoking have generally been relocated away from prime dust generation 

areas. Designs for new elevators and plants now incorporate a range of fire/explosion safety features, but there have 

been relatively few new facilities constructed in recent years. At the time of the rulemaking, all of these avenues for 

control were anticipated to result from the compliance provisions of the new standard.

PSDI Power Presses

■ Promulgated in 1988

■ Industries examined: various in manufacturing sector

Prior to OSHA’s rulemaking action, presence-sensing device initiation (PSDI) had already been successfully used on 

compatible mechanical power presses in Western Europe, where it provided evidence of sizable productivity gains 

and improvements in workplace safety. Nonetheless, to date (1994), and despite the rulemaking’s formal allowance of 

PSDI operations, there has been little if any U.S. adoption of the technology. As events turned out, one of the safetyrelated procedural provisions—periodic certification/validation of PSDI power presses and their associated safety 

equipment by an outside organization—has proved unexpectedly to be a serious impediment to adoption. Also it 

appears that the market for PSDI is currently being eroded by alternate technology, particularly “quick trip” light 

curtains with no-touch sensors, which provide safety and productivity improvements and can be adopted without 

certification/validation by an independent party.

Powered Platforms

■ Promulgated in 1989

■ Industries examined: high-rise building owners/developers, building maintenance service providers

The amended standard has had the intended effects of widening the options for stabilization methods available to 

building owners/developers and of increasing the incidence of safe work practices. The overall number of alternate 

stabilization systems installed to date, however, has been well below OSHA’s expectation at promulgation, chiefly 

because the number of new high-rise buildings constructed has been considerably under the estimate on which the 

regulatory impact calculations were based.

SOURCE: OTA, drawn from the case study retrospective research findings (see Appendix A).

TABLE 3-2: OSHA’s Rulemaking Estimates vs. Actual Outcomes (Cont’d.)
Chapter 3 Discussion of Evaluation Findings | 59

TABLE 3-3: OSHA’s Rulemaking Estimates vs. Actual Outcomes

Economic Impacts of Compliance

Vinyl Chloride

■ Promulgated in 1974

■ Industries examined: vinyl chloride synthesis and polyvinyl chloride polymerization industries

In promulgating the final rule, OSHA did not provide its own estimate of the compliance costs for affected industries. 

The most credible figures put forth at the time were those of the agency’s technical consultant, which estimated total 

costs at around $1 billion (1974 dollars), including capital expenses for new equipment, replacement of lost capacity, 

and incremental operating expenses. According to the post-promulgation survey of industry members, however, 

actual spending amounted to only about a quarter of this estimate, $228 million to $278 million.

Arguments made during the rulemaking debate suggested that the standard would greatly increase business costs 

and threaten the viability of the vast majority of the establishments in the industries. As events turned out, costs did 

increase and production capacity was eroded, but only modestly. Furthermore, there was little evidence that the 

financial status or ability to respond to customer needs in the affected industries had been strained.

Cotton Dust

■ Promulgated in 1978

■ Industries examined: textile manufacturing

OSHA’s estimate in the Final Regulatory Impact Analysis placed the textile manufacturing sector’s cost of compliance 

at $280.3 million annually (1982 dollars, for amortized capital spending, incremental operations and maintenance, and 

other new spending). However, actual spending is estimated to have been only about a third of this amount, $82.8 

annually (also 1982 dollars), chiefly because of the advantageous economics of the plant modernization push that 

was widely undertaken across the sector.

Concern was expressed in the rulemaking that smaller textile firms could encounter substantial constraints in raising 

capital for compliance-related improvements, and that the standard would tilt the sector’s competitive center toward 

newer and more modern plants. (Neither of these circumstances, however, was considered large enough to warrant a 

“thumbs down” economic feasibility judgment for the industry as a whole.) Also, control equipment suppliers argued 

during the rulemaking that serious bottlenecks would arise in trying to retrofit the industry’s equipment in short order. 

Nonetheless, the actual effects in all these respects proved to be modest and generally bearable.

Occupational Lead Exposures

■ Promulgated in 1978

■ Industries examined: focus on secondary smelting

At promulgation OSHA did not provide a specific cost estimate for compliance with the 50 g/m3 PEL—indicating that 

“the industry face[d] several options for long-run compliance.” OSHA did, however, outline an outer bound of about 

$91 million (1976 dollars) in total capital spending, based on a complete rebuilding of the industry using the Bergsoe 

smelter technology (then considered to be the most cost-effective option). In an early 1980s revision of the estimates, 

OSHA placed the cost of PEL compliance at a capital requirement of $125 million (1982 dollars), or 1.3 cents annually 

per pound of production ($150 million and 1.6 cents/lb, respectively, in 1992 dollars). Nevertheless, the industry’s 

actual spending to date (through early 1994) has been far below these levels. Cumulative capital investment appears 

to total no more than $20 million (1992 dollars), and some of this overlaps with expenditures to meet the various 

environmental requirements to which the industry has also been subject. Annual compliance spending appears to be 

averaging 0.5 cent/lb to 1.0 cent/lb (1992 dollars), and perhaps as low as 0.3 cent/lb, i.e. well below OSHA’s 

expectations at the time of the rulemaking and largely reflective of the industry’s strategy of minimizing expenditures 

on engineering controls and relying much more heavily on respirator and hygiene programs to reduce exposures.

The real price of lead dropped sharply and unexpectedly after 1979, not returning to a similar level until late in the 

1980s. Numerous smaller, independent smelters, that had limited financial resources and faced the combined effects 

of increased costs for both EPA regulations (emission controls and liabilities for future cleanups) and OSHA 

requirements, elected to exit the industry. The remaining producers benefited from increased use of capacity but had 

to aggressively trim labor costs and improve productivity to compensate for the upward cost pressures. Today the 

industry is smaller, and, indeed, the most productive in the highly competitive global market. At the time of the 

rulemaking, OSHA acknowledged the limited extent to which most secondary smelters could pass on new compliance 

costs and correctly judged that some consolidation would occur after promulgation, as producers with high marginal 

costs exited the industry. But OSHA did not anticipate the steep drop in lead prices that occurred. It now appears 

likely that the industry’s consolidation would have been a good deal more severe had the level of compliance 

spending the agency estimated at promulgation proved to be nearer the actual circumstance. (continued)
60 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Ethylene Oxide

■ Promulgated in 1984

■ Industries examined: focus on the hospital sector

OSHA’s final estimates placed the sector’s total compliance costs at $23.7 million annually (1982 dollars), $12.5 

million of which related to amortized capital spending for the necessary control equipment. Available field evidence 

suggests that OSHA’s estimated unit cost figures for the presumed control technologies were reasonably accurate. 

However, the sector’s actual overall spending appears to have at least modestly exceeded the agency’s estimate, 

because of some spending on modifications to existing ventilation systems not anticipated in the rulemaking estimate 

and many hospitals acted to reduce exposures to a level substantially below the promulgated PEL.

There was little concern at the time of the rulemaking that the standard would entail substantial financial or economic 

consequences for the industry or the national economy, because average spending for compliance per hospital was 

estimated to total no more than $1,500 to $3,500 annually. There is no evidence that the outcome differed from these 

expectations.

Formaldehyde

■ Promulgated in 1987

■ Industries examined: focus on metal foundries

OSHA’s final estimate placed the industry’s compliance costs at $11.4 million annually (1987 dollars). (Cost savings of 

$1.7 million annually from avoided medical expenses also were identified.) Actual spending appears to have been 

about half this level, $6.0 million annually. Part of this result reflected the industry’s adoption of low-formaldehyde 

resins (which avoided the need for major new capital expenses) rather than added ventilation and enclosure. But in 

some important components of the cost calculations (particularly the improvements to ventilation systems that some 

companies installed to achieve compliance), OSHA’s rulemaking figures substantially underestimated the actual 

spending.

The industry continued to consolidate in the second half of the 1980s, with the number of establishments in the 

business declining rather quickly. There is no evidence, however, that more than a few foundries closed as a 

consequence of the more stringent control of formaldehyde. This finding vindicates the basic accuracy of OSHA’s 

feasibility determinations and rebuts the arguments that the industry made during the rulemaking.

Grain Handling Facilities

■ Promulgated in 1987

■ Industries examined: grain elevators and grain mills

OSHA estimated the sector’s total compliance costs in the range of $41.4 million to $68.8 million annually (1985 

dollars; spanning the incremental need for equipment and actions across the 13 separate provisions) and avoided 

property losses at $35.4 million annually (as compliance reduced the number of facility explosions and serious fires). 

These calculations yielded an estimated net cost of compliance in the range of $5.9 million to $33.4 million annually. 

The agency went on to monetize the expected benefits from reduced employee injuries and deaths at $75.5 million 

annually, which, from a societal perspective, more than balanced the new costs imposed on the affected industries. 

Unhappily, the case study was not able to derive enough information from the field to directly check these estimates—

an unfortunate circumstance, because these figures were intensely debated in the course of the rulemaking.

Now that nearly five years have passed since full compliance with the terms of the 1987 standard was mandated, the 

evidence is that few if any facilities have ceased operation as a result of the standard—an outcome contrary to the 

economic impact estimates the industry submitted to the rulemaking. (The sector has, however, been subject to 

substantial economic pressures over this period for reasons not related to OSHA actions.) 

PSDI Power Presses

■ Promulgated in 1988

■ Industries examined: various in the manufacturing sector

OSHA’s final estimate projected the total cost of adopting PSDI (among both existing and new power presses) at $49 

million to $77 million annually (1984 dollars; for equipment modifications or enhancements and compliance with the 

other provisions of the standard, including for the various certifications and validations). Cost savings from 

productivity improvements were estimated at about $182 million annually, i.e. substantially greater than the new costs. 

However, little has happened thus far in the industry to allow an evaluation of these estimates, except, of course, that 

OSHA (and most of the other parties to the rulemaking) failed to foresee the unfavorable economics of the 

independent party certification/validation role in the “later 1980s and on” world. (continued)

TABLE 3-3: OSHA’s Rulemaking Estimates vs. Actual Outcomes (Cont’d.)
Chapter 3 Discussion of Evaluation Findings | 61

■ Straightforward comparisons of the industry

response and regulatory impact circumstances that have actually occurred with

those projected by OSHA in promulgating

standards exhibit both “hits” and “misses.”

But almost all of the cases contain at least

some significant disparities.

The case study comparisons indicate that

OSHA’s rulemaking analyses have reasonably

grasped many of the essential features of the

affected industries and the principal issues posed

by compliance with a new standard. In addition,

the hazard control measures receiving primary

attention in rulemakings did, in most cases, play

a role in the compliance actions actually taken.

At the same time, it is clear that one or more significant disparities were present in almost all of

the eight standards examined.

These disparities are tabulated together in

table 3-4. As is apparent, they stem from different sources:

■ unexpected discontinuities in the business

environment affecting the content of compliance adjustments,

■ failure to correctly anticipate the predominant

compliance responses of affected industries,

■ deliberate conservatism in assumptions about

the control technology (also yielding an incorrect estimate of the actual compliance

responses),

■ misjudgment of affected industries’ ability to

adjust to more stringent compliance requirements, and

■ significant errors in measuring key parameters.

The limitations in the 1988 Mechanical Power

Presses and 1989 Powered Platforms rulemakings arose chiefly from discontinuities that

OSHA did not anticipate in the operating environments of the affected industries. The problem

appears to have been avoidable in the former

case, but probably not in the latter. (As discussed

further below, an unexpected change in a key

economic variable, beyond the control of the

affected industry, was also a consideration in the

1978 Occupational Lead standard.)

Powered Platforms

■ Promulgated in 1989

■ Industries examined: high-rise building owners/developers, building maintenance service providers

OSHA’s final regulatory analysis estimates placed the total incremental costs of the amended standard at somewhat 

over $1.4 million annually (1987 dollars, including the various incremental expenses for both building owners and 

contractors). However, the greater flexibility in choice of stabilization system conferred an estimated cost savings to 

building owners/developers of about $3.1 million annually. Thus adoption of the standard was projected to provide 

direct cost savings of around $1.7 million annually.

With one significant exception, the case study research largely confirmed the reasonableness of most of the unit 

compliance cost figures OSHA used in the regulatory analysis calculations—the exception being a considerable 

underestimate of the cost of one of the several competing stabilization systems on one of the trio of principal building 

materials in the marketplace. A more significant disparity, however, is the unexpected slowdown in new high-rise 

building construction, with the actual annual pace since the beginning of the 1990s only 20 to 40 percent of the rate 

OSHA expected. To date, the overall net savings appear to have been substantially lower than expected—$600,000 

annually, assuming the higher side of the range in the pace of new building construction, or perhaps even a net cost

of $400,000 annually, assuming the lower side of the range.

During the rulemaking, industry expressed concern that some erosion of productivity could accompany the 

widespread use of the stabilization system particularly favored by the amended standard (the intermittent tie-in 

system), although OSHA’s analyses did not conclude this effect would be significant. The outcomes thus far have 

generally confirmed the agency’s expectation on this matter.

SOURCE: Office of Technology Assessment, drawn from the case study retrospective research findings (see appendix A).

TABLE 3-3: OSHA’s Rulemaking Estimates vs. Actual Outcomes (Cont’d.)
62 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

TABLE 3-4: OSHA’s Rulemaking Estimates vs. Actual Outcomes

Major Disparities Apparent in Direct Comparisons

Significant features of industry compliance adjustment

not accurately anticipated 

Vinyl Chloride

(all principally affected 

sectors)

■ Actual compliance spending totaled about a quarter of the rulemaking’s most credible estimate (but, in the flow of events back then, these figures were not officially

put forward by OSHA).

■ The industry compliance response included significant unanticipated process innovations.

■ Compliance proved considerably easier for the principally affected industries than

the rulemaking debate implied.

Cotton Dust

(all principally affected 

sectors)

■ Actual industry compliance spending amounted to about a third of OSHA’s final

estimate.

■ A major reason for the overestimate of costs was a failure to anticipate the textile

industry’s aggressive retooling with modern production equipment. 

Occupational Lead 

Exposures

(secondary smelters)

■ The industry’s control response to date has differed considerably from the rulemaking’s expectations: only a small fraction of the engineering controls mandated by

PEL compliance has occurred.

■ The expected “new technologies” for control—one basis for the “technology forcing” nature of the standard—have generally not panned out commercially.

■ Compliance spending to date has been well below the rulemaking’s expectation,

but not surprisingly so, given the very slow pace of adoption of engineering controls.

Ethylene Oxide

(hospitals)

■ Unit costs of the principal engineering controls were, for the most part, correctly

gauged—although the spending on general ventilation system improvements was

more than what OSHA had estimated. But overall industry spending appears to

have been at least modestly more than projected, because a substantial fraction of

the sector acted to reduce exposure levels well below that required by the PEL.

Formaldehyde

(metal foundries)

■ Most of the industry achieved compliance by adopting control measures that differed considerably from the rulemaking’s conventional “ventilate and enclose”

assumptions.

■ Overall actual spending appears to have been about half OSHA’s final estimate, but

the spending on ventilation system improvements by those companies that made

this kind of change was considerably underestimated.

Grain Handling Facilities

(all affected sectors)

■ No significant disparities exist; much of what OSHA described in the final regulatory

analysis concerning the control steps and the economic feasibility of the standard

has taken place. (However, insufficient post-promulgation data were available to

the case study to fully examine the balance of benefits and costs, which was a particularly controversial aspect of the rulemaking’s economic estimates.)

PSDI Power Presses

(all affected sectors)

■ The standard’s requirement for certification/validation by an independent outside

party has unexpectedly proved to be a serious impediment to adoption of the PSDI

technology, because of the sizable risk of large liability litigation expenses and a

perceived lack of an adequate business opportunity.

Powered Platforms

(all affected sectors)

■ The unit cost of one of the key stabilization options appears to have been substantially underestimated.

■ The estimated balance of costs and savings differs substantially from what has

occurred to date; the principal source of error is that the pace of new building construction has been well below that assumed by OSHA in the rulemaking.

SOURCE: Office of Technology Assessment, summarized from tables 3-2 and 3-3 earlier, and from Appendix A.
Chapter 3 Discussion of Evaluation Findings | 63

In amending the Mechanical Power Presses

standard, OSHA anticipated considerable adoption of the electronic technology for initiating

power press stamping cycles (including both retrofits of existing presses and in newly installed

machines) in the several years immediately following enactment. This assumption was based on

the clear evidence available then that these systems significantly improved manufacturing productivity while maintaining or even enhancing

the existing level of workplace safety. The scant

adoption of the technology to date appears to

have resulted primarily from the limited business

viability of the outside (“third”) party certification/validation (of the engineering design, installation, and ongoing operational adequacy of the

mechanical and control systems involved) mandated by the standard. The analysis underpinning

OSHA’s feasibility and impact findings for the

rulemaking was prepared (by a contractor) in the

first half of the 1980s, but was not updated to

adjust for the circumstances prevailing nearer the

time of the standard’s promulgation in 1988. In

the mean time, the perceived threat of large liability litigation expenses apparently escalated to

the point that the expectations for earnings

became too small to entice an independent party

to take on the role. This development was not

anticipated by OSHA at the time of the rulemaking, nor for that matter by the many parties providing testimony and comments to the

rulemaking record. However, it now seems likely

that had the agency re-examined the feasibility of

the provision nearer the time of promulgation,

the prospect of a serious constraint would have

been apparent.

In the Powered Platforms rulemaking, OSHA

correctly gauged the intrinsic feasibility of the

amendments (which expanded the options available to building developers/owners for horizontal

stabilization of operating platforms, and mandated the adoption of additional safety-related

equipment and procedures). However, OSHA’s

assumptions in the course of the rulemaking considerably overestimated the pace of construction

of new high-rise commercial buildings. As the

calculations worked out, this rate was a critical

determinant of the overall balance of benefits

and costs (building owners/developers and building maintenance suppliers combined) to result

from compliance with the standard. Here again,

the economic analysis published by the agency

with the promulgated standard in 1989 derived

largely from an analysis prepared a number of

years earlier (in 1983). Nevertheless, even a

reworking of this analysis in 1988 probably

would not have more accurately forecast this

parameter—as many capable analysts of the real

estate, construction, and financial sectors of the

national economy failed to predict the sharp

downturn in commercial building construction

beginning late in the 1980s.

A second generic source of the disparities evident across the cases involves incorrectly anticipating the control response choices of affected

industries. This circumstance accounts for much

of the outcome observed in the 1984 Ethylene

Oxide standard.

OSHA’s analyses for this rulemaking correctly gauged the feasibility of the tightened PEL

and other compliance requirements and correctly

anticipated most of the specific characteristics

(engineering controls, work practice changes,

and their unit costs) of the control measures

implemented. Yet hospitals’ overall spending for

control appears to have at least modestly

exceeded OSHA’s final estimate in the rulemaking. A chief source of this disparity was the decision by a substantial proportion of hospitals to

install equipment and make other changes to

achieve exposure levels substantially more stringent than what the new standard required.

Despite the considerable lowering of the PEL,

concerns about the possible adverse effects of

chronic low-level ethylene oxide exposures

remained salient. Concomitantly, even with compliance with the new OSHA standard, some hospital managers perceived the need to take

aggressive steps to reduce vulnerability to future

tort liability claims. Looking back, it is not difficult to see that some hospitals had an incentive to

undertake such action. Nonetheless, this kind of

outcome is not a circumstance for which a typical regulatory analysis would normally search.
64 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

And, for the most part, the costs and benefits

involved cannot directly be attributed to the

OSHA standard.

A third class of estimation problems on display in the cases relates to the frequent “conservatism” in OSHA’s assumptions about the

predominant control measures that affected

establishments will use to achieve compliance

(see discussion earlier in this chapter, and also in

chapter 2, box 2-3). Most of the disparities

between the rulemaking estimates and actual outcomes in the 1978 Cotton Dust and 1987 Formaldehyde standards are explained by this

circumstance.

In each of these cases, the affected industries

achieved compliance through adopting control

measures that differed considerably from those

that OSHA’s rulemaking analyses presumed in

confirming feasibility. Substantial measurement

errors were present in both cases—a large understatement of the spending on ventilation controls

(in the companies where they were implemented)

in Formaldehyde and a sizable overstatement of

the number of exposed employees in Cotton Dust

(with the errors in each case mainly attributable

to insufficient breadth in the field data collection

effort). Nonetheless, most of the overestimates of

actual overall compliance spending in both rulemakings arose from the alternate paths the industries followed to achieve compliance: the textile

manufacturing industry’s aggressive plant modernization, and the metal foundry sector’s shift to

low-formaldehyde resins. In fact, the control

actions actually adopted were clearly identified

in the agency’s discussion of control options

(and were the subject of testimony during the

hearings). OSHA elected in both cases, however,

to base its analytical findings and estimates on

conventional control measures (but which, in

fairness, under the circumstances then prevailing, were clearly relevant options for the hazard

control problems at hand).

Misjudgment of affected industries’ capabilities to adapt to new compliance requirements is

another generic source of the disparities apparent

in the cases. This was the case with the 1974

Vinyl Chloride rulemaking and perhaps also with

the 1978 Occupational Lead standard.

In the Vinyl Chloride rulemaking, OSHA policymakers pegged the intrinsic feasibility of the

vastly tightened PEL better than is often appreciated. The rulemaking was conducted early in

OSHA’s history, and the agency did not present

its own technology assessment or compliance

cost estimates in the course of the policy debate.

The estimates that proved most erroneous were

those submitted by OSHA’s consultant and by

representatives of the principally affected industries—both of which were submitted to the

record after the hearings and not subjected to

substantial public review. Against this counsel,

OSHA policymakers concluded that the standard

was in all likelihood feasible—which subsequent

events unequivocally confirmed. To be sure,

some significant features of the industries’ compliance responses were not anticipated, particularly the commercialization of the innovative

“stripping” process for PVC synthesis. Nonetheless, much of the post-promulgation reduction in

exposure levels occurred through the widespread

adoption of steps that had been identified in the

course of the rulemaking.

What OSHA did not gauge well was the relative ease with which the affected industries could

comply; compliance took about 18 months, in

sharp contrast to the seven years liberally provided in the final rule to accommodate the

“expected difficulties” of the industry to fully

adopt the necessary engineering controls. The

rulemaking’s lack of a more independent analysis and of substantial outside review (procedural

problems the agency has subsequently

addressed) no doubt made OSHA vulnerable to

the industry’s representations at the time about

“the difficulties” of compliance. Nonetheless,

there was no real field evidence available then

showing how industry plants could achieve the

PEL, and it is not clear that this miscalculation

could have been straightforwardly remedied at

the time.

OTA’s examination of the 1978 Occupational

Lead standard focused on an industry sector (secondary smelting) where compliance was particu-
Chapter 3 Discussion of Evaluation Findings | 65

larly challenging (given the relatively high level

of existing exposures, the substantial extent of

process and work practice changes required, and

the highly competitive nature of the industry).

The PEL and associated mandate for compliance

chiefly through engineering controls were recognized to be technology forcing—but for which

OSHA sought to compensate with a relatively

long time allowance for compliance, five years.

To date, comparatively few of the engineering

controls expected—and, in fact, commanded—

by the 1978 standard have been adopted. The

level of lead in workers’ blood has come down

markedly since the late 1970s, the result of both

a systemic reduction in environmental lead levels

(driven by various EPA standards) and the adoption by secondary smelters of OSHA-mandated

controls such as protective clothing, respirators,

and measures enabling improved personal

hygiene. Nevertheless, airborne levels of lead in

the industry’s workplaces still remain quite high

relative to the promulgated PEL, reflecting the

very slow rate of progress in adopting engineering controls.

OSHA recognized at the time of the rulemaking that PEL compliance based on engineering

controls would be a challenge for the secondary

smelters sector (particularly in blast furnace

areas). Also, the agency’s field enforcement of

the standard to date has been “complex”—pressing for exposure improvements on a case-bycase basis, but apparently tolerant of the difficulties encountered in adopting engineering controls

to the full extent literally specified by the standard.

Still, there is little in the record to suggest that

OSHA’s feasibility analysis in the rulemaking

sufficiently appreciated the implications of the

largely simultaneous compliance burden

imposed by the OSHA standard and the aforementioned EPA regulations. Moreover, the unexpected steep drop in the market price for lead

(which remained depressed throughout much of

the 1980s) made the kind of spending on engineering controls anticipated by the rulemaking

for PEL compliance all the more difficult. Furthermore, the expected “new technology” that

provided part of the rationale for the “technology

forcing” character of the standard proved evanescent—the single U.S. secondary smelter using

the Bergsoe process went bankrupt in the mid1980s, and hydrometallurgy still remains “on the

horizon” (much as it was characterized in the late

1970s).

Knowledgeable observers disagree in their

appraisal of the adequacy of the rulemaking’s

feasibility analysis for the secondary smelters

sector. Clearly, the outcomes to date differ from

the rulemaking’s expectations in significant

respects. The rulemaking’s analysis appears to

have understated the challenge that compliance

would pose for this sector. Yet the large and sustained drop in the market price of lead was obviously an influential and largely unexpected

factor in this difficulty.

■ Nonetheless, if the cases examined are

judged on the basis of the accuracy with

which feasibility was determined, OSHA’s

rulemaking estimates appear in a more

favorable light.

As already discussed, OSHA currently conducts its rulemaking examinations of control

technology and regulatory impacts chiefly to

demonstrate that the provisions of an intended

standard are generally feasible, both technologically and economically, for affected industries.

Hence examining whether or not feasibility was

correctly judged and whether the analytical foundation was adequate to withstand judicial scrutiny arise naturally as criteria for evaluative

comparisons.

As table 3-5 summarizes, OSHA correctly

judged technological feasibility in seven of the

eight cases examined. A similar scoring of economic feasibility showed six correct judgments

out of the eight cases examined. Furthermore, in

all four of the cases subsequently challenged in

court, OSHA’s promulgation determinations

were affirmed.
66 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

The exceptions are obviously few. As indicated earlier, the erroneous economic feasibility

determination regarding the 1988 amendment to

the Mechanical Power Presses standard stemmed

principally from an unexpected discontinuity in

one key aspect of the business environment.

However, it appears likely this oversight could

have been avoided if portions of the analysis had

been more up-to-date. The verdict on the feasibility judgment in the 1978 Occupational Lead

standard is less conclusive (and, perhaps, less

representative), because the rulemaking was

atypically complex both in the making and in the

subsequent implementation.

Some further comment is needed, however, on

matters beyond what is directly apparent in the

table. In three of the cases—the 1978 Cotton

Dust, the 1984 Ethylene Oxide, and the 1987

Grain Handling Facilities standards—there was

substantial debate in the course of the rulemaking regarding the feasibility of control requirements more stringent than what the promulgated

rule finally contained.

In the Cotton Dust rulemaking, some stakeholders argued for a substantially more stringent

PEL (100 μg/m3

, rather than the 200 μg/m3 established) in yarn-manufacturing operations (the

earlier and dustier stages of production). OSHA

TABLE 3-5: OSHA’s Rulemaking Estimates vs. Actual Outcomes

Accuracy When Estimates Are Judged as Feasibility Determinations

Did OSHA correctly judge the 

technical feasibility of final 

rule?

Did OSHA correctly judge the 

economic feasibility of final 

rule?

Did OSHA’s rationale and 

evidence withstand 

subsequent judicial review?

Vinyl Chloride

(all significantly affected sectors)

Yes Yes Yes

Cotton Dust

(all significantly affected sectors)

Yes Yes Yes

Occupational Lead Exposures

(secondary smelters)

Unclear—the events to 

date confirm the 

agency’s rulemaking 

expectations in some 

aspects but not in others

Unclear—but as events 

have unfolded, costs 

seem to have been a 

more serious burden in 

some respects than 

expected

Yes

Ethylene Oxide

(hospitals)

Yes Yes Not challenged

Formaldehyde

(metal foundries)

Yes Yes Not challenged (at least, 

not on feasibility grounds)

Grain Handling Facilities

(all significantly affected sectors)

Yes Yes Yes

PSDI Power Presses

(all significantly affected sectors)

Yes No—but only because of 

one very significant 

oversight

Not challenged

Powered Platforms

(all significantly affected sectors)

Yes Yes Not challenged

SOURCE: Office of Technology Assessment, drawn from tables 3-2 and 3-3 earlier, and from Appendix A.

NOTE: In rulemakings, OSHA is obligated to provide evidence that an intended standard is generally feasible (both technologically and economically) for the establishments in an affected industry to successfully undertake (see Chapter 2, box 2-1). In this chart, a “yes” rating indicates that OSHA’s final estimates provided a favorable appraisal of feasibility at promulgation and the post-promulgation evidence indicates

that the industry predominantly did successfully adjust to the compliance requirements.
Chapter 3 Discussion of Evaluation Findings | 67

recognized that some plants had indeed achieved

the more stringent exposure limit in some operations. The agency concluded, however, that there

was no evidence that such a PEL could be realized consistent with the “most plants, most operations, most of the time” threshold normally

employed in setting standards—and, on this

basis, rejected the 100 μg/m3 PEL as technologically infeasible.

The available post-promulgation evidence is

generally regarded to confirm OSHA’s rulemaking judgment on this matter. The retrospective

research conducted in the early 1980s (several

years after the standard took effect), which

examined the textile industry’s ongoing adjustment to the standard, could not find evidence that

new control capabilities had become available in

the interlude that would have made a substantially tighter PEL widely achievable.

In both the Ethylene Oxide and Grain Handling Facilities rulemakings, OSHA acknowledged that the compliance requirements that

were promulgated did not fully remove significant risk, because of feasibility constraints.

OSHA’s rulemaking judgment in Ethylene

Oxide was narrowly accurate at the time, but was

eroded by improvements in (exposure measurement) technology comparatively shortly after the

standard’s enactment. In Grain Handling Facilities, political influences abruptly truncated the

policy options considered, and the limit of control feasibility was only preliminarily examined,

despite the continued existence of a substantial

safety risk. Both of these circumstances illuminate policymaking weaknesses that are intrinsic

to the agency’s feasibility analysis procedures—

and are discussed at greater length later.

■ A number of larger lessons are suggested by

these comparative findings:

Based on the cases examined here, OSHA’s

rulemakings are not generally imposing an

unworkable compliance burden on industry. In

six of the eight cases considered (Vinyl Chloride,

Cotton Dust, Occupational Lead, Ethylene

Oxide, Formaldehyde, and Grain Handling),

industry stakeholders and their representatives

argued in the course of the rulemaking (modestly

to vigorously, depending on the case) that compliance would pose unworkable problems. The

stated reasons included such arguments as the

requirements were not technologically feasible;

were likely to impose unworkable production

cost increases; were likely to force many establishments out of business or unhinge the competitive structure of the industry; or were likely to

impose a significant inflation penalty on the

national economy.

For the most part, the post-promulgation reality observed in this project’s case study standards

proved much the opposite of these representations.31 In almost all these cases (the Occupational Lead standard excepted), the industries

that were most affected achieved compliance

straightforwardly, and largely avoided the

destructive economic effects invoked by their

rulemaking arguments. Very few companies left

the industry chiefly because of the new compliance requirements. And, in a good many of the

cases, the actual cost burden of compliance

proved considerably less than OSHA’s final estimate—about one-quarter the estimate in Vinyl

Chloride, one-third in Cotton Dust, and one-half

in Formaldehyde (metal foundries).

Furthermore, in half of the eight cases examined, the standard stimulated changes in the production technology of affected industries that

yielded benefits beyond a means for health and

safety hazard compliance. In Vinyl Chloride,

several of the principal industry members capitalized on the altered business and regulatory setting to commercialize innovative processes for

polyvinylchloride polymerization, which

enhanced manufacturing productivity, allowed

31 Again, given the nature of the selection process employed, it is not appropriate to view the sample of cases examined by this study’s

retrospective research as necessarily representative of all OSHA’s rulemakings to date. Nonetheless, the set of cases oversamples both standards which were anticipated to be comparatively costly and pose difficult control challenges and industries where such concerns were more

or less at their worst. Thus, if anything, the general import of this section’s findings is all the stronger. 
68 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

better rationalization of material inputs, largely

eliminated the need for manual reactor cleaning

(a prime source of high exposures for the workforce), and provided a new source of income to

the technology’s developers through licensing

arrangements. In Cotton Dust, OSHA’s mandate

for greater dust control, combined with a strong

need for more competitive production capacity,

drove much of the textile industry to accelerate

investments in modern production equipment—

this modernization yielded improvements in

manufacturing productivity and product quality

while providing a more cost-effective means to

bring dust levels within the terms of compliance.

In the hospital sector, the considerable concern about occupational Ethylene Oxide exposures triggered by OSHA’s rulemaking prompted

the eventual development and commercialization

of a number of significant improvements in control technology, including substantially improved

devices to measure low-level worksite exposures

and a new generation of sterilizer units with

built-in exposure control functions (at little real

increase in cost). In the metal foundries industry,

the need to lower formaldehyde exposures in line

with OSHA’s revised requirements promoted a

continuing effort by the industry’s principal suppliers to improve both curing processes and the

resin and catalyst formulations used. This effort

yielded processes with greatly reduced formaldehyde emissions and provided the suppliers with

the expertise and products to build successful

markets abroad for low-formaldehyde resins,

improved foundry processes, and the plants

based on them.

Admittedly, however, the experience of the

secondary smelting sector’s adjustment to the

Occupational Lead standard has run much in the

opposite direction of these generally favorable

circumstances. The “new technology” invoked in

the Lead rulemaking has not yet been a serious

force. The bare fraction of the anticipated compliance spending that has resulted to date reflects

chiefly the slow pace of the industry’s investment in the mandated engineering controls.

Overall, the compliance challenge appears to

have been more difficult than OSHA’s feasibility

findings in the rulemaking suggested. It can be

argued that this standard is atypical of OSHA’s

rulemakings—because of the highly competitive

and economically mature character of the industry, the substantial extent of the controls

required, and the “soft” nature of the agency’s

enforcement effort. Nonetheless, the case makes

the point that OSHA’s compliance requirements

are not always easily dispatched or deftly turned

to business advantage.

OSHA’s present procedures for estimating

compliance responses and the associated economic consequences provide considerable room

for actual adjustment outcomes to differ. As

already discussed, the methodological and pragmatic features of OSHA’s usual analytic

approach yield an emphasis on conventional control measures with wide applicability across an

affected industry and relatively little attention to

the options and incentives that the individual

establishments comprising the industry may have

to take one or another of the various compliance

avenues available. By their nature, OSHA’s analyses usually do not seek to explicitly consider the

incentives that an industry’s companies could

have to minimize the economic burden of compliance requirements on the prevailing cost and

profit functions by “working smarter.” Such

actions could include substantial and/or innovative shifts in production processes, via input substitution, process redesign, or product

reformulation.
Chapter 3 Discussion of Evaluation Findings | 69

Because the agency’s normal assumptions

about control measures are usually “conservative” in this way and because the “work smarter”

prospect is not normally explicitly accounted in

analytic estimates, it is reasonable, in principle,

to expect that the actual costs of compliance (for

the “average” establishment or the industry in

aggregate) will in many cases be somewhat (or

even substantially) less than what OSHA’s rulemaking estimates imply.32 And, indeed, such a

circumstance is evident in the outcome of several

of the cases just reviewed above.

Nonetheless, there is another potentially significant effect also at play in the analysis process.

The agency’s cost estimates are typically an

extended and interrelated series of calculations

that depend on characterizations of the process

equipment, work practices, and hazard controls

in place; the incidence of exposures by job categories; the engineering issues involved in reducing exposures; and the unit costs incurred in

making necessary changes. Yet, because of constraints on budget, work calendar, and access to

the industry (as discussed in an earlier section),

OSHA cannot in many cases reliably estimate all

these factors as they are actually distributed

across affected industries and must instead move

ahead with “working averages” and stylized

model plants. Under such conditions, both overestimates and underestimates are conceivable

outcomes (with corresponding biasing effects on

impact calculations). And OTA’s case studies

provide evidence of such errors in both directions.

These two effects—the often “conservative”

assumptions about the control measures adopted

and the prospect of errors in the measurement of

pertinent industry characteristics—make it reasonably likely that actual outcomes (for the

“average” affected establishment or in total

across the industry) will differ from OSHA’s

32 As discussed earlier in Chapter 2, the controls on which OSHA bases its regulatory impact estimates are normally the least-cost measures among all the controls which can clearly be shown to be feasible for the industry as a whole. Of course, for those establishments perceiving the menu of available control choices as coincident with OSHA’s feasible set, it is reasonable (by virtue of being least-cost) to expect

OSHA’s assumed measures to be the most likely outcome. Nevertheless, the compliance terms of OSHA standards generally do not prevent

an establishment from exploiting opportunities to adopt (or invent) a less costly way of complying. 

rulemaking estimates in at least some respects.

But, importantly, measurement errors could

either offset or add to the “conservative”

assumptions bias, thus making it a challenge (in

the general case) to fathom in advance the likely

overall direction of bias in OSHA’s estimates.

Too narrow a concept of the feasible technology can hinder the agency in establishing justifiable health and safety protections. Among the

cases OTA considered, the 1984 Ethylene Oxide

standard illustrates a shortcoming of the

agency’s current feasibility analysis procedures

that can arise when apparent constraints in available technological capabilities are a critical policymaking determinant and there is not an effort

to anticipate reasonably near-term improvements

in relevant technologies.

Health concerns and “significant risk” argued

for a tighter PEL than the 1 ppm level that was

ultimately promulgated. (In the early 1980s,

NIOSH had recommended a 0.1 ppm PEL, in

light of the seriousness of the potential adverse

health effects). The less stringent exposure limit

specified by the standard, which OSHA explicitly recognized in issuing the final standard as

not removing all significant risk, reflected a

binding technological constraint. The exposure

detection capabilities of the day were not able to

measure ethylene oxide with acceptable reliability at substantially lower levels. However, only a

few years (1986/87) after the effective date of the

standard, detection methods that removed this

constraint had been demonstrated, the result of

targeted development efforts by NIOSH scientists and others.

There is little evidence in the record of this

rulemaking that the prospect of reasonably nearterm improvements in this obviously important

capability had been examined. Had this apparently imminent technological development been

more directly considered, the argument of those
70 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

pushing for a tighter PEL in the course of the

rulemaking would, no doubt, have been strengthened.

Feasibility analysis can be short of influence

in driving the consideration of competing policy

options. Aspects of the rulemaking for the 1987

Grain Handling Facilities standard illustrates the

intrinsic weakness of the agency’s normal feasibility analysis routine in compelling the examination of risk reduction targets that may merit

consideration on objective risk reduction

grounds but are hobbled by other considerations.

Between the first consideration of proposals

for the grain handling standard (circa 1983) and

the coalescence of the content of the final rule

(1985-86), the rulemaking shifted, under substantial external pressures (from OMB and, indirectly, from the industries that were principally

affected), from seeking to remove “significant

risk” to the substantially lesser objective of

addressing a level of risk that all parties agreed

was unacceptable. Earlier in the rulemaking, the

feasibility analysis examined options for risk

reduction over a fairly wide range of stringency

(particularly with regard to the level of dust

buildup that triggered cleanup and removal

actions)—from the modest level of hazard reduction finally promulgated, down to a level where

removal of “significant risk” began to be

engaged.

Shortly after the proposal for the standard was

published, strong political influences limited the

examination of options chiefly to verifying the

feasibility of the (not all that stringent) standard

that was ultimately promulgated. OSHA’s analyses performed this task acceptably, and indeed

faced vigorous criticisms from industry stakeholders over the basis for its findings. But the

feasibility analysis routine, by itself, was obviously not able to compel an even-handed, “on the

merits” consideration of more stringent policy

targets that might also have been feasible.

This case is a useful reminder that the

agency’s feasibility analysis process is far more a

“confirming” exercise, oriented toward showing

that a hazard reduction target is generally achievable, and much less an analysis “engine” capable

of driving a search for optimal policy across a

fairly comprehensive set of options with varying

trade-offs. The agency’s current feasibility analysis procedures are certainly consistent with the

statutory mandates. Nonetheless, the aforementioned circumstances in the grain handling rulemaking point to a shortcoming that would appear

to warrant OSHA’s further examination, and perhaps some changes in the accepted norms or procedures to assure that the policy analysis effort

provides all due support for the agency’s overall

health and safety mission.33

■ One additional lesson from OTA’s case

research for this project is that it is surprising

how little systematic information on the

actual outcomes and impacts of the agency’s

standards is available.

OSHA has long operated in one of the most

controversial realms of public policy. Given the

seemingly unending public debate over the burdens and benefits of health and safety regulations

and the likely value in future rulemakings of a

sound understanding of past outcomes, it is surprising how little systematic information documenting the actual effects of the agency’s

standards on regulated industries is available.

There is no end of anecdote and speculation, but

not nearly enough hard data.

33 The aforementioned U.S. Court of Appeals decision in 1991, addressing petitioners’ challenges to the 1989 Hazardous Energy Sources

safety standard (International Union, UAW v. OSHA) provides some useful commentary on this apparent limitation—at least, by parallel

construction. In the 1991 case, the court expressed concern that in the absence of procedural attention to balancing the expected benefits and

costs of a rulemaking, OSHA’s wide policymaking discretion could lead to costly and minimally protective standards. Nonetheless, the other

extreme ought to be an equal concern on the same grounds, that is, more stringent protections achievable through justifiable additional costs.

The essential point is that OSHA’s feasibility analysis—at least as now conducted—does not really have the “backbone” to drive a search for

the “balance” to which the court points. 
Chapter 3 Discussion of Evaluation Findings | 71

Industry’s spending for occupational health

and safety compliance is not covered in the Pollution Abatement Costs and Expenditures

(PACE) survey, administered annually since

1972 by the Department of Commerce’s Bureau

of Economic Analysis.34 The information OSHA

collects in the course of its enforcement activities

(maintained primarily in IMIS files) provides

some field data on outcomes. But this information is relatively narrow in the scope of hazards

covered; addresses chiefly exposure levels; sheds

no real light on actual compliance costs; and

often does not provide a representative sample of

an affected industry.35 OSHA’s FAT/CAT

reports (documenting workplace incidents

involving fatalities or hospitalized injuries—see

discussion earlier in this chapter) and the periodic national surveys conducted by the Bureau of

Labor Statistics and others (see discussion in

chapter 1, box 1-1) provide useful (if not entirely

complete) time series data on workplace fatalities, illnesses, and injuries. Nonetheless, OSHA

does not, in general, have mechanisms in place to

systematically describe (or estimate) the actual

control actions taken by an affected industry in

response to promulgated standards, the new costs

experienced and the effects on productivity, and

the benefits realized (reductions in hazard exposures and adverse health effects, costs avoided,

and improvements in employee behaviors).

This situation is understandable in many

respects. Good answers to these questions

involve substantial data collection at the establishment level and considerable analysis of such

information. Attention must be given to measuring the specifics of the new costs incurred

34 The PACE survey annually collects company-level data on new capital expenditures and annual operating expenses incurred for environmental protection (i.e., EPA regulations) through pollution abatement and related control of wastes. This information is collected by the

Bureau of Economic Analysis chiefly to incorporate pollution abatement expenditures into the U.S.’s National Income Product Accounts. 35 OSHA’s IMIS provides computerized information on a large cumulative number of samples over time, but its utility for new rulemakings is limited since around three-quarters of all these samples concern around a dozen chemicals. In addition, the sampling of establishments

reflects, for the most part, the logic of the agency’s enforcement efforts, rather than a representative sample of the establishments in any

given industry. Furthermore, the data collection provides information on job classifications, exposures, and in-place control technology, but

little on economic considerations.

(including the actual financial effects, appropriately allocating any joint spending for health/

safety compliance and production improvements), the effects on productivity and resource

requirements, the impacts on industry structure

and competition, and the benefits realized from

hazard reduction. Outcomes attributable to

OSHA compliance need to be distinguished from

those arising chiefly from other influences. Furthermore, the number of industries affected

under contemporary OSHA standards is often

quite sizable. These various features of the evaluation problem imply staff and resource requirements for research that are quite sizable, and

probably could not be achieved, within the confines of the agency’s present (tightly constrained) budget, without undesirably diverting

resources from other, higher-priority activities.

Nevertheless, OSHA would, by all appearances, gain considerably from having informed

answers to provide—to Congress, to the public,

to those with a stake or influence in future rulemakings—regarding the hazard reductions

achieved, the costs truly imposed and avoided,

and other benefits realized. In this vein, it

deserves to be carefully explored whether there

are avenues within the agency’s reasonable grasp

that could be pursued to build a more substantial

base of information than presently available on

actual post-promulgation outcomes.36

This might, for example, involve monitoring

the information available in trade journal articles

documenting control experiences, drawing on

other agencies’ studies (such as from NIOSH or

EPA), and conducting discussions (through focus

groups or more informal one-on-one conversa36 To be sure, OSHA has recently begun to think about this matter. See, for example, Savant Associates, Inc., Princeton, NJ, “Design of a

Prospective Method to Review the Impact of an OSHA Standard,” unpublished draft contract report, prepared for the Office of Program

Evaluation, Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC, Oct. 21, 1993.
72 Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

tions) with knowledgeable participants in

affected or related industries (such as the suppliers of production or control equipment). In addition, OSHA could make a more regular effort to

conduct retrospective case studies akin to the few

that are presently available (such as those performed or drawn upon for this report). Furthermore, there may be ways to establish acceptable

mechanisms for more systematically collecting

data on outcomes (including control measures

adopted, compliance spending, changes in hazard exposure levels) as a component of the compliance content and implementation of new

standards .37

❚ Organizational and Resource

Considerations

OTA devoted some effort in the course of the

study to examining OSHA’s internal organization and budget resources, as they relate to the

conduct of technology and regulatory analyses.

The findings reported below derive chiefly from

a series of interviews with current and past

OSHA staff and with other observers familiar

with the agency’s tasks and procedures, and from

an examination of internal and public information on the agency’s budget.38

■ The level of resources supporting the

agency's technology and regulatory analysis

efforts is hard to precisely pin down, but it is

apparent that demand has long been substantial and the resources thin.

Congress’s annual appropriation to support

OSHA’s various activities (standard setting,

enforcement, education/assistance, statistics,

administration, and so on) shows a progressive

expansion over the past 20 years on a currentdollar basis—from around $100 million in 1975

to somewhat over $310 million in 1995 (figure 3-

1 and table 3-6). Nevertheless, when the figures

are adjusted for inflation, it is evident that the

agency has had to operate under a generally

tighter budget since the funding “high water

mark” of the late 1970s and very early 1980s.

Expressed as constant 1987 dollars (see figure 3-

1), the agency’s annual appropriation was some-

$350

1 1 I I 1 1 1 I I I I I I 1 I I I ,

1975 1980 1985 1990 1995

SOURCE: Budget of the United States, various years.

37 This possibility is considered in more detail in Savant Associates’ 1993 report for OSHA, pp. 42-46.

38 For a more detailed discussion, readers should consult the project research paper prepared on this topic: Robert F. Stone, Econotron .

Inc., Framingham, MA, “An Evaluation of OSHA’s Resources for Regulatory Analysis,” unpublished contractor report prepared for the

Office of Technology Assessment, U.S. Congress, Washington, DC, March 1995.
Chapter 3 Discussion of Evaluation Findings 73

what above $260 million in the 1979-81 period,

but has dropped to the $230 million to $245 million range since the later 1980s. In addition, the

agency’s permanent staff has declined from a

total of around 3,000 full time equivalent (FTE)

employees in 1980, to about 2,300 at the end of

1994-a cumulative decrease of about 23 percent.

As this report is being completed OSHA’s

budget for fiscal year (FY) 1996 remains a matter of vigorous debate. The President’s February

1995 budget proposal outlined an appropriation

of about $347 million (see table 3-6), a currentdollar expansion over the FY 1995 level of

around 11 percent, or 7 to 8 percent on an inflation-adjusted basis. However, substantial reductions over the FY 1995 level have been proposed

in Congress. In August 1995, the House committee responsible for the funding of labor, health

and human services, and education programs

passed an appropriations bill placing OSHA’s

FY 1996 funding at $264 million—about a

16 percent reduction from the level in FY 1995

and, in inflation-adjusted dollars, a level somewhat below that prevailing in 1975. Nevertheless, Senate and conference committee action on

this matter remains in the future.

Put in a broader perspective, the growth of

OSHA’s budget since 1980 in inflation-adjusted

dollars has not kept pace with the expansion of

the U.S. workforce. The agency’s budget per

worker (across the civilian labor force) increased

throughout 1970s, peaking at approximately

$2.50 per worker (1987 dollars) in 1979

(figure 3-2). Since then, it has dropped steadily,

to less than $1.80 per worker (1987 dollars) in

1994—a cumulative decline of almost 30 percent.

Tallying the annual resources the agency

devotes to regulatory analysis activities is not

entirely straightforward, given the wide involvement (as noted in the previous chapter) of various agency and DOL offices in the process. In

addition, on several past occasions, OSHA has

secured some supplementary funding for its rulemaking-related research from other agencies, via

interagency budget transfers (e.g., from the

Department of Energy for the ongoing Ergonomics rulemaking and from EPA for the 1989 Hazardous Waste Operations and Emergency

Response Standard).

1975 1980 1985 1990 1995

SOURCE: Calculated by Office of Technology Assessment, 1995.
74 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

If only the funding for OSHA’s Office of Regulatory Analysis (ORA) is considered, however,

the agency’s principal resource for regulatory

analysis, the overall level of available resources

in inflation-adjusted dollars (including funding

for ORA’s staff and for outside research contracting) has ranged from somewhat under $2

million to somewhat over $5 million annually

since 1980 (figure 3-3). Obviously, this represents a small fraction of the agency’s $230 million to $260 million total annual budget over the

same period. Since the later 1980s, moreover, it

is apparent that ORA’s resources have dropped

sharply. In addition, over the same period,

ORA’s professional staff (chiefly economists)

has declined from 16 or 17 FTEs to less than a

dozen.

The observers with whom OTA spoke (all

long familiar with the agency’s operations) characterized the resources available for technology

and regulatory impact analysis as “too thinly

spread” and the necessary work often undertaken

“on a shoestring.”39 The general appraisal provided was that this situation has inappropriately

limited the scope of the analytical effort that can

be mounted in any given rulemaking. Reportedly, the resource constraint, on some occasions,

has forced some undesirable “triaging” of the

available budget according to the estimated

degree of controversy associated with a rulemaking and, in a few cases, prevented otherwise

appropriate analyses from being undertaken.

■ The existing resource constraints notwithstanding, developments on the horizon portend the need for an even larger regulatory

analysis effort.

39 Meaningful comparisons with the circumstances in other agencies that have health, safety, and environmental regulatory responsibilities are not easy, as differing statutory and programmatic mandates prevail (and thereby differing analytic requirements). However, one of

the reasonably parallel cases OTA could identify is OSHA’s 1992 Process Safety Management standard and EPA’s Risk Management Plan

to comply with the 1990 Clean Air Act Amendments. Here OSHA relied on 3 full-time staff and $200,000 for outside contract research to

conduct its regulatory analysis; EPA, by considerable contrast, has, to date, used 10 full-time staff and $4 million for outside contracts.

TABLE 3-6: OSHA Budget Allocations

Appropriations, Direct Programs, Selected Years, 1980-1996

$ (thousands)

Authority 1980 1985 1990 1995E

President 

1996P

House 

1996P

Safety & health standards 6,510 5,483 7,581 9,221 9,471 8,354

Enforcement

 Federal

 State programs

78,048

42,360

86,452

53,021

119,138

59,827

145,323

70,615

155,854

75,915

98,000

65,319

Technical support 13,024 12,285 16,467 19,068 21,668 17,467

Compliance assistance 32,176 36,242 35,272 45,189 55,332 53,601

Safety & health statistics 6,906 21,036 21,945 15,640 20,669 14,707

Executive direction & 

administration

7,370 5,125 6,838 7,444 7,594 6,537

Total 186,394 219,644 267,068 312,500 346,503 263,985

SOURCE: 1980, 1985, 1990: Budget of the United States. 1995: estimate from President's FY 1996 Budget (Feb. 1995). 1996: fiscal 1996 proposals available to date—President's FY 1996 Budget, U.S. House committee bill (Aug. 1995).
Chapter 3 Discussion of Evaluation Findings 75

Increased pace of rulemaking. From its inception in 1971 through 1992, OSHA has completed

an average of about four rulemakings a year (a

rate roughly true for the 1985-1992 period as

well). However, the agency’s present director

has envisioned a more ambitious schedule—a

pace closer to 10 final rules and 10 proposed

rules per year. Whether such a goal can still be

pursued, given the large shift of the political balance in Congress in January 1995, is unclear. But

meeting such a schedule, without dropping

below the threshold of acceptable analysis

defined by the courts, will, by all appearances,

compel the agency to commit significantly

greater resources to the existing regulatory analysis effort.

New analytic support for priority setting.

OSHA’s present senior management has indicated a strong desire to establish an ongoing system for setting future rulemaking priorities.

(Such a system would respond to what many

observers have identified as a long-standing deficit in the agency’s policy-planning capabilities.)

The system will need substantial data resources

to identify and compare the levels of risk associated with various existing workplace hazards.

There may also be a role for some initial, “big

picture” regulatory assessments, examining the

availability of technologically and economically

feasible opportunities for removing/reducing significant risks. Such pre-rulemaking analysis

activities, should they be pursued to any substantial extent, would represent an addition to the

agency’s existing technology assessment and

regulatory analysis efforts.

Increased rulemaking controversy. OSHA is

obliged to consider all credible statements submitted to the rulemaking record. In the case of

comments on the agency’s regulatory impact

findings and estimates, handling this task has

often required considerable effort from ORA

staff, and can create the need for significant

review and potential revisions in the agency’s

analytical findings and estimates. In the past,

most of the agency’s rulemakings elicited fewer

than 1,000 comments. Until recently, the 1991

Bloodborne Pathogens standard held the record,

with approximately 3,000 written comments, but

the ongoing rulemaking on Indoor Air Quality

could ultimately total some 45,000 to 50,000

comments. Before the “hold” recently established by the agency’s director (in June 1995),

the Ergonomics rulemaking also was generating

a large volume of comments. Should these recent

cases prove to more nearly define the norm for

future rulemakings, the added strain on the

resources available for regulatory analysis is

obvious.

■ ORA internal

❏ Contracting

J I I I

1980 1985 1990 1995

SOURCE: OSHA, Office of Regulatory Analysis, 1994
76 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

An enlarged scope for judicial review. Congress could well soon choose to enlarge the

scope of the agency’s rulemaking findings and

analyses open to review by the courts, through

changes to the terms of the 1980 Regulatory

Flexibility Act or a broadly encompassing scope

for review established for all federal agencies’

regulatory impact analyses as an outgrowth of

the ongoing “regulatory reform” debate.

To date, OSHA’s analyses of regulatory

impact on small businesses (and other relevant

small organizations), in line with the Regulatory

Flexibility Act, have been specifically excluded

as a possible topic for attention by reviewing

courts. Legislation to remove this restriction was

introduced but unsuccessful late in the 103rd

Congress; differing versions passed both the

House and Senate, but joint action died in conference as the term ended. Nevertheless, similar

bills have again been introduced in the current

Congress.40

OSHA’s regulatory impact documents already

provide rather detailed analyses of the expected

impacts on small businesses.41 But should such

legislation become law, the threat of “substantial

evidence” review by the courts extended to this

area of analysis could drive OSHA to enlarge the

analytic procedures or documentation, to ensure

the ability of a rulemaking’s record to withstand

this widened scrutiny.

The “regulatory reform” efforts now underway in both the House and Senate also could

expand the scope of the court’s review of agency

rulemakings (see earlier discussion in this chapter). The specific provisions vary in the several

bills forwarded thus far, but most seek (among

40 United States Code, Section 611(b) of Title 5 places Regulatory Flexibility Act-related analyses off-limits to judicial review. In the

103rd Congress, H.R. 830 and S. 490 both proposed removing this restriction and made their way to conference—but a corresponding new

law did not eventually emerge. Similar bills were placed early in the current Congress (104th)—H.R. 937 (introduced February 1995, and

referred to the Committee on the Judiciary and the Committee on Small Business), S. 350 (introduced February 1995, and referred to the

Committee on the Judiciary). In addition, removal of the judicial review constraint and some expansions in the required content of Regulatory Flexibility analyses have been addressed in many of the various proposals for “regulatory reform” now being considered in both chambers.41 For some time, OSHA’s feasibility and regulatory impact analyses, in line with the “regulatory flexibility” mandate, have typically distinguished establishments with fewer than 20 employees from larger ones. (Some analyses have examined a larger number of size classifications.) Normally, the agency conducts its economic feasibility and industry impact analyses in each of these size-stratified groups and

considers the differential results (if any are found to exist) in its final rulemaking actions.

other objectives) to codify provisions on regulatory impact analysis provisions in line with what

the various executive orders have long required,

and to make the findings and policy conclusions

from these analyses fully subject to potential

scrutiny by the courts (which has not been the

case to date with the executive order-mandated

analysis requirements).

OSHA already prepares most of its analyses at

a considerable level of detail and with substantial

documentation. But widened judicial review

clearly brings with it the prospect of additional

agency analysis and documentation to ensure the

adequacy of a rulemaking’s record in this revised

procedural setting.

Expanded analysis of control options and

impacts. The various earlier observations in this

report commenting on the “narrow” content of

the control option and impact analyses that

OSHA now prepares for rulemakings imply a

number of avenues along which existing procedures might be enlarged, including more comprehensive quantification of the full range of

regulatory benefits expected, greater emphasis

on forecasting expected outcomes in preparing

feasibility and regulatory analyses, and a systematic effort to monitor the potential of advanced

and innovative technologies in providing options

for reducing workplace hazards.

Various events could drive the agency to

embark on such improvements—such as a new

judicial or congressional push toward greater

attention to benefit-cost balancing in setting

compliance requirements, an increase in rulemakings involving a technology-forcing component, or the emergence of a combined effort with
Chapter 3 Discussion of Evaluation Findings | 77

EPA to examine the frontier of technological

options available for joint “pollution prevention”

and safety/health hazard reduction in the workplace. Nonetheless, most such expansions in the

inquiry represent a deepening (in concept, methodology, and data collection) of the scope of

analysis now implemented, and, as such, would

require significant expansion of the agency’s

existing analytic effort.

■ A number of ways to improve the agency’s

existing procedures for conducting and using

regulatory analyses appear to merit consideration. (Indeed, some are already the focus of

ongoing agency initiatives.)

Improved interoffice integration. In principle,

OSHA has always used a team approach for rulemakings (typically consisting of a health or

safety scientist, an engineer, a lawyer, and an

economist), with members cooperating in

designing and analyzing the intended regulatory

action, and bringing the resources of their respective directorates or offices to bear as needed. In

recent years, however, this integration has been

less inclusive than intended, with ORA staff

(mostly economists), on occasion, operating in

some isolation.

According to some insiders with whom OTA

spoke, this circumstance has contributed to tensions among various agency offices over the

preparation of rulemaking actions and has

impaired the design and conduct of the regulatory analysis effort. Although, conversely, others

noted that some tension was inevitable between

those agency staff chiefly responsible for defining standards and those charged with considering

regulatory impacts, and that a key leadership task

is to manage these differences constructively and

to the general advantage of the rulemaking.

OSHA’s current senior management, apparently appreciating the significance of these matters, has recently affirmed the importance of the

integrated team approach and seems to recognize

the need to better manage the coordination

among staff with contrasting responsibilities.

Expanded interaction with NIOSH. NIOSH is

widely regarded as a capable and credible

resource in the technical and scientific aspects of

the industrial health and safety arena. OSHA has

long made use of NIOSH research in its rulemakings—chiefly through the Institute’s Health Hazard Evaluations (HHEs), which, for the most

part, are conducted and published independent

of, and in advance of, OSHA’s rulemakings.

In the past, there have been a number of reasons why OSHA has not been able to draw more

substantially on NIOSH’s research capabilities.

In part, schedules did not coincide; NIOSH typically required two to three years of lead time to

prepare a report on a specific hazard, whereas

OSHA was unable to provide information on its

rulemaking schedule any further than six months

in advance, and required products with a much

shorter calendar for completion. Moreover, for

much of the 1982-92 period, the OSHA Administrator and the NIOSH Director clashed frequently on policy matters; as a result,

interagency communication and cooperation

were limited. Furthermore, the geographic distance (until its recent relocation to Washington,

DC in 1993, NIOSH’s main office was located in

Atlanta, Georgia; whereas OSHA is in Washington, DC) and executive branch separation

(NIOSH is formally a part of the Department of

Health and Human Services and OSHA resides

within the Department of Labor) have not

helped.

For the past two years, however, OSHA and

NIOSH have been working to improve cooperation. OSHA is also trying to make better use of

NIOSH’s research capabilities during the course

of standard setting. And NIOSH has been seeking to expand its research activities in the important area of control technologies.

Links with new-technology research at EPA.

One seemingly productive area for expanded

OSHA interaction with EPA is in the general

area of “pollution prevention.” The ongoing

efforts to encourage industry to adopt technologies in this vein have a natural integration with

efforts to reduce workplace safety and health

hazards. The Office of Pollution Prevention in

EPA’s Office of Pollution Prevention and Toxics

has become a rich source of data on inherently
78 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

cleaner (less polluting) technologies, through

information generated by EPA labs (in Cincinnati and Research Triangle Park) and industry.

Opportunities to expand OSHA’s use of and participation in such efforts deserve to be more substantially considered.

Inputs from the DOL Policy Office. Several

experienced observers of OSHA noted to OTA

that in past rulemakings, the Department of

Labor’s Office of Policy (see figure 2-1 in the

previous chapter) had been a useful reviewer of

OSHA’s regulatory impact analysis drafts, and

had provided valuable technical advice on regulatory and economic research issues. However,

deep and successive budget cuts have reduced

this Office’s research budget from close to $5

million annually early in the 1980s to less than

$150,000 more recently. The result has been that

the much diminished technical staff is now able

to provide only minimum technical support, and

drafts of regulatory analyses can be reviewed

only in exceptional cases. Although this is apparently not yet a major item on the OSHA leadership’s action list, there seems to be significant

support within OSHA for restoration of enough

of the budget to enable the office to reassume its

past advisory and review roles concerning matters of regulatory analysis.

Interdisciplinarity at the Office of Regulatory

Analysis. There was some comment on the overwhelming predominance of economists on

ORA’s professional staff. Clearly, a good deal of

this is warranted, because a primary thrust of

ORA’s role in rulemakings involves examining

the economics of proposed standards on affected

industries and the larger economy. Nonetheless,

a portion of the responsibility also involves

assessing control technologies—an activity that

would certainly appear to benefit from staff with

skills in engineering disciplines (industrial,

chemical, mechanical, and so on) or, ideally,

combined skills in engineering and economics/

business. Even if outside contractors, NIOSH, or

staff from the Safety or Health Directorates continue to be used to analyze compliance technology, it would be an advantage for ORA to have

an in-house staff capable of designing and evaluating research on technology-related topics. Furthermore, should ORA seek to become more

substantially involved in gauging the potential of

advanced technologies and industrial innovations

to address workplace safety and health hazards,

this kind of multidisciplinary mix would surely

be essential.

❚ Observations from Benchmarking

As a basis for comparison and a source of suggestions on possible avenues for improvement,

OTA examined what other government organizations undertake in the way of assessments of control technologies assessments and analyses of

regulatory impacts to support their rulemaking

actions. This inquiry compared OSHA with other

federal rulemaking agencies and with the government safety and health organizations of some

of the major international trading partners of the

United States.42 The findings reported in this

section are based chiefly on discussions with

agency staff involved in the preparation and use

of the analytic material, review of relevant scholarly literature, and various inputs from other

knowledgeable commentators.43

■ OSHA’s regulatory analysis tasks are, in

some respects, more complicated than those

of its counterparts elsewhere in the U.S. federal bureaucracy. Nonetheless, the agency’s

work is generally comparable with the best

42 The other U.S. regulatory agencies considered by this analysis included the Consumer Product Safety Commission (CPSC), Environmental Protection Agency (EPA), Federal Aviation Administration (FAA), Food and Drug Administration (FDA), Mine Safety and Health

Administration (MSHA), National Highway Traffic and Safety Administration (NHTSA), and Nuclear Regulatory Commission (NRC). The

foreign nations examined included Canada, France, Germany, Japan, Britain, and the European Community. 43 OTA’s findings on this topic are discussed at greater length in a project working paper prepared on the topic: D. Butler, “OSHA’s

Brethren—Safety and Health Decisionmaking in the U.S. and Abroad,” Office of Technology Assessment, U.S. Congress, Washington, DC,

September 1995.
Chapter 3 Discussion of Evaluation Findings | 79

practices of other health and safety regulatory agencies.

In many ways, OSHA’s experiences as a

health and safety regulatory agency are not

unusual. The other agencies OTA examined have

similarly stringent requirements for technical and

economic feasibility analysis, imposed by statute

and its judicial interpretation, executive orders,

or internal agency policy.44 The scrutiny OSHA

has received from the Congress, the courts, the

executive branch, and regulated parties also is

unremarkable. Many agencies have been specifically instructed to promulgate regulations, have

had their budgets made contingent on particular

actions, or have been subjected to great pressures

to modify or abandon proposed regulations. Furthermore, two particular agencies (the Consumer

Product Safety Commission and the National

Highway Traffic and Safety Administration)

appear to have changed their overall regulatory

focus in response to judicial interpretation of

their statutes.45

Nevertheless, some aspects of OSHA’s statutory mandate do make its job more complicated

than that of many other U.S. health and safety

regulatory agencies. Three particularly significant differences are discussed here.

OSHA is one of the few agencies that regularly promulgate regulations applying to a wide

range of businesses, from industrial giants to

“mom-and-pop” operations. This situation complicates the task of evaluating the impact and feasibility of proposed regulations. It can also result

in standards that may be feasible and acceptable

to a majority of regulated parties but unworkable

or otherwise unacceptable to a few—a statutorily

permissible, but nonetheless procedurally problematic, situation. EPA regulations under the

Toxic Substances Control Act (TSCA) can have

44 Indeed, some form of feasibility analysis appears to be routinely carried out for the vast majority of health and safety regulations.

Where there are agency-to-agency differences, they more nearly relate to the extent to which the enabling statutes allow feasibility considerations to be factored into regulatory decisions. 45 See, for example, J.L. Mashaw and D.L. Harfst, “Regulation and Legal Culture: The Case of Automobile Safety,” Yale Journal on

Regulation 4(2):257–316, Spring 1987.

a similarly broad impact, but very few regulations have been issued under the act’s authority,

and those that have, have been litigated and

delayed in a manner analogous to that experienced by OSHA.

None of the other agencies examined by OTA

are required to demonstrate that exposed populations face a “significant risk” before promulgating a regulation to address the hazard. Some

analysts of the agency’s policy decision processes have characterized this requirement

(which was imposed by a 1980 Supreme Court

interpretation of OSHA’s enabling statute—see

chapter 2), as “a significant impediment to the

effective implementation of OSHA’s statutory

mandate.”46 CPSC and EPA regulations under

TSCA have a similarly stringent requirement

(“unreasonable risk”), but both of these agencies

have other regulatory instruments they can bring

to bear.

Finally, in many circumstances, OSHA cannot

use a regulatory tool that other agencies may

apply when hard-to-control hazards are identified. Although the option can be difficult to

implement, other agencies often can choose to

directly eliminate a hazard by having it prohibited, recalled, or otherwise withdrawn from use.

This “banning” option provides a means to deal

with a hazard when no technically and economically feasible alternative can be identified. However, banning is simply not possible for many

hazards under OSHA’s regulatory purview. Lead

processing and cotton milling, working outside

high-rise buildings, and fixing broken industrial

equipment cannot be banned, eliminated from

the workplace, or made so costly as to no longer

be practical. OSHA has no choice but to find an

approach that is both achievable and protective

of worker health and safety.

46 S.A. Shapiro and T.O. McGarity, “Reorienting OSHA: Regulatory Alternatives and Legislative Reform,” Yale Journal on Regulation

6(1):1989, p. 46.
80 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

OTA did not conduct an exhaustive review of

the practices that other health and safety regulatory agencies use to conduct regulatory impact

analyses, but our broad survey suggests that

OSHA’s work is generally comparable with the

best practices of other agencies in the U.S. federal government with similar missions. However,

as elaborated more fully later, OTA believes that

some of the more innovative approaches EPA is

now pursuing may be worth OSHA’s consideration.

■ OSHA’s regulatory analysis tasks are far

more demanding than those of its foreign

counterparts because the United States

requires far more detailed economic and

technical feasibility analysis to promulgate

occupational safety and health regulations.

The U.S. approach generally is based on the

principle that quantitative analysis provides an

objective basis for regulatory policymaking. U.S.

regulators must prepare and defend detailed

empirical justifications for regulations in order to

demonstrate that the choices meet statutory

intent and are rationally related to the facts at

issue. These analyses also provide the basis for

defending the decision should a later challenge in

court arise. Such justifications can not only be

costly and time consuming, they are also vulnerable to second guessing because the science and

analyses underlying them cannot usually be

made airtight. While this second-guessing may

be motivated by disagreement over the soundness of an analysis, it may also be used as a

means of disputing an outcome or delaying

implementation of a decision for political, economic, or social reasons.

One or another of a pair of contrasting

approaches is used in the other nations OTA

examined. Some grant greater autonomy to regulators to make occupational safety and health

decisions, typically with the advice of elite

authorities designated by the government. Others

employ some form of consensual mechanisms

for promulgating occupational safety and health

standards. In this second system, stakeholders—

business, labor, and at times, other groups—

work with government regulators to identify the

level and manner in which hazards are controlled. Feasibility (technological and economic),

while an important consideration in such proceedings, tends to be dealt with qualitatively

rather than quantitatively. Where regulators act

autonomously, feasibility is more nearly treated

as a matter of professional judgment than as an

analytical determination. In stakeholder-based

systems, participants assess feasibility in order to

inform their bargaining positions and in order to

be able to factor feasibility constraints into their

negotiating stances and into the compromises

they are willing to accept. Explicit engineering

and economic analyses do not, however, drive

the decisionmaking process under either regime.

■ Occupational safety and health regulators in

other nations seem to be able to promulgate

standards more quickly than OSHA and

without the discord and rancor that often

arise in OSHA proceedings. However, applying the means used elsewhere to limit conflict

in U.S. rulemakings is problematic.

The form and operation of each nation’s regulatory governance are functions of a complex set

of interrelated political, social, historical, and

cultural factors. In the United States, these influences combine to create a system that emphasizes public accountability for decisionmakers

and respect for an individual’s right to question

the actions of the state. The other countries studied by OTA employ regulatory mechanisms that

are based on either respect and deference for

government authority, or emphasize consensus

and cooperation among the parties most affected

by regulation.

Several practical implications flow from the

differences in the structures of the regulatory

systems. The means used to constrain bureaucratic autonomy and to maintain oversight in the

United States—promulgating prescriptive legislation, imposing administrative procedures on

rulemaking, overriding bureaucratic decisions

through legislation or executive order, examining

agency actions in public hearings, and using the

budgetary process to compel or end actions or to
Chapter 3 Discussion of Evaluation Findings | 81

indicate preferences—are seldom employed

among the major trading partners of the United

States. These procedures limit the ability of

unelected officials to carry out policies that are

contrary to the wishes of the elected branches,

but they do so at the expense of speed and flexibility, two characteristics often identified as

advantages of other regulatory systems. Oversight mechanisms also provide avenues for judicial intervention in decisionmaking. This

intervention allows a wide range of individuals

and groups to have a voice in regulatory policy

and conduct, but it also delays regulations without regard to their usefulness and necessitates the

creation of extensive records to document the

rationale underlying agency decisions. The time

spent and paperwork generated in these exercises

are often decried as weaknesses of the U.S. system.

Constraints on bureaucratic authority appear

to be less important in some foreign nations

because of long-standing traditions of respect for

government authority, and in other foreign

nations because key stakeholders are an explicit

part of the regulatory decisionmaking process.

By giving stakeholders a seat at the table, these

governments eliminate a prime motivation for

strict oversight. By vesting them with part of the

responsibility for standards and highly constraining their ability to challenge regulatory decisions

once they are made, the nations encourage goodfaith negotiations among stakeholders and promote support of the agreements reached.

Thus some of the perceived weakness of occupational safety and health decisionmaking in the

United States (and of the U.S. regulatory

approach in general) can also be viewed as an

outgrowth of principles that citizens value. It is

certainly worth considering whether other systems for formulating regulations—in particular,

cooperative approaches like those used in Britain

and some Canadian provinces—may have utility

here. It is important to remember, however, that

one reason that such regulatory strategies may

work elsewhere is that they are rooted in different beliefs about the various checks and balances

needed between government and the citizenry.

■ Some of the initiatives related to setting

safety and health standards now under way

at EPA, an agency with similar regulatory

analysis requirements, may merit OSHA’s

attention and consideration.

EPA’s ability to conduct regulatory analyses

is enhanced by its size, resources, and some of its

enabling statutes. The agency’s budget was more

than 20 times that of OSHA in fiscal 1993, and

its full-time-equivalent employment was more

than 5 times larger. Undoubtedly, these greater

resources allow EPA to maintain more staff and

more internal expertise on control technology

and economic issues, and to tap outside sources

of information more easily. Some of the statutes

under which EPA operates also help the agency

obtain reliable information on which to base

standards. The Clean Air Act, for example, permits EPA to compel industry to provide it with

data or to enter facilities to obtain information

relevant to potential regulatory initiatives. EPA’s

Science Advisory Boards (SABs), created by

statute, have the task of reviewing the technical

adequacy of proposed standards. SAB reviews

serve as an internal check on the merit of feasibility analyses and provide an imprimatur that

may enhance their credibility to the courts and

stakeholders.

That said, EPA has shown a willingness to use

some innovative approaches to formulating standards and assessing their feasibility that may be

worth consideration by OSHA. OTA has not

conducted a thorough examination of EPA regulatory reform initiatives or of the agency’s typical technological and economic analysis

methods, and draws no conclusions regarding the

initiatives or the quality of EPA’s work. But this

report has identified several EPA efforts, many at

the pilot stage, which appear promising. In the

realm of setting standards, these include:

■ improving consultation with stakeholders;

■ giving greater attention to “pollution prevention” measures, that is, approaches that seek to

directly reduce, rather than control, emissions

(hence exposures)—including changes in pro-
82 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

cesses and changes and substitutions of materials; ■ providing information and technical assistance

to state and local governments and to businesses seeking to accelerate the development

and deployment of innovative technologies;

and ■ selectively promoting technologies that

achieve compliance goals at low initial or

long-term cost.

As for control options assessments, EPA analyses have included consideration of speculative

technologies based on adaptations of currently

available devices, and have examined cuttingedge foreign research that might produce greater

reductions in hazards at lower cost. EPA has also

used contractors to obtain, analyze, and summarize compliance cost information without compromising manufacturers’ confidential business

information. OTA has not conducted the research

to determine how widely these methods are

applied across EPA’s various regulatory activities, but the available evidence certainly indicates that more encompassing approaches to

examining control options are possible.

It appears that OSHA could benefit by carefully monitoring EPA’s success and failures with

these efforts as they unfold.
| 83

4

Policy

Issues

OSHA AND THE CURRENT CONGRESS

t the time of this report’s completion

(late August 1995), various committees

of the current (104th) Congress are

actively considering a number of bills

that could directly affect OSHA’s procedures

and regulatory activities. Many of the initiatives

now under debate represent substantial reconsiderations of the agency’s procedures and capabilities.

“Regulatory reform” continues to be a major

topic of attention—with principal themes including the conduct of scientific risk assessments, the

analysis of benefits and costs, the consideration

of benefit-cost balancing in rule promulgation,

and expansions in the scope of judicial review of

regulatory analyses. This broad area of issues has

been the subject of numerous bills since the

beginning of the session. Most such proposals, if

enacted, would affect OSHA along with many

other federal regulatory agencies.

Early last March, the House passed H.R. 9

(the Job Creation and Wage Enhancement Act of

1995), which rolled together several existing

bills, including H.R. 1022 (addressing risk

assessments), H.R. 926 (benefit-cost analysis,

regulatory flexibility), H.R. 925 (private property rights), and H.R. 830 (paper work reduction). Among the numerous provisions, H.R. 9

specifies guidelines for the conduct of scientific

risk assessments and benefit/cost analyses and

commands the use of these findings in “major”

rulemakings (i.e., for risk assessments, a rule

imposing $25 million annual effect on the economy; and for benefit-cost analyses, a rule imposing $50 million annually). It also mandates

consideration of the expected balance of benefits

and costs (or cost-effectiveness) to be realized in

setting standards and removes the long standing

restriction against judicial review of small business regulatory impact analyses prepared in

accordance with requirements of the 1980 Regulatory Flexibility Act.

In the Senate, S. 343 (the Comprehensive

Regulatory Reform Act of 1995) has received

greatest attention in the last several months.

S.343 also requires extensive risk assessment and

benefit/cost studies for: “major” regulations (i.e.

a gross annual economic effect of $50 million).

In addition, the bill mandates a showing that the

benefits of a proposed regulation justify the costs

imposed on society, widens the scope of judicial

review to encompass nearly all such analyses,

expands the opportunities for regulated parties to

sue federal agencies over their adherence to

administrative procedures, and allows individuA
84 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

als to petition agencies to modify or revoke regulations. Competing bills exist in the form of S.

291, S. 333, and S. 1001—which, in most

respects, would institute less extensive reforms

in existing regulatory procedures than S. 343 has

proposed.

In another initiative, the House Government

Reform and Oversight Committee, in mid-July,

approved H.R. 994 (the Regulatory Sunset and

Review Act of 1995), which would require agencies to review many existing regulations over a

seven year period and modify or revoke those

determined to be unnecessary, outdated, or

overly burdensome. A similar proposal has been

introduced in the Senate (S. 511).

There are also a number of bills focused more

narrowly on OSHA, with some proposing substantial revisions of OSHA’s regulatory mission

and procedures. H.R. 707 (the OSHA Reform

Act of 1995) proposes broad reforms in the

agency’s practices, including establishing benefit-cost balancing as a formal basis for standard

setting, mandating that an increased share of the

agency’s budget be devoted to technical assistance and other consultive services for industry,

increasing the incentives for voluntary compliance, and revising the basis for the agency’s conduct of on-site inspections. A similar bill in the

Senate, S. 592 (the Occupational Safety and

Health Reform Act of 1995), also contains farreaching proposals, including those for increasing the influence of scientific risk assessments

and benefit-cost balancing in standard setting,

transferring NIOSH to the Department of Labor,

mandating the conduct of comprehensive evaluations of the costs and benefits of existing OSHA

standards every several years, and promoting the

formation of employer-employee safety committees to deal with workplace hazard reduction.

H.R. 1433 (the Occupational Safety and Health

Administration Consultation Services Authorization Act) proposes that the Secretary of Labor

establish cooperative programs to allow businesses to consult with state officials on OSH Act

compliance matters. S. 917 ( the Small Business

Advocacy Act) would create new mechanisms

for small businesses to become involved in

OSHA’s (and EPA’s) regulatory development

efforts. Several other current bills deal with specific aspects of workplace hazard protections.1

Finally, as discussed in the previous chapter,

OSHA’s budget appropriation for the coming fiscal year is currently a major topic of debate. The

President’s proposal (of February 1995) specified FY96 funding for OSHA of around

$347 million, about 11 percent above the

$313 million level in the current year. Nonetheless, in recent action (August 1995), the House

approved an FY96 Labor-Health and Human

Services-Education appropriations bill that allocated only $264 million to OSHA, a 16 percent

decrease over the current year’s level. The corresponding Senate bill remains in progress at this

time.

DISCUSSION OF SALIENT ISSUES

The present study has, for the most part, concentrated on several particular aspects of the

agency’s policy analysis activities and has not

taken on the full range of issues encompassed by

the wide breadth of Congress’s current legislative agenda on OSHA. Nonetheless, there are a

number of matters on which this study’s main

areas of inquiry intersect with current congressional concerns. A number of observations on

these issues follow below.

❚ Consideration of Regulatory Impacts in 

Rulemakings

It is apparent from the many rulemaking records

examined in this study that OSHA already

devotes a good deal of attention to the assessment of regulatory impacts (i.e., compliance

costs, expected benefits, feasibility of economic

1 H.R. 750 (the Worker Protection Warnings Act) would require the establishment of uniform labels addressing the proper procedures

and effectiveness limits for personal protective equipment. H.R. 1783 (To Require Changes in Regulations Under the OSH Act) would modify the prevailing procedures governing the use of respirators in oxygen deficient or hazardous chemical containing environments.
Chapter 4 Policy Issues | 85

burden imposed, ripple-through effects to

directly affected industries and the larger economy) in its standard setting activities. The substantial body of case law interpreting the

agency’s procedural burdens, the various executive orders (commanding the preparation of “regulatory impact analyses”), and subsequent

legislation (particularly, the Regulatory Flexibility Act) arising since promulgation of the OSH

Act in 1970 have erected a comprehensive set of

mandates for preparing such analyses as a routine feature of rulemakings. Since the later 1970s

the agency has implemented a set of analytical

procedures intended to be responsive to these

requirements. Rulemaking records since that

time have generally accorded substantial attention to regulatory impact matters—and in this

respect vastly “outweigh” the records of earlier

rulemakings.

OSHA standards are not formally established

on the basis of explicit benefit-cost comparisons—largely because of the way Congress originally wrote the OSH Act and the subsequent

interpretations of the courts. Nonetheless, the

agency has, for some time, routinely prepared

and submitted to the record considerable information on both the estimated costs and the more

easily quantified benefits of intended standards.

In part, this has been done to comply with the

aforementioned, externally imposed requirements for preparation of regulatory analyses. But

it is also apparent that stakeholders’ (often competing) estimates and perceptions about the balance between incremental costs and benefits to

result from a new regulation often become a

prime consideration in the usual administrative

flow of rulemakings.

Elevating the role of benefit-cost considerations in rulemakings is one of the major objectives of many of the “regulatory reform” bills

now before Congress. In view of the substantial

benefit and cost information OSHA already routinely assembles for its rulemakings, it is apparent that the enactment of new laws in this vein

would not usher the agency into some vastly new

rulemaking landscape.2 Although, it would certainly drive the agency to devote greater attention on the record to showing how the expected

costs of an intended new regulation would be

“balanced” by the benefits of the hazard reductions to be realized. In addition, stakeholders

unsatisfied with such findings and their rationale

will, no doubt, have received another possible

basis for challenging OSHA’s regulatory actions

in the courts.

It appears that, under such a revised rulemaking regime, OSHA would have strong incentive

to seek to quantify more comprehensively than it

now does the full range of benefits expected to

result from a new standard, and to revise its feasibility analysis procedures to more nearly provide “most likely” forecasts of industry control

responses and compliance spending. These

actions would represent a significant and methodologically appropriate deepening of the “feasibility” analyses the agency already prepares, but

both are resource intensive additions and would

surely require a greater level of resources that

OSHA now normally devotes to its regulatory

analysis efforts.

The effects of such revisions of the agency’s

decision framework on the content of future standards would probably not be uniform, and,

depending on the hazard at issue, might support

the promulgation of either more or less stringent

compliance requirements than are produced

under the present policy decision logic.

❚ Knowledge about Regulatory Outcomes

Adequate workplace health and safety protections are too important a public policy matter and

OSHA’s rulemaking activities so long heatedly

2 A second major element of many of the “regulatory reform” bills Congress is now considering consists of provisions to expand the role

of risk assessments in rulemakings. This analytic area has not been a focus of this project, but it is apparent from the numerous rulemaking

records examined that the consideration of scientific risk assessment findings is already a major and routine aspect of OSHA’s decision logic. 

 
86 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

debated for there to be as little systematic information as there is that characterizes the actual

regulatory outcomes in affected industries.

Admittedly, the evaluation task is a challenging one. Safety and health standards change hazard circumstances and impact industry behaviors,

production costs, and profitability amidst or in

conjunction with myriad other economic influences that must be sorted out. In addition,

OSHA’s regulatory scope is often quite wide,

spanning many separate industries and various

classes of establishments.

Nonetheless, OTA’s findings from the case

research conducted for this study strongly suggest that the regulatory impacts analyses prepared in rulemakings often do not well reflect the

compliance paths chosen by affected industries

or the costs and economic burdens that actually

result. The regulatory analyses OSHA prepares

for rulemakings are specifically intended to demonstrate the feasibility of proposed rules, and are

not necessarily the outcomes most likely to arise.

They cannot be considered a reasonable substitute for evaluative findings on actual post-promulgation outcomes.

OSHA, principal stakeholders, and the public

generally would, no doubt, be well served by a

more routine effort to collect and analyze information on outcomes (including control measures

adopted, compliance spending incurred, other

production and economic impacts sustained,

workforce effects, hazard reductions achieved)

as a normal part of implementing a standard.

Such a program would need to be designed and

implemented with care, to avoid becoming an

overly vast, expensive, and intrusive data collection activity. But reasonably developed, such

information and findings would provide valuable

feedback to the policymaking process and provide a more solid basis for critically examining

the various competing claims put forward by

stakeholders and other observers.

Such an effort is clearly in line with some of

the aforementioned “regulatory review” and

“sunset” legislation presently being considered

by Congress. And indeed, as discussed in the

previous chapter, OSHA has already begun to

consider the issues involved in mounting this

kind of analytic activity on a more routine basis.

Nevertheless, it needs to be recognized that

such research, even at a fairly modest level of

effort, will be time and resource-intensive. Furthermore, access to and cooperation with industry for data collection purposes must be

adequate—historically, a sensitive public policy

issue. Should Congress seek to encourage

OSHA’s deeper involvement in such outcomes

research, it should take some pains to carefully

outline its expectations and assure that a satisfactory level of funding is available in the agency’s

budget to support the effort. Additionally, it

should consider reviewing existing statutes governing OSHA’s access to industry for data collection purposes (particularly Paperwork

Reduction Act requirements) to assure that an

appropriate balance between access for data collection and protection for industry from intrusive

and overly burdensome data collection will exist.

❚ Understanding the Potential of New 

Technology in Hazard Reduction

The most critical aspects of this report’s

appraisal of OSHA’s current analytic procedures

relate to the comparatively little attention typically devoted to considering the role of advanced

technologies and production innovations in

achieving hazard reductions. The historical

record provides ample evidence that intelligently

directed research and development (R&D)

efforts can yield hazard control options that are

technologically or economically superior to the

conventional control measures (more ventilation,

more enclosure) that usually receive the preponderance of attention in the agency’s rulemakings.

Such measures may also provide avenues to

achieve “win-win” outcomes for industry and

workers, yielding increased protection in a more

cost-effective manner and perhaps in conjunction

with other production benefits, such as productivity increases or improved product quality.

Nonetheless, the evidence indicates that

OSHA has not routinely focused its thinking and

information gathering in this area. Tracking
Chapter 4 Policy Issues | 87

emerging technologies and identifying opportunities for R&D investments (including the strategic use of experimental variances or new

technology demonstration projects) do not play a

sizable role in the agency’s current policy planning efforts. Most consideration of control technology options occurs in the context of ongoing

rulemakings. But here, the realpolitik of the rulemaking process and the agency’s often tightly

limited resources for analysis usually work to

narrow the scope of consideration chiefly to

applications of existing, conventional control

measures.

Fixing this shortcoming would appear to have

a variety of components. OSHA needs to devote

more time and effort, independent of particular

rulemakings, to tracking and staying abreast of

new technological developments in major application areas with relevance to industrial hazard

control needs. Furthermore, the new technology

perspective needs to be more explicitly engaged

in the course of rulemaking analyses and

debates—and OSHA needs to exercise more

leadership in making this widening of the dialogue on control options happen. In addition, it

appears that OSHA could benefit substantially

from closer cooperation with NIOSH and EPA

on new technology development and transfer.

NIOSH represents an important resource for

staying abreast of and conducting substantive

research on new control technology options.

EPA’s current efforts in promoting the development and adoption of “pollution prevention” process technologies represents one area where

linkages with workplace hazard reduction efforts

could be particularly fertile.

To be sure, OSHA’s involvement in these various endeavors seems likely to be more nearly a

matter of having adequate time and resources,

than generating intrinsic interest. The tight budget constraints under which the agency’s analytical efforts have generally had to operate work

against the kind of widened inquiry about control

options that is envisaged here. Even so, the likely

long-run consequence of the slower growth of

knowledge that results is unnecessarily slow

progress in developing and commercializing new

generations of hazard control options that are

likely to be more effective at addressing workplace hazards and better capable of providing

“win-win” options for management and labor to

adopt.

OSHA’s increased attention to new technology in these respects would, no doubt, be encouraged by Congress’s expression of interest in the

topic. Nonetheless, a central consideration is

assuring that adequate budget resources are

available to the agency to support such efforts.

❚ Alternative Process Approaches for 

Identifying Feasible Controls

Interest in the use of alternative policymaking

procedures with greater emphasis on consensus

building among stakeholders has been growing

for some time. The Clinton Administration’s

Executive Order 12866 directs agencies “to

explore and, where appropriate, use consensual

mechanisms for developing regulations, including negotiated rulemaking.” In the past, Congress also has expressed interest in the

applicability of such approaches.

The cross-national comparisons OTA conducted for this study indicate that other nations

successfully promulgate occupational health and

safety standards using consensual mechanisms

(i.e., what would be called “negotiated regulation” in the United States). In most of these

cases, technical and economic feasibility considerations are addressed in the context of the general dialogue among interested parties, rather

than as an independent exercise in exacting

quantitative analysis. The early, direct involvement of stakeholders and their vesting in the

decisionmaking that typically result seems to

promote various efficiencies (compared with the

more combative U.S. system) in resolving feasibility debates: focusing discussion on the most

salient issues, promoting interactions of a problem-solving rather than a resisting nature, and

providing early warning on where problems in

policy options under consideration could arise.

Admittedly, unique contextual circumstances—such as the strong orientation toward
88 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

the public conduct of public business, the broad

and well-defended rights of interested parties to

challenge bureaucratic decisions in court, and

basic cultural differences (e.g., less trust in government and authorities)—pose barriers to the

success of negotiated rulemaking approaches

here in the United States. Nonetheless, many

specialists in regulatory policymaking believe

that some aspects of negotiated approaches may

be beneficial. EPA, for example, is one of several

federal regulatory agencies that has been looking

for ways to increase the use of consensual processes in its regulatory activities.

In light of such developments at other regulatory agencies, this may be an appropriate time for

OSHA to re-examine the possible usefulness of

such processes for its own rulemaking needs. In

addition to reviewing its past experiences with

consensual approaches, the agency should perhaps become an active participant in some relevant “experimental” cases, to see whether these

approaches could, in the current policymaking

setting, foster appropriate workplace health and

safety protections more efficiently. Congress

may wish to encourage OSHA to embark on such

an exploratory effort.

Another avenue available to OSHA is to make

greater use of balanced panels of experts as a

means to identify and consider relevant control

technology options.3

 The OSH Act provided the

agency with statutory authority to convene such

panels to assist in specific rule-makings. Similarly, the National Advisory Committee on

Occupational Safety and Health (NACOSH), a

standing committee on occupational safety and

health matters also authorized by statute, could

be used as a forum for discussing compliance

options.

Some observers looking at OSHA’s past use

of advisory committees have concluded that they

failed chiefly because the strict requirements for

management and labor representation and limits

on committee size mandated by statute politicized the panels and limited the number of independent experts that could be appointed.4

Mandatory limitations on the life of individual

committees imposed by the Federal Advisory

Committee Act also curtailed their usefulness.

However, Congress could ameliorate such

problems by amending the existing statutes to

loosen or eliminate the limitations on committee

size and terms, and change strict composition

requirements to the simple stipulation that advisory committees be “balanced.”5

3 See, for example, N.A. Ashford, “Advisory Committees in OSHA and EPA: Their Use in Regulatory Decisionmaking,” Science, Technology, and Human Values, 9 (1): 72–82, Winter 1984. 4 T.O. McGarity and S.A. Shapiro, Workers at Risk: The Failed Promise of the Occupational Safety and Health Administration (Westport, CN: Praeger Press, 1993), p. 195. 5 See McGarity and Shapiro, 1993, p. 195.
| 89

A

Appendix A:

Extended

Summaries of

Retrospective Case

Comparisons

OSHA’s Final Regulatory Impact Estimates vs.

Post-promulgation Outcomes

HEALTH RULES

❚ Vinyl Chloride

Promulgated October 4, 1974 (39 FR 35890).

Industry sectors examined: vinyl chloride monomer (VCM) synthesis, polyvinylchloride (PVC)

polymerization (the principally affected industries).

The new standard reduced the prevailing timeweighted average exposure over an 8-hour workshift (TWA8) permissible exposure level (PEL)

from 500 parts per million (ppm) to 1 ppm. Other

provisions included requirements for routine

medical surveillance and exposure monitoring,

regulated areas, hazard signs/labels.

Feasibility: In setting a stringent, “technology

forcing” PEL, OSHA went against the grain of

its own consultant’s findings and the affected

industries’ arguments, both of which reflected an

“it’s infeasible” perspective. Nonetheless, the

agency’s judgments proved largely accurate, as

the principally affected industries achieved full

compliance with comparative dispatch in the

18 months following enactment.

Industry Adjustment: Most of the actions

implemented to reduce exposure levels were

anticipated in the rulemaking: these included

reducing leaks and fugitive emissions, improved

ventilation systems, modified reactor designs and

chemistry, and process automation. Not foreseen,

however, was the proprietary “stripping” process

commercialized within a year of promulgation,

which provided a significantly improved means

for PVC resin production along with lowering

the potential for vinyl chloride exposures.

Compliance Costs: In promulgating the final

rule, OSHA did not provide its own estimate of

the affected industries’ compliance costs. The

most credible figures considered in the rulemaking were those of the agency’s technical consultant, which placed total costs at around $1 billion

(1974$), including capital expenses for new

equipment, replacement of lost capacity, and

incremental operating expenses. Actual spending, however, appears to have amounted to only

about a quarter of this estimate, $228 million to

$278 million.

Other Impacts: Arguments made during the

rulemaking debate suggested the standard would

greatly increase business costs and threaten the

viability of the vast majority of the industries’

establishments. In reality, costs did increase and
90 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

production capacity was eroded, but only to a

modest extent. Also, there was little evidence

that the affected industries’ financial status or

ability to respond to customer needs had been

strained.

Judicial Review: Soon after promulgation,

Industry challenged the standard in several

respects, on issues related to the health justification of the 1 ppm PEL and the agency’s authority

to impose a “technology forcing” standard needing control actions not yet commercially evident

in the industry. In the latter matter, the U.S.

Court of Appeals (2nd Circuit) concluded generally that the agency could, with sufficient evidence, promulgate “technology forcing” rules

and that the agency had provided an adequate

demonstration.

Comments: OSHA’s Vinyl Chloride rulemaking is widely and justifiably remembered for

the considerable inaccuracy of the “it’s infeasible” arguments presented by industry representatives and the agency’s technical consultant,

which, in the end, OSHA policymakers elected

to reject. Nevertheless, this case is less useful in

commenting on the agency’s present practices,

because procedural changes introduced in the

succeeding years have worked to minimize some

of the problems that were particularly glaring.

Such changes include: 1) the widened opportunities for stakeholders to review and extensively

comment on the agency’s feasibility and impact

estimates at a relatively early stage, which arose

with the regulatory impact analysis steps established in the later 1970s; and 2) the more extensive analyses of feasibility and impact matters

that became normal at about the same time,

which provided a more explicit basis for debate

on the appropriate analytical assumptions.

❚ Cotton Dust

Promulgated June 23, 1978 (43 FR 27350).

Industry sectors examined: textile manufacturing

(including all the principally affected industries).

The new final rule tightened the existing

TWA8 PEL from 1,000 micrograms per cubic

meter (μg/m3) to 200 μg/m3 for yarn manufacturing operations, 750 μg/m3 for slashing and

weaving, and 500 μg/m3 for other operations in

which airborne cotton dust was created. Other

provisions included requirements for routine

medical surveillance and exposure monitoring,

employee training, and regulated areas.

Feasibility: The promulgated standard proved

clearly feasible in both technological and economic terms, although these judgments were the

subject of extensive debate during the rulemaking. For yarn manufacturing operations, OSHA

elected, on technological feasibility grounds, not

to set a PEL more stringent than the 200 μg/m3

specified. For slashing and weaving operations,

the agency defended its decision to establish a

substantially less stringent PEL on both economic feasibility and health risk grounds. The

post-promulgation evidence largely confirmed

both judgments.

Industry Adjustment: The engineering controls envisaged throughout the rulemaking as

central to reducing dust levels—retrofits of existing production machinery, such as additional

enclosure, added local exhaust ventilation,

enhanced general ventilation and filtration—all

clearly played a role in achieving compliance.

But this emphasis missed the substantial extent

to which dust control was achieved as a by-product of an aggressive modernization drive by the

textile manufacturing industry, driven by sharply

intensifying competition from foreign companies. In numerous operational areas, the industry’s existing, older equipment was either rebuilt

with modern functions or replaced outright with

modern equipment, much of which enabled

faster production speeds, consolidation of operations, more effective use of floor space, reduced

labor, and improved product quality, all along

with lower levels of dust.

Compliance Costs: OSHA’s estimate in the

Final Regulatory Impact Analysis (RIA) placed

the textile manufacturing sector’s cost of compliance at $280.3 million annually (1982$, including amortized capital spending, incremental

operations and maintenance, and other new

spending). Actual spending is estimated to have

been only about a third this level, $82.8 annually
Extended Summaries of Retrospective Case Comparisons | 91

(also 1982$). A chief reason for this large disparity relates to the advantageous economics of the

plant modernization the sector implemented.

(Estimates produced earlier in the rulemaking

process, which were vastly higher, would have

been even further off the mark, although, preliminary versions of the standard contained substantially more stringent dust control provisions.)

Other Impacts: Concern was expressed at

promulgation that smaller textile firms could

encounter substantial constraints in raising capital for compliance-related improvements and that

the standard would tilt the sector’s competitive

center toward newer and more modern plants.

(However, neither of these circumstances was

considered large enough to warrant a “thumbs

down” economic feasibility judgment for the

industry as a whole.) Suppliers of control equipment also argued during the rulemaking that serious bottlenecks would arise in trying to retrofit

the industry’s equipment in short order, but the

actual effects proved to be more modest and generally bearable in all these regards.

Judicial Review: The 1978 standard was

extensively challenged in court. Notably, in

1979, the U.S. Court of Appeals (DC Circuit), in

addressing an industry petition, affirmed

OSHA’s technological and economic feasibility

findings for the textile manufacturing sector.

Comments: OSHA’s more qualitative observations in the Final RIA largely anticipated the

lower-cost, modernization adjustment to the

standard that did occur. But more conservative

assumptions (emphasizing chiefly retrofit measures) were used to develop the technological

and economic feasibility determinations for the

rulemaking. Furthermore, it does not appear

likely that a more accurate anticipation of the

industry’s actual compliance response would

have substantially altered the content of the standard’s provisions.

❚ Occupational Exposures to Lead

Promulgated November 11, 1978 (43 FR 52952).

Industry sectors examined: secondary smelting

(one of the more than three dozen industries

affected by the standard, but one of the handful

that had high existing exposures and were likely

to need major changes in existing processes to

achieve compliance).

The new standard tightened the existing

TWA8 PEL from 200 μg/m3 to 50 μg/m3. Other

provisions included requirements for routine

medical surveillance and exposure monitoring,

housekeeping procedures, protective clothing,

respirator use, hygiene facilities, preventive

maintenance, employee training, medical

removal protection, regulated areas.

Feasibility: Numerous control equipment and

operating practices were identified during the

rulemaking to reduce exposures, including

greatly increased enclosure and ventilation of

solids handling operations, automation of operations (particularly battery breaking), increased

isolation of employees from processing areas,

and improved maintenance practices. There was

wide agreement among the rulemaking parties

that aggressive use of these conventional measures could greatly reduce average exposures,

and substantial evidence that most facilities

could reach a PEL of 100 μg/m3

 on this basis.

Achieving a 50 μg/m3 PEL principally through

engineering and work practice controls (as the

standard ultimately specified), however, was

controversial. In promulgating the more stringent

exposure level (set on health protection grounds),

OSHA appealed to the aggressive adoption of

existing conventional measures; major process

redesign (including new plants built with the best

available emissions control, such as the design

outlined by Gould); and to foreseeable new technology (particularly the process improvements in

scrap lead smelting then being introduced by

Bergsoe and, over the longer term, a shift to

hydrometallurgy). Recognizing that a 50 μg/m3

exposure level would not be immediately achievable, OSHA specified an extended phase-in

period (5 years for secondary smelters), during

which, the agency judged, the industry’s physical

plant could be substantially rebuilt, if necessary,

and appropriate new technologies brought to the

marketplace. In the interim, the final rule called

for the adoption of all feasible engineering and
92 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

work practice controls, supplemented as needed

by respiratory protection.

Industry Adjustment: Since more than a

decade ago when the standard took full force to

the present (1994), the industry’s compliance

response has differed substantially from the concept that underwrote promulgation. Most producers have adopted some additional engineering

controls (particularly for point and area ventilation, along with increased automation). But the

greater emphasis has been on respiratory protection programs, which virtually all producers now

use, and improved employee hygiene (protective

clothing, change houses, personal hygiene practices). Temporary removal from the workplace of

employees whose blood lead levels exceeded a

specified limit also has been used at one time or

another by about half the industry, although

present use of this measure is infrequent because

fewer levels exceed the limit. Despite the final

rule’s mandate, however, few producers have

invested in engineering controls to the full extent

anticipated for PEL compliance. Airborne lead

levels in plants, while lower now than in the late

1970s, still remain well above the PEL. (Indeed,

most plants remain out of compliance with the

previous 200 μg/m3 PEL, with decades of further

progress, given the slow rate of improvement

that has prevailed to date, needed to reach the

now prevailing 50 μg/m3

 PEL.) Furthermore, the

“new technologies” envisaged by OSHA at the

time of rulemaking have rather visibly not progressed; the single U.S. secondary smelter using

the Bergsoe process went bankrupt in the mid1980s, and hydrometallurgy still remains “on the

horizon.” The new capacity that has come on line

in recent years (which has been substantial since

the mid-1980s, particularly in the “integrated”

end of the business, where old batteries are broken, smelted, and used to manufacture new units)

has relied on conventional technology (but with

closer attention to plant layout, material transfer/

handling, and process operability with respect to

emission and exposure considerations).

Compliance Costs: At promulgation,

OSHA’s “best” estimate placed the industry’s

capital requirements for compliance with a

100 μg/m3 exposure limit at $34.1 million

(1976$), or 2.5 cents annually per pound of production on a pre-tax basis, including amortized

capital and operation/maintenance expenses

($77.7 million and 5.7 cents/lb., respectively, in

1992$). Corresponding estimates for the 50 μg/

m3 PEL were not presented, however, as the

agency indicated that figures could not be determined at the time, given that “the industry

face[d] several options for long-run compliance.”

However, an outer bound of about $91 million

(1976$) in total capital spending was mentioned,

based on a complete rebuilding of the industry

using the Bergsoe smelter technology (considered then to be the most cost-effective option). In

an early 1980s revision of the estimates, OSHA

placed the cost of PEL compliance at a capital

requirement of $125 million (1982$), or 1.3

cents annually per pound of production

($150 million and 1.6 cents/lb in 1992$). Nevertheless, the industry’s actual spending to date

(through early 1994) has been well below these

levels. Cumulative capital investment appears to

total no more than $20 million (1992$), and

some of this overlaps with expenditures to meet

the various environmental requirements to which

the industry has also been subject (i.e., the Clean

Air Act, National Ambient Air Quality Standards, Clean Water Act, Resource Conservation

and Recovery Act, and Superfund liabilities).

Annual compliance spending appears to be averaging in the range of 0.5 to 1.0 cent/lb (1992$),

and perhaps as low as 0.3 cent/lb. Such levels are

well below OSHA’s expectations at the time of

the rulemaking, and in large measure reflect the

industry’s strategy of minimizing expenditures

on engineering controls and relying much more

heavily on respirator and hygiene programs to

reduce exposures.

Other Impacts: The real price of lead

dropped sharply (and unexpectedly) after 1979,

not returning to a similar level until late in the

1980s. Numerous smaller, independent smelters,

that had limited financial resources and faced the

combined effects of increased costs for both EPA

regulations (emission controls and liabilities for

future cleanups) and OSHA requirements,
Extended Summaries of Retrospective Case Comparisons | 93

elected to leave the industry. The remaining producers benefited from increased utilization of

capacity but, nonetheless, had to aggressively

reduce labor costs and improve productivity to

compensate for the upward cost pressures. The

industry today is smaller and, indeed, the most

productive in the highly competitive global market. At the time of the rulemaking, OSHA

acknowledged the limited extent to which most

secondary smelters could pass on new compliance costs, and correctly judged that some consolidation would occur after promulgation, as

producers with high marginal costs exited the

industry. But OSHA did not anticipate the steep

drop in lead prices that occurred. It now appears

likely that the industry’s consolidation would

have been a good deal more severe had the level

of compliance spending the agency estimated at

promulgation proved nearer the actual circumstance.

Judicial Review: The 1978 standard was

extensively challenged in the courts soon after

promulgation by both labor and industry, with

various remands and amending actions by OSHA

continuing into the 1990s. The adequacy of

OSHA’s demonstration of the technological feasibility of the standard for secondary smelters

was upheld by the U.S. Court of Appeals (DC

Circuit) in 1980, along with that for nine other

industries. (However, the judges were badly split

on the decision, as in the lack of consensus over

feasibility in the rulemaking earlier.)

Comments: The blood lead levels of this

industry’s workers have come down appreciably

since the late 1970s, the combined result of the

modest reduction in air lead levels (from new

engineering controls), improved hygiene and

work practices, and the general reduction in environmental lead levels. Nonetheless, the considerable distance yet to be crossed to bring air lead

levels in line with the PEL (long after the

requirement took effect) contrasts strikingly with

the assumptions at promulgation. While judged

in the end to be achievable, OSHA recognized

that compliance would pose particular challenges

for this industry, given its economic/technical

maturity and limited ability to pass on new costs.

One mitigating consideration is that OSHA’s

enforcement of the engineering control requirement appears to have been limited in several significant respects (both in its productive

engagement of the industry and in comparison

with EPA’s contemporaneous regulatory

actions). On the other hand, the rulemaking’s

analysis did not well grasp the nature of the burden that the joint OSHA and EPA compliance

requirements would entail, or ways in which

these intertwined needs might have been better

optimized. The unexpected drop in lead prices

made the full extent of engineering control

investment envisaged by OSHA more difficult

than anticipated. And the “new technologies” to

which OSHA appealed as a longer-term compliance solution proved overly optimistic. Capable

analysts differ widely in their interpretations of

the lessons of this rulemaking. Nonetheless, the

post-promulgation events to date hardly put to

rest the feasibility debate that preoccupied the

rulemaking in the beginning.

❚ Ethylene Oxide

Promulgated June 22, 1984 (49 FR 25734).

Industry sectors examined: hospitals (one of a

half-dozen affected industries, but the sector with

the vast majority of exposed workers).

The new standard reduced the prevailing

TWA8 PEL from 50 ppm to 1 ppm. Other provisions included requirements for routine medical

surveillance and exposure monitoring, employee

training, emergency planning, hazard communications.

Feasibility: Within a year and a half after promulgation, the vast majority of hospitals were

operating with ethylene oxide (EtO) exposure

levels in compliance with the new PEL. Indeed

about three-quarters had taken steps to reduce

exposures to a point well below the specified

level. Clearly, OSHA had correctly gauged the

feasibility of the requirements the standard

imposed. Some credible parties to the rulemaking argued, on health risk grounds, for a substantially more stringent PEL, at about 0.1 ppm.

OSHA determined, however, that 1 ppm was the
94 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

lowest exposure level then technically feasible;

the limiting constraint was the availability of

acceptably reliable exposure measurement methods. This judgment proved correct in the period

immediately after promulgation, but not long

after, improved technologies, stimulated by the

concern about EtO exposures, largely removed

this barrier.

Industry Adjustment: The predominant

responses were well in line with the engineering

and work practice controls that OSHA outlined

in the feasibility analysis, including retrofits of

post-cycle evacuation and local exhaust ventilation devices to existing sterilizer units, various

changes in existing work practices. Nevertheless,

some hospitals did pursue other courses of

action, such as exploiting existing equipment and

facilities (e.g., relocating sterilizer equipment to

a room with a high rate of ventilation) or constructing new facilities with highly stringent EtO

exposure reduction capabilities. A number of significant improvements in control technology,

particularly sterilizers with exposure controls

built-in and greatly improved exposure measurement capabilities, did emerge in the period after

the standard’s enactment. But the timing of these

advances was beyond the main period (1984-85)

of the sector’s adjustment to the new standard’s

compliance requirements.

Compliance Costs: OSHA’s Final RIA estimates placed the sector’s total compliance costs

at $23.7 million annually (1982$), $12.5 million

of which was related to amortized capital spending for the necessary control equipment. The

available field data suggest that the unit cost figures for the principal control technologies that

OSHA assumed in its compliance estimates were

reasonably accurate. However, the sector’s

actual overall spending appears to have at least

modestly exceeded the agency’s estimate,

because of spending on modifications to existing

ventilation systems (which were assumed to be

zero in the estimate) and because many hospitals

elected to reduce exposures to a point substantially below the promulgated PEL (reflecting, for

the most part, concerns about the health risks of

long term, low level ethylene oxide exposures

that remained salient beyond OSHA’s promulgation of the permanent standard and hospital managers’ desire to mimimize vulnerability to

possible future tort liability claims).

Other Impacts: Because the estimated average spending for compliance per hospital was

amount to tally no more than $1,500 to 3,500

annually, there was little concern at the time of

the rulemaking that the standard would entail

substantial financial/economic consequences for

the industry or nation. There is no evidence that

anything other than these expectations actually

occurred; even a substantially larger compliance

spending total than now appears to have been the

case would have amounted to a barely visible

share of the overall increase in expenses that all

hospitals bore over the primary period of adjustment to the EtO standard.

Judicial Review: Debate on the content of the

1984 EtO standard continued into the late 1980s,

with the chief issue whether the exposure limit

provision should be amended to include a shortterm exposure limit (STEL) in addition to the

PEL. Some of these matters ended up in the

courts. Nevertheless, OSHA’s original feasibility

determinations were not the subject of challenge.

Comments: It appears likely that the arguments of those pushing for a PEL more stringent

than 1 ppm would have been strengthened if it

had been better appreciated during the course of

the debate just how quickly the technology for

exposure measurement would improve in the

period soon after promulgation. Also, the extent

to which so many hospitals would act to achieve

exposure levels well below the PEL requirement

was unexpected, although this action mainly

reflects considerations beyond the OSHA

requirements and is not something a normally

implemented regulatory impact analysis would

explicitly seek to recognize.

❚ Formaldehyde

Promulgated December 4, 1987 (52 FR 46168).

Industry sectors examined: metal foundries (one

of more than three dozen industries/industry

groups identified as affected, but the industry
Extended Summaries of Retrospective Case Comparisons | 95

with a high expected level of compliance costs

and a large number of workers with existing

exposures above 1 ppm).

The new standard tightened the existing

TWA8 PEL from 3 ppm to 1 ppm. Other provisions included requirements for routine medical

surveillance and exposure monitoring, protective

clothing/equipment, hygiene facilities, emergency planning, hazard communications. (Note:

OSHA amended the PEL to 0.75 ppm on May

27, 1992. The case discussed here focuses, however, on the 1987 action.)

Feasibility: The foundries sector was subject

to considerable economic pressures (from weak

demand and strong foreign competition)

throughout the 1980s, including late in that

decade when formaldehyde compliance actions

were mandated. OSHA concluded from its analyses, nonetheless, that suitable control steps were

reasonably available to the industry, at a generally acceptable cost. These judgments proved

accurate. The feasibility of engineering controls

to achieve a PEL substantially below 1 ppm was

discussed in the course of the rulemaking, but no

consensus on the matter emerged among the

major rulemaking parties. The PEL was ultimately set at 1 ppm on “significant risk” grounds

and, as a practical matter, the debate became

moot.

Industry Adjustment: OSHA’s technological feasibility finding was based on the conclusion that numerous engineering controls were

already commercially available to reduce existing exposure levels: additional ventilation (fresh

air curtains, general dilution ventilation, local

ventilation), enclosure (e.g., ladle covers, side

baffles, ventilated cooling enclosures), changes

in resin and catalyst formulations (to reduce the

level of free formaldehyde present in the resin

binder or released as a consequence of the curing

chemistry), and isolation of scrap materials. The

agency’s economic feasibility analysis assumed,

however, that compliance would be achieved

predominantly through the added ventilation and

enclosure avenues. As things turned out, however, only a few foundries adopted the “ventilate

and enclose” strategy; most opted for low-formaldehyde resins.

Compliance Costs: In the Final RIA, OSHA

estimated the industry’s compliance costs to be

$11.4 million annually (1987$). (Cost savings of

$1.7 million annually from avoided medical

expenses also were identified). Actual spending

appears to have been about half this level,

$6.0 million annually. Part of this is explained by

the industry’s adoption of low-formaldehyde resins (which avoided the need for major new capital expenses), rather than added ventilation and

enclosure. But in some important portions of the

calculations (particularly, for ventilation system

improvements), OSHA’s figures substantially

underestimated actual spending.

Other Impacts: The industry continued to

consolidate in the second half of the 1980s, with

the number of establishments in business declining at a substantial pace. But there is little evidence that more than a few foundries closed their

doors as a consequence of the more stringent

control of formaldehyde; hence the basic accuracy of OSHA’s feasibility determinations was

vindicated and industry arguments made during

the rulemaking were rebutted.

Judicial Review: Both industry and labor

challenged the standard (on differing grounds)

soon after promulgation; one outcome was that

the PEL was amended in 1992 to a more stringent 0.75 ppm. None of this debate, however,

questioned OSHA’s 1987 feasibility, cost, and

impact findings.

Comments: Much of the contentious debate

in this rulemaking related to exposure levels and

the extent of reduction needed to remove significant risk, matters in which the agency’s examination of control options and their costs and other

impacts were not major players. The agency’s

tallying of feasible control steps did include all

the principal actions the industry ultimately

adopted. And it is puzzling why the compliance

cost estimates did not more directly consider the

use of low-formaldehyde resins, as the technology was commercially well known at the time.
96 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

SAFETY STANDARDS

❚ Grain Handling Facilities

Promulgated December 31, 1987 (52 FR 49592).

Industry sectors examined: grain elevators and

grain mill facilities (the principally affected

industries).

The new standard mandated the development

and implementation of a “housekeeping” plan to

reduce dust emissions and provide for periodic

removal of accumulated dust. However, grain

elevator “priority areas” (i.e., work areas with

equipment and activities where the potential for

accidental ignitions was substantial) had to

implement immediate cleaning/removal once

accumulated dust reached a one-eighth inch dust

level. Other provisions dealt with the preparation

of emergency plans; employee training and contractor knowledge about relevant safety considerations; permitting procedures for managing

“hot work” and worker entry into bin, silo, and

tank areas; and various process equipment

requirements to minimize the prospect for circumstances capable of igniting accumulated

grain dust.

Feasibility: The final rule ultimately promulgated was only modest in its stringency. Many of

the provisions did not involve technology, and

those that did relied on actions and components

already in general use. While the affected industries were particularly sensitive to new expenses,

compliance was not generally expected to cause

generally unbearable economic burdens. The

industries’ success at compliance to date confirms that OSHA’s feasibility determinations

were essentially correct. Early in the policymaking debate, however, a far more stringent action

level (one-sixty-fourth inch) for cleaning/

removal of accumulated grain dust received consideration and was vigorously advocated by

some parties as essential for removing most significant risk. On the basis of the available evidence at the time, however, OSHA concluded

that such a diminutive level was likely to be neither technologically nor economically feasible,

and dropped the option from consideration.

Industry Adjustment: Housekeeping activities to clean and remove grain dust accumulations are now clearly recognized, throughout the

grain-handling sector, as an essential work practice. Pneumatic dust control systems are also

widespread, though manual cleaning with

brooms is still used and regarded as an effective

dust control method. Treating grain with edible

oils, to lower dust generation and flammability,

is fairly frequently employed. Office facilities,

welding activities, and employee smoking have

generally been relocated away from prime dust

generation areas. Designs for new elevators and

plants now incorporate a range of fire/explosion

safety features, although there have been relatively few new facilities constructed in recent

years. All of these outcomes were generally

expected, at the time of the rulemaking, to result

from the compliance provisions of the new standard.

Compliance Costs: In the Final RIA, OSHA

estimated the sector’s total compliance costs in

the range of $41.4 million to $68.8 million annually (1985$; spanning the incremental need for

equipment and actions across the 13 separate

provisions) and avoided property losses at

$35.4 million annually (as compliance reduced

the number of facility explosions and serious

fires), yielding an estimated net cost of compliance in the range of $5.9 million to $33.4 million

annually. The agency went on to monetize the

expected benefits from reduced employee injuries and deaths at $75.5 million annually; thus,

from a societal perspective, these benefits more

than balanced the expected new costs imposed

on the affected industries. Little in the way of

useful field information was available to enable

OTA to directly check these estimates—an

unfortunate circumstance, because these figures

were intensely debated in the course of the rulemaking, where a “battle of the benefit-cost analyses” between OSHA’s numbers and industry’s

lower benefits and higher costs figures prevailed

for some time. However, now that nearly five

years have passed since full compliance with the

terms of the 1987 standard should have been

achieved, the evidence is that few, if any, facili-
Extended Summaries of Retrospective Case Comparisons | 97

ties have ceased operation as a result of the standard—in contrast to the implications of the

industry’s figures. (Nonetheless, the sector has

certainly been subject to substantial economic

pressures for other reasons over this period.) Furthermore, the data on grain dust explosions/fires,

deaths, and injuries for the post-promulgation

period suggest that grain-handling facilities have

become safer roughly to the degree anticipated

by OSHA’s impact estimates, although a longer

time series of data is needed to confirm this

effect.

Judicial Review: The rulemaking on grain

dust was long and particularly contentious. Challenges were mounted by both industry and labor

representatives soon after promulgation. Notably, OSHA’s economic feasibility determination

and associated analysis were subjected to scrutiny by the U.S. Court of Appeals (Fifth Circuit)

in 1990, where the agency’s findings were

affirmed in full.

Comments: Sentiment remains today that the

dust cleaning/removal action level should have

been set more stringently then it was and that

political considerations at the time overwhelmed

a decision that should have more nearly been

made on the substantive merits. Unfortunately,

however, post-promulgation developments

(which have been in response to the less stringent

action level promulgated) do not provide a basis

to examine the adequacy of OSHA’s early infeasibility finding regarding a more stringent action

level.

❚ Mechanical Power Presses (Presence 

Sensing Device Initiation)

Promulgated March 14, 1988 (53 FR 8322).

Industry sectors examined: manufacturing generally, but particularly fabricated metal products,

non-electrical machinery, and electrical/electronic equipment.

This rulemaking amended the existing standard to allow voluntary use of an electronic presence sensing device (instead of operators having

to move a switch) to actuate power press strokes.

Other provisions included various revised

requirements for the performance of system/

safety components, regular inspection and maintenance procedures, employee training, periodic

certification and third party validation.

Feasibility: Despite considerable successful

experience with the technology (in Europe and

elsewhere) and compelling economic advantages, presence sensing device initiation (PSDI)

has yet to be installed on compatible U.S.

mechanical power presses. Surprisingly, a “third

party” has not yet come forward to take on the

independent validation/certification role specified by the standard. The apparent reason is that

potential “third parties” (e.g., insurance companies, underwriting organizations) do not perceive

enough of a business opportunity to compensate

for the economic risk involved, particularly that

related to exposures to liability litigation. In part,

OSHA’s feasibility findings, based on analyses

and testimony in the record circa 1984 and not

updated for promulgation in 1988, did not adequately take into account the concerns of insurers

and other potential independent parties that

workers could defeat (either deliberately or

through accident) the machine safety systems.

Also, the surge in litigation related to product liability had only begun in 1984. Furthermore,

beginning in the late 1980s, insurers’ earnings

became far more variable than had previously

been the case, causing many to rethink their

thresholds for risk bearing and the economics of

the products offered.

Industry Adjustment: None to date. Moreover, there is evidence that the market for PSDI

is currently being eroded by alternate technology, particularly by “quick trip” light curtains

with no-touch sensors, which provide safety and

productivity improvements but can be adopted

without “third party” certification/validation.

Compliance Costs: OSHA’s Final RIA estimated the total cost of adopting PSDI (among

both existing and new power presses) at

$49 million to $77 million annually (1984$; for

equipment modifications/enhancements and

compliance with the other provisions of the standard, including the various certifications and validations). Cost savings from productivity
98 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

improvements were estimated at about

$182 million annually, that is, the anticipated

cost savings substantially exceeded the expected

costs. Little has happened thus far in the industry

to validate these expectations, other than, of

course, that OSHA (and most of the other parties

to the rulemaking) misjudged the economics of

the “third party” certification/validation role in

the later-1980s-and-on world.

Other Impacts: OSHA’s analyses concluded

that small establishments would not bear a disproportionate burden in affected industries’

adoption of the PSDI technology. Also, a wider

economic benefit was expected to arise from the

productivity enhancement underwritten by the

technology. But, again, not enough has happened

to date to check these expectations.

Judicial Review: To date none of the standard’s provisions have been challenged.

Comments: Unforeseen developments routinely confound forecasting efforts in most

realms. Nonetheless, had OSHA’s feasibility

analysis been updated nearer to the time of promulgation (1988), it appears likely that at least

the prospect of serious problems with the business-worthiness of the “third party” role would

have been clear.

❚ Powered Platforms for Building Maintenance (Alternate Systems for Horizontal 

Stabilization)

Promulgated July 28, 1989 (54 FR 31408).

Industry sectors examined: high-rise building

owners/developers and building maintenance

service providers (the principally affected industries).

This action amended the existing standard to

widen the acceptable technologies for horizontal

stabilization of high-rise work platforms. Other

provisions included revised requirements for

platform equipment performance capabilities,

emergency planning, personal fall protection

equipment, employee training, regular inspection

and maintenance procedures.

Feasibility: OSHA’s amendment of the existing standard dealt with technologies that were

already market proven and provided demonstrated economic advantages. Thus, at the time of

the rulemaking, feasibility was neither controversial nor uncertain.

Industry Adjustment: The amended standard

has had the intended effects, vis-à-vis widening

the options for stabilization methods available to

building owners/developers and increasing the

incidence of safe work practices. However, the

overall number of alternate stabilization systems

installed to date has been well below OSHA’s

expectation at the time of the rulemaking, principally because the number of new high-rise buildings constructed has been considerably under the

estimate on which the regulatory impact calculations were based. (The estimates presented at the

standard’s promulgation in 1989 were based

chiefly on a consultant’s study prepared in 1983;

as a result, they missed the considerable slowdown in commercial building construction that

has prevailed in the United States since the late

1980s.)

Compliance Costs: OSHA’s figures in the Final

RIA placed the total incremental costs of the

amended standard at somewhat over $1.4 million

annually (1987$; including the various incremental

expenses for both building owners and contractors).

However, the greater flexibility in stabilization system choice conferred an estimated cost savings

(entirely to building owners/developers) of about

$3.1 million annually. Thus adoption of the standard was projected to provide an overall cost savings of around $1.7 million annually. With one

significant exception, the case study research

largely confirmed the reasonableness of most of the

unit compliance cost figures used in the regulatory

analysis calculations, the exception being a considerable underestimate of the cost of one of the several competing stabilization systems on one of

principal building materials in the marketplace. A

far more substantial disparity, however, is the

aforementioned slowdown in new high-rise building construction, with the actual annual pace since

the beginning of the 1990s only 20 to 40 percent of

the rate OSHA expected. In consequence, the overall cost savings to date appear to be substantially

lower than expected—$600,000 annually, assum-
Extended Summaries of Retrospective Case Comparisons | 99

ing the higher side of the range in the pace of new

building construction, or perhaps even a net cost of

$400,000 million annually, assuming the lower side

of the range.

Other Impacts: During the rulemaking, concern was expressed by industry commentators

that some erosion of productivity could accompany the widespread use of the stabilization system particularly favored by the amended

standard (the intermittent tie-in system). In contrast, OSHA’s analyses did not conclude this

effect would be significant. The outcomes thus

far have confirmed the agency’s conclusion on

this matter. Also, the safety-related provisions of

the standard were expected to yield some reduction in the safety risks of work activities on powered platforms. Here the number of accidents

(involving fatalities or hospitalized injuries) has

been “down” since promulgation. But there is

still too little of a time series record to fully confirm the anticipated effect.

Judicial Review: To date none of the standard’s provisions has been challenged.

Comments: This is another case of surprise

developments in critical variables affecting the

impact calculations. The long length of time

between the analyses on which the final economic estimates were based is an appropriate

subject for criticism. Nevertheless, given the timing of the end of lengthy business expansion of

the 1980s, even a substantial update of the analysis in late 1988 or early 1989 (the standard was

promulgated in mid 1989) would probably not

have identified the depth of the slowdown in

commercial building that subsequently occurred.

Furthermore, the analysis does appear to have in

the main correctly identified the essential technological and economic issues related to adoption

at the unit building level.

SOURCE: Office of Technology Assessment, 1995. The findings for

the Vinyl Chloride, Cotton Dust, and Ethylene Oxide standards draw

from existing retrospective studies (which OTA reviewed at length).

Original evaluative research was conducted by OTA for the Occupational Lead, Formaldehyde, Grain Handling facilities, Mechanical

Power Presses, and Powered Platforms standards. Each case study

is discussed at greater length in a comprehensive OTA working

paper on the case research findings and in the separate case study

reports (see Appendix B for citations).
| 101

B

Appendix B:

Working Papers

and

Commissioned

Research

PROJECT WORKING PAPERS

Mark A. Boroush, “Hazard Control Responses

and Economic Impacts in Selected OSHA

Health and Safety Standards—Expectations

vs. Outcomes,” unpublished project working

paper, Office of Technology Assessment,

U.S. Congress, Washington, DC, July 1995;

available from the National Technical Information Service (NTIS), Springfield, VA.

David Butler, “OSHA’s Brethren—Safety and

Health Decisionmaking in the U.S. and

Abroad,” unpublished project working

paper, Office of Technology Assessment,

U.S. Congress, Washington, DC, Sept. 1995;

available from the National Technical Information Service (NTIS), Springfield, VA.

CONTRACTOR REPORTS

Mark A. Boroush, Washington, DC, “OSHA’s

1984 Ethylene Oxide Standard: Retrospective Evaluation of the Rulemaking’s Feasibility/Impact Estimates,” unpublished

contractor report prepared for the Office of

Technology Assessment, U.S. Congress,

Washington, DC, March 1994; available

from the National Technical Information

Service (NTIS), Springfield, VA.

Mark A. Boroush, Washington, DC, “OSHA’s

1978 Cotton Dust Standard: Retrospective

Evaluation of the Rulemaking’s Feasibility/

Impact Estimates,” unpublished contractor

report prepared for the Office of Technology

Assessment, U.S. Congress, Washington,

DC, January 1994; available from the

National Technical Information Service

(NTIS), Springfield, VA.

Mark A. Boroush, Washington, DC, “OSHA’s

1974 Vinyl Chloride Standard: Retrospective Evaluation of the Rulemaking’s Feasibility/Impact Estimates,” unpublished

contractor report prepared for the Office of

Technology Assessment, U.S. Congress,

Washington, DC, November 1993; available

from the National Technical Information

Service (NTIS), Springfield, VA.

Charles Rivers Associates, Boston, MA, “Economic Impact Analysis of OSHA’s Rulemaking Process: Lead Case Study,”

unpublished contractor report prepared for

the Office of Technology Assessment, U.S.

Congress, Washington, DC, April 1994;

available from the National Technical Information Service (NTIS), Springfield, VA.

Robert Goble and Dale Hattis, Center for Technology, Environment, and Development,
102 | Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health

Clark University, Worcester, MA, “When

the Ceteris Aren’t Paribus: Contrasts

Between Prediction and Experience in the

Implementation of the OSHA Lead Standard

in the Secondary Smelting Industry,” unpublished contractor report prepared for the

Office of Technology Assessment, U.S.

Congress, Washington, DC, July 1995;

available from the National Technical Information Service (NTIS), Springfield, VA.

Molly K. Macauley and Paul R. Portney, Washington, DC, “Comparing Expected and

Actual Economic Impacts of OSHA Safety

Regulation: A Case Study of the Use of

Alternative Stabilization Systems for Powered Platforms,” unpublished contractor

report prepared for the Office of Technology

Assessment, U.S. Congress, Washington,

DC, February 1994; available from the

National Technical Information Service

(NTIS), Springfield, VA.

Molly K. Macauley and Paul R. Portney, Washington, DC, “Comparing Expected and

Actual Economic Impacts of OSHA Safety

Regulation: A Case Study of Presence Sensing Device Initiation for Mechanical Power

Presses,” unpublished contractor report prepared for the Office of Technology Assessment, U.S. Congress, Washington, DC,

January 1994; available from the National

Technical Information Service (NTIS),

Springfield, VA.

James C. Robinson, School of Public Health,

University of California, Berkeley, CA,

“The Impact of Environmental and Occupational Health Regulation on Productivity

Growth in U.S. Manufacturing,” unpublished contractor report prepared for the

Office of Technology Assessment, U.S.

Congress, Washington, DC, July 1994;

available from the National Technical Information Service (NTIS), Springfield, VA.

Ruth Ruttenberg, Ruth Ruttenberg and Associates, Bethesda, MD, “Compliance With the

OSHA Grain Handling Rule: Safety Measures Save Lives and Dollars,” unpublished

contractor report prepared for the Office of

Technology Assessment, U.S. Congress,

Washington, DC, June 1994; available from

the National Technical Information Service

(NTIS), Springfield, VA.

Robert F. Stone, Econotron, Inc., “An Evaluation

of OSHA’s Resources for Regulatory Analysis,” unpublished contractor report prepared

for the Office of Technology Assessment,

U.S. Congress, Washington, DC, March

1995; available from the National Technical

Information Service (NTIS), Springfield,

VA.

Robert F. Stone, Econotron, Inc., Framingham,

MA, “A Retrospective Analysis of the Economic Impact on Foundries of OSHA’s 1987

Formaldehyde Standard,” unpublished contractor report prepared for the Office of

Technology Assessment, U.S. Congress,

Washington, DC, August 1994; available

from the National Technical Information

Service (NTIS), Springfield, VA.

Robert F. Stone, Econotron, Inc., Framingham,

MA, “A Preliminary Examination of

OSHA’s Analytic Approaches for Estimating the Compliance Costs and Other Economic Impacts of Regulation,” unpublished

contractor report prepared for the Office of

Technology Assessment, U.S. Congress,

Washington, DC, March 1994; available

from the National Technical Information

Service (NTIS), Springfield, VA.

Robert F. Stone, Econotron, Inc., Framingham,

MA, “Three Case Studies of OSHA’s Regulatory Impact Analysis in Support of Recent

Rulemaking,” unpublished contractor report

prepared for the Office of Technology

Assessment, U.S. Congress, Washington,

DC, February 1994; available from the

National Technical Information Service

(NTIS), Springfield, VA.