American Journal of Industrial Medicine 17:255-259 (1990)

COMMENTARY

Standard Setting: A Political Process

Key words: exposure levels, standard setting principles, NLOSH, OSHA, tripartite Commission

Dr. Ann Robinson’s article [1989] on standard setting raises a number of sig- nificant issues. The toxicological principles and issues outlined in that article are generally valid, as are many of those relating to the philosophy of the process. The support for national and intersector uniformity, likewise, is a worthwhile objective. The linking of the occupational and environmental health issues, while it is not clearly expressed in Robinson’s article, highlights the key issue.

The major need in developing occupational health and safety standards is to recognize that the standard setting process is political. Once this is accepted, a discussion of the principles, issues, and processes becomes much more relevant and useful. The reality of this process is that occupational health and safety standards are determined by a political process, using political players (unions, employers, gov- ernments, even scientists) who operate according to their industrial relations habits and context.

One point on which one may take issue with Robinson is that the dichotomy between health and safety issues is not useful. Robinson describes different percep- tions and assumptions about, and responses to, them. However, the crucial issue of risk, or probability of illness or disease, is the same for each. If a useful distinction is to be made between types of hazards and their corresponding standards, the most useful is between single-dimensional and multifaceted risks (and prevention solu- tions).

INFLUENCE OF THE INDUSTRIAL RELATIONS CONTEXT Another point is that the consensus that is posed as the objective of the standard

setting process is itself a political option, chosen by the government. Different po- litical and industrial relations practices lead to different objectives.

In the U.S. context, it can be argued that OSHA has adopted a position closer to the employers’ than NIOSH recommends, and the employers then modify that by litigation. In the United Kingdom, the tripartite Commission pursues a result that all players can agree with and arrives at a lowest common denominator position (a consensus!).

The paper contains the opinions of the author and does not necessarily reflect the policy of the Victorian Occupational Health and Safety Commission or the government of Victoria, Australia. Address correspondence and reprint requests to Mr. Pitcher, Victorian Occupational Health and Safety Commission, Level 20, Nauru House, 80 Collins Street, Melbourne 3000, Australia. Accepted for publication August 7, 1989.

0 1990 Wiley-Liss, Inc.

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Another model, in Australia, where parties are used to an imposed arbitrator model of industrial relations, is based on the concept of the arbitrated compromise that each of the parties can tolerate [Pitcher, 19891. In the negotiating process, the parties are used to negotiating up to a certain point and then agreeing to disagree. The readily available mechanisms of the Australian Industrial Relations Commission and the State Industrial Relations Commission enable the partics to maintain their “pure” position and to pass the responsibility for resolution to a third party.

This arbitrator imposes a resolution that both parties usually accept. This is generally because they knew and expected the imposed compromise. The point is that they implicitly had a consensus, but they avoided the responsibility of publicly agreeing to it. This responsibility was laid at the independent arbitrator’s door.

The understanding of occupational health and safety standard setting in any one place is best illuminated by examining how the industrial relations and government- industry relations are conducted in the country.

PHILOSOPHY OF STANDARDS

The philosophy of standard setting does take account of the issues identified by Robinson, but a more useful approach is to consider the philosophical basis as comprising one or some of the following possible options.

1. Relative risk: The calculated risk for a particular exposure is compared with other existing risks in the community that implicitly are acceptable.

2. Technologically achievable: The lowest exposure level possible, using “state of the art” control technology.

3 . Limit of detection: Thc level that is set is defined by the limits of the measuring equipment available. This limit is based on the impracticability of enforc- ing a level that cannot practically be measured.

4. Cost/benefit: Adds the economic dimension by using some assessment of the costs and benefits (qualitative and quantitative) of the proposed standard and using the criterion that the benefits must outweigh the costs.

5 . As low as reasonably practicable. 6. Some combination of the above.

In practice, a combination of the hygiene principle of keeping exposure to hazardous substances as low as possible and the justification demanded by employers of cost/benefit returns means that the key issue is to determine the lowest level of exposure that is practicable. This is where practicable is a combination of factors that is well outlined in the Victorian Occupational Health & Safety Act [Victorian Gov- ernment Printing Office, 19851 to comprise:

(a) the severity of the hazard or risk in question; (b) the state of knowledge about the hazard or risk and any ways of removing or mitigating that hazard or risk; (c) the availability and suitability of ways to remove or mitigate that hazard or risk; and (d) the cost of removing or mitigating that risk.

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The most fundamental consideration is what can be practicably achieved. Thus the crucial question becomes: What is the lowest standard that can be achieved in practice?

THE REQUIREMENTS OF A STANDARD

The objective of the standard setting process, rather than seeking consensus, is to define parameters (standards) and to provide guidance that influences behavior to achieve a healthy and safe workplace that reduces the incidence of ill-health. To assist in this, there are a number of criteria that a standard should meet:

1. It should provide an acceptable level of “protection”/risk. To be useful in this regard, it should be specific in detail [Schrecker, 19861.

2. It should comply with legal requirements imposed by enabling and other relevant legislation, be compatible with common law precedents, and take account of individual and societal rights.

3. It should be practicable, taking into account the state of knowledge about the hazard and the means of reducing the risk, the availability of the means of risk reduction, and the cost of measures [Schrecker, 19861.

4. It should be practical in that it can be applied in the workplace, administered, and enforced.

5. It should survive foreseeable industrial, social, political, and legal events and the scrutiny of the legal and sociopolitical processes [Schrecker, 19861.

6. It should allow for appropriate technological advances. 7. It should be supported by an information and communication system to

8. It should be supported by a system to monitor the application and effective- explain the standard and ways of achieving it [Schrecker, 19861.

ness of the standard [Schrecker, 19861.

THE ROLE OF TECHNICAL SPECIALISTS

Within the process, the respective players have their roles to play. The prob- lematic role is that of the technical (scientific) players. There is no question that the evaluation of scientific evidence is a useful beginning for the standard setting process. However, this should not be the end of the process if the social partners together, or the employers (in the industry) by themselves, have established an industry level of practice that is more healthy.

To put this role into perspective, one must accept with a grain of salt the “objectivity” of these technical people [Albury, 19831. When left to themselves, they too have been unable to write guidance that is digestible in industry.

1. The consensus of the technical group is based on a selective view of the area. In particular, a group of technical people will reach a consensus that represents the majority view of relevant scientists at a point in time. This majority view of the state of knowledge is certainly one valid position to consider. However, in any area there will be other technical views that need to be considered to enable a comprehensive approach.

2. Since a general goal of industrial hygiene is to keep the exposure to hazards

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as low as is practical, the issue is to determine how low the exposure can practically be. This implies that it is not useful to separate /isolate the risk assessment stage. The scientific information is still required for the risk evaluation process but will only be one element of the broader information required by the parties at this stage.

3 . Another reason is that few technical people are aware of the needs of the end users of the documents. A detailed documentation of studies and a rigorous analysis of their conclusions, while excellent scientific discipline, is not the outcome that employers and health and safety representatives can readily use in the workplace. The technicians, for good or bad, cannot write as journalists do.

In summary, the technical group may omit relevant material or may be unable to express it in a usable form. In any case, the area will be gone over again by the social partners.

On the positive side, technical specialists do contribute knowledge and skill related to the methodology of risk assessment and also in the provision and devel- opment of risk control solutions. The other parties (unions and employers) contribute the meanings/implications of particular standards levels for industry, for individuals’ health, and for social/political values.

A SUCCESSFUL PROCESS

On the practical side, there are several things that have been shown to be useful in the standard setting process.

1. A clear definition of objectives, including what hazard is being addressed and what outcome is desired, i .e., a minimumioptimal, mandatory/exemplary , eviden- tiaryiadvisory standard.

2. A comprehensive first draft of the standard, including performance (objec- tives) standards, good practicable examples and guidance, and inclusion of a range of views. (Tripartite and committee processes tend to edit and remove, but rarely create major bits of text.)

3. Parties communicating with and listening to their constituents and, at times, marketing the results of the negotiation process to them.

4. Efficient and effective process management: a productive and well-managed committee and consultative process.

5. A process for decision making when parties cannot agree. (Some form of arbitration is useful here.)

The final point, and the most difficult, is the decision making within the con- sultative framework. As discussed earlier, with the social partners locked into posi- tions, how does one achieve an outcome that everyone can accept?

The solution requires two ingredients: First, an outcome that all parties can live with must be achieved. This need not meet the formal public position, but, setting aside the rhetoric, it will be a practicable resolution that will not result in “the end of civilization as we know it” if implemented. The second ingredient is the availability of an “arbitration” mechanism, This need not be a formally appointed arbitrator, but the decision making mechanisms should provide for pcople to resolve impasses

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between the parties. The structure of the tripartite body and its formal decision making will determine who will play the arbitrator’s role.

CONCLUSIONS

Dr. Robinson’s article provides useful identification of some issues and general principles that need to be taken into account. A realization of the political nature of the standard setting process assists in properly identifying the issues and in develop- ing practical strategies to achieve the objective: a standard that gives guidance and encourages behavioral change to provide safer and healthier workplaces.

Michael Pitcher Victorian Occupational Health

Melbourne. Australia and Safety Commission

REFERENCES

Albury R (1983): “Politics of Objectivity.” Geelong: Deakin U.P. Pitcher M (1989): Standards development: Some concepts and practice. .I Occup Health Safety Aust NZ

Robinson AE (1989): Standard setting and protection of human health and safety Am J Ind Med 15:

Schrecker T (1986): Pitfalls of standards. Can Centre Occup Health Safety IX: 3-4. Victorian Government Printing Office ( 1 985): “Occupational Health and Safety Act.” Melbourne,

5:22 1-228.

2 13-23 1.

Australia: V.C.P.O.