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Comprehensive Critique of Draft Safety and Health Program Standard Submitted to OSHA

Date: Apr 22, 1998


The following letter was submitted to the Occupational Safety and HealthAdministration on March 25, 1997, on behalf of the American Iron and Steel Institute. The letter contains detailed comments on OSHA's draft of the Safety and Health Program Standard, proposed on November 15, 1996.

For related articles, see also OSHA Releases Draft of Safety and Health Program Standard on this Web site.

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March 25, 1997

Mr. Gregory R. Watchman
Deputy Assistant Secretary for Occupational Safety and Health
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room S-2315
Washington, D.C. 20210

Re: OSHA's Working Draft of a Proposed Safety and Health Program Standard for General Industry, Dated November 15, 1996

Dear Mr. Watchman:

The American Iron and Steel Institute (AISI) hereby submits these written comments onthe referenced working draft for the purposes of confirming, clarifying and expanding onthe substance of the presentation made by the AISI delegation at the afternoonstakeholder's meeting on December 11, 1996. AISI has 39 U.S. member companies (hereinafterreferred to as "AISI's member companies" or "the member companies")which account for over two-thirds of the steel production in the United States and employapproximately 125,000 workers in their steel operations. The draft proposed rule, ifadopted, is likely to have a significant effect on our members' operations.

Before getting into the substance of the safety and health program initiative, we wishto express our sincere appreciation to the Agency for its use of an expanded stakeholderprocess in an effort to provided interested parties with a meaningful opportunity toeffectively participate in the Agency's rulemaking process. We believe the OSHA rulemakingprocess can advance the goals of the OSH Act only when it is conducted in an open andinteractive manner. The use of the stakeholder process was strongly advocated by industryin comments on OSHA's Priority Planning Process and is now an integral aspect of theCommon Sense Regulation initiative announced by President Clinton and Vice President Gorein May of 1995.

  1. THE AGENCY MUST FIRST ADDRESS FUNDAMENTAL THRESHOLD ISSUES
  2. While we congratulate the Agency for using an expanded stakeholder process for thisinitiative, we are compelled to point out that the Agency does not satisfy either itspublic policy obligations or its legal obligations simply by emphasizing interaction withstakeholders in drafting regulatory text. There are several fundamental, threshold issueswhich must be addressed before the Agency proceeds down that path. First, does the OSH Actgrant OSHA the authority to issue a generic standard applicable to every hazard covered bythe OSH Act? We do not believe it does but nevertheless proceed to list the remainingthreshold issues. Second, is there some remaining significant risk of harm in theworkplace which justifies regulatory intervention? Third, if regulatory intervention isjustified, is the remaining significant harm most effectively addressed by compliance withone or more new occupational safety and health standards, or would it be more effectivelyaddressed by some other regulatory intervention? Fourth, if a new occupational safety andhealth standard is appropriate, is the standard which has been proposed, or some variationof it, reasonably necessary and appropriate to eliminate or control that significant riskof harm? This fourth question encompasses a look at alternative requirements andalternative scopes of application. Administrative convenience does not justify universalapplication of a one-size-fits-all safety and health program standard in light of thefollowing facts: all hazards are not equal, much less significant; all risks are notequal, much less significant; and there is a huge class of employers that already have aneffective occupational safety and health management program without this additionalintervention by OSHA.

  3. THE AGENCY MUST OBTAIN AND THEN ACT IN A MANNER CONSISTENT WITH THE BESTAVAILABLE EVIDENCE
  4. Section 6(b)(5) of the OSH Act provides that standards shall be promulgated "onthe basis of the best available evidence." Section 6(b)(5) goes on to state, in part,as follows:

    Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws.

    Section 1(b)(7) of Executive Order 12866 provides, in principle, as follows:

    Each Agency shall base its decisions on the best reasonably obtainable scientific, technical economic, and other information concerning the need for, and consequences of, the intended regulation.

    The Agency has not yet met those threshold obligations. The premises advanced by theAgency for this initiative are as follows: 1) "workers in all major industry sectorsin the United States continue to experience an unacceptably high rate of occupationalfatalities, injuries and illnesses"; 2) a substantial number of these deaths,injuries and illnesses are preventable; and 3) "a systematic approach to workplacesafety and health can substantially reduce injuries, illnesses andfatalities." From a public policy standpoint, legalities aside, our threshold concernis a lack of the well-documented, compelling, statistical studies necessary to support theAgency's determination that it would be appropriate to impose a comprehensive,one-size-fits-all safety and health program standard on all employers in all industries.This determination appears to be based on anecdotal information and unsupported assertionsof a growing body of evidence of the effectiveness of such programs in significantlyreducing fatalities, injuries and illnesses. What is missing is convincing evidence fromwell-documented studies which validate this so far unsupported premise. The Agency mustdemonstrate that the safety and health performances of employers with government-mandatedprograms such as those contemplated by the Agency's initiative are significantly betterthan those of employers without such programs and that it is the existence of the program,with all of the core elements identified by the Agency, which makes those programssignificantly more effective.

    OSHA has stated that the effectiveness of systematic safety and health programs is"evidenced by the experience of OSHA's Voluntary Protection Program participants, whoregularly achieve injury and illness rates averaging one-fifth to one-third those ofcompeting firms in their industries." Even if these statistics are valid, and can beattributed to implementation of a voluntary safety and health program, it does notfollow that these results would be achieved by those implementing a government-mandatedprogram.

    Similarly, in assessing the effectiveness of various state-mandated safety and healthprograms, it must be remembered that those program requirements were generally onecomponent of legislation overhauling each of the state's workers compensation laws. Theeffects of the other changes in those laws, as well as innovations in health caremanagement and return to work programs, must also be taken into account.

    The Agency's effort to involve stakeholders in the drafting of regulatory text ishighly commendable but premature. Some might describe the situation as putting the cartbefore the horse. However, we believe the foundation for this initiative is far lesscertain. There may never be a horse and the cart may not have wheels. In other words, in ahighly controversial area such as this, we believe it is totally inappropriate to askstakeholders to comment on regulatory text for a standard which the Agency has not yetjustified and very well may not be able to justify. In the absence of convincing data, weare not prepared to accept the general premise that some form of government-mandated andenforced comprehensive one-size-fits-all safety and health program standard is reasonablynecessary and appropriate, particularly one which would be applied to all employers in allof general industry and possibly all industries.

  5. THE DRAFT SAFETY AND HEALTH PROGRAM STANDARD FAILS TO SATISFY THEAPPLICABLE REQUIREMENTS OF THE OSH ACT
  6. From a legal standpoint, the Agency is authorized to develop occupational safety andhealth standards, pursuant to 6(b) and 3(8) of the Act, to address those identifiedhazards(1) which create a potential for death or seriousbodily harm in the workplace. Generally, to sustain a standard on judicial review, OSHAmust demonstrate the following:(2)

    1. current exposure levels to the identified hazard pose a significant risk of harm;(3)


    2. the proposed requirements would significantly reduce the risk posed by that identified hazard;


    3. the proposed requirements are technically and economically feasible; and


    4. the proposed requirements are the most cost-effective approach for achieving the reduction in risk posed by that identified hazard.

    OSHA's draft safety and health program standard fails to identify the covered hazards.Instead, it improperly attempts to describe the hazards on a generic basis by stating thatthe scope of the standard would be co-extensive with the scope of the OSH Act. In otherwords, it would apply to every hazard covered by either the General Duty Clause (Section5(a)(1) of the OSH Act) or an existing OSHA standard.

    In effect, the safety and health program standard would amend both the General DutyClause and every occupational safety and health standard issued by the Agency. The draftproposal reflects a view that the General Duty Clause, even in combination with 17(k)(4) of the OSH Act, is inadequate and, therefore, must beamended to specifically impose the one-size-fits-all safety and health program on everyemployer with respect to every hazard covered by the General Duty Clause. While werespectfully disagree with that judgment, it is clear that nowhere in the OSH Act or inany other statute does Congress attempt to delegate to the Secretary of Labor theauthority to amend 5(a)(1) or 17(k) of the OSH Act. Nor would such a delegation ofauthority be permitted by the Constitution of the United States which entrusts thelegislative authority under our system of government to the Congress rather than theExecutive Branch. Among other reasons for that proper limitation on the delegation ofauthority is the fact that the Department of Labor could not even begin to identify all ofthe hazards which are subject to the General Duty Clause.

    With respect to the hazards covered by existing 6 standards, OSHA is, in essence,attempting to make the following determinations on a generic basis: 1) that every singleone of its existing standards is inadequate, (i.e., that there is a remaininglevel of significant risk with respect to every single hazard covered by an OSHAstandard); 2) that the requirements in the draft proposed one-size-fits-all safety andhealth program standard are reasonably necessary and appropriate to eliminate and/orcontrol each of these hazards; and 3) therefore, that every one of those standards shouldbe amended. However, rather than proposing to amend each of its standards, in accordancewith the rulemaking process authorized by the OSH Act, the Agency is attempting, through ageneric rulemaking to achieve that result. In other words, with respect to widely varyinghazards covered by a multitude of standards, the OSH Act requires the Agency to make aseparate determination as to whether there is a continuing significant risk with respectto each of those hazards, and if so to determine what measures would be the mostappropriate measures for eliminating or reducing that risk.(5)Instead of proceeding in that fashion, the Agency suggests that it has the authority toconclude that there are many preventable deaths, injuries and illnesses and, therefore, acomprehensive approach which, in theory, would address all of them in generic fashion, isthe appropriate way to proceed. We do not believe this approach is permitted by the OSHAct.(6)

  7. COMMENTS ON SPECIFIC PROVISIONS OF THE DRAFT PROPOSAL
  8. AISI continues to dispute both the need for a comprehensive safety and health programstandard and the regulatory scheme advanced by the Agency for establishing such a program.Notwithstanding our position with respect to the threshold issues, we nevertheless believeit would be prudent to and, therefore, are taking this opportunity to confirm and clarifyour comments regarding specific provisions of the draft proposed standard. They arepresented in the same order as the draft regulatory text.

    Overall, while we appreciate the Agency's effort in developing performance-orientedlanguage, we believe many if not most of the draft proposed requirements are dangerouslyvague and ambiguous to the point of failing to satisfy constitutional due processrequirements. As written, they leave employers with far too much uncertainty as to what isrequired, and would provide far too much discretion to OSHA enforcement personnel indetermining what is required and whether the employer is in compliance.

    1. Section (a) Scope and Application
    2. Draft Section (a)(1) exempts construction and maritime activities from the coverage ofthe standard. Given the lack of a clear delineation between general industry andconstruction activities,(7) and the fact that large-scaleconstruction activities are often performed at a manufacturing site, we are concernedabout the potential for problems posed by the application of inconsistent standards at thesame site.

    3. Section (b) Basic Obligation
    4. Draft Section (b)(2), titled "Core Elements," lists what some might describeas the five appropriate core elements for a comprehensive safety and health managementprogram. However, we are not convinced that what might be considered the appropriate coreelements for a VPP facility would be considered appropriate for all facilities in allindustries in the United States. Furthermore, we are confident that many non-VPPfacilities have effective safety and health programs without having the five coreelements, particularly as OSHA proposes to define them in the additional provisions of thedraft standard, or as OSHA compliance personnel or the Solicitor's Office would definethem in any enforcement proceedings.

      As presently written, the draft standard fails to recognize the many existing,effective safety and health programs which would not satisfy the requirements of the draftstandard. In response to that criticism, the Agency suggests adding the followinglanguage:

      Employers who demonstrate that they have an effective alternative for managing safety and health are in compliance with this standard if the alternative includes all of the core elements.

      Clearly, that language fails to provide any meaningful alternative. It might as wellread:

      Employers who demonstrate they have an effective alternative for managing safety and health are in compliance with this standard if they are in compliance with this standard.

      As one alternative, we suggest that the Agency work with stakeholders in identifyingkey statistics which would provide a quick and effective means of identifying alternativeeffective programs. In its present form, the variance process does not provide a viablealternative.

    5. Section (c) Management Leadership and Employee Participation
    6. Before addressing the specific language of the draft regulatory text, we believe it isappropriate to raise our fundamental objection to the approach represented by the section.As we have stated previously in connection with this initiative and the OSH Act reformlegislation sponsored by Former Representative Ford and Senator Kennedy, we object to anygovernment mandate which would attempt to dictate, to employers and employees, anacceptable level of management leadership or employee participation in safety and healthprograms or any other activity. We believe those types of employment relations issues mustbe worked out between the employer and its employees without government intervention. Wenow turn to the regulatory text.

      We believe Section (c)(1)(ii)(A) is dangerously ambiguous and would provide OSHAenforcement personnel with far too much discretion in determining whether the safetyresponsibilities of various personnel have been established with the appropriate level ofdetail. We question whether OSHA compliance personnel would recognize compliance with thatsub-section in the absence of fairly extensive documentation of employee responsibilitieseven though such documentation would not and should not be required by the draft proposal.Similarly, draft Section (c)(1)(ii)(B) would provide OSHA enforcement personnel withexcessive discretion in determining whether various personnel have been provided with: 1)authority commensurate with their safety and health responsibilities; 2) access torelevant information commensurate with their safety and health responsibilities; and 3)training commensurate with their safety and health responsibilities.

      With respect to employee participation, draft Section (c)(2)(i) creates an open-endedbasic obligation to provide employees with opportunities for "meaningfulparticipation" without defining what is meant by the term "meaningfulparticipation." Draft Section (c)(2)(ii), titled "MeaningfulParticipation," begins with the phrase "Meaningful participationincludes:". This language suggests that additional requirements may be imposed before"meaningful participation" is achieved. While we do not concede that employeeparticipation is an essential core element of every safety and health program, we dobelieve that the items in draft Section (c)(2)(ii) go beyond what would be reasonablynecessary and appropriate to provide for meaningful participation.

      With respect to draft Section (c)(2)(ii)(A), we see excessive discretion andpotentially endless litigation over whether an employer is providing "effectivecommunication." Draft Section (c)(2)(ii)(B) appears to require employee involvementin, among other things, "controlling hazards." In some facilities, the lineworker may be extensively involved in that activity; in other facilities, thereappropriately may be no line worker involvement in that activity.

      In light of the language in the Program Evaluation Profile (CPL 2, dated August 1,1996, which has not gone through the rule making process but which the Agency hassuggested may, in effect, be used to enforce the contemplated safety and health programstandard), and associated discussions regarding its interpretation, we are particularlyconcerned about the language in draft Section (c)(2)(iii). In part, that section providesthat employers must not "discourage employees from making reports . . . concerningfatalities, injuries, illnesses or hazards in the workplace . . . ." Clearly,employers may not take retaliatory action of the type proscribed by Section 11(c) of theOSH Act. On the other hand, appropriate disciplinary action will discourage employees frommaking those types of reports but OSHA certainly does not mean to prohibit employers fromtaking appropriate disciplinary action against employees because it might discourage theemployees from filing reports of injuries, illnesses or death. Similarly, our members havefound various types of safety award programs to be an effective means of raising employeeawareness and motivation with respect to safety issues. While, in limited cases, theseprograms may also discourage reporting of workplace incidents, the benefits of the varioussafety award programs far outweigh those incidental adverse effects.

    7. Section (d) Hazard Assessment
    8. As written, draft Section (d)(1)(ii) would appear to require an employer to reviewevery piece of safety and health information available to the employer, including everypublished article or report on every human or animal study generated anywhere in theworld. The response of the OSHA/DOL panel to this concern during the stakeholder's meetingwas that the language was intended to be limited to materials at the employer's site.While we believe that clarification is moving in the right direction, further refinementon the issue is certainly required. For example, as the OSHA/DOL panel acknowledged, anemployer should be allowed to rely on the material safety data sheet provided by asupplier without having to the review the results of animal studies in a journal to whichit may happen to subscribe. If interpreted in too burdensome a manner, employers maysimply terminate subscriptions to scientific journals so as to avoid the obligation toreview and assess the results of studies which continue to pour out of scientific andacademic institutions around the world.

      The language in Section (d)(2) regarding the required frequency of hazard assessmentsis both vague and unreasonably burdensome. It would appear to impose absolute liability onan employer for the failure to identify a single hazard despite the recognition that somehazards rarely present themselves and, for that reason, very likely would never beidentified in the absence of an accident or continuous (100%) inspection. Except for"near miss" incidents, the investigations which would be required by draftSection (d)(3) are already required by 29 C.F.R. 1904. However, we object to a requirementto investigate "near miss" incidents for two reasons. First, we anticipateendless disputes between employers and OSHA compliance personnel as to what qualifies asan "incident that created a substantial risk of death or serious injury orillness." Second, for situations where an employee seeks to harass an employer, thisnew obligation would provide a highly subjective new basis for filing an employeecomplaint -- the employer's failure to investigate an alleged incident that allegedlycreated a substantial risk of serious injury or illness.

      Although the documentation requirement is listed in Section (d)(5)(i), under hazardassessment, it would apply to both Section (d) hazard assessment and Section (e) hazardprevention and control. We strenuously object to the proposed documentation requirement onseveral fundamental grounds. First, as the Agency is well aware, there has been acontinuous policy debate as to whether it is appropriate for government compliancepersonnel (OSHA, EPA, etc.) to request much less obtain through compulsory process, copiesof internal compliance audits performed by employers.(8) Asa practical matter, this provision is likely to end that debate. We anticipate thatcompliance personnel would automatically ask for these documents at the beginning of everyinspection just as they now ask to review the OSHA Forms 200 and 101, the employer'slockout/tagout program, the employer's hazard communication program, etc.

      As a matter of policy, we strongly believe that OSHA should not ask for copies ofinternal compliance audits. Otherwise, the draft standard and its enforcement are likelyto discourage employers from performing audits with the depth and thoroughness that mightbe appropriate. The likelihood of the foregoing demonstrates, in yet another way, the factthat the draft proposal does not reflect the appropriate balance between cooperation andenforcement. The employers who are "invited" to participate in a cooperativecompliance program (CCP), allegedly because of less than satisfactory safety and healthperformances, are given a substantial period of time to perform hazard assessments andthen another one to two years to bring their facilities into compliance with OSHAstandards in accordance with a formal abatement program. In contrast, this draft proposedstandard should but fails to make a similar extended abatement program available, on aformal basis, to those employers who would be covered by this standard but are not part ofa CCP.

      Finally, in an ideal world, it might be appropriate to make internal audit reportsavailable to employees for their review. However, given the realities of the world we livein, we strenuously object to any requirement to make internal audit reports available toemployees and employee representatives, particularly with respect to the hazards to whichthey are not exposed. The availability of these reports to employees and employeerepresentatives would have two significant effects. First, it would enable employees withgrudges or in the midst of labor relations disputes to harass their employer by disclosingor threatening to disclose proprietary information to the media or OSHA out of context andin a fashion which might have an adverse impact on the employer's business. Second, theavailability of these documents to employees and employee representatives is likely toencourage employers to perform less effective and less frequent audits, and to expendsubstantial additional resources involving legal counsel in the performance of audits andthe preparation of audit reports.

    9. Section (f) Information and Training
    10. As the OSHA/DOL staff acknowledged during our stakeholder's meeting, draft Section(f)(1), particularly in light of the change in the language of subparagraph (f)(1)(iv), isnow written as a generic training requirement which would apply to the entire universe ofhazards governed by either an OSHA standard or the General Duty Clause. While, inprinciple, it may seem appropriate to require that employees be trained to a levelcommensurate with the hazards to which they are exposed, we strenuously object to thisprovision. As a general rule, we believe it is appropriate to provide employees withgeneral training as to the types of hazards to which they are likely to be exposed and theapplicable control measures, with the expectation that they will use common sense intransferring that knowledge to a variety of situations. In addition, there are somesituations where it is appropriate to provide specific training regarding special hazardsto which employees are likely to be exposed. Clearly, there is a need to exercise judgmentin determining what types of training are appropriate for a given employee. Thesejudgments will be based on a risk assessment which takes into account the significance andnature of the hazard, whether it would be obvious or readily identified, the nature of theemployee's prior training and experience, and any other significant factors.

      The draft proposed language would give OSHA enforcement personnel excessive discretionin second guessing the employer's judgment in identifying the hazards of concern and thelevel of training which is required. For example, an employee can be effectively trainedon the hazards addressed by machine guarding and the consequences of bypassing it withoutaddressing the specific conditions and hazards posed by every guarded location in thefacility. Furthermore, we believe it is reasonable for an employer to expect an employeeto use his/her common sense and experience to identify and protect themselves againstcommonly recognized hazards without the need for employee training. For example, anemployee should recognize that an injury is likely if one drops a heavy weight on one'sfoot or if one closes an A-frame ladder with one's fingers in the pinch point when the twosides come together. We have a very real and justified concern that OSHA will attempt tomake the employer the absolute guarantor of workplace safety through the universaltraining provision. Our concern is that every time something goes wrong, the complianceofficer will say to the employer either "you failed to provide adequatetraining" or "you failed to document and enforce the rule on which the trainingwas provided."

      In addition, we strongly object to the Agency's adoption of a generic trainingprovision which would apply to controversial areas where the hazard (and appropriateprotective measure) has not been clearly identified or is no different in nature than thehazard faced and accepted by the public at large. For example, the Agency has not yetdeveloped the science necessary to issue a standard on ergonomics management. There is nogeneral agreement on what exposures pose a significant risk or on appropriate ergonomiccontrol measures. Yet, according to the statements made by the OSHA/DOL panel at thestakeholder's meeting, the training provision of the draft standard would require trainingwith respect to ergonomics hazards wherever there is exposure to these, as yet, undefinedhazards.

      We would strenuously object to the concept that exposure to ergonomics hazards isestablished by the presence of OSHA 200 entries referencing repetitive motioninjuries/illnesses. Under current law, OSHA's apparent view is that those entries arerequired whenever work activity can be said to have made any contribution (more than zeropercent) to the occurrence of a new injury/illness or the aggravation of an existinginjury/illness. For a variety of reasons, this results in a substantial over recording ofthose illnesses which, as a matter of policy, should be attributed to the work place.Similarly, it is unclear whether the Agency has developed the legal and/or scientificjustification for an indoor air standard, at least as presently proposed. Nevertheless, inthe Agency's view, the proposed training provision would apply to those work sites posingas yet undefined indoor air hazards.

      The Agency's recent efforts in the area of workplace violence have been highlycontroversial and remain the subject of extensive research and debate. And yet, accordingto the OSHA/DOL panel, this area would also be subject to the training and otherprovisions of the draft proposed safety and health program standard.

      Some years back, OSHA proposed a motor vehicle safety standard which would haverequired driver training and mandated the use of seat belts. There was fairly universalindustry opposition to standard on the basis that it was neither necessary nor appropriatebecause: 1) the states already addressed these issues, and 2) the activities in questioninvolved the same risks already accepted by the general public outside the workplace ineveryday life. In the Agency's view, as expressed by the OSHA/DOL panel at ourstakeholder's meeting, training similar to that which would have been required under thatabandoned standard would now be required under the provisions of draft Section (f) of thesafety and health program standard.

      Finally, although we strenuously object to the scope and ambiguity of draft Section(f), it should be clear that it would be impossible to provide the required trainingduring normal operating hours within the 12-month period referenced in the draft proposal.Furthermore, even if it were possible to complete the training by relying on the use ofovertime, it would be highly inappropriate in this competitive age to require employersacross the United States to incur a huge overtime cost to comply with new trainingrequirements covering every hazard covered by the OSH Act.

    11. Section (h) Small Business and Multi-Employer Workplaces
    12. In many situations, draft Section (h)(1)(ii) fails to reflect well-recognized andlongstanding commercial practices. The responsibilities assigned to the host employerunder Section (h)(1)(ii) would be handled by the general contractor rather than the hostemployer in situations where the host employer has retained a general contractor tocoordinate the project. Where there is no general contractor, the responsibility forcoordinating communication would generally belong to the host employer.

    13. Section (i) Outreach, Compliance Assistance and Enforcement
    14. We congratulate the Agency for making a commitment to providing technical assistancematerials and other guidance to employers prior to the effective dates of thestandard so they can use and rely on them in coming into compliance. To ensure thiscommitment is meaningful, we urge that Section (i)(2) be modified in two ways. First, itshould specify a date, sufficiently prior to the scheduled effective date, when thematerials will be available, so that employers will have an adequate opportunity to usethem. Second, the deadline for coming into compliance with specific requirements of thestandard should be delayed by one day for each day beyond the specified dates that theAgency delays in providing the technical assistance materials in a form which is certifiedas adequate by the National Safety Council or some other recognized, independent body, aswell as OSHA's Directorate of Compliance Programs.

      As we understand it, the intent of Section (i)(iii) was to treat generally responsibleemployers in a significantly different fashion from irresponsible employers. OSHA wouldassess larger penalties against those employers with systemic failures demonstrating alack of commitment to workplace safety and health. While we appreciate the Agency'sobjective, we do not believe that the language proposed by the Agency is reasonably likelyto achieve it. First, as we believe the Agency now recognizes, the "tell-taleindicator" is not a "pattern of serious hazards" but a "pattern ofemployee exposure to serious hazards." Second, the definition of the term"pattern of serious hazards" is so open-ended as to provide excessive discretionto OSHA compliance personnel. The phrase "a number of serious hazards of the same orsimilar type or serious hazards resulting from the same or similar deficiencies"could be as little as two violations of the same standard which, except for willfulviolations, would normally be grouped into single item.

* * *

In conclusion, we do not believe the Agency has demonstrated or will be able todemonstrate that the contemplated, comprehensive one-size-fits-all safety and healthprogram standard is reasonably necessary or appropriate to achieve and/or maintain safeand healthy working conditions at every place of employment in the United States.Furthermore, those employers who already have effective programs do not believe it iseither fair or appropriate to be put to the burden of preparing for and participating inwhat could very well be an exhaustive and highly subjective compliance inspection simplyto verify compliance with an unnecessary standard. For employers with effective programs,the preparation would involve assessing and modifying their programs not to improve safetybut to improve their chances of satisfying a compliance officer's subjectiveinterpretation of what would be adequate under the standard. The "OSHA ReformSurvey" released by the National Association of Manufacturers on December 3, 1996, aswell as recent episodes of overzealous compliance officers brought to the Agency'sattention, demonstrates that OSHA's reinvention has a long way to go and that ourobjections to this initiative reflect real world experience.

We sincerely appreciate OSHA's use of the expanded stakeholder process and itsconsideration of these comments. If you would like to discuss AISI's position on thisinitiative, please contact me or Lawrence Halprin of Keller and Heckman.

Respectfully submitted,

Peter A. Hernandez
Vice President, Employee Relations

Of Counsel:
Lawrence P. Halprin, Esq.
Keller and HeckmanLLP
1001 G Street, N.W.
Suite 500, West
Washington, D.C. 20001
Phone: (202) 434-4177
Fax: (202) 434-4646

cc: Jere R. Glover, Esq. (SBA)
Sally Katzen, Esq. (OMB)
Marte B. Kent (OSHA)
John F. Martonik (OSHA)
Richard M. Pfeffer, Esq. (SOL)

________________

1. OSHA has proposed to define the term "hazard" asfollows: an object, condition, process or action at the workplace that poses a risk ofdeath, illness or injury to an employee and is covered by another OSHA standard or by theGeneral Duty Clause.

No one has suggested or credibly could suggest that the hazards to be addressed by thesafety and health program standard would be lack of a safety and health program,management leadership, employee involvement, etc. Those are not hazards; at best, theycould be described as underlying causes for the failure to properly identify and controlhazards.

2. See Control of Hazardous Energy Sources, SupplementalStatement of Reasons, 58 Fed. Reg. 16612, 16614, cols. 2 and 3 (March 30, 1993),upheld in International Union, UAW v. Occupational Safety and Health Administration,U.S. Department of Labor, 37 F.3d 665 (D.C. Cir. 1994) (Lockout/Tagout II).

3. Industrial Union Department, AFL-CIO v. American PetroleumInstitute, 448 U.S. 607, 615 (1980) (vacating the benzene standard).

4. Section 17(k) of the OSH Act already imposes an obligation onemployers to use reasonable diligence in discovering and eliminating hazardous conditionswhich constitute serious violations of the OSH Act.

5. AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir.1992) (vacating 428 new permissible exposure limits for failure to satisfy the OSH Actcriteria for promulgating OSHA standards). We believe the Hazard Communication Standardwas the broadest generic standard adopted by the Agency pursuant to a 6(b) rulemaking.While it covered a large number of chemicals, it was limited to the hazards associatedwith overexposure to hazardous chemicals. Furthermore, the validity of that standard, asinterpreted by OSHA, remains in doubt based on the significant risk issue. See DurezDir. of Occidental chemical Corp. v. OSHA, 906 F.2d 1, 4-5 (D.C. Cir. 1990). In AmericanForest & Paper Association v. OSHA, Docket No. 94-1419, AISI filed a petition forreview challenging, among other things, the scope of the hazard assessment and employeetraining provisions of OSHA's revised Personal Protective Equipment (PPE) Standard -- 29C.F.R. 1910.132(d) and (f). Those provisions purported to apply to all types of PPEalthough the regulatory analysis and other data in the record were limited to head, eye,face, hand and foot protection. In response to that challenge, OSHA issued a correctionnotice which added 29 C.F.R. 1910.132(g) and limited the scope of the hazard assessmentand training provisions to those five types of PPE.

6. The OSH Act reform bills introduced by Representative Ford andSenator Kennedy in the 103rd Congress contain provisions which would haveauthorized and required OSHA to adopt a safety and health program standard. Thoseprovisions, as well as the bills in general, were strenuously opposed by industry ashighly counterproductive to achieving workplace safety. While we believe OSHA's recentreinvention effort represents significant progress, we remain opposed to rules which webelieve are not only unnecessary but create an enormous potential for the exercise ofcounterproductive and abusive regulatory authority, and acrimonious labor relations.

7. See: 29 C.F.R. 1910.12(b); CPL 2.100 (Confined Spaces),Appendix E, Question 8; CPL 2-1.18 (Electric Power), Section L; and August 11, 1994Memorandum from James W. Stanley to OSHA Regional Administrators, titled"Construction v. Maintenance."

8. See August 18, 1995 letter from Frank A. White ofOrganization Resources Counselors, Inc. to Former Secretary of Labor Robert B. Reich, andthe September 11, 1996 response from Former Assistant Secretary Joseph A. Dear to Frank A.White.