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Comments on OSHA's Draft Proposed Safety and Health Program Rule

Date: Nov 23, 1998

 The Following is a letter from Lawrence P. Halprin of Keller and Heckman LLP urging that OSHA consider nonregulatory alternatives to encourage employers to adopt workplace safety and health programs.

November 23, 1998

E-Mail and Facsimile

Jere W. Glover, Esq.
Chief Counsel for Advocacy
Small Business Administration
7th Floor
409 3rd Street, S.W.
Washington, D.C. 20416

Marthe Kent, Director
Office of Regulatory Analysis
Occupational Safety & Health Administration
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210

Mr. John Morrall
Office of Management & Budget
OIRA
725 17th Street, N.W.
Room 10235
Washington, D.C. 20503

Re: OSHA's Draft Proposed Safety and Health Program Rule

Dear Mr. Glover, Ms. Kent, and Mr. Morrall:

We very much appreciate the opportunity to provide the panel with our thoughts and recommendations on OSHA's draft proposed Safety and Health Program Rule at this stage in the rulemaking process. Before proceeding with substantive comments, we would like to begin by providing you with a brief summary of our qualifications and experience in the field of workplace safety and health, and our familiarity with both large and small businesses. We feel the need to do this because all too often we hear senior OSHA personnel commenting to the effect that we need to hear from the "real people" rather than a "Washington lawyer" or "lobbyist." While those comments may make good "sound bites", they do not advance workplace health and safety.

I. Background And Experience In Workplace Health And Safety

In addition to my law degree, I have a B.S. in Chemical Engineering and an M.B.A. in Finance and Investments. While an undergraduate, I spent approximately seven months (over two summers and a holiday vacation) working a variety of jobs in an organized ceramic tile factory. During that time, I had a broad range of experience with numerous safety and health hazards and controls, most on a daily basis, including hazardous energy control, machine guarding, confined spaces, walking surfaces, working at heights, manual handling (e.g., bags, barrels, tile racks on and off kiln cars and conveyor belts, finished cases of tiles onto tractor trailers), unloading railroad hopper cars and box cars, noise control, dust control, heat exposure, repetitive motion, rotating shifts, and the use of hand, eye, head, face, and respiratory protection. I also had a variety of other summer and part-time jobs in the government, retail (my uncle's card store where aisles and storage space were at a premium) and service sectors, involving both large and small employers.

As part of my legal practice, I have visited and reviewed the safety and health practices and programs at over 50 industrial sites around the world, many on numerous occassions and frequently as part of an audit. I have drafted and/or reviewed numerous written safety and health programs and procedures, and provided extensive safety training. As for Keller and Heckman LLP's unique experience in workplace health and safety, two of my partners are industrial hygienists (one certified) and former safety and health managers with substantial experience in a broad range of industries (e.g., paint, steel, asbestos abatement). They have also visited numerous industrial sites, participated in numerous health and safety audits, drafted or reviewed numerous safety and health programs and procedures, and provided extensive safety and health training. We also have a former Virginia/OSHA Industrial Hygiene Compliance Officer on our staff whose previous position was as the environmental, health and safety manager for a medium-sized Texas manufacturer. In other words, we are "real people" with lots of "real world experience".

We have a deep personal commitment to workplace safety and health, and believe OSHA has contributed a great deal to the advancement of worker health and safety in this country. Furthermore, we believe that when a committed employer voluntarily develops and implements a safety and health program, founded on cooperation, partnership, and mutuality between the employer and its employees, it can be one of the most effective means of achieving and maintaining a safe and healthy workplace. That being said, for reasons which will become clear, we believe the best place for us to start in responding to the Issues for Comment and Discussion prepared by the panel is to pursue the issue of non-regulatory alternatives.

OSHA has asserted that a rule is necessary because many employers have not recognized the benefit of comprehensive safety and health programs. That suggests that the agency can and should do much more to make employers, particularly small employers, aware of these benefits and how they can set up such a program through state consultation and other services. During the November 13, 1998 conference call with small business representatives, OSHA heard that many small business manufacturers are not familiar with (i.e., never heard of or do not remember) "the General Duty Clause."

II. OSHA Should First Exhaust All Non-Regulatory Alternatives

It is not possible to create the atmosphere or foundation necessary for an effective safety and health program through regulatory mandates. OSHA can only help to bring about successful safety and health programs through incentives, outreach, education, and similar efforts. OSHA must refocus its resources into efforts which persuade the potential participants that the benefits of safety and health programs are substantial and that the path to achieving them is reasonably well marked and passable even for those whose safety and health efforts are in their infancy.

We believe the agency must first make an all-out and meaningful effort to exhaust the non-regulatory alternatives. Clearly, OSHA does not satisfy its obligations in this area simply by publishing the January 26, 1989 Voluntary Safety and Health Program Management Guidelines in the Federal Register, a publication which certainly is not at the top of many "must read" lists, especially for small business. This effort should be designed and implemented in such a way that if the effort is not successful, the agency's efforts will have laid the groundwork for a creative hybrid regulatory approach and given employers a head start toward compliance.

  1. There Are Viable Non-Regulatory and Creative Hybrid Regulatory Alternatives

OSHA should issue the draft safety and health program rule as a purely voluntary set of guidelines with extensive outreach and appropriate incentives to encourage employers to voluntarily implement safety and health programs. The agency would make it clear that the document is voluntary and builds on the experience and knowledge gained since the 1989 Guidelines were issued. We recognize that some may object to this approach on the ground that the agency is circumventing the rulemaking process. The agency should forthrightly acknowledge that this concern is largely one of OSHA's own making, demonstrate its good faith in moving forward, and be willing to "take the heat" in the interim period, while it is demonstrating that there really is a new OSHA for those who demonstrate a commitment to workplace health and safety.

Under this voluntary approach, OSHA would offer a range of meaningful penalty reductions (far more meaningful than the current 25% and 15% penalty reductions), conduct focused/limited inspections for those sites with programs meeting certain minimums, make appropriate use of its discretion to issue "unclassified" citations, and give the employer community a reasonable amount of time to respond to this new initiative. The critical advantages of this approach are: 1) Through their experience in applying the suggested incentives, the OSHA compliance corps, working with employers and employees, would be able to develop and apply reasonable, appropriate and uniform interpretations of the Guidelines; and 2) this nation-wide experience of OSHA working in a more cooperative and less adversarial environment with employers and employees would provide OSHA with a real opportunity to prove that the "New OSHA " is something more than political rhetoric by establishing a healthier level of trust, understanding and credibility with the regulated community.

Based on what I heard and saw at the OSHA Partnership Conference in Washington, D.C. on November 13, 1998, I believe an outreach program containing the hands-on elements of that conference would be an excellent means of making employers and employees aware of the benefits of partnerships, cooperation, and the voluntary adoption of effective safety and health programs. It would also give those individuals an idea of where to begin and how to keep their programs moving forward toward very important goals over what is guaranteed to be a very challenging pathway.

If, after a reasonable time, regulatory intervention is shown to be necessary, the next step should be a creative hybrid approach. Employers with three-year average lost workday injury and illness rates or experience modification rates below a certain level would be exempt from the rule [1]. All other employers, regardless of size, would be given the choice of participating in a consultation (partnership) program or complying with OSHA s Safety and Health Program rule. OSHA and Congress, with the political support of the business community, would ensure the availability of the necessary funding. Whatever funding was required would, according to OSHA's analysis, be far less than the cost of not providing this funding. While not purely voluntary, the consultation alternative, unlike the guaranteed wall-to-wall inspection of CCP, would be far more akin to a true partnership program than a coerced compliance program.

During the trial period for the non-regulatory approach, OSHA could work with Congress to obtain the funding needed to support the availability of the state consultation service on a nationwide basis to all employers, regardless of size. It would also give OSHA the additional time needed to rework the draft safety and health program rule into a form which would comply with the U. S. Constitution and the rulemaking provisions of the Occupational Safety and Health Act and the Administrative Procedures Act.

B. The Traditional Command and Control Regulatory Alternative Will Not be Effective

From both a philosophical and a practical standpoint, we have grave reservations about an OSHA initiative which would carve out the employer's role in a voluntary partnership endeavor and convert it into a regulatory mandate, especially when there is no provision for those willing to enter into a true partnership program to opt out of the regulatory program. In a partnership, tasks and activities are performed and coordinated by the employer in cooperation with the voluntary efforts of employees and a supportive government agency. The entire process is based on the willing and good faith participation of the parties. Employers set their sights on advancing workplace health and safety by meeting the spirit of principles and ideas which have been reduced to writing primarily for the purpose of providing and memorializing clear objectives and flexible guidelines on how to achieve them, not for purposes of regulatory compliance.

From both a practical and a legal standpoint, it is not possible to convert the language of OSHA's January 26, 1989 Voluntary Safety and Health Management Program Guidelines into enforceable regulatory text without taking them out of the only context in which they can work. Employers, employees and the third partner must be able to develop these programs through the identification and mutual pursuit of shared goals and objectives. It takes an enormous amount of time and effort to bring about the essential mutuality among people with diverse backgrounds, experiences, values and attitudes. These objectives can only be achieved through a process in which people feel comfortable working together, sharing the inevitable ups and downs, and taking the bold risks to one's authority, status, and feelings needed to make it all work. These objectives cannot be achieved through the traditional command and control regulatory scheme. A relatively meaningless "grandfather" clause and a highly ambiguous enforcement policy which is subject to change at any time impose little more than phantom limits on the compliance officer's discretion.

In other words, successful implementation of a safety and health program cannot be achieved through the threat of citations issued by a compliance officer who, on average, may show up for the traditional adversarial inspection once every sixty years. This is particularly true when one recognizes that the compliance officer does not have the time to learn the business or understand the culture of the site being inspected but sticks around just long enough to gather evidence[2]. Most compliance officers have limited experience with how to run an effective safety and health program, never having done it or even advised somebody else how to do it. The emphasis of their training is in identifying what is wrong and not in partnership efforts or consulting skills. The draft rule would give individuals with this orientation the authority to enforce wide open language requiring an employer to do as much as is necessary within the virtually unlimited scope of the five "core elements " to ensure compliance with every requirement of the Occupational Safety and Health Act. This is a prescription for disaster. One simply cannot write a performance-based safety and health program rule with a scope as broad as the entire OSH Act which, on the one hand, provides employers with the needed flexibility while, on the other hand, adequately describes and circumscribes the authority of the people who would enforce it.

III. THE DRAFT SAFETY AND HEALTH PROGRAM RULE DOES NOT SATISFY THE APPLICABLE CONSTITUTIONAL AND STATUTORY CRITERIA

When one objectively evaluates the draft proposed rule against the legal criteria governing OSHA's authority to issue standards and regulations, without being blinded by the highly meritorious goal of the initiative and the understandably emotional issues surrounding the advancement of workplace safety, we believe it is clear that the Agency does not have the constitutional or statutory authority to adopt such a rule.

A. The Draft Rule Does Not Satisfy the Applicable Constitutional Criteria

The requirements of the proposed draft safety and health program rule are written in language which is so vague and ambiguous that they fail to satisfy the Due Process requirements of the Fifth and Fourteenth Amendments to the U. S. Constitution. More specifically, they:

  • Fail to provide employers (as well as employees and DOL enforcement personnel) with adequate notice as to what is required and what is prohibited[3]; and
  • Fail to place any meaningful limits on the discretion of OSHA compliance personnel to interpret those requirements in whatever way they deem appropriate with the benefit of 20/20 hindsight[4]and the information contained in the employer's internal incident and audit reports (effectively required by draft sections d(4) and d(5)), which OSHA compliance personnel will obtain by request, demand or legal process.

If the ambiguous, performance-based rule were to survive the expected legal challenges, it would eventually be converted into an extremely burdensome specification rule not through the rulemaking process but through "non-mandatory" supplemental materials, compliance instructions, an avalanche of OSHA interpretation letters, and a patchwork of Review Commission and court decisions.

As an analogy, we could certainly reduce crime in this country if we were willing to give up some of the cherished fundamental freedoms guaranteed to us under the U. S. Constitution. Similarly, this OSHA proposal may very well offer improvements in workplace safety but, as currently conceived, only at an unacceptable loss of freedom. The draft is structured around repeated use of provisions stating that employers must do X "as often as necessary" to ensure compliance with the General Duty Clause and all OSHA standards. With the open-ended, performance-based language contained in the draft proposal, employers would never have any certainty as to what would be required of them, and OSHA compliance personnel can be expected to continuously "raise the bar" so that employers will be shooting for a moving target which will eventually come to rest in VPP Star land. In other words, OSHA compliance personnel are free to give the language of the rule virtually any interpretation they see fit and it would be virtually impossible for employers to successfully prove that interpretation was outside the scope of the rule because there is no objective standard imposed by the draft rule. OSHA's answer of "Trust us; this is the New OSHA" is not reassuring.[5]

The fundamental flaw of this approach is succinctly stated in the following excerpt from the Brief of Amicus Curiae United Parcel Service in Secretary of Labor v. Peppridge Farm, Inc., 17 OSHC (BNA) 1993 (1997). It is fundamental that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 39 (1926).[6]

Thus, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232, 7 BNA OSHC 2089 (3d Cir. 1980).[7]

The Occupational Safety and Health Review Commission and courts have often found unconstitutional vagueness evidenced in, among other things, confusion among OSHA compliance officers and experts on the requirements of a health or safety standard. As explained in the seminal case, an employer: should not be penalized for deviation from a standard the interpretation of which … cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement. Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 371, 7 BNA OSHC 1105 (10th Cir. 1979).[8]

Finally, it must be remembered that we are not speaking of a rule whose sanctions would be limited to civil fines. Sooner or later, cases will come along in which OSHA can be expected to assert that an employer's alleged willful failure to comply with this rule resulted in a worker's death and provides the legal basis for a criminal prosecution under Section 17(e) of the OSH Act.

A. The Draft Safety and Health Program Rule Does Not Satisfy The Applicable OSH Act Criteria

OSHA has not demonstrated, and we doubt whether the agency will be able to demonstrate, that the imposition of this comprehensive, one-size-fits-all safety and health program rule on all employers in all covered industries would be necessary or appropriate for the advancement of workplace safety as required by Sections 3(8) and 6(b) of the OSH Act. Furthermore, we do not believe OSHA has the statutory authority under the Occupational Safety and Health Act (OSH Act) to issue the draft proposed safety and health program rule because:

1. It would amend the General Duty Clause through rulemaking[9] rather than legislation.

2. It would amend every single OSHA standard through a generic rulemaking rather than in accordance with the rulemaking procedures and legal criteria established by Section 6(b) of the OSH Act.

3. It would attempt to circumvent the rulemaking requirements applicable to occupational safety and health standards under Section 6(b) of the OSH Act by the simple expedient of relabeling this rule a Section 8(c) "regulation" adopted under the Administrative Procedures Act.[10]

4. It appears to be an effort to convert the OSH Act into an absolute liability statute through the pervasive use of provisions requiring an employer to take actions "as often as necessary" to comply with the OSH Act.[11]

5. Through this invalid attempt to amend the General Duty Clause, OSHA would, in effect, be issuing a back-door generic standard addressing:

a. Areas where there is no recognized scientific consensus on identification of the hazard and appropriate protective measures — ergonomics, workplace violence, and indoor air; and

b. Areas where the risk is not significantly different than that accepted by the public at large, the states have already addressed the hazards, and the remedies sought by OSHA are not likely to be effective— motor vehicle safety.

6. The requirements of the draft rule are unreasonably burdensome. One of the best examples of this fatal defect is the requirement in draft section (f)(2) to train each employee on the nature of the hazard and control measures for every hazard (e.g., the hazards of driving a car, walking up and down stairs, walking with untied shoe laces, using a knife or scissors) covered by the OSH Act to which the employee is exposed, unless the employer can demonstrate that the employee already has been adequately trained. There is no allowance for an employer to rely on an employee's experience or common sense recognition of an obvious hazard or control measure. The whole rule flies in the face of the premises stated in Section 1(a) of Executive Order 12866 and the principles of Section 1(b).

7. The proposal professes to impose minimal paperwork burdens on employers when experience teaches that compliance officers have a pervasive institutional bias not to acknowledge/believe that employers have fulfilled their obligations unless compliance is documented. This circumvents the intent of both Section 603(B)(4) of the Regulatory Flexibility Act and the Paperwork Reduction Act.

8. The proposal fails to recognize and provide a practical, statistically-based mechanism which would allow an employer with an effective safety and health program to qualify for an exemption from the rule, without subjecting an employer to the enormous potential for prosecutorial abuse associated with OSHA's enforcement of this rule.

9. Although partnership programs are likely to be far more effective in improving workplace health and safety, the proposal fails to recognize and encourage the significant benefits available from partnership activities by providing an exemption to those employers who are already in or would opt for VPP, SHARP, state consultation or some other program which OSHA found to be equivalent.

10. The proposal, adopting highly objectionable elements of the Ford-Kennedy OSHA "Reform" bills, would provide the Federal government with an unjustified and counterproductive level of authority over the management and operation of virtually every workplace in the United States. It would place government bureaucrats (OSHA) in the middle of private labor-management relations, and arm OSHA and employee representatives with unchecked powers having the potential for enormous abuse of employers. Draft section (c)(1)(ii)(B) gives OSHA the authority to cite employers for failure to provide managers, supervisors, and employees with the authority, information , training and resources needed to carry out their safety and health responsibilities. Draft section (c)(2) requires that employees be provided with "opportunities for participation in establishing, implementing, and evaluating the program". Under draft section (c)(l)(ii)(A), OSHA would be able to cite employers for failing to "hold [managers, supervisors and employees] accountable for carrying out those [safety and health] responsibilities. The provision in section (c)(2)(iii) which states that "the employer must not discourage employees from making reports ...of injuries, illnesses, incidents or hazards" could very well be interpreted to completely ban any safety incentive programs tied to the frequency or severity of injuries or illnesses. How much more involved could OSHA get in running the employer's business? These provisions are an invitation to mischief and unwarranted intrusion by the government in private affairs.

11. One provision of the proposal would actually harm workplace health and safety by discouraging employers from performing effective, comprehensive self-audits by requiring the creation of documents which routinely would be made available to OSHA compliance personnel as well as employees and employee representatives who could then forward them to OSHA compliance personnel (or hold out the threat of doing so) in an effort to affect not only workplace health and safety but labor-management relations.

However meritorious the goals, the ends do not justify the means—not legally and perhaps not economically.[12]

****************

Given the pervasive nature of the problems which this rule would create, we respectfully suggest that OSHA make a good faith effort to pursue non-regulatory approaches before proceeding with this initiative. In the alternative, the rule should be substantially rewritten to provide appropriate exemptions to employers with effective programs and those in partnership programs, and so that the objectives of the rule can be achieved in a manner consistent with the rights and freedoms guaranteed by the U.S. Constitution, and the applicable provisions of the OSH Act, the Regulatory Flexibility Act and Executive Order 12866. Should you have any questions or comments regarding this matter, please contact me.

Cordially yours,

Lawrence P. Halprin



[1] It is necessary to establish an easily applied, objective standard for this purpose. In light of the fact that OSHA's current Injury and Illness Recordkeeping System is overinclusive rather than underinclusive, the shortcomings of that system do not disqualify it from being used for this purpose. While no system is perfect, OSHA should not demand a perfect standard as the only basis for granting exemptions. OSHA's upcoming adoption of an amendment to 29 C.F.R. 1904 requiring the most senior person responsible for operations at a site to sign the OSHA 200 Log should adequately address any remaining concerns. If OSHA feels the need for closer scrutiny, it can require every employer asserting that it is exempt from the safety and health program rule based on its LWDII rate to submit its OSHA 200 to the agency. While that may sound like a lot of paper shuffling, the burden of copying and mailing in a copy of something that, for most employers, already exists pales in comparison to what is likely to be required to comply with the draft rule.

[2] We are familiar with several recent inspections where the compliance officer skipped the on-site closing conference and simply advised the facility of the citation(s) which would be issued by way of a brief follow-up telephone conversation. In some cases, compliance officers also fail to participate in the informal settlement conferences.

[3] See footnote 10. Senior OSHA personnel previously indicated that the Agency planned to enforce the Safety and Health Program Rule (if and when adopted) in accordance with the Agency's Program Evaluation Profile (PEP), most recently issued to employers who "volunteered" to participate in OSHA's infamous Cooperative Compliance Program. That raises several major concerns. First, that document has not been developed through the rulemaking process. Second, senior agency personnel have given different statements as to what would be an acceptable or passing PEP score. Third, field trials of the PEP by OSHA compliance personnel have demonstrated that the criteria are highly subjective and yield results with unacceptable variation. In other words, the Agency has not been able to establish an acceptable level of accuracy and precision in defining an adequate safety and health program for purposes of penalty adjustments. We believe a significantly higher level of accuracy and precision is required for purposes of establishing an employer's obligation under an enforceable rule.

[4] In the event of any non-compliance, the OSHA compliance officer could simply assert that there was not sufficient training, hazard identification and assessment, holding of personnel accountable, program evaluation, etc.; otherwise, there would not be any non-compliance.

[5] This concern seems particularly valid when: 1) OSHA has so far refused to include meaningful provisions describing how this rule would be enforced in the text of the rule; 2) field personnel continue to issue citations asserting that something was not done because it was not documented although no documentation was required-- a critical point when one considers that the draft rule in question is loaded with requirements for which the agency has repeatedly emphasized no documentation would be required; 3) field personnel continue to attempt to create new obligations under existing standards by giving them unfounded, novel interpretations; 4) the draft rule does not contain an access or use privilege which would prevent OSHA personnel from using the employer's required internal workplace safety and health audit document as a road map to find violations and issue citations; and 5) despite 28 years of case law holding that OSHA must establish employer knowledge of a violation, the agency recently filed a brief with the U.S. Supreme Court (in the L.R. Wilson case) asserting that the OSH Act does not require the agency to establish employer knowledge, and that the lack of employer knowlege (as well as unanticipated employee misconduct) is always an affirmative defense to be raised by the employer.

[6] See also the statement of Justice Thurgood Marshall in Grayned v. City of Rockford, 408 U.S. 104, 108-09, (1972):

Vague laws offend several import values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly…. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

And see identical statements under the OSH Act in Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335, 6 BNA OSHC 2002 (6th Cir. 1978) and Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940, 943, 7 BNA OSHC 1999 (9th Cir. 1979).

[7] See also Georgia Pacific Corp. v. OSHRC, 25 F.3d 999, 1004, 16 BNA OSHC 1895 (11th Cir. 1994); Diamond Roofing Co. v. OSHRC, 528 F. 2d 645, 649-50, 4 BNA OSHC 1001 (5th Cir. 1976); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 371, 7 BNA OSHC 1105 (1oth Cir. 1979); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156, 12 BNA OSHC 1938, 9 D.C. Cir. 1986) (Scalia, J.)

[8] See also the decision of the Eleventh Circuit holding a standard unconstitutionally vague when "Neither the Secretary nor the experts have been able to settle" upon the standard's requirements. Georgia Pacific, 25 F.3d at 1005. And see Lloyd C. Lockrem, Inc., 609 F.2d at 943; Gates & Fox, 790 F.2d at 156.

[9] Using the traditional enforcement process, after establishing the existence of a serious recognized hazard, OSHA may attempt to sustain a General Duty Clause citation by demonstrating that a specific abatement measure is feasible and effective. Under the draft rule, once OSHA establishes that there is a General Duty Clause violation or that the employer has taken measures which put it in compliance with the General Duty Clause with respect to a particular hazard, the employer would then be obligated to fully implement all five core elements of the rule with respect to that hazard. We are assuming that the phrase "hazard covered by the General Duty Clause" in draft section (a)(2) means that the General Duty Clause would require the employer at the site in question to take feasible measures to control the hazard at that site and that feasible measures are available, not simply that the hazard is potentially serious at somebody's site and is not covered by an OSHA standard.

Furthermore, throughout the draft rule, the mandates applicable to "the employer" refer to "employees" rather than "its employees", suggesting an apparent attempt to expand the scope of the General Duty Clause to employees of another employer, or loose language which would later allow for that interpretation.

In any event, OSHA can be expected to use an employer's alleged failure to comply with this standard as the legal theory for automatically imputing knowledge of any OSHA violation to the employer on the basis that the employer would have known of the violation if it had an adequate safety and health program — as defined by OSHA in its virtually unfettered discretion. This is truly circular reasoning and bootstrapping liability.

[10] For years, OSHA has stated that the product of this initiative would be an occupational safety and health standard issued under Sections 3(8) and 6(b) of the OSH Act. OSHA's "Working Draft of a Proposed Safety and Health Program Standard" was issued on November 15, 1996, and subsequently discussed at a December 1996 stakeholders' meeting as an upcoming standard. On March 25, 1997, following up on a December 11, 1996 stakeholders' meeting, the American Iron and Steel Institute submitted a letter to OSHA which questioned OSHA's authority to issue such a standard, and challenged the propriety of many of the provisions in the working draft. OSHA subsequently announced that the rule would be issued as a regulation rather than a standard.

[11] The required frequency of training would be "as often as necessary" to ensure adequate training; the required frequency of program evaluation would be "as often as necessary to ensure program effectiveness"; the required frequency of hazard identification and assessment would be "as often as necessary to ensure compliance with the General Duty Clause and OSHA standards." The word "necessary" is unqualified and therefore absolute. This is a totally unrealistic, unjustified and unconscionable requirement for employer perfection.

[12] We say "perhaps" because it is impossible to cost out a "blank check." During the November 12, 1998 telephone conference with small business representatives, OSHA, OMB and SBA staff heard the fairly uniform comment that the people who prepared the cost estimates for compliance with the draft rule were "on another planet" and had underestimated the costs of compliance by a factor of approximately ten. This assessment was for a program which was characterized as "far less" than a VPP level program although no one attempted to clarify what that characterization meant. The participants also made it clear that OSHA should not be annualizing the estimated compliance costs over ten years as if they were one-time start-up costs but should instead recognize that these would be fairly level ongoing annual costs of maintaining the required program.