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December 1, 2003

The Honorable John Henshaw
Assistant Secretary of Labor
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Ave, NW
Washington, DC 20210

RE: Appeal of OSHRC Decision on "Egregious" Conduct

Dear Assistant Secretary Henshaw:

On behalf of its 30,000 member safety, health and environmental professionals, the American Society of Safety Engineers (ASSE) applauds you and the Occupational Safety Health Administration (OSHA) for deciding to appeal the recent decision by the Occupational Safety and Health Review Commission (OSHRC) in Secretary of Labor v. Ho, OSHRC No. 98-1645, 98-1646 (OSHRC, Sept. 29, 2003).

ASSE's members are concerned that the Ho decision improperly limits OSHA's ability to continue enforcement actions under the "egregious" conduct policy, a necessary tool for OSHA to make the worst employers accountable for their willful failure to protect workers from known safety and health risks. If allowed to stand, this decision would be an unacceptable step backwards in the federal government's ability to enforce this nation's occupational safety and health standards against those who deserve enforcement attention the most. To not do so flies in the face the responsibility that the vast majority of employers have undertaken to follow these standards.

In her dissenting opinion, OSHRC Commissioner Rogers stated, "(T)his disposition constitutes a radical departure from settled Commission and court precedent recognizing the Secretary's authority to issue multiple citations for violations of the same standard where the standard can reasonably be read to permit multiple units of violation." ASSE fully agrees.

In every instance, OSHRC's ruling in Ho fails to follow well-established case law governing when employers may be cited per employee for willful violations -- all employers have had fair notice of OSHA's egregious policy; a penalty determination by OSHA should be given deference by the OSHRC unless it is arbitrary or capricious; and, when a regulation contemplates prohibitions of individual acts, OSHA may cite multiple violations for each separate act not in conformance with the standard. Given the apparent egregious nature of the willful individual violations in Ho -- the failure to provide respiratory protection and asbestos training to eleven individual workers engaged in the removal of asbestos containing materials -- allowing this decision to stand will make it extremely difficult for OSHA to hold truly egregious employers responsible for their willful failures to protect workers.

Under your leadership, OSHA has succeeded in reaching out to employers with opportunities for cooperative efforts and information on how to advance occupational safety and health. ASSE has supported those efforts with the understanding they are meant to enhance OSHA's enforcement capabilities by encouraging employers to take steps to avoid worker deaths, injuries and illnesses. Unfortunately, there will always be employers who fail to respond to positive encouragement. When a ruling like Ho threatens to limit OSHA's ability to address those employers, ASSE fully expects OSHA to take whatever steps are possible to see that such a ruling will not stand.

As always, ASSE and its members stand ready to assist you in your efforts to ensure that all U.S. workers receive necessary protections from safety, health and environmental risks on the job.


James "Skipper" Kendrick, CSP

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