On July 7, 2008 a most curious item appeared on the White House's Office of Management and Budget's (OMB) webpage, signaling that the Department of Labor is proposing to change the way OSHA and MSHA assess workers' risk of developing occupational health disorders. The item was listed as a proposed rule entitled: “Requirements for DOL Agencies’ Assessment of Occupational Health Risks” (screenshot) and was first reported on The Pump Handle as "Secret Rule on OSHA Risk Assessment?". Thanks to the diligent work of Carol Leonnig at the Washington Post, the public now has a copy of DOL's proposal (here). Carol Leonnig's reporting provided a front-page story on July 23, 2008 (here), and follow-up articles on July 24 (here) and July 25 (here).
See also: Chronology of Documents
Why it matters
The system for protecting people's health from contaminants in the workplace is in disarray. In the last 10 years, the Occupational Safety and Health Administration (OSHA) has issued just one health standard (chromium VI) ---and it was required to do so under a federal order; the first and only health standard issued by the Mine Safety and Health Administration (MSHA) (diesel particulate matter) was completed in January 2001 at the end of the Clinton term.
The current protections for workers' health are either outdated or non-existent. Workers in the U.S., for example, are exposed to known human carcinogens, including crystalline silica and beryllium, yet there are no comprehensive standards in place to protect exposed workers. The draft proposal prepared for the Secretary of Labor contains two extreme provisions which would have a detrimental affect on workers' health and safety.
First, it would put in place an additional step at the front-end of the rulemaking process which will delay protections for workers by at least 2-3 years. Specifically, the guidelines would require that OSHA and MSHA issue an Advanced Notice of Proposed Rulemaking, for all health standards; this extra step would be required even for well-understood contaminants like coal mine dust, where it would serve no useful purpose for workers.
Second, it would dumb-down health risk assessment to the detriment of workers' health, by reinterpreting the prevention framework established by Congress when it established OSHA and MSHA. The OSH Act of 1970 and the Mine Act of 1978 specifically require the Secretary of Labor to set standards dealing with "toxic materials or harmful physical agents" so that they protect against "material impairment of health or functional capactity..."
"even if such employee has regular exposure...for the period ofhis working lifetime." (1)
This is the model that has been used in the past by OSHA and MSHA, relying on risk estimates which consider workers' cumulative exposure to a contaminant, even up to 45 years of exposure. How does this play out in the real world? Think about a coal miner who begins working at age 20 (or younger) and spends his entire career in the mines and retires at age 65. Or a high-school graduate who is trained as a welder and works well into his 60's in this skilled trade?
Under this new proposal, the Secretary of Labor asserts that health standards should be based on an AVERAGE number of years of exposure in an industry. So if the average coal miner works 20 years, the health standards issued by MSHA only need to build in protections for the AVERAGE worker, not subpopulations of workers who work much longer than the AVERAGE. This is NOT the occupational illness prevention model that Congress envisioned when it established OSHA and MSHA.
The Secretary of Labor will try to masquerade her risk assessment guidelines as "good government" and "sound science," in the same way that the White House's OMB tried to sell its 2006 risk assessment bulletin (here). This earlier government-wide effort at a overhauling agencies' risk assessment procedures with a one-size-fits-all requirements for agencies involved in health, safety and environmental protection. It was woefully lacking details about the alleged problems it was designed to fix, but more importantly, it would have added new steps to the rulemaking process, making a dysfunctional system more so, and creating administrative obstacles for health protective rules. When the scientific community, public health researchers, environmental health proponents and others objected vigorously to the White House's plan, the Administration tried to save face by asking the National Academy of Sciences (NAS) to review their plan. Ultimately, the NAS panel called it "fundamentally flawed," and OMB was forced to issue in September 2007 a scaled back version (here).
Chronology of Key Documents
July 8, 2008: Screenshot of OMB website when DOL's 'Secret Rule' was first noticed and reported at The Pump Handle and was first reported (here).
July 8, 2008: Draft DOL proposed rule entitled: “Requirements for DOL Agencies’ Assessment of Occupational Health Risks” (here).
July 18, 2008: Op-ed by former DOL Chief Economist, Diane Furchtgott-Roth, advocating the risk assessment changes would allegedgy "set higher standards for assessing dangers to employees." See: New Rules for OSHA, The NY Sun, (here)
July 23, 2008: Leonnig C. U.S. Rushes to Change Workplace Toxins Rules. Washington Post.
July 24, 2008: Leonnig C. Democrats ask Labor to Forgo 'Secret Rule'. Washington Post, July 24, 2008.
July 24, 2008: Correspondence and News Releases from Senator Edward Kennedy (D-MA) and Congressman George Miller (D-CA) to Secretary of Labor Elaine Chao concerning DOL's Risk Assessment Proposed Rule (here).
July 25, 2008: Leonnig C. Lawmakers Pledge to Block Secret Rule. Washington Post.
July 25, 2008: News Release from the American Industrial Hygiene Association (AIHA) "AIHA Urges Caution as DOL Ponders Workplace Toxin Rule Proposal" (here)
July 28, 2008: Response from DOL's Asst. Secretary for Policy, Leon Sequeira, to the Miller/Kennedy letters (here)
July 28, 2008: Second Op-Ed by former DOL chief economist defending the proposal rule. See: "Battleground for Sound Science," The NY Sun (here)
July 28, 2008: Op-Ed by former long-term career DOL employee, Peter Galvin, arguing that proposed changes would obstruct protective standards for workers. See: Proposed black-lung rule would be setback for miners, Louisville-Courier Journal.
July 29, 2008: Furchtgott-Roth D. Letter to Editor. Washington Post.
July 31, 2008: Statement of Cong. George Miller (D-CA) introducing H.R. 6660
July 31, 2008: Letter from the American College of Occupational and Environmental Medicine to Secretary of Labor Chao (here)
August 4, 2008: Editorial "Last-Minute Mischief for Labor," NY Times
August 5, 2008: AFL-CIO Executive Council statement, urging withdrawal of proposed rule on risk assessment (here)
August 5, 2008: Letter from Asst. Sec for Policy Leon R. Sequeira to Cong. Miller/Senator Kennedy (here)
August 12, 2008: Letter from APHA Executive Director Georges Benjamin, MD to Secretary of Labor Elaine Chao (here)
August 14, 2008: Letter from 80 public health scientists to Secretary of Labor Elaine Chao (here)
August 18, 2008: Washington Post editorial "A Toxic Proposal" calling on DOL to withdraw the proposed rule (here)
August 25, 2008: American Industrial Hygiene Association (AIHA) letter to Secretary Chao on DOL risk assessment proposal (here)
August 25, 2008: Screenshot of OMB website showing approval "consistent with change" of DOL proposed rule (here)
August 28, 2008: Fed Register posting of proposed rule (here)
Background Materials
Jan 9, 2006: White House news release announcing release of draft OMB bulletin on risk assessment
Jan 9, 2006: OMB Draft/Proposed Risk Assessment Bulletin
Jan 2007: The National Academies News Release recommending to OMB to "withdraw" the bulletin because it is "fundamentally flawed"
Jan 2007: The National Academies document reviewing the draft OMB risk assessment bulletin (link to NAS document)
Sept 2007: Final OMB Risk Assessment Bulletin
1997: Presidential/Congressional Commission on Risk Assessment and Risk Management: Final Report, Volume 1: "Framework for Environmental Health Risk Assessment"
1997: Presidential/Congressional Commission on Risk Assessment and Risk Management: Final Report, Volume 2: "Risk Assessment and Risk Management in Regulatory Decision-Making"
Links to Post at The Pump Handle Blog
"Secret Rule on OSHA Risk Assessment?" (July 8, 2008)
"Congress demands briefing on Chao's mystery proposal for risk assessment" (July 10, 2008)
"Rushing NOT! to protect workers' health" (July 23, 2008)
"Chao's 'secret rule' and your favorite workers" (July 29,2008)
"Next steps for Chao's Secret Rule" (August 26, 2008)
"Chao flips us the bird. Happy Labor Day" (August 28, 2008)
