The Department of Labor's Secret Risk-Assessment Rule

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The current protections for workers' health are either outdated or non-existent.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 Labor Secretary Elaine Chao in the summer of 2008 contained two extreme provisions which could have had a detrimental affect on workers' health and safety. 

First, it would have put in place an additional step at the front-end of the rulemaking process which would delay protections for workers by at least 2-3 years.  Specifically, the guidelines would have required that OSHA and MSHA issue an Advanced Notice of Proposed Rulemaking, for all health standards; this extra step would have been required even for well-understood contaminants like coal mine dust, where it would have served no useful purpose for workers. 

Second, it would have dumbed-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 of his 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 would 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 the proposal advanced by Labor Secretary Elaine Chao in 2008, 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 tried 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).

[UPDATE January 2010]: The G.W. Bush Administration did not finalize this rule before leaving office. After Hilda Solis became Secretary of Labor under the Obama administration, the Department of Labor formally withdrew the proposed rule - and worker health advocates breathed a sigh of relief.

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) and DOL's response dated Sept 29 (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 29, 2008: Fed Register notice of proposed rule (here)

August 29, 2008: "Contested Proposal on Safety Proceeds," Washington Post

August 30, 2008: "Safety Rule Riles Unions," NY Times (here)

September 4, 2008: Letter from UAW to DOL/Sequeira requesting an extension of time for the comment period and a public hearing (here)

September 5, 2008: Letter from interest groups and Center for Progressive Reform to DOL/Sequeira requesting extension of time for the comment period and a public hearing (here)

September 8, 2008: Letter from the United Mine Workers to DOL/Sequeira requesting an extension of time and a public hearing (here

September 17, 2008: Hearing before the House Committee on Education and Labor, Subcommittee on Workforce Protections (here)

September 17, 2008: Letter from Senator Barack Obama to Sec. Chao requesting an extension of the comment period (here)

September 24, 2008: Senator Patty Murray introduced S. 3566 prohibiting DOL from issuing or enforcing the proposed risk assessment rule.  Six co-sponsors including Senator Barack Obama.

September 29, 2008: Letter from 18 Members of Congress (including Senator Barack Obama) opposing proposed rule (here)

September 2008: Selected written comments on the proposed rule:

 

September 25, 2008: Letters from DOL's A/S Sequeira to Cong. George Miller (here) and the Center for Progressive Reform (here) rejecting requests for public hearings and extension of comment period.

Sept 29, 2008: Response from A/S Sequeira to letter from 80 scientists (here)

August 31, 2009:  DOL Federal Register notice announcing withdrawal of proposed rule. (74 Fed Reg 44795)

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)