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Published: August, 2008; Vol 5, Num 3

 

DOL Toxics Proposal Spurs Sharp Response in Congress

In July, the Department of Labor (DOL) provoked a storm of criticism from Democratic lawmakers who learned of a secret DOL proposal to install a new process of risk assessment for workers exposed to toxics on the job. By month’s end, Representative George Miller (D-CA) had introduced legislation to block the Administration’s proposal.

The DOL proposal – initiated by Secretary of Labor Elaine Chao about a year ago when she hired an outside consultant to develop the plan – would require the Occupational Safety and Health Administration (OSHA) to reassess its assumptions about a worker’s potential exposure to toxics over the course of a working lifetime (see sidebar).

“Making such dramatic changes in the way health hazards are assessed in the final six months of the Administration has caused a strong reaction from Congress and the public,” says the LHSFNA’s Labor Co-Chairman Armand E. Sabitoni, also the General Secretary-Treasurer of LIUNA. “When the proposed changes are published in the Federal Register for comment, probably in September, we anticipate and encourage further response. This could shape up to be a major battle with a lame duck administration.”

Because the DOL proposal was not publicized according to normal procedures and would bind future administrations, it raised suspicions that Chao and the President may be trying to tilt the playing field toward industry benefactors. When Celeste Monforton broke the news in The Pump Handle, the Democrats’ response was immediate. In a sign of increasing contentiousness with the outgoing Administration over on-the-job safety issues, Miller and Senator Edward M. Kennedy (D – MA) addressed a stern letter to Chao on July 10, questioning her submission of the proposed change to the President’s Office of Management and Budget (OMB) for E.O. 12866 regulatory review. 

Their letter said the DOL action “is highly unusual and contradicts the stated purpose of E.O. 12866 which is ‘to make the [regulatory] process more accessible and open to the public.’” Executive Order 12866, issued in 1993, establishes procedures for the consideration of proposed regulations within the Executive Branch of the government.  Normally, such rule changes appear in the regulatory calendar published every six months. Miller and Kennedy assert that the DOL failed to publish a notice of the proposed rule change or to publish basic information about the rule on the OMB website, as required by E.O. 12866. In a comment to the Washington Post, Miller said, "The fact that the Department of Labor seems to be engaged in secret rulemaking makes me highly suspicious that some high-level political appointees are up to no good. This Congress will not stand for the gutting of health and safety protections as the Bush administration heads out the door."

While the Democrats may have the votes to pass Miller’s bill which would block adoption of the rule, they could be thwarted by a Bush veto. LIFELINES ONLINE will track developments and provide further information about when, where and how to comment on the rule.

RISKY BUSINESS

By Scott Schneider

How does the government decide how much exposure to chemical hazards workers may endure on the job? 

It does a risk assessment. But calculating risk is a tricky business, fraught with assumptions.

In 1980, the Supreme Court ruled that a one in a thousand risk of getting sick is unreasonable, so the Occupational Safety and Health Administration (OSHA) tried to set permissible exposure limits (PELs) that keep the risk below that level. Yet, most of OSHA’s PELs were set decades ago and have not been revised, despite mounting evidence that many are much too high.   In any case, determining the actual boundary between safe and unsafe toxic exposure is difficult.

First, how much exposure is dangerous is often determined by animal tests which may or may not be fully applicable to humans. Moreover, what is safe for one person may not be safe for someone else; some workers are more sensitive and susceptible than others. Another big issue is the extent of exposure. Some chemicals that can pass through the skin may also be inhaled, an effect that may not be considered in a typical exposure limit. Also, workers may be exposed to more than one chemical, creating a synergistic negative effect. Some workers may get brief, but very high exposures which may be more damaging than long-term exposures to low doses. Yet, few studies have been conducted on long-term exposures to slow-acting toxins, so the actual effects are unknown.

In the DOL’s proposal to revamp risk assessment, the agency seems most focused on OSHA’s long-standing practice of setting limits with the assumption that a worker could be exposed to the toxic eight hours a day, five days a week, 50 weeks a year for a working lifetime (45 years). The assumption of this “worst case” scenario builds in a safety factor to help cover fallibilities in assessments of the impacts of certain exposures on health, which have frequently proved worse than anticipated. Some employers, however, clamor that more “reasonable,” “scientific” assessments of actual exposure risk need to be made, and the DOL proposal would require OSHA to attempt such assessments.

However, no one knows how much any particular worker will be exposed in a working lifetime, and there is no scientific way to make such a determination. It all boils down to values. Traditionally, by relying on a “worst case” assumption, OSHA has prioritized the value of worker safety. Inevitably, if future assessments are based on different assumptions – for instance, the average length of time workers are employed in a particular industry – less value will be placed on protection.

The DOL proposal perpetuates the illusion that we can accurately measure and regulate risk from exposure to toxic chemicals. Instead, we should treat exposure limits as protection guidelines, not clear boundaries between safe and unsafe. Given the extensive history of occupational illness caused by toxics, we should not retreat from established limits without scientific proof that higher limits are absolutely safe for all exposed workers.

[Scott Schneider is the LHSFNA Occupational Safety and Health Division Director.]

[Steve Clark]