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Published: September, 2008; Vol 5, Num 4
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DOL’s Last-Minute Proposed Rule: Toxic to Workers

Despite heavy criticism from professional, scientific and safety associations and the Congress, Department of Labor (DOL) Secretary Elaine Chao accelerated efforts last month to adopt a new toxic risk assessment regulation before she and the Bush Administration leave office next January.

The proposal, posted online on August 28 and published in the August 29, 2008, Federal Register, purports to require a scientific assessment of the actual risk faced by employees who handle toxic chemicals at work rather than the assessments based on worst case exposure assumptions. 

“Because every work environment is different and because workers move through various settings over the course of a work lifetime, it is simply not possible to make actual assessments,” says LIUNA General President Terence M. O’Sullivan. “The DOL knows this. The proposed regulation is not about better assessments; it’s about dropping the safety assumptions that have guided OSHA exposure limits for the last three decades.”

Since actual assessments are impossible, OSHA has always assumed a worst-case scenario when setting its permissible exposure limits (PELs) for various chemicals. It assumes a worker is exposed eight hours a day, five days a week, fifty weeks a year for a 45-year working lifetime. Of course, this is seldom, if ever, the actual case. However, because limits set even with this worst-case assumption often prove too dangerous as the real effects of the chemical on worker health become known, the OSHA approach is well-reasoned and warranted.

In fact, the Supreme Court has explicitly said that OSHA “is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection” (Industrial Union Dept. v. American Petroleum Inst., 1980). DOL cleverly acknowledges this decision as it, nevertheless, asserts, “The decision to adopt a particular assumption over another must always be rational, transparent and fully articulated….” Then, the proposal glowingly alludes to the ways the DOL “identifies all industry sectors where employees may be potentially exposed…and estimates current exposures by industry and job title,” adding, “Where there are known differences in exposure for different individuals or subpopulations, the Department’s agencies characterize this variability.”

However, as LIFELINES ONLINE has pointed out, the agency has not updated its PELs since they were adopted en masse 38 years ago. Chao’s presentation imagines not only that actual assessments of risk are possible, but that the agency is doing them. Tellingly, she offers no examples of other assumption sets used by OSHA besides the “conservative assumptions” affirmed by the Court.

While the new regulation cannot improve hazard assessments, it almost certainly will further slow the snail’s pace of OSHA standards development because it will require another stage in the process: an Advanced Notice of Proposed Rulemaking (ANPR). The ANPR affords opposition groups an early opportunity to inject data and – denying the value of conservative, safety-oriented assumptions – raise deceptive about the “realities” of actual exposure in various industries.

“It is particularly appalling that Secretary Chao is attempting to squeeze this proposal through in the waning months of a lame duck Administration,” adds O’Sullivan. “While we are hopeful that the new President and Congress elected this fall would reverse this rule, its adoption now will cause unnecessary waste of attention and resources from other issues that might really affect workplace safety. We urge everyone to challenge this proposal.”

After blogger Celeste Monforton broke the news of the proposal in The Pump Handle in July, key Democrats denounced it, and legislation was introduced to block its adoption. The legislation is pending. Meanwhile, several associations expressed opposition, including the American Industrial Hygiene Association, the American Public Health Association, Public Citizen and more than 80 scientists who signed a joint letter to Chao, and a number of newspapers that editorialized against it. Ignoring the mounting opposition, the Administration accelerated its efforts.

O’Sullivan reminds Laborers and LIUNA signatory employers that “toxic exposures are a very serious problem in American workplaces, and OSHA’s PELs are 40 years out-of-date. Rather than scuttling current exposure assumptions, the agency should use current knowledge to finally update its PELs.” 

He also urges the agency to extend the comment period and hold public hearings before revising its rule. “This is a complex and controversial proposal, and it deserves extensive scrutiny.” While it is within the DOL’s discretion to allow a 90-day comment period and hold public hearings before adoption of any new regulation, the agency has set 30 days for comment (by September 29) and has proposed no public hearings. 

Those wishing to express concerns should submit their comments during September. Comments can be submitted electronically via the Federal eRulemaking Portal (RIN 1290-AA23) or in written format to the Office of the Assistant Secretary for Policy, 200 Constitution Avenue, NW, S-2312, Washington, DC 20210, Attention: Risk Assessment Policy. Because of possible delays in mailed submissions (due to security-related handling procedures), it is best to hand-deliver written comments. If you need help with hand delivery, please contact the Fund’s OSH Division at 202-628-5465 for assistance.

[Steve Clark]