After issuing almost no standards for 7 1/2 years, "virtually overnight,
changing the risk-assessment process became the agency's top priority for
workplace regulations."
*
U.S. Rushes to Change Workplace Toxin Rules*

By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, July 23, 2008; A01

Political appointees at the Department of Labor are moving with unusual
speed to push through in the final months of the Bush administration a rule
making it tougher to regulate workers' on-the-job exposure to chemicals and
toxins.

The agency did not disclose the proposal, as required, in public notices of
regulatory plans that it filed in December and May. Instead, Labor Secretary
Elaine L. Chao<http://www.washingtonpost.com/ac2/related/topic/Elaine+Chao?tid=infor...>'s
intention to push for the rule first surfaced on July 7, when the White
House Office of Management and
Budget<http://www.washingtonpost.com/ac2/related/topic/U.S.+Office+of+Manage...>(OMB)
posted on its Web site that it was reviewing the proposal, identified
only by its nine-word title.

The text of the proposed rule has not been made public, but according to
sources briefed on the change and to an early draft obtained by The
Washington Post<http://www.washingtonpost.com/ac2/related/topic/The+Washington+Post+C...>,
it would call for reexamining the methods used to measure risks posed by
workplace exposure to toxins. The change would address long-standing
complaints from businesses that the government overestimates the risk posed
by job exposure to chemicals.

The rule would also require the agency to take an extra step before setting
new limits on chemicals in the workplace by allowing an additional round of
challenges to agency risk assessments.

The department's speed in trying to make the regulatory change contrasts
with its reluctance to alter workplace safety rules over the past 7 1/2
years. In that time, the department adopted only one major health rule for a
chemical in the workplace, and it did so under a court order.

In an interview, Labor's assistant secretary for policy, Leon R. Sequeira,
said officials did not disclose their interest in the rule change earlier
because they were uncertain until recently whether they wanted to follow
through and pursue a regulation.

But the fast-track approach has brought criticism from workplace-safety
advocates, unions and Democrats in Congress. Some accuse the Bush
administration of working secretly to give industry a parting gift that will
help it delay or block safety regulations after President
Bush<http://www.washingtonpost.com/ac2/related/topic/George+W.+Bush?tid=in...>leaves
office.

"It's an insult to America's workers for the Department of Labor to be
spending its time in the last year of this administration allegedly
fine-tuning the details of how to do these regulations when, other than the
one ordered by a court, they have issued no major worker-health
regulations," said Adam Finkel, a professor at the University of Medicine
and Dentistry of New Jersey who is a former health standards director at
Labor's Occupational Safety and Health Administration. "The reality is
there's a great need to light a fire under this moribund agency to do
something -- anything -- to protect workers."

Rep. George Miller<http://projects.washingtonpost.com/congress/members/m000725/>(D-Calif.),
chairman of the House Education and Labor Committee, 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."

Sequeira said department policy prevents him from discussing the details of
a draft rule, how it was written and by whom, until it is reviewed by the
OMB. The public will have 30 days to critique the draft after it is
published.

"It's premature to comment," he said. "People appear to be making
assumptions about what's in the draft."

Last week, the proposal was defended in an opinion piece in the New
York Sun<http://www.washingtonpost.com/ac2/related/topic/The+New+York+Sun+One+...>written
by Diana Furchtgott-Roth, a fellow at the conservative-leaning Hudson
Institute<http://www.washingtonpost.com/ac2/related/topic/Hudson+Institute?tid=...>.
She wrote that it would bring a "rationalized approach" to risk assessments
and probably move away from the incorrect assumption in current rules that
workers stay in a job, with daily exposure to the same chemicals or toxins,
for as long as 45 years.

Furchtgott-Roth did not mention in the article that she was one of the
consultants who worked with Labor beginning in September 2007 on a $349,000
outside study of the risk-assessment process.

The OMB has been trying to address the issue of risk assessment since 2006,
when it attempted to set new standards governing how a host of federal
agencies reach their conclusions. That plan was withdrawn after the National
Academy of Sciences<http://www.washingtonpost.com/ac2/related/topic/National+Academy+of+S...>called
it "fatally flawed" because it lacked scientific grounding.

Early this year, Deborah Misir, a political deputy in Labor's office of the
assistant secretary for policy, worked with the OMB to draft a new
risk-assessment rule. A former ethics adviser to Bush, Misir had complained
that the department's assumption of a 45-year working life overstated the
risk of exposure.

Typically, before drafting a rule, agency officials consult with staff
members, lawyers and outside experts, and sometimes industry and other
interested parties. But Misir initially did not consult scientific and
workplace-risk-assessment experts in
OSHA<http://www.washingtonpost.com/ac2/related/topic/U.S.+Occupational+Saf...>and
the Mine
Safety and Health
Administration<http://www.washingtonpost.com/ac2/related/topic/Mine+Safety+and+Healt...>,
according to sources briefed on her work.

Charles Gordon, a recently retired Labor Department lawyer who worked on
regulations in OSHA's solicitor's office for 32 years, said the policy
office does not usually take the lead on rules involving risk assessments.
"Normally, issues of health science like risk assessment are performed by
OSHA and MSHA, that have statutory authority and expertise in the area,"
Gordon said.

Misir waited until April to seek comments from the department's experts.
They objected to both the legality and substance of the proposal and
recommended that Chao not pursue such a rule, according to the sources.

A few weeks later, when the agency listed regulations "under development or
review" in its semiannual agenda, the risk-assessment proposal was not
included. But a draft was circulating among a small group of advisers,
according to a date-stamped copy obtained by The Post.

In spring 2007, the department listed 38 potential workplace-safety
regulations as works in progress. Among its priorities were a proposal to
reduce deaths and injuries from cranes and derricks, following a spate of
fatal accidents; a new rule to reduce illnesses from silica, which can cause
respiratory diseases; and a proposal to change regulation of beryllium, a
light metal that can harm the lungs of dental and metal workers.

But virtually overnight, changing the risk-assessment process became the
agency's top priority for workplace regulations. The July submission of its
proposal broke a deadline set by White
House<http://www.washingtonpost.com/ac2/related/topic/The+White+House?tid=i...>
Chief
of Staff Joshua B.
Bolten<http://www.washingtonpost.com/ac2/related/topic/Joshua+Bolten?tid=inf...>,
who had ordered that all agencies submit proposed regulations before June 1
and "resist the historical tendency of administrations to increase
regulatory activity in their final months."

Nevertheless, the OMB agreed to work with Labor on the proposal. The July 7
posting on its Web site shocked many inside and outside the agency who had
been following the events.

"This is flat-out secrecy," said Peg Seminario, director of health and
safety policy at the
AFL-CIO<http://www.washingtonpost.com/ac2/related/topic/AFL-CIO?tid=informline>.
"They are trying to essentially change the job safety and health laws and
reduce required workplace protections through a midnight regulation."

Seminario said she was stunned that the administration would consider the
rule its top priority, when for years it has "slow-walked and stalled"
safety rules that would reduce worker deaths and injuries from diacetyl and
beryllium.

David Michaels<http://www.washingtonpost.com/ac2/related/topic/David+Michaels?tid=in...>,
an epidemiologist and workplace safety professor at George Washington
University<http://www.washingtonpost.com/ac2/related/topic/The+George+Washington...>'s
School of Public Health, said the rule would add another barrier to creating
safety standards, in the name of improving them.

"This is a guarantee to keep any more worker safety regulation from ever
coming out of OSHA," Michaels said. "This is being done in secrecy, to be
sprung before President Bush leaves office, to cripple the next
administration."
http://www.washingtonpost.com/wp-dyn/content/article/2008/07/22/AR200...

--
Jordan Barab