Secret rule on OSHA risk assessment?

I found the most curious item on OMB OIRA’s webpage today, and my paranoia about end-of-the-term mischief by the Bush Administration kicked into high gear.  The item is listed as a proposed rule submitted to OIRA for review on July 7 titled:

“Requirements for DOL Agencies’ Assessment of Occupational Health Risks” (RIN: 1290-AA23)  (Link here, select DOL) or (screenshot)

Whenever the term risk assessment is uttered by the Bush Admininstration, I know they are up to no good.  Recall their earlier effort at a major overhaul of agency’s risk assessment procedures; this was a proposal that was long on new one-size-fits-all requirements for agencies involved in health, safety and environmental protection, but woefully lacking in details about the alleged problem it was designed to fix.  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.  Thankfully, a failing grade by the National Academy of Sciences forced OMB to junk it

This mysterious draft proposal at OMB makes me wonder whether this is the White House’s plan B for so-called “reforms” to agency risk assessments.  Let’s see:  they couldn’t impose their requirements agency-wide, so why not target specific agencies?  What better place than those pesky rules to protect workers’ from dangerous contaminants?

Could this be OIRA’s Susan Dudley teaming up with Labor Secretary Chao for a last ditch effort to impose their anti-worker, anti-public health philosophy on OSHA and MSHA rulemaking on health hazards?  

I first became suspicious of Ms. Dudley’s views in 2006 after reviewing some of her writing on occupational health hazards.  In one, “Defining What to Regulate: Silica and the Problem of Regulatory Categorization” (with Andrew P. Morriss, in Administrative Law Review, Summer 2006). I was appalled to read her perilous misunderstanding of silicosis, evidenced by statements such as:

‘There are serious problems in identifying the cause of lung damage from silica exposure,’ and the scientific evidence ‘comes from extremely limited sources”

Ms. Dudley followed a script popularized by the tobacco industry: when faced with regulation to protect the public’s health, raise doubt and manufacture uncertainty about the scientific evidence.  When business lobbyists and their advocates in senior government jobs start pushing “new and “improved” requirements for agency risk assessments, workers should run the other way!  Workers’ health suffers because policymakers delay protections while more study, more deliberation, more debate takes place.

With respect to just one workplace health hazard—respirable silica—Ms. Dudley asserted that a workplace regulation to prevent silicosis would be premature because ‘we do not know whether particular forms of silica are harmful” and the scientific evidence “comes from extremely limited sources.”  

How does she define “limited”???  The American Thoracic Society’s 1997 official statement on the health effects of exposure to respirable crystalline silica includes more than 140 references, and the National Institute for Occupational Safety and Health’s health hazard review lists nearly 500 scientific papers and documents to support its findings.

Although I’m suspicious that OIRA’s Susan Dudley has a role in this Department of Labor proposed rule, I don’t have any information to confirm it.  It’s possible that this is a brainchild of Secretary Chao and her political advisors.  Who at the Department of Labor has a particular history of attempting to “minimize regulatory burdens”?

The bio for Ms. Suey Howe, Deputy Assistant Secretary for Policy says she:

“came to the Department from the U.S. Small Business Administration’s Office of Advocacy, where she was Director of the Office of Interagency Affairs. In that capacity, Ms. Howe oversaw a team of regulatory experts who reviewed existing and proposed laws and regulations for their impact on small businesses. Ms. Howe prioritized her team’s involvement in agency rulemakings, and managed development of policy recommendations and negotiation strategies designed to help federal agencies minimize their regulatory burden on small businesses. She was the senior legal and regulatory policy adviser to the Chief Counsel for Advocacy.”

Prior to this, she was the

“director of federal regulations for a national trade association representing construction contractors, subcontractors and material suppliers, and OSHA regulatory specialist for a Washington, D.C.-based law firm.”

Despite the Secretary of Labor’s attempt to make this sound harmless, I suspect that her proposed rule on “Requirements for DOL Agencies’ Assessment of Occupational Health Risks” is directed specifically at the methods used by OSHA and MSHA to assess health risks to workers. 

How much do you want to bet that the career scientific staff at these agencies have not seen this proposal?  If this regulatory brainchild is so important, why wasn’t it listed in the Secretary of Labor’s most recent regulatory agenda, published in May 2008??

So, here we have again the same old, same old:  Much-needed regulations to protect workers from lung cancer, silicosis, bronchiolitis obliterans, hearing loss and other seriously disorders languish in the Department of Labor for decades (seriously!).  They throw a crumb to workers every six months by listing certain hazards on their regulatory agenda, trying to convince us that they intend at some time to address these problems.  But, when it comes to some mystery proposal of the anti-regulatory ilk, there’s not even a peep that it’s in the pipeline, and then POOF! it’s already at OMB for its blessing.  Isn’t that predictable.

So, does anyone have any information about what this draft proposal says?

—–

Celeste Monforton, MPH is with the Project on Scientific Knowlege and Public Policy at George Washington University School of Public Health.  She worked at OSHA (1991-1995) and MSHA (1996-2001) .

Comments

  1. #1 Dennis ODell
    July 17, 2008

    No suprise here. Unfortunately, NIOSH has also got sucked into pushing this concept of a risk based risk assement approach to solving health and safety problems in the mining industry. Back in 1993, I was the local union Chairman of the Mine Health and Safety Committee for the UMWA LU 1501 at Consols Robinson Run Mine #95. The operators tried to run the same agenda then. We approached the companies proposal with an open mind only to find out this was an attempt to put into place a method to place blame on the workers in the event that an accident occurred, or lay blame on a worker if a citation was issued at the mine. Risk assement was also geared to make MSHA, the agency put into place by Congress to oversee mine safety and enforce the law, become an agency that would do nothing more than become a compliance assistance agency. Now here we are 15 years later trying to fight off the same battle. I would hope that workers open their eyes and see this as an attempt to weaken our workplace protections. Its time to stand up and say enough is enough. NIOSH also needs to back off and allow MSHA to practice what Congress intended it to….enforce the law and bring our miners safely home to thier loved ones at the end of our work days.

  2. #2 Celeste Monforton
    July 17, 2008

    Dennis,
    So glad to know you read The Pump Handle and took the time to share your thoughts.

    I’d be very interesting in hearing more and being able to share with readers of The Pump Handle how “risk assessment” principles are being misapplied and turned into blame the worker strategies. We might expect this from profit-motivated organizations, but we certainly don’t need it being promoted by our agencies with public health and worker rights MANDATES and paid for with our tax dollars.

  3. #3 Stephen Smyth
    July 18, 2008

    I work in the coal industry in Australia for the union I agree 100 % with the comments of Dennis.

    We hear in Australia have mining legislation which is a mixture of prescriptive and risk assessment. The problem we have is that companies think that you can risk assess any job and it becomes safe to do even if the job has been unsafe for the last 20 years?

    I have personally seen risk assessments which have been completed by workers who do not understand the job or process which they are required to do then do the job and get hurt. The company then will look to point the finger at the worker.

    Our workers in Australia have concerns with the application of risk assessment being used against them as well.

    The other issue I see at this time is the safety behaviour approach being brought into the mining industry this is another tool being used against the worker were the company try to say a worker is unsafe. The workplace is the hazard not the worker in my view.

    There is no validation of this so called safety behaviour and all workers need to challenge it at the highest level.

    You can not just rely on risk assessment to suddenly make the work place safe. You need to ensure that the laws are in place and the regulators are enforcing the law that they are required to do.

  4. #4 C_Yee
    July 24, 2008

    I think the key word in your quote:

    How much do you want to bet that the career scientific staff at these agencies have not seen this proposal?

    is the word scientific. I think we’ll end up being surprised at how many other federal employees knew about this proposal, knew of the attempt to improperly implement it, yet closed their eyes and decided that it wasn’t in THEIR best interest to disclose. We may even find that there were a number of career scientific staff that knew but chose not to speak up. Under this administration, federal employees have lost all of their rights; their employment has become in many ways, worse than at-will employment.

    P.S. Congrats on being identified by ProPublica as the blogger who first identified the proposal that eventually became part of the Washington Post’s article. We need more keen eyes watching the vast neighborhood which spans from the coast of Hawaii to the tip of Maine.