[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE SECRET RULE: IMPACT OF THE
DEPARTMENT OF LABOR'S WORKER
HEALTH RISK ASSESSMENT PROPOSAL
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 17, 2008
__________
Serial No. 110-110
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Donald M. Payne, New Jersey Joe Wilson, South Carolina,
Timothy H. Bishop, New York Ranking Minority Member
Carol Shea-Porter, New Hampshire Tom Price, Georgia
Phil Hare, Illinois John Kline, Minnesota
C O N T E N T S
----------
Page
Hearing held on September 17, 2008............................... 1
Statement of Members:
Wilson, Hon. Joe, ranking minority member, Subcommittee on
Workforce Protections...................................... 4
Prepared statement of.................................... 5
Additional submissions:
Letter dated July 17, 2008, to Chairman Miller from
Mr. Sequeira....................................... 41
Letter dated September 5, 2008, to Chairman Kennedy
from Mr. Sequeira.................................. 43
Letter dated September 5, 2008, to Chairman Miller
from Mr. Sequeira.................................. 45
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Johnson, Randel K., vice president of labor, immigration and
employee benefits, U.S. Chamber of Commerce................ 27
Prepared statement of.................................... 29
Monforton, Celeste, MPH, DrPH, researcher, department of
environmental and occupational health, George Washington
University School of Public Health & Health Services....... 14
Prepared statement of.................................... 16
Seminario, Peg, director of safety and health, AFL-CIO....... 31
Prepared statement of.................................... 33
Sequeira, Hon. Leon R., Assistant Secretary for Policy, U.S.
Department of Labor........................................ 6
Prepared statement of.................................... 8
THE SECRET RULE: IMPACT OF THE
DEPARTMENT OF LABOR'S WORKER
HEALTH RISK ASSESSMENT PROPOSAL
----------
Wednesday, September 17, 2008
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:05 a.m., in
room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Hare, and Wilson.
Also Present: Representative Scott.
Staff Present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor;
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
Senior Policy Advisor, Subcommittee on Workforce Protections;
David Hartzler, Systems Administrator; Jessica Kahanek, Press
Assistant; Brian Kennedy, General Counsel; Therese Leung, Labor
Policy Advisor; Sara Lonardo, Junior Legislative Associate,
Labor; Joe Novotny, Chief Clerk; Meredith Regine, Junior
Legislative Associate, Labor; Michele Varnhagen, Labor Policy
Director; Robert Borden, Minority General Counsel; Cameron
Coursen, Minority Assistant Communications Director; Ed Gilroy,
Minority Director of Workforce Policy; Rob Gregg, Minority
Senior Legislative Assistant; Alexa Marrero, Minority
Communications Director; Jim Paretti, Minority Workforce Policy
Counsel; Chris Perry, Minority Legislative Assistant; Linda
Stevens, Minority Chief Clerk/Assistant to the General Counsel;
and Loren Sweatt, Minority Professional Staff Member.
Chairwoman Woolsey. A quorum is present. The hearing of the
Subcommittee on Workforce Protection will come to order, and I
will begin with my opening remarks and then I will yield to my
ranking member.
Thank you all for being here. It is sort of the end of the
school year around here. Everybody is excited and forgetting to
come to their committee meeting, yes, but they will be here. I
was assured of that. And I thank you because this is more
important to you than our getting out of here for the next few
months.
I have called this hearing today on the Department of
Labor's proposed risk assessment regulation because, quite
frankly, I am troubled by the Agency's attempt to rush through
this rule without a full consideration of its effect on the
health and safety of the American worker. This proposed rule
has, without explanation, leapfrogged ahead of many other
worker protection standards that OSHA should have been working
on for the last eight years, including a standard for diacetyl,
the long delayed silica standard, the long delayed beryllium
standard and the long delayed crane standard.
By now most of you know why the proposed rule has been
dubbed the secret rule. That is what we call it around here,
and now it has become the name of the rule. Because the secret
rule was developed by DOL's Office of Policy with little input
from anyone, not even its own experts at OSHA and MSHA. And
according to documents recently provided by the committee
throughout the process, DOL consulted with only one outsider
during its consideration of the proposal. This was a lawyer
representing industry. When the Secretary's office finally
showed the rule to its own experts at OSHA and MSHA, those
experts disapproved the rule and urged DOL not to proceed. But
the DOL policy department ignored their input, pushed ahead
anyway.
The Department was so determined to put this rule in place
that it even ignored a deadline set by White House Chief of
Staff Josh Bolten. Chief Bolten prohibited all Agencies from
proposing regulations after June 1, 2008, except in
extraordinary circumstances. I am hoping that Mr. Sequeira is
prepared to explain to us why extraordinary circumstances exist
to justify this rule.
Now, it is important to note that this proposed rule
developed in secret--we are going to say this many times
today--was only brought to the public's attention in early July
when the Office of Management and Budget, OMB, which reviews
all proposed rules posted the rule on its Web site. Actually it
did not post the rule. It only posted the title. Uh-huh,
secret. So Chairman Miller and Senator Kennedy wrote to DOL and
asked for specific information on the rule and how it came
about. But no documents were forthcoming until the day before
the rule was published in the Federal Register on August 29.
So, many of us have spent the summer scratching our heads about
the content of the proposed rule.
Now we have the really bad news. Only 30 days to comment on
this misguided proposal. Only 30 days to comment on a risk
assessment regulation that would significantly lengthen the
many years that it currently takes to issue standards. And only
30 days to comment on a regulation that will significantly
affect the ability of OSHA and MSHA to protect workers from
deadly health hazards.
In addition, DOL has decided not to provide an opportunity
for a public hearing. This is unprecedented in the history of
significant OSHA and MSHA standards. We have a chart up there
on the screen which shows the usual procedures DOL has chosen
to ignore in quickly pushing through this proposed regulation.
These procedures, as you can see, include Executive Order
12866, the Regulatory Flexibility Act, the Administrative
Procedure Act, the OSH Act, the Mine Safety and Health Act and
the Bolten memo.
Chairman Miller and Senator Kennedy and Senator Murray and
I have recently sent a letter to DOL asking for a public
hearing and for an extension of the comment period, and other
groups have done so as well. I hope that the Assistant
Secretary will have some good news for us on that front.
Of course the irony of all of this is that during the
entire Bush administration OSHA has not issued a single new
health standard except for one that was issued under a court
ordered deadline. And MSHA has issued only one new health
standard, and that was on asbestos that belatedly brought the
mine standard up to the level that other American workers have
enjoyed for over 20 years.
In April 2007, this subcommittee had a hearing on OSHA's
failure to issue standards. And a young man, Eric Peoples, who
is a former worker in a popcorn factory, testified about his
losing struggle with popcorn lung disease caused by his
exposure to diacetyl, a chemical that is used in the microwave
popcorn manufacturing process. Sitting beside Eric at the
hearing was OSHA Administrator Ed Foulke, who assured us that
the Agency was fully committed to achieving its regulatory
goals. Following the April 2007 hearing, many of us concluded
that OSHA intended to take no action to prevent workers from
exposure to diacetyl.
So I introduced legislation that would require OSHA to
issue an interim standard within 90 days and a final standard
within no less than two years. As we were about to vote on the
bill, which passed in the House, OSHA announced that it would
begin rulemaking and shortly thereafter promised to have a
draft ready for Small Business review by January 2008. But here
we are September with no draft of a standard for diacetyl. But
we have the secret rule which is being propelled forward at
lightning speed. Sadly, we know where this administration's
priorities are and they are not with the American people.
Our witness will further explain this secret rule, we hope,
and we look forward to hearing all of our witnesses' testimony.
With that, I defer to Ranking Member Joe Wilson for his opening
statement.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on
Workforce Protections
I've called this hearing today on DOL's proposed risk assessment
regulation because, quite frankly, I am troubled by the Agency's
attempt to rush through this rule without a full consideration of its
effect on the health and safety of the American worker.
This proposed rule has without explanation leapfrogged ahead of
many other worker protection standards that OSHA should have been
working on for the last 8 years, including:
A standard for diacetyl,
The long delayed silica standard,
The long delayed beryllium standard, and
The long delayed crane standard. By now most of you know
why the proposed rule has been dubbed the ``secret rule.'' It was
developed by DOL's Office of Policy with little input from anyone, not
even its own experts at OSHA and MSHA.
And according to documents recently provided to the Committee,
throughout the process, DOL only consulted with one outsider. And this
was a lawyer representing the industry. When the Secretary's office
finally showed the rule to its own experts at OSHA and MSHA, those
experts disapproved the rule and urged DOL not to proceed. But the DOL
Policy Department apparently ignored them and pushed ahead anyway.
Now, it is important to note that this proposed rule---developed in
secret---was only brought to the public's attention in early July when
the Office of Management and Budget (OMB), which reviews all proposed
rules, posted the rule on its website.
Actually, it did not post the rule, but only its title.
And so, Chairman Miller and Senator Kennedy wrote to DOL and asked
for specific information on the rule and how it came about. But no
documents were forthcoming until the day before the rule was published
in the Federal Register on August 29.
So many of us have spent the summer scratching our heads about the
content of the proposed rule. Well, now we have the bad news, but only
30 days to comment on this misguided proposal. Only 30 days to comment
on a risk assessment regulation that would significantly lengthen the
many years it takes currently to issue standards.
And only 30 days to comment on a regulation that will significantly
affect the ability of OSHA and MSHA to protect workers from deadly
health hazards. The Department was so determined to put this rule in
place that it even ignored a deadline set by
White House Chief of Staff John Bolten who prohibited all agencies
from proposing regulations after June 1, 2008, except in extraordinary
circumstances. In addition, DOL has decided not to provide an
opportunity for a public hearing.
This is unprecedented in the history of significant OSHA or MSHA
standards. We have a chart, which shows the usual procedures DOL has
chosen to ignore in its effort to quickly push through this proposed
rule.
In addition to Mr. Bolten's memo, DOL has ignored the orderly
processes set outlined in Executive Order 12866, the Regulatory
Flexibility Act, the Administrative Procedure Act, the OSH Act and the
Mine Safety and Health Act.
Chairman Miller, Senator Kennedy, Senator Murray and I have
recently sent a letter to DOL asking for a public hearing and for an
extension of the comment period. Other groups have done so as well. I
hope that Assistant Secretary Sequeira will have good news for us on
that front.
Of course, the irony of all of this is that during the entire Bush
Administration, OSHA has not issued a single new health standard,
except for one that was issued under a court-ordered deadline.
And MSHA has issued only one new health standard--on asbestos--that
belatedly brought the mine standard up to the level that other American
workers have enjoyed for over 20 years.
In April, 2007, this subcommittee had a hearing on OSHA's failure
to issue standards.
And Eric Peoples, a former worker in a popcorn factory testified
about his losing struggle with ``popcorn lung'' disease caused by his
exposure to diacetyl, a chemical used in the microwave popcorn
manufacturing process.
Sitting beside Eric was OSHA Administrator Ed Foulke who assured us
that the Agency was fully committed to achieving its regulatory goals.
Following the April 2007 hearing, many of us concluded that OSHA
intended to take no action to prevent workers from exposure to
diacetyl.
And, so I introduced legislation that would require OSHA to issue
an interim standard within 90 days, and a final standard within two
years.
As we were about to vote on the bill, which passed in the House,
OSHA announced that it would begin rulemaking and shortly thereafter
promised to have draft ready for small business review by January 2008.
But here we are in September with no draft of a standard for
diacytel but we have the secret rule, which is being propelled forward
at lightning speed.
Sadly, we know where this Administration's priorities are, and they
are not with American workers.
Our witnesses will further explain this ``secret rule,'' and I look
forward to their testimony.
With that, I defer to the ranking member, Joe Wilson, for his
opening statement.
______
Mr. Wilson. Good morning, Chairwoman Woolsey. And thank you
for recognizing me. I want to thank you for holding this
hearing today and thank our witnesses for taking the time to
appear before us. Today is Constitution Day, and it is only
right that we have a hearing ensuring that citizens are able to
redress their government. I hope we will all take a few moments
today to reflect on the importance of this document to our
lives.
On August 29, 2008, the Department of Labor formally
proposed to change its internal risk assessment policy and
provided that proposal for stakeholder input. Prior to this
action, however, there was an unnecessary conflict over so-
called secret rulemaking, to include the chairman of this
committee introducing legislation to halt a draft proposal
leaked to the Washington Post. The Department should be
commended for subjecting internal policy to outside scrutiny
when it simply could have changed the policy without any
notice. That, ladies and gentlemen, would have actually been
secret rulemaking.
While I will not prejudge the outcome of this rulemaking, I
will say that I support the concept of greater transparency in
the rulemaking process. The Department's risk assessment
proposal will require an Advanced Notice of Proposed
Rulemaking, ANPRM--and so here we go another acronym, Madam
Chairwoman, for us to learn--in order for all stakeholders to
provide input during the regulatory process. This will ensure
that all of the studies used as a foundation for rulemaking are
available for review and I hope will serve to improve
rulemaking in the future.
I welcome our witnesses today and look forward to a
discussion on how to improve the use of risk assessment in
Federal regulations.
[The statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, Ranking Republican Member,
Subcommittee on Workforce Protections
Good morning Chairwoman Woolsey. I want to thank you for holding
this hearing today and thank our witnesses for taking the time to
appear before us. Today is Constitution Day and it is only right that
we have a hearing ensuring that citizens are able to redress their
government. I hope we will all take a few moments today to reflect on
the importance of this document in our lives.
On August 29, 2008, the Department of Labor formally proposed to
change its internal risk assessment policy and provided that proposal
for stakeholder input. Prior to this action, however, there was an
unnecessary conflict over so-called secret rulemaking, to include the
Chairman of this Committee introducing legislation to halt a draft
proposal leaked to The Washington Post. The Department should be
commended for subjecting internal policy to outside scrutiny, when it
simply could have just changed the policy without any notice. That,
ladies and gentleman, would have actually been ``secret rulemaking.''
While I will not prejudge the outcome of this rulemaking, I will
say that I support the concept of greater transparency in the
rulemaking process. The Department's risk assessment proposal will
require an advanced notice of proposed rulemaking (ANPRM) in order for
all stakeholders to provide input during the regulatory process; will
ensure that all of the studies used as a foundation for rulemaking are
available for review; and I hope will serve to improve rulemaking in
the future.
I welcome our witnesses today and look forward to a discussion on
how to improve the use of risk assessment in federal regulations.
______
Chairwoman Woolsey. Thank you, Mr. Wilson. Without
objection, all Members will have 14 days to submit additional
material for the hearing record.
Now I would like to introduce our very distinguished panel
of witnesses that are with us today, and I will read their
biographies in the order that they will present. And then after
their biographies, we will get started.
But let's talk about the lighting system, which is not new
to any of you up there, I believe. But we have a lighting
system that is the fiveminute rule. Everyone, including
Members, is limited to five minutes of presentation or
questioning. The green light is illuminated when you begin to
speak. The yellow light goes on when you have a minute left.
And when the red light turns on in front of you--you each have
your own little lighting system--you will know that it is time
to wrap up or conclude. Now we don't, you know, open the floor
and you drop through it at the red light, but we do know that
that is about time to end. And the same thing goes for the
Members up here. If we choose to use our whole five minutes
making a speech, then there is no time left to ask questions.
So we will go from there.
So first let me introduce all of you. Leon Sequeira,
Assistant Secretary for Policy at the U.S. Department of Labor,
a position he has held since February of last year. He
previously served as Deputy Assistant Secretary of Policy at
DOL and as Counsel to the Senate Rules Committee. Mr. Sequeira
holds a Bachelor's Degree from Northwest Missouri State
University and a J.D. from the George Washington University.
Celeste Monforton is a lecturer and researcher at the
George Washington University School of Public Health. Dr.
Monforton worked at OSHA from 1991 to 1995 as a Policy Analyst
and at MSHA as a Special Assistant to the Assistant Secretary
of Labor from 1996 to 2001.
She earned her Master's of Public Health in 2004 and her
doctorate of public health in 2008 from George Washington's
School of Public Health.
Randel Johnson is Vice President for Labor, Immigration and
Employee Benefits at the U.S. Chamber of Commerce. Before
joining the Chamber, Mr. Johnson was the Republican Labor
Counsel and Coordinator for the full Education and Labor
Committee here in the House. He is a graduate of Denison
University and the Maryland University School of Law and
received his Master's of Law in labor relations from the
Georgetown University Law Center.
Margaret Seminario is the Director of Occupational Health
and Safety for the AFL-CIO, where she has worked since 1977.
Ms. Seminario has directed the organization's efforts on safety
and health since 1990. She served on the National Advisory
Committee on Occupational Safety and Health and was trained as
an industrial hygienist at the Harvard School of Public Health.
We will now begin with you, Mr. Secretary.
STATEMENT OF HON. LEON R. SEQUEIRA, ASSISTANT SECRETARY FOR
POLICY, U.S. DEPARTMENT OF LABOR
Mr. Sequeira. Good morning, Madam Chair and members of the
subcommittee. Thank you for the opportunity to appear before
you today to discuss the Department of Labor's recent notice of
proposed rulemaking regarding our internal procedures for
conducting rulemakings that involve the regulation of potential
workplace exposure to toxins. I appreciate the opportunity to
testify today to offer some facts about the Department's
proposal, especially given the widespread inaccurate
speculation and misleading descriptions of this rulemaking.
The Department's proposed rule is short and simple. It
codifies existing best practices into a single easy-to-
reference regulation and includes two provisions to establish
consistent procedures that promote greater public input and
awareness of the Department's health rulemakings. Specifically,
those provisions are, one, the issuance of an Advanced Notice
of Proposed Rulemaking as part of the health standard
rulemaking involving the regulation of workplace toxins and,
two, the electronic posting of all documents the Department
relies upon when developing these health standards.
It is important to note, contrary to many misleading
reports, that this proposal does not affect the substance or
methodology of risk assessments and it does not weaken any
health standard. Much of the criticism of this proposal appears
to reflect either a profound misunderstanding of the Federal
rulemaking process or a deliberate mischaracterization of the
Department's proposal.
The Department's use of an Advanced Notice of Proposed
Rulemaking is not new. In fact, OSHA frequently issues an
Advanced Notice of Proposed Rulemaking when regulating
workplace exposure to toxins, and it has done so since the
early 1970s. In fact, several of the health standards most
recently issued by the Department began with an Advanced Notice
of Proposed Rulemaking. So those who would suggest that this is
some sort of unheard of new process are being, well, at the
very least, disingenuous.
Currently the Department does not have a comprehensive
regulation or guidance governing our proceedings for conducting
the rulemakings that involve the regulation of workplace
toxins. That topic has long been discussed within the
Department, within the Federal Government and among public
stakeholders. Specifically, the Clinton era bipartisan
presidential and congressional Commission on Risk Assessment
and Risk Management thoroughly studied Federal risk assessment
and management policies. In its 1997 final report, that
bipartisan commission on risk made specific findings with
respect to the Occupational Safety and Health Administration.
In particular, it found--and I quote--OSHA seems to have relied
upon a case-by-case approach for performing risk assessment and
risk characterization. The commission further recommended that
the Agency publish and describe its scientific and policy
defaults with regard to risk assessment and risk
characterization in support of risk management.
Finally, let me say the Department's proposal was developed
with a full participation of numerous career professionals
within several Agencies in the Department, including all
experts with knowledge on this topic. The Department believes
it is critical that the process for regulating workplace
exposure to toxins is fully transparent and accountable to the
public, and that is what this proposal seeks to do.
Thank you again for the opportunity to testify today. I
would be happy to answer questions from you.
[The statement of Mr. Sequeira follows:]
------
Chairwoman Woolsey. Thank you.
Dr. Monforton.
STATEMENT OF DR. CELESTE MONFORTON, PH.D., MPH, GEORGE
WASHINGTON UNIVERSITY SCHOOL OF PUBLIC HEALTH
Ms. Monforton. Chairwoman Woolsey, Ranking Member Wilson,
and other members of the subcommittee, I am Celeste Monforton
and a researcher at the George Washington University School of
Public Health, and I appreciate the opportunity to be here
today and ask that my full statement be made a part of the
record.
On its face, I understand how some individuals might ask,
who could be against the Labor Department having requirements
for risk assessment, or others might wonder why a large group
of health scientists and the American Public Health Association
urge the Secretary to withdraw this proposal.
Here is the problem: Our Nation's system for protecting
workers from harmful substances that causes injury and
illnesses is paralyzed. Thousands of workers are exposed every
day to chemical compounds and physical hazards that are known
to be harmful, yet these exposures are permitted by outdated
and nonexistent OSHA and MSHA standards.
As the former chairman of this subcommittee, the late
Congressman Norwood, acknowledged, there are many occupational
health standards that need to be updated in order to achieve
safe and healthful workplaces. The public health and worker
rights communities would have welcomed a Department of Labor
effort to improve the efficiency and effectiveness of the
rulemaking process.
The OSH Act and Mine Act are robust, well-crafted statutes
that give broad authority to the Secretary to regulate workers'
exposure to toxic materials, and both were clearly grounded in
the public health principle of prevention. The overarching goal
of both statutes was to identify, mitigate, and/or control
hazards before they cause harm. But instead of being motivated
by prevention, the Labor Department is sponsoring changes that
will make it more difficult to issue health protective rules,
and the longer workers are exposed to harmful levels of toxic
materials, the greater the risk of harm.
In the simplest terms, conducting a risk assessment means
using the best information available to describe or estimate
the risk of an adverse event. A risk assessment is a decision
making tool that allows users to make informed decisions. In
the context of occupational health standards, a risk assessment
is prepared by OSHA to determine if exposure to a toxic
material poses a significant risk to workers. If the hazard
does not pose a significant risk, the Agency does not have the
authority to regulate it.
Since the 1980s, when the Labor Department began preparing
quantitative risk assessments, the Agency's products have
consistently withstood vigorous scientific and public scrutiny
and legal challenges. No matter the contaminant, asbestos,
vinyl chloride, lead, diesel particulate, the assessments were
based on the best available evidence determined with little
room for doubt that the levels of exposure experienced by
workers place them at a significant risk of material impairment
of health or functional capacity.
Furthermore, these risk assessments are not the only
factors used in OSHA and MSHA regulatory decisions. The
Agencies must also conduct analyses to determine if a proposed
regulation is economically and technologically feasible. This
means that even if the Agency's risk assessment for chemical x
suggests that an exposure limit should be set at y in order to
protect workers' health, the Agency is required to set the
exposure limit at a level that is feasible. This means that a
final exposure limit might be set at y times two or y times
five, even when the risk assessment suggested a much lower
level was warranted.
In my written statement, I outline a number of problems
with the Department's proposed rule, including its misreading
of the 1997 commission report, the way it says it values public
input but fails to allow adequate time for it, and its
incomplete appraisal of key documents that already exist in the
Department for standard setting and risk assessment. In my
remaining time, however, I would like to draw your attention to
the pitfalls of preparing a proposed rule on risk assessment in
haste and without the benefit of experienced career Federal
employees in the Department.
Just last year a panel of scientists for the National
Academies offered a harsh critique of a comparable effort by
OMB, and the NAS made specific recommendations for
administrative Agencies for the content of and procedures for
developing risk assessment guidelines. The Labor Department
ignores the NAS report in numerous respects, including the
recommendation that any proposed guidance draw on expertise and
Federal Agencies and be subjected to peer review.
Curiously, the Department indicates that, quote, it does
not have comprehensive regulations or formal internal guidance
outlining consistent risk assessment procedures, end quote. Yet
in 2002 it issued a special appendix under its information
quality guidelines which specifically describe the procedures
to be used by OSHA and MSHA when conducting risk analyses for
health and safety rules.
The Labor Department's proposal is a sloppy piece of work
that will impede, not improve health protections for workers.
It is imperative that this committee use its oversight role to
ensure that the promise of the OSH Act and the Mine Act are
upheld for the sake of our Nation's working people. These are
the men and women who create the wealth for our businesses and
for our entire economy.
Thank you.
[The statement of Ms. Monforton follows:]
Prepared Statement of Celeste Monforton, MPH, DrPH, Researcher,
Department of Environmental and Occupational Health, George Washington
University School of Public Health & Health Services
Chairwoman Woolsey and Members of the Subcommittee: I am Celeste
Monforton, a researcher in the Department of Environmental and
Occupational Health at the George Washington University School of
Public Health & Health Services. I appreciate the opportunity to appear
before the subcommittee to share my views on the Department of Labor's
proposed rule on MSHA and OSHA risk assessment procedures for
occupational health hazards.\1\
On its face, I understand how some individuals might ask ``who
could be against the Labor Department having requirements for risk
assessment?'' In fact, this proposal is so potentially damaging to
worker health that 80 epidemiologists, physicians, and other health
scientists,\2\ including the American Public Health Association,\3\
urged the Secretary of Labor to withdraw her plan to issue a regulation
on how occupational health risks are assessed.
I am currently preparing my detailed written comments on the
proposed rule, which I plan to submit to the Labor Department by the
September 29 deadline, but I am pleased to share my big-picture
concerns about it, concerns that are shared by other public health
scientists and proponents of health-protective standards for working
men and women in our country.
Our nation's system for protecting workers from harmful substances
that cause injuries, illnesses, and deaths is paralyzed. Thousands of
workers are exposed every day to chemical compounds and physical
hazards that are known to be harmful, yet these exposures are permitted
by outdated or non-existent OSHA and MSHA standards. Hazards such as
respirable coal mine dust and crystalline silica, diesel particulate,
and noise,\4\ to name just a few, have damaged the health of
generations of workers and continue to do harm today--even though we
have known about these problems for decades.
The Department of Labor's record over the last 20 years is dismal
with respect to issuing health standards to protect workers from these
age-old contaminants, and it is particularly appalling for emerging
health hazards. The overwhelming majority of the permissible exposure
limits currently on OSHA's and MSHA's books date back to 1968 and 1973,
respectively. These current limits are based on science from the
1960's, meaning the last 4050 years of scientific understanding of how
chemicals affect human health are not reflected in most OSHA or MSHA
standards.\5\ For many of these compounds, the health science data
suggests that the existing permissible exposure limits should be
amended if we want to reduce workers' risk of adverse health effects.
As the former chair of this subcommittee, the late Congressman Charlie
Norwood, acknowledged, there are many OSHA standards that are out of
date and need to be updated in order to achieve safe and healthful
workplaces for American workers.\6\ It should be a grave concern to all
of us, no matter what our political views, that the promise of the OSH
Act and the Mine Act is not being upheld for workers who are made ill
due to harmful on-the-job exposures.
While we know of many as-yet-unregulated workplace hazards, there
are likely many others that we will become aware of in the future.
There are 82,000 chemicals listed in U.S. EPA's TSCA inventory,\7,8\ of
which nearly 3,000 are compounds manufactured or imported annually in
quantities greater than 1 million pounds, and another 6,000 compounds
used in quantities between 10,000 and just below 1 million pounds.\9\
Many of these chemical compounds, especially in their final form, have
improved our way of life. We must also recognize, however, that under
current workplace standards, we have no systematic way to monitor the
exposure of workers who manufacturer or work downstream with these
thousands of compounds, nor do we have a mechanism to assess the
adverse health consequences that may be associated with exposure to
them individually or in combination with other chemicals.
The public health and workers' rights communities would have
welcomed a Department of Labor effort to improve the efficiency and
effectiveness of the rulemaking process, or even to address one of the
many hazards that continue to put workers' lives and health at risk.
Instead, the Labor Department is sponsoring changes that will further
paralyze the rulemaking process. Future OSHA and MSHA administrators
who may be more inclined to pursue new standards to protect workers
from harmful exposures will find themselves facing new obstacles. These
obstacles mean additional months and years of exposure for workers,
during which some of them will develop life-threatening conditions.
Standard-Setting under MSHA and OSHA: Prevention-Based Statutes
The Mine Act of 1977 \10\ and the OSH Act of 1970 \11\ are robust,
well-crafted statutes that give broad authority to the Secretary of
Labor to regulate workers' exposure to toxic materials, and were
clearly grounded in the public health principle of prevention. The
overarching goal of both statutes was to identify, mitigate, and/or
control hazards before they cause harm. Both statutes include the
following prevention framework:
``The Secretary, in promulgating standards dealing with toxic
materials * * * shall set the standard * * * that no employee will
suffer material impairment of health * * * even if the employee has
regular exposure to the hazard * * * for the period of his working
lifetime.'' \12\
It might be worthwhile to explain how risk assessment informs the
Department of Labor's standard-setting process, but first let's simply
review what ``risk assessment'' is. The term ``risk assessment'' has a
variety of meanings depending on the context of the ``risk'' and the
perspective of the assessor. Risk assessments are conducted by
investors in the financial markets, by fire chiefs in command centers
during emergency response, and by environmental scientists trying to
estimate the impact of a commercial development on the habitat of a
native species. They may rely on quantitative data, qualitative data,
or both.\13\ In the simplest terms, a risk assessment is the process of
using the best information available to describe or estimate the risk
of an adverse event. A risk assessment is a decisionmaking tool that
allows users to make informed decisions; it does not dictate what the
final decision will be.
In the context of occupational health standards, a risk assessment
is prepared by OSHA to determine if exposure to a toxic material poses
a significant risk to workers.\14\ If the hazard does not pose a
significant risk, the agency does not have the authority to regulate
it. OSHA is required to make a significant-risk finding which, based on
the U.S. Supreme Court's 1980 suggestion,\15\ is a risk of about 1 in
1,000. This means that when there is evidence that a particular
substance is causing harm to workers, OSHA will gather the best
available information to estimate if workers exposed to the substance
face a higher risk of harm compared to individuals who are not exposed.
If, for example, the epidemiological evidence suggests that for every
1,000 exposed workers, at least 6 excess cases of bladder cancer will
occur, this information provides OSHA with its finding of ``significant
risk.'' On the other hand, if the available evidence suggests that the
number of excess cases of bladder cancer is 1 out of 5,000 workers,
then this estimate would not meet the threshold finding of a
significant risk. For OSHA, the written output of using the available
evidence to characterize the exposed workers' risk is the agency's
``risk assessment.''
Since the 1980's, when the Labor Department began preparing
quantitative risk assessments to support health standards for toxic
substances, the agency's assessments have consistently withstood
vigorously scientific scrutiny and legal challenges. Whether the
contaminant regulated was asbestos, lead, vinyl chloride, formaldehyde,
butadiene, or diesel particulate matter, the assessments have been
based on the best available evidence and determined, with little room
for doubt, that the levels of exposure experienced by workers placed
them at significant risk of ``material impairment of health or
functional capacity.'' \16\
We must remember that risk assessments are not the only factors in
regulatory decisions; OSHA and MSHA must also conduct economic analyses
and ensure that their regulations are economically and technologically
feasible. This means that even if the agency's risk assessment for
chemical X suggests that an exposure limit should be set at Y in order
to protect workers from disease (e.g., lung cancer, lead poisoning,)
the agency has to set the exposure limit as a level that is feasible.
This might mean an exposure limit of Y*2, Y*5, or whatever level is
determined feasible. The permissible exposure limits incorporated into
OSHA standards are driven by a combination of the risk assessments and
the feasibility data.
If the Department of Labor is spending its finite resources on this
risk assessment proposal it ought to be in response to a critical flaw
in the current risk assessment process. No evidence is presented in the
preamble to this proposed rule (or elsewhere, to my knowledge) to
suggest fundamental flaws in OSHA's or MSHA's risk assessment
practices.
DOL's Rationale Based on Misreading of 1997 Commission Report
The rationale DOL gives for this proposed rule, both in the
document itself and in statements made by Department officials, is
largely based on a misreading of a recommendation made more than 11
years ago in a report by a Presidential/Congressional Commission.\17\
The Department has cherry-picked a single sentence from the
Commission's report and ignores its key recommendation. The part of the
1997 Commission report DOL seizes on says that:
``OSHA seems to have relied upon a case-by-case approach for
performing risk assessment and risk characterization in support of risk
management policy decisions.''
This phrase ``case-by-case approach,'' is conveniently described by
the Labor Department as a ``criticism,'' \18\ although the 1997 report
never labels it that way. What DOL fails to mention in its proposal is
the specific recommendation from the Commission's report, which states:
``OSHA should publish, after appropriate public involvement and
review, one or more sets of guidelines that lay out its scientific and
policy defaults. At a minimum, the guidelines should cover an explicit
rationale for choosing the defaults and an explicit standard for how
and when to modify them; methods for assessing risk for noncancer
health effects of concern in occupational settings; methods for
quantifying and expressing uncertainty and individual variability in
risk; and a statement of the magnitude of individual risk that it
considers negligible for the various adverse health effects. The
guidelines should help OSHA decide how extensive a risk assessment is
needed in different situations. Finally, OSHA should explain and
justify its actions when it evaluates or regulates a substance
differently than other federal agencies that regulate the same
substance.'' \19\
Note that the Commission's recommendation was for OSHA to develop
guidelines, not some other office within DOL that does not have experts
in epidemiology, biostatistics or other health sciences, or experience
preparing risk assessments on workplace chemical hazard exposure and
health effects. An appropriate question for this committee to explore
is determining the extent of involvement, if any, of the career federal
employees at MSHA and OSHA in the development of this proposal. These
individuals are the most expert at preparing occupational health risk
assessments and would be best able to identify the agencies' best
practices.\20\
Other substantive parts of the 1997 Commission's recommendation are
curiously absent from DOL's proposal, such as the suggestions to:
do more to address non-cancer health effects (e.g.,
cardiovascular, cardiopulmonary, neurological, reproductive)
do more to address individual variability (e.g.,
protection factors for susceptible subpopulations)
develop guidelines with sufficient flexibility to allow
for different types of risk assessments depending on the nature of the
hazard
If the DOL had truly paid attention to the Commission's
recommendations rather than focusing on a single sentence and
misinterpreting that sentence as a criticism, its risk-assessment
proposal would have looked very different.
DOL's Disregard for 2007 National Academies' Report
Even more troubling than misreading the 1997 Commission's report is
the Department's disregard for the much more recent 2007 report the
National Research Council of the National Academies entitled
``Scientific Review of the Proposed Risk Assessment Bulletin from the
Office of Management and Budget.'' This report offered a harsh critique
of the White House Office of Management and Budget's proposed risk
assessment guidelines, including the conclusion that OMB's product was
``fundamentally flawed.'' \21,22\ In the NRC's report, the scientific
committee recommended to OMB that any risk assessment guidance
documents prepared by the Administration: ``outline goals and general
principles of risk assessment designed to enhance the quality,
efficiency, and consistency of risk assessment * * * [that would] be
consistent with each agency's legislative mandates and missions, and
draw on the expertise that exists in federal agencies and other
organizations. The technical guidance developed by or identified by the
agencies should be peer-reviewed and contain procedures for ensuing
agency compliance with the guidance.'' \23\
The Department of Labor has failed to fulfill this recommendation
by neglecting to:
``outline goals and general principles of risk
assessment'';
develop guidelines that would ``enhance the quality,
efficiency and consistency of risk assessment'';
``draw on the expertise in federal agencies and other
organizations''; and
subject the proposed rule to ``peer review''
I would respectfully request Chairwoman Woolsey or other members of
the subcommittee to ascertain from Assistant Secretary Sequeira why
this proposed rule on risk assessment does not meet the standards
recommended just last year by the National Academies' panel.
``Best Practices'': Missing in Action in DOL's Proposed Rule
There is a fundamental disconnect between what the Department of
Labor says about this proposed rule and their actions.
1) Their timing discourages the input they claim to value
First, the proposed rule says they are seeking public comment ``* *
* in order to gain valuable public input and in the interests of full
transparency and accountability.'' \24\
Yet, the time allowed to submit written comments is only 30 days
(the deadline is September 29), hardly consistent with the Department's
claim of wanting to receive ``valuable public input.'' Similarly,
Secretary Chao's spokesperson said the public would ``have plenty of
opportunity'' \25\ to examine and debate the proposal. It is hard to
believe he actually thought that a robust debate could occur in such a
short time span.
2) They made a feeble attempt to compile OSHA's actual best
practices
The preamble to the proposed rule suggests that the regulation is
simply about assembling the Department's ``best practices'' for risk
assessment into a single document. OSHA has nearly 30 years of history
developing risk assessments, and had the Department truly wanted to
compile the agency's ``best practices'' it could have evaluated
methodically the scientific assumptions, controversies, and other
issues encountered by OSHA and MSHA over the years. In DOL's proposed
rule, however, one will find very little in the regulatory text that
could be characterized as a ``best practices.'' Instead the proposal
offers the most elementary definitions of ``hazard identification,''
``dose-response assessment,'' and ``exposure assessment,'' and
completely neglects to mention the Department's own five-page appendix
issued in 2002 under its Information Quality Guidelines describing
procedures to be used by OSHA and MSHA when conducting risk analyses
for health and safety rules.\26\ Likewise, the news release issued by
the Department stated ``the department does not have comprehensive
regulations or formal internal guidance outlining consistent risk
assessment procedures,'' \27\ again, forgetting about its written
procedures already on the books.
3) They describe the ANPRM as a best practice when it is
not
While overlooking practices developed by OSHA and MSHA experts over
the past several decades, the Department's proposal identifies one
practice that it identifies erroneously as a ``best practice'':
Advanced notice of proposed rulemaking (ANPRM). The Department offers
no evidence to support its assertion that ANPRM represents a best
practice for risk assessment. To the contrary, I would suggest that
that available data indicates that adding the mandatory step of an
ANPRM delays significantly the completion of a standard to protect
workers' health. In the case of OSHA's rule on butadiene, the agency
issued an
ANPRM in 1986 and the final rule was not completed until 1996. For
methylene chloride, OSHA published an ANPRM in 1986 and the final rule
was issued in 1997. In contrast, OSHA's did not issue an ANPRM for
hexavalent chromium, it proposed a rule in 2004 and the final was
issued in 2006. Likewise, MSHA proposed its diesel particulate matter
rule in 1998 and completed it in January 2001. I suppose a ``best
practice'' is in the eyes of the beholder. If the objective is to delay
health protective rules as long as possible, an ANPRM would be a ``best
practice.'' But for the workers who are exposed to a hazardous
substance and whose health would be protected by a workplace standard,
the extra years of delay associated with an ANPRM are anything but a
best practice. There are costs associated with such delays, costs in
terms of additional years of exposure and harm incurred.
4) They fail to follow their own proposed rule for posting
documents promptly
In its proposed rule, DOL is requiring MSHA and OSHA to post all
relevant documents at Regulations.gov within 14 days of each key steps
in the rulemaking process (e.g., issuing a proposed rule). As of
September 15, 2008 (17 days after DOL's proposed rule was published in
the Federal Register--and more than halfway through the comment period)
the Department has not yet posted any supporting documents or
background materials in the public docket for this rule.28 The double
standard is striking.
The Department of Labor's entire process for developing and issuing
the proposal has disregarded recent reports and decades of MSHA and
OSHA practices, while ignoring the standards of openness and
transparency that the Department claims to value. Most distressing,
however, is the content of the rule. The Department of Labor is
proposing changes to MSHA's and OSHA's risk assessment procedures that
will impede, not improve, health protections for workers. It is
imperative that this Committee use its oversight role to ensure that
the promises of the OSH Act and the Mine Act are upheld for the sake of
our nation's workers--the individuals who create the wealth for
businesses and our entire country.
REFERENCES
\1\ U.S. Department of Labor, Assistant Secretary for Policy.
``Requirements for DOL Agencies' Assessment of Occupational Health
Risks,'' (RIN: 1290-AA23), 73 Federal Register 50909, August 29, 2008.
\2\ Letter from scientists to Secretary of Labor Elaine Chao,
August 14, 2008, (Attachment A)
\3\ Letter from Georges Benjamin, MD, Executive Director, American
Public Health Association, to Secretary of Labor Elaine Chao, August
12, 2008 (Atachment B)
\4\ The gaps in worker protections for well known hazards are
glaring. Neither OSHA nor MSHA have comprehensive occupational health
standards to protect workers from respirable coal mine dust or
respirable crystalline silica. In 1974 NIOSH recommended an exposure
limit for silica of 0.05 mg/m3 (for up to a 10-hr workday during a 40-
hr workweek) [National Institute for Occupational Safety and Health,
U.S. Department of Health, Education and Welfare. ``Criteria for a
recommended standard: occupational exposure to crystalline silica,''
1974] and reiterated this recommendation in 2002 [National Institute
for Occupational Safety and Health, U.S. Department of Health and Human
Services, ``NIOSH Hazard Review: Health Effects of Occupational
Exposure to Respirable Crystalline Silica,'' 2002.] In 1995, NIOSH
recommended that coal miners' exposure to respirable coal mine dust be
reduced from 2 mg/m3 to 1 mg/m3 (time-weighted concentration for up to
10 hours/day) [National Institute for Occupational Safety and Health,
U.S. Department of Health and Human Services, ``Criteria for a
recommended standard: occupational exposure to respirable coal mine
dust,'' 1995] yet the outdated standard remains on MSHA's books. A
comprehensive OSHA standard to protect many workers from noise-induced
hearing loss was issued in 1983, but there is no equal health
protection for construction workers. In January 2001, MSHA issued a
health standard to protect underground mine workers from exposure to
diesel particulate matter (which is associated with cardiovascular and
cardiopulmonary disease, and lung cancer,) but workers in all other
industries (e.g., industrial operations, construction sites, bus/truck
depots and repair platforms, shipyards and ports, etc.) are not
protected adequately from this hazardous exposure.
\5\ Occupational Safety and Health Administration, U.S. Department
of Labor. Air contaminants proposed rule. 53 Federal Register 20960,
June 7, 1988; 30 Code of Federal Regulations, Subpart D: Air quality
and physical agents, 56.5001.
\6\ The Honorable Charlie Norwood, Opening Statements at hearings
of the Subcommittee on Workforce Protections: ``Making Sense of OSHA
Rulemaking: A Thirty Year Perspective,'' June 14, 2001; ``The Role of
Consensus Standard Setting Organizations,'' November 1, 2001; ``Can a
Consensus be Reached to Update OSHA's PELs,'' July 16, 2002.
\7\ A list maintained by EPA based on submissions from
manufacturers which provides information on chemicals in commerce,
called the TSCA inventory, referring to the Toxic Substances Control
Act of 1976 which authorized EPA to collect this information.
\8\ U.S. General Accountability Office. ``Chemical Regulation:
Comparison of U.S. and Recently Enacted European Union Approaches to
Protect against the Risks of Toxic Chemicals,'' Report No. GAO-07-825,
August 2007.
\9\ Lowell Center for Sustainable Production, University of
Massachusetts, Lowell. ``The Promise and Limits of the United States
Toxic Substances Control Act,'' October 2003. Available at:
www.chemicalspolicy.org/downloads/Chemicals--Policy--TSCA.doc
\10\ 29 U.S.C. Sec. 651
\11\ 30 U.S.C. Sec. 801, et seq 12 Section 6(b)(5) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651), and
Section 101(a)(6)(A) of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. Sec. 801, et seq).
\13\ In 1983, the National Research Council issued the legendary
``Red Book,'' which defined [chemical] risk assessment as ``the
qualitative or quantitative characterization of the potential health
effects of particular substances on individuals or populations.''
National Research Council. Risk Assessment in the Federal Government:
Managing the Process. 1983.
\14\ Under the U.S. Supreme Court's decision in Industrial Union
Department v. American Petroleum Institute, [448 U.S. 607 (1980)], OSHA
is required to find ``as a threshold matter, that the toxic substance
in question poses a significant health risk in the workplace and that a
new, lower standard is therefore 'reasonably necessary or appropriate'
to provide safe or healthful employment and places of employment.''
\15\ Industrial Union Department v. American Petroleum Institute,
448 U.S. 607 (1980).
\16\ Section 6(b)(5) of OSH Act.
\17\ The Presidential/Congressional Commission on Risk Assessment
and Risk Management. ``Risk Assessment and Risk Management in
Regulatory Decision-Making.'' Final Report, Vol. 2, 1997.
\18\ OSHA News Release. ``Notice of Proposed Rulemaking on U.S.
Department of Labor's risk assessment procedures published in Federal
Register,'' Release Number: 08-1242-NAT, 08/29/2008.
\19\ The Presidential/Congressional Commission on Risk Assessment
and Risk Management. ``Risk Assessment and Risk Management in
Regulatory Decision-Making.'' Final Report, Vol. 2, 1997. (p. 133-134)
\20\ The proposal also fails to mention the comprehensive report
prepared by the National Advisory Committee on Occupational Safety and
Health which was commissioned precisely to examine and make
recommendations on OSHA's standards development process. The report was
released on June 6, 2000.
\21\ National Research Council of the National Academies.
``Scientific Review of the Proposed Risk Assessment Bulletin from the
Office of Management and Budget,'' 2007.
\22\ National Academies. News Release: ``Report Recommends
Withdrawal of OMB Risk Assessment Bulletin,'' January 11, 2007.
\23\ The Presidential/Congressional Commission on Risk Assessment
and Risk Management. ``Risk Assessment and Risk Management in
Regulatory Decision-Making.'' Final Report, Vol. 2, 1997. (p. 105)
\24\ U.S. Department of Labor, Assistant Secretary for Policy.
``Requirements for DOL Agencies' Assessment of Occupational Health
Risks,'' (RIN: 1290-AA23), 73 Federal Register 50909, August 29, 2008,
at 50910.
\25\ Lewis R. Bush Administration Tries To Slow Workplace Toxin
Rules. ProPublica, July 23, 2008. At: http://www.propublica.org/
article/bush-administration-tries-to-slow-workplacetoxin-rules-723/
\26\ U.S. Department of Labor. ``Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by the Department of Labor,'' October 1, 2002.
\27\ OSHA News Release, Release Number 08-1242-NAT, 08/29/2008. 28
Public docket available at http://www.regulations.gov
ATTACHMENT A
August 14, 2008.
Hon. Elaine Chao, Secretary of Labor,
U.S. Department of Labor, Suite S-2018, 200 Constitution Avenue N.W.,
Washington, DC.
Dear Secretary Chao: We are writing to urge you to withdraw the
proposed rule ``Requirements for DOL Agencies' Assessment of
Occupational Health Risks'' (RIN 1290-AA23), which is pending review at
the Office of Management and Budget's (OMB) Office of Information and
Regulatory Affairs. The proposed rule fails to provide any validated
guidance that would improve the current risk assessment approaches used
by MSHA and OSHA, and has serious flaws that would weaken current
procedures and undermine occupational health rules. Furthermore, the
draft proposal would add an additional step to the rulemaking process,
further delaying the development and issuance of needed health and
safety protections for workers.\1\
---------------------------------------------------------------------------
\1\ Original documents and chronology of events can be accessed at:
http://www.defendingscience.org/case--studies/Secret-DOL-Rule.cfm.
---------------------------------------------------------------------------
If the Department of Labor (DOL) is serious about improving its
risk assessment approaches, it should be guided by recommendations of
the National Academies' National Research Council (NRC) and other
authoritative bodies, rather than a scattered approach that fails to
incorporate advice from agency experts, practitioners, worker
advocates, and the public.\2\ The NRC panel charged with reviewing the
2006 OMB Risk Assessment guidelines issued its scathing report in
January 2007, concluding ``that the OMB bulletin is fundamentally
flawed'' and recommending that ``it be withdrawn.'' \3\ Nonetheless,
many of the faulty OMB recommendations have re-emerged in this DOL
proposal.
---------------------------------------------------------------------------
\2\ The National Research Council (NRC) Report, Scientific review
of the proposed risk assessment bulletin from the Office of Management
and Budget (2007), pointed out that, ``the major recommendations that
have emerged from nearly 25 years of study of risk assessment have much
in common'', including the following: the Red Book (NRC, 1983); Science
and Judgment in Risk Assessment (NRC, 1994); Understanding Risk:
Informing Decisions in a Democratic Society (NRC, 1996), and Review of
the Proposed OMB Risk Assessment Bulletin (NRC, 2007).
\3\ NRC. Scientific review of the proposed risk assessment bulletin
from the Office of Management and Budget. National Research Council,
2007. http://www8.nationalacademies.org/onpinews/
newsitem.aspx?RecordID=11811.
---------------------------------------------------------------------------
Moreover, it is ironic that your proposal will require MSHA and
OSHA to issue an Advance Notice of Proposed Rulemaking (ANPRM)
soliciting public input, but you failed to follow this same mandate
with respect to this proposal. It was developed without any opportunity
for early public input.\4\ In fact, the secrecy of this proposal
resulted in a front-page story in the Washington Post\5\ and a request
from Senator Edward Kennedy (D-MA) and Congressman George Miller (D-CA)
to be briefed by DOL about its proposal.\6\
---------------------------------------------------------------------------
\4\ Monforton, C. Secret rule on OSHA risk assessment? The Pump
Handle. July 8, 2008. http://thepumphandle.wordpress.com/2008/07/08/
secret-rule-on-osha-risk-assessment/.
\5\ Leonnig, CD. U.S. rushes to change workplace toxin rules.
Washington Post. July 23, 2008; Page A01.
\6\ Monforton, C. Congress demands briefing on Chao's mystery
proposal for risk assessment. July 10, 2008. http://
thepumphandle.wordpress.com/2008/07/10/congress-demands-briefing-on-
chaosmystery-proposal-for-risk-assessment/.
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We discuss three major flaws with the document: 1) altering the
definition of a working life from 45 years to an average number of
years, 2) calling for uncertainty analysis without providing any
guidance that would actually improve the quality, reliability, or
utility of such an analysis, and 3) taking regulatory action only where
clinical adverse health outcomes have been demonstrated.
1) Altering the definition of a working life
The proposed rule seeks to reduce the definition of a working life
from as many as 45 years to an average number of years, justifying this
move with data tables showing that most workers stay with the same
employer for much less time than 45 years. While workers do change
jobs, they are much less likely to change into a job that significantly
reduces their risks. Individuals who learn a skilled trade like
welding, for example, may indeed change employers over their careers,
but most practice their welding trade for their entire working lives.
Furthermore, an expert panel of the National Academies issued a report
in 1994 that recommended against this unvalidated and unrealistic
approach in their discussion of ambient exposures to the general public
over a lifetime, notwithstanding the data that show multiple changes of
residences over a lifetime.\7\
---------------------------------------------------------------------------
\7\ NRC. Science and Judgment in Risk Assessment. 1994. p. 217.
---------------------------------------------------------------------------
The attempt to weaken the definition of a working life is contrary
to the health-protective frameworks mandated in the Occupational Safety
and Health Act of 1970 and the Federal Mine Safety and Health Act of
1978, which specifically direct the Department of Labor to issue
standards on toxic agents that assure workers' health is protected even
if an employee ``has regular exposure to the hazard * * * for the
period of his working life.'' \8\ Congress wanted OSHA and MSHA to set
standards that would protect people who choose to work in the same
industry for 45 years.
---------------------------------------------------------------------------
\8\ OSH Act of 1970, Section 6(b)(5); Mine Act of 1977, Section
101(a)(6)(A).
---------------------------------------------------------------------------
2) Calling for uncertainty analysis without providing any guidance that
would actually improve the quality, reliability, or utility of
such an analysis
The proposal calls for a rigorous uncertainty analysis, but
provides no clear guidance on how to conduct one. The NRC report
criticizes this same failure in the OMB Risk Assessment Bulletin,
saying,
``In the absence of clear guidance regarding the conduct of
uncertainty analysis, there is a serious danger that agencies will
produce ranges of meaningless and confusing risk estimates, which could
result in risk assessments of reduced rather than enhanced quality and
objectivity.''
Because risk assessors must rely on imperfect and incomplete data,
decisions are informed by various guidance documents that are publicly
available and publicly documented, and have been publicly vetted.
Reliance on guidance documents helps to ensure that evaluations are
consistent across substances and as objective as possible. This
proposal fails to provide any useful guidance for important questions
such as what default assumptions agencies will use, how agencies will
decide when available data is robust enough to move away from default
assumptions, and how incomplete exposure data should be used to support
dose-response estimates.
3) Taking regulatory action only where clinical adverse health outcomes
have been demonstrated
Finally, the draft regulatory text suggests the Department seeks to
reserve its regulatory action for hazards associated solely with
clinically apparent adverse health outcomes, by saying that, ``The
dose-response step determines a quantitative model that accounts for
the relationship between a hazard and an adverse health outcome''
(emphasis added). OMB in its Risk Assessment Bulletin was admonished
for failing to specifically define the term ``adverse.'' The NRC (2007)
panel wrote:
``The bulletin's definition of adverse effect implies a clinically
apparent effect, which ignores a fundamental public-health goal to
control exposures well before the occurrence of any possible functional
impairment of an organism. Dividing effects into 'adverse and
'nonadverse' ignores the scientific reality that adverse effects may be
manifest along a continuum.''3 (emphasis in original)
By oversimplifying the risk assessment process, demanding an
unachievable quantification of uncertainty, and defining adverse
effects in a narrow manner that overlooks medical reality, the
Department has created a proposed regulation that will hamper the OSHA
and MSHA in their Congressionally-mandated duties to protect workers'
health from toxic agents.
In conclusion, this proposed rule will significantly weaken current
risk assessment approaches without offering any improvements and will
undermine worker health protections.
There are scores of workplace health and safety hazards for which
the regulation needs to be updated, and hundreds more that have not yet
been regulated. The Department of Labor should turn its attention and
direct resources to such hazards as silica, diacetyl and beryllium--not
to a deeply flawed rule that will make future efforts to safeguard the
health of U.S. workers more difficult.
As industrial hygienists, physicians, epidemiologists,
toxicologists, and other practitioners involved in workers' safety and
health research and prevention programs, we urge you to withdraw this
proposed rule.
Sincerely,
[Affiliations for identification purposes only, and do not
constitute an endorsement on the part of the institution of information
contained in this letter.]
Celeste Monforton, MPH, DrPH (corresponding author) Lecturer and
Researcher, Dept of Environmental & Occupational Health School
of Public Health & Health Services The George Washington
University 2100 M Street NW, Suite 203, Washington, DC 20037
Phone: 202-994-0774 Email: [email protected]
Jennifer Sass, PhD (corresponding author) Senior scientist, Health and
Environment Natural Resources Defense Council 1200 New York
Avenue, NW, Suite 400 Washington, DC 20005 Phone: 202-289-2362
Email: [email protected]
Robin Baker, MPH, Director, Labor Occupational Health Program Center
for Occupational and Environmental Health School of Public
Health University of California, Berkeley
Les Boden, PhD, Professor, Department of Environmental Health Boston
University School of Public Health
Kathleen Burns, PhD, Director, Sciencecorps Lexington, Massachusetts
Barry Castleman, ScD, Environmental Consultant Garrett Park, Maryland
Richard Clapp, DSc, Professor, Department of Environmental Health
Boston University School of Public Health, and Adjunct
Professor, Department of Work Environment University of
Massachusetts Lowell
James Cone, MD, MPH, Occupational Medicine New York City
Carl F. Cranor, PhD, Professor of Philosophy Department of Philosophy
University of California Riverside
Mark R. Cullen MD, Yale School of Medicine
James G. Dahlgren, MD, Assistant Clinical Professor of Medicine, and
Specialist in Occupational and Environmental Toxicology
University of California Los Angeles
Linda Delp, PhD, Director, Labor Occupational Safety & Health Program
University of California Los Angeles
John M. Dement, PhD, CIH, Professor, Division of Occupational &
Environmental Medicine Department of Community & Family
Medicine Duke University Medical Center
David Egilman MD, MPH, Clinical Associate Professor Brown University
Bradley Evanoff, MD, MPH, Associate Professor of Medicine Washington
University School of Medicine
Adam M. Finkel, ScD, CIH, Professor of Environmental and Occupational
Health, UMDNJ School of Public Health Fellow and Executive
Director, Penn Program on Regulation, Univ. of Pennsylvania Law
School
Arthur L. Frank MD, PhD, Drexel University School of Public Health
John R. Froines, PhD, Center for Occupational and Environmental Health
University of California Los Angeles
Scott Fruin, DEnv, Assistant Professor, Department of Preventive
Medicine, USC Keck School of Medicine
Ken Geiser, PhD, Co-Director, Lowell Center for Sustainable Production,
University of Massachusetts Lowell
Fred Gerr, MD, Professor, Director, Occupational Medicine Residency
Program The University of Iowa
Lynn Goldman, MD, MPH, Professor, Bloomberg School of Public Health
Johns Hopkins University
David F. Goldsmith, MSPH, PhD, Associate Research Professor Department
of Environmental & Occupational Health School of Public Health
& Health Services George Washington University
Tee L. Guidotti, MD, MPH, Director Division of Occupational Medicine
and Toxicology The George Washington University Medical Center
Robert Harrison, MD, MPH, Professor of Medicine Division of
Occupational and Environmental Medicine University of
California, San Francisco
Michael R. Harbut, MD, MPH, FCCP, Co-Director, National Center for
Vermiculite and Asbestos-Related Cancers Karmanos Cancer
Institute, Wayne State University, and Chief, Center for
Occupational and Environmental Medicine Royal Oak, Michigan
Robin Herbert, MD, Director, World Trade Center Medical Monitoring and
Treatment Program, Data and Coordination Center Associate
Professor of Community and Preventive Medicine Mount Sinai
School of Medicine
Peter F. Infante, DrPH, Professorial Lecturer, Department of
Environmental and Occupational Health School of Public Health
and Health Services The George Washington University
Anne Katten, MPH, Pesticide and Work Safety Project Director California
Rural Legal Assistance Foundation
David Kriebel, ScD, Professor, Department of Work Environment School of
Health and Environment University of Massachusetts Lowell
Joseph LaDou, MS, MD, Division of Occupational and Environmental
Medicine University of California School of Medicine
Philip J. Landrigan, MD, MSc, Professor and Chairman, Department of
Community & Preventive Medicine Professor of Pediatrics,
Director, Children's Environmental Health Center
Paul Landsbergis, PhD, MPH, Associate Professor, Department of
Environmental and Occupational Health Sciences Graduate Program
in Public Health State University of New York-Downstate Medical
Center Mount Sinai School of Medicine
Richard A. Lemen, PhD, MSPH, Assistant Surgeon General, USPHS (ret.)
Rear Admiral, USPHS (ret.)
Charles Levenstein, PhD, MSOH, Professor Emeritus of Work Environment
University of Massachusetts Lowell
Stephen M. Levin, MD, Medical Co-Director
I.J. Selikoff Center for Occupational & Environmental Medicine Mount
Sinai School of Medicine
Bruce Lippy, PhD, CIH, CSP, The Lippy Group, LLC Baltimore, Maryland
Gerald Markowitz, PhD, John Jay College City University of New York
Steven Markowitz, MD, City University of New York
Michael McCann, PhD, CIH, Director of Safety Research CPWR--The Center
for Construction Research and Training
Ron Melnick, PhD, National Institute of Environmental Health Sciences
David Michaels, PhD, MPH, Professor and Interim Chair Department of
Environmental & Occupational Health School of Public Health &
Health Services The George Washington University
Franklin E. Mirer, PhD, CIH, Professor, Environmental and Occupational
Health Sciences Urban Public Health Program Hunter College
School of Health Sciences
Jacqueline Moline, MD, MSc, Vice Chair, Community and Preventive
Medicine Director, WTC Medical Monitoring and Treatment
Program, Clinical Center at Mount Sinai Director, NY/NJ
Education and Research Center Mount Sinai School of Medicine
Kathleen Morris, MSA, RN, Director of Nursing Practice Ohio Nurses
Association
Tim Morse, PhD, CPE, Associate Professor Occupational and Environmental
Health Center University of Connecticut Health Center
Roni Neff, PhD, MS, Research Associate Johns Hopkins Bloomberg School
of Public Health
Mark Nicas, PhD, MPH, CIH, Adjunct Professor, Environmental Health
Sciences Division School of Public Health University of
California Berkeley
L. Christine Oliver, MD, MPH, MS, Assistant Clinical Professor of
Medicine, Harvard Medical School, and Associate Physician
Massachusetts General Hospital
Peter Orris, MD, MPH, Professor and Chief of Service Environmental and
Occupational Medicine University of Illinois at Chicago Medical
Center
David Ozonoff, MD, MPH, Professor of Environmental Health Chair
Emeritus, Department of Environmental Health Boston University
School of Public Health
Glenn Paulson, PhD, Professor of Environmental and Occupational Health
and Associate Dean for Research UMDNJ-School of Public Health
Lew Pepper, MD, MPH, Assistant Professor Boston University School of
Public Health
John M. Peters, MD, Hastings Professor of Preventive Medicine Division
of Environmental Health USC School of Medicine
Gerald Poje, PhD, Former Board Member US Chemical Safety and Hazard
Investigation Board
Laura Punnett, ScD, Professor, Department of Work Environment Director,
Center to Promote Health in the New England Workplace (CPH-NEW)
Senior Associate, Center for Women and Work (CWW) University of
Massachusetts Lowell
Margaret M. Quinn, ScD, CIH, Professor, Department of Work Environment
School of Health and Environment University of Massachusetts
Lowell
Patty Quinlan, MPH, CIH, Industrial Hygienist UCSF Occupational and
Environmental Medicine Program
Julia Quint, PhD, Retired Research Scientist, California Department of
Public Health Member of the Board of Directors, Worksafe, Inc.
Berkeley, California
Kathleen Rest, PhD, MPA, Executive Director Union of Concerned
Scientists
Carol Rice, PhD, CIH, Professor Department of Environmental Health
University of Cincinnati College of Medicine
Knut Ringen, DrPH, MHA, MPH, Principal, Stoneturn Consultants Seattle,
Washington
Thomas G. Robins, MD, MPH, Professor of Occupational and Environmental
Medicine Director, Center for Occupational Health and Safety
Engineering Director, Fogarty International Center Southern
African Program in Environmental and Occupational Health
University of Michigan School of Public Health
Beth Rosenberg, ScD, MPH, Assistant Professor Department of Public
Health & Family Medicine Tufts University School of Medicine
Kenneth Rosenman, M.D., FACPM, FACE, Professor of Medicine Chief,
Division of Occupational and Environmental Medicine Michigan
State University
Frank S. Rosenthal, PhD, Associate Professor of Occupational and
Environmental Health Sciences Purdue University School of
Health Sciences
David Rosner, PhD, Ronald H. Lauterstein Professor of Sociomedical
Sciences and History Columbia University
Rachel Rubin, MD, MPH, Medical Director, MacNeal Occupational Health
Services, and Assistant Professor University of Illinois
Chicago School of Public Health
Steven Samuels, PhD, Associate Adjunct Professor, Retired University of
California, Davis
Ellen K. Silbergeld, PhD, Professor, Environmental Health Sciences
Johns Hopkins University Bloomberg School of Public Health
Darius D. Sivin, PhD, International Representative Legislative,
Governmental and International Affairs United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW)
Leslie Thomas Stayner, PhD, Professor and Director Division of
Epidemiology and Biostatistics University of Illinois Chicago
School of Public Health
Steven D. Stellman, PhD MPH, Professor of Clinical Epidemiology Mailman
School of Public Health Columbia University
Kyle Steenland, PhD, Professor Department of Environmental and
Occupational Health Emory University
Glenn Talaska, PhD, CIH, Professor of Environmental Health The
University of Cincinnati College of Medicine, and Vice Chair,
ACGIH BEI Committee
Daniel Thau Teitelbaum, MD, Adjunct Professor Occupational and
Environmental Medicine School of Public Health University of
Colorado, Denver, Adjunct Professor, Environmental Sciences The
Colorado School of Mines
Joel A. Tickner, ScD, Assistant Professor Lowell Center for Sustainable
Production University of Massachusetts Lowell
Nicholas Warren, ScD, MAT, Associate Professor of Medicine/Ergonomics
Coordinator Division of Public Health and Population Science
University of Connecticut Health Center
David H. Wegman, MD, MSc, Dean School of Health and Environment
University of Massachusetts Lowell
Laura S Welch, MD, Medical Director CPWR--The Center for Construction
Research and Training
ATTACHMENT B
August 12, 2008.
Hon. Elaine Chao, Secretary of Labor,
U.S. Department of Labor, Suite S-2018, 200 Constitution Avenue N.W.,
Washington, DC.
Dear Secretary Chao: On behalf of the American Public Health
Association (APHA), the nation's oldest and most diverse organization
of public health professionals in the world, I write to express our
opposition to Department of Labor's (DOL) proposed regulation that
would significantly alter the preventive health framework embodied in
the Occupational Safety and Health Act of 1970 (OSH Act) and the Mine
Safety and Health Act of 1978 (Mine Act). The proposed ``Requirements
for DOL Agencies' Assessment of Occupational Health Risks,'' which is
pending review at the White House's Office of Management and Budget, is
contrary to the most fundamental public health principle of prevention.
Occupational diseases can best be prevented by reducing exposure
levels of workers to toxic agents and processes. The DOL proposed rule
seeks to alter the definition of a working life to an arbitrary average
number of years--a notion and that is wholly inconsistent with public
health and risk science standards. The document also makes erroneous
characterizations of uncertainty, risk, and adverse health effects, in
direct opposition to recommendations made by the National Academies of
Science (NAS) in their 2007 report.
The DOL draft proposal also would require that the Occupational
Safety and Health Administration (OSHA) and the Mine Safety and Health
Administration (MSHA) issue an Advanced Notice of Proposed Rulemaking
for all health-based standards. This new mandatory step in the process
will further delay protective rules, even those with well-understood
adverse health effects, such as respirable coal mine dust and silica.
Although the DOL is charged with worker health and safety protection,
it has only issued one health standard over the last 10 years. The
latest DOL proposal would only add steps to the rulemaking process, and
thus delay health protections for workers even further.
APHA urges you to withdraw this proposed rule immediately.
Georges C. Benjamin, MD, FACP, FACEP (Emeritus),
Executive Director.
______
Chairwoman Woolsey. Thank you.
Mr. Johnson.
STATEMENT OF RANDEL JOHNSON, VICE PRESIDENT, LABOR,
IMMIGRATION, EMPLOYEE BENEFITS, U.S. CHAMBER OF COMMERCE
Mr. Johnson. Thank you, Madam Chairwoman. Let me try to put
this a little bit in context. Before I joined the committee,
where I did work for 10 years, I also worked handling many OSHA
regulations at the Department of Labor----
Chairwoman Woolsey. Mr. Johnson, a little closer.
Mr. Johnson. Let's turn the tape back there so I can get my
time back.
Before joining the committee, where I did work for 10
years, Madam Chairwoman, I did spend some time at OSHA working
on many rulemakings, including benzene, formaldehyde, non-
asbestisform tremolite, the Personal Exposure Limit project,
which was a personal disappointment where we did regulate 438
chemicals in a very swift rulemaking over seven months.
Unfortunately, the court struck that down. I think we could
have done that, however, if we had taken four or five more
months and done it properly. But I have had some experience in
this area, although I meant to be a generalist.
But this rulemaking needs to be put in the context of,
look, this is an Advanced Notice of Proposed Rulemaking. There
is going to be ample time for the public and other experts to
comment on this. It will then become a Notice of Proposed
Rulemaking before it becomes a final rule. I use the rule
loosely here, because I know the Agency is not formally calling
this a rule. An administrative procedure act, but it's an
agency action. And I still believe it would be challengeable in
court in one way or another, although the DOL solicitor's
office may disagree with me on that. But there is a check and
balance built into this.
Secondly, there is nothing secret about this going on. It
is an Advanced Notice of Proposed Rulemaking. What could be
more open?
Third, I think it is important to note that the courts
recognize that much deference must be given to OSHA once it
determines what a significant risk is. And I can quote from the
court cases. You can look at the benzene decision and other
cases. The point is, this is not a math--the courts do not hold
OSHA to a mathematical straitjacket. Once OSHA makes a decision
as to risk or hazard, the courts will defer to that absent as
long as it is supported by substantial evidence.
So it is important to get that initial risk assessment
right the first time out. An Advanced Notice of Proposed
Rulemaking allows the experts and OSHA to sort through the
weeds and the long grass before it gets to an NPRM. And what
can be wrong with that?
And let me come back to the question of notice; the 30-day
comment period, Madam Chairwoman, which you hit on. Frankly 30
days is a short period of time. However, there are certainly
many times in the history of OSHA where it has used that kind
of a time period for even more significant regulations.
For example, I am holding up here the proposed regulation
on ergonomics, which was issued November 23, 1999, Thanksgiving
week, in which we had 60 days to comment on it with 800 pages
of regulations which is right here as comparative to this
regulation, which is about 6 pages. Now we did ask the Clinton
administration for a 30-day extension, which we got after
selling our first born, but that was a massive piece of
rulemaking stretching over many, many issues, many pages. This
is six or seven pages. So maybe 30 days is not enough. Maybe
the Department will give another 30 days. I am not sure. The
point is it can be done. People can focus on it, and it is just
an Advanced Notice of Proposed Rulemaking.
Lastly, I think you know if a final rule comes out and it
is not to the satisfaction of this committee, Congress always
has oversight powers to reign in an Agency that has gone too
far, and who knows what will happen in the next election. But I
think the proper role for the committee might be to look at
this when it comes out as a final rule rather than to be
interfering with the Agency process now, which of course the
Administrative Procedure Act and OSHA rulemaking process
contemplated that the Agency would apply its expertise--that is
why it is created--before Congress steps in.
So you know with regard to transparency, posting things on
the Internet, duh, I mean of course those kinds of things can
be done. I can say in the past, such as ergonomics, the Agency
failed to do several of those things, which is why we certainly
support this regulation. Key studies were left out. We had to
send law clerks over to the Department of Labor. I believe
Senator Enzi had to go over there and go through the rulemaking
record and find the studies we needed. Posting it on the
Internet, what could be wrong with that? It certainly should be
done at the same time that the NPRM is posted and not two weeks
into that. And I think I will just--these are--there will be
lots of time to sort through these issues. I think it is a
rulemaking that needs to be done.
The process of a risk assessment down at OSHA is confusing.
I met--I know less about MSHA, but this is just to try to pull
it together in one useful document for the public to look at.
Is it a tempest in a teapot? I am not sure. It is more
important than that. But I think it is something that has
perhaps been blown out of proportion. But nonetheless, I
appreciate the opportunity to testify. And hopefully we will
all comment seriously on this proposal if it becomes a final
rule.
Thank you, Madam Chairwoman.
[The statement of Mr. Johnson follows:]
Prepared Statement of Randel K. Johnson, Vice President of Labor,
Immigration and Employee Benefits, U.S. Chamber of Commerce
Madame Chairwoman, members of the committee, I am Randy Johnson,
Vice President for Labor, Immigration and Employee Benefits at the U.S.
Chamber of Commerce. Before coming to the Chamber, I was the Labor
Policy Coordinator and Counsel for this committee when it was chaired
by Representative Goodling from Pennsylvania. Prior to working for this
committee, I was at the Department of Labor working in the Solicitor's
Office on regulatory matters, including OSHA regulations such as
benzene, formaldehyde, the Hazard Communication Standard, asbestos/non-
asbestisform tremolite and the Personal Exposure Limit (PEL) project
rulemaking. It was one of my personal disappointments that the PEL
rulemaking was struck down by the courts. Based on my experience, what
the Department of Labor has proposed for comment appears useful to all
parties interested in OSHA and MSHA rulemakings, and is consistent with
the principles of sound rulemakings as expressed during this and
previous administrations.
An agency of the federal government shall only have the power to
impose a requirement on a private citizen through a regulation, either
an individual, or in the case of OSHA and MSHA an employer, where it
has made a compelling and public case for the need for the regulation,
and demonstrating that the best available science and data support such
a regulation. While taken for granted in Washington, DC, the power to
regulate is an awesome one, and often underappreciated by decision
makers who rarely have to live under these regulations. Inherent in
these principles is that the public shall have the opportunity to
examine and critically review the materials supporting the agency's
intended action. OSHA's and MSHA's rulemaking processes as well as the
broader Administrative Procedure Act are built on this foundation. The
Department of Labor is proposing to ensure that, to the greatest degree
possible, these principles of best data underlying a regulation and
maximum transparency are achieved, and the U.S. Chamber unequivocally
supports this proposal.
As a preliminary matter, I wish to emphasize what should be obvious
in all regulations, but often goes unnoticed--which is that the burdens
and costs of this proposal (along with its benefits) should be viewed
in the context of the numerous and complex regulations businesses must
already comply with. Currently, there are more than 100,000 regulations
on the books with an estimated cost of over $1.11 trillion to the
public. Thousands of pages of fine print of the Code of Federal
Regulations, which are then interpreted by agency directives, and
ultimately by the courts against the backdrop of numerous statutes,
truly present a huge compliance burden to business which is daunting to
any employer. State and local laws add to the confusion. Even the best
intentioned employer and even those well staffed by lawyers can make
good faith compliance errors which agencies and plaintiffs' lawyers
will make much ado over, to say the least. OSHA regulations are but one
small part of this gigantic puzzle and all the more reason they should
be carefully justified before issuance.
To the extent that a risk assessment by OSHA or MSHA is not
adequately supported by scientific data and results in a new regulation
that imposes more burdens on employers without producing a commensurate
improvement in worker protection, employers will be further
disadvantaged and have that many fewer resources for creating new jobs
and compensating employees. Indeed, much will be expended on attorney
fees to determine, in good faith, if there even was an error, given the
vagueness of many legal requirements.
Unfortunately, one of the major problems of government and its
enforcement agencies is that its initiatives tend to be read in
isolation and silos, rather than against this backdrop of the huge
existing panoply of regulations. Who among us envies the small business
person faced with these challenges? Who among us even dare open such a
business and putting our assets on the line? We ask that you keep this
entire picture in mind as you consider whether to support the
Department of Labor's proposal to implement a consistent and
transparent risk assessment process.
That being said, what constitutes the level of risk necessary for
regulating by OSHA or MSHA is still an issue of debate. The Supreme
Court in the ``Benzene'' decision in 1980 ruled that OSHA must
establish that a significant health risk is presented, and that this
risk can be lessened or eliminated through some change that can be
imposed through regulation.\1\ While the Supreme Court established the
requirement for finding significant risk, it did not spell out how OSHA
was to do so. The Court mused that a one in a billion chance of someone
dying from cancer because of drinking chlorinated water would not be
significant, but a one in a thousand risk of dying from inhalation of
benzene would be significant. Although it may be tempting to mandate
such a specific statistical threshold as identifying significant risk,
the Chamber believes this would be unwise. The essence of risk
assessment is flexibility, as risks need to be evaluated in context.
The National Research Council's report on OMB's Proposed Bulletin on
Risk Assessment in criticizing OMB's proposal stated that ``risk
assessment is not a monolithic process or a single method. Different
technical issues arise in the probability of exposure to a given dose
of a chemical. * * * Thus, one size does not fit all, nor can one set
of technical guidance make sense for the heterogeneous risk assessments
undertaken by federal agencies.'' \2\
A sound risk assessment is necessary for a good regulation, but
getting a poorly supported risk assessment overturned in court is
extremely difficult. Courts almost always defer to agencies with
respect to their determinations, and in particular to OSHA risk
assessments. This heightens the need for OSHA and MSHA to ensure that
the science and data underpinning a regulation is adequate.
The principles for good risk assessments have been expressed by a
variety of sources over several administrations. Among them, the
Presidential/Congressional Commission on Risk Assessment and Risk
Management, created under the Clean Air Act Amendments of 1990,
concluded that OSHA has ``relied upon a case-by-case approach for
performing risk assessment and risk characterization.'' \3\ The
Department of Labor's proposal seeks to systematize this process,
moving beyond the ``case-by-case'' approach cited by the Commission.
Another source for the principles of risk assessment is the
Memorandum for Heads of Executive Departments and Agencies issued by
OMB and the Office of Science and Technology Policy last September. The
Department's proposal reflects the principles stated in that memo
closely. The top principle is that agencies ``should employ the best
reasonably obtainable scientific information to assess risks to health,
safety and the environment,'' \4\ which is the central thrust of the
Department of Labor's proposal. The memo also makes clear that
assumptions and uncertainties should be stated explicitly. This is also
one of the provisions of the Department of Labor's proposed risk
assessment regulation.
Furthermore, the proposal reflects the recommendations of the
National Research Council in its review of OMB's proposed risk
assessment bulletin. The NRC concluded that agencies ``describe,
develop, and coordinate their own technical risk assessment guidance,''
\5\ instead of OMB trying to institute a generic risk assessment
process. The NRC stated that ``longestablished concepts and practices
that have defined risk assessment as a process * * * involve hazard
identification, hazard characterization or dose-response assessment,
exposure assessment and risk characterization.'' \6\ These terms are
the exact requirements for a risk assessment in the proposed regulation
under section 2.9(c)(4).
The proposal is also consistent with the Administration's and
Department of Labor's guidelines on Information Quality, all of which
stress the use of the best available data at the time of the
rulemaking. Among the areas where the best available data is to be used
is how long an employee stays at a specific job. While the Department
has retreated from the position taken in the draft proposal that was
leaked, which explicitly moved away from the assumption that workers
stay at their jobs for 45 years, the published proposal still makes
clear that OSHA and MSHA are to use best available scientific data
including industry-by-industry evidence describing working life
exposures. Relying on a stale, inaccurate assumption when better, more
current data is available simply makes no sense.
The proposed regulation also codifies the 1980 ``benzene'' decision
by the Supreme Court, which established the principle that OSHA must
find a ``significant risk'' that can be lessened or eliminated by a
change in practices before promulgating any health standard. As
mentioned above, the Supreme Court did not define ``significant risk,''
leaving that up to OSHA. In this proposed regulation, DOL is
establishing a consistent process by which OSHA and MSHA will describe
how significant risk was determined for any given health standard.
Not only is this proposal well reasoned, necessary, and overdue,
but the Department should be commended for its approach to implementing
it. As this is only an internal policy guideline, it could have been
implemented without seeking public comment through a notice of proposed
rulemaking as they have done. If the Department had pursued that
approach, the title of today's hearing might have been appropriate--
this could have been seen as a ``secret'' rulemaking. As they have
chosen to do this through a fully public procedure, soliciting comments
and input as with any other regulation, calling this a secret
regulation is unwarranted and suggests a desperate intent to find
something wrong with the proposal.
What the Department has proposed is very simple--provide more
information to the public and those interested in a specific health
standard rulemaking, make sure that any assumptions and uncertainties
are identified and explained, and give interested parties the
opportunity to review and comment on the science and data upon which
the agency is relying. These goals would be achieved through the use of
mandatory Advanced Notice of Proposed Rulemakings (ANPRMs), except in
the case of an emergency temporary standard.\7\ Requiring ANPRMs and
thus opening up OSHA's and MSHA's scientific and data support to public
scrutiny is similar to the way that OSHA must disclose its support for
a regulation during the Small Business Regulatory Enforcement Fairness
Act (SBREFA) review panels that are required if a regulation is
determined to have a significant economic impact on a substantial
number of small entities. The SBREFA process has been criticized by
organized labor as giving small businesses too much access to the
rulemaking process. By requiring that OSHA and MSHA issue ANPRMs for
health standards (not safety standards), the Department is giving the
unions and all others not part of the SBREFA review process the same
opportunity to review the science and data upon which the agencies are
relying and comment on these materials at a time before the regulation
has been drafted and all but formed. Commenting at that point in the
process is essential, since once a regulation is drafted and proposed,
getting OSHA or MSHA to significantly revise a regulation or withdraw
it because of inadequate scientific support is all but impossible.
The Department is also requiring that all relevant documents
related to the rulemaking be posted in an easily accessed and well
organized format at www.regulations.gov--the federal government's
central internet rulemaking portal. This sounds so fundamental in this
era of instant electronic access to an enormous array of authorities
and data that specifying this would seem redundant or unnecessary.
However, there are examples where OSHA did not make key materials
available in a timely manner during major rulemakings. The most
egregious of these was during the ergonomics rulemaking when key
studies were not made available for review during the comment process,
frustrating those who were trying to develop statements and questions
in preparation for the administrative hearings held by OSHA.
The proposed regulation from the Department of Labor specifying how
risk assessments for health standards are to be done and providing
greater transparency and opportunity for public input is absolutely
consistent with the principles of risk assessments, sound rulemaking,
and above all, good government. The risk assessment drives the entire
process of regulation from the go/no go decision to what level of
protection and remedial action may be required. It is imperative the
risk assessment be done using the best available and most current data.
The Department's proposal establishes a process that will yield sound
and credible risk assessments. I look forward to responding to your
questions.
ENDNOTES
\1\ Industrial Union Department v. American Petroleum Institute,
448 U.S. 642 (1980).
\2\ 2007 NAS Report on the Proposed Risk Assessment Bulletin,
Executive Summary, page 7.
\3\ Presidential/Congressional Commission on Risk Assessment and
Risk Management, Framework for Environmental Health Risk Management, 2
Final Report 133 (1997).
\4\ OMB/OSTP Memorandum for the Heads of Executive Departments and
Agencies, Updated Principles for Risk Analysis (2007) M--07--24.
\5\ 2007 NAS Report on the Proposed Risk Assessment Bulletin,
Executive Summary, page 7.
\6\ Id. at 3.
\7\ Criteria and procedures for emergency temporary standards are
found under section 6(c) of the OSH Act, and section 101 (b)(1) of the
Mine Act.
______
Chairwoman Woolsey. Thank you. I think you heard the bells
ring. We are going to have three votes. So Ms. Seminario, if
you will complete and then we are going to try to have a series
of questions up here because we really have 20 minutes. We know
that. It says 13 but we know how it works. The first vote. So
let's complete the witnesses and then we will ask some
questions.
Mr. Wilson. The chairman runs very fast.
STATEMENT OF MARGARET SEMINARIO, DIRECTOR, DEPARTMENT OF
OCCUPATIONAL HEALTH AND SAFETY, AFL-CIO
Ms. Seminario. Thank you very much. My name is Peg
Seminario. I am Safety and Health Director for the AFL-CIO, and
I appreciate the opportunity to testify today. I have been
doing this work for over 30 years and have worked on virtually
every major rule that has come through the Occupational Safety
and Health Administration.
On August 29, just before Labor Day, the Department of
Labor published a proposed rule in the Federal Register
imposing new requirements on OSHA and MSHA for conducting
occupational risk assessments in developing health rules. It is
our view that it is actually a proposed rule, unlike what Mr.
Johnson said. He thinks it is an Advanced Notice of Proposed
Rulemaking, which indeed are different. So getting some
clarification on that would be helpful.
This new rule was developed in secret without any
consultation by political appointees in the Office of Assistant
Secretary of Policy during the last months of the Bush
administration. In our view, it would significantly delay and
potentially weaken future occupational health protections. We
are greatly concerned, seeing this rule being pushed through by
an administration that unfortunately for the past 7\1/2\ years
has refused and has failed to set any new OSHA health rules to
protect workers. Now the administration is rushing to lock in
place requirements to make it more difficult for the next
administration to act to protect workers from known health
risks.
In our view, the Department of Labor risk assessment rule
is unnecessary and unsound. According to the Department, the
purpose of the rule is to compile its existing best practices
related to risk assessment into a single easy-to-reference
regulation. But as noted above and explained in greater detail
in my written testimony, the rule does more than codify
existing practices. It changes existing practices and does
impose new burdens on both OSHA and MSHA. We believe that the
rule is unnecessary. As Dr. Monforton pointed out, OSHA has
conducted risk assessments for years and those risk assessments
have been very robust and have withstood court challenges and
have been found to have been sound.
We also believe that the rule is inappropriate. The
Department already has risk assessment guidelines that were
adopted in 2002. But guidance is meant to be just that,
guidance, which is nonmandatory, a flexible directive that can
be changed. Indeed, when you look across the government,
everything that has been done on risk assessment, including
those directives out of OMB, are done as guidance. This is
different. It is codifying these procedures in the Federal
Register and, with that, the administration's attempt to impose
its policies on the next administration. We don't see that in
the next four months this administration is going to issue any
new rules. They haven't done so to date. So what is the purpose
of this rather than putting in place its views, its policies on
the next administration?
We think that the rule would add years of delay to both
OSHA and MSHA rulemakings. And with it, it will put workers at
risk. It adds a new step, the Advanced Notice of Proposed
Rulemaking, to the rulemaking process. Indeed, in some cases
OSHA has used ANPRs but they use other procedures for gathering
information as well. They have advisory committees. They have
requests for information. They may conduct public meetings.
This proposal would lock in this one particular procedure
rather than leaving it to the discretion and judgment of the
Agencies as to how to proceed. And it changes the rulemaking
procedures that are set forth in the Occupational Safety and
Health Act, in the Mine Safety and Health Act, and essentially
it attempts to amend those rules. So we don't think this one
method should be imposed in a one size fits all when rules
differ and the mechanisms for gathering information and what is
appropriate should be flexible.
It is important to point out or worth pointing out because
of such delays that ANPRs bring to rulemaking, and we estimate
it will be about two years of additional time. In 1987 the
Administrative Conference suggested and recommended that OSHA
not use ANPRs.
It is important to point out this delay has real impact on
workers. The proposal doesn't apply only to future rules. It
applies to those in process as well. We have three important
health rules moving along at OSHA. One on silica, one on
beryllium, another on diacetyl. None of those have had an ANPR.
Not one of them. They have had other ways of gathering the
information. This rule requires that OSHA go back to square one
and start all over. You know, silica has been under development
for 10 years, beryllium the same. And this will result in
dozens and dozens of unnecessary deaths.
So in conclusion, let me just say that this proposal is
flawed. It is unnecessary. It is unsound, and it will harm the
health of workers in this country. It should be withdrawn by
the Department of Labor. And if it is not, we would highly
support efforts by the Congress to stop it.
Thank you.
[The statement of Ms. Seminario follows:]
Prepared Statement of Peg Seminario, Director of Safety and Health,
AFL-CIO
Chairwoman Woolsey, Ranking Member Wilson, and members of the
committee: Thank you for the opportunity to testify today on the
Department of Labor's proposed rule on occupational risk assessment. My
name is Peg Seminario, and I am Safety and Health Director for the AFL-
CIO. In my more than 30 years working on safety and health issues, I
have been involved in dozens of rulemakings on safety and health
standards and regulations promulgated under the Occupational Safety and
Health Act.
On Friday, August 29, 2008, just before Labor Day, the Department
of Labor (DOL) published a proposed rule in the Federal Register
imposing new requirements on the Occupational Safety and Health
Administration (OSHA) and Mine Safety and Health Administration (MSHA)
for conducting occupational risk assessments in developing workplace
health rules. This new rule, developed in secret by political
appointees in the Office of the Assistant Secretary of Policy (OASP)
during the last months of the Bush Administration, would significantly
delay and potentially weaken future occupational health protections.
This new rule is being pushed through by an Administration that for
the past seven and one-half years has refused and failed to set any new
OSHA health rules to protect workers, except for one rule that was
issued pursuant to court order. Now, the Administration is rushing to
lock in place requirements to make it more difficult for the next
administration to protect workers from known health risks. This cynical
measure is unfounded, unsound, and harmful to workers. We fully support
HR 6660, legislation that would stop the adoption or implementation of
this rule.
The risk assessment rule proposed by DOL would do the following:
Add a new step to the rulemaking process for setting
occupational health standards by requiring both OSHA and MSHA to issue
an advanced notice of proposed rulemaking (ANPR) for every occupational
health standard to solicit scientific studies and other information on
health risks and exposures. This would add years of delay to an already
glacial process and result in unnecessary death and disease for
workers.
Require OSHA and MSHA to respond to every public comment
submitted on the risk assessment issues, regardless of the validity or
merit of the comment, before issuing a proposed or final rule.
Require the agencies to gather and analyze available
industry-by-industry evidence related to working life exposures, which
neither OSHA nor MSHA now do, which will add significant time to the
rulemaking process and which could result in weaker protections for
workers.
Codify existing Office of Management and Budget (OMB) and
DOL informational quality and peer review guidelines, locking into
place by rule controversial regulatory policies of the Bush
Administration, many of which have been criticized or rejected by the
National Academy of Sciences.
Require OSHA and MSHA to post all relevant documents
related to an occupational health standard, including all underlying
studies and analyses, on www.regulations.gov within 14 days after the
conclusion of the relevant step in the rulemaking process. On this
point, it is worth noting that 16 days after the DOL risk assessment
rule was published in the Federal Register, DOL had failed to make any
of the underlying documents related to this rulemaking part of the
public docket.
The DOL Risk Assessment Rule is Unnecessary and Unsound
According to DOL, the purpose of this rule is ``to compile its
existing best practices related to risk assessment into a single, easy
to reference regulation.'' But as noted above, and explained in greater
detail below, the rule does more than codify existing practices--it
changes existing practices and imposes new burdens on OSHA and MSHA.
The rule is unnecessary. OSHA has conducted risk assessments for
its occupational health rules for decades, and recently MSHA has done
so as well. OSHA's risk assessments have withstood court challenges and
have been found to be sound.
And the rule is inappropriate. The Department of Labor already has
risk assessment guidelines that were adopted in 2002 as part of DOL's
information quality guidelines to implement Bush Administration
policies on peer review and data quality. (Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by the Department of Labor, October 1, 2002.)
Guidance is meant to be just that--non-mandatory, flexible directives
that reflect the views, policies and practices of an agency, department
or administration, and that can be changed. By proposing to codify
these risk assessment practices into a formal rule, the Bush
Administration is attempting to impose its policies and practices on
the next administration.
The Rule Will Add Years of Delay to OSHA and MSHA Rulemaking and Delay
Needed Protections
The DOL rule would require OSHA and MSHA to issue an ANPR for every
occupational health rule, except for emergency rules. This new
mandatory step for every rulemaking is not needed and will delay needed
protections.
The OSHA and MSHA standard setting processes already provide for
much more extensive public input and participation than virtually all
other government agencies. Both agencies routinely cast a wide net,
soliciting information using a variety of mechanisms such as Requests
for Information published in the Federal Register, public meetings,
stakeholder meetings, workshops, advisory committees, and negotiated
rulemaking committees, in addition to publishing a formal ANPR in the
Federal Register. ANPRs may be appropriate for some rules, but rules
vary in their complexity and approach, and it is unsound to impose a
one-size fits all process and methodology on all rules.
Mandating an additional formal step in the rulemaking process for
every occupational health rule, and requiring OSHA and MSHA to respond
to all comments on the risk assessment issues before even issuing a
proposed rule, will add approximately two years to a process that
already takes eight or more years to complete. For this reason, in 1987
the Administrative Conference of the United States recommended that
OSHA not routinely use ANPRs. ACUS Recommendation 87-10, Regulation by
the Occupational Safety and Health Administration, 52 Fed. Reg. 49,147
(1987).
It is important to point out that this delay in protection has real
impacts on worker health. Every month or year of delay results in
unnecessary exposure by workers to harmful substances, and results in
deaths and illnesses that could have been prevented. For example,
according to OSHA's risk assessment on hexavalent chromium, every year
of delay in the adoption of the new 5.0 ug/m3 standard resulted in 40
to 145 lung cancer deaths. Similarly, OSHA's preliminary risk
assessment on silica estimates that reducing the permissible exposure
limit to 50 ug/m3 will prevent 41 silicosis deaths and 19 lung cancer
deaths annually. Every year of delay in setting a silica rule results
in 60 unnecessary deaths.
The proposed new risk assessment rule includes rules currently
under development within its reach. This means that for rules that have
been under development for years, OSHA will have to go back to square
one and start anew under the new risk assessment rules. So, for
example, an OSHA rule on silica that has been under development since
1997 will be delayed even further. It is worth noting that the silica
rule has been designated by the Bush Administration as a priority for
action on the Regulatory Agenda since 2002, and that OSHA completed the
required small business review on the draft silica rule in 2003. But
for the past 4 years the OMB required peer review of the silica risk
assessment has been repeatedly delayed. It is our understanding that
this rule, like other pending OSHA rules, has been held up by the
Office of the Secretary. And now, with this new rule the Department
would require OSHA to start all over and issue an ANPR for silica,
delaying this important standard for many more years.
The risk assessment rule would also delay action on an OSHA
standard to protect workers from diacetyl, a food flavoring chemical
that causes a disabling deadly lung disease. As you know, last year the
House of Representatives passed legislation requiring OSHA to issue a
final standard on diacetyl within two years of enactment. The Bush
Administration opposed the legislation and refused to issue an
emergency rule, but promised to move expeditiously to develop a
diacetyl standard through normal rulemaking procedures. But there has
been no such action. A small business review on a draft diacetyl rule,
scheduled to be initiated in January, has yet to happen, and there is
no sign that the Administration has any intention of acting. If the
next Administration decides to move quickly on diacetyl, they can't.
The new DOL risk assessment rule would require OSHA to issue an ANPR
and respond to all comments before moving forward with a proposed rule.
It is shameful that after refusing to take action to protect
workers from serious well-recognized health hazards for 7 1/2 years,
that the Bush Administration is spending its lasts months and taxpayer
money to lock in place rules that would prevent the next administration
from taking prompt action.
The DOL Rule Would Change the Way OSHA and MSHA Assess Worker Health
Risks and Could Result in Weaker Protections
The new DOL rule would require OSHA and MSHA to gather and analyze
available industry-by-industry evidence related to working life
exposures in evaluating risk, which neither OSHA nor MSHA now do.
Changing OSHA and MSHA's risk assessment practice in this manner is
inappropriate and could lead to weaker protections for workers.
The current practice of both agencies is to evaluate the risk of
exposure posed to the overall population of workers exposed to the
hazard in question at the level of exposure under an existing rule or
conditions, and to assess how a reduction in exposure to lower levels
would reduce that risk. Both the OSHAct and the MSHAct require that the
agencies protect workers against health risks even if they are exposed
over the course of a working lifetime. In keeping with this statutory
requirement, both agencies have adopted a practice of assessing
workplace health risks based upon exposure over 45 years.
In regulating occupational health risks, both agencies usually set
a single permissible exposure level for all workers exposed to the
hazard. This limit applies to all industries covered by the rule. The
agencies appropriately assume that exposure to similar levels of a
chemical pose the same risk to workers, regardless of the sector where
the exposures occur. Thus, the proposed industry-by-industry assessment
of health risks--and the idea that different exposure limits could be
set for workers in different sectors--makes no sense for rules that
cover many groups of workers.
In addition, the proposal appears to potentially open the door to
changing OSHA and MSHA's longstanding assumption of a 45 year working
lifetime exposure. An earlier version of the proposal explicitly made
this change, and the new proposal is murky on this point. Such a change
would be unsound. In many industries such as coal mining and
construction, a large number of workers are employed in the industry or
the occupation over their entire working life. These long-term workers
are at the greatest risk and deserve to be protected. Basing risk
determinations and exposure levels on the average time in an occupation
or industry will reduce the level of protection and leave all workers
at greater risk. For example, if OSHA's hexavalent chromium standard
was based on the assumption that workers were on average employed for
10 years, the permissible exposure level would be 4.5 times higher than
that set by OSHA, creating a greater risk for all workers, and allowing
much greater cumulative exposures and risk for long-term workers. This
approach is unsound and contrary to the directive in the Occupational
Safety and Health Act and Mine Safety and Health Act that protections
be set at a level that will protect workers who are exposed for a
``working lifetime.''
The Process by Which DOL Has Developed the Risk Assessment Rule is
Highly Irregular and Flawed
The proposed risk assessment rule has been developed in secret by
political appointees in the Department of Labor's Office of Assistant
Secretary for Policy (OASP), with little involvement by OSHA and MSHA
and with no public notice prior to its publication. OASP has no
expertise in risk assessment and no authority under the Occupational
Safety and Health Act or Mine Safety and Health Act for the development
or issuance of occupational safety and health rules. It is our
understanding that the background for the rule was developed by an
outside contractor, not by the agencies or OSHA or MSHA experts on risk
assessment and occupational health standards.
This is in direct contradiction to the recommendation by the
National Academy of Sciences that risk assessment guidelines be
developed by the individual agencies with the technical expertise and
knowledge of legislative requirements. (National Academy of Sciences,
Scientific Review of the Proposed Risk Assessment Bulletin from the
Office of Management and Budget, 2007).
The risk assessment rule was not included in the Department of
Labor's semi-annual regulatory agenda published in April 2008, despite
a requirement under Executive Order 12866 that all rules under
development be listed on the agenda. The first public indication that
this rule was even under consideration came on July 7, when a notice
was posted on www.reginfo.gov, that the draft proposed rule was at OMB
for review under Executive Order 12866. No explanation or information
about the rule was posted, and the Department refused to provide any
information to the Congress, the press or public when asked.
Information about the content of the rule only became public when the
Washington Post obtained an earlier draft and published a story on July
23. Subsequently, the Post and other media outlets obtained a copy of
the draft that had been submitted to OMB for review, and posted the
document on their respective websites.
Many in the scientific, labor, and occupational safety and health
communities objected to the Department of Labor's draft proposal and
the process by which it was developed. The American College of
Occupational and Environmental Medicine, the American Industrial
Hygiene Association, the American Public Health Association and a group
of over 75 scientists all wrote to Secretary of Labor Elaine Chao
urging her to withdraw the draft rule.
Despite these objections, the Department forged ahead. The draft
proposal was cleared by OMB on August 25th, and published in the
Federal Register on August 29, 2008, the Friday before Labor Day.
The proposed rule violates the policy announced by White House
Chief of Staff Josh Bolten on May 9, 2008, which states that except for
``extraordinary circumstances,'' agencies were supposed to issue any
new proposed rules by no later than June 1, 2008. No ``extraordinary
circumstances'' exist to justify DOL's last-minute rule.
The Department is trying to rush the proposal through and is
depriving the public of an opportunity to meaningfully participate in
this rulemaking process. DOL is giving the public only 30 days to
comment on the proposed rule--an unusually short comment period that
started on the Friday before a three-day holiday weekend.
The 30 day time period for comment on a rule with such significant
impact is unusual and inadequate. OSHA and MSHA typically provide a far
longer comment period on their proposed rules, and Executive Order
12866, under which the proposal was supposedly reviewed, says that
agencies should ordinarily provide at least 60 days' notice.
For example, in 1996, when OSHA was adopting new rules on Recording
and Reporting Occupational Injuries and Illnesses, the agency initially
provided 90 days for comments and extended the comment period twice for
a total comment period of 150 days. In addition, six days of public
meetings were held to provide full opportunity for public input.
Even for non-mandatory guidance, agencies have generally provided
much longer comment periods than 30 days. When OMB proposed its
Bulletin on Peer Review and Information Quality in 2003, an initial 90-
day comment period was provided and a public workshop was convened at
the National Academy of Sciences. In response to comments, in 2004, a
revised draft bulletin was re-proposed and an additional 30 days were
provided for comments. Recently, OSHA published Proposed Guidance on
Workplace Stockpiling of Respirators and Facemasks for Pandemic
Influenza and provided 60 days for public comments. Prior to this in
2007, OSHA had circulated a draft for public comment and with CDC
convened a series of public meetings soliciting input from interested
stakeholders.
Moreover, while the proposed DOL risk assessment rule requires OSHA
and MSHA to post documents in the public docket within 14 days, as of
September 15, 2008, 16 days after the proposal was published, the
Department had failed to post any of the background documents and
analyses related to this rule.
Finally, and importantly, because the proposed risk assessment rule
will affect the substance and process of standard-setting under the
Occupational Safety and Health Act and the Mine Safety and Health Act,
it is the AFL-CIO's view that the Department of Labor must hold a
public hearing on the proposal if requested. The AFL-CIO and others
have requested such a hearing, but the Department has given no
indication that it intends to schedule one.
Conclusion
The Bush Administration started its tenure in 2001 by repealing
OSHA's ergonomics standard, and for the past 7 1/2 years it has refused
to take action to issue new safety and health protections unless under
court order or in response to Congressional mandates. Now in its waning
days, the Administration is attempting to put in place new regulatory
requirements that would make it much more difficult for the next
administration to take action to protect workers. DOL's proposed risk
assessment rule is unsound, unnecessary and will result in unnecessary
deaths and disease among workers. If the Department of Labor does not
withdraw this harmful measure, we urge the Congress to enact
legislation to stop it.
______
Chairwoman Woolsey. Thank you. I am going to yield to Mr.
Payne.
Mr. Payne. Thank you very much. I will just be brief since
we are going to have to leave.
Let's see. Mr. Sequeira, this proposal we are talking about
has not been peer reviewed. Why did your office disregard the
recommendation from the National Academies made in 2007 which
states that technical guidance developed by Agencies should be
peer reviewed?
Mr. Sequeira. The Department's proposal is not required to
be peer reviewed. The proposed rulemaking and what we are
seeking comment on is not technical and is not guidance and
therefore is not subject to peer review.
Mr. Payne. Okay. Therefore, because it is not subject to
peer review, therefore you discount the fact that, you know,
that it shouldn't be? I mean, your answer is that it is not
required, therefore a lot of things weren't required. That is
why AIG had to get $85 billion from the government yesterday.
You know, things that are required and not required as opposed
to what should be done to prevent things from happening are
what we are concerned about. And there seems to be a nonchalant
sort of cavalier attitude by the Department of Labor that these
things are not required, therefore, it is like water off a
duck's back.
Mr. Sequeira. Well, Congressman, as I understand it, the
process of peer review applies to technical information
studies, reports in the academic sense that articles are peer
reviewed. This proposal, the Department's proposal doesn't
represent anything of that kind. I am not sure what there is in
the proposal to be peer reviewed, frankly.
Mr. Payne. Okay. Would any of the other witnesses like to
express their point of view? Yes, Doctor.
Ms. Monforton. Thank you. Your question is excellent in
terms of the requirement for peer review. Yes, it is not a
requirement. But the Department of Labor says over and over
again that this is something about best practices, and I don't
think there is anyone here that would suggest that
recommendations coming out of the National Academies would not
be considered best practices. And the National Academies
specifically said that any risk assessment, guidance, document
prepared by the administration should meet certain criteria and
it should be subject to peer review.
Mr. Payne. Yes.
Ms. Seminario. I would just support what Dr. Monforton has
said. The Department can't have it both ways. They can't be
proposing by rule to make law certain, they say existing best
practices, but some changes in practices, say that on the one
hand but on the other hand say that it shouldn't be peer
reviewed or they don't need public comment on it. They also
shouldn't be saying, quite frankly, when they are attempting to
change the way standards are set in the standard setting
process, change the Administrative Procedures Act, change the
Occupational Safety and Health Act and Mine Safety and Health
Act requirements for how you set rules. Both those laws say you
issue a proposal and then you issue a final. Both of them also
provide for advisory committees. And suddenly, lo and behold,
we have a whole new proposal to say we have a whole new formal
step for every occupational health rule. You can't do that and
say that, no, we don't think we should take public comment or
no, we don't think that peer review is needed. It just doesn't
make any sense.
Mr. Payne. Yes.
Mr. Johnson. Normally the employer can be very strong
supporters of peer reviewed studies, and we would certainly
join with the unions here on requiring peer reviewed studies
generally in OSHA standard-setting processes which are so
important here. I think whether or not they had to be done
here, I think your point is perhaps they should have been done.
I am not quite sure of the legal requirements of this
proposal. It appears to be not the kind of methodological
studies that are normally subject to a peer review process. But
I am not quite sure. With regard to Peg Seminario's--these
changes in the rulemaking process, look, an ANPR is not
recognized under the Administrative Procedures Act, that is
true, or the rulemaking process under OSHA. However, the APA
has not been amended since 1940--well, in this area since 1947.
The OSHA act has not been amended since 1972. Surely there is
some room for some novelty and reflection in terms of improving
the rulemaking process in those 40 years.
The ANPRMs are commonly used by Agencies. They are not some
strange creature, and they can be used quickly by Agency to
clear out their underlying brush and move quickly to an ANPRM.
What Agencies often do, unfortunately, is use ANPRMs as an
excuse to get their political overseers on Capitol Hill off
their back or the courts, and that is unfortunate but it is
used by both Republican and Democratic administrations.
If they are not used as an excuse, and they are used as
good faith mechanisms to get to conclusions quickly and allow
public comment, then they are very useful. But they shouldn't
be used as a shield, which is a problem.
Chairwoman Woolsey. Thank you very much. Thank you, Mr.
Payne. The ranking member and I will be back after the votes,
and I will try to get the rest of our committee back up here
too. All right. So hang on. We will be back.
[Recess.]
Chairwoman Woolsey. Thank you for waiting for us. The vote
is still not quite over; so our Ranking Member will get here
soon. I will take this opportunity to ask my questions.
I am very concerned, Mr. Sequeira, that we are kind of
missing the point here. In this rulemaking, we are adding a new
step to rulemaking, which will lengthen rulemaking, and in all
of the language regarding hearings and review, it refers to
exceptional circumstances in order to skip the steps necessary.
So my question, and this is after I introduced the popcorn
lung bill regarding diacetyl, and that was just out of sheer
frustration because of OSHA's inaction, and it just leads me to
asking you questions of why adding this step is more important
than the three OSHA examples that Dr. Monforton talked about
and I talked about in my opening statement. Why do we need this
standard so urgently that you operated in an opaque fashion,
leapt ahead of all other OSHA and MSHA regulations? What in
your standards and in this process is going to save lives?
Mr. Sequeira. Madam Chair, there is nothing in the
Department's proposal here that necessarily lengthens
rulemaking. And ANPRM, as I mentioned earlier, is not a new
process. It is used often by OSHA already. In fact, the recent
standards issued by OSHA began with ANPRMs.
It is no secret that OSHA rulemakings take a long time.
That is due to a number of factors, not the least of which are
the statutory requirements that Congress has put on the agency.
OSHA has to comply with no fewer than eight statutes when it
conducts a rulemaking. That more than anything is responsible
for the length of time.
Chairwoman Woolsey. And this rule--and, Ms. Seminario and
Dr. Monforton, respond to this and see if maybe I am wrong--
this is going to add steps to the process, it is going to make
it longer if you prevail in what you are aiming at.
Mr. Sequeira. Actually I don't think that that has the
case. An ANPRM can be conducted during the already statute-
required SUBREFA process.
Chairwoman Woolsey. Let me reclaim my time and turn it over
to Ms. Seminario.
Ms. Seminario. Again, let us look at the rules that are
pending that we are concerned about: Diacetyl scheduled for a
SUBREFA review that was supposed to start in January; silica, a
peer review requirement which comes from the Bush
administration directive that they have to conduct peer review.
It is not a statutory requirement, it is a Bush administration
policy which this rule would now codify. That peer review has
been pending for four years. SUBREFA review on silica took
place in 2003. So on its face this rule says that OSHA has to
go back now and conduct an ANPR, start all over, collect data,
respond to all the comments, redo their risk assessment which
is ready for peer review. So again, it does add a new step and
particularly is problematic for those things which have been in
the pipeline for years which are underway. And again, it is not
appropriate to use this mechanism for every rule.
Ms. Monforton. I would also like to just state again that
in terms of best practices, I don't see anything in the
preamble to the rule that suggests that an ANPRM has been
demonstrated to be a best practice. I think it would be really
useful for someone to look at perhaps two OSHA rules where an
ANPRM was issued and two OSHA rules when it wasn't issued, and
look at the real quality of the information that comes in from
the ANPRM.
When the agency issues an ANPRM, there is no requirement.
It doesn't have subpoena power to require information from
companies or scientists to get information, and you are kind of
at the mercy of whoever wants to send in information. So you
could actually look at what is submitted during that process
and find out does it really add anything to the quality of the
product that ultimately comes out?
Chairwoman Woolsey. Mr. Johnson.
Mr. Johnson. Just, Madam Chair, I know time is limited, but
just very quickly, ANPRM is a generalized way of gathering data
because it asks generalized questions. It gets it in the hopper
for people to look at it and analyze it.
The problems with an ANPRM are traditionally it is actually
a proposed regulation, very specific, so by definition it
narrows the constraints of those who can comment to that
regulation. And the range of changes between ANPRM and the
final rule as a practical matter are very small for APA
reasons. So an ANPRM is a useful way to collect data upfront,
look at it carefully. And you are going to have to deal with
those issues anyways. I don't really think it is going to
result in delays in and of itself, but an agency can use that
excuse for a delay. It really comes down to not the process
itself, but, I think, the desire of the agency to move forward
for other reasons.
Chairwoman Woolsey. Well, it is my understanding all of
those questions have to come out in the final review, so why
would we have it at the front and the back end? It does add
steps to the process.
Mr. Johnson. It is all going to wind up in court. You may
as well try to deal with some upfront early on rather than
later.
Chairwoman Woolsey. Well, and then again later. I am sorry.
My time is up, and I am going to yield to Mr. Wilson for the
purpose of questioning the witnesses.
Mr. Wilson. Thank you again for being here and staying
over, too.
Additionally, Mr. Secretary, I appreciate your explanation
about the open process that is under way, not a secret, one
that can be intelligible and very helpful in receiving
information to truly help the people who are working in our
country and who understand the significance of safety.
In written questions which were sent to the Department by
the Majority, you provide an answer to this question, but can
you explain for the record today upon what authority the
Department of Labor took this policy change? Furthermore, why
did the Department decide to seek public comment on the
proposed policy change?
Mr. Sequeira. The proposals issued under the Secretary's
general authority at 5 U.S.C. 301, this proposal is not a
health standard. It is not a rulemaking. It is not issued
pursuant to the Occupational Safety and Health Act or the Mine
Safety and Health Act. It is issued pursuant to the Secretary's
general authority to prescribe Departmental procedures and
process.
As you noted, we weren't required under the Administrative
Procedure Act to seek public input or comment on this, but the
Department thought that that was important to do. So we
expressly affirmatively made that decision to put this proposal
out and seek public comment on it, which is ironic that some
would call it secret, by the way. Anybody who is familiar with
the Administrative Procedure Act knows that by definition a
rulemaking is a public process. It is impossible to be secret.
Mr. Wilson. And, further, I think you have explained this
in letters of July 17, 2008, and September 5, 2008, to the
Chairman.
I would like to submit these for the record.
Chairwoman Woolsey. Without objection.
[The information follows:]
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Mr. Wilson. And indeed in terms of workers' safety, I am
pleased that for the last six out of seven years, there has
been a reduction in the number of persons injured and killed in
the workplace across America. And a person who I greatly admire
is my fellow home stater Ed Foulke. So be sure to tell
Secretary Foulke hello for me.
Mr. Sequeira. I will. And, Congressman, I would note, if I
may, that not only are injury and illness rates declining, they
are at the lowest level in recorded history under this
administration.
Mr. Wilson. And I appreciate this coming out, because part
of my service, I have visited the different manufacturing
facilities across the district, and we are really very pleased,
in particular foreign direct investment. I have got three
Michelin plants in the district I represent. We have
Bridgestone Tire next door, which is Japanese. We have
Westinghouse Nuclear Fuels, which is also Japanese. We have
significant German, Swiss, Swedish investments in the district
that I represent. And going by and visiting the different
manufacturing facilities of flooring, of oriented strand board,
Canadian investment, everywhere I go, obviously the very first
point that I see is safety.
And it is completely understanding that businesses cannot
be successful without a healthy and safe workforce, in addition
to the fact, obviously, that the people who work at the
manufacturing facilities live, work, and play with the families
of the people who are the managers. So over and over again I
have seen a positive step.
Mr. Johnson, in your testimony you reflect the Chamber of
Commerce's support for this regulation. How do you believe this
regulation improves the regulatory process for stakeholders?
Mr. Johnson. Well, I think it just brings together in one
document all the different procedures that the Department of
Labor can look at in setting risk assessment. For example, I
have an article here on the carcinogen policy, which mentions
that traditionally the current collection of policies and
regulations is remarkable for the inconsistent and incomplete
way in which suspect chemicals are treated. It is--my
experience at the Department of Labor was that it is a very
confusing decision-making process, who makes what decision on
risk, what are they looking at. This tries to bring in one
document for the public to understand. But more importantly, it
is just very simple and requires, for example, all documents to
be up on the Web and be transparent and easily accessible. It
used to be companies would have to hire law clerks to go down
to the Department of Labor, Xerox records and bring them back
in a paper file, and this makes it all much easier and
commonsense.
Ms. Seminario. I might just say that OSHA has always had a
very robust docket, even before there was regulations.gov. They
have had an electronic docket with information up there. It is
also worth pointing out that this particular rule was posted on
August 29 on regs.gov, which is--I guess now is 18 days ago,
and none of the documents related to this rule and its
underpinnings had been posted as of this morning. So all that
appears on that public docket is the rule and then a number of
submissions of requests for extensions, but none of the
underlying dockets--there was a big contractor's report that
was done. Taxpayers spent $350,000 in support of this, and none
of that information, none of the background behind this rule is
on the Web, and we have 12 days left to comment on it.
Mr. Wilson. And I would say that we are in the age of
Internet, which makes access so readily available worldwide. So
I would hope and expect that whatever shortcomings you see,
that you can bring them to the attention of good Members of
Congress like Chairwoman Woolsey or me, and we will be happy to
make inquiry. And I would think, again, transparency truly is
beneficial. It is not negative.
And I yield.
Chairwoman Woolsey. Thank you.
Mr. Payne, Congressman Payne.
Mr. Payne. Thank you very much.
I think that there is some dispute perhaps in certain
industries, and the one that the Assistant Secretary is mainly
familiar with, there has been a superb record of safety.
However, I just want to bring out that perhaps you are not
involved with the cleaning industry. For example, Cintas, which
is a large industry of uniform cleaning and cleaning of large
laundries, have had several deaths, two actually in my district
about a year ago, unsafe conditions where workers were not
given safety equipment to clean out these big vats.
Secondly, I am not sure that anyone--and maybe the building
industry is not under your jurisdiction specifically, but you
had a tremendous number of deaths in the construction industry
this year in New York City alone. I mean, you have had almost
one a month easily, even more than that, crane safety, safety
of employees. We have had an epidemic. So maybe in South
Carolina things are great, but I know up in New Jersey and New
York, we have had bad luck. Perhaps we don't get the
hurricanes, but evidently we have other kinds of disasters that
impact on human beings.
I might just ask a question of Mr. Johnson, where you
object to the designation of this program as a secret
regulation because DOL ``has chosen to do this thoroughly
through a full public procedure, soliciting comments and input
as with any other regulation.'' That was a quote. So I just
kind of find it astonishing actually that you claim that the
Department has solicited as much input as with any other
regulation. So I don't know if you would perhaps bring to my
attention any other regulations or any other regulation which
will significantly affect OSHA or MSHA standards as this does
that did not have a hearing or more than a 30-day period of
comment.
Mr. Johnson. Well, as I mentioned earlier, the ergonomics
regulation, which is right here, hundreds of pages long, only
had a 60-day comment period, and that was issued during
Thanksgiving week of 1990, and we eventually got an extension
from that. I am not--Congressman, whether 30 days is
appropriate to this as distinguished to 60, I will say we often
ask for an extension on comments. And perhaps an extension from
30 days to 60 may be appropriate in this case. We asked for an
extension--actually, we didn't. But formaldehyde, benzene,
hazard communication standards, I have worked on all of those,
and traditionally their initial rulemaking period is quite
short, and then traditionally there is an extension of comment.
Which had hearings or which did not, frankly I would have
to go back and take a look at that. Whether or not a hearing is
appropriate in this case, I am not going to hazard a position
on this and wouldn't take one.
Ms. Seminario. Let me just say with respect to comment
periods on ergonomics, the ergonomic rule was under development
for years. There was a draft proposal with all of the
background that was circulated to interested parties back in
1993. There were public meetings. This went on for years and
years and years. So the notice that came out in 19 whatever--in
1999 originally was one that had, you know, lots of public
input prior to that.
This rule came out of nowhere. This rule came out of
nowhere. It wasn't in the regulatory agenda. We had no notice
that it was coming. The first we saw was when--the fact that it
had gone to OMB on July 7.
Mr. Johnson talked about when OSHA did its cancer policy.
That was done under the Occupational Safety and Health Act.
There were extensive hearings. I went to every day of those
hearings. I think it was my first year at the AFL-CIO, three
months of public hearings at the Department of Labor on that
policy. Ergonomics, we had months and months, weeks of public
hearings on that.
So the bottom line is 30 days is basically the shortest
time possible for comment. It certainly is not providing for
the robust public comment which the Bolten memo said agencies
should be following in the final months of the administration.
And also we think that a hearing on this is required, given
the way the Department is doing it. They are essentially
changing standards and standard setting under the Occupational
Safety and Health and Mine Safety and Health Act, and both
those laws say when a party objects and requests a hearing,
they have to be granted a hearing. We put that question, and we
would expect that the Department would follow the law.
Mr. Johnson. I believe as a technical matter that this is
the Department saying, this is not our standard, this is not a
regulation; it is an internal agency practice, therefore not
technically subject to some of those requirements. But that is
a separate--what might be the right thing to do, which is more
public input.
Chairwoman Woolsey. The gentleman's time has expired.
Mr. Payne. Just if I might mention, I do recall also those
hearings on ergonomics and how I was wondering when we were
ever going to pass anything, they had so many hearings on it.
So I think to say, well, you have got 60 days, is kind of not--
is far from the truth. I thought it went too long before the
regulations came out. Thank you.
Chairwoman Woolsey. Congressman Hare.
Mr. Hare. Thank you, Madam Chairman. My apologies. I was in
a markup on Veterans, so I didn't get to hear the testimony.
But I am troubled here, Mr. Sequeira, and maybe you can
help me out. Was anyone on OSHA or MSHA consulted on this
proposed rule?
Mr. Sequeira. Yes.
Mr. Hare. Did they ask you to issue the rule?
Mr. Sequeira. I am sorry?
Mr. Hare. Did the agencies ask you to issue the rule after
you consulted with them? The reason is I am curious why the
rule is coming out of the DOL policy office and not the health
and safety agencies.
Mr. Sequeira. Yes. I understand that you weren't here for
the earlier testimony, Congressman, but as I mentioned earlier,
this proposal is issued pursuant to the Secretary's general
authority to issue regulations related to the Department
procedures. It is not issued pursuant to the Occupational
Safety and Health Act or the Mine Act.
Mr. Hare. Well, in my opinion, it seems like it is going to
be tying the hands of any future administration, which, to be
candid with you, I would consider shameful because of how long
it currently takes OSHA and MSHA to issue standards, and the
fact that OSHA has issued only one major standard during this
administration and they were ordered to do so under court
order. So I do have a concern about that.
My other couple of concerns is why move forward on this
proposal after 80 epidemiologists, as I understand it,
physicians in the American Public Health Association, advised
the Secretary of Labor to withdraw the proposal for reasons
that it would be damaging to workers' health? I mean, doesn't
that kind of fly in the face of what the experts are saying?
Maybe you can help me try to understand why you folks know more
than these epidemiologists, physicians in the American Public
Health Association?
Mr. Sequeira. I don't know precisely which experts you are
referring to or what their specific argument is. People may
have different views about the regulation. That is the purpose
of a notice-and-comment period, so that we can collect those
views from the public.
As for delays, we discussed earlier an ANPRM and a health
rulemaking does not necessarily lengthen the time it takes to
do an OSHA rulemaking. Those rulemakings take a long time. Much
of that time is required by Congress because of statutes
Congress has passed, and in addition they take a long time
because of the inevitable lawsuits. There have been nearly two
dozen lawsuits including some filed by members on this panel
against OSHA in rulemaking.
Mr. Hare. But didn't you bypass standard procedure for
following the rule? For example, it was not announced in the
most recent semiannual DOL regulatory agenda, and which is in
violation of Executive Order 12866. You only provided 30 days
for public comment rather than the customary 60 days that is
laid out under the Executive Order. So there are no public
hearings. You have not made any of the underlying documents
relating to the rule part of the public docket. So can you
explain to me why that happened?
Mr. Sequeira. My understanding is some people have
requested a public hearing. The Department will consider those
requests. Again, unlike the OSH Act and the Mine Act, there is
no requirement for the Department to conduct a public hearing.
The item was not listed on the spring regulatory agenda of the
Department, and that is for a simple reason. The spring
regulatory agenda lists regulations that the Department is
pursuing.
Mr. Hare. So you are comfortable with the 30 days instead
of the 60 days for comments and people being able to testify
about it?
Mr. Sequeira. Congressman, we are in the middle of an open
rulemaking and a notice-and-comment procedure, and I am not
going to prejudge at this point what the appropriate time for
comments is. The Department in its initial proposal said 30
days. As I understand it, we have received requests, but I am
not prepared here today to judge requests that I haven't even
seen about whether we should extend that comment period.
Mr. Hare. Well, I understand that, but I don't understand
why standard procedure proposing the rule, which is in
violation of Executive Order 12866, and I am just wondering if
you are comfortable with going against Executive Order 12866.
Mr. Sequeira. Congressman, I respectfully disagree with
your characterization that it is not in compliance with
Executive Order 12266.
Mr. Hare. Dr. Monforton, you mentioned in your testimony--I
am sorry if I mispronounced your name.
Ms. Monforton. No. That is correct.
Mr. Hare. Thank you. I am getting something right here
today.
You said in your testimony that the proposed rule would be
quite damaging to workers by further paralyzing the rulemaking
process. I wonder if you could go into more detail on how it
would do that.
Ms. Monforton. I would be happy to. As numerous people have
said here, regulating occupational health hazards takes a long
time. There are numerous steps in the process, including
numerous steps that have been instituted by this administration
and under the previous Congress under SUBREFA, and it is my
feeling that probably the best thing to do would take a step
back and look at all of these requirements for SUBREFA panels,
for peer review and all of that, and really decide if those
things are necessary and add to the quality of the final
product.
The objective here for these statutes is to prevent harm,
prevent workers from developing disease and disabilities, and
if we have too many steps along the process, we never get to
the final product. And it is not about the process. It is about
the workers in the end who are harmed and develop diseases or
die because of exposures at work.
Mr. Hare. Thank you.
Ms. Seminario. Can I just add to that? When the National
Academy of Sciences looked at what OMB had proposed on risk
assessment--they put out a proposed bulletin. It went through
public comment. It had an NAS panel. They had a lot of
criticisms of the bulletin, but one of the main criticisms that
they had was that bulletin, with all of its additional
requirements, that the administration hadn't done its own sort
of cost-benefit analysis as to whether or not adding all these
additional requirements had any benefit, had any benefit with
respect to the outcome, and the benefit being not one of
processing.
The Occupational Health and Safety and Mine Acts are, as
Dr. Monforton said, to protect workers. All right? That should
be the main goal. So how does this add to the protection of
workers? And I would say that in looking at this proposal here,
it does nothing in that regard and would be quite detrimental.
So, again, I think imposing additional requirements is not
needed.
And as I said, NAS also said that agencies needed to look
at that when they were developing their risk assessment
approaches to see if it added anything and was necessary and
shouldn't lose sight of what essentially the purposes of their
statutes were.
Chairwoman Woolsey. The gentleman's time has expired.
I am going to ask a question, and then the Ranking Member
is going to give us his closing remarks, and then I will give
my closing remarks, and you will all be excused. But let us get
to what I think the main question is, Mr. Secretary. The White
House Chief of Staff, Josh Bolten, issued a memo in May stating
that no new regulations should be proposed after June 1, 2008,
absent extraordinary circumstances. Can you describe why--well,
describe the extraordinary circumstances in this case. Why is
this extraordinary?
Mr. Sequeira. Madam Chairman, respectfully I disagree with
your characterization of the Bolten memo. It, in fact, does not
say that agencies cannot issue regulations after June 1.
Chairwoman Woolsey. What does it say?
Mr. Sequeira. I don't have a copy in front of me.
Chairwoman Woolsey. Read it, please.
Mr. Sequeira. I said I don't have a copy.
Ms. Seminario. I have a copy.
Chairwoman Woolsey. And that is what it says, right?
Ms. Seminario. It says, ``Except in extraordinary
circumstances, regulations to be finalized in this
administration should be proposed no later than June 1, 2008,
and final regulations should be issued no later than November
1, 2008.'' So either they are----
Mr. Sequeira. I am sorry. She is asking the----
Ms. Seminario. They are out of compliance with the memo, or
they don't intend to finalize it by the end of this
administration.
Chairwoman Woolsey. So my question to you, what are the
extraordinary circumstances in this case other than putting one
more roadblock into OSHA procedures to save life and health of
workers?
Mr. Sequeira. The Department has not cited any
extraordinary circumstances with regard to this rulemaking.
Chairwoman Woolsey. Then why is this rulemaking more
important than diacetyl, for example?
Mr. Sequeira. I have never said that it is, Madam Chairman.
Chairwoman Woolsey. Well, it is preempting other actions
that should be taken.
Mr. Sequeira. Actually I don't believe that it is. This
regulation is rather short. I think in a Word document, it is
maybe 25 pages long. The three most recent standards issued by
OSHA, I believe, were somewhere in the order of 400 to 700
pages long. The cranes and derricks rule that they are
currently working on is in excess of 1,200 pages.
Chairwoman Woolsey. It doesn't matter how many pages. Whose
life is being saved, whose health is better because of what we
are doing?
Mr. Johnson, you had something you wanted to say. Then I am
going to ask our two women witnesses----
Mr. Johnson. Just on the last round of questions, it is
true that obviously the OSHA Act was intended to protect
workers. It was not a limitless grant of discretion to OSHA to
create a risk-free environment.
The OSHA Act also contains, quote, ``that the Secretary in
promulgating regulations must use the best available evidence
and the latest available scientific data in the field.'' Best
available evidence, latest scientific data in the field, those
concepts are from the statute. They are in the quality
guidance----
Chairwoman Woolsey. Okay. Thank you, I don't see how that
relates to new standards, but we will see.
Ms. Seminario, and then Dr. Monforton are going to be our
clean-up batter for the witnesses.
Ms. Seminario, you are first.
Ms. Monforton. I just want to reiterate and make sure the
committee understands that in the regulation, it specifically
says that when MSHA and OSHA make major steps in rulemaking
such as proposing a rule, that documents are to be published on
regulations.gov within 14 days. This proposal purports to be
something about best practices, but they don't follow their own
because there is nothing in regulations.gov that supports this
rulemaking. They haven't even followed their own best practices
that they are proposing in this rule. It is very problematic
when you are trying to comment on a proposed rule when you
don't have any of the substantive documents that were used to
develop it.
Chairwoman Woolsey. Okay, thank you.
Ms. Seminario, you are our clean-up batter.
Ms. Seminario. Just to say that, again, this rule is being
put forward in the name of improved transparency and notice to
the public, but with the rule no notice was given that it was
even under development, and certainly as far as transparency,
we have had a little information, and as far as opportunity for
comment, there is virtually none. So it violates, as Dr.
Monforton said, what is being proposed here, but more
importantly it will hurt workers. It will delay rules, very
important rules like diacetyl and silica, which would mean that
workers will be exposed.
We have gone through 7\1/2\ years, it will be eight years
come January 2009, with only one occupational health rule being
issued, and we would like the next administration to move
forward quickly to put those standards in place to propose the
silica rule, the diacetyl rule so workers aren't exposed and
their lives can be saved. That has what we think the priority
of the next administration should do, not starting all over at
the beginning of the process. Thank you.
Chairwoman Woolsey. Mr. Wilson.
Mr. Wilson. Thank you, Chairwoman Woolsey, for this hearing
today. And I appreciate all of the witnesses, your input. I
want to thank the Secretary and the Department. I wish you well
as we are all working somewhat together and working on behalf
of reducing workplace accidents and deaths. So I thank all of
you for being here today, and I want to thank the staff, too. I
will tell you Loren Sweatt is an amazing person putting up with
us. Thank you.
Chairwoman Woolsey. Thank you, Mr. Wilson.
I want to thank all of you for being here today. You are
excellent witnesses. It was very informative, and I believe
there is one issue in all of these discussions that we can
agree on, that there are major problems at OSHA and MSHA when
it comes to issuing protective standards. However, we do differ
on the nature of the problem. DOL seems to think that the
paralyzed regulatory process requires even more years of review
and even more delay. However, for those of us who believe that
OSHA's and MSHA's job is to protect America's workers, the real
problem is the inexcusable delays in standard setting which is
actually leaving workers exposed to deadly hazards.
Congress gave OSHA and MSHA broad authority to issue
enforced, strong workplace safety and health standards. Over
the years the courts and this administration also have made it
tougher to issue these standards, adding even more time to the
process. We need to look at ways to reform the standard-making
process so that it actually provides workers with the
protection that they need on a timely basis.
But this administration has utterly failed to fulfill its
obligation to the American worker. While it should have been
working full speed ahead to issue protective standards, it has
instead been busy with this secret rule, a rule that subverts
congressional intent to help workers, and it is being rushed
through without proper consideration.
Again, I want to thank the witnesses for your testimony,
particularly coming to us on such short notice, and I want to
assure you that we will continue to fight right here for
American workers to ensure that any ill-conceived proposal
won't see the light of day, particularly this one.
So as previously ordered, Members will have 14 days to
submit additional materials for the hearing record. Any Member
who wishes to submit follow-up questions in writing to the
witnesses should coordinate with Majority staff within 14 days.
Without objection, the hearing is adjourned.
[Whereupon, at 11:50 a.m., the subcommittee was adjourned.]