The Department of Labor’s (DOL) controversial risk assessment proposal has prompted a flurry of comments from safety and labor stakeholders, including the American Society of Safety Engineers (ASSE), which announced its support of the proposal in a move that conflicts with several organizations that openly oppose it.
The rule, “Requirements for DOL Agencies’ Assessment of Occupational Health Risks,” was published in the Aug. 29 Federal Register and is designed to compile DOL’s “existing best practices related to risk assessment into a single, easy to reference regulation, and to include two requirements to establish consistent procedures for conducting risk assessments that promote greater public input and awareness of the Department's health rulemakings.”
Critics have argued that the rule was developed in secret and could delay or impede the development of future workplace health standards. ASSE, however, supports the rule’s requirements for OSHA and MSHA to publish an Advanced Notice of Proposed Rulemaking (ANPRM) seeking relevant scientific information when developing a health standard that regulates occupational exposure to a toxic substance.
In a letter to DOL Secretary Elaine Chao, ASSE President Warren K. Brown said ASSE supports this proposal because it provides an additional opportunity for the regulated community to review and, if necessary, object to an exposure requirement that employers and safety, health and environmental professionals are responsible for managing.
“In any action pursued by a regulatory agency, the more transparency in the regulatory process that can be achieved, the better the outcome and the more certain the assurance that resulting regulations will be reasonable and help employers and [safety, health and environmental] professionals advance occupational safety and health,” Brown wrote.
AIHA: Rule Not in Workers’ Best Interests
In a Sept. 29 letter to DOL, however, the American Industrial Hygiene Association (AIHA) outlined its opposition to the rule.
“While we applaud the expressed intent in the proposed rule to add transparency to the assessment of occupational health risks, we are concerned that the approach being used to progress this rule lacks transparency and bypasses or shortcuts significant stakeholder input,” AIHA President Lindsay E. Booher wrote in the letter.
“AIHA finds that forgoing a full public review process prior to proposing the rule is not in the best interests of workers, employers or the public as the proposed rule would significantly relax some workplace exposure standards resulting in higher levels of worker exposure to occupational health risks,” he added.
Booher explained that AIHA is concerned the new approach proposed by the bill could result in increased exposure to workplace toxins “based on assumptions which do not accurately reflect conditions or worker experience.” He pointed out that DOL has no solicited input from experts with experience evaluating worker exposure from chemicals and toxins, including industrial hygienists.
“It is hard to imagine that a rule could be proposed without the input from the professionals who do this work on a daily basis!” he wrote.
Booher urged DOL to suspends its efforts to enact the rule until all stakeholders have had a chance for adequate comment; provide an extension of the comment period; and request a public hearing on the proposal.
In addition, AIHA commented that the risk assessment procedures must be outlined more clearly and completely. The letter also urged DOL to include a list of organizations used as references for hazard identification; enhance or expand the “significant risk” definition; define the mechanism/implementation steps for the electronic posting requirements; and reexamine the changes that require OSHA to consider employer-provided work histories for personnel in specific industries.
White: Proposal is “Poorly Drafted”
ORC Worldwide, an international management and human resources consulting firm with a Washington, D.C., office specializing in occupational safety and health, also sent a Sept. 29 letter to DOL commenting on the proposed risk assessment rule. Unlike other business groups that have shown support for the rule, ORC opposes it.
ORC Senior Vice President Frank A. White included the following points in the letter:
- DOL has not established the need for a new regulation prescribing agency risk assessment procedures.
- The “art and science” of risk assessment is evolving and dynamic and should not be “frozen in time” in this overly simplistic and confusing proposal.
- The definition of significant risk is incomplete and is not a useful description of what constitutes “significant” risk for health standards-setting purposes.
- The requirement for an ANPRM for every rulemaking is excessively restrictive and unsupported.
- There is an inadequate explanation of why industry-by-industry working life exposure data has been singled out as an essential aspect of agency risk assessment.
- By implying that the dose-response assessment step of a risk assessment always involves “an adverse health outcome” DOL at the very least creates confusion and at worst, seems to restrict rulemaking action to cases where there are demonstrated adverse human health outcomes.
- The public access provisions in §2.9(d)(1) and (2) are well-intentioned but can be accomplished by non-regulatory means.
“ORC does not object to a compilation of best practices in risk assessment, with improved procedures for transparency,” White wrote. “However, the DOL has failed to justify the need for a regulation to accomplish its objectives. In addition, the proposal is poorly drafted in significant ways that could lead at least to confusion and at worst to conflict with the Acts whose requirements the proposal purports to clarify.”
White added that a more effective alternative would be to issue a guidance document instead of a regulation, which would allow for the “appropriate degree of flexibility and responsiveness needed for the continual improvement of risk assessment approaches and their application to DOL health rules.”
Others Speak Up
The public comments found on the docket tend to be split, with business groups generally favoring the rule and labor representatives opposing it.
“We object to this proposed rule on both procedural and substantive issues,” wrote Dennis O’Dell, administrator of occupational health and safety for the United Mine Workers of America. “Not only is it ill advised and wasteful of Agency resources, but also from a procedural point of view if DOL is serious about implementing such a wholesale change in its rulemaking methodology, this should first be subjected to the hearing process.”
O’Dell added in his letter that the United Mine Workers also seek an extension of the comment period, saying there is “no compelling reason” to rush the process.
“We are extremely disappointed that DOL is focusing resources on developing rulemaking procedures that will prolong the rulemaking process rather than promulgating meaningful rules designed to protect miners and other workers,” O’Dell wrote.
The Associated Builders and Contractors Inc. (ABC), however, supported the rulemaking in a Sept. 29 letter to DOL.
“ABC strongly supports the Department’s proposed rulemaking, and believes that it will promote transparency, and facilitate a more complete factual record for future health standards. Issuing an Advance Notice of Proposed Rulemaking (ANPRM) for health rulemakings will offer the public an additional opportunity to provide the Department with outside studies and scientific data, and will ensure that health regulations are formulated using the best possible information available,” wrote Robert A. Hirsch, ABC director of legal and regulatory affairs.
The proposed risk assessment rule was the subject of a Sept. 17 House Workforce Protections Subcommittee hearing, where witnesses testified on the rule’s perceived strengths and flaws. For more information, read House Hearing Focuses On "Secret" DOL Rule.