Labor Dept. rushes to enact rule

Regulation has been opposed by Obama

By Robert Pear
New York Times / November 30, 2008
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WASHINGTON - The Labor Department is racing to complete a rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze "industry-by-industry evidence" of employees' exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers' health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

The Labor Department proposal is one of about 20 highly contentious rules the Bush administration is planning to issue in its final weeks. The rules deal with issues as diverse as abortion, auto safety, and the environment. One rule would make it easier to build power plants near national parks and wilderness areas. Another would reduce the role of federal wildlife scientists in deciding whether dams, highways, and other projects pose a threat to endangered species.

Obama and his advisers have already signaled their wariness of last-minute efforts by the Bush administration to embed its policies into the Code of Federal Regulations, a collection of rules having the force of law. The advisers have also said that Obama plans to look at a number of executive orders issued by Bush.

A new president can unilaterally reverse executive orders issued by his predecessors, as Bush and President Bill Clinton did in selected cases. But it is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply "a reasoned analysis" for such changes, as if it were issuing a new rule, the Supreme Court has said.

As a senator and a presidential candidate, Obama sharply criticized the regulation of workplace hazards by the Bush administration.

In September, Obama and four other senators introduced a bill that would prohibit the Labor Department from issuing the rule it is now rushing to complete. Obama also signed a letter urging the department to scrap the proposal, saying it would "create serious obstacles to protecting workers from health hazards on the job."

Administration officials said such concerns were based on a misunderstanding of the plan. "This proposal does not affect the substance or methodology of risk assessments, and it does not weaken any health standard," said Leon R. Sequeira, the assistant secretary of labor for policy. The proposal, he said, would allow the department to "cast a wide net for the best available data before proposing a health standard."

The Labor Department regulates occupational health hazards posed by a wide variety of substances such as asbestos, benzene, cotton dust, formaldehyde, lead, vinyl chloride, and blood-borne pathogens, including the virus that causes AIDS.

The department is constantly considering whether to take steps to protect workers against hazardous substances. Currently, it is assessing substances such as silica, beryllium, and diacetyl, a chemical that adds the buttery flavor to types of popcorn.

The proposal applies to two agencies within the Labor Department, the Occupational Safety and Health Administration and the Mine Safety and Health Administration. Under the proposal, they would have to publish "advance notice of proposed rule-making," soliciting public comment on studies, scientific information and data to be used in drafting a new rule.

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