Monday, December 1, 2008

Bush Aides Rush to Enact a Rule Obama Opposes

Bush Aides Rush to Enact a Rule Obama Opposes

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The Labor Department is racing to complete a new 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.

With the economy tumbling and American troops fighting in Iraq and Afghanistan, President Bush has promised to cooperate with Mr. Obama to make the transition "as smooth as possible." But that has not stopped his administration from trying, in its final days, to cement in place a diverse array of new regulations.

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.

Mr. 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 Mr. Obama plans to look at a number of executive orders issued by Mr. Bush.

A new president can unilaterally reverse executive orders issued by his predecessors, as Mr. 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, Mr. Obama sharply criticized the regulation of workplace hazards by the Bush administration.

In September, Mr. Obama and four other senators introduced a bill that would prohibit the Labor Department from issuing the rule it is now rushing to complete. He 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 proposal.

"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, Mr. Sequeira 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 like 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 like silica, beryllium and diacetyl, a chemical that adds the buttery flavor to some types of microwave popcorn.

The proposal applies to two agencies in 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. In some cases, OSHA has done that, but it is not required to do so.

The Bush administration and business groups said the rule would codify "best practices," ensuring that health standards were based on the best available data and scientific information.

Randel K. Johnson, a vice president of the United States Chamber of Commerce, said his group "unequivocally supports" the proposal because it would give the public a better opportunity to comment on the science and data used by the government.

After a regulation is drafted and formally proposed, Mr. Johnson said, it is "all but impossible" to get OSHA to make significant changes.

"Risk assessment drives the entire process of regulation," he said, and "courts almost always defer" to the agency's assessments.

But critics say the additional step does nothing to protect workers.

"This rule is being pushed through by an administration that, for the last seven and a half years, has failed to set any new OSHA health rules to protect workers, except for one issued pursuant to a court order," said Margaret M. Seminario, director of occupational safety and health for the A.F.L.-C.I.O.

Now, Ms. Seminario said, "the administration is rushing to lock in place requirements that would make it more difficult for the next administration to protect workers."

She said the proposal could add two years to a rule-making process that often took eight years or more.

Representative George Miller, a California Democrat who is chairman of the House Committee on Education and Labor, said the proposal would "weaken future workplace safety regulations and slow their adoption."

The proposal says that risk assessments should include industry-by-industry data on exposure to workplace substances. Administration officials acknowledged that such data did not always exist.

In their letter, Mr. Obama and other lawmakers said the Labor Department, instead of tinkering with risk-assessment procedures, should issue standards to protect workers against known hazards like silica and beryllium. The government has been working on a silica standard since 1997 and has listed it as a priority since 2002.

The timing of the proposal appears to violate a memorandum issued in early May by Joshua B. Bolten, the White House chief of staff.

"Except in extraordinary circumstances," Mr. Bolten wrote, "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 Nov. 1, 2008."

The Labor Department has not cited any extraordinary circumstances for its proposal, which was published in the Federal Register on Aug. 29. Administration officials confirmed last week that the proposal was still on their regulatory agenda.

The Labor Department said the proposal affected "only internal agency procedures" for developing health standards. It cited one source of authority for the proposal: a general "housekeeping statute" that allows the head of a department to prescribe rules for the performance of its business.

The statute is derived from a law passed in 1789 to help George Washington get the government up and running.

The Labor Department rule is among many that federal agencies are poised to issue before Mr. Bush turns over the White House to Mr. Obama.

One rule would allow coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys. Another, issued last week by the Health and Human Services Department, gives states sweeping authority to charge higher co-payments for doctor's visits, hospital care and prescription drugs provided to low-income people under Medicaid. The department is working on another rule to protect health care workers who refuse to perform abortions or other procedures on religious or moral grounds.

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