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Friday, July 25, 2008

Occupational Risk Assessment Rule Revealed

The Washington Post has obtained a copy of the mysterious Department of Labor risk assessment rule that has been the subject of much speculation over the past couple weeks (see this post for more). The rule would require the Occupational Safety and Health Administration and the Mine Safety and Health Administration to conduct their risk assessments for occupational health hazards in certain ways. Based on an initial reading, Reg•Watch sees four main problems:

The first two flaws reek of those contained in a White House Office of Management and Budget proposal on risk assessment released in 2006 which was subsequently criticized by the National Academies of Science and later withdrawn. First, the rule would require the subagencies to identify a central risk estimate. A central risk estimate takes the high end and the low end of a risk prediction and averages them.

That would mark a departure from current practice in which the agencies identify the maximum likelihood a risk will threaten worker health. This allows OSHA and MSHA to error on the side of caution, which federal law requires them to do. The maligned OMB risk assessment proposal also advocated for central risk estimates, but the NAS criticized the approach.

Second, the rule would require OSHA and MSHA to attempt to quantify the uncertainty in their risk assessments. Scientific studies like risk assessments can never be 100 percent certain, and the constant evolution of scientific knowledge makes the quest to erase uncertainty a futile one. The OMB proposal also urged agencies to quantify the level of uncertainty in their studies. While NAS acknowledged the attempt to quantify uncertainty is common and advancing in its sophistication, it questioned its usefulness to decision makers.

The last two flaws are interrelated. The rule would add a new step to the standard-setting process for occupational health rules. OSHA and MSHA will now have to publish an Advanced Notice of Proposed Rulemaking before they can publish a Notice of Proposed Rulemaking. The ANPRMs will solicit public opinion on the risk assessments the agencies prepare in advance of setting health standards. While public opinion is a good thing, the ANPRM-requirement will add an extra step to the occupational standard-setting process (a process that's plenty long as it is).

Finally, the new rule would force OSHA and MSHA to alter their assumptions when attempting to calculate risk. The subagencies would have to use the ANPRM to ask industry for data on how long workers stay in their jobs. Currently, the agencies assume a work-life of 45 years in order to assure maximum protection for those workers who are subject to a given risk for the longest period of time. Under the rule, the agencies would have to develop a new work-life statistic for individual industries, further complicating and slowing the rulemaking process. Furthermore, if the agencies assume a shorter work-life in their risk assessments, the subsequent health standards may be weakened and not fully-protective of long-term workers.

Senior political officials in the Department of Labor and their friends in OMB are attempting to rush through this regulation before President Bush leaves office. The draft version obtained by The Post is currently under review at OMB's Office of Information and Regulatory Affairs. No word yet on when the Labor Department will propose the rule (or maybe officials will try to go directly to the final rule stage). Rep. George Miller (D-CA) has pledged to introduce legislation that would stop the rule from taking effect. Stay tuned to Reg•Watch for updates or email us with your thoughts on the rule.