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on risk assessment released in 2006 which was subsequently criticized by the National Academies of Science and later withdrawn.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.

Details about a mysterious Department of Labor (DOL) rule on occupational health risks are beginning to surface. In today's Washington Post, reporter Carol Leonnig sheds new light on the situation.

The Post obtained an early draft of the rule which Reg•Watch and others have been speculating about for the past couple weeks. The Post's account gives credence to some of the suspicion:

[The rule] would call for reexamining the methods used to measure risks posed by workplace exposure to toxins. The change would address long-standing complaints from businesses that the government overestimates the risk posed by job exposure to chemicals.

The rule would also require the agency to take an extra step before setting new limits on chemicals in the workplace by allowing an additional round of challenges to agency risk assessments.

Including an opportunity for additional challenges is likely an effort to give industry trade groups and the anti-regulatory crowd an opportunity to attack and undermine the science that serves as the basis for occupational health protections.

Critics say the rule is being pushed through under Bush's tenure in order to tie the hands of a future administration. The Post article quotes David Michaels, an expert on public health and industry influence in government science, as saying: "This is a guarantee to keep any more worker safety regulation from ever coming out of OSHA. This is being done in secrecy, to be sprung before President Bush leaves office, to cripple the next administration."

The easy path the rule has taken through the usually daunting regulatory labyrinth raises further suspicion. Leonnig describes several issues which indicate the Bush administration is intentionally hiding its activities on this rule from the public.

First, the rule was not included in the Labor Department's most recent Unified Agenda. The Unified Agenda is a semiannual listing of all the regulatory actions an agency is considering with an identification of their status, i.e. long-term action, proposed rule, or final rule. The Unified Agenda is often the public's first public indication that the federal government is considering some new rule.

Because the last Unified Agenda came out in April, it is possible that an agency could conjure up new regulatory ideas and then propose the action without prior public notification. But, according to the Post article, that's not the case with DOL's risk assessment rule. When DOL published its most recent Unified Agenda, "a draft was circulating among a small group of advisers, according to a date-stamped copy obtained by The Post."

Second, senior officials in DOL are not even tapping into the wealth of occupational health knowledge within the Department. Politicos in DOL did not consult with the Occupational Safety and Health Administration or the Mine Safety and Health Administration, the two agencies responsible for protecting workers and most likely to be affected by revisions to the occupational risk assessment process.

Instead, "Deborah Misir, a political deputy in Labor's office of the assistant secretary for policy, worked with the OMB to draft a new risk-assessment rule," according to The Post. DOL also paid $349,000 to an outside consultant, Diana Furchtgott-Roth of the conservative Hudson Institute, to study the risk assessment process, The Post reports.

Finally, both DOL and OMB are ignoring a recent memo sent by White House Chief of Staff Josh Bolten that instructed agencies to propose by June 1 any regulation they wish to finalize before the end of the Bush administration. Even though the occupational risk assessment rule has yet to be proposed, OMB and DOL are working together to finalize it by year's end, according to The Post.

The White House framed the Bolten memo as a good government measure, but the shenanigans surrounding the DOL rule — and OMB's endorsement of those shenanigans — clearly shoot a hole through that argument. The memo will have no impact on the White House's ongoing regulatory strategy: stifle any regulations it doesn't like, and surreptitiously hustle through those it does.

Two lawmakers are attempting to shed light on a mysterious Department of Labor rule that may change the way the federal government looks at occupational health risks. As of now, all we know of the rule is its title: "Requirements for DOL Agencies' Assessment of Occupational Health Risks."

While that may sound innocuous, Reg•Watch is always skeptical when the Bush administration (in this case, DOL brass inside the office of Secretary Elaine Chao) wades into the area of risk assessment. The administration tried in 2006 to attack the federal government's entire risk assessment process — where the nature and severity of occupational, environmental, consumer, or other risks are scientifically studied and described. That proposal was shot down by the National Academies of Science.

On July 10, Sen. Ted Kennedy (D-MA), chairman of the Senate Health, Education, Labor, and Pensions Committee, and Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, wrote a letter to Chao pressing for answers on the rule. The chairmen asked Chao to provide them with several pieces of information by July 17. Among them:

• "A copy of the proposed regulation;"
• "The legal authority under which the Department expects to promulgate this regulation;" and
• The Department's timetable for officially proposing and finalizing the rule.

The rule is currently under review at OMB's Office of Information and Regulatory Affairs, according to RegInfo.gov, a government website that tracks White House reviews. OIRA reviews rules under the authority of Executive Order 12866, Regulatory Planning and Review.

Usually, RegInfo.gov provides the public with a description of a rule under review, along with purported legal authority, timetables, and an indication of stakeholders the rule may impact. The DOL rule in question provides none of those factoids — only a title.

In their letter, Kennedy and Miller point out, "This action is highly unusual and contradicts the stated purpose of E.O. 12866 which is 'to make the [regulatory] process more accessible and open to the public.' "

Stay tuned to Reg•Watch for updates.

On Friday, the Environmental Protection Agency finally released its Advanced Notice of Proposed Rulemaking asking for public comment on the issue of greenhouse gas emission regulation. The notice — which is not a formal policy proposal but merely a suggested framework for future action — is accompanied by statements from senior officials from across the Bush administration that disavow the document's substance.

Susan Dudley, head of the White House's regulatory clearinghouse, the Office of Information and Regulatory Affairs, said the policy "cannot be considered Administration policy or representative of the views of the Administration."

Other letters of disapproval came from the heads of the departments of Agriculture, Commerce, Energy, and Transportation, the White House Council of Economic Advisors and the Office of Science and Technology Policy, the Small Business Administration Office of Advocacy, and the White House Council on Environmental Quality.

The ANPRM and the accompanying letters mark the end of a successful campaign, waged primarily by White House officials, to whittle into virtual nothingness any meaningful federal action on greenhouse gas emissions.

After a March 2007 Supreme Court case, Massachusetts v. EPA, found that EPA must regulate greenhouse gas emissions under the Clean Air Act or give good cause as to why it should not, President Bush signed an executive order forming an interagency team to evaluate the case and future regulatory action. EPA Administrator Stephen Johnson promised he would propose a new rule by the end of 2007.

But those promises were merely a mask for the gross deception that was forthcoming. EPA staff spent who-knows-how-many hours preparing a draft proposed rule and an "endangerment finding," a document saying greenhouse gases are detrimental to public welfare. An endangerment finding is a legal trigger for regulatory action under the Clean Air Act.

But acknowledging that global warming poses a danger to society is not this administration's cup of tea; and we know that it has little or no interest in regulations to protect the public.

When EPA sent the documents to OMB for review, OMB officials refused to open the email. Since OMB wouldn't read the documents — the bureaucratic equivalent of sticking your fingers in your ear and yelling, "I can't hear you" — EPA was forced to go back to the drawing board.

Then, in March 2008, Johnson faulted on his earlier promise to propose new federal requirements, instead pledging the agency would publish an Advanced Notice of Proposed Rulemaking to solicit public comment.

But even after White House officials had forced EPA to do as little as possible, they still weren't done meddling with the substance of EPA's work. As the Wall Street Journal recently reported, "The White House's Office of Management and Budget has asked the EPA to delete section of the document that say such emissions endanger public welfare, say how those gases could be regulated, and show an analysis of the cost of regulating greenhouse gases in the U.S. and other countries."

The economic analysis referred to also mysteriously underwent editing that downplayed the economic benefits of regulation, according to The Los Angeles Times:

In a draft of the document completed in May, EPA staff members concluded that regulations reducing greenhouse gas emissions could save $2 trillion through lowered gasoline costs and other benefits over 30 years. In the final document, that figure was slashed more than 50%, to $830 billion. The lower figure is based largely on an estimate that gasoline will cost $2 a gallon over the next three decades, less than half the current price.

Finally, Friday afternoon, the American public received the final slap in the face from the Bush administration which is asking for comments on a document that it does not support, on proposed policy it has no intention of pursuing, and on a problem it is not willing to acknowledge exists.

The White House Office of Information and Regulatory Affairs (OIRA) has rejected an Environmental Protection Agency proposed rule that would encourage the recycling of pesticide containers. EPA has been mulling the proposal for at least a few years.

The rule would establish a national recycling program that would help ensure pesticide containers are rinsed out and properly disposed of. According to EPA, "The proposed regulation is intended to protect human health and the environment by promoting recycling of pesticide containers to reduce the risk of unreasonable adverse effects to public health and the environment that may be associated with certain nonrefillable pesticide containers and the associated residues."

But the White House has rejected the EPA proposal. In a July 3 letter to EPA Deputy Administrator Marcus Peacock, OIRA Administrator Susan Dudley takes exception to the proposal. Dudley says the rule would be too costly and criticizes the agency for not examining other regulatory alternatives.

In a lot of cases, White House interference of this sort can be connected to the wishes of regulated industries. But not this time. On June 25, Dudley and other OIRA staffers, along with EPA's pesticide office, met with CropLife America — the major trade association for the pesticide industry.

CropLife America is advocating in favor of the EPA rule. In the meeting, representatives from the trade group presented OIRA with a list of other companies, trade groups, and state government agencies that also support the rule. The list, available here, is impressive in its length.

So if the rule is as good for public health as EPA claims, and if it is so popular among a diverse group of stakeholders, why would the White House reject it?