FYI - OSHA Risk Rule

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OMB Signs Off On OSHA's Controversial Risk Assessment Rule

The White House Office of Management and Budget approved OSHA's

controversial risk assessment rule Tuesday (Aug. 26) " consistent with

change, " meaning certain revisions were made by the office. The rule,

drafted secretly by the Labor Department, has been sharply criticized by

unions and industrial hygienists who fear it could lead to less-stringent

OSHA standards, spur a reopening of existing standards, and pose new hurdles

in the already slow-paced regulatory process.

The rule allows the agency to sidestep historical risk assessment measures

in favor of industry-by-industry exposure calculations.

OMB has not specified the changes it made to the rule, which the Labor

Department drafted without going through the normal notice and comment

rulemaking process.

While stakeholders await the final rule, an industry lawyer told Inside OSHA

the proposal could give OSHA the opportunity to revisit existing safety

standards and rewrite them based on the new provisions. Given the difficulty

of drafting regulations, however, such reassessments remain very unlikely,

both industry and labor sources said.

" There's a theoretical possibility, " Baruch Fellner, an attorney with

Gibson, Dunn & Crutcher LLP, said. " But probably not. OSHA has so many

problems moving regulations as it is, it would never happen. "

But Rick Melberth, director of federal regulatory policy at OMB Watch, a

nonprofit research group that advocates for transparency within OMB, says

federal agencies could use a number of mechanisms to revisit risk

assessments for existing standards under the new rule, including the

Regulatory Flexibility Act, Data Quality Act and Small Business

Administration's Office of Advocacy's Regulatory Review and Reform

initiative.

The RFA requires federal agencies to review existing rules every 10 years

and revise those deemed overly burdensome, duplicative or longer than

necessary. Like the RFA, the Office of Advocacy's r3 initiative, implemented

last year, produces a list of rules nominated by small businesses for

streamlining or elimination. Finally, the Data Quality Act, passed by

Congress in 2000, requires federal agencies consider challenges from

industry regarding the science used to develop regulations.

Another possibility includes an industry lawsuit requesting a reevaluation,

he said.

" There are a whole series of ways in which reevaluations might be

triggered, " Melberth told Inside OSHA.

.......................................................................

" Tony " Havics, CHMM, CIH, PE

pH2, LLC

5250 E US 36, Suite 830

Avon, IN 46123

www.ph2llc.com

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