Yesterday, Reg•Watch blogged about how Nancy Pelosi and other Democrats are calling for the resignation of the acting-chair of the Consumer Product Safety Commission, Nancy Nord. Without Nord, CPSC would be unable to conduct formal business likely making consumer product problems worse for Americans, at least in the short term.

Calling for Nord's resignation is problematic for another reason too. The Democrats are now shifting attention to a personal political battle and away from steps Congress is taking to improve product safety.

Lost in the battle between Nord and the Democrats is news that the Senate Commerce Committee passed a proactive, bipartisan bill which would make sweeping positive changes at CPSC — the very bill that started the battle in the first place.

Yesterday afternoon, the committee approved with bipartisan support the CPSC Reform Act of 2007 (S. 2045). Among other things, the bill would:

• Dramatically increase the budget and staffing at CPSC;
• Require third-party testing and certification for children's products;
• Ban lead in children's products; and
• Enable CPSC to levy greater fines on delinquent manufacturers.

Until Nord began illogically opposing this legislation and Democrats began calling for her resignation, the debate over improving consumer product safety had been positive and constructive. The CPSC Reform Act of 2007 emerged in that climate.

CPSC officials recognized they could not adequately fulfill their mission with the resources at hand, and Congress recognized it had been somewhat negligent in pursuing policy to improve the situation. Industry groups and manufacturers also joined the call for more resources and regulatory authority at CPSC recognizing everyone benefits when product safety is assured.

Nord and Democrats should get back to a proactive debate if they intend to solve the problems of our product safety regulatory system.

As Reg•Watch blogged this morning, CPSC Commissioner Nancy Nord is lobbying against a CPSC reform bill that would strengthen the agency's authority and increase its budget.

In light of Nord's lobbying, congressional Democrats, including Speaker of the House Nancy Pelosi, are calling for Nord's resignation, according to the Associated Press.

While Nord's resignation may allow Democrats to score some political points, it would actually make the situation worse for American consumers. Without Nord, two of the three commissioner posts at CPSC would be vacant. With only one commissioner, CPSC would not have the voting quorum necessary to conduct formal business. That would mean no mandatory recalls and no new regulations — including a regulation banning lead in toys which would be mandated if Congress passed the CPSC reform legislation in its current form.

The inability to conduct formal business would be particularly frustrating because CPSC just regained its voting quorum on August 3. When the former head of CPSC left in July 2006, under federal law, the agency was able to operate with a temporary quorum for six months. The temporary quorum expired in January. Fortunately, Sen. Mark Pryor (D-AR) included a provision in an unrelated bill which renewed the six month temporary quorum starting Aug. 3 when the bill was signed into law.

President Bush is certainly to blame for not filling the existing vacancy 13 months after it occurred; but Nord's resignation would only make matters worse. Bush could then go the remainder of his term and never fill the commission with new appointees and render CPSC useless. Based on seven years of anti-regulatory policy, a useless CPSC may be Bush's favorite kind. While Nord's position on the CPSC reform legislation is ridiculous, her ouster would be playing right into Bush's hands.

Reg•Watch Update:"Senate Panel Moves CPSC Reform Act"

Last week, Reg•Watch blogged about an OSHA rule currently under review by the White House Office of Information and Regulatory Affairs (OIRA). The rule would require employers to pay for protective equipment for their employees.

Yesterday, Rep. George Miller (D-CA and chairman of the House Education and Labor Committee) and Rep. Lucille Roybal-Allard (D-CA and member of the appropriations committee with jurisdiction over OSHA) wrote to OIRA Administrator Susan Dudley expressing their concern with the White House's review of the rule. (Read the letter here.)

As Miller and Roybal-Allard point out, OIRA met with representatives from the U.S. Chamber of Commerce and the National Association of Manufacturers (two groups opposing the rule) without the presence of an OSHA official. Like all OIRA meetings about rulemakings, this one occurred behind closed doors. The congressmen write:

A strong comprehensive standard that codifies OSHA's longstanding policy and practice that employers pay for safety equipment is necessary to protect the health and safety of American workers. It should not be weakened through exclusive backdoor meetings between OMB and industry representatives.

The current head of the CPSC is lobbying against legislation that would strengthen her agency, The New York Times reports:

On the eve of an important Senate committee meeting to consider the legislation, Nancy A. Nord, the acting chairwoman of the Consumer Product Safety Commission, has asked lawmakers in two letters not to approve the bulk of legislation that would increase the agency's authority, double its budget and sharply increase its dwindling staff.

Ms. Nord opposes provisions that would increase the maximum penalties for safety violations and make it easier for the government to make public reports of faulty products, protect industry whistle-blowers and prosecute executives of companies that willfully violate laws.

Nord's position is peculiar because, in a September Senate hearing, she recognized the depleted resources of CPSC and faulted Congress for neglecting the agency for so long. The Times insinuates Nord may be coordinating her efforts with the White House:

Ms. Nord's opposition to important elements of the legislation is consistent with the broadly deregulatory approach of the Bush administration over the last seven years. In a variety of areas, from antitrust to trucking and worker safety, officials appointed by President Bush have sought to reduce the role of regulation and government in the marketplace.

Tony Fratto, a White House spokesman, said that Ms. Nord had not coordinated her effort to kill the legislation with the White House. But he said that the administration shared many of her concerns.

Reg•Watch Update: "Politicking between Democrats and Nord Threatens CPSC"

As OMB Watch recently reported, EPA is preparing to announce the regulatory scheme it will pursue for regulating greenhouse gas emissions in accordance with the Supreme Court's April decision which said greenhouse gases could be considered a pollutant under the Clean Air Act.

An EPA official has reportedly indicated the agency will pursue a regulatory scheme similar to that of California and the other states, wherein the agency would set targets to reduce emissions over time, according to BNA news service (subscription). More information on EPA's plans may surface when the agency releases its annual Regulatory Plan later in 2007.

EPA may only be in the early stages of a rulemaking, but the White House is already all over this like white on rice. As Frank O'Donnell at the Blog for Clean Air points out, the White House Office of Information and Regulatory Affairs has already held at least four meetings regarding potential greenhouse gas emissions regulations.

The list of attendees does not engender much confidence in the outcome of the rule. In addition to government personnel from EPA, USDA and the Departments of Transportation and Energy, OIRA has met with Shell, Frontier Oil, Hyundai, Nissan, Honda, Toyota, and some power companies from Nebraska.

Reg•Watch will wait patiently to see if OIRA invites anyone from the environmental, public health or energy security communities to solicit input.

One of the OIRA meetings also included a representative from the Vice President's Office. The Bush White House has kept Cheney's presence in these meetings to a minimum and generally only brings in a representative from the VP's office for the most significant of agency regulations.

Thanks to the Pump Handle blog for pointing out this story. The National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce are lobbying the White House, potentially with the aim of derailing an important worker safety rule.

The Pump Handle has some background on the rule:

More than 8 years ago, OSHA proposed a rule designed to clarify that employers are supposed to provide and pay for [personal protective equipment (PPE)] . . . Under Bush's Labor Department, a final version of the rule was in perpetual limbo until two labor unions filed suit in January 2007 to compel OSHA to issue it.

OMB's Office of Information and Regulatory Affairs (OIRA) began reviewing the rule on Sept. 10. Although OSHA and Department of Labor officials have committed to issuing the final rule in November, OIRA could continue its review of the rule into the new year under the rules of Executive Order 12866, Regulatory Planning and Review.

Meanwhile, on Oct. 23, officials from NAM and the Chamber of Commerce met with officials from OMB to discuss the rule. Because these meetings occur behind closed doors, it is unlikely the public will ever know what was discussed.

What we do know is that no official from OSHA was present. E.O. 12866 requires a representative from the appropriate agency (in this case OSHA) to attend these meetings or, if a representative cannot attend, requires the public be notified as to why no agency official was present. No explanation has been made public.

Regular readers of Reg•Watch may remember a similar story surrounding OMB's review of EPA's national ambient air quality standard for ozone. In that instance, no EPA official was present at a meeting featuring lobbyists from the Chemical Industry Institute and the Auto Alliance.

Reg•Watch hopes this is not becoming a trend with OMB reviews.

Reg•Watch Update: "Congressmen Press Dudley on Review of OSHA Rule"

Yesterday, Reg•Watch blogged about how the White House Office of Management and Budget made significant edits to the congressional testimony of Julie Gerberding, the head of the CDC. Gerberding testified before the Senate on the public health impacts of climate change.

The health and policy blog GoozNews has another take on the issue. The blog points out that the blame lies not only with the White House but with Gerberding herself. Check it out: Gerberding and Her Censors

Every two weeks, in OMB Watch's e-newsletter The Watcher, we analyze a few recent issues in regulatory policy. Here are the articles from the October 23 issue:

While Feds Dither, States Move to Regulate Greenhouse Gases
Kansas has rejected an air permit for proposed power plants due to the threat of the resulting greenhouse gas emissions. The decision makes Kansas the latest state to take proactive steps to stem greenhouse gas emissions while federal agencies and Congress delay action. Read more...

Bush Administration Tries to Reverse Old-Growth Forest Protection Plan
The U.S. Bureau of Land Management is trying to dismantle a 1994 landmark management plan that balances logging, endangered species and old-growth forest protections. BLM wants to revise the Northwest Forest Plan to allow logging on nearly one million acres of old-growth forest area. The proposed revisions ignore scientific recommendations, and the process appears to have been manipulated by Bush administration officials. Read more...

Report Finds Extensive Noncompliance with Clean Water Act Rules
A new report has found thousands of facilities are out of compliance with the requirements of the Clean Water Act. The report blames declining support for environmental enforcement during the Bush administration as a major cause of the regulatory violations. Read more...

Sign up to receive The Watcher by email here.

Yesterday, Julie Gerberding, head of the Centers for Disease Control and Prevention (CDC), was supposed to testify in front of the Senate Environment and Public Works Committee about the threat global warming poses to public health. Instead, Gerberding spoke in detail of preparedness and health tracking but addressed public health impacts only cursorily.

Gerberding didn't speak of the ways global warming may impact public health because the White House wouldn't let her, as the Associated Press first reported yesterday. While reviewing Gerberding's testimony, the White House Office of Management and Budget cut out seven pages, about half, of the testimony. The removed sections include information on extreme weather events and food and water-borne disease, among other things.

OMB routinely reviews the congressional testimony of executive branch officials. OMB has been reviewing testimony since President Nixon reorganized (and politicized) the office. Although OMB has no explicit legal authority to do so, review and minor edits are commonplace.

Edits to Gerberding's testimony are not minor. In fact, they are appallingly major. Of course, the White House is denying any wrongdoing. According to AP, Press Secretary Dana Perino made this statement: "It was not watered down in terms of its science. It wasn't watered down in terms of the concerns that climate change raises for public health."

That is, quite frankly, a lie. Fortunately, the nonprofit group Climate Science Watch has obtained a copy of the original testimony, so you can compare for yourself.

Climate Science Watch has posted the original draft and the final version submitted to the Senate committee. By comparing the two versions, you can find that with one long highlight and one stroke of the 'Delete" button, OMB removed pages 2-8 in their entirety.

In 1996, Congress passed legislation mandating EPA assess the health impacts of endocrine disruptors — a class of chemicals which affect the way the body regulates mood, growth and development. Until this summer, EPA had made no progress in evaluating the chemicals impacts.

When EPA finally unveiled its endocrine disruptor screening program, which includes risk assessments for evaluating the chemicals, it turned out not to be worth the wait. Critics assailed EPA's program as scientifically flawed and accused the agency of designing experiments to purposefully minimize findings of adverse effects.

Now, the White House Office of Management and Budget is reviewing the structure of the risk assessment and the selection of chemicals that EPA will test.

OMB's Office of Information and Regulatory Affairs (OIRA) generally reviews agency proposed and final regulations. However, because of recent changes President Bush made to the regulatory process, OIRA can now review agency "guidance documents." Guidance documents are an ill-defined class of agency information which may include policy interpretations and the research and supporting materials that go into regulation, like EPA's endocrine disruptor screening program.

It is unclear who made the decision to submit the screening program and list of chemicals for review: EPA or OIRA. It may also turn out to be unclear what changes the review ultimately brings. Because of a gross lack of transparency in the OIRA review process, the public is left in the dark.

Yesterday, Reg•Watch blogged about an amendment introduced by Sen. Wayne Allard (R-CO) which would cut funding for federal programs deemed "ineffective" by the White House Office of Management and Budget.

Last night, the amendment was defeated in a 68-21 vote. It is heartening to see such a resounding defeat as it will make future attempts to push the provision less likely. Thanks to everyone who contacted their senators.

A subcommittee of the Senate Environment and Public Works Committee held a hearing last week on the current state of Superfund, the federal government's toxic waste clean-up program.

Senators and witnesses discussed how the Superfund program has fallen into disrepair under the Bush administration. One major problem has been a lack of adequate funding. In her opening statement, subcommittee chairman Sen. Hillary Clinton (D-NY) said, "The administration has tied itself into knots defending the absurd position that more money would not help all that much. And they have been extremely secretive about this project, keeping information from the public, and stonewalling this committee."

Rena Steinzor, Professor at the University of Maryland School of Law and scholar at the Center for Progressive Reform, testified about the funding shortfalls and the unfortunate consequences: "In constant dollars, revenue appropriated for the Superfund program now stand at levels 40 percent lower than the amounts Congress specified when it last reauthorized the program in 1986."

Steinzor argues the program's budget has been cut even though many Superfund sites pose a serious threat to communities. She points out, as is too often true with environmental impacts, Superfund neglect disproportionately effect poor and minority populations:

Many of these communities are low income and comprised of people of color. Of the 50 sites we studied, 60 percent were located in neighborhoods where households reported median incomes in the range of $40,000 and some 26 percent were in the midst of populations comprised of 40 percent or more racial or ethnic minorities.

Sen. Wayne Allard (R-CO) has introduced an amendment to the Labor-HHS-Education Appropriations bill (H.R. 3043) that would threaten the budgets of important federal programs. The amendment would tie a program's budget to the White House Office of Management and Budget's Program Assessment Rating Tool (PART) — a flawed measure of a program's effectiveness and efficiency.

Allard's amendment would make PART ratings a trigger for budget cuts. If a program is rated "ineffective" by OMB assessors, the budget of that program would be automatically cut by 10 percent.

Imagine the possibilities. If the White House opposed a certain program — even if that program was an exemplar of government virtue and efficiency — OMB could deem the program "ineffective," leading to across the board budget cuts.

This is far from a conspiracy theory. OMB often doles out "ineffective" ratings on flimsy pretenses. Consider EPA's Air Quality Grants and Permitting Program which "support[s] the prevention and control of air pollution at the state and local level" by issuing pollution management permits and research and development grants.

OMB has deemed the program ineffective because it does not currently have efficiency measures in place and because "It is not clear that the current grant allocation methods for program implementation funding or for air pollution monitoring efforts are adequate." (Who among us does not fear the horrors of unclear grant allocation methods...)

Allard's amendment is bad policy that will likely yield bad results. The Senate may consider the amendment as it debates the appropriations bill today and tomorrow. Allard's amendment may come up for debate as soon as this afternoon. You can tell your senator to oppose Allard's amendment by calling or emailing. (Senate switchboard: 202-224-3121)

The Congressional Research Service (CRS) has released a report (available from OpenCRS.org) on e-rulemaking, which it defines as "the term used to describe the use of information technology (IT) to facilitate a range of activities related to the process of developing regulations." CRS specialist Curtis Copeland discusses a recent history of e-rulemaking and challenges the executive branch faces in implementing and expanding e-rulemaking.

The report also extensively discusses Regulations.gov, a federally-run website where the public can search for rules and supporting information and submit comments.

Anyone who has used Regulations.gov knows it can be frustrating. Sometimes finding a proposed rule and commenting on it is simple. Other times, even if you know exactly what you are looking for, you can become lost in the volumes of information provided through the database.

CRS conducted tests to judge the ease of navigability on the site. A description of one test is similar to the experiences of many users of Regulations.gov:

CRS also attempted to locate information on an EPA rule changing the emission standards for mercury. Using the "Search Documents" function, identifying EPA, using the "Subject" category, and putting "mercury" in the associated box led to a list of possible dockets, the first of which was for a January 2004 proposed rule.131 The docket contained a total of 6,902 documents across 277 pages of material. No index was provided, and the contents were not organized by type of document (e.g., agency generated documents versus public comments) or chronologically.

The report includes an astute observation from Professor Richard Parker, a professor at the University of Connecticut School of Law and an expert in regulatory issues: "too much information — badly disorganized — is not much better than too little."

Wednesday, the Occupational Safety and Health Administration held a public meeting on its plans to regulate diacetyl. Workers exposed to diacetyl, a chemical used to give microwave popcorn its buttery flavor, are at risk for a severe and sometimes fatal lung disease called bronchiolitis obliterans.

Despite mounting evidence of the dangers of diacetyl and calls for action from physicians and occupational health experts, OSHA is refusing to issue an emergency temporary standard. Instead, OSHA has chosen to pursue rulemaking through the traditional, but protracted, process.

Participants at the meeting discussed the nature of the rulemaking. Options include setting a permissible exposure limit and promulgating a broader regulation to ensure as much protection as possible.

Regulators do not have a 100 percent complete picture on the nature of diacetyl, and pinpointing a safe level of exposure may be difficult at this point. But while OSHA has tended to use uncertainty as a reason to avoid action, Peg Seminario, director of safety and health for AFL-CIO, recognizes the urgency of the issue and the need for pragmatic policy. From a BNA news service (subscription) article:

"Let's not look for an answer to every question." If a standard deals with exposure assessment, control measures, aggressive medical surveillance with a lot of education and outreach, and respiratory protection, Seminario said, "you have something to protect people immediately."

OSHA officials would not outline a timetable for the rulemaking, according to BNA.

Congress could spur action in the near future. The House has already passed legislation which would mandate OSHA issue an interim standard within 90 days. A companion bill has yet to be offered in the Senate.

For months, the White House Office of Information and Regulatory Affairs has been blocking the finalization of a rule that would enhance protections for the North Atlantic right whale. The National Oceanic and Atmospheric Administration (NOAA) is pursuing the rulemaking because the right whale is one of the most critically endangered marine species in the world.

Under Executive Order 12866, Regulatory Planning and Review, agencies are required to submit significant rules to the White House in order to give OIRA an opportunity to review and edit the rule.

However E.O. 12866 prescribes a time limit for the OIRA review period. OIRA is to complete its review within 90 days of receiving the rule from the agency. In consultation with the agency, OIRA may extend the review period once for 30 days. NOAA submitted the draft of the final rule on Feb. 20, 2007 which means OIRA has exceeded the time limit by 118 days and counting.

OIRA is holding up another NOAA rule as well. On May 29, NOAA submitted a draft proposed rule in which the agency hopes to expand protections for krill. Krill are shrimp-like creatures that serve as an important source of food for whales and other marine animals. Krill are the most abundant organism on earth (in terms of mass) but the species is in decline, according to an episode of Planet Earth Reg•Watch recently saw on the Discovery Channel.

OIRA generally places rules into three categories: economically significant (those expected to have an economic impact of $100 million or more); other significant (those that interfere with the actions of other agencies, materially alter budgetary impacts, or raise novel legal or policy issues); and nonsignificant (those OIRA wants to review even though they fail to meet any of the aforementioned criteria.)

The right whale rule is considered economically significant — the kind of rule OIRA generally pays lots of attention to. But the krill rule is considered nonsignificant which means the rule drew OIRA's attention for non-economic reasons.

Of course, because of the murkiness of the OIRA review process, the public is shut out of all proceedings. Therefore, it is currently impossible to know what OIRA has been doing with the rules all this time.

Yesterday, The New York Times ran a story on the large number of senior administration officials who are serving on an interim basis. Senior positions in many agencies — including the cabinet positions of Attorney General and secretaries of Agriculture and Veterans Affairs — are currently filled by acting-secretaries, acting-deputies, acting-counsel, etc.

Paul C. Light, professor of public service at NYU, says, "You've got more vacancies now than a hotel in hurricane season."

While vacancies can be expected, especially towards the end of an administration, President Bush appears more inclined than his predecessors to use interim appointees or allow vacancies to remain unfilled, according to the article.

Senior presidential appointees in federal agencies make important decisions on a wide array of issues including agency regulatory activity. By staffing these positions with interim appointees who have not been subject to Senate confirmation, the Bush administration is able to escape Congressional oversight and public accountability to a certain extent.

The acting status of so many officials also weakens agencies, according to Light. "One of the things we know is that they just aren't as effective as Senate-confirmed appointees. They just don't have the standing in their agencies. Acting people are very shy about making decisions," Light states in the article.

Edwin Foulke, Administrator of the Occupational Safety and Health Administration, says the agency will not pursue an emergency rulemaking for diacetyl but will instead choose to let industry police itself, according to Inside OSHA (subscription). Workers exposed to diacetyl, a chemical used to give microwave popcorn its buttery flavor, are at risk for a severe and sometimes fatal lung disease called bronchiolitis obliterans.

Foulke is making a legal argument against pursuing an emergency standard. According to the Occupational Safety and Health Act, OSHA can only issue emergency standards if workers face a "grave danger" and if the "standard is necessary to protect employees from such danger." Since the popcorn industry is voluntarily phasing out use of diacetyl, Foulke argues the standard is unnecessary.

OSHA's current position on an emergency standard for diacetyl is indicative of a trend in President Bush's approach to public protection. Voluntary industry standards can serve as a welcome and effective compliment to strong federal regulations, but the Bush administration has consistently viewed them as a substitute for government involvement.

One major problem with using voluntary industry standards as a substitute for regulation is the ensuing lack of accountability. In the case of diacetyl, the popcorn manufacturing industry is approaching the issue with good intentions; but who know what the future will hold? Federal regulations allow agencies to monitor compliance and pursue corrective action in the form of fines or, in some instances, criminal prosecutions.

Congress also plays a role. If an agency is doing a poor job of enforcing regulation, Congress can hold oversight hearings, strengthen existing statutes, or use its power of appropriations to hold the agency accountable. Voluntary standards strip government of these important tools. And when government is cut out of the process, so too is the public.

As Reg•Watch blogged this morning, the Environmental Protection Agency is all talk when it comes to enforcement of environmental regulations. A new report from U.S. PIRG titled Troubled Waters highlights the deficiencies in EPA's enforcement of Clean Water Act regulations.

Facilities that want to discharge pollutants into navigable waterways must first receive a permit from EPA. EPA uses the permit system to limit discharges and to monitor the polluting activity of the facilities.

The report finds, "Nationally, more than 3600 major facilities (57%) exceeded their Clean Water Act permit limits at least once between January 1, 2005 and December 31, 2005." Furthermore, the violations tend to be significant: "Major facilities exceeding their Clean Water Act permits, on average, exceeded their permit limits by 263%, or nearly four times the allowed amount."

One problem the report cites is poor enforcement during the Bush administration. President Bush has consistently pushed budgets which slash the agency's enforcement funding. Whether it's due to a lack of funding or a lack of interest, EPA has underwhelmed in enforcing the Clean Water Act:

In 2007, the EPA Office of Inspector General reviewed 56 major facilities in long-term significant non-compliance with Clean Water Act NPDES permits between July 2002 and June 2005. The Inspector General found that EPA and states did not take suitable enforcement actions to address all of the violations at 21 of the facilities and took no enforcement actions at eight of the facilities. At 35 of the facilities reviewed, none of the enforcement actions that the Inspector General's office could assess were taken in a timely manner, leading facilities to continue to violate their permits for extended periods of time.

As Reg•Watch mentioned earlier, officials claim the agency is focusing on polluters who leave a "big environmental footprint" and on "chronic offenders who are out of compliance." Too bad they're all talk.

The Bush administration has caught some flack recently for its poor record of enforcing environmental regulations and for the timidity with which it pursues prosecution of the nation's worst polluters. A Sept. 30 Washington Post article reported, "The number of environmental prosecutions plummeted from 919 in 2001 to 584 last year."

With that in mind, it was refreshing to see EPA negotiate a big environmental settlement which will go a long way in reducing air pollution. On Oct. 9, EPA reached a settlement with American Electric Power (AEP) in which the utility agreed to pay a $15 million civil penalty and "to undertake approximately $4.6 billion worth of pollution control measures at its existing plants over the next decade," according to the Natural Resources Defense Council (NRDC).

Unfortunately, there is a seedy underbelly to the settlement. According to today's Washington Post, EPA pushed to include a waiver which will grant AEP a get-out-of-jail-free card for future violations.

Buried in paragraph 133 of the [settlement] ... is a section that assures AEP that the government will not pursue any action stemming from the "modification" of these plants between now and Dec. 31, 2018...

The administration has repeatedly questioned the value of enforcing the current rules, and the settlement guarantees that AEP will not face federal prosecution if its activities over the next decade trigger this sort of federal review.

After the Sept. 30 Post article on the administration's lax enforcement efforts, EPA officials rushed to the agency's defense. EPA Deputy Administrator Marcus Peacock said, "My regular meetings with the enforcement office have left me with the impression they are doing a really good job." The head of EPA's Office of Enforcement and Compliance Assurance, Granta Nakayama, said the agency is going for quality, not quantity, by focusing on polluters who leave a "big environmental footprint" and on "chronic offenders who are out of compliance," according to BNA news service (subscription).

But if the AEP settlement is any indication, Nakayama is just blowing hot air. According to NRDC, "The Columbus, Ohio-based AEP owns 25 coal-fired electric plants in the United States, and was the number one industrial emitter of carbon dioxide, nitrogen oxides and sulfur dioxide pollution in the country, based on 2004 data." If that's not a big environmental footprint, what is?

Reg•Watch Update: "EPA's Lax Enforcement Fouls Water Too"

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

Bush Administration Delays Import Safety Changes While Congress Debates Solutions

States Sue Bush Administration over New Children's Health Insurance Requirements

House Energy and Commerce Committee Proposes Climate Change Legislation Framework

Numerous product recalls in 2007, often involving items regulated by the Consumer Product Safety Commission, have been well-publicized. But as the Los Angeles Times reports today, the announcement of a recall is not the end of the story.

In a recent Senate hearing, Toys 'R' Us CEO Jerry Storch discussed his company's system for ensuring recalled products are not sold to consumers. The company uses bar codes to prevent potentially dangerous products from leaving its warehouses or from being purchased at registers.

But what about products that consumers have already purchased? Low public awareness is a major impediment to effective recalls, according to the LA Times. When consumers are aware of recalls, they may be more inclined to simply throw away defective products, rather than return them to the manufacturer.

In the article, CPSC spokesman Scott Wolfson is upfront about the difficulty: "We do a very good job of getting dangerous products off store shelves, but our greater challenge is to get dangerous products out of people's homes."

Yesterday, Congress took a step in the right direction. The House passed a bill (H.R. 1699) which would require manufacturers of "durable" children's products, e.g. cribs and high chairs, to include product registration cards. If consumers turn in these cards, they would receive recall notices in the mail should a problem with the product arise. The policy is modeled after the system currently in place for car seats.

Other advocates would prefer CPSC to develop a system closer to that of auto regulators:

Vehicle recall response rates are among the highest, at about 72% in recent years, said Eric Bolton, spokesman for the National Highway Traffic Safety Administration.

"The rest of the consumer product system has never set up its own system and hasn't been required to do so," said Joan Claybrook, former head of the national traffic safety board and now president of the Public Citizen safety and consumer rights lobbying group in Washington. "The system itself is defective."

Lack of publicly available information is also an issue making it more difficult for advocates and concerned citizens to uncover problems:

The Consumer Product Safety Commission does not release statistics on the number of products returned by consumers. Reports submitted to a House subcommittee last month by 19 national retailers involved in lead-paint recalls revealed that only small percentages of items were being returned.

OMB Watch is preparing to launch a web-based Regulatory Resource Center, and we need your help in making it useful. We have made a developmental site available here: www.ombwatch.org/regresources.

Please consider taking some time to review the site. If you would like to provide us with feedback, please take our short survey on the appeal and usefulness of the site. We appreciate your feedback.

Our goal is to provide a comprehensive resource for concerned citizens, advocates and decision makers. The Resource Center will provide the public, media, lawmakers and non-governmental organizations with a central location to learn about the federal regulatory process. The Resource Center will include background material as well as advocacy resources for those who want to make their voices heard.

Today, the Consumer Product Safety Commission announced eight more product recalls of children's products. CPSC cites lead contamination as the reason for all eight.

Reg•Watch has been working on some back-of-the-envelope calculations on the number of children's product recalls involving lead contamination. So far this year, CPSC has announced 58 recalls accounting for more than 12 million individual products. (More than 11 million of the products — or about 92 percent — were manufactured in China.) These have all been voluntary recalls which CPSC normally negotiates with retailers.

In 2006, CPSC announced 17 recalls of children's products for lead contamination totaling less than three million individual products. That's about a 320 percent increase in recalled products from last year to this year...and we still have almost three months left.

Yesterday, 22 members of the House of Representatives wrote to EPA Administrator Stephen Johnson urging him to tighten the national standard for ozone, a.k.a. smog. In June, EPA proposed a range of 0.070 parts per million (ppm) to 0.075 ppm for the new standard. The current standard is 0.084 ppm.

While any standard within EPA's proposed range would be an improvement, it may not be good enough. As the congressmen point out:

The EPA's panel of expert science advisors, the Clean Air Scientific Advisory Committee (CASAC), unanimously found that the smog standard "needs to be substantially reduced to protect human health, particularly in sensitive subpopulations." . . . CASAC called for [a] standard of .060 to .070 ppm. Experts on lung health, including the American Thoracic Society and the American Lung Association, are calling for a standard of .060 ppm given the strength of the scientific evidence.

The congressmen's point is important because the Clean Air Act requires EPA to periodically revise the standard in order to protect public health and to make decisions that "reflect the latest scientific knowledge." The bipartisan group (16 Democrats and six Republicans) concludes by asking Johnson to adopt a standard within CASAC's recommended range.

Unfortunately, the congressmen miss another key aspect of the Clean Air Act. The Act prohibits EPA from considering monetary costs or benefits when setting the standard. EPA must set the standard solely based on public health considerations. Later, when EPA provides the regulated community with guidance on how to use pollution reduction methods to meet the standard, economics are considered.

Nonetheless, the letter makes an economic argument: "It is interesting to note that studies have shown that there are large economic benefits to lowering the air pollution burden on public health and the environment."

Even when a tighter ozone standard would be an economic boon, EPA cannot consider the monetary benefits. An economically beneficial regulation may be good policy, but it is inappropriate to argue the point here, based on the language in the Clean Air Act. The debate over EPA's revision to the ozone standard must be one of science and public health, not economics.

In 2004, the Interior Department's Bureau of Land Management (BLM) learned of structural problems at the Crandall Canyon mine in Utah but did not share the information with mine regulators, according to the Associated Press. An August 6 collapse in the mine has left six miners trapped and presumed dead. Days later, three rescue workers died attempting to retrieve the trapped miners.

According to the AP article, "The [BLM] inspector, Stephen Falk, said that further mining by pulling out the pillars would be 'untenable.' " Unfortunately, "The BLM report was done for internal use only."

The BLM report was announced today in a hearing of the Senate Health, Education, Labor and Pension Committee. At the hearing, an official from the Mine Safety and Health Administration (an agency in the Labor Department) admitted the report could have helped inform decisions at the agency.

Critics have also raised concerns MSHA did not fulfill its responsibility to protect miners. MSHA approved a mining plan for Crandall Canyon in June 2007, just months after serious structural problems forced the operators to abandon a work area only 900 feet from where the miners are trapped.

The controversy underscores the need for better sharing and disclosure of government information — both among agencies and with the public. Sen. Ted Kennedy, chairman of the committee which held today's hearing, said, "This is like the CIA not getting information from the FBI when we're getting attacked by terrorists."

Posted by Matt Madia, 04:16:18 PM

Monday, October 01, 2007