The New York Times reports today on the salmonella outbreak in tomatoes that has caused restaurants, grocery stores, and major fast food chains like McDonald's to go tomato-free over the past few days.

Saturday, the Food and Drug Administration (FDA) announced three prominent tomato varieties — red plum, red Roma, and red round — have been implicated in a recent outbreak of a rare strain of salmonella that has sickened scores of people.

A national warning against the consumption of any of the most common types of tomatoes underscores two major problems with our food safety system: tracking and prevention.

According to FDA, illnesses have been reported in 16 states from Connecticut to California. The Times reports an FDA spokeswoman as saying, "We are getting closer to identifying the source or sources."

Considering FDA has known since April about selected incidences associated with the now-wider outbreak, FDA's comments do not engender much confidence. The size of the produce market and the growing complexity of the supply chain make it virtually impossible to track the source of a contaminated batch.

Meanwhile, consumers are left in the dark. Tomato-eaters will have difficulty identifying whether a tomato is from an affected area (FDA says tomatoes from eight states have not been associated with the outbreak) or what they can do to protect themselves. (Click here for more on the public disclosure problem from Andrew Schneider at the Seattle Post-Intelligencer.)

FDA is also ill-equipped to prevent these kinds of outbreaks, now or in the future. From Times reporter Gardiner Harris:

[H]ealth experts said that the many problems that have caused food recalls in recent years, including those involving peanut butter, cantaloupe and spinach, were likely to worsen….

And federal authorities have yet to create a stronger set of rules and enforcement procedures. Many parties — food-safety advocates, food producers, Congressional Republicans and Democrats and even some within the F.D.A. — have said such rules are essential to make food safer.

The massive warning on tomatoes may have persuaded President Bush to finally push some federal funding toward consumer safety. Monday, the White House sent Congress a supplemental appropriations request, asking the legislature to give the FDA an extra $275 million for fiscal year 2009 — about 15 percent more than Bush's initial request.

$125 million of that money is to go toward food safety. The rest would go toward drug safety, medical device safety, and modernizing the agency's workforce.

Over the past few years, the FDA's woes have piled up. The beleaguered agency has struggled to ensure the safety of the nation's food and drug supply. Imported products have proved increasingly vexing; the agency has been unable to adapt its monitoring and enforcement practices in a rapidly changing world economy.

Much of FDA's plight has been attributed to a lack of resources, particularly a lack of inspectors. While Congress has expressed bipartisan support in favor of a dramatically increased budget, the Bush administration, until now, has been lukewarm on the idea.

Lawmakers welcomed the increased budget request but want it implemented post-haste:

[Sen. Arlen] Specter said that administration delays in seeking money for food protection efforts at the food and drug agency amounted to "criminal negligence."

"The failure to have these inspections is subjecting people to bodily injury and death," said Mr. Specter, who sent a letter to Mr. Leavitt on Tuesday insisting that the additional money for the F.D.A. should be included in a supplemental request this year, not in next year's budget.

The head administrator for EPA's Midwest Region, Mary Gade, resigned last week amid a political firestorm. Aides to EPA Administrator Stephen Johnson "told her to quit or be fired by June 1," according to the Chicago Tribune.

Gade claims she was forced out because she was trying to make Dow Chemical clean-up soil and sediment contaminated with dioxin, a highly toxic chemical and known carcinogen, in Saginaw Bay and Lake Huron. Dow has been dragging its feet on efforts to clean up the chemical which is emitted by its Midland, MI plant. Gade ordered Dow to begin dredging last year "when it was revealed that dioxin levels along a park in Saginaw were 1.6 million parts per trillion, the highest amount ever found in the U.S," according to the Tribune.

Gade was a Bush appointee, and a former corporate attorney who "had represented big companies like Dow against environmental regulators." Senior EPA officials are staying tight-lipped about Gade's resignation, but she told the Tribune she is certain it is a result of her aggressive pursuit of Dow: "On Thursday, Gade said of her resignation: 'There's no question this is about Dow. I stand behind what I did and what my staff did. I'm proud of what we did.' "

Ultimately, it doesn't matter whether Dow was the reason Gade was fired. EPA brass could say they fired Gade for stealing paper clips, but the damage is done: EPA officials on the ground will think twice next time they are considering aggressively enforcing environmental regulations, for fear of losing their jobs.

Sunday's Cleveland Plain Dealer ran an article by Stephen Koff highlighting a problem OMB Watch has been focusing on for the past few months: declining budgets and staffing levels at federal regulatory agencies.

As a result, agencies are finding it difficult to fulfill their missions, and regulatory failures like collapsing mines, recalled toys, and contaminated food dominate headlines. From the article:

The broader safety net - protecting children from dangerous toys, adults from tainted spinach and beef, factory workers from chemical dust that can sicken or explode, miners from underground passageways that collapse - has frayed, they say. The government's own records and statistics bear this out in many ways, showing shrinking agency budgets, personnel rosters that don't keep pace with inspection demands, and White House rejection of proposed safety rules.

As agency budget and staffing levels have shrunk, regulated entities have grown. In 1981, the Food Safety Inspection Service (FSIS) — the federal regulator in charge of meat, poultry, and egg products — employed about 190 workers per billion pounds of meat and poultry inspected and approved. By 2007, FSIS employed fewer than 88 workers per billion pounds, a 54 percent drop.

The Occupational Safety and Health Administration (OSHA) has also been unable to keep up with its responsibility to enforce safety regulations in the workplace. In 1980, OSHA had approximately three staff members for every 100,000 American workers. By 2006, it had only 1.5 staff members. In 1980, OSHA and state regulators conducted 1.77 inspections per 100,000 workers. By 2005, OSHA and the states conducted only 0.668 inspections per 100,000 workers — a 62 percent drop.

The resource shortfalls of the Consumer Product Safety Commission have been well-documented; but the situation appears even worse when comparing the agency's budget and staffing levels to one of the fastest-growing yet most dangerous products it regulates — all-terrain vehicles. In 1988, when CPSC began regulating ATVs after settling a lawsuit with manufacturers, the agency employed more than 36 staff members for every 100,000 four-wheel ATVs in use. By 2004, CPSC employed fewer than seven staff members for every 100,000 ATVs. Meanwhile, old regulations have expired and the Bush administration has stalled the development of new standards.

As Koff points out, the decisions by multiple presidents and congresses to shortchange federal agencies has undermined a long-standing national focus on public protection:

The result: The era of government as consumer protector, born of 1960s and '70s activism, has faded.

Find out more through OMB Watch's Bankrupting Government project.

An investigation by the Milwaukee Journal Sentinel examines a little-known EPA program which is supposed to study the effects of common chemicals on children's health. Journal Sentinel reporters Susanne Rust and Meg Kissinger found major flaws.

Among other things, the investigation finds the program (the Voluntary Children's Chemical Evaluation Program) is relying on advisory panels stacked with industry scientists, has had little luck in getting chemical makers to cooperate with requests for data, and has been broke since August.

Instead of regulating the chemical companies, the EPA invited them to interpret and present data to a panel of scientists on the risks and exposures of chemicals they made. The approach was hailed by chemical company lobbyists as "breathtakingly significant." …

The format was simple. Companies were to present data about their chemicals' toxic properties and likely exposure to a panel of scientists. That panel would then determine if the chemical was safe to use around children. If not enough was known, the EPA would ask the company to provide more information. …

The voluntary nature of the program has proved to be a problem with enforcing safety, children's health advocates say. Although the EPA can request more information about a chemical from the compound makers, companies are not required to answer. And many don't.

"The EPA has no hammer," said Melanie Marty, chairwoman of the EPA's Children's Health Protection Advisory Committee.

The investigation also finds a gross lack of transparency in the program. EPA does not publicly announce the dates of meetings, and the agency does not separate out the program's budget, making it nearly impossible to determine the program's cost to taxpayers.

Jay Berkelhamer, former president of the American Academy of Pediatrics, last year urged EPA Administrator Stephen Johnson to abandon the program in favor of "a mandatory program with stricter deadlines and a more transparent, accountable review system." Meanwhile, Johnson "repeatedly points to the program in public statements as proof that his agency is committed to protecting children," according to the Journal Sentinel.

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In November, the Department of Labor's Inspector General released a report showing the U.S. Mine Safety and Health Administration (MSHA) frequently fails to conduct required mine inspections.

For those mines that do get inspected, the enforcement may be utterly toothless, according to new evidence. In some cases, inspectors are noticing violations and issuing citations, but those citations are being lost in some kind of bureaucratic abyss. From the Associated Press:

Preliminary data showed that penalties had not been assessed against operators for about 4,000 citations the agency issued between January 2000 and July 2006, the Charleston Sunday Gazette-Mail reported. MSHA Director Richard Stickler told the newspaper that the review also showed that penalties had never been assessed for a few hundred citations issued in 1996.

Apparently, MSHA is less effective than your typical local parking authority, which, when leaving a parking ticket on your windshield, expects you to…you know…pay it!

OMB Watch has published a new article titled, "Workers Threatened by Decline in OSHA Budget, Enforcement Activity." OSHA, like many other federal agencies, faces budget constraints that make it more difficult for the agency to achieve its mission. Over the past three decades, OSHA's budget, staffing levels, and inspection activity have dropped while the American workforce has grown and new hazards have emerged.

The article is the first in a series called Bankrupting Government: How a Decades-Long Campaign against Federal Spending Has Undermined Public Protections. In the coming months, the series will examine how long-term resource shortfalls at federal regulatory agencies have affected the ability of those agencies to fulfill their missions.

Read the article here.

Richard Stickler, head of the Mine Safety and Health Administration, will remain in his post even though his 2006 recess appointment has expired. Late Friday, President Bush announced Stickler would remain on the job as an acting administrator. Stickler may continue in the interim role for another 210 days, according to the Associated Press.

Bush installed Stickler by recess appointment in October 2006 because several senators opposed his nomination. Stickler worked for Beth Energy Mines of Amity, Pennsylvania for 30 years, before heading the Pennsylvania Bureau of Deep Mine Safety from 1997 to 2003. According to the United Mine Workers (UMWA), mines run by Stickler had accident rates double that of the national average for six of eight years, including two fatal accidents at a mine Stickler managed for five years.

Mine safety has frequently been in the news over the past two years, usually for tragic reasons. In response to several mine disasters in 2006 (particularly Sago and Darby), Congress passed the MINER Act and mandated MSHA promulgate enforcing regulations within one year.

Stickler's record on enforcing the MINER Act has been mixed. MSHA has made little progress in implementing key provisions of the law, such as improving mine seals and mine rescue equipment, as a recent Washington Post article highlights. One bright spot came in December when MSHA levied a heavy fine against a delinquent mine operator as the MINER Act empowers the agency to do.

Stickler's record is not surprising — there has been a declining focus on ensuring mine safety during the Bush administration. A recent Department of Labor Inspector General report found that MSHA is conducting about one in seven of the inspections the law requires. Ultimately, MSHA's failures will be one of the many chapters in the Bush record that evince the administration's hostility toward public health, environmental and worker protections.

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.

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"

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.

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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.

As Reg•Watch blogged earlier, environmental prosecutions have dropped dramatically during the Bush administration. A recent Washington Post article indicates EPA has not made prosecution a priority. Marcus Peacock, EPA's deputy administrator, has also blogged on the subject on his webpage, "Flow of the River."

Peacock sticks up for his agency. Whereas the Washington Post article focused on cuts in prosecutions, Peacock says EPA has measured increases in: "The number of pounds of pollution reduced due to enforcement actions; and the number of additional dollars invested in pollution control due to enforcement actions."

Peacock argues greater compliance naturally leads to a diminished need for prosecutions. Though he doesn't provide exact numbers, it's an interesting counter to what is presented in the Post.

Nonetheless, Peacock does not address the resource shortfall at the agency. As Reg•Watch mentioned before, EPA now employs only 172 criminal investigators even though federal law mandates a staff level of at least 200, according to the Post.

As Peacock acknowledges, "nobody has good data on compliance rates." So, if EPA doesn't know the level of compliance, why would it cut enforcement staff (in this case, criminal enforcement staff)? Also of concern, EPA's own failure to comply with federal law. Perhaps Mr. Peacock will blog on those subjects in the future.