2008 Regulatory Policy Agenda: Congress Debates, States Act

by Rick Melberth*, 1/23/2008

In the current political climate, it is unlikely that Congress will succeed in passing legislation that protects the public from the range of regulatory failures we experienced in 2007. The barriers to substantially improving public health, worker safety, and environmental quality seem too high in this election year, especially given President Bush's willingness to use his veto power. What Congress can accomplish in 2008 is establishing legislative and oversight priorities over numerous health, safety, and environmental issues. In many instances, however, we will see states move ahead with a variety of actions designed to improve public protections. The executive branch will also play an increasingly important role as the Bush administration comes to a close.

Regulatory improvements or delay will come from federal agencies, and states will have to react to federal actions or inactions as they push their individual programs. In the next issue of The Watcher, we will provide an assessment of executive branch actions to watch out for. So what are some items on the consumer, health, and safety agenda for Congress?

Job Safety

On Jan. 16, the House passed coal mine safety legislation, H.R. 2768, that immediately received a veto threat. (See the accompanying article "Miner Safety Bill Clears House, Bush Veto Looms") It would, among other things, enhance the federal Mine Safety and Health Administration's (MSHA) regulations.

MSHA, however, does not support the legislation, according to a Jan.11 BNA article (subscription required) quoting the acting director of MSHA, Richard Stickler. Instead, MSHA is going back to basics. The agency has increased its enforcement efforts in the last year, and it hired 273 inspectors between July 2006 and September 2007. Because it takes 18 months to train the new inspectors, 49 percent of the inspection staff is still in training.

The Occupational Safety and Health Administration (OSHA) has come under fire for its lack of attention to workplace issues and enforcement during the Bush administration. Two high profile actions occurred in late 2007 that will be part of OSHA's 2008 agenda: 1) issuing a new standard for the food additive diacetyl, which can cause a fatal lung disease in factory workers exposed to it, and 2) implementing rules issued in November 2007 regarding employers' obligations to pay for personal protective equipment (PPE) for workers. There is a good chance that industry will challenge the PPE rule, resulting in significant delays in its implementation.

Two other workplace issues have the attention of the House Education and Labor Committee, according to BNA. The Committee may hold hearings regarding OSHA's lack of citations of ergonomics violations and questionable reporting of workplace injuries and illnesses. Labor proponents think there is considerable underreporting by employers, in part because workers fear retaliation for reporting accidents and illnesses.

Meanwhile, many states that administer OSHA-approved plans are addressing these same issues through their health and safety programs. For example, California is implementing its own diacetyl exposure rule for workers, and it is considering proposals to regulate other food additives, according to a Jan. 11 BNA article on states' plans. Michigan, Minnesota, and Washington State have initiatives regarding certification of construction crane operators. In some instances, these initiatives are prompted by accidents that highlighted the need for improved safety.

Consumer Product Safety

In the Jan. 8 issue of The Watcher, OMB Watch described how Congress was limping toward enhancing the regulatory authority of the Consumer Product Safety Commission (CPSC). The bills before Congress now will vastly increase resources in future years for the agency, and the omnibus appropriations bill for FY 2008, passed in December 2007, includes an increase of $17 million in the agency's budget. The latter is being used by CPSC to station more staff at ports of entry for imports, increase inspections of retailers, and target higher-risk products, especially children's products.

Environmental Quality

Congress is likely to spend considerable time on a variety of greenhouse gas (GHG) emissions bills, although the chances for passage seem remote in 2008. Sens. Joseph Lieberman (I-CT) and John Warner (R-VA) have introduced cap-and-trade legislation, S. 2191. This bill will probably be debated, and senators are staking out their positions, according to a Jan. 18 BNA article. The prospects for getting 60 votes to pass the bill are slim, but the outlines of legislation could be decided during this process. Democrats failed to introduce a similar measure in the House, although Rep. John Dingell (D-MI), chair of the House Energy and Commerce Committee, is expected to do so later this year.

Most GHG activity is taking place through regional coalitions of states. The initiatives, such as the Regional Greenhouse Gas Initiative in the Northeast, are proposing cap-and-trade and emissions tracking programs coupled with setting emissions limits.

Climate change issues are driving drinking water concerns as well, according to BNA. For example, carbon sequestration — injecting carbon dioxide from power plants deep underground — has the potential to affect drinking water sources. The U.S. Environmental Protection Agency (EPA) is likely to propose a rule this year regulating this practice, but the impacts of sequestration are not well known.

Other drinking water issues scheduled for EPA action in 2008 include upgrading the nation's infrastructure and a decision on whether to regulate perchlorate, a chemical found in rocket fuel and linked to thyroid problems in children. EPA estimates that $277 billion will be needed to upgrade the infrastructure between 2003 and 2022, BNA reported in a Jan. 18 article. States and local water utilities argue that Congress has not appropriated enough money to help rebuild an infrastructure not quite at a crisis stage.

EPA has been debating a perchlorate standard since 1998 and is expected to make a decision early in 2008. Legislation has been introduced in both chambers of Congress to require a perchlorate standard. It is unlikely any bill will get through Congress and past a presidential veto.

Scientific Integrity

Congress held several hearings in 2007 focused on the contentious strategy of the Bush administration 1) to declare science uncertain on some policy questions ranging from global warming to drug safety and 2) to suppress government scientists' speech. According to the Union of Concerned Scientists' (UCS) Scientific Integrity Program, Congress addressed the erosion of the appropriate use of science in several bills. For example, Congress passed and the president signed the Food and Drug Administration Revitalization Act, which will help ensure that the best available science is used in decisions by the Food and Drug Administration. Legislation moving through Congress to enhance the authority of CPSC, as mentioned above, would extend whistleblower protections for CPSC scientists.

In addition, the House passed The Improving Government Accountability Act, which would provide more independence to inspectors general (IGs) at federal government agencies. IGs investigate waste, fraud, and corruption, which can include the misuse of science. The bill would allow agency scientists to challenge scientific misconduct in a confidential manner. According to UCS, the bill has bipartisan support in the Senate.