Standards and Safeguards in 2013

by Katie Weatherford, 12/17/2013

Agencies rolled out few health, safety, or environmental standards in the first quarter of 2013, despite hopes that President Obama would commit more attention to agencies' regulatory agendas after winning reelection. But in the spring, the gears began to move as the administration focused on implementing crucial public protections and the new director of the Office of Information and Regulatory Affairs (OIRA), Howard Shelanski, made good on his promise to cut the backlog of rules waiting for review at OIRA. With the gridlock on legislation in Congress, many are looking for the administration to be more active in moving rules and action through the executive branch.

However, ongoing budget constraints have eroded the ability of some agencies to issue new standards and to enforce existing safeguards. The federal government shutdown highlighted the importance of the government's role in protecting public health and safety. But industry lobbyists and their allies in Congress have continued to campaign against important safeguards that protect our public health and environment, and new threats are emerging at the state level and in international trade negotiations.

Small but Critical Successes in 2013

First Steps Taken to Combat Climate Change

During President Obama's second inaugural address in January, he promised the nation that if Congress failed to take action to combat climate change, he would. In June, he delivered on this promise, announcing his Climate Action Plan with a realistic strategy for reducing domestic carbon pollution, preparing to mitigate the impacts of climate change, and participating in international efforts to address the problem. A critical component of the plan is the president's directive to the U.S. Environmental Protection Agency (EPA) to set limits on greenhouse gas (GHG) emissions from new and existing coal-fired power plants.

On Sept. 20, only a few months after Gina McCarthy was confirmed as EPA Administrator, the agency proposed strong but achievable GHG limits for new power plants. EPA is expected to propose the GHG limits for existing power plants next June. The Center for Effective Government, along with many other public interest and environmental advocacy organizations, will be carefully watching to ensure EPA meets this deadline.

Slight Resurgence in Workplace Health and Safety Standards

In August, the U.S. Occupational Safety and Health Administration (OSHA) finally announced a proposal to protect workers from exposure to crystalline silica. Every year, silica dust kills hundreds of workers and sickens thousands. The rule was under development for over a decade and then was stuck "in review" at OIRA for an additional two years. The new standards would lower the limit of silica dust that workers are permitted to breathe and lay out methods for controlling exposure. OSHA estimates that once its full effects are realized, the proposed rule will save almost 700 lives and prevent 1,600 new cases of silicosis (a deadly lung disease) each year. However, given the contentious history of the proposal, a final rule is not likely to be completed until 2015 since the proposal will undergo an extensive public comment and hearing process in 2014, with OSHA then needing to consider the input it receives and send the rule back to OIRA for a second review before finalizing the rule.

OSHA has also recently increased online access to valuable data for companies and workers and is working to streamline injury and illness reporting requirements. OSHA's two new web tools include an online toolkit to identify safer chemicals that can be used in place of more hazardous ones and a reference table with OSHA's permissible exposure limits (PELS) on the amount or concentration of certain substances in the air. The latter also shows the California Division of Occupational Safety and Health PELs, National Institute for Occupational Safety and Health recommended exposure limits, and American Conference of Governmental Industrial Hygienist threshold limit values. These resources will allow employers to easily access information that they need to ensure their facilities are not exposing workers to health threats.

OSHA is currently working on a rule that will improve the tracking of workplace injuries and illnesses by transitioning to an online system that will allow employers to submit such information electronically. Under the proposal, establishments with more than 250 employees will be required to submit their injury and illness records online every quarter. Smaller establishments that operate in an industry with high injury and illness rates and employ 20 or more people would be required to electronically submit an annual summary of injuries and illnesses to OSHA.

However, given budget constraints, OSHA's ability to perform inspections and issue adequate penalties for violations is limited – its ratio of inspectors to facilities fell from one inspector for every 1,900 workplaces in 1981 to one for every 4,300 facilities in 2012. Given these constraints, OSHA must rely on workers to play a more active role in ensuring their workplaces are safe and healthy. In October, the Center for Effective Government released a report entitled Securing the Right to a Safe and Healthy Workplace: Improve State Laws to Protect Workers, which explores the constraints on OSHA to protect workers from retaliation for reporting health or safety concerns and calls for better state-level protections for workers.

New OIRA Administrator Commits to Reducing Excessive Review Delays

A number of rules that would have strengthened health, safety, and environmental protections were stalled in the regulatory review process during 2012 and the first half of 2013.

Under Executive Order 12866, OIRA review is limited to 90 days with a possible 30-day extension, but rules are routinely delayed beyond the 120-day deadline. A research report prepared for the Administrative Conference of the United States (ACUS) documented dramatic increases in both the average time for completion of OIRA regulatory reviews as well as in the number of rules for which reviews exceeded the 90-day limit between 2011 to first half of 2013 (see figure below).

ACUS Figure 3
Source: Administrative Conference of the United States, Office of Information and Regulatory Affairs

Some regulatory agency officials interviewed for the report indicated that OIRA required agencies to "get permission" to submit a rule, and that in some cases, this permission was contingent on the inclusion of all changes OIRA was requesting, thus completely circumventing the formal process and time frames set by the executive order.

In addition to documenting recent increases in delays and political pressure exerted by OIRA staff, the report highlighted long-standing concerns about the lack of transparency in the OIRA review process. Executive Order 12866 includes transparency provisions that direct OIRA to document communications with outside parties, provide the public with a current status of rules under review, and encourage agencies to disclose changes OIRA made to a rule during the review process. OIRA often fails to comply with these transparency rules.

OIRA released some long-delayed proposed rules soon after Howard Shelanski was confirmed in June as the OIRA Administrator, suggesting that Shelanski is committed to moving rules through the review process more efficiently. This improvement is especially critical for rules needed for moving forward on overdue health, safety, and environmental standards. While recent improvements at OIRA in reducing rule review delays are laudable, substantial procedural and transparency issues still need to be addressed.

ACUS Figure 5
Source: Administrative Conference of the United States, Regulatory Information Service Center

Continued Regulatory Roadblocks

The Impact of Budget Cuts on Crucial Public and Environmental Protections

As a result of funding cuts over the past few years, many agencies began 2013 without adequate resources to effectively issue and enforce important safeguards. Agency budgets were squeezed even further beginning on March 1, when $85 billion in automatic, across-the-board spending cuts known as "sequestration" went into effect for 2013 budgets. The Congressional Budget Office warned that sequestration cuts in 2013 alone would cost 750,000 jobs and reduce economic growth by 0.6 percent, damaging the fragile economic recovery.

Although sequestration has been lifted for two years, upcoming appropriations battles mean that regulatory agency budgets in 2014 are still uncertain. The inability of federal agencies to conduct environmental pollution and workplace safety inspections, as well as respond quickly to disease outbreaks, during the government shutdown highlighted the importance of the government's role in protecting public health and safety. The non-defense discretionary budget – which funds regulatory agencies – is still on track to be the lowest it has been in decades and could erode the enforcement and improvement of crucial public and environmental protections.

Big Business Strategy to Undermine Agency Science: The "Small Business" Ruse

As in 2012, attacking agency scientific assessments by calling into question the underlying data and offering last-minute, industry-sponsored studies remained a popular strategy for corporate lobbyists to gain additional time to influence the process.

In January, the Center for Effective Government released a report highlighting the unwarranted influence of trade associations representing large chemical companies over officials at the Office of Advocacy, an independent office within the Small Business Administration. This little-known office is responsible for ensuring that small businesses have a voice in the regulatory process and that federal agencies consider ways to address small business concerns when proposing and enforcing regulations. However, our investigation found that the office was involved in technical, non-regulatory scientific assessments of the cancer risks of formaldehyde, styrene, and chromium at the behest of trade associations. Industry also worked to delay agency rules under development by calling for more opportunities for stakeholder input and lobbying agencies, OIRA, and members of Congress.

Regulatory "[D]eform" Legislation Reintroduced in 2013

Several harmful bills targeting the regulatory process were reintroduced in 2013. Sen. Rob Portman (R-OH) reintroduced the Regulatory Accountability Act (RAA), which would impose over 60 new procedural and analytical requirements and ultimately bring the entire rulemaking process to a halt. Rep. Todd Young (R-IN) brought back the Regulations from the Executive in Need of Scrutiny (REINS) Act, which prevents any major rule from going into effect unless it receives congressional approval within 70 days. Sen. Chuck Grassley (R-IA) and Rep. Doug Collins (R-GA) reintroduced the Sunshine for Regulatory Decrees and Settlements Act, which would impose costly and time-intensive procedural hurdles on settling a lawsuit challenging an agency's noncompliance with a congressional mandate, such as failing to issue a rule to reduce an unnecessary risk to human health, safety, or the environment by a statutory deadline. The effect would be to limit citizens' rights to hold agencies accountable for violating the law while enhancing corporations' rights to intervene in the litigation solely for the purpose of delaying an agency from issuing a legally required rule.

Emerging Threats to State-Level Regulations

The attack on environmental and public health standards and safeguards is shifting to the states. In November, the Center for Effective Government released a report entitled ALEC's Latest Trojan Horse: The Attack on Standards and Safeguards Moves to the States, which highlights special interest groups' recent push for "reform" legislation that would expand or institutionalize requirements that delay and weaken important regulations and increase the already outsized influence of corporations in setting environmental, food, consumer, and worker safety policies.

Proposed TSCA Reform Bill Threatens State Toxics Laws

On May 23, the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) introduced the Chemical Safety Improvement Act (CSIA) of 2013, a bill to update the nation's primary and outdated chemical safety law, the Toxic Substances Control Act (TSCA). Modernizing TSCA to better protect the public is a laudable goal. However, as the Center for Effective Government has explained, the proposed legislation, as currently written, fails to address several key deficiencies in the existing law and threatens to undermine state chemical safety laws and protections intended to fill the gaping holes in the federal law. Among many harmful provisions in the bill, it would interfere with states' rights to set chemical laws, even when EPA has set no federal minimum standard.

For example, under California's primary chemicals law, Proposition 65, the state publishes a list of chemicals known to cause cancer or reproductive harm. Companies must notify state residents about significant quantities of the listed chemicals found in consumer products or building materials, or significant releases into the environment. CSIA would prohibit a state like California from issuing or enforcing restrictions on chemicals that EPA has classified as either high- or low-priority for a safety assessment and determination, as well as creating or enforcing a restriction on the manufacture, processing, distribution, or use of a chemical once the safety determination is completed. In other words, this proposed legislation would preempt protective state laws without requiring that EPA adopt comparable protections.

The bill is currently stalled in committee, and a revised version of the bill is expected in early 2014. However, even if the revised bill eliminates the state preemption provisions, state chemicals laws are still at risk of being preempted in ongoing trade negotiations between the U.S. and the European Union (EU).

Trans-Atlantic Free Trade Agreement (TAFTA) Targets Domestic Safeguards

In July, the U.S. began negotiations with the European Union to forge a bilateral trade agreement, the Trans-Atlantic Free Trade Agreement (TAFTA) (also referred to as the Transatlantic Trade and Investment Partnership, or TTIP). However, because tariffs between the U.S. and EU nations are already quite low, the agreement will target consumer and environmental protections under the erroneous and unsubstantiated belief that weakening public protections is good for business.

The United States Trade Representative (USTR) has noted that regulation of toxic substances will likely be raised during negotiations this month. Since the trade negotiations are being carried out in secret with hundreds of industry representatives and only a few public interest delegates, it appears the goal is to lower the bar regarding restrictions on the ability of chemical companies to manufacture, produce, and sell toxic chemicals on both sides of the Atlantic.

Thus, in addition to the threat of state preemption in the TSCA reform bill, the U.S.-EU trade agreement also seeks to preempt state chemicals laws and regulations. Any legislation or trade agreement that overrides state chemical regulations would represent a major step backward in protecting the public's health and the environment.

The next round of TAFTA negotiations began on Dec. 16 in Washington, D.C., and the Center for Effective Government, along with numerous U.S. and EU public interest groups, will continue to raise awareness about the troubling provisions to be included in this pro-business trade deal.

(For more information about how TAFTA threatens consumer and environmental protections, visit our TAFTA resources webpage at http://www.foreffectivegov.org/tafta-factsheets.)

Looking Ahead

In 2014, industry campaigns to subvert the regulatory process are likely to continue at all levels of government. It is critical that public interest advocates work to translate technical issues into language that the public understands and hammer home the fact that responsible businesses can be profitable and work within existing and even improved health, safety, and environmental standards. In 2014, CEG will be working with partners at the local, state, and federal levels to ensure that environmental and health and safety laws are implemented as quickly and efficiently as possible so that we can have smart, sustainable regulatory policies in place that protect and enhance the public interest.

Katie Greenhaw and Ronald White contributed to this article.