Spring 2014 Unified Agenda: Agencies Expect Lengthy Delays of Critical Safeguards in Year Ahead
by Katie Weatherford, 5/30/2014
On May 23, the White House Office of Management and Budget (OMB) quietly published its semi-annual agenda of federal agencies’ regulatory plans for significant actions expected during the upcoming year. Unfortunately, the Spring 2014 Unified Agenda does not send a strong message that the administration expects to finalize many critical safeguards, some pending for years, over the next 12 months.
High-profile rules, such as the proposals to regulate greenhouse gas emissions from new and existing power plants, are expected to meet previously set deadlines. However, significant delays in the year ahead for other essential rules will result in continued health and safety hazards for the public, workers, and the environment.
Public Health and Environmental Safeguards
The agenda indicates that several program offices within the U.S. Environmental Protection Agency (EPA) expect lengthy delays in proposing or finalizing many critical safeguards over the coming year. Forward movement is likely, though, for several air quality standards in the regulatory pipeline.
EPA’s Office of Air and Radiation expects to move forward with several critical safeguards under development, although not without some slight delays. EPA’s rules to limit greenhouse gases from new and existing power plants are still on schedule to be finalized in 2015, in accordance with the president’s Climate Action Plan. EPA is expected to release proposed rules for greenhouse gas emissions from existing and modified power plants in June, though the Office of Information and Regulatory Affairs (OIRA) still lists these rules as under review.
EPA also expects to make progress in reviewing the national ambient air quality standards for ozone. EPA was roundly criticized by public health and environmental organizations, as well as by its scientific advisors, for adopting a standard in 2008 that failed to adequately protect public health or the environment. EPA moved the rule from a long-term action to the proposal stage and expects to issue the proposed rule by December 2014, in accordance with a court-ordered deadline. EPA now expects to complete its review of the ozone standard by October 2015, more than two years past the deadline required under the Clean Air Act.
Several rules under the jurisdiction of the EPA’s Office of Water will be substantially delayed. For example, EPA’s rule to set effluent limits for water discharged from power plants was moved to the list of long-term actions. In the fall 2013 agenda, EPA had listed this rule as in the final stage of development, presumably responding to a consent decree that required the agency to finalize the rule by May 22, 2014. However, EPA has missed the court-ordered deadline and now lists completion of a final rule in September 2015.
This rule is intended to update antiquated existing standards last revised in 1982. Until EPA finalizes its proposed revisions, toxic pollutants discharged by the electric power industry will remain under-regulated, potentially causing major impacts on water quality, contaminating drinking water resources, and threatening public health.
EPA’s Office of Water has also substantially extended its projected deadline for proposing limits on the maximum level of perchlorate permitted in drinking water. Perchlorate is a chemical used to produce rocket fuel and fireworks that disrupts the thyroid’s ability to produce hormones needed for children’s normal growth and development. Under the Safe Drinking Water Act (SDWA), EPA must propose a standard within two years after finding a need to regulate a contaminant and finalize the standard no later than 27 months after issuing the proposal. In the case of perchlorate, EPA was set to issue a proposal by February 2013, a deadline that has long passed. Nonetheless, EPA now indicates further delays, pushing the deadline for issuing a proposal to February 2016, with a final rule to follow in October 2017. As a result of this pervasive and unlawful delay, public exposure to drinking water contaminated with unhealthy levels of perchlorate will continue.
While EPA’s Office of Chemical Safety and Pollution Prevention is slightly behind its previous schedule in finalizing its formaldehyde emissions standards for composite wood products and the accompanying third-party certification rule, the rule is already almost 18 months past the statutory deadline of January 2013. The agency missed the deadline as a result of the rules being stuck under review at OIRA until May 2013, despite being submitted to the office over a year earlier. Given previous delays, if EPA intends to finalize the rules by October 2014, it will need to submit the draft rules to OIRA for review as soon as possible.
EPA’s Office Solid Waste and Emergency Response has also pushed back projected dates for completing two long-awaited rules. After EPA moved its rule on the definition of solid waste from the list of long-term actions to the final rulemaking stage in the fall 2013 agenda, the agency missed its previous February 2014 deadline and did not submit the draft final rule to OIRA for review until March 15. The rule would update a 2008 rule to improve public health and environmental protections, with a specific focus on better management of hazardous waste in environmental justice communities. While the spring agenda still lists the rule as in the final stage of development, EPA has pushed back the projected completion date to July 2014.
EPA’s agenda also indicates that the long-delayed coal ash rule will not be finalized until December 2014, in accordance with a court-ordered deadline set under a settlement agreement. Coal ash is responsible for contaminating over 200 rivers, lakes, streams, and aquifers with toxic pollutants harmful to public health and the environment. EPA proposed two options for regulating coal ash in 2010, but environmental groups filed suit in 2012 seeking to compel the agency to move forward when it still had not finalized a rule. Until the rulemaking is completed, public health and the environment remain unprotected from toxic coal ash.
Worker Health and Safety Rules
The Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA), within the Department of Labor, will also delay several important rules under development.
OSHA’s rule limiting worker exposure to deadly silica dust remains listed in the proposal stage, with no estimated completion date for the final rule. The rule first appeared in OSHA’s regulatory plan in 2011, where it has remained due to the agency’s inability to move forward as it was stuck at OIRA under review for over two years. Although the proposal was published in the Federal Register in September 2013, the spring agenda provides no date for issuing a final rule, indicating that the agency is unable to commit to timely completion of the proposal. OSHA estimates that the proposed rule would save almost 700 lives and prevent nearly 1,600 new cases a year of silicosis, a preventable but potentially fatal respiratory disease. Each year this rule is delayed, thousands of workers contract this preventable disease and hundreds more die.
The Mine Safety and Health Administration (MSHA) has moved its rule to limit miners’ exposure to silica from the proposal stage to a long-term action with no target date for completion. The existing 1994 rule on silica exposure is outdated and does not adequately protect workers against developing silicosis or health complications. The silica rule first appeared in the fall 2003 Unified Agenda, but the deadline for proposing a rule continues to be pushed back. Over a decade later, miners across the nation remain at risk from exposure to silica dust while working in underground mines.
Food and Product Safety Standards
The U.S. Department of Agriculture (USDA) Food Safety and Inspection Service’s (FSIS) proposed rule to speed up poultry processing plants remains on track to be finalized this year. However, the deadline for completing the rule has shifted from the April 2014 projection included in the fall 2013 agenda to July 2014. This controversial rule has been widely criticized as undermining food and worker safety. Unfortunately, the spring agenda indicates that USDA does not intend to slow down the rulemaking process to reconsider this ill-advised rule.
FDA’s rule to regulate certain tobacco products such as electronic cigarettes is projected to be finalized in June 2015. However, the 2009 Family Smoking Prevention and Tobacco Control Act required that this action be completed much earlier. Despite FDA’s ability to regulate “any product made or derived from tobacco that is intended for human consumption” under the act, the agency did not submit a draft proposal to OIRA until October 2013. The proposal remained stuck at OIRA until April 2014, far longer than the maximum 120 days OIRA is allotted for completing its review. With the rule stalled, companies that make “novel tobacco products,” which includes electronic cigarettes and flavored tobacco, are continuing aggressive marketing campaigns targeted toward minors. FDA must move quickly to ensure it meets its newly projected June 2014 deadline to protect children from the risks associated with tobacco products.
Although the Spring 2014 Unified Agenda entails lengthy delays of many crucial, long-awaited safeguards, agencies are not bound by the timelines set forth in the plan. If agencies work to accelerate these regulatory actions ahead of projected schedules, these delays can be shortened so that essential public health, safety, and environmental protections are provided sooner.
This post has been updated since its original publication date.