Citizen Health & Safety
Rules to Watch (and Wait) for in 2014
by Katie Greenhaw, 1/14/2014
Just before Thanksgiving, the White House quietly released the 2013 Unified Agenda, which contains information on a broad range of upcoming regulatory actions, as well as agencies’ regulatory plans detailing the most important significant regulatory and deregulatory actions they expect to propose or finalize during the coming year. On Jan. 7, agencies published in the Federal Register their regulatory flexibility agendas describing a subset of regulatory actions under development that may have a significant economic impact on a substantial number of small entities. While some important health and safety rules are slated to move forward, the Unified Agenda indicates that many long-awaited actions will not advance as proposed or final rules this year.
Many Environmental Rules Stalled, but Climate Change Actions Inching Forward
The U.S. Environmental Protection Agency's (EPA) regulatory plan includes some actions that have advanced to the final rule stage, but many long-awaited actions remain stalled in earlier rulemaking stages, are identified only as long-term actions, or have disappeared from this year's regulatory plan altogether.
The good news: a few rules listed as proposed rules or long-term actions in EPA’s spring agenda have moved to the final rule stage, including emissions standards and third-party certification rules for formaldehyde in composite wood products.
EPA’s rule to limit greenhouse gas emissions for new fossil fuel-fired power plants will move forward. The rule would reduce the amount of carbon dioxide that is released into the air and contributes substantially to climate change. EPA first proposed the rule in April 2012 and in December 2012 listed the rule as being in the final stages of development. Unfortunately, EPA moved the rule back to the proposal stage after heavy criticism from the electric power industry pressured the agency into withdrawing the original rule and issuing a revised proposal. EPA released the new proposal to the public on Sept. 20, 2013 in accordance with President Obama's new climate action plan, announced in June 2013, and the official proposal was published in the Federal Register on Jan. 8, 2014.
The president’s climate plan also requires EPA to propose standards for existing power plants by June 2014 and finalize those standards by June 2015. EPA’s agenda indicates the agency is on track for meeting these deadlines, although the agency has not yet submitted a draft rule for existing power plants to the Office of Information and Regulatory Affairs (OIRA) for review.
The agency’s rule on the definition of solid waste was listed as a final rule in the fall 2012 agenda, moved to long-term action in the spring, and has now returned to the final rule stage. Although EPA missed judicial deadlines for finalizing the rule, it plans to issue the final rule in February of this year.
The bad news: EPA does not expect to complete proposed or final actions for many crucial delayed rules. The plan provides no timeline for issuing a long-awaited proposal to update national air quality standards for ozone pollution. In 2011, EPA completed a proposed rule that would have strengthened inadequate ozone standards that were previously overturned by a federal court. But before the proposal was published, Obama ordered EPA to withdraw the rule and directed the agency to wait and update the standard by 2013 as required under the Clean Air Act (CAA). But now, review of the ozone standard is listed as a “long-term action.” A schedule for a proposal and final action on the ozone standard is being negotiated between EPA and the public health organizations that sued the agency for not meeting the CAA deadline for review of the standard.
Although EPA proposed new standards for the regulation of coal ash in 2010, little progress has been made toward issuing comprehensive national standards, and the rule has been pushed back to a long-term action despite being listed in the pre-rule stage in the spring agenda. However, an October court order required EPA to submit a plan for finalizing the coal ash rulemaking process by Dec. 29, 2013. EPA also plans to move forward and finalize a proposed rule to reduce water pollution from coal-fired power plants and their related wastes. The agency is under a judicial deadline to finalize the rule by May 22, 2014.
EPA has also moved back its timeline for proposing a national drinking water standard for perchlorate, a chemical that is used to produce rocket fuel, fireworks, flares, and explosives. Scientific research indicates that perchlorate can disrupt the thyroid’s ability to produce hormones needed for children’s normal growth and development. The Safe Drinking Water Act requires EPA to issue a proposed rule within 24 months of making the determination to regulate. The agency missed the 2013 deadline and does not expect to issue a proposal until the end of 2014 and a final rule in September 2015.
A disappointing “completed” action confirms that EPA has “decided to discontinue work” on the Chemicals of Concern List rule, meaning that no new chemicals will be added to a list of substances that present or may present an unreasonable risk of injury to human health or the environment (and so require additional study and action). EPA’s spring agenda indicated that the rule was still in the proposed stage, but it was withdrawn in September after languishing at OIRA for review for over three years. Neither EPA nor OIRA explained the reason for the withdrawal.
The 2014 Timeline for Silica and Poultry Health and Safety Rules
In the fall of 2013, the Occupational Safety and Health Administration (OSHA) finally issued two important proposed rules: a long-awaited rule to protect workers from exposure to silica dust that can lead to fatal respiratory disease, and a proposal to modernize and improve the recordkeeping and reporting of occupational injuries and illnesses. OSHA's regulatory agenda has featured the silica rule since 2011, but the agency had been unable to move forward because the rule was held up at OIRA for over two years. The proposed silica rule was finally published in September 2013, and the extended public comment period is due to close on Jan. 27. The recordkeeping rule, proposed in November, will be open for public comment until March 8. Unfortunately, the latest agenda still lists the rules in the proposed rulemaking stage and contains no timelines for completing final rules.
A rule of particular concern that is slated to become final this year is the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service’s (FSIS) controversial proposed rule to shift responsibility for inspections away from agency inspectors to employees of the slaughter and processing plants. USDA received thousands of comments from public health advocates and safety experts opposing the January 2012 proposal. The Center for Effective Government joined a drove of consumer and public interest groups in urging USDA to withdraw the rule until it had sufficiently examined and resolved concerns about food and worker safety. More recently, worker safety and civil rights organizations petitioned agencies to better protect workers in poultry and meatpacking plants, again calling on USDA to engage in thorough interagency consultation about worker safety before implementing the proposed rule. Despite continued opposition from policymakers and food and worker safety experts, USDA shows no signs of slowing down the rule.
Overall, the agenda includes some promising advances in long-awaited proposed and final rules. Still, too many have again been shelved until next year. Furthermore, rules that would provide important protections for citizens – like the silica rule, coal ash standards, and new clean drinking water standards – are still not final, while rules that benefit only industry interests – like the poultry rule – are moving forward. A very mixed bag for 2014.
Katie Weatherford and Ronald White contributed to this article.