At long last, the comment period on OSHA’s silica proposal has closed and the next phase in this rule’s protracted timeline will commence. In the four months since OSHA released the proposal, the agency has received hundreds of comments. They run the gamut, from the expected support of unions and other advocates for working people, to the fear-mongering hyperbole of the major trade associations. CPR Member Scholars Sid Shapiro and Martha McCluskey joined us in submitting our own comments to the record. You can read them here.
Silica dust is a pervasive occupational hazard. The vast majority of exposed workers toil in the construction industry, where clouds of dust surrounding jackhammers, masonry and concrete saws, and brick and mortar work are an all too common sight. OSHA seeks to eliminate those dangerous conditions by encouraging employers to provide modern tools that have better dust collectors, shrouds, and water feeds to suppress the dust. The proposal also addresses the myriad other industries where silica exposure leads to debilitating cases of lung cancer, silicosis, and silica-related kidney disease. Dental laboratories, ship repair companies, and ceramic refractories will also be subject to the rule’s new requirements.Full text
A group of eight CPR Member Scholars today submitted a letter to Reps. David Schweikert and Suzanne Bonamici, the chair and ranking member, respectively, of the House Committee on Science, Space, and Technology's Subcommittee on the Environment. The letter levels a series of powerful criticisms at Schweikert's proposed "Secret Science Reform Act," yet another in a series of bills from House Republicans aimed at gumming up efforts by the Environmental Protection Agency to exercise authority granted it by Congress to protect the environment.
Schweikert and his cosponsors maintain that the EPA is adopting regulations based on science that should be available to the public, but is not. That's true. But the bill steers clear of the actual problem, and instead focuses on harassing EPA regulators. The real problem with secret science in the regulatory process is that industry science is carefully shielded from public scrutiny by statute. By contrast, the studies Schweikert goes after are typically published in peer-reviewed journals. As the scholars write,
H.R. 4012 threatens to undermine the scientific rigor of EPA’s decision-making while leaving the true “secret science” problem untouched. “Secret science” is indeed pervasive in some regulatory programs, yet H.R. 4012 does nothing to address the most serious problems since it inoculates from its reach existing, outdated legal provisions that tolerate the sequestration of research. For example, under Section 10(g) of the Federal Insecticide, Fungicide, and Rodenticide Act, the public and affected parties are not allowed to view the studies underlying EPA’s licensing of pesticides until after the agency’s registration decision is concluded, and even then the research is available only to the public under tightly constrained circumstances. 1 Even more problematic, as a result of aggressive trade secret claims, the research on the safety of more than 17,000 chemicals regulated by EPA under the Toxic Substances Control Act is completely insulated from public view by law. Such impediments to public access undermine independent evaluations of the evidence used by EPA in its regulation, yet they remain untouched by the very bill that promises to expose this secret science.
By contrast, H.R. 4012 targets publicly available research, much of which has been published in peer reviewed journals, as the area in need of heightened transparency. Even more perplexing, the bill tasks EPA -- not the researchers -- with the enormous task of amassing the data underlying each relevant study. If EPA is unable to summon the resources or time to access this underlying information or is otherwise unable to acquire the data, it is apparently prohibited from considering the stud(ies) in its regulatory decision.
The scholars go on to criticize the proposal because it would impose significant new costs that are "disproportionate to any plausible benefits," and "facilitate further mechanisms for harassing scientists."
The co-authors are CPR Member Scholars John Applegate, Holly Doremus, Emily Hammond, Thomas McGarity, Noah Sachs, Sidney Shapiro, Rena Steinzor and Wendy Wagner.
NRDC's John Walke live-tweeted Schweiker's hearing this morning on the bill. Take a look.Full text
Anchorage, Alaska is more than 4,000 miles away from the Chesapeake Bay, yet Alaska joined 20 other states on Monday in asking a federal appeals court to overturn the EPA-led plan to restore the Bay, known as a Total Maximum Daily Load (TMDL).
While Alaska’s interest in the Bay-wide TMDL is murky, the history of the lawsuit is straightforward. In 2009, the Obama administration issued Executive Order 13,508, directing EPA to take a leadership role in cleaning up the Bay. The Bay-wide TMDL, often referred to as a “pollution diet,” followed in 2010. It imposed strict limits on the quantities of nitrogen, phosphorus, and sediment that could be discharged into the Bay and allocated the total permissible amount of each pollutant among the Bay states and the District of Columbia, leaving it up to the states to determine how to meet the specific allocations. In 2011, the American Farm Bureau Federation and Pennsylvania Farm Bureau sued EPA claiming that the agency did not have the authority under the Clean Water Act (CWA) to issue the TMDL. In a decision this past September, U.S. District Court Judge Sylvia Rambo disagreed. The Farm Bureau immediately signaled its intent to appeal to the Third Circuit and filed its brief with the court last week. The states filed their amicus brief Monday in support of the Farm Bureau.Full text
The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals. State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to hold accountable any people or corporations responsible for the chemical by seeking reasonable compensation for their injuries. It’s often difficult to win these cases, and even victory won’t undo the pain and fear that comes with suffering from cancer or other illnesses that can result from harmful exposures to toxic chemicals, but the process does hold out the possibility that victims can obtain some measure of justice for the harm they have endured.
Recently, industrial chemical manufacturers and users have supported a new and subtle method for undermining legal responsibility. They are using efforts in the U.S. Senate to update the Toxic Substances Control Act (TSCA)—the primary law governing federal regulation of hazardous chemicals—to enact “evidentiary preemption.” Specifically, the chemical industry is supporting the Chemical Safety Improvements Act (CSIA), which contains a provision that would fundamentally change how civil courts consider evidence regarding the harms posed by toxic chemicals in many tort cases where people have been injured by those substances. The upshot is that in many instances even plainly dangerous chemicals would be incorrectly regarded as “safe” for evidence purposes, which would effectively immunize the manufacturers and users of those chemicals against any liability for the harms that the substances might cause. These companies already have a pretty sweet deal, since TSCA is so ineffective in controlling chemicals in the first place. This bill would guarantee them an even sweeter deal: weak regulations and a hamstrung civil justice system.Full text
Every day, we are presented with more evidence of the need to inspect for environmental violations and enforce the nation’s laws. The evidence is stark in the Chesapeake Bay region where, in 2012 alone, just 17 large point sources reported illegal discharges of nitrogen totaling nearly 700,000 pounds. These violations put the watershed states behind in their efforts to restore the estuary and meet the 2025 goals of the Bay pollution diet.
The problem cries out for stronger enforcement of environmental laws, and yet EPA recently released a draft FY 2014–2018 Strategic Plan that signals that the agency will retreat significantly from traditional enforcement in the coming years. Specifically, EPA aims to conduct 30 percent fewer inspections and file 40 percent fewer civil cases over the next five years as compared to the last five.
CPR’s newest Issue Alert, which I co-authored with CPR President Rena Steinzor and Member Scholar Rob Gicksman, argues that traditional enforcement should be the last function the agency should cut because it is the most cost-effective weapon to prevent backsliding on the progress the nation has made in reducing traditional pollution.
Instead of traditional enforcement, the agency’s plan embraces a new enforcement paradigm called “Next Generation Compliance.” NextGen relies on self-monitoring and reporting by polluters, aims to make regulations “easier” for them to comply with, and replaces the way EPA measures the effectiveness of its enforcement activities with untested methods.
The Issue Alert finds that EPA’s new enforcement scheme has at least four specific shortcomings:
It relies on industry to police itself, an untested and unproven approach that on its face invites noncompliance;
It signals a clear rollback in traditional deterrence-based enforcement, a tested and proven approach;
It seeks to mask the plain harm to public health and environmental protection of congressional budget cuts with breezy, even risible assertions of improved enforcement; and
Its retreat from enforcement and related budget cuts could irreparably delay the restoration of the Chesapeake Bay and other natural treasures.
This retreat from enforcement could severely undercut regulated entities’ commitment to meet their responsibilities, exposing the public to unacceptable health and environmental risks. Enforcement should be the last function to suffer from inadequate budgetary allocations.
You can read a summary of the report here.Full text
Today, separate House committees will hold hearings that address two federal agencies’ efforts to regulate toxic chemicals. The House Energy and Commerce Committee’s Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA). Simultaneously, the House Education and Workforce Committee’s Subcommittee on Workforce Protections will hold a hearing addressing, among other things, OSHA’s recent attempts to spur better protections for workers who face chemical hazards. The two hearings have been framed differently and will feature different witnesses, but they share a common thread: each committee’s Republican majority is championing a worldview in which federal agencies should be restricted from engaging in the most basic form of protective action – gathering and sharing information about toxic chemicals’ risks.
The Energy and Commerce hearing, which has a rather conspicuous absence of EPA officials on the witness list, will focus on the provisions of TSCA that relate to chemical testing. It is commonly accepted that EPA – and especially, the public – lack sufficient knowledge about the hazards presented by toxic chemicals in our environment. TSCA does not set out minimum requirements for testing that companies must undertake before putting a chemical in the stream of commerce, so we are left to deduce potential toxicity from whatever information companies voluntarily disclose to EPA in their “pre-manufacture notifications” and EPA’s own analysis of potential toxicity using models that compare chemicals of similar structure and composition. To make matters worse, some 60,000 chemicals were already on the market when Congress wrote TSCA in 1976 and their uses were grandfathered in, meaning that companies were not required to submit any testing information to EPA. Expect witnesses at the hearing to agree that more information would improve the balance between protecting the environment and protecting chemical companies’ bottom lines. But don’t expect them to agree on how to get more information. As we wrote in a July 2013 Issue Alert, the best solution involves multiple pieces: minimum data sets for all new and existing chemicals, prioritized review of those data sets, and information sharing between EPA and the European Chemicals Agency, which is pulling in large amounts of new information through its revolutionary REACH legislation.Full text
Suddenly politics in this country appears to have taken a turn toward democracy and away from markets.
As we develop in a book just published by Oxford University Press, Achieving Democracy: The Future of Progressive Reform, the history of the United States reveals a pattern in which citizens alternate between relying on markets and democracy, including government intervention in those markets, to achieve the type of country in which we wish to live.
Consider: President Obama was reelected over Mitt Romney, who sought to distinguish his candidacy by forcefully endorsing the small government approach. Congress has passed a budget, rejecting Tea Party efforts once again to derail the budget process until the Affordable Care Act has been repealed. The administration is finally on its way to implementing the Act, despite unrelenting efforts to obstruct it. Republicans have joined Democrats in discussing economic inequality. Regulation of Wall Street proceeds apace after the investment banks and mortgage lenders sank the American economy with their recklessness as they now write multi-billion dollar checks for their malfeasance. If indeed the tide has turned, the country is emerging from a cycle deemphasizing government that dates back to the election of Ronald Reagan.
It is too early to know for sure whether the country will once again embrace government as leader and partner in order to address pressing problems that markets have caused or are unable to address. Certainly the poisoning of drinking water in Charleston, West Virginia, the latest highly visible crisis attributable to the failure to engage in effective regulation, should help add momentum. But Tea Party-backed governors and legislatures are still in control in many of the states, and they’re so eager to please the right-wing constituencies that they’ve turned back federal dollars that would pay for healthFull text
Recently, the U.S. Chamber of Commerce released a report entitled Energy Works for US: Solutions for America’s Energy Future. The data and references in the report are largely accurate, as far as they go, and the report promotes energy efficiency, which is a welcome step. Ultimately, though, the report is unreliable because it has too narrow a vision of the energy future. It inaccurately characterizes government regulation and neglects the environmental consequences surrounding the production, use, consumption, and disposal of our energy resources. Instead, Energy Works is more of a political polemic rather than a useful white paper. While it may well serve the Chamber’s political agenda, Energy Works for US fails to recognize the complexities and challenges necessary to fashion our energy future.
Our energy future is as important a policy matter as any that now confronts the United States. Any discussion of our energy future, therefore, must be conducted with openness and candor and must recognize the complexities and challenges of fashioning that future. Unfortunately, Energy Works fails on each these counts.Full text
As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama. “We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs. Why wasn't this plant inspected since 1991?” he declared. “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people. Someone ought to be held accountable here.”
Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections. Or, to put the issue more bluntly: Why won’t anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren’t paying—or getting—enough? But fair is fair: John Boehner isn’t the president, and this latest catastrophe happened on President Obama’s watch, along with a string of other, disturbingly similar episodes.
It’s time to put to bed an unfortunate myth that’s been floating around the last few weeks. The myth goes something like this: The Office of Information and Regulatory Affairs (OIRA)—the opaque bureau within the White House charged with approving agencies’ draft regulations before they can be released to the public—has succeeded in improving the timeliness of its reviews during the last few months. OIRA has long been a roadblock to the successful implementation of critical safeguards, so if true, this claim would be welcome news. But, when OIRA’s recent record is viewed with a more critical eye, this claim simply does not hold up.
While it’s true that OIRA has recently cleared its docket of several high profile draft rules that have been stuck there for several months or even years, in many cases OIRA has done so by relying on what almost amounts to an accounting trick—one that seems calculated to skirt any meaningful transparency requirements.
A few months ago, CPR noticed a disturbing trend in which OIRA was increasingly using an obscure and relatively uncommon process known as a “withdrawal” to end some long-overdue reviews of high profile draft rules. Among the first rules to be disposed of through this scheme included the Environmental Protection Agency’s (EPA) draft proposed Chemicals of Concern list (withdrawn from OIRA review on September 6, 2013, after 1,214 days) and the National Highway Traffic Safety Administration’s (NHTSA) draft final rule for rearview cameras in automobiles (withdrawn from OIRA on June 20, 2013, after 583 days).
So, what is a withdrawal and why does it matter? A withdrawal occurs when the rulemaking agency (for example, the EPA or NHTSA) voluntarily withdraws a draft rule from OIRA review before it has been completed. The withdrawal process is distinct from a “return,” which occurs when OIRA ends the review by sending the draft rule back to the rulemaking agency for more work instead of approving it. From a transparency perspective, there is a crucial difference between withdrawals and returns. When OIRA uses a return to end a review, Executive Order 12866 (a legal document that governs OIRA review) requires that it issue a public “return letter” that explains the problems with the draft rule and why OIRA was otherwise unable to approve it. In contrast, with a withdrawal, the rulemaking agency is under no obligation to offer a public explanation for why it decided to withdraw the draft rule from OIRA review.Full text