Opportunity Wasted

(continued, page 3)

See a chart summarizing all 12 rules covered in this report

National Stormwater Program

Stormwater is a ubiquitous source of water pollution, channeling a highly polluted cocktail of motor oil, lawn fertilizer, pet waste, and other contaminants directly into lakes, rivers, and estuaries around the country. Stormwater is the leading source of pollution in many of the nation's impaired waterbodies, and unless it is properly controlled, these waterbodies will continue to be unfit for drinking, recreation, or animal habitat. The Obama Administration launched a rulemaking to strengthen existing stormwater controls, but the effort will likely not be completed during the current presidential term.

The Administration's Spring 2011 regulatory agenda projected that the EPA would issue a stormwater proposal in September of 2011, but the Fall 2011 regulatory agenda pushed that release date back by four months to January of 2012. Despite this delay, the new agenda still projects that the EPA will issue a final rule by November 2012. The EPA has already missed the January deadline for issuing the proposal, and the proposal is unlikely to come out for several months still, since the agency still has not submitted the draft proposal to OIRA for review. Given this delay, the EPA is unlikely to issue a final stormwater rule before the current presidential term ends.
 

Mountaintop Removal Mining Rules

Mountaintop removal mining is a highly destructive process that decimates fragile mountain ecosystems and streams and threatens the health and wellbeing of entire downstream communities. Three agencies--the EPA, the Department of the Interior, and the U.S. Army Corps of Engineers--share primary regulatory oversight for mountaintop removal mining. For years, their oversight has been woefully inadequate. Consequently, during the Obama Administration, these agencies launched a coordinated program to enact new controls that could significantly reduce the harmful public health and environmental impacts of mountaintop removal mining. Two of this program's three components--a rulemaking to codify the EPA's guidance on applying the Clean Water Act to mountaintop removal mining and the Department of the Interior's stream buffer rule--are not on track to be completed in time. The third component--the U.S. Army Corps of Engineer's nationwide general dredge-and-fill permit for mountaintop removal mining--has just been completed.

In July of 2011, the EPA issued its final guidance clarifying how the Clean Water Act Section 402 and Section 404 permitting programs should be implemented in the context of mountaintop removal mining activities. The CPR 12 Rules white paper urged the agency to initiate an expedited rulemaking to codify this guidance. Neither the latest regulatory agenda nor the EPA's online rulemaking gateway indicate that such a rulemaking has been initiated. Without a rulemaking already underway at this point, it would be impossible for the EPA to issue a final rule codifying its mountaintop removal mining guidance before the current presidential term expires.

The Department of the Interior's proposed stream buffer rule, which seeks to limit the circumstances under which mining companies can disturb land near ecologically fragile mountain streams, has been delayed again. Whereas the last regulatory agenda projected that the proposal would be released in December of 2011, the new regulatory agenda projects that the proposal rule will be issued in April of 2012. The new agenda projects no timeline for the final rule, however. The Department of the Interior has not yet sent a draft proposal to OIRA for review, so the April 2012 date for the stream buffer proposal is already doubtful. Even if the agency were able to issue a proposal by then, it would likely not be able to complete a final rule before the current presidential term expires.

The one component of the mountaintop removal program that has been completed is the U.S. Army Corps of Engineers' update of the nationwide general permit--Nationwide Permit 21--that governs the application of the Clean Water Act's Section 404 dredge-and-fill permitting program for certain kinds of surface mining operations, including mountaintop removal mining. The new regulatory agenda, as with the last one, projected that the final permit would be issued in December of 2011, but the Corps did not issue the permit until February of 2012--more than one month behind schedule. (After more than three months, OIRA completed its review of the draft final permit on February 13, 2012.) The effect of the permit is to exempt certain kinds of dredge-and-fill projects associated with surface mining from individualized and careful scrutiny by the Corps. Because these projects are so environmentally destructive--particularly those associated with mountaintop removal mining--it would have been preferable had the Corps decided not to issue a new nationwide permit, and instead mandated that all permits for surface mining-related dredge-and-fill projects be subjected to individualized review and approval. Fortunately, the new nationwide permit places much more stringent restrictions on the kind of dredge-and-fill projects that it will cover as compared to the existing nationwide permit, which is due to expire in March of 2012. Consequently, the new permit will enable the Corps to individually review and approve a larger universe of these projects before they can be undertaken, which should help to reduce their harmful environmental impacts.

Coal Ash Disposal

Coal ash--a byproduct of producing electricity by burning coal--contains arsenic, cadmium, lead, selenium, mercury, and other toxic contaminants, and is the single largest source of hazardous waste in the United States. A large loophole in the Resource Conservation and Recovery Act (RCRA), the federal statute that governs the disposal of hazardous wastes, has left coal ash waste unregulated for several decades. But in the wake of the catastrophic coal ash spill in Kingston, Tennessee, in 2008, the EPA launched a rulemaking to close that loophole.

The EPA's draft coal ash waste proposal ignited a firestorm of opposition among affected industries and their allies in Congress. While the draft proposal was under review, dozens of groups met with OIRA, urging it to force EPA to weaken the rule. After several months--well beyond the 120 days allowed by the Executive Order 12886--these lobbying efforts succeeded: In May of 2010, the EPA released a “co-proposal,” seeking comment on three separate standards, and leaving undecided whether it would regulate coal ash strictly as a hazardous waste or give states the authority to regulate coal ash weakly, as if it were no more dangerous than household garbage.

Almost two years later, it is all too clear that the EPA will not issue a final rule governing the disposal of coal ash waste any time soon. The new regulatory agenda confirms that the agency does not anticipate taking any steps to advance the rulemaking during the next 12 months; it categorizes the rule as a “long-term” action, and it lists the timeline for issuing a final rule as “to be determined.” The EPA is therefore unlikely to issue a final coal ash rule before the current presidential term expires.

Injury and Illness Prevention Program

Every year in the United States, between 4,000 and 5,000 workers die on the job, many tens of thousands more are severely hurt or afflicted with debilitating illnesses, and still tens of thousands more die as a result of the long-term consequences of injuries or illnesses that began on the job. Many of these injuries, illness, and deaths are preventable, but are not prevented because too many employers in this country have neglected their affirmative duty to provide their workers with a safe and healthy workplace, as required by the Occupational Safety and Health Act. During the Obama Administration, the Occupational Safety and Health Administration (OSHA) began developing the Injury and Illness Prevention Programs (I2P2) rule to require employers to develop and implement comprehensive health and safety management programs that are designed to find and fix all hazards in a workplace. OSHA will not complete this rulemaking before the current presidential term expires.

Work on the I2P2 rule has become so bogged down that OSHA is struggling to overcome the first procedural hurdle before it issues a proposal--namely, convening a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel. Under SBREFA, whenever OSHA is developing a rule that might impact a “significant number” of small businesses, it must give a panel of small business representatives a first chance at reviewing a draft of that proposed rule before it is released for public comment. The Spring 2011 regulatory agenda projected that OSHA would convene the SBREFA panel in June of 2011. After June came and went without the SBREFA panel process starting, the agency announced that this step in the rulemaking process would be delayed indefinitely.

The current regulatory agenda states that OSHA would convene the SBREFA panel in January of 2012. OSHA has already missed this deadline, and a recent Inside OSHA article reported that the agency plans to convene the SBREFA panel sometime in early March of 2012. The current regulatory agenda provides no date by which the agency expects to complete a proposal and final rule, indicating that OSHA does not plan to take such steps within the next 12 months. Under these circumstances, OSHA is unlikely to complete this rule until well after the current presidential term expires.

Pattern of Violations

As with most mining catastrophes, the tragic explosion at Upper Big Branch Mine that killed 29 miners in April of 2010 is fundamentally a story about a scofflaw mining company that repeatedly and willfully refused to take necessary steps to protect its workers. The “pattern of violations” provision of the Mine Safety and Health Act gives the Mine Safety and Health Administration (MSHA) enhanced enforcement authority to prevent scofflaw mines from putting their workers in harm's way. For more than two decades, the regulations implementing this provision have made it too difficult to bring scofflaw mines under the pattern of violations status. Following the Upper Big Branch Mine catastrophe, MSHA began developing new regulations for implementing the pattern of violations enforcement program, which would make it easier to hold serial violators of mine health and safety standards accountable and to compel mines to reduce significant and substantial violations.

MSHA issued a proposed pattern of violations rule in February of 2011, but it is unclear at the moment whether MSHA will be able to finish the rule on time.

MSHA's latest regulatory agenda projects that this rule will be finalized in April of 2012. The agency has not yet submitted the draft final rule to OIRA for review, so this timeline is in danger of not being met. As noted above, the patterns of violations rule must be finished by June of 2012 to avoid the risk of it being rescinded by means of a Congressional Review Act resolution of disapproval. The rule is currently on track to meet this deadline, but any prolonged delays at this point would put the future of this rule in jeopardy.

Infant Formula Good Manufacturing Practices

Congress first directed the Food and Drug Administration (FDA) to issue a rule establishing stronger good manufacturing practices for infant formula in 1986--more than 25 years ago. This rule would ensure that infant formula meets certain minimal nutritional requirements as well as prevent Salmonella enterica, Enterobacter sakazakii, and other harmful bacteria from contaminating formula. Today, the rule could not be more important, with infant formula included in the diet of nearly 90 percent of all babies under six months of age in this country. Despite decades of delay, the rule appears to be on track to be completed in time.

The FDA's progress on issuing a final infant formula rule has been distressingly slow. The agency issued a proposal in 1996 and has undertaken no fewer than three public comment periods on the proposal--the most recent one of which ended in 2006. The Obama Administration should have pursued the completion of this rule with greater urgency, considering that infant formula was suspected in a recent string of bacterial infections in babies that killed two newborns and severely sickened two others. Though government health officials were never able to confirm whether infant formula was the cause of these infections, the infant formula rule could do a lot to restore the public confidence in this product.

The FDA's Spring 2011 regulatory agenda projected that this rule would be finalized by November of 2011. The agency's new regulatory agenda has since delayed the completion of the rule until March of 2012. The FDA still has not submitted the draft final infant formula rule to OIRA for review, so it is doubtful the agency can meet the March 2012 deadline. Barring any unforeseen lengthy delays, the FDA should be able to finish this rule in time. Any lengthy delays, however, might push the completion of this rule beyond June of 2012, which would put the rule at risk of being rescinded through a Congressional Review Act resolution of disapproval.

Chemicals of Concern List

Tens of thousands of industrial chemicals are used in commerce, and many pose risks to human health and the environment. The Toxic Substances Control Act (TSCA) charges the EPA with crafting and enforcing regulations to protect people and the environment from such harms, but significant flaws in the statute leave the agency with insufficient authority to place restrictions on chemicals that are discovered to be harmful. Nevertheless, one provision in TSCA authorizes the EPA to develop a list of “chemicals of concern”--that is, chemicals that the agency has determined “may present an unreasonable risk of injury to health or the environment.” The chemicals of concern list provides the EPA with a mechanism to at least warn the public about the dangers posed by toxic chemicals so that they may take steps to protect themselves. The EPA has drafted a proposed rule that would add a category of eight phthalates, a category of polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA) to the TSCA Chemicals of Concern list, but the agency will not able to complete this regulatory action before the current presidential term expires.

The EPA's Spring 2011 regulatory agenda projected that the proposed chemicals of concern list rule would be issued in June of 2011. The current regulatory agenda now projects that the proposal will be issued in March of 2012. This astounding nine-month delay is entirely attributable to OIRA interference. The draft proposed rule has been stuck at OIRA since May of 2010--more than 15 months beyond the 120-day limit that Executive Order 12866 places on OIRA for conducting such reviews. Given the hold at OIRA, it seems unlikely that the EPA will be able to issue the proposal by March of 2012. The new regulatory agenda does not project a timeline for a release of the final chemicals of concern list, which suggests that the EPA is unlikely to take this step within the next 12 months.

What Does the Future Hold for These 12 Critical Regulatory Actions?

Because the protection of public health, safety, and the environment has become a divisive, partisan issue, the future of virtually all of these regulatory actions will ultimately depend on the outcome of the November 2012 presidential and congressional elections. All of the candidates for the Republican presidential nomination have attacked regulation generally, particularly where the EPA is involved, and several have made the issue a central argument in their campaign stump speeches. Any of these candidates, were they to secure their party's nomination and eventually prevail in the general election, would likely make it a top priority to cease work on any of the Obama Administration's unfinished regulatory business. As such, all or part of six of the twelve regulatory actions discussed above--including the ozone and particulate matter NAAQSs; the Clean Water Act scope rule; the mountaintop removal mining guidance and the stream buffer rules; the coal disposal rule; the I2P2 rule; and the chemicals of concern list rule--would almost certainly be among those regulations that would be halted, perhaps indefinitely. To the extent that a Republican presidential administration decided to pursue any of these regulatory actions--perhaps as a result of a binding settlement agreement or consent decree--it would likely advance rules that are considerably weaker than those currently being contemplated now, much as when the George W. Bush Administration sought to promulgate ozone and particulate matter NAAQSs that were so weak that the reviewing courts determined that they violated the Clean Air Act.

The results of this fall's congressional elections could play a huge role, too. During the last two years, Congressional Republicans have repeatedly but unsuccessfully sought to employ the Congressional Review Act to rescind protective environmental, health, and safety regulations. The prospects for Congressional Review Act resolutions of disapproval--which must pass both houses of Congress and be signed by the President--would be considerably improved if Republicans controlled both houses of Congress. All or part of three of the twelve regulatory actions discussed above--including the NSPSs limiting greenhouse gas emissions from petroleum refineries and power plants, the next CAFE standard for cars, and the stormwater rule--would certainly be in danger of rescission under this scenario. Further unnecessary delays could put three more of the twelve rules--the boiler MACT rule, the patterns of violation rule, and the infant formula rule--into this precarious situation as well.

Even if President Obama is reelected, completion of the rules we have identified is hardly guaranteed. Across a range of regulatory issues, the Obama Administration has demonstrated that it is frequently unwilling or unable to advance critical safeguards in the face of stiff political opposition. The political calculations are different during a second presidential term, but the politics will not disappear from the equation. If the President's team has concluded that vigorous pursuit of regulatory safeguards is bad politics, and that it is unwilling to expend political capital on them, there is good reason to worry that the Administration will never develop the stomach to promulgate and defend these rules.

That is exactly why the Administration's failure to adopt these rules in a timely way is such a tragedy. For the entirety of the Bush Administration, badly needed regulations languished, bottled up by political appointees disinterested in inconveniencing industry. President Obama promised new vigor on the regulatory front, and has delivered on that promise in some areas. But in others, including many of the rules highlighted in this report, the Obama Administration has simply failed to move with the necessary sense of urgency. For the tens of thousands of Americans whose health and livelihoods are threatened by these delays, the legacy of these unforced errors is steep indeed.

• See a chart tracking the progress of each of the 12 rules covered in this report
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