Rena Steinzor on CPRBlog {Bio}
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Toyota: Should Someone Go to Jail?

The congressional hearings so far on “sudden unintended acceleration” (SUA) in Toyota cars should have made two truths obvious to Washington policymakers. First, the strategy of counting on major manufacturers to voluntarily ensure that their consumer products are safe is unworkable in a competitive market, and second, safety agencies like the National Highway Traffic Safety Administration (NHTSA) need to walk softly but carry a very large stick.

Gone are the days when we could reasonably expect government technical experts to shadow manufacturers’ design engineers in order to coax them into taking care, even in a market with fewer than ten major manufacturers. But NHTSA still should have stepped out in front of the strong industry trend to rely on electronic controls or, as it is colloquially known, “driving by wire,” which is the likely source of SUA, at least in the Camry, and required all manufacturers to install an effective “brake to idle” feature across all models. According to the well-respected consulting firm Safety Research and Strategies, Inc., headed by former Center for Auto Safety staffer Sean Kane, this design, which is found in many other manufacturers’ cars operated by electronic throttles, brings the engine to idle if both the brake and the accelerator pedals are applied. Too many Toyota drivers have reported that no amount of braking would bring the car to a stop.

As important, now that the worst has happened and an unprecedented number of recalls are in the works, NHTSA must bring the full weight of its enforcement authority to bear on any malfeasance by Toyota. A decision by NHTSA to walk away without inflicting such punishment would encourage auto companies to return to business as usual. None of them want to be the next Toyota, but in the absence of a strong punitive response by the government, manufacturers have compelling incentives to continue to rely exclusively on internal corporate controls rather than disclosing problems to the government. And NHTSA, with a budget that is plainly insufficient to the task of ensuring vehicle safety, cannot protect the public without such full and timely disclosures.

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Eye on OIRA: King Coal

Thirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creek gave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless.

Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia’s School of Mines when the dam broke, told the West Virginia Gazette: “The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.” Spadaro added, “I went through stacks and stacks of documents that went back into the ‘50s, and I think that, if somewhere along the way, there had been somebody within government willing to say, ‘Something really has to happen here,’ then those people would be alive and their families would be whole.”

When EPA Administrator Lisa Jackson took office in the first wave of Obama appointments, she decided to become that official. Correctly identifying the problem of negligent disposal of 140 million tons of coal ash, a type of mining waste even more toxic than the slurry that assaulted the West Virginians, as a first-order environmental justice issue—people living within a mile of a coal ash dump site are 30 percent more likely to be poor and minority than the mainstream population-- Jackson accelerated a 30-year effort to cope with the problem by EPA career staff. We think she produced a proposed rule that would designate the ash a hazardous waste if it is dumped in pits and exempting it if it is recycled safely by, for example, incorporating it into the concrete used to build roads. We can’t be sure, though, because before the rule was even published in the Federal Register for comment, it vanished into the bowels of the Office of Information and Regulatory Affairs at OMB, the traditional killing ground for such efforts. We have no idea when it might emerge or what it will say when it does.

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The Toyota Fiasco: Where Were the Regulators?

Saturday’s Washington Post crystallized a trend of reporting in recent days showing that neither misaligned floor mats nor defective pedals are to blame for all acceleration problems in Toyota cars, at least not in the 2005 model Camry. The car, which has neither piece of offending equipment, does have electronic acceleration controls that are beginning to emerge as a potential cause of the problem. If those computerized systems are at the heart of even a small universe of Toyota’s problems, as long-time auto safety expert Clarence Ditlow told the Post, the problem should raise “a huge red flag.”

Automobile manufacturers have been working for several years to perfect electronic controls in their cars because those systems are much lighter and therefore are important in the effort to improve fuel economy by giving engines less weight to drag around. But you can scour the public record of the National Highway Traffic Safety Administration in vain to find any mention that federal regulators are focusing on the problems caused by electronic systems, a fact that is a damning indictment of how far the agency sank into lethargy during the Bush years.

NHTSA’s job is to spot trends in auto manufacturing and get out ahead of them, not to react after a sufficient number of deaths and injuries have brought defects to the front pages of newspapers across the country. Investigating “defects” after the fact is not a viable alternative to prospective, prescriptive rules because NHTSA’s burden is more challenging at that phase and people have already been killed and injured by the time regulators rush in to mop up the fiasco. So, for example, a prospective rule on electronic controls could require the installation of a viable emergency braking system that could be used by consumers in any circumstance when the electronic system malfunctions and sudden acceleration occurs, and would avoid the problem of sending regulators out to prove a systematic defect in delicate electronic systems after fatal accidents, on wrecked cars, and case by case.

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Eye on OIRA: The 121st Day and Coal Ash Still Going to Pits in the Ground

Tomorrow will be the 120th day since the White House Office of Information and Regulatory Affairs (OIRA) began its review of the Environmental Protection Agency’s (EPA) star-crossed proposal to declare coal ash that is not safely recycled to be a hazardous waste. The number is significant because it marks the end of OIRA’s allotted review period for the proposal, under the Executive Order that governs OIRA.

The date will likely come and go without fanfare. By rights, OIRA ought to either release the proposal for public comment or return it to EPA for rewriting. You’d think OIRA would be eager to get the thing off its plate, since its staff have been compelled to sit through no fewer than 33 separate meetings on the subject in recent months, no fewer than 28 with industry lobbyists opposed to the rule. But I harbor no expectation of an announcement. It’s more likely that OIRA will just keep working to browbeat EPA staff into rewriting it to the point that the coal industry calms down.

Readers of CPRBlog may recall that coal-fired power plants, while providing half of the nation’s electric power, generate an astounding 136 million tons of toxic coal ash annually. They dump much of it into what are euphemistically called “surface impoundments,” but in fact are no more or less than big holes in the ground that remain open to rainfall from above and water seepage from below—hence the equally distressing labels “coal ash slurry” and “coal ash sludge.”

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Eye on OIRA: Coal Ash Visits by Regulation Foes Up to 28; OIRA’s Open Door Policy Creates Double Standard for Special Interests, Flouting Obama Ethics Initiatives

According to recent statements from the Office of Information and Regulatory Affairs (OIRA) press office, Administrator Cass Sunstein and staff are adamantly committed to granting an audience with OIRA senior staff to anyone who asks to see them about anything, and most especially pending health and safety rules. So not only are special interests granted second, third, fourth, and fifth audiences with OIRA staff after far more qualified political appointees and technical experts at agencies like the Environmental Protection Agency and the Food and Drug Administration have considered but refused to acquiesce to their demands, OIRA imposes no limits on how many times the same interest group—and even the same individual lobbyist—comes to the White House to whine. The most blatant example of this pseudo-transparency-turned-lobbyist-free-for-all is the uncontrolled swarming of special interests with respect to the pending EPA proposal to treat coal ash as a hazardous waste unless it is safely recycled. Here’s the scorecard as of February 6, 2010.

OIRA Meetings on Coal Ash, as of February 6, 2010

(Click links to see attendees and examine documents presented to OIRA staff.)

Parties Supporting EPA Proposal (5)

Parties Opposing EPA Proposal (28)

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The Human Costs of Pander, Take 3: Parents Beware the Incredibly Shrunken Consumer Product Safety Commission

Eighty percent of the toys sold in the United States are manufactured abroad, the vast majority in China. Because China has no effective regulatory structure, these imports are notoriously dangerous for children. The most prominent example is toys coated with lead paint, made that way because in China, lead paint is actually cheaper than the safe variety because the Chinese have increased the mining of lead ore by 50 percent since 2001. (Let’s not even imagine what Chinese manufacturers are selling to their own people). But it’s not just lead-laden toys. Independent investigations also discovered that Chinese manufacturers were using a chemical coating on tiny glue dots sold as part of a craft set for young kids that metabolized into the date rape drug gamma hydroxyl butyrate by kids who ate them. Some did, and ended up in the hospital. And just this Christmas, scientists found the toxic chemical cadmium in the coating of a Rudolph the Red-Nosed Reindeer charm bracelet, again, courtesy of Chinese manufacturers.

We shouldn’t have to rely on the good intentions of Chinese manufacturers to make sure our kids’ toys are safe. And in fact, sparing us from such leaps of faith is the responsibility of the Consumer Product Safety Commission, which also has jurisdiction over 15,000 product categories and hundreds of millions of products sold annually, including everything from backyard barbecues to food processors to electric drills. In 1981, before President Reagan took office and did his best to smother health and safety agencies, the CPSC’s budget of $41 million supported 891 full-time equivalent (FTE) employees. Under President Obama’s FY2011 budget released yesterday, the agency will have 576 FTEs, at the shockingly modest cost of $118.6 million, a 0.3 percent increase over last year. That’s right, in FY 2011, 315 fewer employees at a cost of $118 million dollars, an amount so tiny by federal budget standards that it hardly makes a dent. In the intervening three decades, the U.S. population has grown from 229 million to 305 million – 76 million more consumers out there buying products whose safety is, unfortunately, not guaranteed.

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The Human Costs of Pander, Take 2: Obama Budget Shortchanges FDA and Food Safety

As we feared, in an effort to save pitiably small amounts of money in the discretionary (non-military) portion of the budget, President Obama’s FY 2011 budget, announced today, shortchanges very real threats to public health. Case in point: the Food and Drug Administration’s ongoing struggle to improve the safety of the American food supply. (FDA regulates 80 percent of it; USDA regulates the 20 percent that is meat and poultry, and that is, if you’ll pardon, its own kettle of fish) Each year in the United States, food-borne illnesses cause 5,000 deaths, hospitalize 325,000, and sicken 1 million, and no realistic observer of the FDA’s efforts thinks they are remotely adequate. Yet the Obama budget increases total spending for the FDA’s food and drug missions by a paltry $80 million, barely a rounding error in the funds dispersed for the bank bailout.

Counting the fees the agency already collect for new drug approvals, $450 million in fees on tobacco companies, and $250 million in fees on food producers that are not yet approved by Congress, where the Senate has repeatedly stalled its consideration of food safety legislation, the FDA budget would be $3.7 billion. Even this seemingly impressive figure does not come close to getting the job done.

The Wall Street Journal quotes Bill Hubbard, a former FDA associate commissioner, saying it's "basically a flat budget" when inflation is considered. Hubbard heads the Coalition to Save the FDA, a highly unusual, bipartisan group that includes public interest, patient, and industry organizations as diverse as the Center for Science in the Public Interest, the Consumer Federation of America, and the Grocery Manufacturers Association.

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EPA's New NO2 Rule: A Tale of OMB Interference

The EPA issued a new rule recently on nitrogen dioxide (NO2) -- but not before it was weakened by OMB. The consequences for the public health are real.

The possibility of OMB interference in the rule was first raised by Matt Madia of OMB Watch. He noted that EPA's draft final rule -- sent to OIRA for review on December 18 -- required all metropolitan areas with a population of 350,000 people or more to install a monitoring station for measuring NO2 emissions near a major roadway in the area. By the time OIRA completed its review on January 22, the minimum threshold for monitoring stations had been increased to one per 500,000 people. Troubling, to say the least.

We noticed a document that shines further light on what happened behind the scenes. The EPA had made its position clear, it turns out. In a January 20th email about the "500,000" proposal, Lisa Heinzerling, the EPA's Associate Administrator for policy, wrote, "EPA does not support the alternative threshold described in the email below." (Full disclosure: Heinzerling is a former Member Scholar of CPR. We found the e-mail in question ourselves.)

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The Human Costs of Pander

President Obama’s expected State of the Union announcement that he plans to seek a freeze on non-security discretionary spending is an early warning sign that he and his team have decided to play small ball, abandoning the promise of his newly minted transformative presidency. The President’s decision to borrow this shopworn pander from the Reagan, Clinton, and Bush administrations almost certainly means continued, fatal dysfunction for the five agencies that ensure the quality of the air we breathe and the food we eat, the safety of the drugs we take and the consumer products we buy, and the control of toxic chemical exposures in the workplace.

Let’s be clear: those five protector agencies are severely handicapped in their efforts to protect Americans from a variety of hazards because their budgets have been shrinking or staying flat while the challenges they face have grown. In the scale of the things, it wouldn’t take a lot of money to give them the resources they need to protect us from future iterations of the recent spate of regulatory failures – poisonous peanut butter, toxic drywall, lead-laden toys, etc. Mostly, it just takes political will.

Instead, we get a freeze that will do little to trim the budget, and nothing to help the economy – it might even harm it! And to what end? Within the first brief news cycle that contained his announcement, Michael Steel, spokesman for the House Minority Leader John Boehner, compared the freeze to a pie-eating contestant’s promise to go on a diet, perhaps not the warm bipartisan embrace the President’s team had in mind. In the ultimate irony, the total expenditure for all these agencies and the Food and Drug Administration is about $10.3 billion, 50 percent less than the supposedly piddling amount the freeze will save annually through the end of the president’s first term. You could increase their funding by 50 or even 100 percent without having much impact on the deficit.

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Coal Ash First Real Test of Obama Commitment to Health and Safety Regulation

A critical test of the Obama Administration’s commitment to reviving the Environmental Protection Agency (EPA) is teeing up behind closed doors at the White House. Once again, the Office of Management and Budget (OMB) is cast in the role of regulation killer, supported by a slew of state and other federal agencies that are polluters in this scenario. Other players include a nearly hysterical segment of the electric utility industry, which argues that labeling coal ash as a hazardous waste will prove prohibitively expensive, as well as a coalition of public interest activists that includes Robert Bullard, the father of the environmental justice movement. The story has ample drama: a provable case of racial discrimination, companies as haughty as any on Wall Street, and an appealing heroine, Lisa Jackson, the embattled EPA Administrator, who is the public face of this Administration on the environment but, in a discordant replay of history, could be forced to fall on her sword by anonymous White House economists. (Remember Bush II’s Christine Todd Whitman, former governor of New Jersey, pushed to resign by the machinations of Vice President Dick Cheney? Jackson has less prominent opponents, but just as much on the line.)

An industry victory on the issue would suggest that presidential appointees, confirmed by the Senate and presented to the American people as accountable for everything from food and drug safety to toxic chemical exposures in the workplace, are not really in charge of their agencies but instead could be compelled to become puppets for a White House staff any time a powerful industry screams loudly enough.

The most recent chapter in this saga begins in Kingston, Tennessee three days before Christmas, 2008. A six-story-high earthen dam used to contain a coal ash waste pond at a power plant operated by the Tennessee Valley Authority (TVA) collapsed, releasing more than 1 billion gallons of jet black sludge laced with arsenic, cadmium, chromium, lead, mercury, selenium, and thallium. By volume, the spill was more than 100 times larger than the Exxon Valdez disaster, covering more than 400 acres of homes, farms, businesses, roads, rivers, and irreplaceable wetlands. (See table at end of this post listing the chemicals commonly found in coal ash and their negative health effects.)

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