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Test Questions I Wish I'd Asked

The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.

This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). By the way, if you’re a regular reader of CPRBlog, this should be a snap: All of the answers can be found in CPRBlog entries from the last five months.

So find a quiet spot, sharpen that No. 2 pencil, and test your knowledge.

1.    Last year, when the EPA began limiting emissions of CO2 from coal-burning power plants and other sources, the energy industry blew a fuse.  Affected companies publicly argued that greenhouse gas regulation had gone too far. But last February during oral argument before the U.S. Court of Appeals, lawyers for some of those same companies argued that the agency’s rule was invalid because it did not go far enough. According to them, what was wrong with the rule?

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EPA's Proposed Chemicals of Concern List Under OIRA Review for Two Years: That Goose is Cooked

Two years ago tomorrow, Saturday, EPA sent a seemingly modest idea over to the White House for a quick review.  The agency wanted to establish a simple list of “chemicals of concern.”  These weren’t chemicals that were necessarily going to be subject to bans or other restrictions, but they present significant enough hazards and are distributed widely enough in the environment to raise some eyebrows among EPA’s toxics staff.  Among the chemicals that were being proposed for inclusion on the list:  phthalates, PBDEs, and BPA.  The rule wasn’t expected to cost much, but EPA sent it to the White House anyway, probably because this was the first time the agency would use a particular statutory authority Congress first granted in 1972.  But two years after EPA sent the proposal to the White House, it is still sitting on a desk somewhere at OIRA, and I think it’s time to say it: OIRA has killed this rule.

It’s troubling that such a small thing as a list of dangerous chemicals could be dashed by the White House.  In 2009, GAO added EPA’s toxics program to its list of “high-risk programs warranting attention from Congress and the executive branch.”  Surely, this is not the kind of attention GAO had in mind.  GAO’s auditors have noted that

EPA has a limited ability to provide the public with information on chemical production and risk because of TSCA's prohibitions on the disclosure of confidential business information. About 95 percent of the notices companies have provided to EPA on new chemicals contain some information claimed as confidential.

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To Protect the Public, FDA Should Go Beyond Industry's Petition on BPA

CPR Member Scholar Noah Sachs and I submitted comments yesterday to FDA regarding the American Chemistry Council’s (ACC) petition to the agency on BPA. In September, the ACC petitioned FDA to remove approval for the use of BPA in “infant feeding bottles and certain spill-proof cups” (Rena Steinzor and I explained at the time the story behind the seemingly counter-intuitive move).

In our comments this week, we advocate for FDA to utilize its full rulemaking authority and take broader regulatory action to protect the public against BPA.  Specifically, we propose:

  • Issuing new regulations encompassing the ACC’s Petition and Rep. Edward Markey’s March 16, 2012 Petitions concerning abandoned uses;
  • Banning a much broader range of BPA uses without reference to age limits or target consumers; and
  • Mandating labeling of BPA in all food contact materials.

As we explain in the comments, convincing scientific evidence supports these broader measures because of the demonstrated low-dose effects of BPA and other endocrine disrupting chemicals.  These low-dose effects are not properly accounted for in current risk assessments of BPA and it is the role of FDA to act on behalf of all consumers' safety.

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FDA's "Wait and See" Approach to BPA Not Acceptable -- and Not the Only Option

Last Friday, the FDA denied the Natural Resources Defense Council’s (NRDC) citizen petition requesting that the agency ban Bisphenol A (BPA) as an approved food additive and food contact substance.  The agency took nearly three years to issue this decision, and did so only under a court’s order. The FDA’s denial of the petition was disappointing, because the existing science on BPA is strong enough to warrant restrictions on its use. The announcement was an unsurprising continuation of the federal government’s “wait and see” approach to BPA regulation. 

FDA spokesman Douglas Karas said that “this announcement is not a final safety determination and the FDA continues to support research examining the safety of BPA.”  There is no question that continued risk assessment and scientific study of BPA should be part of the FDA’s action plan for addressing the health and safety concerns that recent scientific studies on BPA have raised.  Earlier this year, CPR released a white paper, Protecting the Public from BPA:  An Action Plan for Federal Agencies, providing a list of short-term and long-term actions that federal agencies could take to address some of these mounting concerns about BPA.  At the top of our list for FDA was a continued and aggressive pursuit of the Agency’s collaborative research projects with the National Center for Toxicological Research and the National Toxicology Program.

In the meantime, however, I would remind FDA that a large body of scientific evidence already exists (and continues to collect) that supports increased restrictions on BPA’s use in food contact materials.  FDA itself has taken note of these concerns in its previous statements on BPA.  While FDA may see an all-out ban of this endocrine-disrupting chemical as too extreme or time-consuming, and continued scientific study is indeed imperative, there are a number of safeguards that would provide the public with some protections in the interim – much better than simply a “wait and see” approach.

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The Economist Recycles Old Right-Wing Ideas to Gut Public Protections

The Economist’s February 18 edition offers a cover package of five articles on “Over-regulated America” (1, 2, 3, 4, 5). Our British friends want you to know there’s a problem here in the States that needs fixing:

A study for the Small Business Administration, a government body, found that regulations in general add $10,585 in costs per employee. It’s a wonder the jobless rate isn’t even higher than it is.

You can almost feel The Economist’s pain: the jobless rate should be a lot higher than it is, if the premise about the costs of regulations is correct. Surely if the regulatory burden were actually 12 percent of GDP – that’s what the SBA numbers say, if you draw them out – things would be far worse than they are. Ideologically unable to consider the obvious alternative – that regulations don’t add $10,585 in costs per employee, The Economist, just, well, “wonders” aloud.

Here’s what The Economist would have found if they’d dug just a little bit:  Fully 70 percent of the SBA estimate was actually based on a regression analysis using opinion polling data on perceived regulatory climate across countries (in a strange twist, a separate article in the same issue actually questions the study, briefly). Whole reports have been written on why that number is bogus.

Our economy is still recovering from a tremendous collapse largely caused by under-regulation of financial institutions. But in its group of articles, The Economist wants us to think the opposite: “The home of laissez-faire is being suffocated by excessive and badly written regulation.” That premise, in turn, leads the magazine to – you guessed it – a series of warmed-over right-wing policy ideas aimed at gutting regulations. Let’s take a closer look.

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New CPR White Paper: What FDA, EPA, and OSHA Should do about BPA

Today CPR releases Protecting the Public from BPA: An Action Plan for Federal Agencies (press release), outlining steps the FDA, EPA, and OSHA can take to use existing authorities to warn the public about the dangers of the chemical, and prepare longer-term regulatory controls. The paper was written by CPR Member Scholars Tom McGarity, Noah Sachs, and Rena Steinzor, and Senior Policy Analyst Matthew Shudtz and myself.

Bisphenol A (BPA) makes me want to cry.  Not in the sad or mournful way, but in the “I want to kick and scream on the floor and throw a tantrum like my toddler” kind of way.   I didn’t always feel this way.  These feelings concerning BPA (an endocrine-disrupting chemical added to plastics to increase clarity and durability, and used in myriad other sources such as can linings, kitchen appliances, and water bottles) began to arise when I started working with CPR Member Scholars and fellow staff on BPA policy. The more I learned about BPA, the more I felt like its presence in my life was like mosquitoes in D.C.—a summer BBQ killjoy.

Then I became a parent, and the frustration and concern escalated, because the more I found out about BPA, the more I recognized that the industries using it did not truly understand how it affected my health, but more importantly, the health of my child.  Even worse, the new approaches to testing its “safety” and potential adverse health effects were churning out new evidence of its dangers.  Evidence that did not fit the traditional “risk assessment” model used by health and safety regulators and thus spurred no change in protective standards.

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Draft ESA Listing Policy Suggests "Museum Piece" Approach to Species Conservation

A draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.

The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?

Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court decisions overturning FWS attempts to delist that population of the species. Wolves once roamed throughout much of North America, but were reduced to scattered remnant populations due to habitat loss and a persistent drive to exterminate them. They were listed as endangered in 1967 under a predecessor to the ESA. After reintroduction efforts in the 1990s established wolf populations in the Yellowstone ecosystem and central Idaho, FWS attempted to remove the Northern Rockies wolf population from the endangered roll even though the three populations in existence (including the northern Rockies in and around Glacier National Park in Montana) inhabited only a small fraction of the area over which wolves once roamed. But conservation advocates pointed out that wolves remained absent in a significant portion of their historic range, which they asserted meant that the species still fit into the ESA’s definition of endangered.

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Beware of Plastics Manufacturers Bearing Gifts of BPA Bans

This post was co-authored by CPR President Rena Steinzor and CPR Policy Analyst Aimee Simpson.

In what at first glance seemed to be a startlingly uncharacteristic move, the American Chemistry Council (ACC) has petitioned the Food and Drug Administration (FDA) to update and strengthen its food additive regulation that sets out the approved uses for polycarbonate resins.   For those who don’t speak plastic, “polycarbonate resin” refers to plastic that contains bisphenol-A or “BPA”—an endocrine-disrupting chemical with significant health risks, especially for babies. Polycarbonate resin is found in everything from reusable food and beverage containers, to tin can linings and thermal receipt paper. 

While usually a staunch defender of unbridled BPA use in all things plastic, the ACC actually asked the FDA to remove approval for the use of BPA in “infant feeding bottles and certain spill-proof cups.” If this request has you scratching you head, you are not alone. Could it be that the ACC has finally surrendered to the mounting scientific evidence concerning BPA’s low-dose endocrine-disrupting effects and accepted that, at the very least, BPA should not be permitted in beverage vessels meant for children? Has the chemical industry beaten its swords into plowshares and made a small but progressive gesture toward better BPA regulation? Unfortunately, a look at the petition and its potential implications shows that the answer to these questions is “no.” 

Thanks to consumer pressure and state and municipal legislative bans, major manufacturers of BPA no longer sell their products to the manufacturers of baby bottles and sippy cups.  The ACC bases the petition on a portion of the FDA regulation that invites people to point out when manufacturers have abandoned old uses.   But the ACC emphatically denies that BPA in baby products raises health concerns.

Instead, the ACC follows the by-now familiar route of blaming the victim—a.k.a. the consumer—for BPA’s removal. Under this rationale, manufacturers did not make these decisions on the basis of “scientific evidence or safety,” but rather were forced to remove the chemical because consumers are consumed by mass hysteria and forced the poor, beleaguered companies to do it. If it is able to rewrite the record in this way, the FDA will make a decision long desired by public health experts for all the wrong reasons, and the ACC will be able to claim that voluntary-abandonment-in-a-hostage-situation is the only real reason for the agency’s action.

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White House Review of "Chemicals of Concern" List A Full Year Past Due

In May 2010, EPA sent a draft “Chemicals of Concern” list, including bisphenol A (BPA) and five other chemicals, to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. The proposed list would be the first time EPA has used its authority under the Toxic Substances Control Act (TSCA) to publish such a list of chemicals that “may present an unreasonable risk of injury to health or the environment.” Today marks one year since OIRA exceeded the 120-day deadline for completing its review of EPA’s proposed chemicals of concern list.

The proposed list has met with fierce industry resistance, even though being added to the list only requires some minor additional reporting requirements.  Between Jun. 2010 and Jan. 2011, OIRA hosted eight meetings to discuss the proposed list. Of those meetings, seven were with industry groups and trade associations including ExxonMobil, Dow Chemical, the American Chemistry Council, and the Society of the Plastics Industry. One meeting was with public health and environmental advocacy groups including the American Association of Intellectual and Developmental Disabilities, and the Natural Resources Defense Council. Listing carries no regulatory action. Manufacturers are required to comply with some additional reporting requirements, but only if EPA conducts additional rulemaking.

Industry groups object to chemicals being listed because they say the substances might obtain a stigma. But considering the chemicals on the list – BPA, phthalates, and flame retardant polybrominated diphenyl ethers (PBDEs) – many of these already have a stigma because they have for years been linked with harmful health effects. Ultimately, stigma is not a strong argument, and attaching stigma to these chemicals is at least part of the point. EPA has a responsibility to protect human health and the environment from hazardous chemicals, but its legal authority to regulate and reduce exposures to chemicals is weak under TSCA. The next best thing the agency can do is inform the public, and encourage companies to seek less dangerous alternatives.  

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Legs of Two 17-Year-Olds Severed in Grain Auger, White House Sits on Young Worker Safety Rule

Cross-posted from The Pump Handle.

Tyler Zander, 17 and Bryce Gannon, 17 were working together on Thursday, August 4 at the Zaloudek Grain Co. in Kremlin, Oklahoma. They were operating a large floor grain aguer when something went terribly wrong. Oklahoma's reports that Bryce Gannon's legs became trapped in the auger, Tyler Zander went to his friend's aid and his legs also were pulled into the heavy machinery. Emergency rescue personnel had to cut apart the 12-inch metal auger in order to free the young men. They were flown 100 miles to Oklahoma City for surgery and they remain hospitalized.

The fatality rate for young workers performing hazardous tasks----like working with a grain auger-----is two times the fatality rate for all U.S. workers. The Fair Labor Standards Act (FLSA), administered by the U.S. Department of Labor's Wage and Hour Division (W&H) stipulates dozens of work activities that are too dangerous for workers of certain ages. Individuals under age 18, for example, are prohibited from working most jobs in coal mines, from forest-fire fighting, and from operating meat slicers and cardboard balers in grocery stores. However, the safety rules governing young workers employed in agricultural jobs have not been updated for 40 years.

Labor Secretary Hilda Solis said in December 2010:

"Protecting children and vulnerable workers abroad is a part of our overall efforts here at the Department of Labor."

In fact, just a few weeks earlier, the Labor Department's Wage and Hour division sent a draft proposed rule to the White House's Office of Information and Regulatory Affairs (OIRA) for review. [Why they sent an economically non-significant proposed rule to OIRA is another matter, and one I've written about previously.] The draft rule proposes modifications to Subpart E-1 of 29 CFR 570, entitled "Occupations in Agriculture Particularly Hazardous for the Employment of Children Below the Age of 16." The proposed changes are based in part on evidence assembled several years ago by the National Institute for Occupational Safety and Health (NIOSH) on injuries and deaths among young workers employed in agricultural jobs.

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