Cass Sunstein and Change We Can Believe In; Bush Administration Traditions Continue at OMB; Rocket Fuel in Drinking Water and Interagency Review

By now, followers of the controversy over the appointment of Cass Sunstein to serve as Obama Administration “regulatory czar” can do little but shake their heads in astonishment. The controversy over the Harvard professor’s nomination to OMB’s Office of Information and Regulatory Affairs has taken on a picaresque quality, as one bizarre delay follows another. The latest development in the Sunstein saga is reportedly the placement of another, as-yet unidentified senatorial hold on the nomination, perhaps at the behest of cattle rancher and National Rifle Association interests, with Majority Leader Harry Reid promising to take steps in September to release the nominee from limbo.

Meanwhile, as I have noted before in this space, like other nominees with delayed confirmations, Sunstein appears to be in firm control of his 50-odd person staff at the Office of Information and Regulatory Affairs (OIRA) where he has worked in a consultant capacity for several months. The nominee has left no discernible paper trail demonstrating his influence and, until recently, was also refusing to meet with outsiders or talk to the press. (He did meet with the ranchers in an effort to reassure them regarding his stance on animal rights, ultimately persuading Sens. Saxby Chambliss (R-GA) and John Cornyn (R-TX) to lift their holds.) Given Sunstein’s seeming ubiquity in the Old Executive Office Building, his high energy level and broad interests, the relatively small size of the office, and his stalwart commitment to doing this job, it is hard to imagine that much happens at OIRA without his knowledge and, most likely, his direct supervision.

If OIRA under Sunstein – if and when he’s finally confirmed – is going to be something other than what it was during the Bush Administration, one might already expect to see green shoots of real change emerging from the place. Unfortunately, it looks a lot like business as usual during this early period of the Sunstein era. The most recent indication of that is the approach OIRA has followed on one crucial toxics controversy, and the experience suggests that Sunstein has no intention of reversing some of the most destructive traditions established by his Bush Administration predecessors.

On June 5, 2009, OIRA staffers Jim Laity and Nancy Beck held a meeting with federal officials, including representatives from the Department of Defense, Department of Energy, the Navy, and the Air Force, as well as interested lobbyists from the Grocery Manufacturers Association and other industry groups to discuss EPA’s latest, tentative efforts to control human exposure to perchlorate, a chemical spread into the environment by discarded rocket fuel. OIRA put a list of participants and the hand-outs they brought with them on the public record, but did not disclose either what was said at the meeting or how its staffers responded to the military and industry complaints about EPA’s regulatory efforts. Two mid-level EPA career staff attended the meeting, but were outnumbered six to one by their critics. The OIRA website is devoid of any evidence that OMB staff subsequently consulted with representatives of public interest groups or the public health experts that have done extensive research documenting the health threats posed by perchlorate.

The trigger for the meeting at OIRA was EPA’s “regulatory determination” on whether available science justified reconsideration of the Bush Administration’s “midnight” decision refusing to regulate perchlorate under the Safe Drinking Water Act. As they have at every other juncture in the long saga of inaction on perchlorate, military representatives and their industry allies appear to have succeeded in intimidating EPA regulators. The Federal Register notice written by the Agency, released last week, invites “members of the public” to respond to a series of questions about the hazards posed by perchlorate but gives no indication whether or when EPA will actually move to control the contaminant. The notice reveals an EPA tied in knots over what level of perchlorate it should deem tolerable—the level that poses a hazard to babies in utero and infants, who are the most vulnerable members of the exposed population, or the level experienced by most other people. For reasons that are inexplicable and unjustifiable, EPA further refuses to consider scientific research compiled after the National Research Council (NRC) developed safe level for perchlorate exposure in 2005, even though the new data indicates that the toxic chemical is both more hazardous and more ubiquitous than the NRC supposed. In sum, the Agency does not seem to feel any urgency about addressing perchlorate, which children’s health advocates believe should be a top priority on its regulatory agenda for toxic chemicals.

Perchlorate interferes with the uptake of iodide by the thyroid, disrupting thyroid hormone levels and causing developmental problems in fetuses, babies, and young children. These problems are especially acute in cases where the mother also has thyroid problems that prevent her from passing on to her baby in utero enough thyroid hormones for normal development. Pregnant and nursing mothers are exposed to perchlorate through consumption of contaminated water, milk, or vegetables. The wrong dose of perchlorate at the wrong moment can throw the developing child’s delicate thyroid system into upheaval, also causing microcephaly (small brain), paraplegia, quadriplegia, or other movement disorders.

Adults store enough thyroid hormones to cover several weeks of iodide deficiency, allowing them to withstand the periodic shortfalls caused by various dietary changes. But a fetus has no storage capacity and an infant has only one day of surplus supply. Ordinarily, the fetus would get iodide from the mother, and nursing infants from breast milk or formula. But levels of iodide in normal adults are falling steadily, possibly because Americans have decreased the use of iodized table salt or eat iodide-containing foods in smaller quantities. Studies by the Government Accountability Office, the Food and Drug Administration, and the Centers for Disease Control have documented the disturbing prevalence of perchlorate in drinking water supplies, its common occurrence in fruits and vegetables irrigated with contaminated water, and the exposure of millions of pregnant and nursing mothers and their babies to dangerous levels of the contaminant. (The data are summarized here).

Because the Obama Administration’s OIRA has continued to follow the Bush Administration practice of refusing to disclose what happens at meetings with opponents of regulatory initiatives, we will never know the extent to which the session on June 5 contributed to EPA’s timidity. We do know that one of the OIRA officials who participated in the meeting, a scientist named Nancy Beck, was hired during the Bush Administration by John Graham and played a central role in fashioning the deregulatory “risk assessment policy” that was subsequently derailed by the National Academies of Science.

Effective federal controls on perchlorate are long overdue. Not only has EPA been blocked from acting decisively on this growing public health threat by the so called “inter-agency” objections of its military and industry opponents, the Department of Defense has made little effort to prevent the continued infiltration of perchlorate into soil and water on weapons testing and training facilities across the country. Rather than serving as the willing and gracious host of secret meetings where EPA regulators are browbeaten, Cass Sunstein and his staff should not only support but spur EPA action on this long-delayed problem.