Regulatory Plans Show Agencies at Risk of Failing to Finish Numerous Critical Rules During President Obama's First Term

In April, CPR released a paper that looked at 12 critical rulemaking activities that we urged the Obama administration to finish by June 2012. The new regulatory agendas released by the agencies earlier this month show that instead of moving forward, the agencies are often slowing down.  Contrary to the “tsunami” of regulations that the Chamber of Commerce claims is hampering economic recovery, this is a molasses flow that will delay life-saving public protections for workers, air breathers and water drinkers. 

One rule that was on track in April is now definitely off track: an update to the National Ambient Air Quality Standard (NAAQS) for particulate matter. Another rule that was on track is now probably off track: the Power Plant New Source Performance Standards for limiting greenhouse gases were pushed back from May 2012 to Jun 2012, which is the deadline we identified to complete rules in Obama’s first term (after that point, re-election politics will likely stifle any continued efforts to finish important rulemakings, and, in any event, rules completed after that point risk being overturned under the Congressional Review Act if Republicans are able to win both houses of Congress and the White House in the 2012 elections).

All or parts of eight of the rulemaking activities highlighted in the paper have been severely delayed since the paper was released in April:

• EPA’s Boiler MACT Rule, which would save up to 6,600 lives, avoid 4,000 heart attacks, and prevent 46,000 cases of aggravated asthma. In the paper, we anticipated that the EPA would complete the rule sometime in August of 2011. (The agency issued a final rule in March, but immediately initiated a reconsideration process, which under the Clean Air Act, would have to be completed no later than August.) Instead, the EPA surprised (and disappointed) many by reconsidering the rule under the Administrative Procedure Act, eventually giving itself until April of 2012 to complete it. While technically on track, this 10-month delay will still have disastrous consequences for public health and the environment, including up to 5,500 premature deaths and up to 3,300 non-fatal heart attacks.
• EPA’s Ozone and particulate matter NAAQSs, which would prevent cardiac and respiratory illnesses, and prevent strokes and premature death in people with underlying heart and lung disease. As noted above, the particulate matter NAAQS has been derailed since our report, and is now no longer on track to be completed. According to EPA’s last regulatory agenda, the particulate matter standard was expected to be proposed in Mar. 2011 and finalized in Nov. 2011. But according to the new regulatory plans, the particulate matter standard has been downgraded to a long-term action, with deadlines for proposed and final standards set as “to be determined”—both clear indications that the agency has no intention of completing the standard anytime soon. In contrast, EPA’s review of the ozone NAAQS is still on track. EPA still plans to issue the proposed update to the ozone standard in August, and sent the proposed rule to OIRA for review on Jul. 11, 2011. Industry is trying hard to get the Administration to weaken the rule.
• EPA’s Guidance on the Scope of the Clean Water Act, which would provide better protection for wetlands and marginal waters, and empower EPA to take stronger enforcement actions for wetlands and marginal waters. The guidance completed its OIRA review on Apr. 27, 2011. EPA extended the comment period on the guidance through Jul. 31, 2011. In our report, we urged EPA to initiate an expedited rulemaking to codify this rule by June of 2012. The new regulatory agenda reveals that the EPA has not begun such a rulemaking yet, making it unlikely that it would complete this rulemaking in time.
• Mountaintop removal mining program, which would protect mountain lands and streams, protect animal habitats, and protect drinking water in Appalachian communities. Two components of this program remain off track. First, EPA’s guidance on applying the Clean Water Act to surface mining has been under review at OIRA since Apr. 13, 2011. In our report, we urged EPA to immediately begin an expedited rule to codify this guidance. The new regulatory agenda reveals that the EPA has not begun such a rulemaking yet, making it unlikely that this rule would be completed in time. Second, the Department of the Interior’s proposed stream buffer rule was supposed to be released in February. The current regulatory agenda has the deadline pushed back to December of 2011(!) with no deadline for a final rule. It looks highly unlikely that this rule will be finished in time. Fortunately, a third component of the mountaintop removal program appears to be on track. The U.S. Army Corps of Engineers has set a timetable in its new regulatory agenda for issuing Nationwide Permit 21,which covers mountaintop removal mining-related dredge or fill activities, by December of 2011. (As of the publication of our report, the Corps had not set a timetable for completing the permit.) This timeline will ensure that the permit is completed on time.
• The Occupational Safety and Health Administration’s (OSHA) Injury and Illness Prevention Program, which would require employers to establish a management program in which employers and employees work together to identify and address workplace hazards. OSHA planned to conduct a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel in Jun. 2011, but the agency has delayed this action to “gather more stakeholder input and conduct the economic and feasibility analyses.” Given these delays, OSHA does not appear to have any hope of completing this rule in time.
• The Mine Safety and Health Administration’s (MSHA) updated Pattern of Violations rule, which would hold serial violators of health and safety standards accountable, and compel mines to reduce significant and substantial violations. MSHA extended the comment period on its proposed rule until Apr. 18, 2011, and it plans to hold public hearings in Nov. 2011. Given these additional delays, the agency will probably not complete the rule before Jun. 2012.
• The Food and Drug Administration’s (FDA) rule specifying Good Manufacturing Practices for infant formula, which would ensure that infant formula meets nutritional needs of babies, and prevent contamination of infant formula by Salmonella enterica and Enterobacter sakazakii. The agency’s regulatory plan says FDA intends to issue the final rule in Nov. 2011. The last regulatory agenda stated that the agency planned on issuing the rule by June of 2011. Given that Congress first ordered the FDA to issue this rule in 1986—25 years ago!—this additional delay is inexcusable. The rule will at least be completed before June 2002—assuming the FDA actually adheres to this timeline.
• EPA’s Chemicals of Concern List, which would provide the public early warning about health problems associated with several phthalates, several polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA). EPA’s regulatory plan says that the agency intended to publish the list in Jun. 2011, which is unchanged since the last regulatory agenda. The proposed list is still under review at OIRA, and has been under review since May 12, 2010. At this rate, it seems highly unlikely that the agency will complete the rule in time.

Portions of two other rulemaking activities we highlighted in our report have also been slightly delayed since April:

• Corporate Average Fuel Economy and Greenhouse Gas Emissions standards for cars and trucks, which would reduce greenhouse gas emissions and help Americans save money on fuel costs.  The final standard for medium- and heavy-duty trucks, which would save 21 billion gallons of fuel, and avoid 250 million metric tons of greenhouse gas emissions, has been slightly delayed. EPA and NHTSA’s updated regulatory plans say that the agencies plan on publishing the final rules in Aug.2011 which is roughly a one month delay compared to the agencies’ last regulatory agenda. In contrast, the rulemaking for establishing the next set of standards for light-duty vehicles, model years 2017-2025, has not been delayed, but the slow rulemaking timeline will prevent EPA from completing the rule in time. In our report, we noted that this rule was not on track to be finished in time (proposal in September of 2011 and final rule by July of 2012), and this remains the case.
• New Source Performance Standards to Reduce Greenhouse Gas Emissions from Petroleum Refineries and Power Plants, which could potentially generate massive reductions in greenhouse gas emissions. Since we issued our report, EPA has slightly delayed the power plant standard. EPA’s new regulatory plans say the agency intends to propose the power plant standard in Aug. 2011 (though in June, the EPA entered a new settlement agreement in which they committed to issuing a proposed rule by September of 2011), and finalize it in Jun. 2012—roughly one month behind the schedule the agency set itself in the last regulatory agenda. But EPA has not submitted the draft proposed rule to OIRA yet, so it is not clear whether it will publish its proposed rules in September. In any event, even this slight delay may be enough put this critical rule off track. The political pressure against the rule will be immense. In contrast, the petroleum refinery standard has not been delayed, though under the current rulemaking timeline, EPA will still not complete this crucial rule in time. In our report, we noted that the petroleum refinery standard is not on track, and it still remains off track under the current agenda.

And the best the agencies can do for the remaining rules is not to slow the timeline down any further:

• EPA’s National Stormwater Program Rule, which would prevent pollution from urban runoff, including motor oil, lawn fertilizer, and pet waste. EPA’s new regulatory plan says the agency expects to propose these rules in Sept. 2011, and finalize them in Nov. 2012. EPA has not submitted a proposed rule to OIRA yet. This rulemaking timeline is largely unchanged from that listed in EPA’s last rulemaking agenda. As we noted in our report, the rule will not be completed in time, unless the agency dramatically increases its pace.
• EPA’s Coal Ash Disposal Rule, which would protect communities threatened by ineffective storage strategies for coal ash and prevent future tragedies like the one in Kingston, Tennessee. EPA’s regulatory plans show that the agency intends to issue a notice re-opening public comments. This notice went to OIRA on Jul. 4, 2011. But the agency’s long-term plans are yet to be determined, and the agency has not announced a timeline to publish a final action (it has said only that it will not happen in 2011). Thus, as before, EPA’s coal ash rule remains off track for being completed in time.

It’s not clear why all of these rules have been delayed. Perhaps the Obama Administration is bowing to pressure from regulated industries and their conservative allies in Congress. Perhaps the agencies have lacked the resources to continue moving forward on these critical safeguards, having been distracted and delayed by the misguided look-back exercise required under Obama’s new Executive Order on regulation. Considering the benefits these rules would confer in terms of reduced greenhouse gas pollution, avoided emissions of toxic air pollutants, protection of wetlands and marginal waters, more accountability for serial offenders at mines, and safer workplaces, the Obama administration should be racing to finish these rules, not pushing them back.