Yet another report showing the Crandall Canyon mine collapse could have been prevented was released today. The House Education and Labor Committee, led by Rep. George Miller (D-CA), released the report after months of investigation. The disaster at the Crandall Canyon mine in Utah killed six miners and three rescue workers in August 2007.

The report, like two other reports released in March, finds that both the mine's operator and the Mine Safety and Health Administration are to blame.

In March 2007, four months before the disaster, a different collapse, or bump, occurred at a nearby part of Crandall Canyon mine. According to the report, officials managing mine operations and officials at Murray Energy, the mine's owner, new of the March incident but failed to report it to federal regulators — a direct violation of federal rules. The report states, "It is quite possible that, had MSHA known the full severity of the March bump," MSHA would not have allowed the mine to continue operations.

But MSHA still bears responsibility. MSHA was informally made aware of the March bump, but claims the mine's operators "downplayed" its significance. Regardless, MSHA foolishly approved (under intense pressure from the mine's operators) a plan for the company to conduct retreat mining at Crandall Canyon. Retreat mining is a dangerous technique in which miners remove support pillars in order to intentionally collapse areas of the mine no longer in use.

Because the mine's officials ignored federal law, Miller has referred them to the Justice Department for further investigation:

Last month, I sent a criminal referral to the Department of Justice, recommending that it investigate whether the mine's general manager, Laine W. Adair, individually or in conspiracy with others, willfully concealed or covered a material fact or made materially false representations in a matter under the jurisdiction of the executive branch, specifically MSHA…

Visit the committee's website to download the report and learn more.

Yesterday, the House Judiciary Committee's subcommittee on administrative law held a hearing to investigate how the Bush administration has used rulemaking practices to advance the Unitary Executive Theory .

President Bush and his minions use the Unitary Executive Theory to claim the president has complete control over the conduct of the executive branch, and that he is accountable to no one in exerting said control. Bush's penchant for issuing signing statements and his refusal to accept congressional input in his conduct of the war in Iraq are two examples of this theory.

Federal agency rulemakings also provide an opportunity for Bush to apply the Unitary Executive Theory. Time and time again, the Bush White House has foisted upon agencies decisions that ignore the plain language of federal statutes (for example, EPA's recent revision to the national air quality standard for ozone). After such decisions are made, the White House routinely invokes executive privilege in order to escape the oversight powers of Congress and extend itself beyond the grasp of public accountability.

What's really galling is that, instead of being frank about opposing public protections on their face, the Bush White House frequently attempts to alter the substantive considerations that inform regulatory decisions. In other words, officials inside White House offices, such as OMB, meddle with science in an attempt to legitimize their political opinions.

Rick Melberth, OMB Watch's director of regulatory policy, testified at the hearing, and summed up the problem:

The application of the unitary theory as it is practiced in this administration and framed in executive branch directives gives the president, and a cadre of employees that represent the president, control over the substantive decision making of agencies. As a result, politics is injected and elevated into decisions where science and rational judgment should prevail. Political appointees have greater control over the substance of regulations; politics supersedes scientific and technical information that is critical to protecting our environment and health and safety at home and in the workplace. ...

When the president has the ability to override this statutory delegation of authority, the balance of power between Congress and the Presidency is altered. There is the perception, if not the reality, that special interests are favored heavily over the needs of the public. This process does not lead to better rules and public protections. When the president makes a substantive regulatory decision based on political considerations, scientifically-based protective standards are vitiated.

As OMB Watch recently reported, a recent U.S. government study on the potentially dangerous effects of bisphenol-A and a proposal by the Canadian government to ban the substance in baby bottles have prompted major manufacturers and retailers to phase out the production and sale of products containing the chemical. Bisphenol-A is a substance commonly found in hard plastics, including water bottles and baby bottles, and resins, including those that line food cans.

But voluntary action by businesses, however responsible and well-intentioned, is no replacement for federal regulations intended to ensure the public is fully protected. So, to whom does the responsibility of regulating bisphenol-A fall?

Since the chemical is contained in the lining of food cans, the Food and Drug Administration could take action. Unfortunately, FDA has said bisphenol-A does not pose a "safety concern at the current exposure level." (A congressional investigation uncovered that FDA had relied on two industry-funded studies in making its determination not to regulate.)

Since the chemical can leach from plastics into the water supply, the Environmental Protection Agency may have a responsibility, but mum's the word at EPA since news broke of bisphenol-A's potentially harmful effects.

Since bisphenol-A is contained in a host of consumer products made of hard, polycarbonate plastic, the Consumer Product Safety Commission may also be obligated to regulate such products. Last week, members of the House Energy and Commerce Committee wrote to CPSC commissioner Nancy Nord on that very subject:

There has been less focus on the possible presence of [bisphenol-A] in infant and children products, which would come under the jurisdiction of the Consumer Product Safety Commission. Were products such as teething rings, pacifiers, and children's flatware to contain [bisphenol-A], they could pose risks of cancer and neurological disorders to infants and young children.

The letter then asks Nord if the commission has done anything in regard to the chemical.

Even though at least three prominent federal agencies could take action, it doesn't seem like any of them intend to regulate, or even study, bisphenol-A. We deserve a government that will work to inform us of the hazards we face so we can maintain at least a modicum of control over the everyday things in our lives; and a government that will work to protect us when we cannot adequately protect ourselves.

The head administrator for EPA's Midwest Region, Mary Gade, resigned last week amid a political firestorm. Aides to EPA Administrator Stephen Johnson "told her to quit or be fired by June 1," according to the Chicago Tribune.

Gade claims she was forced out because she was trying to make Dow Chemical clean-up soil and sediment contaminated with dioxin, a highly toxic chemical and known carcinogen, in Saginaw Bay and Lake Huron. Dow has been dragging its feet on efforts to clean up the chemical which is emitted by its Midland, MI plant. Gade ordered Dow to begin dredging last year "when it was revealed that dioxin levels along a park in Saginaw were 1.6 million parts per trillion, the highest amount ever found in the U.S," according to the Tribune.

Gade was a Bush appointee, and a former corporate attorney who "had represented big companies like Dow against environmental regulators." Senior EPA officials are staying tight-lipped about Gade's resignation, but she told the Tribune she is certain it is a result of her aggressive pursuit of Dow: "On Thursday, Gade said of her resignation: 'There's no question this is about Dow. I stand behind what I did and what my staff did. I'm proud of what we did.' "

Ultimately, it doesn't matter whether Dow was the reason Gade was fired. EPA brass could say they fired Gade for stealing paper clips, but the damage is done: EPA officials on the ground will think twice next time they are considering aggressively enforcing environmental regulations, for fear of losing their jobs.

On Wednesday, the House of Representatives passed a bill that would require the Occupational Safety and Health Administration to develop regulations to protect workers from the hazards of combustible dust. The bill comes largely in response to a dust explosion in February that killed 14 workers at a Georgia sugar refinery. Because of his overwhelming disdain for federal protections in the workplace, President Bush has threatened to veto the bill.

For more on why the bill is necessary, and for a brief recap of the floor debate, visit the Pump Handle blog: "House Passes Combustible Dust Bill"

Yesterday, the Department of the Interior proposed rolling back regulations that prohibit people from carrying loaded guns in national parks, according to the Associated Press. The decision comes in response to pressure from the National Rifle Association and conservative Senators from both parties who believe the current ban on loaded guns in parks is "confusing." (The fact that a ban on guns in parks is "confusing" for members of the nation's highest legislative body is another disturbing issue that will not be discussed here.)

Dollars to donuts, the proposed change will be finalized before President Bush's term expires, in the fear the next administration may not be as friendly to the gun lobby. While most regulations take years to develop, the rollback on the gun ban is moving faster than a speeding bullet. The rule change was not included in the most recent Unified Agenda (the semiannual listing of completed or planned regulatory actions), meaning it may be a relatively new undertaking for the Interior Department. The first public word only surfaced in late February.

Those who want to lift the 25-year-old ban say that park-goers have a right to defend themselves. Of course, as Bill Wade of the Coalition of National Park Service Retirees says, "This is purely and simply a politically driven effort to solve a problem that doesn't exist." The AP article goes into more detail:

There is no data to suggest that the public would be served by allowing visitors to parks to possess concealed handguns, Wade and other critics said. They cited statistics showing that national parks are among the safest places in the country. The probability of becoming a victim of a violent crime in a national park is 1 in more than 708,000 - less likely than being struck by lightning, the groups said.

New evidence shows that the White House is meddling with a National Oceanic and Atmospheric Administration (NOAA) rule to protect the North Atlantic right whale — one of the most critically endangered whale species in the world. The rule has been awaiting clearance — or, more accurately, gathering dust — at the White House Office of Information and Regulatory Affairs (OIRA) since February 2007.

NOAA's National Marine Fisheries Service (NMFS) has been working on the rule since 1999, and in 2006 proposed limiting the speeds of large ships in the Atlantic during seasons when the right whale is most active. Ship strikes are a major cause of death for right whales. "Ship strikes are responsible for 37% of whale deaths in just the last twenty two years," according to the office of Sen. John Kerry (D-MA).

An investigation by the House Oversight and Government Reform Committee shows the White House is not merely stalling, but also actively working to thwart the efforts of NMFS's staff and undermine the marine science serving as the basis for the rule. "According to documents obtained by the Committee, the rule's delay appears to be due to baseless objections raised by White House officials, including officials in the Office of the Vice President."

Today, Committee Chairman Henry Waxman (D-CA) wrote to Susan Dudley, the administrator of OIRA who President Bush installed by recess appointment last year. Documents show that as many as three separate White House offices — the Council of Economic Advisors, the Office of the Vice President, and one unnamed White House source (probably OIRA) — are pressuring NOAA to change the rule, or simply drop its efforts to protect the right whale altogether. From Waxman's letter:

[T]he Vice President's staff "contends that we have no evidence (i.e., hard data) that lowering the speeds of 'large ships' will actually make a difference." NOAA rejected these objections, writing that both a statistical analysis of ship strike records and the peer-reviewed literature justified the final rule. In its response to the objections from the Vice President's staff, NOAA reported that there is "no basis to overturn our previous conclusion that imposing a speed limit on large vessels would be beneficial to whales."

A third document reveals that the White House requested that NOAA consider unpublished information relating to the birth rate of right whales. NOAA responded that it "used the latest, peer-reviewed, scientific data when developing" the rule.

Stalling regulations and putting politics ahead of science is always bad, but they are especially troubling in this instance, as time is of the essence for the right whale. Fewer than 350 of the mammals remain. Since the summer of 2004, seven have died as a result of ship strikes, according to Waxman. Two right whales have been struck by ships, and one has likely died, in the time the rule has been stuck at OIRA. NMFS officials warn that even one more dead female could set the species on an irrevocable path toward extinction.

NMFS experts have been working diligently to extend protections for the right whale but have been stonewalled by political apparatchiks like OIRA Administrator Susan Dudley and Vice President Dick Cheney. The White House's delay and scientific interference is truly an example of executive power run amok.

Last night, a federal court ruled the Bush administration must make a decision by May 15 on whether to list the polar bear under the Endangered Species Act. Three advocacy groups — the Center for Biological Diversity, the Natural Resources Defense Council, and Greenpeace — sued the Department of the Interior in order to force a decision after months of delay.

The last time we heard from officials in Interior's Fish and Wildlife Service (FWS), they promised a decision by July. However, FWS has failed to keep its word a number of times already, giving the public no reason to believe the agency would make its decision this summer, if ever.

Meanwhile, another agency within the Interior Department (the Minerals Management Service) has been working hastily to hand out permits to oil and gas companies to drill in areas in Alaska where the polar bear lives. Because FWS has yet to list the polar bear under the Endangered Species Act, the companies do not legally have to take into consideration the effects of their operations on the bears' habitats.

The melting ice caused by global warming is the primary threat to the polar bear's existence, which means climate change skeptics are also opposed to listing the animal under the Endangered Species Act.

But environmental advocates are hopeful that, with this court decision in place, the administration will make the correct decision. Kassie Siegel of the Center for Biological Diversity said in a statement, "By May 15th the polar bear should receive the protections it deserves under the Endangered Species Act, which is the first step toward saving the polar bear and the entire Arctic ecosystem from global warming."

OMB Watch recently reported on an EPA decision to revise its process for assessing human exposure and associated health risks of industrial chemicals. Under the revised process, EPA will give the White House, specifically the Office of Management and Budget (OMB), an opportunity to alter or delay scientific results at nearly every stage of the chemical assessment process. By attacking the scientific basis for future regulatory decisions, OMB will be able to erode the foundations upon which public protection standards are built.

In reality, OMB has already been tinkering with EPA's chemical assessments, according to a new Government Accountability Office report. The report hasn't been officially released, but the Associated Press has obtained a copy, and report H. Josef Hebert wrote an article published last night discussing some of the results:

The GAO said many of the deliberations over risks posed by specific chemicals "occur in what amounts to a black box" of secrecy because the White House claims they are private executive branch deliberations.

Such secrecy "reduces the credibility of the ... assessments and hinders the EPA's ability to manage them," the GAO report said. …

"Unless there is concurrence by other agencies, ... things don't go forward. It means we stop what we are doing," said the scientist, speaking on condition of anonymity because of fear of endangering his career.

"The (EPA) scientists feel as if they have lost complete control of the process, that it's been taken over by the White House and that they're calling the shots," the scientist said.

In addition to outright interference, OMB is also able to achieve its anti-regulatory goals by delaying chemical assessments indefinitely. The report mentions at least four chemicals for which EPA has yet to determine carcinogenicity, despite widespread use and evidence of risk. They are naphthalene, trichloroethylene, perchloroethylene, and formaldehyde, according to the AP article.

Now, under the revised process EPA recently announced, OMB will have even more opportunities to meddle in EPA science, and even more incidences of interference, suppression, and delay are likely to occur. Unfortunately, because EPA has mandated this process occur behind closed doors, these incidences may never come into the light of day.

Check back here later today, Reg•Watch will post the GAO report when it becomes available electronically. Update: Here is the link to the GAO report.

In a story that has garnered little media attention, the U.S. Food and Drug Administration has announced it will ban certain forms of cattle feed in order to reduce the risk of mad cow disease. The announcement came after the White House Office of Management and Budget (OMB) had stalled the rule for months. (Click here for more on the delay of the rule.)

FDA's new rule adds to the list of substances that cannot be fed to cattle. Allowing cattle to feed on the rendered meat, bones, or blood of other cattle raises the risk of mad cow, also known as Bovine Spongiform Encephalopathy (BSE). According to the agency, "FDA believes that the final rule would effectively remove about 90 percent of any remaining BSE infectivity from possible spread through the animal feed system."

FDA's announcement came as a bit of a surprise since OMB seemed content to allow the rule to languish under its review while the cattle industry continued to avoid further regulation. The turning point came at a meeting between U.S. and South Korean officials on trade. According to The Wall Street Journal, "South Korea last week agreed to lift restrictions on U.S. beef and, according to one U.S. government official, the country did so on the condition that the U.S. strengthen its livestock feed rules."

Since late 2003, when a U.S. cow was diagnosed with mad cow disease, some foreign nations have been reluctant to import U.S. beef. In fact, when identifying potential benefits of the rule, FDA argued, "The U.S. economy may also benefit from increased exports to the extent that the rule persuades foreign governments to import U.S. beef products."

Nonetheless, it's a sad commentary that the Bush White House is more responsive to the concerns of the South Korean government (and the domestic producers who will benefit from increased exports) than to its own food safety agency or considerations of public health. The rule is fairly typical of Bush's cronyism approach to regulation: "Fight tooth-and-nail against government intervention, unless it would help out my buddies."

But bottom line, new policies are now in place that could prevent an outbreak of mad cow disease. The rule takes effect in April 2009.

Today, the Senate Commerce Committee approved a bill that would force the White House Office of Management and Budget to stop sitting on a regulation to protect the North Atlantic right whale. The rule has been held up at OMB's Office of Information and Regulatory Affairs (OIRA) since Feb. 2007.

The North Atlantic right whale is one of the most critically endangered marine species in the world. Although the species has benefited from federal protections for years, it is still having difficulty recovering. Collisions between whales and shipping vessels are a particularly serious problem.

In response, the National Oceanic and Atmospheric Administration (NOAA) began working in 1999 on a federal rule to limit the speed of large shipping vessels traveling along the eastern seaboard. The speed limits would vary based on geographic location and season.

NOAA published a proposed rule (which OIRA also reviewed) in June 2006. Since receiving and reviewing public comments into early 2007, NOAA has been waiting for OIRA to give its approval.

The bill, passed by voice vote, states, "Not later than 30 days after the earlier of the date of the enactment of this Act or June 1, 2008, the Secretary of Commerce, acting through the Under Secretary for Oceans and Atmosphere, shall prescribe regulations to reduce the incidence of vessels colliding with North Atlantic right whales (Eubalaena glacialis) by limiting the speed of vessels."

The Ocean Conservancy has a timeline on the rulemaking and reported ship strikes of the right whale. According to the Ocean Conservancy, since NOAA published the proposed rule, there have been five reported ship strikes and three confirmed deaths.

While that may not sound like much, Sen. John Kerry (D-MA), who cosponsored the legislation along with Sen. Olympia Snowe (R-ME), points out that the species' ranks are small and growing smaller and that federal action is critical:

We've only got less than 350 whales left alive today and passage of this legislation comes at the eleventh hour. Ship strikes are responsible for 37% of whale deaths in just the last twenty two years. Without this legislation, the United States would have continued to risk extinction of the right whale.

The bill (S. 2657) will now move to the full Senate for a vote. A similar bill (H.R. 5536) is awaiting consideration by the House Transportation and Infrastructure Committee.

Yesterday the House passed a bill that would stop the Bush administration from going forward with several regulations intended to cut Medicaid services. The administration developed the regulations under the guise of "fiscal integrity," arguing state Medicaid programs are using loopholes to inappropriately claim federal funds. Bush has threatened to veto the bill.

Fortunately, the bill passed the House in a 349-62 vote which, if the margin holds, would be enough to override a veto. State governments also support the bill. According to the Associated Press, "The governors of all 50 states…oppose the rules."

If all this bipartisanship and widespread agreement make you uncomfortable, fear not — the U.S. Senate is on the case.

Click here to read more

Posted by Matt Madia, 11:25:23 AM

Wednesday, April 23, 2008

Tuesday, April 22, 2008