by Rena Steiznor, cross-posted from CPR Blog

Original title: “Sunstein Watch: Old Habits Die Hard on the Regulatory Killing Ground; Don’t OMB Economists Have Better Things to Do Than Channel Industry Opposition to EPA Science?”

Before Cass Sunstein had spent much more than a week as the official director of the Office of Information and Regulatory Affairs (OIRA), he invited us over to the White House to talk about how he wanted to shape his small office of economists and statisticians into a strong force for progressive policy within the White House. Followers of the Center for Progressive Reform know that we put out a report in the run-up to his confirmation that was critical of his views on cost-benefit analysis. So I give him credit for opening the door to us, and so soon after his confirmation at that.

It was a good meeting, and we pledged to keep in touch as he undertakes what I hope will be a re-education that will convert his staff from the Bush mode – serving as a sort of waiting room for disgruntled industries – to what we hope will be the Obama mode – serving as a group of visionary economists that identifies the toughest problems holding back desperately needed protections for workers, the public, and the environment, and then moving to make sure the regulatory structure does something about them.

An obscure set of documents posted just last week on the EPA website illustrates the point, demonstrating that in the period before Sunstein’s confirmation OIRA staff were continuing business as usual, acting as if President George W. Bush were still president.

Proving that no level of regulatory minutiae is beneath their notice, unsigned documents labeled as “OMB Comments” chide EPA scientists for ignoring evidence that makes nasty chemicals look less bad. The arena for such harmful meddling once again is the Integrated Risk Information System (IRIS), the world’s premier database for toxicological profiles of common carcinogens, endocrine disrupters, neurotoxins, and other chemicals. As I warned previously, OMB staff, who lack anything approaching the credentials necessary to credibly order EPA scientists around, should not play a role in these definitively pre-regulatory decisions. Imagine my surprise, then, when we read the following obtuse passage in the OMB comments on 1,2,3-Trichloropropane, a once-common solvent:

In discussing site concordance, in multiple places EPA states that the cancer guidelines “state that site concordance is not always assumed between animals and humans”. EPA relies on this as a justification for including tumors in organs that have no direct human homolog. … We would like to see EPA more fully consider this particular case (eg the forestomach tumors) before generally assuming site concordance. … Zymbal gland, Hardarian gland, and preputial gland tumors also do not have a human homolog.

The translation of this scientific technocrat-ese is that EPA’s efforts to characterize the solvent have involved testing on rats because good evidence of the chemical’s effect on humans is not available and we officially stopped testing poisons on people at the end of the Third Reich.

What OMB has highlighted here is a familiar disagreement that broke out among outside scientists during the external peer review stage of the IRIS profile development process. Some argued for paying attention to all the tumors the rats suffered, even when they appeared in parts of the rats’ bodies that have no direct analogy to humans (e.g., the “forestomach”). Others urged EPA to cut the chemical a break by ignoring those tumors. OIRA staff sided with the “cut-a-break” group. For these OIRA staffers to spend their time firing tiny torpedoes at EPA scientists is a discouraging waste of their and EPA’s time.

OIRA staff underscored a number of other concerns raised by one peer reviewer in particular – Dr. Richard Bull, of MoBull Consulting, an expert in the toxicology of chlorinated solvents who has made a career of consulting for DOD, DOE, and private firms with potential liabilities for their past uses of these products. (One of his prior consulting relationships got him into some hot water . He had to resign from the National Academies committee studying perchlorate after failing to disclose that he’d been employed as an expert witness by Lockheed-Martin and publicly claimed the chemical is not harmful at low levels.)

Sunstein’s staff includes no more than 30 professionals, give or take a few. It strains the imagination to think that this small staff, with much of the government as its stomping ground, would have singled out this very specific instance of EPA scientific analysis without prompting by the companies that manufacture 1,2,3-Trichloropropane. Those companies know that a low number in the IRIS database specifying the level of dosing at which the chemical will cause tumors in people could affect their Superfund cleanup costs, their vulnerability to toxic tort lawsuits, and future regulation of air emissions and waste disposal of the chemical. Instead, we suspect that the companies remember the phone numbers of the staff who were so solicitous of their interests during Bush II. To its credit, it looks like EPA has stood by its career staff. A quick skim through the draft and final toxicological profiles for 1,2,3-trichloropropane and other chemicals that OMB commented on does not reveal the yielding to White House pressure we saw so often in the Bush years.

Last Tuesday’s Washington Post ran a story about the Obama Administration’s efforts to revitalize the Food and Drug Administration (responsible for ensuring the safety of products bought by 25 cents of every dollar spent by American consumers), the EPA (responsible for combating climate change, arguably the greatest threat the human race has ever faced), and the Occupational Safety and Health Administration (a moribund band of dispirited civil servants who have neglected avoidable hazards in 8 million workplaces that see over 5,000 people killed and 1 million injured severely enough to require days off from work). http://www.bls.gov/iif/ These challenges are daunting enough to require all hands on deck, especially Cass Sunstein, who has a prodigious understanding of these problems, their cause, and their effects.

I hope he will give his staff new marching orders that require them to engage the Obama agenda, and stop serving their old friends.

Rena Steinzor, CPR President; Professor of Law, University of Maryland School of Law.

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