08.20.2004

Aniruddha — How Bush gutted Federal Regulations

Topic(s): US Analysis | Comments Off on Aniruddha — How Bush gutted Federal Regulations

AniruddhaThree articles laying out, in great detail, the way the Bush administration
has destroyed the regulatory process in this country: Long, but worth the read
1: Bush Forces a Shift In Regulatory Thrust. OSHA Made More Business-Friendly
2: Using ‘Data Quality’ as a tool to attack the scientific basis of all
federal regulations.
3: How changing one word: ‘Waste’ to ‘Fill’ allowed new indiscriminate coal
mining in the Appalachians
washingtonpost.com
Bush Forces a Shift In Regulatory Thrust
OSHA Made More Business-Friendly
http://www.washingtonpost.com/wp-dyn/articles/A1315-2004Aug14.html
By Amy Goldstein and Sarah Cohen
Washington Post Staff Writers
Sunday, August 15, 2004; Page A01
First of three articles
Tuberculosis had sneaked up again, reappearing with alarming frequency
across the United States. The government began writing rules to protect 5
million people whose jobs put them in special danger. Hospitals and
homeless shelters, prisons and drug treatment centers — all would be
required to test their employees for TB, hand out breathing masks and
quarantine those with the disease. These steps, the Occupational Safety and
Health Administration predicted, could prevent 25,000 infections a year and
135 deaths.
By the time President Bush moved into the White House, the tuberculosis
rules, first envisioned in 1993, were nearly complete. But the new
administration did nothing on the issue for the next three years.
Then, on the last day of 2003, in an action so obscure it was not mentioned
in any major newspaper in the country, the administration canceled the
rules. Voluntary measures, federal officials said, were effective enough to
make regulation unnecessary.
The demise of the decade-old plan of defense against tuberculosis reflects
the way OSHA has altered its regulatory mission to embrace a more
business-friendly posture. In the past 3 1/2 years, OSHA, the branch of the
Labor Department in charge of workers’ well-being, has eliminated nearly
five times as many pending standards as it has completed. It has not
started any major new health or safety rules, setting Bush apart from the
previous three presidents, including Ronald Reagan .
The changes within OSHA since George W. Bush took office illustrate the way
that this administration has used the regulatory process to redirect the
course of government.
To examine this process, The Washington Post explored the Bush
administration’s approach to regulation from three perspectives. This
article about OSHA traces the impact on one regulatory agency. Tomorrow’s
story will look at a lobbyist’s 32-line, last-minute addition to a bill
that created a tool for attacking the science used to support new
regulations. Tuesday’s article will document a one-word change in a
regulation that allowed coal companies to accelerate efforts to strip away
the tops of thousands of Appalachian mountains.
The Post also analyzed a database from the Office of Management and Budget
containing the 38,000 regulatory actions considered by agencies over the
past two decades.
The analysis, combined with the more detailed look at specific regulatory
decisions, shows how an administration can employ this subtle aspect of
presidential power to implement far-reaching policy changes. Most of the
decisions are made without the public attention that accompanies
congressional debate. Under Bush, these decisions have spanned logging in
national forests, patients’ rights in government health insurance programs,
tests for tainted packaged meats, Indian land transactions and grants to
religious charities.
All presidents have written or eliminated regulations to further their
agendas. What is distinctive about Bush is that he quickly imposed a
culture intended to put his anti-regulatory stamp on government.
Unlike his two predecessors, Bush has canceled more of the unfinished
regulatory work he inherited than he has completed, according to The Post’s
analysis. He has also begun fewer new rules than either President Bill
Clinton or President George H.W. Bush during the same period of their
presidencies. Since the younger Bush took office, federal agencies have
begun roughly one-quarter fewer rules than Clinton and 13 percent fewer
than Bush’s father during comparable periods.
President Bush’s closest advisers and sharpest critics agree that the shift
in regulatory climate since he took office in January 2001 has been
profound. But they disagree over whether that shift represents a harmful
turn away from federal protections to benefit business or a useful
streamlining of costly government rules.
Sally Katzen, who oversaw all federal regulation for five years under
Clinton as deputy budget director for information and regulatory affairs,
said new regulations were, in those days, embraced as a means to improve
the quality of water, of air — in short, of people’s lives. “Bush, or at
least the people around him, are skeptical, if not hostile to that notion,”
she said.
John D. Graham, who holds the same job in the Bush White House, said
regulations are “a form of unfunded mandate that the federal government
imposes on the private sector or on state or local governments.” A
president, he said, should not be judged solely by the number of
regulations he starts or cancels.
This White House, Graham said, has initiated regulations when the benefits
clearly outweigh the costs — for example, a decision last year that
eventually will require labeling of trans fatty acids in food. “We’ve just
been much more selective about expensive new regulatory requirements than
previous administrations have been,” he said.
Rules Placed in Jeopardy
At OSHA, the administration’s regulatory philosophy has translated into a
smaller staff to develop new standards, less reliance on the views of
organized labor and an enlarged role for businesses.
As Bush set out in 2001 to recast the government along more conservative
lines, workplace standards seemed an unlikely focus. During his transition
period, the new president did not assign anyone to assess OSHA; the
transition “team” for the entire Labor Department consisted of one longtime
congressional aide.
A relatively small part of the department for three decades, OSHA has the
large mission of sifting through research on potential hazards to workers
and deciding when the government should step in. It writes federal
standards, conducts inspections to determine whether employers follow them
and metes out punishment when they do not.
Bush offered the job of running OSHA to a career-long industrial hygienist
from St. Louis who was a virtual stranger to Washington.
John L. Henshaw had worked for two decades at Monsanto Co., a giant
manufacturer of agricultural chemicals. Most recently, he had been the
director of environment, safety and health at Astaris LLC, another chemical
company.
Even though he had come from industry, Henshaw was viewed by the
administration’s critics as a more palatable choice than they had expected.
“He’s a competent, well-regarded safety and health professional,” Peg
Seminario, the longtime occupational safety and health director of the
AFL-CIO, the umbrella labor organization, said at the time. “Well qualified
for this important responsibility,” Sen. Edward M. Kennedy (D-Mass.), then
chairman of the labor panel, said when Henshaw was approved unanimously by
the committee on Aug. 3, 2001, and immediately confirmed without debate.
During his first days in Washington, Henshaw made it clear that he would
carry out a directive from Labor Secretary Elaine L. Chao instructing the
entire department to comb through the regulatory work Clinton’s aides had
left unfinished and find items to eliminate. Chao explained the order in a
letter in 2001 to John J. Sweeney, the AFL-CIO president. The list of
incomplete work left over from the Clinton days, she wrote, “had swollen to
unmanageable size, containing many items that had been moribund for years,
making it an inaccurate and effectively useless document.”
Chao’s order was in keeping with the new White House philosophy.
The day Bush was sworn in, his chief of staff, Andrew H. Card Jr., issued a
memo that, in an unprecedented move, put a two-month freeze on final rules
across the government that had not yet gone into effect. The new
administration wanted time to decide whether to change or reverse them.
A few months later, Graham, the White House’s top regulatory official, was
alerting agencies that they would face closer scrutiny from the OMB when
they proposed new rules. The day after he was confirmed by the Senate, he
sent the first of 14 letters to agencies saying they had failed to prove
the need for regulations they had proposed. That was more than had been
sent during Clinton’s eight years.
The most dramatic symbol of the new regulatory climate arose from a joint
action by Bush and Congress.
Two months after he took office, a Republican Congress, making first use of
a recent power to review regulations, repealed the biggest worker-safety
standard of the Clinton years. The standard was a set of rules that created
broad safeguards against ergonomic injuries. Without Bush’s signature, the
repeal could not have taken effect.
The death of the ergonomics standard, Democrats and Republicans now agree,
exposed a weakness of Clinton’s regulatory strategy at OSHA in his last few
years — putting so much emphasis on that standard that others were left
unfinished.
The agency had concentrated nearly all its energy and political capital on
the effort to protect workers against musculo-skeletal injuries, such as
repetitive-stress injuries and carpal tunnel syndrome. The rules would have
required employers to redesign workplaces if they were hazardous and
compensate people who became disabled. The Clinton administration believed
the standard, covering more than 6 million work sites at an estimated cost
of $4.5 billion for employers, was the biggest step the government could
take to protect the greatest number of employees.
As a result, OSHA left other major proposals, including the tuberculosis
rules, unfinished — and thus easier to cancel. Those dangling rules,
combined with the sudden end of the ergonomics standard, emboldened Bush’s
corporate allies to fight new rules from OSHA — and the expense they could
entail.
“In the past, the business community worked to develop regulations that
were acceptable,” said Patrick R. Tyson, an Atlanta lawyer representing
corporations in occupational safety matters who held senior positions at
OSHA in the 1970s and ’80s. “But now the game has changed, and the business
community feels like they can kill any regulation they want.”
Building Alliances Minus Unions
The new administration began by trying to cut staff and money at OSHA. In
his first year in office, Bush wanted to eliminate nearly 100 of the
agency’s 2,400 jobs. His budget also would have reduced funding for the
standards-setting part of the agency by $1.2 million, or 8 percent.
Lawmakers restored the money and the positions.
The next year, the administration succeeded in eliminating 10 jobs out of
95 in the standards area, when Henshaw merged divisions dealing with health
and safety. The merger, Henshaw said, eliminated duplicative jobs in middle
management. But it angered some current and former OSHA employees, who said
it cost the agency some of its expertise.
“I finally couldn’t take it anymore,” said Peter Infante, who retired after
24 years at OSHA as the senior epidemiologist who helped to develop health
standards. He had planned to stay long enough to finish years of work on
rules to protect workers from beryllium, a metal that can cause cancer if
inhaled in minute amounts. Instead, he left in May 2002, saying that the
only U.S. company that mines and processes beryllium ore had gained too
much influence inside the agency.
Henshaw said in an interview that the bottom line for OSHA is not how many
rules it produces but how many people get hurt, sick or killed at work
under its watch. He said trends are improving. Henshaw said he is proud
that the agency has increased federal inspections of workplaces.
The overall number of inspections has increased under Bush, but the typical
inspection takes less time, and fewer are in response to accidents or
complaints. OSHA officials say they are more trusting now of industries
with good safety records, while putting greater emphasis on those — such
as construction — where workers are most prone to injury. Union leaders
said that inflates an appearance of vigilance, because OSHA counts each
subcontractor at a construction site as a separate inspection.
With its current staff, Henshaw said, OSHA can visit about 2 percent of the
nation’s workplaces each year. Given those limits, he said, it has made
sense to strengthen the agency’s relationships with businesses, encouraging
voluntary compliance.
To do so, OSHA has created a new kind of voluntary program, intended to
foster “trusting, cooperative relationships” between the government and
groups of industries and professional societies, according to an agency
fact sheet. These new alliances, as they are known, depart from a central
tradition throughout the agency’s history: They are allowed to exclude
labor unions. Of the 57 national alliances OSHA has formed, with groups
ranging from air conditioning contractors to shipyard owners, just one —
intended to promote safe work habits in road construction zones — includes
a union representative.
Agency officials say that more than 500 other, older voluntary projects run
by OSHA still involve unions. As for the new alliances, one OSHA
administrator, speaking on the condition of anonymity, said that some
employers might be too uncomfortable to participate if unions were there.
In November 2002, OSHA announced an alliance with 13 airlines and the
National Safety Council to find better ways to prevent workers who handle
baggage from being injured. The OSHA alliance excluded airline unions,
which had asked to take part.
“It is simply illogical and insulting,” Sonny Hall, president of the
AFL-CIO’s transportation trades department, said at the time, “when the
powers that be in this administration’s OSHA sat down to form a
private-sector group to reduce injuries to airline workers that they chose
to exclude, of all people, airline workers.”
Fewer and Narrower Rules
At the same time, Henshaw was carrying out Chao’s orders. Echoing his
superiors at the Labor Department and in the White House, Henshaw said the
Clinton administration had left too much unfinished regulatory work at the
agency. OSHA, Henshaw repeatedly said, needed to convert its agenda from a
“wish list” to a “to-do list.”
The data analyzed by The Post show that Clinton left behind 44 incomplete
rules at OSHA, just four more than when Bush’s father had moved out of the
White House eight years earlier. “I don’t recall things being added just
because somebody asked for them,” said Katzen, who had been the top
official for regulations in the Clinton White House.
Henshaw’s housecleaning produced dramatic effects. By the end of Bush’s
first year in office, OSHA had eliminated 18 of the 44 rules. By the end of
2003, six more, including the tuberculosis protections, were gone.
“Every one of the items on there had some merit. Nobody is disputing that,”
Henshaw said of the proposals he removed. “But there is only so much you
can do.”
Many of the cases involved complex arguments pitting the interests of
workers against those of their employers.
In August 2001, the same month Henshaw was confirmed, the agency stopped
efforts to regulate chemicals used in making semiconductors and suspected
of causing miscarriages in workers. The agency’s written explanation at the
time consisted of one sentence: “OSHA is withdrawing this entry from the
agenda at this time due to resource constraints and other priorities.”
A month after the semiconductor decision, OSHA eliminated a proposal,
dating to the Reagan administration, that would have updated lists of the
amounts of industrial chemicals to which workers could be exposed. The new
administration said it made more sense to regulate each substance one at a
time, a slower process.
That December, the agency killed a proposal on indoor air quality intended
to prevent restaurant and other workers from exposure to tobacco smoke or
other pollutants. State and local standards, OSHA said, had solved the problem.
Some of the canceled rules will make it more difficult for Bush’s critics
to pursue regulations in the future. After Congress and Bush killed the
ergonomics rules, OSHA eliminated a proposal to compel employers to break
out ergonomic injuries when they report on worker injuries in general.
Henshaw said at the time that such records would not help to reduce such
injuries. Seminario of the AFL-CIO said that, without such records,
advocates of ergonomic protections have less ability to document that
federal safeguards are needed.
With his focus largely on coaching employers to follow existing rules,
Henshaw said, “writing another standard is not going to help with that.”
Still, he said, the agency has continued to write new rules when they are
needed.
At OSHA, The Post’s analysis found, the rules the agency has proposed are
narrower than most of those it has eliminated. Thirteen of the 24 proposals
it has canceled since Bush took office fall into a category the government
classifies as “economically significant,” meaning they would cost or save
the economy at least $100 million. None of the 16 standards OSHA has
proposed during that time falls in that group.
Graham said it does not make sense for OSHA to overreach. From his days as
a Harvard professor, Graham said, he knew of research suggesting that
neither the health nor safety standards created over OSHA’s history had a
clear track record of being effective. Besides, he said, OSHA’s procedures
have always made it uncommonly sluggish in churning out big rules.
Graham said OSHA has set into motion an ethic of “smart regulation” that
the White House has tried to instill across the government: creating new
rules only after rigorous scientific and economic analysis proves they are
warranted. Under Henshaw, he said, OSHA has shown “an intensely practical,
down-to-earth approach to worker health and safety, not inclined toward
grandiose, unrealistic ventures.”
The 3M Gambit
In several instances where Bush’s OSHA has moved a rule forward, it has
done so in a way that has benefited a specific business interest.
One case concerns the updating of a 25-year-old standard intended to ensure
that workers do not inhale hazardous substances. The update said that
employers — from factory owners to firehouses — must assess hazards,
select appropriate safety masks, train workers to use them and periodically
check to see whether they fit.
After the Clinton administration finished the standard in 1998, however, a
critical question lingered: What safety rating should the agency assign to
the different types of masks? Those ratings, which would tell how effective
a given mask was at removing contaminants from the air, would cover
everything in the category — elaborate respirators as well as inexpensive
paper masks sold at any hardware store.
The stakes were huge for workers and the companies that make the masks:
Some type of respiratory protection is used in more than 600,000
workplaces, one in every 10 nationwide, a recent federal survey found. And
no corporation had a larger stake in the decision than 3M Co., which
pioneered disposable dust masks in the early 1970s and is their largest
manufacturer.
3M and other companies said the disposable version deserved the same rating
as the more sophisticated respirators, a decision that would increase sales
of the disposable masks and provide a buffer against a growing volume of
lawsuits over their effectiveness.
Last winter, OSHA held a hearing on this question. An expert witness hired
by the government testified that the disposable masks were as effective as
the more elaborate ones, as long as they were checked periodically to
ensure they fit properly.
The witness, Warren R. Myers, mentioned in explaining his qualifications
that he was an associate dean at West Virginia University’s college of
engineering and mineral resources and that he had worked for a dozen years
testing respirators at a branch of the federal Centers for Control and
Prevention. He did not mention that he had worked previously as a
consultant to 3M.
Another witness took a different view. Richard W. Metzler, who works for
the National Institute for Occupational Safety and Health in Pittsburgh,
testified that researchers have not evaluated most of the disposable mask
models sold today. “There has been a lack of science,” Metzler, who directs
NIOSH’s National Personal Protective Technology Laboratory, said in an
interview.
Opposition to 3M’s position also came from an industrial scientist named
James S. Johnson at the Lawrence Livermore National Laboratory in
California. He is the chairman of an American National Standards Institutes
(ANSI) committee. His views were particularly important. By law, OSHA is
supposed to coordinate its standards with ANSI committees. Johnson
testified that the committee had concluded that the dust masks deserved a
lower rating — half that of the more elaborate respirators.
Faced with such mixed testimony, 3M took action.
This February, Tyson, the Atlanta lawyer and former OSHA official, filed a
motion on behalf of the company with the Labor Department’s administrative
law judge. The motion asked the agency to disregard the ANSI committee’s
conclusions on the grounds that they were in draft form and “currently
under appeal.”
The reason they were under appeal: 3M and two of the company’s allies had
challenged ANSI’s conclusions just a month earlier.
The company “was screaming bloody murder,” said Mark Nicas of the
University of California at Berkeley, who had been given three contracts by
OSHA during the 1990s to advise the government on respiratory issues. “It
just doesn’t want to upset the market share.”
In April, the administrative law judge rejected Tyson’s motion, saying that
OSHA was free to make its own judgments about the conflicting testimony.
Still, when OSHA publicly proposed its rating scale in June, it called for
all masks, including disposable ones, to get the same ranking, just as 3M
wanted.
The 3M gambit had apparently worked: The OSHA official who spoke on the
condition of anonymity said the agency could not take Johnson’s testimony
or the ANSI committee’s conclusions into account because it is allowed to
consider only final recommendations.
The agency did not want to wait for the outcome of the ANSI appeal — even
though 3M was using it to hold up the process — because, the official
said, that dispute may take “forever.”
“We can’t be hamstrung that way,” the official said.
Does Provide Mean Pay For?
As OSHA has recalibrated worker protections, one word can make a big
difference. This summer, OSHA has thrown open the question of what
“provide” means.
That question is heir to a dispute that began in 1994, when the agency
issued rules on safety equipment in dangerous jobs. The rules say an
employer must determine what kind of equipment a worker needs — hard hats,
protective gloves and clothing, safety goggles — and provide it to the
employee.
The regulation, however, does not specify who pays for the equipment — or
whether the employer can, as industry has argued, deduct the cost from the
worker’s wages. A year later, OSHA said that “provide” means “pay for.”
Industry groups appealed that definition. Eventually, OSHA’s review
commission decided employers could not be made to pay without a new rule.
In 1998, a federal study found that workers in low-paying jobs more often
were being charged for their safety equipment. The practice was most
prevalent in the construction trades, where just slightly more than half of
employers were picking up the full expense of hard hats and welding goggles.
The following year, OSHA proposed a rule to make clear that “provide” meant
“pay for.”
That rule was one of many that were not quite final when Bush took office.
Last year, after two years of OSHA inaction, a coalition of nine unions
petitioned Chao demanding that the rule be issued within two months.
That did not happen. Instead, Henshaw announced in July that OSHA wanted to
rethink part of the issue — particularly for equipment that employees can
take from job to job — and asked for new outside comments. And that was
how a rule headed for approval under Clinton became open to further delay
and uncertainty.
Agency officials speaking on the condition of anonymity said that, in the
end, the government might keep the proposed rule — or it might decide that
employers do not need to pay for certain kinds of safety equipment. Or for
any at all.
Critics Conquer TB Standard
Asking for more outside opinions was the same step OSHA officials had taken
before they canceled the tuberculosis protections the day before New Year’s.
The evidence on the TB standard is mixed.
Government record-keeping is so sketchy it is impossible to tell how many
workers are being infected with TB on the job. The two main unions that
have lobbied for the protections since the beginning, the American
Federation of State, County and Municipal Employees and the American
Federation of Teachers, were unable to provide a single example of someone
who could talk on the record about having caught TB.
Given the murkiness, the outside opinions that prevailed came from the
American Hospital Association and other groups that had long resented the
idea of OSHA enforcing safety practices. Opponents said government no
longer needs the requirement for tuberculosis tests, patient quarantines
and the other protections in the standard.
The disease had waned in most states in the decade since OSHA began
developing the TB standard, the critics argued. Besides, they said, the
Centers for Disease Control already provided voluntary guidelines for
protecting workers.
There was some support for this position in an evaluation of the proposed
standard by a respected advisory group, the Institute of Medicine, which
had been ordered to conduct the study at the behest of congressional
Republicans while Clinton was in office.
But when the study came out the month Bush took office, it concluded that
the standard still was worthwhile, even if it might not need to cover as
many workers.
In the end, OSHA cited the study in its rationale for eliminating the TB
standard.
Unions and public health officials were furious. TB rates continue to
increase in many states, they said. Even where the rates have gone down,
they said, workers in health clinics or hospitals still run into the disease.
Nicas has conducted research on whether hospitals around San Francisco
adhere to the CDC guidelines. Even though the hospitals were doing a better
job, he found, all had lapses sometimes. A federal regulation, he said,
still is needed.
“The health care industry [does not] like being regulated by OSHA,” Nicas
said. “But then, that puts them in league with every other industry.”
Immediately after winning its long battle to eliminate the TB standard, the
nation’s hospitals and their allies began a new campaign. They sought to
block a rule requiring yearly checks to make sure that the breathing masks
of their workers fit correctly.
© 2004 The Washington Post Company
:*****************************************************************************
washingtonpost.com
‘Data Quality’ Law Is Nemesis Of Regulation
http://www.washingtonpost.com/wp-dyn/articles/A3733-2004Aug15.html
By Rick Weiss
Washington Post Staff Writer
Monday, August 16, 2004; Page A01
Second of three articles
Things were not looking good a few years ago for the makers of atrazine,
America’s second-leading weedkiller. The company was seeking approval from
the Environmental Protection Agency to keep the highly profitable product
on the market. But scientists were finding it was disrupting hormones in
wildlife — in some cases turning frogs into bizarre creatures bearing both
male and female sex organs.
Last October, concerns about the herbicide led the European Union to ban
atrazine, starting in 2005. Yet that same month, after 10 years of
contentious scientific review, the EPA decided to permit ongoing use in the
United States with no new restrictions.
Herbicide approvals are complicated, and there is no one reason that
atrazine passed regulatory muster in this country. But close observers give
significant credit to a single sentence that was added to the EPA’s final
scientific assessment last year.
Hormone disruption, it read, cannot be considered a “legitimate regulatory
endpoint at this time” — that is, it is not an acceptable reason to
restrict a chemical’s use — because the government had not settled on an
officially accepted test for measuring such disruption.
Those words, which effectively rendered moot hundreds of pages of
scientific evidence, were adopted by the EPA as a result of a petition
filed by a Washington consultant working with atrazine’s primary
manufacturer, Syngenta Crop Protection. The petition was filed under the
Data Quality Act, a little-known piece of legislation that, under President
Bush’s Office of Management and Budget, has become a potent tool for
companies seeking to beat back regulation.
The Data Quality Act — written by an industry lobbyist and slipped into a
giant appropriations bill in 2000 without congressional discussion or
debate — is just two sentences directing the OMB to ensure that all
information disseminated by the federal government is reliable. But the
Bush administration’s interpretation of those two sentences could tip the
balance in regulatory disputes that weigh the interests of consumers and
businesses.
John D. Graham, administrator of the OMB Office of Information and
Regulatory Affairs (OIRA), who has directed implementation of the Data
Quality Act, said the law will keep the federal government hewing to “sound
science.” He said the act, which allows people and companies to challenge
government information they believe is inaccurate, is equally accessible to
“a wide diversity of interests, both in the business community and in the
consumer, environmental and conservation communities.”
But many consumers, conservationists and worker advocates say the act is
inherently biased in favor of industry. By demanding that government use
only data that have achieved a rare level of certainty, these critics
maintain, the act dismisses scientific information that in the past would
have triggered tighter regulation.
A Washington Post analysis of government records indicates that in the
first 20 months since the act was fully implemented, it has been used
predominantly by industry. Setting aside the many Data Quality Act
petitions filed to correct narrow typographical or factual errors in
government publications or Web sites, the analysis found 39 petitions with
potentially broad economic, policy or regulatory impact. Of those, 32 were
filed by regulated industries, business or trade organizations or their
lobbyists. Seven were filed by environmental or citizen groups. Some
environmental groups are boycotting the act, adding to the imbalance in its
use.
Among the petitions:
? The American Chemistry Council and others challenged data used by the
Consumer Product Safety Commission (CPSC) as it sought to ban wood treated
with heavy metals and arsenic in playground equipment.
? Logging groups challenged Forest Service calculations used to justify
restrictions on timber harvests.
? Sugar interests challenged the Agriculture Department and the Food and
Drug Administration over dietary recommendations to limit sugar intake.
? The Salt Institute and the U.S. Chamber of Commerce challenged data that
led the National Institutes of Health to recommend that people cut back on
salt.
? The Nickel Development Institute and other nickel interests challenged a
government report on the hazards of that metal.
? The Association of Home Appliance Manufacturers petitioned the CPSC to
retract data that ranked the risk of lint fires in various clothes dryers.
Environmental and consumer groups say the Data Quality Act fits into a
larger Bush administration agenda. In the past six months, more than 4,000
scientists, including dozens of Nobel laureates and 11 winners of the
National Medal of Science, have signed statements accusing the
administration of politicizing science.
The White House’s heavy editing of a key global-warming report, its efforts
to emphasize abstinence rather than condoms in the war against AIDS and its
alleged stacking of scientific advisory committees have drawn particular
ire. But many scientists and public advocates believe that far more is at
stake with the Data Quality Act.
From their perspective, the act is shifting the authority over the
nation’s science into the politicized environment of the OMB — a change,
they say, that will favor big business.
“It’s a tool to clobber every effort to regulate,” said Rena Steinzor, a
professor of law and director of the Environmental Law Clinic at the
University of Maryland. “In my view, it amounts to censorship and harassment.”
That’s a view that Christopher C. Horner of the free-market Competitive
Enterprise Institute — which has used the act repeatedly to challenge
scientific information — brushed off as “whiny.”
“Hey, you’re making me be accurate,” he mocked. “I have no sympathy for that.”
Horner said the act, if anything, has proved less useful than anticipated
to groups such as his that seek to minimize government regulation. And
figures from the OMB confirm that agencies have in many cases resisted
challenges to their scientific findings.
Of the 39 Data Quality Act petitions in The Post’s analysis, five have
resulted in at least some of the changes sought — all of them filed by
industry interests. Five were denied, five were diverted by the agencies to
other bureaucratic avenues, and 24 are pending.
Yet there are signs, Graham acknowledged, that petitioners are becoming
more innovative in their use of the act. And petitioners are homing in on
agencies whose mission is to protect the environment and public health. The
most heavily petitioned are the Environmental Protection Agency, the Fish
and Wildlife Service, the National Institutes of Health, and the Consumer
Product Safety Commission.
Studying Atrazine
Nearly 80 million pounds of atrazine are sprayed on tens of millions of
U.S. acres every year, mostly on corn. It is, according to the EPA, the
most prevalent herbicide in ground and surface water, remaining stable and
toxic for decades in some environments.
It is also a major source of revenue for Syngenta, a Swiss company with
U.S. headquarters in Greensboro, N.C., that sells hundreds of millions of
dollars’ worth of the chemical every year.
It has been nearly five decades since atrazine was first “registered” —
meaning it was approved for use under certain conditions. Over the years,
as more was learned about the chemical’s potential toxicity to wildlife and
humans, it came under increasing federal scrutiny and regulatory
restriction. The number of pounds that farmers can legally apply per acre
has progressively been reduced, and users have been required to keep the
chemical farther and farther away from wells, lakes and reservoirs.
For decades, the main concern was cancer. The chemical clearly causes
cancer in rats, and male workers in Syngenta’s production facility in
Louisiana have experienced much higher rates of prostate cancer than other
men statewide. But studies supported by Syngenta recently convinced the EPA
that the mechanism by which atrazine causes cancer in rats probably does
not occur in people. (The company said the only reason for the high rate of
prostate cancer in its workers is that it has an aggressive screening
program that finds cases that would otherwise go undetected.) Studies are
ongoing, but the EPA has for now backed off atrazine’s cancer threat.
Hermaphrodite frogs, however, have been more difficult to dismiss.
For years, evidence has accumulated suggesting that atrazine may scramble
hormones in frogs and other animals. The European Union has officially
declared the chemical an endocrine disrupter. Given those concerns,
Syngenta’s predecessor company — Novartis Agribusiness — decided early in
the EPA’s review not to leave the question up to government scientists. In
1998, it hired a private risk-assessment service, EcoRisk Inc. of Ferndale,
Wash., to arrange experiments on atrazine’s environmental impacts.
EcoRisk, whose past clients include the Chlorine Chemistry Council, Dow
Chemical and Ciba-Geigy Corp., in turn hired Tyrone B. Hayes, a professor
of integrative biology and an expert in frog development at the University
of California at Berkeley. Hayes holds a biology degree from Harvard and a
doctorate in amphibian development from Berkeley, where he was tenured at
age 30 and became the university’s youngest full professor.
As part of a team of scientists assembled by EcoRisk, Hayes tested the
effects of atrazine on tadpoles of African clawed frogs, a popular “lab
rat” species for scientists. Male tadpoles raised with no atrazine in the
water developed normally. But those exposed to atrazine were
“demasculinized.” They had smaller larynxes (voice boxes), their
testosterone levels were one-tenth of normal levels, and many grew up as
hermaphrodites, with a mix of male and female traits. Moreover, the effects
appeared with very small exposures — just 0.1 parts per billion, or the
equivalent of one drop of atrazine in 5,000 40-gallon barrels of water.
That’s one-thirtieth the level currently allowed in U.S. drinking water.
When Hayes sought to publish his work and have the data considered by the
EPA, the company told him to run the tests again, said Hayes and Tim
Pastoor, a Syngenta vice president. When repeated studies confirmed the
worrisome link, Hayes was reminded that his contract forbade him to publish
without Syngenta’s approval. He was told that his data ought to be passed
to a company-selected statistician for double-checking.
Hayes quit EcoRisk and repeated his experiments on his own, expanding his
work to include other frog species. In one follow-up study of 200 leopard
frogs caught in the wild, he found that 100 percent of males in areas that
had been treated with atrazine had abnormal sex organs. No such problems
were seen in frogs from untreated regions. He published his results in two
prestigious journals, Nature in 2002 and the Proceedings of the National
Academy of Sciences in 2003. That ensured the EPA would consider his findings.
“We showed that these animals are chemically castrated,” Hayes said.
Ernest Smith, a developmental biologist at Texas Tech University in Lubbock
and a member of the EcoRisk team, denied that EcoRisk or Syngenta tried to
bury Hayes’s results.
“I think there were some communications breakdowns,” he said.
Smith noted that studies conducted by the other team members had
contradicted Hayes’s data. Some showed health effects only at higher
atrazine doses, while others found no effect at all.
A special EPA science panel would eventually level stinging criticisms at
those studies for their poor design and sloppy implementation. Still, the
conflicting results left the atrazine question at a standoff. That is when
the company turned to the Data Quality Act — and Jim J. Tozzi.
‘Working the Regulatory Process’
Syngenta could not have found a better advocate. Tozzi wrote the Data
Quality Act and arranged for its congressional passage after the 2000
elections.
Today he is a Washington lobbyist and head of the Center for Regulatory
Effectiveness, a watchdog group that specializes in data quality. Tozzi
does not reveal his center’s contributors, and the atrazine petition he
filed does not have Syngenta’s name on it. The petition names only the
Kansas Corn Growers Association and the Triazine Network, a coalition
formed in 1995 to defend atrazine and related herbicides. But Pastoor,
Syngenta’s head of human safety, said the company helped finance the
petition process through contributions to another of Tozzi’s businesses, a
lobbying firm called Multinational Business Services.
Tozzi is “the master craftsman when it comes to working the regulatory
process,” said Ken Cook of the Washington-based Environmental Working
Group. “He knows where the sensitive spots are and where to press and leave
no fingerprints.”
Once a self-described “bottom-tier” musician on the steamy New Orleans jazz
circuit, Tozzi earned a degree in economics and rose to OMB deputy
administrator under Ronald Reagan. Under his directorship, the OMB’s Office
of Information and Regulatory Affairs was the gatekeeper for virtually all
proposed regulations dealing with public health and safety. It quickly
became known as a bureaucratic “black hole,” where proposed regulations
went in for review and never came out, said Joan Claybrook, president of
Public Citizen, a Washington-based consumer advocacy group.
Tozzi was at the OMB when evidence arose in the 1980s that giving aspirin
to children with flu symptoms increased the risk of Reye’s syndrome, a
potentially fatal complication. A federal health agency recommended that
aspirin containers bear warnings, but Tozzi said he was not satisfied the
evidence was good enough. It took years for activists and Congress to force
the labeling issue — years in which almost 200 children died of Reye’s.
Today, with labeling, the syndrome is extremely rare.
After leaving the government, Tozzi helped Philip Morris fight mounting
evidence of the dangers of secondhand cigarette smoke. That is when he
pioneered the tactic of attacking the science behind proposed regulations.
“The argument that it costs too much to protect people does not sell,” said
Thomas O. McGarity, a professor at the University of Texas Law School in
Austin and president of the Washington-based Center for Progressive
Regulation, a network of academics that supports regulatory action to
protect health, safety and the environment. “But what does sell is this
idea that the science is not good.”
Science is ever evolving and often hobbled by uncertainty, but policymakers
have long recognized this and relied on weight-of-evidence arguments in
making regulations, according to McGarity, other activists and Clinton
administration officials. They point out that DDT was banned despite
lingering doubts about its role in the decline of birds. Many other
substances, including vinyl chloride and asbestos, also were regulated
before their full effects were known.
Tozzi, believing that the regulatory bar was too low, tried repeatedly to
get Congress to pass legislation that would make it easier to challenge the
science used to underpin regulations. Then, unable to receive broad
congressional support, he crafted legislative language himself and gave it
to Rep. Jo Ann Emerson (R-Mo.), a former lobbyist and onetime deputy
director of communications for the National Republican Congressional
Committee. The wording — two sentences of 32 short lines — directed the
OMB to issue guidelines “ensuring and maximizing the quality, objectivity,
utility, and integrity of information . . . disseminated by Federal agencies.”
Emerson slipped the sentences into the 712-page Treasury and General
Government Appropriations Act, which became the coming year’s omnibus
spending bill. Under pressure to wrap up the long-delayed budget, President
Bill Clinton signed the huge bill on Dec. 21, 2000, nine days after the
Supreme Court ruled that George W. Bush was to be the next president. It is
not clear whether anyone in Congress other than Emerson and Sen. Richard C.
Shelby (R-Ala.) knew about the buried language.
“We sandwiched this in between Jerry Ford’s library and something else,”
Tozzi said. “Was it something that did not have hearings? Yes. Is it
something that keeps me awake at night? No. Is it something that I would do
again, exactly? Yes, you bet your ass I would. I would not even think about
it, okay? Sometimes you get the monkey, and sometimes the monkey gets you.”
Tozzi found even more reason to rejoice as Bush made a pivotal appointment
to head the OIRA, Tozzi’s old domain within OMB that would now handle data
quality: John Graham, a risk-assessment specialist with a history of close
ties to regulated industries.
“John Graham came in, and he did an unbelievable job,” Tozzi said. “Better
than I could have done had I been there myself.”
Politicizing the Process
Graham had been the head of Harvard’s Center for Risk Analysis, an
institution funded primarily by contributions from more than 100 industry
and trade association donors. While there, he had amassed a reputation as a
skilled critic of the cost of regulation.
In one analysis, conducted with funding from the auto industry, he
concluded that it would be a mistake to require side air bags in cars
because they would cost $400,000 for every year of life saved. Independent
experts reviewing his work found that the figure was actually about
$60,000, and Graham had to rewrite his article — and change his conclusion
— before it could be published in a prestigious medical journal.
When Bush nominated Graham to head the OIRA, many citizen and environmental
groups vehemently objected and more than one-third of the Senate voted no.
In his first few months, Graham sent many near-final regulations back to
the agencies that had proposed them, often saying he was not convinced they
were worth the cost.
Then he turned to the job of implementing the Data Quality Act.
By the fall of 2001, Graham’s office had published detailed guidelines for
implementing the act. A year later, federal agencies started accepting
petitions requesting that they withdraw information that allegedly did not
meet OMB standards for “quality, objectivity, utility, and integrity.”
Individual agencies are responsible for reviewing the challenged data and
deciding whether they are indeed reliable. But the OMB, a part of the White
House, oversees the process closely — through involvement in the agencies’
deliberations and by demanding annual reports describing how agencies dealt
with each petition.
OMB staff members have been providing “extensive assistance to agencies in
preparing responses to correction requests,” Graham acknowledged. “OMB
oversight is critical to make sure that agencies handle these requests in a
diligent and consistent manner,” he said.
Graham said the OMB’s unprecedented foray into science is justified in part
because the data in question often serve as a foundation for costly
regulation, which the OMB oversees. To fulfill the new role, Graham hired
the OMB’s first nine career scientists, including six with PhDs.
The Data Quality Act, or at least something like it, “was absolutely
needed,” said Horner of the Competitive Enterprise Institute.
Yet Steinzor, the Maryland environmental lawyer, and other critics complain
that the OMB’s involvement politicizes the process. The expertise of the
handful of scientists hired by Graham, they say, cannot match that of the
thousands of experts on agency staffs.
And while Graham said the OMB still supports weight-of-the-evidence
analyses, Steinzor and others contend that the Data Quality Act inherently
focuses on individual snippets of data — each of which is inevitably open
to criticism — instead of on overarching bodies of evidence.
“You can get lost in the minutiae, and that’s exactly where they want you
to go,” Steinzor said. “They just pick, pick, pick, until you’re so addled
you can’t protect people or the environment.”
A Tool for Decreasing Regulation
A few environmental and public interest groups have tried to use the Data
Quality Act. Public Employees for Environmental Responsibility, a
Washington-based group that helps federal scientists who believe their data
are being suppressed, has filed three petitions under the act.
One challenged the credibility of a Defense Department document supporting
a proposed Army Corps of Engineers project; one contended that the Fish and
Wildlife Service had made selective use of data to conclude that hunters
should be allowed to shoot rare trumpeter swans; and one charged that Fish
and Wildlife had used unsound science to develop “an inadequate recovery
plan” for the Florida panther.
“I’m not sure it is the sharpest tool in the environmental toolbox, but at
least it is a tool,” said executive director Jeff Ruch, adding that the
swan petition lost and the other two are still under review.
Many citizen groups and environmental activists believe the Data Quality
Act will always be more useful to those seeking to decrease government
regulation. Newly proposed regulations must be justified with evidence,
they note, and the act is designed specifically to challenge such evidence.
“What it really can do best is slow the regulatory process,” said Sean
Moulton, a senior policy analyst with OMB Watch, a government watchdog
group. “And even a simple delay of a rule can mean a huge financial
windfall for an industry.”
In the first 20 months, a handful of petitions — all from industry — have
been at least partly successful. In one, the Competitive Enterprise
Institute had wording added to a multi-agency federal climate change report
stating that the report’s findings did not meet Data Quality Act standards.
In another, a law firm with corporate clients in asbestos litigation got
the EPA to agree to make changes in its booklet that offers warnings and
safety advice to brake mechanics.
Yet another, filed by a group that receives funding from the conservative
Scaife Foundation, succeeded in getting the National Institutes of Health
to downgrade warnings about the effects of smokeless tobacco. And then
there was the atrazine challenge.
‘Manufacturing Uncertainty’
That petition, filed by Tozzi, made a two-pronged attack on the effort to
regulate atrazine more stringently. The first was to claim that the
evidence for atrazine’s gender-bending effects in frogs was not fully
reproduced by other Syngenta-funded EcoRisk scientists. The second was to
claim that the EPA did not have the proper test to prove atrazine had ill
effects.
Tozzi said reliance on irreproducible results would violate the Data
Quality Act because information that is not reproducible is “not accurate,
reliable or useful.”
As evidence of irreproducibility, he pointed to the dozen or so studies
sponsored by Syngenta in addition to Hayes’s study. An independent panel of
experts convened by the EPA had already expressed exasperation over the
conflicting results and mistakes they found in the design and
implementation of those studies.
In at least two of the studies the “control” frogs that were supposed to be
atrazine-free were later found to have been in water contaminated with
atrazine, an error the scientists said was unintentional. Another set of
Syngenta studies was found to be unreliable because 80 to 90 percent of the
animals died, apparently as a result of inadequate care.
Essentially what Syngenta-funded scientists did “was produce a number of
studies that were purposefully flawed and misleading, and that changed the
weight of the evidence,” Hayes said.
While the EPA review also found some flaws in Hayes’s studies, his
conclusions have been echoed by at least four other independent research
teams in three countries.
“What a coincidence that everybody can find an effect of atrazine on
gonads,” Hayes said, “except [those] funded by Syngenta.”
David Michaels, a professor of occupational and environmental health at
George Washington University School of Public Health and Health Services,
said even a good study will appear “not reproducible” if enough bad studies
are thrown into the mix.
“I call this ‘manufacturing uncertainty,’ and there is a whole industry to
do this,” said Michaels, who was the Energy Department’s assistant
secretary for environment, safety and health under Clinton. “They reanalyze
the data to make [previously firm] conclusions disappear — poof. Then they
say one study says yes and the other says no, so we’re nowhere.”
Pastoor of Syngenta said there was no conspiracy to create conflicting data.
“I don’t think it’s extending things too far to say atrazine may be one of
the best studied chemicals on the face of the earth,” he said.
“Unfortunately — or fortunately, depending on how you look at it,” other
EcoRisk team members “could not replicate what Tyrone had done.”
But Hayes was not the only team member who at least privately agreed that
atrazine was having some effect on frogs. Team member James Carr of Texas
Tech told Hayes in an e-mail in February 2003: “I agree with you that the
important issue is for everyone involved to come to grips with (and stop
minimizing) the fact that independent laboratories have demonstrated an
effect of atrazine on gonadal differentiation in frogs. There is no denying
this.”
The second prong of Tozzi’s attack was that the EPA had not designated
tests that would serve as the gold standard of proof of hormone disruption
in frogs.
The EPA does have certain “guideline tests” that can automatically trigger
regulation, including some that measure certain health effects of chemicals
on wildlife. But not for hormone disruption.
Jennifer Sass, a scientist with the Natural Resources Defense Council, said
Tozzi’s position flies in the face of decades of regulatory science. She
said the evidence on atrazine’s effects was more than convincing by
traditional standards. The act, she said, has “hamstrung EPA’s ability to
express anything that it couldn’t back up with a mountain of data. It
basically blocked EPA scientists from expressing an expert opinion.”
Hayes said he supports efforts at the EPA to create a gold standard test.
However, he said, “when we discover a pattern like this, we know we have a
problem. Yes, we should work to validate it perfectly. But in the meantime,
let’s not keep using 80 million pounds of atrazine per year while we figure
it out.”
Avoiding Tighter Restrictions
The EPA ultimately agreed with Tozzi that the lack of such a test prevented
it from regulating atrazine as a hormone disruptor — a concession many
environmentalists found surprising.
No one claims that Syngenta’s Data Quality Act petition was single-handedly
responsible for giving atrazine’s renewed approval the green light. But
coming at the end of an arduous 10-year review, the data quality challenge
was “the final one-two-three punch,” said Sass of the NRDC, which has sued
the EPA repeatedly on atrazine.
She and others said that once the EPA conceded that it could not regulate
atrazine as a hormone disrupter, Syngenta was free to reach the regulatory
finish line.
In closed meetings — details of which the EPA has declined to release —
company representatives and EPA officials worked out a plan to avoid
tighter restrictions. Instead, the plan calls for Syngenta to track
atrazine levels in 40 U.S. watersheds over the next three years to see how
farmers are doing in their efforts to minimize contamination. If
concentrations rise above a level that the company agrees is “of concern,”
then the company will work with the farmers to try to reduce the levels.
The company will also fund more studies on frogs and reanalyze its data on
employee cancers.
The resolution, Sass said, was “basically negotiated instead of going with
a scientific rationale.”
Asked why other stakeholders, such as environmental groups or outside
scientists, were not allowed to be part of the negotiations as they were in
earlier stages of atrazine’s review, James Jones, director of the EPA’s
office of pesticide programs, said opening the meetings “would be
incredibly complicated and would create a disincentive for the company to
come to the table.”
Exempting Atrazine
In June, Tozzi filed his latest Data Quality Act petition.
This time it was directed at the National Toxicology Program. That is a
part of the National Institutes of Health that reviews chemicals to see if
they cause cancer.
The program had announced in the Federal Register that atrazine was among a
long list of chemicals that it was considering for examination. In his
petition, Tozzi seized on a few sentences from the program’s description of
its chemical review procedures. He claimed that those sentences contained
discrepancies that violated the Data Quality Act.
Therefore, he wrote, the program should be barred from reviewing the
cancer-causing potential of any chemicals. In particular, the petition
noted, atrazine.
Researchers Lucy Shackelford and Julie Tate contributed to this report.
© 2004 The Washington Post Company
:*********************************************************************************
washingtonpost.com
Appalachia Is Paying Price for White House Rule Change
By Joby Warrick
Washington Post Staff Writer
Tuesday, August 17, 2004; Page A01
http://www.washingtonpost.com/wp-dyn/articles/A6462-2004Aug16.html
Last of three articles
BECKLEY, W.Va. — The coal industry chafes at the name — “mountaintop
removal” — but it aptly describes the novel mining method that became
popular in this part of Appalachia in the late 1980s. Miners target a green
peak, scrape it bare of trees and topsoil, and then blast away layer after
layer of rock until the mountaintop is gone.
In just over a decade, coal miners used the technique to flatten hundreds
of peaks across a region spanning West Virginia, eastern Kentucky and
Tennessee. Thousands of tons of rocky debris were dumped into valleys,
permanently burying more than 700 miles of mountain streams. By 1999,
concerns over the damage to waterways triggered a backlash of lawsuits and
court rulings that slowed the industry’s growth to a trickle.
Today, mountaintop removal is booming again, and the practice of dumping
mining debris into streambeds is explicitly protected, thanks to a small
wording change to federal environmental regulations. U.S. officials simply
reclassified the debris from objectionable “waste” to legally acceptable
“fill.”
The “fill rule,” as the May 2002 rule change is now known, is a case study
of how the Bush administration has attempted to reshape environmental
policy in the face of fierce opposition from environmentalists, citizens
groups and political opponents. Rather than proposing broad changes or
drafting new legislation, administration officials often have taken
existing regulations and made subtle tweaks that carry large consequences.
Sometimes the change hinges on a single critical phrase or definition. For
example, when the Environmental Protection Agency announced proposals last
year to control mercury emissions, it also moved to downgrade the
“hazardous” classification of mercury pollution from power plants — a
seemingly minor change that effectively gave utilities 15 more years to
implement the most costly controls. Earlier this year, the Energy
Department helped insert wording into a Senate bill to reclassify millions
of gallons of “high-level” radioactive waste as “incidental,” a change that
would spare the government the expense of removing and treating the waste.
The fill rule is one of several key changes to coal-mining regulations that
have been enacted or proposed by the Bush administration, which took office
promising to ease bureaucratic burdens for the coal industry and expand the
nation’s energy production. To administration officials and mining
companies, the changes are simply clarifications that eliminated
ambiguities in the law. To environmental groups, they are the
administration’s payback to an industry that has raised $9 million for
Republicans since 1998. The coal industry is a political force in West
Virginia, a vital swing state whose five electoral votes for George W. Bush
helped put him over the top in 2000.
One proposed change — described by administration officials as a
“clarification” of the Clean Water Act — would effectively void a
two-decade-old ban on mining within 100 feet of a stream. Another proposal
would scale back the federal government’s legal obligation to police state
mining agencies, by reclassifying certain duties from “nondiscretionary” to
“discretionary.”
In October 2001, the Bush administration intervened to change the focus of
a federal mining study that was poised to recommend limits on the size of
new mountaintop mines. And, in an internal policy change this spring, the
administration promulgated guidelines that allow ditches dug by coal
companies to serve as substitutes for streams that were being buried by debris.
“They call them ‘clarifications,’ but it’s really all about removing
obstacles,” said Jack Spadaro, who regulated coal mines for 32 years as a
federal mine inspector and senior mining safety officer. “They’ve made it
easier for companies to dump mining waste into streams, and harder for
citizens to challenge them.”
Bush administration officials defend the new policies, saying they are in
keeping with a national energy strategy that seeks greater independence
from foreign sources without sacrificing environmental safeguards.
“It’s hard to strike that balance, but we believe, right down to the core
of this agency, that we can do both,” said Jeffrey D. Jarrett, director of
the federal Office of Surface Mining. Noting that it was Congress that
approved the practice of mountaintop mining 30 years ago, Jarrett said the
administration’s actions have introduced a measure of “stability and
certainty” for the mines and their neighbors.
Mining industry officials say the changes benefited ordinary Americans by
ensuring a steady supply of cheap, domestic coal at a time of instability
in global oil and natural gas markets. “President Bush recognized the value
of coal to our economy, and the role it plays in providing electricity,”
said Jack N. Gerard, president of the National Mining Association. “The
administration has been diligent in its efforts to avoid disruptions in our
energy supply.”
Government studies show that mountaintop mining inflicts a heavy toll.
Streams that have not been buried under mining debris carry high levels of
silt and toxic chemicals, experts say. About 5 percent of forest cover in
southern West Virginia has been stripped away by mines, along with popular
mountain vistas that can never be replaced.
With a rebounding industry now seeking permits for more and larger mines,
the environmental impact is likely to grow, the reports show. One federal
study projects that if current trends hold, over the next decade affected
land will encompass 2,200 square miles, an area larger than Rhode Island.
“A huge percentage of the watershed is being filled in and mined out, and
we have no idea what the downstream impacts will be,” said one senior
government scientist who has studied mountaintop mining extensively but
insisted on anonymity for fear of repercussions at work. “All we know is
that nothing on this scale has ever happened before.”
Big Costs — and Big Payoff
Dismantling something as large as a mountain requires advanced technology,
big machines and massive amounts of explosives. Opponents in West Virginia
describe the result as “strip mines on steroids.”
Rather than tunneling into a mountain’s face to reach the coal, mountaintop
miners remove as much as 600 vertical feet of summit to get at the coal
seams inside. Many of the mines encompass multiple peaks and thousands of
acres in between, including large swaths of temperate hardwoods and myriad
streams.
After the trees are cleared away, miners detonate scores of explosive
charges to shear slabs of rock from the underlying coal. Gargantuan
machines called draglines clear away the rock with bucket scoops that can
hold 100,000 pounds, or as much weight as 40 Toyota Corollas.
While the capital costs are enormous, so is the payoff to the industry.
Traditional mines extract about 70 percent of the coal from an underground
seam; the recovery rate for mountaintop mines approaches 100 percent. The
new mines also require far fewer workers — sometimes only a few dozen per
mine. Still, those jobs are high-paying and highly coveted, and the mines
themselves continue to generate billions of dollars for local economies.
For those reasons, many state politicians and even labor unions embrace the
technique.
A growing number in central Appalachia despise it. A poll commissioned by a
West Virginia environmental group this year found that opponents of the
practice outnumber