Did OMB Strangle TRI Rule in Its Crib for Chemical, Wood Treatment Industries?

June 29, 2011

Did President Obama's Office of Management and Budget (OMB) kill a rule that would have required public reporting of toxic off-gassing from treated wood and flooring at the request of the chemical, wood products, and flooring industries?

We may never know. That's because OMB — a key agency responsible for Obama's open information policy — refuses to disclose its own action in the matter.

But EPA withdrew a final rule it had sent to OMB for approval after OMB met privately with chemical, wood, and other industry lobbyists. EPA and OMB refused to comment further when the WatchDog asked what happened.

Under US law (Administrative Procedure Act, 5 USC 500ff), federal agency rulemaking is supposed to take place on the record. While in practice OMB has nearly absolute final authority under executive order for approval of almost all government regulations, it has in the past maintained the pretense that the agencies themselves are doing the regulating. An OMB spokesperson declined to add anything to published accounts of OMB's role in the matter, saying that such information was exempt from the Freedom of Information Act because it was "deliberative." The WatchDog was unable to verify that EPA withdrew the final rule on its own initiative, rather than in response to OMB disapproval.

EPA had gone through an open rulemaking process on the "Toxics Release Inventory (TRI) Articles Exemption Clarification Rule," publishing a proposed rule in the Federal Register on August 24, 2009 and taking comment in a public docket. The rule clarified whether certain articles were exempt from the Toxics Release Inventory (TRI) reporting requirements. In its proposed rule, EPA had been poised to require some facilities in the treated wood industry to report toxic off-gassing from their products. The treated wood industry and other industry groups had opposed this.

On July 26, 2010, OMB and EPA officials met with the lobbyists from the National Association of Manufacturers, Kellen Company/XPSA, International Sign Association, CropLife America, Resilient Floor Covering Institute, Carpet and Rug Institute, American Fiber Manufacturers Association, Association of the Nonwoven Fabrics Industry, American Wire Producers Association, Precision Machined Products Association, Treated Wood Coalition, Specialty Graphics Imaging Association, Treated Wood Council, and the Glass Packaging Institute.

While OMB is required to disclose the fact that the meeting occurred, it is not required to disclose what was said.

EPA had sent its "final" rule to OMB for review and approval November 15, 2010. OMB delayed action on the rule for some 214 days, more than twice the 90 days in which it is supposed to complete its review.

Then on June 17, 2011, while review was still pending at OMB, EPA withdrew its final rule. The withdrawal was not announced by EPA, nor is it yet mentioned in the official rulemaking docket — but only in a listing of regulatory actions on the OMB website.