In an unusual expression of bipartisan frustration, the Senate last week voted to call the administration's bluff on its regulatory-review policies.
The move came in an amendment to the Superfund toxic-waste cleanup bill, offered by Sen. David F. Durenberger (R-Minn.) and quickly embraced on the other side of the aisle.
The measure would give the Office of Management and Budget until Oct. 9 to turn loose about 40 drinking-water standards that it has held up for nearly six months -- about four months longer than President Reagan's executive order on regulatory review allows.
If the OMB doesn't meet the deadline, the amendment would require the Environmental Protection Agency to issue the regulations in final form without OMB's approval. In essence, the Senate voted to test the administration's contention that its OMB review process is nothing more than a "management tool" that agency heads are free to disregard.
Few in Congress accept that argument. For the last five years, lawmakers have feuded nonstop with OMB's regulatory overseers, complaining that the budget office was using the executive order to hold up congressionally mandated rules that did not conform to administration policy.
In Durenberger's view, the drinking-water standards represent a classic case.
The EPA sent its proposed standards for about 40 organic chemicals, including some pesticides that have been discovered in well water in several states, to OMB April 9. The president's executive order states that OMB is to complete its review of such rules within 60 days.
As of Friday, 165 days later, the rules had not been released. A bipartisan group of senators, including Environment and Public Works Committee Chairman Robert T. Stafford (R-Vt.), have written the OMB twice in an attempt to find out what happened to the regulations. So far, the letters have gone unanswered.
In a recent court brief, however, the Justice Department argued that the executive order has no legal force and said that agency heads may bypass the OMB review if they choose. Durenberger says that his amendment simply takes the administration at its word.
"We intend to stuff it down their throats, in effect," he said.
OMB spokesman Edwin L. Dale Jr. said the agency had no comment on the amendment.
Durenberger says he thinks that OMB officials are sitting on the rules while they rethink the federal government's policy on regulating cancer-causing substances. In the past, that policy has generally held that the public should not be exposed at any level to substances that are found to be carcinogenic in lab animals, a guideline the administration considers too burdensome.
Many of the organic chemicals for which the EPA is proposing standards are carcinogenic in laboratory tests. As a result, the agency has suggested banning them -- no matter the amount -- in drinking water.
That doesn't necessarily mean that the final standards will be as strict, however. The proposals bottled up at OMB represent the first step in a complex rule-making process that will eventually result in federally enforceable standards for drinking water throughout the nation. In the next step, the EPA is permitted to weigh the health risks of the pollutant against the cost and technical feasibility of removing it.
But getting from the first step to the final standard could take more than four years, an administrative pace that has contributed to congressional impatience with the OMB review process. Some members of Congress, for example, would like to use standards set under the Safe Drinking Water Act and other statutes as the benchmark for Superfund cleanups.
"The problem with that suggestion is that, to date, the agency has been practically incapable of setting health-based standards under those other statutes," Durenberger said. "So there are virtually no other standards to use in making cleanup decisions at Superfund sites."