Playing Poker with the Private Sector

Once the CPSC was convinced that the ODS technology was sufficiently feasible to favor a product standard over the proposed ban, the obvious question was whether the private standard could do the job. AGA was not about to ban the space heater, but it might regulate it to the extent deemed necessary by the CPSC. The AGA standard already had an

"optional requirement" for the ODS, along with provisions covering many other hazards. If the Z21 committee would simply require the ODS device, the "voluntary" standard could eliminate the need for a government one.

The matter was not so simple from the perspective of the AGA. Industry was largely opposed to the ODS device for reasons that were never stated explicitly. Some of the resistance no doubt was based on the cost of the device. Others objected to requiring a device that was only available from one supplier—and a foreign one at that. Whatever the reason, an AGA vice president wrote the commission in the summer of 1978 that a "strong statement from the Commission as to the value of the ODS and experience with it would be needed" in order to prompt revisions in the voluntary standard.^[41] There was not enough support for the idea in the private sector, even given the specter of government regulation. Changing a voluntary standard generally takes more than a year, but, warned the AGA, it takes "much longer when there is any controversy." There was in this case. To the surprise of several commissioners, the AGA seemed to be suggesting government regulation.

Assured that the device was desirable and technically feasible, the CPSC drafted a proposed mandatory standard. The action did not push the private sector too far; but the AGA made one apparently significant change. The Z21 committee added the "optional AGA requirement" to the standard at large. In other words, the ODS was now a "mandatory" part of the so-called voluntary standard. But there was a catch: the "mandatory" requirement would take effect only when AGA determined that a "suitable and certifiable device [was] available."^[42]

In the eyes of the CPSC staff, it would take an additional push to make this happen. "As long as unvented heaters without ODS devices can be sold for an indefinite period," the CPSC staff argued in a memo, "the industry is not compelled to develop and test the device in a short time." Therefore, the CPSC went ahead with its proposed rule duplicating almost exactly the provisions in the AGA standard, with the addition of a specific effective date—December 30, 1980.^[43] "We called their bluff," boasts one CPSC staff member.

The staff could press for an early effective date without worrying that inability to meet it would mean a de facto ban. That was what staff wanted in the first place! "Fortunately or unfortunately," as a CPSC program manager put it, "we were working with a product that was not absolutely needed by the public." In other words, the staff did not care

whether the requirement would result in a short-term ban. Apparently blind to the commercial interests of space heater manufacturers, the Economics Directorate concluded that an interruption in production would cause "no serious economic impacts."^[44]

Aware that concerns about meeting the deadline would not get a sympathetic hearing within the CPSC, private interests argued against the CPSC proposal on the grounds that a government standard would displace the nongovernment one, worsening safety in areas regulated only by the private standard. These areas were significant. The AGA standard addressed surface temperatures, sharp edges, clothing ignition, and a host of other hazards unrelated to carbon monoxide. The proposed CPSC standard covered only the ODS and related labeling. But the argument against CPSC involvement depended on whether manufacturers would actually change their behavior in the event of a federal standard and forgo AGA certification on items not required by the government. That was highly unlikely, since the forces for complying with the AGA standard were unaffected by the existence of a CPSC standard. The argument was really about turf, not safety. AGA's concern was that the CPSC was embarking on a venture that might, if extended, cut into its business. And industry's concern was more about the implications for the future than about the implications of a single requirement.

There was one potential hazard that neither the CPSC nor AGA Labs addressed: chronic health effects. The issue came up during the CPSC proceedings, but the staff had no idea which elements of combustion, if any, posed potential long-term health problems. "It would have created a furor to try to address chronic hazards," recalls a former CPSC program manager. Subsequent research at the Lawrence Berkeley Laboratory, under contract to the CPSC, suggests that one of the six tested pollutants—nitrogen dioxide—might pose a serious long-term health hazard. The CPSC has called for further studies. For now, AGA Labs is deferring to the government. "We don't have the expertise or experience to address long-term health effects," notes an AGA Labs engineer. Neither does the CPSC for that matter, ensuring that the unvented heater story is not over.