OMB indicates some ozone documents may be privileged

The Office of Management and Budget and House Oversight and Government Reform Chairman Henry Waxman, D-Calif., are gearing up for a clash over smog standards.

OMB responded Monday to Wednesday's committee subpoena by turning over some records on the role it played in deliberations on controversial ozone standards issued last month by the Environmental Protection Agency.

But OMB signaled it may claim a right under executive privilege to withhold what it considers communications in advance of formal decisions.

Citing "important executive branch considerations," OMB General Counsel Jeffrey Rosen wrote to Waxman in a Thursday letter that "we are continuing to assess whether additional documents can be provided."

Though committee aides said the possible claim of privilege despite the committee's subpoena is part of normal wrangling over information between the committee and the agency, the dispute could lead to a legal showdown if the sides cannot reach an accommodation.

While some Democratic committee chairmen have compromised over subpoenaed documents by agreeing to steps like allowing aides to review documents at agency facilities, Waxman has avoided making deals over access to materials subpoenaed for his committee's many investigations of the Bush administration.

In an April 1 letter to OMB, Waxman said the agency's suggestion it would withhold some documents due to "the confidentiality of the executive branch deliberative and consultative process," did not amount to a valid claim of executive privilege. "The committee is entitled to documents responsive to its oversight request," Waxman wrote.

On March 14, his committee announced an investigation into the process leading to the ozone standards issued a day earlier by EPA. At .075 parts per million, the new standard for smog, measured by the concentration of ozone molecules in the air, is less stringent than that sought by an EPA scientific advisory board. The board wanted a standard of less than 0.070 ppm, while industry groups had urged keeping that standard at 0.084 ppm.

Waxman and some environmental groups have criticized the role played by OMB and President Bush in the issuance of the standards. According to documents released by the administration, after Susan Dudley, administrator of OMB's Office of Information and Regulatory Affairs, clashed with EPA over the standard, Bush took the unusual step of intervening to back OMB.

Committee Republicans have said Dudley and Bush's involvement was appropriate.

The committee has scheduled a hearing Thursday on the standards, though OMB has objected because Dudley is unavailable to testify. "We're disappointed that the committee scheduled the hearing for the 24th, despite the fact that we offered several alternative dates," OMB Director Jim Nussle wrote in a letter Monday to Waxman.

EPA Administrator Stephen Johnson and an undetermined OMB representative are expected to testify.