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Ann Marie Buerkle, acting chairman of the U.S. Consumer Product Safety Commission.
(Photo: Diego M. Radzinschi)

Noting several deaths from portable generators in the aftermath of Hurricane Irma, Sen. Bill Nelson, D-Florida, on Wednesday criticized the Trump administration’s pick to lead the Consumer Product Safety Commission over her past opposition to emissions caps and her selection of an industry lawyer to serve as the agency’s top in-house lawyer.

Ann Marie Buerkle, a Republican member of the Consumer Product Safety Commission whom Trump elevated to acting chairwoman in February, was nominated in July to lead the agency in a permanent capacity and serve a new, seven-year term that would begin in October 2018.

At her confirmation hearing before the Senate Committee on Commerce, Science and Transportation, Buerkle was pressed on her vote last year opposing a proposal to limit emissions on portable power generators, which have been cited in carbon monoxide poisoning deaths.

Buerkle was the lone dissent in a 4-1 vote in November to advance new emissions limits on generators. Those proposed limits have given rise to an inter-agency squabble with the Environmental Protection Agency, where Administrator Scott Pruitt has contested the consumer product agency’s authority to restrict generator emissions.

Nelson said Buerkle’s opposition to “this potentially lifesaving rule is quite concerning” and he called attention to her selection of a lawyer from the portable generator industry to serve as the consumer product commission’s general counsel. “Are you hiring a general counsel that is the vice president of the Portable Generator Manufacturers’ Association, one of the main opponents of the rule that was promulgated? Is that going to be your general counsel?” Nelson asked.

Nelson did not identify the general counsel pick by name. According to the trade group’s website, the vice president is Patricia Hanz, assistant general counsel at Briggs & Stratton Corp., a Milwaukee-based manufacturer of portable generators and lawn mower engines, among other products.

Hanz declined to comment Wednesday afternoon.

Buerkle said the commission has not voted yet on her pick for general counsel. When pressed by Nelson over whether she would “argue for her hiring,” Buerkle said, “I am the one that suggested her name.”

Buerkle defended her vote against the proposed portable generator emission restrictions, saying she sided with Pruitt’s view of the commission’s limited authority. “I voted against it because I think there’s a jurisdictional issue with the EPA, as they control emissions,” Buerkle said.

Buerkle has instead supported a proposed voluntary standard for portable generators to automatically shut off when carbon monoxide in a closed room reaches a dangerous level. In her testimony Wednesday, Buerkle said she believed the voluntary standard would be the “most expeditious route” to making portable generators safer. She said the industry could circulate a ballot on the voluntary standard by the end of this year.

Since joining the commission as an Obama appointee in 2013, Buerkle has been steadfast in her preference for voluntary standards and cooperation with companies. On Wednesday, Buerkle said her approach aligns with congressional direction for the CPSC.

The Senate committee’s chairman, U.S. Sen. John Thune, R-South Dakota, gave his support to Buerkle. “Congress actually directs CPSC to first pursue a voluntary standard and pursue a mandatory standard only if there’s a problem with the voluntary process,” he said.

Buerkle has also established herself as a regular opponent of high penalties for companies that do not timely report product defects. Still, recently, Buerkle has continued to be on the losing side of votes approving penalties, including a recent $5.7 million settlement with Home Depot over the retailer’s sales of recalled products. Buerkle wanted a lower penalty of $1 million.

She may soon see the agency switch and support her side. Last week, Trump nominated Jones Day partner Dana Baiocco to replace Commissioner Marietta Robinson, a Democrat whose term expires in October.

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