SPEAKERS CONTENTS INSERTS Tables
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EPA'S RULEMAKINGS ON THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER AND OZONE
Tuesday, July 29, 1997
House of Representatives,
Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in room 2226, Rayburn House Office Building, Hon. George W. Gekas (chairman of the subcommittee) presiding.
Present: Representatives George W. Gekas, Lamar Smith, Bob Inglis, Ed Bryant, Steve Chabot, Jerrold Nadler, Sheila Jackson Lee, Martin T. Meehan, and William D. Delahunt.
Also present: Raymond V. Smietanka, chief counsel; James W. Harper, counsel; Susana Gutierrez, clerk; David Lachmann, minority professional staff member; and Samara T. Ryder, minority counsel.
OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The Subcommittee on Commercial and Administrative Law of the House Judiciary Committee will come to order. As is the custom in this subcommittee, we begin the proceedings on time. But now, we must recess until the appearance of an additional Member so that we can have a working quorum. We will stand in recess, until that time. But we'll take care of some business in the meantime; that is, to acknowledge the attendance of our colleagues, Mr. Upton and Mr. Boucher as witnesses. We will accord them the full time that they might have to devote to this hearing when and if a second Member appears. We believe that some of them are on their way. We will simply have to ask for your indulgence.
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Mr. UPTON. Mr. Chairman, I might ask if you would entertain maybe a unanimous consent request that we might deputize the both of us as members of this subcommittee for a time not to exceed maybe 15 or 20 minutes.
Mr. GEKAS. You are so deputized.
Mr. UPTON. If that would help out.
Mr. GEKAS. We stand in recess for a brief period of time, we hope.
[Recess]
Mr. GEKAS. We gratefully acknowledge the presence of the gentleman from Tennessee, Mr. Bryant, who by himself constitutes half of the working quorum. We can proceed with the hearing.
Our colleagues have long evinced an interest in the subject matter at hand. We'll hear from them in a moment. In the meantime, I will indulge in a brief opening statement to sort of set the stage for today's proceedings.
Everyone in the world knows about the new standards as promulgated by the EPA and a swirl of controversy of course has been created by that pronouncement. We are here to clear the air on the entire situation, pun intended.
What we are concerned about, scientists that we are not, at this stage of the proceedings and through the purview of the jurisdiction of this subcommittee, is not the data upon which the standards were created or promulgated, but rather the process by which we have come to this stage in that controversy. We have strived mightily in the Congress to respond to the cry of anguish that has arisen over the years by our constituents across the land on No. 1, overregulation, and No. 2, on regulation which is burdensome and on which very little input has come from the regulated community with no chance of in many cases of changing the mind of the bureaucratic mindset that has established the rule in the first place. Certainly no judicial review, no way to appeal, only ways in which the regulatee can continue to suffer under those regulations until the 104th Congress. This is the focus of the hearing today.
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The 104th Congress went out of its way to respond to these cries of anguish, as I have termed them, and as such, the regulatory flexibility was ameliorated. Small business communities were finally encompassed in the vortex of rulemaking, and unfunded mandates which were a sore point over the years, were addressed.
So we have new sets of statutes which we very comfortably felt at last the Congress has responded to overburdensome regulation and where regulation is necessary and is a part of our society's well-being, that the facilitation of the input from the regulated community was at last at hand.
After we felt smug and satisfied about that, then comes along these clean air standards. Everyone wants clean air. Now we are caught up in the perplexing problem, has the EPA in this circumstance dodged the bullets that we fired on overregulation by the 104th Congress actions. Have they dodged them purposely? Have they dodged them legally? Have they properly avoided the responsibility as we, Members of Congress, see it to abide by the process in those new statutes that we have set forth.
So that is the portion of this hearing that will raise, I know, most of the hackles, but that is why we are here. This is an oversight hearing. We want to know what happened and why these statutes, in which we take so much pride seem not to have been complied with.
[The opening statement of Mr. Gekas follows:]
OPENING STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
Good morning. Today we take testimony on a rulemaking recently concluded by the EPA dealing with national air quality standards. In particular, consistent with our mandate as the Subcommittee on Commercial and Administrative Law, we look at the process by which EPA came up with its recent rules.
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The administrative process was invented this century to accommodate the growth of the federal government. In broadest generality, it is designed to replicate the functions of the legislative branch when the legislative branch has chosen to delegate its responsibility to an executive branch agency.
Since 1946, when the Administrative Procedures Act was first signed into law, Congress and the President have labored continuously to craft an administrative process that treats all parties and all perspectives fairly. While one of the ends is getting the best possible rules, another, equally important purpose, is making the administrative process an open process that informs the American people about the actions of its government. In short, the administrative process is designed to be a two-way street that both collects and disseminates information to affected interests, the public, voters, and Congress.
Consistent with these dual goals, the 104th Congress passed, and President Clinton signed the Unfunded Mandates Reform Act,which requires agencies to inform and work with States and localities on major rules. Likewise, congress passed, and the President signed, the Small Business Regulatory Enforcement Fairness Act (SBREFA), which requires agencies to inform and work with small businesses. In addition, SBREFA amended and strengthened the Regulatory Flexibility Act, which requires agencies to make a variety of important information on pending actions available to the public.
In setting out the standards we discuss today, EPA exempted itself from these important procedures. EPA did not analyze the effects of its actions on small business as required by the Regulatory Flexibility Act. EPA did not consult with small businesses as required by SBREFA. EPA did not consider the effects of its rule on State and local governments as required by the Unfunded Mandates law.
There has been a great deal of controversy surrounding these rules, in part because of this expedited and ad hoc rulemaking process. the result, I hasten to add, is not just the content of the rules,which, it is alleged, are based on defective premises. It is the air of suspicion that surrounds them.
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We are skeptical of the rules because we are skeptical of the process used to come up with them. I believe that this alone is grounds for rejecting them and sending EPA back to the drawing board.
If EPA believes in the rules it has cobble together, it would be willing to promulgate them using the open process federal law requires. So, today, instead of celebrating the clean air progress this nation continues to achieve, we must try to clear the air with hearings like this.
Mr. GEKAS. I acknowledge the presence of the ranking minority member, the gentleman from New York, Mr. Nadler, and will yield to him for an opening statement.
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, as far as I am concerned, these clean air standards updates put out by the EPA were long overdue and ought to be implemented as quickly as possible. I regard the opposition to them as akin to the opposition that we have seen from the last 40 years by the tobacco industry. The claims of bad science are the same and of the same spuriousness.
Everybody in the field knows that the scientific evidence has been piling up for 20 years, that small and fine particulate matter which was not regulated by the current rules, that fine particulate matter is very harmful, perhaps more harmful than the larger particulate matter.
The Clean Air Act requires that every 5 years the standards be updated by the EPA in light of latest scientific strategies. I am glad that they have been. There can be no more important function of the Government than the protection of public health. That is why Congress in crafting the Clean Air Act directed EPA to base the national ambient air quality standards on the science to make those standards health-based and not to balance those concerns against considerations of cost. That is the law.
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When devising strategies to attain those health-based standards, it is entirely appropriate to look at the most efficient and least disruptive methods of doing so. That process needs to include everyone who might be affected by those decisions from small business to local governments, to public health professionals. But we should never fudge the science. We should never mislead the American people about the air they breathe, and we should never waiver in our commitment to protecting the public health.
In assessing whether EPA has remained faithful not just to the letter, but also to the spirit of the law, I look forward to hearing from today's witnesses. Whether this process has been open, whether those concerned have had an opportunity to have their views adequately considered, and whether EPA has listened to the available evidence on these very important questions.
I also assume we will hear from the EPA and other witnesses, their comments on the spuriousness of the criticisms of the science behind the criticisms of the clean air standards. I will note that every time we have had a further regulation to protect the public health, whether it be in tobacco or in clean air or other areas, we have been told by partisans that the science was ''bad'' science. They would have us wait until we are all injured definitely and where you can very clearly and without any basis for any doubt show that the injury was from the particular pollution before we take any action. Protecting the public health is the goal, and you want to do that, obviously, before you have millions of people clearly suffering.
So I am glad the EPA has done what it's done. I trust the Congress will uphold it. I look forward to this hearing to show the process through which it has gone, and the science behind it. I thank you, Mr. Chairman.
Mr. GEKAS. We thank the gentleman. We turn to the gentleman from Tennessee, Mr. Bryant.
Mr. BRYANT. Thank you, Mr. Chairman for holding these hearings because I think we may have a serious problem on our hands. The controversy over the Environmental Protection Agency's new ambient air quality standards for particulate matter and ozone is well known. And I realize that the focus of this subcommittee's work today isn't to debate the merit or lack of merit of these new standards, but rather to look into the process used by the EPA in developing these rules.
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I welcome the opportunity to review with the EPA the steps taken, and especially those not taken in developing these new standards. I am especially interested in learning more about the rationale used by this agency in exempting itself from, and even ignoring, provisions of such laws as the Regulatory Flexibility Act, Small Business Regulatory Enforcement Fairness Act, and the Unfunded Mandates Reform Act.
In exploring the EPA's willingness to exempt itself from these laws, I also would like to point out another inconsistency which I found to be rather telling of this administration's attitude toward air quality. As many of you recall, 2 weeks ago, Washington was in the grip of a sweltering heat wave. Air quality was so bad that the Commonwealth of Virginia asked the President to issue an ozone emergency and limit Federal Government operations in an effort to improve air quality around the Washington metro area. This request came after three straight days of code red ozone levels for the Washington area, and was intended to cut air pollution resulting from commuter traffic. A seemingly reasonable request based on this administration's stated commitment to protecting our environment.
While the State of Virginia's request was never given the courtesy of an official response, according to the Washington Post, the Office of Management and Budget denied the request, stating that ''this air quality thing, while serious, doesn't seem to justify the cost of shutting down the Government.''
While I have no quarrel with this administration's reasoning in the case, it does seem hypocritical for this administration to deny a State's request to help the environment because of the high cost to the Federal Government, while at the same time, ignoring the high cost of requiring local businesses and State and local governments in complying with the EPA's new clean air standards.
With that, I thank the Chair and would yield back my time.
Mr. GEKAS. We thank the gentleman. Now we turn belatedly to our colleagues who have waited patiently at the witness table.
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The gentleman from Michigan, Fred Upton, is in his sixth term. He is from St. Joseph, MI. He serves on the Commerce Committee and on the Committee on Education and the Workforce.
Rick Boucher, our colleague on the Judiciary Committee, is also a member of the Courts and Intellectual Property Subcommittee. He also serves on the Commerce Committee and two of its subcommittees. He is an eight-term Representative of the Ninth District of Virginia.
We will begin with Mr. Upton's statement.
STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. UPTON. Thank you, Mr. Chairman.
Mr. GEKAS. We are going to try to limit you, but we're not going to be successful at the outset, we know. We want you to know that we want to limit you.
Mr. UPTON. I have a brief statement that I will read. I thank you, Mr. Chairman, for allowing me here. I didn't realize that you only needed to deputize one of us for a quorum to get this thing started this morning.
I share your concern on national ambient air quality standards for both ozone and particulate matter. I also share your concern about EPA's exempting itself from compliance with the requirements of the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, and the Unfunded Mandates Reform Act. EPA's argument that it should be exempt from compliance in large part because the new standards themselves will not have an impact on small business and local communities is at best disingenuous. It is true that it is not the EPA, but the States that develop the implementation plans, imposing new controls and requirements on local communities, businesses and individuals. But such new controls, rules and regs. would not be necessary had the EPA not elected to set rigid, and I would argue, unnecessary and unrealistic, new standards. Other agencies within this administration certainly did not agree with the EPA's conclusion that the new standards would not have a significant impact on small business and local governments.
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The Small Business Administration, for example, sent EPA Administrator Carol Browner a letter stating, ''Considering the large economic impacts suggested by the EPA's own analysis, they will unquestionably fall on tens of thousands, if not hundreds of thousands of small businesses. This would be a startling proposition to the small business community. . . . This regulation is certainly one of the most expensive regulations, if not the most expensive regulation faced by small business in 10 or more years.''
The only justification for imposing such onerous burdens on individuals, local governments, and businesses would be a clear and substantial increase in public health protection. Yet as we have learned from prior hearings on the new standards, there is real disagreement among the scientists, physicians and other experts over whether the new standards will in fact provide any significant new protection of human health and the environment over the standards that were already in effect.
Given the very legitimate concerns that have been raised about the science behind the new standards, the uncertainty about whether they will produce a significant improvement in health, and the certainty that they will in fact impose enormous economic and personal costs in lost businesses and jobs and lifestyle changes in counties across the nation that are being thrown into nonattainment status, Representative Klink, Boucher and myself introduced H.R. 1984, which places a 4-year moratorium on the new standards. At the same time, H.R. 1984 ensures clean air progress through the continued implementation of the ozone-fighting provisions of the Clean Air Act Amendments of 1990, and through the implementation of the monitoring and research programs that the EPA advocates for fine particulate matter.
The bill provides EPA with an additional $75 million per year for additional research on the health effects of fine particulate matter, and a new review of the ozone and fine particulate matter standards, in accordance with existing Clean Air Act provisions. EPA would be authorized to require monitoring for fine particulate matter immediately. This will ensure the availability of the monitoring data necessary to implement any new fine particulate matter standard, and is consistent with the EPA's statement that it would not move forward with the implementation of the new particulate matter standard until it conducted extensive monitoring and standard re-evaluation.
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This is a freestanding bill. It does not amend EPA's standard setting authority or any other part of the Clean Air Act. It affects only the recently finalized new air quality standards and now has 109 cosponsors.
I guess I would have to say, in closing, that it is no surprise that my friend from New York takes opposition to this bill. Most of his State does not meet today's standard or the old standard. My State did. We undertook massive spending by industry to comply with the old standard and I wish that EPA's focus had instead been centered on those States that didn't meet the standard versus those areas, hundreds of counties in fact, that did.
I would yield back and obviously be here for questions, and welcome my friend, good friend, Mr. Boucher.
[The prepared statement of Mr. Upton follows:]
PREPARED STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Thank you, Mr. Chairman, for the opportunity to testify at your hearing on the Environmental Protection Agency's (EPA) rulemaking on national ambient air quality standards for ozone and particulate matter. I share your concern about the EPA's exempting itself from the compliance with requirements of the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, and the Unfunded Mandates Reform Act.
The EPA's argument that it should be exempt from compliance in large part because the new standards themselves will not have an impact on small businesses and local communities is at best disingenuous. It is true that it is not the EPA but the states that develop the implementation plans imposing new controls and requirements on local communities, businesses, and individuals. But such new controls, rules, and regulations would not be necessary had the EPA not elected to set rigid, and I would argue unnecessary and unrealistic, new standards.
Other agencies within the Clinton Administration certainly did not agree with the EPA's conclusion that the new standards would not have a significant impact on small businesses and local governments. The Small Business Administration, for example, sent EPA Administrator Carol Browner a letter stating, ''Considering the large economic impacts suggested by the EPA's own analysis that will unquestionably fall on tens of thousands, if not hundreds of thousands of small businesses, this would be a startling proposition to the small business community . . . (t)his regulation is certainly one of the most expensive regulations, if not the most expensive regulation faced by small business in ten or more years.''
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The only justification for imposing such onerous burdens on individuals, local governments, and businesses would be a clear and substantial increase in public health protection. Yet as we have learned from prior hearings on the new standards, there is real disagreement among scientists, physicians, and other experts over whether the new standards will in fact provide any significant protection of human health and the environment over the standards that were already in effect.
Given the very legitimate concerns that have been raised about the science behind the new standards, the uncertainty about whether they will produce a significant improvement in health, and the certainty that they will impose enormous economic and personal costs in lost businesses and jobs and lifestyle changes in counties across the nation that are being thrown into non-attainment status, Representatives Klink and Boucher and I introduced H.R. 1984, which places a four-year moratorium on the new standards. At the same time, H.R. 1984 ensures clean air progress through the continued implementation of the ozone-fighting provisions of the Clean Air Act Amendments of 1990 and through the implementation of the monitoring and research programs that the EPA advocates for fine particulate matter. The bill provides the EPA with an additional $75 million per year for additional research on the health effects of fine particulate matter and a new review of the ozone and fine particulate matter standards, in accordance with existing Clean Air Act provisions. The EPA would be authorized to require monitoring for fine particulate matter immediately. This will ensure the availability of the monitoring data necessary to implement any new fine particulate matter standard and is consistent with the EPA's statement that it would not move forward with the implementation of the new particulate matter standard until it had conducted extensive monitoring and standard re-evaluation.
H.R. 1984 is a free-standing bill. It does not amend the EPA's standard-setting authority or any other part of the Clean Air Act. It will affect only the recently finalized new air quality standards. This bipartisan bill now has 109 cosponsors. It's a common-sense response to the legitimate concerns raised by the EPA's rush to implement its controversial new standards.
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Thank you for your attention and, again, for this opportunity to testify before you this morning.
Mr. GEKAS. We thank the gentleman. We'll turn to Rick.
STATEMENT OF HON. RICK BOUCHER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. BOUCHER. Thank you very much, Mr. Chairman. It's a privilege for me to appear with my good friend, Fred Upton, before this distinguished subcommittee of the House Judiciary Committee. I welcome the subcommittee's inquiry into the procedural aspects of the adoption by EPA of its new rules with regard to ozone and fine particulate matter.
The remarks that I will offer to the subcommittee this morning are focused on the problems that with the new standards that led me to cosponsor as an original author with Mr. Upton and Mr. Klink, H.R. 1984, which is designed to place a 4-year moratorium on the creation of new standards by the EPA.
The legislation is designed to send a message to the EPA that we in Congress believe that EPA ought to complete the necessary scientific research before finalizing new regulations, particularly regulations that will have billions of dollars in economic effect for the American economy. There are serious scientific uncertainties regarding the potential health benefits associated with these new regulations. In fact, the Environmental Protection Agency's own Clean Air Scientific Advisory Committee has questioned the health benefits, the technical basis, and the scientific justification for the regulations. Hearings in six House committees have shown that the scientific basis for the regulations is weak and cannot begin to justify standards that will represent the most costly set of environmental regulations ever established by the Federal Government.
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Unfortunately in this case, EPA has taken a situation where the scientific record is ambiguous, where the best scientists agree that we ought to do more research, and acted as if there were no doubt in the world. I think we should heed the findings of the Clean Air Scientific Advisory Committee, the independent science review board that spent months pouring over the scientific record and weeks debating the conclusions to be drawn from it.
On the question of ozone, the panel did urge that EPA adopt a change from a 1-hour to an 8-hour standard. But the panel provided no definitive conclusion on the stringency of the new 8-hour standard. Rather, it stated that there is no bright line that distinguished any of the levels under consideration. Because the differences between the options were small and overlapping, the panel called the final decision a policy call rather than a scientific judgment. It is not disputed that EPA could have selected an 8-hour standard of the same stringency as the existing standard, and done so in a way that is fully consistent with the recommendation of its own Clean Air Scientific Advisory Committee.
On the question of particulate matter, the panel did vote to focus the standard on fine particles, those that are less than 2.5 microns in size. But it provided no recommendation on any of the particulars such as stringency of the standard, such as averaging time, or the form of any new standard. Individual views were virtually all over the map on the part of panel members with regard to these key variables. Because of its lack of specificity, the EPA could have set a fine particle standard that was equivalent to or even less stringent than the existing law, and done so in a way that is fully consistent with the recommendation of the EPA's own Clean Air Scientific Advisory Committee.
In short, the panel's scientists found too little certainty for specific conclusions. Administrator Browner stepped in and made the calls that the scientists would not. Unfortunately, that means that the new standards do not reflect the inescapable results of available science, but only the best guess of a nonscientist.
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The good news is that there is no reason to choose between progress on clean air and standards based on good sound acceptable science. For ozone, we will be better off implementing the existing Clean Air Act ozone fighting provisions over the next 5 years. On particulate matter, we can complete much of the research that the panel called for and still meet the implementation schedule that Administrator Browner has announced.
Under the legislation that I am pleased to be sponsoring with Mr. Upton and Mr. Klink, the EPA would also be required to start the additional monitoring that is necessary to implement any new standard that emerges from the next review. We would simply suspend the effectiveness of that standard until the monitoring is complete, and then an independent judgment could be made by the EPA, perhaps subsequently by the Congress as to what new standard, if any, is required.
Since the EPA has publicly stated that it will do nothing more than monitoring and research before the next review, H.R. 1984 will not slow down EPA's implementation of any new particulate matter standard by even a single day. It will, however, give EPA the information that it needs from a scientific standpoint to make the decision with regard to whether any new standard for fine particulate matter is in fact necessary.
Mr. Chairman, I commend you for holding this very timely hearing on a subject that affects virtually every person in the United States in terms of the massive effect that these new regulations will have on the economy, an effect which I would submit is entirely unjustified based upon the conclusions of EPA's own panel of scientists.
I will be glad to join with Mr. Upton in answering your questions.
[The prepared statement of Mr. Boucher follows:]
PREPARED STATEMENT OF HON. RICK BOUCHER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Thank you Chairman Gekas for the opportunity to address the Subcommittee on EPA's new air quality standards for ozone and fine particulate matter. I welcome your review of the procedural questions associated with the adoption by the EPA of the new rules. My remarks will focus on the problems with the new standards which led me to introduce H.R. 1984, bipartisan legislation designed to place a four-year moratorium on the creation of the new standards. H.R. 1984 sends a message to the EPA that we in Congress believe that EPA ought to complete the necessary scientific research before it finalizes regulations, especially regulations that will have billions of dollars of effect on the economy.
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There are serious scientific uncertainties regarding the potential health benefits associated with the regulations. In fact, EPA's own Clean Air Scientific Advisory Committee (CASAC) has questioned the health benefits, the technical basis and the scientific justification for the regulations. Hearings in six House Committees have shown that the scientific basis for the proposed regulations is weak and cannot begin to justify standards that will represent the most costly set of environmental regulations ever established by the federal government.
Unfortunately, in this case EPA has taken a situation where the scientific record is ambiguous, where the best scientists agree that we ought to do more research and acted as if there were not a doubt in the world.
I believe that we should heed the findings of the Clean Air Scientific Advisory Committee, the independent science review board that spent months pouring over the scientific record and weeks debating the conclusions to be drawn from it.
On ozone, the panel did urge EPA to change from a one-hour to an eight-hour standard. But the panel provided no definitive conclusion on the stringency of a new eight-hour standard. Rather it stated that there was no ''bright line'' that distinguished any of the levels under consideration. Because the differences between the options were small and overlapping, CASAC called the final decision a ''policy call'' rather than a scientific judgment. It is not disputed that EPA could have selected an eight-hour standard of the same stringency as the existing standard and satisfied the recommendations of CASAC on ozone.
On particulate matter, the panel did vote to focus the standard on fine particles (less than 2.5 microns) but provided no recommendation on any of the particulars such as the stringency, averaging time, or form of any new standard. Individual views were literally all over the map on these key variables. Because of this lack of specificity, EPA could have set a fine particle standard that was equivalent to—or even less stringent than—the existing PM10 standard and still been consistent with the sole recommendation of CASAC.
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In short, the CASAC scientists found too little certainty for specific conclusions. Administrator Browner stepped in and made the calls the scientists would not. Unfortunately, that means that the new standards do not reflect the inescapable result of the available science, but only the best guess of a non-scientist.
The good news is that there is no reason to choose between progress on clean air and standards based on good, sound, accepted science. For ozone, we will be better off implementing the existing Clean Air Act ozone fighting provisions over the next five years. On particulate matter, we can complete much of the research that CASAC has called for and still meet the implementation schedule the Administrator has announced. Under the Klink-Upton-Boucher bill, EPA would also be required to start the additional monitoring necessary to implement any new standard that emerges from the next review. Since EPA has publicly stated that it will do nothing more than monitoring and the research before the next review, H.R. 1984 will not slow down EPA's implementation of any new particulate matter standard by a single day.
Again, I thank the Chairman for the opportunity to appear before the Subcommittee and thank him again for holding this important hearing.
Mr. GEKAS. We thank the gentleman.
We now acknowledge the presence of the gentleman from Massachusetts, Mr. Delahunt; the gentleman from Texas, Mr. Smith, and the gentleman from Ohio, Mr. Chabot.
We will proceed with a round of questions. The Chair wishes to ask the gentleman from Virginia, Mr. Boucher, if he believes that the judgment calls made by Secretary Browner following the recommendations of her own board, as it were, could they have been modified or changed or at least solidified had the statutes in question here for our committee been observed?
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In other words, if the people who under these statutes would have had the right of input and of judicial review and of cooperation in establishing the record for the eventual judgment calls to be made by the Secretary, would we be in a better position today? This is kind of a softball question, but I do want the record to be clear there. How does the gentleman feel about that, and Mr. Upton?
Mr. BOUCHER. Well, Mr. Chairman, I am of the view that perhaps that insufficient amount of advice was received from those who would be affected by these regulations prior to the regulations being implemented. I would leave it to this subcommittee's inquiry and the other witnesses who you will call today to examine that particular question in greater detail.
At a very minimum, that greater examination by the EPA and advice from the affected parties would have revealed the extraordinary cost that these regulations will impose upon every aspect of American industry and the price of products that will be paid by every American from the time of effectiveness of these regulations forward.
I am concerned, as I indicated, by that massive cost, and the fact that the regulations are not supported by adequate science as revealed by the EPA's own panel. I would hope that as a consequence of your hearings this morning and hearings that I know will be held shortly in the House Commerce Committee, that a greater realization can be gained by Members of Congress and by the American public of both the extraordinary cost of these regulations and the absence of adequate scientific basis for them.
Mr. UPTON. I might also note, Mr. Chairman, that in the many oversight hearings that we held I think we had about 20 hearings—we found many statements by folks within the administration that did not support the standard that Ms. Browner ended up at. There was quite a bit of division within other departments within the administration, and sadly from my point of view, the EPA came out with the standard that it did, inspite of Administrator Browner's own admission that leaving the 1990 standards in place would in fact continue to produce cleaner air.
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Mr. GEKAS. We thank you for those answers. The Chair will indulge now in a round of questions by the Members under the 5 minute rule. We yield 5 minutes to the gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman.
Congressman Boucher, Rick, I was confused about one thing you said. You said that under this bill that you and Mr. Upton and a few others, and Mr. Klink are sponsoring, the actual implementation of these new clean air standards would not be delayed by a day. I thought the whole point was to delay them and not to implement them. Can you explain?
Mr. BOUCHER. Let me clarify the effect of our legislation. The ozone implementation would be delayed. The fine particulate matter implementation, however, would not, because the schedule for implementing the fine particulate matter part of the new regulation will not result in that implementation until after the study that we are directing in our legislation has been completed, and the results of that study presented to the EPA for its evaluation.
If our legislation is adopted, it is potentially possible that the study could present a scientific basis for the kind of fine particulate matter regulation that the EPA's order requires. The EPA could then act on that information and still implement its fine particulate matter regulations on a time that is the same as the existing schedule.
Mr. NADLER. So that observation was with regard to the fine particulate matter, but not the ozone?
Mr. BOUCHER. That is correct.
Mr. NADLER. Let me ask Congressman Upton then. EPA says on the basis of its scientific judgment, given what they say they have said, that studies of hospital admissions show a correlation between ozone concentrations and daily admissions for respiratory causes. EPA argues that the proposed standard would result in annual benefits of 1.5 million fewer cases of significant breathing problems, and so forth and so on.
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Under this bill, you are saying that the science isn't definite enough to say that. You are proposing that we should delay this rule and do additional scientific studies. Shouldn't we err on the side of human health? If you are wrong, and the scientific basis is more firmly established, won't we have thousands and thousands of deaths in this interim several year period?
Mr. UPTON. I would point out some other studies that have come out, one of which is with regard to asthma. Asthma cases over the last number of years in fact have gotten worse, when in fact clean air has also gotten better. The air quality——
Mr. NADLER. Excuse me. That assumes it's the only variable. You are not going to say that clean air is the only variable?
Mr. UPTON. No, but despite the air being measurably improved throughout the country, asthma cases in fact are getting worse. So it is a little bit hard to make that direct correlation.
The other thing is that it's interesting to note that, particularly among kids, the average time that is spent outdoors is actually going down. So they are spending less time outdoors, and the air quality is getting better across the country, yet somehow asthma cases are getting worse. So there is some real conflict with the science that is out there, particularly the science that EPA used.
Mr. NADLER. Let me just read one thing from the Scientific Advisory Board, which the two of you have both cited. It states that there is a strong consistency and coherence of information indicating that high concentrations of urban air pollution adversely affect human health. Then they point out that there are already ambient air quality standards that deal with all the major components of that pollution except PM2.5, that is, the fine particular standards. But forgetting the PM2.5 for the moment, it is very clear that the ozone certainly has a direct correlation with health.
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Mr. UPTON. I WANTED TO MAKE THE POINT AS WELL THAT THOSE AREAS THAT ARE NONATTAINMENT THROUGHOUT THE COUNTRY, BASED ON THESE NEW REGULATIONS THAT CAME OUT, IN ESSENCE HAVE ANOTHER 15 TO 20 YEARS TO COMPLY WITH THE STANDARD VERSUS HAVING SOME CUTOFF DATE.
Mr. NADLER. But if this bill goes through, that 15 to 20 years will be delayed for another 4 years? Isn't that true?
Mr. UPTON. Well, hopefully these new regs are not going to go into effect.
Mr. NADLER. Let's assume the science finds out that they are absolutely right, and that after all the further studies, it turns out that we ought to really strengthen the ambient air quality standards for ozone.
What I am saying is, shouldn't we err on the side of health? I think we have found out enough already. But from what you are saying, we could find that either way.
But let's assume that we delay it and a few years from now we find out that, yes, we were right all along. At that point, we will have caused several thousand deaths. Isn't that correct, if that were to happen?
Mr. BOUCHER. Let me, if I may, Mr. Nadler, offer a comment with regard to that. The Clean Air Act amendments that we enacted in 1990 are still in the process of implementation. From the standpoint of ozone, the air is getting cleaner every year as a consequence of that schedule of implementation. We still have years to go with regard to that. Communities across the United States are working very hard today, including many in your State of New York, to comply with the existing ozone requirements of the 1990 legislation. This simply adds on top of that an additional layer of ozone regulation, which is going to be virtually impossible to meet for the communities that are not in attainment today.
I would echo what my friend, Mr. Upton, said; that is, that at the present time the air is getting cleaner as a consequence of the 1990 act, even though there seems to be an increased incidence of asthma that is occurring at a time when air quality is actually improving—suggesting that there may be some other component of the cause of that illness than ozone.
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Mr. NADLER. Let me just observe——
Mr. GEKAS. The gentleman's time has expired.
Mr. NADLER. I ask unanimous consent for an additional 30 seconds.
Mr. GEKAS. We'll grant an additional one minute.
Mr. NADLER. Thank you, Mr. Chairman.
I would simply observe two things. First, that like most things, it may very well be that the incidence of asthma and other health effects rely on multiple variables. Very few things have only one variable. Cleaning up the air would help. But if other things get worse, they compensate.
Secondly, I would simply observe that many areas, including my own city of New York, are not in compliance. Many of us have been frustrated that EPA and Federal Highway Administration have been much too lax in forcing the authorities in New York to get us up to clean air standards, and the fact that while many areas are in compliance now doesn't mean that we shouldn't make those standards stronger, if that's what the health science indicates.
Mr. GEKAS. The gentleman's time has expired.
Mr. UPTON. If I might just respond just for 15 seconds—I, too, would like New York to comply with the President's standard. That focus ought to be centered on those areas that don't meet the standard that was set before versus raising the bar on communities that did undertake and in some cases, some companies spending tens of millions of dollars to comply with the old standard.
Mr. GEKAS. The time of the gentleman has expired.
We acknowledge now the attendance of the lady from Texas, Ms. Jackson Lee.
I would like to remind the Members that, although the Chair is not going to harness any Member's questions on any subject, that the focus of this inquiry today is on the process, or lack of it, in bringing us to this stage in the clean air standards controversy.
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Our colleagues have strenuously asserted, Mr. Boucher and Mr. Upton, that they have great questions about the process. I simply reiterate that for the Members, that the chief item of inquiry here is the process.
With that, I will yield to the gentleman from Texas. The gentleman from Ohio? Any questions?
Mr. CHABOT. I will move to strike the last word. I have a very brief statement here. I won't take up the full 5 minutes. But first of all I want to thank the chairman for holding this very important hearing.
I would like to say that this is a very important issue. As the father of two and having a son who turns 8 tomorrow, I want him breathing clean air. I want all the children of this country to do so. We especially want a clean environment for our children. However, I am concerned with the EPA's heavyhanded rush to impose new ozone and particulate matter standards without resolving many legitimate scientific issues.
I am also deeply troubled by the EPA's apparent disregard for a number of safeguards enacted by Congress to protect taxpayers, consumers, local government, and small businesses. Legislation such as the Unfunded Mandates Act and the Regulatory Flexibility Act simply ask Federal agencies to fully review and publicly disclose the potential ramifications of their proposed action on the American people. I know that many Democrats and Republicans in Congress share these same concerns, and that is evidenced by the strong bipartisan support of the Klink, Boucher, Upton bill. I am a cosponsor of that legislation. I would like to commend my colleagues here this morning for proposing this legislation. I think it's very good legislation.
In fact, the EPA's own Clean Air Scientific Advisory Committee could not come to a conclusion on PM standards. A majority opposed tightening the ozone standard.
As you know, Mr. Chairman, these new standards could have a devastating impact on my State, Ohio. According to the Ohio EPA, the total cost of compliance in Ohio alone will be over $2 billion per year. Ohio EPA projects an average electric rate increase of 7 percent, and has identified over 17,000 manufacturing facilities and hundreds of thousands of jobs that could be negatively impacted by these standards. Cities such as my hometown of Cincinnati may not ever be able to meet the new standards, even if Ohio requires all known air pollution controls, including expanded automobile testing, mandatory clean fuels, additional controls on industry and utilities, reformulated consumer products such as paint and aerosols, and higher prices for lawnmowers and leafblowers, with cleaner burning engines.
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Mr. Chairman, I am hopeful that we can provide the EPA with the additional time and tools to resolve the many legitimate issues still surrounding it's new standards. We made great progress under the Clean Air Act, as my colleagues have mentioned here this morning. I believe that any changes by the EPA should definitely be based upon sound science.
My one brief question would be: Our Ohio EPA has taken a pretty strong position in regards to these standards. Have Virginia or Michigan EPA's been involved? If so, what are their views on these new proposed standards?
Mr. BOUCHER. To my knowledge, the Department of Environmental Quality in Virginia was not consulted as the standards were formulated. I have no doubt that, had it been consulted, it would have recommended against the implementation of these standards. I say that based upon knowledge that I have of the generally balanced view that is taken in Virginia with regards to matters such as this. But I think there was no formal involvement by that agency as these standards were formulated.
Mr. UPTON. Our Department of Environmental Quality in Michigan was very much opposed to the new standard that was set. In fact, for much of western Michigan, our ozone levels are really determined by those cities that are presently in nonattainment, Milwaukee, Gary, Indiana, Chicago. Their air comes across Lake Michigan, and it's not until it gets a county or two inland that the air in southwestern Michigan then can meet the test.
Take for example, Muskegan County, which is along the shore of Lake Michigan in southern Michigan. Based on the new standard that is set .08 for ozone versus .12, the previous standard, they have been told that they could virtually shut down every industry in that county, tell every individual within the county that they no longer can drive an automobile, gas-powered automobile, whether it be by reformulated gas or not; then at the end of day, still not meet the new standard. They could virtually move every single individual out of that county to your State or to New York or some place else, and they still will not meet the new standard, based on the transient air that comes out from across the lake.
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There are a good number of—Michigan now is an attainment State. Every county meets the present standard. Under this new standard, there are many counties, because of the transient air, that will not meet the test. Consequently, the DEQ was very much opposed to setting this new standard at .08.
Mr. CHABOT. Thank you. I think it's very telling. My final comment: I think it's very telling when the environmental experts within our States, after looking at these Federal standards, have been overwhelmingly opposed to them.
I yield back the balance of my time.
Mr. GEKAS. We thank the gentleman. We turn to the gentleman from Massachusetts, Mr. Delahunt, for 5 minutes.
Mr. DELAHUNT. Thank you, Mr. Chairman. This is a fascinating debate. It is clear that there seems to be conflicting scientific opinion.
But in terms of this particular hearing, Rick, do you or Mr. Upton claim that the process that was followed during the course of the rulemaking and its promulgation by the EPA failed to comply with the requirements of the Regulatory Flexibility Act?
Mr. BOUCHER. Mr. Delahunt, I do not have sufficient expertise on the requirements of the statutes that impose procedural obligations on regulatory agencies as they draft new regulations to have an opinion on that subject.
My primary purpose in being here today is to talk about the tremendous burdens that these regulations will impose on the economy and the absence of an adequate scientific basis for their imposition. That, in turn, has led us to sponsor our legislation. I thought it might be helpful for the subcommittee to hear what is going on in other committees of the Congress as it inquires into what I think is a very important subject. That is whether or not there was procedural regularity on the part of EPA in adopting the regs.
Mr. DELAHUNT. I respect the fact that very few of us have expertise in terms of the Agency rulemaking process. But do either one of you know of any occasion, if you have some specifics, where the EPA failed to comply with either the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, or the Unfunded Mandates Reform Act? On any of those occasions during the course of this lengthy process—is there a scenario or a set of facts which you can point to which the EPA failed to comply with?
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Mr. UPTON. It's my understanding that they either exempted themselves from the regulations or said that they did not need to comply, because basically they set this new standard; the enforcement agency here is the States. The States have to come up with how are they going to meet the test. In Michigan, the EPA will tell the State legislature, you have got to make a good faith effort to try and meet the standard, whether it's reformulated gasoline, whether it's telling your farmers not to plow certain days, whether it's businesses that can no longer come in because you have got to do additional things, whether it's road projects because it leads to more traffic. Whatever it might be, the State will have to come up with their own SIP, their State implementation plan.
Mr. DELAHUNT. I respect what you are saying, but the bottom line is we don't have specific evidence of failure in terms of compliance.
Mr. UPTON. I think that we do. They address it by indicating that they didn't think that they needed to comply, is my understanding. They were aware of the law and chose not to have it apply.
Mr. DELAHUNT. Well, there is obviously, again, much disparate opinion.
Mr. UPTON. I believe that there has been a suit that's been filed as well.
Mr. DELAHUNT. Let me ask this: Why did you make the decision to file this legislation as opposed to filing, if again you contend that the rule is defective, why not file a resolution seeking to disapprove the rule under the Congressional Review Act?
Mr. BOUCHER. Well, there's one simple explanation for that. I think either alternative would have been available to us. The decision to start with generic legislation I think offers an opportunity that perhaps the resolution of disapproval did not, for the simple reason that we had introduced this legislation even before the final rule became effective, in awareness of the fact that EPA was fully intent on implementing the rule and given the virtual certainty that it would be implemented, as a way basically to get a head start. We had collected a fairly large number of cosponsors.
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I don't know that there's much to choose beyond that with regard to one procedure or the other, but it seemed to me that, given the fact that we already had a head start in having dozens of Members cosponsor this legislation, it was appropriate to go forward with that. That was, I think, the primary basis on which that decision was made.
I might add, too, that it offers a positive alternative to simply a resolution of disapproval because it does mandate the study with regard to fine particulate matter, which I think needs to be conducted in any event, and provides for that study within a timeframe that is fully consistent with the EPA's own intention for implementing the regulation.
Mr. DELAHUNT. Thank you.
Mr. GEKAS. The time of the gentleman has expired. Does anyone on the majority side seek recognition? Mr. Inglis has joined us from South Carolina. Do you wish to?
Mr. INGLIS. No thanks, Mr. Chairman.
Mr. GEKAS. The gentlelady from Texas is recognized, if she so desires to be recognized.
Ms. JACKSON LEE. I thank you, Mr. Chairman, for this hearing. I would ask unanimous consent to submit a statement in the record that I have on this issue.
Mr. GEKAS. Without objection.
[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, thank you for holding these timely and important oversight hearings. The important role of this subcommittee in relation to the new ''clean air standards,'' function only as an oversight body for the rulemaking mechanisms of these new regulations, in that this subcommittee has traditionally had jurisdiction over any changes to administrative procedures.
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As always, reform of national regulatory policy can be a highly contentious matter, particularly, when it relates to issues of health, safety and the environment. The national ambient air quality standards for particulate matter and ozone, uniquely, deal with all of these critical policy concerns.
This is a trying challenge; the effort to comprehensively reform any government regulation has to be a cooperative venture between the Congress, the relevant Federal Agency and those who must follow the new guidelines if it is to have any chance at success. A recent O.M.B. report entitled, ''More Benefits Fewer Burdens: Creating a Regulatory System That Works for the American People,'' recognizes the importance of intra-governmental or inter-governmental branch cooperation. This report details literally scores of measures taken within the Clinton administration to streamline regulations to the benefit of both commercial industry and consumers alike. In recognition of these efforts, I would like to applaud the administration for its inclusive, goal-oriented regulatory policy initiatives.
I think it is very important to have improved air quality. One principal concern has dominated congressional debates over the last few months; the respiratory health of the American people. According to this purpose, the original Clean Air Act was passed in 1963, while the essence of our national air pollution control program was passed in 1970. The Clean Air Act established in law the Federal Government's responsibility and authority for controlling air pollution, the provision of significant Federal enforcement capabilities, and the attainment of an ultimate goal of clean air for our entire nation. Yet this policy reform before us today,with the obvious exception of the 1990 Clean Air Act Amendments, represents, arguably,the most far-reaching revisions of the Clean Air Act since its inception.
Nevertheless, I think it is important to say that I find the stricter regulatory standards for compliance with the Clean Air Act to be clearly within the well-defined and established purview of the EPA. I have no intention of refuting the implementation of this policy change as an encroachment upon Congress' constitutionally-determined lawmaking powers.
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The recurrent question that has been raised by many policy advocates, as a criticism of reform, is whether stricter clean air standards are actually needed? According to EPA Administrator Carol Browner, the bottomline is that the health and economic benefits of the stricter standards would far outweigh industry's potential costs. It is estimated that between 40,000 and 60,000 people may die prematurely from cardiopulmonary causes linked to particulate air pollution. In my hometown of Houston, nearly 1,000 deaths each year are attributed to poor air quality. If you have any doubts about the need for improved clean air standards, I would hope that each of you present would remember the stories of those back home, and the morbid realities of air pollution as it affects your home communities. According to Joel Schwartz, a former EPA official at the Harvard School of Public Health, particulates have been associated with reductions in lung function and increases in respiratory symptoms connected to severe respiratory illnesses.
The other material affected by the proposed change in the EPA's air quality standards is ozone. Ozone has a negative reaction on lung tissue, causing pain in breathing, inflammation and a decrease in the lung's ability to transfer oxygen into the bloodstream. It is generally believed that a reduction of particulates and ozone can cut the morality rates associated with poor air quality by up to 50 percent.
In summary, I hope that we can continue to study how we can best improve the ambient air quality while not unduly affecting business and industry in their efforts to come into compliance with new regulatory standards.
Ms. JACKSON LEE. I am gratified that we are having hearings not only in Commerce, because I know that Mr. Boucher serves on that committee as well as the Judiciary Committee, but responding to a myriad of concerns that have been expressed about the process, the intent and the impact of these new EPA regulations.
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Might I just ask both of you your assessment of what was the driving force behind your legislation, although you may have offered it prior to my coming in, or offered it, by answering the question in different forms. What exactly was the driving force in your viewpoint of your legislation?
Mr. BOUCHER. Very briefly, my major concern is that, without adequate scientific basis for the new regulations being promulgated, they have been promulgated in any event. The cost of those regulations will be enormous. In fact, I say with certainty that these will be the most costly environmental regulations imposed to date by the Federal Government. These were imposed at a time when the Environmental Protection Agency's own panel of scientists did not have a consensus that the EPA should go forward. That could not find a consensus that there was an adequate basis upon which to impose these new standards. That choice by the EPA to ignore the recommendation of its own scientists, I think argues very strongly for delaying the implementation of the regs. and making sure that we have a better basis before we move forward with regulations imposing such enormous cost.
Mr. UPTON. I would echo the same thoughts as Mr. Boucher. I would also say that I was not among those in the last Congress that supported the environmental riders. I opposed those. As you will remember, sometimes those votes were as narrow as one vote. It flipped back and forth between who was there and who wasn't. I feel very strongly about what the air and water quality ought to be. In my view, we need to have a careful balance.
There were efforts I think in the last Congress that moved the pendulum the wrong way, and this is clearly an effort to move the pendulum too far the other way. As I look at a State like Michigan, which is very diverse in so many different ways, and as I listen to mayors, like my good friend Dennis Archer from Detroit and others, I think they passed a resolution with one objection by the League of Cities in terms of their opposition to the setting new standard. We are going to lose lots of jobs, thousands.
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Despite our air getting cleaner under the old rules, and really we are changing our focus away from those counties that met the standard to, in essence, allowing more slack to those counties that didn't meet the standard, and imposing tremendous new burdens on some counties as Muskegan, which I don't represent by the way—that's Pete Hokestra's district. But you can clearly see that at the end of the day, no matter what they do, I mean dramatic lifestyle change to actually leave the county so that there is nobody left, and they still can't meet the standard. That's crazy.
Ms. JACKSON LEE. Let me, and I appreciate it. I wanted you to set the parameters of your anguish, if you will. Obviously, there are many of us who come from States who have raised concerns. I do note, however, that the EPA regulations are phased-in over a 7-year period. I ask this question not in irony, but factually. Are we concerned about the public sector aspect of the burden or the business aspect of the burden? If we are, why can't we engage in a cost-benefit analysis and engage cost paying out, if you will? As I understand it, our businesses are certainly at a very high and prosperous point. The Dow a couple of weeks ago said they were hitting 8,000 points. So I am wondering whether people are suffering because there is a cause to slowing up the process, and that cause which will result in effect, I should say, may be the horrible impact of more deaths. Certainly, I know that you noted that there is some difficulty in assessing whether or not asthmatics are going to get worse or not. But maybe we should say that the scientific assessment is not clear. But do we want to err on the side of ensuring that we do create an atmosphere where the life of someone is more precious than the bottom line dollar?
So what about the cost-benefit analysis approach of letting our businesses go forward in trying to correct their problems, because they are making a profit?
Mr. GEKAS. The time of the lady has expired. We'll grant another 2 minutes.
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Ms. JACKSON LEE. I thank the gentleman for his kindness.
Mr. UPTON. I would just like to note that our bill provides more money for the science. We want the science to be right as well. But you are going to see—without legislation like H.R. 1984, you can see tremendous lifestyle changes that are going to dramatically impact areas of the country. We do need a cost-benefit analysis. We do need to have good science.
One of my colleagues from the Senate noted that, particularly for the particulate matter requirement, under the proposal that was out there, most counties don't have a monitor. We need to look at that. That is one of the things that our legislation does—provides for comprehensive monitoring.
Ms. JACKSON LEE. I thank the gentleman, both gentlemen for their explanation. I think we have the ability to work this through with the timeframe that we're talking about in the EPA. I think the questions that you have raised about better science is important as well. I am going to look forward to listening to testimony from the EPA Deputy Administrator, but I also think that we may be being a little bit too lenient on some of our industry friends, who may in fact have the ability to work with us on this problem and contribute as well to diminishing, of bringing down certainly pollution that we all face on a day-to-day basis.
I see this as resolvable. Obviously, your legislation is one aspect of it. I don't know if that is the direction to take. Certainly this hearing is worthy of us discussing the issue.
Thank you. I yield back. I thank the chairman for his indulgence.
Mr. GEKAS. The time of the lady has expired.
We discharge our colleagues with the gratitude of the subcommittee, and hope to speak with them again privately or collectively as we move forward on this issue. Thank you very much.
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Mr. UPTON. Has my deputization officially ended?
Mr. GEKAS. Yes. Correct. Turn in your badge at the door.
We call to the witness table the gentleman who is the Deputy Administrator of the U.S. Environmental Protection Agency, the EPA, who has served in that capacity since October 1994. Fred Hansen had directed the Oregon Department of Environmental Quality before coming to the EPA. Before that, he served as Oregon's deputy State treasurer, as Executive Officer of the Peace Corps, and as the Deputy Director for President Carter's Special Project on Federal Cash Management. Mr. Hansen graduated Phi Beta Kappa from the University of Oregon in 1968 and received his master's degree from McMaster University.
He's joined at the table by Mr. Wilson, as we have noted, and we'll ask Mr. Hansen to flesh out the introduction of Mr. Wilson who has joined him. Or we'll ask Mr. Wilson to tell us who he is.
STATEMENT OF FRED J. HANSEN, DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY RICHARD WILSON, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF AIR AND RADIATION
Mr. HANSEN. Mr. Chairman, Thank you. I am Fred Hansen. With me is Dick Wilson. He is the Deputy Assistant Administrator for the Office of Air and Radiation, which is the Office within EPA which has done the basic research, the basic work, and is in fact the responsible Office for new air standards.
Mr. GEKAS. All right. With that, we'll ask the gentleman to proceed with his testimony. We tell him in advance that his written statement will become a part of the record without objection. We will ask the gentleman to restrict his oral testimony or summary of his written testimony to 5 minutes.
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Mr. HANSEN. Thank you, Mr. Chairman.
Mr. GEKAS. You may proceed.
Mr. HANSEN. Thank you, Mr. Chairman, members of the subcommittee. I do thank you for inviting me to discuss EPA's revisions to the National Ambient Air Quality Standards for Ground-Level Ozone and Particulate Matter. These standards, which were announced by the President last month and published nearly 2 weeks ago on July 18th, are the most significant steps we've taken to protect the American people, and especially our children, from the health hazards of air pollution in a decade. Together they will protect 125 million Americans, including 35 million children, from the adverse health effects of breathing polluted air. They will prevent approximately 15,000 premature deaths, about 350,000 cases of aggravated asthma, and nearly a million cases of significantly decreased lung functioning in children.
The new standards are based on evidence from more than 250 scientific studies, all of them published, peer-reviewed, checked and doublechecked by an independent scientific review panel, as required by law. The new standards will bring enormous health benefits to the Nation, and that is why we took the action on clean air.
Under the Clean Air Act, Congress mandated EPA to set standards based solely on how well they protect the public health. Cost, under the statute, cannot be a factor in these decisions. However, Congress did leave open the door on how to implement these standards. And I would like to take this opportunity to talk about the common-sense, cost-effective ways EPA intends to administer and implement those new rules.
Specifically, the implementation strategy has five basic features. First, it keeps current ozone plans in place until they are achieved. This respects agreements already reached by communities and businesses, and does not disrupt current progress toward improving air quality.
Second, the strategy recognizes the need to take regional approaches toward addressing air pollution. We believe that the most cost-effective mechanism for doing so is an emissions trading plan for utilities and other large emitters of oxides of nitrogen in the 37 most Eastern States. This regional strategy will provide air quality benefits far downwind and this strategy will be based on the recommendations from those 37 States.
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Third, counties that are expected to achieve compliance through these regional measures will be classified as ''transitional'' and EPA will devise an approach that will eliminate unnecessarily burdensome requirements.
Fourth, the strategy provides sufficient time for developing cost-effective controls for compliance. In most cases, local controls for areas that do not meet the new standard won't be required until after 2004 for ozone, and 2005 for particulate matter.
And finally, fifth, the implementation strategy provides for a new round of review of particulate matter science. And this review will be completed before areas are designated as nonattainment for PM2.5, before any pollution controls for that pollutant would be required.
Prior to proposing revised standards, EPA consulted extensively with representatives of State and local governments, small business, industry, environmental groups and other stakeholders. Under the Federal Advisory Committee Act, EPA established a subcommittee of the Clean Air Act Advisory Committee called the Subcommittee on Implementation of Ozone, Particulate Matter, and Regional Haze Rules. The subcommittee is composed of representatives of State and local agencies, large and small businesses, environmental groups, Federal agencies, and other groups. And it included five working groups comprised of other members from these same organizations. The subcommittee met regularly to consider the issues posed by the standard and to help develop potentially more cost-effective, flexible strategies for implementation.
In the interest of involving small business interests, EPA, along with the Small Business Administration and the Office of Management and Budget, met with representatives of small businesses and small governments. The Agency took steps to further expand the membership of the Federal Advisory Subcommittee to include more representation from these interests.
EPA will continue seeking advice from a range of stakeholders and, after evaluating their input, propose the necessary guidance to make the implementation approaches work. EPA will continue to work with the Small Business Administration because small businesses are particularly concerned about future control measures. In particular, EPA, in partnership with the SBA, will encourage the States—and I stress ''encourage'' the States—to propose flexible regulatory alternatives that minimize the economic impact and paperwork burden on small businesses to the greatest degree possible consistent with public health protection.
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In summary, EPA believes that particulate matter standards will provide important—the ozone and particulate matter standards—will provide important new health protection and will improve the lives of Americans in coming years. Our implementation strategy will ensure that these new standards are implemented in a common-sense, cost-effective, and flexible manner. We intend to work closely with State and local governments, other Federal agencies, and all interested parties to accomplish this goal.
Thank you and I'd be happy to answer any questions.
[The prepared statement of Mr. Hansen follows:]
PREPARED STATEMENT OF FRED J. HANSEN, DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Chairman, Members of the Committee, thank you for inviting me to discuss the Environmental Protection Agency's (EPA's) rulemakings to revise the national ambient air quality standards (NAAQS) for ground-level ozone and particulate matter.
SETTING THE REVISED STANDARDS
As you know, the Clean Air Act directs EPA to set national standards for certain air pollutants to protect public health and the environment. For each of these pollutants, Congress directed EPA to set what are known as ''primary'' standards to protect public health without consideration of cost. Under the Act, Congress directs EPA to review these standards every five years to determine whether the latest scientific research indicates a need to revise that standards.
This month, the Administrator set new standards for ozone and particulate matter (PM) that will be a major step forward in public health and welfare protection. Each year, these updated standards have the potential to prevent as many as 15,000 premature deaths; as many as 350,000 cases of aggravated asthma; and as many as one million cases of significantly decreased lung function in children.
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Numerous other public health and welfare benefits will result from implementation of the new standards. Additional public health benefits include: reduced respiratory illnesses, reduced acute health effects, reduced cancer from air toxics reductions, and the avoidance of various other air pollution-related illnesses and health effects. Public welfare benefits will include: reduced adverse effects on vegetation, forests, and natural ecosystems, improved visibility, and protection of sensitive waterways and estuaries from deposition of airborne nitrogen that can cause algal blooms, fish kills, and loss of aquatic vegetation. Estimated total monetized health and public welfare benefits associated with the new standards are enormous, ranging in the tens of billions of dollars annually. Many additional potentially large benefit categories, such as reduced chronic respiratory damage, possibly infant mortality, and other health and welfare benefit categories, have not been monetized.
The new ozone and particulate matter standards are based on an extensive scientific and public review process. Congress directs EPA to consult with an independent scientific advisory board, the Clean Air Scientific Advisory Committee (CASAC). In conducting these reviews, EPA analyzed thousands of peer-reviewed scientific studies that had been published in well-respected scientific journals. These studies were then synthesized and, along with a recommendation on whether the existing standards were adequately protective, presented to CASAC. After three-and-a-half years of work, including 11 meetings totaling more than 125 hours of public discussion, and based on 250 of the most relevant studies, the CASAC panel concluded that EPA's air quality standards for ozone and particulate matter should be revised.
CASAC unanimously supported changing the ozone standards from a 1-hour averaging period to an 8-hour average to reflect increasing concern over prolonged exposure to ozone, particularly for children. Ten of the 16 CASAC members who took part in reviewing the ozone standard expressed their preferences as to the level of the standard, with all ten favoring a multiple exceedance form. Of the four human health experts on the CASAC panel, three favored a level of 0.08 ppm and the other favored a level of either 0.08 or 0.09 ppm. Three other panel members favored 0.09 ppm, and one favored either 0.09 or 0.10 ppm combined with new public health advisories when ozone concentrations are at or above 0.07 ppm. Two panel members endorsed a standard within the range recommended by EPA of 0.07 to 0.09 ppm.
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Nineteen of the 21 CASAC panel members who reviewed the particulate standard recommended establishment of new standards (daily and/or annual) for fine particles, which are inhaled more deeply into the lungs. The individual members of CASAC expressed a range of opinions about the level of a fine particle standard based on a variety of factors. Four panel members supported specific ranges or levels within, or toward the lower end of, the ranges recommended by the EPA staff paper. Seven panel members recommended ranges or levels near, at, or above the upper end of the ranges specified in the EPA staff paper. Eight other panel members declined to select a specific range or level.
Prior to proposing revised standards, EPA also consulted extensively with representatives of state and local governments, industry, environmental groups and other stakeholders. In compliance with the Unfunded Mandates Reform Act of 1995, Agency officials briefed state and local air pollution control officials at several national meetings about issues related to revising the standards, including possible ranges of revised standards, monitoring requirements and potential implementation strategies. EPA also held discussions with state and local officials at meetings set up by the National Governors' Association, the U.S. Conference of Mayors and the Council of State Governments. In addition, officials in our regional offices met with their counterparts in state pollution control agencies.
Under the Federal Advisory Committee Act, EPA established a subcommittee of its Clean Air Act Advisory Committee composed of representatives of state and local agencies, large and small businesses, environmental groups, other federal agencies and other groups, and including five working groups comprised of other members of these same types of organizations. The Subcommittee on Implementation of Ozone, Particulate Matter and Regional Haze Rules has been meeting regularly to consider the issues that would be posed by revising the standards and to help develop potentially more cost-effective, flexible strategies for implementing any revised standards.
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Also before proposing and before promulgation of these revised standards, EPA prepared draft analyses of the potential costs and benefits of implementing revised standards, including the potential impact on small businesses. While the Clean Air Act does not permit EPA to consider costs in setting the NAAQS, the Agency's analysis provided important information about the potential effects of implementing revised standards. At the same time, EPA made clear that its analysis of cost and small business impacts included numerous uncertainties. As you know, states are primarily responsible for implementing NAAQS through implementation plans containing state-developed control requirements. Consequently, to estimate the potential costs and small entity impacts of implementing any revised standards, the Agency had to make assumptions about how states would implement the standards. As the Regulatory Flexibility Act (RFA) itself states, the purpose of a regulatory flexibility analysis is to encourage federal agencies to ''fit regulatory and informational requirements to the scale of the businesses . . . subject to regulation'' (P.L. 96–354, section 2(b)). As the federal courts have ruled, that purpose can only be served in the case of federal rules that apply to small businesses. National ambient air quality standards, by contrast, do not apply to small (or large) businesses, but are instead implemented primarily through state regulation. EPA therefore concluded that rules revising the standards are exempt from the RFA requirement to prepare a regulatory flexibility analysis and thus from the SBREFA requirement to convene a small business panel prior to proposing a rule for which such an RFA analysis is required. Still, EPA attempted to shed light on the potential small business impact of revising the standards by analyzing hypotheticial state strategies for implementing the standards.
Based on the scientific evidence reviewed by EPA staff and CASAC, EPA proposed revised standards and conducted an extensive public comment process, receiving approximately 57,000 comments at public hearings across the country and through written, telephone and E-mail message communications. As part of this process, officials from EPA, the Small Business Administration (SBA) and the Office of Management and Budget (OMB) met with representatives of small businesses to ensure that their concerns about revising and implementing the standards were heard. EPA then prepared a report documenting their concerns for the Administrator and placed it in the record for the NAAQS rulemakings. The Agency also took steps to further expand the membership of the Federal Advisory Subcommittee on implementation of the standards to include more representation from small business and local governments. Within the federal government, EPA took part in a lengthy interagency review process that involved all interested departments and agencies.
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After carefully considering the results of this extensive process, the Administrator, with the support of the President, issued a final rule updating the ozone standard from 0.12 parts per million (ppm) of ozone measured over one hour to a standard of 0.08 ppm measured over eight hours, with the three-year average of the annual fourth highest concentrations determining whether an area is out of compliance. The new standard will reduce ''flip-flopping'' in and out of attainment by changing it from an ''expected exceedance'' to a ''concentration-based'' form. For particulate matter, the final rule adds new standards for particles smaller than 2.5 micrometers in diameter (known as PM2.5 or fine particles). These are two new fine particle standards: an annual standard, set at 15 micrograms per cubic meter, and a 24-hour standard, set at 65 micrograms per cubic meter. EPA has also changed the form of the current 24-hour PM10 standard to provide some additional stability and flexibility to states in meeting that standard.
IMPLEMENTING THE REVISED AIR STANDARDS
The Clean Air Act gives states the lead in implementing new or revised NAAQS so that each state can develop a pollution control program that best meets its needs. EPA has an important role to play in the implementation process by working with states on their plans and by implementing Clean Air Act provisions that call for federal controls on certain sources of NAAQS pollutants or their precursors (for example, motor vehicles and gasoline). In a July 16, 1997 memorandum, President Clinton called on EPA to employ an interagency strategy for promoting flexible, common sense, cost-effective means for communities and businesses to meet the standards. As I will describe, the rules revising the standards and the President's interagency strategy will provide state and local governments and their stakeholders with the time, information and help they need to determine whether any additional controls will be required to attain the revised standards, and if so, what low-cost options are available.
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THE PM2.5 Standard
The PM2.5 rule requires three years of federal reference method air quality monitoring data to determine whether an area does or does not meet the new PM2.5 standards. To obtain these data, a comprehensive network of monitors must be put in place. EPA has agreed to cover the cost of establishing that network through grants to states. In view of the time needed to establish the network and collect data, EPA expects that three years of data will not be available until between 2001 and 2004, depending on when monitors are installed in a given locality. Therefore, actual designations of attainment or nonattainment will not take place until between 2002 and 2005. If an area is designated nonattainment, the Clean Air Act gives the state up to three years to develop a plan to control the problem. Areas will thus have ample time to review and analyze the nature of their particulate matter problem and to develop technically sound and cost-effective control strategies.
As contemplated by the Clean Air Act, EPA will complete its next periodic review of the particulate matter national ambient air quality standards, including review by the Clean Air Scientific Advisory Committee, within five years of issuing these new standards. By July 2002, EPA will have determined, based on data available from its review, whether to revise or maintain the new standards. This determination, therefore, will be made before any areas have been designated nonattainment under the PM2.5 standards and before any new controls related to the PM2.5 standards are imposed.
In developing strategies for attaining the PM2.5 standards, it will be important to focus on measures that decrease emissions that contribute to regional pollution. Available information indicates that nearly one-third of the areas projected to not meet the new PM2.5 standards, primarily in the Eastern U.S., could come into compliance as a result of the regional SO2 emission reductions already mandated under the Clean Air Act's acid rain program, which will be fully implemented between 2000 and 2010. Similarly, the Grand Canyon Visibility Transport Commission, consisting of western states and tribes, committed to reductions in regional emissions of PM2.5 precursors (sulfates, nitrates, and organics) to improve visibility across the Colorado Plateau. EPA expects that reductions in PM2.5 precursors will help address the need for further particulate control in that region.
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As detailed PM2.5 air quality data and data on the chemical composition of PM2.5 in different areas become available, EPA will work with the states to analyze potential regional strategies that could reduce PM2.5 levels. If further cost-effective regional reductions help areas meet the new standard, EPA will encourage states to work together to use a cap and trade approach similar to that used to curb acid rain. The acid rain program delivered environmental benefits at a greatly reduced cost.
THE 8-HOUR OZONE STANDARD
Ozone is a pollutant that travels great distances, and it has become increasingly important to address it as a regional problem. For the past two years, EPA has been working with the 37 most eastern states through the Ozone Transport Assessment Group (OTAG) in the belief that reducing interstate pollution will help all areas in the OTAG region attain the NAAQS. The OTAG was an effort sponsored by the Environmental Council of States, with the objective of assessing ozone transport and recommending strategies for mitigating interstate pollution.
The OTAG completed its work in June 1997 and forwarded recommendations to EPA. Based on these recommendations, in September 1997, EPA will propose a rule requiring states in the OTAG region that are significantly contributing to nonattainment, or interfering with maintenance of attainment, in downwind states to submit state implementation plans (SIPs) to reduce their interstate pollution. EPA expects to issue a final rule by September 1998.
If the states choose to establish a voluntary regional emission cap and trade system, similar to the current acid rain program, reductions can be achieved at a lower cost. EPA will encourage and assist the states to develop and implement a NOX cap and trade program. Most important, based on EPA's review of the latest modeling, a regional approach, coupled with the implementation of other already existing state and Federal Clean Air Act requirements, will allow the vast majority of areas that currently meet the 1-hour standard but would not otherwise meet the new 8-hour standard to achieve healthful air quality without additional local controls.
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Areas in the OTAG region that would still exceed the new standard after the regional strategy, including areas that do not meet the current 1-hour standard, will benefit as well, because the regional NOX program will reduce the extent of additional local measures needed to achieve the 8-hour standard. In many cases these regional reductions may be adequate to meet CAA progress requirements for a number of years, allowing areas to better plan for any additional local controls.
COST-EFFECTIVE LOCAL CONTROL STRATEGIES
To the extent local controls are needed to attain the PM or ozone standards, EPA will encourage the states to design strategies that focus on getting low cost reductions and limiting the cost of control to under $10,000 per ton for all sources. Market-based strategies can be used to reduce compliance costs. EPA will encourage the use of concepts such as a Clean Air Investment Fund, which would allow sources facing control costs higher than $10,000 a ton for any of these pollutants to pay a set annual amount per ton to fund cost-effective emissions reductions from non-traditional and small sources. Compliance strategies like this will likely lower the costs of attaining the standards through more efficient allocation, minimize the regulatory burden for small and large pollution sources, and serve to stimulate technology innovation as well.
FUTURE ACTIVITIES
To help ensure cost-effective, common sense implementation of the standards, input is needed from many stakeholders including representatives of state and local governments, industry, small businesses, environmental groups, and Federal agencies. EPA will continue seeking advice from a range of stakeholders and, after evaluating their input, propose the necessary guidance to make these approaches work. In particular, EPA will continue working with the Subcommittee on Implementation of Ozone, Particulate Matter and Regional Haze Rules described above.
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EPA will also continue working with SBA and OMB to ensure that small businesses, small governments and other small entities have an opportunity to participate in the development of implementation guidance and rules. We are following Small Business Regulatory Enforcement Fairness Act (SBREFA) procedures to conduct small-business panels for collecting advice and recommendations on how states can lessen the impacts on small business and other small entities as the states develop their implementation plans. A panel of EPA, SBA and OMB officials has already met with representatives of small businesses and governments about several implementation issues. The panel issued a report on June 10, 1997 recommending that the Agency continue to involve small entities in implementation planning and issue guidance to the states on minimizing impacts on small entities in their implementation plans. The Agency intends to follow both recommendations. EPA also intends to continue using the interagency panel process to develop its guidance. Since SBREFA's panel requirement applies only to binding rules that establish federal requirements applicable to small business, an interagency panel process is voluntary with respect to EPA's non-binding guidance to states. We have found that the panel process is an effective means of spotlighting the needs and concerns of small businesses and small governments, and have decided, with SBA and OMB, to use the process in developing implementation guidance, as appropriate. As for any implementation-related rules EPA promulgates, the Agency will conduct panels under SBREFA as required. EPA plans to issue all guidance and rules necessary for smooth implementation of the revised standards by the end of 1998.
CONCLUSION
In summary, EPA believes that the new ozone and particulate matter standards will provide important new health protection and will improve the lives of Americans in coming years. We worked closely with state and local governments, large and small businesses, and all other interested parties in the rulemaking process, and will continue to work with these stakeholders to ensure that the new standards are implemented in a common sense, cost-effective and flexible manner. We have also submitted the new standards for congressional review, as required by SBREFA. Mr. Chairman, this concludes my written statement. I will be happy to answer any questions that you might have.
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Mr. GEKAS. Yes, we thank the gentleman. The Chair will yield itself the first round of 5 minutes.
In your statement, Mr. Hansen, you just stated ''while the Clean Air Act does not permit EPA to consider costs in setting the standards,'' and then you go on. Are you saying that the Clean Air Act abjectly prohibits your determining the cost of a particular regulation on standards?
Mr. HANSEN. Mr. Chairman, the Clean Air Act makes clear that the standard is to be based on the best science. It is to protect sensitive individuals, but not the most sensitive individual, with an adequate margin of safety. It is that health standard that we are, in fact, required to be able to meet. We have, as I said in my testimony, looked toward the issue of implementation as a place to be able to take into account cost, but in standard-setting, the statute is clear. It is based on health considerations.
Mr. GEKAS. You mean at some point in the future you will consider, assuming that all of these go into place, what the effects might be cost-wise?
Mr. HANSEN. Mr. Chairman, as a part of our regulatory analysis, we provided a regulatory impact analysis as provided for under Executive Order 12866. That certainly does analyze what projected cost may be under different scenarios. But in terms of standard-setting itself, that is, the actual standard for ozone or particulate matter, or frankly, for any of the other ambient air quality standards which are not at issue here, the statute is very clear. It is to be based on public health considerations.
Mr. GEKAS. Well, what compelled you to comply with the Executive order request or mandate that impact be considered? Was it cost impact?
Mr. HANSEN. Mr. Chairman, the regulatory impact analysis looks at a whole series of effects of the proposed or, once finalized, the final rule. It is intended to be able to inform all interested stakeholders about a range of different analyses that may be performed.
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Mr. GEKAS. With cost one of those?
Mr. HANSEN. Certainly, cost is a very important part of the regulatory impact analysis.
Mr. GEKAS. Then why, may I ask, did you choose to follow the mandate of the Executive order, which I understand, which would involve implicitly—explicitly, an analysis that would include cost consequences, but then you would choose to ignore or exempt yourself from those requirements of the congressional mandates under the statutes to do the very same thing on cost analysis?
Mr. HANSEN. Mr. Chairman, I assume that you are referring to both the requirements under the Regulatory Flexibility Act, as well as the Unfunded Mandates Reform Act.
Mr. GEKAS. Yes, that's correct.
Mr. HANSEN. Those provisions of the law, as we understand them, and certainly as our General Counsel advises us, provides that under the Small Business Regulatory Flexibility Act and the Regulatory Flexibility Act, the first determination is one of, ''Does it have a significant impact on a substantial number of small entities?'' The fact that a standard-setting process, as is in the case with the National Ambient Air Quality Standards, does not, in and of itself, impose any burden on any regulated entity——
Mr. GEKAS. Didn't you—I have to interrupt because I'll lose my train of thought. It's my fault, not yours. In the Executive order that required this analysis, did you not have to consider the very same things that you are saying now would be exempt under a strict reading, as you put it, of the Unfunded Mandates or Regulatory Flexibility Act?
Mr. HANSEN. Mr. Chairman, no. The Executive order is a much broader document in terms of directing what all Federal agencies would look at in terms of what is called Regulatory Impact Analysis. The specific provisions under the Regulatory Flexibility Act look specifically at whether there will be a significant impact on a substantial number of small entities, and then at what steps, if the determination is made that there will be such an effect, what are ways to be able to minimize that, and to be able to have a review process involving those parties.
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Mr. GEKAS. Well, what were the impactees that were involved in the Executive order?
Mr. HANSEN. Mr. Chairman, under the Executive order the analysis that we are doing is looking at and speculating on what in fact States may do when they make the choices that inevitably they must make in the development of a State implementation plan, a process for both States and for local air control districts in those areas across the country that do have local air pollution control districts. They are there required to be able to determine the best approach they have to determining how to be able to achieve that standard. The choices that are there for those States and local air pollution control authorities represent the place where in fact a determination is and only is possible for what impact there will be, in this case, on small entities.
Mr. GEKAS. Well, I have to return to this line of inquiry after I yield to my colleagues for their first shot at the 5 minutes. I yield 5 minutes to the gentleman from New York.
Mr. NADLER. Thank you. First I'll note that the Chair abjectly adhered to its own 5-minute limitation. [Laughter.]
First, let me just—to clarify a little about what the Chair and you were just talking about. As I understand it, under the Clean Air Act you can consider only health costs—only the health impact, not cost effects or effects on business or anything else. When it comes to the State implementation, once the States put out SIP's, then the cost impacts are considered under the Regulatory Flexibility Act, correct?
Mr. HANSEN. Mr. Chairman—Mr. Nadler, no. The answer is no—the analysis under the Regulatory Flexibility Act would apply anytime we are taking an action that would have direct impact.
Mr. NADLER. But you're not taking—but these have no such direct impact?
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Mr. HANSEN. We would—absolutely.
Mr. NADLER. But the SIP's might?
Mr. HANSEN. The SIP's would in terms of what State action would be taken. When we review a State action in a State implementation plan, we have the ability to either approve or disapprove. We have no ability, no legal authority, to order a State other than insofar as that plan is insufficient to be able to meet the standard.
Mr. NADLER. OK.
Mr. HANSEN. We have no ability to order them—to say ''ah, you must do something different.'' We will suggest, and do in fact believe that we can suggest, as a part of our guidance to States, how they can in fact minimize that very impact.
Mr. NADLER. Fine, thank you. Let me ask a different question. We heard in the previous panel that the Scientific Advisory Panel, CASAC, was not satisfied—that there was no consensus on CASAC on the science behind these—the proposed ambient air quality standards for either PM2.5 or for ozone. There was no consensus. And therefore, we should do a lot more research. Now, I notice in your written statement, though you didn't read it, you say that ''CASAC unanimously supported changing the ozone standards from a 1-hour averaging period to an 8-hour average. Ten of the 16 CASAC members who took part in reviewing the ozone standard expressed their preference as to the level of the standard, with all 10 favoring a multiple exceedance form. And they were all between .08 and .09, or almost all of them. Nineteen of the 21 CASAC panel members who reviewed the particulate standard recommended establishment of the new standards for fine particles which are inhaled more deeply into the lungs.''
In light of this, could you comment on the contention by the sponsors of this legislation that there's no proper scientific consensus on the new standards, on the necessity for them?
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Mr. HANSEN. MR. CHAIRMAN, I APPRECIATE THAT QUESTION. WHAT'S VERY, VERY IMPORTANT TO UNDERSTAND IS THAT CASAC ADDRESSED CERTAIN ISSUES; THEY DID NOT ADDRESS OTHER ISSUES. IN SOME OF THE ISSUES THEY ADDRESSED, SOME MEMBERS TOOK STANDS; OTHERS DID NOT. YOU HAD OUTLINED ON THE OZONE STANDARD—it's important to be able to recognize that for that there are 16 members of the Ozone CASAC for review purposes. There were 3 members who supported—and they were three of the four public health representatives on that panel—supported the standard at .08; that's the first of the three parts of the standard. Of the other panel members, one supported it between .08 and .09; three supported .09, and one supported either .09 or 1.0, but with the provision that there be public health advisories any time ozone levels would exceed .07.
There were also two who felt that somewhere in the range that had been discussed was appropriate, but they did not make a judgment on that. The other six members chose not to address that, feeling it was not appropriate, for whatever their reasons were——
Mr. NADLER. They didn't dissent; they just didn't get involved?
Mr. HANSEN. They——
Mr. NADLER. They didn't dissent; they just said they didn't want to make a judgment?
Mr. HANSEN. That is my understanding of what they actually said. They did not, in fact, refuse to be able to take a stand. For the PM standard, there are a total of 21 members. Nineteen of the 21 agreed that the 2.5 micron level of control—remember, a human hair is, probably about a hundred or so microns in diameter; this is at 2.5—very, very small particles that get deep into the lungs, as you said in your opening statement, and cause health problems. Of those, 19 of the 21 said that 2.5 should be the level of the standard for the pollutant that you are regulating.
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Four of the members, when they talked about the level—and we had proposed in the staff paper a range—they felt that the lower end, but within that range, was appropriate. Seven supported levels that were in the range toward the higher end. Eight declined to take a position at all. Consequently, it's an array of different opinions within that case, actually.
Mr. NADLER. But within that—and when you say, for instance, some said .07, some said .08, some .09, what was the standard set by the agency?
Mr. HANSEN. A .08 for the concentration number.
Mr. NADLER. So you came right in the middle there. Some said lower; some said a bit higher.
Mr. HANSEN. Generally speaking, the CASAC member's recommendations, other than that for the public notification to start at .07, they were either at that level or slightly above.
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from Tennessee, Mr. Bryant, and grant him 5 minutes.
Mr. BRYANT. Thank you, Mr. Chairman.
Mr. Hansen, our chairman asked you, a very good question as to how your Agency made that distinction in complying with the Executive order from the President on your impact statement, and not, in our view, at least in my view, complying with the laws that Congress has imposed in terms of regulating the Small Business and the Regulatory Flexibility Act and even the Unfunded Mandates Act. And I'll have to say, honestly, that was a stretch. And I was sitting here thinking about our baseball game tonight and we need a good first baseman who can stretch, and we may need you there or your attorney there. [Laughter.]
Because that was, in my view, quite a stretch.
Let me ask you, if I could—and I've got three questions I'd like to address, so please be brief in your answers. We are aware that Administrator Browner has made several representations about what potential enforcement may be like under these new air standards. In particular, she wrote a letter to the Secretary of Agriculture, Dan Glickman, saying that, ''Agriculture will not be the target of EPA control strategies designed to attain these standards.''
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It is unclear whether she has the power to make these representations and I wonder why she would make them. I would like to ask you if you would submit for the record, just answer yes or no, a copy or transcript of any such representation suggesting anything other than full, nationwide enforcement of these standards once they're in place. Can you do that?
Mr. HANSEN. Certainly, I'd be happy to.
[See appendix.]
Mr. BRYANT. OK. Secondly, in the litigation that set the timetable for this revision of air standards, the EPA said that, ''any deadline setting a final action before December 1, 1998, would require EPA to reach conclusions on critical scientific and policy issues with enormous consequences for society before it had an adequate opportunity to collect and evaluate the pertinent scientific data. In short, it would force the agency to take procedural, analytical shortcuts that could jeopardize the EPA's ability to make scientifically-sound and legally-defensible decisions in the current review.''
Did the EPA misstate that? Did they lie? And if not, what shortcuts do you think EPA took to get to final action in mid-July of this year?
Mr. HANSEN. Mr. Chairman, Mr. Bryant, as a part of our seeking from the court an extended period for public comment, and thereby pushing off of the July 19 deadline we sought to have more time to take into account public comments, to in fact extend the length of time that the public would be able to review and make comments to us. When the court granted us only a limited amount of time, we ended up continuing to be able to ensure that what comments were made were fully evaluated. We had our people working long hours, weekends. We ensured that the quality of the review was every bit as high as if we had more time. We would have—at the time we requested that of the court—felt that the public should have been granted more time, but the court did not agree with us in terms of being able to take that public comment.
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I might also add that if you want me to play first base, you've got a pretty bad team that I won't draw down too much by.
Mr. BRYANT. We may have; it will be determined tonight. If the EPA is, indeed, prohibited from considering economics and technological feasibility in setting national air standards, why have the standards not been absolute zero for any airborne substance that could conceivably pose a health risk? It appears to me that the only reasons these are not the standards of zero would be that economic and technological considerations do have to be considered. Is that fair?
Mr. HANSEN. Mr. Chairman, Mr. Bryant, no, I do not believe it is. The Clean Air Act requires that we, in fact, establish standards to protect sensitive individuals, plural, but not the most sensitive individual, with an adequate margin of safety. The scientific studies that were in fact reviewed by CASAC, and certainly evaluated by our own staff in developing recommendations, looked at the array of studies that had been conducted to look at, in fact, where we were seeing adverse affects—emergency room visits, decreased lung capacity in children, premature death. From that, we concluded that the level that we were establishing was not at zero—that there would be no impact but rather if that was in fact the way to achieve the statutory requirement of protection of sensitive individuals, but not the most sensitive individual, with an adequate of safety. That was the case for both the particulate matter and the ozone standards.
Mr. BRYANT. OK. I have just a little time. Let me ask you one other question in the nature of supplying us with information. Can you furnish this subcommittee with the case law that you have available to you which, as I understand, you interpret to mean you cannot, you are prohibited specifically from considering economic and technological advances in this? And I don't know if it's the lead industries case and those subsequent interpretations, but again, something that says you specifically—not some interpretation, but something specific that says you're prohibited from this. And I would appreciate it if you could furnish us with that.
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Mr. HANSEN. I'll ask our General Counsel to be able to supply all information we have.
Mr. BRYANT. Thank you.
[See appendix.]
Mr. GEKAS. The gentleman's time is expired. We turn to the gentleman from Massachusetts, 5 minutes.
Mr. DELAHUNT. Yes, thank you, Mr. Chairman. And I'm going to really pursue, revisit, if you will, the same line of questioning that the chairman and my colleague from Tennessee pursued. And I'd ask for that same material from the general counsel, but I want to be really clear in my own mind, and I think it's important to be clear for the record.
It's the position of the EPA that, given the mandate, the Clean Air Act, compliance with the Regulatory Flexibility Act, (a) was not required, and (b) would be prohibited?
Mr. HANSEN. Mr. Chairman, Mr. Delahunt, again, on the Regulatory Flexibility Act requirements, the first test is to determine whether or not the action that is being proposed and finalized will have a significant impact on a substantial number of small entities. By its nature, standard-setting does not in any way have a direct impact on any entity because it is not that stage of the process where controls are required. Consequently, our conclusion is that the regulatory flexibility analysis requirement, or does not apply to the standard-setting process.
We do believe that the issues that are raised by that analysis are important and are needing to be taken into account——
Mr. DELAHUNT. I understand that, but, again, there's no requirement, there's no prerequisite.
Mr. HANSEN. None.
Mr. DELAHUNT. And the same is true of the Small Business Regulatory Enforcement Fairness Act as well as the Unfunded Mandates Act?
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Mr. HANSEN. Mr. Chairman——
Mr. DELAHUNT. It's basically the same position?
Mr. HANSEN. Mr. Delahunt, yes, although slightly different in the case of the Unfunded Mandates Reform Act in terms of the legal issues that are being raised by the law and the analysis.
Mr. DELAHUNT. Now, the information—however, you did comply, voluntarily, presumably, with the Executive order, the regulatory Executive order?
Mr. HANSEN. Yes, Mr. Chairman.
Mr. DELAHUNT. Which would have generated, I presume, much of the information that would be mandated under the various regulatory acts?
Mr. HANSEN. Mr. Chairman, Mr. Delahunt, you raise a very good question that raises, I think, what is fundamentally at issue here. The regulatory impact analysis speculated on what States might do under their State implementation plans. For example, we talked about what in fact would be the effect on forestry activities. Essentially, it's what's called slash burning, the debris after a logging operation. We could speculate on what effect that might have on exceedences of particulate matter standards. However, there is no requirement that would be imposed by the EPA. Only the States would decide, about whether that's an area they would even regulate. Or if so, whether they would exempt small entities, small businesses, from that. Or whether they would impose different——
Mr. DELAHUNT. I understand, Mr. Hansen. But what I'm saying is that there is, I presume, voluminous data that's been generated already that, if utilized, would meet, theoretically, the requirements of the various regulatory acts that I alluded to. That would be helpful, if you will, in terms of meeting those mandates.
Mr. HANSEN. Mr. Chairman, Mr. Delahunt, certainly they would be a part of it. As I think you know, the SBREFA also requires a paneling process which—although we did meetings with, it did not——
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Mr. DELAHUNT. Let me just ask—my next question is, this information available to the public? It's in the public domain?
Mr. HANSEN. Absolutely. It's on the Internet and it's been filed with the Congress as well.
Mr. DELAHUNT. Let me just ask you one final legal opinion, and it goes to the process. I'm new to Congress, so you'll have to bear with what might be a naive question, but in terms of securing your opinion—you referenced the General Counsel. I presume that's general counsel to the EPA.
Mr. HANSEN. Yes.
Mr. DELAHUNT. As a matter of practice, is there a solicitation of an advisory opinion from the Department of Justice in terms of what I would call major rule issues such as what we're dealing with here?
Mr. HANSEN. Mr. Chairman, Mr. Delahunt, absolutely; the types of discussions that will go on between our General Counsel and the Department of Justice will be around any issues that they believe raise either broader issues or need to have additional advice from the Department of Justice, and this I know occurred in numerous places throughout these rulemaking decisions.
Mr. DELAHUNT. And I don't know whether you can answer this question, but I presume it's the Attorney General and the Department of Justice that is ultimately the last stop, if you will, in terms of legal opinions for various Federal agencies?
Mr. HANSEN. Mr. Chairman, certainly in a number of areas, the Department of Justice is that final stop, while there are certain things that are reserved for the agency. However, as we've had a lawsuit filed by the American Truckers Association, as well as the chamber of commerce on the specific issue of SBREFA, did we comply or did we not, the Department of Justice knew at the time that if such a suit were filed, they would be the defenders of us in court. They obviously needed to be assured that they felt that the judgments we made were appropriate.
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Mr. DELAHUNT. So DOJ in fact supported the position that was concluded by your general counsel?
Mr. HANSEN. Yes, the only reason I'm a little slow, Mr. Delahunt, is that I do not know whether they did that in writing or whether it was strictly during the oral communications.
Mr. GEKAS. The time of the gentleman has expired. Let the record show that the gentleman from Massachusetts, Mr. Meehan, has now joined the subcommittee. Let the record also reflect the fact that the gentleman from New York, Mr. Nadler, has to be on the floor for the purposes of an amendment and therefore excuses himself from this hearing. Now we yield 5 minutes to the gentleman from Ohio, Mr. Chabot.
Mr. CHABOT. I thank the chairman, and thank you, Mr. Hansen, for testifying before the subcommittee on this very important issue.
Under the existing standards, our air quality has continued to improve and that's one of the reasons that I question the EPA's rush to enact these revisions. I'm also very suspicious of the scientific analyses on which the revised standards are based. But having said that, I'm also deeply troubled by a news article which appeared in the Washington Times on July 16, saying that some elected officials are vocally supporting these new standards while striking deals with the EPA to exempt select businesses from the new standards. Is this true? Has the EPA made assurances to some elected officials that some businesses will be exempt from the standards?
Mr. HANSEN. Mr. Chairman, the answer is absolutely not. What we have done when we have been asked specific questions, we have analyzed the current data, 1993–95 data, and made judgments on what we thought, if that same set of facts continued, in fact would be the effect in certain counties or in certain areas. But we have made no such assurances. We would not have the ability to, and certainly it would not be appropriate for us.
Mr. CHABOT. Who within your Department would be contacted and would it be Members of Congress that would contact folks within your agency?
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Mr. HANSEN. Certainly, we have in fact been asked by Members of Congress. We have been asked by the Department of Agriculture, although by Senator Lugar asked as well, what would be the likely effect in various settings. We have opined based on the 1993–95 data, knowing that there are lots of uncertainties and knowing that a number of determinations are ultimately still to be made by States. Generally, those responses that we gave looked at whether or not certain counties would be likely to be able to be in attainment under the new standard, given the issue that I opened with in my oral statement, and that is the ability to have a trading program for the oxides of nitrogen which are a regional pollution concern in the 37 Eastern States. Those issues we have given our best judgment, based again on that limited data, knowing that new data would have to be collected, and based on that, determinations would be made on whether there were, in fact, nonattainment designations or not.
Mr. CHABOT. You've seen the article that I'm referring to, I would assume?
Mr. HANSEN. I have not seen that particular article, but I can imagine what they were trying to get at.
Mr. CHABOT. Well has an article of that nature been discussed in your presence or by folks that you know?
Mr. HANSEN. Not that I recall, though certainly the issue of, ''Are we opining about things that were inappropriate in terms of what the future might bring,'' we certainly have discussed that and Carol Browner, the Administrator and I have made very clear that we are in fact not in the business of making any promises about what will happen. We are there to provide facts based on the best knowledge we have, and only that.
Mr. CHABOT. One of the reasons the EPA claims that it's exempt from the Reg-Flex Act requirements is because the EPA claims that it has no direct control over the plan States choose to adopt to implement these regulations. Isn't it true, however, that many Federal Clean Air provisions automatically kick in if the EPA designates an area as not in attainment?
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Mr. HANSEN. In terms of what I think you are referring to as sanctions, there are certain provisions that are automatically provided for under the statute that will in fact kick in. However, the issue that's at hand in terms of why we make a determination that we do not have control is that a State may choose, for example, to say for a particular sector of their business community, that we are going to impose no controls or a phased set of controls for them that are different than what in fact another State might do. Those are the choices that are in fact the ones that are key to determining what effect the standards would have on small entities, and, therefore, are impossible for us to evaluate when we set the standards.
Let me make clear that there are a number of places we at the Federal level do take in our requirements, where clearly the Regulatory Flexibility Act, SBREFA, other requirements, come into play. When we are in fact looking at, for example, what we call volatility of architectural coatings—how much solvent is in paints and how much would come off during their application—we understand that a number of small entities, small businesses, are paint formulators or paint manufacturers. We would, when we propose rules in those areas, fully comply with those provisions of the law because our actions directly affect those small businesses. That's where it's appropriate; that's what we do.
Mr. CHABOT. Thank you. Thank you, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired. We turn to the other gentleman from Massachusetts, Mr. Meehan, for 5 minutes.
Mr. MEEHAN. Thank you, Mr. Chairman. And thank you, Mr. Hansen, for testifying before the committee.
The Regulatory Flexibility Act requires that an agency prepare regulatory flexibility analyses of proposed and final rules, unless an agency head certifies that a rule will not have a significant economic impact on a substantial number of small businesses. In turn, the EPA has argued that the new Ozone and Particulate Matter National Ambient Air Quality Standards are not covered by the Regulatory Flexibility Act because other laws and other regulations are required to implement the standards.
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Now, as I understand the EPA's implementation policy, the agency would take 5 years to conduct a nationwide monitoring effort before requiring local pollution controls for particulates. Then, cities would have at least another 2 years to submit plans on how they would meet the new particulate standards. Furthermore, the communities with strategies in place to meet the current ozone standards would not necessarily have to change course to fulfill the new standards.
Now, does the fact that the new air quality standards would not take effect either immediately or uniformly bolster your case that air quality standards, and State and Federal regulations implementing these standards, are separate and distinct for the purposes of the Regulatory Flexibility Act?
Mr. HANSEN. Mr. Chairman, Mr. Meehan, we believe very strongly that the requirements of what States must do if they are operating a delegated program—again, nothing requires that States must operate these programs, though in virtually all States, the States have so chosen, sometimes through local air pollution authorities—means that they are the ones who make the determination about what the exact controls are to be that would fall upon any regulated entity within their jurisdiction that is the place in fact that you can accomplish the type of analysis that was contemplated under the Regulatory Flexibility Act.
The requirements that we have in place to be able to have a phased approach are really what is provided for in the Clean Air Act. That is, a process is established by which a standard is established. The Governors first have the ability to submit what they think are areas that don't meet that standard. We review that standard or that determination, and make final determinations. States then come forward with their plans to achieve that standard. We must then approve them and can grant additional time if there are special circumstances. That process is a Clean Air Act requirement.
Mr. MEEHAN. Let me pursue separate issue: When proposing regulations that would result in expenditures by State or local governments or the private sector in excess of a $100 million in 1 year, the Federal agency must comply with the so-called Unfunded Mandates Reform Act. The act generally requires an agency to prepare a cost-benefit analysis to notify small businesses, so that it can receive comments during development of the regulation and identify and consider a number of the regulatory alternatives.
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Obviously, there's a good deal of debate over whether the rule promulgating the new air quality standards is subject to the Unfunded Mandates Reform Act. Nonetheless, I would like you to verify my understanding of what has actually happened in this case. For example, isn't it true that the EPA prepared a cost-benefit analysis for both the particulate matter and ozone standards?
Mr. HANSEN. Mr. Chairman, Mr. Meehan, in the Unfunded Mandates Reform Act there are four sections that must be complied with. There is section 202, which looks at the assessing of cost and benefits, as well as section 205, requiring the least costly alternative to be selected. The legislative history, as well as the statute itself on unfunded mandates, makes very clear that the unfunded mandates law does not supersede other law. Consequently, when there is in fact for the NAAQS, the National Ambient Air Quality Standards, a requirement that health shall be the basis of that standard, these two sections, in our judgment, we believe without question, do not apply.
There is a section 203 that refers to a small government agency plan. This does not apply in our view, because, again, we are not imposing any effect on those small governments because of the nature of standard setting; that's a State determination.
Lastly, section 204 does require a process of involving States, local government, and tribal governments. Although, technically, the first three determinations would not have this section apply, we have taken the steps of essentially complying with this by reaching out on a constant basis, and still doing so today, to those small entities, small governments, State governments, to be able to work through those implementation issues.
Mr. MEEHAN. Mr. Chairman, if you'll bear with me just for 1 minute—so it's true that the EPA intends to work with the Small Business Administration to solicit comments and advice and recommendations for the implementation of the proposed rules and get those representatives from small business involved in the process, and the EPA reviewed and chose among a wide range of alternative standards listed in its staff papers.
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Mr. HANSEN. Mr. Chairman, Mr. Meehan, absolutely. In fact, yesterday there was a meeting with small business entities in which they were very complimentary of the type of guidance we were beginning to develop for States, knowing that States ultimately have the final determination. Likewise, we expect to be able to work very closely with the States and are doing so on an ongoing basis.
Mr. MEEHAN. Thank you.
Mr. GEKAS. The time of the gentleman has expired. By special request, I yield for a question to the gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Thank you. I was sitting here and reflecting. Maybe if you could, if you know the EPA's position—I'm sure you're aware of the fact that under SBREFA there is a provision that allows for congressional review of rules, and it's an expedited process. Presuming, and I think it's probably safe to presume, Members of Congress should file a resolution of disapproval, it's not the position of the EPA that SBREFA and that that particular provision within SBREFA would not apply to a rule promulgated by the EPA, given the mandate of the EPA?
Mr. HANSEN. Mr. Chairman, Mr. Delahunt, absolutely not. That provision——
Mr. DELAHUNT. That's fine.
Mr. HANSEN [continuing]. Is something that is fully in place, and although we would certainly oppose it——
Mr. DELAHUNT. Right.
Mr. HANSEN [continuing]. Ought to be——
Mr. DELAHUNT. No, I just wanted to be clear. Given the relationship and the interpretation that your counsel has provided you, I just wanted to be reassured. But thank you.
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Mr. HANSEN. Absolutely.
Mr. GEKAS. To balance the equities, we will yield for a commensurate period of time to the gentleman from Tennessee, Mr. Bryant.
Mr. BRYANT. Mr. Hansen, again——
Mr. GEKAS. I have to be home at 5:30. [Laughter.]
Mr. BRYANT. Thank you for your——
Mr. GEKAS. I've got to go to the baseball game.
Mr. BRYANT. I do appreciate you coming in.
But my friend from Massachusetts raises the question now that I'm not sure I follow. You're saying that if we were to file a resolution under the Small Business Regulatory Act, as Congress, your counsel, and you would acknowledge that would apply. Yet, you're saying that the balance of that act in terms of the regulatory hoops you have to jump through does not apply. Are you not saying that you're picking and choosing what portions of that law that you want to comply with? That's what it sounds like to me.
Mr. HANSEN. Mr. Chairman, Mr. Bryant, I am not a lawyer, so I'm always a little nervous here, but, as I understand it, there are different provisions within the SBREFA. One provision, which is the expedited review process by Congress for major rules, is triggered by whether or not it is a significant rule under the terms of the Executive order: essentially, $100 million total impact on the U.S. economy in any given year. That is the sole provision that triggers as I understand it, whether or not the expedited review process that is afforded Congress for major rules is available. That is met by this rule. There is no question in our minds that that is the case. The other provisions of SBREFA deal with the issues that we have been talking about.
One last thing, if I might, and I know that this has been an issue of concern. I served for over a decade as the administrator, the director of the Oregon Department of Environmental Quality. I cannot imagine a setting in which during the standard-setting process of the EPA, the requirements that in fact are solely the responsibility of the State working with all of it's constituencies could have been in fact addressed. In fact, I would have been frustrated if EPA tried to tell me at the State level how we ought to implement the requirements. We would have our own processes, working with our own State's legislature and others. But for the life of me, I can't think of a process by which at standard-setting, which is what we're talking about here, there is in fact the ability to say directly, ''Ah, the way to be able to address this impact on a small entity can be accomplished by doing this, or should be done this way.'' The system isn't set up that allows for that.
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Mr. BRYANT. Well, certainly you're not saying that the difficulty in complying with that law is any reason not to comply with it?
Mr. HANSEN. Absolutely not. Absolutely not.
Mr. BRYANT. Thank you.
Mr. GEKAS. We thank our witness. Before we release him, I simply want the record to reflect that the gentleman, Mr. Hansen, has acknowledged that $100 million is in this total picture as a cost impact across the Nation, and yet takes or mouths the EPA position that that would not affect small entities. I don't know what it would affect—not the State legislatures, not the county commissioners, not the governmental stream across the Nation, but by logic a third-grader would tell us that $100 million would seep down to small entities, business entities, every other kind of entity.
I need to have a memorandum for the EPA with distribution to members of the subcommittee how we have a $100 million impact without small entities being affected. That's No. 1.
No. 2, in stating as assertively as the gentleman, Mr. Hansen, did, that the Clean Air Act does not involve or even prohibits an analysis that involves cost, but rather is segregated only as to health consequences, why then the EPA would comply with an Executive order in the face of what the Clean Air Act says about not involving cost, and indulge in cost analysis and impact statements as part of the Executive order, and seek to ignore a similar requirement on the various Acts to which we have referred on the same question? To me, that's almost like trifling with Congress, and I'm very disturbed about it.
If, indeed, the Clean Air Act, your bastion of safety in what you try to do, prohibits your talking about cost, but then you seek to do exactly the very same thing in the Executive order analysis that you feel is required, and then by sophistry, in my judgment and in the judgment of some who may look at it more objectively than I—it is not required in the legislative mandates. That's very puzzling to me. I need to have you distinguish that in a separate memorandum to members of this committee.
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[See appendix.]
Mr. GEKAS. With that, we discharge Mr. Wilson and Mr. Hansen honorably.
Mr. HANSEN. Thank you, Mr. Chairman. Thank you, members.
Mr. GEKAS. Panel No. 3 is present and willing to come to the witness table, I assume. It consists of Brian J. Flaherty, the Honorable Brian J. Flaherty, the Connecticut State representative, serving his fifth term in the State House of Representatives in that State who holds the position of deputy minority leader. He represents the 68th Assembly District, which includes Watertown, Oakville, and Middlebury, CT. In a 1992 Connecticut magazine poll, Representative Flaherty was ranked by his colleagues as one of the top 25 State lawmakers. He serves on the executive committee of the National Conference of State Legislators, on behalf of whom he testifies today.
Joining him at the panel is Mr. Schaeffer.
Mr. SCHAEFFER. I am here. Excuse me.
Mr. GEKAS. Yes, he is. Allen R. Schaeffer, vice president of the environmental affairs department of the American Trucking Associations. He has managed regulatory and environmental affairs for the trucking industry since 1987. Mr. Schaeffer received his bachelor's degree in life sciences from the University of Maryland, College Park, and his master's degree in environmental health sciences engineering from the Johns Hopkins University School of Public Health.
And they are joined by New Hampshire State senator, Richard Russman, a fourth-term State senator from that State and chairman of the New Hampshire Senate's Environment Committee. He also practices law in Exeter, NH, with an emphasis in litigation. He received his B.A. in government from Boston University and his law degree from Suffolk University.
We will begin in the order in which the witnesses were announced and we remind you that your written statements will be accepted as part of the record, without objection. You will be restricted to 5 minutes to summarize your testimony.
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Mr. Flaherty.
STATEMENT OF BRIAN J. FLAHERTY, DEPUTY MINORITY LEADER, CONNECTICUT STATE HOUSE OF REPRESENTATIVES, ON BEHALF OF THE NATIONAL CONFERENCE OF STATE LEGISLATORS
Mr. FLAHERTY. Thank you, Mr. Chairman, members of the committee. As was stated, I'm State Representative Brian Flaherty from the State of Connecticut. I serve on the executive committee of the National Conference of State Legislatures. I offer testimony today on behalf of NCSL, and thank you for the privilege and the opportunity to the discuss the issues surrounding the implementation of the Unfunded Mandates Reform Act, or UMRA of 1995. NCSL is a bipartisan organization representing over 7,500 State lawmakers across the Nation. Among the most important functions we do is to analyze Federal legislation and regulations to ensure that State and Federal roles are equitably defined, to express to Federal officials, such as this subcommittee, the needs and concerns of the States.
My testimony will focus solely, Mr. Chairman, on the implementation of the UMRA act and the statute's effect on the Federal rulemaking process. I have three points, basically, to make in my statement.
First, adherence to UMRA is intended to become part of the Federal policymaking process, not a roadblock.
Second, NCSL firmly believes that Congress and the President intended Federal agencies to comply with UMRA during all significant rulemaking actions not specifically exempted in UMRA in title 1, section 4, or otherwise exempted by explicit statutory language.
Third, NCSL has very grave concerns about the failure of the Environmental Protection Agency to comply with UMRA during a recent rulemaking process to revise the air quality standards for fine particulate matter and ground-level ozone.
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With these points in mind, Mr. Chairman, in the NCSL it is our position that the EPA and all Federal agencies produce and publish the indepth analyses that's required under UMRA when promulgating significant regulations. UMRA is truly an historic piece of legislation. It recognizes the threat posed to the constitutional system of federalism by Federal legislation that imposes costs and requirements on State and local governments without regard to our ability to comply. NCSL was very deeply involved in this legislation through the entire process and, as such, we have a stake in ensuring its integrity.
With the enactment of UMRA, Congress promised the States relief from the burden of unfunded mandates. It further promised States that Federal agencies would work cooperatively with us to develop regulatory alternatives that are less expensive and more cost-effective.
Mr. Chairman, NCSL believes that such data, the data derived from UMRA, are critical to State, local, and tribal governments. Members of Congress, as well as the administration, also have the need to know that detailed information—and not, as was discussed, information that might have been provided in response to complying voluntarily with Executive orders.
If you just look at the act, and not to speak for Congress, but a reading of the act shows the intent to require all administrative agencies to generate that type of analysis, and those analyses that were not specifically exempted within UMRA. We believe that if the Clean Air Act were meant to be exempted from this process, it would have been so stated in the exemptions provided for in the act. That's why, Mr. Chairman, we have very serious concerns about EPA's refusal and stated refusal in the Federal Register in posting these rules to comply with UMRA during these regulations.
EPA says it's not required to produce the analysis, and we find this response alarming, particularly their reliance on the General Counsel's opinion that they think they found a loophole within UMRA that makes them no longer have to qualify—to comply. And by its own admissions, EPA has failed to follow the provisions of title 2 of UMRA in the rulemaking process. We believe this is a disservice to the Congress that enacted the act, this is a disservice to the states who will have to comply with the act. We believe that they must publish the complete analysis required by UMRA.
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Mr. Chairman, lest this testimony be perceived as totally negative, NCSL was very grateful, and worked along with EPA in consultation and many of the advisory committees they did set up. I'm not here stating that there was no consultation provided the States, tribal governments, or the counties. We would say, however, Mr. Chairman, that we don't think EPA nor any other Federal agency should assume that they can pick and choose which laws they can exempt themselves from in the regulatory process.
We urge you, Mr. Chairman, and this subcommittee, to do everything in your power to ensure that EPA and all Federal agencies comply with UMRA. The effective implementation of that act is essential, not only in the context of the Clean Air Act, but in all the other acts that may follow. I believe that members of the NCSL believe that in passing this act Congress intended for all agencies to comply with UMRA.
I thank the chairman and members of the subcommittee for this opportunity to testify.
[The prepared statement of Mr. Flaherty follows:]
PREPARED STATEMENT OF BRIAN J. FLAHERTY, DEPUTY MINORITY LEADER, CONNECTICUT STATE HOUSE OF REPRESENTATIVES, ON BEHALF OF THE NATIONAL CONFERENCE OF STATE LEGISLATURES
The National Conference of State Legislatures (NCSL) was a key, driving force behind enactment of the Unfunded Mandates Reform Act of 1995 (UMRA) and remains a strong supporter of the principles underlying the statute. NCSL encourages all federal agencies to adhere to the principles and spirit of UMRA when developing public policy intended to protect and serve the American people.
My testimony will focus strictly on the federal policymaking process. I have three points to make in my statement. First, adherence to UMRA is intended to become a part of the federal policymaking process, for both Congress and federal administrative agencies. UMRA should not be perceived as a roadblock, or even speed bump, impeding the swift development and implementation of public policy. One of the main purposes of UMRA is to provide federal and state officials with critical information that is continually compiled and used during deliberations in all policy areas.
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Second, NCSL believes that Congress intended the federal administrative agencies to comply with UMRA during all significant rulemaking actions that were not specifically exempted under Title I Section 4 of the statute or under similar explicit statutory language. All federal agencies must produce the analysis required by UMRA during most rulemaking activities that will place a major financial burden on states.
Third, NCSL has grave concerns about the failure of the U.S. Environmental Protection Agency (EPA) to comply with UMRA during the recent rulemaking process to revise the air quality standards for fine particulate matter and ground level ozone. NCSL fears that EPA's failure to comply with UMRA may set a dangerous precedent for all future federal rulemaking activities. EPA reasons that promulgation of revised national air quality standards is exempt from the provisions of UMRA by court decisions rendered in the 1980's. This reasoning does not agree with the principles and spirit of UMRA nor does it conform to the stated wishes of the Administration to relieve the burden of unfunded federal mandates on the states. Furthermore, EPA's failure to publish this information suggests a deliberate challenge to the applicability of UMRA, given that EPA has already produced much of the analysis required under the act. The regulatory impact analysis that contains much of the cost and economic impact analysis is only available to those who go to EPA offices or have access to the Internet.
With this in mind, NCSL urges all federal agencies to produce and publish the in-depth analysis(see footnote 1) required under UMRA when promulgating significant regulations. Federal agencies must inform Congress and state officials of the present and future costs of compliance with such regulations.
Mr. Chairman and members of the committee, I am State Representative Brian Flaherty from the State of Connecticut. I serve on the Executive Committee of the National Conference of State Legislatures (NCSL). I offer testimony today on behalf of NCSL. Thank you for the opportunity to discuss the issues surrounding implementation of the Unfunded Mandates Reform Act of 1995.
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NCSL is a bipartisan organization that represents America's 7,541 state lawmakers. One of the most important functions of NCSL is to analyze federal legislation and regulations to ensure that state and federal roles are clearly and equitably defined. NCSL facilitates successful development and implementation of federal laws and regulations by expressing to federal officials the needs and concerns of the states. Another critical function of NCSL is to provide state lawmakers with accurate and timely information regarding federal policy and initiatives.
My testimony on behalf of NCSL will focus solely on the implementation of the Unfunded Mandates Reform Act of 1995 (UMRA) and the statute's effect on the federal rulemaking process. I have three points to make in my statement.
First, adherence to UMRA is intended to become a part of the federal policymaking process, for both Congress and federal administrative agencies. UMRA should not be perceived as a roadblock, or even speed bump, impeding the swift development and implementation of public policy. One of the main purposes of UMRA is to provide federal and state officials with critical information to be continually compiled and used during deliberations in all policy areas now and in the future.
Second, NCSL firmly believes that Congress and the President intended the federal agencies to comply with UMRA during all significant rulemaking actions that were not specifically exempted under Title I Section 4 of the statute or are otherwise exempted by explicit statutory language. All federal agencies must produce the analysis required by UMRA during most rulemaking activities that will place a major financial burden on states.
Third, NCSL has grave concerns about the failure of the Environmental Protection Agency (EPA) to comply with UMRA during the recent rulemaking process to revise the air quality standards for fine particulate matter and ground level ozone.(see footnote 2) NCSL fears that EPA's failure to comply with UMRA may set a dangerous precedent for all future federal rulemaking activities. EPA reasons that it is exempted from the provisions of UMRA by court decisions rendered in the 1980's. This reasoning does not agree with the principles and spirit of UMRA nor is it consistent with the stated wishes of the Administration to relieve the burden of unfunded federal mandates on the states.
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With these three points in mind, NCSL urges all federal agencies to produce and publish the in-depth analysis required under UMRA when promulgating significant regulations in order to inform federal and state officials of the present and future costs of compliance with such regulations. This analysis will facilitate, not hinder, achievement of the federal standards intended to protect and serve the American public.
1. THE PURPOSE OF THE UNFUNDED MANDATES REFORM ACT OF 1995 (UMRA)
UMRA is an historic piece of legislation that recognizes the threat posed to our constitutional system of federalism by federal legislation that imposes costs and requirements on state and local governments without regard to their ability to comply. NCSL was deeply involved in the crafting of UMRA, and is committed to ensuring that it is faithfully implemented. Our objective is to ensure that the federal government meet the goals of the act, which include:
1. ''to strengthen the partnership between the federal government and state, local and tribal governments;''(see footnote 3)
2. ''to promote informed and deliberate decisions by Congress on the appropriateness of federal mandates in any particular instance;''(see footnote 4) and
3. ''to begin consideration of the effect of previously imposed federal mandates, including the impact on state, local, and tribal governments of federal court interpretations of federal statutes and regulations that impose federal intergovernmental mandates.''(see footnote 5)
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With the enactment of UMRA, Congress promised states relief from the burden of unfunded mandates and further promised states that federal agencies would work cooperatively with them to develop regulatory alternatives that are less expensive and more cost-effective. Congress and the Administration made a commitment, with the passage of UMRA, to provide relief from current and future mandates in order to preserve the financial viability of state governments, and ultimately to ensure the successful implementation of federal laws and regulations.
UMRA should not be regarded as a barrier or hindrance to national public policy. UMRA should be viewed as an innovative and contemporary tool to be used during development of federal laws and regulations. If fully implemented, the information generated under the provisions of UMRA will be used by current and future federal and state officials to better understand the roles and responsibilities of all the levels of government. This will ensure successful development, implementation, and administration of national policy.
2. FEDERAL AGENCY COMPLIANCE WITH UMRA
Title II of UMRA requires federal agencies to prepare and consider estimates of the budgetary impact of regulations containing unfunded federal mandates on state, local and tribal governments, unless clearly prohibited by law. Congress imposed this requirement on federal agencies in order to generate the data necessary for informed congressional and presidential decisions on regulatory and appropriations issues.
That data includes:
1. Qualitative and quantitative assessments of the anticipated costs and benefits of the mandate;
2. Analysis of federal financial assistance and other federal resources available to state, local, and tribal governments;
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3. Estimates of future compliance costs;
4. Analysis of any disproportionate budgetary effects on regions, states, localities and tribes;
5. Estimates of the effects on the national economy;
6. Reports of EPA's prior consultation with elected state, local and tribal officials;
7. Summary of submitted comments from the various levels of government; and
8. Evaluation of those comments.
NCSL believes that such data are critical to state, local and tribal governments. Members of Congress as well as the Administration also have a need to know how much the final air quality standards will cost the states in order to make informed legislative and executive decisions regarding the imposition of current and future mandates in all policy areas. Decisions by Congress and the President pertaining to funding of current and future mandates depend on accurate information from federal agencies regarding the financial burden on states and localities.
Congress clearly intended to require all federal administrative agencies to generate analysis during promulgation of significant regulations not exempted under Title I Section 4 of UMRA or similar statutory language that clearly states congressional intent to provide an exemption from UMRA process. Congress intended this analysis to be used to relieve or minimize the burden of unfunded federal mandates on states.
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UMRA contains overall principles that federal agencies should follow during promulgation of federal regulations that impose unfunded mandates on states. NCSL asserts that all federal agencies should adhere to the principles and the spirit of UMRA—except in areas where Congress has specifically provided an exemption.
3. A DANGEROUS PRECEDENT
NCSL has serious concerns surrounding EPA's stated refusal to comply with UMRA during development of the final regulations on new air quality standards for fine particulate matter and ground level ozone. EPA maintains, in the regulatory impact section of the final rules, that it is not required to comply and will not comply with any provisions of UMRA because ''it is inconsistent with applicable law.''
EPA says it is not required to produce the in-depth analyses called for under UMRA. We find this response alarming, particularly in light of EPA's preparation of, but refusal to publish, much of the analysis required under UMRA. EPA's reliance on potentially self-serving agency interpretation of case law predating the enactment of UMRA to avoid publishing such data ignores the clear intent of Congress. It amounts to a direct challenge to Congress and to the states. It reinforces the view that federal regulators have little concern for the financial consequences of federal regulations imposed on states. Moreover, EPA's action could encourage other federal agencies to follow this precedent of avoiding, by one means or another, meeting their full responsibilities under UMRA.
By its own admission, EPA has failed to follow provisions of Title II of UMRA in the rulemaking process for the new air quality standards. This is a disservice to Congress and to the states, both of which have an urgent need for these and all other mandate cost estimates. NCSL believes that EPA must publish the complete analysis required by UMRA in order to inform Congress of the amount of money states and localities will need to cover the cost of state compliance.
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Absent a clear statement by Congress that it intended to exempt Clean Air Act regulations from UMRA process, neither EPA nor any other federal agency should presume that it is prohibited from adhering to UMRA when promulgating significant federal regulations, including setting national ambient air quality standards. Title I, Section 4 of UMRA clearly lists the categories of federal law that are excluded from its coverage. Neither the Clean Air Act nor national air quality standards are listed among those exemptions.
Section 201 of UMRA requires EPA to assess the full cost of state and local compliance with regulatory actions to revise the national ambient air quality standards for particulate matter and ozone. NCSL concurs with EPA's assessment that the aggregate economic burden of the final air quality standards will exceed $100 million. Therefore, the rules are considered ''significant regulatory actions'' that trigger further federal action under UMRA to reduce the burden on states, either by increasing appropriations or relieving regulatory costs.
Section 202 of UMRA requires EPA to disclose all federal funding and other resources available to states for implementation of the revised standards. This information allows states and localities to learn of innovative sources of federal funds. EPA assures states that federal funds will be provided to cover the costs associated with installing and operating monitoring stations, as well as costs associated with developing new state air quality improvement plans. However, EPA reluctantly reveals that all promises of federal funds hinge on congressional appropriations. EPA has not revealed any other sources of federal funds, or such sources that are not already dedicated to other state air quality projects and programs, that could be used in the event Congress did not appropriate the funding necessary to cover the cost of compliance.
Section 204 of UMRA requires EPA to work closely with state legislators and other elected state and local officials during development and implementation of any changes to the national ambient air quality standards. NCSL lauds EPA's formation of the Federal Advisory Committee (FACA) to provide regular and continued dialogue among state and local stakeholders on issues surrounding the final rules. Among the participants is a state senator from Minnesota who has attended and participated in past meetings and plans to continue participating in future meetings.
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NCSL is also pleased with EPA's coordination of the Clean Air Act Advisory Committee to provide intergovernmental information sharing and dialogue on all issues surrounding the Clean Air Act. Listed among the members of the committee is a state senator from Maryland. NCSL understands that the state senator participates in advisory committee meetings and is content with the efforts that EPA is making to continue regular dialogue with state and local officials.
Section 205 of UMRA requires federal agencies to assess and consider all options and to adopt the least expensive and most cost-effective alternative regulatory route. Congress clearly intended to require EPA to consider cost issues and implementation problems when promulgating new air quality standards. Again, neither national ambient air quality standards nor the Clean Air Act are explicitly exempted under Title I Section 4 of UMRA, or similar statutory language that clearly states congressional intent to provide an exemption from UMRA process.
Congress and the Administration must have the detailed analyses required under UMRA in order to fulfill their obligation to provide federal funding for state compliance with the revised standards. The imposition of new air quality standards without additional federal funds contradicts the commitment of the Administration and Congress to reduce the burden of unfunded mandates on states.
Mr. Chairman and members of the committee, I urge you to do everything in your power to ensure that EPA and all other federal agencies comply with UMRA. The effective implementation of UMRA is essential not only in the context of Clean Air Act rulemaking activities but for all other federal administrative proceedings unless Congress has made a clear statement that a particular policy area is exempt. In passing UMRA, I am sure that you did not intend Title II to be an empty gesture and that you did not intend the ''inconsistent with applicable law'' language in Title II to be a loophole to allow EPA to avoid its compliance responsibilities. I believe and the members of NCSL believe that Congress intended for federal agencies to adhere to the requirements of UMRA.
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Thank you for this opportunity to testify.
Mr. GEKAS. We thank the gentleman, and we now turn to Mr. Schaeffer.
STATEMENT OF ALLEN R. SCHAEFFER, VICE PRESIDENT, ENVIRONMENTAL AFFAIRS, AMERICAN TRUCKING ASSOCIATION
Mr. SCHAEFFER. Thank you, Mr. Chairman, members of the subcommittee. My name is Allen Schaeffer and I am vice president of environmental affairs of the American Trucking Associations, and thank you for this opportunity.
I would like to talk with you this morning about three important things: First, the predominance of small business in the trucking industry; second, why the clean air rules are so important to small business, and third, how EPA ignored SBREFA and then fabricated a sham, substitute, after-the-fact process that is clearly not what Congress intended.
ATA is the national trade association representing the trucking industry. We have over 4,200 direct members and over 36,000 members through our Federation of State Trucking Associations. According to the U.S. Small Business Administration, 87 percent of all trucking companies in America are small business.
Mr. Chairman, the trucking industry is committed to clean air and we have the record to prove it. For example, over the last 10 years, we have supported EPA efforts to lower truck engine emissions standards, reformulate diesel fuel, and enact uniform State truck emissions testing programs, to name a few measures. We stand by our commitment to clean air, but we will not stand by as the rights and considerations of small business impacts are ignored or trampled.
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Because our industry is predominately small business, we are especially vulnerable to the direct and indirect impacts of the new clean air standards. Small businesses have the least access to capital for new investments, are most influenced by increases in operating expenses such as increased fuel prices, and are least able to pass on these costs in our highly competitive industry.
Given the stringency of the new standards, coupled with fewer and fewer options available to reduce emissions, we fully expect that a disproportionate share of the reductions in emissions will, in the end, come from small business. We have heard EPA offer assurances to various industries—including trucking, other small businesses, and most recently agriculture—that these new standards will not have any significant impact. Unfortunately, EPA is only the maker of those promises and not the keeper of them.
We're concerned about the process by which EPA developed, proposed and recently finalized the standards. I would now like to turn to that process. And I have an exhibit here which we'll put up on the easel to aid in your understanding. You have a copy of this with my statement.
It all began in March 1996, when Congress passed the Small Business Regulatory Enforcement Fairness Act. We've already reviewed the primary provisions of SBREFA that apply to the act. But one of the key provisions is that EPA is to formally consult in advance of issuing regulations and to conduct the regulatory flexibility analysis well in advance of issuing a final rule, and to modify its rules accordingly. As an advocate for a predominately small business industry, enactment of SBREFA provided us with a new and important mechanism for fair consideration of our small business issues. This is very important to us, since this issue is likely to have the most significant impact on our industry in the last decade.
We sought to integrate ourselves early on in the small business process, beginning in July 1996. Over the next few months, we persisted with our request to both SBA and EPA in at least seven separate letters, and at least one meeting with EPA Administrator Browner directly prior to the rules being proposed. Just 9 days before EPA issued its proposal, SBA reversed its opinion on the applicability of SBREFA and urged EPA to rethink its own position. EPA issued its proposal—excuse me—just 7 days before EPA issued its proposal, Assistant Administrator for Air and Radiation, Mary Nichols, was quoted as saying SBREFA was a pointless exercise relative to the setting of health-based standards.
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EPA maintained throughout the process that the NAAQS would not have any impact on small business because they did not know the kinds of control measures that would be implemented. We are gravely concerned about this interpretation and the precedent this establishes for other major rules based on health-based standards issued by EPA. EPA knows, and in fact has analyzed, control measures and certified in the draft RIA that this is a major rule. And through its own Federal Advisory Committee, the Ozone Transport Assessment Group, and other forums, EPA knows full well what the range of options are.
Given this interpretation, our fear is that EPA will now transfer this distorted and inaccurate interpretation of SBREFA for each and every rule based on a health standard, ultimately becoming a means to subvert the intent of SBREFA and effective consideration of small business and other rules.
Shortly after proposal of the rule, EPA began to hastily assemble a group of small businesses in a process that was designed from the outset by senior EPA officials as ''paneloid.''
Mr. GEKAS. As what?
Mr. SCHAEFFER. ''Paneloid.'' The process was so designated because, while EPA retained its position that SBREFA did not apply, it was going to engage in a panel-like process that would assemble a small business review group that was like a SBREFA panel, but would not actually be one, since SBREFA did not apply.
The first official meeting took place on January 7 in essentially a briefing for industry with very limited time for comment. The character of this sham panel process became most evident in March of this year when EPA mischaracterized a meeting—it published, saying that this was a briefing on the Federal Advisory Committee on the implementation of the standards, and when we arrived at the meeting, the agenda labeled it as a SERT team, a ''Small Entity Review Team'' meeting, which took on an entirely different meaning for us.
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After protests from our groups, EPA acknowledged and apologized for the confusion about what the meeting truly was and thirty days later reconvened another ''paneloid'' meeting. Unfortunately, we have not seen a paneloid report yet, since it's not been available in the document—in the Federal docket.
In conclusion, with promulgation of the standards on July 18, every small business in America now has reason for concern about the process over the last year that has severely trampled the rights of small business provided by Congress, leaving it little more than a hollow promise to the millions of small businesses that are the backbone of the economy.
EPA has engaged in a faulty process that has also substantially excluded small business from key forums that will have a strong influence on the implementation of the standards, like the Federal Advisory Committee. Already, small businesses are being impacted by this decision. Our members are planning for future equipment purchases in the next 5 years, the timeframe for when the new ozone standard is effective. I've already had calls from our members asking what to do. Despite our repeated pleas and EPA's efforts to reassemble some sham process, this process convened after the fact cannot make amends for the failed consideration of small business to the letter and spirit of SBREFA.
The trucking industry is one small business sector that does not believe SBREFA is a ''pointless exercise'' as it applies to the new standards. While we appreciate EPA's efforts to now talk with us and listen to our concerns, the damage is done. Our hope now is that the rule will be remanded to EPA for reconsideration and a fresh new process can begin, one that starts out on the right foot for small business.
Thank you.
[The prepared statement of Mr. Schaeffer follows:]
PREPARED STATEMENT OF ALLEN R. SCHAEFFER, VICE PRESIDENT, ENVIRONMENTAL AFFAIRS, AMERICAN TRUCKING ASSOCIATIONS
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I. INTRODUCTION
Chairman Hyde and members of the Subcommittee, thank you very much for the opportunity to express the trucking industry's views regarding revisions to the National Ambient Air Quality Standards for Ozone and particulate matter issued recently by the Environmental Protection Agency (EPA). This is a matter of utmost importance to our industry. Our major concern with regard to this testimony is that EPA has engaged in a faulty process relative to small business in proposing and finalizing its new clean air standards.
A. ATA Represents the Trucking Industry
The American Trucking Associations, Inc. (ATA) is the national trade association of the trucking industry. ATA's membership includes nearly 4,200 carriers, affiliated associations in every state and 13 specialized national associations. Together, ATA represents every type and class of motor carrier in the country. We are a federation of over 36,000 member companies and represent an industry that employs over nine million people, providing one out of every fourteen civilian jobs. Examples of trucking industry segments represented by ATA and that will be affected by the new clean air standards is provided in Table 1.
Table 1: Trucking Industry Segments Impacted by New Clean Air Standards
Agricultural transporters; Bulk material transporters; Hazardous materials transporters; Household goods movers; Magazine and film carriers; Package delivery firms; Regional and distribution carriers; Towing and recovery firms; Utility fleet vehicles; Emergency Vehicles; Automobile transporters; For-hire common/contract carrier; Hazardous waste transporters; Intermodal carriers; Munitions carriers; Private trucking firms; Specialized carriers; Truck rental and leasing firms; and Construction vehicles.
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B. The Trucking Industry Plays a Vital Role in the U.S. Economy.
The trucking industry is a major force in the United States economy, representing about 5 percent of the nation's gross domestic product.(see footnote 6) It is not a uniform industry, but rather a series of diverse and interrelated industry segments, ranging from for-hire contract carriers to independent owner-operators, to parcel delivery firms. These companies transport virtually every type and kind of product and raw material used in the manufacturing and retail sectors of the economy. As the predominant mode by which U.S. consumers receive the majority of their goods, the trucking industry has a significant influence on the costs of finished goods and raw materials in the economy. Over 75 percent of all communities in the United States have freight delivered only by truck.(see footnote 7) Trucking is the link in the economic supply chain from raw material to consumer, since virtually all shipments move by truck at some point.
C. The Trucking Industry is Committed to Clean Air
The trucking industry has a long-standing record of support for measures that have contributed to the dramatic improvements in air quality that have occurred over the last 30 years. Through improvements in heavy-duty engine design, fuel specifications and maintenance, the trucking industry has significantly lowered emissions from truck engines and operations and we are committed to do more in the future. Our efforts have included support of numerous EPA and manufacturer initiatives to lower diesel engine emissions standards, adoption and use of cleaner diesel fuel, and diesel truck emissions testing programs. These and other measures are working. On average, emissions from 1996 model year trucks are about one-eighth of those from a 1987 model year truck engine (pollutants considered: NO and particulate matter). Despite these improvements, we do know, however, that the new clean air standards will require more to be done by the trucking industry to further reduce emissions in many areas across the country.
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II. EPA'S CLEAN AIR STANDARDS WILL HAVE A PROFOUND IMPACT ON THE TRUCKING INDUSTRY WHICH IS PREDOMINATELY SMALL BUSINESS
The trucking industry will be particularly impacted by EPA's new clean air standards for both ozone and fine particles, because of the small business nature of the industry, its marginal financial performance, and the types of measures needed to comply with the new standards.
The trucking industry is comprised of hundreds of thousands of small companies who are particularly sensitive to even minor variations in operating expenses, fuel prices and other factors that are unable to be fully passed on to shippers. According to the U.S. Small Business Administration, 87% of all trucking companies are defined as small business.(see footnote 8) The U.S. Department of Transportation notes that 79% of the 362,288 interstate motor carriers on file operate 28 or fewer trucks.(see footnote 9)
A. The Trucking Industry Operates on a Very Small Profit Margin and Would be Disproportionately Impacted by Revised Clean Air Standards
The trucking industry is a highly competitive industry with relatively small profit margins, where even the largest companies operate at or near a break-even point, with very low profitability for the industry as a whole. The industry is further directly affected by economic downturns in manufacturing or substantial changes in import and export balances. The average profit margin of trucking companies ranges from 2.08% to 2.36%. As an example, a typical truckload carrier would be paid $600 for moving 40,000 pounds of goods from Washington DC to Boston MA. The profit for that trip would be about $12.00 (twelve dollars). With such low profitability, the industry is particularly vulnerable to any dramatic increases in operating costs (such as from increases in fuel prices due to reformulations required to meet clean air standards), limitations on ability to operate in certain areas (time of day or day of week restrictions), or punitive programs that require the payment of various fees, penalties or taxes (fleet emissions budgets) that reduce profitability and provide no increase in productivity.
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For example, fuel and maintenance of trucks—two areas likely to be impacted by the new standards—accounted for 17% of all operating industry operating expenses in 1994.(see footnote 10) Any change that affects fuel cost or fuel economy will add to trucking costs. Small trucking companies are particularly affected by swings in petroleum prices that have been pervasive over the last few years with the increase in the types of fuels required and a decline in refinery capacity. Many small trucking companies may have had an entire year's profit wiped out because of steadily increasing fuel prices during an 8-week period in 1996 and a 2 week period early in 1997, with the situation being even worse in California.
Therefore, the fair consideration and minimization of small business impacts is of utmost and extreme importance and relevance to the trucking industry in the process of establishing any government regulation that influences core operating practices in the industry such as equipment type or specification, fuel composition and cost, or operational or other in-use types of regulations that increase the cost of doing business.
Based on our discussions and involvement with many states over the last 5 years, we know that they will have no choice but to enact additional and expensive control measures on the trucking industry and other small businesses due to the stringency of the new standards. For our own industry we are well aware that efforts to meet the existing standards have virtually exhausted the conventional, low-cost measures implemented over the last 30 years that were largely focused on other larger manufacturing sectors of industry. The types of specific trucking industry control measures and estimated costs to meet the new standards are outlined below in Table 2, and range from reformulations of diesel fuel to new engine standards.
Moreover, the new standards will immediately impact strategic decisions by small business will limited dollars for investment who will be reluctant to consider moving operations into areas where these measures are likely. The standards have already begun to affect these strategic decisions.
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In summary, requirements for cleaner diesel fuel, retrofitting older diesel engines, alternative fuel requirements for truck fleets, tighter engine standards and limitations on truck operations are all types of control measures that will be considered by each state in their development of revised clean air plans to meet the new standards. EPA has already issued lists of counties that will not meet new standards when it proposed the rule on November 27, 1996, so companies already know the areas of greatest concern.
III. EPA HAS ENGAGED IN A FAULTY PROCESS IN PROMULGATION OF NEW CLEAN AIR STANDARD RELATIVE TO SMALL BUSINESS
Over the past year of development and the recent issuance of the final new clean air standards, it became increasingly apparent to ATA and other small business groups that consideration of small business issues was being excluded from both EPA's rule making process as it applies to SBREFA, and also the EPA advisory process for the implementation of clean air standards.
A. EPA had Ample Opportunity, but Failed to Respond To the Pleas of ATA and other Small Business Prior to Proposal of the Rule
Before EPA made its proposal on whether to retain or revise the existing ozone and PM standards, ATA and numerous other small business groups repeatedly advised EPA of its failure to incorporate the views of small business in advance of the issuance of the proposal. On August 15, 1996, ATA sent a letter to EPA Assistant Administrator for Air and Radiation Mary Nichols that, among other things, advised her of the small business impacts anticipated on our industry and raising our concern about the SBREFA review process (Exhibit 1). Subsequently, on August 30, 1996, a group of 11 Small Businesses, including ATA, wrote to Jere Glover, Chief Counsel for Advocacy at the US Small Business Administration, expressing our concerns about EPA's impending proposals and our beliefs that SBREFA applies to the NAAQS revisions. Administrator Browner on August 15 (Exhibit 2). On October 15, 1996, ATA sent a detailed 7-page letter to EPA Administrator Carol Browner advising her of the Agency's obligations under SBREFA (Exhibit 3). ATA also participated in a small business meeting in early November 1996, where Administrator Browner was asked directly about SBREFA and the issues raised in our October letter. The response was that ''we will respond to your letter,'' which they did, on December 2, 1996. In that response EPA articulated the view that the setting of the NAAQS standards ''are not susceptible to a regulatory flexibility analysis'' and that ''it may appropriately certify that the ozone and PM NAAQS rulemaking actions will not, if promulgated, have a significant economic impact on a substantial number of small entities . . .'' and that ''the requirement to form a panel as required under section 609(b) of the RFA is inapplicable to these actions.'' (Letter from Mary Nichols and Jonathan Cannon, US EPA to Julie Waddell, ATA Litigation Center dated December 2, 1996; Exhibit 4).
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Even other government agencies including the Department of Defense, and others sharply criticized the need for EPA's proposed standards and raised questions about having adequate understanding of the impacts before moving forward. The US Department of Transportation in particular sharply criticized EPA's proposal and the lack of information about the resultant impacts on transportation. (Letter from Frank Kreusi, Asst. Sec. For Transportation Policy, US DOT to EPA; Exhibit 5).
B. EPA Ignored the Requirements of the Small Business Regulatory Enforcement Fairness Act of 1996
EPA's proposed standards for particulate matter and ozone fail to comply with the substantive and procedural requirements of the Small Business Regulatory Enforcement Fairness Act of 1996 (''SBREFA''), Pub. L. No. 104–121, 110 Stat. 847 (1996). Simply stated, under SBREFA, EPA was to have conducted a series of regulatory impact analyses that (1) gauge the impact of the proposed rule making on state, local and tribal governments as well as the private sector, including small business; (2) measure the costs and benefits, including the cost - effectiveness of the Agency's decision; (3) conduct scientifically valid risk assessments; and (4) minimize significant economic impacts on small business. These legal mandates require regulatory and cost accountability from EPA, because the Agency's action in each of the two NAAQS rule makings is expected to impose costs well in excess of the $100,000,000 threshold on State, local and tribal governments and the private sector.
Small businesses have been harmed by EPA's faulty process in interpreting SBREFA. No Regulatory Flexibility Analysis of the proposed rule was completed nor did EPA convene the required advocacy review panel to collect small business input and make findings on the determinations reached in EPA's initial ''regulatory flexibility'' submission before the rule making proceeded. An RFA is required for rules that are expected to have a ''significant economic impact on a substantial number of small entities,'' and EPA's own analysis shows impacts exceeding the conventional $100 million threshold (See Regulatory Impact Analysis for Ozone NAAQS, EPA; Section VI–4, and 61 Fed. Reg at 65746.)
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Most recently, in promulgation of the final rule on July 18, 1997, the Administrator has asserted ''. . . for the purposes of SBREFA, this rule (Particulate matter standard) is a ''major rule'' (62 Fed. Reg. at 38708), and similarly for the ozone standard, that This rule is a major rule for the purposes of SBREFA.'' (62 Fed. Reg at 38893), thus affirming in both the PM and ozone instance that the resultant impacts will exceed the $100 million threshold for each of the rules.
Had EPA performed the appropriate regulatory flexibility analysis prior to the proposal being issued, it would have had a more realistic assessment of the impacts of the clean air standards on small businesses. This is the very reason that Congress required small business consultation in advance under SBREFA, as discussed in more detail below.
Moreover, these increased regulatory burdens from EPA's new standards will have the most significant impact on smaller trucking companies. They have an especially difficult time dealing with increased burdens that impact such fundamental and critical areas of their business, and are particularly less able to absorb higher operating costs such as those incurred from more expensive and reformulated diesel fuel, and operational controls. The companies are also less sophisticated and have fewer assets from which to absorb fluctuations in the economy and to ultimately fund their compliance with new regulatory mandates. Finally, these companies are less able to invest in new and cleaner technology because they teeter perilously on basic economic survival, and one minor economic recession has the potential to plunge these small businesses out of business.
Under the 1990 amendments, states are now implementing comprehensive and costly programs to reach attainment of the current standards. These ongoing efforts impose an increasing economic burden on small businesses, including ATA's members. The proposed new ozone and particulate matter standards will not only disrupt these ongoing efforts, but will impose expensive new requirements, the burden of which will disproportionately fall on small businesses. In the past, pollution control efforts have focused primarily on the largest and most cost-effective sources of emissions reductions. As these ''easy fixes'' have been exhausted, the additional emissions reductions needed to meet the current, and especially the proposed new standards, will increasingly focus on sources that are smaller and more expensive to control. While small businesses are already staggering under the burdens of meeting the current standards, they can be expected to bear a growing and disproportionate share of the costs of the new standards. SBREFA was specifically intended to reverse this unfortunate trend in which ''small businesses bear a disproportionate share of regulatory costs and burdens.'' Pub. L. No. 104–121, 202(2).
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To wit, EPA's screening analysis of the particulate matter standard identified 51 industry SIC codes with small businesses that would be ''significantly'' affected by the proposed standards. EPA therefore concluded that there may be . . . potentially significant impacts on small establishments . . . in 15 to 25 percent of all industries.'' Particulate Matter RIA at 8–17. Thus, EPA concedes that 15 to 25 percent of all small businesses will be ''directly'' and ''significantly'' impacted by the proposed standards—a conclusion that cannot be reconciled with the Agency's legal position that the proposed standards will not have a significant impact on a substantial number of small businesses.
However, the screening analysis of the impact on small business contains serious errors, such as using a 100-employee definition of small businesses that does not comport with the definitions used by the Small Business Administration and incorporated into the RFA and SBREFA. (For example, the trucking industry small business definition is based on annual revenue; 61 Fed. Reg at 3291). The predicted number of small businesses significantly impacted by the proposed rules would have been much higher if EPA had used the proper definition of small businesses.
C. EPA has Systematically Excluded Adequate Input From Small Business in Various Forums That are Integral to Implementation of New Clean Air Standards
In addition to the failure of EPA to comply with the SBREFA process outlined above, EPA has systematically failed to incorporate the views of small businesses—particularly small transportation companies—in EPA's primary sanctioned forum dedicated to advising the Agency on implementation strategies for clean air standards—the Federal Advisory Subcommittee for Ozone, PM and Regional Haze Implementation (''FACA''), organized in 1995 by EPA at the direction of the Clean Air Act Advisory Committee. The FACA Subcommittee has been the primary advisor to EPA on the implementation strategies that may be employed to meet existing and revised NAAQS.
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EPA initially selected 58 FACA members representing a variety of interests, including representatives from environmental organizations, academia, health, government, and the business community, but only 2 of the 58 were to represent the views of ''small business.'' These two small business entities did not adequately represent the views of even a small minority of small businesses; one panelist represents the printing industry, and the other a small manufacturer of hearth products. These sectors are not even partially representative or reflective of industry sectors likely to be broadly affected by many of the control strategies that would be imposed in the face of a more stringent standard, most notably a glaring absence of transportation users input into the process.
Until the recent addition of ATA and a number of other groups to the FACA Subcommittee in response to our repeated requests, the previous 12 months of the Subcommittee's work and the balance of participants was selective and biased, being preferential toward larger business entities and environmental groups, while insensitive to small businesses and the transportation sector. This recent change does not solve the earlier bias and finally, given EPA's plan to dissolve the FACA Ozone, PM and Regional Haze Subcommittee on or around December 31, 1997, our ability to meaningfully affect any implementation strategies or guidance documents entering the process at this stage is greatly reduced.
D. EPA's Post-Hoc Small Business ''Paneloid'' Does Not Satisfy the Requirements of SBREFA
In between the time of proposal of the standards (November 27, 1996) and their July 18, 1997 promulgation, EPA proceeded to hastily assemble a small business group in a process that EPA described as ''paneloid,'' referring to EPA's interpretation that it was not a SBREFA panel, but only a ''SBREFA-like'' panel. Unfortunately, this ''paneloid'' process, no matter how intentioned, will never repair the Agency's failure to comply with the letter and spirit of SBREFA.
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EPA's efforts to rectify its failures in small business consideration through the formulation of a ''paneloid'' makes a mockery of the SBREFA provisions and Congress' intent in enacting them. EPA's paneloid and review panel are thus shams rather than a genuine attempt at fulfilling Congress' purpose. In addition to the substance (or lack thereof) of EPA's actions, another critical flaw is the timing of the Agency's actions. Despite repeated requests from ATA and others that EPA convene a panel prior to finalizing the proposed rule, EPA only began going through the motions after the proposed rule had been finalized and published.
By requiring agencies to consult with small businesses at the outset in the development of regulations (see e.g. 142 Cong. Rec S3242, S3245 (daily ed. March 29, 1996) (SBREFA Joint Managers Statement of Legislative History and Congressional Intent). Congress understood that once a proposed regulation had been drafted and published, the opportunities for small businesses to influence the design, scope and details of a regulation are greatly reduced. Many of the critical decisions will have already been made, and even though the agency has the authority to revise the proposals in response to public comment, the practical reality is that there is much less room for flexibility after a proposed regulation has been drafted and published than before.
Timing was also critical for the report of the review panel established to consider comments and issue recommendations. The intent of Congress was that the review panel's report would be placed in the docket well in advance of the close of the comment period to provide sufficient time for other parties to comment on the report. See, e.g., 142 Cong. Rec. S3242, S3245 (daily ed. March 29, 1996) (SBREFA-Joint Managers Statement of Legislative History and Congressional Intent) (''the review panel's report and related rule making information will be placed in the rulemaking record in a timely fashion so that others who are interested in the proposed rule may have an opportunity to review that information and submit their own responses for the record before the close of the agency's public comment period for the proposed rule.'') (emphasis added).(see footnote 11) As of July 25, EPA has not entered the SBREFA Federal ''Paneloid'' report into the Docket, and according to EPA staff, has no plans to until the other implementation rules are proposed by EPA. Clearly this arrangement precludes any opportunity for small business to respond to the report.
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In short, EPA's post hoc ''paneloid'' is both untimely and manifestly a ploy that falls far short of meeting the requirements of SBREFA. The proposed standards were developed and published with essentially no input from small businesses, even though the proposed standards are likely to be the most burdensome regulations for small businesses ever adopted by a federal regulatory agency. This could hardly have been what Congress intended when it enacted SBREFA. The chronology and description of these events included in Exhibit 6 demonstrates that EPA failed entirely to comply with either the letter or the spirit of the procedural and substantive requirements of SBREFA.
ATA and other small businesses could very easily have provided valuable and timely advice to the Agency in selecting less burdensome alternatives consistent with the Clean Air Act objectives, yet were denied that opportunity. Some possible alternatives that would have been fruitful starting points for the SBREFA consultations would have included maintenance of the current standards, setting the standards at a different level, focusing on peak episodic exposures rather than overall lower ambient levels, and other alternatives.
The burdens of reducing ozone or particulate levels from the least stringent alternative consistent with the statute to the more stringent alternatives proposed by EPA will fall disproportionately on small businesses. This is because pollution reductions from large sources are usually more technically and politically feasible, and therefore are generally exhausted first before addressing small sources, which tend to be small businesses. As the standards get ratcheted tighter and tighter, small business will therefore absorb an increasing proportion of the costs for each successive increment, as States must increasingly rely on small business inventories to achieve the more stringent standards.
IV. CONCLUSIONS
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Now that the standards are finalized and will soon be effective, states have a mandatory duty to implement them in accordance with strict statutory deadlines and investment decisions are already being made based on these standards. Regrettably, it is too late for small businesses to suggest at that time that less burdensome NAAQS could have been fashioned, or for agencies to consider alternatives to the proposed standards that would result in less burdensome impacts on small businesses.
Congress envisioned SBREFA as ''a vehicle for effective and early participation by small businesses in the Federal regulatory process'' and SBREFA panels as ''help[ing] to reduce counterproductive, unreasonable Federal regulations at the same time they are helping to foster the non-adversarial, cooperative relationships that most agree are long overdue between small businesses and Federal agencies;'' 142 Cong. Rec. S2157 (daily ed. March 15, 1996) (Committee Legislative History for S.942) (emphasis added).
Unfortunately, EPA had a different vision for SBREFA in its rush to enact new clean air standards based on incomplete or questionable science but with considerable policy discretion.
Because the analytic, consultative, and substantive requirements of SBREFA and the RFA were not applied to the new ozone and particulate matter NAAQS, unless EPA initiates a fresh new process, there will never be an opportunity to fully consider or minimize the enormous impacts of those rules on small businesses. Thus, it is perverse, to put it mildly, that the new clean air standards, likely to be among the most burdensome regulations for small businesses ever enacted, were to evade Congress aims in SBREFA and the RFA simply because of EPA's incorrect characterization of the parties affected by the proposed standards and their false interpretation of their requirements.
EPA's proper compliance with SBREFA would hardly have been a ''pointless exercise'' as EPA contended. See Environment Reporter, Nov. 22, 1996, at 1539 (Exhibit 7). EPA's deliberate refusal to implement the SBREFA procedures in a faithful and timely manner has prevented the full review of less burdensome alternatives intended by Congress. As such, EPA's violations of SBREFA have irrevocably prejudiced and invalidated the outcome of this rulemaking on the recently issued standards.
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We therefore urge that the new standards be rescinded, and that EPA initiate a new rule development process that incorporates each of the proper procedures and elements of SBREFA, the Regulatory Flexibility Analysis and other similar requirements.
Thank you Chairman Hyde and members of the Subcommittee for this opportunity. We would be happy to respond promptly to any questions that you may have.
EXHIBIT 1
| American Trucking Associations, |
| Alexandria, VA, August 16, 1996. |
Ms. MARY NICHOLS,
Assistant Administrator, Air and Radiation,
U.S. Environmental Protection Agency,
Washington, DC 20460.
DEAR MARY: It was good seeing you in Los Angeles on July 19 for the public consultation meeting on the proposed revisions to the heavy-duty diesel engine standard. I wanted to follow-up with you on two issues, one related to that meeting and another relating to the NAAQS revisions.
First, during our discussions after the conclusion of the afternoon session, I expressed my concern about the process of how EPA was addressing in-use diesel emissions, and sought more resources and attention to this matter. I believe that you indicated that the in-use diesel emissions inspection issues may be brought into the FACA committee process. I would appreciate learning more about your intentions in this area as soon as possible.
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Second, I wanted to express the deep concern of the trucking industry about the proposed revisions on the national ambient air quality standards for particulate matter and ozone. Although, I was unable to participate in the meeting last Friday that you had with representatives from the manufacturing industry, I can assure you that ATA and the trucking industry fully endorse the comments and concerns expressed by this group.
As you may recall, 70% of all trucking companies in America own 6 or fewer trucks, making trucking an industry that is predominately small business, and one that would be particularly impacted by revisions to these standards. This is a particular concern now as we support the 2004 new heavy-duty engine emissions standards, and makes us wonder whether we should oppose the standard because of the uncertainty with the impending NAAQS revision.
As air quality is improving, we firmly believe that the current ozone standard is protective of public health, and that the changes being proposed would result in severe economic impacts with insignificant improvements in air quality. We will strongly advocate these views under the Small Business Regulatory Fairness Act review process.
In terms of the particulate standard I think it is clear that the trucking industry and ATA have been the leading voice for scientific investigation of all aspects of in-use emissions control strategies from heavy-duty diesel trucks and buses, but frankly to little avail. Yet now, before we even have reasonable scientific knowledge, we may be confronting a more stringent NAAQS particulate standard. In our view, EPA has made very minimal effort to answer a wide range of scientific uncertainties in the inventory and also the control options for reducing particulate matter from on-highway diesel engines. EPA's own panel of scientists on the Clean Air Advisory Committee urged you to immediately implement a targeted research program to address the unanswered questions and uncertainties. We fully agree, and we will continue to be a constructive participant in the public comment and review process and in helping to evaluate costs and benefits of any revisions to the air quality standards.
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Thanks in advance for your consideration of these issues. I especially look forward to hearing from you about your plans to bring the heavy-duty diesel I/M issue into the FACA process.
Sincerely,
| Allen R. Schaeffer, Vice President, |
| Environmental Affairs. |
cc: John Collins
Sr. Vice President,
Government Affairs
ATA Environmental Policy Committee.
EXHIBIT 2
Mr. JERE W. GLOVER,
Chief Counsel for Advocacy,
Small Business Administration,
Washington, DC.
DEAR MR. GLOVER: We are writing regarding a matter that could have serious and detrimental implications for America's transportation interests. The Environmental Protection Agency (EPA) is considering a revised national ambient air quality standard (NAAQS) for ozone and particulate matters (PM). Revising the standards, to make them more stringent, would dramatically increase the number of nonattainment areas at an enormous cost and could place significant constraints on transportation and economic growth.
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Transportation represents 17% of America's economy. It's role to the quality of life we enjoy today, in promoting economic development and making this Nation the world's economic leader is essential and unequaled. The small business component of transportation related industries is significant, and tightening the standards would adversely affect those industries that keep America moving. For example, 70 percent of all Interstate Motor Carriers operate 6 or fewer trucks. The vast majority of businesses that are dependent on trucks or vehicles to deliver products and services are small businesses. The vast majority of the automotive and heavy duty truck service industry, parts manufacturers, distributors of replacement parts, installers and service providers are small business entities. There are an excess of 500,000 small businesses involved in the automotive aftermarket alone. Naturally, members of these industries find this potential development very disheartening.
We believe that substantial progress has been made in reducing ozone and particulate matter emissions. The air is getting cleaner and will continue to do so as benefits are derived from existing controls and recently initiated Clean Air Act measures. The transportation community has made significant contributions in reaching these goals and will continue to do so. Furthermore, the construction and maintenance of our nation's highway system allows for the free flow of traffic that minimizes exhaust emissions but depends on equipment that will itself face further emissions controls or curtailed operations to comply with stricter NAAQS for ozone and PM. We expect to remain a constructive participant in the public comment process and in helping to evaluate costs and benefits of the new mandates that would be imposed upon us. Some of the impediments that we currently face in ozone nonattainment areas include: state transportation conformity plans, user fees on parking facilities, various efforts to reduce the number of miles we can travel each year, how, where and when we can travel, and enhanced vehicle inspection programs. New ozone and particulate matter standards would seriously expand current regulations and impose new regulations at a significant cost.
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The President recently signed the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). This Act gives the Small Business Administration an important opportunity to review EPA's proposed recommendations prior to the publication of the proposed rule. Because of the considerable impact EPA's actions will have on the small business community we urge you to participate in this rulemaking. We believe SBREFA applies to the setting of ozone and the particulate matter standards. We ask you to voice your concern with the EPA's actions, and urge you to evaluate all appropriate regulatory options and alternatives including retaining the current standards and whether air quality benefits of changing ozone and PM standards would be commensurate with the costs.
If we may provide you with any additional information, please give us a call Thank you for your consideration of this issue.
Sincerely yours,
| AAA—Mid Atlantic region. |
| Associated General Contractors of America. |
| American Portland Cement Alliance. |
| American Trucking Associations. |
| Automotive Warehouse and Distributors Association. |
| Construction Industry Manufacturers Association. |
| National Association of Manufacturers. |
| National Asphalt Pavement Association. |
| National Private Truck Council. |
| Service Station Dealers Association. |
| Truck Renting and Leasing Association. |
cc: The Hon. Mary Nichols,
Assistant Administrator for Air and Radiation,
Environmental Protection Agency,
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Washington, DC 20460.
Mr. Robert Damus,
General Counsel,
Office of Management and Budget,
Old Executive Office Building,
Washington, DC 20503.
The Hon. Frederico PenAE0a,
Secretary of Transportation,
U.S. Department of Transportation,
Washington, DC 20590.
EXHIBIT 3
| ATA Litigation Center, |
| Alexandria, VA, October 15, 1996. |
HON. CAROL M. BROWNER, Administrator,
U.S. Environmental Protection Agency,
Washington, D.C.
DEAR ADMINISTRATOR BROWNER: I am writing on behalf of the American Trucking Associations, Inc. (ATA) and the many small businesses it represents to express our concern that time is rapidly running out for EPA to comply with the Small Business Regulatory Enforcement Fairness Act of 1996 in the Agency's upcoming rulemaking to review the National Ambient Air Quality Standards (NAAQS) for both ozone and particulate matter. EPA is currently under court order to issue a proposed rule for particulate matter by November 29, 1996.
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Summary. To meet its statutory duties under the Clean Air Act, EPA is about to embark on major rulemakings to review and establish ozone and particulate matter ambient air standards applying into the next century, with implementation-phase proposals in both instances to be issued once the standards themselves are set. By court order, the Agency is required to issue a proposed standard-setting rule for particulate matter by November 29,1996, with the final rule to be issued next June. The ozone standard-setting will be conducted under the same schedule.
The Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. (''SBREFA'' or ''the Regulatory Fairness Act''), mandates that EPA (1) issue an initial regulatory flexibility analysis of the proposed rule, and (2) convene an advocacy review panel to collect small business input and make findings on the determinations reached in EPA's initial ''regulatory flexibility'' submission, before the rulemaking can proceed. Under the new law, EPA's refusal to comply with these requirements is judicially reviewable.
If EPA conducts the rulemakings without complying with these requirements, the nation's small businesses will be denied an effective voice in developing NAAQS that will determine the controls needed to achieve Clean Air Act compliance for years to come and that carry with them, by definition, very real economic impacts for the regulated community. Moreover, any rule EPA proceeds to issue in non-compliance with SBREFA will face costly, unnecessary legal challenges that may seriously delay its ultimate implementation.
Factual Overview. ATA is the national trade association of the trucking industry, a major component of America's economy and one largely made up of small businesses. Trucking generated $362 billion in gross revenues in 1994—78 percent of the nation's freight bill and 5 percent of the gross domestic product. Some 8.9 million individuals—one out of every 14 civilian working Americans—are employed in jobs that relate to trucking activity.(see footnote 12) According to recent U.S. Department of Transportation statistics, of the nearly 360,000 interstate motor carriers registered with the Department's Office of Motor Carriers, 82 percent operate 6 or fewer trucks.(see footnote 13) Of ATA's nearly 2,600 direct motor carrier members, 87% are ''small business entities'' (annual revenues of less than $18.5 million) under SBREFA's revenue-based criteria. 13 C.F.R. 121.201. In addition, a large number of companies in the heavy-duty truck service industry, including dealers, suppliers, and truck refueling stations, are also small-business entities.
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Trucking and its related industries have made significant contributions to the nation's achievement of cleaner air over the last decade, and will continue to do so. Burdens shouldered by the trucking industry alone include more stringent engine emission standards, use of cleaner diesel fuel, vehicle emissions inspection programs, in-use emissions controls, and clean-fuel fleet programs. These burdens have been far greater than those borne by transportation companies in the rail and marine industries, which remain essentially unregulated as to air emissions today.
A further tightening of the ozone and particulate matter NAAQS will be very costly for the nation's small businesses, particularly in sectors such as trucking. If adopted, for example, the 8-hour (0.085 ppm) ozone standard—one of the standards currently being considered by EPA—would cause over 250 areas in the U.S. to be classified as ''non-attainment'' regions, a three-fold increase from the current number of areas. The consequences of such a decision are inescapable: the imposition of additional, broad-based controls which carry economic costs for the regulated community. For example, one study conducted to quantify the costs and emissions reductions to attain a 0.08 ppm 8-hour standard projects cost impacts of $5.5 to $14.1 billion per year for the greater Chicago—Lower Lake Michigan Region alone.(see footnote 14)
The New Law's ''Regulatory, Fairness'' Requirements. SBREFA, which became effective on March 29, 1996, mandates that EPA take two steps at the beginning of every rulemaking process to ensure that small businesses' needs and interests are fully and fairly considered. Congress's command for an ''initial regulatory flexibility analysis'' is explicit:
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Whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis. Such analysis shall describe the impact of the proposed rule on small entities.
5 U.S.C. 603(a) (emphasis added).
The initial analysis must also evaluate feasible alternatives. To that end, section 603(c) provides:
Each initial regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.
5 U.S.C. 603(c).
The Act's directive to convene ''small business advocacy review panels'' is a second, necessary precondition EPA must meet in issuing a proposed rule. Section 609(b) spells out the new law's criteria:
Before publishing the initial regulatory flexibility analysis, the agency must provide the Small Business Administration's Chief Counsel with ''information on the potential impacts of the proposed rule on small entities and the type of small entities that might be affected.'' 5 U.S.C. 609(b)(1).
The Chief Counsel must, within 15 days, identify representatives of affected small businesses ''[to] obtain[ ] advice and recommendations from those individuals about the potential impacts of the proposed rule.'' 5 U.S.C. 609(b)(2).
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The agency must then convene an independent review panel to evaluate material prepared by the agency and ''collect advice and recommendations of each individual small entity representative'' identified in consultation with the Chief Counsel on the findings of the initial regulatory flexibility analysis. 5 U.S.C. 609(b) (3), (4).
Within 60 days, the review panel must report its findings and the comments of the small business representatives and, when warranted, the agency must modify the proposed rule or its initial regulatory flexibility analysis. 5 U.S.C. 609(b) (5), (6).
The new law allows EPA to conduct a rulemaking without completing these steps in only one instance. To do so, the ''head of the agency [must] certif[y] that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.'' 5 U.S.C. 605(b) (emphasis added). In this instance, the facts are clear that such a certification cannot be made.
Immediate EPA Action is Needed. EPA must act now to comply with SBREFA's requirements in the face of the impending deadline confronting the Agency to complete its NAAQS rulemaking. The Act's mandates are straightforward, and there is no authority under the case law to support a claim that EPA is not legally bound to follow SBREFA's command.
We have carefully examined court decisions under SBREFA and its statutory predecessor, the Regulatory Flexibility Act of 1980. The only rulings in this area stand for the very different, common sense proposition that an agency has ''no obligation to conduct a small entity impact analysis of effects on entities which it does not regulate.'' United Distribution Companies v. F.E.R.C., 88 F.3d 1105, 1170 (D.C. Cir. 1996) (emphasis added). Accord Mid-Tex Electric Cooperative, Inc. v. F.E.R.C., 773 F. 2d 327, 342 (D.C. Cir. 1985) (no regulatory flexibility impact analysis required when agency determines that rule will have no impact on entities ''subject to the requirements of the rule.'').
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That manifestly is not the case here, where EPA has broad jurisdiction over both the regulatory issues in question and the small businesses affected by them.
The upcoming NAAQS rulemaking carries very real economic consequences for small businesses. The new ozone and particulate matter standards chosen will dictate all other aspects of this major regulatory initiative, affecting critical judgments about costs, technology control alternatives, and the burdens that must be borne by the regulated community. A comprehensive evaluation of these issues now—in the standard-setting phase—is even more imperative given EPA's own recognized uncertainty that any change in the current ozone standard can be justified on public health grounds. As the Clean Air Scientific Advisory Committee of EPA's Science Board concluded, ''no 'bright line' [ ] distinguishes any of the proposed [ozone] standards . . . as being significantly more protective of public health.(see footnote 15) At the same time, so lacking in scientific support is the current understanding of an association between particulate matter and health effects that the Advisory Committee has called on EPA to Immediately implement a targeted research program to address these unanswered questions and uncertainties.''(see footnote 16)
ATA and representatives of affected small businesses in other industries stand ready to move forward at once with SBREFA's requirement for an advocacy review panel. The Chief Counsel of Advocacy of the Small Business Administration already has in hand the information needed to identify representatives to provide necessary input on the potential economic impacts of a proposed revision to the ozone and particulate matter NAAQS. And, in fulfillment of its responsibilities under Executive Order No. 12866, EPA should have at hand the collected information needed to complete a preliminary regulatory flexibility analysis of the proposed rule. If EPA acts swiftly to convene a review panel and issue its analysis, the rulemaking can go forward without need for delay.
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Answering a recent Congressional inquiry, EPA embraced SBREFA's mandate to consider the problems and needs facing small businesses, acknowledging that ''SBREFA assigns significant new responsibilities to Federal agencies and requires enhanced stakeholder involvement in regulatory development.'' Letter from David Gardiner, Assistant Administrator, EPA, to The Honorable Christopher S. Bond, Chairman, U.S. Senate Committee on Small Business (dated July 16, 1996), at 3. In that statement, EPA also affirmed its commitment to treat any impact, no matter how minor, as ''significant'' and any number, no matter how small, as ''substantial,'' as a matter of its own considered policy and practice in conducting regulatory flexibility analyses. Id. at 2–3 (emphasis in original).
Conclusion. This matter is critical to the nation's thousands of motor carriers and other small businesses. EPA should therefore heed the letter and spirit of SBREFA's new ''regulatory fairness'' laws by immediately (1) issuing an ''initial regulatory flexibility analysis'' and (2) convening a ''small business advocacy review panel'' for its upcoming ozone and particulate matter NAAQS rulemaking proposal.
Respectfully yours,
| Julie A. Waddell, |
| Associate Chief Counsel. |
cc: Hon. Christopher (Kit) S. Bond,
Chairman U.S. Senate Committee on Small Business.
Hon. Don Nickles,
U.S. Senate.
Hon. Tom DeLay,
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U.S. House of Representatives.
Hon. Thomas W. Ewing,
U.S. House of Representatives.
Robert Damus, Esq.,
General Counsel, Office of Management and Budget.
Jere W. Glover, Esq.,
Chief Counsel for Advocacy,
U.S. Small Business Administration.
Thomas J. Donohue,
President and Chief Executive Officer, ATA.
Allen R. Schaeffer,
Vice President, Environmental Affairs, ATA.
Allen I. Koenig,
Chairman, ATA Small Carrier Advisory Committee.
EXHIBIT 4
Ms. Julie A. Waddell,
ATA Litigation Center,
Alexandria, VA.
DEAR MS. WADDELL: This is in response to your letter of October 15, 1996 to Administrator Browner. In your letter, you expressed concern that potential revisions to the national ambient air quality standards (NAAQS) for ozone (03) and particulate matter (PM) under the Clean Air Act (Act) may impact the small business community, including members of the American Trucking Association (ATA). You also noted that time was running out for the Environmental Protection Agency (EPA) to comply with the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) given the court order to issue the PM NAAQS proposal.
Since passage of SBREFA, EPA has undertaken a careful assessment of its ongoing regulatory activities, including those related to the O3 and PM NAAQS, to ensure that the requirements of the Regulatory Flexibility Act (RFA), as amended by SBREFA, are met. As you know, the amended RFA requires, among other things, that EPA convene a Small Business Advocacy Review Panel for any rule for which the Agency is required to prepare an initial regulatory flexibility analysis (IRFA) under RFA section 603. The Agency must prepare an IRFA for any rule subject to notice-and-comment rulemaking requirements, unless the Agency certifies that the rule ''will not, if promulgated, have a significant economic impact on a substantial number of small entities.''
In the case of the NAAQS-related activities, EPA has examined the feasibility of preparing IRFA's for proposals to revise the O3 and PM NAAQS. The RFA provision governing the content of IRFA's requires agencies to identify the types and estimate the numbers of small entities ''to which the proposed rule will apply'' (RFA section 603(b)(4). Similarly, it requires a description of the ''projected reporting, record keeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement'' (RFA section 603(b)(4) (emphasis added)). At the heart of the IRFA is the requirement that agencies identify ''significant regulatory alternatives'' that would ''minimize any significant economic impact of the proposed rule on small entities'' (RFA section 603(c)). Among the types of alternatives agencies are to consider are the establishment of different ''compliance or reporting requirements'' for small entities and exempting small entities ''from coverage of the rule, or any part thereof'' (RFA section 603(c) (1) and (4)).
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As you know, new or revised NAAQS are based on the air quality criteria issued under section 108 of the Act, and set at levels sufficient to protect the public health (with an adequate margin of safety) and public welfare from the adverse effects of the pollutant of concern. Once a NAAQS is set or revised, the States are primarily responsible for ensuring attainment and maintenance of it. Under section 110 and part D of title I of the Act, States develop State implementation plans (SIP's) containing control measures as needed to attain and maintain a level of air quality that complies with the NAAQS.
Under this framework, the potential revisions of the O3 and PM NAAQS, if adopted, would not establish any requirements applicable to small entities. Instead, the standards would establish levels of air quality that States (or in case of State default, the Federal government) would achieve by adopting plans containing specific control measures for that purpose. State (or Federal) regulations implementing the NAAQS may establish requirements applicable to small entities, but the NAAQS itself does not.
The NAAQS rulemakings are thus not susceptible to regulatory flexibility analysis as prescribed by the amended RFA. They will establish no requirements applicable to small entities and accordingly afford no opportunity for the Agency to exercise its discretion to identify and possibly adopt ''significant regulatory alternatives'' tailored to fit the size and resources of small entities. Indeed, by their nature as nationally applicable air quality standards, NAAQS do not and cannot differentiate between sources based on their size.
The findings and purpose section of the RFA confirm that regulatory flexibility analyses are to identify and address the impacts of rules on small entities subject to the rule. ''It is the purpose of this Act to establish as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations and governmental jurisdictions subject to regulation'' (PL 96–354, section 2(b) (emphasis added)). The United States Court of Appeals for the D.C. Circuit recently affirmed an earlier decision holding that the impacts of concern under the RFA are the impacts of a rule on the small entities subject to the requirements of the rule. United Distribution Companies v. FERC, 88 F.3d 1105 1170 (D.C. Cir. 1996) (''[N]o [regulatory flexibility] analysis is necessary when an agency determines 'that the rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule,' '' citing Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis added by United Distribution court)).
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In light of the RFA and the applicable case law, EPA believes it may appropriately certify that the O3 and PM NAAQS rulemaking actions will not, if promulgated, have a significant economic impact on a substantial number of small entities within the meaning of the RFA. The requirement to convene a review panel under RFA section 609(b) is thus inapplicable to these actions. Moreover, since any panel convened under RFA section 609(b) is required to address the same issues as an initial regulatory flexibility analysis, conducting an RFA panel for the NAAQS rulemakings would present the same issues of feasibility as conducting the initial regulatory flexibility analysis itself.
The Agency is nonetheless interested in assessing the potential impact on small entities of implementing the potential revisions of the O3 and PM NAAQS. The Agency has accordingly conducted more general analyses of the potential cost impacts on small entities of control measures that States might adopt to attain and maintain potential revised O3 and PM NAAQS, and has included the analyses in the Regulatory Impact Analyses (RIA) that will accompany the proposal notices. These analyses examine industry-wide cost and economic impacts for those sectors likely to be affected when possible revisions to the O3 and PM NAAQS are implemented by States. As part of the draft RIAs, EPA has analyzed various industries for the existence of small entities to ascertain whether small entities within a given industry category are likely to be affected and whether small entities will be differentially affected when compared to the industry category as a whole. This information will enable potentially affected small entities to participate more effectively in any revision of SIPs for the States in which they are located.
The Agency is also committed to ensuring that small entities have ample opportunity to provide their comments and advice on the proposed standards themselves. Although a panel meeting the requirements of the RFA is neither required nor practicable for the reasons explained above, EPA plans to conduct a panel modelled on the RFA panel provisions following proposal of the new NAAQS for ozone and PM. Officials from EPA and the Office of Chief Counsel for Advocacy of the Small Business Administration will meet with representatives of small entities potentially affected by the potential revisions of the NAAQS and prepare a report. That report will be part of the record considered by the Agency in reaching a final decision on the NAAQS.
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In addition, the Agency has established a Subcommittee of the Clean Air Act Advisory Committee comprised of representatives from environmental groups, industries, State and local government agencies, and others to assist EPA in developing new strategies States (or the Federal government) may adopt for implementing possible new O3 and PM standards. At this time, we are in the process of augmenting the Subcommittee's membership by adding additional representatives from the small business community. The interest that the ATA has expressed in participating in this process will be considered when selecting additional representatives.
We appreciate this opportunity to be of service and trust that this information will be helpful to you.
Sincerely yours,
| Mary D. Nichols, |
| Assistant Administrator For Air and Radiation. |
| Jonathan Z. Cannon, |
| General Counsel. |
cc: Hon. Christopher S. Bond,
Chairman U.S. Senate Committee on Small Business.
Hon. Don Nickles,
U.S. Senate.
Hon. Tom DeLay,
U.S. House of Representatives.
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Hon. Thomas W. Ewing,
U.S. House of Representatives.
Robert Damus, Esq.,
General Counsel, Office of Management and Budget.
Jere W. Glover, Esq.,
Chief Counsel for Advocacy,
U.S. Small Business Administration.
Thomas J. Donohue,
President and Chief Executive Officer, ATA.
Allen R. Schaeffer,
Vice President, Environmental Affairs, ATA.
Allen I. Koenig,
Chairman, ATA Small Carrier Advisory Committee.
EXHIBIT 5
| U.S. Department of Transportation, |
| Office of the Secretary of Transportation, |
| Washington, DC, November 20, 1996. |
Hon. SALLY KATZEN, Administrator,
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Office of Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC.
DEAR MS. KATZEN: The Department of Transportation appreciates the opportunity your office has given for interagency review of the EPA's proposed revisions to the national ambient air quality standards (NAAQS) for particulate matter and ozone, and related proposals. While there is an extremely tight time frame for decision on the proposals, I appreciate the fair and rigorous effort you are making to address concerns raised by the proposals. EPA, too has worked to conduct an open process for review of the NAAQS. The Clean Air Scientific Advisory Committee has conducted extensive scientific review, and EPA staff papers have addressed many issues. Even so, there are substantial uncertainties and numerous subjective judgments required about the health effects and the levels and form of the proposed standards.
We recognize that the Clean Air Act requires EPA to set standards based on protecting public health. Nevertheless, we have concerns about the considerable uncertainties and controversies associated with the proposed new standards and their impacts. These make it extremely difficult to evaluate comprehensively the potential impacts of such changes. Our major concerns are outlined below.
The costs and benefits of such a change will bring a significantly larger proportion of the population and more jurisdictions under Federal oversight and procedural burdens. According to EPA estimates, the number of counties failing to meet the standards will grow from 106 under the current ozone standard to 355 under the proposal, affecting an additional 48 million people. Similarly the number of counties failing to meet the particulate matter standards would more than quadruple, rising from 41 to 168, and the affected population will grow by 46 million under the new standard. Imposition of new planning requirements on these areas to meet the new standards will almost certainly impose significant administrative burdens on relatively inexperienced jurisdictions and will seriously complicate the requirements for many existing non-attainment areas. Control measures needed to meet the standards could have significant economic impacts on industry, including previously unregulated businesses, and require lifestyle changes by a significant part of the U.S. population.
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The social and economic disruption that the proposed changes will cause are not understood. The costs associated with the standard changes, both in terms of cost of compliance as well as economic impacts, will likely be large. Even though EPA is statutorily prohibited from considering costs in setting the standards, it is critical that the Administration understand the implications associated with such costs up front. Certainly this issue will generate serious Congressional concern.
The change disrupts the existing planning process for meeting current air quality standards. Development and implementation of state implementation plans, or SIPs, has been complex and difficult even under the existing requirements. Many elements of the current required SIPs have yet to be approved by EPA and in some cases have not been developed. State and local officials will have to continue efforts to meet existing requirements at the same time they must begin a new planning effort to develop strategies for meeting the new standards over a much larger geographic area. This will be extremely confusing for state and local agencies and the public at large.
There are major uncertainties about sources, current levels and control strategies for meeting a new fine particle (PM–2.5). The Federal Advisory Committee supporting development of the new standards acknowledged that there is a lack of PM–2.5 data, and that data gathering was the most critical element in setting the new standards. Little is known of the source of PM–2.5 outside of limited, isolated studies. Further, State and local officials are currently unable to measure or effectively estimate either the emissions levels or the ambient concentrations of fine particles. so little is known about PM–2.5 that EPA has had to extrapolate data from existing information on PM–10 to estimate the sources and levels of emissions, and the areas likely to be affected. Finally, little is known about effective mitigation strategies to control fine particles. for this new standard, the source and implementation issues are not mere details but rather will entail a whole new planning regime to address them. It appears incomprehensible that the Administration would commit to a new set of standards and new efforts to meet such standards without much greater understanding of the problem and its solutions.
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The impacts of Clean Air Act sanctions on highway funding, as well as on stationary sources, could affect much larger areas, going well beyond those envisioned when the 1990 amendments were passed. Under the Act, restrictions on construction of new stationary sources and withholding of federal transportation funding are the tools to enforce air quality planning requirements. If nonattainment areas have difficulty in developing effective strategies in meeting the new standards, sanctions could be applied to larger areas. Requirements that federal actions and funding be consistent with air quality plans could also seriously disrupt federal and federally assisted projects if areas are unable to meet the ''conformity'' test. the enforcement consequences of these mandates would thus likely be profound. Better estimates of the impacts on transportation programs and the economy in general are necessary before the Administration commits to far more stringent standards.
In view of the uncertainties and potential profound impacts, serious consideration should be given to better understanding the implications before new standards are proposed. There is a dearth of information on PM–2.5, and it is premature to go forward on faith that implementation strategies will be easily developed. Even though there may be reasons for linking the ozone and particulate standards revisions, review of the ozone standard does not have to be accomplished until March of 1998. While we urge that efforts continue to gather additional monitoring information to better define the extent of the problems, their implications, and potential solutions, we believe that the overall public interest would be better served by proceeding more deliberately. I hope these comments are helpful.
Sincerely,
| Frank E. Kruesi, |
| Assistant Secretary for Transportation Policy. |
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EXHIBIT 6
A CHRONOLOGY OF EPA'S DISREGARD FOR THE REQUIREMENTS OF SBREFA IN THE PROPOSAL AND PROMULGATION OF NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE AND PARTICULATE MATTER.
ATA first expressed in writing its concerns about EPA's plans to revise the ozone and particulate matter standards in August 1996, three months prior to publication of the proposed standards. After setting forth the major difficulties that would be presented by revising the standards, ATA notified EPA that it ''will strongly advocate these views under the Small Business Regulatory Fairness Act review process.'' Letter from A. Schaeffer, ATA, to M. Nichols, EPA, of Aug. 16, 1996, (Exhibit 6). Later that same month, a group of consumer and business associations involved in transportation, including ATA, sent a letter to the Chief Counsel for Advocacy of the SBA, with a copy to EPA Assistant Administrator Nichols, requesting compliance with the SBREFA requirements for the NAAQS proposal and evaluation ''of all appropriate regulatory options and alternatives including retaining the current standards and whether air quality benefits of changing ozone and PM standards would be commensurate with the costs.'' Letter from AAA-Mid Atlantic Region et. al., to J. Glover, SBA, of Aug. 30, 1996 (Exhibit 7).
In the early fall of 1996, EPA indicated that it was preparing to comply with the requirements of SBREFA, including the convening of the small business advocacy review panel required by section 609(b). On September 25, 1996, ATA sent another letter to the SBA reaffirming its interest in participating on SBREFA panels and specifically requesting ''appointment to the panels that will be assembled to review EPA's upcoming revisions to the National Ambient Air Quality Revisions (NAAQS) for ozone and particulate matter, both the NAAQS revision panel on the standard setting process and the implementation panel.'' Letter from A. Schaeffer, ATA, to K. Bromberg, SBA, of Sept. 25, 1996.
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By October 1996, EPA had made no obvious progress in implementing the SBREFA requirements. Both Congress and ATA sent letters reminding EPA of its obligations under SBREFA and urgently requested EPA to comply with those requirements prior to publication of the NAAQS proposals, as required by SBREFA. Letter from Senator J. Inhofe et al to Administrator C. Browner of Oct. 9, 1996; Letter from J. Waddell, ATA, to Administrator C. Browner, EPA, of Oct. 15, 1996. Noting ''that time is rapidly running out'' for EPA to comply with the SBREFA pre-proposal requirements, the ATA letter alerted EPA that ''immediate EPA action is needed.'' ATA offered that ''ATA and representatives of affected small businesses in other industries stand ready to move forward at once with SBREFA's requirement for an advocacy review panel. . . . If EPA acts swiftly to convene a review panel and issue its analysis, the rulemaking can go forward without the need for delay.'' Despite this urgent warning, EPA did not respond to ATA's letter for over one and one-half months, the critical period during which EPA's proposal was finalized.
On November 18, 1996, the Chief Counsel of the SBA delivered a letter to EPA Administrator Browner criticizing EPA's finding that the proposed ozone and particulate standards will not have a significant economic impact on a substantial number of small entities. Letter from J. Glover, SBA, to Administrator C. Browner, EPA, of Nov. 18, 1996. The SBA stated that ''[considering the large economic impacts suggested by EPA's own analysis that will unquestionably fall on tens of thousands, if not hundreds of thousands of small businesses, this would be a startling proposition to the small business community.'' Id. at 1. The SBA's analysis concluded that EPA's position lacked any plausibility:
[I]n contrast to the regulatory application issues involved in Mid-Tex and United Distribution, small firms obliged to meet control requirements under federally enforceable ozone control provisions that implement the ozone NAAQS are ''subject to the requirements'' of the NAAQS. EPA cannot plausibly maintain that is ''does not regulate'' such entities under the Clean Air Act. The clear words of the RFA indicate that agencies can only avoid the requirements if there is no ''significant economic impact'' on ''small entities [businesses].'' EPA cannot make such a finding here.'' Thus, the regulatory flexibility analysis and the associated SBREFA advocacy panel requirements are mandated for this rulemaking. Id. at 3 (emphasis in original).
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The SBA therefore ''urge[d] the agency to rethink its position, and convene a small business advocacy review panel as required by the new [SBREFA].''
Just one day later, on November 19, 1996, EPA Assistant Administrator Nichols announced in a trade press interview that EPA would not review the impact of the proposed standards on small businesses because it would be a ''pointless exercise.'' Daily Environment Report (BNA), Nov. 20, 1996, at A–30 (Exhibit 5). The EPA Administrator signed the proposed rules on November 27, 1996, and they were published in the Federal Register on December 13, 1996. The preamble of the proposed rules stated that EPA was not required to comply with the requirements of SBREFA or the RFA because the proposed standards would not have ''a significant economic effect on a substantial number of small businesses.'' EPA did indicate that it intends to voluntarily comply with the ''spirit'' of SBREFA, even though the various actions that SBREFA required to occur prior to publication of the proposed rule had not been followed.
Once EPA Administrator Browner signed the proposed rules, Assistant Administrator Nichols and the SBA's Chief Counsel for Advocacy sent a letter to Senator Bond on the same day stating that EPA ''intend[s] to do everything we can to fulfill the spirit of SBREFA on a voluntary basis,'' but only ''after the proposal of new air quality standards for ozone and particulate matter.'' Letter from M. Nichols, EPA, and J. Glover, SBA, to Senator K. Bond, of Nov. 27, 1996. On December 2, 1996, one week after the Administrator had signed the proposed rules, Assistant Administrator Nichols responded to ATA's October 15, 1996 letter by restating the arguments in the preamble of the proposed rule that the proposed standards were not subject to SBREFA. Letter from Assistant Administrator M. Nichols and General Counsel J. Cannon, EPA, to J. Waddell, ATA, of Dec. 2, 1996. The EPA letter added that ''[a]lthough a panel meeting the requirements of the RFA is neither required nor practicable. . . , EPA plans to conduct a panel modeled on the RFA panel provisions following proposal of the new NAAQS for ozone and PM.'' Id. at 3 (emphasis added). Thus, even though it had ATA's letter for over one month prior to the proposal, EPA took no action to convene a panel until after the proposed standards were finalized, and even then described the panel as not being ''practical.''
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On December 16, 1996, ATA received a short letter from EPA and SBA dated December 13 inviting ATA to participate in a discussion on the proposed ozone and particulate matter rules on January 7, 1997. ATA attended the January 7, 1997 meeting, which EPA expressly stated was not being conducted under SBREFA. EPA's appointed Small Business Advocacy Chairperson (Tom Kelly) described the meeting as a ''paneloid.'' The paneloid meeting was attended by EPA staff and representatives of the SBA and Office of Management and Budget, as well as approximately twenty invited representatives of small business. The meeting was scheduled for only three hours, and consisted of a series of presentations by EPA staff summarizing the proposed rules and regulatory impact analyses, followed by short question and answer periods for the small business representatives. (A copy of that meeting agenda is attached at the end of this Exhibit.) The meeting essentially amounted to a briefing by EPA regarding the contents of its proposal—not the extensive, cooperative joint exploration of alternatives required by SBREFA. In the question and answer periods, the questions asked by the small business representatives were generally answered by a polite ''thank you'' or by a statement that the issue ''had already been considered.'' The EPA staff at the meeting were simply going through the motions of meeting with the small business representatives. There was no serious effort to discuss any alternatives to the proposed rules, which were treated as a fait accompli.
At the January 7 paneloid meeting, EPA announced that it intended to convene an inter-agency review panel to review the small business comments and make recommendations, even though such a panel was not required since SBREFA did not apply. EPA said it would accept comments to the review panel on or before January 28, 1997—just three weeks after the formation of the review panel was first announced. SBREFA requires that the statutory review panel issue its report well before the close of the public comment period so that other interested parties, including small businesses, are given an opportunity to comment on its recommendations. Here, however, the EPA panel report on the proposed NAAQS ultimately was not completed until July, and not placed in the docket until prior to the July 18 publication of the final rule, clearly not in time for parties, including ATA, to meaningfully comment on it before the close of the public comment period, thus entirely defeating the aim of the statute.
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INSERT OFFSET RING FOLIOS 1 TO 2 HERE
Mr. GEKAS. We thank the gentleman.
We will turn to Mr. Russman.
STATEMENT OF RICHARD L. RUSSMAN, SENATOR, STATE OF NEW HAMPSHIRE
Mr. RUSSMAN. Thank you, Mr. Chairman. My name is Richard Russman and I hail from the State of New Hampshire. I'm a State senator there, and thank you for the opportunity of letting me come before this committee.
I am here strongly in support of the ozone and particulate matter proposed by the EPA and believe that they are following the law, which is the Clean Air Act statute on health-based standards. And I don't stand alone here in terms of my State. Certainly the Business and Industry Association of New Hampshire which is the largest business—small business and large business industry association in New Hampshire has come out in favor of these standards. Our Governor has, our Department of Environmental Services has, and our legislature has come out in favor of the standards as well.
I disagree with the recent arguments put forward by the National Conference of State Legislatures, of which I am a member, of course, that the EPA has not sought input or considered the roles of the State. I'm the immediate past chairman of the committee on the environment for NCSL, so I have some basis from which I speak.
Since the proposal came forward, EPA has made every effort to include all the affected parties in developing strategies to implement the rules when they become final. To its credit, EPA, through the Federal Advisory Committee Act, has established working groups on ozone, particulate matter, and regional ozone transport to provide advice to EPA and the States which are charged with implementing the rules, as they should be. And so far it has worked well, certainly, to have the States do the implementation while the standards are being set nationally.
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Further, EPA has expanded the membership of the working groups and has extended the comment periods and the final deadlines and has received tens of thousands of comments both oral and written in terms of responses, and as my colleague from NSCL has indicated, has worked with NSCL in terms of input from that organization. I have submitted a copy of the FACA membership list for the record.
Input from working groups and the Scientific Advisory Committee also has been extensive, as have been the justifications put forward by EPA. This administration, I believe, has worked to reform the regulatory process and I believe has done a good job. They've also made a strong case for the benefits achieved by these rules—both those that are quantifiable and those that are not. The cost can be, and will be, considered further in the implementation stage, as the rightful place to do so. I don't see this as an unfunded mandate, but certainly the Congress will have to support the EPA in terms of monitoring and the implementation process as it goes forward.
Being from the Northeast, and in particular New Hampshire, we are very worried about the continuing effects of ozone on our region. But agriculture and forestry are beginning to suffer—as much as 10 percent loss for some crops. I think this will go a long way toward restoring regional equity, particularly in the area of air pollution. I think it's bad for American economy in terms of consumer goods and tourism to have air quality that is inferior in any way. These are quantifiable benefits that are not fully accounted for in the rule.
I've also submitted for the record the Northeast States' Coordinated Air Use Management Report, also suggested stringent ozone standards. More importantly, though, I don't think we can overlook the mortality and health impacts of continuing to expose Americans to ozone and particulate matter. Some 15,000 deaths a year, hundreds of thousands of people affected by asthma, is something important to all of us. I think we can agree on this.
The rules being promulgated certainly support significant public health protection. I think we can have a grand debate on the implementation strategies and the best way to achieve attainment, and that's where we should have the grand debate about it. But the Clean Air Act is clear about the standards being health-based, not cost-based. I would dare say that if we had a choice of rooms today to have this hearing in, if we had one with the new standards and one with the present standards, I think we'd all opt to go down to the room with the new standards, certainly.
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I think in the 12 years that we may be looking out until these things are fully implementated, I suspect there will be tremendous technological advances and I suspect there will be a lot of jobs created as a result of those technological advances and the implementation process. I look at it as the glass being half full. We need to get the clean air, so we ought to get on with it. I'd be happy to take any questions.
[The prepared statement of Mr. Russman follows:]
STATEMENT OF RICHARD L. RUSSMAN, SENATOR OF NEW HAMPSHIRE
Mr. Chairman and members of the subcommittee, my name is Richard Russman, and I am a state senator from New Hampshire. I want to thank you for this opportunity to testify about the clean air standards for ozone and particulate matter that have been finalized by the Environmental Protection Agency (EPA).
As you know, New Hampshire is one of the northeastern states that is affected by ozone transport, so we have a very strong interest in seeing action taken to address the emission of precursors that lead to ozone formation. The respiratory problems caused by excessive ozone exposure will continue to plague the citizens of my state, not to mention the health of natural resources, if action is not taken. In addition, I believe the people of New Hampshire agree that the threat of fine particulate matter must be addressed, as called for by the American Lung Association and our governor, the Honorable Jeanne Shaheen.
I understand that this subcommittee is concerned about the process undertaken by the EPA in promulgating rules to address ozone and particulate matter problems. Let me say at the outset, I am a proponent of the proposed rules and believe the EPA went about the process of issuing final rules in a responsible manner. These standards must be established by relying on health based criteria only; that is very specific in the Clean Air Act.
Recently, the National Conference of State Legislatures (NCSL) sent a letter to Ms. Mary Nichols, Assistant Administrator for Air and Radiation at EPA, citing numerous problems with the issuance of the proposed rule and compliance with federal statutes and executive orders. I disagree with the premise and findings of that letter and, as the core of my testimony, I will explain my reasoning to the members of the subcommittee today.
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Many opponents criticize EPA for not seeking outside opinions or consultation with the states. Nothing could be further from the truth. Since February, 1994, EPA Administrator Browner has been seeking the advice of affected parties on the issuance of these rules. Under the authority of the Federal Advisory Committee Act (FACA), EPA established working groups to address ozone, particulate matter and regional haze problems. These working groups depend upon the opinions of state and local governments, industry, small businesses and other interested parties to formulate strategies for attainment.
These strategies are designed to help states with implementation programs, which are solely a state and local government responsibility. I do not believe the EPA simply is passing the buck when they claim they are not demanding specific regulatory activities. As you know, the EPA grants authority to the states to implement the rules as they see fit through a state implementation plan. The NCSL recognizes this in its letter to the EPA, stating that ''implementation of the Clean Air Act is being carried out by state and local governments.''
I don't believe it would be a stretch to say that the Congress and much of the country would be up in arms if the EPA directed the specific actions that states and localities must take. States have asked for and been given authority to implement many federal regulations. This is one of those cases where granting primacy (regulatory authority) has and should continue to work.
In addition to bringing in the views of affected parties through the FACA process, EPA extended the comment period on the rule for 21 days. That extension has allowed more than 40,000 comments to be received via the mail and nearly 18,000 phone and electronic comments to be delivered.
The date for issuing the final rule also was extended after a request by the Administrator. It is important to note that the opponents of the rule were the primary constituency asking for that extension. In response to this, Administrator Browner returned to the judge who issued the initial ruling on particulate matter and petitioned for the delay.
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Finally, after issuing the proposed rules, EPA expanded the representation on the FACA working groups to include more representatives from local governments and small businesses. These actions were not required, but were carried out by the EPA to ensure adequate input from those expressing most concern. Not once in their letter does the NCSL recognize those efforts.
With the chairman's approval, I would like to submit for the record the membership of those working groups so that members of the committee will have an idea of the access that various interests have had to the rule making process.
One concern raised by the NCSL letter that I would like to reinforce to you is the issue of funding. We all agree there will be some costs in implementing these rules, although those costs are several years away. With this in mind, the concern about section 105 funding, which provides technical and financial assistance to states, is one that is universal among states. Realizing the role that states and localities play in implementing the nation's environmental laws, I hope the Congress will see the wisdom in providing adequate funding to the EPA to assist in this implementation.
While I am not a member of President Clinton's party, I would like to state that I commend him for the efforts he has made to reform the regulatory process. Since 1993, with the issuance of Executive Order 12866, this administration has made a concerted effort to streamline regulations and to provide justifications for rulemaking. While cost benefit analyses are not a criteria of the Clean Air Act, the EPA complied with the Executive Order and provided the necessary justifications, including analyses of costs and benefits, to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB). Your committee and the entire Congress recently received the regulatory impact analysis, which documents the multiple impacts of the new rules. I suspect these rules were more thoroughly reviewed than any other rule the EPA has ever promulgated.
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In addition to administrative efforts to improve regulatory efficiency, the Congress passed and the President signed numerous pieces of legislation, specifically the Small Business Regulatory Enforcement and Fairness Act (SBREFA), that create obligations for the agencies in establishing rulemaking and give the Congress an oversight role before major rules can go into effect.
I believe this is an appropriate role for the Congress to play, and I think that is one reason that we are having this debate today. However, I do not believe the Congress should try to inject false arguments into the debate when the Clean Air Act is very specific—rules are to be promulgated following health based standards, which are to be reviewed at least every five years. In this case, the statute has been backed up by the courts regarding standards for particulate matter.
The regulatory impact analysis prepared by the EPA attempts to quantify benefits that sometime cannot be quantified, yet the estimated benefits far outweigh the overall costs.
The benefits of the rules have focused on health—the primary standard. I have come to the realization that the secondary standard (welfare) will provide significant additional benefits that have not been quantified. Regardless, efforts to meet the primary standard also will benefit the welfare of Americans.
As you know, vegetation is harmed by ozone exposure. Unlike most susceptible human populations, it has few means of staying indoors. Agriculture and tourism continue to be the major economic indicators for many districts in this country represented by members of this committee. I am disappointed to see the agricultural community oppose the rule because increased incidences of high ozone exposure have reduced some crop outputs by more than ten percent. Indeed, CASAC unanimously recommended that EPA adopt a secondary standard for ozone more stringent than the primary standard.
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In addition, forest ecosystems from the southern Appalachians to the northern Adirondacks are threatened by high levels of ozone. Many states promote their natural areas for tourism, yet these beautiful mountains so far removed from urban settings are threatened by the precursors of ozone and the resulting ''burn'' that occurs at higher elevations.
The benefits of protecting agricultural production (including timber) and tourism economies will be well worth modifying emissions standards for all the communities that depend upon these natural resources to support their economies. These impacts and benefits must be considered in any discussion of costs.
I also would like to submit for the record, with the chairman's approval, the recent findings of the Northeast States for Coordinated Air Use Management. These findings back up the need for more stringent ozone standards.
In the case of standards for particulate matter, I believe the benefits will be substantial. I find it distasteful to try to quantify the value of a life, let alone trying to do it for 15,000 individuals. The premature death caused by particulate matter and the debate surrounding the impacts remind me of the debate about cigarette smoke. Scientist after scientist testified that smoking did not cause lung cancer and that epidemiological tests could not show causality. Just as we reached a clear indication with cigarette smoke, the data now supports the link between particulate matter and respiratory illness.
Since the 1970's industry has tried to analyze the costs of complying with environmental regulations. I don't believe it has ever made accurate estimates. Will there be some costs in implementing these regulations? Yes, and the EPA has made the best estimates available given the uncertainties of how the rules will be implemented at the local level.
In establishing the health based standards, EPA should not consider costs. In considering implementation strategies, EPA should and has drafted an implementation strategy that puts a premium on reducing the costs to states and localities. As a matter of fact, the President directed that the implementation strategy must consider the expense associated with the new rules.
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I will remind you of the excessive costs estimated by the utility and industrial sector during the 1990 Clean Air Act debates. We all know that those horrific scenarios did not and will not play out. Nor has the American economy gone down the tubes, if you will excuse the expression. On the contrary, technology has expanded to meet industrial demand, and states have found innovative and cooperative ways to meet attainment standards.
We may not be able to reach 100 percent attainment compliance in the next ten years, but the effort to achieve those standards will be of value to every man, woman, and child in this country. That is a significant benefit.
In conclusion, I believe the EPA has complied with the law in order to ''protect the public health with an adequate margin of safety'' as directed by the Act. We have in place a regulatory system that is more scrutinized today than at any time in recent history. I believe that is a good thing. But I also believe that when agencies are following their mandates, they should be given the necessary support to implement the laws the Congress has passed.
That concludes my testimony. Thank you again for the opportunity to participate, and I will be happy to answer any questions from members of the committee.
NESCAUM REPORT ON LONG-RANGE POLLUTION TRANSPORT, MARCH 12, 1997
POLICY IMPLICATIONS
There is ample scientific basis now to require clean-up of the major electric power plants, other large industrial sources, and transportation pollution sources; former study is not needed.
This clean-up effort is required whether or not the Clinton Administration's proposed tighter particle and ozone smog health standards are approved. Neither the present or proposed standards will ever be achieved in the Northeast without a significant reduction in transported pollution.
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Ozone smog pollution requires a regional solution to reduce the persistently high levels of pollution throughout the eastern United States.
Additional pollution controls in the Northeast to compensate for pollution transported into the region are an environmental and economic burden imposed on the people and businesses of the Northeast by pollution sources outside of the region.
REPORT METHODOLOGY: THE ''WEIGHT OF EVIDENCE'' TELLS THE REAL STORY
The NESCAUM study is unique because it integrates information denoted from computer based simulations (''models'') with years of real-world air quality and meteorological measurements to assess the magnitude and impact of pollution transport. When OTAG modeling simulations are placed within the context of actual observed air quality and meteorological measurements, a clear picture of regional transport emerges.
The weight of evidence approach combines, (1) multi-year field measurements of ozone and its precursors taken both on the ground and aloft; (2) the movement of ''clean'' and polluted air masses; and (3) computer modeling of emissions, chemistry, and meteorological events that have led to severe pollution episodes in the past. Separately, these analytical approaches each support the presence of significant pollution transport. Evaluated together, they lead to the unmistakable conclusion that dramatic reductions in NOX pollution must occur across the Eastern U.S. in order to achieve clean air.
KEY FINDINGS
Every state is both contributor and victim. The Northeast has already committed to significant reductions (up to 75%) in power plant NOX emissions. The Midwest and Southeast must join in a cooperative effort to achieve NOX reductions. The report shows that ozone smog emissions in the Midwest and Southeast regions result in up to half of the prevailing human-related ozone smog in the lower Northeast states on the worst days. Northeast sources are responsible for the remainder (see Figure 11 from attached Reported). In New England, the Midwest influence tapers to a quarter or less of the smog totals; in states such as Maine, transported ozone smog emissions come mainly from other Northeastern states with a smaller contribution from the upper Midwest. These estimates are conservative because the models currently in use underestimate the extent of transport. Thus reducing transport will have even greater downwind benefits than the substantial impacts estimated.
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It's All One Airshed. The report—the first to comprehensively combine atmospheric modeling of ozone smog with observed data—demonstrates that, due to atmospheric chemistry and prevailing wind patterns, cleaning up ozone smog to safe levels will require coordinated reductions throughout the entire Eastern airshed. This airshed essentially stretches from Tennessee to the Great Lakes and across to Maine.
To address transport, we need airshed-wide control on power plants, automobiles, diesel trucks, buses, and construction equipment.The report summarizes existing modeling showing that an 80% reduction in power plant smokestack emissions of NOX and a 60% reduction in ground-level NOX emissions would reduce average ozone smog levels in the Eastern U.S. by 30–50%. A substantial portion of these reductions can be achieved by requiring older power plants in the airshed, grandfathered under the Clean Air Act, to meet emission rates that new coal plants have had to routinely implement since 1977. Cost-effective retro-fit technologies are commercially available to reduce the emissions from these old power plants by over 80%. Controlling NOX emissions from trucks, buses, and construction equipment will provide additional reductions needed to achieve cleaner air in the Northeast.
These same conclusions apply to pollutants other than ozone smog. Long-range transport of acid rain emissions, mercury and fine particle precursors is also well-documented. Reducing emissions across the region from power plants, large diesel engines and other major fossil fuel burning sources will simultaneously address all of these problems.
TECHNICAL SUMMARY
1. Ozone smog is transported into and within the Northeast. Depending on weather conditions, ozone is transported from 100 to over 500 miles downwind.
2. The winds persistently blow from out of the Southeast and Midwest and into the Northeast during the most severe ozone days in the Northeast. Longterm studies of wind patterns show that the worst ozone days in the Northeast coincide with upper-level winds persistently coming out of the Midwest and into the Northeast.
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This provides a ''conveyor belt'' for transporting pollution from the Southeast and Midwest to the Northeast.
3. Oxides of nitrogen (NOX) are important pollutants that initiate ozone formation. Reducing transported ozone requires regional reductions in emissions of NOX. Ozone transport is due to the presence of oxides of nitrogen (NOX) emissions that initiate ozone production.
The Ozone Transport Assessment Group (OTAG) modeling results predict at NOX controls across the eastern United States will reduce ozone transport. While modest NOX reductions have some benefit in downwind areas, ozone becomes more sensitive to even deeper reductions of NOX. In other woods, the ozone benefits accelerate with deeper NOX reductions.
Reducing hydrocarbons, another Important contributor to ozone formation, can be effective in some local urban areas, but has much less of an effect on transported ozone, within the same locality. This means that reducing ozone will require a combination of NOX and hydrocarbon controls.
4. The largest sources of NOX pollution are coal-fired power plants in the industrial Midwest.
Collectively, the power plants in the industrial Midwest are the largest source of NOX emissions in the country. These sources are under-controlled, or not controlled at all for NOX.
By the year 2007, industrial NOX emissions from the five Midwest states of IN, KY, MI, OH, and WV will be 400% greater than the combined industrial NOX emissions from the eight Northeast states of CT, MA, ME, NH, NJ, NY, RI and VT.
5. A persistent ozone ''reservoir'' exists within the east-central United States. Due to the concentration of high polluting sources, the Ohio River Valley experiences persistently elevated ozone concentrations. This ''reservoir'' of ozone is transported by prevailing winds to the Northeast and upper Midwest.
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In addition to reducing transported ozone, lowering the ozone ''reservoir'' will also improve the local air quality within the Ohio River Valley.
6. Ozone transported by high wind speeds at high altitudes (>500 meters) above the ground mixes down to reach the surface far downwind. Measurements from aircraft have recorded high ozone levels in excess of 100 ppb both upwind of and over the Northeast Corridor during the right. (The present ozone standard is 120 ppb, average over one hour. The proposed new standard is 80 ppb, averaged over eight hours.) During the day, as the sun heats the atmosphere, the high ozone levels aloft mix down to reach the surface, contributing to poor air quality in areas far downwind of pollution sources.
7. Computer modeling predicts that the Northeast benefit significantly when emissions in the Midwest and Southeast are reduced. The contribution of human-related ozone in the Northeast from emissions in the Midwest and Southeast are estimated to be up to one-half in the lower Northeast to one-quarter in the upper Northeast.
The model estimates are conservative because they likely underestimate the extent of transport. This gives confidence that reducing transport will have even greater downwind benefits than the substantial impact already estimated.
8. Cost-effective NOX reductions are available throughout the eastern U.S. The 900 coal-fired power plants in the eastern U.S. provide the largest available pool of cost-effective NOX reductions. Substantial NOX reductions (50%–60% control) can be achieved from uncontrolled utilities for $300–$500 per ton. Stringent additional reductions (80%–90% control) can be achieved for approximately $1000 per ton. While initial controls on Midwest and Southeast facilities are by far the most cost-effective, additional controls on many northeast utilities are also very cost-effective when compared against additional controls on the sources of NOX emissions.
The technology to achieve stringent 80%–90% control is proven and operational, here and abroad. The cost of these measures has and will continue to decline as worst-case industry projections are replaced by market-driven competition among technology developers. (The cost of implementing the acid rain program has been one-tenth the industry projection.)
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Mr. GEKAS. We thank the gentleman. I have a couple of questions in the 5 minutes that the Chair allots to itself.
First, Mr. Russman. Of the 10,000 comments that you say have flown into the offices of EPA during the commentary period, did any of them, result in a change of any portion of the final standards promulgated in July?
Mr. RUSSMAN. I don't know that, sir. I was not privy to the tens of thousands of comments that came in. So I would not know that.
Mr. GEKAS. If I told you that there was very little difference between the final standards and those preliminarily set forth, you would conclude with me, would you not, that 10,000 probably had very little effect?
Mr. RUSSMAN. I don't think I could agree with that in terms of not knowing what those comments said, because I know that I certainly wrote in support of more stringent requirements. So I'm sure there were others that wrote in favor of less. So I don't know how to comment on that.
Mr. GEKAS. Do you agree that consultation is a little bit different from commentary? That is, consultation, in my judgment, implies a joint discussion or negotiation on the impact or the far-reaching possibilities of a particular rule. And don't you agree that if consultation was the order of the day of the statutes that we're talking about, the unfunded mandates, the small business, the regulatory flexibility, that that might have had the chance, the remote possibility, of changing or ameliorating what is supposed to be the adverse impact of these standards?
Mr. RUSSMAN. I think had those been considered to the degree that the committee would have us think they should have been this morning, there certainly would have been a chilling effect on the standards as the were actually set forth. So my hat is off to EPA for construing it in a manner that they believe that that does not have to be complied with fully at this time, and I think that the implementation process is where the debate ought to be in terms of what it is going to cost our businesses and what's it going to be like? Obviously, if they don't know at this point how they're going to be implemented, I daresay that any of the cost estimates are going to be somewhat questionable at very best.
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Mr. GEKAS. Well, we have information from New Hampshire that Senate bill 112, which would have established a commission to review various effects of Federal environmental programs, was a key feature of legislation in your State. I don't know if you were a sponsor or voted for it or——
Mr. RUSSMAN. I was a sponsor. We were concerned that we felt that, as the Congress particularly was put in, when the last Congress was in effect in terms of what changes may occur, so that we could try to stay ahead of the curve in terms of what is the State going to do, how a block grant's going to apply, and so on and so forth, so that the State would be able to react.
Mr. GEKAS. That would not be an appropriate way for New Hampshire's public to review the EPA standards?
Mr. RUSSMAN. Say it again, sir?
Mr. GEKAS. Wouldn't this have been a good way for this commission to review EPA's impact on your State?
Mr. RUSSMAN. I think that the——
Mr. GEKAS. Did you specifically exempt from this bill the work of the commission to evaluate any future standards, regulations, impelled by the EPA? Would that have been exempted?
Mr. RUSSMAN. It was not specifically exempted, no, sir.
Mr. GEKAS. So the commission that you're talking about in Senate bill 112 probably would have allowed a mechanism for New Hampshire to review these standards.
Mr. RUSSMAN. It's conceivable.
Mr. GEKAS. OK. Thank you.
To Mr. Schaeffer. Is it true that you have filed suit on behalf of your association? Is that correct?
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Mr. SCHAEFFER. That is correct.
Mr. GEKAS. I have one question with that. Does that include a request for a stay of proceedings? Or is it just——
Mr. SCHAEFFER. It does not. It is a petition for review.
Mr. GEKAS. Petition for review?
Mr. SCHAEFFER. Yes, sir.
Mr. GEKAS. Mr. Flaherty, if, indeed, UMRA would have been followed, and SBREFA, and Regulatory Flexibility Act, your organization would have had a mechanism which would have leaped into action to consult with EPA and negotiate and jointly discuss the pending regulations, is that correct?
Mr. FLAHERTY. Yes, Mr. Chairman. Well, also, I didn't mean to suggest that there was no consultation or back-and-forth, but the Unfunded Mandates Reform Act provided a series, a specific list of the considerations and information that the States would have the benefit of evaluating in the process of implementing. As was stated, we're going to have to implement a lot of these standards.
Mr. GEKAS. The time of the Chair has expired. Does the lady from Texas wish time?
Ms. JACKSON LEE. Yes, Mr. Chairman.
Mr. GEKAS. We yield 5 minutes.
Ms. JACKSON LEE. I thank the gentlemen for their testimony in this ongoing saga of very important issues. I don't diminish, Mr. Schaeffer, Mr. Flaherty, any of the concerns that you have expressed. I want to just work, though, with Mr. Russman on some questions that I have.
I wanted to clarify a point that I made with the first panel when I raised the question of cost-benefit analysis. And though that is a terminology that many of us immediately tune in, because of the last Congress, as an assessment of the cost and what the rulemaking may actually result in, I was using it more in its nongovernmental and secular perspective, that if you are benefiting from a very vibrant economy, isn't it worthwhile to invest in that vibrancy by paying for, one, your economic boom, but also it does not harm you to pay for good, clean air and good water. That is not a cost-benefit analysis that we have come to understand here in the U.S. Congress.
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So Mr. Russman, what I am asking is, have you done any analysis—I know that you said you were former chair, working with this issue under the State Legislators Association, if I heard you correctly. What assessment would you make on that very plain English statement? Meaning that industries benefited from a very good economic climate and are benefitting from the rate of business improvements; can they not make an assessment that it is worthwhile to continue at this very productive pace and to also return back by making sure that their industrial work, manufacturing work, complies with regulations that would provide us with clean air and clean water?
Mr. RUSSMAN. Well, I think the committee did—our committee at NCSL did no particular analysis, but at the same time I think it's clear that in an up economy it's time to, as the economy expands, to try to build in and look at opportunities to be more efficient and to cut emissions and to work on clean air. Certainly, I know in 1970, when the Clean Air Act was first put in, there were dire, dire calls from business and industry, certain ones, that the economy was going to go terribly awry, and quite the converse has happened. The United States, obviously, as we all know, is booming and doing quite well, and I think it will continue to do so under the proposed regulations.
Ms. JACKSON LEE. Do you think that there is any particular relief that comes to our States, our cities, and businesses by the fact that, as I understand it, the EPA regulations have a graduated 7-year process. Does that, in any way help alleviate from your perspective any of the hardship that is represented that might occur?
Mr. RUSSMAN. I think that's a fantastic opportunity for cities and States and communities as a whole, and industry as well, certainly; that nobody can argue that we don't want to displace people from jobs any more than is absolutely essential. And certainly we have an obligation to work with the trucking industry and other industries to see that we foster job creation, to see that the economy goes well.
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So certainly I think that lengthy implementation process is going to go a long way and certainly will give people the opportunity, and I hope that we can all work together in that process, once we get this segment behind us.
Ms. JACKSON LEE. You are unique in your advocacy. I obviously come from a State that has raised many concerns; many of the States have raised it. Our advocacy body for the cities and the mayors have certainly raised it. How do you answer, coming from the public sector, how do you respond to them as to how they would respond to these regulations if they were to pass, or if they were to remain under the EPA? How would you answer their great concern? There has been an enormous uproar, and how would you in the public sector respond to their concerns?
Mr. RUSSMAN. From New Hampshire?
Ms. JACKSON LEE. Let me just ask you from the perspective of local governmental entities, because they have almost 2 to 1 opposed these EPA regulations, and you're in the public sector.
Mr. RUSSMAN. Yes. I think that that sector, by and large, has been made somewhat paranoid and made somewhat overly concerned by the allegations that have been set forth by certain lobbying groups. I think the same thing was true in 1970. I think we're seeing history repeat itself, and obviously there's got to be a tone of reasonableness; there's got to be a tone of balance to be struck with these regulations and implementation process. I think that those people should look to the past really in terms of prognosticating the future on how the United States will deal with these regulations.
Ms. JACKSON LEE. Mr. Schaeffer, I've always said that small businesses are the backbone of America. You will not hear any of us step away from the great investment that small businesses have made in this country. My question, however, to you is with the graduated time frame of the seven years and not taking away from the process question, which I think we still have a right to review, do you not see an opportunity of compromise inasmuch as it is extended over a 7-year period? We have worked with small businesses in the past. Can we not work with them now?
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Mr. SCHAEFFER. A 7-year delay in the implementation provokes some interesting concerns for small business. In our industry, people make purchases of equipment on 5-year cycles and people need to begin planning to buy trucks in the future today, because you can't make those kinds of orders the week before you need them. And a 7-year period provides just extra uncertainty from now until the end of that period where we're not actually sure what's going to happen and we can't really make our investments or we don't really have financial institutions, given that state of uncertainty, who are willing to unleash capital on small business, knowing that a regulation may come into effect that may severely cramp the profitability of that company, making it ultimately unable to pay for that new equipment and putting them out of business.
Mr. GEKAS. The time of the lady has expired.
Ms. JACKSON LEE. I thank the chairman very much. Let me just say that, Mr. Chairman—a second of indulgence—I think this has been a good hearing and I think there are points that are made that are resolvable, and I think that we have the responsibility to work on that.
Mr. GEKAS. We thank the lady.
We honorably discharge this panel as well. Thank you very much.
We now invite the final panel to come to the witness table. And Congressman Ron Klink, is here. Ron Klink, a third-term Representative of Murrysville in the great State of Pennsylvania. He serves on the Commerce Committee and two of its subcommittees. In his previous life he was a television broadcaster.
Is Congressman Kucinich here? We may expect him later.
In the meantime, George Wolf, a member of the EPA's Clean Air Scientific Advisory Panel and was its Chairman from 1992–96. He is principal scientist on the environmental and energy staff at General Motors and an adjunct professor in the department of environmental science at the University of Michigan's School of Public Health. He received his B.S. in chemical engineering from the New Jersey Institute of Technology, his M.S. in meteorology, and air resources management from New York University, and his Ph.D. in environmental sciences from Rutgers University.
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Randy Johnson, is the chair of the Hennepin, MN, County Board of Commissioners. His district includes the cities of Richfield, Bloomington, and Eaton Prairie. Under his leadership, Hennepin County established the comprehensive recycling and integrated solid waste program that is consistently cited as one of the two or three best in the Nation. Commissioner Johnson is president of the National Association of Counties for whom we assume he speaks today.
George Thurston is an associate professor in the Department of Environmental Medicine at the New York University School of Medicine. He has received degrees in environmental engineering, environmental studies, and environmental health sciences from Brown and Harvard Universities.
We will begin in the order in which our witness panel was announced, and say to them that their written statements, will become a part of the record, without objection. Each witness will be allotted 5 minutes to present an oral summary of that written statement.
Congressman Klink.
STATEMENT OF HON. RON KLINK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. KLINK. Thank you, Chairman, for the courtesy of inviting me to speak to your subcommittee as well as for taking on this very important issue, and I appreciate that my full statement will be submitted for the record, and I just will tell you that orally that everybody knows that the Pittsburgh area has suffered tremendous amounts of pollution. We were known as the smoky city; once described by a very famous writer as ''hell with the lid off.'' We have seen tremendous problems caused by dirty air. The Group Against Smog and Pollution, or GASP as it was known, was founded in Pittsburgh in response to dirty air.
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As someone who was in the news media in that region for about 24 years, I saw the effects of the Clean Air Act. The Clean Air Act has worked; it continues to work. It's a wonderful act. We don't want to see it opened up again. We think too many bad things could happen, but we also realize, Mr. Chairman, that when you only look at one or two items which cause pollution; when you only look at particulate matter, and you only look at ozone, you ignore other things that are present in the air, and I, in my broadcast career, also did a stint for probably about 6 to 7 years as a television weatherman. Now, that may completely cause my credibility to go right down the tubes, I don't know, but I'll tell you that when I first began to do weather in the Pittsburgh region, we used to have to report on different kinds of pollution that were in the air, and it was just the normal cause of doing business that we would warn people on a very frequent basis to stay inside because of this or that or the other thing. The air has been cleaned up to the point where it's very seldom that we have to do that anymore in the Pittsburgh region. In fact, in 1996, we weren't out of compliance at all, and only in the recent heat wave have we had a handful of incidents where the Pittsburgh region has been out of compliance, and we've had to have so-called ozone action days. But we shouldn't have to do that.
This is not a question as to whether or not we want to clean up the air. We all believe that we need to have clean air. The question is: Shouldn't we concentrate more of our efforts on cleaning up those remaining regions of the country that have a severe problem rather than throw additional areas into noncompliance? It doesn't seem to make a great deal of sense.
The other problem is that since we're only looking at particulate matter, we haven't answered the question that—of course, when particulate matter, whether it's 2.5 or PM10, when that goes up, I would suspect that also other types of pollutants go up as well. Have we looked for those—the presence of those things in addition to PM2.5 in the studies that were done? I don't think that we have. In study after study, you can see that they were attempting to reach the conclusion that it is PM2.5 that is the culprit. They didn't take into account increases or drops in humidity; didn't take into account in some of the studies the presence or absence of other types of pollutants other than PM2.5, and in the Harvard six-city study where it said Stubenville, OH, which borders right across the line from my district, was the most polluted city. They said deaths have gone up incredibly more higher there than they did in Portidge, WI which was the cleanest of the cities, but they didn't account for the fact that there are more people in Stubenville, OH who smoke cigarettes or who have smoked cigarettes. They didn't take a look at the fact that the poverty rate in Stubenville, OH is higher; the people don't make as much money as people make who live in Portidge, WI. So, you see, when scientists want to reach a conclusion, they can take the information and move it around to reach the conclusion that they want to make.
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The more that we looked in the Commerce Committee—and we had joint committee hearings, many of them, between the Oversight Investigation Subcommittee of which I am the ranking member, and the Health and Environment Subcommittee—we heard from a lot of witnesses including some that you have here before you today. It is very evident to me that the one big rule that scientists should follow was not followed, and that is if you have a scientific theory, you should try to prove your own theory wrong, and in trying to prove it wrong, if you can't, then you're on to something.
I'm also bothered, I will tell you, by the fact that our own administration has failed to sit down, and talk to us about the ramifications of what they're doing. I think that—and I understand that I just caught some of the small business people that you had before you—they're concerned by small businesses, large industries. We've heard in southwestern Pennsylvania from companies that say, ''We're not going to make an investment in our specialty steel plant.'' We've heard from other companies who said, ''We're not going to invest in southwestern Pennsylvania. Congressman Klink, we can't justify it, because you've said these are the rules, and while we're still striving and we've spent hundred of millions of dollars on pollution control equipment to hit these numbers, now you're changing the rules; you're moving the goalposts in the middle of the game.'' I see my red light's on, and I would submit the rest of my statement for the record.
[The prepared statement of Mr. Klink follows:]
STATEMENT OF HON. RON KLINK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Thank you Mr. Chairman and members of the Subcommittee for inviting me to speak today. This is an issue of great importance to me because the Environmental Protection Agency's (EPA) new ozone and fine particle standards adversely affect the economy and the public health of the District I represent.
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Everyone agrees that the Clean Air Act has been an incredible success and will continue to clean the air for at least the next five years, with or without these new standards. It is important to me as a father of two that nothing derails the continued success of the Clean Air Act.
The area of Pennsylvania that I represent is north of Pittsburgh and used to be referred to as ''Hell with the lid off.'' In my previous life I was a news reporter and interviewed a doctor from Donora, Pennsylvania, who treated the people of that town during an temperature inversion. The inversion in effect put a lid on the atmosphere, trapping all the air underneath. The results in a high pollution area can be horrible with no place for the pollution to go except in people's eyes, nose, and throats. This doctor witnessed people literally dropping dead in the street. We in Southwestern Pennsylvania know how important clean air is and we have worked very hard to clean ours.
Today we are here to look at the process by which we clean the air under the Clean Air Act, and, more importantly, the process that lead the EPA to change the ozone and particulate matter standards. In the press we hear a lot of theoretical posturing about whether cleaner air is good, as if there is any doubt. But what no one wants to talk about is how the new standards affect the process we must follow to get cleaner air. The fact is the new standards severely hamper the effectiveness of the Clean Air Act and will significantly slow our progress in cleaning the air.
Putting aside the lack of a scientific basis, the lack of evidence, or the intentions behind these new standards, the effect will be to keep the air dirtier for longer. Let us take, for example, the Washington, D.C.-Baltimore area. Under the current ozone standard, they must reach attainment by 1999 or lose highway funds. Under the new standard, they have 10–15 years longer before they must reach a slightly more stringent standard. Why should we wait 10–15 years for cleaner air when we can demand it now? And more to the point, what is to prevent the EPA from letting the polluters off the hook again when that deadline gets close?
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So this is the question: why are we tightening the air quality standards, which will most certainly cause economic hardship across the country, when it does nothing to clean the air and in fact keeps it dirty? Doesn't that fly in the face of the purpose of the Clean Air Act?
As ranking member of the Commerce Subcommittee on Oversight & Investigations, I have heard days upon days of testimony about the findings of the Clean Air Scientific Advisory Committee (CASAC) and how the EPA came to the conclusions it did. It is due to the complete and methodical process of review by CASAC that we have learned as much as we have about the desperate need for more study of PM2.5 and the extremism of the new ozone standard. We had three past chairs of CASAC as well as the current chair testify before Oversight and Investigations about their findings and conclusions. They each said that though further study and regulation of P.M.2.5 is necessary, they do not have enough information at this time to recommend a standard. It was implied at the hearing that the EPA believes without actually setting a fine particle standard, they could not do the necessary study to determine what exactly the health affects are. However, not only does the EPA have the authority to study P.M.2.5 without setting a standard, but I, along with Mr. Upton and Mr. Boucher, have introduced a bill (H.R. 1984) that directs EPA to get started immediately.
Something that troubles me are the glaring holes in the studies on which the EPA relied in setting this standard. For example, it was concluded in the Harvard 6-city study that Steubenville, Ohio (the most polluted city studied) had a 26% higher mortality rate than Portage, Wisconsin (the cleanest city studied). However, what the EPA did not mention was that researchers found among non-smokers there was no statistical difference in the deaths between these two cities. This was the basis of the EPA's proposal to set a PM2.5 standard.
On top of the lack of solid research and information about P.M.2.5, the EPA does not have the monitors to designate counties as ''in attainment'' or ''nonattainment.'' The Clean Air Act requires that these designations be made within 3 years of a new standard. However, the EPA has submitted an implementation plan that would leave most counties without a designation for 6 years or more. This makes the EPA vulnerable to a lawsuit for failure to comply with the Clean Air Act. The EPA claims their lawyers have found a way to interpret the Clean Air Act that would permit them to use their creative implementation process. But most of us know that there is always a way to interpret the law to support your position. The question is whether your position is consistent with the intention of the law. Congress stated a designation should be made within 3 years of a new standard. Congress does not set deadlines without reason. This deadline was set to keep the process moving; setting a standard and then putting off implementation does not do that.
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The Clean Air Act is set up so that if a standard is indeed needed, it will be enforced in a timely manner. By setting a standard and then putting off implementation for 5 or 10 years, it looks like the EPA does not believe its own numbers. They say pollution is killing people, but don't worry because none of the producers will be punished or deterred for 10 years.
Moreover, the EPA says that by putting off the enforcement of the standards, they are protecting business. But that is not true. Permits are not going to be granted to build or expand factories because states could lose highway funds six years from now. And anyone who understands business knows that no company is going to invest millions of dollars to build in an area that may be subject to severe restrictions and penalties in five to ten years. Once the standards are on the books, they are effective—immediately.
It would make more sense for the EPA to follow CASAC's advice and gather more information on P.M.2.5. It will take a minimum of 2 years to get the needed monitors built, deployed, and calibrated. It will take 3 years to gather enough information to make designations. By that point, the EPA will have to conduct another five-year review of this standard. My bill, H.R. 1984, authorizes the funds needed to produce the P.M.2.5 monitors and do more studies on the health effects of P.M.2.5. Then the EPA could bring complete data to CASAC for the next 5year review; and if a new standard is required, the EPA will have the ability to move forward firmly grounded in science and with the tools needed to move quickly.
Now to turn the attention to ozone, CASAC stated over and over again that there was no ''bright line'' between the proposed ozone levels that is more protective of public health. That means that no longer do we have easy choices. Instead with every step there is a steady movement of more modest benefits all the way down to background levels. Considering the fact that CASAC recommended a range of 0.07 ppm-0.09 ppm for ozone and none of the levels is a ''bright line'' choice, the best choice would have been 0.09 ppm. But instead, the EPA selected a much more expensive, only slightly more protective standard that will delay the cleaning of the air and put thousands out of work.
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Incidentally, the EPA was under a court order to review only the P.M. standard. They had until 1998 before the ozone standard had to be reviewed. When you look at the ozone standard alone, the EPA's own cost-benefit analysis shows that the costs outweigh the benefits of the new standard. But when combined with the PM standard, that is no longer true. It looks as though the ozone and P.M. were linked to hide the cost of the ozone standard.
The problem I have with this whole process is that there is a tendency to look at these standards in isolation. What I mean is the EPA looked at the association between P.M.2.5 and respiratory problems. But what about hospitalizations and deaths due to lack of medical care? Or lack of medical care due to joblessness? Let us not move hastily and find out that we have substituted one problem for another.
This is not the first time the EPA has rushed dangerously into a costly program. As a part of the Clean Air Act Amendments of 1990, the EPA informed Pennsylvania that we would have to adopt a centralized auto emissions testing program. Believing that we had no choice, then-Governor Casey began to implement this system by hiring Envirotest Systems Corporation, a company out of Arizona, to run the testing system. A seven-year contract was signed that could have created profits as high as $100 million a year for this company.
As it turns out, the EPA mislead Pennsylvania. This particular system was not necessary to comply with the Clean Air Act Amendments. But we were already stuck with 86 ''E-check'' centers that had been built around the state and the contract with Envirotest. In late 1995, Envirotest threatened to sue Pennsylvania for more than $350 million for its expenses and loss of profits. Governor Ridge and his administration decided to pay a $145 million settlement rather than go to trial. Not one penny of that money went to clean up the air.
EPA is making the same mistake all over again by rushing into something too quickly. When the flaws are discovered, Pennsylvania and other states will be left to repair the resulting damage—alone. We cannot afford this kind of ''rush to judgment'' again. This time the damage will be more costly. EPA does not have a complete and conclusive scientific basis for these revisions, and they have failed to address ozone transport. They have also failed to explain why the present mechanisms to clean the air should not play out before we tighten the standards. Pennsylvania's State Implementation Plan is not completely in place yet from the last revisions. We need to be allowed to finish what we started in 1990 before the rug is pulled out from under us and we are asked, unnecessarily, to begin again.
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Mr. GEKAS. We thank the gentleman. If he wishes to be excused, we have no objection to your leaving, but if you want to remain for questions, you may do that also.
Mr. KLINK. Well, I do have another hearing upstairs that I'm——
Mr. GEKAS. You are honorably discharged.
Mr. KLINK. Thank you very much.
Mr. GEKAS. The gentleman from Ohio, Congressman Kucinich—the 10th District of Ohio, serves on the Government Reform and Oversight Committee and the Education and the Workforce Committee. He was a college professor before coming to Congress. We think that disqualifies you from everything——
Mr. KUCINICH. I've been told that.
Mr. GEKAS [continuing]. But we'll make an exception for you.
STATEMENT OF THE HON. DENNIS J. KUCINICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Mr. KUCINICH. You're very kind, Mr. Chairman, and I'm very grateful to be in front of your committee to talk about this extremely important issue.
The Environmental Protection Agency's new standards regulating ozone and particulate matter air pollution, finalized on July 19——
Mr. GEKAS. Excuse me, you're granted 5 minutes. I wanted to make that clear. Sorry.
Mr. KUCINICH. I appreciate that—finalized on July 19, 1997, it once again set off a national debate over the wisdom of air quality standards and the impact on our economy. As someone who has long been involved in efforts to protect the environment, I suggest the time is right for some new thinking. But first a review of where we are at the moment.
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That air pollution damages human health and can shorten lives is not disputed. According to data gathered in 1995 by the American Cancer Society and Harvard Medical School as analyzed in 1996 in a report by the National Resources Defense Council, my hometown, Cleveland, OH, ranks 10th in the Nation of 50 metropolitan areas in the estimated number of deaths more than 1,000 attributable to particulate air pollution. Another study published in Environmental Health Prospectives shows there is a 25-percent increase in the mortality risk for infants exposed to the highest versus the lowest levels of particulate air pollution.
The risk for sudden infant death syndrome is about three times higher. The northeast Ohio region which is Cleveland, Lorain, and Elyria, OH, rank fifth in the Nation for high concentrations of particulate matter pollution that were contributing to infant mortality. This study found an association between infant mortality and particulate matter air pollution after taking into account traditional risk factors including mothers' education, race, smoking status, marital status.
The economic benefits of a clean environment are clear as well. A recent EPA study of net benefits of the Clean Air Act from 1970 to 1990 provided a central estimate of the net monetized benefits at $6.8 trillion. According to the study, and this is a quote, ''Americans received approximately $20 of value in reducing risks of death, illness, and other adverse effects for every dollar spent to control air pollution.
The science is backed up by the EPA's decision, and the science to back up the EPA's decision is also compelling. EPA used more than 250 peer reviewed published studies to make the case for more stringent rules on both ozone and particulate matter pollution. There has yet been an environmental decision as significant as this one that has had as much science backing it up. For example, in 1974 during the Nixon administration, EPA Administrator, William Ruckelshaus, banned DDT based on five studies, yet opponents argue against the health benefits, and insist there's no scientific basis for such increased vigilance. EPA has challenged those who attack these studies as junk to indicate exactly which study is junk. Not one study has yet been discredited. There's overwhelming evidence as to the economic advantage of clean air, but opponents claim there's no proven cost-benefit analysis to warrant stronger environmental protection or they claim higher standards just cost too much, and will result in loss of jobs from industries that will be forced to shut down if they don't comply with more stringent regulations, yet there is little evidence that jobs have been lost due to higher environmental standards. There's plenty of evidence that the United States had lost hundreds of thousands of jobs in the past decades due to tax abatements, cutthroat foreign competition, corporate downsizing, mergers, cheap foreign labor, and the dumping of products onto our markets because of inadequate trade protection, and even if there was little in the way of economic analysis supporting high quality air standards, the clean air debate should not be reduced to a simple cost-benefit analysis that ignores the effect of pollution on human health and separates the economic from the human. We should not face the 21st century locked into the old paradigm that gives us the false choice between jobs on one hand and clean air on the other. Being proenvironmental does not mean being antibusiness.
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Mr. Chairman, I submit it's time for new thinking on the issue of pollution; thinking that promotes both economic growth and human health. The 19th century thinking focused on pollution control at the end of the tailpipe or the end of the chimney. Such an approach required a great deal of energy and money and is generally insufficient to protect the environment. New thinking looks at pollution prevention; inventing ways to stop pollution from being created. New thinking views pollution as resources that are distributed in the wrong places. Wasted resources mean lost profits.
Environmental protection is fiscal conservatism. For example, when the State of Minnesota demanded that 3M accept higher environmental standards, the company asked engineers to rework an industrial process that not only reduced pollution but saved the company hundreds of millions of dollars through pollution prevention, and Honda recently announced they're going to sell cars in all 50 States that meet California's low emission vehicle standards. These new vehicles emit about 70 percent less smog-producing pollution than the most stringent standards require. Where were they built? In Marysville, OH, a State that our Governor says cannot attract new business, because the environmental standards are too burdensome.
Thank you very much, Mr. Chairman, for this opportunity to present this testimony.
[The prepared statement of Mr. Kucinich follows:]
PREPARED STATEMENT OF HON. DENNIS J. KUCINICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
The Environmental Protection Agency's new standards regulating ozone and particulate matter air pollution, finalized on July 19, 1997, have once again set off a national debate over the wisdom of air quality standards and the impact on our economy. As someone who has long been involved in efforts to protect the environment, I suggest the time is right for some new thinking. But first a review of where we are at the moment.
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That air pollution damages human health and can shorten lives is not disputed. According to data gathered in 1995 by the American Cancer Society and Harvard Medical School, as analyzed in a 1996 report by the Natural Resources Defense Council, my home town, Cleveland, ranks 10th in the nation (of the top 50 metropolitan areas) in the estimated number of deaths (more than 1,000) attributable to particulate air pollution.
Another study published in Environmental Health Perspectives (co-authored by Tracey Woodruff, Kenneth Schoendorf, and Jeanne Grillo) shows there is a 25% increase in mortality risk for infants exposed to the highest versus the lowest levels of particulate air pollution. The risk for Sudden Infant Death Syndrome is about three times higher. The Northeast Ohio region (Cleveland, Lorain, Elyria) ranked fifth in the nation for having high concentrations of PM pollution that were contributing infant mortality. This study found an association between infant mortality and particulate matter air pollution after taking into account traditional risk factors: mother's education, race, smoking status, marital status, etc.
The economic benefits of a clean environment are clear as well: A recent EPA study of net benefits of the Clean Air Act from 1970 to 1990 provided a central estimate of the net monetized benefits at $6.8 trillion. According to the study, ''Americans received approximately $20 of value in reduced risks of death, illness and other adverse effects for every dollar spent to control air pollution.''
The science to back up the EPA's decision is also compelling: EPA used more than 250 peer-reviewed, published studies to make the case for more stringent rules on both ozone and particulate matter pollution. There has yet been an environmental decision as significant as this one that has had as much science backing it up. For instance, in 1974, during the Nixon Administration, EPA Administrator Bill Ruckelshaus banned DDT based on five studies. Yet opponents argue against the health benefits and insist there is no scientific basis for such increased vigilance. EPA has challenged those who attack these studies as junk to indicate exactly which study is junk. Not one study has been discredited.
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There is overwhelming evidence of the economic advantage of clean air, but opponents claim there is no proven cost-benefit analysis to warrant stronger environmental protection, or they claim higher standards just cost too much and will result in the loss of jobs from industries that will be forced to shut down if they have to comply with more stringent regulations.
Yet, there is little evidence that jobs have been lost due to higher environmental standards. There is plenty of evidence that the United States has lost hundreds of thousands of jobs in the past decades due to tax abatements, cutthroat foreign competition, corporate downsizing, mergers, cheap foreign labor, and the dumping of products onto our markets because of inadequate trade protection.
And even if there was little in the way of economic analysis supporting higher-quality air standards, the clean air debate cannot be reduced to a simple cost-benefit analysis that ignores the effect of pollution on human health and separates the economic from the human.
We should not fact the 21st century locked into the old paradigm that gives us the false choice between jobs and clean air. Being pro-environmental does not mean one is anti-business. It is time for new thinking on the issue of pollution, thinking that promotes both economic growth and human health.
Nineteenth-century thinking focused on pollution control—at the end of the tailpipe or the end of the chimney. Such an approach requires a great deal of energy and money, and is generally insufficient to protect the environment. New thinking looks at pollution prevention—inventing ways to stop pollution from being created. New thinking views pollution as resources that are distributed in the wrong places. Wasted resources mean lost profits. Environmental protection IS fiscal conservatism.
For instance, when the state of Minnesota demanded that 3M accept higher environmental standards, the company asked engineers to rework an industrial process that not only reduced pollution but saved the company hundreds of million of dollars through pollution prevent.
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And Honda has recently announced they are going to sell cars in all 50 states that meet California's Low Emission Vehicle (LEV) standards. These new vehicles emit about 70% less smog-producing pollution than the most stringent federal standards require. Where are they being built?
In the Marysville, Ohio, a state that Governor George Voinovich says cannot attract new business because the environmental standards are too burdensome.
New thinking will require that government and industry leaders work together to further the development of a new economic order based on profit and human progress. As we apply the ingenuity that has enabled this country over the course of our history to create an undreamed-of future, let us imagine a 21st century where the American people can have both jobs and good health, where industry is green and the air is clean.
Mr. GEKAS. We thank the gentleman. We will accord him the same privilege that we extended to Representative Klink. If the gentleman wishes to remain for questioning, he may. If he wishes to receive the honorable discharge which I'm fond of submitting, you have your choice.
Mr. KUCINICH. I'd be happy to stay for a while. Thank you, Mr. Chairman.
Mr. GEKAS. All right.
We turn to Mr. Wolff.
STATEMENT OF GEORGE F. WOLFF, FORMER CHAIRMAN, EPA'S CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE
Mr. WOLFF. Thank you, Mr. Chairman. Good morning. I'm George Wolff, principal scientist for General Motors Corporate Affairs Staff, however, I'm here today in my capacity as the former Chairman of the EPA's Clean Air Scientific Advisory Committee during the time that CASAC reviewed the scientific basis for EPA's changes to the ozone and PM standards. CASAC has spent the past 2 years reviewing the data and studies that form the basis for EPA's rules. I have provided, for the record, a detailed analysis of the CASAC review process which I hope will be instructive to the subcommittee in its deliberations.
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Today, I will simply summarize the highlights of the panel's findings on both pollutants. With respect to ozone, the bottom line is that although the ranges of concentration and allowable exceedences originally proposed by EPA were considerable, there was really no bright line which distinguished any of the proposed standards either the level or the number of allowable exceedences as being more protective of public health, and that includes the present standard. The weight of evidence indicates that there is no threshold concentration for the onset of biological responses due to exposure of ozone above background concentrations. Based on information now available, it appears that some individuals may respond to ozone exposure no matter what the level. What this means is that the old paradigm of identifying the lowest observable effects level and then providing an adequate margin of safety is not possible either in practice or in theory. It further means that as a consequence, EPA's ozone risk assessment must play a key role in identifying an appropriate level.
In reaching a conclusion that there is no bright line in terms of public health benefits, we found, for example, that because of many nonquantifiable uncertainties, the differences in the percent of outdoor children responding between the present standard and the 8-hour standard that EPA selected were not significant for any of the health endpoints. Further, when ozone aggravated hospital admissions were compared to total asthma admissions, the differences between the present and new standards was 0.2 percent which was in the noise level. As a consequence, the panel concluded that the selection of a specific level and number of allowable exceedences is a policy judgment rather than a decision that could be based on the underlying science.
In summary, the scientific community has made great strides in understanding the health effects of ozone. Nevertheless, there are still many gaps and large uncertainties that we need to address. The good news is that the community is now in a position to frame the important questions and have them answered before the next review.
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Turning to PM: our understanding of health effects of PM is far from complete. Having said that, the panel agree that retaining the annual PM10 standards was the right thing to do. They also agreed to establish a new PM2.5 standard to distinguish between course and fine particles. However, there was no consensus on the averaging time or form or level of the standard. For example, only 2 out of 21 panelists supported the level that was finally selected by EPA for an annual standard; 6 others declined to select a specific range at all; 5 selected a level well above the one that EPA selected, and eight members recommended against an annual PM2.5 standard.
At least in part, this diversity of opinion can be attributed to the accelerated review schedule. The deadlines did not allow adequate time to analyze, integrate, interpret, and debate the available data on this very complex issue, nor did the court order deadline recognize that achieving the goal of a scientifically defensible standard for PM may require interative steps to be taken in which new data are acquired to fill obvious and critical voids in our knowledge. The diversity of opinion among the CASAC members underscores the many unanswered questions and uncertainties associated with establishing causality between PM2.5 and premature deaths. Among these are exposure misclassification, the lack of an understanding of toxicological mechanisms and the existence of alternative explanations. The panel expressed its desire to avoid being in a similar situation when the next PM standard review cycle is undertaken, and therefore urged EPA to implement, immediately, a targeted research program to address these unanswered questions. The panel also believed that it was essential that EPA obtain PM2.5 measurements.
In summary, CASAC concluded that the selection of a level for the ozone standard is strictly a policy call, because the science does not provide evidence that the new standard provides any additional public health protection over the present standard. For PM, the lack of a consensus by CASAC means that this is a policy call as well.
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Mr. Chairman, I finished my——
Mr. GEKAS. WHAT WAS YOUR LAST STATEMENT? THAT IT WAS WHAT?
Mr. WOLFF. The last—you want me to repeat the last statement?
Mr. GEKAS. Yes, the last sentence.
Mr. WOLFF. The last sentence—For PM, the lack of a consensus by CASAC means that this is a policy call as well.
[The prepared statement of Mr. Wolff follows:]
PREPARED STATEMENT OF GEORGE T. WOLFF, FORMER CHAIRMAN, EPA'S CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE
LEGISLATIVE BACKGROUND
In 1963, the Clean Air Act (CAA) was passed by Congress directing the then Department of Health Education and Welfare to prepare ''Criteria Documents'' which would contain summaries of the scientific knowledge on air pollutants arising from widespread sources. The 1970 CAA required the EPA Administrator to set National Ambient Air Quality Standards (NAAQS) for the identified ''criteria'' pollutants and gave the Administrator the authority to revise the NAAQSs in the future and to set additional NAAQSs as needed. At that time, 6 air pollutants were designated as criteria pollutants: photochemical oxidants (later became ozone), sulfur dioxide, non-methane hydrocarbons (later dropped as a criteria pollutant category), nitrogen dioxide, carbon monoxide, and total suspended particulate (later changed to PM10 which includes only particles with an aerodynamic diameter less than or equal to 10 microns). In 1971, EPA established NAAQSs for all six.
The absence of a mechanism for a periodic reassessment of the initial NAAQSs, prompted Congress to add into the 1977 CAA amendments a requirement that the NAAQSs be reevaluated every five years. After the reevaluation, EPA has the option of retaining the existing standards or proposing new ones. In addition, the 1977 amendments created a new committee—the Clean Air Scientific Advisory Committee (CASAC), to review the periodic reevaluations. Organizationally, CASAC is housed within EPA's Science Advisory Board (SAB)(see footnote 17) and functions as one of the ten standing committees of the SAB. However, unlike most of the other standing committees of the SAB, CASAC reports directly to the EPA Administrator rather than through the Executive Committee of the SAB.
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Congress specified a number of responsibilities for CASAC. One was to provide independent advice on the scientific and technical aspects of issues related to the criteria for air quality standards. The CASAC charter(see footnote 18) states some of their functions:
Not later than January 1, 1980, and at five year intervals thereafter, complete a review of the criteria published under section 108 of the Clean Air Act and the national primary and secondary ambient air quality standards and recommend to the Administrator any new national ambient air quality standards or revision of existing criteria and standards as may be appropriate.
Advise the Administrator of areas where additional knowledge is required concerning the adequacy and basis of existing, new, or revised national ambient air quality standards.
Describe the research efforts necessary to provide the required information.
Advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and
Advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such national ambient air quality standards.
Previous activities of CASAC prior to 1985 have been summarized by Lippmann.3\
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Concerning the membership of CASAC, the charter states:
The Administrator will appoint a Chairperson and six members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies for terms up to four years. Members shall be persons who have demonstrated high levels of competence, knowledge, and expertise in the scientific/technical fields relevant to air pollution and air quality issues.
For any NAAQS review, a CASAC Panel is constituted to conduct the review. A Panel consists of the seven regular members plus a sufficient number of consultant members so that the broad spectrum of expertise needed to fully assess a particular issue is covered on the Panel. These consultants are generally selected from EPA's Science Advisory Board (SAB)(see footnote 19) or from a pool of about three-hundred consultants maintained by the SAB. However, certain issues have required going outside of the SAB and the SAB consultant pool to obtain a particular expertise. For the ozone NAAQS review, the panel consisted of fifteen individuals including physicians, epidemiologists, toxicologists, atmospheric scientists, plant biologists, risk assessment experts and an economist. For the PM review, the panel consisted of 21 scientists.
THE NATIONAL AMBIENT AIR QUALITY STANDARDS
There are two types of NAAQS: primary and secondary. Primary NAAQS are set to protect human public health. Secondary NAAQS are set to protect against adverse welfare effects which include protection of plants, animals, ecosystems, visibility, etc. Primary NAAQS are required to be set at a level that protects public health with an adequate margin of safety for the benefit of any sensitive sub-populations. This is the paradigm CASAC has operated under since it conception.
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In considering the appropriate level for a secondary standard, cost/benefit analysis can be considered, and in fact, is generally the limiting factor in the selection of a secondary NAAQS.
THE OZONE REVIEW PROCESS
The major steps in the NAAQS review process are illustrated for ozone in Table 1. EPA began drafting the Criteria Document (CD), which summarizes all of the relevant science on the sources, chemistry, effects, etc. of ozone, in the middle of 1993. Recent Criteria Documents have become mammoth undertakings. The first ozone Criteria Document,4 published in 1970, summarized the relevant science in 200 pages. The present Criteria Document(see footnote 20) is a three volume set and contains over 1500 pages. A draft Criteria Document was sent to the CASAC Panel in June of 1994.
The Staff Paper (SP) contains the Agency's recommendations for the range and form of the NAAQS along with the justifications for the recommendations that are drawn from material contained in the Criteria Document. In the past, the CASAC review of a Criteria Document was completed before the Staff Paper was written so that the Staff Paper would reflect the science contained in the final Criteria Document. The reviews of both the Criteria Document and Staff Paper are iterative processes that usually involve two to three revisions to both of the documents before CASAC reaches closure, and, in the past, the entire process took several years to complete. However, this review was on an accelerated schedule because of a previous lawsuit filed by the American Lung Association (ALA). In the previous review, CASAC came to closure on the Staff Paper in 1989. When EPA failed to complete the last two steps listed in Table 1 by October of 1991, the ALA and other plaintiffs filed a suit to compel EPA to complete its review. The U.S. District Court for the Eastern District of New York subsequently issued an order requiring the EPA Administrator to announce its proposed decision by August 1, 1992 and its final decision by March 1, 1993. EPA's decision was to retain the existing 1-hour standard of 0.12 ppm, but noted that since there were many potentially important new studies published since the last Criteria Document was written, they would complete the next review of the ozone NAAQS as rapidly as possible. The ALA sought judicial review of this decision, but because of EPA's intention to complete the review as rapidly as possible, the ALA granted EPA a voluntary remand of the petition for review. To accomplish the accelerated review, some of the steps listed in Table 1 were conducted to some extent as parallel tasks rather than sequential tasks. In particular, a draft of the Staff Paper(see footnote 21) was sent out for CASAC review in February of 1995 even though closure on the Criteria Document did not occur until November of 1995.
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As shown in Table 1, CASAC reached closure(see footnote 22) on the third revision of the Criteria Document in fifteen months. CASAC also reached closure(see footnote 23) in November 1995 on the Staff Paper after a nine month review process and two Staff Paper revisions. The proposed NAAQSs were announced in the December 13, 1996 Federal Register. The last step in the process, EPA's promulgation was published in the Federal Register in July, 1997.
HISTORY OF THE OZONE STANDARD
The history of the ozone NAAQS is summarized in Table 2. Additional details are contained in the Staff Paper.6 In the Staff Paper, EPA recommended that the existing 1-hour NAAQS of 0.12 ppm be replaced with an 8-hour average NAAQS within the range of 0.07 ppm to 0.09 ppm with one to five allowable exceedances per year averaged over a three year period. The range of stringency from the most stringent (0.07 ppm with 1 allowable exceedance) to the least stringent (0.09 ppm with 5 allowable exceedances) is substantial. In the December 1996, notice, EPA proposed an 8-hour NAAQS of 0.08 ppm. To be in attainment, the average of the third highest in each year for three years could not exceed 0.08 ppm. In the July 1997 notice, this was modified to be the average of the fourth highest. At this level, the new NAAQS is significantly more stringent than the present 1-hour NAAQS when the resulting number of nonattainment areas are considered. With the present NAAQS, 245 counties did not meet the standard. This number would jump to 524 with the new 8-hr NAAQS of 0.08 ppm. However, this does not tell the entire story because most of the counties in the U.S. do not now have ozone monitors because they meet the present NAAQS. Some of these counties would become nonattainment with the more stringent NAAQS.
As pointed out in the Criteria Document(see footnote 24) and the Staff Paper,6 the 1-hour daily maximum background ozone averages between 0.03 to 0.05 ppm. This is the average 1-hour maximum ozone that could be expected during the summer in the continental U.S. in the absence of sources of anthropogenic precursor emissions in the U.S. In rural areas, which experience broader ozone peaks than urban areas because of the lack of ozone scavenger emissions, the maximum daily 8-hour background ozone concentration would be expected to be only slightly less than the 1-hour maximum background of 0.03–0.05 ppm. Consequently, with the new 8-hour NAAQSs, background ozone becomes a more important consideration.
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OZONE HEALTH EFFECT STUDIES: RESULTS AND IMPLICATIONS
The ozone review relied mainly on four broad types of health effect studies: animal studies, controlled human chamber studies, field studies of ambient exposures, and hospital admission studies. The main use of the animal studies was to gain insight on the mechanisms by which ozone produces biological responses and damage to the respiratory system. In the controlled human exposure studies, individuals were typically exposed to ozone concentrations slightly above, at, or below the present NAAQS for a number of hours (6 hours is the most common) while engaged in light to heavy exercise. Before, during and after the exposure the individual lung functions (such as FEV1 which is the maximum volume of air that can be expired in one second) are monitored and any symptoms (cough, shortness of breath, chest pain, etc.) are noted. These studies have produced two important results. First, for one or two hour exposures, decrements in lung function tests and symptoms were noted in individuals not engaged in exercise only at concentrations greater than three times the present NAAQS. However, some exercising individuals experience decreased lung-function test performance and symptoms even at concentrations at or below the present NAAQS when exposed for multiple hours. This is one of the pieces of evidence that suggested a multiple hour (8-hours) NAAQS is a better measure of response than a 1-hour standard.
The field studies consisted of summer camp and adult exercise studies. In the summer camp studies, children, engaged in the normal physical activities that occur at summer camps, participated in lung function testing and the results were compared to the ambient ozone concentrations. In the adult exercise studies, lung function tests were administered to joggers before and after they ran outdoors and the test results were also compared to the ambient ozone concentrations. The results of both types of studies showed a small but statistically significant relationship between decreased performance on the lung function tests with increasing ozone at concentrations at and below the present NAAQS. These results are consistent with the controlled chamber studies and reinforce the evidence that an 8-hour NAAQS is a better measure of response than a 1-hour NAAQS. Furthermore, since the relationship between the lung function test results and ozone appears to be linear, there may not be a threshold concentration below which biological responses will not occur.
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The hospital admission studies examined the relationships between daily ozone concentrations and daily hospital admissions for respiratory causes. These studies have consistently shown an apparent linear relationship in various North American locations between ozone and the admissions, and EPA has assumed that this relationship is cause and effect. The relationship has been shown to remain even when considering only concentrations below the present NAAQS. Thus, there is no evidence of a threshold concentration and this reinforces the conclusion from the field studies.
CASAC'S INTERPRETATION AND RECOMMENDATIONS ON OZONE
It was the consensus of the CASAC Panel that there only be one primary NAAQS, either an 8-hour or a 1-hour NAAQS. Even though an 8-hour time-frame appeared to be a better measure of response, the Panel acknowledged that the same degree of public health protection could be achieved with either an 8-hour or a 1-hour NAAQS at the appropriate level. It was also the consensus of the Panel that the form of the new standard be more robust than the present one. The present standard is based on an extreme value statistic which is significantly dependent on stochastic processes such as extreme meteorological conditions. The result is that areas which are near attainment will randomly flip in and out of compliance. A more robust, concentration-based form will minimize the ''flip-flops,'' and provide some insulation from the impacts of extreme meteorological events.
The Panel felt that the weight of the health effects evidence indicates that there is no threshold concentration for the onset of biological responses due to exposure to ozone above background concentrations. Based on information now available, it appears that ozone may elicit a continuum of biological responses down to background concentrations. It is critical to understand that a biological response does not necessarily imply an adverse health effect. Nevertheless, this means that the paradigm of selecting a standard at the lowest-observable-effects-level and then providing an ''adequate margin of safety'' is not possible. It further means that risk assessments must play a central role in identifying an appropriate level.
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To conduct the risk assessments, EPA had to identify the populations at risk and the physiological responses of concern, develop a model to estimate the exposure of this population to ozone, and develop a model to estimate the probability of an adverse physiological response to the exposure. EPA selected a small segment of the population, ''outdoor children'' and ''outdoor workers,'' particularly those with preexisting respiratory disease as the appropriate populations with the highest risks. The Panel concurred with the Agency that the models selected to estimate exposure and risk were appropriate models. However, because of the myriad of assumptions that are made to estimate population exposure and risk, large uncertainties exist in the model estimates.
The results of two of the risk analyses are presented in the Staff Paper(see footnote 25) and are reproduced in Tables 3 and 4. It should be noted that the numbers in these Tables differ slightly from the numbers presented in the closure letter(see footnote 26) which were based on EPA's estimates that were in the August 1995 draft of the Staff Paper. The numbers in Tables 3 and 4 are based on EPA's latest estimates contained in the final June 1996 Staff Paper. The biggest change is in the total number of asthma hospital admissions in Table 4 which is 50% lower than those in the closure letter. The difference is that the closure letter used annual admissions, but the numbers in Table 4 are six-month (ozone season) numbers. By using a six-month basis for the total admissions, the percentage of annual admissions due to ozone exposure is inflated by a factor of two.
The ranges from ten model runs of the risk estimates across nine cities for outdoor children are presented in Table 3. Because of the large number of stochastic variables used in the exposure model, the exposure estimates vary from run to run. However, the ranges presented in Tables 3 and 4 are not reflective of all of the uncertainties associated with the numerous assumptions that were made to develop the estimates.
Based on the results presented in these and other similar tables presented in the Staff Paper and an acknowledgment that all the uncertainties cannot be quantified, the CASAC Panel concluded that there is no ''bright line'' which distinguishes any of the proposed standards (either the level or the number of allowable exceedances) as being significantly more protective of public health (this includes the present standard). For example, the differences in the percent of outdoor children (Table 3) responding between the present standard (1H1EX at 0.12 ppm) and the most stringent proposal (8H1EX at 0.07 ppm) are small and their ranges overlap for all health endpoints. In Table 4, the estimates in row 1 suggest considerable differences between the several options. However, when ozone-aggravated asthma admissions are compared to total asthma admissions (rows 5 and 6), the differences between the various options are small.
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The results in Table 4 also raise questions concerning the reasonableness of the assumption of a linear relationship between admissions and ozone concentrations with no threshold concentration. If New York City was just meeting the present NAAQS of 0.12 ppm (1H1EX 0.12), Table 4 indicates that ozone would be responsible for 890 admissions per year. However, of that 890, only 210 admissions would be due to ozone concentrations above the summer background concentration which is taken here to be 0.04 ppm. The majority, 680, or 76.4% of the admissions are attributable to ozone exposure when the ozone concentrations were less than or equal to the summertime background. (It should be noted that in a February, 1997 internal memo, EPA revised these risk estimates downward. The estimates in Table 3 decreased about 10% while the estimates for hospital admissions due to ozone in Table 4 decreased by about a third.)
Nevertheless, the CASAC Panel could see no ''bright line'' to use as a guide in selecting the numerical value of an NAAQS. However, some of the members did express personal preferences for the level of the 8-hour NAAQS and they are given below. All the members recommended that there be multiple allowable exceedances. Two other members said that the selection of a level is strictly a policy decision since the risk assessment did not show that any of the NAAQSs considered were more protective of public health. The health effects experts were equally divided as well. Clearly, this is not an endorsement for a 0.08 ppm standard.
PERSPECTIVE ON OZONE
Let us examine the individual recommendations of the panel members. Of the fifteen panel members, ten expressed an opinion on the level of the primary NAAQS. Of the five members who did not express an opinion, four were plant biologists who were on the panel for their expertise regarding the secondary NAAQS issue and they were not expected to comment on the primary NAAQS. A fifth panelist, an atmospheric scientist, gave the panel guidance on atmospheric issues but chose not to participate in the health effects discussions.
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Of the ten who voiced an opinion, all endorsed an 8-hour standard and all endorsed multiple exceedances. Three members recommended 0.08 ppm which is clearly more stringent than the present NAAQS. Three other members recommended 0.09 ppm and one member recommended a range of 0.09 to 0.10 ppm which, with multiple allowable exceedances, ranges from a NAAQS equal in stringency to the current NAAQS to a NAAQS less stringent to the current NAAQS. One other member said there was no difference between 0.08 and 0.09 ppm. Two other members (including the author) said it is a policy decision because the science has not shown any of the alternatives that are being considered as being more protective of public health than any other. The last member supported a NAAQS in the ''higher end, the middle to higher end.''
THE PM REVIEW PROCESS
The major steps in the PM NAAQS review process are illustrated in Table 5. EPA began drafting the PM Criteria Document,9 in the middle of 1994 Recent Criteria Documents have become mammoth undertakings. The first PM Criteria Document,10 published in 1969, summarized the relevant science in 220 pages. The final version of the present Criteria Document is a three volume set containing over 2400 pages.
The Staff Paper(see footnote 27) (Staff Paper) contains the Agency's recommendations for the range and form of the NAAQS along with justifications that are drawn from material contained in the Criteria Document. In the past, the CASAC review of a Criteria Document was completed before the Staff Paper was written so that the Staff Paper would reflect the science contained in the final Criteria Document (an exception to this was the recent ozone review(see footnote 28)). The reviews of both the Criteria Document and Staff Paper are iterative processes that usually involve two to three revisions to both of the documents before CASAC reaches closure, and, in the past, the entire process took several years to complete. However, this review was on an accelerated schedule because of a court order resulting from a lawsuit filed by the American Lung Association (ALA).
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In February 1994, the ALA filed a suit to compel EPA to complete the PM review by December 1995. The U.S. District Court for the District of Arizona(see footnote 29) subsequently ordered EPA to complete its review and propose any revision in the Federal Register by June 30, 1996 with final promulgation by January 31, 1997. In addition, the Court adopted EPA's projection that the CASAC review of the Criteria Document should be completed by the end of August 1995. Further, the Court ordered EPA to complete a first draft of the Staff Paper by June 1995 and gave CASAC three months to complete its review of the Staff Paper. In addition, the Court stated: ''The Court excludes from its revised schedule, the EPA's provisions for interim CASAC review of various Criteria Document and Staff Paper drafts, including participation by CASAC in the development of methodologies for assessment of exposure/risk analyses.'' As you will see below, however, the review did deviate somewhat from this schedule.
The CASAC Panel members met to discuss the draft of the Criteria Document on August 3–4, 1995, but they could not come to closure. The panel felt that the Criteria Document required extensive revisions and recommended that it be given the opportunity to review the revised draft.13 As a result, both EPA and the ALA petitioned the Court and were granted an extension allowing CASAC until January 5, 1996 to complete its review of the Criteria Document and Staff Paper. CASAC met again on December 14–15, 1995 to review the revised draft of the Criteria Document and the first draft of the Staff Paper. Again the Panel concluded that the Criteria Document did ''not provide an adequate review of the available scientific data and relevant studies of PM,'' and could not come to closure on either the Criteria Document or the Staff Paper.14 Again, both EPA and the ALA petitioned the Court and were granted an extension allowing CASAC until March 15, 1996 to complete its review of the Criteria Document and June 15, 1996 to complete it review of a revised Staff Paper. At a February 29, 1996, the CASAC Panel succumbed to the pressures exerted by the accelerated schedule and reluctantly came to closure on the Criteria Document. I say reluctantly because in the closure letter(see footnote 30) it was stated that ''a number of members have expressed concern that since we are closing on the Criteria Document before we will be able to see the revised version, we have no assurance that our comments will be incorporated.'' Nevertheless, the Panel closed on the Criteria Document on March 15, 1996.
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On May 16 and 17, the Panel met for the final time to review the revised Staff Paper, and came to closure.16 The details of this review and the CASAC recommendations will be discussed shortly.
HISTORY OF THE PM STANDARDS
The history of the PM standards is summarized in Table 6. In 1971, EPA set annual average and 24-hour NAAQSs for total suspended particulates (TSP). Total suspended particulates consisted of any PM that was collected on the filter of a high volume sampler operating within certain EPA specifications. The upper size captured by the high volume sampler varied with wind speed and wind direction but was generally limited to PM with diameters less than 40 m (the width of a human hair is about 70 m). Between 1971 and 1987, it was realized that the most important PM, from a health perspective, were those that deposited in the deep lung (tracheobronchial or pulmonary ) region of the of the respiratory system. Maximum PM penetration to the deep lung region occurs during oronasal (combined nose/mouth breathing) or mouth breathing and deposition is restricted to those PM equal to or less than 10 m in diameter. In nasal breathing, deep lung deposition is limited to particles less than or equal to about 1 m in diameter. Consequently, in 1987, EPA replaced the TSP NAAQSs with 24-hour and annual PM10 NAAQSs where PM10 refers to those particles that are equal to or less than 10 m in diameter. Operationally PM10 is defined by the Federal Reference method and sampler. In terms of sampler collection efficiency, the 10 m cut point represents the size of the particle that is collected with a 50% collection efficiency.
The PM NAAQS is the only NAAQS that is not chemically specific although it is understood that the toxicity of individual particles are not equal. Furthermore, it is understood that the potential for biological responses varies with particle size. As mentioned above, for normal nasal breathing, the particle sizes of concern are generally 1 m in diameter or less, while for oronasal breathing, particles equal to or less than 10 m in diameter are of concern. In addition, the sources of the fine particles (PM1.0 or PM2.5) are generally different from the sources of the coarser particles (particles greater than or equal to 2.5 m in diameter. For example particles less than 2.5 m in diameter are formed primarily by combustion or secondary chemical reactions in the atmosphere whereas particles greater than or equal to 2.5 m in diameter are formed primarily by mechanical processes (construction, demolition, unpaved roads, wind erosion, etc.) For these reasons, many have felt that fine and coarse particles should be treated as separate pollutants because different control strategies are required to address both size ranges. This logic and the health effects discussed below are what lead EPA staff to recommend the separate PM2.5 and PM10 NAAQSs listed in Table 6.
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The proposed PM2.5 NAAQSs is considerably more stringent than the existing PM10 NAAQS. Presently, Based on 1993–95 PM10 data, there are only 1141 U.S. counties with monitors not meeting either the annual or 24-hr PM10 2.5 NAAQSs. Under the new PM2.5 NAAQSs proposals, it is estimated that the nonattainment number of counties that would not meet the annual PM2.5 NAAQS counties would increase to be about 200170. However, there are two caveats. First, very few places have PM2.5 monitors. Consequently PM2.5 data are estimated. The PM2.5 concentrations were estimated for all counties with PM10 samplers by multiplying the relatively abundant PM10 data by ratios derived from a much more limited PM2.5/PM10 data base. Second, these estimates only include counties with PM10 monitors. It is likely, that there will be significant numbers of counties currently without monitors that will eventually be found to be out of attainment. As a consequence, the actual number of PM nonattainment areas will be substantially higher than EPA's estimates.
PM HEALTH EFFECT STUDIES: RESULTS AND IMPLICATIONS
Although individual PM health effect studies have focused on a variety of endpoints, for obvious reasons the epidemiology studies that focused on human mortality were the primary focus of this review. Consequently, we will only discuss these studies.
There were two types of PM-mortality studies cited by EPA. The first were the short-term, acute mortality studies which compared the daily PM and mortality time series in a dozen or so locations around the US. After filtering out or accounting for the effects of such things as seasonality, day of the week, meteorology, etc. on mortality, the remaining statistical relationship between daily PM and daily mortality was optimized and quantified. Although this relationship varied from location to location, the average value was a 4% increase in daily deaths for a 50 g/m(see footnote 31) increase in PM10 concentrations.
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The second type of epidemiological study is the long-term prospective cohort studies where the health status of certain groups (cohorts) of individuals is followed for a number of years in various locations around the country. In these studies, the annual mortality rate in a given location is related to the annual average PM10 or PM2.5 concentrations after the mortality rates have been adjusted for smoking and some, but not all other potential confounding variables. Of the three studies reported in the literature, two show a positive relationship between annual mortality and PM and attribute two to three times the number of deaths to PM as the short-term acute effect studies. The third study shows no PM-mortality relationship but EPA dismissed this study for a number of reasons including its lower statistical power (smaller sample size). EPA uses higher mortality estimates from the two studies to conclude that there are premature deaths due to chronic exposure to PM in addition to the deaths due to acute exposures identified in the time-series studies.
In addition, EPA also concluded that the mortality was due to PM2.5 rather than the coarse fraction of the PM10. As will be discussed below, the evidence for this conclusion was ambiguous.
CASAC'S INTERPRETATION AND RECOMMENDATIONS ON PM
Table 7 summarizes the Panel members' recommendations concerning the forms and levels of the primary standards. Although some Panel members preferred to have a direct measurement of coarse mode PM (PM10–2.5) rather than using PM10 as a surrogate for it, there was a consensus that retaining an annual PM10 NAAQS at the current level is reasonable at this time. A majority of the members recommended keeping the present 24-hour PM10 NAAQS, although those commenting on the form of the standard strongly recommended that the form be changed to one that is more robust than the current standard to provide some insulation from the impacts of extreme meteorological events. Because of the acceptance that PM10–2.5 and PM2.5 are different pollutants, there was also a consensus that a new PM2.5 NAAQS be established, with nineteen Panel members endorsing the concept of a 24-hour and/or an annual PM2.5 NAAQS. The remaining two Panel members did not think any PM2.5 NAAQS was justified. However, as indicated in Table 7, there was no consensus on the level, averaging time, or form of a PM2.5 NAAQS. At first examination of Table 7, the diversity of opinion is obvious and appears to defy further characterization. However, the opinions can be classified into several broad categories. Four Panel members supported specific ranges or levels within or toward the lower end of EPA staff's recommended ranges. Seven Panel members supported specific ranges or levels near, at, or above the upper end of staff's recommended ranges. Two members did not think a PM2.5 NAAQS was warranted at all. The remaining eight other Panel members endorsed the concept of a PM2.5 NAAQS, but declined to select a specific range or level. Consequently, only a minority of the Panel members supported a range that includes the present EPA proposals.
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I would like to emphasize that CASAC did not endorse EPA's recommended ranges. Pertaining to the annual PM2.5 NAAQS, only two members recommended a number as low as the one (15 g/m(see footnote 32)) that EPA selected. Five members recommended much greater than or equal to the top of EPA's selection. Eight members did not recommend an annual NAAQS. The remaining six members merely endorsed the concept of an annual PM2.5 NAAQS, but declined to select a value or range (see footnote 2 in Table 7). Also note from Table 7 that the diversity of opinion was exhibited by the health experts as well as the non-health experts. Clearly, this was not an endorsement of EPA's selection.
For the 24-hour standard, six members favored value of 65 g/m(see footnote 33) or less. Three members favored 75 g/m(see footnote 34), and four did not think an 24-hour PM2.5 NAAQS was needed. The remaining eight members merely endorsed the concept of an 24-hour standard but declined to select a value or range. Again, note from Table 7 that the diversity of opinion was exhibited by the health experts as well as the non-health experts. Clearly, this also was not an endorsement of EPA's selection.
However, most of the members who declined to recommend a range had caveats which appear as footnotes in Table 7. The caveats include: ''recommends a more robust 24-hr. form,'' ''concerned upper range is too low based on national PM2.5/PM10 ratio,'' ''leans towards high end of EPA's proposed range,'' ''yes, but decision not based on epidemiological studies,'' ''low end of EPA's proposed range is inappropriate; desires levels selected to include areas for which there is broad public and technical agreement that they have PM2.5 pollution problems,'' ''only if EPA has confidence that reducing PM2.5 will indeed reduce the components of particles responsible for their adverse effects,'' and ''concerned lower end of range is too close to background.''
The diversity of opinion expressed by the Panel members reflected the many unanswered questions and large uncertainties associated with establishing causality of the association between PM2.5 and mortality. Most Panel members were influenced, to varying degrees by these unanswered questions and uncertainties. The concerns include but are not limited to: 1) the influence of confounding variables, 2) measurement errors, 3) the existence of possible alternative explanations, 4) the lack of an understanding of toxicological mechanisms, 5) the fraction of the daily mortality that is advanced by a few days because of pollution, 6) exposure misclassification, 7) the shape of the dose-response function, and 8) the use of different models in all the studies. Let me expand on these issues.
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The first three concerns are related because they pertain to how certain we are that we have identified the correct causative agent. As mentioned earlier, PM10 and PM2.5 are not single chemical entities. They are composed of four or five major constituents and hundreds of trace constituents. Some have suggested that the causative agent could be some constituent of the PM rather than the total PM or total PM2.5 which would require a control strategy targeted at the causative constituent rather than at PM10 or PM2.5 in general. Also because many of the PM constituents are highly correlated (also with some of the gaseous pollutants as well), the regression methodologies used to determine association, tend to select those variable with the smallest measurement error. For example, PM2.5 and PM10 are measured much more precisely than the coarse fraction of the PM10 (PM10–2.5). Consequently, the slightly higher relative risk calculated from the statistical models for PM2.5 (versus PM10–2.5) is not proof that PM10–2.5 is not the causative agent. Finally, several studies including some of the recent reanalyses of original studies have included gaseous criteria pollutants in their model and discovered that in many cases ozone, sulfur dioxide or carbon monoxide can be as important, and in some cases, more important that PM in describing the mortality. When the data bases are segregated by season, even more confusing results occur as different pollutants are identified for each season as being the apparent causative agent. This has led some to conclude that it is overall air pollution that is causing the excess mortality and that PM is just a surrogate measure. If that is the case, it does not necessarily follow that reducing the concentrations of a surrogate will result in reduced mortality.
The fourth issue of concern has caused several of the Panel members, including one of the chest physicians to state that there is no biologically plausible mechanism that could explain the apparent relationship between acute mortality and PM at concentrations that are a fraction of the present PM10 NAAQSs. This has lead some to postulate that the acute mortality is actually a ''harvesting'' effect. That is, individuals who are terminally ill die somewhat prematurely due to the additional stress caused by PM or overall air pollution. While this may explain some or most of the acute deaths, it can not explain the apparent long-term, chronic deaths attributed to annual PM concentrations in the prospective cohort studies. These prospective cohort studies suggest that the acute mortality only accounts for about a third to a half of the total deaths attributed to PM. However, all or most of this discrepancy vanishes when additional potentially confounding variables are included in the cohort studies and historical or cumulative rather than concurrent air pollution exposures are considered.
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The exposure misclassification concern revolves around the validity of the assumption made in all of the acute studies that daily ambient PM data collected from a centrally located air monitoring site is representative of personal exposure to PM. Results from studies which examined this assumption are ambiguous. The shape of the dose-response function is also a concern. Because of measurement errors, the present statistical methodologies are incapable of detecting the existence of a possible threshold concentration below which acute mortality would not occur. Finally, there is some concern because the statistical models used in the various geographical areas are different. At different sites, different combinations of variables, averaging times, methods for accounting for seasonality and meteorology, and lag times have been used to produce the reported PM-mortality relationships.
The lack of consensus on many of these issues can be partially attributed to the accelerated review schedule. The deadlines did not allow adequate time to analyze, integrate, interpret, and debate the available data on this very complex issue. Nor did the court-ordered schedule recognize that achieving the goal of a scientifically defensible NAAQS for PM may require iterative steps to be taken in which new data are acquired to fill obvious and critical voids in our knowledge. The previous PM NAAQS review took eight years to complete.
The Panel was unanimous, however, in its desire to avoid a similar situation when the next PM NAAQS review cycle is under way by a future CASAC Panel. CASAC strongly recommended that EPA immediately implement a targeted research program to address these unanswered questions and uncertainties. It is also essential that long-term PM2.5 measurements are obtained. CASAC volunteered to assist EPA in the development of a comprehensive research plan that will address the questions which need answers before the next PM review cycle is completed.
PERSPECTIVE
Since PM10 measurements became widespread in 1988, significant and continuous declines in ambient PM10 concentrations have been observed throughout the U.S. Nationwide PM10 concentrations have declined 22% from 1988 to 1995.17 The reason for this decline is because of the implementation of existing control programs required by the 1990 Clean Air Act Amendments that target PM2.5 precursors (VOCs, NOX, and SO2), diesel PM emissions and other primary emission sources. This trend will continue for the foreseeable future as additional measures required by the Amendments are phased in. Consequently, there is time to conduct the research recommended by CASAC which targets the concerns discussed above. Then appropriate PM2.5 NAAQSs could be established.
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REFERENCES
1. Yosie, T.F. ''The EPA Science Advisory Board,'' Environ. Sci. Technol. 1993, 27, 1476–1481.
2. U.S. EPA Science Advisory Board. ''Science Advisory Board fiscal year 1995 Annual Staff Report,'' EPA–SAB–96–001, U.S. EPA, Washington, DC, April 1996.
3. Lippmann, M. ''Role of science advisory groups in establishing standards for ambient air pollutants,'' Aerosol Sci. Technol. 1987, 6, 93–114.
4. Public Health Service. ''Air Quality Criteria for Photochemical Oxidants,'' U.S. Dept. Health, Education, and Welfare, Washington, DC, March 1970.
5. U.S. EPA Office of Research and Development. ''Air Quality Criteria for Ozone and Related Photochemical Oxidants,'' EPA/600/AP–93/004a–c, U.S. EPA, Washington, DC, February 1995.
6. U.S. EPA Office of Air Quality Planning and Standards. ''Review of National Ambient Air Quality Standards for Ozone Assessment of Scientific and Technical Information OAQPS Staff Paper,'' U.S. EPA, Durham, NC, June 1996.
7. Wolff, G.T. ''CASAC Closure on the Air Quality Criteria for Ozone and Related Photochemical Oxidants,'' EPA–SAB–CASAC–LTR–96–001, U.S. EPA, Washington, DC, November 1995.
8. Wolff, G.T. ''CASAC Closure on the Primary Portion of the Staff Paper for Ozone,'' EPA–SAB–CASAC–LTR–96–002, U.S. EPA, Washington, DC, November 1995.
9. U.S. EPA Office of Research and Development. ''Air Quality Criteria for Particulate Matter,'' EPA/600/P–95/001aF–cF, U.S. EPA, Washington, DC, April 1996.
10. Public Health Service. ''Air Quality Criteria for Particulate Matter,'' U.S. Dept. Health, Education, and Welfare, Washington, DC, January 1969.
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11. U.S. EPA Office of Air Quality Planning and Standards. ''Review of National Ambient Air Quality Standards for Particulate Matter, Policy Assessment of Scientific and Technical Information, OAQPS Staff Paper,'' EPA–452/R–96–013, U.S. EPA, Research Triangle Park, NC, July 1996.
12. American Lung Ass'n v. Browner, 884 F. Supp. 345 (D. Ariz. 1994).
13. Wolff, G.T. ''Clean Air Scientific Advisory Committee (CASAC) Comments on the April 1995 draft Air Quality Criteria for Particulate Matter,'' EPA–SAB–CASAC–LTR–95–005, U.S. EPA, Washington, DC, August 31, 1995.
14. Wolff, G.T. ''Clean Air Scientific Advisory Committee (CASAC) Comments on the November 1995 Drafts of the Air Quality Criteria for Particulate Matter and the Review of National Ambient Air Quality Standards for Particulate Matter: Policy Assessment of Scientific and Technical Information (OAQPS Staff Paper),'' EPA–SAB–CASAC–LTR–96–003, U.S. EPA, Washington, DC, January 5, 1996.
15. Wolff, G.T. ''Closure by the Clean Air Scientific Advisory Committee (CASAC) on the Draft Air Quality Criteria for Particulate Matter,'' EPA–SAB–CASAC–LTR–96–005, U.S. EPA, Washington, DC, March 15, 1996.
16. Wolff, G.T. ''Closure by the Clean Air Scientific Advisory Committee (CASAC) on the Staff Paper for Particulate Matter,'' EPA–SAB–CASAC–LTR–96–008, U.S. EPA, Washington, DC, June 13, 1996.
17. U.S. EPA Office of Air Quality Planning and Standards. ''Air Quality Trends,'' EPA–454/F–95–003, U.S. EPA, Research Triangle Park, NC, September, 1995.
INSERT OFFSET RING FOLIOS 3 TO 7 HERE
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Mr. GEKAS. Thank you. Mr. Johnson.
If I failed to state it before, the written statements of the members of this panel will be accepted for the record, without objection, and we return to the 5 minute oral presentation outlining the same.
STATEMENT OF RANDY JOHNSON, COUNTY COMMISSIONER, HENNEPIN COUNTY, MN, ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES
Mr. JOHNSON. Mr. Chairman and members of the subcommittee, thank you for inviting me to discuss the EPA's proposed revisions in the national ambient air quality standards for particulate and ozone.
My name is Randy Johnson, and I chair the board of county commissioners of Hennepin County, MN, which is the 1.2 million people who live in Minneapolis and the suburbs. I am appearing today on behalf of the National Association of Counties, NACo, where I serve as president. NACo represents elected officials in the over 3,000 counties in the United States. You have my written testimony which has been entered into the record. Let me summarize.
First and foremost, I want to make it absolutely clear that NACo supports the goals and ideals of the Clean Air Act: protecting the environment and wise development of natural resources are obligations shared by citizens, private enterprise, and government at all levels. NACo was an active and supportive participant in the debate on the Clear Air Act Amendments of 1990. Clean air is in the obvious best interest of every American. To argue that groups and local governments which have legitimate reservations about these revisions to the ozone and particulate matter standards are somehow against the ideal of clean air or that we simply don't care about asthmatic children is absurd, and it's offensive. No county wants to be out of compliance with Federal standards. We want to be able to assure our citizens that the air they breathe, the water they drink, and the lakes and streams in which they swim meet safe public health standards. However, as county elected officials who, like you, must be accountable for the way we spend taxpayers' money, we have substantial reservations about these revisions.
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As local officials, we are not here to debate the details of any science surrounding the revised standards. We can say that the scientific foundations for the revisions, especially for particulate matter, appear to have an unprecedented level of uncertainty. This is evidenced by the lack of consensus in the scientific community. To put it simply: there are more questions than answers, and while I'm not here to engage in a debate about the details of the science of these standards, we do believe we have standing to raise significant concerns about the potential for imposing exceedingly costly new Federal mandates on the citizens of this country that will yield few benefits.
County officials represented by NACo are concerned that the revisions will adversely affect the credibility of the Clean Air Act requirements currently in effect by questioning continued public support for implementation of controls to attain those standards. Just as we are getting near the endzone, the goalposts have suddenly been moved back, and, of course, we are also concerned about the adequacy of the science on which these new requirements are based. Counties are concerned that the costs of implementing the new standards in hundreds of new nonattainment areas will be prohibitive and not result in appreciable increases in protecting the public health. The implications for a county which is declared to be in noncompliance include the potential for stifling economic development efforts and job growth.
We are not reassured by talk of transitional rules and classifications that seem to fly in the face of the law. EPA's process of promulgating the revised standards simply failed to comply with the Unfunded Mandate Reform Act of 1995 and with the Executive Order 12866. Despite EPA's representations that implementation strategies will not impose new burdens on counties, we are concerned that failure to comply with the Clean Air Act will place local governments in jeopardy from citizen lawsuits.
I know that Mr. Barnes, the EPA Deputy Administrator, in his written testimony, claims that EPA has consulted extensively with representatives of State and local governments. As best we can tell, this extensive consultation in so far as counties are concerned, consisted of perhaps a single meeting or two and a very polite conference call several weeks ago after the standards were publicly supported by the President. In fact, the consultation the EPA refers to seems to be consultation about implementing the standards not consultation about setting the new standards.
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Accordingly, NACo urges three actions: first, that Congress require EPA to assess the effects of implementing the new requirements in the recently approved State implementation plans before imposing further restrictions; second, that Congress delay implementation of the revised standards for ozone and fine particulate matter until EPA produces estimates of the full cost of compliance, and third, that Congress delay implementation of the revised standards until EPA and the scientific community have adequate time to draw sound conclusions about further reductions in ozone and particulates.
In conclusion, Mr. Chairman, members of the committee, what the EPA has done would be like the PGA telling Tiger Woods just before the last round of the Masters Tournament, ''Hey, even though we haven't had time to analyze the videotape from your last few tournaments, we're requiring you to change your swing somehow to make it look better. Maybe you can find some new technology to help you, and, by the way, sorry we didn't have time to talk to you about this much before, but if this change costs you a lot of money, well, that's your problem.'' These new ambient air quality standards are a serious and expensive problem for hundreds of counties and the tens of millions of people who live in them. We urge you to delay their implementation.
[The prepared statement of Mr. Johnson follows:]
PREPARD STATEMENT OF RANDY JOHNSON, COUNTY COMMISSIONER, HENNEPIN COUNTY, MN, ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES
Mr. Chairman, Members of the Subcommittee, thank you for inviting me to discuss the Environmental Protection Agency's (EPA's) proposed revisions to the national ambient air quality standards (NAAQS) for particulate matter and ozone. My name is Randy Johnson, and I am a member of the Board of County Commissioners of Hennepin County, Minnesota. I am appearing on behalf of the National Association of Counties (NACo), where I serve as President. NACo represents elected officials in the over-3000 counties in the United States.
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Let me start out by making it absolutely clear that NACo supports the goals and ideals of the Clean Air Act. We believe that protecting the environment and wise development of natural resources are obligations shared by citizens, private enterprise, and government at all levels. NACo was an active and supportive participant in the debate on the Clean Air Act Amendments of 1990.
The availability of clean air serves the interests of every American. To argue that groups and local governments which have legitimate reservations about these revisions to the ozone and particulate matter standards are somehow against the ideal of clean air, or that they simply ''don't care'' about asthmatic children, is patently ridiculous. None of our counties want to be out of compliance with federal standards. We want to be able to assure our citizens that the air they breathe, the water they drink, and the lakes and streams in which they swim meet the highest possible public health standards.
However, appearing before you as an elected official who, like you, must be accountable to voters for the way I spend their money, we have substantial reservations about these revisions.
As local officials, we are not expected to bring much to the debate regarding the details of any science surrounding the revised standards. We can say that the scientific foundations for the revisions, especially for particulate matter, appear to have an unprecedented level of uncertainty. This is evidenced by the lack of consensus among the scientific community. To put it simply, there are more questions than there are answers.
While we are not here to engage in a debate about the details of the science of these standards, we do believe we have standing to raise significant concerns about the potential for imposing exceeding costly new federal mandates on the citizens of this country that may yield few benefits. From the county perspective, there are four major areas of concern: Credibility of the current air quality standards and continued public financial support for Clean Air Act initiatives; costs/implications of the standards; EPA's flawed process in proposing the standards; and an implementation process that is highly uncertain.
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CREDIBILITY
Many of the State Implementation Plans developed as a result of the 1990 Clean Air Act Amendments are just now being implemented. The implementation strategies incorporated in these plans have not been in effect long enough to determine their impact on public health. We need answers to questions about the validity and impacts of the requirements currently imposed on our states, local governments, and businesses before yet another set of requirements begins to overlay the existing ones.
Whether intended or not, the implications of these new standards to counties is that what we are currently doing has been meaningless or futile. Many counties have made enormous efforts to come into compliance with the national air quality standards. Instead of some recognition of accomplishment, the message sent by these new standards is that our efforts have been inadequate, inappropriate, or ineffective. Needless to say, our member counties are disillusioned, dismayed and disappointed. Do we continue to spend millions of dollars, only to find in another five years that someone thinks the public health is still in jeopardy—that the goal post has been moved again? If we are to be required to commit significant additional resources to further reduce air pollution, we must be assured that these new investments will yield appreciable health benefits.
With respect to continued public support, many states and even more local governments face voter-imposed constraints on our ability to raise revenue. Sooner or later, our constituents will object to financing the implementation of federal mandates if, after the fact, these new investments in air quality turn out to have not accomplished the goal. It is not just our credibility that is at stake; the federal government has an interest in assuring the wise use of limited local dollars.
COSTS/IMPLICATIONS OF THE STANDARDS
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I would like to spend some time discussing the financial implications to counties generally if the proposed standards are promulgated as currently drafted. Counties have devoted substantial resources in improving air quality to protect the public health and the environment. We have made significant progress, and in some cases, remarkable progress.
Mr. Chairman, members of the Subcommittee, the proposed revisions for ozone and particulate matter, if implemented, will result in costly federal mandates that may be essentially unnecessary. Extraordinary costs and burdens will fall on units of local government and our business community. Again, let me preface this discussion with the thought that much of this cost impact analysis is necessarily speculative, due to EPA's failure to meet the required procedural requirements imposed, which would have provided detailed financial information.
What we do know is that many new non-attainment areas will be created. Attached to my written testimony, is a state-by-state list of the anticipated reclassifications of counties as non-attainment for either ozone or particulate matter.
In terms of dollar costs alone, EPA's own estimates show that the costs of attaining the proposed ozone standard outweigh the benefits. While EPA estimates that ozone compliance costs would be $600 million nationwide, one of the independent studies that have been done—in this case in Ohio—projects that annual capital expenditures for Ohio utilities alone would exceed $730 million per year. Those costs are estimated to boost utility rates that counties and citizens pay more than 17% in some areas of that state.
Similarly, a study by Sierra Research for the American Petroleum Institute indicated that compliance costs for the Chicago Metropolitan Area alone would be, at a minimum, $2.5 billion per year. The President's own Council of Economic Advisors contradicts EPA's optimistic cost estimates, stating that the actual cost of compliance could be as much as $60 billion—one hundred times the EPA's estimate.
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It is important to note that these costs are all in addition to the costs of complying with current Clean Air Act requirements, which are steadily improving the quality of the air we breathe.
Of course, up-front dollar costs are not the sole measure of adverse impacts. Under the current ozone standards, fewer than 100 counties are classified as non-attainment. Under the proposed revisions, that number could leap to almost 300, according to some sources.
The possible control measures which could be imposed on these counties, along with the stigma which is automatically attached to a designation of non-attainment, can stifle attempts at economic development in these areas. Designation of a county as non-attainment damages our ability to market our communities as safe and clean places to live.
Furthermore, in addition to the current designation scheme of attainment/non-attainment, EPA is proposing to introduce a new category, the so-called Area of Influence (AOI). An AOI could conceivably be in full attainment for ozone and particulate matter, and yet it might be contributing to a condition of non-attainment up to 200 miles away. The control measures which might be imposed upon an AOI have yet to be determined by EPA, but we expect that they might well include the full range of restrictions to which a non-attainment area is subject.
EPA'S FLAWED PROCESS
In proposing any regulations that are likely to have a significant impact on states and local governments, federal agencies, including EPA, are required to comply with the Unfunded Mandate Reform Act of 1995 (UMRA) and with Executive Order 12866. The purpose of these requirements is to ensure that the regulations proposed and ultimately adopted reflect the legitimate concerns of those that will be affected by them, and that less burdensome alternatives are given serious consideration. In proposing the revisions to the ozone and particulate matter standards, EPA has largely failed to meet either of these legal requirements. The Administration's failure to produce complete cost estimates during the development of the new air quality standards jeopardizes the landmark bipartisan federal policy established by UMRA and Executive Order 12866.
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IMPLEMENTATION
County officials are also concerned about being required to comply with federal standards when there are few tools available to attain such compliance, and when there is no body of knowledge about how to achieve compliance. The 1990 Clean Air Act Amendments created classes of non-attainment based on the severity of the air pollution problem, alternative requirements based on the degree of pollution, and varying time frames for attaining compliance based on the complexity of the problems being addressed.
These designations apply only to ozone, however, not to particulate matter. Given the significant unknowns about which parts of the country need to address fine particles, and how much they need to be reduced, and on which sources should we focus, we are very concerned about deadlines and the consequences of failure to meet them.
EPA has made several representations about the implementation process, some of which may be questionable in light of the Clean Air Act's specific language. For example, EPA is promising that counties can avoid the stigma of being classified non-attainment by the creation of a new ''transitional'' classification for areas in which anticipated regional measures will provide the bulk of the needed ozone reductions. While this approach sounds good in theory, we question whether the Clean Air Act allows a county that clearly violates the numerical standard to be exempt from non-attainment status and thereby avoid the need for local planning requirements and
restrictions on economic growth.
We also question how EPA's Fact Sheets can say that the ozone standard can be achieved in nonattainment areas merely by focusing on emissions from utility plants. I quote from EPA's June 25, 1997 Fact Sheet on ''Achieving Clean Air in Common Sense, Flexible and Affordable Ways.'' It says, ''This plan focuses on major power plants (which offer the most cost-effective opportunities for reducing pollution) to reduce nitrogen oxide, a key ingredient of smog. These reductions alone should be enough to allow most of the newly non-attainment counties to be able to comply with the new [ozone] standard.''
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Notwithstanding the fact that expensive new retrofits of power plants will very likely increase all of our electricity rates, we would like to believe that EPA is accurate, but we have our doubts. Keep in mind that there is a citizen suit provision in the Clean Air Act, and while counties might find that EPA is happy with our efforts, national environmental groups which tend to hold governmental entities to the letter of the law, may not agree.
CONCLUSION
In conclusion, let me again voice my own and NACo's strong support for the goals and ideals of the Clean Air Act. The Act and its subsequent amendments have improved the quality of the air breathed by all Americans.
However, before moving forward with more stringent requirements for ozone and particulate matter, the impact of implementing the current requirements in the State Implementation Plans (that have only recently been approved by EPA) needs to be assessed. New standards should not be imposed until we know how well our current programs are working. We need to solve existing problems before creating a whole host of new problems in implementing the proposed revisions.
Mr. Chairman, members of the Subcommittee: thank you very much for this opportunity to testify on this important issue to the nation's counties. I will be happy to answer any questions I can.
COUNTIES NOT MEETING ALTERNATIVE OZONE STANDARDS(see footnote 35)
TABLE 1—0.08 PPM, 8-HR, 4TH MAXIMUM CONCENTRATION
States and Counties:
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Alabama:
Clay, Jefferson, Madison, and Shelby.
Arizona: Maricopa.
Arkansas: Crittenden.
California:
Alameda, Amador, Calaveras, El Dorado, Fresno, Imperial, Kern, Kings, Los Angeles, Madera, Mariposa, Merced, Nevada, Orange, Placer, Riverside, Sacramento, San Bernardino, San Diego, San Joaquin, Santa Barbara, Santa Claraco, Stanislaus, Tehama, Tulare, Tuolumme, and Ventura.
Connecticut:
Fairfield, Hartford, Litchfield, Middlesex, New Haven, New London, and Tolland.
Delaware:
Kent, New Castle, and Sussex.
District of Columbia: Washington.
Florida: Escambia.
Georgia:
De Kalb, Douglas, Fulton, Gwinnett, Richmond, and Rockdale.
Illinois:
Cook, Kane, Lake, and Madison.
Indiana:
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Allen, Clark, Floyd, Hamilton, Hancock, Kosciusko, Lake, La Porte, Madison, Marion, Porter, St Joseph, Tippecanoe, Vanderburgh, and Warrick.
Kentucky:
Boyd, Bullitt, Campbell, Christian, Daviess, Fayette, Greenup, Hancock, Hardin, Handerson, Jefferson, Kenton, Lawrence, Livingston, McLean, Oldham, and Scott.
Louisiana:
Ascension, Calcasieu, East Baton Rouge, Iberville, Lafayette, Lafourche, and Livingston Parishes.
Maine:
Cumberland, Knox, Sagadahoc, and York.
Maryland:
Anne Arundel, Baltimore, Carroll, Cecil, Charles, Hartford, Kent, Montgomery, Prince Georges, and Baltimore City.
Massachuttes:
Barnstable, Bristol, Essex, Hampden, Hampshire, Middlesex, and Worchester.
Michigan:
Allegan, Benzie, Berrien, Cass, Kent, Lenaweeco, Macomb, Mason, Muskegon, St Clair, and Wayne.
Mississippi: Hancock.
Missouri:
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Clay, Jefferson, St Charles, and St Louis.
New Hampshire:
Hillsborough, and Rockingham.
New Jersey:
Atlantic, Bergen, Camden, Cumberland, Essex, Gloucester, Hudson, Hunterdonco, Mercer, Middlesex, Monmouth, Morris, Ocean, and Union.
New York:
Bronx, Dutchess, Essex, Jefferson, Kings, Niagara, Orange, Putnam, Queens, Richmond, Suffolk, Wayne, and Westchester.
North Carolina:
Caswell, Chathamco, Cumberland, Durham, Forsyth, Franklin, Grandville, Guilford, Haywood, Johnston, Lincoln, Mecklenburg, Northampton, Rowan, Wake, and Yancy.
Ohio:
Allen, Ashtabula, Butler, Clark, Clermont, Clinton, Cuyahoga, Franklin, Hamilton, Jefferson, Knox, Lake, Lawrence, Licking, Logan, Lucas, Madison, Mahoning, Medina, Montgomery, Portage, Stark, Summit, Trumbull, Warren, and Washington.
Oklahoma: Tulsa.
Pennsylvania:
Allegheny, Beaver, Berks, Blair, Bucks, Cambria, Dauphin, Delaware, Erie, Lackawanna, Lancaster, Lehigh, Luzerne, Mercer, Montgomery, Northampton, Perry, Philadelphia, Washington, Westmoreland, and York.
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Rhode Island:
Kent, and Providence.
South Carolina:
Anderson, Chester, Richland, and York.
Tennessee:
Anderson, Blount, Dickson, Hamilton, Jefferson, Knox, Madison, Sevier, Shelby, Sullivan, Sumner, and Williamson.
Texas:
Bexar, Brazoria, Collin, Dallas, Denton, El Paso, Galveston, Gregg, Harris, Jefferson, Orange, Smith, Tarrant, and Travis.
Utah: Salt Lake.
Virginia:
Arlington, Caroline, Charles City, Chesterfield, Fairfax, Hanover, Henrico, Prince William, Stafford, Alexandria, Hampton, and Suffolk.
West Virginia:
Cabell, and Wood.
Wisconsin:
Door, Kenosha, Kewaunee, Manitowoc, Milwaukee, Outagamie, Ozaukee, Racine, and Sheboygan.
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COUNTIES NOT MEETING EPA'S PROPOSAL PM2.5 STANDARDS(see footnote 36)
TABLE 2—24-HOUR—65 g/m(see footnote 37), 98TH PERCENTILE; ANNUAL ARITHMETIC MOAN—15.0 g/m(see footnote 38), SPATIAL AVERAGE (BASED ON 1993–95 DATA)
States and Counties:
Alaska: Anchorage Borough.
Alabama:
Escambia, Etowah, and Mobile.
Arizona:
Maricopa, and Santa Curz.
Arkansas: Arkansas.
California:
Fresno, Imperial, Inyo, Kern, Kings, Los Angeles, Madera, Merced, Orange, Riverside, San Bernardino, San Joaquin, and Tulare.
Delaware: New Castle.
Georgia: Washington.
Illinois:
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Cook, Du Page, La Salle, Macon, Madison, Randolph, Rock Island, St Clair, and Will.
Indiana:
Clark, Dubois Madison, Marion, Vanderburgh, Vermillion, and Vigo.
Iowa:
Black Hawk, Cerro Gordo, Clinton, Polk, and Scott.
Kansas:
Johnson, Sedgwick, and Wyandotte.
Kentucky:
Bell, Boyd, Campbell, Daviess, Floyd, Harlan, Henderson, Jefferson, Kenton, Lawrence, Marshall, and Perry.
Louisiana: Ouachita.
Maryland:
Anne Arundel, Baltimore, Cecil, and Baltimore City.
Michigan:
Monroe, and Wayne.
Missouri:
Buchanan, Jackson, Jefferson, St Louis, and St Louis City.
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Nebraska:
Buffalo, Cass, Dawson, Douglas, Lancaster, and Otoe.
New Jersey:
Atlantic, Bergen, Camden, Essex, Gloucester, Hudson, Mercer, Passaic, Union, and Warren.
New York:
Bronx, Kings, New York, Putnam, and Richmond.
North Carolina: Michell.
Ohio:
Allen, Belmont, Butler, Columbiana, Cuyahoga, Franklin, Hamilton, Hancock, Jefferson, Lake, Lawrence, Lorain, Lucas, Mahoning, Noble, Richland, Sandusky, Scioto, Stark, Trumbull, and Wyandot.
Oklahoma:
Comanche, Kay, Muskogee, and Tulsa.
Oregon: Lane.
Pennsylvania:
Allegheny, Berks, Bucks, Cambria, Delaware, Erie, Lackawanna, Lancaster, Lawrence, Luzerne, Lycoming, Mercer, Philadelphia, Westmoreland, and York.
South Dakota: Pennington.
Tennessee:
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Blount, Davidson, Hamilton, Knox, McMinn, Sullivan, and Union.
Texas:
Harris, and Nueces.
Virginia:
Bristol, and Roanoke
West Virginia:
Brooke, Hancock, and Ohio.
Wisconsin:
Milwaukee, and Waukesha.
INSERT OFFSET RING FOLIOS 8 HERE
Mr. GEKAS. We thank the gentleman. We'll turn to our final witness, Mr. Thurston.
STATEMENT OF GEORGE D. THURSTON, ASSOCIATE PROFESSOR OF ENVIRONMENTAL MEDICINE, NEW YORK UNIVERSITY, SCHOOL OF MEDICINE
Mr. THURSTON. Thank you, Mr. Chairman and subcommittee members. I'm George Thurston, a tenured associate professor of environmental medicine at NYU School of Medicine, and my scientific research involves investigation of the human health effects of air pollution. I'm also director of the National Institute of Environmental Health Science's community outreach and education program at NYU. The goal of this program, one of the goals, is to provide an impartial scientific resource on environmental health issues to decisionmakers like yourselves, and that is my purpose in testifying to you here today. I'm not here at the behest of any stakeholder group, either industry or environmental.
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The new EPA air quality standards are based on sound science. The adverse health consequences of breathing ozone or particulate matter are serious and well documented even at levels below the National Ambient Air Quality Standards that were in effect before July 18, 1997, when the EPA promulgated new standards. This documentation includes impacts demonstrated by controlled chamber exposures and by observational epidemiologies showing consistent associations between each of these pollutants and adverse impacts across a wide-range of human health outcomes. These adverse health impacts include decreased lung function, a measure of our ability to breathe freely; more frequent respiratory symptoms; increased numbers of asthma attacks; more frequent emergency department visits; additional hospital admissions, and increased numbers of daily deaths.
In previous congressional hearings, much discussion has centered on the New York City Hospital admissions effects, but the adverse impacts of air pollution on hospital admissions are only the tip of the iceberg of adverse effects associated with PM and ozone pollution. Indeed, as the displayed chart—located over there—shows, and in my testimony, I show that hospital admissions account for only approximately 0.01 percent of all the ozone induced adverse health impacts in New York City. Also, while there are about seven million persons in New York City, there are a total some 120 million persons throughout the United States who now live in areas exceeding the new ozone standard and who, therefore, will also be benefited by that new standard. Thus, the New York City Hospital admissions effects are best viewed as indicator of a much broader spectrum of potentially avoidable adverse health effects being experienced by the public today as a result of air pollution exposures.
My recently published asthma camp study, for example, shows that the number of children having asthma attacks increased as ambient ozone levels rise. Airway inflammation induced by ozone in children and adults with asthma makes them more susceptible to having asthma attacks. Airway inflammation can also make the elderly more susceptible to pneumonia, a major cause of illness and death in this age group.
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While the exact causal mechanism; i.e., the smoking gun, of particulate matter mortality association is not yet known, there are biologically plausible mechanisms that are known that could account for the associations. For example, recent animal experiments by Godleski and coworkers at Harvard University confirmed that exposures to elevated concentrations of ambient particulate matter can result in cardiac related deaths in animals.
Epidemiological evidence has also accumulated over recent years indicating a role by ozone and daily human mortality, a factor not fully considered by the U.S. EPA and the latest ozone staff paper or in last December's regulatory impact assessment for ozone. I've attached to my testimony a list of over 20 studies showing associations between ozone and mortality which were not considered by the EPA. Thus, it's clearer than ever that important reductions in public health risks can be achieved by implementing the standards recently promulgated by the EPA.
In conclusion, I would like to reiterate the key message contained in the letter that I and 26 other air pollutions researchers and positions sent to President Clinton earlier this year. Please listen to the medical and scientific community on this issue. Exposures to ozone and particulate matter air pollution have been linked to medically significant adverse health effects, and the pre-July 18, 1997, national air quality standards for these pollutants were not sufficiently protective of public health.
Thank you.
[The prepared statement of Mr. Thurston follows:]
PREPARED STATEMENT OF GEORGE D. THURSTON, ASSOCIATE PROFESSOR OF ENVIRONMENTAL MEDICINE, NEW YORK UNIVERSITY, SCHOOL OF MEDICINE
I am George D. Thurston, a tenured Associate Professor of Environmental Medicine at the New York University (NYU) School of Medicine. My scientific research involves investigations of the human health effects of air pollution.
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I am also the Director of the National Institute of Environmental Health Sciences' (NIEHS) Community Outreach and Education Program at NYU. A goal of this program is to provide an impartial scientific resource on environmental health issues to decision-makers, and that is my purpose in testifying to you here today.
The adverse health consequences of breathing ozone or particulate matter are serious and well documented, even at levels below the U.S. National Ambient Air Quality Standards (NAAQS) that were in effect before July 18, 1997. This documentation includes impacts demonstrated by controlled chamber exposures and by observational epidemiology showing consistent associations between each of these pollutants and adverse impacts across a wide range of human health outcomes. The implementation of the NAAQS promulgated by the U.S. EPA on July 18th will provide a substantial improvement in the public health protection provided to the American people by the Clean Air Act.
Ozone (O3) is a highly irritating gas which is formed in our atmosphere in the presence of sunlight from other ''precursor'' air pollutants, including nitrogen oxides and hydrocarbons. These precursor pollutants, which cause the formation of ozone, are emitted by pollution sources including automobiles, electric power plants, and industry.
Particulate Matter (PM) air pollution is composed of two major components: primary particles, or ''soot'', emitted directly into the atmosphere by pollution sources such as industry, electric power plants, diesel buses, and automobiles, and; ''secondary particles'' formed in the atmosphere from sulfur dioxide and nitrogen oxide gases, emitted by many combustion sources, including coal-burning electric power plants.
Observational epidemiology studies have shown compelling and consistent evidence of adverse effects by ozone and PM below the current U.S. standards. These studies statistically evaluate changes in the incidence of adverse health effects in a single population as it undergoes varying real-life exposures to pollution over time, or across multiple populations experiencing different exposures from one place to another. They are of two types: 1) population-based studies, in which aggregated counts of effects (e.g., hospital admissions counts) from an entire city might be considered in the analysis; and, 2) cohort studies, in which selected individuals, such as a group of asthmatics, are considered. Both of these types of epidemiologic studies have shown confirmatory associations between ozone and PM air pollution exposures and increased adverse health impacts, including: Decreased lung function (a measure of our ability to breathe freely); more frequent respiratory symptoms; increased numbers of asthma attacks; more frequent emergency department visits; additional hospital admissions, and; increased numbers of daily deaths.
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Clearly, the new EPA proposed air quality standards are based on sound science.
In my own research, I have found that both ozone and particulate matter air pollution are associated with increased numbers of respiratory hospital admissions in New York City, Buffalo, NY, and Toronto, Ontario, even at levels below the current standards. My results have been confirmed by other researchers considering locales elsewhere in the world. The U.S. EPA used my New York City asthma results in their ''Staff Paper'' when estimating the health benefits of tightening the ozone standard.
But the effects of ozone on hospital admissions are only the tip of the iceberg of adverse effects associated with this pollutant, and they are best viewed as indicators of the much broader spectrum of adverse health effects being experienced by the public today as a result of air pollution exposures. Most of these adverse effects are not directly recorded, however, as no central records are kept of these related, but more numerous, adverse pollutant impacts, such as increased restricted activity days and doctors visits.
In previous Congressional hearings, much discussion has centered on the hospital admissions effects of ozone, but other impacts have been largely ignored. In order to give some insight into the much larger numbers of other effects lurking beneath the surface of the ozone hospital admissions effects noted by George Wolff in Table VI–2 (revised) of his November 30, 1995 closure letter to Carol Browner, I have made working estimates of the other documented adverse impacts of ozone exposure that will also be reduced in New York City, if the proposed new ozone standard were to be implemented as proposed.
The results of my analysis are presented in the figure below, entitled the ''Pyramid of Annual New York City Adverse Impacts of Ozone Avoided by the Implementation of the Proposed New Standard (vs. ''As Is''). This pyramid is intended to be illustrative of the enormous gaps in the table presented by Dr. Wolff, and is not presented as a peer-reviewed comprehensive documentation of all the benefits which would be accrued by achieving the EPA's proposed new standard. Please note that the figure could not be drawn ''to scale''. If it were drawn ''to scale'', the New York City (NYC) asthma admissions triangle would not even be visible, since it accounts for only approximately 0.01% of the total number of ozone related impacts noted for NYC. However, despite the fact that it visually overstates the relative size of the NYC hospital asthma admissions, and the fact that still other ozone effects cannot be considered in these calculations due to a lack of data, this figure still makes very clear that the New York City asthma admissions counts considered in the Wolff table represent only a small fraction (far less than 1 percent) of the adverse effects of air pollution which will be avoided through the implementation of the new standard being proposed by the EPA.
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The starting point of the analysis I used to estimate the ''pyramid'' of effects noted in the attached figure is the 265 New York City asthma admissions estimated to be avoided as a result of the implementation of the new standard, as per the top line of the Wolff chart (i.e., 385-120=265 admissions). First, as I noted above, there are also non-asthma respiratory admissions effects. Based upon the average ozone impacts derived from my ozone-admissions regression results for New York City and Buffalo, this indicates that the non-asthma respiratory admissions avoided (for causes such as pneumonia and bronchitis) are about 90 percent of the size of the asthma admissions, or 240/yr. Now, based on the fact that New York City hospital records indicate that 12.6% of pediatric asthma emergency department (ED) visits result in an asthma hospital admission (Barton et al, 1993), it is estimated that the ED visits associated with the 505 ozone-related respiratory admissions would amount to approximately 3,500 ozone-induced ED visits (i.e., 505 × 1/.126). Furthermore, using the ozone adverse health effect coefficients derived from the published literature by the Empire State Electric Energy Research Corporation (ESEERCO) in the New York State Environmental Externalities Cost Study (Oceana Publications, Inc., December, 1995), and ratioing the ozone effect coefficients provided in that report with that for asthma hospital admissions in New York City (used to get the 265 admissions), effects for other outcomes were derived, based on the original 265 NYC hospital admissions/day estimate. In this way, estimated annual effects to be avoided in New York City each year were also derived for: Acute (i.e., daily) mortality, asthma attacks, restricted activity days (i.e., the total number of person-days during which some normal activities were curtailed), and acute respiratory symptom days (i.e., the total number of person-days during which additional respiratory symptoms would be experienced).
PYRAMID OF NEW YORK CITY, NY ANNUAL ADVERSE OZONE IMPACTS AVOIDED BY THE IMPLEMENTATION OF THE PROPOSED NEW STANDARD (VS. ''AS IS'')
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"The Official Committee record contains additional material here."
Some may quarrel with the specific coefficients chosen here to model the other effects, but the point remains that these other effects collectively represent large multiples of the hospital admissions benefits noted for New York City in the chart presented at the hearing. Moreover, the categories of effects considered in the attached figure are not exhaustive by any means, but they still serve to show that the table presented by Dr. Wolff greatly underestimates the number of adverse health events that can be avoided by the meeting the proposed standard.
Note that the numbers in this figure have been corrected to avoid double counting of adverse health ''events''. For example, the number of hospital admissions has been subtracted from the total number emergency department visits, assuming that the patients would have first passed through the ED before being admitted.
Note also that this figure can be used to consider other cases in Dr. Wolff's chart as well, since all estimates have been scaled to the asthma admissions number. For example, for the difference between the existing and the proposed new standard cases, the numbers in this figure would all be divided by three (= (210-120)/(385-120) = 90/265). However, this calculation underestimates the benefits of the new standard, since it fails to account for the more rapid progress which will no doubt be able to be achieved in New York City under the new standard, when upwind counties clean up. The comparison to the ''as is'' case contained in the attached figure is the more apt comparison.
Finally, while there are about 7 million persons in New York City, there are a total of some 122 million persons throughout the U.S. who now live in areas exceeding the proposed O3 standard, and will therefore also be benefited by that new standard. Thus, the New York City hospital admissions effects are best viewed as an indicator of a much broader spectrum of potentially avoidable adverse health effects being experienced by the public today as a result of air pollution exposures.
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Among the important adverse effects noted above as also occurring in the New York region as a result of ozone exposure are asthma attacks. In February, the results of a study I conducted on the effects of air pollution on children at a summer ''asthma'' camp in Connecticut were published. This study of a group of about 55 moderate to severely asthmatic children shows that these children experience diminished lung function, increased asthma symptoms, and increased use of unscheduled asthma medications as ozone pollution levels rise. As shown in the figure below, the risk of a child having an asthma attack was found to be approximately 40 percent higher on the highest ozone days than on an average study day, with these adverse effects extending to below 120 ppb O3.
DAILY ASTHMA ATTACKS IN CHILDREN INCREASES AS OZONE LEVELS RISE
"The Official Committee record contains additional material here."
Airway inflammation induced by ozone and PM is especially a problem for children and adults with asthma, as it makes them more susceptible to having asthma attacks, consistent with my asthma camp results. For example, recent controlled human studies (e.g., Molfino et. al., 1991) have indicated that prior exposure to ozone enhances the reactivity of asthmatics to aeroallergens, such as pollens, which can trigger asthma attacks. In addition, the increased inflammation and diminished immune system ozone effects in the lung can make the elderly more susceptible to pneumonia, a major cause of illness and death in this age group.
The O3—morbidity associations indicated by epidemiologic studies are supported by a large body of data from controlled exposure studies that give consistent and/or supportive results, and that have demonstrated pathways by which ozone can damage the human body when it is breathed. Clinical studies have demonstrated decreases in lung function, increased frequencies of respiratory symptoms, heightened airway hyper-responsiveness, and cellular and biochemical evidence of lung inflammation in healthy exercising adults exposed to ozone concentrations at the present standard, and at exposures as low as 80 parts per billion for 6.6 hours (e.g., Follinsbee et. al., 1988, and Devlin et. al., 1991).
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Similarly, animal exposures to combustion-related fine particles (PM2.5) have also been shown by controlled exposure studies to have significant adverse effects on the lung, including diminished respiratory defense mechanisms, opening the lung to illness from other causes. In addition, repeated exposures to acidic fine particulate matter, a portion of the fine PM2.5 which the EPA now aims to focus on in the newly proposed reductions in the PM standard, has been shown to affect clearance in the lung in a manner similar to that of tobacco smoking, suggesting that these fine particles may have analogous long-term exposure effects on the development of Chronic Obstructive Pulmonary Disease.
The epidemiologic evidence indicating an association between PM and increased mortality and morbidity has been well documented by numerous investigators in the published literature (e.g., see Schwartz, 1997). The fact that these effects have both been shown so consistently across outcomes and from place to place is supportive of the interpretation of these associations as causal, and not due to some unknown confounder. Furthermore, controlled human and animal exposures of combustion aerosols have shown significant adverse effects by these fine particles, which are the class of particles which EPA now appropriately aims to regulate.
While the exact causal mechanism (i.e., the ''smoking gun'') of the PM-mortality association is not yet known at this time, there are biologically plausible mechanisms that are known which could account for the associations. For example, PM stresses on the lung (e.g., by inducing edema), places extra burden on the heart, which could induce fatal complications for persons with cardiac problems. Recent animal experiments by Godleski and coworkers (1996, 1997) at Harvard University confirm that exposures to elevated concentrations of ambient PM can result in cardiac related death in animals. Thus, the situation with PM and mortality is similar to many public health risks in the past, such as cholera in London a hundred years ago, or smoking over the past few decades: the epidemiology shows biologically plausible effects, but the exact mechanism by which the documented adverse impacts are effected is not yet known. This uncertainty about the exact mechanism of effect did not stop us from taking societal action against epidemiologically documented health threats, such as smoking, in the past, and should not be a deterrent to controlling the adverse consequences of particulate matter air pollution now.
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Epidemiological evidence has also accumulated over recent years indicating a role by O3 in daily human mortality, a factor not fully considered by the U.S. EPA in the latest O3 Staff Paper or in the EPA's recent Regulatory Impact Assessment (RIA) for ozone. For example, Verhoeff, et. al. (1996) used Poisson regression analysis to analyze associations between daily mortality and air pollution concentrations in Amsterdam, The Netherlands during 1986–1992, finding a daily mortality RR=1.10 per 100 ppb 1-hr daily maximum O3, even after controlling for weather and co-pollutants. Anderson et. al. (1996) investigated whether outdoor air pollution levels in London, England influenced daily mortality during 1987–1992, finding a daily mortality RR=1.10 per 100 ppb 8-hr O3 (RR=1.08 per 100 ppb 1-hr O3), even after controlling for weather and co-pollutants. Samet et. al. (1997) considered total daily mortality and environmental data for Philadelphia during 1973–1980, finding that, when pairs of pollutants were considered simultaneously, only the ozone coefficient consistently remained unchanged and statistically significant, with a total mortality RR of 1.02 for a 20 ppb increase in 24-hr daily average ozone. Cause of death-specific regressions indicated the largest ozone RR for respiratory deaths, consistent with biological plausibility. More recently, I have found that daily mortality also rises after high ozone days in the U.S. cities of New York City, Atlanta, Detroit, Chicago, St. Louis, Minneapolis, San Francisco, Los Angeles, and Houston, even after accounting for other factors such as season and weather, and at ozone levels below the current NAAQS standard (Thurston, 1997). I find that the overall population's risk of death rises by about 6 percent on ozone days having a 1-hour maximum of ozone that is 100 ppb above the average. The many new studies released since the EPA Criteria Document was prepared which document associations between ozone air pollution and human mortality are listed in the attached Table 1.
Once the weight of this new evidence of biologically plausible associations between acute ozone exposures and increased daily human mortality is considered, it is clearer than ever that important reductions in public health risks can be achieved by going from the present standard (equivalent to about a 90 ppb 8-hour standard) down to an 80 ppb 8-hour O3 standard, as has been promulgated by the EPA.
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It has been argued that we should leave the Clean Air Act alone because rapid progress is already being made, but this is not the case for ozone. As shown in the figure below, progress regarding ambient ozone levels in the U.S. has slowed in recent years under the existing regulations. And this plot does not include the ozone levels now being experienced in the summer of 1997 in the northeastern U.S., a summer in which the ozone concentrations are looking more like the summer of 1988 with each passing day.
"The Official Committee record contains additional material here."
Thus, it is important for committee members to realize that the downside to not acting to control these pollutants at this time is the risk that these pollutants' adverse effects will continue to occur unabated. This will result in the public unnecessarily continuing to bear the ongoing diminished quality of life and the health care costs we presently pay because of the adverse health effects of these air pollutants.
In conclusion, I would like to restate the key messages contained in the letter that I and 26 other air pollution researchers and physicians sent to President Clinton earlier this year:
Please listen to the medical and scientific community on this issue.
Exposures to O3 and PM air pollution have been linked to medically significant adverse health effects.
The pre-July 18, 1997 NAAQS for these pollutants were not sufficiently protective of public health.
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Thank you for the opportunity to testify on this important issue.
REFERENCES
Anderson, H.R., Ponce de Leon, A, Bland, J.M., Bower, J.S., and Strachen, D.P. (1996) Air pollution and daily mortality in London: 1987–92. British Medical Journal, 312:665–669.
Barton, D.J.; Teets-Grimm, K.; and Kattan, M. (1993) Emergency room visit patterns of inner city children for asthma. Am. Rev. of Resp. Dis. 147: A577.
Devlin, R.B.; McDonnell, W.F.; Mann, R.; Becker, S.; House, D.E.; Schreinemachers, D., and; Koren, H.S. (1991) Exposure of humans to ambient levels of ozone for 6.6 hours causes cellular and biochemical changes in the lung. Am. J. Respir. Cell Mol. Biol. 4: 72–81.
Follinsbee, L.J.; McDonnell, W.F., and; Horstman, D.H. (1988) Pulmonary function and symptom responses after 6.6 hour exposure to 0.12 ppm ozone with moderate exercise. JAPCA 38:28–35.
Godleski, J.J.; Sioutas, C.; Katler, M.; Catalano, P.; and Koutrakis, P. (1996) Death from inhalation of concentrated ambient air particles in animal models of pulmonary disease. Proceedings of the Second Colloquium on Particulate Air Pollution and Human Health, May 1–3, 1996, Park City, Utah.
Godleski, J.J., Sioutas, C., Verrier, R.L.; Killingsworth, C.R.; Lovett, E.; Murthy, G.G.; Hatch, V.; Wolfson, J.M.; Ferguson, T., and Koutrakis, P. (1997) Inhalation exposure of canines to concentrated ambient air particles. Am. J. Resp. and Crit. Care Med., 155:(4) A246.
Molfino, N.A.; Wright, S.C.; Katz, I.; Tarlo, S.; Silverman, F.; McClean, P.A.; Szalai, J.P.; Raizenne, M.; Slutsky, A.S., and; Zamel, N. (1991) Effect of low concentrations of ozone on inhaled allergen responses in asthmatic subjects. Lancet. 338(8761): 199–203.
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Samet,, J.M.; Zeger, S.L.; Kelsall, J.E., Xu, J.; and Kalkstein, L.S. (1997) Air pollution, weather, and mortality in Philadelphia 1973–1988. Analyses of the Effects of Weather and Multiple Air Pollutants. The Phase I.B Report of the Particle Epidemiology Evaluation Project. Health Effects Institute, Cambridge, MA, March, 1997.
Schwartz, J. (1997) Health effects of air pollution from traffic: ozone and particulate matter. Health at the Crossroads: Transport Policy and Urban Health, T. Fletcher and A.J. McMichael Eds., John Wiley and Sons Ltd., New York, NY.
Thurston, G.D. (1997) Ozone Air Pollution and Human Mortality. Paper 97–MP9.04. For presentation at the Air & Waste Management Association's 90th Annual Meeting & Exhibition, June 8–13, 1997, Toronto, Ontario, Canada
Verhoeff, A.P., Hoek, G.; Schwartz, J.; and Wijnen, J.H. (1996) Air pollution and daily mortality in Amsterdam. Epidemiology. 7:225–230.
TABLE 1. RECENT STUDIES LINKING OZONE WITH DAILY MORTALITY NOT CONSIDERED BY THE U.S. EPA O3 CRITERIA DOCUMENT OR STAFF PAPER
Anderson et. al. 1996. Air Pollution and Daily Mortality in London: 1987–1992. BMJ 312:665–669.
Bates, D. 1995. Ozone: A Review of Recent Experimental, Clinical and Epidemiological Evidence, with Notes on Causation, Part 2. Can. Respir. J. 2(3): 161–171.
Cifuentes, L.A. and L. Lave. 1997. Association of Daily Mortality and Air Pollution in Philadelphia, 1983–1988. J. Air Waste Manage. Assoc. (In press).
Hoek et. al. 1997. Effects of Ambient Particulate Matter and Ozone on Daily Mortality in Rotterdam, The Netherlands. Accepted to: Arch. Environ. Health.
Ito, K. and Thurston, G.D. 1996. Daily PM10/Mortality Associations: An Investigation of At-Risk Subpopulations. J. Expo. Analysis Environ. Epidemiol. 6(1): 79–225.
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Kinney et. al. 1995. A Sensitivity Analysis of Mortality/PM10 Associations in Los Angeles. Inhal. Toxicol. 7:59–69.
Loomis et. al. 1996. Ozone Exposure and Daily Mortality in Mexico City: A Time-Series Analysis. Health Effects Institute Research Report Number 75, October 1996.
Moolgavkar et. al. 1995. Air Pollution and Daily Mortality in Philadelphia. Epidemiology 6(5): 476–484.
Ostro. 1995. Fine Particulate Air Pollution and Mortality in Two Southern California Counties. Environ. Res. 70: 98–104.
Ostro et. al. 1996. Air Pollution and Mortality: Results from a Study of Santiago, Chile. J. Expo. Analysis Environ. Epidemiol. 6: 97–114.
Ozkaynak et. al. 1995. Associations Between Daily Mortality, Ozone and Particulate Air Pollution in Toronto, Canada. Paper Presented at the Colloquium on Particulate Air Pollution, Irvine, CA, January 24–25.
Saldiva et. al. 1994. Association Between Air Pollution and Mortality Due to Respiratory Diseases in Children in Sao Paulo, Brazil: A Preliminary Report. Environ. Res. 65: 218–225.
Saldiva et. al. 1995. Air Pollution and Mortality in Elderly People: A Time-Series Study in Sao Paulo, Brazil. Arch. Environ. Health 50 (2): 159–163.
Samet et. al. 1996. Air Pollution and Mortality in Philadelphia, 1974–1988. Report to the Health Effects Institute on Phase IB: Particle Epidemiology Evaluation Project, March 25, 1996 (Accepted for publication).
Samet et. al. 1997. Particulate Air Pollution and Daily Mortality: Analysis of the Effects of Weather and Multiple Air Pollutants. The Phase I.B Report of the Particle Epidemiology Evaluation Project. Health Effects Institute, March 1997.
Sartor, F. et. al. 1995. Temperature, Ambient Ozone Levels, and Mortality during Summer 1994, in Belgium. Environ. Res. 70: 105–113.
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Sunyer et. al. 1996. Air Pollution and Mortality in Barcelona. J. Epidemiol. Community Health 50 (Suppl. 1): S76–S80.
Thurston, G.D. 1997. Ozone Air Pollution and Human Mortality. Paper 97–MP9.04. Presented at the Air and Waste Management Association's 90th Annual Meeting and Exhibition, June 8–13, 1997, Toronto, Canada.
Touloumi et. al. 1997. Short Term Effects of Ambient Oxidants Exposure on Mortality: A Combined Analysis Within the APHEA Project. Am. J. Epidemiol. (In press).
Verhoeff, A.P. et. al. 1996. Air Pollution and Daily Mortality in Amsterdam. Epidemiology 7(3): 225–230.
Wyzga, R.E. and F.W. Lipfert. 1995. Temperature-Pollution Interactions with Daily Mortality in Philadelphia. In: Particulate Matter: Health and Regulatory Issues: Proceedings of an International Specialty Conference Sponsored by the Air and Waste Management Association, April, Pittsburgh, PA, pp. 3–42.
Wyzga, R.E. and F.W. Lipfert 1996. Ozone and Daily Mortality: The Ramifications of Uncertainties and Interactions and Some Initial Regression Results. In: Vostal, J.J., Ed., Tropospheric Ozone: Critical Issues in the Regulatory Process: Proceedings of a Specialty Conference Sponsored by the Air and Waste Management Association, May, 1994, Orlando, FL, pp. 453–487.
Zmirou et. al. 1996. Short Term Effects of Air Pollution on Mortality in the City of Lyon, France, 1985–1990. J. Epidemiol. Community Health 50 (Suppl. 1):S30–S35.
INSERT OFFSET RING FOLIOS 9 HERE
Mr. GEKAS. We thank the gentleman. I'm curious, this pyramid that you created which is very informative, is this part of the study that you conducted on this matter?
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Mr. THURSTON. Well, these are just—these are basically numbers that I worked up from the literature based on the table that was contained in the staff paper to give another perspective on the same information so that——
Mr. GEKAS. Was it part of the inquiry that the EPA requested of you?
Mr. THURSTON. No, this is something that I did on my own—actually. I testified at the Senate hearings on environment and public works, and I developed this in response to questions from the committee on my own.
Mr. GEKAS. What did the EPA request you to do?
Mr. THURSTON. They didn't.
Mr. GEKAS. Did your university have any grants or requests from EPA for elucidation of the standards problem?
Mr. THURSTON. No, but we are an NIEHS center. NIEHS funds us to have—to provide a resource, really, for the Nation on environmental matters, and this is one of the things that we do as part of our outreach. There are Federal dollars supporting us, so we're here to help the Federal Government make better decisions.
Mr. GEKAS. You're here to help——
Mr. THURSTON. As best we can.
Mr. GEKAS [continuing]. Like the Federal revenuer in the past, I understand.
Let me ask you this: Are you advocating completely curing the possibility of people contacting airborne asthmatic symptoms? Is it possible to zero out asthmatic symptoms?
Mr. THURSTON. No, it's not.
Mr. GEKAS. And you know that——
Mr. THURSTON. I don't think—I don't believe it is. There are many causes of asthma——
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Mr. GEKAS. No matter what standards you raise, the EPA standards that are now in front of us, that cannot happen. is that correct?
Mr. THURSTON. Well, air pollution is not the sole cause of asthma attacks. There are many other causes including cold air in winter. We're not going to be able to eliminate people breathing cold air in winter, but this is one cause of asthma that we do have control over, and one that we can do something about, as opposed to the others.
Mr. GEKAS. Mr. Johnson, you had stated that the consultation about which you were concerned was really not consultation. You saw no difference, did you, between the final standards as promulgated this past month and those that preceded it in 1996. Is that correct?
Mr. JOHNSON. Mr. Chairman, there were some differences, but we think they are very minor.
Mr. GEKAS. Could any of them be traced to the consultations that were said to have been taking place between your organization and EPA?
Mr. JOHNSON. Certainly nothing with our organization.
Mr. GEKAS. Mr. Thurston, do you believe that we have to ignore the consequences of the immense cost involved here knowing that we cannot erase the airborne particulates that can or may cause disease?
Mr. THURSTON. Mr. Chairman, I'm aware of the fact that, for example, 1990, the industry predicted that acid rain reductions would cost about $1,000 per ton, and we found out later on it cost about $100 per ton. I'm aware that there's been a—the auto manufacturers predicted it would cost $1,500 per car to put emission controls on; it ended up costing less than $60 per car. I'm aware that we have had studies which have been conducted in the wake of the 1990 standards which have shown a $20 to $1 benefit for the health benefits and the overall benefits to the economy of pollution prevention and control as opposed to the pollution. I think that the Congress would have time well spent if we asked for additional data to be gathered with respect to the cost-benefit analysis. I certainly agree that it's important to take into account the costs, but while we're assessing the costs, we also need to be able to assess the benefits and to put those in the balance.
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Mr. GEKAS. Well, the benefits are obvious. We're going to have clean air that nobody will be able to get near contacting, contracting asthma; everybody agrees on that. The benefit is clear from if we follow these standards to their ultimate, but more particularly, the process that we have in the three statutes to which we've referred, all ask fervently for cost-benefit analysis. All we have is benefit analysis. Isn't that correct?
Mr. JOHNSON. Well, I think there have been assertions of costs that also need to be proven, and I think that the Chair is—your point's well taken that it's important for there to be a clear discussion of the whole issue of cost-benefit, because I think on one hand, as the representative of NYU has stated, you can certainly, based on epidemiological studies and past statistics, make projections about the benefits of health—to human health and monetize those benefits. On the other hand, the benefits to industry, or the cost to industry, should be similarly analyzed. I might say that one of the thesis that I offer to this committee and its kind chairman is that we need to encourage industry to think in terms of technological efficiency, effectiveness, and improvement so that they can improve their profits while cleaning up the environment since pollution is, in effect, wasted resources. Some businesses are doing that now.
Mr. GEKAS. The time of the Chair has expired. We yield to the lady from Texas 5 minutes.
Ms. JACKSON LEE. I thank the chairman very much. Mr. Kucinich, your testimony is all conclusive in terms of the positions that you offer, and I appreciate that added insight on the question of enhanced technology as it may more favorably reflect on improving the problem of pollution. Earlier this afternoon, I mentioned the fact that profits seem to be at an all-time high. Isn't it possibly the right time to look at opportunities to improve, on behalf of all the citizens, both the profits and pollution impact in this Nation?
But let me just ask a very sort of pointed question reflecting that our Congressman Klink comes from an area that suffered through pollution. He expressed his gratification that that pollution has diminished, although he raises concerns about the direction we're going in now. Can you say based upon the changes that were made in the 1970's—with respect to EPA changes that brought about the beginning of diminishing of horrible pollution in this country, coming from—if I might suggest—sort of the manufacturing belt in the Nation—would you think that your community has improved because of EPA regulations that were offered in the 1970's—quality of life?
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Mr. KUCINICH. Thank you, Congressman Jackson Lee. Mr. Chairman, I actually grew up in the inner city of Cleveland, and most of the places we lived were right on the edge of the industrial valley. As a young person growing up in Cleveland I just happened to have suffered from asthma. I had it from about the time that I was 8 years old to the time I was 14, and I remember going outside certain days in the summer where it was very difficult to breathe. I mean, I remember this one year, and when I was in the fifth grade I spent the whole year in bed because of this asthmatic condition I had. So, I had a particular sensitivity to the problems of people who are in the city—respiratory problems.
I can tell you that the air in Cleveland has improved. There's a lot of reasons for it. One is the 1970 laws. Another reason is, frankly, we have lost certain industries for various reasons; that's a fact, but there has been a public consciousness which is promoted responsibility, and industry has kept up. They didn't want to initially, and I can understand that, because they don't want to have to invest any money that might immediately create some problems for their bottom line, but over all, industry and, notably, LTV in Cleveland has sought ways to be environmentally responsible and gradually found a way to come up to compliance with standards, and I think that part of what Government does and makes possible is as we set the standards, it's kind of like a bar that we set up there. We know that no one's going to clear it right away, and the fact is the implementation of some of these might be 10, 12 years off, but what we do know is that by setting higher standards, we nudge industry along gently so that they can work toward improving technologies, and we've seen that in the Cleveland area.
Yes, the Cleveland area has improved, and you know what else it's done? It's also helped to make Cleveland a place where people want to come to all over the country. People want to live in neighborhoods that are relatively free of soot and smog whether you're in a city or suburb, and I find that to be true, so you know I have a great deal of concerns for Members of Congress representing industrial as I do who don't want to lose jobs; we don't want to lose businesses, and at the same time we want to protect public health. As the gentleman says, Mr. Wolff, it is a policy call, yes it is.
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Ms. JACKSON LEE. Thank you. Thank you very much, Congressman. That was a very important because it is important to reflect on where we'd be economically with many of our businesses, and I want to take my next question—thank you very much—to Dr. Thurston, because Dr. Wolff described some uncertainty and disagreement among scientists over these new standards. Why shouldn't this uncertainty cause us to question these new standards?
Mr. THURSTON. Well, I think you can look at the reports of CASAC, and you can look for ways in which people disagree or you can look for where there was consensus.
Ms. JACKSON LEE. And where was the consensus?
Mr. THURSTON. And I think that Dr. Wolff is looking for the places where they disagreed, and I think it's more productive to look at the consensus. Well, the consensus, I feel, was—and I wasn't on the committee—my reading of it, and my understanding of it is that they all felt that the present standards were not sufficiently protective of public health and that we needed more stringent standards, and that really is the thrust behind what I'm saying, and what the EPA is now doing.
Mr. WOLFF. Can I respond to that?
Ms. JACKSON LEE. Mr. Wolff.
Mr. WOLFF. What I reported to you what was in the closure letter, and the statements I made were in complete agreement by the committee members, so what George Thurston just said, that he felt that CASAC wanted more stringent standards, is not true.
Ms. JACKSON LEE. You were reporting simply that the committee thought there was uncertainty. Is that my understanding?
Mr. WOLFF. That's right.
Ms. JACKSON LEE. And I appreciate the distinction. I think, Mr. Chairman—again, I'm appreciative of the testimony here, and I think we have a long way to go, but obviously the questions of improved health raise a high priority for me. Thank you, Mr. Chairman.
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Mr. GEKAS. Thank you very much. We appreciate the testimony of the witnesses, and their forthcoming ability to continue contact with this subcommittee through a question and answer process. We discharge them honorably.
This hearing is concluded and adjourned.
[Whereupon, at 1:05 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
| House of Representatives, |
| Committee on the Judiciary, |
| Washington, DC August 8, 1997. |
Hon. CAROL M. BROWER, Administrator,
Environmental Protection Agency.
Washington, DC.
DEAR ADMINISTRATOR BROWNER: As you know, on July 29, 1997, the Subcommittee on Commercial and Administrative Law held a hearing on the Environmental Protection Agency's recent rulemakings setting new national ambient air quality standards for particulate matter and ozone. We appreciate having heard Deputy Administrator Hansen's testimony at that healing.
Several new issues were raised and several members requested information during the hearing. This letter reiterates the requests made on that day land expands on them in certain instances:
(1.) Please submit a memorandum explaining how the new national ambient air quality standards for particulate matter and ozone have a $100 million annual impact for purposes of the Congressional Review Act (Pub. L. 104–121), yet do not impact a significant number of small entities.
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(2.) Please submit a separate memorandum explaining why, if the Clean Air Act does not involve (or prohibits) an analysis that involves cost, the EPA would comply with Executive Order 12866 and indulge in a cost-benefit analysis, yet ignore similar requirements in federal laws.
(3.) Please submit for the record a copy or transcript of any representation made by the EPA or any EPA official anything other than full, nationwide enforcement of the new national ambient air quality standards for particulate matter and ozone.
In addition, please produce any record of any prediction, prognostication, guess, anticipation, assurance, judgment, opinion, promise or estimate communicated by the EPA or any EPA official to anyone outside the EPA regarding enforcement of the new national ambient air quality standards for particulate matter and ozone as to any particular entity, business, industry, activity, region, State, county, locality, metropolitan statistical area, or Congressional district.
(4.) Please submit a memorandum, with citation to the Clean Air Act and case law, that substantiates your interpretation of the Clean Air Act as specifically prohibiting consideration of economic and technological feasibility. Your discussion should identify any case where a court has actually prohibited the EPA from considering economic and technological feasibility in setting national ambient air quality standards under Clean Air Act 109 (42 U.S.C. 7409). If there is no such case, the memorandum should so state.
Please also explain in this memorandum why the Chevron doctrine, which gives broad latitude to an agency's permissible interpretation of statutory authority, would not apply if you chose to consider economic and technological feasibility in setting national ambient air quality standards.
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(5.) At the hearing, Mr. Hansen testified that the EPA consulted with the Department of Justice numerous times regarding issues related to these rulemakings.
For the period up to July 18, 1997, and with regard to the applicability of (and the scope of the EPA's responsibilities under) the Regulatory Flexibility Act (P.L. 96–354, as amended), the Small Business Regulatory Enforcement Fairness Act (P.L. 104–121), the Unfunded Mandates Reform Act (P.L. 104–4), and Executive Order 12866 to the rulemakings on national ambient air quality standards for particulate matter and ozone, please:
Identify the name, title, and office of every individual at the EPA, its agents, or consultants who contacted the Department of Justice or any official of the Department of Justice;
Identify the name, title, and office of every individual at the Department of Justice contacted by or responding to any person at the EPA, its agents, or consultants; and,
Produce all records relating to any such contact or consultation.
We understand that these rulemakings are the subject of existing and potential litigation, and so have limited this request to the period up to the publication of the final rules in the Federal Register. Regardless, Congress' power and the public interest outweigh any potential claims of privelege as to the requested information and material. We take seriously our oversight responsibilities and expect that you recognize your obligation to be entirely forthcoming and prompt in your response. Accordingly, please provide the requested information, memoranda, and records by 5:00 p.m. on August 22, 1997. Please contact my counsel, Jim Harper (225–2825), with any questions.
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Very truly yours,
| George W. Gekas, Chairman, |
| Subcommittee on Commercial and Administrative Law. |
Attachment.
cc: Hon. Henry J. Hyde.
Hon. John Conyers, Jr.
Hon. Jerrold Nadler.
| U.S. Environmental Protection Agency, |
| Office of the Administrator, |
| Washington, DC, August 21, 1997 |
Hon. GEORGE W. GEKAS, Chairman,
Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This letter is in response to Question 5 raised in your August 8 letter to Administrator Browner as follow-up to the Subcommittee hearing of July 29 at which I testified for the Environmental Protection Agency (EPA). Regrettably, EPA will be unable to complete its responses to your other questions by this Friday as you had requested. Our responses to the remaining questions will be forwarded to the Subcommittee as soon as possible.
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Question 5 relates to my testimony at the hearing of July 29. At that hearing, I testified that, as you note in your letter, ''EPA consulted with the Department of Justice (DOJ) numerous times regarding issues relating to'' the promulgation of revised National Ambient Air Quality Standards (NAAQS) for particulate matter and ozone. Question 5 then asks for particulars regarding the consultations with the Department of Justice on the applicability and scope of EPA's responsibilities under the Regulatory Flexibility Act (RFA), the Small Business Regulatory Enforcement Fairness Act (SBREFA), the Unfunded Mandates Reform Act (UMRA), and Executive Order 12866, as they relate to the NAAQS rulemakings.
Based on a review of the hearing transcript, which we received on August 11, I believe it is necessary to correct the record to ensure that it accurately reflects EPA's consultations with DOJ on the NAAQS. In my testimony, I correctly noted that EPA consulted on a number of occasions with the Department of Justice on legal issues associated with the issuance of the final NAAQS for particulate matter and ozone. In my responses to questions from Representative Delahunt, I recalled these discussions, and believing that they included advice on the applicability of SBREFA to these rulemakings, so stated. In that I was mistaken. EPA's discussions with the Department of Justice did not cover issues under the RFA, SBREFA, or UMRA. As I stated in my testimony, a number of legal issues are reserved to the agency. EPA typically relies upon its Of floe of General Counsel to provide legal advice on issues arising in rulemaking proceedings. For issues relating to the RFA, SBREFA, and UMRA, that process was followed for these rules. I apologize to the Committee for any confusion that may have resulted from my statement, and ask that this letter be included in the hearing record to correct my oral testimony.
As you may be aware, the Agency's final standards have been challenged in court. I have been informed that the Department of Justice intends to defend the rules, including any challenges to the Agency's actions under the RFA, SBREFA or UMRA. EPA attorneys will, of course, work closely with the Department in preparing the government's briefs in the matter.
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If your staff has any further questions they may contact Dana Ott at 260–5195. I appreciate the Subcommittee's indulgence as we complete our responses to the remainder of your questions.
Sincerely
| Fred Hansen, |
| Deputy Administrator. |
| U.S. Environmental Protection Agency, |
| Office of the Administrator, |
| Washington, DC, August 21, 1997. |
Hon. GEORGE W. GEKAS, Chairman,
Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: In your letter of August 8, 1997 to Administrator Carol M. Browner, you posed five questions concerning the Environmental Protection Agency's recent promulgation of revised national ambient air quality standards (NAAQS) for ozone and particulate matter. Deputy Administrator Fred Hansen responded to Question No. 5 in a letter sent to you on August 22, 1997. At the Administrator's request, with this letter I am sending you memoranda prepared by the Agency's Office of General Counsel responding to Question Nos. 1, 2, and 4. I am also sending you a document prepared by my office, the Office of Air and Radiation, responding to Question No. 3.
Please accept my apologies for the delay in completing our response.
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Sincerely,
| Richard D. Wilson, |
| Acting Assistant Administrator, |
| Office of Air and Radiation. |
Enclosures.
ATTACHMENT: DEFINITIONS AND INSTRUCTIONS FOR PRODUCTION OF RECORDS
For the purposes of this request, the word ''records'' includes, but is not limited to, any and all documents whether written, typed, printed, recorded, transcribed, punched, taped, filmed, graphically portrayed, video or audio taped, however produced or reproduced, and includes but is not limited to any writing, reproduction, transcription, photograph, or video or audio recording, produced or stored in any fashion, including any and all computer entries, memoranda, diaries, telephone logs, telephone message slips, tapes, notes, talking points, letters, journal entries, reports, studies, drawings, calendars, manuals, press releases, opinions, documents, analyses, messages, summaries, bulletins, e-mail, computer discs, briefing materials and notes, cover sheets, routing slips, or any other machine readable material of any sort whether prepared by current or former employees, agents, consultants or by any non-employee without limitation. ''Records'' also includes redacted and unredacted versions of the same record.
The terms ''relating to'' or ''with regard to'' as to any given subject means anything that constitutes, contains, embodies, identifies, deals with, or is in any manner pertinent to that subject, including but not limited to records concerning the preparation of other records.
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Please sequentially number all records produced, and indicate the source of any record if the source is not accurately reflected on the record itself. If on paper, please produce records on single-sided paper. If in machine- or computer-readable format, please indicate the format of the record.
| House of Representatives, |
| Committee on the Judiciary, |
| Washington, DC, August 8, 1997. |
Attorney General JANET RENO,
Department of Justice,
Washington, DC.
DEAR GENERAL RENO: On July 29, 1997, the Subcommittee on Commercial and Administrative Law held a hearing on the Environmental Protection Agency's recent rulemakings setting new national ambient air quality standards for particulate matter and ozone. This letter seeks information in your possession related to one issue raised at the hearing.
EPA Deputy Administrator Fred Hansen testified that the EPA solicited and received numerous opinions from the Department of Justice on issues including EPA's determinations as to the applicability of (and scope of EPA responsibilities under) the Regulatory Flexibility Act (P.L. 96–354, as amended), the Small Business Regulatory Enforcement Fairness Act (P.L. 104121), the Unfunded Mandates Reform Act (P.L. 104–4), and Executive Order 12866. Mr. Hansen testified that the Department of Justice supported the positions taken by EPA on these matters.
For the period up to July 18, 1997, and with regard to the applicability of (and the scope of the EPA's responsibilities under) the Regulatory Flexibility Act (P.L. 96–354, as amended), the Small Business Regulatory Enforcement Fairness Act (P.L. 104–121), the Unfunded Mandates Reform Act (P.L. 104–4), and Executive Order 12866 to the rulemakings on national ambient air quality standards for particulate matter and ozone, please:
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Identify the name, title, and office of every individual at the EPA, its agents, or consultants who contacted the Department of Justice or any official of the Department of Justice;
Identify the name, title, and office of every individual at the Department of Justice contacted by or responding to any person at the EPA, its agents, or consultants; and,
Produce any records relating to any such consultation.
We understand that these rulemakings are the subject of existing and potential litigation, and so have limited this request to the period up to publication of the final rules in the Federal Register. Regardless, Congress' power and the public interest outwiegh any potential claims of privelege as to the requested information and material. Accordingly, please provide the requested information and records by 5:00 p.m. on August 25, 1997. Please contact my counsel, Jim Harper (225–2825), with any questions.
Very truly your,
| George W. Gekas, Chairman, |
| Subcommittee on Commercial and Administrative Law. |
Attachment.
cc: Hon. Henry J. Hyde.
Hon. John Conyers, Jr.
Hon. Jerrold Nadler.
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ATTACHMENT: DEFINITIONS AND INSTRUCTIONS FOR PRODUCTION OF RECORDS
For the purposes of this request, the word ''records'' includes, but is not limited to, any and all documents whether written, typed, printed, recorded, transcribed, punched, taped, filmed, graphically portrayed, video or audio taped, however produced or reproduced, and includes but is not limited to any writing, reproduction, transcription, photograph, or video or audio recording, produced or stored in any fashion, including any and all computer entries, memoranda, diaries, telephone logs, telephone message slips, tapes, notes, talking points, letters, journal entries, reports, studies, drawings, calendars, manuals, press releases, opinions, documents, analyses, messages, summaries, bulletins, e-mail, computer discs, briefing materials and notes, cover sheets, routing slips, or any other machine readable material of any sort whether prepared by current or former employees, agents, consultants or by any non-employee without limitation. ''Records'' also includes redacted and unredacted versions of the same record.
The terms ''relating to'' or ''with regard to'' as to any given subject means anything that constitutes, contains, embodies, identifies, deals with, or is in any manner pertinent to that subject, including but not limited to records concerning the preparation of other records.
Please sequentially number all records produced, and indicate the source of any record if the source is not accurately reflected on the record itself. If on paper, please produce records on single-sided paper. If in machine- or computer-readable format, please indicate the format of the record.
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MEMORANDUM IN RESPONSE TO QUESTION NO. 1
Question
Please submit a memorandum explaining how the new national ambient air quality standards for particulate matter and ozone have a $100 million annual impact for purposes of the Congressional Review Act (Pub. L. No. 104–121), yet do not impact a significant number of small entities.
Answer
Summary
The question asks for a comparison of the applicability of the Congressional Review Act (CRA) and the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) to the recently promulgated rules establishing new national ambient air quality standards (NAAQS) for particulate matter and ozone. The question raises the issue of whether a rule that is likely to result in a $100 million annual impact on the economy may nonetheless not have a significant impact on a substantial number of small entities within the meaning of the RFA. EPA carefully examined this issue in the course of its rulemakings on the ozone and particulate matter standards. As explained in more detail below, it concluded that a rule may result in a $100 million annual impact on the economy but still not have a significant impact on a substantial number of small entities within the meaning of the RFA, if the rule does not establish requirements applicable to small entities. That is the case for the ozone and particulate matter NAAQS rules.
The CRA and RFA have different purposes and require examination of different types of impacts to determine whether a rule is ''major'' under the CRA or will have ''a significant economic impact on a substantial number of small entities'' under the RFA. The purpose of the ''major rule'' provisions of the CRA is to ensure that Congress has an adequate opportunity to review the most significant rules before they take effect. The CRA defines ''major rule'' as any rule that ''is likely to result in'' significant effects on the national economy or various aspects of it. For CRA purposes, it was thus appropriate to consider the potential costs of meeting the new ozone and particulate matter standards based on the regulatory impact analyses prepared for the standards, even though, under the Clean Air Act, States are primarily responsible for adopting the control requirements needed to meet the standards.
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In contrast, the purpose of the RFA is to require federal agencies to consider whether and how their rules should apply to small businesses and other small entities. Congress enacted the RFA in 1980 out of concern that agencies were writing one-size fits-all regulations that did not, in fact, fit the size and resources of the small entities subject to the rule or their contribution to the problem the rule was supposed to address. To achieve the RFA's purpose of encouraging federal agencies to tailor regulations to the size of the entities to be regulated, agencies are required to analyze the impact of the rule to the extent the rule contains requirements that will apply to small entities. If the rule does not contain requirements applicable to small entities, the federal courts have held that the rule may be certified under the RFA as not having a significant economic impact on small entities. Because the NAAQS rules do not contain requirements with which small (or large) entities must comply, EPA found that the NAAQS rules would not have a significant economic impact on a substantial number of small entities, within the meaning of the RFA.
The CRA
In its submission of the ozone and PM NAAQS final rules to Congress, EPA identified the rules as ''major rules'' under the CRA. Although Congress has authority to review any rule an agency issues, the CRA provides special procedures for review of ''major rules.'' The CRA defines ''major rule'' as:
Any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in—
(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
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(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The finding that the NAAQS rules are ''major'' rules rests on the Regulatory Impact Analyses (RIAs) prepared for the rules under Executive Order 12866. Those analyses indicate that each of the rules ''is likely to result in'' an annual effect on the economy of $100 million or more. Although NAAQS rules themselves contain no control requirements, they trigger Clean Air Act provisions that call on States to develop and impose control requirements as needed to achieve the standards. In its RIAs for the ozone and particulate matter standards, EPA made assumptions about what control requirements States would adopt to achieve the revised standards, and then estimated the cost of those controls as well as the cost of States' implementation planning. The Agency's estimates indicate that those costs may total to more than $100 million per year for each standard. In this way, the NAAQS rules, although they impose no control requirements themselves, ''are likely to result in'' an annual effect on the economy of $100 million or more. They are thus ''major rules'' under the CRA.
The RFA
As the question indicates, EPA found that the ozone and particulate matter NAAQS ''will not have a significant economic impact on a substantial number of small entities'' within the meaning of the RFA. In making this finding, EPA noted that the ''impacts'' of concern under the RFA are a rule's impacts on the small entities that will be subject to the rule's requirements. As EPA explained in the preambles to the final NAAQS rules, this definition of ''impact'' flows from the stated purpose of the RFA, its requirements for regulatory flexibility analyses, its legislative history, the amendments to the RFA made by the Small Business Regulatory Enforcement Fairness Act of 1996, and case law. We have attached these preamble discussions for your review. 62 FR 3870238707; 62 FR 38887–38892.
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As noted above, the NAAQS rules define levels of air quality that States are primarily responsible for achieving through State regulation. The NAAQS rules themselves do not contain or impose control requirements applicable to small (or large) entities, and thus afford no opportunity for EPA to tailor their requirements as they apply to small entities. Accordingly, within the meaning of the RFA, the NAAQS rules will not have a significant economic impact on a substantial number of small entities.
At the same time, EPA has recognized that the NAAQS rules ''begin a process of state implementation that could eventually lead to small entities having to comply with new or different control measures, depending on the implementation plans developed by the States.'' 62 FR at 38793 (colt 3); 62 FR 38889 (colt 1). Thus, when EPA prepared the RL9s under Executive Order 12866, EPA analyzed how hypothetical State plans for implementing the NAAQS might affect sources of air pollution, including small entities. The impacts considered in determining whether the NAAQS rules were ''major'' for CRA purposes were the potential impacts on sources of air pollution under the hypothetical State plans, as well as States' planning costs.
Conclusion
EPA's finding that the ozone and particulate matter NAAQS rules would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA is consistent with the designation of the rules as ''major'' for CRA purposes. The purposes and requirements of the CRA and RFA are not coincident. A rule may be ''major'' under the CRA but still not require a regulatory flexibility analysis if it does not contain requirements that will apply to small entities. In the case of the NAAQS rules, they are ''major'' under the CRA because the RLAs prepared for them indicate that State implementation of the standards ''is likely to result in'' annual effects on the economy of $100 million or more. They will nonetheless not have a significant impact on small entities within the meaning of the RFA since they do not contain requirements applicable to small (or large) entities.
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MEMORANDUM IN RESPONSE TO QUESTION NO. 2
Question
Please submit a separate memorandum explaining why, if the Clean Air Act does not involve (or prohibits) an analysis that involves cost, the EPA would comply with Executive Order 12866 and indulge in a cost-benefit analysis, yet ignore similar requirements in federal laws.
Answer
The Clean Air Act does not prohibit EPA from analyzing the costs of a national ambient air quality standard (NAAQS), although it does preclude EPA from considering costs in setting a NAAQS, as discussed in the preamble to the final ozone and particulate matter NAAQS rules. See separate memorandum in response to Question 4. Executive Order (EO) 12866, for its part, requires agencies to assess the costs and benefits of significant regulatory actions, regardless of whether costs can be considered in deciding what action to take. In calling for cost-benefit analysis even when it cannot be considered, EO 12866 is like its predecessor, EO 12291. Under EO 12291, for example, EPA assessed the costs and benefits of the NAAQS it set for particulate matter in 1987 (52 FR 24634, July 1, 1987). Under EO 12866, EPA accordingly prepared RIAs for the ozone and particulate matter rules.
The ''other laws'' to which the question refers are presumably the Unfunded Mandates Reform Act (UMRA) and possibly the Regulatory Flexibility Act (RFA). The preambles to the final NAAQS rules contain extensive discussions of the application of these statutes to the NAAQS. We have attached these preamble discussion for your review. 62 FR 38702–38708; 62 FR 38887–38893. EPA fully complied with UMRA and RFA. In fact, EPA went well beyond what was legally required under these authorities.
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Although UMRA section 202 generally requires agencies to assess the costs and benefits of significant Federal mandates, this requirement does not apply if ''otherwise prohibited by law.'' The report prepared by the Conference Committee for UMRA states that section 202 ''does not require the preparation of any estimate or analysis if the Agency is prohibited by law from considering the estimate or analysis in adopting the rule.'' 141 Cong. Rec. H3060 (daily ed. March 13, 1995) (emphasis added). This approach was adopted by the Office of Management and Budget's Office of Information and Regulatory Affairs in a memorandum providing guidance to federal agencies in implementing UMRA. Memorandum for the Heads of Executive Departments and Agencies from Sally Katzen, Administrator, Office of Information and Regulatory Affairs, Re Guidance for Implementing Title II of S. 1 (March 31, 1995). Given that the Clean Air Act does not allow EPA to consider costs in setting the NAAQS, EPA followed UMRA, and the OMB guidance, in concluding that UMRA section 202 did not require EPA to assess the costs and benefits of the NAAQS rules. EPA's compliance with UMRA is described further in the NAAQS final rules. 62 FR 38892–38893; 62 FR 38707–38708.
It is unclear whether the question's reference to ''other laws'' also includes the RFA. Although some cost analysis is often included in analyses done under the RFA, the regulatory flexibility analysis required by the RFA is not a cost-benefit analysis. Rather, when a regulatory flexibility analysis is required, the RFA specifies that the analysis focus on how small entities will comply with the rule and whether there are alternatives for small entities (such as exemptions or different reporting requirements) that would achieve the same goal while reducing the burden on small entities. As described in detail in the NAAQS preambles, the RFA did not require EPA to prepare regulatory flexibility analyses for the NAAQS because the NAAQS do not impose requirements on small entities. 62 FR 38702–38707; 62 FR 38887–38892. Nonetheless, to the extent it was possible to do so, EPA did analyze the potential impacts on small entities based on hypothetical State implementation plans.
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Conclusion
The varying application of EO 12866, UMRA and RFA to the ozone and particulate matter rules is the result of two central facts about NAAQS—they are set without considering costs and they are implemented by the States. The EO requires cost-benefit analysis for any significant rule even if the analysis cannot be considered in adopting the rule; UMRA does not. The RFA requires an agency to identify how a rule will apply to small entities and how the rule can be tailored to fit the scale of small entities; since NAAQS rules do not apply to small entities, they are not susceptible to RFA analysis. EPA recognized this and endeavored to meet the spirit of UMRA and RFA requirements even when they did not apply. The Agency conducted a comprehensive cost-benefit analysis of possible State strategies for implementing the NAAQS. EPA attempted to assess the potential impact on small entities of State implementation of the NAAQS, in keeping with the RFA's concern for small entity impacts. The Agency also conducted panels with the Small Business Administration and OMB to hear and record small entities' concerns with the rules, using procedures modeled on those prescribed by SBREFA. In this way, EPA more than complied with the UMRA and RFA requirements applicable to the ozone and particulate matter NAAQS rules.
ATTACHMENT RESPONDING TO QUESTION NO. 3
Question
Please submit for the record a copy or transcript of any representation made by the EPA or any EPA official suggesting anything other than full, nationwide enforcement of the new national ambient air quality standards for particulate matter and ozone.
In addition, please produce any record of any prediction, prognostication, guess, anticipation, assurance, judgment, opinion, promise or estimate communicated by the EPA or any EPA official to anyone outside the EPA regarding enforcement of the new national ambient air quality standards for particulate matter and ozone as to any particular entity, business, industry, activity, region, State, county, locality, metropolitan statistical area, or Congressional district.
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Answer
Prior to promulgation of the new or revised ozone and particulate matter standards, inquiries were made to the Agency regarding the potential impact of the standards. However, the responses to these inquiries typically do not address the ramifications for specific localities or facilities. Examples of this type of response are attached. We have identified two letters that address specific localities or specific sources. The first, a letter to Representative Dennis Kucinich, addresses two sources located in Representative Kucinich's district. In the letter, EPA does not provide any assurances that such sources will not be required to comply with Clean Air Act requirements. Rather, EPA simply states that a regional control strategy will likely be sufficient for such area to attain the new ozone standard. The second letter, responding to an inquiry from Representative Sherrod Brown, addresses the possible impacts of the proposed ozone and particulate matter on the Amish community in Representative Brown's district. Again, EPA does not provide any assurances that this community will not need to comply with Clean Air Act requirements. The letter explains EPA's existing policy with respect to wood burning stoves and fireplaces. In addition, it states that regional, not local, controls will be the solution for particulate matter problems caused by regional transport. Copies of these letters are attached.
On July 16, 1997, President Clinton issued a memorandum to the Agency setting forth a strategy for implementing the new standards. The Agency has conducted preliminary analyses concerning the potential implications of that implementation strategy and shared with interested parties the Agency's analyses for various areas. These analyses are based on currently available data and are not definitive determinations for any area. EPA employees at all levels within the Agency have continued to respond orally to inquiries regarding the potential application of the implementation strategy in particular circumstances. These are done in the normal course of business in which no commitments are made and for which no records are kept. Responses reflect the strategy outlined in the President's memorandum.
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MEMORANDUM IN RESPONSE TO QUESTION NO. 4
Question
Please submit a memorandum, with citation to the Clean Air Act and case law, that substantiates your interpretation of the Clean Air Act as specifically prohibiting consideration of economic and technological feasibility. Your discussion should identify any case where a court has actually prohibited the EPA from considering economic and technological feasibility in setting national ambient air quality standards under Clean Air Act 109 (42 U.S.C. 7409). If there is no such case, the memorandum should so state.
Please also explain in this memorandum why the Chevron doctrine, which gives broad latitude to an agency's permissible interpretation of statutory authority, would not apply if you chose to consider economic and technological feasibility in setting national ambient air quality standards.
Answer
For more than a quarter of a century, EPA has interpreted section 109 of the Clean Air Act as precluding consideration of the economic costs or technical feasibility of implementing national ambient air quality standards (NAAQS) in setting them. This interpretation has been confirmed by a number of judicial decisions rendered over the past 17 years including: Natural Resources Defense Council v. Administrator, 902 F.2d 962, 972–973 (D.C. Cir. 1990), vacated and dismissed in part, 921 F.2d 326 (D.C. Cir.), certs. dismissed, 498 U.S. 1075, and cert. denied, 498 U.S. 1082 (1991); Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1157–1159 (D.C. Cir 1987) (en bane); American Petroleum Institute v. Costle, 665 F.2d 1176, 1185–1186 (D.C. Cir. 1981), cert. denied. 455 U.S. 1034 (1982); Lead Industries Ass'n v. EPA, 647 F.2d 1130, 1148–1151 (D.C. Cir.), cert. denied. 449 U.S. 1042 (1980). Because EPA has consistently taken this position and has never considered costs in NAAQS rulemakings, no court has had occasion to ''actually prohibit'' EPA from considering such factors, i e., to hold that EPA erred by taking such factors into account. Nevertheless, it is clear that were EPA to attempt to consider costs in a NAAQS rulemaking, the Agency's action would be overturned on judicial review. As the D.C. Circuit stated: ''In three previous cases this court has emphatically stated that 109 does not permit EPA to consider such costs in promulgating national ambient air quality standards'' and ''[c]onsideration of costs . . . would be flatly inconsistent with the statute, legislative history and caselaw on this point.'' 902 F.2d at 973.
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A full discussion of these issues that is responsive to your request appears in the preambles to both the ozone and PM NAAQS final rules. We have attached these preamble discussions for your review. 62 Fed. Reg. 38652, 38683–38689 (July 18, 1997) (PM NAAQS rulemaking); 62 Fed. Reg. 38856, 38878–38883 (July 18, 1997) (Ozone NAAQS rulemaking). These discussions also explain that while the Chevron doctrine does apply to EPA's interpretation of section 109, judicial decisions postdating Chevron have reaffirmed that EPA is precluded from considering costs in making NAAQS decisions, based on ''clear evidence'' of Congressional intent to preclude consideration of such factors. See, e.g., NRDC v. EPA, 824 F.2d at 1158–1159 (citing Lead Industries, 647 F.2d at 1149); NRDC v. Administrator, 902 F.2d at 973; 62 Fed. Reg. at 38687. In terms of the analytical framework established by Chevron, the court's findings that consideration of costs is precluded under section 109 are Chevron Step One findings, meaning that the statute spoke directly to the issue and that the courts, as well as the agency, must give effect to Congress' intent so ascertained. Thus, absent a more recent legislative enactment overriding that intent, the plain language of the statute as interpreted by the courts limits the ability of EPA to interpret section 109 to permit the consideration of costs and similar factors.
INSERT OFFSET RING FOLIOS 10 TO 36 HERE
| U.S. Environmental Protection Agency, |
| Office of the Administrator, |
| Washington, DC, April 28, 1997. |
Hon. SHERROD BROWN, Ranking Member,
Subcommittee on Health and the Environment,
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House of Representatives, Washington, DC.
DEAR CONGRESSMAN BROWN: This is in response to your letter of April 8, 1997 in which you expressed some concerns about the possible impact of the proposed National Ambient Air Quality Standards for Particulate Matter (PM) and Ozone on the Amish community in your District. In your letter, you specifically mentioned that there is a concern that the Amish community may be asked to curtail the use of wood burning stoves and fireplaces which would inflict severe hardship on the people in the area.
Based on available estimates, the Environmental Protection Agency (EPA) does not believe that this area will be impacted by the PM standard. The Amish community generally is in a rural farmland area. The emissions from the wood burning stoves and fireplaces do not cause violations of the current PM10 standard, and they are not estimated to cause violations of the proposed PM2.5 standard. If elevated levels of PM2.5 were found in the Amish community, analysis of the actual composition of the particles would be needed because the levels could be significantly affected by the regional transport of PM2.5 into the area as opposed to being caused by local sources. If this were the case, regional reductions in sulfates and nitrates would be required rather than controls on local sources.
In the event that the emissions from the wood burning stoves and fireplaces do came violations of the proposed PM2.5 standard in the Amish community, EPA's policy is to provide exemptions to the woodstove curtailment program where wood burning is the sole source of heat or cooking in the household. In the past, we have worked with areas which fit this situation to educate the population on the proper ways to minimize emissions from their woodstoves and fireplaces through the use of cleaner burning wood. In other cases, woodstove change out programs have been initiated, and grants have been provided to assist people in these areas to exchange older woodstoves with newer cleaner burning certified woodstoves. No such area has ever been required to discontinue using their stoves or fireplaces. The proposed ozone standard would have no impact on the use of wood burning stoves or fireplaces in the Amish community. Ozone is a summertime problem, and the emissions from woodstoves used for cooking would not significantly contribute to ozone levels.
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I appreciate this opportunity to be of service and trust that this information will be helpful to you.
Sincerely yours,
| Mary D. Nichols, |
| Assistant Administrator for Air and Radiation. |
| House of Representives, |
| Subcommittee on Health and Environment, |
| Washington, DC, April 8, 1997. |
Hon. CAROL M. BROWNER, Administrator,
Envirdnmental Protection Agency,
Washington, DC.
DEAR ADMINISTRATOR BROWNER: While I understand that many exaggerated claims are being made about the potential economic and health effects of the Environmental Protection Agency (EPA) proposed new National Ambient Air Quality Standards for Particulate Matter and Ozone, I am concerned that these proposed regulations may indirectly harm many of my constituents in the Amish community.
Based on their deeply held religious convictions, most families in the Amish community in northeast Ohio do not use electricity or natural gas. They, therefore, rely solely on wood burning stoves and fireplaces to beat their homes and schools' and cook their meals. Any new regulations which would restrict their use of these simple appliances would have a devastating effect on the Amish way of life.
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While I appreciate EPA's efforts to improve air quality, I am hopeful that we can do so in a manner which does not force the Amish community to abandon these irreplaceable heating and cooking devices. As the ranking member on the House Subcommittee on Health and the Environment, I look forward to working with you to minimize the effect of these proposed regulations on my Amish constituents.
I appreciate your attention to this important matter, and look forward to your reply.
Sincerely,
| Sherrod Brown, Ranking Member, |
| Subcommittee on Health and the Environment. |
| U.S. Environmental Protection Agency, |
| Office of Air and Radiation, |
| Washington, DC, May 16, 1997. |
Hon. Dennis J. Kucinich,
House of Representatives,
Washington, DC.
DEAR CONGRESSMAN KUCINICH: The Administrator has asked me to respond to your letter of April 23, 1997 in which you requested information from the Environmental Protection Agency (EPA) concerning a number of assertions that were made by Governor George Voinovich of Ohio. Those assertions focused on the Governor's view of the impact of proposed revisions to national air quality standards for ozone and particulate matter (PM). Specifically, Governor Voinovich raised concerns about the impact of these standards on a Ford automobile manufacturing plant in Lorain, Ohio and a Ford casting plant in Brookpark, Ohio. He expressed concern that the standards would provide no significant health protection and have a devastating impact on these facilities and other small businesses in Ohio.
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As you know, EPA has proposed new standards for ozone and for particulate matter based on multi-year scientific reviews. As an orderly means of incorporating the best, most recent science into the air quality standards, the Clean Air Act requires such reviews to be completed every five years for each of six major air pollutants. Analyses conducted during these reviews indicated that serious adverse health effects were occurring in children, the elderly, and others, both at and below the level of existing air quality standards. This information led us to propose a tightening of the ozone standard, and to propose setting a new particulate matter standard which focuses on very small particles.
The proposed PM standard is estimated to achieve each year 15,000 fewer premature deaths; 9,000 fewer hospital admissions, and many fewer emergency room visits; 60,000 fewer cases of symptoms associated with chronic bronchitis; 250,000 fewer incidences of respiratory symptoms in children, such as aggravated coughing and difficult or painful breathing; and 250,000 fewer incidences of aggravated asthma The proposed ozone standard is estimated to achieve each year 1.0 million fewer incidences of significant decreases (15% to over 20%) in children's lung functions (such as difficulty in breathing or shortness of breath); 200,000 fewer incidences of moderate to severe respiratory symptoms in children, such as aggravated coughing and difficult or painful breathing; 500 fewer hospital admissions; and 2,000 fewer emergency room visits for individuals with asthma and reduced risks of premature aging of the lungs. In short, we believe these protections to be significant improvements in public health. We are now reviewing the substantial public record on these proposals, and will make final decisions by July 19, 1997.
Regarding implementation efforts which would follow from any new standards, as you may know, the first several years following the setting of a new standard involve monitoring, designations and planning activities. These activities are important to the ultimate attainment of an air quality standard, but do not require new controls or expenditures on the part of pollution sources. In practice, additional pollution controls on existing sources, if necessary to meet. a new standard, would not be required until at least six years from the date of setting a new ozone standard, and probably-longer for a new fine particle standard. The setting of a standard based on public health information is the essential step, because it provides local communities with a clear measurement of local air quality, i.e., is it healthy or is it not. But the setting of the standard itself does not trigger immediate pollution controls.
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As to the impacts of efforts to meet new standards, specifically on Lorain and Cuyahoga Counties where the two facilities Governor Voinovich referred to are located, these counties likely would not have met the proposed new ozone or PM standards had these standards been in place during 1993 to 1995 period, the most recent three year period for which we have complete data. However, based on current data, it is likely that nothing other than continued implementation of the 1990 Clean Air Act (CAA) will be necessary in order for Lorain County to meet the proposed new ozone standard. In addition, based on current data, we believe that continued implementation of the Act, plus the application of a regional control strategy in the Eastern United States (focused on reducing large emissions from power plants, large industrial sources and new automobiles), will allow Cuyahoga County to meet the proposed ozone standard as well. In essence, it is not likely that either county would require additional local controls in order to meet the new ozone standard.
In fact, of the 335 counties nationwide projected to potentially not meet the proposed ozone standard, EPA estimates that 226 (67%) of these counties would come into attainment without additional local controls, with continued progress under the 1990 Clean Air Act and a application of a regional control strategy. Such combined strategies will go a long way towards meeting any revised ozone standard in the most cost-effective manner.
Regarding particulate matter, as you may know estimates of nonattainment with the new PM2.5 standards rest on projections from PM10 data, not on comparisons to actual fine particle air quality monitoring, because very little long term monitoring of these small particles has been done. Once actual fine particle monitors are in place gathering real data, it may be that counties now projected as potentially non-attainment will be found to not have a fine particulate matter problem. In addition, for those counties in nonattainment, significant reductions in PM2.5 levels will be achieved through the full implementation of the acid rain provisions of the Clean Air Act and the regional control strategy for NOX discussed above. In many cases, these strategies will reduce or eliminate the need for local controls.
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Concerning our efforts to help manage the ultimate costs of meeting any new standards, as you may know, we are conducting economic analyses to go along with new standards. The information about potential economic costs and benefits developed through these analyses will be helpful in informing the debate about potential costs and benefits, and in pinpointing potential high cost areas of implementation that can be avoided.
In addition, EPA has established an advisory committee comprised of representatives industries including small businesses, State and local air pollution agencies, local governments, environmental groups, and others. The purpose of the advisory committee is to make recommendations to EPA regarding the development of new, cost-effective strategies for implementing any new ozone or PM standard. An important part of the advisory committee's work has been the consideration of regional scale strategies to help reduce the transport of these pollutants of concern. In developing these new strategies, EPA will take into account the emissions reductions to be achieved when the 1990 Clean Air Act is fully implemented, and assess costs associated with any proposed strategies.
In addition to the advisory committee, EPA, the Small Business Administration, and the Office of Management and Budget within the Office of the President, are holding a series of meetings with representatives from small businesses, small governments and other small organizations. The Administration is very interested in making sure that small entities Havana special opportunity to express their views on these proposed standards and will maintain an ongoing dialogue with their representatives throughout the implementation development process. We are committed to working with States, industry, environmental groups and the public through the process of achieving any new standards. Ultimately we believe that setting standards based on public health, and working collectively to meet these standards in cost-effective ways will allow us to continue to clean up our air, and maintain a health economy.
I appreciate this opportunity to be of service and trust that this information will be helpful to you.
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Sincerely yours,
| Mary D. Nichols, |
| Assistant Administrator for Air and Radiation. |
| Congress of the United States, |
| House of Representives, |
| Washington, DC, April 23, 1997. |
Ms. CAROL M. BROWNER, Administrator,
Environmental Protection Agency,
Washington, DC.
DEAR ADMINISTRATOR BROWNER: I am writing to request that the US Environmental Protection Agency (EPA) provide information to me concerning a number of assertions that Ohio Governor George Voinovich has made about the ''devastating'' impact that the EPA's new clean air rules would have on jobs and manufacturing facilities in the state.
The city of Lorain, Ohio, is currently the location of a major Ford assembly plant. Because Ford has decided to halt production of the model that is produced in Lorain, their factory has been idled. Business, labor and elected officials are working to ensure that Ford will keep this facility operating by assigning a new Ford automobile to be produced there. On April 3, 1997, Governor Voinovich traveled to the Lorain area and strongly criticized the EPA, saying that the new clean air standards would make it virtually impossible to attract another model for the Lorain site. As reported in The Morning Journal of Lorain: ''The people in this county—and I don't care if they're UAW workers in Lorain, or even in Avon Lake—should be shaking in their boots,'' Voinovich said.
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''The first thing Lorain County ought to do is be worried about what Carol Browner proposed in the ozone and particulate matter,'' he [Voinovich] said, referring to the administrator of the EPA ''And the other name who's responsible is familiar to some people, and that's Sherrod Brown.''
Covering the same event, The Chronicle quoted Gov. Voinovich as stating: ''The first thing Lorain ought to be worried about is the increase in air standards.'' At this session the Governor charged that the higher air quality standards would make Lorain an unattractive location to continue automobile production. His point is that the EPA is directly to blame for the loss of jobs and the shutdown of manufacturing facilities, and furthermore, the EPA will make industry defunct in manufacturing-dependent areas.
Governor Voinovich has continued to make these points in reference to another facility, the Ford Casting Plant, a large foundry located in Brookpark, Ohio, on the southwest side of Cleveland. Ford Motor Company says they have set aside $80 million over the next five years to install the equipment necessary to comply with current clean air standards, and that any strengthening of these standards places the entire facility at risk. This is a major manufacturing plant, employing about 2,600 hourly workers. It recently laid off some 600 workers. Given the ''idling'' of the Ford assembly plant in Lorain, the auto workers at the Ford Casting Plant are quite concerned about the future of their facility.
According to press accounts, Gov. Voinovich charges that the EPA rules would have a devastating impact on the Casting Plant. ''They'll either have to seek to curtail production or, in the alternate, close it down. This is crazy when you can't substantiate the impact of particulate matter on public health.'' (The Morning Journal, April 4, 1997)
Gov. Voinovich continued to press these charges in a Congressional hearing today in front of the Subcommittee on National Economic Growth, House Government Reform and Oversight Committee. ''Without a significant public health benefit,'' he commented, ''one must ask why we are going to impose these job-killing rules? Small business and manufacturing jobs in Ohio and across the national will be devastated.'' He said that the Cleveland Casting Plant already controls 95 percent of its particulate sources and that further controls would yield minimal reduction in particulate matter. His conclusion: ''Therefore, should additional reductions be required, there may be no choice but to curtail production from current levels.''
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Needless to say, I take these charges very seriously. This situation affects thousands of working families and millions of dollars in tax revenue used to support essential local services. Please provide to me a comprehensive response to these charges as soon as possible.
Furthermore, if the new clean air rules take effect, what assurance can you and the EPA provide to workers and their families that your agency will work with local business, labor, community leaders and elected officials to help the industry achieve compliance? These questions are very important to me. I would greatly appreciate a quick response.
Sincerely,
| Dennis J. Kucinich, |
| Member of Congress. |
| U.S. Environmental Protection Agency, |
| Washington, DC., June 17, 1997. |
Hon. WILLIAM COHEN,
Secretary of Defense,
Department of Defense,
The Pentagon, Washington, DC.
DEAR SECRETARY COHEN: As you know the Environmental Protection Agency has proposed revisions to the national ambient air quality standards for particulate matter and ground-level ozone. I understand that the Department of Defense has expressed significant concern with the potential impact the implementation of the proposed standards could have on military training, readiness and operations.
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DoD comments pointed to three major concerns: (1) training and readiness impacts arising from potential restrictions on the use of obscurants, from the potentially -mandated elimination or control of fugitive dust from field exercises, from design and operating restrictions on military mobile combustion sources incompatible with their mission, and from potential restrictions on prescribed burning needed to sustain training areas and installation forestry programs; (2) potential for increased difficulty in meeting general conformity requirements and achieving DoD's goals for infrastructure consolidation, closed facility reuse, and operational realignments; and (3) potential costs associated with Title V permits and for New Source Review and control requirements at additional military bases.
EPA and DoD have enjoyed an excellent working relationship on Clean Air Act issues. EPA has made adjustments and revisions to rules and program when necessary to assure that military operations were not unduly impacted. We intend to continue that good working relationship and appreciation for unique military needs as decisions on the proposed standards and implementation are made. I want to make it clear that EPA does not see the need for Defense activities to be the target of control strategies designed to attain these new standards.
Specifically, EPA will take the following actions to address DoD concerns. Understanding that critical training using smoke or obscurants must continue to ensure the training and readiness of the military, I am directing my staff to work with DoD to develop a policy which ensures that a local area will not be redesignated to nonattainment solely on the basis of use of obscurants or smoke. While there is a need to ensure that the public is informed of violations of the air quality standards, if any were to occur, there is no need to curtail the training or limit it to certain weather conditions. Additionally this policy can encourage States not to look to restrictions on these activities to meet the revised air quality standards.
With respect to DoD's concerns with fugitive dust from training activities, EPA has been analyzing actual samples of fine (e.g. PM2.5) particles in the air to determine the sources of the particles. In so doing, it is clear that military training activities are actually among the smallest sources of PM2.5 in areas likely to have a fine particle problem. While military activities contribute some primary PM2.5, secondary particles such as sulfates are by far the largest component of PM2.5. The major sources of fine particles include sulfates from power plants and nitrate from power plants and other large combustion sources. We intend to work with states to target the PM2.5 monitoring program on urban areas with large populations.
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If EPA does add a PM2.5 standard I intend to issue guidance to the states to ensure that in meeting the standard they focus their control strategies on sources of fine, rather than coarse particles. Thus, if we establish a new PM2.5 standard, EPA would not recommend that States focus regulatory attention on military training and field exercises.
EPA has consistently recognized the unique needs of the military regarding mobile sources used for combat or combat training. Military aircraft engines are exempt from emission standards, and each EPA nonroad engine rule includes provisions for combat and national security exemptions. EPA believes it is sensible to continue to include these military exemptions in any new rulemaking to implement the proposed standards. In addition, as pointed out by DoD, States have limited authority through in-use operating restrictions to regulate these nonroad engines. We understand that the needs for operation and readiness at military bases require operations at all hours of the day and we do not believe such operations generally need to be restricted to protect air quality. EPA will work with the States to ensure that their implementation plans do not impose unreasonable burdens on military tactical vehicles or equipment or their use.
With regard to DoD's concerns about possible restrictions on the use of prescribed burning resulting from any new standards, EPA is working with Federal and State agencies to develop guidance for balancing air quality strategies and the need for prescribed burning. Recognizing that DoD is the third largest Federal Land Manager, EPA has included DoD in this Wildland Fire Issues Workgroup Steering Committee. EPA will also work closely with DoD to resolve those prescribed burning issues specific to the Department such as ordnance range fire prevention and safety.
EPA appreciates that the Clean Air Act conformity requirement has posed a special problem in executing the base closure process. To the extent the military realigns large numbers of mobile sources like aircraft or vessels, satisfying conformity has been a significant challenge. EPA commits to work with DoD in the implementation of any new standards to assure that conformity is applied in an appropriate and beneficial manner for air quality and consistent with the goals of DoD for the cost-saving consolidation of the Defense infrastructure and the economic viability for civilian reuse of the former military bases.
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Finally, I am directing my staff to continue to work with DoD on the pending revisions to both the Title V Permit Program and the New Source Review Program to assure equivalent treatment of military facilities.
In summary, Defense sources are a small part of the air quality problem and provide a unique and critical need for the Nation's security. I look forward to continuing to work with you and DoD on issues related to environmental compliance by military facilities.
Sincerely,
| Carol M. Browner, |
| The Administrator. |
| U.S. Environmental Protection Agency, |
| Washington, DC, June 5, 1997. |
Hon. DAN GLICKMAN, Secretary,
U.S. Department of Agriculture,
Washington, DC.
DEAR SECRETARY GLICKMAN: As you know, the U.S. Environmental Protection Agency (EPA) has proposed revisions to the national ambient air quality standards for particulate matter and ground-level ozone. Recently there have been a number of reports mischaracterizing the effects these proposed revisions would have on agriculture. This letter is intended to clarify my position on this matter.
In the U.S. Department of Agriculture comments on the proposed revisions to the ozone and particulate matter standards, USDA raised concerns about the potential effects that implementing control programs could have on farms. I want to make it clear that agriculture would not be the target of EPA control strategies designed to attain these new standards.
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In fact, any decision to strengthen the existing ozone standard would benefit agricultural production. As research at the USDA, EPA, and elsewhere has shown, ground-level ozone damages many kinds of plants and crops including: soybeans, wheat, cotton, peanuts; and various trees including: black cherry, white pine, aspen and ponderosa pine. A standard equivalent to the standard proposed by EPA in November 1996 would substantially reduce damage to crops, tree seedlings and other vegetation.
EPA will work with states to focus any ozone emissions reductions strategies on sources located in urban and highly populated areas including power plants, motor vehicles, and large industrial facilities. Ozone control strategies will not focus on agricultural sources.
With respect to particulate matter, EPA has been analyzing actual samples of fine (e.g. PM2.5) particles in the air to determine the source of the particles. In so doing, it is clear that farms are actually among the smallest sources of PM2.5 in areas likely to have fine particle problems. While farm activities contribute some primary PM2.5, secondary particles such as sulfates are by far the largest component of PM2.5. The major sources of fine particles include sulfates from power plants and nitrates from power plants and other large combustion sources. We intend to work with states to target the PM2.5 monitoring program on urban areas with large populations.
If EPA does add a PM2.5 standard, I intend to issue guidance to the states to ensure that in meeting that standard they focus their control strategies on sources of fine, rather than coarse particles. Thus, if we establish a new PM2.5 standard, EPA would not focus regulatory attention on farming and tilling.
With regard to prescribed burning on federal lands and open burning on agricultural lands, EPA recognizes the natural role of fire in wildland ecosystems and agricultural land, and will continue to work with USDA to develop air quality strategies that accommodate the role of burning. I look forward to working closely with you on this matter.
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In summary, agricultural sources are a very small part of the overall PM2.5 problem and will actually benefit from a tightened ozone standard. I look forward to continuing to work with you and USDA's Agricultural Air Quality Task Force to address farming issues as we continue work on these important public health standards. I agree-with the Task Force recommendation that it would be beneficial for USDA and EPA to enter into an agreement to share technical expertise on agricultural air quality issues.
Sincerely,
| Carol M. Browner, |
| The Administrator. |
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, August 25, 1997. |
Hon. GEORGE W. GEKAS, Chairman,
Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
DEAR CHAIRMAN GEKAS: Your letter of August 8, 1997 to the Attorney General has been referred to me for response. Your letter seeks information from the Department on our communications with the Environmental Protection Agency (EPA) regarding the application of the Small Business Regulatory Enforcement Fairness Act (SBREFA) and other regulatory laws to EPA's proposed particulate matter and ozone standards. You refer to recent testimony by EPA Deputy Administrator Fred Hansen on these matters.
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This Department frequently provides legal advice to EPA, and we did consult with EPA on certain substantive Clean Air Act issues relating to the proposed standards as part of the interagency process. However, we did not consult with EPA on any of the laws you cite and their application to the proposed standards. Therefore we do not have any documents or names of Justice Department personnel that are responsive to your request. We have confirmed with EPA's General Counsel that EPA does not ordinarily consult with the Justice Department regarding SBREFA compliance issues, and that it did not do so with respect to the proposed particulate matter and ozone standards. We have discussed your request with EPA, and we and EPA have concluded that there was some misunderstanding on Mr. Hansen's part. Based on his awareness that EPA consults with the Department on legal matters, he evidently assumed that the two agencies had consulted on the matters you raise, and he testified to that effect. EPA recognizes that this consultation did not happen. We understand that Mr. Hansen will be asking the Committee for permission to correct his misstatement.
I note that the Department will be defending all legal challenges to the particulate matter and ozone rules, including any issues that may arise under SBREFA, the Regulatory Flexibility Act, or the Unfunded Mandates Reform Act. Therefore we anticipate that we will, in the future, consult with EPA on SBREFA and other issues. To date, however, we have not done so.
Thank you for writing to the Department.
Sincerely,
| James E. Costello, |
| Deputy Assistant Attorney General. |
| (For) Andrew Fois, |
| Assistant Attorney General. |
cc: Hon. Jerrold Nadler,
Ranking Minority Member.
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Hon. Jonathan Z. Cannon,
General Counsel,
Environmental Protection Agency.
45–433 CC
1997
EPA'S RULEMAKINGS ON THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER AND OZONE
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
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EPA'S RULEMAKINGS ON THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER AND OZONE
JULY 29, 1997
Serial No. 35
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
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SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
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JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
STEVEN SCHIFF, New Mexico
LAMAR SMITH, Texas
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
JERROLD NADLER, New York
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
CHARLES E. KERN II, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
HEARING DATE
July 29, 1997
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
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Boucher, Hon. Rick, a Representative in Congress from the State of Virginia
Hansen, Fred J., deputy administrator, U.S. Environmental Protection Agency, accompanied by Richard Wilson, deputy assistant administrator, Office of Air and Radiation
Klink, Hon. Ron, a Representative in Congress from the State of Pennsylvania
Russman, Richard L., Senator, State of New Hampshire
Thurston, George D., associate professor of environmental medicine, New York University, School of Medicine
Upton, Hon. Fred, a Representative in Congress from the State of Michigan
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Boucher, Hon. Rick, a Representative in Congress from the State of Virginia: Prepared statement
Hansen, Fred J., deputy administrator, U.S. Environmental Protection Agency: Prepared statement
Johnson, Randy, county commissioner, Hennepin County, MN, on behalf of the National Association of Counties: Prepared statement
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Kucinich, Hon. Dennis J., a Representative in Congress from the State of Ohio: Prepared statement
Schaeffer, Allen R., vice president, Environmental Affairs, American Trucking Association: Prepared statement
Upton, Hon. Fred, a Representative in Congress from the State of Michigan: Prepared statement
APPENDIX
Material submitted for the hearing
(Footnote 1 return)
Such analysis should include: qualitative and quantitative assessments of the anticipated costs and benefits of the mandate; analysis of federal assistance and resources available to state, local, and tribal governments; estimates of future compliance costs; analysis of any disproportionate budgetary effects on regions, states, localities and tribes; estimates of the effects on the national economy; reports of EPA's prior consultation with elected state, local and tribal officials; summary of submitted comments from the various levels of government; and evaluation of those comments.
(Footnote 2 return)
NCSL is a strong supporter of the principles underlying the Clean Air Act and its 1990 Amendments. NCSL policy on Clean Air Act implementation clearly states NCSL's opinion that the federal government, in cooperation with state and local governments, should implement an environmentally sensitive and cost-effective clean air policy based on minimum national ambient air quality standards. NCSL strongly urges EPA to proceed with full implementation of the Clean Air Act. NCSL refrains from addressing the content of the final rules given that the organization does not possess the scientific or technical expertise required to evaluate the health impact of the final rules. In addition, the membership of NCSL has not reach consensus on the issues surrounding the content of the final rules.
(Footnote 3 return)
Title I, section 2(1) of UMRA
(Footnote 4 return)
Title I, section 2(4) of UMRA
(Footnote 5 return)
Title I, section 2(8) of UMRA
(Footnote 6 return)
Rand McNally, Skokie, IL. October 1996. Letter to Ken Simonson, ATA.
(Footnote 7 return)
ATA Statistics Department, Alexandria, VA. February 28, 1997.
(Footnote 8 return)
U.S. Small Business Administration, Washington DC.
(Footnote 9 return)
Office of Motor Carriers, U.S. Department of Transportation, Washington DC.
(Footnote 10 return)
American Trucking Trends, 1996. ed, page 15. American Trucking Associations, Alexandria, VA.
(Footnote 11 return)
Under other statutes, Congress has likewise understood the critical importance of timing in review functions, and the courts have strictly enforced such timing requirements. For example, the National Environmental Policy Act (''NEPA''), which requires agencies to consider environmental impacts prior to action, has a parallel structure to SBREFA, which requires agencies to consider economic impacts on small businesses before taking action. The courts have strictly enforced the timing requirements of NEPA that agencies consider environmental impacts before agencies take action. See Foundation on Economic Trends v. Heckler, 756 F.2d 143, 157 (D.C. Cir. 1985); Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989).
(Footnote 12 return)
DRI/McGraw Hill, U.S. Freight Transportation Forecast . . . to 2004 (ATA Foundation 1996 Annual Report).
(Footnote 13 return)
Figures released by Office of Motor Carriers, U.S. Department of Transportation (April 1996).
(Footnote 14 return)
Sierra Research, Inc., Socio-Economic Study of Possible Eight Hour Ozone Standard, Report No. SR 96–06–01 (June 4, 1996) (evaluation prepared for American Petroleum Institute).
(Footnote 15 return)
Closure letter from George T. Wolff, Chair, Clean Air Scientific Advisory Committee, to Administrator Carol M. Browner (dated Nov. 30, 1995) (EPA–SAB–CASAC–LTR–96–002), at 3.
(Footnote 16 return)
Closure letter from George T. Wolff, Chair, Clean air Scientific Advisory Committee, to Administrator Carol M. Browner (dated June 13, 1996) (EPA–SAB–CASAC–LTR–96–008), at 4.
(Footnote 17 return)
This list is based on measured air quality data from 1993 to 1995. When designations of nonattainment are made in two to three years they will be made on the most recent three years of quality assured data available for each area.
(Footnote 18 return)
This list is derived from a prediction of PM levels based on analysis of monitored PM data and is, therefore, subject to significant uncertainty. Actual designations for nonattainment will be based on 3 years of Federal Reference Monitor data for PM.