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89–352 PDF 2003

ELEVATION OF THE ENVIRONMENTAL PROTECTION AGENCY TO DEPARTMENT LEVEL STATUS:

H.R. 37 AND H.R. 2138

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 37

TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO CABINETLEVEL STATUS AND REDESIGNATE SUCH AGENCY AS THE DEPARTMENT OF ENVIRONMENTAL PROTECTION

AND ON

H.R. 2138

TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO CABINETLEVEL STATUS AND REDESIGNATE SUCH AGENCY AS THE DEPARTMENT OF ENVIRONMENTAL PROTECTION

JUNE 6 AND SEPTEMBER 9, 2003

Serial No. 108–50

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

WILLIAM J. JANKLOW, South Dakota

MARSHA BLACKBURN, Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

———

BERNARD SANDERS, Vermont

(Independent)

PETER SIRH, Staff Director

MELISSA WOJCIAK, Deputy Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHILIP M. SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY

AFFAIRS

DOUG OSE, California, Chairman

WILLIAM J. JANKLOW, South Dakota

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

CHRIS CANNON, Utah

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

JOHN F. TIERNEY, Massachusetts

TOM LANTOS, California

PAUL E. KANJORSKI, Pennsylvania

DENNIS J. KUCINICH, Ohio

CHRIS VAN HOLLEN, Maryland

JIM COOPER, Tennessee

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

DAN SKOPEC, Staff Director

BARBARA KAHLOW, Deputy Staff Director

DANIELLE HALLCOM, Professional Staff Member

ALEXANDRA TEITZ, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on:

June 6, 2003 ...................................................................................................... 1

September 9, 2003 ............................................................................................ 169

Text of H.R. 37 ......................................................................................................... 21

Text of H.R. 2138 ..................................................................................................... 27

Statement of:

Chisum, State Representative Warren, Texas House of Representatives;

Howard Roitman, director of environmental programs, Colorado Department of Public Health and Environment; Dr. Ron Hammerschmidt,

director, Division of Environment, Kansas Department of Health and

Environment; E. Donald Elliott, former EPA General Counsel and current partner, Willkie, Farr & Gallagher LLP; Dr. A. Alan Moghissi,

president, Institute for Regulatory Science; and Gary S. Guzy, former

EPA General Counsel and current partner, Foley Hoag LLP ................... 218

Connaughton, James L., chairman, Council on Environmental Quality;

and Marianne L. Horinko, Acting Administrator, Environmental Protection Agency ............................................................................................... 187

Portney, Paul R., president, Resources for the Future; George M. Gray,

acting director, Center for Risk Analysis, Harvard University; Steven

F. Hayward, F.K. Weyerhaeuser fellow, American Enterprise Institute

for Public Policy Research; Wesley P. Warren, senior fellow for environmental economics, Natural Resources Defense Council; and Rena I.

Steinzor, esq., professor, University of Maryland, and board member,

Center for Progressive Regulation ............................................................... 64

Letters, statements, etc., submitted for the record by:

Boehlert, Hon. Sherwood, a Representative in Congress from the State

of New York, prepared statement of ........................................................... 62

Chisum, State Representative Warren, Texas House of Representatives,

prepared statement of ................................................................................... 220

Connaughton, James L., chairman, Council on Environmental Quality,

prepared statement of ................................................................................... 190

Elliott, E. Donald, former EPA General Counsel and current partner,

Willkie, Farr & Gallagher LLP, prepared statement of ............................ 246

Guzy, Gary S., former EPA General Counsel and current partner, Foley

Hoag LLP, prepared statement of ............................................................... 239

Gray, George M., acting director, Center for Risk Analysis, Harvard

University:

Information concerning agency estimates of benefits and costs of

major rules ............................................................................................. 115

Prepared statement of ............................................................................... 74

Hammerschmidt, Dr. Ron, director, Division of Environment, Kansas Department of Health and Environment, prepared statement of ................. 231

Hayward, Steven F., F.K. Weyerhaeuser fellow, American Enterprise Institute for Public Policy Research, prepared statement of ........................ 78

Horinko, Marianne L., Acting Administrator, Environmental Protection

Agency, prepared statement of .................................................................... 195

Moghissi, Dr. A. Alan, president, Institute for Regulatory Science, prepared statement of ........................................................................................ 255

Ose, Hon. Doug, a Representative in Congress from the State of California:

Prepared statement of ............................................................................... 4, 172

Prepared statement of Ms. Mazurek ....................................................... 6

Portney, Paul R., president, Resources for the Future, prepared statement

of ..................................................................................................................... 67

Page

IV

Letters, statements, etc., submitted for the record by—Continued

Roitman, Howard, director of environmental programs, Colorado Department of Public Health and Environment, prepared statement of ............. 225

Steinzor, Rena I., esq., professor, University of Maryland, and board

member, Center for Progressive Regulation, prepared statement of ........ 98

Tierney, Hon. John F., a Representative in Congress from the State

of Massachusetts, prepared statement of ................................................... 184

Warren, Wesley P., senior fellow for environmental economics, Natural

Resources Defense Council, prepared statement of ................................... 83

(1)

ELEVATION OF THE ENVIRONMENTAL PROTECTION AGENCY TO DEPARTMENT LEVEL

STATUS: H.R. 37 AND H.R. 2138

FRIDAY, JUNE 6, 2003

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose and Davis (ex officio).

Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Danielle Hallcom, professional staff member;

Melanie Tory, jr. professional staff member; Yier Shi, press secretary; Alexandra Teitz, minority counsel; and Cecelia Morton, minority office manager.

Mr. OSE. Good morning. Welcome to this morning’s Energy Policy, Natural Resources and Regulatory Affairs Subcommittee hearing.

Today we welcome the full committee chairman. Good morning.

As this Nation faces a new generation of environmental challenges, the issue of the elevation of the Environmental Protection

Agency [EPA], is more important than ever. The United States is

one of the few industrial nations that does not place environmental

protection in a Cabinet-level position. I believe that environmental

protection is as important as other Cabinet functions and is critical

to the health and well-being of this Nation’s environment and its

people.

Since its creation in 1970, EPA has grown from a small agency to one with about 18,000 employees and a budget of $7.7 billion.

Over the last 30 years, 11 major environmental laws expanded

EPA’s jurisdiction and delegated most implementation activities to

the States. EPA now faces new environmental challenges originating from nonpoint sources that are difficult to regulate. To meet

these future challenges, many experts have stated that EPA needs

to be reformed.

During the last Congress, this subcommittee held three hearings

addressing EPA elevation bills introduced by Congressman Sherwood Boehlert and former Congressman Steve Horn. Several experts, industry representatives, EPA and other administration and

State officials testified to the merits of the elevation and current

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organizational problems at EPA that hinder effective environmental protection. Today’s hearing will examine two new EPA elevation bills referred to this subcommittee. H.R. 37, introduced by

Congressman Sherwood Boehlert, is identical to H.R. 2438, as introduced in the 107th Congress. H.R. 37 would restrict itself to elevating EPA to department-level status.

Based on the expert testimony from our previous three hearings,

I introduced H.R. 2138 on May 15, 2003. My bill would make significant organizational and institutional changes to EPA. It reorganizes EPA into three Under Secretaries, the first being for Policy,

Planning, and Innovation; the second for Science and Information;

and the third for Compliance, Implementation, and Enforcement.

The Under Secretary for Policy, Planning, and Innovation would

have authority over all program offices, regulations, and policy development. The Under Secretary for Implementation, Compliance,

and Enforcement would supervise the regional offices.

Responding to the overwhelming criticism over the lack of sound

science at EPA, my bill creates an Under Secretary for Science and

Information. This section mirrors legislative language from H.R.

64, known as the Strengthening Science at the EPA Act, introduced

by Congressman Vernon Ehlers, which passed the House in the

last Congress. Finally, my bill creates an independent Bureau of

Environmental Statistics to collect, analyze, and report on environmental and human health conditions. We have a chart on the right

for everyone to take a look at.

Currently, each EPA regional office, program office, and division

reports directly to EPA’s Administrator and Deputy Administrator

as reflected on the chart on the left. The subcommittee heard testimony during the last Congress that this stovepipe organization results in EPA’s inability to effectively address cross-media environmental protection. I believe that EPA’s structure, as it currently

exists, lacks adequate oversight and coordination of its offices to

ensure that science, policy and implementation are integrated

throughout EPA.

The subcommittee also heard testimony during the last Congress

that EPA lacks scientific leadership, critical science for decisionmaking, intra-agency dissemination of information, and coordinated efforts between the Office of Research and Development and

the program offices. The lack of coordination between the Water

and Air program offices that resulted in the MTBE contamination

of our groundwater, particularly in California, must never happen

again. I believe all science at EPA needs to be consolidated into a

centralized division headed by strong leadership that will advance

environmental protection by conducting peer-reviewed scientific

studies of the highest caliber.

One of the most serious deficiencies at EPA is the unavailability

of reliable and measurable environmental outcome data, such as

cleaner water and fewer illnesses. Several other departments have

their own statistical agencies to provide independent and reliable

data for decisionmaking and analysis. By creating a Bureau of Environmental Statistics, we can ensure that the policies EPA advances are actually cleaning the environment and protecting the

health of our citizens.

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EPA, as it exists today, does not have the institutional ability to

meet the environmental challenges of the 21st century. By reorganizing the EPA and providing the statistical tools to understand

our changing environment, we have the opportunity to create an

executive department that does a better job of protecting the environment than it currently does as an independent Federal agency.

I look forward to the testimony of our distinguished panel here

today.

I am sorry to report that we have heard from one of our witnesses, Janice Mazurek, Director for Innovation and the Environment at the Progressive Policy Institute, that she will be unable to

participate today due to an unexpected situation. I ask unanimous

consent that her full written statement be included in the record.

Hearing no objection, so ordered.

Our panel of witnesses with us today includes Dr. Paul Portney,

president of Resources for the Future; Dr. George Gray, acting director, Center for Risk Analysis at Harvard School of Public

Health; Dr. Steven Hayward, F.K. Weyerhaeuser fellow at the

American Enterprise Institute; Wesley Warren, senior fellow for

environmental economics at the Natural Resources Defense Council; and Rena Steinzor, professor, University of Maryland School of

Law, and board member for the Center for Progressive Regulation.

Thank you all for coming.

[The prepared statement of Hon. Doug Ose and the texts of H.R.

37 and H.R. 2138 follow:]

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Mr. OSE. I would like to recognize our distinguished chairman for

the purposes of an opening statement.

Mr. TOM DAVIS OF VIRGINIA. Well, thank you very much, Chairman Ose, for holding the hearing today on the EPA and whether

it would function better if elevated to a department level. I think

this hearing is going to provide an opportunity to explore in an

open-minded and bipartisan way whether the time has come to

make drastic changes in the organization and mission of the EPA.

Mr. Chairman, over the years you have done important work

chairing this subcommittee, and your work in the 107th Congress

on this issue created a strong legislative history and record of effective congressional oversight on these matters.

In the 30 years since it was created, EPA has supervised and implemented the cleanup of urban industrial waste sites, fought for

the protection of our forests, streams, and rivers, and educated the

Nation about the importance of cleaner air in our suburban communities. In that period of time, the Agency has grown from

around 4,000 employees to 18,000 employees. The EPA has offices

located literally all over the Nation. It is charged with enforcing

many diverse and sometimes even contradictory interests as it

seeks to improve and sustain the Nation’s environment. It is possible the elevation would better equip the Agency to meet and face

these challenges. If that were the case, then we ought to be open

to all feasible options.

I look forward to the testimony from our experts today. I appreciate your subcommittee taking the time to consider this important

legislation. I would just say, as chairman of the full committee, we

take this effort seriously. Thank you.

Mr. OSE. Thank you, Mr. Chairman.

I would like to ask unanimous consent that the statement of

Sherwood Boehlert be entered into the record. Hearing no objection, that will take place.

[The prepared statement of Hon. Sherwood Boehlert follows:]

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Mr. OSE. In this committee, we always swear our witnesses in.

So, if you would all rise, please.

[Witnesses sworn.]

Mr. OSE. Let the record show that the witnesses answered in the

affirmative.

We have received your statements. They are going to be entered

into the record in total. We have read them. I actually read them.

I am sure Chairman Davis did, too. To the extent that we can, we

would like to move through the statements expeditiously. We are

going to give each of you 5 minutes to summarize. You don’t have

to use all of the 5 minutes, but hit your high points, if you would.

I will go left to right here. We will start with Dr. Portney. Dr.

Portney is the president for Resources for the Future.

We welcome you to our committee. You are recognized for 5 minutes.

STATEMENTS OF PAUL R. PORTNEY, PRESIDENT, RESOURCES

FOR THE FUTURE; GEORGE M. GRAY, ACTING DIRECTOR,

CENTER FOR RISK ANALYSIS, HARVARD UNIVERSITY; STEVEN F. HAYWARD, F.K. WEYERHAEUSER FELLOW, AMERICAN

ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH;

WESLEY P. WARREN, SENIOR FELLOW FOR ENVIRONMENTAL ECONOMICS, NATURAL RESOURCES DEFENSE

COUNCIL; AND RENA I. STEINZOR, ESQ., PROFESSOR, UNIVERSITY OF MARYLAND, AND BOARD MEMBER, CENTER FOR

PROGRESSIVE REGULATION

Dr. PORTNEY. Thank you very much, Mr. Chairman and Congressman Davis. I am pleased to be here, and I appreciate the opportunity to testify.

The one thing I will say by way of introduction is that, while I

am president of Resources for the Future, a think tank here in

Washington that specializes in energy and environmental issues, I

want to make clear that the comments today that you’ll hear from

me are my own and do not represent the views of RFF.

I will cut directly to the chase, taking you at your admonition,

and say that I am strongly supportive of the elevation of EPA to

Cabinet status and even more enthusiastic about the creation of a

Bureau of Environmental Statistics within the Environmental Protection Agency. I have long believed that elevation of EPA to Cabinet status has been a good idea. It was a good idea when former

President George Bush put it forward, it was a good idea when

former President Bill Clinton put it forward, and it remains a good

idea today.

Several brief observations about the consequence of making EPA

a Cabinet department, if I can. My view is that having EPA become a Cabinet department is largely symbolic, but as I said in my

prepared remarks, sometimes symbols matter. I believe that having

an EPA administrator who would be a Secretary of Environmental

Protection would facilitate international negotiations on environmental issues, and it would be a strong signal to the rest of the

world that we take environmental protection as seriously as we

take the provinces of the other Cabinet departments.

With respect to the reorganization that is proposed in H.R. 2138,

I can see a number of advantages to those proposed changes,

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though I am more agnostic on those changes than I am on the

issue of elevation to Cabinet status itself. As somebody who has

studied environmental regulation for 31 years—it pains me to cite

that figure, I have to confess—I am now of the belief that if the

Administrator of EPA, whoever he or she may be, wants to make

use of good science and good economic analysis in regulation, then

that analysis will be forthcoming. If the Administrator of EPA is

not a strong client for strong science and economic analysis in regulation, then there won’t be a market for it and that kind of information will not be forthcoming.

In the legislation, you talk about the organizational structure of

EPA as being an obstacle to cross-media tradeoffs, to experimentation along the lines of things like Project XL, etc. I agree with

you that the organization of EPA can be an impediment to these

kinds of things, although I have to be honest and say that I think

it is the statutory framework under which we regulate in the environment—with a clean air statute that makes no connection to

solid waste or water pollution, and a water pollution statute that

does the same—that is the bigger obstacle to cross-media regulation or experimentation.

Turning quickly to the Bureau of Environmental Statistics, I

think it is badly needed, and I have felt that way for a long time.

In a Nation where we spend, according to EPA’s estimates, on the

vicinity of $150 billion each year on environmental regulation, I

think the Members of Congress, other parts of the administration

and, most of all, the American public deserve an annual reporting

on the progress that we are making in cleaning up the environment.

Currently, we have fragmented, periodic efforts to report to the

public. One of my fellow co-panelists here today, Steve Hayward,

has participated in such an effort for 8 or 9 years, for which he is

to be congratulated.

The Heinz Center recently issued a State of the Nation’s Ecosystems Report which I think is an excellent summary of some of

the environmental progress that we are making.

The Council on Environmental Quality in its annual report, in

the past at least, has contained voluminous information on ambient

environmental protection. I am aware of that because for 2 painful

years that I spent at CEQ I was responsible for pulling all of that

information together.

Nevertheless, there is no comprehensive annual estimate that

comes from the Federal Government, as I think this information

should come, on environmental conditions and trends.

I think that the independence of the Director of the Bureau of

Environmental Statistics is absolutely essential. I think that person should have the same kind of protection that the head of the

Bureau of Labor Statistics has within the Labor Department and

the head of the Bureau of Economic Analysis has within the Commerce Department.

And, finally, let me say that, in thinking about the kinds of information that the Bureau of Environmental Statistics would provide,

I would urge that we envision that this be done somewhat cautiously, beginning with the presentation of information on trends in

environmental quality, air quality, water quality, land contaminaVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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tion, etc.; broadening them to contain information and data on

emissions, levels of waste generated, etc.; possibly then expanding

to include information on compliance and enforcement. I mention

this having read the article that I am sure you have seen in today’s

Washington Post about compliance and noncompliance with the

Clean Water Act.

And then, finally, in a perfect world, the Bureau of Environmental Statistics could present evidence on health and economic indicators that are related to the environment. I mention those last

not because those are not important—indeed, we need to know

about asthma and other things—but, rather, because the link between environmental quality and a variety of health end points is

the subject of considerable debate. I would rather see the BES

present environmental quality data first and then gradually build

itself up to presenting this other data.

Thank you so much for having me here today, and I will be

happy to answer any questions that you have.

Mr. OSE. Thank you.

[The prepared statement of Mr. Portney follows:]

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Mr. OSE. Our next witness is Dr. George Gray. He is with the

Harvard Center for Risk Analysis at the Harvard School of Public

Health.

Dr. Gray, you are recognized for 5 minutes. Thank you for coming.

Dr. GRAY. Thank you, Chairman Ose, Mr. Davis. It is a pleasure

to be here.

A similar sort of introduction to Dr. Portney: These remarks are

mine alone and shouldn’t be attributed to the Harvard Center for

Risk Analysis or the Harvard School of Public Health. They are

also informed by my almost 15 years working as a scientist, a risk

analyst, and a public health professional.

I am here to support the idea of elevating the Environmental

Protection Agency to departmental status. I think that EPA’s mission is important to the citizens of our country, and raising it to

the highest level will recognize the priority that we give to human

health and our natural resources. But, like many others, I do believe that this transition is an opportunity to evaluate the ways in

which this new department acts to achieve these goals, and for this

reason I support many of the provisions of H.R. 2138. And, I want

to touch very quickly on two of those.

Touching on this notion of restructuring EPA, I think the development of a Bureau of Environmental Statistics has a variety of

very positive attributes. First, I think it is very important that we

have concrete evidence of the effective efforts to address environmental problems.

Another thing that I think is important that we may often overlook is that it is a communication device for the new department,

and I want to touch on that especially. I think it will help to identify and prioritize emerging challenges.

And the last thing that I want to spend a little bit of time on

is the fact that we do have to be, I think, a little bit humble about

what we can actually learn from a Bureau of Environmental Statistics.

Turning to the communication aspects. There is a problem in this

country in that an awful lot of people don’t understand, don’t appreciate the progress that we have made in the environment over

the last 30 years. In a 2002 survey that was conducted by Wirthlin

Worldwide for the Foundation for Clean Air Progress, they asked

1,000 American adults: Do you believe that the Nation’s air has

gotten better or worse in the last 10 years? And, over two thirds

of them said the air has gotten worse. That is wrong, and that is

a problem. Because how can we expect the public to support environmental measures, some of which are going to be inconvenient or

possibly expensive for them—things that address tailpipe emissions

could increase the price of cars, it could increase the price of fuel—

if they don’t think they are getting anything for these efforts?

I think that a well-respected and trusted national Bureau of Environmental Statistics can help build support for the Department

of Environmental Protection and its efforts and can also provide

this important information and context for citizens.

However, I do think we have to be humble about what we could

learn with this Bureau. Many of EPA’s rules and regulations focus

on reductions in risk to human health, yet it is extremely unlikely

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that any effort to gather statistical information on public health

will identify changes that you can associate with a specific regulation. The risks that the EPA addresses in general are just too

small. I don’t think you could find an epidemiologist or a public

health statistician who believes that we could detect any change in

health status in a town, for example, that reduces arsenic in its

drinking water to meet the new EPA standard. It is important to

be aware of the information that this new Bureau can and cannot

provide to help guide decisionmaking.

The EPA uses the tools of risk assessment and management to

inform their important decisions. The way that this approach is intended to work, science is done on one side, we bring the best information we can to bear on problems, and then policies are then formulated. These policies include information that goes well beyond

science. They include economics, they include engineering, they include social sciences, and a lot of other things that are important.

There is a perception today, I will tell you, in the scientific community that right now policy in EPA influences their science, and

that influence undermines the credibility of both EPA’s science and

EPA’s decisions. So I think that the proposal in H.R. 2138 to restructure the Department by function would go a long way to improving both the perception and the reality of the credibility of

EPA’s science and decisions.

In closing, I think elevating EPA to departmental status is a

positive thing to do; and while we are doing that, I do welcome attention to improving the information that is available for confronting current and future environmental challenges with sound

science and with environmental statistics. I think careful consideration of opportunities for restructuring is also warranted to build

confidence in the science and the decisions that guide our efforts

in environmental protection.

So I want to thank you and applaud you for your efforts looking

forward to equip our country with the tools we need to ensure wise

environmental protection in the future, and I would be happy to

answer any questions.

Mr. OSE. Thank you, Dr. Gray.

[The prepared statement of Dr. Gray follows:]

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Mr. OSE. Our next witness is Dr. Steven Hayward, who is the

resident scholar at the American Enterprise Institute for Public

Policy Research.

I want to thank you for coming, Dr. Hayward. You are recognized

for 5 minutes.

Dr. HAYWARD. Thank you, Mr. Chairman.

I guess I will depart from my written testimony a little bit and

add to it, if I can, by noting a little bit of history.

President Nixon originally intended the EPA to be a Cabinetlevel department of environment and natural resources. He intended it as a sweeping reorganization of the entire executive

branch, and it didn’t happen for reasons unrelated to the merits of

the idea of having the environment as a Cabinet-level agency. So,

instead, the EPA was created as an administrative organization at

the same time we created a lot of things like the Consumer Product

Safety Commission and OSHA; and I think it is increasingly clear

today, for reasons that have already been alluded to, that the EPA

is much more like the Department of Health and Human Services

in terms of its public importance than it is like the Consumer Product Safety Commission.

I mean, one reason I think it is a good idea to elevate the EPA

to Cabinet rank is that it will help in a broad sense to educate the

public better about environmental issues in much the same way

that the reorganization of the Department of Homeland Security focuses the public mind better on the issues that Department is intended to address—because it could have been kept the way it was,

with Tom Ridge in the White House trying to coordinate different

agencies—and the way the Council of Environmental Quality now

tries to coordinate between all the government agencies that work

on the environment. So the point is it is long overdue to put the

EPA on a higher plane.

We are going to sound a bit like a broken record so far, because

I think the heart of this bill to me is the proposed Bureau of Environmental Statistics. I spend most of my time trying to research

environmental data and find out what’s going on and what we

know and more importantly perhaps what we do not know.

The EPA does an excellent job of monitoring air quality, and the

data they produce and the annual report they produce is superb.

They do a less good job, as we learned from the Post story today,

on water quality. And, the problem of identifying good data and

water quality is immense. But that is the kind of problem that the

Bureau of Environmental Statistics can begin to get its hands

around, rather than right now having those data be generated by

individual regulatory programs that don’t fit together in any kind

of intelligible whole.

I first learned this idea from Paul. I have to give him full credit

for it and return the kindness he gave to me.

If you go back to the very first report of the President’s Council

on Environmental Quality in 1972, they said this: The use of a limited number of environmental indices by aggregating and summarizing available data could illustrate major trends and highlight

the existence of significant environmental conditions. It could also

provide the Congress and the American people measures of the sucVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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cess of Federal, State, local, and private environmental protection

activities.

An analogy might be drawn with the economic area, where the

Consumer Price Index, the Wholesale Price Index, and unemployment rates provide a useful indication of economic trends.

Well, here we are 31 years later, and we are still not doing all

that; and I think the time has come. Thank you.

Mr. OSE. Thank you, Dr. Hayward.

[The prepared statement of Dr. Hayward follows:]

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Mr. OSE. Our next witness is Wesley Warren. He is the senior

fellow for environment economics at the Natural Resources Defense

Council.

We are very grateful for you appearing, and you are recognized

for 5 minutes.

Mr. WARREN. Thank you. I would like to express my appreciation

both to the chairman of the subcommittee and the full committee

for giving this such attention today.

The Natural Resources Defense Council does support legislation

to elevate EPA to Cabinet status. We believe that this would put

the Agency on par with other Departments and would also send an

international signal about the importance of environmental issues

generally.

However, we do not support this objective to such an extent that

we would accept changes in the Agency’s authorities or structure

that would actually hamper its ability to get its job done. Therefore, we urge the committee, if it takes up this issue, to pass a

clean bill, free of any other types of provisions.

Repeatedly, attempts to add other issues to this legislation have

derailed these legislative proposals, and we think it would just end

up, because of the controversy, being a one-way ticket to nowhere.

Accordingly, we have endorsed H.R. 37, which is legislation that

would be a simple and direct elevation. But we do oppose H.R.

2138 which we believe, for reasons that I will discuss in greater detail, do not meet this description.

I believe when people look at the issue of elevating EPA to a

Cabinet agency, there are two great temptations. One is to change

the authorities of the Agency, and the other is to reorganize its

structure. This is something that H.R. 2138 does in both cases.

And, I believe in fact that it is very well intended, that it is looking

at important issues, like how do we encourage cross-media work at

the Agency, and how can we improve the quality and quantity of

good environmental information, both of which are objectives that

we also share support for.

However, we would not like to see those objectives pursued in a

way where we might actually create more bureaucracy and as a result more litigation and gridlock. And so, again, whatever the merit

of those issues might be at a separate time and place, we strongly

urge their exclusion from this legislation.

If I can take a couple of moments to detail what our main concerns are—I won’t go into all of them, which are in my testimony—

I would say I believe the most troubling is the statutory mission

statement that is included in the bill that would create a vague

new standard hinging on the concept of unreasonable risk. We believe that unreasonable risk is only one standard that could be considered in terms of environmental protection, but it is by no means

the one, that is used most generally in statutes; and that the mission of the Agency should be, plain and simple, to administer the

statutes that Congress has already passed or may pass in the future.

Second of all, in respect to the reorganization, I would like to

point out a couple of issues that we also consider troubling. But I

believe that the main point on reorganization is this: That, by and

large, the Agency already has the authority it needs to accomplish

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the purposes of providing better information and doing cross-media

work if it has the will and resources to do so.

I, too, read the article in the Post today. Part of the headline is:

Agency Says It Must Do a Better Job of Monitoring. Yet the Bush

administration budget for this year actually would cut compliance

monitoring and civil enforcement activities at the Environmental

Protection Agency by nearly 100 positions, at the same time that

the State of California in this article says what it needs more than

anything else to provide more and better monitoring statistics is

money.

So we believe that merely bringing together information functions into a single place in the Agency and relabeling it doesn’t necessarily mean that the Agency is going to be able to provide this

job; and we would urge the committee to first look at ways in

which they could make those current authorities and resources fit

more closely the needs of the Agency.

Finally, I would like to say that, if the committee decides what

it would like to do is to try to improve the operation of the Agency

by changing authorities or structure, then in fact we would have

many suggestions of actions that could be taken that would improve environmental protection in this country. I have listed some

of those suggestions in my testimony. I recommend them for consideration of the committee.

But I would just conclude by saying that I believe that any of

those proposals might also be controversial and that the end result

might be derailing our common objective of elevating EPA to a

Cabinet-level agency, which should be the purpose of the legislation.

Mr. OSE. Thank you, Mr. Warren.

[The prepared statement of Mr. Warren follows:]

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Mr. OSE. Our final witness is Rena Steinzor, who is a professor

at the University of Maryland School of Law and a Board Member

at the Center for Progressive Regulation.

Thank you for joining us this morning. You are recognized for 5

minutes.

Ms. STEINZOR. Thank you, Mr. Chairman, for the opportunity to

appear before you today. My comments do represent the views of

the Center for Progressive Regulation, also a think tank doing

much of its work in Washington.

As the chairman explained at the outset, you have two very distinct pieces of legislation before you today. CPR would like to make

five points about these legislative proposals and their potential impact on environmental protection.

Point one, elevation is far less therapy than this gravely patient

really needs. There is a broad-based consensus among the Agency’s

major constituencies that it should be elevated to Cabinet status,

and CPR agrees with that view. However, at this juncture, elevation has the flavor of fiddling while Rome burns. Opponents have

laid siege to the Agency which just lost Governor Whitman. A

range of deregulatory initiatives imposed by the White House have

undercut its daily work more drastically than at any point in the

last 15 years. A ceremony in the Rose Garden celebrating its Cabinet status would convey a profoundly misleading impression about

its stability and effectiveness.

Beginning with broken promises at Kyoto, this administration

has pursued a series of initiatives designed to roll back protections

established by Presidents on a bipartisan basis over three decades.

Among the most troubling are those that undermine the work of

the President’s father who led Congress to pass the 1990 Clean Air

Act amendments, among the most comprehensive environmental

initiatives ever to be enacted in this country.

Meanwhile, the political appointee in charge of the Office of

Water has launched an expensive and time-consuming initiative to

eliminate Federal controls on pollution for 50 to 60 percent of

streams and 20 percent of wetlands. Unless and until the States

pick up the slack left by EPA and the Army Corps of Engineers’

abrupt departure from the field, these vast and irreplaceable natural resources could be polluted, drained, or filled in by industrial

dischargers, real estate developers, and sewage treatment plants.

Point two, clean bill, or proverbial Christmas tree? Many of the

EPA’s critics, especially on the business side of the spectrum, have

grown extremely frustrated by their inability to persuade Congress

to undertake radical surgery on its core authorizing statutes. Efforts to impose similarly radical changes in the form of generic

across-the-board regulatory reform have also failed. You will face

a great deal of pressure to load the Cabinet bill up with yet another series of reform measures. This approach is likely to, and

without a doubt should, doom passage. The only democratic and

sufficiently transparent way to accomplish such reform is to undertake the difficult debates that are necessary to determine how

much and how fast we will protect our air, our water, and our land,

as well as the condition of the environmental legacy we will leave

to our children.

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Point three, this bill represents an unreasonable risk of undermining democracy. Perhaps as a reflection of the pressure to reform EPA through Cabinet elevation legislation rather than the

normal legislative process, H.R. 2138 would define EPA’s mission

as protecting the public from unreasonable environmental risks.

This standard is borrowed from the Toxic Substances Control Act,

the least effective and least protective of all the statutes that EPA

administers.

There are more details in my testimony about the impact of the

Fifth Circuit’s decision in Corrosion Proof Fittings versus EPA,

which has basically crippled the Agency’s effort to deal with asbestos which continues to plague the health of many Americans.

Point four, reorganizing into more bureaucracy and less enforcement. The reorganization plan fragments EPA’s core regulatory

missions and creates a new layer of bureaucracy that will further

congeal proactive efforts to enforce the law. The draining task of

implementing this plan will cost EPA at least 2 years of progress

on other aspects of its mission as positions in policymaking jurisdiction are shuffled and turf wars are fought.

Point five, environmental statistics and the States. Interestingly,

I did not read today’s front page Washington Post story as supporting the idea that we don’t have enough data to decide what to do.

In fact, what that story said was that one-quarter of major dischargers of pollution into the Nation’s surface waters are routinely

violating the Clean Water Act. We have data; we just are not doing

anything about it.

I appreciate the opportunity to testify.

Mr. OSE. Thank you, Ms. Steinzor.

[The prepared statement of Ms. Steinzor follows:]

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Mr. OSE. All right. We are going to go to questions now. The way

this works is that I have a number of questions that I need to get

through here, and we will go left to right and right to left and left

to right and right to left. If someone has something they want to

offer, we have plenty of time. I am sure my colleagues up here will

give me plenty of time to go to everybody. So we will just go forward. I do appreciate everybody’s succinctness in summarizing

their testimony.

In the last Congress this subcommittee heard testimony regarding problems with EPA’s operations, its science, its effectiveness of

its regulations, its impact on the regulated community, its regional

offices, its program offices, its lack of cross-media research, etc. The

sum and substance of that was that many believe that, after 30

years of seeking piecemeal improvements, EPA needs to be reformed.

Dr. Portney, we will start with you. Should Congress make reforms to EPA’s organizational structure? And, is it appropriate to

do it concurrent with the elevation to Cabinet-level status?

Dr. PORTNEY. Mr. Chairman, I think that there are respects in

which EPA’s operation can certainly be improved.

I guess I would answer your question this way: If the reorganization that this legislation proposes becomes the overwhelming impediment to elevating EPA to Cabinet status and to creating a Bureau of Environmental Statistics, then I would be inclined to say

that I would be happy to move a cleaner bill that incorporates the

Bureau of Environmental Statistics and not run the risk of compromising what you have proposed, elevation and the creation of a

Bureau that I think is overwhelmingly in the best interest of the

public.

Mr. OSE. So your de minimus standard is, at least, the Bureau

of Environmental Statistics?

Dr. PORTNEY. To me, that is the most important part of the legislation that you have introduced. Yes, sir.

Mr. OSE. OK. Dr. Gray, the same question.

Dr. GRAY. I really see a change like this as an opportunity, and

I think that this may be the time to take the opportunity to try

to address many of the pathologies of decisionmaking in EPA that

have been identified by this committee in the past. I don’t think

we should waste it.

And, it would be important—I share Dr. Portney’s view that the

Bureau of Environmental Statistics is extremely important to us,

and I think that elevation is extremely important, but I think we

should be very careful not to waste an opportunity, because it

would be very difficult to do this under other circumstances. Don’t

waste the opportunity to address many of the problems that you’ve

identified.

Mr. OSE. So you would prefer to make structual changes as opposed to de minimus changes providing for at least the Bureau of

Environmental Statistics?

Dr. GRAY. I think that would be my preference, yes.

Mr. OSE. OK. Dr. Hayward.

Dr. HAYWARD. Well, I don’t have much expertise in administrative organization. But as I look at your two organizational charts

over there, the one in the poster, if that really reflects the way

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EPA works, sort of reminds me about that politically incorrect joke

about a certain kind of firing squad; and it can’t strike me that is

a good way to continue. It strikes me that the one that’s up on the

screen, which is the proposed reorganization, almost surely looks

more like other departments are organized in the Cabinet. So, I

mean, there is always going to be a lot of bureaucracy in government with that big an agency doing this many things. So it just

seems to me it has to be much more sensible on the face of it to

reorganize it the way your bill proposes.

Mr. OSE. Mr. Warren, another bite at the apple.

Mr. WARREN. Thank you. I appreciate that.

This is a very serious issue for the Agency, and I believe that

your bill is actually a very thoughtful proposal in this field. But I

think it is an issue that no one has actually solved this Rubik’s

Cube on yet.

People recognize stovepiping as a problem at the Agency, yet I

think that merely creating three Under Secretaries doesn’t solve

that problem. You have fewer pipes, yet in some ways they are

thicker. The Policy and Planning Under Secretary would oversee

the other Assistant Secretaries, but Science and Enforcement and

Compliance aren’t really integrated into the policy and planning

function. And so, in some ways it might reinforce the separation of

those activities from being fully integrated.

Instead, I believe that, on that issue, Congress has already

passed legislation that could serve this purpose, which is the Government Performance and Results Act: that, among other things,

requires the Agency to produce a strategic plan, which they are in

the process of revising; and that properly charges the head of the

Agency with serving the integrating function, which I think is

where the responsibility should reside.

Mr. OSE. Professor Steinzor.

Ms. STEINZOR. It is common wisdom among public management

experts that any comprehensive reorganization means that agencies are deflected from their core work for a period of time. We are

estimating 2 years. I think that is probably conservative. CPR

questions whether this agency can afford that kind of deflection

when you see the erosion in the past of its routine bread and butter

activities in enforcing the Clean Water Act and also when you consider its crucial role in counterterrorism. EPA was the one that responded to anthrax, that estimated the health risk at the World

Trade Center. EPA is the only agency with authority to ask the

chemical plants to make themselves more secure and prevent accidents. That industrial sector is unregulated at this moment in

terms of those issues, and we feel that those imperatives are sufficiently urgent that a clean bill is the way to go on this.

Mr. OSE. Thank you.

When President Nixon created EPA in 1970, he stated his reasons for doing so, but he did not provide a mission statement, and

since that time EPA has developed its own mission statement. My

question is, should a mission statement be included in a bill establishing a new department. Professor Steinzor, your input on that?

Ms. STEINZOR. I’m a little puzzled about the bill’s intent, because

I understand your wish to provide a mission statement, and yet the

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bill has a savings clause that says it is not intended to affect any

of the existing statutes.

If your mission statement says that the Agency’s mission is unreasonable risk, which is a standard under the Toxic Substances

Control Act, and yet you have a savings clause that says this legislation does not affect the Clean Water and Clean Air Act, we will

end up in massive arguing, including in court, about which one is

the right interpretation.

There is a broad constituency that would fight very hard against

the idea that unreasonable risk should be the statutory standard

across the board. So I am not sure how the legislation would ultimately be interpreted, but I can promise you full employment for

all the law students in my class if it passes, unfortunately.

Mr. OSE. All right.

Mr. Warren.

Mr. WARREN. Well, I think there are two different issues. One is,

does the Agency need a statutory mission statement; and second is

whether the mission statement included in H.R. 2138 is the correct

one. H.R. 37 does not have a statutory mission statement. We believe that is the way to go. We believe that is the way to go because, as I said in my oral comments, the mission of the Agency

is to administer the statutes that Congress has passed and given

EPA the responsibility to administer.

One of the statutes, again, is the Government Performance Results Act, which requires a strategic plan; and in that strategic

plan the Agency has already included a mission statement. The

mission is to protect human health and the environment. Therefore, we believe that the Agency already has come up with the necessary means to address the issue of what the mission should be.

In respect to the second question about whether you have correctly stated the mission, as I said in my oral comments, no, we

don’t believe that should be the stated mission.

Mr. OSE. Thank you.

Dr. Hayward.

Dr. HAYWARD. I don’t have too much to say about this, except

that it strikes me as entirely appropriate for Congress to state

some congressional intent about what the mission of a Cabinetlevel agency is going to be. It may not matter as much in this case,

although, again, if you go back to the very beginning, lots of things

about the environment and the mission of the EPA was left undefined. And although Nixon had some general intent, ultimately, he

punted and said, I am going to leave it to the first administrator

to decide what the scope is and how they are going to go about

their mission. And, there was actually some talk of a time, because

there was this big Presidential commission on population issues,

that maybe the EPA will be a lead agency for confronting population issues, which has always been on the global scale a large environmental theme.

In the 30 years on, we sort of settled onto the EPA administering

particular statutes for—you know, toxic substance has been mentioned, air quality, and so forth. And so, these kinds of larger

issues of what should the mission, broadly speaking, of the Agency

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tirely appropriate for you to weigh in on what you think its general

direction should be.

Mr. OSE. Dr. Gray.

Dr. GRAY. Well, as a scientist, I don’t feel that I am particularly

well-equipped to comment on the dance between the executive and

the legislative branch. But what I can say very briefly is that I

really like this mission statement as an aspiration for and a way

to guide the thinking and the decisions of the Environmental Protection Agency.

And, I guess that’s where I’d leave it. I don’t know if it’s the right

thing to do, but if you do it, I like this one.

Mr. OSE. Dr. Portney.

Dr. PORTNEY. Three quick points in response. First of all, I know

when you took testimony on comparable legislation in previous

years you heard from one of my colleagues, Terry Davies, who is

I think one of the wisest students of environmental protection in

the country. He would just, frankly, kill me if I didn’t use this opportunity to say that he has always been a champion of the notion

that there ought to be an organic statute empowering the EPA. So

I will say that, to the extent this mission statement question is a

manifestation of congressional belief in having some kind of organic

statute empowering EPA, I am supportive of that.

Second, I always support the idea of Congress pointing out to the

Environmental Protection Agency, that while there are any number

of risks it is absolutely essential that the Agency regulate, there

ought to be some notion of de minimus risk; and pointing out to

the Agency that they can’t control every single thing that appears

in every single media isn’t harmful, even though I don’t see something like that trumping the individual statutes under which EPA

regulates.

And, finally, at the risk of sounding like a stuck record, I want

to respond the way I did to your first question and say that if this

question of having a mission statement or the language of unreasonable risk in the bill imperils elevating EPA to statutory or to

Cabinet status or stands in the way of creating the Bureau of Environmental Statistics, I would throw it overboard.

Mr. OSE. You have come to a conclusion as to what your objective

is, haven’t you?

Dr. PORTNEY. Man on a mission.

Mr. OSE. Thank you. EPA, as you see the chart to my left, is currently structured in a manner that many refer to as a stovepipe approach. That is that many Assistant Administrators and various divisions of EPA each report independently to the Administrator

without other oversight. During our hearings in the previous Congress, witnesses discussed how to improve the organization of EPA.

We are going to start, Dr. Portney, with you. What are your views

regarding H.R. 2138’s reorganization of the Department into three

Under Secretaries? Does this structure improve or not improve the

Secretary’s ability to manage the Department?

Dr. PORTNEY. I think that the structure that you propose would

improve the Secretary’s ability to manage the Department. There

is no question in my mind about that.

The types of problems that you have cited, though—the inability

to make these cross-media tradeoffs, etc.—I think are probably due

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more to the fragmented statutory arrangement under which EPA

regulates now than to the way the Agency is currently organized

administratively. But I am supportive of the proposed reorganization and I hope in the future we will be able to take on the individual statutes to allow EPA to make these kinds of cross-media

tradeoffs.

Mr. OSE. One of my concerns is that we only pick a fight we

might be able to win.

Dr. Gray, any comment on that, on the questions I asked?

Dr. GRAY. Just one quick comment. Again, as I look at this primarily from a scientific point of view, we have to remember that

science is a credibility that underlies all of EPA’s decisions. My interest is in having those decisions be as credible as possible. I think

this structure would help increase the credibility of EPA by making

that clear distinction between policy and science. It would allow

their science to get the recognition for its quality that it deserves,

policy decisions to be made explicitly by policymakers, not hidden

in the science.

Mr. OSE. Dr. Hayward.

Dr. HAYWARD. Nothing.

Mr. OSE. Mr. Warren.

Mr. WARREN. I would like to focus on one aspect of that, since

I discussed some of the points generally before, which is, I think

everyone’s common concern is that the Agency have the best

science possible and that the science be used in the most effective

way possible. And, I believe my concern about the organization into

the three Under Secretaries is: that, again, the Under Secretary responsible for science and information is set apart from the Under

Secretary for policy and planning; that you in some ways might unintentionally reinforce the balkanization of those functions within

the Agency; and that now you will have even more powerful players responsible for activities that are not fully integrated. And, that

whatever we do I think we at least do not want to make worse the

bureaucratic tendency not to make science a function that the entire agency is concerned about at all times.

Mr. OSE. Professor Steinzor.

Ms. STEINZOR. I won’t repeat my points from before about reorganizing costing time and energy when we can’t afford it. I will

say, though, that I think that Terry Davies’ proposals that Dr.

Portney mentioned had to do with rewriting all the statutes to accomplish cross-media integrated regulation; and that would be a

major, momentous task, as Terry Davies has acknowledged every

time I have discussed it with him.

I think it would be a very interesting debate, but it is not something that can be done simply by shuffling bureaucratic seats. In

fact, as I understand your bill, the Assistant Secretaries could still

be air, water, solid waste. They would be determined by the administrator. So we would still have unintegrated media-specific regulation. But I could be wrong about that. That is how I read it.

Mr. OSE. That is one of the points of the hearing, is to try and

get this input. So, thank you.

The next question I have is in regard to the IG’s report of November 2002, which examined the use of science in 16 post-1994

rules. The Inspector General reported that program offices or their

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contractors developed virtually all the technical support documents

that made the scientific case for the 16 rules included in the study,

with little input from the Office of Research and Development. Currently, program offices and not the Office of Research and Development do the scientific work in support of regulatory actions.

The most widely criticized aspect of EPA seems to be the quality

of its science. Both sides of the political spectrum, or maybe all

sides of the political spectrum, claim that EPA does not use what

is referred to as sound science.

We are going to start with Professor Steinzor, and we will move

to my left. Would you support the relocation of science from the

program offices and the centralization of the science at the new department under a Secretary of Science and Information? And then,

part of that question is, if you could define from your perspective

what sound science is, that would be helpful.

Ms. STEINZOR. Well, I have actually written on that subject; and

perhaps I could submit the article about science at the EPA for the

record.

Mr. OSE. Hearing no objection, we will allow that.

Ms. STEINZOR. I actually would share Mr. Warren’s concerns

about putting it in a separate organization. But I would also say,

in a nutshell, that the problem of science at EPA is not that it is

junk but that it is overly influenced by regulated industries. And,

I would refer you to a GAO report that came out in 2001 that

showed that when it was doing crucial peer review EPA was not

ensuring that panels were balanced for bias, wasn’t even asking

panelists if they had conflicts of interest, such as working for companies that sell the chemicals that were being reviewed. And, that

those kinds of problems, as I said in my written testimony, are

much more urgent. Before we can make science sound, we have to

make it clean. I guess that is what I would suggest.

Mr. OSE. Mr. Warren? Do you want me to repeat the question?

Mr. WARREN. No, I think I remember it. But it raises many different issues at once. So I will do what I can to pick out what I

think are the most important, which is that there should be fewer,

more important, responsibilities and sound science at the Agency.

Sound science is using the best available information according to

generally accepted scientific protocols in a way that is transparent

and can pass the test of an independent review. But I believe that

often the claim of sound science is just used by critics of the Agency

to dispute outcomes that they don’t like when the underlying

science may, in fact, be perfectly sound.

So I think that we want to try to avoid making this issue just

a political football within this legislative debate.

Once again, I think I would say that I think it has been more

a problem on the part of the Agency of having inadequate resources. You sort of get what you pay for. If you want more, better

science, then you really have to sort of put money into it, and not

use it, as an excuse not to take action until we know more, and

then not really try to do what is necessary to find out more about

the environment.

I think that one of the essential points here, and this will be my

final point, has to do with conflicts of interest and managing peer

review processes at the Agency. In respect to the legislation, I have

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certain concerns about that for the Bureau of Environmental Statistics, that it creates a peer review process that in some ways, actually ironically while we are elevating the EPA on one hand to a

Cabinet department, would subordinate the Agency to review by

other Cabinet departments in ways in which they are not subject

to review by the Department of Environmental Protection.

So I believe that there are other ways to address issues of ensuring quality science and that those should be our top priorities.

Mr. OSE. In terms of the centralization of the science at the new

department as opposed to leaving them in a program or in the regional offices?

Mr. WARREN. If I can briefly address that issue, I would like to

say again, this is a part of the Rubik’s Cube that no one has quite

figured out the solution to. Science is not one thing. The Agency

needs to do several different kinds of scientific activities. One of

those is to broadly look at the state of the environment and emerging environmental issues that people may have not thought about

before, and a separate science office may properly do that. Several

of those activities are to make sure that regulatory actions are directly supported by good science, and you may not want to separate

that from the program office because you may actually worsen

stovepiping.

Last but not least, I would say that there is a role for the Agency

to support work outside of the department, that not all of the work

should be done in house, that in many ways, supporting the work

of independent researchers can be much more fruitful in the long

run.

Mr. OSE. Dr. Hayward, same questions: Do you support the relocation of science from the program offices and the centralization of

science at the new department under an Under Secretary, and

what do you think constitutes sound science?

Dr. HAYWARD. I don’t really have a firm opinion on the first

question, the narrow administrative question. The broader question

that drives all of this is what is sound science. I have a very hard

time answering that question in a meaningful way. It is a motherhood-and-apple-pie concept. No one is for unsound science. The difficulty arises when you have perfectly scrupulous and unbiased scientists who disagree and/or who produce results with large ranges

of uncertainty, and that characterizes a lot of our science and environmental matters. So at the end of the day, it is not so much the

soundness of the science that is in question, although it can be

sometimes, as it is how we judge the risk threshold we decide to

apply with the information we have, given the uncertainties we

have.

Dr. Gray knows a whole lot more about this than I do, so I am

going to punt to him here in a minute. But ultimately, sound

science gets subsumed in the political decisions about which particular risks we are going to go after and what threshold of risk

we find reasonable or unreasonable, to bring up that term again.

Just to conclude in one sentence, I don’t think this is a problem

that can or should be sorted out in legislation necessarily.

Mr. OSE. All right.

Dr. Gray.

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Dr. GRAY. I think the first thing that I want to say is that it is

important to recognize that EPA in fact does and uses good, sound

science. They use peer-reviewed work, they publish work. They do

and use good science. The question isn’t the science, it is the interpretation of the science. This is exactly what Dr. Hayward was getting at. The interpretation is what is important. I think that is

where peer review is necessary and it is one of the places that we

don’t look very often.

In terms of structure, again as a scientist, I don’t have strong

opinions about how we think about the way to organize things, but

my concern is that as long as the science is embedded in the program offices, there is a perception, if not the reality, that the scientists are used, are interpreting that science to get the right answer, the answer that will advance the policy of that program office. For that reason, I think that making a clean distinction between the scientific work, the scientific interpretation, and the policies in the program offices is something that will increase the

credibility of EPA science and their decision.

Mr. OSE. In terms of the person making the interpretation of the

science, are you suggesting that we need to provide the maximum

insulation, if you will, for that person’s scientific credibility?

Dr. GRAY. Well, the way in which this sort of risk assessment

and management process has been envisioned for many, many

years is that it is very important to bring the best available scientific information to a problem, consider that information along

with all of the other things that we want to take into consideration

in coming to a decision. There is a perception, and you can see it,

in fact, in, for example, EPA guidelines that influence the way in

which the Agency and outside groups interpret data, how they are

supposed to use scientific information to inform decisions, that

there are policy choices, policy assumptions all through that have

a very strong influence on what ends up coming out. They are not

science; and in that way, they are contaminating the science with

the policy decisions. The more we can make those two things separate to make distinct the scientific choice and the policy choice, I

think the better, the more you would enhance the credibility of

EPA’s decisions.

Mr. OSE. Thank you. Dr. Portney, we know that you would trade

everything for the establishment of the Bureau of Environmental

Statistics. Would you still care to offer some comments on this

question?

Dr. PORTNEY. Not everything. I would still keep my stepchildren.

I want the record to reflect that.

Two things here. First of all, we all know what the definition of

sound science is. It is that body of studies that supports what it

is you want the Agency to do, and the body of science that supports

what you want the Agency not to do gets deemed unsound science.

I mean that is de facto; I think that is the way this debate has

evolved.

Congressman Ose, I really think there is a tradeoff in centralizing science at the EPA. I certainly can see some advantages, because I think as you look across the program offices even within

the EPA, not to mention the way science gets conducted between

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encies with respect to high to low-dose extrapolation, etc. EPA has

worked very hard to try to centralize this through the risk assessment guidelines that the Agency establishes, but I think you could

probably improve on some of the inconsistencies through some kind

of centralization of science.

The other side of that tradeoff, though, is the following: as the

science gets pushed up to or out of the program offices, you run the

risk of the science becoming irrelevant to or not directly connected

to the regulatory problems that the program offices have to deal

with.

Briefly, I can give you one analogy. The same issue has been debated within the Occupational Safety and Health Administration,

and there was concern that by virtue of having the research done

within OSHA, somehow the quality of the science wasn’t very good

and it was being driven by the answers that OSHA wanted the scientists to find. So a separate agency was created, the National Institute of Occupational Safety and Health. I presume that the quality of the science done at NIOSH is better than the quality of the

science that was done within OSHA, but the complaint is that the

regulators at OSHA feel that NIOSH funds basic research and

doesn’t produce scientific research that helps the OSHA regulators

actually deal with the problems that you and other Members of

Congress have directed them to deal with.

So you can improve science on the one hand, but sometimes it

is at the risk of making the science relevant to the individual regulatory decisions that the Agency has to make.

Mr. OSE. Is it your point that before NIOSH was established,

there were problems in separating the science from the policy?

Dr. PORTNEY. That is my understanding, and that the idea of creating NIOSH was to professionalize and elevate the quality of the

science that was conducted.

Mr. OSE. And, even in its establishment and existence, there remain problems?

Dr. PORTNEY. What I have heard in the past from people at

OSHA is that NIOSH has become a research agency whose mission

has become somewhat divorced from the day-to-day problems that

OSHA has to regulate, and that some of the science funding drifted

in the direction of basic science, rather than more applied issues

that were germane to the individual regulatory problems that the

Agency had.

Mr. OSE. Dr. Gray, on page 2 of your written testimony you state

that the change in the department’s structure will require further

tweaking to ensure that science policy does not influence the conduct and interpretation of scientific information. You touched on

that a moment ago.

Do you have a specific solution in mind relative to the further

tweaking that you reference in your statement?

Dr. GRAY. I think something that I would like to suggest, because

this does exactly address the notion that I was speaking to a moment ago about the separation of policy and science. There are

some very nice guidelines, draft guidelines for policy analysis, that

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ommend that you look closely at those as guidance for doing analysis which supports EPA regulations while keeping the policy attributes as distinct from those as possible.

Mr. OSE. Are you asking that they be made a part of the record?

Dr. GRAY. Yes, please.

Mr. OSE. Hearing no objection, we will do that.

[The information referred to follows:]

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Mr. OSE. Professor Steinzor, on page 4 of your written testimony,

you have four suggestions for reforming science at EPA, including

removing peer review panelists with ties to regulatory outcomes,

prohibiting research contracts limiting adverse results and requiring full disclosure of all data, science, and techniques submitted by

industry and, fourth, requiring more balanced peer review.

Do you have legislative language implementing these four suggestions?

Ms. STEINZOR. I don’t have legislative language. CPR believes

these issues are very important to pursue, but again, would do it

outside the context of the Cabinet-elevation bill.

Mr. OSE. Could we send you a followup question in writing to get

some feedback on that?

Ms. STEINZOR. Certainly. I would be delighted by that opportunity.

Mr. OSE. All right. I appreciate that.

Now, relative to these four suggestions by Professor Steinzor, do

any of the other members of this panel have suggestions, observations? I don’t know if you have seen her testimony or not.

Dr. Gray, have you had a chance to look at it?

Dr. GRAY. I haven’t. All I would suggest is that peer review is

important. We want to encourage peer review and we want it to

be credible, and I think that anything that increases the level of

disclosure in that peer review is very important. I think we have

to make sure that we keep peer review focused on expertise, but

within that world, I think more disclosure of potential conflicts of

interest and other sorts of things is very important.

Mr. OSE. Let’s examine that for a minute. With respect to my

business career, I had everybody telling me that I should have done

something differently and they could have done it better. Let’s examine for a moment what the purpose of peer review is and how

you get it.

The EPA’s Inspector General in November 2002 noted that critical science supporting their rules was often not peer reviewed by

an independent body, and that caused some uncertainty relative to

the quality of the science supporting a rule.

Now, tell me how the peer review thing works.

Dr. Portney, how does peer review work in this process, from

your perspective? What is your experience with it?

Dr. PORTNEY. Well, I have had both favorable and unfavorable

experiences with peer review in the sense that I have done research which has been turned down when I have sent it to a peerreviewed and refereed journal, but I think that process is very,

very important.

The way it works is, you conduct a body of research, whether it

is toxicological or legal or economic or whatever. You try to do this

to the highest standards, collect the data according to the best protocols, analyze it in as sophisticated a way as possible, you write

up the research and you send it to the best journals in one’s respected profession.

The editor of the journal then typically selects one or two or

three reviewers, generally reviewers whose identity is not known

to the person who has written up the research, and they decide

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erees’ reports to the editor of the journal, and ultimately the journal editor makes a decision as to whether or not it is publishable.

And,I think that this process, while certainly having all kinds of

problems, as any process does involving human beings, I think it

is absolutely essential, and to the greatest extent possible, the EPA

or any other regulatory agency ought to try to rely upon as great

an extent possible research which has been through this review

and vetting process and has passed.

Ms. STEINZOR. Mr. Chairman.

Mr. OSE. You are actually exactly where I was going to, Professor, so I appreciate your raising your hand.

I do want to ask a question, because this same EPA Inspector

General report noted that 276 of 496 critical documents supporting

the rules that were put forward were either not peer reviewed or

their peer review status was indeterminable that is we were unable

to determine whether or not it was done.

Now, I want to come back to you because it is your original point

we are talking about, one of those four, if you will. How do we deal

with this peer review requirement under the parameters you have

described?

Ms. STEINZOR. There are two different kinds of peer review I

think that are at issue, and one is what Dr. Portney was just talking about, peer review by professional journals. EPA has its own

process for peer review which is done by the Science Advisory

Board, and it was the operations of that board that were criticized

by the GAO for compiling peer review panels that the members

never asked to disclose what their affiliations were.

So one answer is to clean up the SAB and have it do peer review

in a more balanced, less biased, with full disclosure, more transparent way.

The problem with relying on peer-reviewed journals is that many

of the questions that EPA is dealing with have to do with the effects of exposure to certain kinds of chemicals. And, unlike the

pharmaceutical industry, there is not as lively a publication market

for those kinds of studies, and they are often done by the companies who manufactured the chemical, which is the party that is

most interested in what the results of the study would be. I have

no question about that. The problem is that if the study itself has

not been peer reviewed by publication and an independent journal

and, instead, arrives at EPA to be peer reviewed, it needs to go to

the Science Advisory Board, and it also needs to be accompanied

by all the underlying data or no one can tell what is going on. And,

that is the recommendation that I am making.

Now, Dr. Gray said we need to focus on expertise, and I agree

with him. We certainly can have incompetent scientists doing peer

review. The problem is that if you say expertise in a specific chemical, the only people that have very well-developed expertise in a

very specific chemical are the people that make it, and you can’t

have people peer reviewing themselves.

Mr. OSE. How do we deal with that?

Ms. STEINZOR. I think it is very important to balance these panels for bias and to look long and hard for people who are independent in the academic community. They do exist. And to balance, I

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mean not to have people on who have a direct financial stake in

the outcome of whatever the regulatory decision is.

A company that makes chemical——

Mr. OSE. I think you just said that the people who know the

most about a chemical are probably those who put forward the request for a peer review of their product. In other words, the people

who manufacture——

Ms. STEINZOR. They do the studies.

Mr. OSE. They do the studies, and they are probably the most

knowledgeable about the product in terms of its scientific impact?

Ms. STEINZOR. Well, that’s right, but should we have somebody

who has done a study for a company that stands to benefit financially look over his own study and decide if its adequate?

Mr. OSE. I am trying to figure out if we are looking for quality

peer reviewers, if you will, if the best are with industry, how do

we get an appropriate peer review panel? This argument is circular.

Ms. STEINZOR. Well, there are independent academic scientists.

I actually think it is fairly well established that if you have a financial stake in the outcome of a decision, you are not allowed to

be a peer reviewer. The problem with EPA’s SAB was that there

was no disclosure, so you couldn’t tell if somebody had a financial

stake. But what I am suggesting is, if you have people like that

serving, you also need people who are expert in the area of the effects that are being investigated, who are not affiliated with industry; otherwise, you end up having a perception that the fox is

guarding the chicken coop.

Mr. OSE. So the current rules or statutes preclude someone with

a direct financial interest from participating in the peer review,

even though there is no means of investigating whether that is the

case or enforcing it?

Ms. STEINZOR. Well, there are means of investigating and there

are means of enforcing it. It can be waived on occasion by the

Agency. It has been. But the problem was that EPA’s practice was

never to ask.

Mr. OSE. I see.

Ms. STEINZOR. So there are tools, but the Agency wasn’t implementing them.

Mr. OSE. The other panelists—I would like your input on this

issue; it is kind of like the chicken or the egg, speaking of the fox

and the henhouse—Dr. Portney, Dr. Gray, Mr. Warren?

Dr. PORTNEY. Sure. If I could briefly, I understand what Rena

Steinzor is saying, and I think I agree with her. As a former member of EPA’s Executive Committee of the Science Advisory Board,

I do think in the past the Science Advisory Board has had people

on peer review panels who have not made clear, or the SAB has

not asked them to make clear, what their ties may be, whether or

not they are a scientist employed by a pharmaceutical company or

a chemical company or a research scientist, most of whose research

has been supported by a company. I mean, I can’t see any reason

why you wouldn’t require people to make clear the sources of their

support.

But I think you are absolutely right. As Professor Steinzor points

out, in some cases, the people who know the most about and are

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the best, the most technically versed in research about a particular

substance, are often the people who derive their livelihoods from

studying that; and I wouldn’t want to see them excluded from a

peer review panel. I think they ought to have the right to participate, so long as they disclose their backgrounds, where the research support comes from, etc. I also agree with Rena that there

are people out there who have no ties, financial or otherwise, to the

production process, etc., in question who can be found to sit on

these panels and every effort should be made to include them.

Mr. OSE. Mr. Warren.

Mr. WARREN. Well, NRDC does support the type of reforms that

Ms. Steinzor has been describing. There are two important objectives. One is you want balanced expertise, and two you also want

transparency and as little conflict of interest as possible.

So in many ways this goes to the heart of the issue of what the

Agency really needs to be focusing on to ensure sound science. It

requires an extra effort for the Agency to beat the bushes, as it

were, to get people who don’t have a direct interest or a conflict of

interest where the review is concerned. But we need much better

disclosure to ensure the transparency where participants in the

panel may have conflicts of interest.

Mr. OSE. Dr. Hayward, any input? Dr. Gray.

Dr. GRAY. I would just say very briefly that this can be done. I

serve on a variety of national advisory committees at the National

Institute of Environmental Health Sciences for the Food and Drug

Administration, where this is done routinely. Disclosure is done,

things are vetted, and people know where people are coming from;

and it can be done and it is done.

Mr. OSE. Let me examine that for a minute. In terms of the disclosure that you undergo as a participant in these bodies, give us

some sense of what it is you put on the table.

Dr. GRAY. Well, for example, serving on the National Advisory

Environmental Health Sciences Council, which advises the National Institute of Environmental Health Sciences, I disclose everything from my sources of income, my wife’s sources of income, investments that we have, sources of funding for my research, in

complete detail. So I think almost anything that one could imagine

could give a clue as to someone having a potential conflict of interest is examined by, in this case, the Department of Health and

Human Services to determine whether—and there are times, potentially, where one could be asked not to comment on specific

issues because it is inappropriate.

Mr. OSE. Has that ever happened?

Dr. GRAY. Not to me. And, I am sure that it has happened on

this council. An event doesn’t come to mind, but I am sure that it

has happened.

Mr. OSE. OK. If you put information on the table of that nature

and someone challenges it, is it a requirement for disclosure, or is

it a disqualifier for participation?

I want to be clear on this. In other words, if you just disclose it,

does that meet the requirement, or does it actually serve as a disqualifier for participation?

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ing that is coming up and a particular topic that is going to be discussed, that person makes a judgment about whether it is appropriate for me, for example, to speak on this or not because of a conflict of interest.

Mr. OSE. OK.

Dr. GRAY. So a judgment is made. It is not just disclosure, but

a judgment is also made.

Mr. OSE. All right. Let’s go on to the next question here.

EPA does not have a mechanism, an adequate mechanism, for

systematically collecting and analyzing current environmental and

human health data. H.R. 2138 provides for a Bureau of Environmental Statistics modeled after the Bureau of Labor Statistics and

the Energy Information Agency. H.R. 2138 provides that the Bureau shall collect environmental quality and related public health

and economic information, including data on ambient conditions

and trends and distribution of environmental conditions and related public health conditions across populations.

Dr. Portney, I believe you proposed this concept in 1988, and I

am frankly hopeful that with this bill it will finally become a reality. I am going to allow you another opportunity to say that you

support the Bureau of Environmental Statistics within the new department, so the first question is, do you support that; and the second question is, does the EPA currently collect valid statistical data

on the quality of the environment, including health outcomes such

as morbidity and mortality data?

Dr. PORTNEY. Well, I am relatively indifferent on the creation of

a bureau! I have made it abundantly clear that I support that.

With respect to the provision of data on health outcomes, I will just

echo something I said earlier and I will do it briefly.

The farther a Bureau of Environmental Statistics has to get from

providing data on ambient environmental quality or emissions from

sources, the more difficult its job becomes. Let me give you an example.

Some people have suggested that there is a link between ambient

air pollution and the apparently increasing incidence of asthma. I

think asthma is a very serious public health problem. It is hard for

me to understand how it can be linked to deterioration in air quality, though, because as Steve Hayward and other people have

pointed out, air quality has improved in every metropolitan area

around the United States consistently over a 30-year period with

respect to every air pollutant. So if asthma is getting worse at the

same time air pollution is getting better, either it is linked to an

air pollutant for which we don’t currently collect data, or something

else—lice, fungus, etc.—is causing the increase in asthma.

The point I am trying to make is that if the Bureau of Environmental Statistics had to present evidence, collect and disseminate

evidence on the incidence of asthma, that would create the presumption that somehow that is an environmentally mediated disease, and in fact, I think there is reasonable doubt about whether

or not that is the case. In other words, it is not like smoking and

lung cancer or some other disease where there is a one-to-one link.

So as long as we are talking about ambient air quality, water

quality, land contamination, drinking water quality, etc., then I

think it is a no-brainer for the Bureau of Environmental Statistics.

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It gets more challenging the farther away we move into the health

and economic area.

Mr. OSE. Are you suggesting that the Bureau would serve to facilitate the cross-media analysis of environmental concerns?

Dr. PORTNEY. Well, to some extent, I guess. I think that its mission ought to be to report to you, the Members of Congress, people

in the administration and in the general public the kind of progress

we are making on environmental quality; thus, a Bureau of Environmental Statistics. We have a National Center for Health Statistics that presents evidence on trends in respiratory disease, cardiovascular illness, etc. I don’t want to see the BES verge too far from

the principal reason for creating it, for fear, to some extent, that

we would undermine support for it.

Mr. OSE. OK.

Professor Steinzor.

Ms. STEINZOR. Mr. Chairman, I want to respond to this point

that air quality is getting better and, therefore, asthma must be

due to other causes by saying that, first of all, we live in an area

that is severe nonattainment for ozone, and there is not any question that the Baltimore and Washington metropolitan areas are not

going to make attainment by 2005.

So while there may have been a broad trend toward improvement, it is very clear that many metropolitan areas in the country—Houston, Los Angeles, Atlanta, etc.—are not going to make attainment of levels necessary to protect health by 2005; and when

the new fine particulate matter standards come into effect, they

will fall even further behind.

So a broad trend does not make a safe, health-based level, and

our cities are in very serious trouble, and are going to be back in

front of you very shortly, begging for yet another extension. I think

this would be the fifth one for the area that we live in.

So perhaps I am a little sensitive on this as the mother of an

asthmatic child, but I think we need to be careful; and this is an

illustration of how the Bureau of Environmental Statistics, to get

to your original point, needs to be constructed and implemented

and handled very, very carefully.

Mr. OSE. All right.

Mr. Warren, any input?

Mr. WARREN. Well, I believe that the objective is definitely desirable. I think we all want more, better environmental information.

Representing an environmental organization, I believe that will

support in the long term our claims that environmental protections

on the books have been worthwhile and that more environmental

help is necessary.

I believe that the Agency already has the authorities to fulfill the

sort of charge that you described, that it is, by and large, a resource issue, that you can only do so much, that you can only do

what you have the resources for, and that merely moving these

functions around into one place in the Agency and calling it a ‘‘bureau,’’ I don’t think by itself, will ensure that the information is

better.

Mr. OSE. Dr. Hayward.

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Dr. HAYWARD. Well, I can’t help but weigh in a little bit here on

the question that is engaged at the ends of the table on pollution

and asthma.

You represent part of Solano County, I think?

Mr. OSE. I come from a severe nonattainment area also.

Dr. HAYWARD. Which is what, Sacramento?

Mr. OSE. Yes.

Dr. HAYWARD. Yes. I lived there for 6 years. I looked at California counties very closely between the air quality status and their

asthma rates, and I found an interesting thing.

Right now, the highest asthma rate in California is Fresno County, and it also has right now the highest exceedences of the new

ozone standards, actually even more than the South Coast’s, which

is a remarkable record of improvement. The next two highest rates

of asthma in California are Marin County and Solano County, both

of which have had zero exceedences of the ozone, the new ozone

standard for the last 3 years, and then it jumps around as you go

on down. San Bernardino and Riverside Counties, which are the

next worst places, are sort of in the middle on their asthma rates.

I mean, any statistician would tell you that an air pollution/asthma correlation will not pass the statistical significance test. Now,

we can argue about this for a long time, and I think we will. But

this illustrates the difficulty that Paul, I think, is trying to bring

up between correlating environmental conditions and health standards. This falls into that large area we referred to earlier of great

uncertainties and the science of this, the sound science of all of

this.

I just wanted to add one other little clarification. You know, the

way we regulate air in cities, we have dozens of monitors in the

large areas. If a single monitor is out of compliance, the whole metropolitan area is deemed to be out of compliance with the Clean Air

Act. That makes perfect sense from a regulatory point of view because downwind areas may be getting their pollution from the

upwind areas. In other words, in San Diego, it turns out there has

only been one monitor out of compliance with the ozone standard

in the last 3 years, out in the eastern part of the county, where less

than 1 percent of the population lives. I don’t know what the monitors look like for Washington and Baltimore, but in San Diego, 99

percent of the population is not exposed to ozone that exceeds the

standard.

So it is a mistake in my mind to say, therefore, the entire population of San Diego is at risk of asthma because that area is found

out of compliance with the Clean Air Act.

Mr. OSE. Your point is the quality of the information or the quality of the monitoring could stand improvement?

Dr. HAYWARD. Well, no, the quality of how we interpret and understand how localized problems are.

Mr. OSE. Would a Bureau of Environmental Statistics help or

hinder improving the quality?

Dr. HAYWARD. I think it would help. I don’t think it solves any

of our difficulties of the links, as Paul has tried to say, I don’t think

this solves any of our difficulties with the link between pollution

and health effects that we currently argue about.

Mr. OSE. That is a different question.

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Dr. HAYWARD. Right.

Mr. OSE. Dr. Gray.

Dr. GRAY. To answer the first part of your question, EPA does

gather some very good and very useful data in some areas, and

that is very important for us. One of the problems that I tried to

illustrate in my testimony is that in many ways, people don’t know

about those data, and it may well be that is why most Americans

think the air today is less clean than it was 10 years ago when all

of the data that have been collected suggest the opposite is true.

I think that having an independent group, that perhaps is seen

as not having some of the same conflicts of interest as EPA might

have in these statistics, might increase their acceptance and increase people’s willingness to understand their knowledge about

the state of the environment.

I do want to comment on this issue that has come up about

health effects and whether those are appropriate for a Bureau of

Environmental Statistics. A very large fraction of EPA’s regulations are expressly based on the notion that they are going to decrease risk to human health: Particulate standards will reduce

mortality and morbidity; the ozone standard will reduce rates of

disease. If we don’t monitor those diseases, how will we know if the

progress is being made? Just simple changes in the indicator

chemicals doesn’t take us to the point that, in fact, justifies that

entire rule.

I think it is important that a Bureau of Environmental Statistics

does include not just measuring parts per million of something here

and there, but tries to get at these notions of health effects so we

can understand whether these rules are having the effects that

they intended.

That said, it is a very difficult thing to do. And in fact, I said

in my testimony, for example, meeting the arsenic standard is

something that probably would never be detected in a town. The

fact that those risks are so small is also useful information for people to know that we are looking at risks that we are not going to

be able to find in our public health statistics. That is information

that should be in the national debate about the kinds of programs

that we are undertaking.

Mr. OSE. Is the Bureau of Environmental Statistics an appropriate place to collect that information?

Dr. GRAY. I think it is a very good idea because of its independence and, I think, because of its peer review function, the idea that

people are checking on the techniques, the tools, and the models

that are being used.

Mr. OSE. OK.

Mr. Warren, I was perplexed by something on page 7 of your testimony. You were talking about your concerns about the Bureau’s

confidentiality provisions on any statistics they gather, and I think

the direct quote is ‘‘Such confidentiality provisions may, in fact, bar

the distribution of valuable information that the public receives

presently under current law.’’

Could you explain that? I don’t know if you have it with you or

not, but have you identified in the proposed legislation itself, the

specific language that you believe is the source of that debarment,

or disbarment?

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Mr. WARREN. I can give you an example of it. We are in the process of reviewing the details of it. I have to say that issues like this,

and the scrutiny that would require to go through all of the provisions of the legislation is again one of the reasons we would prefer

at this point to just have a simple elevation. Issues like this should

be dealt with at another time and place.

But in this particular case, one of our concerns was provisions of

the Clean Air Act that required the disclosure of certain kinds of

emission data. So we are currently looking at whether the general

confidentiality statement could be construed as conflicting with

that provision of the Clean Air Act. We understand you have a savings clause in the back, so there would have to be some interpretation of how that savings clause would be reconciled with those provisions. But as you know, any subsequent legislation always takes

precedence over prior legislation, all other things being considered,

and I think it follows into one of those areas of concerns that has

been expressed before about unintended consequences and perhaps

litigation quagmires.

Mr. OSE. Well, as we are sitting here, I am just reviewing the

confidentiality provisions, and I understand the issue as it relates

to the Homeland Security Act of 2003 in terms of information put

forward pursuant to that particular legislation, but there are caveats here prohibiting the director, in some cases, from disclosing any

personally identifiable or corporately identifiable data collected by

the Bureau, but also giving the director the opportunity to take action to collect such data from any department or any other Federal

agency. I am trying to find the specific language in here that your

concern stems from.

Mr. WARREN. Well, of course, collecting the information from

other agencies is really not the question. The question here is

under what circumstances, what kinds of information might be disseminated to the public, and whether the general statement of confidentiality in this legislation would be seen as being in conflict

with that provision of the Clean Air Act that distributes information to the public on emissions data.

And, I would like to make it clear that in our testimony, we

raised this as a concern as opposed to an objection and sort of said,

I think your language should be double-checked, which we are in

the process of doing. So I want to be fair. I want to say that perhaps we will do further research and say that this is not a concern.

But on the other hand, I think it does raise a suite of issues in

terms of additional scrutiny that these types of provisions need to

be given where they may conflict with a range of statutes.

Mr. OSE. Why don’t we send you a question in writing asking you

to specify the language in the bill, the proposed legislation that

generates your concern on this confidentiality issue?

Mr. WARREN. We would be glad to respond to that.

Mr. OSE. We are going to go to the next question.

H.R. 2138 provides that the Bureau’s director shall not be required to obtain internal departmental approval on the collection,

analysis, dissemination, or publication of its data. What we are trying to do is insulate the director from the vagaries of political

trends. What we want is the data as it is scientifically delivered.

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Now, we will start in middle here today. Dr. Hayward, do you

support an independent director of the Bureau of Environmental

Statistics? If so, why? If not, why not? And, does the language in

H.R. 2138 provide adequate protections to the integrity of the proposed Bureau’s efforts?

Dr. HAYWARD. Well, I am not a lawyer or an expert on statutory

construction, so I don’t have an opinion on the second half of that

question.

But as to the first half, the reason I like the idea is that, as I

look around at data sources in government, it strikes me that the

Bureau of Labor Statistics which, by the way, took some time—

when it was forged, I think in the 1930’s—to establish its credibility, to filling out some of the methodological problems on data gathering and interpretation; and even, still, today there is debate

about some of their findings. But the Bureau of Labor Statistics

and I think an equally or maybe better model is the Energy Information Administration, whose data I think is universally respected

across the political spectrum. It has been independent from political pressures to a very large degree, so I think those are good models to emulate.

Mr. OSE. Mr. Warren, any input on this? We will add the caveat,

if we set up the Bureau of Environmental Statistics.

Mr. WARREN. Well, that is an important caveat, because otherwise I would be compelled to say that I don’t think in terms of the

criticisms of EPA in the past that their head science officials, in

fact, have had their credibility or integrity challenged in terms of

how they operate.

So while I believe that we all believe that science should operate

according to sound principles and not be subject to undue influence

of some sort, I don’t actually think that has been even the basis

of the criticisms of the Agency science.

So I have to counterbalance the stated desire to ensure the independence of the head of the Bureau of Environmental Statistics

with the concern of the isolation of that office from being policy relevant. We would certainly want to make sure that to the extent

sound environmental information is collected and generated, that it

was properly integrated into the rest of the organization, and there

would be tension between their independence and that integration.

Mr. OSE. Dr. Gray, any input on this?

Dr. GRAY. I just think that independence increases credibility

and the credibility of these data are going to be important to their

use in evaluating our environmental progress.

Mr. OSE. All right.

Professor Steinzor.

Ms. STEINZOR. I would only urge you to consider that the States

are responsible for generating a lot of this data, and have, in the

past, resisted vigorously EPA’s efforts to get them to cough more

of it up, largely because they feel very stretched in terms of resources.

And, to give just another example, I don’t know if you, when you

are here, live in Maryland, but we have a State agency that went

from $232 million budget in fiscal year 2001 to $164 million in fiscal year 2004, a 30 percent cut. And, I would be very surprised if

that wasn’t happening all over the country.

139

So they will scream, and that will be a problem without Federal

help.

Mr. OSE. OK.

Let me go to Dr. Portney first.

Dr. PORTNEY. Go ahead.

Dr. HAYWARD. Something that just occurred to me: The EPA

probably in the next couple of weeks is going to come out with a

report on the state of the environment that they have been putting

together for probably a year and a half now. They probably haven’t

done one since 1989. I haven’t seen any advanced peeks, I am going

to see one next week, but what I hear from those involved is that

it has suffered from the usual interagency squabbling because they

are trying to do things that are covered under the Department of

Interior, the Department of Agriculture and the Forest Service purview and so forth.

So the likelihood is that it is going to reflect some of the usual

clashes and compromises and concessions for an interagency process to try and do this and, therefore, it will be of limited value, I

think. That, to me, is an argument in the obverse for doing it the

way you propose to do it.

Mr. OSE. Dr. Portney.

Dr. PORTNEY. I am strongly supportive of the language that you

have written into the bill that would protect the independence of

the director, and let me give you an example.

Coming down here to testify today, I was in a cab, the driver of

which had on one of these talk radio shows that said that in new

information released yesterday by the Bureau of Labor Statistics,

the unemployment rate has risen to 6.1 percent. Then they had a

call-in, and the people who called in argued about why it had gone

up to 6.1 percent. Is it administration policies? Is it overall economic deterioration around the world? No one said that the unemployment rate is not really 6.1 percent, that the Bush administration is lying.

Everybody understands that given the way that we measure unemployment, that 6.1 percent is an honest measure, given the procedures that we have established for that.

I think it is really important that an independent Bureau of Environmental Statistics be able to say that air quality in Baltimore

has deteriorated or improved with respect to this pollutant, and

have the nature of the policy debate center around whether or not

it makes sense to spend money to further improve air quality or

prevent deterioration when, in fact, I think we spend too much

time arguing about whether or not air quality really is as we have

stated it or we have discussed today: Well, is it because the monitors are located where they are, or is it because there are only two

monitors in this metropolitan area?

I really think elevating EPA to Cabinet status, as you have proposed, and incorporating in that a Bureau of Environmental Statistics will force us to confront these issues and get the public focused

on the kinds of questions that we ought to be focused on.

Mr. OSE. There is a related question here.

Dr. Hayward, you just talked about a report coming out on the

status or the condition of the environment, the last having been

issued in 1989. There is a requirement in the legislation that the

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Bureau’s director submit an annual report to Congress and the Secretary, as well as the public. Would this be useful? Does it help the

process? Does it introduce accountability, both to the Department

or the Bureau? Is it too much? Is it too little?

Dr. HAYWARD. Oh, boy. A whole basket of questions there. I

mean, I think it is helpful in that it would help move forward public understanding of environmental issues beyond, as I put it,

environmentalism by anecdote and policy by headline. That is a

general thought.

Mr. OSE. Mr. Warren.

Mr. WARREN. I don’t disagree with that really.

Mr. OSE. OK.

Dr. Gray.

Dr. GRAY. I don’t have a comment, other than it would be helpful, and I think that annual helps us track things a lot better than

every 12 years or 13 years.

Mr. OSE. Professor Steinzor.

Ms. STEINZOR. I agree with that and think that environmental

indicators are a very important tool. But if they are to achieve the

status that Dr. Portney just described, which I also agree with everything he said, they need to be done very honestly and be comprehensive.

Mr. OSE. Dr. Portney.

Dr. PORTNEY. I agree with what I said earlier.

Ms. STEINZOR. He agrees with himself.

Mr. OSE. All right.

During the subcommittee’s prior hearings, witnesses testified

that EPA’s program offices occasionally operate as fiefdoms that

impede innovation and efficient regulations, that do make national

policy and that do conduct science without coordination of scientific

data. The program offices also reflect the piecemeal organization of

environmental statutes.

H.R. 2138 locates program offices under the supervision of the

Under Secretary for Policy, Planning and Innovation. The bill’s

goal is to have a central regulatory and policy office that works

with the program offices under the direction of an Under Secretary.

Professor Steinzor, do you support the centralization of policy

under the Under Secretary for Policy, Planning and Innovation as

proposed under H.R. 2138, and would that centralization facilitate

some cross-media rulemaking?

Ms. STEINZOR. I don’t support it, because it would separate the

people who write the regulations from those who implement and

enforce them. And while I think that cross-media integration would

be a useful goal, it is not clear to me that separating things out

by function would make any difference in that area.

Mr. OSE. OK. Mr. Warren.

Mr. WARREN. I think my concern in this case is that this particular Under Secretary really acts as the super-Under Secretary by

consolidating all of the policy and planning functions under that

secretary. My perception is that Under Secretary would have much

more authority within the Agency as a whole than the other two;

and that, in effect, what you have done is, whereas now, you have

several Assistant Secretaries reporting to the deputy administrator

and then the administrator, you have replaced the deputy adminisVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00144 Fmt 6633 Sfmt 6633 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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trator with this Under Sectretary, and then left out science and enforcement; and that those two Under Sectretaries now operate all

outside of the other policy review and planning process that is

being channeled up to the secretary.

And I would just have to ask the question, why aren’t science

and information and monitoring and enforcement somehow being

given a status where they are much more integral to the policy and

planning process?

Mr. OSE. Dr. Hayward.

Dr. Gray, any input on this? I will repeat the question if you

want me to.

Dr. GRAY. That is OK. I do think that this sort of a structure

helps ensure the credibility of the scientific decisions that are

made.

I do think that it is important not to repeat the mistakes of the

past and have these be stovepipes. As Steve said, we don’t want

just three bigger, thicker stovepipes. I think we want to make sure

that they are surrounded by perhaps a screen rather than steel, so

that there is communication back and forth between enforcement

and science and the policy offices.

Mr. OSE. Dr. Portney.

Dr. PORTNEY. I do think that the administrative arrangement

that you have proposed would facilitate a little bit more awareness

that solving an air pollution problem can sometimes create a water

pollution or a solid waste problem.

So I understand the administrative advantages of the decisions

that you have made in the proposed legislation. Ultimately though,

I think, Chairman Ose, the real problem comes as a result of the

fact that the Clean Air Act tells EPA’s Office of Air and Radiation

to solve air pollution problems and doesn’t tell it what to do if in

the process of solving an air pollution problem you create a solid

waste problem that is even greater.

So I think this gets——

Mr. OSE. Or a water problem.

Dr. PORTNEY. Exactly. Exactly right.

So you get us part of the way there. To get all the way there,

I think Congress may have to look at all of the statutes together

and decide how can we give the Agency the power to avoid creating

a bigger problem in the process of solving a smaller one.

Mr. OSE. I think the poster child for my concern here in terms

of this cross-media issue is the efforts we made in California, for

instance, to have cleaner air emissions for MTBE and the consequence to water pollution from leaking tanks where the MTBE

just drops right to the water table. I am trying to figure out how

it is we prevent a similar situation from arising with some other

well-meaning scientific advancement.

What this really boils down to is, and Mr. Warren led me to this

thought in the first place—what is to prevent the Under Secretary

for Policy, Planning and Innovation maintaining the focus on air,

water, land, in the context of their everyday deliberations anyway?

Professor Steinzor, any input on that?

Ms. STEINZOR. Well, I think you are right, there is nothing that

would prevent it, and it may just be that there is no way to accomVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6633 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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plish this other than going through the statutes and deciding how

to integrate all of them.

Mr. OSE. Because those statutes——

Ms. STEINZOR. The Clean Air Act, the Clean Water Act.

Mr. OSE. We are not even trying to do anything with them. What

did he call it, a savings clause?

Ms. STEINZOR. Savings clause. I guess what I am saying is, I

think that is the unavoidable problem, that if you don’t change

them, there is an irresistible temptation to set up offices that have

to accomplish rulemakings under deadlines because the Agency has

been very slow.

May I address MTBE?

Mr. OSE. Certainly. If you have any thoughts as to what we can

do about that, I would welcome them.

Ms. STEINZOR. Well, the President of CPR is writing a book on

MTBE, so he would welcome, if you asked a question about it, to

provide you with information. I think he would say, if he was sitting here—and this is Thomas McGarity, who is a professor of law

at the University of Texas—that in fact, California EPA did not say

do MTBE; it was the industry that chose that additive, and that

the problem was that the tanks were leaking, and that is a failure

in compliance with earlier regulation.

I mean, it is not that we would at all disagree that it is a terrible

problem, but it was not the regulator’s choice to pick MTBE. That

was done by the industry because it was a cheaper substance, and

the leaking tanks is what got it into the water. I am painfully familiar from my days in private practice with the underground storage tank regulation. They are quite extensive and those things

were supposed to have been pulled and replaced 15 years ago.

Mr. OSE. Anybody else?

Dr. Gray.

Dr. GRAY. I just wanted to ask if perhaps this notion of the

Under Sectretary looking broadly across the media in the different

environmental areas is, in fact, contained in the goal of the department as laid out in the legislation, which simply says that the department should be guided by the goal of improving overall environmental quality. There is an exhortation, there is an aspiration

here to make this overall, to look broadly—and perhaps something

a little more concrete would help there as a place to start—to make

that something that can be used to measure or to check how that

particular office is working.

Mr. OSE. OK.

Mr. WARREN. If I could just add, I think it is a very serious issue,

in fact, how you encourage that cross-media work and that integration. And, I think that the solution, for better or worse, is that it

needs to be done from the top down; that really it has to be the

responsibility of the secretary and the deputy secretary to take on

those actions, which are necessary to make sure that it is done

across the Agency, not only air, water and land, but science and enforcement and monitoring all together; and that they have the ability to do that, in fact, I believe through again such tools as the

Government Performance Results Act, which forces them to do a

strategic plan.

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And, if you look at the current strategic plan in terms of how it

has done its goals, the goals are not simply done by traditional

media, and within each goal, you will see different media working

together. I am not endorsing their current strategic plan; what I

am pointing to is the fact that does present a means for them, and

that simply another layer of bureaucracy, as opposed to having the

deputy secretary and secretary being charged with that directly, I

don’t think necessarily ensures the result.

Mr. OSE. OK. In developing this legislation, we received a lot of

input. Some of the groups have put forward the thought that the

regulations promulgated by EPA should be subjected to a cost-benefit analysis.

My question would be, should such a requirement be included as

part of an EPA elevation bill, should EPA be required to prioritize

not only its proposed activities, but also the regulations it wishes

to promulgate? I think that is part and parcel of the question, in

particular that Professor Steinzor and Mr. Warren hinted at, as to

whether or not this provision should be included in this elevation

bill. So we will deal with that accordingly.

Mr. Warren, we are going to go to you first. Should EPA be required to do a cost-benefit analysis of all of its regulations? Should

such a requirement be included in the EPA elevation bill? Should

EPA be required to prioritize its activities and the regulations it

might wish to promulgate, and should those activities be included

in the elevation bill?

Mr. WARREN. When you say ‘‘those activities,’’ do you mean the

first three activities or the prioritization exercise alone?

Mr. OSE. Separate the two. There are actually two things. There

is a cost-benefit analysis and then prioritization. Should the costbenefit analysis be included in the elevation bill? Should the

prioritization requirement be included in the elevation bill?

Mr. WARREN. OK. Well, our answer would be no and no. In respect to cost-benefit analysis, the Agency is already required under

an Executive order to do a cost-benefit analysis for major rules.

Therefore, it doesn’t seem necessary to have an additional requirement in that respect. Cost-benefit can, if done right, provide useful

information to policymakers. But it should not become the overriding statutory decisionmaking criteria. Those should remain as

they are in the statutes where they exist now.

In respect to the prioritizing exercise, I believe that it is desirable for the Agency to have a good process by which it sets priorities and by which Congress then can review them and pass judgment on them. But I think that you would just be opening a tremendous Pandora’s box to ever get people to agree on what the

right priority-setting process or priorities would be. And, I think

that it would really have the effect of dooming the legislation.

Mr. OSE. Professor Steinzor.

Ms. STEINZOR. Our answer would be no and no as well. First of

all, I would like to offer, we have done comprehensive analyses in

several different forms of the type of cost-benefit analysis that is

being done now by the agencies under pressure from the Office of

Management and Budget. And, I would be delighted to provide

that. I think that much of that methodology and underlying inforVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00147 Fmt 6633 Sfmt 6633 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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mation illustrates that the kind of cost-benefit analysis we are

doing now is unsound cost-benefit analysis.

Furthermore, there are statutes such as the Clean Air Act, as affirmed in a Supreme Court decision that was unanimous and authored by Justice Scalia relatively recently, that upheld the specific

decision in the Clean Air Act not to allow costs to be considered in

the formulating of health-based standards as an initial matter. And

so, to enact something like that as part of Cabinet elevation, once

again, would have the effect of repealing that statutory provision,

and is only appropriate if you were engaged in a debate about

whether it was desirable in that context.

Mr. OSE. OK. Dr. Hayward.

Dr. HAYWARD. I think I will pass on this one, too.

Mr. OSE. Dr. Gray.

Dr. GRAY. I think in an ideal world the answer to your questions

would be yes and yes. It would be very good to know what sorts

of benefits we were getting for the resources that we are putting

into complying with specific rules and regulations. That would be

ideal. And, lots of folks have told us that is a useful part of the

decisionmaking process. Priority setting would be great.

Given the fact that the Executive order already requires benefitcost analysis of major rules, and the fact that it is my understanding that this sort of provision has really held up previous elevation

bills, it seems to me that would be something that would potentially lose a lot of the advantages that are there. I do think that

a Bureau of Environmental Statistics will help us with priority setting. It is something that, inadvertent or in an indirect way, will

be very valuable for priority setting. Benefit-cost analysis is being

done in the Agency. I think more of it will be done. Making it an

explicit requirement of this bill I am afraid will just stop the bill.

Mr. OSE. Dr. Portney.

Dr. PORTNEY. I am in the same place that George Gray is. I

think that it is inconceivable to me that you wouldn’t want a regulatory agency to ask the question, What is the good that this regulation will do and how does that compare to the costs that it will

impose on the economy? So I think that agencies should have to do

benefit-cost analysis.

But I also agree with Wes and several of the other panelists who

pointed out that they are required to do so under a Presidential

Executive order and under the Unfunded Mandates law of several

years ago. I don’t see any reason to risk all the advantages that

I think this bill offers in terms of Cabinet department, Bureau of

Environmental Statistics by putting that in there. And, I feel the

same way on prioritization. Yes, it should. I don’t think this bill

ought to become the vehicle to require the EPA to do that.

Mr. OSE. All right.

My last question here has to do with the public’s access to data

at EPA. What changes, if any, should the Department make in its

implementation of the Data Quality Act? And, should an EPA elevation bill contain a provision to ensure data quality and the

public’s access to that data? And, if so, what language do you recommend? I am going to start with Dr. Portney on this.

Dr. PORTNEY. I am going to have to pass on this one. I know that

this Data Quality Act has become a very controversial issue. What

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I don’t know is whether or not this government, or any government, would use it to frustrate the ability of a regulatory agency

to issue regulations, or whether it is a constructive step in the direction of making sure that the public can see the data base upon

which regulations are based. So I’m afraid I don’t have a very good

response to you there.

Mr. OSE. Professor Steinzor.

Ms. STEINZOR. Well, Mr. Chairman, CPR has been in the forefront of questioning how we should properly interpret the Data

Quality Act. No one can be against quality data. But it seems to

us that the act has been stretched way out of shape by the Center

for Regulatory Effectiveness, whose founder claims to have authored the act.

Yesterday we became aware that a letter had been circulated

here that accused us of violating the Data Quality Act when we expressed an opinion about how it was being used by the Center for

Regulatory Effectiveness, which leaves me with the impression that

the Data Quality Act is bigger than the first amendment in Mr.

Tozzi’s mind. And, I find that kind of troubling. I think we should

be able to have a robust debate, as we did with all the panelists

who were sitting here. It has been a very stimulating discussion.

And, having fears that we have violated the Data Quality Act as

interpreted by Mr. Tozzi, and therefore our views should be discounted.

So I would urge you to be very, very cautious about feeding this

idea that anyone who disagrees with you is violating the Data

Quality Act. I would just urge you to focus on your other very

worthwhile goals.

Mr. OSE. Dr. Hayward.

Dr. HAYWARD. I am pretty much where Paul is. I haven’t spent

a lot of time yet figuring out how the Data Quality Act was going

to unfold. I was going to wait for some more time to pass and

things to settle out a bit. In general, I find that EPA, at least on

their Web site, breaks down a lot of their data, like their air quality data especially, superbly. It is voluminous and extremely useful.

You do occasionally get into these debates about the confidentiality of raw data that goes into some of their epidemiological research. This has come up in the context of the new ozone and particulate standards. And, I am not sure what the answer is there,

because that opens up a can of worms on all kinds of legitimate

concerns about privacy of the people being surveyed and so forth.

And, I don’t know what the solution to that is. But I think it is

the kind of thing that a Bureau of Environmental Statistics would

have to wrestle with very seriously and figure out some kind of

way to make both sides happy.

Mr. OSE. Mr. Warren.

Mr. WARREN. Well, I believe that you can support quality data

and yet not support the Data Quality Act. I believe that piece of

legislation still has the potential in fact to be a source of great mischief. And by that, I mean that self-interested opponents of environmental protection may see the act as an opportunity to just constantly challenge any piece of information that the Agency has at

its disposal to prevent it from being used in a decision or to prevent

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it from being disseminated to the public. And, I think that would

be a perversion of the intention to ensure quality data.

Having said that, as you know, this was adopted as an appropriations rider. The administration has carried the interpretation

far beyond the literal reading of it. Our organization objected to it

both in terms of the content also the process. This is the type of

proposal that should have gone through the authorizing committees. We should have had a free and open public debate. Congress

should have had a chance to consider all of the implications before

enacting it. And now we are struggling to live with the consequences.

I have to say that I think your legislation has been much more

careful about avoiding the interjection of those kinds of pernicious

concepts into place that might actually undermine the objective of

quality data.

Mr. OSE. Dr. Gray.

Dr. GRAY. Nothing.

Mr. OSE. All right. Well, I have no further questions.

I do want to offer a couple comments. I think everybody’s interested in improving the quality of our environment. That is pretty

basic. It is not even partisan. One thing I do want to examine in

future hearings is one of you, I think Professor Steinzor or Mr.

Warren, I think one of your testimonies talked about the difference

in how an adult human is affected by environmental influences, as

opposed to a child.

Mr. WARREN. Yes.

Mr. OSE. And, I think I want to examine that a little bit more,

because I am curious about what role, if any, this legislation might

have in facilitating a far more comprehensive look at that.

I do want to thank you all for coming today. This has been highly

educational for me. This is not an easy issue, because we have all

sorts of different influences pulling on us in different directions. We

are going to try and work our way through it. Our objective remains to get an Agency that can prevent situations such as like

MTBE, regardless of the source, from leaky tanks or otherwise,

from recurring time after time after time. We want a cleaner environment for ourselves, our children, and our grandchildren. It is an

appropriate time for us to look at this.

I appreciate you all taking the time to come down and testify and

help us in our efforts. This hearing is adjourned.

[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]

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(169)

ELEVATION OF THE EPA TO DEPARTMENT

LEVEL STATUS: FEDERAL AND STATE VIEWS

TUESDAY, SEPTEMBER 9, 2003

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Shays, Cannon, Tierney, Kucinich,

and Waxman [ex officio].

Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Danielle Hallcom, professional staff member;

Melanie Tory, junior professional staff member; Anthony Grossi,

legislative clerk; Yier Shi, press secretary; Phil Barnett, minority

chief counsel; Alexandra Teitz and Krista Boyd, minority counsels;

and Jean Gosa, minority assistant clerk.

Mr. OSE. Good afternoon and welcome, everybody, to today’s

hearing on the Subcommittee on Energy Policy, Natural Resources

and Regulatory Affairs.

Today the subcommittee will hold its fifth hearing on the topic

of elevating the Environmental Protection Agency to Cabinet-level

status. President Nixon created EPA in 1970 and since that time,

Congress has passed several landmark environmental laws such as

the Clean Water Act, Clean Air Act, Safe Drinking Water Act.

Each time, EPA’s jurisdiction has increased significantly but its

structure remains the same as originally envisioned. As Congress

considers elevating EPA to the Cabinet, we should also consider

whether an organizational structure created in 1970 is best suited

for a new department charged with one of the government’s most

important roles, protecting the health of our Nation’s citizens and

environment.

During the last Congress, this subcommittee held three hearings

addressing EPA elevation bills introduced by former Congressman

Steve Horn and Congressman Sherwood Boehlert. Experts and

public officials testified to the merits of elevation and current organizational problems at EPA that hinder effective environmental

protection. On June 6, 2003, this subcommittee heard testimony

from think tank and academic experts regarding the merits of the

two EPA elevation bills before the current Congress. The first bill,

H.R. 37, was introduced by our colleague, Congressman Sherwood

Boehlert, and is identical to 2438, as introduced in the 107th ConVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00173 Fmt 6601 Sfmt 6601 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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gress. H.R. 37 elevates EPA to department-level status but makes

no reforms in its structure.

I believe that EPA’s structure as it currently exists lacks adequate oversight and coordination within offices to ensure that

science, policy and implementation are integrated throughout EPA.

I also believe that science at EPA must be improved. Based on the

expert testimony from our previous hearings in the last Congress,

I introduced H.R. 2138 on May 15. Currently, each EPA regional

office, program office and division reports directly to the EPA’s Administrator and Deputy Administrator. And the chart on the left

over here is the diagram that reflects that.

My bill would make important organizational and institutional

changes to EPA in order to eliminate the stovepipe structure reflected in that chart. It reorganizes EPA into three Under Secretaries: first, Policy, Planning and Innovation; the second, Science and

Information; and the third, Compliance, Implementation and Enforcement. The Under Secretary for Policy Planning and Innovation

would have authority over all program offices, regulations and policy development. The Under Secretary for Implementation, Compliance, and Enforcement would supervise the regional offices, assist

States in coordinating with program offices, and head EPA’s enforcement effort and that is reflected on that second chart on the

right.

My bill responds to the overwhelming feedback about the lack of

sound science at EPA by creating an Under Secretary for Science

and Information. This section mirrors legislative language from

H.R. 64, the Strengthening Science at the EPA Act, introduced by

Congressman Vernon Ehlers, which passed the House in the 107th

Congress. Witnesses at June’s hearing supported this provision,

stating that EPA’s science should be consolidated into one centralized division. At a minimum, this organization will advance environmental protection by conducting peer-reviewed scientific studies

of the highest caliber and provide a level of separation between

regulators and scientists.

Finally, at June’s hearing, witnesses testified that EPA needs an

independent statistical agency to report on meaningful environmental and human health performance indicators. My bill creates

an independent Bureau of Environmental Statistics modeled after

the successful Energy Information Administration to collect, analyze, and report on environmental and human health conditions.

Under the leadership of former administrator Whitman, EPA published a draft State of the Environment Report in an effort to move

toward outcome measurements. While EPA’s report is a step in the

right direction, only a statutorily required, peer reviewed, and independent Bureau of Environmental Statistics will move EPA toward

the goal of implementing meaningful outcome measurements.

It is important to note my intention that EPA elevation will not

alter any of the Agency’s jurisdiction nor will it address any substantive or nonsubstantive environmental laws that guide EPA’s

action. This is a structural discussion only. Instead, my bill will

elevate the Agency to a Department and provide the Department

of Environmental Protection with the structure and tools to most

effectively address the environmental challenges of the 21st century. I am, of course, open to improvements to this bill to meet this

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goal, and I hope that Congress does not pass up this opportunity

to make important reforms.

I look forward to the testimony of our distinguished witnesses

here today. They include Marianne Horinko, who is the Acting Administrator of the EPA; Mr. James Connaughton, chairman of the

Council on Environmental Quality. Our second panel has State

Representative Warren Chisum from the Texas House of Representatives; Mr. Howard Roitman, director of environmental programs from Colorado; Dr. Ron Hammerschmidt, director, Division

of Environment, Kansas Department of Health and Environment;

E. Donald Elliott, former EPA General Counsel and partner at the

law firm of Wilkie, Farr & Gallagher; Dr. Alan Moghissi is president of the Institute for Regulatory Science; and Mr. Gary Guzy,

former EPA General Counsel and partner at the law firm of Foley

Hoag, LLP.

[The prepared statement of Hon. Doug Ose follows:]

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Mr. OSE. I would like now to recognize my good friend and colleague, Mr. Tierney, for the purpose of an opening statement.

Mr. TIERNEY. Thank you, Mr. Chairman, and just to share with

the two witnesses here, the big words on that is ‘‘small opening.’’

I am glad we didn’t have to sit through the big opening.

Thank you, Mr. Chairman, for conducting this hearing on an

issue of great importance, I think, elevating the EPA to Cabinetlevel status. I strongly support making it a permanent member of

the President’s Cabinet, but I couch that—as I say, we should do

it in a manner that does not diminish the integrity of the Agency

or its purpose. EPA’s purpose is to protect the environment we live

in, protect our land, our water, and our air. If Congress acts to

change the status of the Agency, it should be acting to elevate the

importance of environmental protection as a key policy of the U.S.

Government.

Making EPA a Cabinet-level department is an important goal

that should not be jeopardized through controversial provisions. We

should not use an EPA elevation bill as a vehicle to weaken our

enforcement laws while—environmental laws or their enforcement.

I am concerned, however, that the chairman’s bill contains some

provisions that may warrant further discussion, certainly that

some may see as controversial, and I mentioned that to the chairman before.

In considering any change to the EPA, it is important to look at

the work that EPA is doing under the current administration. Several reports have surfaced this summer regarding EPA’s lack of enforcement of our clean air and water laws. And just in the last few

weeks EPA has taken a number of very troubling actions. For example, EPA finalized a rule that weakens the Clean Air Act by allowing thousands of old power plants to make upgrades to their

power plants without installing pollution controls. These power

plants and factories will be allowed to continue polluting the air

without being held responsible for the damage they are causing to

our health and to our environment. It was reported last week that

EPA is relaxing restrictions on selling land contaminated with

PCBs, the toxin that is known to have serious health consequences

in children. Additionally, the EPA Inspector General recently

issued a report stating that EPA was pressured by the White

House to be less than candid about New York’s air quality after the

attacks on the World Trade Center. That caused understandable

concerns to those brave first responders and emergency workers

who risked their health to participate in weeks of grueling rescue

and recovery efforts at Ground Zero.

It is not enough to talk about protecting our health and our environment. The actions of EPA and Congress must reflect a true commitment to the environment. Elevating the EPA should not be a

vehicle for measures that would serve to weaken the laws that protect our health and environment nor that would redirect time and

resources away from EPA’s core missions.

I’m also a little bit concerned that the administration appears to

have reversed its position on the EPA elevation bill and I look forward to hearing the administration witnesses explain this shift in

position. Elevation of EPA should not be a divisive issue, but rather an issue that sends a clear and strong message that the protecVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00186 Fmt 6601 Sfmt 6601 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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tion of our national and global environment and our health is of

the utmost importance. I look forward to hearing from you and our

witnesses today.

Thank you, Mr. Chairman, for this hearing.

Mr. OSE. I thank the gentleman.

[The prepared statement of Hon. John F. Tierney follows:]

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Mr. OSE. As many of you know that have appeared before this

committee, we routinely swear in our witnesses. I want to make

sure I welcome them. We have two panels today. Our first panel,

we are joined by representatives of the administration. We have

Chairman James Connaughton from the Council on Environmental

Quality. And we have the Acting Administrator for the Environmental Protection Agency, Ms. Marianne Horinko. And I welcome

you both. And in line with our tradition here, if you would please

rise.

[Witnesses sworn.]

Mr. OSE. Let the record show that the witnesses answered in the

affirmative. And with that, we are pleased to welcome back to our

forum Mr. James Connaughton, chairman of the Council on Environmental Quality. Mr. Connaughton, you are recognized for 5 minutes.

STATEMENTS OF JAMES L. CONNAUGHTON, CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY; AND MARIANNE L.

HORINKO, ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY

Mr. CONNAUGHTON. Thank you, Mr. Chairman, Mr. Tierney, and

other members of the subcommittee. I am pleased to be here again

before the subcommittee to discuss the Bush administration’s support for elevating the U.S. Environmental Protection Agency to a

Cabinet department. I am very pleased to share this panel with my

good friend and colleague, Acting EPA Administrator Marianne

Horinko.

In its short history, the U.S. Environmental Protection Agency

has a long record of accomplishments. It is because of these accomplishments environmental quality in the United States has vastly

improved.

Improved air quality is one of our Nation’s greatest environmental successes. Air pollutants have been reduced by almost onethird since 1970, even as the Nation’s gross domestic product has

increased 160 percent, energy consumption increased 45 percent,

and population increased 38 percent.

The Nation’s water is cleaner. Today 192 million people are

served by modern sewage treatment facilities. In the last decade

alone, we provided safe drinking water to another 54 million Americans.

And the Nation’s land is better protected. We are more able to

provide benefit and refuge to our communities and support thriving

ecosystems.

In 2002 and again this year, Representative Sherwood Boehlert

of New York offered legislation to elevate EPA to a Cabinet department. I would like to take a minute to acknowledge and again

thank Representative Boehlert for his continued leadership and ongoing support for elevating EPA to a Cabinet department. At the

same time, I want to thank you, Representative Ose, Mr. Chairman, for your leadership and your desire to advance this important

priority of the Bush administration and to do so in a way that

meets the fundamental goal, the structural elements necessary to

raise an agency up to a Cabinet department.

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When I testified before this committee on the subject last summer, I emphasized that the Bush administration would work closely with the committee to advance EPA Cabinet legislation in order

to make official what is already a reality in the Bush administration. Let me again highlight why EPA should be elevated to a Cabinet department and why we should do it now.

EPA carries out the work of a Cabinet department. EPA started

out by overseeing four major environmental statutes. Today EPA

implements 15 major statutes and numerous others, as well as a

full complement of grant programs, voluntary initiatives, technical

assistance and educational programs, as well as citizen outreach

throughout the Nation.

EPA also advances the mission of a Cabinet department. As we

move forward in tackling our environmental goals for the 21st century, EPA is reaching out to develop new approaches that promote

stewardship that spur innovation, that instill sound science in its

decisions, that advance federalism through greater involvement of

State and local government and, as important, ensure compliance.

EPA plays a vital role in homeland security. EPA has the lead

role in environmental monitoring, decontamination, and long-term

site cleanup. Their expertise in offsite monitoring, contamination

surveys, working with health officials working to establish safe

cleanup levels, conducting protective cleanup actions and communicating technical information to its citizens is essential for Federal

response to an act of terrorism that involves the release of biological, chemical, or radioactive material. EPA works with Federal

partners in every phase, from the initial crisis to the final cleanup.

EPA also produces initiatives of national significance that one expects of a Cabinet department. EPA designed and is advancing the

President’s Clear Skies Initiative that will cut the Nation’s power

plant emissions of sulfur dioxide, nitrogen oxide, and mercury by

70 percent. This initiative, along with EPA’s new comprehensive

regulations and programs to cut emissions from diesel engines, will

enable hundreds of counties across the country to meet the newest

and most stringent national air quality standards for ozone particulate matter that the Bush administration is implementing.

EPA’s influence and accomplishments now extend beyond our

borders. Many nations turn to EPA for technical expertise and

guidance in safeguarding the health of their own citizens and the

sustainable use and enjoyment of their natural resources. For these

reasons, the Bush administration strongly supports elevating EPA

to a Cabinet department. And we support efforts to accomplish this

objective in a straightforward manner that focuses on the organizational structure of a new Cabinet department.

Acting Administrator Horinko will outline some comments and

recommendations for changes to certain elements of the legislation,

but I wish to emphasize that overall, we believe it is important to

build an organization better equipped to meet the increasingly complex environmental challenges facing the Nation and the world and

an organization that will ultimately better protect the public health

and environment. We look forward to continuing dialog with the

committee on how best to accomplish this mutual objective.

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Thank you for the opportunity to testify today and I look forward

to answering any questions you may have.

Mr. OSE. The Chair thanks the chairman who did it in 4 minutes

and 58 seconds. Very good.

[The prepared statement of Mr. Connaughton follows:]

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Mr. OSE. The Chair is pleased to recognize the Acting Administrator for the Environmental Protection Agency who has joined us

I believe for the first time today. Ms. Horinko, you are welcome

here.

Ms. HORINKO. Mr. Chairman, thank you. Good afternoon. I am

very pleased to appear before the subcommittee as Acting Administrator on so important an issue to the Agency, the elevation of EPA

to a Cabinet department. And I am also pleased to have the opportunity to appear here today with Jim. I plan to give a brief oral

statement and submit my longer testimony for the record.

Since its creation by President Richard Nixon more than 30

years ago, EPA has worked diligently to fulfill its mission to protect human health and safeguard the natural environment. To that

end, EPA has changed and adapted to address the challenges associated with new environmental laws as they were passed by Congress. EPA’s role is defined as well by increased public awareness

and the expectation that our health and environment will be protected. That strategy has led to the need for an emphasis on the

use of sound science as well as dependence on the public trust.

Today EPA faces more challenges than ever before to protect

human health and the environment, and as a means to help the

Agency face these challenges, the time has come to establish EPA

as a permanent member of the President’s Cabinet. Elevating EPA

to Cabinet status is not a new idea. There are more than a dozen

bills introduced in Congress to elevate EPA to Cabinet status since

1988. Former President Bush was the first President to support

Cabinet status for EPA, a decision then followed by President Clinton and current President George W. Bush.

I want to thank Chairman Ose and other Members of Congress,

including Chairman Sherwood Boehlert, for introducing legislation

to elevate EPA to Cabinet status and for their continued support

of the Agency.

I would like to touch briefly on some of the issues addressed by

H.R. 2138, the Department of Environmental Protection Act. The

principal goal of the bill to elevate EPA to Cabinet status and promote greater performance and efficiency at the Agency is certainly

a goal that we share. I am concerned, however, that the consensus

developing for elevation of EPA could be fractured by contentious

debate over the details of a statutory EPA restructuring plan.

The bill’s goal to improve the use and application of science at

EPA is a sound one with the creation of an Under Secretary of

Science and the consolidation of science activities under one office,

changes that merit further discussion. We do believe, however, that

the information management function should be separated from

the science organizational structure, as mandated by the ClingerCohen Act. The creation of a Bureau of Environmental Statistics

[BES] could promote the importance of accurate, thorough, environmental monitoring and reporting and could provide the Agency

with better data. However, an EPA BES should be consistent with

the structure and authority of other Federal statistical bureaus.

Also, as to the relationship between EPA and its regions, I agree

that it is important to have close coordination and communication

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ity to implement their goals to reflect particular regional and local

conditions. I would urge Congress to allow the executive branch

sufficient flexibility to allow the new Department to manage the

enforcement and regional office functions as effectively and efficiently as possible.

Finally, we support Cabinet elevation legislation that is free of

provisions that would make significant policy changes to the Agency and its programs. We look forward to working with you and

other Members of Congress as legislative deliberations over the elevation of EPA to Cabinet status continue in the 108th Congress.

That concludes my oral statement, Mr. Chairman, and I would

be pleased to answer any questions that you or the committee

members may have.

Mr. OSE. I thank the gentlelady and appreciate her brevity.

[The prepared statement of Ms. Horinko follows:]

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Mr. OSE. I want to make sure I understand something before we

start. It is my understanding that President George Herbert Walker Bush, President Clinton, and President George W. Bush all consider from a practical standpoint or operating standpoint that EPA

is part of their Cabinet already; is that accurate?

Ms. HORINKO. That is indeed accurate.

Mr. OSE. So you are attending the Cabinet meetings as Acting

Administrator anyway.

Ms. HORINKO. And in fact have the privilege of sitting at the

table with the other Cabinet members.

Mr. OSE. At the table. In reality you are there now.

Ms. HORINKO. [Nods affirmatively.]

Mr. OSE. The second question I have—and I appreciate both of

your responses—I have been very careful in drafting this legislation to keep any change from a policy standpoint out. This is strictly a management structure kind of thing. Have I succeeded in that,

Mr. Connaughton?

Mr. CONNAUGHTON. You have succeeded on focusing on structural elements. We have comments and questions related to those

elements.

Mr. OSE. But on the policy side.

Mr. CONNAUGHTON. We were pleased to see in your bill this year,

Mr. Chairman, a strong effort to stay focused on the structure elements, which, as I indicated in my oral comments, when you elevate from an agency to a department, you do bring in the opportunity to make sure that you got some of the key pieces structurally in place so it can function as a department on par with the

other agencies. And I would note that most other agencies do have

a policy apparatus. The Department of Transportation is one example I would give, Department of the Interior is another, and your

legislation has reflected that. And different agencies, depending on

their mission, do put a strong prominence on the science function.

So those are the elements that we think have particularly well captured equivalency with other Cabinet departments.

Mr. OSE. But you don’t see anything in terms of any amendments to the Clean Water Act, Clean Air Act, within the legislation

as drafted? Ms. Horinko, do you agree with that?

Ms. HORINKO. I agree.

Mr. OSE. I want to make sure we get that on the record. Section

7 of my bill outlines the duties of the Department’s Presidentially

appointed and Senate-confirmed officers. One of the more criticized

functions of EPA is the quality of its science. Both sides of the political spectrum claim, and I have heard all the claims, that EPA

does not use the best science in support of its regulations. There

is a section of my bill, section 7(c), that establishes an Under Secretary for Science and Information for the purpose of co-locating

scientific activities at EPA and to remove the regulatory science efforts from the program offices.

Now, Mr. Connaughton, in your testimony you state that the administration supports efforts to improve the organizational structure of a new Cabinet department. Is it the administration’s position that Congress should institute organizational reforms concurrent with Cabinet elevation?

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Mr. CONNAUGHTON. Structural reforms are necessary to elevate

something to a Cabinet. So the answer to that is yes.

Mr. OSE. Because that is the template that is used in every other

Cabinet department?

Mr. CONNAUGHTON. Correct.

Mr. OSE. Now in making those organizational changes to, in effect, evolve an agency to a department, would the administration

generally support centralizing and professionalizing the science

under EPA under a strong leader such as an Under Secretary for

Science and Information?

Mr. CONNAUGHTON. Yes, we would.

Mr. OSE. Ms. Horinko, I do want to thank you for suggesting in

your written testimony that the Department include a CIO. I

missed that, so I appreciate your suggestion. Other than that modification, do you support an Under Secretary for Science within the

new Department?

Ms. HORINKO. Yes, I do.

Mr. OSE. Do you think that centralizing the science at EPA can

foster cross-media scientific analysis?

Ms. HORINKO. Yes. I think it will improve our coordination.

Mr. OSE. Section 7(c) of my bill removes scientific activities from

the program offices in order to minimize the disparate decisions as

it relates to scientific studies and conclusions. Do you agree that

scientific studies and conclusions should be independent from policy?

Ms. HORINKO. Yes, I do.

Mr. OSE. I want to dwell a little bit on the Bureau of Environmental Statistics because I happen to think this is probably one of

the more important factors of the bill. Section 8 of my bill establishes such a bureau, which is similar to the highly respected Bureau of Labor Statistics, the BLS, in the Labor Department, and

the Energy Information Administration, EIA in the Energy Department. And I will say that having just weathered and continuing to,

if you will, enjoy California energy markets, I have a great familiarity with the EIA.

Mr. Connaughton, many other Federal agencies and departments

have valuable independent statistical agencies. Does the administration generally support the concept of the Bureau of Environmental Statistics within a Department of Environmental Protection?

Mr. CONNAUGHTON. We do generally. We have some specific comments that relate to that in terms of how that is executed to bring

it in line with some of the other statistical agencies. And then I

would want to underscore the fact that numerous other departments, in addition to the several that have statistical agencies, also

have statistical functions within them that we rely on across the

government for environmental information. So there are elements

of your bill that ensure a close coordination among those different

fact-gathering bodies that is of particular interest to talk through

further.

My office and the White House relies on the statistical work of

all of those agencies as we collectively use that information in our

understanding of policy decisions. So the short answer is yes, and

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then we have some specific issues that we are happy to work with

you on.

My time has expired. Mr. Tierney.

Mr. TIERNEY. Thank you. I am happy to proceed if you are flowing and want to go on that.

The chairman’s bill, as I look at it, would significantly reorganize

the proposed department with the purported aim of increasing communication across the EPA. And obviously, it would seem to me it

would take time and resources currently needed for the EPA’s core

mission on that. Do you see any problems with the organizational

changes proposed in the chairman’s bill? And will the addition of

three new Under Sectretaries either solve those problems of information sharing or the stovepiping that has existed and how?

Ms. HORINKO. I think that on the whole, that having the new

Under Sectretaries will improve coordination and help us to have

more program integration. We have some minor suggestions in

terms of making the bill a little bit less prescriptive, giving us a

little more flexibility to manage inside those three boxes of the

Under Secretaries. But on the whole, I think the creation of these

Under Secretaries will improve cross-program coordination, break

down the stovepipes and give us a little more program integration,

all things that we do need at EPA.

Mr. TIERNEY. I would be interested in you sharing with the rest

of the committee what your recommendations are, because as I see

the bill now, I have some of those questions myself. I think the intention is there, but I would like to see how that works out. Do you

think in its reorganization, if you don’t provide additional resources

at the same time, is it not going to make it harder for the EPA to

issue or implement enforced environmental protections?

Ms. HORINKO. Simply reorganizing the Agency into a department

I don’t believe would be a huge resource issue. We may want to

talk to you about creation of the new Bureau of Environmental Statistics and it is simply too early to say whether that will require

some additional resources. We will need to proceed very slowly in

a step-wise fashion. You don’t build something like that overnight.

Perhaps benchmark what other agencies have done as they have

created their statistical bureaus and also work very closely with

our appropriators to make sure that we do this in a measured way.

Mr. CONNAUGHTON. I would also note that the bill actually,

thankfully from our perspective, does not designate the Assistant

Secretaryships and the other components. It is our expectation that

all of that stays in place at EPA. We have the Office of Water, Office of Air. As we move forward, the legislation provides flexibility

in the future, but I think the resource issue is important. We think

that the structural changes proposed are modest, even as we are

able to keep intact the essential programs and the essential operating entities that you have referred to.

Mr. TIERNEY. I recall that when Governor Whitman was testifying here, she indicated that a budget increase would actually help

the EPA address the problem of viewing things across the various

media such as air pollution and water quality. So I am not real

clear how this bill would address this problem and I’m not clear

why it can’t be addressed outside of a reorganization on that issue.

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Mr. CONNAUGHTON. That is where the policy function becomes so

important. Typically the policy offices in Cabinet departments are

not that large. They do require some infusion of resources, but they

are not that large. But by having a high-level political appointee

overseeing the work of the different departments, it allows for that

cross-media functionality to occur and it allows for somebody who

is not the Administrator, who has to function, you know, across the

entire scope and operation of the Agency, allows someone one or

two steps down to be able to fulfill that function on a day-to-day

basis. Not only does it bring efficiency but it helps us identify the

opportunities for, you know, the air program, for example, to provide real deliverables when it comes to protection of water.

Mr. TIERNEY. Outside of this legislation, why can’t we address

the issue of working across various media, what we would do if we

didn’t have this legislation to improve that situation?

Ms. HORINKO. There are things we are doing now to try and improve cross-media coordination. And there are a large number of

administrative things. We have cross-program task forces. We have

the Innovations Action Council. We try to put together teams to

break down the barriers, to break down the stovepipes. Those are

cultural things that we can do and are doing at EPA. But perhaps

it is time to start exploring some structural things as well. And the

opportunity that is provided by Cabinet elevation provides an opportunity to have a full and fair public exchange such as this on

what type of changes should be considered at the Agency.

Mr. CONNAUGHTON. The change proposed is very modest and yet

would be meaningful.

Mr. TIERNEY. I will stop here.

Mr. OSE. I believe the gentleman from Ohio was in first. Gentleman from Ohio for 5 minutes.

Mr. KUCINICH. I thank the Chair. To Ms. Horinko, I have long

supported a Cabinet-level status for the EPA and I hope that Congress can work to pass a clean bill to accomplish this goal. I am

very concerned that the EPA is failing, however, in its current responsibilities. Congress expects agencies to follow the law that it

passes, not change it. Yet with the signing of the recent new source

review rule, EPA gutted a critical portion of the Clean Air Act in

a definition of modification to stationary sources. The new rule provides an enormous exception for replacement activities costing less

than 20 percent of the process unit placement. This new trigger, 20

percent is very high, seemingly arbitrary, and contrary to the current modification definition in the statute which states any physical change. So what I would like you to tell us is where in the statute is a 20 percent exemption to this broad definition.

Ms. HORINKO. Congressman, I am pleased to take on the NSR

issue because it has been so miscast in public reports, in some public reports as a rule that would gut the Clean Air Act, and it does

nothing of the sort. In fact, that rule doesn’t affect any of the substantive safeguards of the Clean Air Act. And those safeguards

have been incredibly successful and will continue to be incredibly

successful in ratcheting down emissions of criteria pollutants. The

acid rain program created by the 1990 amendments to the Clean

Air Act, the No× SIP Call that we are currently implementing, the

ozone and PM regulations that Chairman Connaughton alluded to,

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those regulations will continue to inexorably ratchet down emissions on regulated facilities of all types. In fact lost in the noise of

the NSR rule was the fact that we signed some 14 other maximum

achievable control technology rules, further imposing emissions

controls on these facilities.

Mr. KUCINICH. I think it is interesting the EPA has never been

challenged for routine maintenance exemption and that is because

the exemption was read narrowly by the EPA and the courts affirmed a narrow exemption. For example, on August 7, the Justice

Department won a landmark victory against the Ohio Edison Co.

And as a result of this single decision, thousands of tons of emissions will be reduced, which improves the health and environment

of the people I represent in Ohio. However, under the NSR rule

signed by you, all but one of the illegal actions committed by Ohio

Edison would be permitted.

Now, when the court decided this landmark case, it said if a rule

exempted the pollution increasing projects proven in the case,

which this new rule does, the rule would ‘‘vitiate the very language,’’ and they were talking about the Clean Air Act itself. The

court confirms that a broad exemption would gut the statute. So I

just wanted to point that out in response to what you said.

And on a related issue I find it even more problematic that a

comprehensive analysis was lacking in the NSR rules. And I wonder how many plants were analyzed in Ohio to determine if they

would pollute more, and by how much.

Ms. HORINKO. Congressman, I would recommend your reading

our regulatory impact analysis that we prepared in the final NSR

rule. I read it myself. It is a lucid explanation of the justification

for the rule, the impacts. It is a thorough analysis of the rule.

Mr. KUCINICH. Were zero plants analyzed or did you run a sophisticated modeling program?

Ms. HORINKO. I will followup with you as to the number of specific plants that were analyzed, where, and in what State and what

location. But I’m confident, based on the best available information

we’ve got, that any impact of this rule from an environmental

standpoint will be very modest and it will be countervailed by the

inexorable ratcheting down of emissions required by the substantive safeguards of the Clean Air Act. It will increase reliability

and predictability and efficiency for operators so that they can plan

around our Nation’s energy supply. On balance, I think this is the

right thing to do.

Mr. KUCINICH. I’m just going to suggest to you that if you didn’t

analyze any plants—let’s assume that for the minute that Congress

does expect agencies to act on sound science—and not only did the

new source review changes originate with the industries regulated

by the new source review, but a recent GAO report concluded that

industry anecdotes which the EPA relied upon when creating the

December rule that—you know, the EPA assumed what the industry said, that production would not increase, and the GAO found

that this was not an accurate assumption because future levels of

production could increase and emissions could increase and health

risks could increase.

I want to suggest to you that Congress expects agencies to act

on the basis of science. But once again in this August rule, the EPA

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is relying on industry anecdotes for the second NSR rule. And I

would like a specific answer, if you could communicate that to us

in writing, to me or this committee, so I can tell my constituents

in Ohio what’s going to happen to air quality as a result of this

rule.

I thank the Chair. Would the gentlelady—she indicated a willingness to communicate this information.

Ms. HORINKO. Yes, I do.

Mr. OSE. I understood her to say that she would communicate

with you post-hearing in writing; is that accurate?

Ms. HORINKO. Yes, it is.

Mr. OSE. Gentleman from Utah.

Mr. CANNON. Thank you, Mr. Chairman. And I thank you for

holding this hearing. You know that I am deeply concerned about

this issue. I apologize to you and the panel for being late today and

also the fact that I’m going to have to leave, and I hope I can get

back for the next panel.

Ms. Horinko I want you to—in the last two flights I have had

out to Utah, I have been sitting next to my Governor, Mike Leavitt,

who is prepping like crazy to relieve you of the spotlight. I’m not

sure whether you like that or not, but he is working on it.

Ms. HORINKO. Please do cheer him on, Congressman.

Mr. CANNON. This is a hard thing. I don’t want to sound like that

I am not a great supporter of my Governor, but by cheering him

on, that would suggest that I support the departure. I think he will

do a good job on the interior but I don’t wish this job on any human

being. So I told him that very directly. So he has support and a

lot of help going in.

But I’m deeply concerned about how we deal with science, especially at EPA. We had some awful problems historically, and I have

read a little position paper on where you all are. I get the sense

that you support the idea of an Under Secretary for Science. Could

you address that, Mr. Connaughton? I am not sure if I am clear

on your position.

Mr. CONNAUGHTON. We do support that position and we actually

look forward, as we analyze the legislation and look forward to that

specific issue, the opportunity to bring under one Under Secretary

the variety of science programs that exist in EPA at different locations. And so to bring some order to the overall scientific enterprise

at the Agency would be helpful. To have someone at the level of

Under Secretary co-equal with other Under Secretaries also then

will enhance the opportunity of the science function of the EPA to

intersect with the policy operation of EPA and the administrative

side of EPA in a much more coherent way, all without changing the

underlying statutory mission, the underlying directives from Congress as to the various programs, but again create that opportunity

for a much, much better coordination function with the right level

of political appointee that we can attract into that kind of a position.

Mr. CANNON. Thank you. Ms. Horinko.

Ms. HORINKO. I completely agree with what Jim said, and I want

to note that while we certainly support any legislative efforts to

strengthen science, including establishment of an Under

Sectretary, I do want to acknowledge, however, that science can’t

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be completely walled off from the program offices. We want to

make sure there is good coordination and integration so that the

best available science that is elucidated by this part of the Agency

is then reflected in proper regulation, implementation, and decisions in the field.

So we look forward to working this out with the subcommittee

in our future discussions because the devil really is in the details

here, but I think the concept is a good one.

Mr. CANNON. If we did not do legislation to elevate EPA to Cabinet level, would it make sense still to reorganize it and create the

new Under Secretary for Science and the related aspects of this

legislation?

Ms. HORINKO. We could certainly think about it. It would be

hard as a practical matter. As an administrative agency we technically don’t have an Under Sectretary.

Mr. CANNON. It would have to be a different title.

Ms. HORINKO. It would have to be some new title or structure or

function, and I would have to sit down and talk to you about how

we could do that. And I am not sure how we could do that other

than as we currently have, which is an Assistant Administrator

who reports directly to the Administrator, who Governor Whitman

elevated by naming our Assistant Administrator for Research and

Development as her Chief Science Advisor last year. We have

taken some good administrative steps as well as some substantive

steps to strengthen peer review, risk assessment, modeling policy

and grants policy. I think we are doing many things administratively. But Cabinet elevation would give us more opportunity to

think about restructuring.

Mr. CANNON. Do you need legislation to add or change the titles

or duties of an Assistant Administrator?

Mr. CONNAUGHTON. The current statutory authority provides

flexibility as to what the Assistant Administrators are called in

their overall function, although those are pretty well established

after time. What it does not allow for is some of the hierarchical

structures that a Cabinet department would otherwise command in

terms of how those offices relate to each other. And that is where

the good work that EPA has done with advancing their science program with creating the post of a science advisor has helped. The

science advisor is still an Assistant Secretary or the Assistant Administrator level.

Mr. CANNON. Just before my time expires, let me point out that

we have established a Science Caucus in Congress. We intend to

work with you or oversee or relate closely with what you do there.

In addition there, I sit on the Judiciary Committee where I am the

chairman of the Commercial and Administrative Law Subcommittee, a very important component of our jurisdiction. And my focus

is going to be on how we use science, and I expect to work with

you on these issues in the future.

Mr. OSE. Thank the gentleman.

Mr. Connaughton, my earlier questions, you were generally supportive of the concept of a Bureau of Environmental Statistics. You

had some input. Is your input embedded in your testimony?

Mr. CONNAUGHTON. It is embedded in Ms. Horinko’s testimony.

Mr. OSE. So we will be able to pick that up.

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Ms. Horinko, as proposed in section 8 of my bill, do you support

the creation of a Bureau of Environmental Statistics?

Ms. HORINKO. We do indeed support the creation of such a bureau with some clarifications—modifications to enhance the ability

to share information among sister agencies, to help make that bureau essentially function the way bureaus such as the EIA and

BLS function, to enhance confidentiality of information that is collected, and better define its mission consistent with these other

agencies, and also just simply to streamline operations and reduce

duplication. So some minor modifications, but we do indeed support

the concept as outlined in your bill.

Mr. OSE. So the privacy or the respect for the privacy of the information is an issue that you are trying to address with your testimony citing CIPSEA.

Ms. HORINKO. Yes.

Mr. OSE. In talking about protecting individually and corporately

identifiable data within CIPSEA, which provisions are you specifically referring to as being appropriate to embed in my legislation?

Ms. HORINKO. There are several specific things in CIPSEA that

would enhance your legislation. First, we all think the definitions

of statistical agencies and statistical activities would really help to

clarify the mission of the Bureau of Environmental Statistics and

bring it on a level par with the other statistical agencies in the

Federal Government.

Mr. OSE. Do these other statistical agencies in the Federal Government, do they have such definitions in their authorizing language?

Ms. HORINKO. I believe that they do.

Mr. OSE. There is a template we can go to.

Ms. HORINKO. Absolutely. And that is what we are attempting to

do is move to that template.

Mr. OSE. Why is this additional confidentiality template language important?

Ms. HORINKO. It’s important for two reasons. First of all, without

the CIPSEA protections, we can’t share information from other

Federal agencies because they are prohibited from doing so unless

we are also covered by CIPSEA. So this would really have to improve coordination, cooperation, prevent duplication of effort.

The second thing is we are very concerned about protecting information that is submitted by survey recipients, businesses, individuals, information that should be kept private. The new BES should

be able to aggregate data, roll it up and tell us what it means to

the country. But we want to protect donor information and CIPSEA

allows us to protect donor information.

Mr. OSE. And apparently there is a reciprocity requirement in

terms of other agencies or departments giving you information. If

you don’t have that same reciprocity, they are prohibited from giving it you. Is that statute or regulation?

Ms. HORINKO. I believe it is the CIPSEA law itself.

Mr. OSE. You simply can’t do it. You can, but you wouldn’t look

good in stripes.

Ms. HORINKO. That’s right.

Mr. OSE. When EPA published its draft State of the Environment report this past June, sections of the report were revised

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after the administration reviewed its content. Now the highly respected EIA, the Energy Information Administration, does not require the EIA’s administrator to even seek approval from the Department of Energy or the White House in creating or publishing

EIA’s reports. And that is one of its great values to Congress.

I suppose this question is for both of you, Mr. Connaughton and

Ms. Horinko, do you support the same political independence for

the BES?

Mr. CONNAUGHTON. We do support the political independence of

BES and they need to put that in context because it is the statistical function of the agency that is important. If the bureau’s mission is so broadly defined as to get into policy analysis and other

similar types of analytical exercises that crosses the line back into

the policy and program domain, that is subject to statutory oversight and other kinds of internal policymaking oversight and that

would create an issue.

We don’t encounter that with the Bureau of Labor Statistics nor

do we encounter it with the Energy Information Administration,

because they have narrowly defined statistical development missions.

Mr. OSE. As crafted, with the caveat having to do with CIPSEA,

would the BES as envisioned in this legislation enjoy that same

sort of defined rule?

Ms. HORINKO. Yes, I think so, Mr. Chairman. Because adopting

those definitions of statistical agencies and statistical activities defines an appropriate role for the BES on the same par as the BLS

and EIA. So having that appropriate role well defined, as it is in

CIPSEA, then provides the assurances that function, the statistical

function, should enjoy that independence.

Mr. OSE. Gentleman from Massachusetts.

Mr. TIERNEY. Thank you. You touched on an area that has me

very, very concerned. Arguably this is one of the most secretive administrations that we’ve ever experienced and their track record is

just horrendous: the fact the GAO had to sue just to try to get information about their energy policy and how it was comprised and

then was strong-armed into dismissing the suit; the fact the

Congress’s request for information has been largely ignored; the

public and the public’s request has been ignored.

Getting into this area concerns me to no end that this is going

to be a method from keeping information from the public that we

are entitled to. In your testimony you address the need to keep certain information collected by the Bureau of Environmental Statistics confidential. Currently the EPA carries out entire programs

such as the toxic release inventory that rely on providing public information in lieu of establishing control requirements. The Clean

Air Act specifically prohibits the EPA and provides that it cannot

withhold from the public any information that constitutes emissions data regardless of whether the entity considers that information to be confidential business information.

So I am asking you, having looked at this language in the bill,

does the administration believe that language would in fact limit

the release of any information that the EPA otherwise has the authority to collect?

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Ms. HORINKO. I don’t believe this bill in any way limits the release of any information that we would otherwise collect. Our current policy now is to release information unless it is protected by

FOIA or by specific confidentiality provisions such as confidential

business information. This bill does not affect that in any way.

Mr. TIERNEY. My concern is that if EPA should decide to consolidate certain information collected in the bureau, whether or not

this language seems to prohibit it from releasing that information,

even if it’s data that was on plant emission of air pollution.

Ms. HORINKO. We certainly don’t read the bill that way.

Mr. TIERNEY. Would you take a look at section 8(h)(2) in the bill?

Later write me a little note, in the context of what I just said to

you; and when you read that, whether or not you might have the

same concerns or the public might have the same concerns where

you try to consolidate information from other sources by putting it

in that context, you might then be able to avoid responsibility

under other acts of actually disclosing information particularly

with respect to air emissions.

Ms. HORINKO. We will take a careful look at that. That is certainly not our intent.

Mr. TIERNEY. Would the administration support an addition of

explicit language protecting the release of all the data that EPA

would otherwise have the authority to collect and release?

Ms. HORINKO. We would certainly support something along the

lines of this bill that does not affect any of the other information

protections that are afforded to EPA or obligations.

Mr. TIERNEY. Will you work with us for language on that?

Ms. HORINKO. I think our intent is the same.

Mr. TIERNEY. Mr. Connaughton, when you testified before the

subcommittee last Congress, you indicated that any mission statement of the EPA should be flexible enough to allow for the evolution of the Department’s work and focus. The inclusion of a mission statement to protect the public from what this bill says is unreasonable environmental risk seems to me very narrow and seems

to overemphasize setting priorities on risk assessment rather than

on a broader view of the Nation’s environmental health.

Let me give you some examples of that. I mean right now, the

purpose of the Clean Air Act is to protect and enhance the quality

of the Nation’s air resources. The mission of the Clean Water Act

says the national goal that the discharge of pollutants into the navigable waters would be eliminated by 1985. But I want to note that

neither of them seems to qualify the degree to which the Agency

is to move on that, and this idea of unreasonable risk seems to me

to be vague, ambiguous, and focuses it more on trying to determine

what the cost/benefit is. And I want to know if you share that ambiguity, because I don’t want this to become an idea of caused basis

stuff as opposed to going out and aggressively taking affirmative

action to clean up our environment, which those other acts seem

to indicate that the EPA should do. Your general comments on that

and how you feel about this law and whether or not it does limit

that.

Mr. CONNAUGHTON. First and foremost, EPA went through a

mission exercise this past couple of years and simplified their mission statement to the straightforward one of the mission being to

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protect the human health and environment. Reasonable risk is inherent in any risk management activity whether it is at EPA or the

FDA or even in the land management side of things at the Department of Interior. Anybody engaged in the risk assessment/risk

management exercise, there is the question of reasonableness

which has to do with scientific knowledge and information, has to

do with cost and benefits, has to do with technological feasibility.

So in terms of the use of the word ‘‘unreasonable’’ risk or to assure that risks are reasonable, that doesn’t run counter to how professionals in this area deal with those issues. So I don’t see anything insidious in the expression.

But to the extent that the committees will work out language

surrounding a very high-level mission statement, we are happy to

work with you on that. But I don’t see anything insidious in the

expression per se.

Mr. TIERNEY. May not be the expression. I have faith in my colleague here, but the administration in their environmental record

I don’t, and how they might use as something we see as something

that is not that serious and move it in the other direction. That I

have a great feel, given their track record, and I probably would

be a lot happier if that language was just eliminated and we stick

with the very simple goal that you said the Department has gone

through and worked on, rather than to give them license to move

down that path, because unfortunately with this group, words are

for and often used as an escape hatch.

Mr. CONNAUGHTON. I would strongly disagree with you given the

track record. This EPA under the Bush administration has done

and will do more to protect our air, bring air pollution down, do

more to protect water and bring water pollution down and to pursue some very innovative programs, including the brownfields program which is of such great benefit to States like Massachusetts,

to really clean up the land. So I would flat out disagree with you

on that point.

Mr. TIERNEY. But I have to part with the question and say when

are they going to start? And what they have done so far in terms

of their policy pronouncements are exactly opposite of what you are

saying. And that’s why I think they are generally perceived and

understood to be probably the worst administration on the environmental protection we have seen.

Mr. OSE. Gentleman from Utah.

Mr. CANNON. Nothing.

Mr. OSE. Gentleman from California.

Mr. WAXMAN. Thank you, Mr. Chairman. The Bush administration is asking Congress to elevate EPA to a Cabinet-level department, yet the administration’s main environmental initiative has

been a comprehensive campaign to weaken EPA and environmental

protection. This administration has undermined EPA’s authority

and its credibility.

For example, just a few weeks ago, you signed a rule gutting the

new source review requirements. This rule allows increased emissions from power plants, one of the largest sources of air pollution

in the United States today. You claimed, however, that this rule,

‘‘will not affect emissions.’’ That was reported by the Washington

Post. Do you stand by that statement?

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Ms. HORINKO. I do stand by that statement, Congressman. This

rule is not a rule that is about the environment. This rule is about

planning and process. The environmental safeguards of the Clean

Air Act, the Acid Rain Program, all of our maximum standards,

those safeguards remain in place and ratchet down from these facilities.

Mr. WAXMAN. I don’t think your argument is credible. The new

source review requirements only apply if a source increases emissions, yet polluters need this exemption. That’s because they are

increasing their emissions.

Second, the acid rain provisions only cap one pollutant, sulfur dioxide, and they only apply to power plants. They don’t limit other

pollutants from power plants such as nitrogen oxides and mercury,

and they don’t limit pollution from the other 16,000 facilities covered by your rule.

Third, we would get dramatic emissions reductions if EPA enforced the new source review provisions rather than gutting them.

Just last April EPA trumpeted a $1.2 billion NSR settlement as

the, ‘‘largest Clean Air Act settlement with a utility in the history

of EPA,’’ eliminating over 200,000 tons of air pollution per year.

Yet the legal rationale for the NSR rule imperils the ongoing NSR

enforcement cases, and you have said you are unlikely to bring any

new enforcement actions based on the old rule. If the new rule

caused EPA to lose even one ongoing enforcement case, it would affect emissions. But if the rule stands, it may largely derail the 5-

year NSR enforcement effort. This would dramatically increase

emissions compared to what we could have otherwise achieved.

Ms. Horinko, wouldn’t it be more straightforward for the administration to admit that this rule allows increased emissions compared to enforcing existing law? Why not have an honest debate

about whether we should weaken environmental protections to

save industry money?

Ms. HORINKO. Congressman, a few things in response to that.

First of all, years worth of litigation resulted from the initiation

of the New Source Review enforcement program, and after 8 some

years of litigation, the first decision that we got in the Ohio Edison

case in August hasn’t even reached the damages phase. So we’ve

yet to see any environmental improvement after years of litigation

in that case. And even that case where prior legal theory was

upheld, the judge said case-by-case enforcement policy is not the

way to establish the law of the land. There should be some type

of regulation that’s uniform.

Second, we did conduct a regulatory impact analysis that’s contained in the final rule. I recommend it for your reading. It is a

very lucid and very compelling rationale for this rule, and we will

be pleased to sit down with you to discuss any of the specifics. We

will continue to monitor the implementation of this rule to make

sure that it is done in a way that is environmentally neutral or

even improves environmental protection.

Mr. WAXMAN. Well, I hear what you’re saying, but I don’t think

it’s very persuasive, and I don’t think you seem to have persuaded

many others.

I have here, Mr. Chairman, about 60 editorials from around the

country all decrying this new rule, and I’ll read just a few of the

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headlines. Miami Herald says, ‘‘EPA in retreat. U.S. going soft on

the Clean Air Act.’’ Pittsburg Post Gazette says, ‘‘Dirty air, dirty

politics.’’ Tennesseean says, ‘‘The skies are murkier with ‘clean air’

rule.’’ Omaha World Herald says, ‘‘Ignoring the evidence: Another

black eye for Bush’s record on the environment.’’ Denver Post says,

‘‘Politics of pollution.’’ The Buffalo News says, ‘‘Air pollution: The

day the President sold the skies.’’

I’ve been discussing the NSR rule, but it’s only the most recent

and most egregious example of this administration’s ongoing attack

on environmental protection. This record calls into question the administration’s purpose in supporting this EPA elevation bill.

Thank you, Mr. Chairman.

Mr. OSE. I thank the gentleman.

Mr. Connaughton, the Under Secretary for Policy Planning and

Innovation Section, which is Section 7(d), outlines the duties for

that person; and during this subcommittee’s prior hearings witnesses testified that EPA’s program offices frequently do not coordinate their efforts. They conduct their own regulatory science and

in some cases impede environmental innovation. In other cases,

program offices have occasionally obstructed the efforts of other offices within the Agency. In general, Mr. Connaughton, does the administration agree with the concept of a centralized policy division

such as the Under Secretary for Policy, Planning and Innovation?

Mr. CONNAUGHTON. The short answer is yes. The more detailed

answer that fills that out is we have had very good experience. The

two examples I gave, the Department of Interior, Department of

Transportation—with an Under Secretary level type function for

policy that enables that horizontal coordination that’s so important

as we get into the next century of multimedia and more complex

solutions that are needed. So a lot of the think tank work and

other work that’s contributed to where we are today toward the

recommendation for such a function I think is underscored by the

success of the policy operations of these other departments.

Taking that horizontal view, it doesn’t diminish the programmatic power and authority of the individual Assistant Administrators or just the secretaries if elevation occurs. It won’t diminish that but will enable somebody who’s responsible for looking for

opportunities in one program office and how they can link together

with opportunities in another program office, and that’s where the

next generation of solutions resides.

Mr. OSE. And that would be the case regardless of who’s in the

White House or otherwise?

Mr. CONNAUGHTON. That’s correct.

Mr. OSE. Now, Ms. Horinko, does the EPA support an Under Secretary for Policy, Planning and Innovation as proposed in this section of the bill?

Ms. HORINKO. Yes, we do, and I couldn’t have put it more eloquently than Mr. Connaughton.

Mr. OSE. Thank you both for your testimony on that. We have

heard concerns from many groups regarding the lack of coordination between the office of enforcement and the program offices. Recently some States—and we do have some folks who will testify in

the second panel—have expressed frustration over the issue of

blending at publicly owned wastewater treatment plans.

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Without getting into the details and merits of the issue, regardless of which side you’re on, the bottom line seems to be that the

EPA’s enforcement office has been enforcing one set of standards

while EPA’s Office of Water has been issuing another. The result

is that States and owners of wastewater treatment plants are receiving inconsistent treatment from different EPA offices.

One of the objectives of this legislation is to coordinate the policy.

Does this legislation assure us or is this legislation a step in the

right direction toward making the reality in the field that enforcement and policy offices work more closely together?

Ms. HORINKO. This legislation is certainly a step in the right direction. I’m not sure that any Cabinet department or agency could

assure that all 20,000 employees are all on the same page at any

one time, but I think it will help with that important coordination

function so that the enforcement in the program offices is more

closely aligned.

Mr. OSE. I have to come back to this blending issue which is very

important in California. It’s a huge opportunity for some of my attorney friends in California.

Are you saying that we can at least take a positive step toward

addressing, if you will, what might be conflicting input that a local

agency receives by coordinating this policy issue? That’s my objective, and I want to see if you read it the same way.

Ms. HORINKO. I do read it the same way.

Let me add, though, on blending that we are moving now even

administratively to try and solve this very important issue. We’ve

heard from municipal operators of POTWs. We’ve heard from

States. We’ve heard from regulatory agencies at the local level, environmental advocacy groups. A number of folks have requested

clarification on this issue. So we are actually planning to publish

for comment a draft policy on this issue that will ensure that——

Mr. OSE. The policy thing is not what I’m after. I’m after the consistent application of whatever the policy is. I’m trying to keep this

discussion to structure.

Ms. HORINKO. Well, as a practical matter, this structure will help

facilitate that kind of coordination between the program and the

enforcement offices.

Mr. OSE. All right. Thank you.

The gentleman from Utah.

Mr. CANNON. Let me just followup on this discussion a little bit.

What I understand you’re saying is that, under Section 7(e) of the

bill, the Under Secretary for Implementation, Compliance and Enforcement, that position will have a tendency to make consistent

the rulings in the various States, the various regions so that both

the States and the people being regulated have the ability to be

more—they will be able to predict better what they need to do to

comply.

Ms. HORINKO. Yes. We do have some slight modifications to

make to give us a little more flexibility in terms of how we manage

our programs, but in general, integrating the program office operations with the enforcement office will, I think, improve our ability

to have consistent application and interpretation of the laws.

Mr. CONNAUGHTON. And I would note the most important feature

is actually the prevention of those kinds of inconsistencies. Because

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you end up with, again, a few people at the horizontal view who

will be better able to anticipate some of these inconsistencies that

invariably will happen, whether it’s region to region or between the

enforcement office and the program office as they are evolving their

programs. So it is that group at the top that will—again, I think

will have a better preventive function to head some of those uncertainties off.

Mr. CANNON. Thank you very much.

Mr. Chairman, before I yield back, I note that the gentleman

from California has departed. Unfortunately, I had wanted to know

if the New York Times had opined on this issue of the roll of EPA

under this administration, not to suggest that the media has any

bias at all or that the media has any consistency or integrity on

this issue.

With that, I yield back the balance of my time.

Mr. OSE. The Chair thanks the gentleman.

Mr. Connaughton and Ms. Horinko, we want to thank you for appearing before the subcommittee today and testifying on this particular legislation. We appreciate you taking the time. We may

have some questions so we may submit them to you. We’d ask for

a timely response.

Ms. HORINKO. Will do.

Mr. OSE. The record stays open for 10 days for submittal questions and the like. We thank you both. Have a great day.

Ms. HORINKO. Thank you very much.

Mr. OSE. If we could get the second panel to gather at the witness table, we’ll take a very short recess here while they do that.

[Recess.]

Mr. OSE. OK. We’re going to reconvene here. I want to thank the

witnesses for gathering at the table quickly and expeditiously. I’m

told three of you have planes to catch here. OK, four. What time

is your plane?

Mr. CHISUM. 5:45.

Mr. ROITMAN. 6 o’clock.

Mr. HAMMERSCHMIDT. 6:30.

Mr. GUZY. 6:30 also.

Mr. OSE. Oh, Lord.

Mr. Elliott, Dr. Guzy, I appreciate you offering to stay. We’re

going to ask you for a little bit of your indulgence here.

We’re going to go across left to right to Dr. Hammerschmidt, and

then we’re going to jump to Mr. Guzy, and we’ll come back to Mr.

Elliott and Dr. Moghissi.

Now, I want to welcome to our witness table our second panel.

The first is State Representative Warren Chisum with the Texas

House of Representatives. Welcome. We have Howard Roitman, director of environmental programs for the Colorado Department of

Public Health and Environment. Welcome. We have Dr. Ron Hammerschmidt, who is the director, Division of Environment for the

Kansas Department of Health and Environment. Welcome, Doctor.

We have E. Donald Elliott, former EPA General Counsel and current partner at Willkie, Farr & Gallagher LLP. Welcome. We have

with us Dr. A. Alan Moghissi, who is president of the Institute for

Regulatory Science. Doctor, welcome. And we also are joined by

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Gary Guzy, who is the former EPA General Counsel and current

partner at Foley Hoag LLP. Welcome.

Now, as is our practice, if you’d all rise, we’ll swear you in.

[Witnesses sworn.]

Mr. OSE. Let the record show the witnesses answered in the affirmative.

Our first witness on the second panel is the Honorable Warren

Chisum with the Texas House of Representatives.

Sir, we have your testimony, as we have everybody else’s. We

have read it. Our practice here is to recognize you each for 5 minutes to summarize. We look forward to your testimony.

STATEMENTS OF STATE REPRESENTATIVE WARREN CHISUM,

TEXAS HOUSE OF REPRESENTATIVES; HOWARD ROITMAN,

DIRECTOR OF ENVIRONMENTAL PROGRAMS, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; DR.

RON HAMMERSCHMIDT, DIRECTOR, DIVISION OF ENVIRONMENT, KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT; E. DONALD ELLIOTT, FORMER EPA GENERAL COUNSEL AND CURRENT PARTNER, WILLKIE, FARR & GALLAGHER LLP; DR. A. ALAN MOGHISSI, PRESIDENT, INSTITUTE

FOR REGULATORY SCIENCE; AND GARY S. GUZY, FORMER

EPA GENERAL COUNSEL AND CURRENT PARTNER, FOLEY

HOAG LLP

Mr. CHISUM. Thank you, Mr. Chairman. Having served 16 years

listening to the testimony, I assure you I’ll be brief and be within

your 5 minutes.

In my legislative career, I served as chairman of the ALEC committee, the NCSL vice chairman of their environmental committee

as well as the energy council. I am currently the chair of the Southern Legislative Conference Energy Committee and Environmental

Committee. Likewise, being in Texas, we work along the border on

various environmental issues across borderlines in an effort to

bring us into compliance with the Clean Air Act.

To be very upfront about it, I think making EPA a Cabinet-level

position probably has a lot of credibility. I think it would put us

on an equal footing with some other countries and give more credit

to the fact that surely we make the environment a very high priority here in the United States.

On the issue that I particularly liked about the bill, on using

peer-reviewed science in order to make policy and compiling that

with statistical data I think that is a great way to make regulation.

We try to do that in the State of Texas, but actually most environmental policies in the States nowadays are complying with Federal

law, not actually trying to create State laws that do anything other

than comply. We appreciate what EPA does in pursuing our bad

actors. When we find bad actors, we can be sure that the Department of Justice applies the enforcement, and many, many times

that helps us in the State of Texas as we pursue our goal to have

a cleaner and better environment.

We also, being an agricultural production State, think that it’s

imperative that we give special emphasis on making sure that we

are able to produce our food and fiber from our farmers. We think

that they can be good stewards of the land, and with the knowledge

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that they can receive from science, they can do a good job. Likewise, we think it’s essential that we not give up our food production, as we have oil production, to the foreign countries.

Finally, Mr. Chairman, I would like to relate to you an incident

where we were trying to come up with a State implementation plan

[SIP] in order to comply with the Clean Air Act, and everything we

tried we came up, we were still short, and so we borrowed from

California what was known as the Carl Morio program, where the

State of Texas taxed its citizens $800 million in order to create an

innovative program whereby we could go out and retrofit on-road

and off-road diesel engines, thereby bringing our regulation into

compliance with the State of Texas. This would not have worked

had the regional director not had the ability to have flexibility in

order to allow our SIP program to be approved, provided that we

spend this kind of money on new, innovative programs. So some

flexibility at the regional level is essential.

I think that the States can work with EPA regional offices and

can come up with better ideas to protect the environment, and I

would encourage you to make sure in your program that you make

sure that States have the ability to work with the regional offices

and not have all policy made here in Washington, DC.

With that, Mr. Chairman, I’ll yield the rest of my time.

Mr. OSE. I thank the gentleman. His word is good.

[The prepared statement of Mr. Chisum follows:]

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Mr. OSE. Our next witness is Howard Roitman.

Sir, you’re recognized for 5 minutes. Thank you for joining us.

Mr. ROITMAN. Good afternoon, Mr. Chairman and distinguished

members. Thank you for the opportunity to testify on H.R. 37 and

H.R. 2138 on EPA elevation to Cabinet status.

We conceptually support H.R. 2138 because it makes tangible

steps toward bringing our environmental laws into the 21st century

through the reorganization of EPA to strengthen science and to

provide more consistent policy direction and implementation across

the Agency.

Current laws were designed to resolve discrete problems with air,

land and water. This single media approach has been effective in

achieving environmental improvements but has resulted in a fragmented patchwork of regulatory requirements that makes it more

difficult to address cross-media environmental challenges.

So today we are at a crossroad. You have the opportunity to provide direction for environmental programs to move in the future.

If we open one door, we continue a single media command and control approach that often discourages innovation and efficiency. This

path will continue to require technology-based controls without considering their cross-media impacts.

To illustrate our point, if the air program requires a company to

install a control device such as a wet gas scrubber, it typically considers the percentage of air emissions reduction. We don’t consider

the hazardous waste generated that must be managed, the system

that must be built to treat the wastewater, the increased energy

consumption which increases air emissions, the increased water

usage or any other increase in natural resources consumed. Instead, the program simply considers the scrubber can control 99

percent of the sulfur dioxide emissions out of a stack.

In the alternative, the company could use a catalyst additive that

once spent or used is purchased by a cement manufacturer which

uses it as product in place of mining additional limestone, thus

avoiding an environmental impact. The catalyst does not generate

wastewater, nor does it use as much energy or water. The catalyst

will control 95 percent of the stack emissions.

We call this approach the environmental balance sheet in making environmental decisions where we consider the full environmental costs and benefits of all the options. This approach is discouraged and at times not allowed under the current system due

to significant institutional policy and regulatory barriers.

The current path drives companies’ environmental staff to be

paper pushers instead of environmental problem solvers. Companies spend an inordinate amount of time and resources providing

information.

In our experience, the environmental professional in this country

is one of the most underutilized resources in our companies. This

person can be a profit center for the company, driving ideas for

greater efficiencies, reduced costs and better environmental benefit

if given the tools and flexibility to do so.

So what is the alternative? It would require agencies to make environmental decisions considering the environmental balance sheet.

This approach allows companies to select the most efficient approach such as preventing pollution, engineering the use of toxics

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out of products and designing products that have no waste stream.

To pursue this direction requires better information to use when

making decisions. This is why the creation of a Bureau of Environmental Statistics is important.

Agencies will be required to continually assess, using data and

science, the greatest environmental issues that need to be addressed and whether the current programs are successful. This will

not only encourage but make essential to success innovative approaches. It will also ensure that we have identified the real problem, the causes behind it and allow us to evaluate the alternatives.

This path has several benefits. First, it will require EPA to consider the full impact of its decisions. It will encourage innovative

programs and ideas to be embraced by the Agency. It will garner

even more significant environmental benefits; and, finally, it will

encourage companies to search for the most efficient approach to

reducing environmental impacts.

Colorado is currently implementing this approach, but it isn’t

easy. One of the barriers that we have to ensure against is different approaches and interpretations taken by different offices of

EPA. In the past, we have found differences among the program offices, between regions and headquarters, and among regions. What

we are looking for is a Federal system that requires cross-media

approaches and encourages and integrates innovations across the

board. The goals of the system would be to collect better data and

use it to make environmental decisions.

Thank you for your time and attention. I would appreciate the

opportunity to supplement this testimony. I’ll be pleased to take

any questions you may have.

Mr. OSE. I thank the gentleman.

[The prepared statement of Mr. Roitman follows:]

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Mr. OSE. Our next witness is Dr. Ronald Hammerschmidt. He is

the director of the Division of Environment for the Kansas Department of Health and Environment.

Sir, welcome. You’re recognized for 5 minutes.

Mr. HAMMERSCHMIDT. Thank you, Mr. Chairman. I am glad to be

here today to speak on the two proposals under consideration.

My professional experience is that of both laboratory chemist and

environmental professional, and I have spent time in both the laboratory and office in policymaking in my 23 years with the Department.

We like many other agencies have a love-hate relationship with

EPA. We work together. We depend on EPA to provide us with a

significant source of funding, and we always receive direction on

our programs, either in the form of guidance, regulation or sometimes under the guise of partnership. Many of our programs are

joint programs such as that to protect the safe drinking water in

the State. There are even times when State programs may have

even actually progressed beyond those of EPA; and as is the case

in Kansas, we’ve been in the regulatory business for confined animal feeding operations for a long time and feel that EPA is finally

catching up to us.

We have many frustrations in dealing with EPA. They include

slow decisionmaking, a lack of understanding of State programs

and their challenges, rigid approaches to problem solving and inconsistent guidance between regions.

For me personally, one of the bigger frustrations is the amount

of time it takes for EPA to deal with Kansas’s multiple water quality regulations. The net result of this has been numerous lawsuits

have been filed against us and Region VII which don’t make us any

better in protecting water quality but do take a significant amount

of time.

There are decisionmaking processes within EPA that we can cite

that we have experienced with multiple interpretations of the same

guidance among various regions. Something that we may enforce in

Region VII may not necessarily be even accepted in Region VIII or

enforced in Region VIII.

In addition, regional managers must routinely confer with EPA

headquarters, and they may or may not receive a response or authority to move ahead on an issue.

States have a need for scientific support for our decisionmaking

processes. We are often asked by our State legislators and policymakers, what’s the scientific and technical basis for what you’re

trying to do? We need both science, data and information. Unfortunately, there are cases when this is lacking.

The creation of an independent structure charged with science

and information is an excellent proposal. We need quality science

in all aspects of environmental protection. Although I avoid the use

of the word ‘‘good’’ science, we do need rigorous peer-reviewed

science, and we also need to convert a great deal of that statistical

data into information that our citizens can understand and that we

can use. I see the creation of a Bureau of Environmental Statistics

as a very, very positive step.

In addition, the administrators, managers and staff of EPA—and

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tion—should also be charged to be knowledgeable with understanding the programs they’re writing regulations for. If one is writing

a regulation for public water supplies, one should have information

both on a scientific and technical basis but also direct experience

in what it takes to run those particular programs. It would be helpful if that EPA person in headquarters writing the regulations had

actually ever been to a drinking water plant and seen how it

worked.

An important function of this level of the Department, and that

of the implementation, compliance and enforcement structure, is to

bring consistency and equivalency to decisions in the Agency. These

decisions are extremely important to States. They’re also important

to those that we regulate. We, like the batter in the major leagues,

are looking for consistency in how to predict what the rules are. It

would be nice to know what the strike zone is which sometimes

moves on both us and the regulated community.

In addition, the last point I’d like to make before I close is, as

a State program director, I’m very interested in maintaining the

ability to go to the top. I think it’s important for us to be able to

influence decisionmaking within the Department, and I actually

see this as an important role for the Under Secretary for Implementation, Compliance and Enforcement, should be to be and act

as a State’s advocate within the structure at U.S. EPA or the Department of Environmental Protection.

In conclusion, I want to say that we are supportive of elevation

to Cabinet status, but we think many of the ideas that you’ve put

in H.R. 2138 are a very positive approach to bring better science

and more consistent decisionmaking to EPA.

With that, I thank you.

Mr. OSE. I thank you, Dr. Hammerschmidt.

[The prepared statement of Mr. Hammerschmidt follows:]

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Mr. OSE. Now, as we discussed, we’re going to go all the way

over to Mr. Guzy who joins us. He is here. He has previously

served two decades in practicing environmental law. He had the

privilege of serving as the EPA General Counsel during the prior

administration. He has practiced in the private sector, and he’s

represented EPA during his tenure at the Department of Justice.

Sir, you’re welcome. You have 5 minutes.

Mr. GUZY. Thank you, Mr. Chairman, Mr. Tierney and members

of the committee for today’s invitation. I commend the chairman for

his continued leadership in addressing this very important issue.

Former Administrator Reilly described EPA as ‘‘uniquely the environmental overseer, watchdog and point of reference regarding

the status, needs and problems of ecology and environmental

health in America,’’ surely a Cabinet-level role.

I urge the committee to seize the current opportunity once and

for all to elevate the Agency, but this will only happen if the implementing legislation is straightforward and unencumbered by limitations on EPA’s authority.

H.R. 37, introduced by Congressman Boehlert, meets this test.

H.R. 2138, in my view, unfortunately does not.

The history of efforts to elevate EPA could not be clearer. Time

and again these efforts have stalled because an unencumbered approach became laden by controversial concerns. Please let’s not

make the same mistake again.

EPA’s charter must remain fluid and nimble to respond to a future that is impossible to predict. When I first came to EPA in

1994, its Web sites received approximately 100,000 hits per year,

and today they receive over 125 million hits per month. What a

change in just a few years.

H.R. 2138’s mission statement, limited to some vague notion of

unreasonable risk, is unfortunately value laden, potentially too

rigid, at odds in spirit with individual statutes and certainly will

be controversial.

Would the new Department even be able to pursue under this

standard some of the very areas of focus now recommended by

NAPA, the National Academy of Public Administration, such as addressing climate change and nonpoint source pollution, their top

priorities? If Congress wants to change the standards for protecting

our air, our water or our land, it should have that debate in the

context of the individual legislation and not under the guise of

changing the Agency’s name.

On science, I urge you to be cautious when you hear sound

science as a justification for change. In the late 1990’s, during my

tenure at the Agency, the poster child for bad science repeatedly

cited by Congress and industry was EPA’s association of elevated

fine particles and premature deaths. These criticisms at the time

ignored the extensive peer review that had occurred both outside

and inside the Agency, and since then these criticisms have been

discredited by an independent review body, by ample newly developed peer-reviewed science and even through the crucible of litigation all the way to the Supreme Court, where EPA received a

unanimous victory.

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Too often claims of flaws in EPA science have been used by advocates to bolster mere policy disagreements, and some scientific uncertainty is inevitable as a fact of regulatory life.

Other proposed changes to EPA’s structure, while well intentioned, may suffer from unintended consequences. Does placing

regulatory development under the Under Secretary for Policy while

having all regional permitting activity supervised by the Under

Secretary for Implementation mean that EPA will lose touch with

the real-world consequences of its regulatory actions? Does the

Chief Financial Officer have the competence to address regulatory

costs? Can the Bureau of Environmental Statistics’ mission of

transparency be squared with an approach that withholds from the

public any corporately identifiable data?

My point is not that H.R. 2138 does or does not have it right.

It is that these issues are complex and deserve careful analysis.

H.R. 2138 raises important issues about how EPA’s operations

can be improved. I agree with the need to take additional steps to

integrate science into agency resource and regulatory decisionmaking, with strengthened independent statistical data and with

the need to enhance EPA’s ability to move toward creative multimedia approaches, but I recommend you join truly straightforward

Cabinet elevation with the creation of a high-level commission to

report back here on proposed changes to enhance the new Department’s effectiveness.

Now, we’d be remiss if we didn’t root this discussion in the context in which it’s currently occurring. I am very concerned, as I believe the American people increasingly are, that Cabinet elevation

will be seen as nothing more than window dressing if we continue

down the road the administration has been taking on the environment.

The administration claims to want to empower States to carry

out environmental protection, yet it undercuts them when their interests do not neatly align with its own. Within the last few weeks

EPA compelled States to adopt its controversial new source review

changes. The Solicitor General filed a brief in the Supreme Court

opposing important tools that California uses to protect citizens

from its unique air quality problems.

The administration claims to support sound science, yet EPA removed a comprehensive discussion of global climate change from its

efforts to assess the state of the environment. It continues to ignore

the findings made by the National Academy of Sciences at the administration’s own request that climate change impacts are

human-induced and real. It has issued gag orders on perchlorate.

It has not allowed EPA staff to conduct studies of mercury emissions. It has revoked the requirements for science-based plans to

accomplish watershed planning through total maximum daily

loads.

These are just a few examples of an approach that seemingly at

every turn belittles environmental and public health protections.

Achieving the historic step of elevating EPA to Cabinet status,

however worthy, cannot and will not obscure this troubling record;

and I urge you to address these real problems as well.

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Thank you most kindly for the opportunity to testify. I’d appreciate having my full statement placed into the record, and I’d be

pleased to answer any of the committee’s questions.

Mr. OSE. Thank you, Mr. Guzy.

[The prepared statement of Mr. Guzy follows:]

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Mr. OSE. Mr. Elliott, thank you for your patience. You’re recognized for 5 minutes.

Mr. ELLIOTT. Thank you, Mr. Chairman.

I agree with my colleagues that it’s important to elevate EPA to

Cabinet status. I do disagree with my good friend Gary Guzy. I

support the chairman’s bill primarily because of its provisions to

upgrade the role of science at EPA and make other important organizational improvements.

After 20 years of study of the Agency as an academic, I am convinced that the single most important thing we could do to improve

the Agency is to create a high-level advocate for science at the

highest reaches of the Agency. I can’t improve on the report by a

distinguished committee of the National Academy of Sciences in

2000 which said, ‘‘Just as the advice of the Agency’s legal counsel

is relied upon by the Administrator to determine whether a proposal is legal, an appropriately qualified and empowered science official is needed to attest to the Administrator and the Nation that

proposed action is scientific.’’

As I reflect upon my own experiences at EPA as General Counsel, I believe that scientific considerations were, unfortunately, conspicuous by their absence from the high-level dialog at the Agency.

This situation has gotten worse rather than better in subsequent

administrations.

I respectfully disagree with my friends such as Gary Guzy who

think that any kind of changes in Cabinet status legislation will

make it unenactable. I think that is a demonstrably mistaken theory that has been really discredited by history. We’ve had a number of simple elevation bills in the past but they have not been enacted essentially for political reasons. I hope that this time, for a

variety of reasons, it will be possible to elevate EPA to Cabinet status. I think the true test is the one that Jim Connaughton articulated, and that is that Cabinet status legislation should be limited

to truly organizational or structural issues such as creating an

Under Secretary for Science, but there’s plenty of room to do that,

and it would be an important reform.

The problem in my experience is the triumph of politics at EPA.

It’s not that EPA lacks scientific information but rather there is a

reality or a perception that decisions are based on politics rather

than on science. This is a bipartisan disease. We can have abuses

and ignoring of science either of the right or of the left.

Adam Smith, the great political philosopher and founder of economics, once wrote, ‘‘Science is the great antidote to the poison of

enthusiasm and superstition.’’ He should have written that it is a

bipartisan antidote, and science is an antidote for the superstitions

and enthusiasms of either the right or the left.

In my view, the problem is that we don’t have a high-level advocate for science at the top councils of the Agency, and I hope that

the committee and the Congress and the Nation will seize this historic opportunity to strengthen the voice of science at EPA.

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I thank the committee; and Congressman Shays in particular

from my home State of Connecticut. It is a pleasure to be testifying

in front of you as well.

Thank you very much, and I’d ask that my written statement be

made part of the record.

Mr. OSE. Without objection. The Chair thanks the gentleman.

[The prepared statement of Mr. Elliott follows:]

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Mr. OSE. Dr. Moghissi, welcome. Thank you for your patience.

You’re recognized for 5 minutes.

Mr. MOGHISSI. It appears to me that the three former EPA people have been lumped together and, as usual, we all don’t agree.

My perspective is as a former principal——

Mr. OSE. Dr. Moghissi, if you could just take the throat of the

mic, the little extender, and straighten it. The mic is like this. Take

it and go like that. There you go.

Mr. MOGHISSI. Here we go.

Mr. OSE. We need an attorney for some useful purpose. We welcome you, Dr. Moghissi.

Mr. MOGHISSI. I won’t tell my joke on attorneys. I’ll leave it for

a later date.

My perspective is as a charter member of the Environmental

Protection Agency, as a former principal science adviser for radiation hazardous materials, as an academic administrator—I was

assistant vice president of University of Maryland and associate

vice president at Temple University and as a professor at various

universities. I’m a scientist. I’m not a lawyer. I’m not a politician.

Let me briefly say what led to the decision to support the bill

under consideration. We at the Institute for Regulatory Science are

dedicated to the idea of best available science, and my statement

includes details of what constitutes best available science, and I

would appreciate if it’s made part of the record.

Mr. OSE. Without objection.

Mr. MOGHISSI. My frustration started when I arrived in Washington as a principal science adviser in 1977, worked in the various

work groups and recognized how the regulations were written. I

was extremely frustrated at that time when I talked about regulatory science, it was considered a joke, these are contradictory

terms.

Now, we are in the process—we have two studies in progress.

The reason I’m bringing them up is because my conclusions are derived from those two studies. One, the study of science at the

EPA—with all due fairness to my friend on this side on the EPA’s

science. There’s a large consensus within the scientific community

that the EPA’s scientific—the scientific foundation of EPA’s regulations is largely poor.

I have come to the conclusion, as my friend on the right side has

come, that the inclusion of politics—I call it ideology—is responsible for the poor science. I believe, like he does, that the EPA scientists, my former colleagues, are outstanding like other scientists

are, but I believe the management has done some damage to it.

The second study deals with the objective of environmental laws.

Our preliminary study indicates that the objective overwhelmingly

is the protection of the human health, and the human welfare is

secondary to it. The reason we worry about ecology is because ecology can produce products that aren’t fit for human consumption.

Now, if I may be permitted, I have some of my friends who heard

that I’m supporting the bill—they have contacted me and tell me

how could I do that? It is simple. In my judgment, if the EPA is

forced to rely upon independent peer review—and the operative

word is independent—then the cost of the operation of the EPA,

even with the addition of the Under Secretary of Science, even with

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the addition of the Bureau of Environmental Statistics, will be reduced rather than increased. I would be happy to elaborate why I

believe that.

Second, I would appreciate it if a sentence in my testimony—the

written testimony is slightly modified. The section, ‘‘What is best

available science,’’ the first sentence under ‘‘Science versus non-scientific objectives,’’ it should read, ‘‘There is ample evidence indicating that the intrusion of nonscientific objectives would jeopardize

the objectivity and consequently the acceptability of scientific information.’’

Let me go now and suggest—I will use my all diplomatic skills

and suggest that the H.R. 37 should not be considered. What is the

point? The EPA, as the Administrator already said, is already a

member of the Cabinet. She participated in all the Cabinet meetings. So why would anybody want to change it? Passing a law with

all the changes that need to be done simply to change the name

of an agency that is a Cabinet member already to another Cabinet

member? I don’t see why maybe scientists are not smart enough to

know the reason for something like that.

Now, I’m strongly recommending that the word environment in

the bill be defined—and I have a definition. ‘‘Environment means

humans, other living things and environmental media.’’ Environmental media are already defined. Because of the study, as I described, it would meet the objective of the bill.

Second, I’m recommending that the Peer Review Team be renamed to Peer Review Oversight Team and will be given the responsibility to oversee the peer review activities of the Department

of Environmental Protection by appointing specific panels. And I

would be happy to elaborate on that.

Thank you very much, sir.

Mr. OSE. Thank you, Dr. Moghissi.

[The prepared statement of Mr. Moghissi follows:]

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Mr. OSE. Now, this is our fifth hearing on this concept of elevation of the EPA. In our June 6th hearing, this committee heard

testimony regarding problems with EPA’s operations and science,

with the effectiveness of its regulations and its impact on the regulated community, with problems States have with EPA’s regional

and program offices, with the lack of cross-media research, in addition to a number of other issues. The sum and substance of that

was that many of our witnesses believe that, after 30 years of what

they describe as seeking piecemeal improvements, EPA needs to be

reformed structurally.

I’m going to go from my left to my right here. Mr. Chisum,

should Congress make improvements to EPA’s organizational

structure concurrent with its elevation?

Mr. CHISUM. Absolutely. I think that Congress could instruct

EPA or the new Cabinet-level position to work more——

Mr. OSE. Move that microphone closer to you, if you would,

please, because we bought a whole bunch of new mics. So everybody gets one.

Mr. CHISUM. Absolutely, Mr. Chairman.

I believe that the EPA could work closer with the States on new

innovative programs in a way to comply with the EPA’s mandated

policies, and I think that could be written into the legislation and

be a great assistance to the State in meeting the requirements

under EPA.

Mr. OSE. Mr. Roitman.

Mr. ROITMAN. I think there’s no question that there are structural improvements that could address a lot of the concerns that

you raised and that we also echo. I think the challenge is going to

be how to best integrate those goals across whatever organizational

structure Congress ends up enacting, because—say, with the regions, which is where we have our most direct impact, it’s important that they have—they’re coordinated across the functional

areas that you’ve addressed here so that, whatever the structure is,

I think it’s going to be important to have ways into the process

from the policy and innovation part, from the science part as well

as from the implementation part.

Mr. OSE. Dr. Hammerschmidt, should Congress make improvements to EPA’s organizational structure concurrent with elevation?

Mr. HAMMERSCHMIDT. As usual, I find myself in agreement with

my neighbor, Mr. Roitman. The short answer is yes, and I think

we need to focus from our concern as States on science and the

ability for us to work across all portions of the Agency.

Mr. OSE. Mr. Elliott.

Mr. ELLIOTT. Yes, I would agree that’s a very appropriate role for

Congress.

I’d go even farther. If you think about it, there are very few other

ways that the culture of an existing agency like EPA can be

changed to become more scientific other than types of organizational reforms you’re talking about. So I think it’s crucial that the

Congress assume that responsibility; and when you study the field,

there are very, very few other things that can be done to change

the culture of an agency other than the type of organizational

changes you’re talking about. So I think it’s very important.

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Obviously, the challenge is not to micromanage, but I think the

bill has struck a good balance, giving the Agency flexibility for the

future, but in a few areas where there is a broad consensus, bipartisan consensus of the need for improvement, I think the Congress

is doing an excellent job of sending a signal, and I think it will improve matters for the future.

Mr. OSE. Dr. Moghissi.

Mr. MOGHISSI. Yes, I agree with the statement of my friend, Mr.

Elliott, here. Yes, the bill does provide a reasonable balance. As a

member of the work groups, I saw what was going on in these work

groups. Changing the culture by letting the scientists be scientists

and take the science and draw conclusions from it—that culture—

would be extremely important.

Mr. OSE. Mr. Guzy.

Mr. GUZY. I agree that it essentially is Congress’s prerogative

and role to make those changes should it desire to do so. I have

two kinds of concerns about doing that in this instance, as I tried

to outline in my testimony.

First, there are just the practical concerns of whether or not in

so doing the various competing proposals engender controversy that

takes us off course of ever reaching elevation of EPA to Cabinet

status. Because that’s the goal I think we all agree on. Then, second, the substance of any of those proposed changes, are they in

fact potentially counterproductive?

What I would recommend instead is that with straightforward

Cabinet elevation that you create and charge and give a timeframe

for the consideration of changes by an independent high-level body

or commission as well as by the Agency and that they report back

here and then Congress have the opportunity to take that information into account in order to come up with the appropriate changes

after the Agency is already operating as a department.

Mr. OSE. Thank you all.

The gentleman from Connecticut.

Mr. SHAYS. I thank the gentlemen for being here. I missed the

testimony from the first panel, and I regret that.

I just really have a comment in general that—probably not so enlightened, but I’d like your response to it. If Mr. Ose can get this

bill passed, he deserves to be President, because——

Mr. OSE. Just a minute now. Wait a minute. I’m trying to go

home.

Mr. SHAYS. Bottom line is, though, it is such a logical thing to

do and yet it seems so difficult. I have the view that the administration has worked hard to convince people that the environmental

community is mad at it and wants the environmental community

to be mad at it, because there’s no other logic for me to understand

why they have done some of what they’ve done.

I agree with this administration on a whole host of issues, but

when it comes to enforcement of environmental law, I can’t even

explain why we have taken some of the positions we’ve taken. So

my only conclusion is that they have wanted the environmental

community to be mad and express that they’re mad so that our socalled base is pleased with it.

Tell me, what tells you that—first, all of you support this legislation, is that correct? I mean, in general, you want to see a DepartVerDate 11-MAY-2000 10:17 Jun 03, 2004 Jkt 000000 PO 00000 Frm 00277 Fmt 6601 Sfmt 6601 D:\DOCS\89352.TXT HGOVREF1 PsN: HGOVREF1
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ment of Environmental Protection. Correct? So, nodding of heads,

there’s a basic agreement.

What tells you that this administration is inclined to support this

legislation? Mr. Elliott.

Mr. ELLIOTT. Well, one thing that tells me that is that the two

administration witnesses, Jim Connaughton and Marianne

Horinko, said that the administration supported this, as the administration’s representatives. I think there was an important

breakthrough in the sense that they both said that the administration specifically supported the idea of an Under Secretary for

Science. They were both very articulate in explaining how that

would improve the functioning of the Agency. And I must say I was

very pleased to hear it, having been a long-time advocate of that

position.

So I don’t believe that any of these provisions are killer amendments or unreasonable or will increase the political vulnerability of

this bill at all. I think they’re very, very modest and have been

really needed for a long time. I mean, Gary Guzy’s idea of a highlevel body making recommendations, that’s what the National

Academy of Science did in the year 2000.

Mr. SHAYS. So if we could get this legislation passed without

other things being added like risk assessment and so on, then you

think that we would have a shot?

Mr. ELLIOTT. Yes, I do. I’ve been a long-time advocate of a concept of unreasonable risk, but I do believe that’s the one provision

that goes over the line and could be cited as having a substantive

rather than organizational component.

But I really disagree very strongly, as I’ve indicated in my testimony, with the idea that what has prevented EPA Cabinet status

from being enacted in the past are the substantive provisions of the

bill. I think that’s a canard, and I think it’s just demonstrably

false.

What has happened is that, politically, neither party has wanted

the other party to get credit for EPA Cabinet status. Now that we

have a situation of Republican control of both the House and the

Senate and the administration, I think we have a historic opportunity to get this done. I don’t think we should be greedy. I don’t

think we should have substantive provisions, but as long as we’re

talking truly organizational structure on a bipartisan basis, I think

it’s a unique opportunity.

The other side of that coin is I think it’s a unique opportunity

to make some long-needed reforms, and that opportunity should

not be missed.

Mr. SHAYS. Is it Mr. Guzy?

Mr. GUZY. Yes.

Mr. SHAYS. Mr. Guzy, or Attorney Guzy, from what I understand

of your position, that the camel’s head under the tent, you’ll see a

lot more—you want to keep the bill as clean as possible.

Mr. GUZY. Well, that’s correct. In addition—or to amplify on that,

if I may, Mr. Shays, I very much agree with Mr. Elliott’s comments

that by far and away the greatest concern that I have in H.R. 2138

is the mission statement itself, because I do believe that moves beyond purely structural changes to the Agency to potentially addressing some very significant substantive issues. But there is a

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way in which the substance—I’m sorry, the structure itself can

have an impact on the Agency’s ability to carry out its mission, and

I have an independent degree of concern about—aside from whatever anyone—whatever someone else may add down the road—

whether this bill has it just right.

I’d just point out that Administrator Whitman testified when she

was last here that ‘‘my concern with establishing a Deputy Administrator for Science is that science should be incorporated throughout the Agency. It should be part of every one of the Assistant Administrators’ jobs. I don’t want anyone thinking the Deputy Administrator for Science will take care of that.’’

There’s a way in which isolating or creating a new stovepipe for

science can potentially isolate it and remove it from the responsibilities of other parts of the Agency. There’s a way in which taking

the science function away from the program offices could in fact

have regulatory development even have a harder time in achieving

a sound scientific basis.

Mr. SHAYS. I can’t imagine if you could achieve a Department of

Environmental Protection that you would oppose the bill based on

that.

Mr. GUZY. I’m sorry.

Mr. SHAYS. Based on having a separate Under Secretary for

Science?

Mr. GUZY. I believe that there should be the enhancement—the

further enhancement of science at the agency for——

Mr. SHAYS. That is not what I asked. In other words, if this

bill—disregarding the mission statement, which needs to be

changed a bit, in spite of the former Director of EPA—Administrator of EPA saying we didn’t need a separate Under Secretary,

you would not oppose this legislation if it could go through the

House and Senate pretty much this way without the mission statement or you would? What would you do?

Mr. GUZY. And there are a few other issues that I think are

worth talking about as well. But if your suggestion is a structural

change that is designed to enhance science as part of this legislation and that’s it, then—and that would be the ultimate result of

the legislation—of the legislative process, then it’s likely something

I would support.

Mr. SHAYS. Thank you. Thank you all very much.

Mr. OSE. Thank you, Mr. Chairman. Thank the gentleman. Mr.

Elliott, on pages 2 and 5 of your written statement, you point out

that most legislation creating new departments properly addresses

similar organizational structural issues; in other words, the debate

on one pretty is much the same for the next one after that, so on

and so forth. You state that H.R. 2138 is truly structural and

therefore in your words a clean bill without extraneous measures,

which I appreciate your definition. Does the fact that H.R. 2138

proposes the elevation of an already existing agency alter your conclusion as to whether or not this is a clean bill?

Mr. ELLIOTT. No, not at all. I think the fact that it is an existing

agency is really all the more reason that these types of organizational issues ought to be addressed. First of all, we have a 30-year

track record here, so I think it’s entirely appropriate for the Congress at the time of EPA Cabinet elevation to be reacting to the

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agency’s record and culture and history and trying to make a midcourse correction. And I would cite, for example, the Food and Drug

Modernization Act, which was passed almost unanimously by both

House and Senate a few years ago, as an example of similar structural changes being made to an existing agency.

So I really think there is a good record of Congress successfully

changing the culture of agencies through legislation. Second, I

think it’s important to bear in mind, as Jim Connaughton referred

to briefly, that the Under Secretary level, which is where you’re

doing most of the work organizationally, doesn’t exist today at EPA

as an agency. And so in EPA Cabinet status elevation, we have an

opportunity to address what cross-program functions ought to be

addressed at the Under Secretary level. That’s an issue that

doesn’t really arise under the existing organizational structure because you don’t have that position.

There were some problems with the idea with a Deputy for

Science at EPA because of the conflict between two deputies, and

that was vented in the past. With elevation, the Under Secretary

level, I think, is the appropriate place to have not only an Under

Secretary for Science, but also some of the other cross-program integration functions.

Mr. OSE. And one of the things that I have had the pleasure of

hearing is the claims from all directions in the political spectrum

that EPA does not use or properly use sound science. This gets to

the establishment of an Under Secretary for Science and Innovation as detailed in section 7 of my bill.

Mr. Chisum, do you support the centralization of science at the

new Department and an Under Secretary for Science and Innovation?

Mr. CHISUM. Yes, I do, Mr. Chairman, and science combined with

statistical data will be the best way to make policy.

Mr. OSE. Dr. Hammerschmidt, what’s your position on it? Do you

support the centralization of science?

Mr. HAMMERSCHMIDT. Yes, I do. I have commented that that is

one of the better aspects of the bill, one I am quite enthusiastic

about. In addition, I think a personal concern I have within EPA

now is we need to do a better job of educating EPA staff who are

not scientists in scientific concepts and that could also be an important function of this particular part of the organization.

Mr. OSE. Mr. Roitman, one of the major irritations I have is this

cross-media analysis which I don’t know of a more timely example

than our struggle with MTBE in California. We are worried about

the air and now we’ve got water, but there was no cross-media

analysis that satisfactorily analyzed that. Would an Under Secretary for Science and Innovation promote the cross-media studies

that you advocate throughout your written testimony?

Mr. CHISUM. I believe it would, Mr. Chairman, because as you

well know when we talked about MTBE it was mandated and it

seemed to be the best alternative for it, but now that we’ve looked

at it a little closer we find out we can do other things in order to

reach clean air. So I think it would help.

Mr. OSE. Mr. Roitman, do you agree with that?

Mr. ROITMAN. Yes, I do. Having an Under Secretary for Science

would very much promote our ability to be smart about cross-media

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impacts of decisions that are being made. What we need is good

science and good data so that we’re looking at the full picture when

we’re making decisions, and I think this would very much help

that.

Mr. OSE. I apologize for being very direct on these questions and

not asking everybody their collective wisdom. I’m just out of time

here and I see my red light. Mr. Elliott, on page 2 of your testimony, you note support to Congressman Ehler’s approach to elevating science in H.R. 64 and for the approach laid out in H.R. 2138,

which is my bill. Why do you believe that an Under Secretary for

Science and Innovation is the right way to elevate science at EPA?

Mr. ELLIOTT. I think you need to change the culture of the agency so that science is heard on all issues. Science needs a representative at the highest levels in the policy debates at the agency.

When I was at the agency a decade ago, there were only three people in the agency that really had a mandate across all the areas

of the agency. They were the Administrator, the Deputy Administrator and the General Counsel. There was a strong norm that scientists should not speak unless spoken to, that the Office of Research and Development would not interfere with proposals that

were being advanced by another AA ship. So I think the concept

of turf had grown up rather strongly. I had one incident where the

scientists had been in a room at a briefing for the Deputy Administrator. They didn’t say anything or object and then came up to me

in the hall afterwards and said, ‘‘Don, how could you let this happen. You know this is unscientific.’’ When the scientists are coming

to the General Counsel saying you ought to do something to stop

this, we have a structural problem at the Agency. We need somebody like the General Counsel but a General Counsel for Science

who can be an advocate for a scientific point of view. I think an

Under Secretary for Science and Innovation is the best way to do

that. I think we have a structural problem at the Agency and we

need a structural solution to counterbalance the other forces. We

have a strong high level advocate for policy or politics at the Agency, a strong high level advocate for law, and we need to balance

those forces with a strong high level advocate for science.

Mr. OSE. Dr. Moghissi, on page 3 of your written statement you

make several suggestions that you break out into two groups to improve the scientific credibility of EPA, including removing scientific

deliberations from the program offices. Would you please explain

that a little bit further or elucidate us?

Mr. MOGHISSI. For the sake of simplicity, I’m going to invent a

new compound called dimethyl chicken wire. The dimethyl chicken

wire comes on the market and the department is asked to evaluate

what the risks are, what the limitations are to be placed on it and

so forth. The science side of the EPA would decide: one, it is a carcinogen, is it a reproductive toxin, is it neuro toxic material, what

else is there, whatever toxicity is there. It determines those response functions; would determine what the potential risk may be

accurate, with the appropriate arrow bars; and that information

would go to the program offices. They may have scientists. But the

peer review—the independent peer review science is not provided

by the program offices. The program offices are qualified to say

what is an acceptable risk, what is the economics, what is this and

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that, and they come to a conclusion to an appropriate regulation.

That is the only way in my judgment the ideologically processed

science which, as of now or has been at least in my time, was prevalent at the EPA will disappear.

Mr. OSE. Under the scenario you have drawn with the dimethyl

chicken wire, you’re suggesting that the lack of access to the independent peer review is perhaps a significant negative in current

process?

Mr. MOGHISSI. Yes, sir.

Mr. OSE. You apparently feel very strongly that an independent

peer review is an integral part of what we ought to be doing?

Mr. MOGHISSI. Yes, sir.

Mr. OSE. Now do you support the statutory mandate for peer review?

Mr. MOGHISSI. Yes, I do.

Mr. OSE. During the subcommittee’s prior hearings during a discussion on the functions of the Under Secretary of Policy, Planning

and Innovation, some of our witnesses testified that most of our environmental laws delegate implementation and compliance efforts

to the States. Now some of you have firsthand experience with

that. As a result of that delegation, the States play an enormous

role in the success of EPA’s environmental pollution control and

prevention. On top of that States have their own environmental

laws and regulations and yet at previous hearings witnesses testified that regional offices inconsistently interpret EPA’s regulations,

their nonbinding guidance and our laws. States, as many of you

testified, require both flexibility and predictability to address environmental challenges.

Now H.R. 2138, which is my bill, provides oversight of the regional offices and consolidates the implementation, compliance and

enforcement functions under a single Under Secretary. Mr.

Roitman, Representative Chisum in particular, and then I want to

come to Dr. Hammerschmidt, do you support the consolidation of

this implementation, compliance and enforcement under a single

Under Secretary?

Mr. CHISUM. Mr. Secretary, I would support that. However, the

delegation of implementation of EPA rules and regulations needs

to stay with States that have agreements with the Federal Government in order to do that because we’re the one who can best identify the bad actors and innovative programs that could meet the

compliance with EPA rules.

Mr. OSE. From your position as a member of the State of Texas

Legislature does H.R. 2138 incorporate such flexibility?

Mr. CHISUM. I believe it does.

Mr. OSE. Do you support the consolidation of the implementation, compliance and enforcement?

Mr. ROITMAN. I think it’s important that we have consistent program implementation among the regions across the country, and

that is based on a lot of years of experience in talking with my colleagues across the country in the implementation of these programs. There does need to be flexibility. There is no question that

there are different issues in Colorado than there are in Delaware,

for example. But I think you can have consistent approaches while

still maintaining flexibility.

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The only other comment I would like to make is that I think we

do need to make sure that the prominence of innovation, as you

have addressed in the bill also is integrated into the program implementation because really the places where we need to innovate

are in the States and in the regional offices who are dealing with

the public and dealing with the regulated community all the time.

Mr. OSE. Does H.R. 2138 incorporate sufficient flexibility on that

standpoint?

Mr. ROITMAN. I believe it can.

Mr. OSE. You believe it can or it does?

Mr. ROITMAN. I believe the way it is written allows sufficient

flexibility.

Mr. OSE. So if we send you a question, you could expand on that?

Mr. ROITMAN. Yes.

Mr. OSE. Thank you. Dr. Hammerschmidt, same question, from

your perspective in Kansas do you support H.R. 2138’s consolidation of implementation, compliance and enforcement?

Mr. HAMMERSCHMIDT. Yes. This is part of H.R. 2138 that I

thought the most about and have actually early on had questions

about, but I think it does work. What we are looking for as States

is a spectrum of solutions. Just tell us what the boundaries of that

particular universe is so that we can make the State level decisions

and I think the bill does create that ability. It’s going to have to

be charged to that Under Secretary to make it happen. And bureaucracies are often in the business of implementing what laws

are passed by Congress and State legislatures, and I think it is

going to be very incumbent upon the administration to make it

happen with their appointees.

Mr. OSE. Regardless of the administration it seems implicit in

your remarks that the Under Secretary for Science says OK, here’s

the science bounds, parameter x, opposite of x. You have to be between these poles here and then the Under Secretary for Implementation and Compliance and Enforcement works with the States

for solutions between those poles, is that the way you see it?

Mr. HAMMERSCHMIDT. That’s the way I see it. And if I can maybe

preempt Governor Leavitt on the en Libra process which western

Governors and Governor Leavitt have developed, they make it a

very explicit statement that science is for facts and process is for

making those boundaries.

Mr. OSE. Mr. Roitman, has your State experienced challenges

working with regional offices and, if so, do you have suggestions as

to how to improve that tradition of interaction between the State

and the Federal EPA?

Mr. ROITMAN. I think so much relies on the individuals with

whom you are dealing with at any particular time. I think right

now we enjoy a very good relationship with our regional administrator and his senior management team. Where you tend to run

into challenges are farther down in the organization, where I think

it was Ms. Horinko who talked about the 20,000 employees at EPA

and not everyone necessarily marching to the exact same drummer.

And it is true in any organization and true in mine as well. I’m

not sure that there’s a structural change that would really improve

that, although I very much like the idea of championing both good

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science and innovation at the senior levels. I think that can only

help.

Mr. OSE. I am very sensitive to everybody’s time. That’s one of

the reasons we started exactly at 2, and I know what the baggage

requirement is at the airport and with what the traffic is.

Does the gentleman from Connecticut have further questions? I

am going to go ahead and wrap this up with the caveat that we

have additional questions we are going to submit to you in writing.

We would appreciate timely responses. The record will stay open

for 10 days, and that way everyone can make their planes and get

home.

I want to thank each of the witnesses today on the second panel

for their testimony. This is our fifth hearing on the subject of EPA

elevation. Frankly, most people support elevating EPA to the Cabinet, where environmental protection for this country and the rest

of the world belongs. We have had three consistent themes emerge

from these five hearings and it’s very interesting how this has happened.

First, EPA’s organizational structure must be modified away

from the structure first created in the 1970’s, which is not addressing adequately the cross-media issue that we confront in most regulatory climates today.

Second, the regulatory science conducted at EPA must be a priority within the new department. The science must be of its highest

quality, must be respected by other scientists and must be independent of the EPA regulators or policymakers.

And finally, EPA deserves to have the benefit of a Bureau of Environmental Statistics, much as the Department of Labor has with

the Bureau of Labor Statistics and the Department of Energy has

with the Energy Information Agency. A statistical agency is not a

novel idea. We’re not recreating the wheel. We are just not creating

a novel idea, and that’s not news to anybody.

I do look forward to working with the witnesses individually,

both on this panel and on our previous one and my colleagues and

the administration to create a strong Department of Environmental

Protection. We’re on the road here, gentlemen, and I do appreciate

your participation in this. We will work through these issues as

best we can and hopefully come up with a product that we can all

be proud of.

I appreciate you all taking the time today. This hearing is adjourned.

[Whereupon, at 4:20 p.m., the subcommittee was adjourned.]

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