S. HRG. 116–9 

HEARING ON THE NOMINATION OF ANDREW 

WHEELER TO BE ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED SIXTEENTH CONGRESS 

FIRST SESSION 

JANUARY 16, 2019 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

HEARING ON THE NOMINATION OF ANDREW WHEELER TO BE 

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

U.S. GOVERNMENT PUBLISHING OFFICE

35–314 PDF WASHINGTON : 2019

S. HRG. 116–9 

HEARING ON THE NOMINATION OF ANDREW 

WHEELER TO BE ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED SIXTEENTH CONGRESS 

FIRST SESSION 

JANUARY 16, 2019 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED SIXTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

KEVIN CRAMER, North Dakota 

MIKE BRAUN, Indiana 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

RICHARD SHELBY, Alabama 

JONI ERNST, Iowa 

THOMAS R. CARPER, Delaware, 

Ranking Member 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

CHRIS VAN HOLLEN, Maryland 

RICHARD M. RUSSELL, Majority Staff Director 

MARY FRANCES REPKO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

JANUARY 16, 2019 

OPENING STATEMENTS 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 1 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 2 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 5 

WITNESS 

Wheeler, Andrew, nominated to be Administrator, U.S. Environmental Protection Agency ........................................................................................................... 6 

Prepared statement .......................................................................................... 9 

Responses to additional questions from: 

Senator Carper .......................................................................................... 14 

Senator Booker .......................................................................................... 83 

Senator Boozman ....................................................................................... 88 

Senator Braun ........................................................................................... 89 

Senator Cardin .......................................................................................... 90 

Senator Duckworth ................................................................................... 93 

Senator Ernst ............................................................................................ 95 

Senator Gillibrand ..................................................................................... 98 

Senator Markey ......................................................................................... 107 

Senator Merkley ........................................................................................ 115 

Senator Rounds ......................................................................................... 127 

Senator Sanders ........................................................................................ 128 

Response to an additional question from Senator Shelby ............................. 139 

Responses to additional questions from: 

Senator Van Hollen ................................................................................... 140 

Senator Whitehouse .................................................................................. 145 

Senator Wicker .......................................................................................... 162 

ADDITIONAL MATERIAL 

Letters to: 

Senators Barrasso and Carper from the Agricultural Retailers Association 

et al., January 28, 2019 ................................................................................ 974 

Senators Barrasso and Carper from the American Exploration & Mining 

Association, January 25, 2019 ..................................................................... 977 

Senators Barrasso and Carper from the National Association of Realtors, 

January 15, 2019 .......................................................................................... 978 

Senators Barrasso and Carper from the National Cattlemen’s Beef Association and the Public Lands Council, January 25, 2019 .......................... 979 

Senators Barrasso and Carper, Senator Mitch McConnell, and Senator 

Charles Schumer from the Portland Cement Association, January 15, 

2019 ................................................................................................................ 980 

The importance of the Chesapeake Bay’s health cannot be overstated, Letter 

to the Editor from Chante ́ Coleman. The Washington Post, January 13, 

2019 ....................................................................................................................... 981

(1) 

HEARING ON THE NOMINATION OF ANDREW 

WHEELER TO BE ADMINISTRATOR 

OF THE ENVIRONMENTAL PROTECTION 

AGENCY 

WEDNESDAY, JANUARY 16, 2019 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m. in room 

406, Dirksen Senate Building, Hon. John Barrasso (Chairman of 

the Committee) presiding. 

Present: Senators Barrasso, Inhofe, Capito, Cramer, Braun, 

Rounds, Sullivan, Boozman, Wicker, Ernst, Carper, Cardin, Sanders, Whitehouse, Merkley, Booker, Markey, Duckworth, and Van 

Hollen. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Good morning, and welcome. 

This is a formal Senate hearing. In order to allow the Committee 

to conduct its business, I am going to maintain decorum. That 

means if there is any disorder or demonstration by a member of 

the audience, the person causing the disruption will be escorted 

from the room by the Capitol Police. 

With that said, I call this hearing to order. 

Today, we are going to consider the nomination of Andrew 

Wheeler to be Administrator of the Environmental Protection 

Agency. 

Before I speak about Acting Administrator Wheeler’s nomination, 

I want to take a moment to welcome the new members of our Committee, Senators Braun and Cramer. Welcome to the Committee. I 

know that your experience and expertise will strengthen our Committee and bring fresh perspectives to our debates. Welcome. 

I would also like to welcome back all of the old members of the 

Committee. I look forward to working with each of you as we conduct the Committee’s business this Congress, which brings us to 

the business of today’s hearing. 

President Trump has nominated Environmental Protection Agency Acting Administrator Andrew Wheeler to serve as the Administrator of the agency. Mr. Wheeler has served as Deputy Administrator of the EPA since April 2018 when the Senate confirmed his 

nomination with bipartisan support. 

2 

Since July of last year Mr. Wheeler has served as the Acting Administrator of EPA. I believe Acting Administrator Wheeler has 

done an outstanding job of leading the EPA these past 6 months. 

Under Acting Administrator Wheeler’s leadership, the agency has 

taken a number of significant actions to protect our Nation’s environment while also supporting economic growth. 

Acting Administrator Wheeler has led efforts to issue common 

sense regulatory proposals like the Affordable Clean Energy Rule 

and the revised definition of Waters of the United States; implemented the Committee’s 2016 bipartisan reform of the Toxic Substances Control Act in an effective and efficient manner; reduced 

lead exposure, including through the Federal Lead Action Plan; 

provided greater regulatory certainty to States, to tribes, to localities, and the regulated community; and has improved enforcement 

and compliance assistance. 

Acting Administrator Wheeler is very well qualified to run the 

Environmental Protection Agency. Before his leadership roles at 

the agency, Mr. Wheeler spent 25 years working in the environmental field as a career employee with the Environmental Protection Agency, as this Committee’s Clean Air Subcommittee staff director, as then the full Committee staff director and chief counsel, 

and finally as a consultant for a large variety of energy and environmental clients. 

Mr. Wheeler has received broad and bipartisan support. Former 

Democratic vice presidential candidate and U.S. Senator Joe Lieberman, who served as a member of this Committee while Mr. 

Wheeler was staff director, stated when Wheeler was nominated 

for deputy director that ‘‘Mr. Wheeler conducted himself in a fair 

and professional manner. I hope his nomination will receive similarly fair consideration by the Senate.’’ Ranking Member Carper 

said of Mr. Wheeler at one point, ‘‘I think having worked in the 

agency he actually cares about the environment, the air we 

breathe, the water we drink, and the planet on which we live.’’ 

The EPA Administrator plays a central role in developing and 

implementing programs and activities focused on fulfilling the 

EPA’s mission of protecting human health and the environment. 

We know how well qualified Mr. Wheeler is and when confirmed 

what a wealth of experience and expertise he is going to bring to 

this critically important job. I am going to work with Committee 

members to move this important nomination forward. 

I would now like to turn to the Ranking Member for his statement. 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thank you, Mr. Chairman. 

Mr. Wheeler, welcome. It is good to see you. Thanks for meeting 

with my staff and me yesterday and on past occasions as well. 

Just 1 week ago President Trump nominated you to be the Administrator of the Environmental Protection Agency, the agency 

you already lead as its Acting Administrator. If I am not mistaken, 

under the Federal Vacancies Act, you can continue to serve as both 

the EPA Acting Administrator and the President’s nominee for 203 

more days. 

3 

With many EPA staff members furloughed today, on the 26th 

day of President Trump’s Government shutdown, a number of 

Democratic members of this Committee are concerned that we are 

rushing to move forward with your confirmation process. 

I realize we do not all agree on this, but my view is that EPA 

is shut down largely because the President wants Congress to approve an additional $6.5 billion in funding for a 2,000 mile wall 

along our southern border with Mexico that the Mexicans were 

supposed to pay for. 

Meanwhile, because of the continuing shutdown across our country, our environment and public health are increasingly in jeopardy. With much of EPA shut down, rules are not being written, 

drinking water and power plant inspections are not being performed, Superfund sites are not being cleaned up, the safety of new 

chemicals is not being assessed, public meetings are being canceled, and just as important, some 14,000 furloughed EPA employees are unsure if they will be able to afford their mortgages, 

daycare providers, or grocery and electricity bills. 

Some of those furloughed employees appear to have been asked 

to help prepare for this very hearing. Despite that, this Committee 

is moving quickly to process your nomination. 

I do not believe giving the Acting Administrators a speedy promotion is more urgent and more important than protecting the 

public from contamination to our air and water and lands. Our priority should be reopening our Government, certainly reopening 

EPA and the other closed Federal agencies. 

The day after Mr. Wheeler was named EPA Acting Administrator last summer, I sent him a letter. In that letter I reminded 

Mr. Wheeler of the challenge and opportunity he was granted to 

chart a new course for the agency after the scandal plagued tenure 

of Scott Pruitt. 

Mr. Wheeler is certainly not the ethically bereft embarrassment 

that Scott Pruitt proved to be. To be fair, he has engaged more frequently and substantively than Scott Pruitt with both Congress 

and EPA career staff. 

I knew that Mr. Wheeler and I would not agree on every issue. 

We do not, but I had hoped he would moderate some of Scott Pruitt’s most environmentally destructive policies, specifically where 

the industry and the environmental community are in agreement. 

Regrettably, my hopes have not been realized. In fact, upon examination, Mr. Wheeler’s environmental policies appear to be almost as extreme as his predecessor’s despite the promise Mr. 

Wheeler made when he first appeared before our Committee. 

For example, Mr. Wheeler said repeatedly that he agreed with a 

goal that many of us share, striking a deal between automakers 

and the State of California on fuel economy and greenhouse gas 

tailpipe standards. 

I have just come from the auto show in Detroit on Monday. The 

entire auto industry, many Members of Congress, and other stakeholders have repeatedly asked for a compromise that would provide 

certainty and predictability for the industry. 

However, instead of making a serious, vigorous effort to find a 

win-win outcome he envisioned, Mr. Wheeler signed off on a proVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
4 

posal that preempts California and freezes standards for the better 

part of a decade. 

I learned that the Trump administration now plans to finalize a 

0.5 percent annual increase in the stringency of the standards, a 

rate that is 10 times weaker than the current rules. This will only 

lead to extensive litigation and uncertainty for our automakers. 

That is not a win-win outcome, really more a lose-lose. 

There is another example of Mr. Wheeler’s forgotten promises. 

Mr. Wheeler recently signed a proposal to remove the legal 

underpinnings of the mercury and air toxics standards. EPA decided it was no longer ‘‘appropriate and necessary’’ to protect the 

brains of infants from mercury and air toxic pollution emitted by 

electric utilities. 

By using outdated data and deeming that some benefits like reductions in cancer, birth defects, and asthma attacks are no longer 

important to consider, EPA is setting a dangerous precedent in putting the MATS rule in legal jeopardy. EPA has gone so far as to 

request public comment on whether the standards should be eliminated. 

Mr. Wheeler says this action is necessary and that the proposal 

strikes a balance. I just do not think that is true. No court has ordered this action. No utilities are asking for this action. Their proposal is not needed to protect public health. 

In fact, the utility industry is in full compliance with the EPA 

standards, full compliance at one-third of the expected cost. Think 

about that—one-third of the expected cost. Every stakeholder from 

coal fired utilities to religious leaders to environmental organizations to chambers of commerce urged this Administration not to 

take this step. 

Surprisingly, Mr. Wheeler has chosen to ignore the course of 

stakeholders who all hoped that he, EPA, and this Administration 

would try a more responsible path. 

A final example of Mr. Wheeler’s failure to lead lies in the agency’s reported opposition to submitting to the Senate for ratification 

the Kigali Treaty to phase out harmful refrigerants. Safer substitutes are made in Texas and Louisiana with American technology by American companies whose investments and jobs are at 

risk when China dumps cheaper, polluting products onto the market. 

Ratification of this treaty is supported by a truly staggering list 

of stakeholders that range from the American Chemistry Council 

to the U.S. Chamber of Commerce to Freedom Works to the Sierra 

Club—almost everyone, it seems, except EPA. 

Mr. Wheeler, when you worked with us in the Senate, you were 

able to identify areas where compromise was possible. It remains 

my hope that you can reverse course and commit to seize upon the 

policy ‘‘win-wins’’ like these and others that protect our environment and public health while protecting and providing industry 

with certainty they need and deserve. 

That is what the American people expect and deserve from anyone who has been nominated to lead the Environmental Protection 

Agency. Based on what we have seen so far, without such commitments, that is not the nominee that we have before us today. I say 

that with no joy. 

5 

Thank you. 

Senator BARRASSO. Thank you, Senator Carper. 

Senator Inhofe, would you like to introduce Mr. Wheeler? 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. I would like to introduce Mr. Wheeler. I am 

honored that he invited me to do that. I am very excited about the 

prospects of taking his temporary job into a permanent job. 

It may come as a shock to some of you that I do not totally disagree with my good friend, Senator Carper. I really think that in 

the midst of the Schumer shutdown is a good time to confirm some 

of these very important nominees. There is not one more important 

or a position that is more important than we have right now. 

Back when President Trump nominated Andrew as Deputy Administrator, I said there was no one more qualified. Now that he 

has been Acting Administrator for the past 6 months, Andrew’s 

ability to lead the agency has never been clearer. 

After earning a law degree at Washington University in St. Louis 

at the School of Law, Andrew joined the EPA as a special assistant 

in the agency’s Pollution Prevention and Toxics Office in 1991. 

There have been a lot of years and a lot of experience. He was 

an EPA employee for 4 years, transitioning to the George H.W. 

Bush administration and then to the Clinton administration, earning three bronze medals for commendable service along the way. 

For those of you who do not know, the bronze medal is given for 

‘‘significant service or achievements in support of the agency’s mission or for demonstration of outstanding accomplishments in supervision and leadership.’’ 

When Andrew left the agency he brought that sense of service 

and leadership with him to the U.S. Senate where I had a front 

row seat to his high quality of character and witnessed the dedication he brings to every job and issue. 

Andrew started in my personal office as chief counsel, 

transitioned to staff director for the U.S. Senate Subcommittee on 

Clean Air, Climate Change, Wetlands and Nuclear Safety. I was 

Chairman of that subcommittee at that time. 

In 2003, when I became Chairman of this Committee, Andrew 

became the chief counsel. Over the next 6 years, he would eventually become staff director, and we worked closely together on highway bills, energy bills, the Diesel Emissions Reduction Act, the 

Clear Skies Act, and many other pieces of legislation. 

Since leaving the U.S. Senate in 2009 Andy has continued to 

build on his reputation as a leader in energy and environmental 

policy and has brought this vast wealth of knowledge and expertise 

on environmental issues to the EPA. 

The Senate confirmed him as Deputy Administrator in April of 

last year on a bipartisan basis, and he became Acting Administrator in early July. I was lucky enough to attend his welcome 

speech to the employees of the agency and saw a man who respected the agency and the work the career staffers do. 

This is something that is unusual. I do not think Andrew knew 

I was there in the audience, but there were a couple or 300 people 

6 

from the EPA administration. All of them were there with the 

highest possible respect for Andrew Wheeler. 

He has worked on the issues for his entire 28 year career. I am 

honored that he chose to spend half of that time with me. I believe 

that the U.S. Senate benefited from his leadership. I know America 

will as well. 

I remember looking at the expressions on the faces of the individuals out there thinking there is room at the top for me, too. There 

were several hundred people in there who had a career such as Andrew had, starting at the bottom, and here is the top. He has done 

a great job. I am very excited to look forward to working with him 

in a new capacity that I have not experienced before. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you very much, Senator Inhofe. 

Now I would like to welcome our nominee to the committee, Andrew Wheeler, nominated to be Administrator of the Environmental Protection Agency. 

I want to remind you that your full written testimony will be 

made a part of the record. We all look forward to hearing your testimony. I would invite you to introduce or reintroduce to the Committee your family then please proceed with your testimony. 

STATEMENT OF ANDREW WHEELER, NOMINATED TO BE ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. WHEELER. Thank you, Senator. 

Joining me today is my nephew Luke Hooper, and he brought 

along his parents with him and my sister, Liesle, and her husband, 

Tim. I also have two friends that I met on my first day in law 

school back in 1987, Judy Kim and Dawn Sydney. Dawn was at my 

confirmation hearing for the Deputy Administrator position, and 

today she brought her mother with her, Betty Beveridge, who traveled from Florida to be here today. I want to thank them all for 

coming today. 

Senator BARRASSO. Thank you, and welcome. 

Mr. WHEELER. Good morning, Mr. Chairman, Ranking Member 

Carper, and members of the Committee. 

Thank you, Senator Inhofe, for the introduction. 

I am honored and grateful that President Trump has nominated 

me for the position of Administrator of the Environmental Protection Agency. There is no more important responsibility than protecting human health and the environment. It is a responsibility I 

take very seriously. 

Since becoming the Acting Administrator I have focused our efforts on providing greater certainty to the American public: certainty in our EPA programs; certainty to the States, tribes, and 

local governments; and certainty on how we communicate risk. 

Personally, I have also worked to provide more certainty to Congress. Immediately after becoming the Acting Administrator, I 

reached out to the Chairs and Ranking Members of our authorizing 

and appropriating committees in both the House and the Senate. 

I have met in person or by phone with many of you on specific 

issues of concern, and I will always make myself available. 

The American public has a right to know the truth about the 

health risks they face in their daily lives and how we are respondVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
7 

ing. It is our responsibility to explain it to them clearly and consistently. This includes recognizing the progress we have made as a 

Nation and where more progress still needs to be made. 

From 1970 to 2017 U.S. criteria air pollution fell by 73 percent 

while the economy grew over 260 percent. In addition, we are 

ranked No. 1 in the world for access to safe drinking water. In addition, in 2018 we finalized 13 major deregulatory actions, saving 

Americans roughly $1.8 billion in regulatory costs. 

Yet there are Americans who have not shared in this progress. 

It is these Americans that President Trump and his Administration 

are focused on, Americans without access to safe drinking water or 

Americans living on or near hazardous sites, often unaware of the 

health risks they and their families face. Many of these sites have 

languished for years, even decades. 

How can these Americans prosper if they cannot live, learn, or 

work in healthy environments? The answer is simple. They cannot. 

President Trump understands this, and that is why he is focused 

on putting Americans first. 

The Superfund program is a perfect example. In fiscal year 2018 

EPA deleted all or part of 22 sites from the National Priorities List, 

the largest number of deletions in 1 year since fiscal year 2005. We 

are in the process of cleaning up some of the Nation’s largest, most 

complex sites and returning them to productive use. 

This past summer I visited the Anaconda and Butte sites in 

Montana, the first visit to both sites by the head of EPA in nearly 

20 years. We are finalizing cleanup plans that will return these 

lands to productive use, an action which has literally been stymied 

for decades. 

This past September EPA issued a Record of Decision requiring 

removal of the worst contaminated sediment, including mercury 

and PCBs, at the Berry Creek site in New Jersey. At the U.S. 

Smelter and Lead Refinery site in East Chicago, we were able to 

issue a proposed $25 million cleanup plan that will address lead 

contaminated soil in Zone 1 of the site. 

We have also made safe drinking water a top priority as well. 

In May 2018 we convened the first ever National Leadership 

Summit to help States address the emerging risk associated with 

PFAS. We also hosted a series of visits in communities directly impacted by PFAS. Using information from these events and other 

public input, we will release a PFAS management plan in the very 

near future. 

We are also taking important actions to protect our children from 

the dangers of lead exposure. We proposed stronger dust, lead, and 

hazards standards and we are updating the lead and copper rule 

for the first time in over two decades. These actions and more are 

detailed in the new Federal Lead Action Plan announced in December. 

In addition, we are using our grants and financing programs to 

help communities replace lead surface lines and upgrade their 

water infrastructure. Under President Trump, EPA has issued 

seven WIFIA loans totaling over $1.5 billion. Combined, these 

projects will help finance over $3.5 billion in infrastructure investments while creating over 6,000 jobs. That is just the beginning. 

8 

This past year we invited an additional 39 projects from across 

the Nation to apply for the WIFIA loans that would help finance 

$12 billion in infrastructure and create up to 183,000 jobs. 

On the air side, we have launched common sense reforms such 

as the Cleaner Trucks Initiative. By working closely with States 

and the private sector, we will reduce NOx emissions from heavy 

duty trucks which are not required by statute or court order, but 

it makes sense to do. 

Finally, we proposed three major rulemakings on our new 

Waters of the U.S. definition, the Affordable Clean Energy Rule, 

and the Safe Vehicles Rule in conjunction with the Department of 

Transportation. 

Through our regulatory reforms, the Trump administration is 

proving that burdensome Federal regulations are not necessary to 

drive environmental progress. What makes our actions effective 

and durable is our commitment to vigorously enforce them. 

In fiscal year 2018 EPA enforcement actions required the treatment, disposal, or elimination of 809,000,000 pounds of pollutants 

and waste, almost twice as much compared to 2017. We also entered the largest settlement in the history of the enforcement of the 

Risk Management Program with responsible parties spending $150 

million on major safety improvements. 

I am proud of our accomplishments, and I know that none of it 

would be possible without our talented and dedicated EPA career 

staff. Just last week EPA and the Department of Justice announced a $490 million settlement with Fiat Chrysler for cheating 

U.S. emission standards. 

For 3 years Fiat Chrysler told us their vehicles were compliant, 

yet it was EPA engineers in Ann Arbor who caught them cheating. 

Then they proved how they were cheating, and that was no easy 

task. 

Defeat devices are hidden in vehicle software which contains 

more than 100 million lines of code. To give you an idea of what 

the EPA staff had to deal with, an F–22 fighter jet has less than 

2 million lines of code, and a Boeing 787 has around 14 million 

lines of code. 

I am proud and grateful for a talented career staff that was able 

to detect and expose these defeat devices. This is just one of many 

examples of the expertise our career staff brings to the agency and 

one of the many reasons that I miss our furloughed employees and 

look forward to getting them back to work as soon as possible. 

Thanks to the hardworking public servants, pollution is on the 

decline. Our focus now is to accelerate this decline, particularly in 

communities where it poses the most immediate and lasting harm. 

Thank you for your time. I look forward to answering your questions. 

[The prepared statement of Mr. Wheeler follows:] 

9 


35314.001

Statement of Andrew Wheeler 

Nominated to be Administrator, 

U.S. Environmental Protection Agency 

January 16'h, 2019 

Good morning, Mr. Chairman, Ranking Member Carper, and members of the committee. 

I am humbled and grateful that President Trump has nominated me for the position of 

Administrator of the Environmental Protection Agency. If confirmed, it would be a true honor to 

lead the Agency where I began my career over 20 years ago. 

There is no more important responsibility than protecting human health and the environment. It 

is a responsibility I take very seriously. 

Since becoming Acting Administrator, I have focused our efforts on providing greater certainty 

to the American public: certainty in our EPA programs; certainty to the states, tribes, and local 

governments; and certainty on how we communicate risk. 

Personally, I have also worked to provide more certainty to Congress. Immediately after 

becoming Acting Administrator, I reached out to the chairs and ranking members of our 

authorizing and appropriating committees in both the House and the Senate. I have met in person 

or by phone with many of you on specific issues of concern, and I will always make myself 

available. 

The American public have a right to know the truth about the health risks they face in their daily 

lives and how we are responding. It is our responsibility to explain it to them clearly and 

consistently. That includes recognizing the progress we have made as a nation and where more 

progress still needs to be made. 

From 1970 to 2017, U.S. criteria air pollution fell by 73 percent while the economy grew over 

260 percent. In addition, we are ranked number one in the world for access to safe drinking 

water. 

At the same time, we are advancing the President's regulatory reform agenda. In 2018, EPA 

finalized 13 major deregulatory actions, saving Americans roughly $1.8 billion in regulatory 

costs. To date, under President Trump, EPA has finalized 33 major deregulatory actions saving 

Americans almost $2 billion. 

The U.S. is the gold standard for environmental progress. Yet, there are Americans who have not 

shared in this progress. 

It is these Americans that President Trump and his administration are focused on- Americans 

without access to safe drinking water or Americans living on or near hazardous sites, often 

unaware of the health risks they and their families face. Many of these sites have languished for 

years, even decades. 
10 


35314.002

How can these Americans prosper if they cannot live, learn, or work in healthy environments? 

The answer is simple. They cannot. President Trump understands this. And that is why he is 

focused on putting Americans first. 

There may be no better example than our success in the Superfund program. In Fiscal Year 20 I 8, 

EPA deleted all or part of 22 sites from the National Priorities List, the largest number of 

deletions in one year since Fiscal Year 2005. 

And we are in the process of cleaning up some of the nation's largest, most complex sites and 

returning them to productive use. 

This past summer, I visited the Anaconda and Butte sites in Montana- the first visit by the head 

of EPA in nearly 20 years. We are finalizing cleanup plans that will return these lands back to 

productive use, an action which has literally been stymied for decades. 

This past September, EPA issued a Record of Decision requiring removal of the worst 

contaminated sediment, including mercury and PCBs, at the Berry's Creek site in New Jersey. 

The selected remedy is an interim step, while we work to issue a final plan where the legally 

responsible parties would conduct and pay for a $300 million cleanup with oversight by EPA. 

One of the sites on the Administrator's Emphasis List for immediate action is the U.S. Smelter 

and Lead Refinery site in East Chicago. By prioritizing this site, we were able to issue a 

proposed $25 million cleanup plan that will address lead-contaminated soil in Zone I of the site. 

Looking ahead, we will expand on our efforts in 2019 by working with the Department of 

Defense to revitalize former defense properties. 

These achievements will directly improve the lives of those who reside near these sites- most 

often low-income, minority, and disadvantaged Americans. They are the ones that deserve our 

full and immediate attention. 

That is why we have also made safe drinking water a top priority. 

In May 2018, EPA convened its first-ever National Leadership Summit to help states address the 

emerging risks associated with per- and polyfluoroalkyl substances (PFAS). The summit 

included representatives from over 40 states, tribes, and territories; 20 federal agencies; 

Congressional staff; associations; industry groups; and non-governmental organizations. 

Following the Summit, the agency hosted a series of visits in communities directly impacted by 

PFAS. Using information from these events and other public input, we will release a PFAS 

Action Plan in the very near future. 

We are also taking important actions to protect our children from the dangers oflead exposure. 

We proposed stronger dust-lead hazard standards, and we are updating the lead and copper rule 

for the first time in two decades. These actions and more are detailed in the new Federal Lead 

Action Plan, which we announced in December alongside the Department of Health and Human 

Services and the Department of Housing and Urban Development. 

2 
11 


35314.003

In addition, we are using our grant and financing programs to help communities replace lead 

service lines and upgrade their water infrastructure. Under President Trump, EPA has issued 

seven loans through the Water Infrastructure Finance and Innovation Act (WIFIA) program 

totaling over $1.5 billion. Combined, these projects will help finance over $3.5 billion in 

infrastructure investments while creating over 6,000 jobs. 

That's just the beginning. This past year, we invited an additional 39 projects across the nation to 

apply for WIFIA loans that would help finance nearly $12 billion in water infrastructure and 

create up to 183,000 jobs. 

When it comes to reducing air pollution, we have launched common-sense reforms, such as the 

Cleaner Trucks Initiative. Since 2000, nitrogen oxide (NOx) emissions in the U.S. have been 

reduced by 52 percent. However, it is estimated that heavy-duty trucks will be responsible for 

one-third ofNOx emissions from transportation in 2025, and it's been nearly 20 years since EPA 

last set NOx emissions standards for heavy-duty trucks. By working closely with states and the 

private sector, we will reduce NOx emissions from heavy-duty trucks, which is not required by 

statute or court order but makes sense to do. 

In order to provide greater certainty for manufacturers and confidence for American consumers, 

EPA has worked hard to meet the deadlines set by the bi-partisan 2016 Frank R. Lauten berg 

Chemical Safety for the 21st Century Act, which amended the Toxic Substances Control Act. 

Over the past year, EPA once again met its obligations by releasing guidance and policy on 

confidential business information, a strategy to reduce animal testing, a final mercury reporting 

rule, and a final fees rule. 

What makes our actions effective and durable is our commitment to vigorously enforce them. In 

Fiscal Year 2018, EPA enforcement actions required the treatment, disposal, or elimination of 

809 million pounds of pollutants and waste- almost twice as much compared to 2017. We also 

entered into the largest settlement in the history of our enforcement of the Risk Management 

Program with the responsible party spending $150 million on major safety improvements. 

As an Agency, we can't improve how we carry out our responsibilities unless we can accurately 

measure our progress. Under President Trump, EPA launched a comprehensive management 

system, the EPA Lean Management System (ELMS), to identify, track, and enhance critical 

Agency processes. 

This past year, we initiated deployment of ELMS in three regions and scheduled deployment in 

the rest of the agency for Fiscal Year 2019. We created over 600 performance measures across 

all national programs and regional offices. For the first time, EPA is reviewing its performance 

via these new measures and taking corrective action on a monthly, rather annual basis. We're 

already seeing dramatic improvements, such as reducing the backlog of new permit applications 

older than six months by 34 percent between June and November 2018. 

Our accomplishments also extend to extraordinary events and issues that transcend our nation's 

borders. Over the past two years, highly dedicated and experienced EPA employees have 

conducted almost 500 emergency response and removal actions, while at the sam'e time 
12 


35314.004

responding to six nationally significant hurricane events, several of the most destructive wildfires 

in U.S. history, a Super Typhoon, and a volcanic eruption. 

In October, I signed a memorandum of understanding with the Israeli Ministry of Environmental 

Protection to advance our collaboration on pressing environmental challenges, such as 

innovation in the water sector and the remediation of contaminated lands. Most notably, in 

December, I signed the trilateral Environmental Cooperation Agreement with Canada and 

Mexico on behalf of the U.S. It contains the most comprehensive set of enforceable 

environmental obligations of any trade agreement to date, including first-time provisions to 

address pressing environmental issues such as air quality and marine litter. 

Finally, consistent with the President's directives, we proposed three major rulemakings, and I'll 

say a brief word about each. 

First, our new proposed waters of the U.S. definition would provide farmers and landowners the 

certainty they need to grow more crops, build more homes, and create more jobs. In line with 

President Trump's February 2017 Executive Order, our proposal would replace the 2015 

definition with one that follows the Clean Water Act and respects the primary role of the states in 

managing their land and water resources. For the first time, we are clearly defining the difference 

between federally protected wetlands and state protected wetlands. 

Second, the proposed Affordable Clean Energy (ACE) rule would adhere to the four corners of 

the Clean Air Act and allow states to set emissions standards that protect human health while 

ensuring access to affordable, reliable energy. When ACE is fully implemented, the rule would 

help reduce U.S. power sector C02 emissions by 34 percent below 2005 levels. 

Third, EPA and the Department of Transportation proposed the Safer Affordable Fuel-Efficient 

(SAFE) Vehicles rule, which would reduce the cost of new vehicles so that more Americans can 

purchase newer, cleaner, and safer cars and trucks. 

The average age of vehicles on the road today is at a record high- roughly 12 years old. In I 990, 

the average age was approximately eight years old. Research shows that passengers are more 

likely to be killed in older vehicles compared to newer ones. Compared to keeping the 20 I 2 

standards in place, our preferred option would reduce the cost of owning a new car by more than 

$2,300. These savings would help more Americans purchase newer cars, thereby improving the 

environment and saving lives- approximately I ,000 lives annually. 

Through our deregulatory actions, the Trump Administration has proven that burdensome federal 

regulations are not necessary to drive environmental progress. Certainty, and the innovation that 

thrives in a climate of certainty, are key to progress. 

I am proud of our accomplishments, and I know that none of it would be possible without our 

talented and dedicated EPA career staff. 

Just last week, EPA and the Department of Justice announced a $490 million settlement with Fiat 

Chrysler for cheating U.S. emissions standards. 

4 
13 


35314.005

For three years, Fiat Chrysler told us that their vehicles were compliant. Yet, it was EPA 

engineers at our National Vehicle and Fuel Emissions Lahoratory and the Office of 

Transportation and Air Quality that caught them cheating. And then they proved how they were 

cheating. That was no easy task. 

Defeat devices hidden in vehicle software can have more than I 00 million lines of code. To give 

you an idea of what EPA staff had to deal with, an F-22 fighter jet has less than 2 million lines of 

code and a Boeing 787 has around 14 million lines. So I am proud and grateful for our talented 

and dedicated career staff that was able to detect and expose these defeat devices. 

Thanks to our hardworking public servants, pollution is on the decline. Our focus now is to 

accelerate its decline, particularly in communities where it poses the most immediate and lasting 

harm. 

Thank you for your time, and I look forward to answering your questions. 

5 
14 


35314.006

U.S. Senate Committee on Environment and Public Works 

Hearing entitled, "Hearing on the Nomination of Andrew Wheeler to be Administrator of 

the Environmental Protection Agency" 

January 16,2019 

Questions for the Record for Mr. Andrew Wheeler 

Ranking Member Carper: 

Your responses to questions for the record from the Committee's August 1, 2018 hearing left 

much to be desired. Many questions did not receive specific responses, which is troubling given 

that the Committee did not receive your answers for four months. Please ensure that your 

responses to these questions are not similarly deficient. Moreover, in light of the Agency's 

insistence on moving forward quickly with your confirmation hearing and the use of furloughed 

staff to prepare you for it, please do not attempt to justify a failure to provide any of the 

responses or requested materials on the shutdown, absent a concurrent request that further action 

on your nomination be postponed until after the EPA re-opens. 

I appreciate your questions for the record following up on my January 16, 2019, 

confirmation hearing, The EPA has demonstrated that it takes inquiries from Congress 

very seriously. The Agency provided a thorough job of responding to the Questions for the 

Record from my prior confirmation hearing, and we are doing the same here while 

protecting our ability to complete reasoned and deliberative rulemaking on the actions that 

are in process. I am discouraged to learn from the Questions for the Record for this 

hearing that you found my answers deficient from a previous hearing although that 

concern has not been raised during our handful of meetings and discussions with you since 

that time. While maintaining those important executive branch equities, I will ensure that 

the longstanding practice of providing timely responses to Congressional inquiries 

continues, including producing documents as appropriate. If confirmed, I look forward to 

continuing to work with you and your staff to provide the information that Congress needs 

to perform its proper legislative function. 

Questions on the Trump Administration's Proposed Fuel Economy and Greenhouse Gas Tailpipe 

Standards Rollback 

I asked you a number of questions on this topic following your testimony at the August 1, 2018 

hearing. You failed to provide specific responses. Please do so now promptly, and answer the 

additional questions, especially in light of your statement at the hearing that "We know that we 

need to finalize our [fuel economy and greenhouse gas tailpipe standards] proposal by March 

30." 

I. During the development of the "Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Years 2021-26 Passenger Cars and Light Trucks", EPA officials met with OMB and 

NHTSA officials to convey their concerns about the proposal several times. They left 

numerous documents with OMB officials that are now part of the rulemaking docket 1.These 

1 https://www.regulations.gov/document?D~EPA-HO-OAR-20 18-0283-0453 

Page I of 150 
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documents indicate that there are significant problems with the model that was used by 

NHTSA to develop the proposal to freeze fuel economy and greenhouse gas tailpipe 

standards from 2020-26. One such example is a document titled "Email_5 _-

-Email _from_ William_ Charm ley _to_ Chandana _ Achanta _-_June _18,_ 20 18%20( I ).pdf'. 

This 122 page long document includes a number ofPowerPoint presentations EPA made to 

OMB and NHTSA staff along with additional documentation and analysis. 

a. The document notes that "EPA analysis to date shows significant and 

fundamental flaws in CAFE model (both the CAFE version and the "GHG 

version") .... These flaws make the CAFE model unusable in current form for 

policy analysis and for assessing the appropriate level of the CAFE or GHG 

standards." Do you believe that each of these flaws were fully remedied before 

the rules were proposed? If so, please list the specific remedies that addressed 

each of EPA's concerns. If not, will you ensure that all necessary technical input 

from EPA's Office of Transportation and Air Quality is incorporated into the final 

rule in order to ensure that the rule cannot be successfully over-turned in court on 

grounds that the model on which it is based is significantly or fundamentally 

flawed? 

As I explained in responding to a similar question arising out of my August 1, 

2018 hearing before the Committee, the documents you reference were made 

available by EPA in the rulemaking docket, because they are part ofthe 

documentation of interagency review of the draft proposed rule. EPA and 

NHTSA are working collaboratively in developing this proposed rule and 

working through modeling methods and technical inputs and assumptions is 

a necessary and critical aspect of the agencies' joint rulemaking development 

efforts. 

In particular, with respect to the CAFE model, I would point out, that, as 

outlined in the Notice of Proposed Rulemaking, available at Docket No. 

EPA-HQ-OAR-2018-0283, having reviewed comments on the subject and 

having considered the matter fully, the agencies determined it is reasonable 

and appropriate to use DOE/Argonne's model for full-vehicle simulation, 

and to use DOT's CAFE model for analysis of regulatory alternatives. Using 

the CAFE model allows consideration of the following factors: the CAFE 

model explicitly evaluates the cost of compliance for each manufacturer, each 

fleet, and each model year; it accounts for lead time necessary for compliance 

by directly incorporating estimated manufacturer production cycles for 

every vehicle in the fleet, ensuring that the analysis does not assume vehicles 

can be redesigned to incorporate more technology without regard to lead 

time considerations; it provides information on safety effects associated with 

different levels of standards and information about many other impacts on 

consumers, and it calculates energy impacts (i.e., fuel saved or consumed) as 

a primary function, besides being capable of providing information about 

many other factors within EPA's broad Clean Air Act discretion to consider. 

See 83 Fed. Reg. 43,000-01. 

Page 2 of ISO 
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As work on this rule is ongoing, it would not be appropriate for me to 

comment on whether, as you put it, "each of these flaws were fully remedied 

before the rules were proposed." We will be developing responses to the issue 

you raise here as part of our joint effort to finalize this important rule. We 

will not take definitive positions on any issues until the rule is final. 

b. One of the main contributors to the NHTSA conclusions that the augural 

standards would cause thousands of additional deaths is NHTSA's "consumer 

choice" module, which asserts that making the fleet more fuel efficient will cause 

people to keep their less safe, older vehicles for longer, and that this will mean 

there are more unsafe vehicles on the road (because newer vehicles have more 

safety technologies). The document states that EPA believed this NHTSA model 

was flawed, because it predicts an additional 26 million non-existent vehicles 

would be in the 2016 fleet and 46 million additional non-existent vehicles in the 

2030 fleet. For context, this would represent a 15-20% increase in registered 

vehicles. The document also notes that this problem appeared to be un-remedied 

several months after EPA first raised it. Was this problem remedied in the 

proposed rule? If so, how? If not, will you ensure that it is remedied before the 

EPA rule is finalized in order to avoid litigation that will result in the rule being 

overturned on grounds that the model on which it is based is significantly or 

fundamentally flawed? 

With respect to the consumer choice model as it predicts fleet turnover, EPA 

and NHTSA are working collaboratively in developing this proposed rule 

and working through modeling methods and technical inputs and 

assumptions is a necessary and critical aspect of the agencies' joint 

rulemaking development efforts. As this work is ongoing, it would not be 

appropriate for me to comment on your query whether, as you put it, "this 

problem [was] remedied in the proposed rule." We are developing responses 

to the issue you raise here as part of our joint effort to finalize this important 

rule. We will not take definitive positions on any issues until the rule is final. 

c. The document also found that NHTSA ·s consumer choice model predicts an 

unexplained, and apparently fictitious I 0-15% increase in vehicle miles traveled 

(VMT). Specifically, the model somehow predicts people will drive an extra 239 

billion miles in 2016 and 302 billion more miles in 2030. The increased deaths 

associated with higher efficiency standards in the NHTSA model are highly 

correlated to VMT (more driving equals more accidents equals more deaths). It 

would thus seem that EPA believes that the NHTSA safety numbers are 

predicated on an entirely fictitious driving scenario. Was this problem remedied 

in the proposed rule? If so, how? If not, will you ensure that it is remedied before 

the EPA rule is finalized in order to avoid litigation that will result in the rule 

being overturned on grounds that the model on which it is based is significantly or 

fundamentally tlawed? 

Page 3 of 150 
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35314.009

With respect to the consumer choice model as it predicts VMT, EPA and 

NHTSA are working collaboratively in developing this proposed rule and 

working through modeling methods and technical inputs and assumptions is 

a necessary and critical aspect of the agencies' joint rulemaking development 

efforts. As this work is ongoing, it would not be appropriate for me to 

comment on your query whether, as you put it, "this problem [was] remedied 

in the proposed rule." We are developing responses to the issue you raise 

here as part of our joint effort to finalize this important rule. We will not 

take definitive positions on any issues until the rule is final. 

d. The document also notes that NHTSA does not accurately model the manner in 

which automobile manufacturers trade credits as part of their compliance 

strategies, observing that NHTSA does not assume that compliance credits are 

traded between manufacturers' car and truck fleets (which is the manufacturers' 

current practice), and that this has the effect of over-estimating compliance costs. 

Was this modeling problem remedied in the proposed rule? If so, how? If not, will 

you ensure that it is remedied before the EPA rule is finalized in order to avoid 

litigation that will result in the rule being overturned on grounds that the model on 

which it is based is significantly or fundamentally flawed? 

With respect to the modeling of credit trading, EPA and NHTSA are 

working collaboratively in developing this proposed rule and working 

through modeling methods and technical inputs and assumptions is a 

necessary and critical aspect of the agencies' joint rulemaking development 

efforts. As this work is ongoing, it would not be appropriate for me to 

comment on your query whether, as you put it, "this modeling problem [was] 

remedied in the proposed rule." We are developing responses to the issue you 

raise here as part of our joint effort to finalize this important rule. We will 

not take definitive positions on any issues until the rule is final. 

e. The document observes that NHTSA 's model overestimates the costs of particular 

technologies compared to their actual costs and use in the real world. The model 

also reportedly selects the most expensive technology packages to meet the 

standards, which overestimates the most cost-effective ways to do so by $1-2,000 

per vehicle. Do you agree that manufacturers would be more likely to select the 

most cost-effective set of technologies with which to meet standards, rather than 

the least cost-effective set of technologies? If not, why not? Was this problem 

remedied in the proposed rule? If so, how? If not, will you ensure that it is 

remedied before the EPA rule is finalized in order to avoid litigation that will 

result in the rule being overturned on grounds that the model on which it is based 

is significantly or fundamentally flawed? 

Page 4 of !50 
18 


35314.010

With respect to the modeling of technology cost and technology selection, 

EPA and NHTSA are working collaboratively in developing this proposed 

rule and working through modeling methods and technical inputs and 

assumptions is a necessary and critical aspect of the agencies' joint 

rulemaking development efforts. As this work is ongoing, it would not be 

appropriate for me to comment on your query whether, as you put it, "this 

problem [was] remedied in the proposed rule." We are developing responses 

to the issue you raise here as part of our joint effort to finalize this important 

rule. We will not take definitive positions on any issues until the rule is final. 

f. The document stated that the NHTSA model omitted the benefits of some fuelefficient technologies entirely, while others were erroneously inputted into the 

model. For example, 'start/stop' technology, a technology that causes engines to 

automatically shut off while vehicles are stopped in traffic (and thus use no fuel), 

is estimated to have a negative effect on fuel-efficiency, which is simply not 

plausible. Were these problems remedied in the proposed rule? If so, how? If not, 

will you ensure that they are remedied before the EPA rule is finalized in order to 

avoid litigation that will result in the rule being overturned on grounds that the 

model on which it is based is significantly or fundamentally flawed? 

With respect to the modeling of fuel-efficient technologies, EPA and NHTSA 

are working collaborativeiy in developing this proposed rule and working 

through modeling methods and technical inputs and assumptions is a 

necessary and critical aspect of the agencies' joint rulemaking development 

efforts. As this work is ongoing, it would not be appropriate for me to 

comment on your query whether, as you put it, "these problems [were] 

remedied in the proposed rule." We are developing responses to the issue you 

raise here as part of our joint effort to finalize this important rule. We will 

not take definitive positions on any issues until the rule is final. 

g. The document observed that NHTSA's model appears to add vehicle miles 

travelled in unexplained ways. For example, it observed that as many as 25 billion 

more miles of driving were predicted in a given year, even when the rebound 

effect (a measure of how much extra driving consumers are expected to do as a 

result of having more fuel-efficient vehicles) was set to 0 percent. The document 

observes that NHTSA's model actually predicts less driving when the rebound 

effect was set to 20 percent (meaning 20% more driving by consumers in more 

fuel-efficient vehicles would have been included in the model) than when it was 

kept to 0 percent. This suggests that NHTSA's model is incapable of predicting 

anything accurately, separate and apart from whether one agrees with its policy 

premise. Was this problem remedied in the proposed rule? If so, how? If not, will 

you ensure that it is remedied before the EPA rule is finalized in order to avoid 

litigation that will result in the rule being overturned on grounds that the model on 

which it is based is significantly or fundamentally flawed? 

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35314.011

With respect to the modeling ofVMT, EPA and NHTSA are working 

collaboratively in developing this proposed rule and working through 

modeling methods and technical inputs and assumptions is a necessary and 

critical aspect of the agencies' joint rulemaking development efforts. As this 

work is ongoing, it would not be appropriate for me to comment on your 

query whether, as you put it, "this problem [was] remedied in the proposed 

rule." We are developing responses to the issue you raise here as part of our 

joint effort to finalize this important rule. We will not take definitive 

positions on any issues until the rule is final. 

h. The document states that NHTSA's "Proposed standards are detrimental to safety, 

rather than beneficial" once NHTSA's modeling errors were corrected. In fact, 

EPA found that the proposed standards result in "an average increase of 17 

fatalities per year in VYs 2036-2045" relative to the current standards. Do you 

agree with this conclusion? If not, why not? 

With respect to the modeling of safety effects, EPA and NHTSA are working 

collaborativcly in developing this proposed rule and working through 

modeling methods and technical inputs and assumptions is a necessary and 

critical aspect of the agencies' joint rulemaking development efforts. As this 

work is ongoing, it would not be appropriate for me to respond to your query 

whether I "agree with this conclusion." We are developing responses to the 

issue you raise here as part of our joint effort to finalize this important rule. 

We will not take definitive positions on any issues until the rule is final. 

i. The document states that the NHTSA model projects that the current standards 

result in 8,000 fewer new automobiles sold annually in CYs 2021-2032, but that 

the used vehicle fleet would grow by 512,000 vehicles per year. That means that 

for every new fuel-efficient vehicle that consumers do not purchase (because 

NHTSA predicts their costs will be too high), somehow an additional 60 used 

vehicles will remain in the fleet. Do you agree that this scenario is simply 

implausible in the real world, as the EPA document points out? If not, why not? 

Was this problem remedied in the proposed rule? If so, how? If not, will you 

ensure that it is remedied before the EPA rule is finalized in order to avoid 

litigation that will result in the rule being overturned on grounds that the model on 

which it is based is significantly or fundamentally flawed? 

With respect to the modeling of new sales and fleet size, EPA and NHTSA 

arc working collaboratively in developing this proposed rule and working 

through modeling methods and technical inputs and assumptions is a 

necessary and critical aspect of the agencies' joint rulcmaking development 

efforts. As this work is ongoing, it would not be appropriate for me to 

comment on your query whether I "agree that this scenario is simply 

implausible in the real world." We are developing responses to the issue you 

raise here as part of our joint effort to finalize this important rule. We will 

not take definitive positions on any issues until the rule is final. 

Page 6 of 150 
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35314.012

j. In draft comments submitted to OMB on June 29, EPA commented that more than 

90% of the net benefits for which the proposed rule to freeze fuel economy and 

greenhouse gas tailpipe standards takes credit are in fact benefits associated with 

vehicles manufactured prior to 2021. EPA attributed this to NHTSA's flawed 

consumer choice model, and questioned whether these could technically be 

attributable to the actual post-202 1 rule. What would the net benefits ofthe 

preferred alternative- and for each of the other seven alternatives included in the 

NPRM- be if the agencies were to compare the costs to the benefits of cars 

manufactured within the MY 2021-29 cohort timeframe? 

With respect to the modeling of benefits, EPA and NHTSA are working 

collaboratively in developing this proposed rule and working through 

modeling methods and technical inputs and assumptions is a necessary and 

critical aspect of the agencies' joint rulemaking development efforts. As this 

work is ongoing, it would not be appropriate for me to comment on your 

query regarding the "net benefits of the preferred alternative" and the other 

alternatives. We are developing responses to the issue you raise here as part 

of our joint effort to finalize this important rule. We will not take definitive 

positions on any issues until the rule is final. 

2. Please provide a Jist of all EPA employees or contractors who have been working on the fuel 

economy and greenhouse gas tailpipe standards rule since December 29, 2018, including a 

description of what precisely each individual has been doing and how much time they have 

spent on each task. 

I and other Senate-confirmed senior managers have conferred on this rule. No career 

employees worked on the rulemaking during the shutdown. 

3. I have been informed that on July 20,2018, prior to the finalization and public release of the 

proposed roll-back, you received a briefing from EPA's career staff that consisted of about 

20 slides (and a 3-page appendix) and lasted about an hour. The briefing described EPA 

career staff's significant concerns with the proposed rule, including their concern that the 

proposal "does not include EPA's technical assessment or input," that NHTSA failed to 

incorporate any of EPA's technical analysis or feedback, and that it was clear to EPA that 

"NHTSA doesn't want to engage EPA on technical aspects ofNHTSA's analysis." That 

briefing also included the staff's request that EPA's logo be removed from the technical 

analysis document used to support the proposed rollback in light of the fact that no EPA 

input was included in it. 

Page 7 of 150 
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35314.013

a. Please provide me with a copy of the briefing slides. 

The requested briefing slides include information that relates to a pending or 

contemplated action by EPA and are therefore deliberative and predecisional. We will provide any decisional documents in the administrative 

record for future final actions and can supply the final version at that time. 

b. You have repeatedly asserted in both public and private meetings that the 

proposed rollback will save lives. For example, in your January 16 nominations 

hearing you stated that "Under our proposal, we have submitted that there will be 

I ,000 lives saved a year under our CAFE proposal. I neglected to mention that 

earlier, but I think that is very important for everyone to understand." Please 

provide me with a detailed explanation for why you have seemingly discounted 

the views and technical input ofEPA's career staff when making these 

statements. 

I greatly value the views and technical input of EPA career staff. I have not 

in any way discounted them. As to the analysis of the vehicle safety issues you 

reference, EPA is working in conjunction with NHTSA on this joint 

rulemaking, and NHTSA is taking the lead with respect the safety 

implications at issue. 

Further, I would point out, that, as outlined in the Notice of Proposed 

Rulemaking, available at Docket No. EPA-HQ-OAR-2018-0283, having 

reviewed comments on the subject and having considered the matter fully, 

the agencies determined it is reasonable and appropriate to use 

DOE/Argonne's model for full-vehicle simulation, and to use DOT's CAFE 

model for analysis of regulatory alternatives. Using the CAFE model allows 

consideration of the following factors: the CAFE model explicitly evaluates 

the cost of compliance for each manufacturer, each fleet, and each model 

year; it accounts for lead time necessary for compliance by directly 

incorporating estimated manufacturer production cycles for every vehicle in 

the fleet, ensuring that the analysis does not assume vehicles can be 

redesigned to incorporate more technology without regard to lead time 

considerations; it provides information on safety effects associated with 

different levels of standards and information about many other impacts on 

consumers, and it calculates energy impacts (i.e., fuel saved or consumed) as 

a primary function, besides being capable of providing information about 

many other factors within EPA's broad Clean Air Act discretion to consider. 

See 83 Fed. Reg. 43,000-01. 

Page 8 of 150 
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35314.014

c. In your testimony, you also stated that the proposed rollback "would decrease the 

cost of a new car by $2,300." It is my understanding that the briefing you 

received on July 20, 2018 included a chart showing that NHTSA's per vehicle 

cost estimates associated with the current standards were more than double EPA's 

estimates. Please provide me with a detailed explanation for why you have 

seemingly discounted the views and technical input of EPA's career staff when 

making these statements. 

Again, I have discounted neither the views nor the technical input provided 

by EPA career staff. As I previously noted, EPA and NHTSA are working 

collaboratively in this joint rulemaking effort. Further, with respect to the 

cost modeling, I would point out, that, as outlined in the Notice of Proposed 

Rulemaking, available at Docket No. EPA-HQ-OAR-2018-0283, having 

reviewed comments on the subject and having considered the matter fully, 

the agencies determined it is reasonable and appropriate to use 

DOE/Argonne's model for full-vehicle simulation, and to use DOT's CAFE 

model for analysis of regulatory alternatives. Using the CAFE model allows 

consideration of the following factors: the CAFE model explicitly evaluates 

the cost of compliance for each manufacturer, each fleet, and each model 

year; it accounts for lead time necessary for compliance by directly 

incorporating estimated manufacturer production cycles for every vehicle in 

the fleet, ensuring that the analysis does not assume vehicles can be 

redesigned to incorporate more technology without regard to lead time 

considerations; it provides information on safety effects associated with 

different levels of standards and information about many other impacts on 

consumers, and it calculates energy impacts (i.e., fuel saved or consumed) as 

a primary function, besides being capable of providing information about 

many other factors within EPA's broad Clean Air Act discretion to consider. 

See 83 Fed. Reg. 43,000-01. 

Questions on EPA's Proposed Mercury and Air Taxies Standards Rollback 

4. In EPA's 2018 proposed revision to the Supplemental Cost Finding for the Mercury and Air 

Taxies Standards, it states that, "while there are unquantifiable HAP [hazardous air pollutant] 

benefits and significant monetized PM co-benefits associated with MATS, the Administrator 

has concluded that the identification of these benefits is not sufficient, in light of the gross 

imbalance of monetized costs and HAP benefits, to support a finding that is appropriate and 

necessary to regulate EGUs under CAA section 112."2 

2

EPA, "National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam 

Generating Units-- Reconsideration of Supplemental Finding and Residual Risk and Technology Review" (Dec 

2018), https://www.epa.gov/sites/production/files/2018-12/documents/frnmatsfindingandrtr 12 2018wdisc.pdf; 

Hereafter called EPA Revised Supplemental Finding Proposal, 2018. 

Page 9 of 150 
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35314.015

a. The proposed revision state that, "with the MATS rule in place, the estimated 

inhalation cancer risk to the individual most exposed to actual emissions from the 

source category is 9-in-1 million." Such a risk is higher than the 1-in-1 million 

threshold provided in the Clean Air Act as the threshold to de list a source 

category. Do any documents in the proposal docket estimate what the inhalation 

cancer risk would be if the MATS rule was rescinded? 

EPA has not proposed to revise the MATS standards that control mercury 

emissions. EPA is not proposing to remove, or delist, electric generating units 

from the list of source categories subject to regulation under Section 112, nor 

has it proposed to rescind or weaken the emission standards to which those 

units are currently subject. The proposed Reconsideration of the 2016 

Supplemental Finding and Residual Risk and Technology Review, were it to 

be finalized, would have no effect on mercury emissions reduction levels 

required under the existing MATS rule. 

b. The Clean Air Act does not permit the delisting of any source category with 

emissions that pose a cancer risk greater than I in I ,000,000 to the most exposed 

individual, regardless of the cost. Why does the proposal fail to regulate EGUs 

under Section 112 which pose a far greater cancer risk? 

The proposal does not "fail to regulate EGUs"; EPA has proposed to 

maintain the existing standards. EPA is not proposing to remove, or delist, 

electric generating units from the list of source categories subject to 

regulation under Section 112, nor proposed to rescind or weaken the 

emission standards to which those units are currently subject. 

c. Given that we already know the inhalation cancer risk is greater than I in 

1,000,000, and EPA's proposal asserts that this is "not sufficient" to determine it 

is "appropriate and necessary" to regulate EGUs under Section 112, what would 

in EPA's view be a ''sufficient" cancer risk to deem that it is "appropriate and 

necessary" to regulate? 

EPA's proposed analysis of the statutory term "appropriate and necessary" 

is contained in the notice of proposed rulemaking (NPRM) signed on 

December 27,2018, available at https://www.epa.gov/mats/regulatorvactions-final-mercu ry-and-air-toxics-standa rds-ma ts-power-plan ts. The 

language that you quote appears in EPA's discussion of this statutory 

provision at pages 26-31 and refers to the relationship between the monetized 

and unmonetized direct and indirect costs and benefits of the 2011 MATS 

rule, as informed by the Supreme Court's opinion in Michigan v. EPA. lt is 

important to note that the EPA is not proposing to remove, or delist,electric 

generating units from the list of source categories subject to regulation under 

Section 112, nor has it proposed to rescind or weaken the emission standards 

to which those units are currently subject. The analysis presented in the 

NPRM specifically addresses the EGU-specific provision in 112(n) and does 

Page 10 of ISO 
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35314.016

not relate to the references to 1 in 1,000,000 cancer risk found in the delisting 

provision at section 112(d)(9) and the residual risk review provision at 

section 112(t)(2). 

d. How did the agency weigh "unquantifiable HAP benefits" in the proposal's 

fonnal cost-benefit analysis to ensure benefits that could not be monetized are not 

underrepresented? 

With respect to the relationship between unquantifiable HAP benefits and 

monetized benefits, the bases for EPA's proposed Reconsideration of the 

2016 Supplemental Finding and Residual Risk and Technology Review are 

provided in the notice of proposed rulemaking (NPRM) signed on December 

27, 2018, and in the supporting documents which will be available in Docket 

No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous 

air pollutant (HAP) benefits, and ancillary co-pollutant benefits are available 

at: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-airtoxics-standards-mats-power-plants. EPA expects to receive comments on a 

number of related issues upon publication of the NPRM in the Federal 

Register, and it will respond to these comments as part of any final action. 

As you will see, the accompanying memorandum presents a summary of 

costs and the target pollutant benefits that EPA views as pertinent to the 

appropriate and necessary finding under section 112(n)(1)(A). Target 

pollutant benefits consist of the quantified and unquantified benefits from 

reductions in hazardous air pollutants. EPA also estimated that the MATS 

rule would result in ancillary benefits from the concomitant reduction of 

non-target pollutants. These include the quantified PM2.5 co-benefits and 

other unquantified co-benefits that occur as a result of reductions of nonHAP emissions. However, for reasons described in the preamble and based 

on the specific statutory direction in 112(n)(1)9A), EPA proposes that the 

HAP benefits, both quantified and unquantified, are the most relevant 

portion of the analysis for purposes of the appropriate and necessary finding. 

Therefore, in evaluating the pertinent impacts of this proposed action, EPA 

has focused on the target pollutant impacts. EPA has proposed to conclude 

that the quantifiable portion of the target HAP benefits are not even 

moderately commensurate with the compliance cost of the rule, as the 

difference between costs and HAP benefits is substantial using either 

discount rate. 

Page II of 150 
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35314.017

e. Please provide detailed information on all the unquantifiable HAP benefits that 

were considered in this proposal and explain why EPA could not ascribe a dollar 

value to these benefits. 

With respect to unquantifiable HAP benefits, the bases for EPA's proposed 

Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review are provided in the notice of proposed rulemaking 

(NPRM) signed on December 27, 2018, and in the supporting documents 

which will be available in Docket No. EPA-HQ-OAR-2018-0794. In the 

meantime, the signed NPRM and an accompanying factsheet and 

memorandum on compliance costs, hazardous air pollutant (HAP) bemifits, 

and ancillary co-pollutant benefits are available at: 

https://www.epa.gov/mats/regulatory-actions-final-mercury-and-air-toxicsstandards-mats-power-plants. EPA expects to receive comments on a 

number of related issues upon publication of the NPRM in the Federal 

Register, and it will respond to these comments as part of any final action. 

As discussed in the NPRM, even with the substantial monetized particulate 

matter co-benefits and the significant unquantified HAP benefits associated 

with MATS, the gross disparity between monetized costs and HAP benefits, 

which we believe to be the primary focus of the Administrator's 

determination in Clean Air Act section 112(n)(1)(A), is too large to support 

an affirmative appropriate and necessary finding. As explained in the MATS 

Regulatory Impact Analysis, the only health benefit attributed to reducing 

mercury emissions that the EPA could quantify and monetize was IQ loss in 

children born to a subset of recreational fishers who consume fish during 

pregnancy. The EPA also identified benefits associated with regulation of 

HAP from EGUs that could not be quantified. These effects include impacts 

of mercury on human health (including neurologic, cardiovascular, 

genotoxic, and immunotoxic effects), a variety of adverse health effects 

associated with exposure to certain non-mercury HAP (including cancer, and 

chronic and acute health disorders that implicate multiple organ systems 

such as the lungs and kidneys), and effects on wildlife and ecosystems. 

5. If a benefit cannot be monetized, do you consider it to be worth less than a benefit that can be 

monetized? If so, why? If not, why not? 

As discussed in the answer to the previous question, EPA evaluated monetized and nonmonetized costs and benefits in its NPRM. How EPA treats non-monetized benefits in 

the proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review is explained in the NPRM signed on December 27,2018, and in the 

supporting documents which will be available in Docket No. EPA-HQ-OAR-2018-0794. 

In the meantime, the signed NPRM and an accompanying factsheet and memorandum 

on compliance costs, hazardous air pollutant (HAP) benefits, and ancillary co-pollutant 

Page 12 of 150 
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35314.018

benefits are available at: https://www.epa.gov/mats/regulatory-actions-final-mercuryand-air-toxics-standards-mats-power-plants. 

6. When the 1990 Clean Air Act Amendments were written -which included the current 

version of Section 112(n)(l)(A) of the Clean Air Act- there were few, if any, quantifiable 

data available on cancer risks of air taxies and no quantifiable data whatsoever available for 

non-cancer risks, like birth and neurological defects. 3 Despite the inability to put a dollar 

amount on the benefits of reducing these air taxies, Congress still found it necessary to 

require EPA to pursue robust regulations to address major sources of air taxies emissions. At 

the same time, Congress indicated that it was well aware of the limitations of relying 

exclusively on cost-benefit analysis when assessing air taxies. In the Senate Committee 

report on S. 1630 in the 101'' Congress, it states, "[T]he public health consequences of 

substances which express their toxic potential only after long periods of chronic exposure 

will not be given sufficient weight in the regulatory process when they must be balanced 

against the present day costs of pollution control and its other economic consequences.4

" 

Yet, in EPA's 2018 proposed revision to the Supplemental Cost Finding for the Mercury and 

Air Taxies Standards, the agency based the decision to reverse its "appropriate and 

necessary" finding solely on a formal cost-benefit analysis that does not incorporate this clear 

Congressional intent. 

a. Where in the 1990 CAA' s legislative history does EPA believe that Congress 

required the agency to conduct a formal cost-benefit analysis to make an 

"appropriate and necessary" determination? Please provide a citation to the 

relevant portion of the legislative history. 

With respect to legislative history, the bases for EPA's proposed 

Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review are provided in the NPRM signed on December 27, 2018, 

and in the supporting documents which will be available in Docket No. EPAHQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous 

air pollutant (HAP) benefits, and ancillary co-pollutant benefits are available 

at: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-airtoxics-standards-mats-power-plants. Information responsive to your 

questions, including EPA's understanding of congressional intent with 

respect to Section 112(n)(l) of the Clean Air Act, may be found in those 

documents. In particular, pages 24-26 of the .pdf version of the NPRM 

currently available at this link discusses the statutory text, context, and 

purpose of CAA section 112(n)(l)(A) and the legislative history of CAA 

section 112. Of particular note, the December 2017 NPRM, in discussing the 

2016 supplemental "appropriate and necessary" analysis, states: 

3 Legislative History 1990 Clean Air Act Amendments, H.Rept 101-490 Part 1, 101st Congress (1989-1990). 

'Legislative History 1990 Clean Air Act Amendments, S.Rept 101-228, 101st Congress (1989-1990). 

Page13of150 
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35314.019

"The EPA's justification for its equal reliance on the co-benefits of non-HAP 

emissions when setting the MATS standards in its CAA section 112(n)(1)(A) 

determination was flawed. The Agency erred in concluding that the statutory 

text of CAA section 112(n)(1)(A) and the legislative history of CAA section 

112 more generally 'expressly support[ed]' the position that it was 

reasonable to consider co-benefits, and give equal weight to those co-benefits, 

in a CAA section 112(n)(1)(A) appropriate and necessary finding. 81 FR 

24439. The 2016 Supplemental Finding pointed to CAA section 

112(n)(1)(A)'s directive to 'perform a study ofthe hazards to public health 

reasonably anticipated to occur as a result of emissions by electric utility 

steam generating units of [HAP] after imposition of the requirements of [the 

CAA],' and noted that the requirement to consider co-benefit reduction of 

HAP resulting from other CAA programs highlighted Congress' 

understanding that programs targeted at reducing non-HAP pollutants can 

and do result in the reduction of HAP emissions./d. The finding also noted 

that the Senate Report on CAA section 112(d)(2) recognized that maximum 

achievable control technology (MACT) standards would have the collateral 

benefit of controlling criteria pollutants. !d. However, these statements 

acknowledging that reductions in HAP can have the collateral benefit of 

reducing non-HAP emissions and vice versa, provides no support for the 

proposition that any such co-benefits should be the Agency's primary 

consideration when making a finding under CAA section 112(n)(1)(A). 

Indeed, it would be highly illogical for the Agency to make a determination 

that regulation under CAA section 112, which is expressly designed to deal 

with HAP, is justified principally on the basis of the criteria pollutant 

impacts of these regulations. That is, if the HAP-related benefits are not at 

least moderately commensurate with the cost of HAP controls, then no 

amount of co-benefits can offset this imbalance for purposes of a 

determination that it is appropriate to regulate under CAA section 

112(n)(1)(A). Cf. Michigan, 135 S. Ct. at 2707 ('One would not say that it is 

even rational, never mind "appropriate," to impose billions of dollars in 

economic costs in return for a few dollars in health or environmental 

benefits.')." 

"In sum, the Agency did not provide any meaningful support for its 

conclusion that the statutory text and legislative history support placing 

consideration of co-benefits in a CAA section 112(n)(l)(A) determination on 

equal footing with the consideration of HAP-specific benefits and, as 

explained below, the statutory text strongly supports the use of a different 

approach." 

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35314.020

b. Do you agree with Congress' assessment that the benefits of reducing air toxics 

are not given significant weight in a formal cost-benefit analysis because it is 

difficult, and sometimes impossible, to put a dollar value on the benefits of 

reducing air toxic emissions? If not, why not? If so, why? 

Regarding this question, with respect to cost-benefit analysis of air toxic 

emissions reductions, I would direct your attention in particular, to pages 29-

31 of the .pdf version of the NPRM (footnotes omitted): 

"The total cost of compliance with MATS ($7.4 to $9.6 billion annually) 

vastly outweighs the monetized HAP benefits of the rule ($4 to $6 million 

annually). Even with the substantial monetized PM co-benefits and the 

significant unquantified HAP benefits associated with MATS, the gross 

disparity between monetized costs and HAP benefits, which we believe to be 

the primary focus of the Administrator's determination in CAA section 

112(n)(l)(A), is too large to support an affirmative appropriate and 

necessary finding. As explained in the MATS RIA, the only health benefit 

attributed to reducing Hg emissions that the EPA could quantify and 

monetize was IQ loss in children born to a subset of recreational fishers who 

consume fish during pregnancy. The EPA also identified benefits associated 

with regulation of HAP from EGUs that could not be quantified. These 

effects include impacts ofHg on human health (including neurologic, 

cardiovascular, genotoxic, and immunotoxic effects), a variety of adverse 

health effects associated with exposure to certain non-Hg HAP (including 

cancer, and chronic and acute health disorders that implicate multiple organ 

systems such as the lungs and kidneys), and effects on wildlife and 

ecosystems. The EPA acknowledges the importance of these benefits and the 

limitations on the Agency's ability to monetize HAP-specific benefits. The 

EPA agrees that such benefits are relevant to any comparison of the benefits 

and costs of a regulation. Because unquantified benefits are, by definition, 

not considered in monetary terms, the Administrator must evaluate the 

evidence of unquantified benefits and determine the extent to which they 

alter any conclusions based on the comparison of monetized costs and 

benefits. The MATS RIA accounts for all the monetized and unquantified 

benefits of the rule, and the EPA's proposed approach to the cost-benefit 

analysis in the RIA does not discount the existence or importance of the 

unquantified benefits of reducing HAP emissions. Instead, after fully 

acknowledging the existence and importance of such benefits, the EPA 

proposes to conclude that substantial and important unquantified benefits of 

MATS are not sufficient to overcome the significant difference between the 

monetized benefits and costs of this rule. As noted, the unquantified HAPrelated benefits of MATS involve only a limited set of mercury and other 

HAP-related morbidity effects in humans and ecosystems." 

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35314.021

7. As mentioned in the previous question, EPA appears to be ignoring Congressional intent 

when it comes to making "appropriate and necessary" determinations by ignoring the real 

benefits of reducing exposure to hazardous air pollution, especially those benefits that cannot 

be monetized. Since EPA is failing to follow the Clean Air Act's requirements, please state 

what you consider to be a safe level of exposure to a carcinogenic hazardous air pollutant. 

I disagree that EPA is "ignoring [c)ongressional intent" or "failing to follow the Clean 

Air Act's requirements" in the proposed Reconsideration of the 2016 Supplemental 

Finding and Residual Risk and Technology Review. For an explanation of EPA's 

position regarding these matters, I would direct your attention to the explanation 

provided in the NPRM signed on December 27, 2018, and which will be available in the 

supporting documents in Docket No. EPA-HQ-OAR-2018-0794. In the meantime, the 

signed NPRM and an accompanying factsheet and memorandum on compliance costs, 

hazardous air pollutant (HAP) benefits, and ancillary co-pollutant benefits are 

available at: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-airtoxics-standards-mats-power-plants. Information responsive to your questions, 

including EPA's understanding of congressional intent with respect to Section 112(n)(1) 

of the Clean Air Act, may be found in those documents. In particular, pages 24- 26 of 

the .pdf version of the NPRM currently available at the link discusses the statutory text, 

context, and purpose of CAA section 112(n)(1)(A) and the legislative history of CAA 

section 112. Particularly relevant passages are set forth in response to Question 6 above. 

8. As mentioned in question #6, EPA appears to be ignoring congressional intent when it comes 

to making "appropriate and necessary" determinations by ignoring the real benefits of 

reducing exposure to hazardous air pollution, especially those benefits that cannot be 

monetized. Since EPA is failing to follow the Clean Air Act, please state what you consider 

to be a safe level of exposure to an acid gas hazardous air pollutant. 

I disagree that EPA is "ignoring congressional intent when it comes to making 

'appropriate and necessary' determinations" or "failing to follow the Clean Air Act" in 

the proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review. For an explanation of EPA's position regarding these matters, I 

would direct your attention to the explanation provided in the NPRM signed on 

December 27,2018, and which will be available in the supporting documents in Docket 

No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous air 

pollutant (HAP) benefits, and ancillary co-pollutant benefits are available at: 

h ttps ://www .epa.gov /rna ts/regu Ia tory -actions-fin a 1-m ercu ry -and-air-to xics-s tan d a rdsmats-power-plants. Information responsive to your questions, including EPA's 

understanding of congressional intent with respect to Section 112(n)(1) of the Clean Air 

Act, may be found in those documents. In particular, pages 24-26 of the .pdf version of 

the NPRM discusses the statutory text, context, and purpose of CAA section 

112(n)(1)(A) and the legislative history of CAA section 112. Particularly relevant 

passages are set forth in response to Question 6 above. 

Page 16 of 150 
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35314.022

9. As mentioned in question #6, EPA appears to be ignoring congressional intent when it comes 

to making "appropriate and necessary" determinations" by ignoring the real benefits of 

reducing exposure to hazardous air pollution, especially those benefits that cannot be 

monetized. Since EPA is failing to follow the Clean Air Act, please state what you consider 

to be a safe level of exposure to a heavy metal hazardous air pollutant? 

I disagree that EPA is "ignoring congressional intent when it comes to making 

'appropriate and necessary' determinations" or "failing to follow the Clean Air Act" in 

the proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review. For an explanation of EPA's position regarding these matters, I 

would direct your attention to the explanation provided in the NPRM signed on 

December 27, 2018, and in the supporting documents which will be available in Docket 

No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous air 

pollutant (HAP) benefits, and ancillary co-pollutant benefits are available at: 

h ttps: I /www .epa.gov /mats/ regulatory -actions-final-mere u ry-an d -a i r-toxics-s tan da rdsmats-power-plants. Information responsive to your questions, including EPA's 

understanding of congressional intent with respect to Section 112(n)(l) of the Clean Air 

Act, may be found in those documents. In particular, pages 24 26 of the .pdf version of 

the NPRM discusses the statutory text, context, and purpose of CAA section 

112(n)(1)(A) and the legislative history of CAA section 112. Particularly relevant 

passages are set forth in response to Question 6 above. 

10. EPA's 2018 proposed revision to the Supplemental Cost Finding for the Mercury and Air 

Toxics Standards claims the proposal does not, "present a disproportionate risk to children. 5

" 

a. What analysis in the docket shows that rescinding or weakening MATS is not a 

threat to children's health? 

EPA is not rescinding or weakening the MATS standards that control 

mercury emissions. EPA is not proposing to remove, or delist, electric 

generating units from the list of source categories subject to regulation under 

Section 112, nor proposing to rescind or weaken the emission standards to 

which those units are currently subject. Accordingly, the proposed 

Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review, were it to be finalized, would present no "threat to 

children's health." 

5 EPA Revised Supplemental Finding Proposal, 2018. 

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35314.023

b. What analysis in the docket shows that the benefits of reducing mercury exposure 

to children from our nation's largest source of mercury is "insufficient" to trigger 

a determination that it is "appropriate and necessary" to regulate EGUs under 

Section 112 of the Clean Air Act? 

I direct your attention to the document entitled "Residual Risk Assessment 

for the Coal- and Oil-Fired EGU Source Category in Support of the 2019 

Risk and Technology Review Proposed Rule" which will be available in 

Docket No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM 

and an accompanying factsheet and memorandum on compliance costs, 

hazardous air pollutant (HAP) benefits, and ancillary co-pollutant benefits 

are available at: https://www.epa.gov/mats/regulatory-actions-final-mercuryand-air-toxics-standards-mats-power-plants. 

II. Are there currently any EGUs that are not compliant with the Mercury and Air Toxics 

Standards rule? If so please provide me with a list. 

I understand that numerous coal-fired units shut down in whole or in part because of 

the costs of MATS compliance. Of those that remain operational, certain units firing 

eastern bituminous coal refuse may have received extensions of state requirements until 

early 2019. The MATS proposed rule requested comment on several important issues 

related to these units. 

12. Is EPA aware of any blackouts, brownouts or extreme retail consumer price spikes that 

occurred as a direct result of the Mercury and Air Toxics Standards rule? If so, please share 

the analysis that demonstrates the connection of these events with the MATS rule. 

The direct and indirect compliance cost of MATS measures are in the billions of 

dollars. It is my understanding that electricity consumers ultimately bear this cost. 

13. Prior to implementation of the MATS rule, there were more mercury fish consumption 

advisories in this country than any other chemical or pollutant combined. 

a. Are there still fish consumption advisories for mercury in this country? If so, 

please provide copies. 

Yes. While EPA does not comprehensively track all advisories, States, 

territories, and tribes provide advice on fish caught in waters in their 

jurisdiction. EPA has compiled contact information and website for all of 

these entities and their advisories at: 

https://fishadvisoryonline.epa.gov/Contacts.aspx. More information on Fish 

and Shellfish Advisories and Safe Eating Guidelines is available at: 

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35314.024

h ttps: I /www .epa.gov I choose-fish-and-shell fish-wisely/fish -and-shell fishadvisories-and-safe-eating-guidelines. 

b. How many states currently have one or more fish consumption advisories for 

mercury? 

States, territories, and tribes provide advice on fish caught in waters in their 

jurisdiction. EPA has compiled contact information and website for all of 

these entities and their advisories at: 

https://fishadvisoryonline.epa.gov/Contacts.aspx. 

c. Do you believe consuming mercury-laden fish poses any risk to pregnant women 

or their unborn babies in this country? If so, why? If so, what is the risk? 

I believe that consuming mercury-laden fish poses risk to pregnant women or 

their unborn babies. More information on these risks is available at: 

h ttps: I /www .epa.gov /mercu ry/h ea lth -effects-exposures-mercury. 

d. In the docket for the 2018 proposed revision to the Supplemental Cost Finding for 

MATS, what data does EPA provide that led you to believe there was not a 

"sufficient" mercury risk from power plants to deem it "appropriate and 

necessary" to regulate EGUs under Section 112 of the Clean Air Act? 

I direct your attention to the document entitled "Residual Risk Assessment 

for the Coal- and Oil-Fired EGU Source Category in Support of the 2019 

Risk and Technology Review Proposed Rule" which will be available in 

Docket No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM 

and an accompanying factsheet and memorandum on compliance costs, 

hazardous air pollutant (HAP) benefits, and ancillary co-pollutant benefits 

are available at: h ttps:/ /www .epa.gov /rna ts/regula tory-actions-final-mercuryand-air-toxics-standards-mats-power-plants. 

14. In 2011, were coal-fired EGUs the largest source of unregulated mercury pollution in this 

country? If yes, please include by what order of magnitude coal plants were the largest 

source over other sources. 

In the final MATS rule in 2012, EPA stated: "In 2005, U.S. EGUs emitted 50 percent of 

total domestic anthropogenic Hg emissions .... " (77 FR 9310). This figure did not 

include non-anthropogenic sources, including volcanic eruptions and emissions from 

the ocean, or substantial international sources. Estimates of annual global mercury 

emissions from both natural and anthropogenic sources are in the range of 5,000 to 

8,000 metric tons per year, while 2011 U.S. anthropogenic mercury emissions were 52 

tons. 

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35314.025

Information responsive to your questions may be found in the NPRM signed on 

December 27,2018, and in the supporting documents which will be available in Docket 

No. EPA-HQ-OAR-2018-0794. More information on mercury emissions can also be 

found in EPA's National Emissions Inventory at: https://www.epa.gov/air-emissionsinventories. 

15. In EPA's 2018 proposed revision to the Supplemental Cost Finding for the Mercury and Air 

Taxies Standards, the agency is, "soliciting comment, however, on whether the EPA has the 

authority or obligation to delist EGUs from CAA section ll2(c) and rescind (or to rescind 

without delisting)" the Mercury and Air Taxies Standards (MATS) Rule. 6 

a. If the agency decides to de list "EGUs from CAA section 112(c)," which I do not 

believe it has the authority to do, would EPA have the authority to issue mercury 

and air taxies standards for the utility sector under Section 112 of the Clean Air 

Act, and would utilities legally be required to run control technologies to meet 

MATS? 

EPA is not proposing to rescind or weaken the MATS standards that control 

mercury emissions. EPA is not proposing to remove, or delist, EGUs from 

Section 112. As noted on pages 32 - 33 of the .pdf version of the NPRM 

currently available at https://www.epa.gov/mats/regulatory-actions-finalmercury-and-air-toxics-standards-mats-power-plants, EPA is proposing to 

conclude that reversing the Clean Air Act section 112(n)(1)(A) 

determination, if finalized, would not have the effect of removing EGUs from 

the CAA section 112(c)(1) source category list. 

b. If the agency rescinds the MATS rule, which I do not believe EPA has the 

authority to do, would that not only weaken the standards, but remove them 

altogether? If MATS is removed, would utilities have any legal responsibility to 

run currently-implemented control technology used to comply with MATS? 

EPA is not proposing to rescind or weaken the MATS standards that control 

mercury emissions. EPA is not proposing to remove, or delist, EGUs from 

Section 112. As noted on pages 32- 33 of the .pdf version of the NPRM 

currently available at https://www.epa.gov/mats/regulatory-actions-finalmercury-and-air-toxics-standards-mats-power-plants, EPA is proposing to 

conclude that the reversal of the Clean Air Act section 112(n)(1)(A) 

determination, if finalized, would not have the effect of removing EGUs from 

the CAA section 112(c)(1) source category list. 

6 EPA Revised Supplemental Finding Proposal, 2018. 

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16. During your confirmation hearing, several members expressed concerns about EPA's 2018 

proposed revision to the Supplemental Cost Finding for the Mercury and Air Toxics 

Standards. During an exchange on this issue with Senator Cardin, you stated that, "on 

MATS, I don't think you can roll back a regulation that has been fully implemented. And the 

MATS requirements for the pollution control equipment has been fully implemented. And I 

don't believe, I honestly do not believe that that equipment will be turned off or removed 

under our proposal." 

a. If you "don't think you can roll back a regulation that has been fully 

implemented" as you stated to Senator Cardin during your confinmation hearing, 

then why is your agency requesting comment on EPA's authority and potential 

obligation to delist EGUs from Section 112 ofthe Clean Air Act and/or rescind 

the MATS rule? 

EPA is not proposing to rescind or weaken the MATS standards that control 

mercury emissions. EPA is not proposing to remove, or delist, EGUs from 

Section 112. The bases for EPA's proposed Reconsideration of the 2016 

Supplemental Finding and Residual Risk and Technology Review are 

provided in the notice of proposed rulemaking (NPRM) signed on December 

27, 2018, and in the supporting documents which will be available in Docket 

No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous 

air pollutant (HAP) benefits, and ancillary co-pollutant benefits are available 

at: https://www.epa.gov/mats/regulatorv-actions-final-mercury-and-airtoxics-standards-mats-power-plants. EPA expects to receive comments on a 

number of related issues upon publication of the NPRM in the Federal 

Register, and it will respond to these comments as part of any final action. 

As noted on pages 32-33 of the .pdf version of the NPRM currently 

available at the link, EPA is proposing to conclude that the reversal of the 

Clean Air Act section 112(n)(1)(A) determination, if finalized, would not have 

the effect of removing EGUs from the CAA section 112(c)(l) source category 

list. It is appropriate for EPA to take account of, and seek comment on, 

issues of relevance to the proposed action, in the interests of increasing the 

legal defensibility and policy soundness of any final determination in this 

matter. 

b. Have the courts ever vacated an EPA rule that has been implemented? If yes, 

which rules, and did it ever result in control technology being uninstalled or 

turned off? 

Over the years, courts have found various EPA rules to be contrary to law or 

otherwise unreasonable, with the rule sometimes being vacated and 

sometimes not being vacated. In turn, those court actions have had different 

effects on sources' compliance obligations. 

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35314.027

c. Within the revised Supplemental Cost Finding for the Mercury and Air Taxies 

Standards 2018 proposal, EPA cites that, "[A ]gencies have inherent authority to 

reconsider past decisions and to revise, replace, or repeal a decision to the extent 

permitted by law and supported by a reasoned explanation." 7 When you stated to 

Senator Cardin that you, "don't think you can roll back a regulation that has been 

fully implemented," did that mean you didn't think the agency could do so legally 

and if so, how does that sync with the argument made in the proposal that the 

agency has inherent authority to reconsider past decisions? 

EPA is not proposing to rescind or weaken the MATS standards that control 

mercury emissions. EPA is not proposing to remove, or delist, electric 

generating units from the list of source categories subject to regulation under 

Section 112, nor proposing to rescind the emission standards to which those 

units are currently subject. As noted on pages 32- 33 of the .pdf version of 

the NPRM currently available at https:ffwww.epa.gov/matsfregulatoryactions-final-mercury-and-air-toxics-standards-mats-power-plants, EPA is 

proposing to conclude that the reversal of the Clean Air Act section 

112(n)(l)(A) determination, if finalized, would not have the effect of 

removing EGUs from the CAA section 112(c)(l) source category list. As 

stated in the NPRM, "Consistent with [the D.C. Circuit opinion) New Jersey, 

the EPA is proposing to find that this reversal of the CAA section 

112(n)(l)(A) determination, if finalized, would not have the effect of 

removing EGUs from the CAA section 112(c)(l) source category list. Because 

EGUs would remain on the CAA section 112(c)(l) source category list, the 

CAA section 112(d) standards for that category, as promulgated in the 

MATS rule, would be unaffected by final action on this proposal." 

d. If the courts end up vacating the MATS rule because of EPA's decision to finalize 

its proposal finding that it is no longer "appropriate and necessary" to regulate 

under Section 112, would you still stand by your comments to Senator Cardin that 

you "honestly do not believe that that equipment will be turned off or removed?" 

If so, legally speaking, what would require utilities to run control technologies 

currently being used to meet MATS if the MATS rule were to be vacated or 

rescinded? 

I stand by my testimony. EPA's proposal would not rescind or weaken the 

MATS standards. Otherwise, EPA has not established a position on the 

speculative issue your question raises. 

7 EPA Revised Supplemental Finding Proposal, 2018. 

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e. Please list all the section 126 petitions your agency has during this Administration 

in which petitioners have expressed concerns that a utility upstream is turning off 

or not optimizing installed air control technologies and as a result is creating 

ozone transport concerns for downwind states. Please identify which of these 

petitions were rejected since you became Acting Administrator. 

Section 126 of the Clean Air Act gives a state the authority to ask EPA to set 

emissions limits for sources of air pollution in other states whose emissions 

contribute significantly to nonattainment or interfere with maintenance of 

one or more National Ambient Air Quality Standard (NAAQS) in the 

petitioning state. Information on Clean Air Act Section 126 petitions related 

to ozone NAAQS are available at: https://www.epa.gov/ground-level-ozonepollution/ozone-national-ambient-air-guality-standards-naags-section-126. 

Below are links to Section 126 petitions related to the 2008 or 2015 ozone 

NAAQS submitted since 2016 and their current status: 

New York Petition- May 2018: https://www.epa.gov/groundlevel-ozone-pollution/new-vork-section-126-petition-may-20 18. 

• Delaware Petition - November 28, 2016: 

https://www.epa.gov/ground-level-ozone-pollution/delawaresection-126-petition-novem ber-28-2016. 

• Delaware and Maryland Petitions -November 2016: 

https://www.epa.gov/ground-level-ozone-pollution/delaware-andma ryland-126-petitions-novem ber-20 16. 

• Delaware Petition- August 8, 2016: https://www.epa.gov/groundlevel-ozone-pollu tion/delaware-126-petition -a ugust-8-20 16. 

• Delaware Petition- July 7, 2016 

• Connecticut Petition- July 2016 

In most cases, we have denied such petitions because: (1) they were 

inadequately justified by the applicant; and/or (2) other programs have 

adequately addressed upwind emission sources. 

f. Are you aware of any situation since you have served at EPA under this 

Administration, when a utility has turned off or not fully optimized their installed 

controls? If so, please list and explain all situations. 

I am not aware of any situation in that time frame in which a utility has 

violated its obligations under the Clean Air Act and regulations and permits 

issued thereunder by turning off or not fully optimizing their installed 

controls. 

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17. OMB has also long recognized the limitations of a formal cost-benefit analysis, especially 

when benefits cannot be fully monetized. OMB's 2003 Circular A-4 requires EPA and other 

agencies to conduct a complete regulatory analysis that "includes a discussion of nonquantified as well as quantified benefits and costs. When there are important nonmonetary 

values at stake, you should also identify them in your analysis so policymakers can compare 

them with the monetary benefits and costs."8 In addition, OMB clarifies in Circular A-4 that 

all ancillary benefits should be counted in any rule analysis, directing agencies to "look 

beyond the direct benefits and direct costs of your rulemaking and consider any important 

ancillary benefits and countervailing risks. An ancillary benefit is a favorable impact of the 

rule that is typically unrelated or secondary to the statutory purpose of the rulemaking." 

OMB also states when an agency, "can estimate the monetary value of some but not all of the 

ancillary benefits of a regulation, but cannot assign a monetary value to the primary measure 

of effectiveness, you should subtract the monetary estimate of the ancillary benefits from the 

gross cost estimate to yield an estimated net cost."9 Why does EPA believe it not necessary 

to review all the benefits- including ancillary co-benefits in EPA's analysis (which is 

based only in part on the regulatory impact analysis prepared for OMB and responsive to its 

guidance), that is being used to make its "appropriate and necessary" determination under 

Section 112(n)(l)(A)? Why are those benefits required to be counted in any other benefit 

assessment analysis for any other regulatory action, but not proposed to be included here? 

The bases for EPA's proposed Reconsideration of the 2016 Supplemental Finding and 

Residual Risk and Technology Review are provided in the notice of proposed 

rulemaking (NPRM) signed on December 27,2018, and in the supporting documents 

which will be available in Docket No. EPA-HQ-OAR-2018-0794. In the meantime, the 

signed NPRM and an accompanying factsheet and memorandum on compliance costs, 

hazardous air pollutant (HAP) benefits, and ancillary co-pollutant benefits are 

available at: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-airtoxics-standards-mats-power-plants. Information responsive to your questions may be 

found in those documents. EPA expects to receive comments on a number of related 

issues upon publication of the NPRM in the Federal Register, and it will respond to 

these comments as part of any final action. 

For example, the accompanying memorandum presents a summary of costs and the 

target pollutant benefits that EPA views as pertinent to the appropriate and necessary 

finding under section 112(n)(l)(A). Target pollutant benefits consist of the quantified 

and unquantified benefits from reductions in hazardous air pollutants. EPA also 

estimated that the MATS rule would result in ancillary benefits from the concomitant 

reduction of non-target pollutants. These include the quantified PM2.5 co-benefits and 

other unquantified co-benefits that occur as a result of reductions of non-HAP 

emissions. However, for reasons described in the preamble and based on the specific 

statutory direction in 112(n)(1)(A), EPA proposes that the HAP benefits, both 

quantified and unquantified, are the most relevant portion of the analysis for purposes 

of the appropriate and necessary finding. Therefore, in evaluating the pertinent impacts 

of this proposed action, EPA has focused on the target pollutant impacts. EPA has 

8 68 FR 58366 

'68 FR 58366 

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proposed to conclude that the quantifiable portion of the target HAP benefits are not 

even moderately commensurate with the compliance cost of the rule, as the difference 

between costs and HAP benefits is substantial using either discount rate. 

18. In determining it was no longer "appropriate and necessary" to regulate utilities under 

Section 112 in EPA's 2018 proposed revision to the Supplemental Cost Finding for the 

Mercury and Air Toxics Standardsa. Did EPA use any data beyond what was included in the 2011 MATS Regulatory 

Impact Analysis? If so, please describe it. If not, why not? 

EPA's proposed action utilizes information from the 2011 Regulatory Impact 

Analysis (RIA) as well as an updated comparison of costs and target 

pollutant benefits in a memorandum to the rulemaking docket. The bases for 

EPA's proposed Reconsideration of the 2016 Supplemental Finding and 

Residual Risk and Technology Review are provided in the notice of proposed 

rulemaking (NPRM) signed on December 27,2018, and in the supporting 

documents which will be available in Docket No. EPA-HQ-OAR-2018-0794. 

In the meantime, the signed NPRM and an accompanying factsheet and 

memorandum on compliance costs, hazardous air pollutant (HAP) benefits, 

and ancillary co-pollutant benefits are available at: 

https://www.epa.gov/mats/regulatory-actions-final-mercury-and-air-toxicsstandards-mats-power-plants. EPA expects to receive comments on a 

number of related issues upon publication of the NPRM in the Federal 

Register, and it will respond to these comments as part of any final action. 

The NPRM notes that the MATS RIA accounts for all the monetized and 

unquantified benefits of the rule, and the EPA's proposed approach to the 

cost-benefit analysis in the RIA does not discount the existence or importance 

of the unquantified benefits of reducing HAP emissions. After fully 

acknowledging the quantified benefits of reducing HAP emissions, the EPA 

proposes to conclude that substantial and important unquantified benefits of 

MATS are not sufficient to overcome the significant difference between the 

monetized benefits and costs of this rule. The EPA has provided an updated 

comparison of costs and target pollutant benefits in a memorandum to the 

rulemaking docket. The actual costs and benefits of the MATS rule may 

differ from the EPA's analysis. However, as explained in the accompanying 

memorandum, given that the CAA section 112(n)(1)(A) finding is a threshold 

analysis that Congress intended the Agency would complete prior to 

regulation, the EPA believes it is reasonable for purposes of this 

reconsideration to rely on the estimates projected prior to the rule's taking 

effect, i.e., the estimates of costs and benefits calculated in the 2011 RIA. In 

addition, even assuming that actual costs and benefits differed from 

projections made in 2011, given the large difference between target HAP 

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benefits and estimated costs, the outcome of the Agency's proposed finding 

here would likely stay the same. 

b. Did EPA consider updating the costs estimate to reflect the actual installation and 

operating costs required to meet MATS or consider accounting for costs already 

incurred by the utility industry? If so, why was this information not included in 

the proposal? If not, why not? 

As noted above, EPA's proposed action utilizes information from the 2011 

Regulatory Impact Analysis (RIA) as well as an updated comparison of costs 

and target pollutant benefits in a memorandum to the rulemaking docket. 

The actual costs and benefits of the MATS rule may differ from the EPA's 

analysis. However, as explained in the accompanying memorandum, given 

that the CAA section 112(n)(1)(A) finding is a threshold analysis that 

Congress intended the Agency would complete prior to regulation, the EPA 

believes it is reasonable for purposes of this reconsideration to rely on the 

estimates projected prior to the rule's taking effect, i.e., the estimates of costs 

and benefits calculated in the 2011 RIA. In addition, even assuming that 

actual costs and benefits differed from projections made in 2011, given the 

large difference between target HAP benefits and estimated costs, the 

outcome of the Agency's proposed finding here would likely stay the same. 

c. Did EPA consider updating the benefits data to include the best available science? 

If not, why not? If so, why was this information not included in the proposal? 

As noted above, EPA's proposed action utilizes information from the 2011 

Regulatory Impact Analysis (RIA) as well as an updated comparison of costs 

and target pollutant benefits in a memorandum to the rulemaking docket. 

The actual costs and benefits of the MATS rule may differ from the EPA's 

analysis. However, as explained in the accompanying memorandum, given 

that the CAA section 112(n)(1)(A) finding is a threshold analysis that 

Congress intended the Agency would complete prior to regulation, the EPA 

believes it is reasonable for purposes ofthis reconsideration to rely on the 

estimates projected prior to the rule's taking effect, i.e., the estimates of costs 

and benefits calculated in the 2011 RIA. In addition, even assuming that 

actual costs and benefits differed from projections made in 2011, given the 

large difference between target HAP benefits and estimated costs, the 

outcome of the Agency's proposed finding here would likely stay the same. 

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19. Under the George W. Bush Administration, EPA stated that "benefits calculations relying 

solely on IQ decrements are likely to underestimate the benefits to cognitive functioning of 

reduced mercury exposures." 10 Do you agree with this statement? If so, why? If not, why 

not? 

As explained in detail in the signed NPRM, it is well known that certain benefits of HAP 

reductions are not quantifiable. We nevertheless give appropriate consideration to 

unquantifiable benefits in the NPRM. 

20. In a recent residual risk proposal, EPA has stated "any reduction in HAP emissions would be 

expected to provide health benefits in the form of improved air quality and less exposure to 

potentially harmful chemicals." 11 Does this statement apply to reductions in HAPs for all 

Section 112 listed source categories, including EGUs? If not, why not? If so, why? 

Please list all the acid gases, heavy metals, and other hazardous air pollutants (by name) that 

are emitted by electric generating units that contribute to particulate matter pollution. If 

reducing these HAPs also reduces particulate matter, wouldn't reducing particulate matter be 

a direct benefit of the regulation, not a co-benefit? 

Information responsive to your questions may be found in the notice of proposed 

rulemaking and in the supporting documents which will be available in Docket No. 

EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an accompanying 

factsheet and memorandum on compliance costs, hazardous air pollutant (HAP) 

benefits, and ancillary co-pollutant benefits are available at: 

https: I /www .epa .gov /rna ts/ regu Ia tory -actions-fin a 1-mercury -and -air-toxics-sta n da rdsmats-power-plants. The MATS rule requirements to limit emissions of mercury and 

other HAP are discussed on pages 41-51 of the .pdf version of the NPRM currently 

available at the link. 

10 EPA, Regulatory Impact Analysis of the Clean Air Mercury Rule, (March 2005) 

https://www3.epa.gov/airtoxics/utility/ria final.pdf. 11 83 FR 46262 

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21. In 2003, then-EPA Assistant Administrator for Air and Radiation JeffHolmstead testified 

before the House Energy and Commerce Committee on the difficulty of quantifying the 

benefits of reducing air toxic emissions from power plants, saying: "These estimates [for 

Clear Skies] do not include the many additional benefits that cannot currently be monetized 

but are likely to be significant, such as human health benefits from reduced risk of mercury 

emissions, and ecological benefits from improvements in the health of our forests, lakes, and 

coastal waters." 12 Is this also true for MATS? 

As explained in detail in the signed NPRM, it is well known that certain benefits of HAP 

reductions are not quantifiable. We nevertheless give appropriate consideration to 

unquantifiable benefits in the NPRM. 

22. EPA has tried to bridge the air toxic data gaps to better monetize benefits through various 

stakeholder workshops over the years. The latest workshop in 2009 concluded that 

monetizing all air toxic benefits is still not possible, making a cost benefit analysis "difficult" 

to do for any action involving hazardous air pollutants. Finding that, "[F]or many chemicals 

on the [Clean Air Act hazardous air pollutant]list, the information on potential health effects 

is so limited that quantitative benefits analysis is not feasible ... This lack of information is in 

contrast to the criteria air pollutants for which there is extensive human exposure or 

epidemiological data on the health effects at ambient-exposure levels ... characterizing the 

health effects of air taxies at ambient levels can be subject to a very high level of uncertainty; 

thus, using these health effects in economic benefits assessment is difficult." 13 Do you agree 

that monetizing all air toxic benefits is still not possible and "using these health effects in 

economic benefits assessment is difficult" if not impossible? If not, why not? If so, why? 

EPA continues to work to quantify and monetize key costs and benefits for its 

regulations. Information on economic and cost analysis for air pollution regulations, 

including monetization of costs and benefits, is available at: 

https://.,.ww.epa.gov/economic-and-cost-analysis-air-pollution-regulations. Additional 

information responsive to your questions may be found in the notice of proposed 

rulemaking (NPRM) signed on December 27, 2018, and in the supporting documents 

which will be available in Docket No. EPA-HQ-OAR-2018-0794. In the meantime, the 

signed NPRM and an accompanying factsheet and memorandum on compliance costs, 

hazardous air pollutant (HAP) benefits, and ancillary co-pollutant benefits is available 

at: https :/ /www .epa. gov /rna ts/regu Ia tory -actions-final-mercury -and-air-toxicsstandards-mats-power-plants. 

12 Statement of EPA Assistant Administrator Jeff Holmstead, Hearing Before the U.S. House of Representatives 

Energy and Air Quality Subcommittee of the House Energy and Commerce Committee entitled "The Clear Skies 

Initiative: A Multipollutant Approach to the Clean Air Act," (July 8, 2003), 

https:l/archive.epa.gov/ocir/hearings/testimony/108 2003 2004/web/pdf/2003 0708 jh.pdf. 

13 Gwinn et al, "Meeting Report: Estimating the Benefits of Reducing Hazardous Air Pollutants-Summary of 2009 

Workshop and Future Considerations," Environ Health Perspectives. 2011 Jan; 119(1): 125-130, 

https :1/www. ncb i. n I m. nih .gov /pmc/a rticles/P M C30 18491/. 

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35314.034

23. Do you agree with the American Academy of Pediatrics, which has stated there is no safe 

level of mercury exposure for children in the womb? If not, why not? 

It should be recognized, as a fundamental threshold matter, that under Clean Air Act 

section 112, EPA's general obligation when analyzing existing MACT standards with 

regard to the regulation of hazardous air pollutant emissions, including mercury 

emissions from EGUs, is, under the residual risk provision in 112(1)(2), to provide an 

ample margin of safety to protect public health. The D.C. Circuit Court of Appeals has 

held that EPA is not obligated to establish "zero-risk" standards under section 112, 

NRDC v. EPA, 824 F.2d 1146, 1152 (D.C. Cir. 1987). EPA's proposal explains why EPA 

believes that the existing MATS standards do provide an ample margin of safety to 

protect public health, see especially page 103 of the .pdf version available at 

h ttps :/ /www .epa.gov /rna ts/ reg u Ia tory -actions-fin a 1-me rcu ry-an d -air-toxics-sta n d a rd smats-power-plants. 

For information on the health effects of mercury exposures, please see EPA's 

website: h ttps:/ /www .epa.gov /mercury/health-effects-exposures-mercury. 

Further information responsive to your question as to EPA's assessment of the 

pediatric health impacts of mercury exposure may be found in the NPRM signed on 

December 27,2018, and in the supporting documents which will be available in Docket 

No. EPA-HQ-OAR-2018-0794. In the meantime, the signed NPRM and an 

accompanying factsheet and memorandum on compliance costs, hazardous air 

pollutant (HAP) benefits, and ancillary co-pollutant benefits is available at: 

h ttps :/ /www .epa.gov /rna ts/regu Ia tory -actions-fin a 1-mercury-and -air-toxics-s tan d ard smats-power-plants. Additional information on economic and cost analysis for air 

pollution regulations, including monetization of costs and benefits, is available at: 

h ttps: I /www. epa .gov I economic-and -cost -ana lysis-air-po II u tion -regu Ia tions. 

24. According to EPA's 2018 Supplemental Cost Finding proposal, EGUs emitted 29 tons of 

mercury annually prior to the implementation of the rule. What populations were most 

susceptible to mercury exposure and is mercury easily removed from the environment once it 

gets into the environment? 

How someone's health may be affected by an exposure to mercury depends on a 

number of factors: the form of mercury (for example, methylmercury or elemental 

(metallic) mercury); the amount of mercury in the exposure; the age of the person 

exposed (the fetus is the most vulnerable); how long the exposure lasts; how the person 

is exposed- breathing, eating, skin contact, etc.; and the health of the person exposed. 

For more information on the health effects of mercury exposures, please see EPA's 

website: https:/ /www .epa.gov /mercu ry/health-effects-exposu res-mercury. More current 

information on mercury emissions can also be found in EPA's National Emissions 

Inventory at: https://www.epa.gov/air-emissions-inventories. 

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25. Are there states in which utilities may no longer seek rate recovery from public utility 

commissions for the capital costs and/or operating costs of air pollution control equipment 

for which there is not a legal requirement to operate that equipment? If so, please identify 

the states. 

Because EPA is not the national energy regulator, it does not compile such information. 

I suggest seeking information from the Department of Energy, the Federal Energy 

Regulatory Commission, or state public utility commissions themselves. However, if this 

question is directed at our MATS proposal, we do not believe it will remove the legal 

requirement for the equipment. 

26. Are there states in which public utility commission rules or practices allow ratepayers or any 

third parties to mount challenges to power plant company rate recovery from public utility 

commissions for the capital costs and/or operating costs of air pollution control equipment 

for which there is not a legal requirement to operate that equipment? If so, please identify the 

states. 

Because EPA is not the national energy regulator, it does not compile such information. 

I suggest seeking information from the Department of Energy, the Federal Energy 

Regulatory Commission, or state public utility commissions themselves. However, if this 

question is directed at our MATS proposal, we do not believe it will remove the legal 

requirement for the equipment. 

27. Can you identify all third parties who urged the agency, or OMB, not to propose to rescind 

the "appropriate and necessary" finding or the MATS rule? In particular, please identify the 

positions urged by the Edison Electric Institute; Utility Air Regulatory Group; the American 

Public Power Association; the National Rural Electric Cooperative Association; the Clean 

Energy Group; any electric utility company; any state or local air pollution control agency or 

their associations; any public health or environmental non-governmental organization. Which 

groups supported the proposed changes? 

EPA expects that interested third parties will submit comments setting forth their 

position on this issue. All comments submitted to Docket No. EPA-HQ-OAR-2018-0794 

will be available for public inspection and will be carefully considered by EPA in taking 

final action. Materials provided to OMB in the context of Executive Order 12866 

meetings can be found at: https://www.reginfo.gov/public/do/eoml2866SearchResults. I 

do not recall any of the aforementioned groups reaching out to me prior to this 

proposal. 

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35314.036

Questions on the Kigali Treaty 

28. I have learned that counter to your implication in our private meeting, there have in fact been 

interagency meetings in which Bill Wehrum and other EPA officials participated to discuss 

the Kigali Amendment to the Montreal Protocol. Moreover, I have also been informed that 

EPA officials have stated at these meetings that EPA does not wish the treaty to be submitted 

for ratification. 

a. Please list the dates of and attendees at each such meeting. 

b. Do you share Mr. Wehrum's opinion that the Treaty should not be submitted to 

the United States Senate for ratification, or authorize him to convey this view at 

the meetings that have occurred? 

Principal meetings on this issue occurred prior to my becoming Acting Administrator. I 

have not been briefed on this issue by my career staff and I am reserving judgement 

until that time. 

The White House is leading an interagency process to consider the implications if the 

U.S. decides to ratify the Kigali Amendment. If a decision were made to seek 

ratification, the President would send the Amendment to the Senate for advice and 

consent. 

29. U.S. businesses across the entire HFC supply chain are transitioning away from HFCs and 

taking advantage of new global markets. The US industries that use or produce fluorocarbons 

directly employ more than 593,000 Americans with an annual payroll in excess of $34 

billion, and sales of $206 billion. The overall contribution of the fluorocarbon industries 

network to US economic activity is more than 2.5 million jobs and goods and services valued 

at more than $630 billion annually. As I mentioned at the hearing- American industry, both 

users and producers of HFCs, strongly support the ratification of the Kigali Amendment to 

the Montreal Protocol because it encourages domestic manufacturing of next generation 

alternatives and technologies and provides businesses a predictable transition away from 

HFCs. Various studies clearly show that ratification of Kigali will benefit American 

manufacturing jobs with little to no impact to consumers and an obvious benefit to the 

environment. 

a. Do you support the ratification of the Kigali Amendment to the Montreal 

Protocol? If not, why not? 

The White House is leading an interagency process to consider the 

implications if the U.S. decides to ratify the Kigali Amendment. If a decision 

were made to seek ratification, the President would send the Amendment to 

the Senate for advice and consent. 

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b. What will you commit to do to help facilitate the transition away from HFCs 

toward innovative next-generation technologies? 

EPA's responsibility in this area is bound by its authority to regulate under 

Title VI of the Clean Air Act. In those situations where it is appropriate, 

matters related to the transition away from HFCs will be taken into account 

in the development of implementing regulations. 

c. EPA conducted a cost-benefit analysis of the Montreal Protocol and the HFC 

phasedown that I believe shows that the ratification of Kigali will be a benefit to 

American businesses and American consumers. This study has not been released 

to the public yet. Will you immediately make the results of that study public? If 

not, why not and when will it be public? 

Any analysis of costs and benefits by EPA is still undergoing review and 

includes information that relates to a pending or contemplated executive 

action and is therefore deliberative and pre-decisional. 

d. What challenges does EPA face in achieving these benefits and what will EPA, 

under your leadership, do to successfully overcome these challenges? 

As I noted previously, the White House is leading an interagency process to 

consider the implications if the U.S. decides to ratify the Kigali Amendment. 

If a decision were made to seek ratification, the President would send the 

Amendment to the Senate for advice and consent. Until such time as those 

actions may take place, it would be premature for me to speculate about the 

challenges the EPA may face and how those challenges may be addressed 

and resolved. 

More information on EPA's efforts on ozone layer protection is available at: 

https:/ /www .epa.gov /ozone-layer-protection. 

30. It is my understanding that EPA has prepared analysis of the consumer cost benefits of the 

Montreal Protocol, including projected benefits to US consumers from the implementation of 

the HFC phasedown consistent with the Kigali amendment to the Protocol. 

a. Will you immediately make the results of that study public? If not, why not and 

when will the agency release this report? 

The White House is leading an interagency process to consider the 

implications if the U.S. decides to ratify the Kigali Amendment. Any analysis 

of costs and benefits by EPA is still undergoing review and includes 

information that relates to a pending or contemplated executive action and is 

therefore deliberative and pre-decisional. 

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b. Please share with the Committee this analysis and the key findings from EPA's 

work. 

Any analysis of costs and benefits by EPA is still undergoing review and 

includes information that relates to a pending or contemplated executive 

action and is therefore deliberative and pre-decisional. Should the analysis be 

finalized in connection with any future final action we will provide any 

decisional documents in the administrative record for those actions and can 

supply the final version at that time. 

Questions on the Methylene Chloride Ban 

31. When I raised my concerns at the hearing about EPA's failure to finalize a methylene 

chloride ban that sufficiently protects both consumer and commercial users against its severe 

risks (as your chief of staff committed to my staff would occur at the time former 

Administrator Pruitt first announced his plans to finalize the ban), you stated that "It is at 

OMB, it is ready to go as soon as the Federal Register opens. That is something that I have 

taken seriously, and it is something that we have spent a lot oftime, I have spent a lot of 

personal time on that issue. And I hope we can get that out as quickly as possible." 

a. Has EPA determined that methylene chloride poses an unreasonable risk to 

workers? 

b. Do you agree that the majority of reported deaths due to methylene chloride 

exposure have occurred in a work setting, even when workers have undergone 

hours of training and followed all recommended precautionary measures? 

c. Do you agree that the OSHA standard for methylene chloride exposure is more 

than 20 years oldl4, and that OSHA told EPA that it does not believe the OSHA 

standard is protective enough given the risks to workers that were identified by 

EPA? 

d. Do you agree that as part of its analysis, EPA assessed whether a training program 

for the proper use of respirators for methylene chloride paint strippers could be 

effective, and concluded it would be too costly and would likely result in 

companies voluntarily using alternatives to methylene chloride? 

e. How long does EPA expect it will take to finalize its proposal entitled "Methylene 

Chloride; Commercial Paint and Coating Removal Training, Certification and 

Limited Access Program" once it publishes this insufficiently protective approach 

to addressing occupational methylene chloride exposures? 

f. How long does EPA expect it will take to finalize its consumer ban on methylene 

chloride? 

Yes, under certain circumstances, methylene chloride not only can pose danger, but has 

also caused worker deaths. EPA submitted a final rule for methylene chloride paint and 

coating removal to OMB for interagency review on December 21, 2018, prior to the 

lapse in appropriations. Questions regarding the scope, implementation, and timing of 

14 https://www.regulations.go,/document?D=EPA-HQ-OPPT-2016-0231-0153 

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35314.039

the final rule, and associated EPA actions, will depend on the outcome of the 

interagency review process. 

Questions on PFAS 

32. The Agency for Toxic Substances and Disease Registry (A TSDR) announced its draft 

toxicological profile for PF AS on June 21, 2018, covering a total of 14 perfluoroalkyl 

substances. Due to inadequate data for I 0 of the compounds, ATSDR could establish 

Minimum Risk Levels (MRLs) for only 4 of the PF AS chemicals. These MRLs are not the 

same as the current EPA Lifetime Health Advisories (LHAs) for PFOA and PFOS, but the 

new profiles indicate potential health impacts at lower concentrations that EPA's LHAs, 

which are set at 70 parts per trillion (ppt). Several states have established drinking water 

standards substantially lower than EPA's 70 ppt LHAs for PFOS and PFOA-some in the 

range of the equivalent levels reflected by the ATSDR profile, or about 7 ppt for PFOS and 

II ppt for PFOA. Is EPA evaluating these state actions and the ATSDR findings and 

incorporating the latest science in its regulatory process? 

The EPA supports and has been engaged in the efforts of our state and federal partners, 

including ATSDR, to develop information related to PFAS. The EPA continues to take 

concrete steps, in cooperation with our federal and state partners, to address PFAS and 

ensure all Americans have access to clean and safe drinking water. 

The EPA is evaluating PFOA and PFOS under the regulatory determination process, 

which builds on the work the agency completed in the health advisories for PFOA and 

PFOS and is an important step in the process for establishing a National Primary 

Drinking Water Regulation. 

As a part of the evaluation, the EPA will continue to carefully review the draft ATSDR 

Toxicological Profile and will consider all newly available scientific information, 

including the science used to develop state standards. 

33. When EPA conducted its Unregulated Contaminant Monitoring Rule (UCMR) 3 monitoring, 

it identified 63 drinking water systems 15 with combined PFOA and PFOS levels that 

exceeded EPA's health advisory levels. However, according to former EPA officials, EPA 

also received data related to PFAS detected at levels below EPA's health advisory level. For 

each category below, please provide a list of drinking water systems (including their 

location) whose UCMR 3 occurrence data fell into the specified range. 

a. Systems whose levels exceeded the combined PFOA and PFOS health advisory 

levels. 

b. Systems whose combined PFOA and PFOS levels were between 60-70 ppt. 

c. Systems whose combined PFOA and PFOS levels were between 50-60 ppt. 

d. Systems whose combined PFOA and PFOS levels were between 40-50 ppt. 

15 https://pfas-l.itrcweb.org/wp-content/uploads/2018/01/pfas fact sheet regulations 1 4 lS.pdf 

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e. Systems whose combined PFOA and PFOS levels were between 30-40 ppt. 

f. Systems whose combined PFOA and PFOS levels were between 20-30 ppt. 

To provide Americans, including the most sensitive populations, with a margin of 

protection from a lifetime of exposure to PFOA and PFOS from drinking water, the 

EPA has established the health advisory levels at 70 parts per trillion. EPA fact sheets 

state that when both PFOA and PFOS are found in drinking water, the combined 

concentrations of PFOA and PFOS should be compared with the 70 parts per trillion 

health advisory level. This health advisory level offers a margin of protection for all 

Americans throughout their life from adverse health effects resulting from exposure to 

PFOA and PFOS in drinking water. 

The EPA worked with states and public water systems (PWSs) to characterize the 

occurrence of six PFAS in the nation's drinking water served by PWSs by including six 

PFAS in the third Unregulated Contaminant Monitoring Rule (UCMR3) under the Safe 

Drinking Water Act (SDW A). From 2013-2015, at least one sample of drinking water 

was collected and analyzed for six PFAS in nearly 5,000 PWSs across the nation, 

accounting for approximately 80 percent of the U.S. population served by PWSs 

(approximately 250 million people). 

Under the UCMR3, the EPA found that 1.3 percent of the participating PWSs (63 out 

of 4,920 PWSs reporting) had at least one sample that measured PFOA, PFOS, or a 

combined value for PFOA and PFOS at concentrations greater than 70 ppt. The EPA 

found 4.0 percent of PWSs (198 out of 4,920 systems) reported results for which one or 

more of the six PFAS (PFOA, PFOS, perfluorononanoic acid (PFNA), perfluorohexane 

sulfonic acid (PFHxS), (perfluoroheptanoic acid) PFHpA, or perfluorobutane sulfonate 

(PFBS)) was measured at or above the minimum reporting limit (MRL) during one or 

more sampling events at one or more sampling locations. 

The final UCMR3 data set is publicly available on the UCMR occurrence data web 

page (h ttps://www .epa.gov /dwucmr/occurrence-data-unregu lated-contaminan tmonitoring-rule) as are the instructions for importing the UCMR3 results 

(https://www.epa.gov/sites/production/files/2016-08/documents/instructions-importingviewing-ucmr3-results.pd0 to filter, analyze, or view the analytical data under various 

scenarios, including the specified ranges in the question. However, please note the 

UCMR3 MRL for PFOA was 20 ppt and for PFOS was 40 ppt. The EPA has no 

numeric results below the MRLs. 

Questions on Past Commitments 

34. In Chad Mcintosh's September 2, 2018 letter to me, he made several commitments. For each 

of the following commitments drawn from that letter, please indicate whether the 

commitment has been met. If it has not been met, why not, and by what date will it be met? 

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a. "If confirmed, I will commit to working directly with the National Tribal Caucus 

(NTC), a national body of tribal advisors who focus primarily on identifying and 

addressing national, cross-media and emerging tribal environmental issues. I will 

commit to meeting with the NTC on at least an annual basis. In practice, 

discussions will likely occur on a monthly basis. I will commit to meeting with 

the entire National Tribal Operations Committee on an annual basis." 

b. "In addition, I commit to meeting with each of the Regional Tribal Operations 

Committee (RTOC) at least on an annual basis with my EPA regional 

counterparts, and commit to participating in key tribal meetings such as the 

National Congress of American Indians Annual Convention" 

c. "Should I be confirmed, I will enhance the strength of Tribal representation 

within EPA by hiring a member of a federally recognized tribe to be the Director 

of the American Indian Environmental Office within the Office of International 

and Tribal Affairs." 

Assistant Administrator Mcintosh's nomination was confirmed by the United States 

Senate on January 3, 2019. He officially began as Assistant Administrator on January 

18, 2019. 

Prior to his confirmation by the US Senate, in his capacity as Senior Counsel to the 

Administrator, Chad Mcintosh attended meetings with various tribal leaders in order 

to better understand EPA's federal responsibilities and the interests and concerns of the 

tribes. Last fall, Mr. Mcintosh participated in meetings with the Governor of the 

Pueblo of Santa Clara and Tribal Council representatives of the Nez Perce Tribe, as 

well as tribal organizations and associations, including the Alaska Native Village 

Cooperation Association. He also attended the EPA Region 9 Regional Tribal 

Operations Committee (RTOC) meetings, with EPA Region 9 Regional Administrator, 

Mike Stoker, in late October. 

In his capacity as the Assistant Administrator for International and Tribal Affairs here 

at EPA, Mr. Mcintosh is the Agency-lead for the National Tribal Operations 

Committee (NTOC) meeting, consisting of National Tribal Caucus representatives and 

EPA Senior Leadership. The NTOC meeting is being scheduled in Washington, D.C. in 

February, depending on the current government shutdown. I plan to co-chair the 

NTOC meeting when it is scheduled; Chad Mcintosh and other Assistant 

Administrators and Regional Administrators will also attend. 

Every year, Mr. Mcintosh will meet with the Regional Tribal Operations Committees in 

each of the 10 EPA regions. The Regional Administrators and Mr. Mcintosh take these 

meetings very seriously as a way to carry out EPA's responsibilities with Tribes and to 

consult and communicate with the Tribes. In addition, he will attend key Tribal 

meetings and directly visit Tribes throughout the year. 

The role of EPA's American Indian Environmental Office is very important. He is 

working with EPA's human resources office and with his colleagues here at the Agency 

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to identify and appoint a member of a federally recognized tribe to be Director of the 

American Indian Environmental Office as soon as possible. 

Now that he is confirmed as his letter noted and which is key to fulfilling these 

commitments, I know that Mr. Mcintosh will do everything in his power to meet his 

commitments throughout his appointment in an ongoing and transparent fashion. 

35. In your January, 2019 letter to me, you made several commitments. For each of the 

following commitments drawn from that letter, please indicate whether the commitment has 

been met. If it has not been met, why not, and by what date will it be met? 

a. "EPA will withdraw its OMB submission to propose revisions to these [worker 

protection] rules and will not make any changes to the designated representative 

and minimum age provisions." 

The Agency has been developing proposals concerning the Agricultural 

Worker Protection Standard (WPS) rule, including changes to the designated 

representative and minimum age provisions, and application exclusion zone 

(AEZ) provisions. The Agency has also been developing changes to the 

Certification of Pesticide Applicators (CPA) rule. Although the subject 

matter associated with these potential changes has been subject to wide 

ranging public stakeholder meetings and public comments, EPA will 

withdraw its OMB submission to propose revisions to these rules and will not 

make any changes to the designated representative and minimum age 

provisions. It may consider proposing revisions to the AEZ provision in the 

WPS rule, but to no other substantive provision in the WPS rule. If such a 

proposal is issued, it would be subject to a public notice and comment period 

of no less than 90 days. I will follow through on the commitments in my 

January 2019 letter to you. 

b. The Agency will promptly submit the methodology for deciding how to collect 

and evaluate scientific research related to a chemical's safety that was recently 

developed by the Office of Chemical Safety and Pollution Prevention (OCSPP) to 

the National Academy of Sciences (NAS) for peer review and feedback. 

Because it is important that all of the Agency's chemical safety efforts 

comply with the requirements in the law as well as the regulations 

implementing the Jaw regarding the Agency's use of the best available 

science, the EPA will, promptly submit the methodology for deciding how to 

collect and evaluate scientific research related to a chemical's safety that was 

recently developed by the Office of Chemical Safety and Pollution Prevention 

(OCSPP) to the National Academy of Sciences (NAS) for peer review and 

feedback and, at the same time EPA will use the Frank R. Lautenberg 

Chemical Safety for the 21st Century Act Section 26(o) mandated advisory 

committee, a FACA committee, whose purpose is to provide independent 

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advice and expert consultation with respect to the scientific and technical 

aspects of issues related to TSCA, to provide its independent advice on the 

methods used by OCSPP to collect and evaluate scientific research in the first 

ten risk evaluations. I also commit to make public the review, feedback and 

any recommendations received from both the NAS and the advisory 

committee within 30 days of their receipt. Finally, EPA will incorporate 

feedback and recommendations as appropriate. I will follow through on the 

commitments in my January 20191etter to you. 

Questions on the Shutdown 

36. Please describe how the on-going government shutdown is affecting EPA's efforts toa. Provide guidance to state drinking water programs; and 

b. Coordinate with states to keep toxic chemicals out of drinking water and respond 

to contamination events. 

EPA used carryover funding to keep the Agency open through December 28--one week 

beyond the lapse in appropriations, which occurred on December 21-and of course the 

lapse has now ended. During the shutdown, EPA had staff available to work on 

excepted activities such as providing emergency guidance to states and water systems 

when significant risk to human health occurs, conducting emergency response activities 

for contaminated drinking water, and providing assistance as necessary for other 

situations posing a danger to the public. For example, the State of New Jersey recently 

requested EPA staff to conduct critical work related to lead exposure in 

Newark. However, the EPA was not able to provide routine, non-emergency guidance 

or technical support to state drinking water programs during the government 

shutdown. Further information on EPA's shutdown procedures and activities that 

occurred during the lapse in funding can be found in the U.S. EPA Contingency Plan in 

the Event of a Government Shutdown (https://www.epa.gov/20181apse/us-epacontingency-plan-event-government-shutdown). 

3 7. Please provide an update on when you expect the following EPA regulatory actions to be 

completed assuming the government shut-down ends by a) February 15 2019 or b) April 1, 

2019. 

• National Primary Drinking Water Regulations for Lead and Copper (revisions to 

the so-called Lead and Copper Rule) proposed rule expected in February 2019 

according to the Fall 2018 Unified Agenda. 

• National Primary Drinking Water Regulations: Regulation of Perchlorate 

(pursuant to a consent decree entered by the U.S. District Court for the Southern 

District of New York, EPA was supposed to propose a Maximum Contaminant 

Level Goal (MCLG) for perchlorate in drinking water no later than October 31, 

2018 and finalize the MCLG no later than December 19, 2019). 

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Use of Lead Free Pipes, Fittings, Fixtures, Solder and Flux for Drinking Water 

(EPA proposed regulations to implement section 1417 of the Safe Drinking Water 

Act on January 17, 2017 with a stated goal in the Unified Agenda of finalizing 

that rule by June 2019). 

The EPA is working aggressively to develop proposed major revisions to the Lead and 

Copper Rule, which was last significantly updated in 1991. It is a complicated 

rulemaking, but EPA anticipates sending proposed revisions to OMB this spring. The 

same rulemaking team is working on the Lead Free Rule which the EPA plans to 

finalize in 2019. The EPA intends to maintain these rulemaking schedules; however, the 

agency will continue to evaluate the schedules in light of the government shutdown and 

make necessary adjustments. The consent decree deadline for the perchlorate 

rulemaking was extended to April30, 2019, to reflect the additional time required to 

address extensive peer reviewer recommendations to improve the scientific tools the 

agency is using to inform the proposed rule which was not anticipated at the time the 

decree was entered. The consent decree includes a provision that automatically extends 

deadlines in the event of certain circumstances outside the reasonable control of the 

EPA, such as lapses in government funding. 

3 8. EPW staff contacted your office via email on January 9, 2019 requesting the names of the 6 

EPA staff deemed "necessary to perform activities expressly authorized by law" and the 12 

EPA staff deemed "necessary to the discharge of the President's constitutional duties and 

powers" in EPA's December 31,2018 shutdown contingency plan. 

On January 10,2019 a member of your staff replied via email, writing "It has been difficult 

with limited resources to pinpoint. Still working on this." To date, no additional response 

failed to that email request has been received. 

Also on January I 0, 2019, members of the EPW committee sent you a letter requesting 

information about any EPA staffthat had been or was currently engaged in work related to 

your nomination. To date, no response to that letter has been received. 

On the evening of January 14,2019, reports surfaced that you had updated EPA's 

contingency plan to increase the number of EPA staff deemed "necessary to the discharge of 

the President's constitutional duties and powers" from 12 to 28, and increased the number of 

EPA staff deemed "necessary to perform activities necessarily implied by law" from zero (0) 

to 12. 

During your confirmation hearing you also admitted in an exchange with Senator Van Hollen 

that certain EPA staff were brought back to work from furlough during the government 

shutdown to prepare you for this hearing; 

Senator Van Hollen. And that there are approximately 891 who are on the 

job, is that approximately right? 

Mr. Wheeler. That sounds pretty exact, 891. It varies from day to day. We 

bring back people to work on specific issues. 

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Senator Van Hollen. Right. Including some that you brought on to prepare 

for this hearing, is that right? 

Mr. Wheeler. Yes, Senator. 

a. Please list the names and official titles of the 6 EPA staff deemed "necessary to 

perform activities expressly authorized by Jaw" in EPA's December 31,2018 

shutdown contingency plan. 

b. Please list the names and official titles of the 12 EPA staff deemed "necessary to 

the discharge of the President's constitutional duties and powers" in EPA's 

December 31,2018 shutdown contingency plan. 

c. Please list the names and official titles of 28 EPA staff deemed "necessary to the 

discharge of the President's constitutional duties and powers" in EPA's January 

I 4, 2019 contingency shutdown plan. 

d. Please list the names and official titles of the 12 EPA staff deemed "necessary to 

perform activities necessarily implied by law" in EPA's January 14, 2019 

contingency shutdown plan. 

e. For each EPA staff member described in questions (a) through (d), please provide 

their work schedules and an accounting of each hour worked by each of those 

staff, as applicable, on any work activity related to your nomination or the 

confirmation process, and a description of the task or work function performed 

during that time. 

f. Please submit all letters, emails, memoranda, or other written or electronic 

correspondence prepared, transmitted, or received by each EPA staff member 

described in questions (a) through (d) that relates to your nomination or 

confirmation process. 

g. At any time since December 29, 2018, has any EPA staff member not 

encapsulated by questions (a) through (d) engaged in work activities related to 

your nomination or the confirmation process? 

h. If your answer question (g) is yes, please list the names and official titles of those 

individuals. 

1. If your answer to question (g) is yes, please submit all letters, emails, memoranda, 

or other written or electronic correspondence prepared, transmitted, or received by 

those EPA staffmember(s) that relates to your nomination or the confirmation 

process. 

j. If your answer to question (g) is yes, please submit work schedules and an 

accounting for hours worked by each of those EPA staff, as applicable, on any 

work activity related to your nomination or the confirmation process, including a 

description of the task or work function performed during that time. 

k. Please list the names and official titles of the 12 EPA staff deemed "necessary to 

perform activities implied by law" that were added to EPA's contingency plan for 

the first time on January 14, 2019? What change in law or circumstance occurred 

between December 3 l, 2018 and January I 4, 2019 lead you to add those 12 EPA 

staff after you originally estimated that no EPA staff would be necessary to 

perform activities implied by law? 

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I. What work activities are the 12 EPA staff deemed ''necessary to perform activities 

implied by law" by the January 14, 2019 EPA shutdown contingency plan 

engaged in? Are any of those 12 EPA staff engaged in work activities or 

functions related to your nomination or the confirmation process? 

m. Were any of the additional EPA staff added to the December 29,2018 EPA 

shutdown contingency plan by the January 14, 2019 EPA shutdown contingency 

plan engaged in work activities or functions related to your nomination or 

confirmation process prior to January 14, 20 19? 

n. If your answer to question (m) is yes, please list the names and official titles of 

any such EPA staff member or members. 

OMB Circular A-11, Section 124.2 defines 5 categories of employees that must be 

accounted for in the Contingency Plan: 

Their compensation is financed by a resource other than annual appropriation; 

They are necessary to perform activities expressly authorized by law; 

• They are necessary to perform activities necessarily implied by law; 

• They are necessary to the discharge of the President's constitutional duties and 

powers; 

They are necessary to protect life and property. 

Attached, please find a list of excepted employees. All excepted employees were 

instructed to only work the number of hours that were needed to complete their 

excepted duties. The number of excepted employees also fluctuated depending on the 

needs of the organization. While the majority of EPA's excepted employees were 

excepted as necessary to protect life and property, we had personnel numbers under 3 

other categories: 

The Agency's Presidentially appointed/senate confirmed individuals are 

necessary to perform activities expressly authorized by law. 

• In the January 14th Contingency Plan, 12 individuals were deemed necessary to 

perform activities necessarily implied by law. These employees, from the Office 

of the Chief Financial Officer, were added to process payments for services 

rendered for excepted activities where there is an imminent threat to the safety 

of human life and property and funds are available. 

• Individuals working on the Acting Administrator's hearing preparation were 

identified as necessary to the discharge of the President's Constitutional duties 

and powers. This number increased between the December 31'' and January 14'h 

Contingency Plans according to the work needed to directly support the Hearing 

preparation activities. 

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39. Have any EPA contractors, sub-contractors, or independent contractors performed work 

activities or functions related to your nomination or the confirmation process since December 

29, 20 18? If so, please list the names and official titles of those individuals. 

No. 

40. How many total hours have been spent by you and EPA staff discussing, researching or 

otherwise preparing for your nomination and the confirmation process, including your 

confirmation hearing testimony and responding to questions for the record? 

It is difficult to estimate hours by me or EPA staff discussing, researching, or otherwise 

preparing for the nomination hearing. However, I can advise you that I met with each 

program office once or twice to discuss a variety topics and programs they suggested to 

highlight and specific questions I had within the work of each program office. I 

followed those individual meetings with a meeting with all offices to ensure that I had a 

comprehensive review of our activities and programs to be able to fully answer 

Congressional questions. I do not believe we are able to assign a specific number of 

hours to the process for all individuals involved. However, I do hope this description of 

our general preparation will be helpful to you. 

41. In 2017 EPA conducted roughly 12,000 inspections to make sure that air, water and toxic 

waste rules were being complied with. That's more than 230 each week. How many 

inspections has EPA conducted in the approximately three weeks since December 29, 20 I 8? 

EPA did not conduct any routine, planned civil enforcement inspections since 

December 29,2018, until the agency reopened after January 25,2019. Criminal 

investigations continued, including laboratory support for those investigations. 

Emergency response personnel continued to respond as appropriate to accidental 

releases. Superfund personnel continued to do work, including soil, air and water 

sampling, at sites that may present an imminent threat to the safety of human life or to 

the protection of property. In addition, this question assumes that inspections are 

conducted evenly throughout the year. In actuality, the majority of inspections occur 

during the summer and warmer months. 

a. Has the ability of EPA's pollution inspectors to monitor air emissions been 

impacted or diminished in any way by the federal government shutdown, yes or 

no? 

Entities regulated under the Clean Air Act remain subject to requirements to 

monitor, record, and report air emissions in accordance with federal and 

state regulations and permits. 

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b. Has EPA's ability to monitor and test for water contamination been impacted or 

diminished in any way by the federal government shutdown, yes or no? If yes, 

please describe the impact of halted inspections during the shutdown on human 

health and the environment. 

Entities regulated under the Clean Water Act remain subject to 

requirements to test and monitor for water contamination in accordance 

with their permits. NPDES permit holders should be continuing to submit 

discharge monitoring reports to either state systems or EPA's data system 

(ICIS). 

Reviewing those monitoring results was not considered an excepted activity 

under EPA's lapse plan, so staff did not review monitoring and test results 

during that time. 

Now that the government has reopened, EPA plans to update ICIS with 

submissions that were made during the shutdown. 

42. I recently learned that samples of GenX, an unregulated, PFOA-Iike contaminant used to 

make nonstick cookware and other products, are sitting in refrigerators near the Lower Cape 

Fear River in Fayetteville, North Carolina because EPA's lab in Athens, GA has been shut 

down. 

a. Please confirm whether this is true. 

It is our understanding, during the shutdown, that North Carolina 

Department of Environmental Quality (NCDEQ) held approximately seven 

samples/week in NCDEQ's Regional Office in Fayetteville. We also 

understand the NCDEQ is explored options for alternative analysis of the 

samples. Region 4 intends to promptly determine the number of remaining 

samples needing analysis and provide support to NCDEQ now that the 

Agency has returned to work. 

b. If so, please provide a list of similar situations where EPA's ability to monitor and 

test for water contamination has been affected by the government shutdown. 

As noted in response to question 41, where PFAS are subject to permit 

limitations, monitoring data should continue to be collected and reported by 

the permit holder. In addition, all Chemours facilities in North Carolina, 

West Virginia and New Jersey are subject to a TSCA section S(e) order that 

requires monitoring of PFAS releases. Information on any activities 

undertaken in support of PFAS related enforcement investigations is 

confidential. However, except in cases involving imminent threats to the 

safety of human life or to the protection of property EPA enforcement 

investigations were suspended during the shutdown. 

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EP A/ORD is also providing technical support to several other states in 

addition to North Carolina relating to possible PFAS water contamination. 

These states include New Hampshire, New Jersey, West Virginia, New York, 

Michigan, and Minnesota. The government shutdown impacted EPA's 

ability to provide the requested technical support to these states as well, 

including delays in analyses and reporting ofPFAS in environmental media 

and in the development of additional study plans for future analyses of 

PFAS. 

43. I recently learned that EPA has had to stop sampling air emissions in Louisiana for 

chloroprene. 

a. Please confirm whether this is true. 

b. If so, please provide a list of similar situations where the ability of pollution 

inspectors to monitor air emissions been impacted or diminished due to the 

government shutdown. 

The Denka community air monitoring for chloroprene at six locations in LaPlace, 

Louisiana is continuing as part of EPA's activities to protect public health. News 

outlets incorrectly reported that EPA air monitoring had ceased during the shutdown 

and EPA reached out to the reporter with correct information on January 2 and 3, 

2019, respectively. EPA also notified the state of Louisiana, citizen's science advocate 

Wilma Subra, and Louisiana Environmental Action Network (LEAN) President 

Marylee Orr of the reporting error. EPA posted the latest set of quality assured data 

from November on its website (https://www.epa.gov/la/laplace-st-john-baptist-parishlouisiana) on December 26, 2018. 

Denka is the only facility with chloroprene emissions so there are no other similar 

situations. 

44. I have heard that EPA was forced to cancel a public hearing on cleanup proposals for the 

former West Calumet Housing Complex in East Chicago, Indiana. 

a. Please confirm whether this is true. 

EPA proposed an Amendment to Record of Decision for the residential area 

(Zone 1) for the USS Lead facility in East Chicago, Indiana on November 7, 

2018. EPA held a public hearing on November 29,2018 in East Chicago, IN 

to provide opportunity for input on the proposed remedy for Zone 3 of the 

USS Lead Superfund site. Members of the East Chicago community 

requested a second opportunity to provide public comment prior to the 

January 14, 2019 public comment deadline. EPA granted this request and 

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scheduled a second public hearing for January 10, 2019. This hearing was 

postponed due to the partial federal government shutdown. 

b. EPA's Office of Land and Emergency Management, which oversees cleanup of 

Toxic Superfund sites, is currently down from 468 staffers to 3. Has Superfund 

site monitoring or oversight been impacted or diminished in any way during the 

government shutdown as compared to the same time period last year? If so, 

please quantify all such impacts. 

The number of employees that were excepted working nationwide on 

Superfund issues was dynamic and varies by region since the agency directs 

work to meet specific needs as allowed by law. EPA Headquarters and 

Regional excepted staff in the Superfund Program continue to respond at 

sites or incidents where there was an imminent threat to the safety of human 

life or to the protection of property. Ongoing work at Superfund sites also 

continued without EPA involvement up to the point that additional EPA 

direction or funding is needed. Now that the government has reopened, 

cleanup activities requiring new funding will restart and sites where cleanup 

activities had been stopped or shut down are able to commence. 

45. Have you or any member of EPA staff directed EPA's Office of General Counsel (OGC) to 

engage in any work since December 29, 20 18? Please provide this Committee with a 

comprehensive list of the types and scope of work performed by OGC staff since December 

29, 2018, noting specifically any task that relates to (i) your nomination or confirmation 

hearing; (ii) pending or ongoing regulatory matters; and (iii) enforcement actions or consent 

decrees. 

The Office of General Counsel (OGC) worked on excepted activities since December 29, 

2018 providing significant legal advice on permissible activity during the shutdown. 

OGC appropriations law experts responded to questions from numerous EPA offices 

regarding whether certain agency activities could continue during the lapse in 

appropriations and have engaged regularly with OMB counsel to ensure excepted 

functions comport with legal requirements. In consultation with the Department of 

Justice (DOJ), OGC sought to extend court filing deadlines and court-ordered deadlines 

to take regulatory actions. In instances where an extension was not granted, the Agency 

worked with DOJ to draft required filings and continued work on pending regulatory 

actions to meet court-ordered deadlines. OGC also provided legal review and counsel 

connected to preparing for the confirmation hearing and responding to post-hearing 

Questions for the Record. 

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46. On December 28,2019, EPA tweeted: "Due to a lapse in appropriations, EPA websites and 

social media will not be regularly updated .... In the event of an environmental emergency 

threatening the safety of human life or to protect certain property, epa.gov will be updated 

with appropriate information." Aside from a post on January I 0, 2019 announcing an 

enforcement settlement with Fiat Chrysler, EPA's social media accounts have been silent 

since EPA closed on December 29, 2018. However, on the day of your confirmation hearing, 

January 16, 2019, EPA's Twitter feed began posting messages promoting your nomination, 

including encouraging the public to watch your hearing, quoting statistics from your 

testimony, and posting an op-ed from Chairman Barrasso praising your nomination. On that 

same day, EPA also issued press releases to reporters with Chairman Barrasso's op-ed and 

your written testimony. 

a. Have you or any member of EPA staff directed EPA's Office of Public Affairs 

(OPA) to engage in any work since December 29, 20 18? 

A portion of the staff within the EPA's Office of Public Affairs engaged in 

work during the shutdown. This work included preparing the Acting 

Administrator for his confirmation hearing, participating in preparatory 

briefings, drafting briefing documents, coordinating a comprehensive list of 

Agency accomplishments, as well as preparing the Acting Administrator's 

opening statement for the confirmation hearing. In addition, OPA staff 

worked on the communications materials for the Fiat Chrysler enforcement 

settlement announcement with the Department of Justice, in order to comply 

with a court order. Other activities included responding incoming press 

inquiries about Superfund and Emergency Removal sites that fall under the 

environmental emergency threatening the safety of human life or property 

category. Finally, OPA assisted the Acting Administrator in tweeting 

condolences to the family of former EPA Administrator Doug Costle, on his 

passing. 

b. Do you consider your nomination or confirmation to constitute an "environmental 

emergency threatening the safety of human life" or property? If so, do you believe 

your nomination and confirmation warranted requiring furloughed OPA staff to 

draft and post on social media accounts? 

Work associated with my nomination and confirmation is pursuant to the 

President's constitutional appointment power, and necessary to allow the 

Senate to fulfill its constitutional role of advice and consent on the 

President's nominees. All EPA staff working on the nomination hearing were 

acting in response to those authorities. This work constitutes an excepted 

activity that occurred during the lapse in appropriations for the following 

reasons. First, it falls under the President's constitutional authority under 

the Appointments Clause and is necessary for the President's discharge of 

that authority. And, second, as the legislative branch has enacted 

appropriations for FY 2019 and is not subject to the lapse in the 

appropriations, my participation in the scheduled hearing was necessary for 

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the Congress's funded function to be effective (and my absence from my own 

confirmation hearing would significantly damage the Committee's 

confirmation hearing), and was therefore necessarily implied to continue 

during EPA's lapse in appropriations. This is consistent with the December 

13, 1995 Office of Legal Counsel decision, Effect of Appropriations for Other 

Agencies and Branches on the Authority to Continue Department of Justice 

Functions During the Lapse in the Department's Appropriations. The OMB 

General Counsel concurred with EPA that I could prepare for and 

participate in his confirmation hearing and receive support from EPA staff 

as necessary to prepare for and participate in the hearing. 

c. Please provide this Committee with a comprehensive list ofthe types and scope of 

work performed by OPA staff since December 29, 2018, noting specifically any 

task that relates to (i) your nomination or confirmation hearing; (ii) pending or 

ongoing regulatory matters; and (iii) enforcement actions or consent decrees. 

A portion of the staff within the EPA's Office of Public Affairs engaged in 

work during the shutdown. This work has included OPA staff worked on 

preparing the Acting Administrator for his confirmation hearing, 

participating in preparatory briefings, drafting briefing documents, 

coordinating a comprehensive list of Agency accomplishments, as well as 

preparing the Acting Administrator's opening statement for the 

confirmation hearing. In addition, OPA staff worked on the communications 

materials for the Fiat Chrysler enforcement settlement announcement with 

the Department of Justice, in order to comply with a court order. Other 

activities included responding incoming press inquiries about Superfund and 

Emergency Removal sites that fall under the environmental emergency 

threatening the safety of human life or property category. Finally, OPA 

assisted the Acting Administrator in tweeting condolences to the family of 

former EPA Administrator Doug Costle, on his passing. 

4 7. Tens of thousands of EPA staff and contractors were furloughed after the federal government 

was shut down and others have been asked to work for little or no pay. 

I sympathize with those impacted by the shutdown. I remember experiencing a 

shutdown as a career EPA employee in the 1990s. As a general matter, the Privacy Act 

of 1974 limits the types of information about individuals that federal agencies can 

collect and how that information can be maintained. EPA has not collected the 

information referenced in this question, as that information has no connection with our 

specific statutory mission, and my understanding is that these types of records would 

not be excepted from the Privacy Act in any event. 

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a. How many EPA staff or contractors have missed or made late rent or mortgage 

payments, or are facing eviction or foreclosure? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

b. How many EPA staff or contractors have missed or made late student loan 

payments during the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

c. How many EPA staff or contractors have missed payments on auto loans or leases 

during the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

d. How many EPA staff or contractors have missed credit card payments, or 

incurred credit card interest as a result of their inability to make those payments? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

e. How many EPA staff or contractors have been unable to pay for child care during 

the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

f. How many EPA staff or contractors have been unable to pay medical expenses for 

themselves or their families during the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

g. How many EPA staff or contractors have filed for unemployment benefits? 

The EPA has posted guidance generated from the Office of Personnel 

Management to assist its employees with any financial challenges they are 

facing during the shutdown. Currently, a total of 1,645 EPA employees have 

applied for unemployment benefits as of January 22, 2019. We do not have 

any information on the nonfederal workforce. The EPA does not have any 

way to track any other specific information regarding EPA employees or 

contractors' financial hardships during this time period. 

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h. How many EPA staff or contractors have attempted to get part-time or temporar) 

jobs during the shutdown? 

It is inappropriate for the EPA to ~;ollect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

i. How many EPA staff or contractors have had their credit scores impacted by the 

shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

j. How many EPA staff or contractors have applied for private loans to make ends 

meet during the shutdown? How many were rejected? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

k. How many EPA staff or contractors have been forced to spend money from their 

savings accounts, retirement accounts, 40 I ks, pension funds, or children's 529 

college funds as a result of the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

I. How many EPA staff or contractors have been forced to secure, or attempt to 

secure private loans or additional lines of credit as a result of the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

m. How many EPA staff or contractors have been forced to pawn or sell personal 

effects or real property as a result of the shutdown? 

It is inappropriate for the EPA to collect, maintain, or disseminate such 

personal information for any of its employees or contractors. 

48. It is my understanding that the EPA-managed projects listed below have stopped due to the 

shutdown. 

a. Please confirm whether that is true for each project. 

No emergency responses were halted during the shutdown. 

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b. In addition, please supplement this list with additional similar projects around the 

country that are halted because of the shutdown. 

i. Camp Fire, Paradise, CA (household waste cleanup) 

The activities associated with the cleanup of household waste resulting 

from the Camp Fire continued during the shutdown. 

ii. Whiting Metals, Whiting, Indiana (cited for harmful levels of airborne 

lead) 

Air Monitoring via EPA's XACT monitor continued during the 

shutdown at the Whiting Metals site in Whiting, IN with IDEM, the 

state environmental agency, conducting some routine maintenance on 

the equipment. IDEM continues to conduct filter-based monitoring on 

site, collecting a sample every third day. 

iii. SH Bell, East Liverpool, Ohio (fence line monitoring, cited for airborne 

manganese) 

Although US EPA oversees the ambient air monitoring performed at 

SH Bell, East Liverpool, OH, the operation and maintenance is 

conducted by the company and is required to continue through an 

enforceable document. SH Bell East Liverpool is required by its 

consent decree with the US Department of Justice and US EPA to 

perform monitoring. The obligation for the facility to continue 

monitoring was not impacted by the temporary interruption of EPA's 

oversight during the partial government shutdown. 

iv. SH Bell, Chicago, Illinois (fence line monitoring, cited for airborne 

manganese) 

Although US EPA oversees the ambient air monitoring performed at 

SH Bell, Chicago, IL, the operation and maintenance is conducted by 

the company and is required to continue through an enforceable 

document. SH Bell Chicago is required to monitor by a Clean Air Act 

Section 114 Information Request that was issued by US EPA. The 

obligation for the facility to continue monitoring was not impacted by 

the temporary interruption of EPA's oversight during the partial 

government shutdown. 

v. Watco, Chicago, Illinois (fence line monitoring, cited for airborne 

manganese) 

Although US EPA oversees the ambient air monitoring performed at 

Watco, Chicago, IL, the operation and maintenance is conducted by 

the company and is required to continue through an enforceable 

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document. Watco is required to monitor by a Clean Air Act Section 

114 Information Request that was issued by US EPA. The obligation 

for the facility to continue monitoring was not impacted by the 

temporary interruption of EPA's oversight during the partial 

government shutdown. 

vt. Sterigenics, Willowbrook, Illinois (ethylene oxide) 

EPA Air Monitoring sample collection continued during the partial 

government shutdown. The Office of Air Quality Planning and 

Standards has been analyzing the data. 

vii. CII Rain Carbon, Robinson, Illinois (cited for airborne particulate matter) 

Although US EPA reviews the ambient air monitoring performed at 

CII Carbon, Robinson, IL, the operation and maintenance is 

conducted by the company and is required to continue through an 

enforceable document. CII Carbon is required to monitor by a Clean 

Air Act Section 114 Information Request that was issued by US EPA. 

The obligation for the facility to continue monitoring not impacted by 

the temporary interruption of EPA's oversight during the partial 

government shutdown. 

viii. NASCO, Chicago, Illinois (awaiting results of metal and particulate matter 

monitoring 

Although US EPA reviews the ambient air monitoring performed at 

NASCO, Chicago, IL, the operation and maintenance is conducted by 

the company and is required to continue through an enforceable 

document. NASCO is required to monitor by a Clean Air Act Section 

114 Information Request that was issued by US EPA. The obligation 

for the facility to continue monitoring was not impacted by the 

temporary interruption of EPA's oversight during the partial 

government shutdown. 

ix. General Iron, Chicago, Illinois (cited for Volatile Organic Compounds) 

There is no pending testing to be performed at General Iron. 

x. USS Lead, East Chicago, Illinois (superfund emergency removal for lead, 

relocation of residents, soil removal) 

The USS Lead cleanup did not stop work due to the shutdown. The 

residential yard cleanups were suspended prior to the shutdown due 

to the winter weather. It is anticipated that cleanup will start again in 

the spring as previously planned. 

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xi. St. Regis Paper Co., Cass Lake, Minnesota (clean-up of dioxin, 

pentachlorophenol, PAHs) 

The remedial site does not have any active cleanup occurring at this 

time. The shutdown did suspend progress on finalizing a proposed 

cleanup plan for public comment. 

xii. Lukenheimer Foundry, Cincinnati Ohio (clean-up of heavy metals, 

corrosives, ignitable wastes) 

This removal action was suspended during the shutdown. 

xiii. Graveyard Auto, Clarksville, Indiana (clean-up of leaking drums) 

EPA has secured drummed waste onsite in a Con ex box at the site. 

The remaining site activities, including waste disposal and soil 

excavation, are on hold pending action memo approval, which was 

suspended during to the shutdown. 

xiv. C&H Mineral, Hubbel, Ml (clean-up delayed of arsenic, lead) 

This time-critical removal action did not stop due to the shutdown. 

The site is located in Upper Peninsula of Michigan, and construction 

was suspended due to the weather. It is scheduled to begin in the 

spring or as soon as weather condition permit construction. 

49. EPA's Safe Drinking Water Information System (SDWIS) identifies which public water 

systems are in violation of drinking water standards and provides information on the severity 

of each violation. Unfortunately, a recent assessment of SDWIS drinking water reports 

indicates a major drop in enforcement actions. It appears that as a result of the government 

shutdown, EPA did not make its quarterly Dec 31, 2018 update to SDW1S. This means that 

communities will not have the most up-to-date information on the quality of their drinking 

water. 

a. Please confirm whether it is true that EPA is unable to update SDWIS because of 

the government shutdown. 

b. If you answered the first question in the affirmative, please explain the rationale 

behind your determination to allocate resources away from updating drinking 

water contamination data and to your confirmation hearing preparations. 

The EPA did not complete its quarterly update of SDWIS before December 31,2018 

and will perform the update now that when Congress has provided appropriations for 

the agency. The data entered in SDWIS is provided by the communities that collected 

the data, meaning they already have access to their own drinking water quality 

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information. SDWIS contains information about public water systems and their 

violations of the EPA's drinking water regulations, as reported to the EPA by the states. 

The state agency with primary enforcement responsibility has access to the compliance 

data and is responsible for enforcing any public notification requirements to ensure 

that water systems provide safe water to their customers. Updating SDWIS, a federal 

database, does not satisfy the requirements of an excepted activity under the AntiDeficiency Act, therefore EPA could not perform updates during the government 

shutdown. 

Questions on Congressional Correspondence 

50. For approximately the past year and a half, EPA has consistently provided documents 1 have 

requested in oversight letters at the same time or earlier than the same materials were being 

provided to Freedom of Information Act (FOlA) requestors or House Committee Chairs. 

Will you commit to continuing this practice of providing me with responsive materials at the 

same time they are provided to House Committee Chairs and FOIA requestors, or sooner? If 

not, please explain why not. 

Yes. 

51. Since you took the helm at EPA as Acting Administrator on July 6, 2018, I and members of 

this Committee have sent you many letters containing document requests that remain 

unanswered. A number of letters that were sent to your predecessor also lack complete 

responses. By what specific date should we expect to receive EPA's complete response to 

each of the following letters? 

a. April 4, 2017 -letter on political appointees' obstruction of career staffs 

estimates related to the implementation of the HONEST Act 

EPA provided a response on August 23, 2017. 

b. April 6, 2017 and April 14, 2017 -letters on EPA's withdrawal of an Information 

Collection Request sent to the oil and gas industry 

EPA provided a response on May 31, 2017. 

c. April 7, 2017 - letter on EPA's plans to rescind the Clean Power Plan 

EPA provided a response on May 9, 2017. 

d. August 31, 20 !7 - letter on secrecy at EPA 

We look forward to continuing to work with your staff to provide a response. 

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e. October 25, 2017 -letter detailing concerns about the lead and copper rule 

EPA provided a response on January 29,2018. 

f. October 26, 2017 -letter on EPA's decision to repeal the Clean Power Plan 

EPA provided a response on November 28, 2017. 

g. December 13, 2017 -letter on EPA's Sue and Settle Directive 

EPA provided a response on January 30,2018. 

h. January 9, 2018 -letter on Mr. Pruitt's appointment of two scientists to serve on 

EPA's Federal Advisory Committees who have financial conflicts of interest 

We look forward to continuing to work with your staff to provide a response. 

i. January 18, 2018- letter on a range of topics, including TSCA, climate change, 

and fuel efficiency standards 

EPA provided a response on May 10,2018. 

j. January 19, 2018 -letter on Mr. Pruitt's meetings with industry 

EPA provided a response on August 21, 2018. 

k. January 19, 2018- letter on transparency, enforcement, and various other 

concerns 

EPA provided a response on August 2, 2018. 

I. March 6, 2018 -letter on Mr. Pruitt's wasteful spending 

EPA provided a response on August 21,2018. 

m. March 12,2018 -letter on EPA's decision to repeal emissions standards for 

glider trucks 

EPA provided a response on October 16,2018. 

n. March 14, 2018 - letter on EPA's reversal of the once-in-always-in policy 

EPA provided responses on June 6, 2018, and July 9. 

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o. April3, 2018 -letter on Mr. Pruitt's decision to reverse EPA's prior 

determination on greenhouse gas tailpipe standards 

EPA provided a response on June 6, 2018, and subsequent link to documents 

responsive to this letter on November 21. 

p. April 3, 2018 -letter on Mr. Pruitt's December 2017 trip to Morocco 

We look forward to continuing to work with your staff to provide a response. 

q. April 9, 2018- letter on Mr. Pruitt's use of Safe Drinking Water Act authority to 

award large pay raises to favored aides 

A link to documents responsive to this request was sent on August 31,2018. 

We look forward to continuing to work with your staff to provide a response. 

r. Apri112, 2018 -letter on Mr. Pruitt's multiple ethics and wasteful spending 

practices 

A link to documents responsive to this request was sent on May 4, 2018, 

August 21, and November 20. We look forward to continuing to work with 

your staff to provide a response. 

s. April24, 2018 -letter on EPA's drafting of the secret science rule and its major 

flaws 

We look forward to continuing to work with your staff to provide a response. 

t. May 3, 2018 -letter on EPA's signing of a Cooperative Research and 

Development Agreement with Water-Gen 

We look forward to continuing to work with your staff to provide a response. 

u. May I 5, 2018 -letter on reports that the White House prevented the release of a 

study concluding that PF AS poses a danger to human health at lower levels than 

set by EPA 

EPA provided a response on May 21,2018. 

v. May 17, 2018 -letter on EPA's significant delay of the IRIS assessment on 

formaldehyde 

EPA provided a response on July 5, 2018. 

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w. May 21, 2018- letter on Mr. Pruitt's compliance with rules governing his legal 

defense fund 

EPA provided a response on July 31,2018. 

x. June 27,2018 -letter on EPA's reduced enforcement of the Clean Water Act 

We look forward to continuing to work with your staff to provide a response. 

y. November 15,2018 -letter on EPA's federal advisory committees 

We look forward to continuing to work with your staff to provide a response. 

z. December 3, 2018 -letter on the Trump Administration's preparation and release 

of the Fourth National Climate Assessment 

We look forward to continuing to work with your staff to provide a response. 

aa. December 6, 2018 -letter regarding EPA's compliance with GSA's travel 

regulations 

We look forward to continuing to work with your staff to provide a response. 

bb. December 19, 2018- letter requesting communications between industry and 

EPA about fuel economy or greenhouse gas tailpipe standards 

We look forward to continuing to work with your staff to provide a response. 

cc. January I 0, 2019 -letter requesting documents related to the government 

shutdown and use of furloughed staff to prepare you for your confirmation 

hearing 

We look forward to continuing to work with your staff to provide a response. 

dd. January I 0, 2019 -letter on Diane Hendricks' $50,000 contribution to Scott 

Pruitt's legal defense fund 

We look forward to continuing to work with your staff to provide a response. 

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Questions on other Clean Air Act issues 

52. The Ozone Transport Commission has documented electric generating units (EGUs) that 

appear to have turned off their nitrogen oxide (Nox) controls. What are the public health and 

environmental impacts of these actions? Are downwind states including Maryland, Delaware 

and Connecticut adversely impacted by transported NOx and/or ozone? 

The Clean Air Act's "good neighbor" provision requires EPA and states to address 

interstate transport of air pollution that affects downwind states' ability to attain and 

maintain National Ambient Air Quality Standards (NAAQS). Specifically, Clean Air 

Act section 110(a)(2)(D)(i)(I) requires each state in its State Implementation Plan (SIP) 

to prohibit emissions that will contribute significantly to nonattainment of a NAAQS, or 

interfere with maintenance of a NAAQS, in a downwind state. 

EPA has determined that the Cross-State Air Pollution Rule (CSAPR), the CSAPR 

Update, and the CSAPR Close-out (finalized 12/6/18) fully address states' good 

neighbor obligations for the 1997 and 2008 ozone NAAQS and the 1997 and 2006 

PM2.5 NAAQS. For power plants covered by this program for cross-border ozone, 

nitrogen oxide emissions have dropped by over 20 percent- roughly 80,000 tons- just 

since the 2016 ozone season. 

The recently finalized CSAPR Close-out rule determined that emission reductions 

under the CSAPR Update will sufficiently control transported ozone pollution with 

respect to the 2008 ozone NAAQS in states covered by the Update. EPA is actively 

working with states to provide the technical tools and information to facilitate "good 

neighbor" state plans addressing interstate transport under the 2015 ozone NAAQS. 

More information on EPA's efforts to address interstate ozone transport is available at: 

https://www.epa.gov/interstate-air-pollution-transport. 

53. In your August I, 2018 hearing before the EPW Committee, you said you could not "predict 

with certainty" the effects EPA's rollbacks would have on transport pollution and attainment 

status for states. In part, that is because at the time EPA had not modeled any of the effects 

these rules may or may not have on states. Since that time, has EPA modeled the effects of 

the proposed clean air regulations and changes in guidance on air pollution and transport 

pollution? 

The U.S. is a global leader in clean air progress, and EPA expects these trends to 

continue in the future. For example, as part of its effort to provide data and analyses to 

support state planning efforts, EPA projects that nearly all areas of the country will 

meet the 2008 and 2015 ozone standards in the early 2020s. These projections are based 

on an air quality modeling platform which includes emissions, meteorology and other 

inputs for a base year as well as emissions for a future analytic year base case. EPA 

projections are based on a number of key inputs, including on-the-books rules. For the 

actions identified, EPA regularly conducts accompanying analyses to evaluate relevant 

regulatory impacts. 

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This progress builds upon recent trends which are not driven solely by Clean Air Act 

requirements. Between 2007 and 2017, emissions of nitrogen oxide (NOx), the key 

contributor to ground-level ozone, have dropped in the U.S. by more than 40 percent. 

For power plants that EPA and states regulate to address cross-border ozone 

contributions, NOx emissions dropped by 77,000 tons (21 percent) just between the 

2016 and 2017 ozone seasons. From 1970 to 2017, the combined emissions of the six key 

pollutants regulated under the National Ambient Air Quality Standards dropped by 73 

percent, while the U.S. economy grew more than 260 percent and the population 

continued to expand. 

a. If the Affordable Clean Energy Act goes final, how will that affect downwind 

pollution and the states' ability to meet attainment status for all National Ambient 

Air Quality Standards (NAAQS), and State Implementation Plans (SIPs), since 

EPA estimates there will be an increase in sulfur dioxide and ozone pollution 

from this rule? 

The proposed Affordable Clean Energy (ACE) rule is projected to 

significantly reduce emissions, including sulfur dioxide (7,000 to 15,000 tons), 

and nitrogen oxides (8,000 to 15,000 tons). The Clean Power Plan (CPP) was 

stayed by the Supreme Court and thus never achieved any emission 

reductions. 

b. If EPA rescinds MATS, how will that affect downwind pollution, the states' 

ability to meet attainment status for all NAAQS and SIPs? 

EPA has not proposed to remove or delist electric generating units from the 

list of source categories subject to regulation under Section 112, nor 

proposed to rescind the emission standards to which those units are currently 

subject. 

c. What are the effects of the "once in, always in" change in guidance on downwind 

pollution, the states' ability to meet attainment status for all NAAQS and SIPs? 

In a 2007 proposed rule, EPA projected that rescinding the "once in, always 

in" policy would result in an overall reduction in emissions. Further, a 

rulemaking currently underway to implement the January 2018 interpretive 

rule, rescinding the "once in, always in" policy, will provide further 

information regarding the expected emission consequences of this action. 

d. What are the effects of the New Source Review changes in guidance on 

downwind pollution, the states' ability to meet attainment status for all NAAQS 

and SIPs? 

EPA does not expect the improvements it has been making to the New Source 

Review program to have any adverse effects on states' ability to meet 

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attainment status. Where EPA is following up on its NSR guidance with 

rulemaking, appropriate analyses addressing this matter will be undertaken. 

e. How will the changes in regulating methane emissions from oil and gas affect 

downwind pollution, the states' ability to meet attainment status for all NAAQS 

and SIPs? 

EPA's proposed targeted improvements to the 2016 New Source 

Performance Standards for the oil and gas industry would streamline 

implementation, reduce duplicative EPA and state requirements, and 

significantly decrease unnecessary burdens on domestic energy producers. 

The accompanying regulatory impact analysis (RIA), which discusses the 

emissions impacts of this proposal, is available at: 

h ttps:/ /www .epa.gov /sites/prod u ction/files/20 18-

09/documents/oil and natural gas nsps reconsideration orooosal ria.pdf. 

The RIA notes that, due to the high degree of variability in ozone and 

particulate matter responsiveness to volatile organic compounds, EPA did 

not evaluate the effects on attainment status. 

54. Can you name three policies you have formally proposed (not just announced that you will 

propose) or implemented that the scientific community believes will actually lead Americans 

to breathe LESS toxic air pollution than they would have had all the protective rules 

implemented by President Obama stayed in place? 

Virtually all of EPA's recent Clean Air Act proposed and final actions would result in 

continued reductions of air pollution, including hazardous air pollutants, criteria 

pollutants like ozone and particulate matter, as well as greenhouse gases. For example, 

the proposed Affordable Clean Energy rule is projected to significantly reduce 

emissions, including 2030 reductions of carbon dioxide (12 to 27 million tons), sulfur 

dioxide (7,000 to 15,000 tons), and nitrogen oxides (8,000 to 15,000 tons). I would note 

that the Clean Power Plan was stayed by the Supreme Court and thus never achieved 

any emission reductions. In addition, on November 13,2018, EPA announced the 

Cleaner Trucks Initiative, a future rulemaking to update standards for nitrogen oxide 

(NOx) emissions from highway heavy-duty trucks and engines. Over the last decade, 

NOx emissions in the U.S. have dropped by more than 40 percent. Nonetheless, EPA 

expects that heavy-duty trucks will be responsible for one-third of NOx emissions from 

transportation in 2025. Updating these standards will result in NOx reductions from 

mobile sources and could be one important way that allows areas across the U.S. to 

meet National Ambient Air Quality Standards for ozone and particulate matter. 

Updating the standards will also offer opportunities to reduce regulatory burden 

through smarter program design. 

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55. During the August I, 2018 EPW hearing, I asked you several questions for the record 

regarding the Renewable Fuel Standard (RFS) and my continued concerns about the 

volatility in the RFS compliance trading system used by EPA, known as the Renewable 

Identification Number (RIN) market. Despite promises to act on this issue, I've seen no 

action to date from EPA on the issue of RIN market manipulation and still do not have a 

clear answer on how EPA is coordinating with other agencies to address this issue. I was 

extremely disappointed by your August I" hearing answers and ask that you please provide 

greater clarity. 

a. Please provide the dates, times and details of any communication, including any 

emails and phone calls, between the Commodity Futures Trading Commission 

(CFTC) and EPA since the CFTC-EPA memorandum of understanding on RIN 

market manipulation was signed. 

EPA regularly works with other agencies, including the CFTC, on 

implementation and continued improvement of the Renewable Fuel Standard 

program. CFTC has a wealth of expertise in terms of rooting out market 

manipulation and improving the overall function of our nation's 

commodities markets. EPA has been working with CFTC technical staff to 

assess what tools or structural approaches could be employed in the RIN 

market to reduce any manipulation, provide greater transparency and 

establish stability. Most recently, EPA's transportation team had an 

extensive conversation with the CFTC regarding these ongoing efforts. 

Pursuant to President Trump's direction, the agency plans to propose a RIN 

market reform rule in 2019 that will be followed by a public notice and 

comment period. We appreciate your interest in these issues and will keep 

you updated as they progress. 

b. CFTC has stated publicly that it provided EPA with recommendations on what 

data EPA should be collecting to mitigate RIN market manipulation. Please 

provide CFTC's recommendations and explain why EPA has refused to make this 

information public. 

EPA has ongoing dialogue with the CFTC and continues to work consistent 

with the existing MOU. CFTC has provided recommendations on a number 

of options aimed at improving the RIN market including the collection of 

necessary data. Many of CFTC's recommendations will be reflected in our 

forthcoming proposed RIN market reform rule. Once complete, the proposed 

rule will be made public and will be subject to a notice and comment period. 

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c. In your answers to my August I st hearing questions you indicated your staff had 

only met with Federal Trade Commission (FTC) staff one time. Was that an 

accurate assessment? Has the number changed since August I, 2018? And if true, 

why isn't EPA having ongoing conversations with FTC on this issue? 

My understanding is that, from January 2017 to August 2018, EPA had one 

conversation with the FTC dedicated to this topic. Recent conversations 

regarding market stability and associated improvements have primarily been 

with the CFTC. Through the exchange of information among our agency 

experts, the CFTC expertise has proven to be the most helpful and applicable 

in terms of developing out the forthcoming proposed RIN market reform 

rule. Once a draft of the forthcoming proposed rule is complete, subject to 

appropriations, it will be submitted to the Office of Management and Budget 

for interagency review, which will provide the FTC an opportunity to review 

and provide comment. 

d. Your answers to my August I st hearing questions suggest that your staff only 

shared RIN data with CFTC from 2010 to August 2016. Why hasn't EPA shared 

any RIN data with CFTC since August 20 I 6? 

EPA shared the above-referenced data because both agencies were working 

to respond to a specific request from the Renewable Fuels Association, which 

alleged manipulation during a specific timeframe- 2010 to 2016. After review 

of that information, the CFTC did not find any misbehavior in the market. 

Outside of that specific request, EPA and CFTC continue to have regular 

contact to assess options for improving the RIN market. As previously 

mentioned, many of CFTC's recommendations will be reflected in our 

forthcoming proposed RIN market reform rule, which will be subject to a 

public notice and comment period. 

e. The State of California has created a dashboard to provide weekly, monthly, 

quarterly and annually trading data for its own renewable fuel program. After 

talking to many stakeholders involved in that process, it seems that California's 

renewable fuel trading dashboard has been able to provide valuable insight into 

trading and helped reduced market volatility. EPA can easily create a similar 

dashboard today and not wait for rulemaking. You have already created a 

dashboard for small refinery waivers, why hasn't EPA created a RlN dashboard 

that provides the public weekly, quarterly and annual RlN trading data? 

EPA posts RIN transactional and compliance information on our RFS Data 

website. We are open to comments and suggestions for improving and 

expanding program and market insight. Currently, information is updated 

the third Thursday of each month to reflect all transactions submitted 

through the end of the prior month. Last year, we implemented revisions to 

the website to incorporate additional data through a more interactive 

dashboard. Please visit the following link for additional 

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in formation: https:/ /www .epa.gov /fuels-registration-reporting-andcompliance-help/public-data-renewable-fuel-standard. 

f. The CFTC has successfully used position limits to protect against excessive 

speculation and market manipulation, which helped stabilize markets. In addition, 

Canada and California have also used position limits as effective market controls 

to help reduce market credit hoarding. Canada, specifically, has done so 

regarding their own RFS program with success. Are position limits being 

considered in any efforts to improve RIN market transparency and has EPA had 

any discussions with the CFTC about establishing position limits for the RFS RIN 

market? If not, why not? 

Yes, as part of the ongoing conversations EPA has discussed position limits 

as a means to improve the RIN market. As previously mentioned, many of 

CFTC's recommendations will be reflected in our forthcoming proposed RIN 

market reform rule, which will be subject to a public notice and comment 

period. 

g. Has EPA had any discussions with Canada about their biofuel market credit 

controls? If so, can you elaborate on those discussions? If not, why not? 

I am not aware of interactions with Canada on these issues. 

56. With a significant non-compliance rate, why isn't EPA's Office of Enforcement and 

Compliance Assurance enforcing the manufacturer emission reporting requirements under 

the residential wood heater New Source Performance Standards rules? 

OECA has been successfully working with wood heater manufacturers and retailers, 

who are mostly small business owners, in providing compliance assistance to help them 

comply with the regulations. In general, the Agency worked with them on any 

outstanding certification issues, and, when necessary, addressed observed 

deficiencies/potential violations during the certification process without collecting any 

penalties or taking other formal enforcement. 

57. In your testimony, you highlighted EPA's announcement that it will officially begin the 

process to set a new national nitrogen oxide (NOx) emissions standard for heavy-duty 

vehicles. 

a. States have been asking EPA to take this action for over two years. Why is EPA 

waiting until early 2020 to propose regulations? 

On November 13, 2018, EPA announced the Cleaner Trucks Initiative (CTI), 

a future rulemaking to update standards for nitrogen oxide (NOx) emissions 

from highway heavy-duty trucks and engines. Over the last decade, NOx 

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emissions in the U.S. have dropped by more than 40 percent. Nonetheless, 

EPA expects that heavy-duty trucks will be responsible for one-third of NOx 

emissions from transportation in 2025. Updating these standards will result 

in NOx reductions from mobile sources and could be one important way that 

allows areas across the U.S. to meet several National Ambient Air Quality 

Standards. Updating the standards will also offer opportunities to reduce 

regulatory burden through smarter program design. As I am sure you 

recognize, the development of a technically and legally sound rulemaking 

proposal for an action of this significance and complexity takes time. 

b. Will you finalize a rule in time to help states that have ozone nonattainment 

concerns meet their SIP requirements for the ozone NAAQS? 

EPA intends to finalize the rule as expeditiously as possible, consistent with 

its responsibility to ensure that any final rule is well supported. We expect 

this action to reduce NOx emissions and obtain NAAQS. 

c. What ozone reduction metric will you use to determine whether the proposal is 

adequately protective of public health? 

We expect the rulemaking to evaluate the appropriate metric to evaluate 

emission reduction. 

d. Emissions control technologies are able to reduce NOx emissions by 90%, down 

to .02 g/bhp-hr, at approximately $500-1000 per diesel truck by 2024 or 

earlier. Alternative fuel vehicles such as those with natural gas engines already 

achieve those reductions. How does this estimated cost compare to the current or 

projected range of cost-effectiveness of stationary control technologies that might 

otherwise have to be implemented to achieve the same NOx reductions in ozone 

nonattainment areas? 

These are issues that we expect to be addressed during the rulemaking. 

The timeline announced in November will allow full engagement with 

stakeholders and the opportunity to assess policy considerations identified in 

your question. More information on the CTI is available at: 

h ttps :/ /www .epa. gov I reg u Ia tio ns-em iss ions-vehicles-and -engines/ c leanertruck-initiative. 

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Questions on EPA's Use of Science 

58. The EPA recently disbanded its 20-member Particulate Matter Review Panel (PMRP) and 

decided not to convene the Ozone Review Panel. In addition, EPA announced that the 

responsibility of those two panels to advise on EPA's 5-year review ofthe National Ambient 

Air Quality Standards (NAAQS) will be transferred to the significantly smaller sevenmember Clean Air Science Advisory Committee (CASAC), and such review will occur on an 

accelerated schedule. Notably, CASAC's draft comments to you dated December I 0, 2018 

recommend that you reconvene the PMRP and warns that the accelerated schedule is too 

short. 

a. Given that your decision to eliminate the first two larger expert panels, transfer 

the workload to the much smaller CASAC, and speed up the review will have a 

direct impact on the quality of review conducted, did you consult with CASAC on 

the accelerated schedule in the memo or the consequences of doing away with 

panels before you took those actions? If not, please explain why not. 

b. Several members of CASAC have expressed doubt that they have the needed 

expertise to review the science on particulate matter. Do you still believe that 

members of this CASAC are qualified to do the work you have asked of them? If 

so, please explain why. 

c. One of the areas of expertise that is lacking on CASAC is epidemiology, which 

would information CASAC's understanding ofthe impacts of particulate matter 

on early death and heart attacks. Do you believe that CASAC can conduct an 

informed review of the NAAQS given the absence of this crucial subject matter 

expertise? If so, please explain why. 

CASAC is a seven-member committee, required under Section 109 of the Clean Air 

Act, which provides critical advice related to National Ambient Air Quality Standards 

(NAAQS). The membership includes at least one member of the National Academy of 

Sciences, one physician, and one person who represents a state air pollution control 

agency. In October 2018, EPA announced the appointment of five new members to the 

chartered CASAC. More information on CASAC and its members is available at: 

https://yosemite.epa.gov/sab/sabpeople.nsf/WebCommittees/CASAC. 

I believe the current CASAC has the experience and expertise needed to serve in this 

capacity as well as to complete the reviews for the particulate matter and ozone 

NAAQS. The chartered CASAC is filled with qualified, independent experts who have 

decades of experience working on ozone and particulate matter issues and a diverse set 

of backgrounds in fields like toxicology, engineering, medicine, ecology, and 

atmospheric science. EPA also has the ability to seek advice from other experts to assist 

CASAC as needed for these reviews. 

Tasking the chartered CASAC with overseeing these reviews ensures the early 

engagement of the advisors who ultimately provide advice to EPA, and this action is 

consistent with the Clean Air Act, regulations implementing the Federal Advisory 

Committee Act, and CASAC's charter. In May 2018, EPA issued a memorandum 

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outlining a "Back-to-Basics" process for NAAQS under the Clean Air Act. This memo 

ensures that EPA and its independent science advisors follow a transparent, timely, and 

efficient process in reviewing and revising public health- and welfare-based NAAQS. 

Consistent with the memo, EPA intends to finalize any necessary revisions to the ozone 

and particulate matter NAAQS by the end of2020. 

EPA welcomes feedback during all stages of these reviews from members of the 

scientific community and public. The Committee has received feedback from a number 

of outside experts during recent public meetings and teleconferences. 

59. Please provide a copy of the IRIS Handbook that has been completed but is not yet 

published. 

The IRIS Handbook is being revised in response to additional comments received from 

the Agency, and has not concluded the interagency review process. We intend to 

provide the Handbook when the revision is completed. 

Questions on other Clean Water Issues 

60. It has been a very long time since Washington, DC struggled with its lead in drinking water 

discovery, and it has been four years since the drinking water crisis erupted in Flint, MI. 

a. How many lead service lines in Flint have been replaced as of December 31st, 

2018? 

b. Administrator Pruitt made lead-especially in drinking water-an agency 

priority, declaring a "War on Lead" in February 2018. Approximately 5000 

municipalities across the country exceeded the 15 parts per billion standard in 

place at the time of his declaration. How many of those municipalities now 

comply with that legal1imit? 

c. What has EPA done to facilitate that compliance? 

d. Having admitted a failure of oversight in the Flint situation, could you describe 

how EPA has since strengthened its oversight of state drinking water programs? 

The EPA recently received a status report from the City of Flint regarding its ongoing 

efforts to identify and replace lead service lines, an effort funded in part through the 

Water Infrastructure Improvements for the Nations Act (WIIN Act). According to the 

City of Flint: "As of January 14,2019 there have been 20,131 service lines replaced or 

identified as copper. The City of Flint has approximately 28,400 active residential water 

accounts. We have approximately 8269 lines left to identify or replace. If we assume 

20% of the remaining 8269 lines to be lead and need replacement we have 

approximately 1,6541ead service lines remaining in the system. At this time weather is 

allowing the project to continue and these numbers are subject to change." The City 

has evaluated connections to more than 15,000 homes and has identified and replaced 

lead or galvanized steel service lines to over 7,000 homes. 

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The EPA supports the Michigan Department of Environmental Quality (MDEQ) in its 

continued efforts to work with the City of Flint and all other public water systems to 

improve drinking water quality throughout the State of Michigan. This includes 

working with the City and MDEQ to ensure that the requirements of the EPA's 

Emergency Order and amendment are being addressed. The drinking water system in 

Flint has returned to compliance with the Lead and Copper Rule (LCR) and the EPA is 

committed to supporting the City and State in their efforts to ensure the delivery of a 

safe and sustainable water supply to the residents of Flint. 

The EPA has also reached full agreement with the Inspector General (IG) on the 

actions the agency will implement in response to the Flint, Michigan IG Report. The 

EPA's actions to address the IG's recommendations are well underway. For example, 

the EPA is working aggressively to update the LCR and is working with states to ensure 

full implementation of existing LCR requirements. That engagement includes working 

with state, local, tribal and other stakeholders to identify LCR implementation 

challenges and provide technical assistance and communication tools to address those 

challenges. To improve technical knowledge and implementation of the LCR and its 

corrosion control requirements, for example, the EPA conducted approximately 30 inperson technical trainings across the country in all ten EPA regions over the last two 

years. This full-day training focused on optimal corrosion control treatment to improve 

compliance and reduce lead exposure at the tap through successful implementation of 

corrosion control treatment. The training also provided participants, including states, 

technical assistance providers and water utility operators, an opportunity to work 

through case studies, analyze actual water system data and participate in interactive 

activities. Over the last two years, the EPA also hosted its LCR 3-Part Webinar series 

and monthly webinars for small systems; conducted national training on sample site 

selection; provided individual trainings to the National Rural Water Association and 

the State of California; and hosted a three-day online training with Guam and Hawaii. 

In 2018, the EPA's Office of Research and Development and the Office of Water hosted 

the National Drinking Water Workshop with 400 participants in attendance. This 

workshop included multiple sessions on lead testing, lead service line replacement, and 

other LCR topics. It also included a two-hour discussion between states, the EPA, 

aeademia experts and workshop participants on key issues and implementation 

challenges related to the LCR. 

The EPA also collaborates with states and public water systems to update our nation's 

drinking water infrastructure, including important projects to reduce lead in drinking 

water. The FY 2019 President's Budget request included $863.2 million for the 

Drinking Water State Revolving Fund, allowing states to finance high priority 

infrastructure investments, including the replacement of lead service lines to protect 

human health. The FY 20I8 Omnibus appropriation provided $50 million for three new 

grant programs under the WIIN Act. These funds will help public water systems meet 

Safe Drinking Water Act requirements, provide funding for infrastructure projects 

that reduce the presence of lead in drinking water, and assist schools and childcare 

facilities with voluntary lead testing programs. In addition, the Water Infrastructure 

Finance and Innovation Act (WIFIA) program is inviting 39 projects in 16 states and 

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Washington, D.C. to apply for loans totaling over $5 billion to help finance over $10 

billion in water infrastructure investments, in FY 2019, but not all of those projects are 

associated with lead. Multiple projects selected in FY18 involve reducing lead or other 

contaminants and address aging infrastructure. 

As indicated in the EPA's response to the IG Report, the agency has also worked to 

strengthen its oversight of state drinking water programs nationwide. For example, in 

response to the EPA's, New England states', and water utility proactive measures, as of 

August 2018, more than 99% of the public water supply systems in New England that 

are obligated to meet requirements of the LCR are meeting the drinking water lead 

action levels. Recognizing that there is no safe level of lead in drinking water, the 1991 

LCR set a health-based maximum contaminant level goal of zero. The LCR also 

established an action level of 0.015 mg/L (15 ppb) for lead. Exceedance of the lead 

action level is not a violation but rather results in the public water system having to 

take actions to reduce lead exposure, which could include optimizing corrosion control, 

removing lead service lines, and conducting public education. Failure to take such 

actions results in a violation of the LCR that is called a treatment technique violation. 

A 2016 analysis prepared by an environmental nongovernmental organization indicated 

that 5,363 community water systems had violated the LCR based on 2015 SDWIS data. 

According to the report, the analysis included counts of violations for failure to take 

actions to reduce lead exposure, to test, or to report test resu Its. The majority of these 

community water systems receiving violations had a treatment technique violation. 

Based on the most recent data in SDWIS, approximately 97% of these treatment 

technique violations have returned to compliance. Since 2016, the EPA and the states 

have enhanced oversight and collaboratively provided targeted technical assistance to 

address compliance with the complex and challenging LCR requirements. This 

assistance has improved the states' technical capabilities to address LCR violations and 

aid systems in achieving compliance with the LCR. 

61. Please explain EPA's intentions regarding the discharge of partially treated or "blended" 

sewage from wastewater treatment plants. 

a. Does EPA intend to propose regulations permitting discharge of partially treated 

or blended sewage from wastewater treatment plants? If so, when? 

b. If so, under what circumstances (i.e., what thresholds of rainfall, etc.)? 

c. Does EPA have evidence that such discharges are safe for public health and the 

environment? If so, please provide it. 

d. In EPA's assessment, how effective are so-called "side-stream" technologies, 

proposed by treatment plant operators, as an alternative to their historic treatment 

methods? 

The EPA is currently engaged in rulemaking to address longstanding questions 

regarding permit compliance in wet weather events. The agency is working with 

stakeholders as we prepare options for the proposed rulemaking. No final decisions 

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regarding the content of the proposed rule have been made at this time. The EPA will 

consider all appropriate information regarding the relationship between wet weather 

discharges and compliance with water quality standards during the rulemaking 

process, including, for example, resources like a 2014 public forum the EPA facilitated 

on potential public health impacts associated with wet weather discharge events. 

Documents from that forum are available at: https://www.epa.gov/npdes/npdes-expertsforum-public-health-impacts-wet-weather-blending-documents. The EPA will also 

consider available treatment, cost and related data on potential side-stream 

technologies as it continues its stakeholder outreach and proposed rulemaking. 

62. As you know, the proposed WOTUS Rule you and the Army Corps of Engineers propose is 

notably lacking in specifics related to some of the necessary details the public needs to fully 

consider the implications of your proposal, much less address the numerous and potentially 

rule-obliterating questions posed in the preamble. 

a. With that concern in mind, please provide estimates of the miles and acres 

affected for the following categories of waters covered by the proposed rule 

(please provide this information on a state-by-state basis): 

i. The number of miles of ephemeral streams; 

ii. The number of miles of intermittent streams; 

iii. The acres of wetlands without a surface water connection to any "waters 

of the United States" as the December 2018 proposal would define that 

term; 

iv. The acres of wetlands without a surface water connection to any "waters 

of the United States" as the December 2018 proposal would define that 

term plus those wetlands with a surface water connection only to 

intermittent streams; and 

v. The acres of ponds that will not qualify as "waters of the United States" as 

the December 2018 proposal would define that term. 

b. To further assist our consideration of the proposed rule, please provide the 

following information (also on a state-by-state basis) for each of the categories of 

waters identified in response to question 16(a) above: 

i. The population served by drinking water systems with source water 

protection areas containing any of the waters identified above. 

ii. Any dischargers permitted under the National Pollutant Discharge 

Elimination System to discharge to any of the waters identified above. 

iii. Any facilities subject to the oil spill prevention, control, and 

countermeasure program because of their potential to affect any of the 

waters identified above. 

iv. Any of the waters identified included on a state list submitted to EPA 

pursuant to section 303(d)(l) of the Clean Water Act. 

v. Any enforcement action under the authority of section 309 of the Clean 

Water Act, in which the water body about which the violation was alleged 

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was any of the waters identified above. This includes any compliance 

order, civil or criminal action, or assessed administrative penalty. 

vi. Any jurisdictional determination (either preliminary or approved) by the 

U.S. Army Corps of Engineers which assessed whether a water body was 

a "water of the United States" and for which the subject water was any of 

the waters identified above. 

vii. Any activity for which an applicant has sought a federal license or permit 

and which may result in a discharge into any of the waters identified 

above, for which the state has granted, denied, waived, or provided 

conditional certification pursuant to section 401 of the Clean Water Act. 

The EPA and the Department of the Army provided significant, substantive supporting 

documentation for the proposed "waters of the United States" rule that was posted to 

our website in December along with the pre-publication text of the proposed rule and 

its preamble. See https://www.epa.gov/wotus-rule/step-two-revise. The documents 

entitled "Resource and Programmatic Assessment for the Proposed Revised Definition 

of 'Waters of the United States'" and "Economic Analysis for the Proposed Revised 

Definition of 'Waters of the United States'" identify, where possible, how the proposed 

definition might affect categories of water resources across the country and potential 

effects on Clean Water Act programs. The agencies have also identified data limitations 

that prevent quantitative national estimates for many Clean Water Act programs, due 

in large part to the fact there is no nationwide map depicting "waters of the United 

States" under previous regulations nor that could identify waters that would be 

jurisdictional under the proposal. 

With regard to water resources, state-based information on ephemeral, intermittent, 

and perennial stream miles and wetland acreage as mapped in the National 

Hydrography Dataset and National Wetlands Inventory, respectively, is presented in 

Table A-1 of the Economic Analysis. The numbers and percentages of streams and 

wetlands by category presented in Table A-1, however, do not equate to a quantification 

of waters that will or will not be jurisdictional under the proposed rule or existing 

regulation. The agencies discuss potential impacts of the proposal on Clean Water Act 

section 303,311, 401,402, and 404 programs and other relevant federal regulations in 

the Economic Analysis and Resource and Programmatic Assessment. Regarding data 

limitations, see for example the discussion in Section II. C. of the Economic Analysis and 

Section 4 of the Resource and Programmatic Assessment Appendix A. With respect to 

section 404 permitting, see for example Table 3 of the Resource and Programmatic 

Assessment Appendix A summarizing the total number of waters by category in the 

Army's fiscal year 2013-2017 approved jurisdictional determination data under pre2015 practice. Note that in addition to the analyses discussed in the documents 

supporting the proposal, the agencies maintain websites that contain specific 

information on the jurisdictional determinations completed under section 404. See 

h ttp://corpsmapu. usace.army .m il/cm _ apex/f?p=340; 11 :0:: NO and 

https://watersgeo.epa.gov/cwa/CW A-JDs/. 

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In Clean Water Act enforcement cases, the EPA would have gathered evidence to 

support a claim that there is a discharge to a navigable water or a tributary of a 

navigable water or a wetland adjacent to a water of the United States applying the 

EPA's 1988 regulations, the 2003 SWANCC legal memorandum, and the 2008 Rapanos 

guidance. However, those documents all lack the clarity of the December 2018 proposed 

rule. For example, none of them use the 2018 proposal's definitions of "intermittent," 

"ephemeral," and "adjacent wetlands," and do not define "tributary." Accordingly, the 

factual records the agency would have developed to support a claim of jurisdiction do 

not lend themselves to categorizing enforcement actions as you have requested. 

Senator Booker: 

63. Following the passage of the newly strengthened Toxic Substances Control Act (TSCA), 

EPA proposed two rules banning certain uses oftrichloroethylene (TCE). EPA has since 

delayed finalizing these bans for more than 2 years and has stated its intent to ignore 

exposure to TCE from releases into air, water, and land in a review of the chemical. 

a. Are you aware that TCE is a known carcinogen linked to neurological damage 

and birth defects that is polluting the air, land, and water in my state and in states 

across the country? 

b. Will you commit to finalizing the proposed bans on TCE within 90 days in order 

to protect the health of children and workers while you continue the broader risk 

evaluation ofTCE under TSCA? 

c. Will you commit to ensuring that EPA incorporates all known releases of and 

exposure to TCE, including through air, soil, and water, in its ongoing risk 

evaluation of TCE? 

EPA has determined that the most-appropriate approach for addressing TCE 

exposures identified in the proposed rule is to evaluate those exposures in the risk 

evaluation currently being conducted using the scientific standards required by the 

Lauten berg Act amendments to TSCA. The risk evaluation will include all releases and 

exposure pathways that are appropriate under the conditions of use described in the 

TCE problem formulation document. As required, EPA will evaluate the risks to 

sensitive subpopulations identified as relevant to the evaluation, including children and 

workers as appropriate. The draft risk evaluation will be subject to public comment 

and scientific peer review, and the final risk evaluation is expected to be published by 

the end of2019. This does not preclude EPA from finalizing the proposed TCE rule. 

64. One positive action taken under Administrator Pruitt was EPA's commitment to finalizing a 

ban proposed for all consumer and most commercial uses of methylene chloride in paint 

strippers. The record EPA assembled two years ago to support the need for a ban on most 

commercial as well as consumer uses is clear: Allowing such products to stay on the market 

based on reliance on increased labeling, protective equipment, or training requirements will 

not protect the public's or workers' health. It now appears that you are rolling back that 

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commitment and planning to limit the ban of this highly toxic and acutely lethal chemical to 

consumer uses only. 

a. Are you aware that workers constitute the vast majority of the more than 50 

deaths from these uses, and that any failure to or delay in protecting workers will 

lead to more deaths? 

b. Will you commit to finalizing a ban for all consumer and most commercial uses 

of methylene chloride, as originally proposed by the EPA? 

Yes, under certain circumstances, methylene chloride not only can pose danger, but has 

also caused worker deaths. The EPA submitted a final rule for methylene chloride paint 

and coating removal to OMB for interagency review on December 21, 2018, prior to the 

lapse in appropriations. Questions regarding the scope, implementation, and timing of 

the final rule and associated EPA actions will depend on the outcome of the interagency 

review process. 

65. As you know, your predecessor declared a "War on Lead" in February 2018 due to the 

harmful effects this toxic metal can have on human health. As you also know, the legal limit 

on lead in drinking water is 15 ppb. When the "War on Lead" was announced, 

approximately 5000 municipalities across the country exceeded that number. 

a. To date, how many of those municipalities have come within the lega11imit? 

Recognizing that any level of lead in drinking water poses some risk, the 1991 Lead and 

Copper Rule (LCR) set a health-based maximum contaminant level goal of zero. The 

LCR also established an action level of 0.015 mg/L (15 ppb) for lead. Exceedance ofthe 

lead action level is not a violation but rather results in the public water system having to 

take actions to reduce lead exposure, which could include optimizing corrosion control, 

removing lead service lines, and conducting public education. Failure to take such 

actions results in a violation of the LCR that is called a treatment technique violation. 

A 2016 analysis prepared by an environmental nongovernmental organization indicated 

that 5,363 community water systems had violated the LCR based on 2015 SDWIS data. 

According to the report, the analysis included counts of violations for failure to take 

actions to reduce lead exposure, to test, or to report test results. The majority of these 

community water systems receiving violations had a treatment technique violation. 

Based on the most recent data in SDWIS, approximately 97% of these treatment 

technique violations have returned to compliance. Since 2016, the EPA and the states 

have enhanced oversight and collaboratively provided targeted technical assistance to 

address compliance with the complex and challenging LCR requirements. This 

assistance has improved the states' technical capabilities to address LCR violations and 

aid systems in achieving compliance with the LCR. 

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66. Environmental Justice is something that I am very concerned about. As you know, low 

income communities, communities of color and indigenous communities are 

disproportionately located near and harmed by sources of pollution. So I appreciated that in 

your opening statement that under your leadership EPA was focused on helping the 

communities that are on the front lines of pollution. But unfortunately it seems to me that the 

actions you have already taken at EPA will cause great harm in these communities. 

As I testified at my hearing, I take very seriously the matter of environmental justice. In 

the course of developing all of the proposed actions you have cited, the EPA has given 

careful consideration to whether the action, if finalized, would have disproportionately 

high and adverse human health or environmental effects on minority populations, lowincome populations or indigenous peoples as, the EPA is required to do by Executive 

Order 12898 and its environmental justice policies. Provided below are specific citations 

to the EPA's findings in this regard with respect to each of the actions with which you 

have expressed concerns. 

a. Can you please explain how your proposal to repeal and replace the Clean Power 

Plan will increase protections for human health and the environment in low 

income communities, communities of color and indigenous communities? 

I direct your attention to the discussion found at 83 Fed. Reg. 44,797 (Aug. 

31, 2018). This includes EPA's evaluation of the requirements of Executive 

0 rder 12898, h ttps://www .govinfo.gov /con ten t/pkg/FR-20 18-08-31/pd f/20 18-

18755.pdf. 

b. Can you please explain how your proposal to weaken oil and gas methane 

standards will increase protections for human health and the environment in low 

income communities, communities of color and indigenous communities? 

I direct your attention to the discussion found at 83 Fed. Reg. 52,090 (Oct. 15, 

2018). This includes EPA's evaluation of the requirements of Executive 

Order 12898, https://www.govinfo.gov/content/pkg/FR-2018-10-15/pdf/2018-

2096l.pdf. 

c. Can you please explain how your proposal to delay deadlines for landfill emission 

guidelines will increase protections for human health and the environment in low 

income communities, communities of color and indigenous communities? 

I direct your attention to the discussion found at 83 Fed. Reg. 54,532 (Oct. 30, 

20 18), h ttps ://www .govinfo.gov /con ten t/pkg/FR-20 18-1 0-30/pdf/20 18-

23700.pdf. 

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d. Can you please explain how your proposal to delay deadlines for wood smoke 

standards will increase protections for human health and the environment in low 

income communities, communities of color and indigenous communities? 

Finally, I direct your attention to the discussion found at 83 Fed. Reg. 61,585 

(Nov. 30, 2018). This includes EPA's evaluation of the requirements of 

Executive Order 12898, https://www.govinfo.gov/content/pkg/FR-2018-11-

30/pdf/2018-26083.pdf. 

67. According to the most recent Regulatory Agenda, EPA is still considering a proposal to 

rollback key updates from the 2017 Chemical Disaster Rule. Last July, I asked that you 

withdraw the proposed modifications to the existing safeguards that protect communities, 

especially low-income communities, indigenous communities, and communities of color, 

from toxic chemicals stored in industrial facilities across the country. What is particularly 

troubling is that it appears that you are continuing to move forward with the rollbacks even 

though EPA's own findings show that there is evidence that risks from Risk Management 

Programs (RMP) facilities disproportionately fall on minority and low-income 

neighborhoods. 

a. What is the status of this work? 

We are carefully reviewing comments on the May 2018 proposal. We will 

work to make sure the Risk Management Program continues to reduce risk 

while taking into account homeland security concerns with a focus on what 

actually works in the field. 

b. Given your testimony that you intend to focus on protecting communities 

suffering most from pollution, will you commit to not move forward with this 

proposal that will place undue burden on those who are most at risk? 

As I testified, I take very seriously our responsibility to protect 

environmental justice communities. EPA gives careful consideration to 

whether a proposed action, if finalized, would have disproportionately high 

and adverse human health or environmental effects on minority populations, 

low-income populations or indigenous people as the EPA is required to do by 

Executive Order 12898. 

A successful Risk Management Program is a high priority for me. For 

example, in 2018, EPA entered into its largest-ever settlement in the history 

of enforcing the RMP, valued at approximately $150 million worth process 

safety improvements. Enforcement and compliance assurance of the RMP 

program is a National Compliance Initiative. 

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EPA is committed to promoting improved coordination between local 

emergency response planners and the regulated industry to ensure that local 

plans are effective, and responders are adequately informed. 

68. Will you provide a date certain by when you will withdraw from OMB review EPA's 

proposal to revisit the minimum age requirement under the Worker Protection Standard 

(WPS) and Certification of Pesticide Applicators (CPA) rules, and the designated 

representative provision of the WPS, in accordance with your commitment to Senator Carper 

as set forth in your January 2019 letter? 

As of January 28'\ the Office of Management and Budget withdrew the Worker 

Protection Standard and Certification of Pesticide Applicators rules. 

69. Will you provide a date certain by when you will remove the above-referenced actions from 

EPA's regulatory agenda? 

As of January 281h, the Office of Management and Budget withdrew the Worker 

Protection Standard and Certification of Pesticide Applicators rules. 

70. Will you commit to withdraw EPA's proposal to revisit the application exclusion zone (AEZ) 

established in the revised Worker Protection Standard? 

a. If not, if and when EPA does revisit the AEZ, will you commit to uphold the law 

and ensure that any revision to the AEZ will protect workers and other persons 

from pesticide exposure- including exposure from pesticide drift- as required by 

FIFRA? 

I will follow through on those specific commitments in my January 20191etter to 

Senator Carper. I also commit to ensuring that any future proposed revisions to the 

AEZ will be consistent with FIFRA and protective of workers and other persons. 

71. Will EPA commit to seeking input from the FIFRA Scientific Advisory Panel regarding risks 

to workers and others associated with pesticide drift, as well as how to ensure that there is no 

unreasonable adverse effects to workers and bystanders from pesticide drift resulting from 

pesticide application? 

EPA utilizes the best available science in estimating potential risks to workers and 

bystanders from pesticide applications. To the extent that new science becomes 

available that necessitates that the agency reconsider its long-standing assessment 

methodologies for estimating worker and bystander risks, the agency would likely seek 

review of these proposed methodologies by the FIFRA Scientific Advisory Panel. 

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72. Will EPA confirm that it will not propose any rule revising the WPS or CPA without first 

consulting with the FlFRA Scientific Advisory Panel? 

Section 25 of FIFRA requires EPA to submit proposed regulations to the FIFRA 

Scientific Advisory Panel for comment before issuing these proposals for public 

comment. In developing any regulations, EPA will follow these statutorily required 

procedures. 

73. Will EPA commit to considering the dangers and realities associated with requiring 

additional personal protective equipment (including the risk of heat stress) when conducting 

pesticide registration reviews? 

When considering whether to require additional personal protective equipment, EPA 

considers the potential for other risks, including heat stress, during the decision-making 

process. 

Senator Boozman: 

74. Acting Administrator Wheeler: There is research taking place in my state and across the 

United States that would benefit from innovations in plant breeding, such as gene editing. 

The United States Department of Agriculture (USDA) and Food and Drug Administration 

(FDA) have been working to quickly develop proposals that will allow these innovations to 

occur, and grant clarity to my constituents as well as other stakeholders on how gene edited 

products will be treated. EPA has regulatory oversight over gene edited plants that would 

produce pesticide-like substances, and yet has not offered any thoughts on the issue thus far. 

Would you commit EPA to working with FDA and USDA to develop a consistent, 

interagency approach, in order to grant clarity to affected stakeholders? 

If confirmed, yes, I commit to continue working with FDA and USDA to develop a 

consistent, interagency approach, in order to grant clarity to affected stakeholders. 

75. Acting Administrator Wheeler: As you know, the Vessel Incidental Discharge Act (VIDA) 

was signed into late last year. This was an important measure that will have a long-lasting 

impact on commercial vessel operators in my state. It's important to start the implementation 

process for VIDA as soon as possible. Notwithstanding the shutdown's effect on Agency 

personnel, can you give the Committee some insight on whether the Agency has begun to 

address VIDA implementation? 

Prior to the government shutdown, the EPA had begun implementation of the VIDA 

legislation. Initial discussions with the U.S. Coast Guard were also held, and the 

agencies is prepared to move forward with implementing the legislation now that the 

shutdown has ended. 

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76. Acting Administrator Wheeler: There is scientific evidence showing ethanol blends above I 0 

percent can harm older vehicles, small engines (such as lawn mowers), boat engines and 

motorcycles and is incompatible with the existing retail gasoline infrastructure. What will 

you do to ensure that the annual RFS-mandated volumes protect the current U.S. vehicle fleet 

and existing infrastructure? 

The Agency has two measures in place to protect against mis-fueling, First, the Clean 

Air Act section 21l(f)(4) "substantially similar" waiver that allows E15 to be put into 

commerce, includes conditions applicable to fuel manufacturers designed to minimize 

the possibility ofmis-fueling. Second, in conjunction with this section 21l(f)(4) waiver, 

EPA issued the so-called "Mis-fueling Mitigation Rule" under its section 21l(c) 

regulatory authority. This rule extends the 21l(f)(4) protections to all entities in the fuel 

production and delivery chain. 

More information is available at: https://www.epa.gov/gasoline-standards/final-ruleregulation-mitigate-misfueling-vehicles-and-engines-gasoline. In addition, the RFS 

program also evaluates the broader effects of biofuels. In 20218, EPA released Biofuels 

and the Environment: The Second Triennial Report to Congress, a report required 

under the 2007 Energy Independence and Security Act. The report can be found at: 

https://cfpub.epa.gov/si/si public record report.cfm?Lab~IO&dirEntrvld=341491. 

Senator Braun: 

77. During your testimony, you stated that you consider yourself an avid conservationist. I was 

glad to hear you say that you are working to reduce the timetables of superfund cleanup, 

particularly in situations where the health of young children may be at risk. I remain 

interested in working closely with you on your conservation efforts. 

One area in particular where I would like to cooperate regards the agencies work facilitating 

private conservation projects. Can you provide a few examples of where EPA has been able 

to step in and aid private citizens in conservation efforts? 

EPA has been actively working with and in support of private and public conservation 

projects. In August 2018, EPA, the Fourmile Watershed Coalition, and the Four Mile 

Protection District entered into a Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA) Good Samaritan settlement agreement at 

the Black Swan Restoration Reach Site in Boulder County, Colorado. The agreement 

allows these non-liable parties to protect water quality by removing mine tailings from 

a stream, without fear of incurring Superfund liability. EPA has been pursuing similar 

agreements with other private parties at other sites. 

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Also, EPA has a robust Superfund Redevelopment Initiative that actively supports 

ongoing or potential activities by private and public parties with a focus on future use 

opportunities, such as by issuing Ready for Reuse site analyses, coordinating remedial 

actions with reuse plans, promoting long-term stewardship by local private and public 

partners, and identifying and promoting innovative approaches to conservation and 

cleanup activities such as through reusable energy sources and coordination with 

health-based activities. EPA would be happy to work with Congressional staff on any 

other efforts to aid private citizens in conservation efforts. 

78. In November 2016, the EPA published a proposed rule known as the Renewables 

Enhancement and Growth Support (REGS) Rule. The draft rule proposed a wide range of 

technical fixes and commented on a number of regulatory issues that biofuel stakeholders 

have long hoped to address. While the EPA completed the notice and comment process on 

the REGS rule almost two years ago, the Agency never implemented a final rule. 

a. Can you provide update on the status of the proposed REGS rule and, in particular 

whether the EPA currently has a timetable for completing this rulemaking? 

b. Is EPA contemplating including various proposals from the REGS rule as a part of 

other related priority rulemakings such as the RFS reset? 

In November 2016, EPA proposed the Renewables Enhancement and Growth Support 

(REGS) rule and sought public comment on a variety of topics, including on designing 

an electric RIN-generation program. EPA has not finalized the proposal and continues 

to evaluate feedback regarding issues like feedstock eligibility, double counting, and 

verification. At this time, we do not have a timeline to share regarding when further 

decisions will be made. EPA takes very seriously the interest in this rule and the 

concerns of the biomass power industry, and I believe we need to resolve these key 

policy considerations before finalizing the proposal or pursuing alternative regulatory 

actions as appropriate. More information on the proposal is available at: 

https://www.epa.gov/renewable-fuel-standard-program/proposed-renewablesenhancement-and-growth-support-regs-rule. 

Senator Cardin: 

79. In your view, what is the EPA's role in holding the Chesapeake Bay jurisdictions 

accountable for reducing pollution and meeting target dates, and the role of the Chesapeake 

Bay Total Maximum Daily Load (TMDL) in that accountability process? 

In coordination with the Bay states, the EPA took the lead in the development of the 

Chesapeake Bay TMDL and the agency's expectation is that Bay states will implement 

the TMDL in accordance with all applicable legal requirements. We remain committed 

to working with our state partners to ensure such a result, including reviewing the next 

phase of watershed implementation planning and evaluating actual reductions in 

pollutant loading versus targeted reductions. Where the EPA determines that sufficient 

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progress is not being made, the agency will consider using its federal oversight 

authorities under the Clean Water Act. 

80. As EPA Administrator, will you commit to submitting the Kigali Amendment to the 

Montreal Protocol to the U.S. Senate for ratification? Please explain why or why not. 

The White House is leading an interagency process to consider the implications if the 

U.S. decides to ratify the Kigali Amendment. If a decision were made to move towards 

ratification, the President would send the Amendment to the Senate for advice and 

consent. 

81. Under the EPA's Safer Affordable Fuel Efficient (SAFE) Vehicles Rule for Model Years 

2021-2026, the EPA's preferred option of"freezing" existing Corporate Average Fuel 

Economy (CAFE) and tailpipe carbon dioxide standards for passenger cars and light trucks at 

model year (MY) 2020 levels for both programs through 2026 will increase U.S. fuel 

consumption and will result in significant increases in emissions of nitrogen oxide 

(NOx). The Chesapeake Bay TMDL incorporates air deposition load allocations that account 

for the emission reductions anticipated by the Chesapeake Bay watershed jurisdictions and 

other states in the larger Chesapeake Bay airshed. Can the EPA account for the impact of the 

increase in emissions on the expected decreases in nitrogen deposition in the Chesapeake 

Bay that are reflected in the Chesapeake Bay TMDL? 

The proposed Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule and its 

accompanying documents evaluate the potential impacts, including on non-greenhouse 

gas pollutants like nitrogen oxides, under a range of alternatives. The preliminary 

regulatory impact analysis, for example, evaluated potential effects for model years 

through 2029 for greenhouse gases, criteria pollutants (including carbon monoxide, 

volatile organic compounds, nitrogen oxides, sulfur dioxide, and particulate matter), 

fuel consumption, vehicle miles traveled, and fatalities. More information is available at 

Docket No. EPA-HQ-OAR-2018-0283. To my knowledge, an analysis of the proposal's 

specific impacts on Chesapeake Bay nitrogen deposition has not been conducted. 

82. Emissions will also increase under the EPA's proposed Affordable Clean Energy (ACE) Rule 

that proposes to alter how facilities calculate emissions increases that trigger New Source 

Review. Please provide an estimate for the Chesapeake Bay airshed of the difference in NOx 

reductions that were expected to be achieved by implementing the existing New Source 

Review Program under the ACE Rule versus the Clean Power Plan. 

We would note that the Clean Power Plan (CPP) was stayed by the Supreme Court and 

thus never achieved any emission reductions. Taking this into account, relative to not 

taking any regulatory action the proposed Affordable Clean Energy (ACE) rule is 

projected to significantly reduce emissions, including 2030 reductions of carbon dioxide 

(12 to 27 million tons), sulfur dioxide (7,000 to 15,000 tons), and nitrogen oxides (8,000 

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to 15,000 tons). To my knowledge, an analysis of the proposal's specific improvements 

to Chesapeake Bay nitrogen deposition has not been conducted. To my knowledge, an 

analysis of the specific impacts on Chesapeake Bay NOx reductions has not been 

conducted. 

83. According to the Environmental Integrity Project's report, "Undermining Protections for 

Wetlands and Streams: What the Trump Administration's Proposed Rollback of Wetlands 

Regulations Means for the Chesapeake Bay Region" (December 12, 2018), which uses laser 

mapping data collected by federal researchers and the University of Maryland, there are 

34,560 acres of scattered wetlands called "Delmarva potholes" on the Delmarva Peninsula 

that would be no longer be subject to federal protections under the proposed revised 

definition of "waters of the United States." These wetlands help reduce agricultural runoff 

pollution into the Chesapeake Bay. Do you agree that removing federal protections could 

mean less flood protection for infrastructure on Maryland's Eastern Shore and more pollution 

flowing into the Chesapeake Bay and its tributaries? 

The EPA remains committed to the protection of navigable waters consistent with 

applicable legal authorities while recognizing the important role that states like 

Maryland play in the protection and management of their resources. For example, I 

understand that Maryland will be addressing pollutant reduction strategies for the 

Chesapeake Bay in its upcoming Phase III watershed implementation plan, which could 

include appropriate management strategies for Delmarva potholes and other important 

aquatic features in Maryland. 

84. During the hearing, there was disagreement about whether California should be able to set its 

own standards for fuel economy and tailpipe carbon dioxide emissions from new passenger 

cars and light trucks. Please state how you will protect the ability of states that have adopted 

California's new vehicle emissions standards under section 177 of the Clean Air Act, 

including Maryland, to maintain their commitments to air quality? 

EPA and the National Highway Traffic Safety Administration (NHTSA) have jointly 

proposed a rulemaking for greenhouse gas (GHG) emission and fuel economy 

standards, respectively, affecting light-duty vehicles for the 2021 through 2026 model 

years. EPA also proposed to revoke the waiver of preemption currently in place which 

allowed California (and a number of other states that have adopted the California 

standards) to adopt their own GHG standards and the zero-emission vehicle program. 

The proposed legal basis for withdrawing the California Waiver is described in the 

notice of proposed rulemaking and accompanying documents, available at: Docket No. 

EPA-HQ-OAR-2018-0283. EPA received a wide range of public comments on the 

proposal and is carefully reviewing those comments. I am committed to working with 

California and Section 177 states as EPA and NHTSA determine a path forward 

consistent with the Clean Air Act and the goal of one national program. 

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85. Maryland state officials asked the EPA to reconsider its decision not to impose tougher 

pollution standards on certain Midwestern power plants, despite documentation that their 

emissions contribute significantly to Maryland's ground-level ozone pollution problem, 

about two-thirds of which is estimated to come from out-of-state sources, and that emission 

controls are already installed. Will you work with the State of Maryland in order to ensure 

that federal health-based air quality standards protect downwind states? 

I will work with the State of Maryland to ensure that EPA standards protect downwind 

states. 

86. Will you work with Congress to finalize a ban on the organophosphate insecticide 

chlorpyrifos? Please explain your position. 

EPA is always willing to provide our scientific expertise to Congress. As required by 

FIFRA, chlorpyrifos is undergoing registration review. EPA is committed to fully 

evaluating this pesticide using the best available science. 

Senator Duckworth: 

87. I am extremely concerned that U.S. Environmental Protection Agency (EPA) is failing to 

meet its statutory duties when issuing and reviewing permits. I am also concerned that EPA 

political staff are failing to adequately address concerns raised by career staff regarding 

impacts of industrial pollution on the Great Lakes. 

EPA Region 5 reportedly provided a Foxconn facility, to be located in South-east Wisconsin, 

latitude to draw millions of gallons of water from Lake Michigan and to negatively impact 

adjacent wetlands. Similarly, EPA career staff have raised concerns regarding the Polymet 

Mine's water permit application in Minnesota, which remain unaddressed. Public reports 

indicate that EPA Region 5 staff prepared comments raising concerns with Polymet' s water 

pollution permit application, but were discouraged by political appointees from sharing their 

concerns with the Minnesota Pollution Control Agency (MPCA). 

Will you commit to immediately releasing comments or concerns raised by EPA staff 

regarding the Foxconn project and the Polymet Mine application? 

The EPA followed standard processes for reviewing the Foxconn and Polymet projects, 

including internal deliberations regarding the facts associated with and the application 

of legal requirements to those projects. The EPA will initiate a search for responsive 

documents and update the Senator's office on the status of that search as soon as 

feasible. 

Regarding the Polymet project and associated permit, the EPA staff worked closely 

with their counterparts at MPCA to address the EPA comments and questions related 

to the pre-proposed NPDES permit. Prior to MPCAs final permit decision, several 

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meetings and conversations occurred between career EPA and MPCA staff. All 

concerns, observations or questions from the EPA Region 5 staff, regarding the Polymet 

NPDES permit, were communicated to MPCA and helped inform the state's final 

decision. Ultimately, MPCA made the decision to issue the permit and the EPA staff 

and regional leadership decided not to issue formal comments on the final permit. 

88. The Renewable Fuel Standard (RFS) directs EPA to set annual Renewable Volume 

Obligation (RVO) levels. These blending mandates increase each year until 2022. However, 

under the Trump Administration, EPA has provided dozens of <;hardship" waivers, reducing 

the mandate by billions of gallons of renewable fuels. EPA's abuse of these hardship waivers 

have financially harmed farmers in Illinois while lining the pockets of our Nation's most 

profitable oil companies. Last year, EPA proposed a "reset" regulation for the RFS triggered 

by its abuse ofthese waivers. 

What is your time line for the release, public comment period and final rule of the reset 

regulation? How will EPA determine future RVO target levels? Do you expect EPA to 

reduce RVO target levels for conventional, advanced or cellulosic biofuels? Please identify 

which categories of biofuel will be impacted by the reset regulation. 

The statutory predicate for EPA to conduct a "reset" rulemaking has now been 

triggered pursuant to the agency's use of its volume waiver authority under Clean Air 

Act section 2ll(o)(7). It is important to note that this waiver authority is separate and 

distinct from the small refinery waiver authority under section 2ll(o)(9), and EPA's 

exercise of the latter authority did not factor in the statutory triggering of "reset" 

pursuant to section 2ll(o)(7)(F). 

The agency plans to propose a "reset" rule in 2019. Because of the nested nature of the 

biofuel categories, each category will be impacted by the reset regulation. EPA will still 

be required to do a separate Renewable Volume Obligation (RVO) each year. 

We will keep you informed of the progression of the reset proposal and provide further 

details once the proposal is complete. In addition, after the proposal is complete and 

published in the Federal Register, all interested parties will have the opportunity to 

submit comments or additional information to the agency regarding the proposal. 

89. Part ofEPA's obligation under existing law is to identify, assess and register new forms of 

renewable fuel for the Renewable Identification Numbers (R!N) Market. However, EPA 

appears to have a multi-year backlog for congressionally-approved registration and pathway 

applications. 

In fiscal year 2017, EPA approved 14 new pathways. In 2018, EPA approved 11. EPA 

works hard to continue to improve the pathways applications process and make 

decisions on a timely basis. The agency has a range of proposals under development 

that will provide additional clarity and streamline the pathways process for those 

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feedstocks, including some that will be proposed in the "reset" rule. EPA expects to 

propose those rules in early 2019. We will keep you updated on the progression of these 

pathways improvements. 

90. How many registrations and pathway applications are currently pending under the RFS? How 

many registrations and pathway applications did EPA approve in fiscal years 2017 and 20 18? 

What is delaying the approval of applications and how will you address this backlog? 

In fiscal year 2017, EPA approved 14 new pathways. In 2018, EPA approved 11. 

Currently, there are 21 pending pathway applications. EPA works hard to continue to 

improve the pathways applications process and make decisions on a timely basis. The 

agency has a range of proposals under development that will provide additional clarity 

and streamline the pathways process for those feedstocks, including some that will be 

proposed in the "reset" rule. EPA expects to propose those rules in 2019. We will keep 

you updated on the progression of these pathways improvements. 

Senator Ernst: 

91. Under the Coordinated Framework for the Regulation of Biotechnology, the Department of 

Agriculture, the Food and Drug Administration, and the Environmental Protection Agency 

have regulatory authority over the products of plant biotechnology. EPA's regulatory 

authority falls under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and is 

specific to "plant incorporated protectants," or "PIPs." New breeding methods such as gene 

editing allow plant breeders to work within a plant's gene pool to make changes that could 

have occurred naturally or through conventional breeding, albeit more precisely and 

efficiently. 

USDA recognized this in Secretary Perdue's March 2018 policy statement on plant 

breeding innovation. This includes methods such as gene editing that will be increasingly 

used by plant breeders to produce new plant varieties that are indistinguishable from 

those that could be developed through traditional breeding methods. Under FIFRA, EPA 

has the statutory authority to clarify the existing exemption for PIPs derived through 

conventional breeding includes those applications of plant breeding innovation, such as 

gene editing that could be achieved through conventional breeding. 

a. Will EPA commit to coordinating with USDA and FDA to ensure a clear and 

consistent regulatory pathway for products of plant breeding innovation, such as 

gene editing, in a way that does not stifle innovation in U.S. agriculture? 

Tf confirmed, yes, I commit that EPA will continue to coordinate with USDA and FDA 

to ensure a clear and consistent regulatory pathway for products of plant breeding 

innovation, such as gene editing, in a way that does not stifle innovation in U.S. 

agriculture. 

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92. In several recent meetings with me, you committed to proposing a rule that would provide 

relief to the glider truck industry. When do you expect this rule to be proposed? Please 

provide an approximate date. 

We continue our work to formulate an effective solution. We are focusing on 

establishing an emission standard that is not predicated on the industry going out of 

business or substantially reducing economic growth potential while also using the 

appropriate source of authority, such as authority for remanufactured engines under 

the Clean Air Act. We are also assessing the most appropriate means for analyzing 

costs and benefits associated with a future rulemaking, including comparing 

remanufactured glider trucks to used trucks as gliders tend to be bought in lieu of used 

and not new tucks. While we do not yet have a firm schedule for completing a rule, we 

plan to move ahead as expeditiously as practicable. 

93. At your confirmation hearing, you indicated that lower RIN prices did not necessarily mean 

that there is less "economic hardship" for small refineries, and that RIN prices were just "one 

factor" in determining whether or not a refinery faces a "disproportionate economic hardship" 

so as to justify receiving an SRE. 

a. Besides purchasing RINs, what "other factors" contribute to obligated parties' 

costs in complying with the RFS? 

b. Is there a scenario where lower RIN prices do not alleviate obligated parties' 

"economic hardship" under the RFS? 

When we consider the economic viability of a small refinery that has applied for a small 

refinery exemption, we look at a wide range of factors that are laid out two Department 

of Energy (DOE) studies. As the 2011 report states, "Disproportionate impacts consist 

of Disproportionate Structural and Disproportionate Economic measures." The factors 

considered under Disproportionate structural impact include: 

Access to capital/credit. 

Existence of other business lines besides refining and marketing. 

Local market acceptance of renewables. 

Percentage of diesel Production. 

Application of state regulations. 

The factors considered under disproportionate economic impact include: 

Relative refining margin measure. 

Renewable fuel blending(% of production). 

Presence in a niche market. 

• Whether RINs are a net revenue or cost. 

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For additional information and the full report, please refer to 

h ttps: //www .epa.gov /sites/production /fi les/20 16-12/d ocu men ts/s mall-refin erv -exemptstudy.pdf. 

94. At your confirmation hearing, you stated that it is not viable to "reallocate" biofuel volumes 

that are waived as part of the RFS's SRE provision to other obligated parties. Beyond 

resorting to reallocation, are there any other options at EPA's disposal to mitigate the 

negative effect that SREs have on biofuel demand? For example, in setting Renewable 

Volume Obligations (RVOs), does EPA have authority to: 

a. Reduce the use of the cellulosic waiver authority to intentionally draw down the 

carryover RIN bank? 

b. Allow for the partial backfilling of missing cellulosic volumes with non-cellulosic 

advanced biofuels to reflect the fact that hardship waivers will be more frequently 

granted? 

Your question ultimately goes to the factors that we consider in setting annual RVOs. 

The factors you cite- i.e., the number of carry-over RINs and the availability of 

advanced biofuels- are among the many factors we consider each year when we 

propose and promulgate the RVOs. 

95. In responding to a question on small refinery waivers, you noted that geography played a role 

in awarding these waivers. Where in the small refinery waiver section of the Renewable Fuel 

Standard does it state that geographic location is a factor that can be considered, or 

determinative, in the decision to issue a small refinery exemption? 

The statute is not specific as to the full range of factors we can or should consider in 

assessing small refinery exemption applications. We have long held the view that the 

effect of geographic locations is a relevant consideration. 

96. Well into 2017 both the Obama and Trump Administration's readily reviewed and approved 

facility registrations to produce cellulosic ethanol from corn kernel fiber through a peerreviewed process. However, since November of 2017 several new registrations for cellulosic 

production utilizing corn kernel fiber technology have been delayed indefinitely for approval, 

since EPA has decided to not accept peer-reviewed methods as provided in statute by the 

Renewable Fuel Standard for approving registrations, even when the registrations use the 

same methods as the Trump Administration had already accepted. 

The delays caused by EPA has created unnecessary uncertainty for the ethanol industry, 

technology providers, and their investors. As a result, tens-of-millions of gallons of 

cellulosic biofuels have not been produced, diminishing the demand for corn at a time 

when our producers are facing low commodity prices. This hits Iowa particularly hard 

where more than 15 ethanol plants are already making cellulosic ethanol derived from 

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corn kernel fiber in their facilities, but because of the delays in registration they are 

unable to receive the 03 cellulosic RIN they are entitled to under the law. As a result of 

losing out on the 03 RIN, plants in my state have lost out on up to $65 million in 

economic value that would greatly benefit our rural communities and farmers during this 

time of uncertainty for the agricultural industry. 

a. Will the EPA begin reviewing and approving new registration applications for 

cellulosic ethanol derived from corn kernel fiber under the existing peer-reviewed 

processes used prior to November 20177 

b. What steps will the agency take to restart the review process of these registrations 

after a IS-month delay? 

We continue to actively consider applications to generate cellulosic RINs through the 

conversion of corn kernel fiber. The analytical issues are particularly difficult to 

resolve. We believe we are making progress and hope to soon resolve the outstanding 

issues. 

Senator Gillibrand 

97. PFAS pollution has been linked to very serious health problems. Drinking water 

contamination from these chemicals in the village of Hoosick Falls, New York, and at least 

172 other communities across the county, has been linked to a number of cases of cancer and 

thyroid disease. The Department of Health and Human Service's PFAS study released in 

June of last year revealed that the minimal risk level for human exposure to two types of 

PFAS chemicals, PFOA and PFOS, should be seven to ten times lower than the level 

previously recommended as safe by the EPA. In the EPA's new PFAS management plan 

submitted to the Office of Management and Budget, what level of human exposure to PFAS 

does the EPA recommend as safe? 

The EPA will continue to work with our federal, state, tribal, and local partners on 

response actions and research into the health impacts of PFAS substances. The EPA 

will consider any information, including the HHS PFAS study, that may inform our 

approach to PFOA, PFOS, and other PFAS. The EPA's PFAS action plan will outline 

the agency's approach to identifying and understanding PFAS exposures and 

addressing the PFAS challenge. The action plan is currently undergoing interagency 

review. The EPA will be prepared to discuss the contents of the plan as soon as 

interagency review is complete, and the plan is public. The Agency continues to provide 

technical assistance to the state of New York, which has taken the lead role in 

addressing the PFAS issues in Hoosick Falls. 

98. In the EPA's PFAS Management plan, what cleanup standard has been put in place to ensure 

the effective and timely remediation ofPFAS chemicals in communities in New York and 

across the country? 

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The EPA's PFAS action plan will outline the agency's approach to identifying and 

understanding PFAS exposures and addressing the PFAS challenge. The action plan is 

currently undergoing interagency review. The EPA will be prepared to discuss the 

contents of the plan as soon as interagency review is complete, and the plan is public. 

99. If confirmed, will you commit to increase transparency about PF AS chemicals by adding 

those chemicals to the Toxic Release Inventory? 

EPA is evaluating all of its statutory authorities to increase transparency about PFAS 

chemicals. 

100. When will the EPA begin the process of establishing an enforceable standard for PFAS 

under the Safe Drinking Water Act? 

The EPA is currently evaluating PFOA and PFOS under the Safe Drinking Water Act 

(SDWA) regulatory determination process, which is a critical next step in determining 

whether to establish a National Primary Drinking Water Regulation. This process 

builds on previous efforts the EPA has performed to evaluate and address PFOA and 

PFOS, including for example publishing health advisories for these chemicals, adding 

PFOA and PFOS as priority contaminants to the SDWA Contaminant Candidate List 

for regulatory consideration, and collecting monitoring data for six PFAS compounds, 

including PFOA and PFOS, from drinking water systems across the country as part of 

the third Unregulated Contaminant Monitoring Rule. 

Under the SDWA, the EPA must consider three criteria when making a determination 

to regulate a contaminant: 

The contaminant may have an adverse effect on the health of persons. 

The contaminant is known to occur or there is a high chance that the 

contaminant will occur in public water systems often enough and at levels of 

public health concern. 

In the sole judgment of the Administrator, regulation of the contaminant 

presents a meaningful opportunity for health risk reductions for persons 

served by public water systems. 

If the EPA makes a determination to regulate PFOA and PFOS, the SDWA requires 

that, prior to issuing a drinking water standard, the agency must undertake a number 

of actions, including developing a health risk reduction and cost analysis, consulting 

with the National Drinking Water Advisory Council, seeking recommendations from 

the Science Advisory Board, and publishing a proposed regulation for review and 

comment. The EPA is committed to performing all mandatory actions under the SDWA 

as it continues its regulatory evaluation. 

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101. It is my understanding that the EPA is close to making a decision on whether to issue a 

certificate of completion for the remedial actions carried out by General Electric under its 

consent decree for the Hudson River Superfund site. I am very concerned that the EPA may 

issue the certificate of completion despite the EPA's own acknowledgement in its draft 5-

year review report that the remedy is not yet protective of human health and the 

environment. In December, the New York State Department of Environmental Conservation 

(NYSDEC) released a report based on extensive sampling, and found that in many instances, 

there has not been a significant decline in PCB concentrations in the Hudson River and its 

ecosystems. 

The National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife 

Service, and New York State-the three Natural Resource Trustees for the Hudson 

River-all have stated publicly that the cleanup is incomplete and that it will take 

decades longer than projected by the EPA for the river to meet the numeric goals of the 

2002 Record of Decision. Will you hold off on issuing the Certificate of Completion until 

the numeric goals of the Record of Decision have been met and the remedy is protective 

of human health and the environment? 

Region 2 was glad to provide a detailed briefing on the status of the Hudson River 

PCBs Superfund site provided to your staff on December 21, 2018. That briefing 

focused, in particular, on General Electric's request for a "Certification of Completion 

of the Remedial Action," and EPA's second Five-Year Review (FYR) report for the site. 

Prior to the shutdown, EPA had projected that it would be in a position to make a 

decision regarding General Electric's request for the certification early in 2019. EPA 

also projected that early in 2019 it would be in a position to finalize the second FYR 

report. 

It is important to note that these decisions were technically to have been made a year 

ago but were set aside so that EPA could join the New York State Department of 

Environmental Conservation (NYSDEC) in a joint, rigorous review of all sediment and 

fish data collected by both agencies. 

It is also important to note that the Five-Year Review and any issuance of the 

Certificate of Completion of Remedial Action exist as separate constructs, each 

responding to a distinct set of conditions/considerations. Effectively; 

1. The purpose of the Five-Year Review is to determine whether the remedy 

selected for the site is protective of human health and the environment. 

2. The purpose of the issuance of the Certification of Completion of the Remedial 

Action is to confirm the completion of EPA-defined tasks related to the execution 

of the dredging remedy called for in the 2006 Consent Decree. This action is not 

dependent upon a determination of protectiveness in the Five-Year Review. 

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A more detailed treatment of both the Five-Year Review and the "Certification of 

Completion of the Remedial Action" is provided below. 

A. Five-Year Review 

In May 2017, EPA took the unusual additional step of releasing for public 

comment a draft of the second FYR Report. EPA conducted three public 

meetings during the 90-day comment period. The 1000-page draft report found 

that the remedy is not yet protective of human health and the environment; but 

that it is expected to be so after the natural attenuation element of the remedy 

occurs over a period of more than five decades, as projected in the Record of 

Decision (ROD) issued in 2002. The draft FYR indicated that PCB 

concentrations in fish in the Upper Hudson were declining but had not reached 

protective levels. Because dredging ended in late 2015, less than two years 

earlier, only limited post-dredging data was available for the draft FYR, though 

the fish, sediment and water data available at that time were consistent with the 

2002 ROD projections. 

EPA received over two thousand comments on the draft second FYR Report and 

has been carefully reviewing these before finalizing the report. The National 

Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, 

and New York State recommended that EPA conclude the remedy is not 

protective, arguing the remedy did not go far enough to remove PCBs from the 

river, and that the time for fish recovery will be longer than anticipated by the 

2002 ROD. 

In advance of finalizing the second FYR Report, EPA has undertaken an indepth and intensive evaluation of post-dredging sediment and fish tissue data 

that had become available since the draft report. In collaboration with the 

NYSDEC, EPA in 2018 conducted an extensive technical review of the results 

from some 1,200 sediment samples taken by NYSDEC in 2017, along with the 

results from hundreds of sediment samples taken by GE under EPA's direction 

in 2016. The review also considered post-dredging fish tissue data. EPA and 

NYSDEC senior leadership and technical staff met several times during 2018 to 

discuss these data and their interpretation. A detailed Technical Memorandum 

setting out the results of this collaborative, in-depth review will be included with 

the issuance of the final FYR Report. 

B. Certification of Completion of the Remedial Action. 

This matter is separate from the FYR, with a different purpose and subject to 

different legal criteria. Under the terms of the 2006 judicial Consent Decree 

(CD) between EPA and General Electric, GE has requested that EPA issue a 

"Certification of Completion of the Remedial Action" (CO C) which would 

confirm that GE performed all "Remedial Action" activities- i.e., the dredging, 

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capping, habitat restoration, and deconstruction/decontamination of the 

sediment processing facility- required of the company under the CD. 

The "Certification of Completion of the Remedial Action" is one of three 

certifications that GE may request under the CD. These are: (1) the 

"Certification of Completion of Phase 1 Field Activities," which was provided to 

GE in 2012; (2) the "Certification of Completion of the Remedial Action" or 

COC, which GE requested in early 2017 and which is now under consideration 

by EPA; and (3) the "Certification of Completion of the Work," which certifies 

that all work required under the CD has been completed, and which will not be 

available to GE for many decades. 

The term "Remedial Action" is explicitly defined in the CD as not including the 

operation, maintenance and monitoring (OM&M) phase that follows the 

dredging. The remedy selected in the 2002 ROD for the Hudson River PCBs 

Superfund site was designed to address the most highly contaminated areas in 

the Upper Hudson River through active remediation- dredging and, where 

necessary, capping- followed by allowing the river to recover naturally through 

"monitored natural attenuation" (also called "monitored natural recovery") that 

is expected to continue to reduce PCB levels in surface sediment over time 

throughout the river. The 2002 ROD set a remediation goal of 0.05 mg/kg of 

PCBs in the fish (a level that would allow people to eat fish from the river once a 

week) and projected that meeting that goal will require more than five decades 

of natural recovery after the completion of the dredging. The active dredging 

work, and the decades-long natural attenuation or recovery process, are both 

explicit and essential components of the selected remedy. 

As previously noted, the term "Remedial Action" as used in the CD specifically 

excludes the OM&M period, when much of the natural attenuation is expected 

to occur. The "Remedial Action," as that term is used in the CD, consists only of 

the dredging itself and the other construction work done by GE under the CD. 

The CD states: "If EPA concludes ... that the Remedial Action has been 

performed in accordance with this Consent Decree, EPA will so certify in 

writing to [GE]." Pursuant to this provision of the CD, in early Calendar Year 

2017 GE requested that EPA issue the COC. Under the CD, EPA was to have 

responded to that request within one year. EPA has delayed its response to GE's 

request for the COC until EPA finalizes its second FYR Report, which includes 

the above-referenced assessment of sediment and fish data carried out in 

collaboration with NYSDEC. 

It is important to note that the CD includes "reopener" provisions under which 

EPA can require GE to perform additional remedial work, if specified 

conditions are met. The reopener can be triggered at any time (whether or not 

the Certification of Completion of the Remedial Action has been issued) if EPA 

receives new information which, along with other information (including 

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previous data and analyses), causes EPA to determine that the remedy will not 

be protective of human health and the environment, and that specific additional 

work will achieve such protectiveness. EPA receives new information on a 

regular, recurring basis as new fish tissue, water quality and sediment data are 

gathered. EPA has long stated that it will take up to eight or more years of postdredging fish tissue data to reach a scientifically reliable conclusion about the 

rate of recovery of the fish. 

In conclusion, work on both EPA's response to GE's request for the 

certification, and the second FYR report, was suspended during the government 

shutdown. EPA will now resume work on these matters and make 

determinations on each. 

I 02. Will you meet with relevant local stakeholders before you decide whether to issue the 

Certificate of Completion to have a more complete discussion of this issue? 

EPA headquarters and Region 2 officials have had multiple meetings with concerned 

local stakeholders over the past several years. Region 2 Administrator Lopez and staff 

have also met and spoken frequently about this issue with NYSDEC Commissioner 

Basil Seggos (and his staff) as well as with representatives of the New York State 

Attorney General's office. Additionally, meetings and/or telephone conferences have 

been held with NOAA, the US Fish & Wildlife Service, and interested members of 

Congress. EPA representatives have met regularly with the Community Advisory 

Group for the Hudson River PCBs Superfund site, which includes members from a 

number of local stakeholder organizations. EPA does not currently anticipate holding 

additional meetings with local stakeholders prior to reaching a decision on GE's request 

for the "Certification of Completion of the Remedial Action" as required by the 2006 

judicial Consent Decree. 

103. Have you personally read the Fourth National Climate Assessment? 

Yes, I have read the Fourth National Climate Assessment. 

I 04. To date, how many briefings or discussions have you had with EPA employees on the topic 

of the Fourth National Climate Assessment since it was released in November? 

I have had one formal briefing by the career EPA staff on the Fourth Assessment and 

requested additional briefings which have not taken place yet due to the shutdown. I 

had a couple of informal discussions regarding the assessment around the time of my 

Washington Post interview. 

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I 05. Have you been personally briefed by the EPA scientists and career staff who participated in 

the drafting and preparation of the Fourth National Climate Assessment? 

Yes, I had one formal briefing by the career EPA employees who participated in the 

preparation of the Fourth Assessment. 

106. Please list all individuals not currently employed by the EPA that you have discussed the 

Fourth National Climate Assessment with, including but not limited to, members of the 

White House staff and other Administration officials, lobbyists, and business executives. 

As part of a regularly scheduled phone call with the National Economic Council, and in 

a couple White House meetings, I recall this issue being raised. I do not recall having 

discussed the Assessment with anyone and in particular, I do not recall having 

discussed it with any officials at the Office of Science and Technology Policy, or any 

White House component or working group which may been involved in the preparation 

of the report. Finally, I do not recall having discussed it with any lobbyists or business 

executives. I have been asked about the Assessment by reporters. 

107. In your opinion, what are the key actionable findings for the EPA in the Fourth National 

Climate Assessment? 

I still have additional briefings from my career staff planned which have not yet taken 

place, so I am reserving judgment on actionable findings. One of the key takeaways in 

my opinion is that the press did not fully understand the various scenarios and I believe 

more work needs to be done communicating the findings in assessments such as these in 

the future. 

a. How do you intend to incorporate those findings into EPA you decision making 

should you be confirmed? 

I have prioritized risk communication in all that we do at the Agency and I 

believe the government needs to be more proactive in explaining findings 

from such reports since the media did a poor job reporting on the 

assessment. I am sure that there will be other findings as we continue to 

examine the assessment. 

108. As Acting Administrator, what specific actions have you taken to date in response to the 

Fourth National Climate Assessment? 

I still have additional briefings from my career staff planned which have not yet taken 

place, so I am reserving judgment on actionable findings. 

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I 09. Is protecting the lives of pregnant women and children from mercury poisoning is an 

"appropriate and necessary" role for the EPA? 

Of course, I care about protecting the lives of pregnant women and children from the 

harmful effects of all forms of pollution. Clean Air Act Section 112(n)(1)(A) specifies the 

finding that must be made to authorize EPA to regulate power plants under Section 

112. Please see the NPRM signed on December 27, 2018 for our proposed interpretation 

of Section 112(n)(1)(A), including the term "appropriate and necessary." 

II 0. How is EPA calculating the benefits of protecting the health of pregnant women and 

children from mercury poisoning in its cost-benefit analysis for the proposed changes to 

Mercury and Air Taxies Standards? 

EPA has not proposed to remove or delist electric generating units from the list of 

source categories subject to regulation under Section 112, nor proposed to rescind the 

emission standards to which those units are currently subject. The bases for EPA's 

proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk and 

Technology Review are provided in the notice of proposed rulemaking (NPRM) signed 

on December 27,2018, and in the supporting documents which will be available in 

Docket No. EPA-HQ-OAR-2018-0794. 

Ill. Do avoided harms associated with a rulemaking, including reduced childhood development 

delays, need to be monetized to count as part of a cost-benefit analysis? 

EPA regularly incorporates avoided harms, including non-monetized effects, in its 

regulatory actions in a manner consistent with statutory requirements. 

112. In evaluating the costs of a rulemaking, do you believe that externality costs- for example 

costs to society and public health costs from impacts of a pollutant-- should be considered in 

addition to the financial costs of compliance? 

EPA often evaluates externalities, including societal and public health impacts, in its 

regulatory actions in a manner consistent with statutory requirements. 

113. Will you support continued funding for the EPA's geographic programs, including the Long 

Island Sound Study and Great Lakes Restoration Initiative? 

I recognize the importance of these large regional water bodies to the neighboring 

communities and the nation. EPA's FY 2019 budget request focuses and prioritizes 

funding on core programs with a national scope and unique federal role and EPA has a 

number of core programs that address environmental issues in these watersheds. I also 

understand and support the role the EPA can play as a convener in certain regional 

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multi-state programs such as the Great Lakes, at the same time recognizing the 

importance of the local communities and states in leveraging resources and ensuring 

progress. The Long Island Sound Study also addresses an important natural resource. 

We will work closely with the states to make continued progress within the levels 

appropriated by Congress. 

114. The interstate transport of ozone and particulate matter is a serious environmental and 

public health problem in New York. Cross-state air pollution contributes to death and illness 

in our state and damages our natural resources. Such pollution generated in upwind states 

also interferes with New York's ability to meet its legal obligation to attain the national 

standards set by EPA. 

a. What impacts will the Clean Air Act regulatory actions taken by the EPA during 

the Trump Administration have on ozone and cross-state air pollution on 

downwind states like New York? 

b. What is the scientific basis for your response to (a)? 

The Clean Air Act's "good neighbor" provision requires EPA and states to address 

interstate transport of air pollution that affects downwind states' ability to attain and 

maintain National Ambient Air Quality Standards (NAAQS). Specifically, Clean Air 

Act section 110(a)(2)(D)(i)(l) requires each state in its State Implementation Plan (SIP) 

to prohibit emissions that will contribute significantly to nonattainment of a NAAQS, or 

interfere with maintenance of a NAAQS, in a downwind state. 

EPA's Cross-State Air Pollution Rule (CSAPR), the CSAPR Update, and the CSAPR 

Close-out (finalized 12/6/18) fully address states' good neighbor obligations for the 1997 

and 2008 ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. For power plants 

covered by this program for cross-border ozone, nitrogen oxide emissions dropped by 

over 20 percent- roughly 80,000 tons- just since the 2016 ozone season. 

The recently finalized CSAPR Close-out rule determined that emission reductions 

under the CSAPR Update will sufficiently control transported ozone pollution with 

respect to the 2008 ozone NAAQS in states covered by the Update. EPA is actively 

working with states to provide the technical tools and information to facilitate "good 

neighbor" state plans addressing interstate transport under the 2015 ozone NAAQS. 

More information on EPA's efforts to address interstate ozone transport is available at: 

https://www.epa.gov/interstate-air-pollution-transport. 

In March 2018, EPA received a petition submitted by the state of New York under 

section 126 of the Clean Air Act. The petition requests that the EPA make a finding that 

emissions from certain sources in nine states (Illinois, Indiana, Kentucky, Maryland, 

Michigan, Ohio, Pennsylvania, Virginia and West Virginia) contribute significantly to 

nonattainment of, or interfere with maintenance of the 2008 and 2015 ozone national 

ambient air quality standards in New York. EPA will work to respond to the petition 

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and more information is available at: https://www.epa.gov/ground-level-ozonepollution/new-york-section-126-petition-may-20 18. 

Senator Markey: 

115. As part of the recent revamp of the Toxic Substances Control Act (TSCA), the EPA 

received the specific authority to address high-risk uses of three extremely dangerous 

chemicals: trichloroethylene (TCE), methylene chloride, and N-methyl pyrrolidone (NMP). 

The Obama Administration proposed to ban several uses ofthese chemicals outright in 2016, 

but neither you nor former Administrator Pruitt have put a single one of these bans into 

effect. 

a. Yes or no, does methylene chloride pose a danger to workers, like painters and 

builders, who handle that chemical? 

b. Can you commit to ensuring that everyone is protected from this deadly chemical 

by finalizing the exact ban proposed by the EPA two whole years ago-which has 

yet to be done, even after Scott Pruitt publicly promised to do so? 

Yes, under certain circumstances, methylene chloride not only can pose danger, but has 

also caused worker deaths. The EPA submitted a final rule for methylene chloride paint 

and coating removal to OMB for interagency review on December 21, 2018, prior to the 

lapse in appropriations. Questions regarding the scope, implementation, and timing of 

the final rule and associated EPA actions will depend on the outcome of the interagency 

review process. 

116. The EPA Integrated Risk Information System (IRIS) program completed revisions of its 

formaldehyde assessment in the fall of2017. In reports accompanying the Consolidated 

Appropriations Act of 2017, both chambers of Congress directed that the agency contract 

with the National Academy of Sciences (NAS) to conduct an external peer review of the 

revised IRIS formaldehyde assessment. Accordingly, EPA has already provided $1 million 

to the NAS for this purpose. The January 2018 EPA IRIS report to Congress indicated that 

''IRIS plans to deliver an External Review of its Formaldehyde Assessment for public 

comment and peer review in FY18." I have repeatedly inquired about the status of the IRIS 

formaldehyde assessment and repeatedly requested that EPA advance the assessment to 

finalization-a process that involves intra- and inter-agency review, external peer review by 

the NAS, and public comment. 

a. Will the IRIS program continue to work on and finalize its formaldehyde 

assessment? If not, why not? 

Because IRIS assessments are major investments in both time and resources, 

in an August 10,2018 Memorandum to Agency program offices I requested 

an update of top priorities for IRIS assessments. Formaldehyde was not 

identified as a top priority. Program offices identified Hexavalent 

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Chromium, Inorganic Arsenic, Mercury salts, Methylmercury, PCBs, 

varieties of PFAS, and Vanadium. Should the priority needs change, we will 

move forward with the draft IRIS formaldehyde assessment. Program offices 

are able to nominate new assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous air 

pollutant under the Clean Air Act, specifically regulates emission from 

composite wood products, and remains part of the inventory emissions under 

regular EPA National-Scale Air Toxics Assessments which EPA uses to 

model nationwide air concentrations and exposures and provides estimates of 

the potential cancer risk from breathing an air toxicant. 

b. Please provide the timeline and agenda items that will allow EPA to complete the 

remaining steps in the review process for the revised IRIS formaldehyde 

assessment. 

i. When will the agency initiate the intra-agency review process? 

Because IRIS assessments are major investments in both time and 

resources, in an August 10,2018 Memorandum to Agency program 

offices I requested an update of top priorities for IRIS assessments. 

Formaldehyde was not identified as a top priority. Program offices 

identified Hexavalent Chromium, Inorganic Arsenic, Mercury salts, 

Methylmercury, PCBs, varieties ofPFAS, and Vanadium. Should the 

priority needs change, we will move forward with the draft IRIS 

formaldehyde assessment. Program offices are able to nominate new 

assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous 

air pollutant under the Clean Air Act, specifically regulates emission 

from composite wood products, and remains part of the inventory 

emissions under regular EPA National-Scale Air Toxics Assessments 

which EPA uses to model nationwide air concentrations and 

exposures and provides estimates of the potential cancer risk from 

breathing an air toxicant. 

ii. When will the agency initiate the inter-agency review process? 

Because IRIS assessments are major investments in both time and 

resources, in an August 10, 2018 Memorandum to Agency program 

offices I requested an update of top priorities for IRIS assessments. 

Formaldehyde was not identified as a top priority. Program offices 

identified Hexavalent Chromium, Inorganic Arsenic, Mercury salts, 

Methylmercury, PCBs, varieties ofPFAS, and Vanadium. Should the 

priority needs change, we will move forward with the draft IRIS 

formaldehyde assessment. Program offices are able to nominate new 

assessment needs at any time. 

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Additionally, EPA regulates formaldehyde emissions as a hazardous 

air pollutant under the Clean Air Act, specifically regulates emission 

from composite wood products, and remains part of the inventory 

emissions under regular EPA National-Scale Air Toxics Assessments 

which EPA uses to model nationwide air concentrations and 

exposures and provides estimates of the potential cancer risk from 

breathing an air toxicant. 

iii. When will the agency release the revised assessment for public comment 

and peer review? 

Because IRIS assessments are major investments in both time and 

resources, in an August 10, 2018 Memorandum to Agency program 

offices I requested an update of top priorities for IRIS assessments. 

Formaldehyde was not identified as a top priority. Program offices 

identified Hexavalent Chromium, Inorganic Arsenic, Mercury salts, 

Methylmercury, PCBs, varieties ofPFAS, and Vanadium. Should the 

priority needs change, we will move forward with the draft IRIS 

formaldehyde assessment. Program offices are able to nominate new 

assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous 

air pollutant under the Clean Air Act, specifically regulates emission 

from composite wood products, and remains part of the inventory 

emissions under regular EPA National-Scale Air Toxics Assessments 

which EPA uses to model nationwide air concentrations and 

exposures and provides estimates of the potential cancer risk from 

breathing an air toxicant. 

1v. When will EPA finalize the IRIS formaldehyde assessment? 

Because IRIS assessments are major investments in both time and 

resources, in an August 10, 2018 Memorandum to Agency program 

offices I requested an update of top priorities for IRIS assessments. 

Formaldehyde was not identified as a top priority. Program offices 

identified Hexavalent Chromium, Inorganic Arsenic, Mercury salts, 

Methylmercury, PCBs, varieties ofPFAS, and Vanadium. Should the 

priority needs change, we will move forward with the draft IRIS 

formaldehyde assessment. Program offices are able to nominate new 

assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous 

air pollutant under the Clean Air Act, specifically regulates emission 

from composite wood products, and remains part of the inventory 

emissions under regular EPA National-Scale Air Toxics Assessments 

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which EPA uses to model nationwide air concentrations and 

exposures and provides estimates of the potential cancer risk from 

breathing an air toxicant. 

c. Will you commit to providing the revised IRIS formaldehyde assessment to NAS 

for peer review by no later than the end of calendar year 20 19? 

Because IRIS assessments are major investments in both time and resources, 

in an August 10, 2018 Memorandum to Agency program offices I requested 

an update of top priorities for IRIS assessments. Formaldehyde was not 

identified as a top priority. Program offices identified Hexavalent 

Chromium, Inorganic Arsenic, Mercury salts, Methylmercury, PCBs, 

varieties of PFAS, and Vanadium. Should the priority needs change, we will 

move forward with the draft IRIS formaldehyde assessment. Program offices 

are able to nominate new assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous air 

pollutant under the Clean Air Act, specifically regulates emission from 

composite wood products, and remains part of the inventory emissions under 

regular EPA National-Scale Air Toxics Assessments which EPA uses to 

model nationwide air concentrations and exposures and provides estimates of 

the potential cancer risk from breathing an air toxicant. 

d. Please explain why formaldehyde is absent from the 2018 IRIS Program Outlook. 

Because IRIS assessments are major investments in both time and resources, 

in an August 10,2018 Memorandum to Agency program offices I requested 

an update of top priorities for IRIS assessments. Formaldehyde was not 

identified as a top priority. Program offices identified Hexavalent 

Chromium, Inorganic Arsenic, Mercury salts, Methylmercury, PCBs, 

varieties of PFAS, and Vanadium. Should the priority needs change, we will 

move forward with the draft IRIS formaldehyde assessment. Program offices 

are able to nominate new assessment needs at any time. 

Additionally, EPA regulates formaldehyde emissions as a hazardous air 

pollutant under the Clean Air Act, specifically regulates emission from 

composite wood products, and remains part of the inventory emissions under 

regular EPA National-Scale Air Toxics Assessments which EPA uses to 

model nationwide air concentrations and exposures and provides estimates of 

the potential cancer risk from breathing an air toxicant. 

e. Please explain the process used to develop the 2018 IRIS Program Outlook, from 

first inception to completion. In your response, please identify the program and 

regional offices, including the names of specific individuals, consulted or 

otherwise involved. Please also identify any other organizations and specific 

individuals consulted or otherwise involved. 

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In August 2018, I asked that the IRIS prioritization be reaffirmed across 

EPA. All agency programs responded to this request though OCSPP and 

OAR did not provide a list of priorities. Regional responses were coordinated 

through the programs. 

An additional prioritization exercise concluded in late November 2018 and 

resulted in the current IRIS Outlook posted to the IRIS website in December 

2018. 

117. To what extent, when, and in what capacity was David Dunlap, Deputy Assistant 

Administrator for Research and Development in EPA's Office of Research and 

Development, involved in the development of the 2018 IRIS Program Outlook? Please be 

very specific. 

On August 10,2018, on my behalf, Jennifer Orme-Zavaleta, Principal Deputy Assistant 

Administrator for Science, ORD, delivered a memorandum to the Assistant 

Administrators and their deputies. As laid out in this memo, the programs were asked 

to identify priorities for future IRIS assessments as part of the Agency's continuing 

effort to ensure IRIS assessment activities are focused on the most important Agency 

needs. Additionally, these priorities needed to be verified by program leadership and be 

accompanied by the signature of each program's Assistant Administrator or acting 

Assistant Administrator. Each program was given complete latitude to select its own 

priorities. 

Before his departure from the Agency, Dr. Richard Yamada had been responsible for 

driving the programs towards a final list of priority chemicals responsive to this 

request. Mr. Dunlap was appointed Deputy Assistant Administrator on September 30, 

2018 replacing Dr. Yamada. Mr. Dunlap inherited Dr. Yamada's responsibility with 

respect to this memo. Shortly after his arrival, Mr. Dunlap urged the Assistant 

Administrators to complete the task and to follow the directions given in the original, 

August memo, including the need for the appropriate signatures. 

After these priorities with proper signatures were received, a summary memo was sent 

on December 4, 2018, announcing the seven chemicals for priority IRIS assessment 

(PFAS counts as one but covers five substances). The list of seven chemicals was then 

announced to the public via the Agency's website. 

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118. Mr. Wheeler, you wrote in your testimony that "[t]here is no more important respm~sibility 

than protecting human health and the environment." 

a. Would the proposed Mercury and Air Taxies Standards (MATS) rule you 

proposed result in less mercury being emitted from power plants, yes or no? 

Because EPA has not proposed to remove or delist electric generating units from the list 

of source categories subject to regulation under Section 112, nor proposed to rescind or 

weaken the emission standards to which those units are currently subject, the proposed 

Reconsideration of the 2016 Supplemental Finding and Residual Risk and Technology 

Review, were it to be finalized, whould have no effect on mercury emissions beyond the 

effect of the MATS standards themselves. 

119. The Harvard "Six Cities" study, which linked air pollution and mortality risk, is a key study 

used in assessing many air quality regulations. In 20 II, the EPA estimated that the control of 

particulate air pollution saved 160,000 lives in 20 I 0, and that it will save 230,000 lives in 

2020. 

a. Under the EPA's proposed "Strengthening Transparency in Regulatory Science" 

rule, would the EPA be able to use the Six Cities study? 

EPA is still in the process of reviewing approximately 9,000 unique, i.e. nonmass mailer public comments and conducting internal deliberations as part 

of the regulatory development process. No decisions have been made 

concerning implications for the use of specific studies. 

b. As Administrator, do you see any danger in moving forward with the 

"Strengthening Transparency in Regulatory Science" rule and eliminating the use 

of studies like the Six Cities study? 

As indicated above, the rule is still under development. No decisions have 

been made concerning implications for the use of specific studies. 

!20. Do you commit to allowing EPA scientists to continue to conduct research free from 

political interference and communicate with the public about their findings, including 

discussing it at conferences and with the media? 

Yes. Consistent with EPA's Scientific Integrity Policy, EPA scientists conduct the 

highest quality research focused on the priorities of EPA's program offices, regions, 

and states. Adhering to scientific practices of quality assurance and peer review, EPA 

scientists are encouraged to publish their findings and present them at scientific 

conferences held throughout the world. EPA's Office of Public Affairs coordinates 

responses to media inquiries and EPA scientists have been available to address 

questions raised by the media. 

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121. At a recent meeting of the EPA Clean Air Scientific Advisory Committee (CASAC), 

multiple members of CASAC expressed doubt that they had the scientific experience to 

manage reviewing the science on particulate matter, which includes divergent scientific fields 

from epidemiology, to toxicology to data science to instrumentation. 

a. Do you still believe that this CASAC has the requisite expertise to provide you 

with advice on particulate matter? 

b. Epidemiology is a key subject for assessing the health impacts of particulate 

matter such as early death and cardiovascular illness, yet not a single 

epidemiologist is on CASAC. How can CASAC adequately assess the science on 

particulate and health, when its members do not have expertise in key fields like 

epidemiology and when there is no particulate matter review panel? 

c. Has CASAC consulted with outside experts on PM and ozone standards? If so, 

with whom? 

CASAC is a seven-member committee, required under Section 109 of the Clean Air 

Act, which provides critical advice related to National Ambient Air Quality Standards 

(NAAQS). The membership includes at least one member of the National Academy of 

Sciences, one physician, and one person who represents a state air pollution control 

agency. In October 2018, EPA announced the appointment of five new members to the 

chartered CASAC. More information on CASAC and its members is available at: 

https://yosemite.epa.gov/sab/sabpcoplc.nsf/WcbCommittccs/CASAC. 

I believe the current CASAC has the experience and expertise needed to serve in this 

capacity as well as to complete the reviews for the particulate matter and ozone 

NAAQS. The chartered CASAC is filled with qualified, independent experts who have 

decades of experience working on ozone and particulate matter issues and a diverse set 

of backgrounds in fields like toxicology, engineering, medicine, ecology, and 

atmospheric science. EPA also has the ability to seek advice from other experts to assist 

CASAC as needed for these reviews. 

Tasking the chartered CASAC with overseeing these reviews ensures the early 

engagement of the advisors who ultimately provide advice to EPA, and this action is 

consistent with the Clean Air Act, regulations implementing the Federal Advisory 

Committee Act, and CASAC's charter. In May 2018, EPA issued a memorandum 

outlining a "Back-to-Basics" process for NAAQS under the Clean Air Act. This memo 

ensures that EPA and its independent science advisors follow a transparent, timely, and 

efficient process in reviewing and revising public health- and welfare-based NAAQS. 

Consistent with the memo, EPA intends to finalize any necessary revisions to the ozone 

and particulate matter NAAQS by the end of2020. 

EPA welcomes feedback during all stages of these reviews from members of the 

scientific community and public. The Committee has received feedback from a number 

of outside experts during recent public meetings and teleconferences. 

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122. Under the Whist1eb1ower Protection Enhancement Act of 2012, any non-disclosure 

agreement, whether written or oral, must include statutory language notifying employees of 

their whistleblower rights. 

a. How does the EPA consistently make its employees aware of this right? Please 

provide examples. 

The U.S. Environmental Protection Agency is committed to ensuring that all 

employees are aware of their rights to be free from prohibited personnel 

practices including retaliation for whistleblowing. To that end, the Agency 

issues annual notifications to employees by email and the email includes a 

link to the U.S. Office of Special Counsel website which includes specific 

information about OSC's mission, authority and procedures. I have attached 

my October 25,2018, notification to the Agency. Specifically, the OSC is an 

independent federal investigative and prosecutorial agency that protects 

federal employees from prohibited personnel practices, including 

whistleblower retaliation and unlawful hiring practices. OSC also provides 

an independent, secure channel for disclosing and resolving wrongdoing in 

federal agencies. 

Additionally, employees can disclose allegations of wrongdoing to the Office 

of Inspector General via the OIG's anonymous hotline. 

In addition, the Whistleblower Protection Enhancement Act of 2012 directs 

Inspectors General to designate a Whistleblower Protection Coordinator. 

The Coordinator's role is to educate agency employees about prohibitions on 

retaliation for protected disclosures and educate agency employees who have 

made or are contemplating making a protected disclosure about the rights 

and remedies against retaliation for protected disclosures. 

b. If there was an official finding, internally or externally, that a whistleblower was 

retaliated against by a member of your staff for a lawful disclosure, how would 

you respond and what consequences would you recommend that the retaliator 

face? 

If there were an official finding that a supervisor engaged in whistleblower 

retaliation, the Agency would follow the requirements of the Chris 

Kirkpatrick Whistleblower Protection Act, S. 585, of 2017. While fact 

patterns can differ greatly, the Agency would thoroughly review the case and 

respond as it best deemed appropriate in accordance with the law. As the 

Agency's annual email notifications highlight, the Agency firmly supports 

whistleblower rights and protections. 

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Senator Merkley: 

123. In 2009 the EPA issued under its Clean Air Act authority a science-based finding that 

greenhouse gas emissions endanger public health and welfare. This finding was made after a 

long public comment period with thousands of comments received and considered. 

In Massachusetts v. EPA, the Supreme Court held that "greenhouse gases fit well within 

the Clean Air Act's capacious definition of 'air pollutant,"' and noted that the Act defines 

"welfare" similarly broadly to include effects on weather and climate. EPA has issued a 

request for comment on developing a new endangerment finding under Section Ill (b) of 

the Clean Air act for "an already listed category" of pollutant. Revisiting this process 

would be unprecedented. 

Will you commit to respecting the previous scientific process and commit to not 

revisiting the EPA's 2009 greenhouse gas endangerment and contribution findings? 

As I have stated multiple times, I do not intend to reconsider those findings. Having 

said that, as Administrator, I cannot commit to take any particular action or 

prejudge the outcome of any matter that might come before me, as I have a 

responsibility to ensure that whatever actions the EPA might take under the Clean 

Air Act are within the lawful scope of the EPA's authority under the Act, reflected 

reasoned decision making, and are taken after providing public notice and comment 

as appropriate. 

124. The Mercury and Air Taxies Standards (MATS) have been tremendously successful and 

that utilities have already invested significant resources towards abating this type of 

pollution, and support keeping the standard in place. 

But on December 28th, the EPA, under your leadership, said it was no longer 

"appropriate and necessary" to regulate mercury and toxic air pollution from coal- and 

oil-fired plants. 

In the Michigan vs. EPA case in 2015, the Supreme Court ruled that the EPA should have 

considered the costs at the same time that it decided whether it is was "appropriate and 

necessary" to regulate hazardous air emissions from power plants. The EPA complied 

with the ruling by submitting a Supplemental Finding in 2016 to the MATS rule, which 

examined industry costs and public health benefits. 

Under the Trump Administration, the EPA then chose to reopen this Supplemental 

Finding and focus on attempting to undermine this vital health protection. You claimed 

that this done under the Supreme Court's mandate. 

Please state the exact legal mandate that directs the EPA to revise the MATS rule that 

was not fulfilled by the EPA's Supplementation Finding in 2016. 

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EPA has not proposed to remove or delist electric generating units from the list of 

source categories subject to regulation under Section 112, nor proposed to rescind or 

weaken the emission standards to which those units are currently subject. The bases for 

EPA's proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk 

and Technology Review are provided in the notice of proposed rulemaking (NPRM) 

signed on December 27, 2018, and in the supporting documents which will be available 

in Docket No. EPA-HQ-OAR-2018-0794. The EPA has reexamined the cost analyses 

presented in the 2016 Supplemental Finding and proposes to determine that neither of 

the Finding's approaches to considering cost satisfies the Agency's obligation under 

CAA section ll2(n)(1)(A) as interpreted by the Supreme Court in Michigan. 

125. You further stated that the Clean Power Plan was withdrawn in compliance with the courts. 

However, the Supreme Court has never issued a detennination on the legality of the Clean 

Power Plan. Instead, the Supreme Court simply stopped implementation while litigation 

continued. It has three times upheld the EPA's authority to set limits on carbon pollution. 

Additionally, the Affordable Clean Energy plan proposed has been shown by the study 

"The Affordable Clean Energy Rule and the Impact of Emissions Rebound on Carbon 

Dioxide and Criteria Air Pollutant Emissions" published in Environmental Research 

Letters, to potentially increase pollution in certain states. 

Please provide the EPA's analysis showing the impacts on individual plants and state 

level emissions. 

If EPA career staff disagree with the findings of the Environmental Research Letters 

study, I ask that you provide the scientific and cost-benefitjustification for the 

disagreement. 

The Clean Power Plan (CPP) was stayed by the Supreme Court and thus was never 

implemented and never achieved any emission reductions. The proposed Affordable 

Clean Energy (ACE) rule is projected to significantly reduce emissions, including 2030 

reductions of carbon dioxide of 12 to 27 million tons. As you can appreciate, we 

currently are in the midst of a rulemaking and are actively working to formulate a final 

rule. We will take your concerns into consideration as we complete the rule. Further 

information responsive to your questions may be found in the Notice of Proposed 

Rulemaking (NPRM) for the ACE rule, published at 83 Fed. Reg. 44,746 (Aug. 31, 

2018) and in the supporting documents in the docket for this action, EPA-HQ-OAR2017-0355. 

I 26. In the New Source Performance Standards (NSPS), EPA reduced requirements on 

monitoring fugitive methane emissions. The EPA finds it would increase the leakage of 

methane by 380,000 short tons and additionally allow increases in the release of VOCs and 

other harmful air pollutants. 

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Why were the increases in VOC and other harmful air pollutants not included in the costbenefit analysis? 

On September 11,2018, EPA proposed targeted improvements to the 2016 New Source 

Performance Standards for the oil and gas industry that streamline implementation, 

reduce duplicative EPA and state requirements, and significantly decrease unnecessary 

burdens on domestic energy producers. This oil and gas targeted improvements 

package is expected to save up to approximately $484 million in regulatory costs from 

2019- 2025 or $75 million annually. The accompanying regulatory impact analysis 

discusses the inclusion and exclusion of certain costs and benefits, and is available at: 

https://www.epa.gov/sites/production/files/2018-

09/documents/oil and natural gas nsps reconsideration proposal ria.pdf. This 

analysis included an evaluation of changes in methane, VOC, and HAP emissions. 

127. Numerous studies including "Aerial Surveys of Elevated Hydrocarbon Emissions from Oil 

and Gas Production Sites" published in Environmental Science and Technology, and 

"Assessment of methane emissions from the U.S. oil and gas supply chain" published in 

Science have shown methane leak rates to be higher than EPA accounts for. 

Given this fact, what is the justification for weakening these standards? 

lfthe methane emissions leak rate of2-3% were used, instead of the 1.4% EPA currently 

uses, what would be the impact on this rule and other methane emissions rules? 

EPA proposed targeted improvements to the 2016 New Source Performance Standards 

for the oil and gas industry that streamline implementation, reduce duplicative EPA 

and state requirements, and significantly decrease unnecessary burdens on domestic 

energy producers. This oil and gas targeted improvements package is expected to save 

up to approximately $484 million in regulatory costs from 2019-2025 or $75 million 

annually. 

EPA develops an annual report, titled the Inventory of U.S. Greenhouse Gas Emissions 

and Sinks, that tracks U.S. greenhouse gas emissions and sinks by source, economic 

sector, and greenhouse gas going back to 1990. EPA publishes the draft report in 

February to allow for public comment prior to publishing the final report by April15 

of every year. More information on the report, including EPA's assessment of methane 

emissions rates, is available at: 

https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks. 

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128. In 2014, the EPA created the "electric pathway" under the RFS program to accelerate the 

adoption of electric vehicles, the development of charging infrastructure, and the production 

ofbiogas electricity by allowing for the creation of"electric-RINs" or "E-R!Ns". 

Since the program's creation, no E-RIN applications for this pathway have been 

approved, and there are at least six applications pending. These applications have been 

submitted by vehicle manufacturers, charging stations, and third party clearinghouses, 

many of whom have been waiting years to receive a decision from your agency. 

Does EPA plan to address an electric RIN-generation program in the near future? 

EPA has received a number of comments that are under consideration as the agency 

continues to develop an e-RINs generation program. There are a range of important 

considerations including assessing the best methods for robust oversight that are 

key to successful implementation. While we do not have a date certain for 

completion of the program, we will continue to work through these important issues 

and will keep you regularly informed of the program's progress. 

Will you commit to addressing this backlog and giving these applicants a response within 

90 days? 

Per the above answer, the agency does not have a date certain for completion of the 

e-RINs program, but we will keep you regularly informed of the program's 

progress. 

129. The EPA has proposed a rulemaking that will modify applicable volume targets for 

cellulosic biofuel, advanced biofuel, and total renewable fuels for the years 2020-2022. As 

part of this rulemaking, the agency will also be proposing volume requirements for biomassbased diesel for 2021 and 2022. This proposed rulemaking includes several regulatory 

amendments designed to provide clarity and increase opportunities for renewable fuel 

production. 

Can you explain the method by which the EPA intends to clarify or make changes to 

those existing regulations? 

EPA has not yet proposed the above referenced action. The agency plans to propose 

a "Reset" rule pursuant to the requirements laid out in Clean Air Act section 2ll(o) 

in 2019. Part of that rule will include provisions that will streamline elements of the 

pathways program. We will keep you informed of the progression of the reset 

proposal and provide further details once the proposal is complete. In addition, 

after the proposal is complete and published in the Federal Register, all interested 

parties will have the opportunity to submit comments or additional information to 

the agency regarding the proposal. 

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In addition, can you confirm whether EPA intends to include clarifications to the 

regulations related to existing alternative pathways for advanced and cellulosic biogas? 

Per the above answer, EPA has not yet issued the referenced proposed rule. The 

agency will keep you informed of the progression of the reset proposal and provide 

further details once it is complete. 

130. The updated Toxic Substances Control Act (TSCA) is supposed to regulate thousands of 

chemicals used industrially, and in an array of consumer products like paint, cleaning 

products, mattresses, clothes, insulation, and more. But under both former Administrator 

Pruitt and under your leadership, the Environmental Protection Agency has taken every 

opportunity to undermine, not enhance, chemical safety. 

In evaluating whether a new chemical might pose an unreasonable risk, the law requires 

EPA to rigorously review both the intended use of the new chemical and any future uses 

that are "reasonably foreseen," per the definitions of the conditions of use. 

However, the EPA announced in 2017 that the TSCA new chemical review process 

would not include a consideration of the chemical safety risk across all uses of a new 

chemical, and instead would allow new chemicals to enter the marketplace after 

considering only the intended uses identified by the industry applicant 

Isn't this in direct contravention of what the law requires? 

EPA considers all conditions of use, including reasonably foreseen uses (regardless of 

whether they are identified by the submitter), when conducting a new chemical 

review. The Lauten berg Act amendments to TSCA required that conditions of use 

means the circumstances, as determined by the Administrator, under which a chemical 

substance is intended, known, or reasonably foreseen to be manufactured, processed, 

distributed in commerce, used, or disposed of. The identification of reasonably foreseen 

conditions of use will necessarily be a case-by-case determination and will be highly fact 

specific. 

131. Chemicals are often used for purposes that were never initially considered by the original 

manufacturer. Research has linked exposure to the chemicals in this now ubiquitous product 

to health effects ranging from reduced fertility to hormone disruption and DNA damage. 

I'm concerned that, rather than evaluating the risk a new chemical may pose in the future, 

EPA is considering only the potential risk from the uses that the first manufacturer of the 

chemical initially identifies, even though if that chemical is allowed on the market on that 

basis without any conditions, other manufacturers are likely to use the chemical for other 

purposes. 

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Under this approach, EPA would never consider the combined risks from both intended 

and other reasonably foreseen uses of the chemical. This could result in a failure to 

address all of the potential risks of the new chemical, and inadequate protection of human 

health and the environment. 

How do you plan on prioritizing EPA resources to ensure that chemical reviews are 

implemented as required by TSCA? 

If confirmed, will you commit to including in both new and existing chemical risk 

evaluations ALL reasonably foreseeable future uses of chemicals under review? 

New and existing chemical evaluations under TSCA are a top priority for the EPA, and 

I will ensure that resources are allocated appropriately. EPA considers all reasonably 

foreseen conditions of use (regardless of whether they are identified by the first 

manufacturer). The Lauten berg Act amendments to TSCA provided that conditions of 

use means the circumstances, as determined by the Administrator, under which a 

chemical substance is intended, known, or reasonably foreseen to be manufactured, 

processed, distributed in commerce, used, or disposed of. 

132. Recently, there have been a number of actions taken by the EPA that undermine resource 

allocation and implementation of the TSCA reform. The final fee rule establishes the "user 

fees" Congress authorized EPA to collect from chemical manufacturers and processors to 

help defray EPA's costs for implementing TSCA. This rule dramatically underestimates costs 

and lets the industry get away without paying its fair share. 

In that fee rule, the agency grossly underestimated not only the costs of reviewing 

Confidential Business Information claims, but entirely excluded its costs to provide ready 

access to CBI required under the new TSCA to state governments and other qualified 

persons, or to provide public access to information that does not qualify for protection 

from disclosure. 

If confirmed to lead the EPA, will you commit to prioritizing sound TSCA 

implementation by fighting for full funding for the agency, maintenance of and support 

for the Office of Research and Development's scientific work relevant to the TSCA 

program, and funding and staffing levels necessary to carry out the statute in a balanced 

way? 

I am committed to working with the Administration and Congress to ensure that the 

TSCA program is adequately resourced to meet its responsibilities and requirements 

under the law. As you suggest, the new fees program is an important source of TSCA 

resources. We have put in place an appropriate fee structure based on reasonable 

resource estimates and assumptions. The statute gives us the opportunity to revisit 

those assumptions once we gain experience implementing the program. 

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133. Asbestos is a known carcinogen that has been banned in more than 60 countries, because 

there is no safe or controlled use of asbestos. 

Would you agree that there is no safe or controlled use of asbestos? 

To address serious adverse health impact concerns associated with exposure to asbestos, 

EPA has started two asbestos actions under its TSCA authorities. The first is to 

evaluate the uses of asbestos that are still being manufactured and imported into the 

United States. If EPA's risk evaluation shows that any of those uses presents an 

unreasonable risk to people or the environment, the law requires EPA to take action to 

eliminate the risk. The second action EPA has taken is to guard against former asbestos 

uses coming back, either through domestic manufacture or import into the United 

States. We are working to finalize a rule requiring that certain asbestos uses that are no 

longer in commerce in the United States, but existed before EPA's partial asbestos ban 

in 1989, cannot be restarted without EPA review and regulation. The new efforts we 

have initiated under our TSCA authorities, will give us a better understanding of where 

risks from asbestos exposure still exist, so that we can apply the most effective and 

protective approaches to address them. 

134. EPA has proposed a significant new use rule (SNUR) for asbestos that opens the door to 

resuming several uses of asbestos that ended many years ago. 

Instead, would you commit to opposing the asbestos SNUR and permanently banning all 

uses of asbestos under section 6 of TSCA? 

All uses previously banned under EPA's prior Asbestos Ban and Phaseout Rule remain 

banned. EPA's proposed SNUR would prohibit certain unregulated uses of asbestos 

and require a review from EPA should anyone seek to initiate those uses, which may 

result in restrictions, including a decision to maintain the prohibition. Without 

finalizing this SNUR, these uses can currently commence in the United States at any 

time without review and regulation from EPA. The SNUR is the only way of assuring 

that these products do not enter the marketplace until the risk evaluations are 

completed. 

135. Millions of people are still exposed to asbestos every single day, in schools, commercial 

buildings, construction sites, factories, and homes. Yet EPA's ongoing asbestos risk 

evaluation does not account for the existing presence and ongoing use of asbestos. 

Do you support EPA's decision to ignore this risk by removing it from the scope of the 

risk evaluation? 

Will you pledge to work with this Committee to include legacy use and exposure in 

EPA's ongoing risk evaluation? 

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EPA is focusing its risk evaluation on asbestos currently manufactured, imported, 

processed, or distributed in the United States, which falls within the agency's TSCA 

jurisdiction. Many existing Federal or State regulations protect against asbestos 

exposure from legacy uses. EPA would be happy to work with the Committee to 

elaborate on how legacy uses are currently addressed by EPA and other agencies. 

136. The risk evaluation also excludes several types of cancer and lung disease, along with all 

exposure to asbestos resulting from its release into the environment. Think about the 

thousands of first responders exposed to asbestos dust after the tragedies of September ll th, 

200 l, and the resulting cases of lung cancer and mesothelioma. That type of exposure is 

being excluded from EPA's evaluation. 

Will you commit to removing these exclusions, and instead conducting a thorough and 

comprehensive evaluation? 

I share your concern for first responders exposed to the asbestos dust after the 

tragedies of September 11, 2001. Because cancer is expected to be the risk driver, in 

conducting further analysis for the risk evaluation of asbestos, EPA intends to limit the 

scope of the risk evaluation to lung cancer and mesothelioma in humans. Evaluating 

these health endpoints will help to ensure that EPA's risk evaluation accounts for other 

health effects as well. We believe that the health effects identified in the problem 

formulation document are the appropriate ones to address under the risk evaluation's 

conditions of use. 

137. The semiconductor industry in Oregon is a major employer and economic driver. 

Approximately 24,000 Oregonians are employed in the semiconductor industry, and it is the 

state's largest export. 

Several Oregon companies have expressed concern about the shutdown and the potential 

impact it could have on the review and approval of specialized chemicals needed for 

semiconductor manufacturing. The industry relies on EPA approval of chemicals with 

specific functional and performance attributes in its highly advanced and complex 

manufacturing operations. 

The primary family of chemicals that has triggered concern for companies in my state are 

known as onium compounds, which are primarily used as photoacid generators in the 

photolithography process used to manufacture semiconductors. Some of these chemicals 

are currently in use, some of them are under evaluation. In some cases, chemicals are 

approved for a temporary period of time (e.g., 6 months), and there is a risk that this 

period may expire without EPA having the ability to extend the approval. 

What is EPA doing to assure these companies and the public that new chemicals are 

being reviewed in a timely manner and that time-limited approvals will not lapse during 

this shutdown? 

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We have a productive ongoing relationship with the semiconductor industry on the 

onium compounds, which we appreciate are important to the industry's continued 

development and U.S. leadership. EPA will keep innovation in mind and ensure that 

chemicals important to the semiconductor industry, such as the onium compounds, 

move through new chemicals review as expeditiously as possible consistent with TSCA's 

requirements for evaluation and management under section 5. 

138. The Office of Land and Management, which oversees cleanup of toxic Superfund sites, is 

currently down from 468 staffers to 3. 

Has Superfund site monitoring or oversight been impacted or diminished in any way 

during the government shutdown as compared to the same time period last year? 

The number of employees in excepted that worked nationwide on Superfund issues 

was dynamic and varied by region since the agency directed work to meet specific 

needs as allowed by law. EPA Headquarters and Regional excepted staff in the 

Superfund Program continued to respond at sites or incidents where there was an 

imminent threat to the safety of human life or to the protection of property. Work at 

Superfund sites continued without EPA involvement up to the point that additional 

EPA direction or funding was needed. Cleanup activities requiring new funding will 

start now that cleanup activities are able to commence. 

139. In 2017, EPA adopted a cleanup plan for the Portland Harbor Superfund site in my home 

state of Oregon, one of the largest sites currently on the EPA's National Priorities List. 

In response to intense lobbying from two Potentially Responsible Parties of 

contamination at the site, EPA has proposed weakening the cleanup standards for the 

entire cleanup based on a new estimate of cancer risks from a single contaminantbenzo-a-pyrene, a polycyclic aromatic hydrocarbon or PAH -even though other 

contaminants still persist at the site. 

EPA is making this change with incomplete information, before any testing, monitoring, 

or design is completed for the project- which may reveal additional need for strong 

cleanup standards. Furthermore, the cleanup plan already provides for a five-year 

technical review process whereby this new risk assessment can be considered, alongside 

other public health concerns, to properly weigh whether reduced cleanup is necessary. 

Why is the EPA weakening Superfund cleanup standards at the Portland Harbor 

Superfund site, thereby exposing the public to greater health risks, without the bare 

minimum information including: baseline monitoring data, an analysis of how this 

change will increase health risks from fish and clam consumption, or any analysis of 

cumulative risks posed by the chemical cocktail in the Harbor? 

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Does the Portland Harbor Superfund site remain a priority for EPA and are you 

committed to ensure that adequate resources exist for the Agency to support remediation 

efforts undertaken by PRPs at the site? 

The Portland Harbor Superfund site remains a priority for EPA and continues to be 

included on the Administrator's emphasis list of priority Superfund sites. This 

designation will help ensure the site has the highest level of attention to move the 

cleanup forward. The Agency remains committed to providing the resources needed to 

work with potentially responsible parties to ensure the remedial designs and remedial 

actions are implemented at this site. 

EPA is proposing changes to the January 2017 Portland Harbor Record of Decision 

(ROD) based on a new toxicological review related to one contaminant, Benzo(a)pyrene 

(BaP) that was released approximately two weeks after the Record of Decision was 

signed. (BaP is a Polycyclic Aromatic Hydrocarbon (PAH) which is produced when 

coal, oil, and gas are burned, spilled, etc.) Based on national research, EPA updated the 

estimated health risk for BaP in the Toxicological Review of Benzo(a)pyrene for people 

who contact or ingest the chemical. 16 The review updated the oral cancer slope factor 

for human health risk for BaP from 7.3 to 1 milligram per kilogram per day. Given that 

humans have less cancer risk from exposure to HaP, EPA evaluated the potential 

implications on the cleanup remedial action levels (RALs) from exposure to 

carcinogenic PAHs (cPAHs) to determine whether any areas slated for active cleanup, 

primarily due to human exposures from direct contact with contaminated sediments or 

shellfish consumption, no longer presented an unacceptable risk or may no longer 

require active cleanup. 

To address this new information, consistent with EPA guidance, on October 22,2018, 

EPA issued a proposed Explanation of Significant Differences (ESD) that proposes 

changes to the ROD for the Portland Harbor Superfund site. Under the proposed ESD, 

the changes would be: 

Updating the beach sediment cleanup levels (CULs) for cPAHs from 12 to 85 

mg/kg. 

Including a direct sediment CUL for cPAHs of 774 mg/kg applicable to 

nearshore sediments 

Correcting a mathematical error made in calculating the shellfish consumption 

sediment CULs, changing it from 3,950 to 39.5 mg/kg and updating the shellfish 

consumption shellfish consumption CUL for cPAHs from 39.5 to 1,076 mg/kg 

Updating the target tissue level for cPAHs in shellfish from 7.1 to 51.6 mg/kg 

Updating the highly toxic principal threat waste (PTW) threshold from 106,000 

to 774,000 mg/kg- applicable to the whole site 

Updating the total PAH remedial action level applicable to sediments outside the 

navigation channel for 13,000 to 30,000 mg/kg 

16 The toxicological review available in EPA's Integrated Risk Information System (IRIS). 

h ttps :/I cfp u b. epa .gov I ncea/i ri s _drafts/ record is pi ay .cfm ?de i d ;329 7 50 

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• For beaches where recreational use is possible based on existing and reasonably 

anticipated uses and any sediment CULs are significantly exceeded, signage or 

other educational institutional controls may be used until the CULs are 

achieved. 

EPA determined that these changes will maintain the protectiveness of the 2017 ROD. 

All other elements in the 2017 ROD remain unchanged. These overall changes only 

affect areas where cleanup is driven solely by human health risks based on actual or 

potential exposures to PAHs and includes Terminal 4, the west side of the Willamette 

River between river miles 4 and 7, the upper portion of Swan Island lagoon, and the 

east side of the Willamette River between river miles 2.5 and 3. The amount of PTW is 

unchanged. 

Overall the estimated total remedial area would be reduced from 364 acres to 347 acres 

(4.7%) if the proposed ESD is implemented. It is estimated the total cubic yards (CYs) 

of dredging and riverbank excavation would be reduced by 80,000 CYs- from 

approximately 3.02 million CYs to approximately 2.94 million CYs. The overall costs 

would be reduced by an estimated $35 million to $1.015 billion. 

EPA accepted public comments on the proposed changes through December 21,2018. 

Due to the government shutdown, we have not been able to complete the review and 

evaluation of those comments, but intend to do so when EPA funding is restored. 

140. Last year, EPA and NHTSA released a proposal to roll back the Corporate Average Fuel 

Economy (CAFE) standards. The proposal would freeze fuel efficiency standards, even 

though many automakers have already invested in technology research and investment. It 

would also undermine states' abilities to set higher standards for themselves. And it would 

result in a drastic increase in carbon pollution. 

In order to boost fuel efficiency, at least I ,200 U.S. facilities and 288,000 American 

workers are building parts and materials. U.S. automakers have invested nearly $64 

billion in these facilities. Your proposal would put these investments, these factories, and 

these workers in jeopardy. 

Will you commit to working with the states that have their own rules in place and NOT 

preempting those states that maintain stricter standards? 

EPA and the National Highway Traffic Safety Administration (NHTSA) have jointly 

proposed a rulemaking for greenhouse gas (GHG) emission and fuel economy 

standards, respectively, affecting light-duty vehicles for the 2021 through 2026 model 

years. EPA also proposed to revoke the waiver of preemption currently in place which 

allowed California (and a number of other states that have adopted the California 

standards) to adopt their own GHG standards and the zero-emission vehicle program. 

The proposed legal basis for withdrawing the California Waiver is described in the 

notice of proposed rulemaking and accompanying documents, available at: Docket No. 

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EPA-HQ-OAR-2018-0283. EPA received a wide range of public comments on the 

proposal and is carefully reviewing those comments. I am committed to working with 

California and Section 177 states as EPA and NHTSA determine a path forward 

consistent with the Clean Air Act and the goal of one national program. 

141. Based on the sources you have consulted, please describe the scientific consensus on the 

role of climate change and its relation to more severe wildfire seasons. 

I have reviewed the Fourth National Climate Assessment, but I expect to receive future 

briefings on the causes of wildfires, including the role of active forest management and 

climate change. 

142. In your testimony, you said you would "continue to read the literature" regarding the causes 

of catastrophic wildfires. I submit the following articles, including the National Climate 

Assessment, for your review, which find that climate change has increased the area burned in 

the Western United States: 

a. Yose, J.M., D.L. Peterson, G.M. Domke, C.J. Fettig, L.A. Joyce, R.E. Keane, 

C.H. Luce, J.P. Prestemon, L.E. Band, J.S. Clark, N.E. Cooley, A. D'Amato, and 

J.E. Halofsky (2018). "Forests." In Impacts, Risks, and Adaptation in the United 

States: Fourth National Climate Assessment, Volume II [Reidmiller, D.R., C. W. 

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C. 

Stewart (eds.)). U.S. Global Change Research Program, Washington, DC, USA, 

pp. 232-267. doi: l0.7930/NCA4.2018.CH6. 

b. Abatzoglou, J. T., & Williams, A. P. (20 16). Impact of anthropogenic climate 

change on wildfire across western US forests. Proceedings of the National 

Academy of Sciences, 113(42), 11770-11775. 

c. Keeley, J., & Syphard, A. (2016). Climate change and future fire regimes: 

examples from California. Geosciences, 6(3), 37. 

d. Keyser, A., and A. L. Westerling. (2017). Climate drives inter-annual variability 

in probability of high severity fire occurrence in the western United States. 

Environmental Research Letters, 12(6), 065003. 

e. Davis, R., Yang, Z., Yost, A., Belongie, C., & Cohen, W. (2017). The normal fire 

environment-Modeling environmental suitability for large forest wildfires using 

past, present, and future climate normals. Forest Ecology and Management, 390, 

173-186. 

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After reading these articles, do you still believe that climate change has a limited role in the 

changing patterns of wildfires, including longer, more severe wildfire seasons? 

Thank you for the suggested articles on the impact of climate change on wildfires. I have 

also found these sources to be educational as well. "Fire on the Mountain: Rethinking 

Forest Management in the Sierra Nevada" report by the Little Hoover Commission, the 

Independent California Oversight Agency17• The California agency stated, "a century of 

mismanaging Sierra Nevada forests has brought an unprecedented environmental 

catastrophe that impacts all Californians." Likewise, Professor Cliff Mass with the 

University of Washington stated recently that "The Camp Fire that struck northern 

California ... is a profoundly disturbing environmental disaster of first magnitude ... this 

disaster was both foreseeable and avoidable, resulting from a series of errors, poor 

judgment, lack of use of available technology, and poor urban planning." Professor Mass 

also stated that "Global warming is a profoundly serious threat to mankind, but it has little 

impact on the Camp Fire and many of the coastal California fires of the past few years." As 

I continue to examine the science of climate change and the potential impacts, I will try to 

avail myself of the latest science as well as the scientific advice of the career scientists here 

at the EPA. 

Senator Rounds: 

143. Acting Administrator Wheeler, under the RFS, the EPA is granted expanded discretionary 

authority to set volume obligations after 2022. If confirmed, you very well may be leading 

the EPA at that particular point in time. 

a. In your professional opinion, what is the range of discretionary authority granted 

to the EPA after 2022? 

b. How do you anticipate conventional corn ethanol being impacted after 2022? 

c. We need a thriving biofuels industry for a variety of national security reasons, 

including energy independence and diversity. Do you believe that Congress needs 

to consider statutory changes to account for the negative possibilities post-2022? 

To date, EPA has not taken a position on the details of how it will conduct post-2022 

program implementation. It is safe to say that responsibility for setting RVO targets 

shifts to EPA and that the Agency must consider a wide range of factors in determining 

appropriate RVO targets and RVOs. I look forward to consulting with you on this 

important issue as we get closer to implementation of these provisions. Congressional 

statutory direction would provide the best clarity to allow EPA to implement this 

program post 2022. 

17 Little Hoover Commission, "Fire on the Mountain: Rethinking Forest Management in the Sierra Nevada," 

(Report Number 242). February 2018, https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/242/Report242.pdf. 

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144. Mr. Wheeler, our trade partners are currently deciding how they will approach the use of 

gene editing in agriculture. To minimize the chance of trade disruptions, it's critical that the 

U.S. government have a consistent position across agencies that we can encourage other 

nations adopt. Will EPA collaborate with USDA and FDA in a timely manner to develop a 

consistent position? Moreover, is this a matter we can expect EPA to commit sufficient 

resources to moving forward? 

If confirmed, yes, EPA will continue to collaborate with USDA and FDA in a timely 

manner to develop a consistent position. EPA will allocate resources to this matter as 

provided by Congress. 

Senator Sanders: 

145. In my questions for the record for the hearing to consider your nomination for EPA Deputy 

Administrator, I asked whether you would commit to continuing the EPA's support for the 

clean-up of phosphorus in Lake Champlain through the Total Maximum Daily Load (TMDL) 

standard that the agency established in 2016. Y au responded that you would "work within 

the appropriations levels provided to the EPA by Congress." 

In your time thus far at the EPA, have you found the appropriations levels provided to the 

EPA by Congress to be sufficient to ensure that the EPA's Clean Water Act obligations 

are satisfied in regard to phosphorus levels in Lake Champlain? If so, please provide a 

timeline for when the EPA will fulfil its obligations under the TMDL. If not, please 

describe the funding amounts and specific areas for which congressional appropriations 

have been insufficient to fulfil the EPA's Clean Water Act obligations, as well as your 

plan for requesting sufficient funds in the EPA's FY2020 budget request. 

The EPA is committed to working with the states of Vermont and New York on their 

implementation of the Lake Champlain TMDLs. Once Congress provides 

appropriations, the EPA will continue to perform the agency's oversight 

responsibilities. 

Climate Change 

146. In November 2018, the U.S. Global Change Research Program released the Fourth National 

Climate Assessment (Assessment). Do you agree with the Assessment's findings that climate 

change will cause the following impacts? 

If so, please describe how the EPA has factored in each impact to its decision-making in 

regard to each of the 33 deregulatory actions the EPA has taken under the Trump 

administration. 

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a. An increase in extreme weather that is expected to damage infrastructure, 

ecosystems, and social systems, particularly impacting communities and people 

that were already vulnerable. 

b. A decrease in quality and quantity of water available for people and ecosystems 

due to intensifying droughts, heavy downpours, reduced snowpack, and poor 

surface water quality. 

c. An increased risk of waterborne and foodborne diseases, heat-related deaths, 

allergic illnesses, vector-borne diseases, and mental health degradation, which are 

expected to have the greatest impact on older adults, children, low-income 

communities and communities of color. 

d. A negative impact on the economic, cultural, and physical well-being of 

Indigenous peoples. 

e. Degradation of our ecosystems and their services, such as " ... clean air and water, 

protection from coastal flooding, wood and fiber, crop pollination, hunting and 

fishing, tourism, and cultural identities." 

f. Declining crop yields, worsening livestock health, and decreasing economic 

vitality of rural communities. 

g. An increase in power outages, fuel shortages, and service disruptions due to 

increased stress on our already aging and deteriorating infrastructure. 

h. A continued trend of"rising water temperatures, ocean acidification, retreating 

arctic sea ice, sea level rise, high-tide flooding, coastal erosion, higher storm 

surge, and heavier precipitation events [that] threaten our oceans and coasts." 

i. A reduction in outdoor economies across the United States. 

I have reviewed the Fourth National Climate Assessment at this time, but I expect to 

receive future briefings from EPA career staff on a number of these topics. How EPA 

may take account of the Assessment in any future rulemaking will be determined on the 

record in that rulemaking. At the same time, I will note that EPA's regulatory and deregulatory actions respecting greenhouse gas emissions have incorporated these 

potential impacts in decision making through the use of the "social cost of carbon" and 

the "social cost of methane," in accordance with Executive Order 13783 on Promoting 

Energy Independence and Economic Growth. 

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147. During this hearing, I asked you whether you agreed or disagreed with President Trump that 

climate change is a "hoax." You responded by saying that you have not used the word 

"hoax" yourself. I took that to mean that you do in fact disagree with President Trump's 

characterization that climate change is a hoax, but I want to ask again, just to be clear: Do 

you agree with President Trump that climate change is a hoax? Please provide your answer in 

the form of a "yes" or "no." 

I believe that climate change is real, that the climate is changing, and that mankind has 

an impact on the climate. 

148. During this hearing, I asked whether you are concerned by rising sea levels. You responded 

that rising sea levels are a concern and that you believe in adaptation (but not mitigation) 

"absent additional congressional authority." The Supreme Court in Massachusetts v. EPA 

found that the EPA does in fact have statutory authority, and indeed a statutory obligation, to 

regulate the carbon dioxide emissions that cause climate change. 

Given that the EPA does in fact have congressional authority to mitigate climate change 

by regulating carbon dioxide emissions, would you like to alter your testimony? 

Given that the EPA does in fact have congressional authority, and indeed a statutory 

obligation, to mitigate the causes of climate change, please provide your plan, including a 

timeline, for issuing regulations on greenhouse gases to bring the United States in line 

with carbon pollution emissions reduction targets prescribed by the Intergovernmental 

Panel on Climate Change's "Global Warming of 1.5°C" report. 

I believe that my testimony was correct and as I stated at the hearing and have stated 

many times before, including during both of my previous hearings, we are 

implementing the Massachusetts v. EPA Supreme Court decision, which is why we are 

moving forward with the ACE proposal to replace the Clean Power Plan. The Clean 

Power Plan, I believe, as indicated by the historic stay by the Supreme Court, went 

outside the bounds of the Clean Air Act. We do not have Congressional authority to 

institute a cap and trade scheme. In order to help mitigate the causes of climate change 

we are moving forward with both the ACE proposal and the SAFE Vehicles proposal 

and we intend to finalize them both this calendar year. 

Clean Power Plan Replacement 

149. On August 21, 2018, the EPA released its proposal to repeal the Clean Power Plan. By the 

EPA's own estimates, this plan would drastically increase carbon and other pollution 

emissions from power plants as well as cause as many as 1,400 additional premature deaths, 

48,000 new cases of asthma, and 21,000 new missed school days each year compared to the 

Clean Power Plan. In order to justify this new, weaker rule, the EPA altered its cost-benefit 

analysis methodology to minimize the new rule's projected damages to the environment and 

public health. This methodology is described in the EPA's regulatory impact analysis 

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"Regulatory Impact Analysis for the Proposed Emission Guidelines for Greenhouse Gas 

Emissions from Existing Electric Utility Generating Unites; Revisions to Emission Guideline 

Implementing Regulations; Revisions to New Source Review Program." 

One way in which the EPA's analysis was altered was to ignore the health effects from 

direct exposure to sulfur dioxide, nitrogen dioxide, and hazardous air pollutants like 

mercury and hydrogen chloride. According to the EPA's regulatory impact analysis, the 

EPA did not include these factors in its proposal to repeal the Clean Power Plan due to 

"data, resource, and methodological limitations," despite their clear negative health 

impacts. 

Given that the EPA's failure to properly consider these factors clearly violates its mission 

to protect human health and the environment, as well as its statutory obligation under the 

Clean Air Act to protect and improve the nation's air quality, please describe your plan, 

including a timeline, for withdrawing the EPA's proposal to repeal the Clean Power Plan. 

I disagree that the EPA has failed to properly consider relevant factors in its proposal 

to repeal the Clean Power Plan. The EPA has not taken final action on its proposal to 

repeal the Clean Power Plan. The EPA has no plans at this time to withdraw its 

proposals to repeal or replace the Clean Power Plan. The proposed Affordable Clean 

Energy (ACE) rule is projected to significantly reduce emissions, including 2030 

reductions of carbon dioxide (12 to 27 million tons), sulfur dioxide (7,000 to 15,000 

tons), and nitrogen oxides (8,000 to 15,000 tons). The Clean Power Plan (CPP) was 

stayed by the Supreme Court and thus was never implemented. EPA separately 

regulates fine particulate matter and ozone under its National Ambient Air Quality 

Standards (NAAQS). EPA expects continued reductions in emissions and 

concentrations of these criteria pollutants. Further information responsive to your 

questions may be found in the Notice of Proposed Rulemaking (NPRM) for the ACE 

rule, published at 83 Fed. Reg. 44,746 (Aug. 31, 2018) and in the supporting documents 

in the docket for this action, EPA-HQ-OAR-2017-0355. 

150. Elevated and unsafe levels of perfluoroalkyl substances (PF AS) have been found in 

hundreds of sites and at least one municipal water system in Vermont, and have 

contaminated public water and other natural resources for an estimated 16 million people 

nationally. 

In June 2018, the Agency for Toxic Substances and Disease Registry (ATSDR) released 

a draft study concerning the health effects of PF AS, including, but not limited to, effects 

on the growth, learning, and behavior of children, increased cholesterol levels, and 

increased risk of cancer. Prior to the study's release, Politico reported that officials from 

the White House, the Office of Management and Budget, the EPA, and the Department of 

Defense intervened to delay the release of the study in order to avoid a "public relations 

nightmare." I joined with several of my Senate colleagues in writing to thenPage 118 of 150 
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Administrator Pruitt to request information on the EPA officials who intervened in order 

to delay the release of the ATSDR study. He responded by stating that the EPA did not 

have authority to release the A TSDR study, which is an answer that did not adequately 

respond to my concerns. Regardless of the EPA's authority to release or not release 

fATSDR studies, were you aware of any EPA officials making efforts to delay the release 

of this ATSDR study? If so, please provide all internal documents and communications in 

your agency's possession regarding any internal deliberations or discussions about this 

study for the record. If you are confirmed, will you commit to ensuring that the EPA does 

not engage in any activities which seek to delay the public release of scientific studies 

and reports? 

On June 20,2018, ATSDR released a draft Toxicological Profile for perfluoroalkyls for 

public comment. ATSDR released the draft Toxicological Profile after working 

collaboratively with the EPA, the Food and Drug Administration, the National 

Institutes of Health (including the National Institute of Environmental Health Sciences), 

the National Toxicology Program, the U.S. Geological Survey, and the Department of 

Defense (DoD). The EPA's participation in reviewing the draft profile was a result of a 

multi-agency collaboration that is typical for many of these cross-cutting chemical 

issues. These interagency collaborations take time and are intended to facilitate the 

development and communication of the best available science, not delay it. 

Under my leadership, the EPA will continue to ensure that scientific studies and 

reports, in support of the agency's regulatory programs, are made available to the 

public upon completion of all appropriate internal reviews, consistent with applicable 

legal requirements, to ensure the scientific integrity and accuracy of the information 

presented. 

151. The ATSDR study found that minimal risk levels for certain PFAS chemicals in drinking 

water should be significantly lower than the EPA's lifetime health advisory level of 70 parts 

per trillion. Based on the levels identified in the ATSDR study, please explain your plan, 

including a timeline, for updating the EPA lifetime health advisory level to comport with this 

new science on the effects of PF AS on human health. 

ATSDR's June 20,2018, draft Toxicological Profile for perfluoroalkyls includes 

Minimal Risk Levels (MRLs) for four PFAS chemicals: Perfluorooctanoic acid (PFOA), 

Perfluorooctane sulfonic acid (PFOS), Perfluorononanoic acid (PFNA), and 

Perfluorohexane sulfonic acid (PFHxS). The EPA supports the efforts of other federal 

partners, including ATSDR, to develop information related to PFAS. The EPA 

continues to take concrete steps, in cooperation with our federal and state partners, to 

address PFAS as part of our overall mission to ensure that Americans have access to 

clean and safe drinking water. The EPA will continue to carefully review the draft 

ATSDR Toxicological Profile and will consider any information that may inform our 

approach to PFOA, PFOS, and other PFAS. 

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The EPA recognizes that other health agencies, like ATSDR, may issue different healthbased values for similar chemicals based on their own statutory mandates, purposes 

and analyses, including more stringent values that may reflect more conservative 

assumptions. For example, ATSDR's MRLs for PFOA and PFOS differ by an order of 

magnitude from the toxicity values that were derived by the EPA in development ofthe 

EPA's drinking water health advisories (HAs) due to differences in the critical study 

selected for PFOA and uncertainty factors applied for PFOS. 

ATSDR's MRLs and the EPA's HAs are two different tools that are used in different 

situations. Drinking water HAs provide information on contaminants that can cause 

human health effects and are known or anticipated to occur in drinking water. They 

are a concentration in drinking water that is not expected to cause any adverse human 

health effects over an exposure period (e.g. 1-day, 10-day, lifetime). The EPA's health 

advisories are non-enforceable and non-regulatory and provide technical information 

to state agencies and other public health officials on health effects, analytical 

methodologies, and treatment technologies associated with drinking water 

contamination. Drinking water HAs are calculated incorporating toxicity (i.e., reference 

doses or RIDs) and exposure parameters (i.e., drinking water intake, body weight, and 

other potential sources of exposure). 

ATSDR's MRLs are toxicity values that are intended to be used to help public health 

professionals determine areas and populations potentially at risk for health effects from 

exposure to a particular chemical. MRLs do not take into account specific exposures 

like a drinking water HA. MRLs are intended only to serve as a screening tool to help 

public health professionals decide where to look more closely; they are not intended to 

indicate a maximum safe exposure level. Drinking water HAs provide non-enforceable 

technical guidance to state agencies and other public health officials who have the 

primary responsibility for overseeing drinking water systems. The EPA's HAs for 

PFOA and PFOS offer a margin of protection for fetuses during pregnancy and 

breastfed infants as well as for all Americans throughout their life. 

The EPA is evaluating PFOA and PFOS under the Safe Drinking Water Act (SDWA) 

regulatory determination process, which builds on the work the agency completed in 

the health advisories for PFOA and PFOS and is an important step in the process for 

considering whether to establish a National Primary Drinking Water Regulation. As a 

part of the evaluation, the EPA will continue to carefully review the draft ATSDR 

Toxicological Profile and will consider all newly available scientific information. In 

addition, the EPA included PFOA and PFOS as priority contaminants on the SDWA 

Contaminant Candidate List for regulatory consideration. The EPA also collected 

monitoring data for six PFAS compounds, including PFOA and PFOS, from drinking 

water systems across the country, from 2013 to 2015, as part of the third Unregulated 

Contaminant Monitoring Rule. 

Under the SDWA, the EPA must consider three criteria when making a determination 

to regulate a contaminant: 

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The contaminant may have an adverse effect on the health of persons 

The contaminant is known to occur or there is a high chance that the 

contaminant will occur in public water systems often enough and at levels of 

public health concern 

In the sole judgment of the Administrator, regulation of the contaminant 

presents a meaningful opportunity for health risk reductions for persons 

served by public water systems 

If the EPA makes a determination to regulate PFOA and PFOS, the SDWA requires 

that, prior to issuing a drinking water standard, the agency must undertake a number 

of actions, including developing a health risk reduction and cost analysis, consulting 

with the National Drinking Water Advisory Council, seeking recommendations from 

the Science Advisory Board, and publishing a proposed regulation for review and 

comment. The EPA is committed to performing all mandatory actions under the SDW A 

as its continues its regulatory evaluation. 

152. Several states, including my home state of Vermont, have set health advisories for drinking 

water containing PFAS chemicals that are significantly more stringent than the EPA's 

lifetime health advisory level. The most recent update to the Toxic Substances Control Act 

(TSCA) contained a provision that protects states that had more stringent standards on the 

books before April 22, 2016 (Sec. 13 State-Federal Relationship, 15 USC § 2617(e)(l)(A)). 

If confirmed, will you commit to avoiding any actions that would preempt states' ability to 

enforce health advisory levels for PFAS enacted before April22, 2016 that are more 

stringent than the EPA's standards? If you will not make this commitment, please explain 

why you believe that TSCA prevents states from enforcing more stringent requirements the 

state had established before April22, 2016. 

The preemption provisions of the Lautenberg Amendments to TSCA contain important 

directions that address when state actions will be preempted or not. EPA will follow all 

requirements of the statute with regard to preemption. 

153. According to the EPA website, the EPA expected to release a PFAS management plan by 

the Fall of2018. During this hearing, you stated that the release of the plan has been further 

delayed by the current partial government shutdown. However, the plan was clearly also 

delayed by other factors given that the partial government shutdown did not begin until late 

December. Please describe all the factors, beside the current partial government shutdown, 

that have caused the EPA to fall behind schedule in developing this plan to address the 

presence of toxic PFAS chemicals in communities throughout the country. 

The EPA intends to release a PFAS action plan as soon as feasible following completion 

of the interagency review process. Development of the plan took careful deliberation 

and extensive coordination with each EPA national program office and the regional 

offices, including reviewing and assessing the over I 00,000 comments received in 

response to the extensive stakeholder outreach the EPA performed following the 

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National Leadership Summit the EPA hosted in May 2018. While developing the PFAS 

action plan, the EPA decided to move forward with several individual actions to ensure 

priority work continued even though the plan was in development. These include 

developing and releasing for public comment draft toxicity values for GenX and PFBS, 

development of recommendations for addressing contaminated groundwater, and other 

priority actions. The EPA also continued to collaborate with our federal, state and local 

partners, including coordinating development of the GenX/PFBS toxicity values and 

performing interagency review on the recommendations for addressing PFOA and 

PFOS in groundwater. 

154. Given that the EPA's current budget to manage PFAS is clearly insufficient to carry out the 

work needed to craft the PF AS management plan, please describe your plan to increase the 

EPA's FY2020 budget request relative to FY2019 to ensure that it can release the PFAS 

management plan a timely manner. 

The development of a comprehensive PFAS management strategy is a complex 

undertaking that required significant engagement with the states, the public and other 

entities to properly develop. Using what we learned from a National Leadership 

Summit last May, community engagements, input from our federal partners, and public 

comments submitted to the EPA through the late fall of 2018, the agency is developing a 

PFAS action plan. That plan is currently undergoing interagency review. Previous 

funding levels have not delayed the development or implementation of the PFAS action 

plan. The EPA intends to release the plan as soon as feasible following completion of the 

interagency review process and once Congress provides FY19 appropriations for the 

agency. 

155. In April 2017, the EPA decided against continuing the work of the previous administration 

to ban the pesticide chlorpyrifos, which poisons farm workers, children and rural 

communities. Chlorpyrifos is toxic and can cause neurodevelopmental harms in children and 

prenatal exposure can cause lower birth weight, reduced IQ, loss of working memory, 

attention disorders, and delayed motor development. No amount of it is safe in our food or 

drinking water. Based on the EPA's mission to protect human health and the environment, 

please outline the EPA's plan, including a timeline, to establish a ban on chlorpyrifos. 

As required by FIFRA, EPA is currently evaluating chlorpyrifos under registration 

review (reevaluation). EPA has prioritized the chlorpyrifos reevaluation; it is one of 

nearly 725 pesticide active ingredients that EPA must review by October I, 2022. EPA 

scientists are evaluating studies that are now available to EPA on chlorpyrifos in the 

new risk assessment prepared by the California Department of Pesticide Regulation in 

August 2018. EPA is also continuing a dialogue with Columbia University to obtain 

review of the raw data underlying several publications from an epidemiology study 

conducted by the Columbia Center for Children's Environmental Health (CCCEH). 

Once all ofthe relevant studies are assessed and the evaluated, and after considering 

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public comments, the agency will be in a position to make a final registration review 

decision for chlorpyrifos. 

Additionally, because chlorpyrifos is an organophosphate pesticide, consistent with the 

FFDCA, EPA must also update the organophosphate cumulative assessment completed 

in 2006. In order to revise this cumulative assessment, the agency must also complete 

the underlying single-chemical risk assessments for all of the organophosphate 

insecticides. Before these assessments can be completed, new studies to support 

physiologically-based pharmacokinetic (PBPK) modeling need to be received and 

evaluated. Some ofthese studies were received in 2018; we anticipate receiving others 

during 2019. Based upon current resources and study submission schedules, we 

anticipate that a draft revised update to the organophosphate cumulative risk 

assessment will likely be issued for public comment in the late 2020 timeframe. Once all 

of these assessments are completed, and after considering public comments, the agency 

will be in a position to make a final registration review decision for chlorpyrifos. 

On September 24,2018, EPA also sought a rehearing en bane and panel rehearing of an 

August 2018 Ninth Circuit decision directing EPA to revoke all tolerances and cancel 

all registrations for chlorpyrifos. EPA is awaiting a response from the court. 

Native Rights 

156. The Fourth National Climate Assessment projects that Indigenous peoples will suffer some 

of the worst impacts of climate change due to their dependence on natural resources for their 

livelihoods and economies. As our natural resources dwindle, many Indigenous peoples may 

be forced to relocate, risking their cultural and community continuity. Please describe your 

plan for meeting Indigenous peoples' economic and environmental needs, particularly as they 

pertain to the preservation of natural resources and tribal treaty rights. 

EPA's 1984 Indian Policy is the foundation for EPA's tribal program, which states that 

while working government to government with tribes, EPA will work to increase tribal 

governments' capacity to develop environmental programs, consult with tribes and 

consider their interests and concerns when carrying out our responsibilities in Indian 

country, and ensure that environmental programs are implemented in Indian country. 

This strong foundation continues to guide EPA's work today.l will ensure that the EPA 

continues its work in protecting human health and the environment in Indian country. 

This includes ongoing tribal consultation and coordination, management and 

administration of funding and technical assistance programs, such as the Indian 

Environmental General Assistance Program, and continued participation with the 

federal Infrastructure Task Force to collaborate with tribes to seek efficiencies in 

federal actions around infrastructure, provide funding for infrastructure and promote 

sustainable practices. 

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In addition, I will conduct annual meetings with the National Tribal Caucus and other 

EPA Senior Leadership, collectively the National Tribal Operations Committee, to 

discuss tribal priorities and identify and address tribal environmental and human 

health concerns. 

157. The EPA's "Policy on Consultation and Coordination with Indian Tribes: Guidance for 

Discussing Tribal Treaty Rights" requires the EPA to respect tribal treaty rights, which in 

part means consulting with any tribes which may be impacted by the actions of the federal 

government. 

Please describe the specific actions you have taken, as both EPA Deputy Administrator 

and Acting EPA Administrator, to ensure that tribes have been consulted and that their 

input is reflected in the actions taken by the EPA. 

Please list the individuals and their affiliation with whom you have met or consulted 

during your time as both EPA Deputy Administrator and Acting EPA Administrator 

regarding tribal treaty rights. 

If confirmed, will you commit to consulting with tribes regarding all EPA actions which 

may impact tribal treaty rights, lands, culture, and natural resources? If you will not make 

this commitment, why are you willing to violate the EPA's policy on tribal treaty rights? 

EPA recognizes its responsibility to consult with federally recognized tribes and was 

one of the first federal agencies to issue a policy on tribal consultation pursuant to 

Presidential Executive Order 13175. The EPA Policy on Consultation and Coordination 

with Indian Tribes (Consultation Policy) establishes clear EPA standards for the 

consultation process, including defining when and how consultation takes place, and 

establishes management oversight and reporting to ensure accountability and 

transparency. I will work closely with the OITA Assistant Administrator as the 

Designated Consultation Official to ensure EPA adheres to the Consultation Policy. 

Assistant Administrator Mcintosh is strongly committed to tribal consultation, and 

additionally has committed to working closely and meeting regularly with the National 

Tribal Caucus, meeting at least annually with regional tribal representatives and 

participating in key tribal engagement opportunities, and strengthening tribal 

representation at EPA by hiring a member of a federally recognized tribe to be the 

Director of the American Indian Environmental Office within the Office of 

International and Tribal Affairs. 

In addition, EPA recognizes the importance of upholding tribal treaty rights and its 

obligation to do so. EPA issued Tribal Treaty Rights Guidance in 2016 to its staff on 

how to discuss tribal treaty rights under the EPA Consultation Policy. The Guidance 

outlines affirmative steps for EPA tribal consultations in situations where tribal treaty 

rights or treaty-protected resources may be affected by an EPA action. During the 

implementation of this Guidance, EPA will subsequently consider all relevant 

information obtained to help ensure that EPA's actions do not conflict with treaty 

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rights, and to help ensure that EPA is fully informed when it seeks to implement its 

programs and protect treaty rights and resources when it has discretion to do so. 

To ensure all EPA staff are aware of our consultation roles and responsibilities, among 

other aspects of our partnership with tribal governments, I have issued mandatory 

training to all EPA staff on Working Effectively with Tribal Governments. 

I have also met directly with tribal leadership and representatives, including: 

In July 2018, I met with the National Tribal Caucus Executive Committee (Paula 

Britton, NTC Chair, Cahto Tribe; Gerald Wagner, NTC Vice Chair, Blackfeet Tribe; 

and Scott Clow, NTC Secretary, Ute Mountain Tribe), to discuss several areas of 

concern, including tribal consultation and communication. 

In September 2018, I visited EPA Region 8 and again met with Mr. Wagner and the 

leadership of the Blackfeet Tribe, including Timothy Davis, Chairman, and Iliff "Scott" 

Taylor, Vice-Chairman and other tribal representatives. During this visit, I also met 

with the Chairman Ron Trahan and Vice-Chairman Leonard Gray and other tribal 

representatives of the Confederated Salish & Kootenai Tribes on the Flathead 

Reservation. 

In October 2018, I met with a delegation of Washington tribal leaders, including Brian 

Cladoosby, Chairman, Swinomish Indian Tribal Community; Nate Tyler, Chairman, 

Makah Tribe; Shawn Vanity, Chairman, Stillaguamish Tribe; and Russell Hepfer, 

Vice-Chairman, Lower Elwha Klallam Tribe, as well as Lorraine Loomis, Chair ofthe 

Northwest Indian Fisheries Commission and Justin Parker, Executive Director of the 

Northwest Treaty Tribes. 

Also, in October 2018, I met with a group of concerned citizens at the Weir Salmon 

Traps to discuss theCA Water Quality Control Plan. Mr. John Mills, a member of the 

Me-Wuk Indians, shared his concerns in consultation of the project. 

A January meeting of the National Tribal Operations Committee, including tribal 

representatives and EPA Senior Leadership will be reschedule to February, depending 

on the current government shutdown. I plan to co-chair the NTOC meeting when it is 

scheduled, with robust participation by EPA Assistant Administrators and Regional 

Administrators. 

Clean Water Rule 

158. On December II, 2018, the EPA proposed a revised definition to "Waters of the United 

States," which would effectively repeal what is popularly known as the "Clean Water Rule." 

Given that the EPA's proposal will put almost 117 million Americans' water supply at risk, 

which runs counter to the EPA's mission to protect human health and the environment, 

please provide a plan, including a timeline, for withdrawing the EPA's proposed repeal of the 

Clean Water Rule. 

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The EPA and the Department of the Army are currently engaged in a multi-step 

rulemaking to propose a repeal of the 2015 Clean Water Rule and replace it with a 

revised definition for "waters of the United States," consistent with Executive Order 

13778, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing 

the 'Waters of the United States Rule,'" signed February 28, 2017. The EPA and the 

Army are currently reviewing over 750,000 comments received in response to the 

proposed repeal of the 2015 Clean Water Rule and are awaiting publication of the new 

proposed definition in the Federal Register. The EPA and the Army will consider 

feedback received in response to the public comment process for the rulemakings as the 

agencies determine next steps. 

Senator Shelby: 

159. The Consolidated Appropriations Act of 2018 included language directing the Secretaries of 

Energy and Agriculture and the Administrator of the Environmental Protection Agency to 

establish clear and simple policies that reflect the carbon-neutrality of forest bioenergy and 

recognize biomass as a renewable energy source provided the use of forest biomass does not 

cause the conversion of forests to non-forest use. I appreciate the EPA issuing guidance in 

April 2018 stating that future EPA regulatory actions for energy production from stationary 

sources will recognize biomass from managed forests as carbon neutral. I also appreciate 

the tri-agency statement in October 2018 affirming these principles. 

Mr. Wheeler, would please provide an update on the EPA's progress towards implementing a 

regulation on carbon neutrality of biomass? 

EPA staff have made an in-depth assessment of the various options available for 

moving forward, including the potential for issuing guidance under the Prevention of 

Significant Deterioration (PSD) permitting program that would, on a site-specific basis 

where appropriate, recognize the use of biomass feedstocks as Best Available Control 

Technology (BACT). Longer-term, EPA is assessing the value of undertaking a 

rulemaking in this area. If undertaken, EPA estimates that a proposed rule could be 

developed by the end of this year. 

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Senator Van Hollen: 

160. Last week on January 10'\ Energy and Environment Daily reported on some of the trickle 

down impacts ofthe shutdown on the functions of the EPA. In that article, Lisa Feldt of the 

Chesapeake Bay Foundation noted her concerns with the looming deadline in April of this 

year for the next step in Chesapeake Bay TMDL implementation-the third and final round 

of watershed implementation plans. Do you expect the EPA to be able to meet this critical 

April deadline for the Chesapeake Bay if the shutdown continues? 

The EPA is fully committed to the Chesapeake Bay program and will be prepared to 

review the watershed implementation plans to be submitted by the Chesapeake Bay 

jurisdictions in April. 

161. Last week on January 9'h, the New York Times reported that the EPA has furloughed most 

of its roughly 600 pollution inspectors and other workers who monitor compliance with 

environmental laws. These staff are responsible for detecting violations that endanger human 

health. 

These pollution inspections halted on December 24, 2018. 

Eric Schaeffer, a Maryland resident and former Director of EPA enforcement, has said 

that the shutdown from Dec 16, 1995 to Jan 6, 1996 lead to one of the worst years ever at 

the EPA in terms of numbers of inspection and enforcement; and that it bogged down 

EPA inspections for months-not just up until the government reopened. 

If the shutdown ends the day you submit your answers to these questions for the record, 

what impact do you expect the shutdown to have on the number of inspections and 

enforcement actions the EPA is able to conduct compared to a non-shutdown scenario? 

What will be the impact if the shutdown continues for another 30 days after the date you 

submit your answers to these questions for the record? 

Few EPA inspections would be scheduled for January because winter weather can 

impact travel for our inspectors, outdoor facility operations, or the functioning of our 

monitoring equipment. Accordingly, disruption of any inspections that may have been 

planned for the month of January is not likely to significantly impact the overall 

number of inspections in FY2019. However, the shutdown affected planning for future 

inspections. Now that the shutdown is over we will work to estimate the impact of the 

shutdown on the number of inspections in FY2019. With respect to enforcement 

actions, during the shutdown we continued actions that were subject to judicial 

deadlines but did not initiate new actions unless it was to address an imminent threat to 

life or property. Thus, the shutdown may reduce the number of new cases opened in FY 

2019. 

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162. A New York Times article from December 2017 found that at that time, over 700 

employees had left the EPA since the beginning of the Trump Administration as they are 

disheartened by the Agency's direction. Of the employees who had quit, retired or taken a 

buyout package, more than 200 are scientists. An additional 96 are environmental protection 

specialists, a broad category that includes scientists as well as others experienced in 

investigating and analyzing pollution levels. Most of the employees who have left are not 

being replaced. Agency staff said they believed the Trump administration was purposely 

draining the EPA of expertise and morale. 

What is the impact of the drain of scientists out of the EPA in terms ofthe Agency's 

long-term abilities to develop and use the best available science? What will the impact of 

this loss of scientific expertise be on the Agency's ability to protect public health? 

The EPA is committed to ensuring that we have the right people in the right 

positions to accomplish the mission of the agency today and into the future. I am 

troubled by the assertion that the Administration is seeking to reduce EPA's 

expertise and disagree completely with that assessment. 

Annual attrition of around 5%, or 700 positions is typical and the number of 

scientists that made up the attrition is not out of proportion to the overall 

numbers. EPA, like many other federal agencies, is facing the reality of a large 

percentage of our workforce being retirement eligible. To ensure we have a strong 

workforce with the correct skillsets, EPA is working on succession planning and 

utilizing all available hiring authorities, such as Title 42, to attract and retain 

important scientific expertise. 

How do you plan-if confirmed as EPA Administrator-to make your employees feel 

valued and boost the alarmingly low morale at your Agency? In which areas, if any, will 

the Agency prioritize hiring of new employees? 

Since being named Acting Administrator, and even before that, as the Deputy 

Administrator, I have made employee engagement a top priority. I have visited each 

of the 10 EPA regional offices, making it clear that I value and respect the work of 

the career workforce. Similarly, I have engaged with staff at EPA headquarters, 

routinely engaging with both political and career staff on important policy matters. 

On the Acting Administrator's web page: https://www.epa.gov/aboutepa/andrewwheeler-messages-epa-employees. 

I have posted key all employee messages regarding transparency and maintaining 

the public trust, signaling the high priority I place on these issues. We aim to post 

my daily calendar on the next day so that staff are fully aware of my internal 

meetings and outward facing events. At key announcements- e.g., WOTUS, the 

Federal Lead Action Plan, the Chrysler/Fiat enforcement settlement announcement 

-I make it a priority to publicly recognize and thank the career employees who are 

instrumental to the Agency's success. 

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During the government shutdown, I reached out to all employees via email as well as 

a phone message, letting them know how much they are missed and how important 

they and their work is to the Agency. We have a welcome back plan ready for when 

employees return to work, again emphasizing that they were deeply missed and that 

I look forward to resuming our day to day work together. 

Finally, I have directed our Chief Operating Officer, Henry Darwin, to embark on a 

robust effort aimed at enhancing employee engagement and leading to a serious 

uptick in our numbers for the next annual Federal Employee Viewpoint Survey 

(FEVS) administered by the Office of Personnel Management. I have also asked our 

Engagement Community of Practice to evaluate our FEVS results around 

challenges and opportunities, and to collaborate with our regional and program 

offices to identify actions we can take to make EPA a better place to work. 

EPA announced a plan to reorganize the Agency, which includes a plan to eliminate the 

Agency's science adviser office and merge it into a division in the Office of Research and 

Development, which EPA claims is a move to "streamline" the Agency. Why would this 

move not diminish the role of science in decision-making at the EPA? 

EPA is not eliminating the office of the Science Advisor. EPA's science advisor has 

traditionally been the AA for ORD and that practice has not changed. We are only 

combining the Science Advisor's office with another office performing similar 

functions to create an Office of Science Advisor, Coordination and Policy. The 

current Office of the Science Advisor reports to the Assistant Administrator for 

Research and Development and the new office would do the same. This new office 

will strengthen coordination of science within ORD and the Agency. 

163. As you know, under the Clean Air Act, both the EPA and the state of California have 

authority to regulate greenhouse gas emissions from the tailpipe. Under Section 177 of this 

act, states can choose, as twelve have done to date, to adopt California's standards in lieu of 

federal requirements. 

Maryland is one of 12 states that follow California's lead on their 2022-2025 fuel 

economy standards. 

The proposed rule that EPA released last year challenges the authority of states like 

Maryland to regulate emissions from vehicles in order to force a nationwide rollback of 

fuel economy and vehicle emission standards. This proposed revocation of California 

and the 12 states' authority is opposed by Maryland's Governor Larry Hogan. On 

October 26, 2018, Maryland Secretary for the Department of the Environment Ben 

Grumbles wrote you a letter in which he stated, "Maryland supports the principals of 

cooperative federalism and urges the agencies not to limit California's authority to adopt 

or enforce motor vehicle emissions standards or any other state's ability to adopt 

California's standards." 

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Can you commit today not to finalize clean car standards that attack state leadership on 

clean cars, either by revoking California's waiver to enforce its existing 2022-25 

standards, or asserting that the Energy Policy and Conservation Act preempts state clean 

car standards? 

EPA and the National Highway Traffic Safety Administration (NHTSA) have jointly 

proposed a rulemaking for greenhouse gas (GHG) emission and fuel economy 

standards, respectively, affecting light-duty vehicles for the 2021 through 2026 model 

years. EPA also proposed to revoke the waiver of preemption currently in place which 

allowed California (and a number of other states that have adopted the California 

standards) to adopt their own GHG standards and the zero-emission vehicle program. 

The proposed legal basis for withdrawing the California Waiver is described in the 

notice of proposed rulemaking and accompanying documents, available at: Docket No. 

EPA-HQ-OAR-2018-0283. EPA received a wide range of public comments on the 

proposal and is carefully reviewing those comments. I am committed to working with 

California and Section 177 states as EPA and NHTSA determine a path forward 

consistent with the Clean Air Act and the goal of one national program. 

164. Environmental enforcement numbers have decreased since the end of the Obama 

Administration. One reason for this is that no enforcement engineer or officer has been 

replaced in any of the I 0 Regions. 

How do you plan to ensure EPA enforcement is taking place while there are very few 

inspectors, enforcement officers and lawyers in place to bring enforcement cases in the 

regional offices? How will you work to address gaps in enforcement staff and initiate the 

hiring process? 

Many environmental enforcement numbers are heavily impacted by large cases. For 

example, the $305 million civil penalty in the recently settled Fiat Chrysler Automobiles 

(FCA) case was larger than all the administrative and civil judicial penalties imposed 

by EPA in FY2009, FY2010, FY2011, FY2012, FY2014, FY2015, and FY2018. 

Before Congress enacted the FY 2018 continuing resolution, EPA was under a hiring 

freeze. When Congress provided funding and an FTE ceiling, that freeze was lifted and 

OECA and the regional offices are allocating the enforcement FTE in a strategic 

manner to address the greatest needs. OECA has already hired or is in the process of 

hiring criminal investigators, attorneys, chemists, analysts, and an engineer. EPA 

continues to ensure compliance with federal environmental laws by helping to increase 

state capacity, providing compliance assistance, expanding EPA's self-audit program, 

using data analytics to target inspections where noncompliance is likely to be found, 

focusing its enforcement resources on the most impactful cases, and bringing criminal 

charges against bad actors. 

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165. Can you walk through the scientific method that, if confirmed, you would want the EPA to 

use for risk evaluations under TSCA to determine if chemicals have an unreasonable risk and 

should be regulated? My understanding is that EPA is currently working on draft risk 

evaluations for I 0 chemicals including asbestos and 1-4 Dioxane. 

Will EPA be using the Systematic Review framework for TSCA--even though scientists 

warn that it favors industry science? Will the EPA review include ill uses, including 

reasonably foreseeable and legacy uses, in both new and existing chemical risk 

evaluations? 

The Lautenberg Act amendments to TSCA require EPA to use information in a 

manner consistent with the best available science and base decisions on the weight of 

the scientific evidence. EPA is using a structured systematic review process of 

identifying, evaluating, and integrating evidence in the risk evaluations. The goal of 

systematic review, including EPA's framework, is to ensure that the EPA review of the 

science is objective, consistent, and transparent. 

EPA will continue to review all conditions of use consistent with the TSCA 

requirements for new and existing chemical evaluations. 

EPA considers all conditions of use, including reasonably foreseen uses (regardless of 

whether they are identified by the submitter), when conducting a new chemical 

review. The Lauten berg Act amendments to TSCA required that conditions of use 

means the circumstances, as determined by the Administrator, under which a chemical 

substance is intended, known, or reasonably foreseen to be manufactured, processed, 

distributed in commerce, used, or disposed of. 

166. Regarding the MATS rule, in determining that it is no longer "appropriate and necessary" to 

require power plants to reduce their mercury and air toxic emissions, EPA has decided to 

base this decision only on some of the quantifiable benefits and all of the costs to 

industry. The costs EPA uses is also woefully out of date, about two times higher than actual 

costs. It seems to me that EPA is breaking the "arbitrary and capricious" test by ignoring the 

co-benefits and other benefits the agency cannot quantify. Under what legal basis, did EPA 

decide to ignore co-benefits and benefits like reducing birth defects and cancer rates when 

determining "appropriate and necessary"? 

EPA has not proposed to remove or delist electric generating units from the list of 

source categories subject to regulation under Section 112, nor proposed to rescind or 

weaken the emission standards to which those units are currently subject. The basis for 

EPA's proposed Reconsideration of the 2016 Supplemental Finding and Residual Risk 

and Technology Review are provided in the notice of proposed rulemaking (NPRM) 

signed on December 27, 2018, and in the supporting documents which will be available 

in Docket No. EPA-HQ-OAR-2018-0794. Information responsive to your questions may 

be found in those documents. 

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167. As most people know, mercury is a neurotoxin that effects the most vulnerable, children in 

the womb. Other air toxics like formaldehyde, arsenic and beryllium have long been known 

to cause cancer. Since you have determined that it is not "appropriate and necessary" to 

reduce our nation's largest sources of mercury and air toxics through its MATS proposal, 

does that mean you believe there is a safe level of mercury exposure for developing 

infants? If so, what are those levels? Is there a safe level of exposing children to 

carcinogens? If so, what are those levels? 

EPA has not proposed to remove or delist electric generating units from the list of 

source categories subject to regulation under Section 112, nor proposed to rescind or 

weaken the emission standards to which those units are currently subject. Further, I 

would direct your attention to the NPRM signed on December 27,2018, and the 

supporting documents contained in the rulemaking docket, which provide an 

explanation of the EPA's position on the matters you raise and which may have 

information responsive to your questions. 

Senator Whitehouse: 

168. When we met in my office on January 15, you told me that your proposed rule to freeze the 

fuel economy and greenhouse gas (GHG) emissions standards for cars and light trucks would 

actually result in Jess carbon pollution in certain years than under the existing standards. You 

repeated this claim at your confirmation hearing. 

However, according to your own rule, GHG emissions would rise under your proposal 

compared to the existing standards. This predicted increase in GHG emissions is 

discussed on Federal Register pages 43326 through 43330 of your proposed rule. 

Please cite to me any support in EPA's proposal for your statements that EPA's proposal 

would result in reduced GHG emissions compared to the existing standards. Note: please 

do not tell me what your experts may have told you; I am asking you to provide 

references from EPA's proposed rule that support your claim that EPA's proposal would 

reduce GHG emissions compared to the existing standards. 

The proposed Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule and its 

accompanying documents evaluate the potential impacts under a range of alternatives. 

As I clarified during the hearing, President Obama's approach to setting light duty 

vehicle standards focused exclusively on energy efficiency and carbon dioxide 

reductions while the SAFE Vehicles Rule would achieve multiple policy goals by locking 

in greenhouse gas emissions reductions, protecting lives, and getting older vehicles off 

the road. The preliminary regulatory impact analysis, for example, evaluated potential 

effects for model years through 2029 for greenhouse gases, criteria pollutants (including 

carbon monoxide, volatile organic compounds, nitrogen oxides, sulfur dioxide, and 

particulate matter), fuel consumption, vehicle miles traveled, and fatalities. Chapter 4 

and 5 of NHTSA's draft Environmental Impact Statement also evaluated emissions 

changes, including for greenhouse gases, carbon monoxide, nitrogen oxide, volatile 

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organic compounds, particulate matter, and sulfur dioxide, for a range of alternatives. 

The draft EIS found that directions and magnitudes of changes in emissions were not 

consistent across all pollutants due to the complex interactions between emission rates, 

technologies, increases in vehicle miles traveled, and other factors. As outlined in the 

preamble to the proposed rule, decisions about the inclusion of certain compliance 

flexibilities could result in less stringent standards and trade-offs with improved vehicle 

performance. EPA and NHTSA sought public comment on a wide range of options, 

including related to the current compliance credit system and options for curtailing, 

reforming or expanding it. More information is available at Docket No. EPA-HQOAR-2018-0283. 

169. You also told me in our meeting that EPA's proposed rule to replace the Clean Power Plan 

(CPP) would result in almost exactly the same reduction in carbon pollution as the CPP. You 

repeated this claim at your confirmation hearing. 

However, according EPA's proposed rule as printed in the Federal Register, GHG 

emissions would be higher under your proposal than under the CPP. This predicted 

increase in GHG emissions is discussed on page 44784. 

Please cite to me any support in EPA's proposal for your statements that your proposal 

would result essentially the same GHG emissions reductions as the CPP. Note: please do 

not tell me what your experts may have told you; I am asking you to provide me 

references from EPA's proposed rule that support your claim that EPA's proposal would 

result in the same GHG emissions reductions as the CPP. 

EPA projects that, compared to a no Clean Power Plan (CPP) scenario, the Affordable 

Clean Energy (ACE) rule will reduce carbon dioxide (C02) emissions in 2025 by 

between 13 and 30 million short tons. Illustrative scenarios suggest that when states 

have fully implemented the ACE rule, U.S. power sector C02 emissions could be 

around 34% below 2005 levels. In the final CPP, EPA projected that that rule would 

result in U.S. power sector C02 emissions of 32 percent below 2005 levels. C02 

emissions in the power sector have steadily declined in recent years due to a range of 

factors including: market forces, technology improvements, regulatory and policy 

changes. As a result, the industry has increased the use of natural gas and renewable 

energy sources. These trends have resulted in C02 emission reductions even as the U.S. 

has sustained economic growth and job gains across the economy-and this has all 

happened without the CPP ever going into effect, due to it's being stayed by the 

Supreme Court. The ACE rule will continue this trend. Further information responsive 

to your questions may be found in the Notice of Proposed Rulemaking (NPRM) for the 

ACE rule, published at 83 Fed. Reg. 44,746 (Aug. 31, 2018) and in the supporting 

documents in the docket for this action, EPA-HQ-OAR-2017-0355. 

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170. How many meetings with Trump administration officials for Bob Murray and/or Murray 

Energy did you arrange, attempt to arrange, and/or attend? 

To the best of my knowledge and memory (I no longer have access to my calendar from 

my former firm) I arranged and attended three meetings with Trump Administration 

officials on behalf of Murray Energy. 

171. Please list, with date, time, and people present (as applicable) every meeting with the 

Trump administration you arranged, attempt to arrange, and/or attended with or on behalf of 

Bob Murray and/or Murray Energy? Please also provide the time, date, and people present 

for any preparation sessions for such meeting(s). 

The first two meetings I arranged/attended were held on March 29,2017. The first was 

with Secretary Perry and several of his staff. The second meeting was with the NEC 

energy advisor. In addition to myself, attendees included Mike Carey and Robert 

Murray, both with Murray Energy. The only preparatory sessions would have been in 

the morning, the same day as the meetings, and would have only included Mr. Murray, 

Mr. Carey, and myself. Sometime in April, I arranged and attended a meeting with the 

NEC labor advisor. The other attendees were Mike Carey and Robert Murray. 

I 72. At how many of these meetings was the Murray "action plan" discussed? 

The purpose of the meetings was not to discuss the Murray Action Plan. The first two 

meetings were to discuss potential assistance from the Department of Energy to help the 

coal-fired utility sector. Mr. Murray gave Secretary Perry a copy of his plan at the 

beginning of the meetings as an FYI. The topic of the meeting was the DOE assistance 

which, in my understanding, is not covered by the action plan. The third meeting 

discussed specific labor issues. 

After I joined the Agency in April 2018, I was invited to a meeting at DOE to discuss 

the potential use of section 202 of the Energy Power Act to assist the coal-fired utility 

sector. Since I considered this topic to be a logical outgrowth of my March 29, 2017 

meeting, I recused myself from the issue and amended my ethics agreement to reflect 

the recusal. 

I 73. You told me at your first confirmation hearing on Nov. 8, 20 I 7 that you didn't remember 

where you saw the Murray "action plan" and you didn't remember the context in which it 

was discussed. Do you stand by that answer today? If not, please correct the record. 

I stand by my answer. I recommended to all my clients that they draft "action plans" or 

"wish lists" for the incoming Administration. My former firm did the same thing at the 

beginning of the Obama Administration and I am told that they did the same thing at 

the beginning of the Bush Administration. I further recommended that my clients 

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deliver their recommendations on their own letterhead. We supplied contact 

information for both Presidential campaigns and transition teams as well as the contact 

information for the incoming Trump officials. In some cases, we assisted clients in 

developing their lists, in other cases the clients did it on their own. Murray Energy is a 

highly sophisticated corporation; they developed their list on their own and took it upon 

themselves to deliver it to high-ranking officials, which I believe to be more impactful. 

174. EPA announced that this June it will finalize amendments to the 2015 Coal Ash Rule, 

which incorporate elements of EPA's March 2018 proposal to weaken the protective 

standards of the rule, including eliminating the rule's nationwide cleanup standards. In 

March 2017, you met with Secretary Perry to discuss the Murray action plan which, among 

other things, proposed a complete suspension of the 2015 coal ash rule. The plan was 

accompanied, by six draft Executive Orders for President Trump that would further rescind 

coal safeguards. One Executive Order directed immediate suspension of the "operation and 

implementation" of the Coal Ash Rule, directed EPA to attempt to stop ongoing litigation 

against the agency concerning the rule, and instruct the EPA to amend the rule to prohibit 

citizen suits to enforce the rule. 

a. Are you familiar with this Executive Order? ("Presidential Executive Order on 

Restoring the Rule of Law, Federalism, Economic Growth, and Reducing 

Regulatory Costs by Reviewing the Final Rule on Disposal of Coal Combustion 

Residuals from Electric Utilities (the "CCR Rule"), Published on April 17, 2015 

By the United States Environmental Protection Agency, 80 Fed. Reg. 21302 

(2015)") 

Through the press, I am familiar with the draft Murray Executive Orders. 

b. Did you write or review this Executive Order? 

I did not write or review the draft Executive Order. I do not remember any 

of the draft orders being attached to the action plan that I saw. 

c. If so, do you believe that you should recuse yourself from further review and 

oversight over EPA's efforts to weaken the Coal Ash Rule? 

Does not apply. 

175. The following questions relate to federal ethics laws and regulations: 

a. President Trump promised to end corruption in Washington. Would you agree 

that applying and enforcing federal ethics laws and regulations, and the Trump 

"Ethics Pledge," are important tools to do that? 

Yes, I would. 

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b. This is the second time you've come before the Senate for advice and consent. 

Would it be fair to say that by now you are personally familiar with federal ethics 

requirements? 

I received ethics training from EPA career ethics officials upon joining the 

Agency, and I am personally familiar with the many ethics requirements. If 

questions regarding ethics issues arise, I routinely seek and abide by the 

advice of career ethics officials. 

c. Are you aware that federal regulations and the Trump "Ethics Pledge" prohibit 

political appointees from working on particular matters on which they previously 

represented clients as well as from meeting with former clients? 

I am aware that federal ethics regulations do provide certain restrictions and 

the Trump Ethics Pledge provides additional restrictions. I signed a Recusal 

Statement in May of2018, shortly after my confirmation as Deputy 

Administrator and have abided by checking with career ethics officials with 

any questions. 

d. If you learned that an EPA employee violated federal ethics regulations or the 

Trump "Ethics Pledge," would you take this matter seriously? 

Yes, I do take the ethics issues seriously. 

e. Do you promise to take all steps within your power to ensure that EPA employees 

abide by all applicable ethics requirements? Does that include disciplining 

employees who violate those requirements as appropriate? 

I will work to make sure EPA employees abide by all applicable ethics 

requirements. In fact, in my first month as the Acting Administrator I 

convened an all-hands political staff briefing on ethics issues by EPA career 

ethics professionals and White House Counsel. Breaches of ethics obligations 

could include discipline where appropriate. 

176. Did you ever bundle, solicit, or gather donations for any 501 (c)(4), 527, political action 

committee, or any other outside spending group? If so, list the organizations by name, the 

dates during which you engaged in this activity, and the approximate amounts you raised. 

I have not bundled, solicited, or gathered donations for any 501(c)(4), 527, political 

action committee, or other outside spending groups. I have cohosted fund raisers for 

candidates for election or re-election to Congress, so my name has appeared on 

invitations for events. Opensecrets.org listed me as a bundler for Mitt Romney's 2012 

Presidential campaign. I am not sure what criteria they used to determine that title but 

I did invite a number of people who attended a few of his events. My name appeared on 

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invitations for membership for both the Washington Coal Club and the National 

Energy Resource Organization when I was an officer in both organizations. Neither of 

these organizations would be considered outside spending groups, although both are 

non-profits. 

177. Do you commit to provide all information responsive to the previous question to EPA ethics 

officials so they can assess whether that activity raises conflicts of interest or an appearance 

that you cannot conduct your duties impartially? 

I believe I have already provided all of the relevant information to the EPA career 

ethics officials. If there is additional information they need, I would be happy to 

comply. 

178. You and I have discussed the serious economic risks of climate change the last two times 

we have met. I have provided you with numerous reports and articles detailing these risks. 

a. The first of these economic risks is the risk of a coastal real estate crash. This is 

what Freddie Mac, the federal home mortgage backer, has to say about climate 

risk: 

"[R]ising sea levels and spreading flood plains nonetheless appear likely to 

destroy billions of dollars in property and to displace millions of people. The 

economic losses and social disruption may happen gradually, but they are likely 

to be greater in total than those experienced in the housing crisis and Great 

Recession. " 

This is what the Union of Concerned Scientists has to say: 

"In the coming decades, the consequences of rising seas will strain many coastal 

real estate markets -abruptly or gradually, but some eventually to the point of 

collapse- with potential reverberations throughout the national economy." 

This is what the insurance industry trade magazine Risk & Insurance has to say: 

"These bellwether locations [Miami, Atlantic City, and No~folk] signifY a 

growing and alarming threat; that continually rising seas will damage coastal 

residential and commercial property values to the point that property owners will 

flee those markets in droves, thus precipitating a mortgage value collapse that 

could equal or exceed the mortgage crisis that rocked the global economy in 

2008." 

Freddie Mac estimates that between $238 billion and $507 billion worth of real 

estate will be below sea level by 2100, and UCS estimates that nearly 2.5 million 

residential and commercial properties worth $1.07 trillion will be at risk of 

chronic flooding by 2100. The First Street Foundation studied the impact of 

rising seas and increased flooding on real estate in the southeast, and found that 

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coastal real estate in the southeast has already lost $7.4 billion in value since 2005 

because of sea level rise. 

Many of the rollbacks you've proposed since assuming the helm at EPAfreezing automobile fuel economy and greenhouse gas emissions standards, 

replacing the Clean Power Plan, weakening methane leak inspection and repair 

standards, weakening carbon pollution emission standards for new power plantswould all result in increased carbon pollution compared to the regulatory regimes 

they are designed to replace. 

Did you consider the potential for a coastal property real estate crash and the 

associated economic costs when considering these proposals? If so, please cite to 

me where in these proposed rules or in the accompanying regulatory impact 

analysis this is discussed. If not, why did you not consider this serious economic 

risk when designing these proposals? 

b. The second of these economic risks is the risk of a carbon bubble. This is what 

Mark Carney, the Governor of the Bank of England has to say: 

"The exposure of UK investors, including insurance companies, to [stranded 

assets J is potentially huge. " 

This is what the head of insurance supervision at the Bank of England has to say: 

"As the world increasingly limits carbon emissions, and moves to alternative 

energy sources, investments in fossil fuels and related technologies[. .. } may take 

a huge hit." 

This is what academics at University College London have written: 

"Our results suggest that, global(y, a third of oil reserves, half of gas reserves 

and over 80 per cent of current coal reserves should remain unusedfrom 2010 to 

2050 in order to meet the target of2 degrees Celsius." 

This is what academics at Cambridge have written: 

"Our conclusions support the existence of a carbon bubble that, if not deflated 

early, could lead to a discounted global wealth loss of US$1 - 4 trillion, a loss 

comparable to the 2008jinancial crisis." 

Many of the rollbacks you've proposed since assuming the helm at EPAfreezing automobile fuel economy and greenhouse gas emissions standards, 

replacing the Clean Power Plan, weakening methane leak inspection and repair 

standards, weakening carbon pollution emission standards for new power plantswould all result in increased carbon pollution compared to the regulatory regimes 

they are designed to replace. 

Did you consider the potential for a carbon bubble and the associated economic 

costs when considering these proposals? If so, please cite to me where in these 

proposed rules or in the accompanying regulatory impact analysis this is 

discussed. If not, why did you not consider this serious economic risk when 

designing these proposals? 

The record for each of the proposed actions cited in your question is available for 

review. At the same time, I will note that EPA's regulatory and de-regulatory actions 

respecting greenhouse gas emissions have incorporated these potential impacts in 

decision making through the use of the "social cost of carbon," in accordance with 

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Executive Order 13783 on Promoting Energy Independence and Economic Growth. 

179. Are there any circumstances under which written EPA protocols for selecting members of 

EPA's various science advisory boards should be departed from? If so, please describe the 

circumstances that would justify departing from established member selection protocols. 

At this time, I cannot envision any circumstances under which EPA's written protocols 

would not be followed when selecting members for its various scientific advisory 

boards. 

180. Dr. Nancy Beck is currently overseeing the implementation of the reformed TSCA 

legislation. Dr. Beck has developed her own systematic review process for assessing the 

quality of the scientific studies upon which it will rely to determine the safety of the 

chemicals it reviews. The first chemical to undergo a risk evaluation under the reformed 

TSCA is Pigment Violet 29 (PV29). In its draft risk assessment, EPA concluded that PV29 

is safe. 

EPA's draft risk assessment's conclusion that PV29 is safe relied in part on two studies 

by German chemical giant BASF. These studies were conducted in 1976 and 1978. 

Using Dr. Beck's systematic review process, EPA concluded that these two studies were 

of"medium" quality. Yet BASF, in a regulatory filing with the European Chemicals 

Agency, admitted that these same studies were "not reliable." 

a. Should EPA's risk assessments be relying on studies whose own industry 

sponsors admit that they are "not reliable?" 

b. Why was Dr. Beck allowed to create her own systematic review process for the 

TSCA program? 

c. Why was EPA's own IRIS-developed systematic review process, which has been 

positively reviewed by the National Academies, not adopted for use for the TSCA 

program? 

d. Will you commit to me that going forward, the TSCA program will not use any 

systematic review process that has not first been examined by the National 

Academies? 

The Lautcnberg Act amendments to TSCA require EPA to use information in a 

manner consistent with the best available science and base decisions on the weight of 

the scientific evidence. Scientists in EPA's Office of Chemical Safety and Pollution 

Prevention have developed a structured systematic review process of identifying, 

evaluating, and integrating evidence in the risk evaluations. The goal of systematic 

review, including EPA's Systematic Review framework, is to ensure that the review of 

the science is objective, consistent, and transparent. The TSCA program has 

coordinated with other program offices, including the IRIS program, throughout the 

process of developing the systematic review framework. We released a working draft of 

the Systematic Review framework in June, and EPA is currently working to address 

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public comments received on the framework. EPA also will submit our methodology to 

the National Academy of Sciences (NAS) for peer review and feedback. Regarding PV29, EPA evaluated the studies under its Systematic Review framework and looks 

forward to receiving and reviewing comments from the public and peer reviewers on 

our implementation of the approach. 

lSI. In a final rule published in 2014, EPA approved a new cellulosic biofuel pathway that 

allows producers additional options to comply with the standard. EPA deemed that charging 

electric vehicles with renewable electricity derived from cellulosic biogas would create 

cellulosic biofuel credits, and several companies applied to EPA to get approval under this 

new pathway (known as the "e-rin" pathway). EPA in late 2016, held an additional comment 

period to identify and solicit comment on how to administer the e-rin pathway to avoid 

double counting as well as address other complexities. Since the 2016 rule, the EPA has over 

two years to review several pending applications and has yet to take any administration 

action. In my meeting with you, you discussed that there are several outside groups 

interested in generating the RIN and thus it's a complicated issue. I agree, but that doesn't 

mean that EPA should not put dedicated staff toward figuring out this issue and providing 

guidance on how to develop e-rins under the RFS. 

a. Has EPA reviewed the comments from the 2016 proposed rule on how to 

successfully administer this pathway? lfso, why has EPA not taken an action in 2 

years to clarify necessary changes if they are needed? 

b. If the pathway was originally approved in 2014 and EPA has already finished a 

public comment on how to administer the pathway, why has EPA not been able to 

develop a mechanism to administer the program in nearly 5 years? 

c. Do you commit to having staff work on developing a credit transfer program, to 

avoid double counting, and review the 40+ applications that have been pending 

for e-rins at EPA since 20 16? 

EPA has continued to study this issue. The "e-rin pathway" is particularly difficult for 

EPA to implement. There typically are several entities in the chain from electricity 

production to ultimate use in an electric vehicle. Predictably, we have received feedback 

from many entities in the chain indicating they all want full credit for any RINs 

generated under this pathway, which would lead to over-counting. More importantly, 

there are complex challenges related to generating the data needed to ensure the 

integrity of the program to prevent error and fraud. We continue to work on this 

pathway and hope to find workable solutions. 

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182. EPA has an important role in supporting the growth of biofuels, thereby adding diversity to 

the nation's fuel mix within the transportation sector. EPA's work is especially important 

within the advanced and cellulosic fuels markets where advances in technologies have the 

potential to bring important new low-carbon fuels to the market. 

Last August, when you testified before this Committee, you committed to providing 

"certainty within EPA programs" in order to be a better partner with the private sector, as 

appropriate, in order to provide the clarity and transparency it needs to grow and create 

jobs. 

While work on several efforts related to biofuels are currently being processed within 

EPA, one effort which remains unresolved and where uncertainty remains is the work 

related to biointermediates. 

As you may know, the Environmental Protection Agency initiated work to address this 

topic via EPA-HQ-OAR-2016-0041-0196 in May of2015. A proposed rule was 

published in November, a public meeting was held in December 2016, and the comment 

period closed in February 2017. While additional issues beyond the topic of 

biointermediates were included in EPA-HQ-OAR-2016-0041-0 196, a wide range of 

entities and comments were submitted in support of providing certainty for 

biointermediates. 

To date though, action on the specific issue of biointermediates has not moved forward 

and the Jack of progress has added uncertainty into this segment of the 

renewable transportation fuel market. 

In the proposed rule, the Environmental Protection Agency noted that it may be 

"preferable for economic or practical reasons for renewable biomass to be subjected to 

substantial pre-processing at one facility before being sent to a different facility where it 

is converted into renewable fuel." The Environmental Protection Agency also noted that 

biointermediates will "likely provide an important component of the growth in renewable 

fuel production in the future, particularly for advanced and cellulosic biofuels," and 

proposed "changes in the RFS regulations to clearly specify requirements that apply 

when renewable fuel is produced through sequential operations at more than one 

facility." 

a. First, given that the Environmental Protection Agency issued a proposed rule 

regarding biointermediates in 2016 and has since received and reviewed more 

than forty comments relating to the biointermediates proposal, has the 

Environmental Protection Agency considered moving forward and providing 

certainty on the matter of biointermediates in 20 19? 

b. Second, should you be confirmed, can you provide any certainty whether the 

Environmental Protection Agency will successfully incorporate biointermediates 

into one of the pending proposed rules in the unified regulatory agenda on 

renewable fuels such as the pending rulemaking which proposes modify\ng the 

applicable volume targets for cellulosic biofuel, advanced biofuel, and total 

renewable fuel for the years 2020- 2022, especially since the abstract for that 

rule states that it will cover volume modifications, as well as "several regulatory 

amendments designed to provide clarity and increase opportunities for renewable 

fuel production." 

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Biointermediates is one of several issues addressed in the REGs proposal. In November 

2016, EPA proposed the Renewables Enhancement and Growth Support (REGS) rule 

and sought public comment on a variety of topics, including on designing an electric 

RIN-generation program. EPA has not finalized the proposal and continues to evaluate 

feedback regarding issues like feedstock eligibility, double counting, and verification. At 

this time, we do not have a timeline to share regarding when further decisions will be 

made. EPA takes very seriously the interest in this rule and the concerns of the biomass 

power industry, and I believe we need to resolve these key policy considerations before 

finalizing the proposal or pursuing alternative regulatory actions as appropriate. More 

information on the proposal is available at: https://www.epa.gov/renewable-fuelstandard-program/proposed-renewables-enhancement-and-growth-support-regs-rule. 

183. Do you think there should be a standardized social cost of carbon? Is the social cost of 

carbon greater than zero dollars per metric ton? If so, what is the most accurate social cost of 

carbon in 2018 and what is the best way to calculate this number? 

President Trump's Executive Order 13783 on Promoting Energy Independence and 

Economic Growth, called for agencies to follow OMB Circular A-4 when calculating the 

social cost of carbon for use in benefit-cost analysis. In accordance with the Executive 

Order and consistent with OMB Circular A-4, EPA assessed the impacts of changes to 

carbon emissions on the United State. EPA's application of the Social Cost of Carbon 

is presented in several of our regulatory impact analyses. See, for example, 

"Regulatory Impact Analysis for the Proposed Emission Guidelines for Greenhouse 

Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission 

Guideline Implementing Regulations; Revisions to New Source Review 

Program," h ttps:/ /www .epa.gov /sites/prod uction/files/2018-

08/documents/utilities ria proposed ace 2018-08.pdf. This analysis presents a 

distribution of estimates based on thousands of model runs. Using a discount rate of 3 

percent, the average domestic climate benefit for a one ton reduction in carbon in 2030 

is $8 (2016$), Using a discount rate of 7 percent gives an average estimate of $1 for a 

ton of carbon reduced in 2030. 

184. Do you agree with the majority of scientists that anthropogenic climate change is 

happening? 

a. If so, do you agree there are costs to inaction as well as costs to action? 

b. Do you believe the American public should have to pay for the costs of inactionthe storm damaged homes, lost crops, and failing fisheries? 

c. Do you believe that these costs of inaction have a value that can be calculated? Is 

the value greater than zero? 

Yes, the climate is changing and anthropogenic GHG emissions are contributing to the 

change. As noted in response to Question 178, above, we account for the "social cost of 

carbon" in all relevant rules. 

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185. A 2007 legal challenge prompted the courts to direct the government to further quantify the 

costs and benefits of a ton of carbon pollution in federal government rule makings. 

Specifically, the U.S. Court of Appeals for the 9th Circuit agreed that in quantifying the 

benefit of cutting carbon pollution but admonished that the value is "certainly not 

zero." 18 The Court asked National Highway Traffic Safety Administration to do a new rule 

that addressed this issue. This court decision led the Bush and Obama Administrations to 

further refine a value for the SCC. Do you reject this decision? If so, please explain why 

and how that affects how you approach your responsibilities. 

EPA routinely considers costs and benefits in its actions, including where it is required 

to by statute, caselaw, or executive order. EPA's regulatory and de-regulatory actions 

respecting greenhouse gas emissions have incorporated an analysis of those emissions' 

potential impacts into its decision making through the use of the "social cost of carbon," 

in accordance with Executive Order 13783 on Promoting Energy Independence and 

Economic Growth. 

\86. In 2009, the Obama administration created an interagency working group (IWG) in an 

effort to create a governmental value for the social cost of carbon, which based its 

calculations on peer-reviewed economic models and expert opinions. The models included 

in their analysis were the Dynamic Integrated Climate-Economy (DICE) 19, Policy Analysis 

of the Greenhouse Effect (PAGEi0

, Climate Framework for Uncertainty, Negotiation and 

Distribution (FUNDi 1

, and World Induced Technical Change Hybrid (WITCH)22 models. 

The IWG was comprised of scientists and economists from the Office of Management 

Budget, the Council for Environmental Quality, the National Economic Council, the EPA, 

the U.S. Department of Agriculture, Energy, Transportation, and Treasury. 

a. Can you discuss whether you think the models used by the IWG are appropriate 

and credible tools for calculating the social cost of carbon? 

The Administration has updated its social cost of carbon estimates to comply 

with President Trump's Executive Order 13783. These estimates continue to 

use the same three integrated assessment models used by the Obama 

Administration. It is worth noting that those models necessarily require 

assumptions about future economic growth, future population growth, 

technology changes, future greenhouse gas emissions, climate sensitivity, and 

damage functions for more than 200 years. Hence the underlying uncertainty 

of the inputs may be even greater than the uncertainty in the climate 

assessments incorporated into the model. EPA has included the updated 

18 Center jar Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508, U.S. Court of Appeals for the 

9th Circuit (2007), available at http://caselaw.findlaw.com/us-9th-circuit/1024716.html. . 

19 Dynamic Integrated Climate-Economy model (DICE), http://www.econ.yale.edu/'nordhaus/homepage/dicemodels.htm 20 Policy Analysis of the Greenhouse Effect (PAGE), http://climatecolab.org/resources/-/wiki/Main/PAGE 21 The Climate Framework for Uncertainty, Negotiations and Distribution (FUND), http://www.fund~model.org/ 

22 World Induced Technical Change Hybrid model (WITCH), http:/lwww.witchmodel.org/ 

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social cost of carbon estimates in recent regulatory proposals and bas asked 

for public comment on these analyses. 

b. Can you comment on whether the lWG was comprised of the right governmental 

stakeholders and actors? 

Executive Order 13783, issued in March 2017, disbanded the IWG. It is 

difficult to know if the right governmental stakeholders and actors 

comprised the IWG as to my knowledge, the Obama Administration never 

released a list of names of participants. 

187. On March 28,2017, the President issued a Presidential Executive Order on Promoting 

Energy Independence and Economic Growth, which disbanded the IWG, withdrew the 

guidance it issued, and reverted to OMB Circular A-4 of September 17, 2003 (Regulatory 

Analysis). This in effect requires each agency to estimate the value of changes in greenhouse 

gas emissions resulting from regulations. Do you believe the regulatory process will be more 

effective and efficient in the absence of unified guidance on how to monetize the value of 

changes in greenhouse gas emissions? How does this advance the value of regulatory 

certainty you claim to support? 

OMB Circular A-4 embodies the best practices for conducting regulatory cost-benefit 

analysis. Compliance with OMB Circular A-4 across EPA rulemakings, and across the 

federal government, including in those instances for which an agency may assess the 

costs or benefits of carbon, advances regulatory certainty. President Trump's Executive 

Order 13783 gave explicit instructions on how to move forward on estimating a new 

Social Cost of Carbon, utilizing the guidance set forth in OMB Circular A-4. In 

implementing these new instructions, EPA has included this analysis in recent 

regulatory proposals and has asked for public comment on these analyses. These 

instructions and the transparent process implemented by EPA has provided a great 

deal of regulatory certainty to the public: they understand the range of domestic sec 

values applied by EPA; they also understand how we arrived at these estimates. 

188. Part of the social cost of carbon calculation assumes a value for discount rates. The IWG 

after reviewing past OMB guidance recommended using a 3% discount rate23 • 

a. Do you have an opinion on what the discount rate value should be when 

calculating the social cost of carbon? 

b. Scientific research has found that it would be more accurate to use a declining 

discount rate instead of a fixed one. Do you agree that a declining discount rate 

would be more accurate? 

c. Do you have an opinion on what the discount rate value should be used for intergenerational impacts? 

23 Interagency Working Group on Socia! Cost of Greenhouse Gases, Technical Support Document, pp. 15-16. 

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d. Why should one generation discount the impact of harms upon another generation 

at all? 

As directed by Executive Order 13783, when federal agencies monetize the value of 

changes in greenhouse gas emissions resulting from regulations, including the 

consideration of appropriate discount rates, they must comply with OMB Circular A-4. 

OMB Circular A-4 embodies the best practices for conducting regulatory cost-benefit 

analysis. Circular A-4 provides instructions for federal agencies to apply estimates 

using both 3 and 7 percent discount rates in regulatory analysis. In accordance with the 

Executive Order and Circular A-4, EPA's recent estimates of the social cost of carbon 

apply a 3 and 7 percent discount rate. 

189. Is it appropriate for a cost-benefit analysis to consider the harm caused in other countries 

from pollution emitted in the United States? If not, please explain why. 

EPA typically undertakes cost-benefit analyses for regulatory activities using OMB 

guidance outlined in circular A-4. Circular A-4 requires that analysis be focused on 

benefits and costs that accrue to citizens and residents of the United States; however, it 

does allow for the separate reporting of affects beyond U.S. borders. Therefore, the 

Agency can look at pertinent information on externalities beyond US jurisdictions 

depending on the particular circumstances, including statutory authority and other 

direction from Congress. 

190. What projects, both domestically and internationally, are EPA staff and contractors engaged 

in to combat marine debris? 

The EPA is engaged in a number of activities to combat marine debris both 

domestically and internationally. Some of our most extensive involvement is leading the 

Trash Free Waters (TFW) program, where we support-in partnership with many 

stakeholders-a broad range of activities from source reduction to clean-up. EPA's 

Office of Water is also addressing marine debris through regulatory programs such as 

the Clean Water Act 303(d) Listings for Trash Impairment, National Pollution 

Discharge Elimination System (NPDES) stormwater permits for trash, and the 

development of a trash Total Maximum Daily Load (TMDL). Under the Resource 

Conservation and Recovery Act, Waste Wise promotes use and reuse of materials more 

productively over the entire life-cycle, the WRAP Program is helping to recycle plastic 

films, and EPA is developing a waste management guidance tool that would also be 

useful as a resource for developing countries. 

EPA advances marine litter solutions through an international program modeled on 

our domestic TFW program, and is pursuing collaborations with Jamaica, Peru and 

Panama. EPA also works with the United Nations Caribbean Environment Program, 

focused on reducing land-based sources of marine pollution, including in the Gulf of 

Mexico and the wider Caribbean region and provides expertise to the United Nations 

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Environment Program (UNEP) on developing practical solutions to address the sources 

of marine litter. In December, EPA participated in the Second Meeting of the Ad Hoc 

Open Ended Expert Group (AHOEEG) on Marine Litter and Microplastics, which 

included over 300 attendees, with 40 governments and robust representation from 

industry and NGOs. The outcome document will be part of this March's United Nations 

Environment Assembly (UNEA) agenda, where EPA will again have a leadership role. 

EPA coordinates our international work with NOAA and the Department of State. 

Additional details regarding these efforts are available on our website: 

https://www.epa.gov/trash-free-waters. 

191. Is EPA undertaking any studies or analyses investigating the public health risks of 

microplastics, microtibers, and other plastic waste? 

Yes, EPA and our federal partners are engaged in numerous studies and analyses to 

develop standardized methodologies and data for plastics research and to evaluate the 

potential impact that exposure to microplastics and nanoplastics, including microfibers, 

and other plastic waste might have on public and environmental health, domestically 

and internationally. 

192. What opportunities exist through the EPA's Clean Water Act and/or Resource Conservation 

and Recovery Act authorities to improve waste management, study and mitigate the effects 

of plastic waste pollution in waterways and the ocean, and support waste reduction, improved 

recycling, and cleanup efforts? 

The EPA is engaged in a number of activities under the Clean Water Act, the Resource 

Conservation and Recovery Act, and other statutes to combat marine debris both 

domestically and internationally. Significant regulatory mechanisms exist to prohibit 

the discharge of pollutants that could harm human health and the environment 

domestically. One of our more effective programs in this context involves our 

collaborative Trash Free Waters (TFW) program where we support, in partnership 

with many stakeholders, a broad range of activities from source reduction to clean-up. 

EPA has expanded TFW internationally to Peru and Jamaica and is in the process of 

expanding to Panama. EPA is also exploring opportunities to expand to the Asia-Pacific 

region; five countries in Asia contribute 60% of the global marine litter volume, 

impacting ocean health worldwide, and US waters and industries. 

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193. Does EPA require any additional authorities to export its technical expertise and best 

practices to foreign partners and priority countries in need of assistance in improving its 

waste management practices to minimize marine debris? 

a. Can EPA currently undertake its own bilateral discussions, or must it go through 

the State Department or USAID to develop these relationships? 

EPA provides expertise on marine litter in bilateral and multilateral engagements. 

Although we may undertake activities directly, we coordinate closely with State 

Department, USAID, and NOAA on such engagements. The extent of engagement is 

constrained by available resources, rather than legal authority. The Save Our Seas Act 

funds the Marine Debris Program at NOAA. There is no dedicated funding for EPA's 

international marine debris work. 

194. When approving chemicals and other components or end plastic products, does EPA 

currently consider the longevity of those materials in the environment and the potential harm 

they can cause as they degrade? 

In its review of new and existing chemical substances, EPA investigates what happens 

to a chemical over time once it is in the environment. In this review, EPA evaluates 

reasonably available information not only with regard to the specific chemical 

substance under review but also any substances into which the chemical breaks down to 

or transforms into once it enters the environment or biological systems. In some cases, 

such as existing chemicals that have been relatively well studied, EPA may be able to 

use experimental or monitoring data to understand what happens to a chemical once it 

enters the environment and how long it stays there. Generally, for new chemical 

substances, EPA uses modeling based on the chemical's physical-chemical properties 

and/or information known about the behavior of structurally similar chemical 

substances. 

195. Does EPA regularly participate in the Interagency Marine Debris Coordinating Committee? 

If so, who attends from EPA? 

Yes, EPA does participate in the Interagency Marine Debris Coordinating 

Committee. EPA's Office of Water representatives regularly participate with the 

Coordinating Committee. 

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196. What role have you personally and as a representative of the U.S. taken in international, 

multilateral gatherings, like the G7, G20, ASEAN, UNEP, and other summits, to make 

marine debris a priority topic? Have any new partnerships, agreements, or knowledge 

exchanges come out of these meetings? 

I represented the United States at the 2018 G7 Environment Ministers Meeting in 

Halifax, Canada on September 19'h and 20'h where I spoke in support of action to 

address marine debris and joined the rest of the G7 in launching the G7 Innovation 

Challenge to Address Marine Plastic Litter. In 2019, I plan to continue to represent U.S. 

government views on marine litter at high level meetings such as the G7 and G20 

Environment Ministers Meetings. 

197. In May 2015, EPA released a 423-page technical support document outlining the legal and 

scientific basis for the agency's Clean Water Rule. Will EPA release a similar document to 

support its legal reasoning behind the agency's new proposed "Waters of the U.S." 

definition, especially given the definition depends solely upon Justice Scalia's opinion in 

Rapanos, a position without judicial precedent? 

The preamble to the proposed rule, a resource and programmatic assessment, and 

detailed economic assessment were made available to the public on the EPA's website 

on December 11,2018, the date the proposed rule was signed. 

198. Will EPA extend the comment period on its new proposed definition of"Waters of the 

U.S." given the partial government shut down? If so, for how long and when will this be 

announced? 

The proposed rule has yet to be published in the Federal Register, but the public has 

had access to the proposed rule, the economic assessment and related supporting 

documentation since December 11, 2018. The EPA and the Department of the Army 

will evaluate requests for extending the comment period after the proposed rule has 

been published in the Federal Register. 

199. Why was only one listening session scheduled? How was Kansas City, KS selected as the 

site of this one listening session? 

The EPA and the Department of the Army intend to hold a pu~lic hearing in Kansas 

City, Kansas, regional state and tribal engagements in Savanah, Georgia and Santa Fe, 

New Mexico, and a series ofwebinars and other stakeholder engagement meetings 

throughout the comment period. Kansas City was selected for the public hearing based 

on its central location, access to a major international airport, and available support 

staff from both the EPA and the Army Corps of Engineers given the location of an EPA 

Regional Office and Corps District Office in Kansas City. 

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200. Has EPA revisited its estimate of the benefits of wetland mitigation since its June 2017 

economic analysis for the proposed definition of"Waters of the U.S."? If not, does it have 

plans to do so before the rule is finalized? 

The EPA and the Department of the Army performed a comprehensive economic 

assessment of the proposed rule entitled "Revised Definition of 'Waters of the United 

States,'" signed on December 11,2018, including an evaluation of wetland benefits and 

other relevant factors. The draft economic analysis and a corresponding draft resource 

and programmatic assessment are both available on EPA's website at 

h ttps: I /www .epa.gov /w otus-rule/ step-two-rev is e. 

Senator Wicker: 

20 I. Under the Clean Water Act, EPA has jurisdiction over the discharge of substances into a 

water of the United States. As such, the agency has oversight of offshore aquaculture 

projects, along with other agencies such as the U.S. Army Corps of Engineers and NOAA. 

Will you commit to working with the agencies that are responsible for regulating offshore 

aquaculture to ensure that this industry has greater regulatory certainty in federal waters? 

The EPA is currently working with, and will commit to continuing our work with, the 

U.S. Army Corps of Engineers, NOAA, and other agencies to provide greater 

regulatory certainty for the aquaculture industry. 

202. The Pesticide Registration Improvement Act (PRIA) was first enacted in 2004 to provide 

dedicated funds to EPA.to evaluate the safety and efficacy of antimicrobials, sanitation 

products, and pesticides. This legislation has been reauthorized twice by unanimous consent 

or voice votes in the House and Senate, which indicates that there is strong bipartisan support 

and a lack of controversy for this statute. However, the most recent reauthorization failed to 

reach the President's desk before the end of the !15th Congress. 

a. How important is PRIA to EPA's mission? 

b. If Congress does not reauthorize PRIA, what will the impact be on EPA staffing 

and budgets? What will the impact be on manufacturers of these products whose 

EPA registration is effectively a license to operate? 

PRIA provides approximately 33 percent of the funding for EPA's pesticide program 

activities. Under the third iteration of the statute, PRIA provided two funding sources 

to EPA's pesticide program: 

One-time registration service fees (i.e., PRIA fees) for the evaluation of new 

applications submitted to the EPA; and 

Annual FIFRA maintenance fees assessed to products currently in the 

marketplace, a significant portion of which are used to support the re-evaluation 

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of pesticides in order to meet the statutory deadline of October 1, 2022, for 

completing the first round of registration review. 

PRIA's authorization expired on December 21, 2018. Because PRIA was not 

reauthorized or further extended, pesticide applications submitted after December 21, 

2018, are no longer be subject to decision time periods. The two-year sunset provision in 

FIFRA section 33(m) specifies fees be reduced in fiscal year 2018 by 40 percent below 

the levels in effect during fiscal year 2017, and by 70 percent in fiscal year 2019. 

Effective September 30,2019, fee requirements under PRIA would be terminated. 

Additionally, if PRIA were not reauthorized, $2 million per year for worker protection 

activities, pesticide safety education programs, and partnership grants, monies that 

currently come from PRIA funds, would not be available and these programs would not 

be funded. These activities include: 

Developing and administering a pesticide safety training program that will 

support a national network of pesticide safety trainers providing worker safety 

training to migrant and seasonal farmworkers and their families (National 

Farmworker Training Program); 

Developing pesticide education materials for workers, handlers, and trainers on 

how to comply with WPS (cooperative agreement with UC-Davis and Oregon 

State University); and 

Supporting National Pesticide Information Center (NPIC), a bi-lingual, factual 

source of information for professional and public audiences on pesticide-related 

issues. 

PRIA provides predictability and regulatory certainty to all stakeholders regarding the 

timing of pesticide registration decisions. In the absence of PRIA, the statutory 

timelines would no longer exist and applications to register new pest control tools would 

be reviewed as resources were available. However, EPA would not be in a position to 

guarantee a registration decision timeline with any certainty. Farmers in need of new 

pest control tools could be significantly impacted as they may not be able to timely 

adopt new technologies to address their pest management needs. 

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Fiscal Year 2018 

EPA Enforcement and Compliance 

Annual Results 

Prepared by the Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

January 2019 
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FY 2018 Enforcement and Compliance Annual Results 

TABLE OF CONTENTS 

Environmental Outcomes From Civil Enforcement 

Est1mated En>'lronmental Benefits 

Hazardous Vllaste and Non-Hazardous Waste Treated, Mmimrzed, or Properly DISposed FY 2012 - FY 2016 

Commitments to Reduce. Treat, or Eliminate Pollut1on (Air, Tox1cs, and Water) FY 2012- FY 2018 

Volume of Contammated Soil and Water to be Cleaned Up FY 2012- FY 201 B 

Criminal Enforcement Accomplishments 

Value of Fines and Restitution and Value of Court Ordered Envtronmental Projects 

Environmental Crime Cases Opened, Defendants Charged, and Sentencing Results Years of Incarceration 

Superfund Accomplishments 

Superfund Enforcement Prwate Party Commitments FY 2008 - FY 2018 

Additional Civil Enforcement Accomplishments 

Federal Inspections and Evaluations (Conducted by EPA) FY 2008- FY 2018 

Total C1V1I Enforcement Case lml!atlons and Conclus!Ons FY 2008 - FY 2018 

Es!IIT'ated Value of Admmtstrative and Cwil Judtcial Comp!ymg Acbons (lnJuncttve Rehe0 FY 2008 - FY 2018 

Adm1mstrat1ve and C!V11 Judtcwl Penalt1esAssessed FY 2008- FY 2018 

EPA Voluntary Disclosure Programs Number of Dmclosures and Faclll!tes FY 2014 - FY 2018 

Supplemental Environmental ProJects (SEPs) FY 2008- FY 2018 

Acronyms and Doscriptions for Statutes/Sections 

Note: Tllis data reflects aU EPA enforcement actions, including Federal Facillty Compliance Agreements and inspections, unless 

otherwise noted Does not 1nclude stale and local enforcement actions or inspections 

9 

10 

11 

12 

13 

14 
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D~ta Source- integrated Compliance lnlormat«m ~ystem (ICIS) 

Oec'.l-<'018 

US Enwoo>rnenlaiPmlectronAgency 

:r In FY2D18, EPA enforcement 

actionsrequiredfacilitiesto 

committotreat,minimize,or 

hazardous and non-hazardous 

waste 

> Annualtotalsfurenvironmental 

hazardouswasteactiom 

accountedfornearly99%ofthB 

national totaL 

accountedforover99% of the 

hazardous and non-hazardous 

wastetotalof52billion pounds in 

that year. 
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Estimated &!f'lvironmenta! B-eneflts: Commitments to Reduce, Treat, or Eliminat€ Pollution {Air, Tox!cs, and Watl!r} 

FY 2:012 - f'f 2018 

QatqSource'lntegra\edC()mplmncelnformat•onSystem!ICIS) 

D~ta J> of· Det·9·2018 

US.£nwonm~nta1Pmtect•ooAgency 
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f<.>timated Environmental Benefits: Volume of Contmnln.:lt<i:d Soil and Wat~r to be (!eillned Up 

fY 2012 ~ fY 2018 

lB 

OataSQUrc~·lnteg~<~tedComphanceJnformat<onSystem{ICI$) 

Oataa>of·Oec-9-2018 

U.~. tnvsronmentaiPmtect•onAgency 

r In FY2018, EPA enforcement 

actions obtained commitments to 

cleanupover244 million cubic 

yardsofcontaminatedsoiland 

water. 

> Annual totals of soil and water to 

be cleaned up are often strongly 

influenced bytheexistenceofone 

ortwo!argecases.Forexample,m 

FY2013 and FY 2014 three big 

casesaccountedforthemajority 

ofth.esoi!andwaterto be cleaned 

"P· 
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DataSourte.Cnm•n~ICa<eReportmgSy>tem 

Data ~s of Nov-13,2018 

Crlmina! Enforcement 

Value of Fines and Restitution and Court Ordered Environmental Projects 

FY ZOOB -- FY 2018 

US.EnvmmmentalProtect<emAgency 

';. In FY2018, thetota!ofcrlm!na! 

fines, restitution, and court 

orderedprojectswas$8Smi!lion. 

> Annua!tota!svarywidelydueto 

largecasessuchas!3Pin2013, 

Duke Energy in 2015, and 

Volkswagen !n2017. 
170 


35314.162

Criminal Enforcement 

Environmental Crime Cases Opened, Defendants Charged, and Sentenclng Results (Years of Incarceration) 

FV 2008- FV 2018 

~ 

~ 

300 

'" 

100 

•,.ofCasesOpened 

OataSource:CrimmaiCaseReportlngSystem 

O;otaasof:Nov-13-2018 

U.S. EnVIronmental Protection Agency 

~ In FY 2018, the criminal program 

continued to focus on complex 

cases that involve a serious threat 

tohumanhealthandthe 

environment and/or undermine 

program integrity. 

? For the first time since FY 2011, 

the number of environmental 

crime cases opened increased. 
171 


35314.163

Superluncl Entor<ement Private Party Cqmmitments 

H 2008 -- fY 2018 

sites. 

I> Annualtotalsforbothcleanup 
172 


35314.164

Dilta Somte I CIS, RCRA Info (fDr RtRA HW), manual {for SDWA UIC) 

D~to as Df De~-9-1018 

US fnwonment~IPrctectmnARency 

EPA conducted 10,600 

> EPA continues to use data 

analyticsandothertoo!sto 

improvemspectiontargeting, 

whichaHowsittouseits 

inspection resources more 

efficiently, 
173 


35314.165

1. Totals include CERClA Initiations and Conclusions. 

Oata$ource lntegratedComphanLelnfo:mllattonSyst!'m(IC!S) 

Oataasof·Dec·9·2018 

Total Civil Enforcement Case Initiations and Coodusions 

fY 1008- FY 2018 

US f;w,ronmentaiProtectmnAgency 

Y In FY 2018, EPA initiated and 

concluded more than 1,800 civil 

judicia! and administrative cases. 
174 


35314.166

Prlor FY Totals Inflation Adjuflted to R.etlectth!! Current Totals In FY 21US Doll~rs 

1. InJunctive relief reqUir~s a regulated ennty W perform, or refram from perronnm~, >ome designated action to lmng the ent•ty Ill ill compliance w;th 

env•ranmentallaws 

2 AllpnorfYdollarfoguresmt!legraphareadJU>tedtor>!l'lectt11ewrrentvaluf'mFY2013dollar;basedonthemonthlyrateofmllatlon/deflatmnas. 

determmed by the US Pep~rtment of labor Consumer PrKe Index for All Urban Consumers 

Data Source.lnt!'grated tompllance informatlOn ~y<t~m (ILlS) 

PalaasoLDec-'1-2013 

U.~ f.nv<ronmental f'r-(lt~ct•on Ag<mcy 

r In FY2018, EPA enforcement 

actionsrequiredcompaniesto 

invest near!y$4 billion in actions 

and equipment to control 

pollution (injunctive relief.) 

-,_ lnjunctiveRe!iefresu!tsvaryfrom 

yea:rtoyea:rdependmgon the 

timing of the resolution ofthe 

largest cases, 
175 


35314.167

PriurfYTota1slnflationAdjustt!dtoRe!1ecttheCurrl!ntT!ItalslnFY29180a!!ars 

lnteg•at<>dtomplt3nc;>lnfwmat•onSv>t;>m(ltl$) 

o~c·9 ?018 

I~FY20U,EPAobt~"'"dovm$69mdhon 

lr<fed,.-aladmmmrat.vcandcMIJ\.Idicl~i 
176 


35314.168

DataSourc..,:lntegratedCornphancelnformat>onSystern(!C!S)andeD!sclosure 

System 

DataasofNov-5,1018 

EPA Voluntary Disclosure Programs 

FY 2014- FY 2018 

US EnvjronmentalProte<:tlonAgency 

~ In FY 2018, 532 entities at over 1,500 

faci!itiesvo!untari!ydisdosed 

violations pursuant to EPA'sse!fdisclosurepolicies.The47%increasem 

faci!itiesse!f-disdosingvio!ationsover 

2017 is attributed to several New 

Owner Audit Agreements involving 

largenumbersoffaci!ities. 

> In the nearlythreeyearssince 

launchingeDisc/osure, EPA has seen 

abouta74%increaseinthenumberof 

annualse!f-disclosuresascomparedto 

the two yearspriortoits!aunch. 
177 


35314.169

Prior fY Total Cost of SEPs Inflath:m Adjusted tc R!!f!ect the Curromt Tr::>ta!s In FY 2018 Dollll.r!l 

;;.. ln FY 2018, EPA enforcement e<J~e5 

includ€'d lOO voluntary 

have;lclose nexus to the 

violations and that a 
178 


35314.170

CAA 

Cf.RCL/1 

CWA 

EPCRA 

FIFRA 

MPRSA 

RCRA 

SOWA 

TSCA 

fit!ei8 

Results 

CleanAJrAc! 

Comprehensive Enwonmenta! Response, Compensal1m1 and liabihty Act t'Superfund"l 

Clean Water Act 

Emergency Plannmg & Comrnur11ty R1ghHO·K110w flct 

Federallnsec!ictde, fung1wle and Rodenhc!de!\Ct 

Manne Protechon. Researcll, and Sanctuarms i\ct 

Resource Consef\la1ton & Recovery Acl 

Safe Onnkmg Water Act 

Tox1c Substances Control Act 

US Cnmmal Cod;)- Cnmes e~nd C1ir11!11al Pruc<.ldure 

US.Envm::mmentaiProtectlonAgii'IKy 

35314.171

Attachment Q38 

OA OA/!0 Andrew Wheeler 2:.135636 ActingAdminlstrator 

OA/10 Henry Darwin 2335438 Assoc De!J. Admin.\Act!ng OA 

DA OA/10 fl:y__anJ,]tki;on 2335364 

OA OA/!0 HelenaWooderFAguilaJ 23290 Acting Deputy Chief of Staff Assist Chief of Staff In ordetly shutdown of AO; Ongomg General Op

OA OA/!0 Kaitlyr)Sh!mmfn 2335-393 White House liaison 1 

OA/10 Brl!"ttOoy!e Provide support to the COS~ State of the Union Jnd Congressional H

OA 

OA Aaron Ofckerson 755ll Senior Advisor COS 

OA Ken Wagner Senior Advisor 

OA OA/!0 MlchaeiMOOna 1 As.sis.t the Admlnistr:atot General Oper:at!O(ls 

OA 2225. Senior Advisor 1 As.s!st the Associate Deputy Administrator {Acting DA) 

OA 233$503 Dir,Sf;hetluHng/Mvallte 1 

OA OA/10 Hay!yHumphries 2336015 Executive Assistant ASSISt the Administrator 

OA 2336047 

OA 23270 Attlng Dir, OAES 

OA OA/OHS 10403 Acting AA, OHS 

OA/OHS Steven WH!linns 30098 Sr. Intelligence Officer 

OA 

OA/OHS Justin<:f d)cpp 

OA 

OA/OHS John Martin lnteUigenceOfflcer Monitor Nat'! Security info for Admin & Dep Admin and EPA Program

OA intfuding Water Security ,ond Emergency Response undet fXCEPlED 

OA OA/OHS 

OA/OOR Troytyons 233$385 M,OCJR 

OA OA/OCift 23307 l 

OA Aaron Ringel 233$391 OAA, OC1R 

OA 233$;195 DM, Cohg.~ AffpJrs 

OA Christian Rodrick 2335436 

OA ~OA/OC!R Tony Frye 2335467 

OA John Kookus 2335-347 DAA,OPA 

OA 112l Web-Comfnunfcatlon 

OA 6529 

OA 

OA 

OA 

OA James Hewitt 

OA 

OA DNOPtEE Tate Bennett 2335375 AA,OPEEE 1 Effect orderly shutdown of Office & Assist with ongolng General Ope

OA O!J./dP Brittany Solen 2335381 M,OP 

35314.172

OA 

OA/OP William Nickerson 

OAR Mandy Gunasekara 

DAO Clint Woods 

OAR OAR 

Robin Ot.mkios 

Keith Barnett 

OAR Janet!:.d:: 

OAR MiChal;;;! Geeting OAR Lowell Ralston 

OAR JOnatMn Ap!ln 

OAR Steve layJor 

OAR Askrep OAR 

OAR 

OAR David Saunders OAR Michelle Owens OAR Zachary Chambers 

OAR Andrea Stafford 

OAR At-ejandraBaer 

OAR Fernando Gomez 

OAH Mike Messer 

DCFO OCF0/10 

OCFO OCFO/OB Carol ocr:o OCfO/OS Maria OCFO OCFO/OB OCE"O OCFO/OB Jeanne Shepitka 

OCfO OCFO/OC OCFO Randy Sargent 

Jennifer -arown 

OCFO 

OCfO 

OCFO Vonda Jennette OCfO Aftedla fkastfit 

ocm Kech!EIIiott 

OCFO OCFO Penny Miller 

OCfO DannyChoi 

OCFO NeeiDesai 

21434 Acting Dir PRAO, ORPM, OP 

2335483- Dir?ctor, OEX 

15127 PAS- Management 

4$7$ DepUty AA 4313 Ass.o<::late Director, SPPD 

19176 Group Leader 

13;781 Group le?der 

6315 Env Protection Speda!lst 

24058 Securjty PO, NVFEL 

A:. needed: OMB liaison for court ordered deadlines {tech issues} 

Effect orderly shutdown of Qffice & f'Ol,;\ lltliatlon 

Preparing the Administrator for Congressional Hearing 

Preparlng the Administrator for CpngreSslonaf Hearing 

Court-ordered deadline in December 

deadline !n Oecernbef 

3541 1 RadNet fitter change out (DC} 

29166 1 Mechalikal systems 

Operations 

26079 fuldNet Oeerations 

4304 RadNet Operations 

26050 Offic-er 

16085 Gamma Spectrometry 

-Counting Room 

Radiation Safety Officer 

IT Systems 

RadNet Deployable Mgr 

Quality Control verification of RadNet data 

Faclllty operations 

RadNet filters rece-ived/stored 

Physical security ot fadiity 

Rad Characterization COR 

IT systems COR RadNet 

20007 20242 

2:6351 

29365 

20010 Emergency response 1 f(:?PCJrtse 

2335317 Chief Financial Off1cer 1 

3460 Deputy Chief Finandal Officer 

1053 

:26411 Oeputy Dlrector 

2334574 

11146 

Management Oversight provide support to the Acting Administrato

lnvoke/contratt reviewer & contract payment processor 

Contract payment certifier 

Invoice/contract payment reviewed certifier 

Feedrnorn ("FeedMomenturn"J Support 

35314.173

OCFO Dan! lavergne OCFO OCFO/OC/FSD/CFC KharyNelson 10540 Travel Branch Chief Travel OCFO 21746 Aecount<Jcnt TraVel OCFO WilHam Wiggins 27728 eRe!ocatlon Branch Chlef 1 Relocation 

OCFO navld oeVere- 24099 ActingOJrector 1 Mi>nagement Oversights/systems operatfons 

Provide CDW and PPL systems administration and operational support 

OCFO OCFO/OTS/SRDD lc:iran Chandu 2335174 IT Specialist 1 down CPS/Feedmom 

Undsay Smith (formerly 

OCFO oCfotors;asO Will! ant) 27485 Program Analyst OCFO OCFO/OTS/PED Mkhaef Reese 29767 Flnancial5pec1alist 

OCFO OCFO{OTS/JO Eva RipoJione 30345 IT Senior Technical- AdVJsgr 

OCFO OCfO/OTS/tO HeidfGross- 21521 Program Advisor OCFO OCFO/OTS{AMD Soh Aaronson 32788 !TSpedaHst 

1 Senior Operations 

OCSPP OCSPPIO Erik Baptist 23.35412 1 Senior Man?gement 

OCSPP LekKadeli 8206 1 Senior Managemef'lt- Operations 

Susan lawerenc;e 7422. 

OCSPP Thuy Nguyen 7S22 Branch Ch-1ef 

OCSPP' RitkKeig.win,Jr 1613 D'irettor,OPP 1 Senior MaOagemeot OPerations 

OCSPP !0 Arnold Layne 3892 Acting Asso<;iate Assistant Senior Management- Operations OCSPP 

OC5PP OCSf>POPPT JeffMorri$ 17199 1 Senior Management· Operations OCSPP OCSPPOSCP Stan Barone 10173 1 Senior Management- Oper<rtions OCSPP OCSPPOPP MlkeGoodls 16002 1 Senior Menagernent" Operations OCSPP OCSPPOPP Kab!e {Bo} Davis Team lead Sect 18 Senior Management Operations 

OCSPPDPPT Michelle Price Supervisory Eriv'Prot l Hearing Prep OCSPP SpeCialist 

OECA-!0 HULl, G:EORGE 00019243 OECA Commun-ications 1 Support: communications to the pub!lc incidental to a court-ordered liti

OECA Director OECA srMHELD, lAWRENCE 00002672 PDAA 1 Support toM 9ft administrative and management matters OECA OECA"!O 

OECA 

OECA..QCE/!0 KELLEY, ROSEMARIE 00004131 ATTORNEY ADVISOR (OFC Office Director/Oversee shutdown activities, main OCE POC) 

OECA 

AilPENl!ERI. 

OECA 

BELSER, EVAN 

OECA 

CABAtl£Rb/KATHR'iN 

OECA 

BELSER, EVAN 00028064 ATTORNEY ADVISOR 

OECA 

OECA CABAU,ERO, li:ATHfWN 00025Z19 ATTORNEY ADVISOR 

35314.174

Of(A M8SENBACH, CA!TUN 00029400 ATTORNEY ADVISOR 

IWIE.ELEANOR-S) am .. ENGtNEER 

OECA 

AGUitAR, VtClOR 02:334678 fNViRONMWfAL ENGtN£ER 

OECA 

OECA fYi>Oi!f16;tl 

O£.CA.fJCf/A£0 SUUJVAN, TIMOTIW OOOZS4:i9 ' Court ordered deadUne {by Jan 14) forfitlf13 motion to dismiss in KP K

OfCA 

WAlKER. YotMNOA il0007130" t N:a:tionai POC tor iJs OOF.IFRA 

qtCA 

OfCA OECA-OC£/WED BRANTNER, KEU.Y 00004938 ATIORNEY ADVISOR 

OECkfff,D OfXON. CHElSEA 

OECA 

QffA-FfEO 00001732 

{OECA-<lCE/AED) 

OfCA--OSRE MACKEY, CYNU'f 0001761.6 - stWERVtSORY ATTORNEY- l t.ea:a! advlt:;:e to senior agency leadership for natt(.)l'\flj on-gPi!lg cases 

OfCA AOY15€R 

O<fi'T-JO HENRY ()0:032$67 DI:RECTOR. effie£ OF 

OfCA -l'0011NSIC 

OCEfT-NEIC OOHOfFf.R • .ION 00015197 CHEMtST 

OECA 

CANZLEn, EfOCA OCOOOl'4l64 NATI. £1\f"..oRcE iNVEST 

OECA almR 

OCtFT-NtlC CAH!U,.lfff 00032424 SUPERVtSORV CHEMtST 1 Utlgat;ton OOJ has reqwm:-ed employee for intenne.v related 

OECA 

OO'J002Si37 

OfCA 

OECA OCE"Fr-NfiC fRITZ.JASONM 0000033084 TO)I.JCOWG!5T 1 Search warrant support 

OfCA QCtfT.NfiC HfiLMK;H, RlCHARD J CH£MtST 1 S#afcli warrant support 

OfCA OCEFf-NEIC iATROPULOS, lAMlE C. 00000273$ PHYSlCAl SOENTIST 

OCffl:-Ni;IC 00016651 oiEMmT 

OfCA 

OC£fT·NfK SCA!.£S,MK:HAR 0000016496 tNfQRMATIDNTECHNOLO(;Y 1 MaintamNBC!.AN 

OECA SP£CIAIJSt 

OCEFf·NEJC S!Pf,t:.MN£ (!001¥17-? OEPUTVD!ftECfOR 

Oa;A 

OCEfT-NBC SlfAD,MARK ():(X)O(ll5128 PH¥SICAl SOENTIST 1 Seafcl1 warrant 

CECA 

OCEFT-N€JC 1 

OfCA 

OCEFT-NBC VANLERSERGHE., DAREN fl 0000012913 ENVIRONMENTAL EN:G!NEER 1 Search warrant :support 

OECA 

oti:A 

OECA OCEFT-PSD It 1 l.E ?ersonne:t- Excepted OfCA oct:Ff-PSO 1 OfCA OCEfH'SO OOY1:335492 CRiMINAl fNV€STIGATOR OECA roDZ/04 CffiMINALIMI'ESTfGATOO OfCA CRJM!NAlfN\f£ST1GATOR OECA O<fi'T·PSO i:J'{fMJNAt l:NVESTIGATOO 

35314.175

0£0. OCEFT·PSO 00021920 CRiMINAl fNVESTlGAJOR 1 l£ PenonneJ:.. Excepted 

OECA <Ja;FH'sr> t:ruMfNAL 1 tEPe--ed 

OE<:A ooo;!9ll31 ! i.E Perwnncl, OE<:A 000233$48B- l OECA OCEFT-00 

OE<:A 

0000018417 SUPVCRil\MNAl 1 

O£CA 

OECA OCEJ'T.W 

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O£CA OCEfT-00 

O£CA OCffT..CIO 

OE<:A OCEFT-CID 

OECA OCEJ'T.OO 

OCEFT-CID 00020737 CRtM lNVBST!GATOO 1 LE-e!-€><-

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OECA OCEJ'T-0!) 00<122865 1 

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0£0\ 

0£CA OCEFT..OD 

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0£0\ 

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OCEFf-CID """'"""" 1 O!'CA OCEFT-OD 

OECA OECA OCEFT-t!D OECA QCEFT..CIO 

OECA 

OECA 

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0£0\ 

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35314.176

OCEFT-CJO 00007648 CRtM INVES:BGATOR {RESOT·' 1 tE Excepted 

OECA OECA OCEFT-CJO "4XJOO'""" 1 OECA OCEFT-CJO 0(1()23.34123 1 

OECA <JCIB-CJO 1 Excepted O£CA OCEFT-CJO O£CA <JCIB-CJO 

OECA OCf.FT-CJO 

O£CA 

OCCA OCEFT-CJO 

OECA ocm:-ero 

OECA 00030017 

OECA {J(IQU354'91 

OW> OCEFT-CJO CWMtNAL INVESTIGATOR 

qcm--ov 

oo:A 

OECA OCEfT-oD 

O£CA OCEFT'cli) 

Q[<:JI OCEfT-CJO OUMtNAt JNVEStiGATOR 

OCEFT-CJO 

0001D7!!0 1 tE Personnel- EK:cePted 

tl0023'35650 ll'Pru''"""""-.0 

OED> It 00020761 CRIMINAl tNVFSTlGATOR 1 lE PefS.Imne!- Excepted OECA 0000:00'64. CR!MINAt IN\f£ST1GATOR: 1 OECA OCEFT-CID 00027494 CRIMINAl JNVESTIGATOR 1 LE Personnel- 8«:epted OE<:A -oca;T;..(:U) _, CRiMINAl f!W€ST!GATOO 1 OECA OCEFT.OO 00020782 CfUMtNAt fNVESHGATOf! OECA OCEfT-00 """"""16 CRJMINALlNVESJlGATOR OECA O<lll<Ji!UO (JUMJNAL INVESTIGATOR 1 t£ Personnel- Excepted ooooms OUM iNVESTiGATOR t£-l'x<"""'" OECA _ .. OlRGI 

Of"CA ocaT.C!D 

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OECA OCEFT-CID 1 

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OCfFf-CJO 00011161 CRIM fNV£ST!GATOR {R:ESOT" 1 I.E 8«:e:pted 

OECA AGrM\lf'.-HRG} 

OECA OCfFf-CJO ·0000027537 OECA OCEFf-00 00016301 CRfMiNALlNVESTfGATOR 

O£CA 

ocm.oo '''""'"'" 000287!!0 CRIMlNAltNVESTtGATOR 1 LE Personnel- Ell-cepted 

OECA 

OCEFT-CJO oo:JVBl cmMINALtNVemGATOR 1 

lE 

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OCEFT-an 00031747 CRJM iNVESTIGATOR: {1.\ESOT- 1 tE Excepted 

"""" OECA OCEFT-CJO 

.. 

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00020504 1 u:--

OECA OC!'FT-CJO 00023-35535 1 OECA OCEfT-CJO CRU\IIlNAllNV5TtGATOO 1 i£ Personnel-< Exce:pted OECA ()CEFJ.QD <:mM:INAt fNvEST!GATOO 1 tE Ettepted 

35314.177

OECA OCEFT-00 CffiMfNAllNVESTIGATOR 

OW\ <l<a'T·OO CfflM!NAL t:NVESflGA;f()R 

OCfFT-CIO 00020207 LAW ENFORCfMENT 

FOR):NSIC SPECbl 

00028610 

OECA OCEFf.OU 

<l<a'T4:ID 

OW\ 

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OW\ OCEFT4:ID 

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E. O!'J(}Zl33761 CffiMINAliNVESTJGATOR QECA OfCA OCfFT.Q!) CRIMINAl WVESTIGATOR OfCA O<:fFT4:ID CRlMINAltNVESTIGAlDR OECA OC';:Ff--00 00028157 CRfMINAllNVESnGATOR OECA OCEFT-QO OOtl2{fflU ctUMWAt OECA 0002333776 CfUMtNALlNVEST!GAToR OECA ()002:335537.- CRtM1NAt 

OECA OECA 

OECA OCEFT-<:10 

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OECA 

OECA QCEFr.;<,:lil 

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OECA OECA OECA O<:EFT-o!} '"'"''"''" CRIMINA(lWESrtGATOR 1 

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oc:EFT..OO 0002802:7 CNMINALINVBTIGATOR 1 tE Personnel- t'lllCept-ed 

OfCA 

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35314.178

DECA OCEFT-tlD 

O£CA OCEfT.ao 

O£CA OCEI'T"""' 

ooc 

o<iC 

ooc O<WidHrtm.lhi 

ooc 

ooc 

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OGC LYMJ<<!i1y 

OGC 

o<iC Jo<CQfe """'"""""' 

OGC JohrtMkhaud 

OGC 

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ooc f(afynW~k! ooc KriS-taHI.lghe$ 

ooc Mo:oique: Patni% 

PoojaPartkh 

DIG Off~oftriveWga!~ ~£t»fid<ry OIG 

Offw::e Q'f I:N.rest!gatlons ..a.lan Hurrt5Jnger 

OlG 

OMS 10 Ken"""""" 

oMs 10 Marian: Cooper 

OMS ORBO Lynnaon Hltl::;hcns. 

OMS AAM/OA 't!K!tb!Jad':suri 

OMS 

MM/OA Gayle Jefferson 

()(l(Jp01993Z CIUMlNAt !NVESTfGATOR 

00002001 Actmg Deputy Assistant 1 

00003529 1 

00006264 l)Jrector:,ORBO 1 

00001164 At:tmgOlr~or .. OA 1 

00007016 Dtnodor,FMSV 1 

Hearing Prep 

Heating Prep 

case in judldal ad:imt. 

Ageot ta 1'£!:5pond to emerg:ent-Ies involving t.he safety of hurnarr !ife at 

m rx~v. ~the threat m human nr~~ property iS lmmlhent. 

case ln jud!clal action. 

¢1«ent to re:5pond to e:merger.c!es. involving the safety -of human fife()( t

of pr~, where the threat to human Jtre o.r property h> imminent, 0VI:1f~ agency shutdown and .s«:Ure o~s Assist Min ~ageocy-contingency piM 

Assist [)AA in managing agency shutdown aod OMM's excepted ac1:1vit

6v~ sh!Adown ufOA arnt~ fadlitie;s are $B;t.We 

Direct fad!!tle.s managemem: and se~ functions for Ager.ty and hea

facifttles 

35314.179

OMS ARM/OA Jon Ross 00028983 SMD 1 M<\npge d<.ty·to--day security operations functions for the Agency 

OARM/Cindnnati Rick .Carter 00025535 Director, 1 Oversee the orderly shutdown of OARM-Cl facilities including safety a

OMS operations 

DARM/Cirlcinnatt JRSmfth 00011006 SafetY and Occup Health OMS Manager 

OMS OARM/Cindnnati John Kappa 00022.267 Erwironment;;rl Scientist 

OMS OARM/Clndnnati Jerome Bonner 02333282: Din;ctor, HRMD 

--,---

OARM/RTP- Arron Helm 00002121 Director, OARM-RTP 1 Qyersee the orderly shutdown of RTP facilities inducting safety and se

OMS operations 

OMS OARM/RTP ShaWn Lafferty 00013446 Dlrect6r_,. FMSD-<RTP 

OARM/RTP Jeremy Taylor 00028858 Director, HRMD 1 Assist in orderty shutdown and provide HR support as required for OMS excepted/exempted employees 

ARM/0GO Denise Polk 00026884 Dlrector,O$:D 1 Assist lrtqrderly shutdown and gr;mts/!A l:ssues in Support of 

OMS corningency plan 

ARM/OGD MackZakikhanl 00007099 !TSpeclatis.t Oversee Critical lT Systems/Support for excepted and exempted empl

OMS (IGMS/NGGS) OMS ARM/OGD Tony Fournier 0002301.6 1 Provide Grant 

ARM/OAS Kimberly Patrick 000;19222 Director, OAS Oversee the orderly shutdO¥m and manage contracting activity lr1 sup

OMS OMS ARM/OAS 

OMS ARM/OAS Raoul Scott 

OM$ ARM/O!JS Keith Stewart 

ARM/OAS Victor Rodriguez 00003364 Supervisory IT 1 Oversee criti-cal IT systems/support for excepted and exempted emplo

OMS (EAS/!CMS} OMS Stefan Martiyan ()()(lSM07 Contracting Offker 1 AWard/Adr;Jln!stet ex;;,epted qnd exerrmied Corrtnict act!o:f}S OMS OMS AFM/OAS OMS ARM/OAS Claudia Armstrong 00021599 Contracting Officer 

OM& ARM/0J;1R Westey Carpenter Acting Director, OHR OMS ARM}OHR Jackie Shepherd 00010928 Director,. HR lTD 

O:EI/TO VaughnNoga 

OMS 

OH/10 Karen Maher 00006701 1 On call as needed to provide executive management and support for s

excepted activities. Available as: needed to handle SRO duties. 

OMS 

Sharon Robtnson 

OMS 

OE!/OE!P/ERFD MIChael Whfting 0000030759 Acting Division Director 1 On cal! as needed to provide management oversight and COTR suppo

Reg(l!ations.gov and FOfA0nHne which may tefl'lain in operations duri

OMS 

oMS·. 0£1/0IM/lf.;SB BiJan 02332732 

OE!/OfM/WCSD Michael Hessling 0000020049 !T Speclallst 1 Ofl call as needed to prov14e technXcal expertise for EPA web operatio

applicattons that support emergency response and disaster assistance

OMS 

35314.180

OE!/OffO/EHD Tim Thorpe 0000009095 mviskm Director 

OMS 

OEI/O!TO/EHD PeterBuch GD!T contractor-s 1 move from the 6oogfe Search Appliance to the Luddworks Search re_

OMS 

OEl/OITO/EHD Alison Shahan GDJT contractors 

OMS 

OE!/OlTO/DSSD Willie Abney 00006484 DesktOD Support 1 Moved ta excepted on 1/4/19 to address mission en tical systems issue

needed for HQ Desktop Services Support, and mission critical excepte<

ORO NRMRl Skender,John P. Faci!ities Manager {Ada} 1 ensure essential bul!ding functions for protection and maioten_al'irie of 

On Call to respond to emergency activities or conditions at aH NHEERL 

ORD NHEERL Cascm,Wayne 28409 Acting Director, NHEERL 1 could arise during a shutdown 

M<!intain the viabl 

ORO NH£ER,t Oai1e-y,Usa 10625 BioLogist 

Ensure essential building functions of HSF for protection and maintena

ORD NHEERL litt!e,AJbert 5772 Program Manager {Facilities) Communicate emergency/urgent for approved contract servfces from 

ORD NRMRL Soaek,laura 23002 Acting f?-ranch Chief (AWBERC 

ORO NRMRL GHI!land,Aiice 26425 De-puty Director for Man<!gE'n' 

ORO NRMRL MuHin, Cynthia S<:lrtkh 31238 Dlrettor 1 and research property 

Must come 1n at least weekly to meet EPA r<>gulatory requirements fo

waste management,and to meet NRC license requirements at certain t

on the shutdown. Le<Jd ORD H&S persort for al! of Clnclnnatl, on calf to 

necessa1y in event of fire, acddents, other legal requirements to ensu

ORO NRMRL E. 2DOD9 Chief, laboratory Support anc humilrl Hfe and federal property. 

ORO Christopher T 31383 Sdentist, WSD {Experimental· 1 of fish cultures at EXperimental Stream faci!lty .. P'ARTT!M

Randy Rev etta needs access to the T&t facil1ty to maintain the biotogk

bemg conducted there. The water ln the p1pe loops feeding the storag

ORD NRMRL Revetta,Randy 2333867 Microbiologist, WSD (AWBER( experiments must not he allowed to drain off In the event of? pump fORO NHSRC Sayle-s, Gregory 13405 Dltectof and f)!ICT ORO Rep 

ORD OAR$ Steenbock, John 33009 Director 

ORO Tolaymat, Tba:bet 8957 

assist in ordedy shutdown of lab activities/ensure protection of federa

ORD Nfl.MRl Weber, Josh 26492 facilities Manager (Cincinnati: and research property 

Malntel19,nce of ongoing studies that require monitoring which-if lost w

jeopardize years worth of data stud·{ findirrgs.. Action reqvired to 

ORD NRMRL Williams, Daniel j. 12:138 T er:hnician, WSD {AWB:ERC} 1 research property. 

Fe€ding, watering, and protection of greenhouse plant subject>. With

ORO NHEERL Bo!lman,M1ke 8015 Dio!ogist(Greenhouse) plants will die. Level of effort is approximately 2 hours per day. 

35314.181

ORO NHEE'RL JOhOson>Mai-k 30730 EcQ1t;>gist {Refrigerator and Frt 

ensure essential building fun(:tions for protection and maintenance of 

ORO NHEERL Knight, Primo E. 21654 Facility Operations Spedallst security during day at WED. (2 hour per day to check three buildings a

ORO NHEERL Rugh,BiH 8868' Biologist {Refrigerator and Fre 

Minimum maintenance of frogs being used in various laboratories (fee

m<llntain, etc.);wtH require up to 4 hours per day, 7 days per week to 

ORO NHEERl Ha.selman, Jonathan Thomas 2332585 Biologist 1 of the organisms. 

Miniffium 

ORO NHEfRl Hotkett,James R 8Z44 B!otoglst 

ORO NHEERl Kahl,Mike 9126 Biologist ORO NHEERL lahren, Tyler 8964 Chemist 

necessary to any remote alarms coming from sensors and monitors on 

ORO NHEERL MH!er,SamuefE. 19280 Aquati.c Blo!og1St 

ORO NHEERl WarhoL Stephanie 'l033 Progf?rn Ananlyst {Ait with W ORO NHEERl Whiteman, Frank 9008 

QRq OS1M 8934 

Laboratory experiment rvnnJng for the past 3 weeks and will wrap up 

ORO NCCT Deisenroth, Chad 23851 Prinl':[pallnvestigator 

ORO NHEERL Dye,Jan!ce ?4795 Biologist 

35314.182

the viability of cells necessary for ongoing cel1/culture resear

ORO NHEERL Freudenrlch, Theresa 14228 Biologist 1 maintain, etc.}. 

ORO NHEERi Gitbert,Mary 30518 Reseaith 61oiogfst 

Protect unique samples in the freezer and cell storage containers on th

in RTP. These samples r.an not be replaced. It is anticipated that her tim

hours in the event of a freez.er failure, and 1 hour every two weeks for 

ORO NHEERL Gleta Carswell 5360 Biologist 1 liquid nitrogen levels for cell preservation. 

ORO NHEERt Graff,Jaimie 2333769 lead Progra-rn Analyst {Anima 1 For protection of federal property 

Laboratory cultures growing for an experiment that cannot be left una

ORO NCCT Harrm, Joshua 2051 Prlncipallnvestigator 1 whole experiment will l,)e voided 

ORO NHEERl Hedge, Joan 2058 Biologist 1 

ORO NHEERL Karen 9052 Biologist 1 For protection of federal property 

Biologist 1 

ORO NHEERL Johnstone, Andrew 2333268 Biologist 1 Daily maintenance of existing ce!llir.es. 

ORO NHEERl Krantz, Quentin T, Bio!.ogls:t 1 

Manage Cell storage containers and dose animals for various studies. I

ORO NHEERL Lambr1ght, Christy Biologist 1 she wi!! be here 4··6 hours a day as needed for dosing animals. 

1hf!= bee-colonies require mainWnance ever.y, 

cleaning}. Since serious atlergk reactions can oo:;vr fr 

ORO NHEERL Lehmann, David Biologist 1 only per;>Oh authorized by Ag:ency management to maintain these coloORD NERL lewandowski,Michael Research Physical Scientist, f} 1 Shutdown of senistive !ab equipment to protect federal property (AQBORD NHfERL McDanle1,. Katherine B!o!ogi;;t 

Protect unique samples ln the freezer and cell storage ;;:ontainers on th

ln RTP and respond to scientific freezer failures. !t !s estimated that 

ne<:essary to remove samples to alternate freezers in the event of a fai

monitoring of freezers is needed as multiple alarm failures occur. Rece

process frozen sampl-es from <:ontrat;tor. Anticipated processing time 3

shipment Maintain liquid nitrogen Jeve!s for cell preservation. Up to 6

up to 7 days to process .and ship samples from experiments using uniqu

ORO NHEERL Mr.:Oona!d, Tony A, Research Physical Scientist 1 and and irreplaceable water concentrates 

ORO NHEERl Miller, Collette Biologist 1 mOnitoring of pregrtant animals 

35314.183

Protection of property. Protect unique samples in the freezer and eel! s

containers on the main campus in RTP.These samples can not be replac

anticipated that her time will be 2-4 hours in the event of a freezer failu

ORD NHEERL Moore, Tanya M. Biologist 1 f:':lfery two weeks for maintaining liquid nitrogen levels for cell preserva

Maintain tile viabilitjHn' Cells: necessary for ongoi;'lg ce!l/culture n:;seatc

ORO NH£Ef{t Nichols, Harriette 1 mi;iintain, etc.}. 

ORO IOAA Orme-Zavaleta, Jennifer Princip-al Deputy Assistant Ad oversee ORD shutdown operations; provide guidance to those engaged 

ORO NHE:ERJ;.· Padilla, StephanieJ. Reseafcfi'ToxiCologist 

Maintain the viability of cel!s necessary for ongoing cell/culture researc

ORO NHEER!.. Richardson, Vicki Biologist 1 maintain, etc.}. 

ORO IOAA Ro6b1ns, Christopher Deputy Admlnlstrat( 

ORD IOAA Rodan, Bruce Associate Director for Science oversee ORD shutdown operations; ptovide guidance to those engaged 

ORO NCCT Sams, Reeder Depu-ty Center Director 

Protect unique samples in the freezer and tell storage containers on th

in RTP and re;;pond to sclentlflc fJeezer failures. It Is estimated that 

necessary to remove samples to alternate freewrs in the event of a fail

monitoring of freezers is needed as multiple alarm failures occvr. Rece

process frozen samples from contractor. Ant1cfpatt;d processing time 3

shipment Maintain liquid nitrogen leVels for tell preservation. Up to 6

up to 7 days to process and ship samples from experiments using uniqu

ORO NHEERL Sey, Yusupha M. Biologist and and irreplaceable water concentrates 

ORO NHEERL Supervisory Biologist 

Laboratory experiment running and it would be a big loss of time and r

ORO NCCT Simmon:s,Steve Pdndpa! Investigator ORO NHEERL" Biologist ORO NHEERl Siologist Requires ctaHy care of the fish and multiple time points of analysis and 

ORp- NHEERl _Thomas1.Da\tidl Trixi"?fogl:st 

Protect unique samples in the free:wr and ceil storage containers on th

in RTP,These samples can not be i:s antiCipated that her tim

hours to the of a freezer failure, and i hour every two weeks for 

ORO NHHRl Wallace, Kathleen ,..,_, __ liquid nitrog-en tevels for cell preservation. OR!> NERL Watk:i11s:,_ Tim Acting btrectorr Natfonat txpc 

35314.184

ORO NHEERL Wo!f, CynthlaJ. ORO 0SlM Hamme-t Crqig P. ORO NHEERL Beddick, David 

ORO NHEfRL Dantin, Darrin 

ORO NHEEf\L Hankins (McGnl}, Cheryl J 

ORO NHEERL Harris, Peggy S. 

ORO NHEERL Moso, Hitabeth 

ORD NHEERL A.hJgren, R. 

ORO NHHRL Champlin, Denise M. 

ORO NHf:ERl Se;-bst,Jonathi.lnR. 

ORO NHEERL DeWitt, Theodore 

DRD NCEA Bahadori, Tlnil 

ORO JOAA Dunlap, David 

ORO OPARM SHzer,Stefan OLEM OAA/OPM OlEf\1 OM Ol£M OSRT!/10 Woolford, Jim OLEM Dana 

OSRTI/T!FSD/ERT·West Valdes, Dennisses 

OLEM 

OLE;M 05RT!/TlFS.D/ERT·East Greenberg. Man: 

OLEM OSRTl/TlFSD/ERT "Easi Burchetto:;,SeU<l 

OLEM OSRTl/TifSD/£RT Humphrey, Nan 

OLEM OSRT1/T1FSD/ERT-fast Kovak, Brian 

Dt€M OSRrt/T!FSJ)/ASB Sh<lriMyer 

05RT!/TIFSD/ASB 

OLEM OLEM OSRT!/T!FSD/ASB Moody, Brett 

OLEM OSRTI/TIFSD/ASB Taylor,Lucmda 

Biologist 

LAN Admln1st(at0r 

Acting, Health and Safety Spe1 

Fac11itie> Manager 

Biologist 

Biologtst 

BiDlogist 

Fad1ity OpaatiOfls SpedaHst < 

[lio!ogist (Alt. withJohnathan 

Biotoglst \Att. witft Denise Ch, 

Supervisory Research lifeSLiE 

Director, NCEA (locats; 

Deputy Assistant Administrate 

19580 Acting POAA 

20011 Senior Advisor 

00007694 Director 00007224 Deputy Director 

00001730 

00026258 ERT, Deputy Chlef East 

00005010 Biologist 00006331 f)jv,Sc.!entist 00004669 Erw.Sdentlst 

0002928'7 Chief,ASB 

00024989 Progr:amA11alyst 

02333197 Chemlsf 00018705 Program Analyst 

Maintain c.ryopreservation and culture of various types of human stem 

sphemids; ensr;re equipment areDperatmg properly and continuously

2 hours per day needed for basic maintenance." 

maintenance of ORO unique facility associated with coral culture and m

estimate of 2 to 3 ho!Jr:s per d<iy. Protection of federal property. 

Ensure proper care of the aquatic animals and ongoing experiments. e

hours/day. Also serves as alternate to Peggy Harris to maintain culture 

organisms. 

to emu:re essenttaf building functions 

assist In shutdown operations; needs to conduct buildmgi:heck 1 hour 

E'!nsures compliance with appli_cab!e 

oversee ORO shutdown operations; prov\de guidance. to those engaged 

oversee orderly shutdown of office attivitles. lf necessary provide appr

McCsfn for 

Assist with OLEM's excepted activities 

Assist with OLEM's, excepted af:tiv!tle.s 

Manage, Oversee, Coordinate Environmental Response Team 

Supervise orderty shutdown edisOn; Phone Duty hn 5 to Jan 11 

ERT SERASPO Edison, RTP, LV Phone Duty Dec, 11 tcrD& 

Phone Duty Dec 28 ttY Jan 4 

Technical direction for CLP CASC Laboratories ContracH.evel COR and Business Team lead, SMO C

CLP" lnt>rgi'!Olt Chemist 

SMOContract 

35314.185

OLEM 0SRT!/TIFSD/£RT-East Powell, Gregory 00013570 Env, Sdentist 1 Phone Duty Jan 11 to Jan 18 

OlEM OEM 8136 Offlce Director, OEM 1 Support excepted activities 

OlfM OEM 13169 Deputy Office Director l 5upport excepted activities 

OHM OEM Roache, Brendan 24582 Dlrector,RMD 

0-LEM OEM Hyman Moore, Julie 00024960 Deputy Div Director 

OEM lrlzarry,Gilberto 19983 Dlrector, PROD 1 Support excepted pctivities (Tito and Josh will be working alternate w

DiEM 

OLEM OEM 2Q525 Assoc. Dlrecto_r, PROD 

OEM 5274 Director, CMAD Manage capability/capacity to respond to environmental emergencie

OLEM field assets 

OLEM OEM 6£52 Branch Chief, P'ROO/ECR 1 5uppori; expe<:ted activities 

OEM 00026994 Branch Chlef, CMAD Manage capability and capadty to respond to environmental emerge

OLEM 

OLEM OEM Oh,Peter 00030170 Program Analyst 

OEM Thomas, Mark 16194 Environmental Scientist Prepared to ensure EPA is ready to respond to an environmental eme

otEM /ASPECT 

OEM Kaelin, tawrente 25253 Chemlst 

OlEM 

OEM Na!ipinski,Mike 000129-19 Assoc. Ofrector, CMAD 1 Manage capability and capacity to respond to env!ronrnental emerge

OlEM 

OlEM O<M ,f>tight,bavid 2334169 Chemist 

OtEM OfM Curry, Tim 15589 Environmental Engineer 

OlEM OEM Serre, Shannon 16942 EnVironmental Engineer After Hours. Watdl Qfflcer HQ Emergency Oper<>tions Center {12/l 1

OEM Fernandez, Roger 13:129 Envitonmenta! Protectwn l Daytime W<Jtch Officer HQ Emergency Operations Center {12/7, 12/1

OtEM Spedalist 

OLEM OEM Be-i!Siey,Craig EovirQ.m;neotalsdentist 1 After :Hour$ Wat-ch Ofih;e HQ ~mergeniy Operations Center (12/30- 

OEM After Hours Watch Officer HQ Emergency Operations Center (12/13 ·

OtEM Tarrab,Alan 2333491 1/10} 

OEM {Home offke! Daytime Watch Officer HQEme:rgency 0Perations. tentifr ~12/10 7 12/

Ol.EM OSCPP} Shelby, Andrew John 2.8262 PIJyslca!Sdenti:st 1 

OlEM OEM 2956 Program Analyst 1 

Ol.EM OEM 2332449 Program Analyst 1" 

DiEM OEM 2332343 

otEM 2S4;49 

OLEM OEM Abrams, Nam;y 14633 Program~ Anaiyst 1 After Hours Watch Office HQ Emergency Operations Center jl/3 7 1/9

OlEM 

Deputy Assistant 

ow OW/!0 

OW/10 

ow OW/!0 

ow OW/!0 2335(i06 Sc.len-ceAdvtsor Jo theM 

ow OW/tO}RMS Sharon Vazquez 00021497 Senior Budget Officer 1 nation's waters from any threats to public safety and health. 

35314.186

ow OW/OST/tO Deborah Nagle 0001352! Office D!rector 1 preparatiOn. 

Provide senior management oversight in shutting down Office operat

effident and timely manner and prov1de assistam;e: for h

OW OW/OWM/10 Andrew Sawyers 00033147 Office Director 1 preparation, 

Pn;wi 

effid 

ow OW/OWOW/!0 John Goodin 0001.1939 OtficeDlfector 1 prep: 

Provide senior management oversight in shutting down Office operati

effkient and timely manner ,and provide assistance for confirmation h

ow Jennifer Mclain 00001767 Deputy Office Director 1 preparatiolt ow Dayld Travers 00013i78: Dhtlslon Director 1 Respond to toe Water Desk issues_ needed. 

Region 1 Administrator site work is performed and oversee J1mited regional operations, 

ORA Douglas Gutro -00001259 Supervisory Publlc Affairs Worklng on exCepteclSuperhmd sites shutclqwn 

Region 1 Specialist 1 

ORC {i.irlDierke! 00004371 Regional Counse! 1\ssi:>t wlth any legal issues that arise on excepted matters, and coordi

Region1 1 

Region1 ORC Mari'Ste<n 00001209 1 To work on the US litigation, 

OARM Art Johnson 00001844 Assistant Regional To ensure i.\ny ARA and SRO are met. 

Region 1 Administrator 

OARM !an Epstein 00028846 Contracting Officer Working on excepted Superfund sites and exceptedccntra<:t attions (J

Regi{lnl shutdoJWn. 

OEME Troy Sullivan 00033499 HealthandSafetyOfficer Ensure that health and safety is maintained for <:1ny l-aboratory activitie

Region 1 excepted sites. 

Qfip- KenMoraff Office Director Alr and Office Director needed to asslt with judlcial deadlines a

RegiOrtl 

OEP JaneDownin.g 00001284 Supervisory £nvironmenta! 

Reglonl Engineer Fadlity. 

Karen McGuire 00005009 Deputy Director, OES EnfortementOffice D1r&tor needed to assist wlth judicia! deadHn17s a

Regkm 1 Region 1 OES Dianne Chabot 00001191 Regionl KanTham 00001680 Environmental Engineer 

Region 1 OES Audrey Zucker 00002.865 S.pvy Attomey··Adviser 

Attorney-Advise( 

Region 1 

DES Cay!e\gh Eddw dt 02334470 Attorney· Advisor CooordlnJte with headquarters to review/finalize draft order for Ft De

Region 1 f<lciliry. 

OES TaniaBi>rldrow1cz Q0003B11 Attomey-A.dv!sor 

Region 1 

DES Thomas0\1>Jier 00001306 Attom0J·Advisor AssistDOJ W!th court-ordered filing in R.M. Packer/Tisbury 

Region 1 1 pending in US District Court in Region 1 OSRR Elry.anOhon 00001500 Director, 05RR 1 Working on excepted Superfund siTes {lnly dUring shutdown< 

OSRR RobertCianciarufo 00001349 Supervisory, Environmental Working or1 !:'Xcepted Superfund Sites only during shutdown. 

Regionl Engineer 

35314.187

O>RR Margaret teshen 00003809 Working on excepted Superfund sites only during shutdown, 

Region! 1 

O>RR LynnDelgqdo 00001252 £nvlronmental Protection Working on excepted Superfund sites only during the shutdown. 

Region1 Specialist 

OSRR David Ledere-r 0000?439 

Region1 

O>RR Anni Loughlin 00001986 Supervisory Environmental Cooordinate with headqu;;Jrters to revlew/finalize draft order for Ft Dev

Region 1 Engineer 

05-R,R Gary Upson- 000031.$5 Environ-inerital Engineer 

(OSC) 

Regfori1 

OSRR Natalie McCLaine 00333359 Life Scientist [OSC) * On rotat(on- Duty Officer 1}8/19 • 1/15/19, Respond to emergencies

phone duty offker, responder and/or watch officer and arrange approp

responses to emergende;;. WiU also work on e

Regionl 1 Superfund sites during entire shutdown. 

OSRR Edward Satenas 0000209'2 

Regiont 

OSRR Thomas Condon 00001247 Environmental Scientist Working on excepted Superfund sites only during shutdown {Former To

Reg1on1 IOSC) 1 Removal Action). 

Karen Way 00007529 

Reglowi 

OSRR John McKeown 00005442 Envirortmentvl Scientist Working on excepted S-uperfund Sites only during shutdown {Formef A

Region2 CWD Ash, Christine 00031774 Supv Ufe Scientist 1 DeveJop briefing papers for the Deputy Administrator's confirmation heRegfan 2 CEPD Avlles,Jesse 000164£$ .Pt{yslcaf$clentlst 1 HurriCane Maria recovery efforts -fEMA MA 

ERf\D Bechtel, Jeff osc 1 Closser Oil Well Removal Action; AH Response Duty 12/28·31, Daytime 

Region2 00005534 2019 

DECA Sr;innlck, 02333-.551. llf&Sd€-ntist 

ERRD Bresclo, Mlchaet 00004194 osc 

ERRD 000<)4854 osc 

Region2 O>C 1 Orchard Street {PRP oversJght of a lead dean up of a res:identia! property

Region1 Chong, Margaret osc 1 AH Respons:eiitlt{l/1)/2019 

ORC DeLuca, Kathryn 02334087 Attorney 1 Provide support to Do.J to final ire totHng agreements with PRPs for the 

Region2 Superfund Site, to avoid the expiration of the statute of limitatio-ns. 

Chfefltrfo Resol)r:ces"M&t·· 

?r.arlCI"t 

DiGuan:lia, Lou O>C AH Response Duty 1/1" 7/2019, Removal Actions at Emmel!'s,Cinnamin.s

00002870 

CEPO 

Region Z ORC Jason 0233-3698 Attorney 

35314.188

ERRD Gaughan, D<Jn osc 1 Daytime REOC 12/31, 1/2-4/2019, Ga!a:..:ie Chemical Enforcement <Jnd 

Region 2 00031808 Activity \1/7/2019 -1/17/2019) Region 2 CEPD Guerrero, 023343l4 Director, CEPO 1 Hurricane n;jCO\Ief'{ F£MA MA 

ORC Hick, Patricia 0000283B Attorney 1 Support open crimfna1 cases with work de!iverab!es due to DOJ, schedu

Region 2 activities, to include grand jury and court actions. 

Region 2 ERRP Hrkzko, Bonnie 000043;14 osc 1 AH Phone Outy 1114-19/20:19 

Region 2 DESA Javier, Maria 00004231 Chemist Critical time samp 

DPM len, Ann,Heng 0{j03196S tndustri-<11 1 and Saf-ety 

ERRD Jimenez, Christopher osc 1 Daytime REOC 12/31, 1/2-4/2019; AH Phone Duty 1/7-14/2019, R9'Wi

Region 2 00004869 Regton 2 CEPD Kaa!und, Dni:s,e 00019575 Program Analyst 1 Maria recbv€ry efforts " FEMA MA Reglon2 

ERRD Kahn, Paul 00004516 Phy:sica! Scientist (OSC) 1 Respond to Milt Orook Oil Site E19Z01 to rep-lace oil booms protecting M

DPM Alt;xlda 

000l9716/000 Superv Budl!;et Anal"{5t/Supv 1 Provide flnanq;, payroll and budgetsupp01t Reg!On 2 2:1462 Accoontant 

Regh;:m2 

ERRD Kish, Terry 00027694 osc 1 Pioneer Metal \1/7/19- 1/19/19] (Continuation of-on-going removal ac

Rf:gkm 2 DESA Leung-Fofch, Chrhtina 00020980 Physlcal5dentlst 1 laboratory excepted site Reeion2 ERRO liskhenkc, Peter 02334714 osc 

Region l OM Lopez, Peter 0133548& RA 

ERRD Lu<.arino,Kelli osc AH Phone Duty M\U Brook OH 01/02/19, 01/08/19, 01/15/19

Region2 00024624 

OPM Manna, Rich 00002778 

Assistant 

Oversee Shutdown, exempt &excepted activities. Administrator 

Reglon2 OPM Marcmkiew1cz, Marek 02335486 !TSpeciahst !T support for excepted activitieS 

ERRO Mc&wry, Cwrtnev 00003611 Chief, Program Svpport 1 Support (or €XH!pted acth/ities, as needed REgion 2 Branch 

Region2 ORA Mugdan,Walter 00002084 ORA 1 Oversee Shutdown , exempt&. excepted activities 

Region£ (RRD Petty, Joe! osc 1 Daytime REOC DJJtY 

Region 2 ERFl.O Reddy,A<Irti 00011798 osc 

Reglm12 ERRD Richards, sandy N335138 osc 

Region 2 OESA Rickert, Bill Phy:sieaiSdentist 1 Critical time sample analysis for Tonawanda Coke site 

Reglon 2. ERRD Rosoff, David osc 1 AH Response Duty Region 2 DESA 00023318 Physical Scientist 

Region 2 DCS.A OOO(i1837 Scientist Region 2 ERRD Staiger, Kimberly 00021335 osc Rt;gion Z DESA 1rivedf, Mehui 01.3346H Chemist 

fRRD Truono,Mari:ssa 000048:61 osc 1 Ga!axie Chemical Enfortement Activity 1/2/19 1/17/19 {Assumes a Wa

issue so we can obtain a<.cess to the site.) 

Rei:fori 2 CEPD \le!ez,HeCtor 00011ZSO Lei.d Generaf Attorney 1 Hurricane Marla recovery fEMAMA 

Region2 

CWO Vida, Stephen 00001458 Supv Environmental Engineer 1 Develop brieffng papers for the Deputy Administrator's confirmation he

g:ton 2 

ORC Wieder, Marl 

RA Cosrno Servdia 25472 Regional Administrator Region 3 shutdown. 

Region 3 RA Jen!ferFie!ds 2335516 Ch!efofStaff 1 Pro.,...ide RA SuPport as polnt of cOntact during 5hutdown. 

RA Cecil Rodrigues 2618 Deputy Back up for overall shutdown and secure operations. R3 point of conta

Region 3 Administrator during 

35314.189

Oversee shutdown and secure operations, 

OPM DianaEsher 11175 Assistant Regional 1 support during shutdown (eg, communica1 Admlnitrator status and emergency resources aS neef.ied}. 

Region 3 

Provide support and backup for security, fad!ities, and other administra

OPM John Krakowlak 5361 Deputy Assistant Regional emergency needs, (l'hysltal!y checking Phifadelphia office on 1/9/2019

Administrator 

Region3 

Region3 

BA Satrina Jones 23345?7 

Region3 OPM Geraud Volk 4311 Regional Office facility Mana€ Region3 OPM Jeff Dodd 2$58 ESC Facility Managet 

EA!D JenFu!ton Wheeling Office Manager 

OPM JohnRobb 5102 Contracts Officer OPM Jim Clark 6099 1 Contracts Split Duty Between 2 Contract Officers {1/7 to 1/31OPM UsaWhlte 6211 1 Manage, support apProve and issues 

DanaAunkst 

2:335741 

Director Chesapeake Bay Pro€ 1 Support Acting Administraotr Wheeler's Confirmation Hearing by provi

Region3 information on Chesapeake Bay Program. 

CBPO JamesEd;Nard j)eplJtY ""-" 04766 Program 

Regicn3 

Region3 CBPO Rebecca Hlndin 25060 CBPO Facility Manager 

Region3 ORC M,;>ryCoe "3265 Regional Counsel 

DRC Andy Goldman 6137 Attorney Advisor 1 Emergency Access legaf Specialist Magnpte Court Date is .January 18 in 

Region 3 Preparation and Travel will be required 

EA!D Cynthia Caporale 6HB Associate Director, OASM 1 Manage-shutdown of of Ana!ysltCal and QuaDty Assuranc

Regjon3 Region3 EAlD Robin Costas 6820 Chemist 

RegJon3 EAJD 2333700 CheJni$t 1 EPA L?b analyses;_ Standard Chlorine Tier 2 Slte 

£AID 24272 Biologist 1 EPA Lab anatyses: Peer Review;. Standard Chlorine Tier 2 Site 

EArO Adam Molnar 32385 Chemist 1 Organi( anafysis and peet TiJ:!r 1 $ites 

Region3-

EAID Jarmae! Burman 32340 CLP.P.O. 1 Manage outside contract labs analyzing samples for Excepted Tlet 1 ;:m

Region3 EAlD -ESAT P.O. 

Region3 HSCD Paul leonard 5186 

HSCD Kevih Boyd Slf.iB 

Region 3 HSCD JohnEpps 28093 Att!ng AD, Remedial 

Hsi:D 62!!4 osc 

Res:ponse05C {12/28/18 1/17/19); OSC for Excepted Tier 1 Sites {Big 

HSCD Myles Bartos 21341 osc 

HSCD RkhRupert 11649 osc 

35314.190

HSCD Dominic Ventura 22562 OS( Night/O<:Jy Phone Duty: (l/11/19-1/17/19) Respons.e OSC !12!28/18 

Region3 for [}(Cepted Tier 1 Sites (Big John Salva,ge t~nd 8aghurst) Backup Phon

HSCD 

Regktn3 

Christine Wagner 5998 osc 1 RespOnse qsc fl/4/19'- 1/31/19); osc fQr Excepted ner l sues {BlgJo

Region3 

HSCO NeeraJ Sharma 3350 osc 1 Back Up Phone Coverage 12

HSCD 

Region 3 

Dennis Matlock osc ' Back Up- Phone -Coverage 1

Provides support on contracts for rem ova! actions, Support R9 Deploye

HSCO JackieWiHiams 5640 EPS 1 needed, Participates !n Wildfire Resource calls if R9 holds them. Calls f

Region3 prepares volunteers for deployment. 

Region3 

ORC Warren (M~utin/ Harrell 9018 Attorney Advisor 

Region 3 

- ---Provide ~Exewtlve M;;nagement for a~l Region A ~_xcepted ~~lvlt1~es Region4 

OFFICE OF REG10NAL Provide txecutive M<.~nag~ment support for a!! Region 4 Shutdown ;;~cti

ADMINISTRATOR (ORA) Blake Ashbee 2335498 Chlefof5taff 

Region4 

GULF OF MEXKO 

JertyBlnnlnger 00009633 £nvironmenta! Specialist 1 HR/Fhand;lll/ COOP/Emergency iS51:lt;$.~ (tioties shared with oth~r staff

Region4 PROGMM (GOMP} 

OFFICE OF POUCY & Provide £xewtive Man;;~gement for a!! Regfon 4 OPM activities during O

MANAGEMENT (OPM} Keith Milts OC0093B8 Acting ARA/SRO Shutdown, {Duties sh;;~red with other staff) 

Regl0n4 

OFFICE Of POLICY & Recovery effort-s on Florida Hurricanes 

MAIIIAGEMEN} (OP'M) Rh.:kDurbrow 00009969 Progmm Analyst 

Region4 

AlR, PESTICIDES, & Co!lett RadNet Samples near site of upcoming SuperBowL 

TOXK.:S MANAGEMENT Lloyd Genrette D!VJS!ON {APT MD) 00009273 fnvlrornnental Scientist 

Region 4 

AIR, PESHCJD£5, & Jmpt)(+Jfxport- Pestlddes- FIFRA~ {t:utles: shared with-Dth~r staff} 

Kimberly Bineham 00009708 Settlon Chief 

Region4 

OFt!CE Of REGiONAL Suzanne Rubini 00002863 Deputy Regional Counse! Oversee shutdown and secure activities. Provide management direction 

ReglonLI COUNSEL \ORC) 

OFffCE Of REGIONAL LeifPalmer 00017417 Regional Counsel Regiof14 COUNSEL {ORC} 

OfHC£ OF REGiONAL 

Jennifer!.ewis 00{]14102 Attorney Advisor COUNSE.l{ORq other staff) 

Weekly ';'lS!ts to ensure instruments are not ma1functionfng ur twining o

1)0(]23066 Chemist 

Re:glon4 

SCIENCE & ECOSYSl EM Ensure continw~d viability of liw~ organisms which requires bccasiona! V

SUPPORT DIVISION 

Sue Dye {SESD) 00028625 UfeSdentist 

Reglon4 

35314.191

SCIENCE & ECOSVSTEM Manilge FacUlties by providing security/safety in those JocatioM <Jnd s

SUPPORT D!VJStON 

Hunter Johns-on 00028122 Chief, Program Support R.esporJ<J: to any buitding. issue that may arise during a 

{SfSD) Section 

Reglon4 

WATER PR,OTELTION Recovery efforts of'! Florida Hurricanes 

D!V!SlON (WPD) Bryan Hummel 02134827 UfeScientist 

Region4 

SIJPERFUND {SF) Franklin Hill 00013'941 1 Provide Executive Mi:tnagement for Region 4 Superfund ExcePtect a

Region4 $hared With other staff} 

SUPERFUND (SF} Emergency Response, Emergem;;y Response and Removal Manager- Oversee shutdown, sec

James Webster 20738 Removal and Prevemlon 1 and provfde management of the Superfund Program as necessary 

Region4 Branch Chief 

{SF) Dora Ann Johnson 00013786 E-nvironmental Engineer 

SUPERFUND (SF) Brian Englert 00026007 PhysicalScientis.t(OSC} l Emergency Response Duty, TELEDUTY"' DEC 14-16; R2"' DEC 17 -23; 

Region4 

SliP£RfUND (SF) ! erry Tanner 00013610 Environmental Sdentist 1 Emefger0{ Duty, :DEC 7 ·9 Region4 

SUPERFUND {SF) Jordan Garra>d 00025447 Physical" Scientist {OSC} l Emergency Response Duty, TELEDUTY"' DEC 7-9; RZ ""DEC 1(}.16; Rl

Region4 

SUPERFUND (SF} Richard Jardine 00005015 Physka! 1 Emerg;!Dcy Response Outy/TEu;oUrv"' DEC 17-23; R2"' DEC 14-30 Regton4 SUPERFUND {SF) Greg Harper 00032238 Environmental Scientist 1 EmeJgency Response Duty, TELEDUTY =DEC 10-13 Region4 (OSC) SUPERFUND {SF} Kevin Eichinger 1 TELEDUrY =DEC 24 Region4 SUPERFUND (SF) CarterWHHams-on 00003850 Envitonrnentai SdBntist Emergency Response Duty, R2"' DEC 7-9; ftl =DEC 10,16 

Region4 (OSC) 

SUPERFUND {SF} Ben Franco 00019641 Environmeotaf Scientist 1 Emergency Response Duty Region:4 (OS<) 

SUPERFUND {Sf) CraigZeHer 00016098 Environmental Scientist 1 Mississippi Phosphate Time Critical Response Anion OSC Region 4 (OSC) 

OF REGIONAL Acting Administrator Wheeler's. (D

AQ!VI)NIS-iRATOR {ORA} BfandJ Jenkins 00021994 

Region4 

OFFICE OF POllCY AND 

MANAGEMENT (OPM} Andrea Anderson 00016633 

Office of Regional James Payne 2333743 

RegionS Administrator 

233:5586 

Regiofis 

RMD Chery! Newton 16283 Assistant Regional 

RegionS Adminfs.tn>tor 

RMO 11461 

Region 5 

Offlce of Regional FeHdaWiHiams 12055 Reglonat Adm!nis.trator 1 Assist RA/DRA/Cos/ARA 

Region 5 Administrator Assistant 

35314.192

SFD Torn Short 11577 Acting Supefund Division t P;:uticip<ltes in HQ··!ed calls regarding eva!uating/adjustlngSF sites amo

Reglan 5 Director 

SFD Jeffery Upppert 30134 osc 1 Phone duty officer after hours and weekends 1/1/19-1/24/19. WiU alt

responsibi!lties during the shut·down among these three individuals du

period. Only ane individual at a time wH! be on excepted duty. (Duties 

RegionS other staff} 

SFD Brian Kelty 21456 osc 

Region" 

SFD Robert Kondreck 2334766 DSC t Emergency Response Assessment~ Western RS 1/7/19-1/24/19. Will a

res:ponslb1Htles during the shut~down among these three individuals du

period. On!y one individual at a time will be on excepted duty. (Duties 

Region 5 other staff) 

SFD Kevln Turner 11339 osc 

RegionS 

Region 5 SFD Ralph Do!lhopf 12855 osc t Overseeing emergency response action of oH spiH lnto Traverse Bay ML 

Region 5 RMD AAB Thomas Harrison 12077 Lead Contract SpedaHst 1 1 o assist the Superfund remedfaf program when needed with contract s

RegionS RMD !MB Edward McClendnn 11712 1 Keep !T systems and :servers running: Dl/07/2019- 01/11/19 

Safety & Occupational Health 

Region 5 RMDIDESB John Glover :11876 Officer 

Funds control fot excepted staff. Kesha and StE 

RegionS RMO-CB Kesha Watson 12387 Lead Budget Analyst 1 the shut-down, {Duties shared with other st<.lff) Co!!e~:t. ethylene oxid€ rno01todng data ifl Willowbrook for 35 hrs, on tw

Reglon 5 ARD··AMA$ Mkh.ae! DJmpher 14.952 Section Chief 1 three days during shutdown 

A1r Monitoring CoHect ethylene oxide monitoring data In Wi!1owbrook for 3,5 hrs. on tw

RegionS ARD-AMA5 Carrie Cummings 2335898 £r1gine-er/Sc1entl~t t three days during shutdown 

Region 5 LCD OavidStar 14433 Sectlmlchief 

This ls for the n<Jrrow purpose of working with DOJ on the Dearborn sit

matter {as indkated by DOJ/ due to statute of limitations concerns. Thd

will discuss aspects of the government's position with regard to settlem

condition:;:, in order to allow DOJ to further engage with the PRP in the m

extending the existing tol!ing agreement. We expect EPA's staffto be re

the excepted list after these lnt€ma! cliscussions. 

Region 5 ORC Brain Kelly 21456 Attorney 

Regions ORC Richard Cfaritlo 11825 Attorney 

35314.193

This is for the narrow purpose of working with DOl on the Dearborn sit

matter (as indicated by DOJ) due to statute of limitations concerns. Th

wll! discuss aspects of the government's position with regard to settlem

conditions, in order to allow DOJ to further engage with the PRP in the 

extending the existing tolling agreement. We expect EPA's staff to be r

the e:.::cepted list after these internal discussions. 

Reglon6 

DRA 001victGray 14080 Dep. Regional Administrator 1 Provide support to the RA ln operations 

Regiorr6 MD 1<~mes Mcoona!d 20559 ARA 1 Support Jogi£tics/safetyjsecu)ity 

Region& MO.CP Cora Stanley 14029 Contracting Officer Excepted list ;1nd unplanned contracts/oversee shutdown of contracts 

Region$- MO~OE SamA!aw :14837 IT ~Specf~ist 1 lT Support an~d Operatlqns 

Jiegion6 ORC Ben Harrison 14072 Acting Regjona! Counsel 1 Oversee !egallssues 

RegionS Amy Salinas :1,473D Attorney 1 lftlgatlon:~D€tek toghtics COiJ:rt-on;f€red dt;:adline 

Region 6 MM George Brozowski 3711 R<ul Expert 1 Radiology Expert 

RegionS SF Carl:Ed!t;nd 7225 SF Div Director 

Region 6 SF Anthony Talton 14531 Man<Jger 1 Oversee Superfund budget/contracts 

Regiort6: SF John Martin 14368 osc 1 Oversee Em_ergeh:cy ResponSe at *he HDOvie Site in Leonard, TX 

Region6 SF Courtney \Paige) Delgado 29069 osc 1 Oversee Emergency Response at the FJ Doyle Site in Leonard, TX 

Region 6 SF Gary Moore 15010 

Region& SF Mlke McAteer 12408 osc 

Region6 

SF Gary Moore 15010 osc 1 Ovimiee Time CritiCal Ri;mOya( .it the Brqw.n Tree Servkes:}Trafaigar ir\ B

Region& SF JonRa.uscher 15081 To;dcologist 1 Oversee Time Critical Removal at the Brown Tree Services/Trafalgar in D

Region& 

SF PhHTumer ToxicologiSt 

Region 6 WQ Charles Maguire 2335748 WQDD 

Reg!onfi, WQ Marl$ Martinez 14720 Water Quality 

Region£ RC David K Jones 14064 Attorney 

Regif,ln-6 SF WarrenZ~h!ler 14$98- osc 1 Oversee J:rnergem;y~Risponsj! pt HP Gas Cyllnders siteJn B~own, TX 

Region6 MM Kristin Dunbar 27133 F!FRA 

Reglofl& Border ~Carlos Rirycon 25320 Manager 

WJ!!!.am E LaBombard 30073 SF Project Officer 

JimGul!!ford 

Region? 

Office of the Regional fdChu Depvty Regional 

Region 7 Administrator Administrator 

Reg16n7 Btin Krehbiel ~000529.t1 Office of Polley & Donald Denno Acquisition Management Reglon7 Managememt 02332387 Branch Chief excepted/exempt activities 

leslie Humphrey 00015716 Acting Regional CounSel 1 LegatSvpport 

35314.194 Sup~rfund Ken Buchholz 

Assmt. Emergency Response 1 Manager overseeing Emergency Response I Rotation for Call line and 

Region7 00016088 & Removal Branch Chief well as exempted site work. (Tier 1) 

Region 7 Sufierfund Joe-Davis- 00015823 osc 1 Night Phone IJO, Day phone DO, Responder, US Tech removal 

Region 7 Supertur~d J. He.athSmith 00014271 osc 1 Night Phone 00, Spod.an removal, SW Jefferson County 

Regior\7 Superfund EricNold 00016131 osc 1 responder, day phone DO 

Region 7 Superfund Susan Fisher 00015192 osc 1 day/night DO 

RetJonJ Superfund Megan Schuette ClOOZ822.3 osc l Carter Carbure-tor 1 "'Stlouis; ftier :n 

Newton County Mines. Todd will reach out to START to authorize them 

Superfund Todd Campbell osc 1 the 9 post treatment samples and send to the Clfi !<Jh. This is to ensure 

Region 7 00026280 still contaminated. Super~und Rernediaf Brandl Chief 1 Manager ;.overstte of Tier 1 site~s Remedial and contact for Cfebum site 

Region 7 00030044 81evato~ {Tier 1} 

Superfund Kevin Cashion Field Tech 1 On·going Lead Cleanup (Tier 1} Big River Remedial, SW Jefferson Co Re

Region 7 02332511 Washington Co Remedial 

Re!;lon7 S4~Und St,eveKemp 00029993 RPM 1 Oil, going Lead Cleanup (Tier 1) Oronogo Remedial, Cherokee~ County R

Water,Wetlandsand Mary Tietjen,Mmdrup Drinking Water Management restiddesDivision Branch Chief Region 7 00015625 Drinking Water Infrastructure Response 

Regions 02335487 shutdown. 

ORA Debrah Thomas 00017813 Deputy Reglona.l 1 Oversee shutdown and sewre operatlon5, Oversee excepted activities d

RegionS Administr11tor shutdown. 

TMS Richard Buhl 02332235 AsstistantRegi Oversee shutdown and secure operations. Oversee security, facility, ot

0002.0463 Administ! t~tor I SRO 1 support during shutdown {eg, communlcatifl€ to HQjguards/employee

Stlltus and emergency resources as needed). (Duties shared with other 

RegionS 

TMS Grace Doris 00016549 Security Manager 

Reglon8 

TMS Regional Contracts Officer Halt obllgations; perform shutdown notification to aH contractors. !n em

Region8 8ethanyTmer 00033623 

JohnMichnick 00012958 

RegionS Program 

TMS Ricky Archuleta 00016532 !nf.ormatiotl Systems 1 Support personnel with fT systems {emaif, database servers, user accou

Reg~onB Program 

RegionS ORC Kenneth Schefskl 00016917 Regional Crnmsel 1 Cancel/continue wurt dates, .:Jngcint litigation, if needed, 

awe U:sa IG:!hn 0000271.0 Dir.ect !mp!ementation Answer phone calls from WY & tribal DW svstems wlth fecal or othe( ex

Manager for WY & Tribal 1 providing guidance & technical ass1stance if emergency. Coordinate ac

Reg1011 8 drinking water others as r1eeded. 

EPR BetsY Smldinger 00005151 ARA o, 

1 st;; 

Regiofl8 shutdown. 

RegionS ''" 02335096 Standby/On Call OSC Response OSC- Available to respond to emergency waste events Region8 EPR 00021692 

35314.195

RegionS EPR Rebt"ccaGeyer 00027371 

Region8 EPR 00016564 EPS 

EPR Richard Braun 00031917 ContractsSpedallst 1 Project Officer for interagency Agreements EPR 00016764 Program Analyst 1 FCO 

RegionS EPR Joyce Ackerman 

Region8 EPR Sabrina Forrest 

Regior18 EPR Craig Myers 1 Captain Jack and Nelson Tunnel Tier! Superfund sites 

EPR Steven Wharton 

1 RegionS Scientist Captain Jack Tier 1 Supf!rfun:d Site 

EPR Kerry Guy 00016626 Environmental Engineer Bonita Peaks Mining District- Gladstone Water Treatment Pla11t and C

ReglonB 1 Superfund Sites 

RegionS EPR Joy Jenkins 00031586 1 Captain Jack Tier 1 Superfund Site 

EPR Antonia Artemis. 00015550 

1 Region a deployment YUTU and CA Fites 

ECE! Lauren Hammond 0002332$76 Attorney 

excepted position 

ORA Deborah Jordan 00015554 Deputy Regif.ma! 1 Oveq;ee R9 shutdown and excepted operations 

Region9 Administrator 

RegionS lt;tD John McCarroll 5)0017710 Supervisory EPS 1 Support excepted activities for TyPhoon Yutt.L 

EMD-1 Kerry Drake 00021254 Assistant Regionaf 1 Oversee R9 shutdown and excepted operations Region9 Administrator 

EM0-3-1 Peter Husby Reglbna! Laboratory Director 1 Orderly ShutdoWn of critical analys.isjsectii'ing tabRegion9 

Region9 EMD-4-1 Henedina (Dlnajlacinto 1 Provide travel support to excepted activities Region9 EMD-4-2 Vivianti 1 budget support f{'Jf CJ«:fipted activities 

Reglon9 EMD-4-2 1 hmd excepted activities 

EMD-5-<2 network support and seCure !J property during shutdown/e-xc

jon9 

Region9 EMD·S·1 RichardMarttn 00017804 !fSpeciaJist 

Region9 EMD-5-1 Angeta Hlarf-Lee 00012351, !TSpedalist 

EMD-5-3 Diana Uribe 00018201 Physical Security Specialist 1 Manage facilities by providing security/safety and managing and secu

fM0$--2 Rona1dSinl1:h 1 Provide contracting suppOrt for eXcePted a-ctivities 

RegionS SFD-1 Enrique Manzani!la 1 Shutdown Management/ 

Russell Mechem 

$f John-Tinger 

SFD SFD 9-3 Thomar. J. Dunkelman, Chris 00003734, Environmental Scientist 1 ER Response Duty 

Reglon9 Reiner (OSC) 

SFD-9;4 Hin'ryLAI!en, Bretc. EnvJrl)Ofi'\enta! 1 ER Phone Duty 

Reglon 9 MOJtfey Scientist 

35314.196

WlR-3·1 

Region9 

l{eglon9 AIR 

Region9 

ENF 

Regton9 Reglon9 ORC 

ORC 

Reglon9 

ORC 

ORC 

Region9 ORC Regiot19 ORC: Re.gion9 

Region9 

{FlR£ & YU Region9 SFD 9--2 

Region 9 (FlRE & VU 

Re.gionSSFD-9--2 

Region 9 \Ftfl.E & YU Region 9 WD 

Region 9 {FIRE & YU 

Region 9 {FIRE & YU 

Region 9 (FJRE & YU Region 9 SFO 

Region 9 {f1RE & YU !!SF!l 9-2 Region 9 {FIRE & YU Regton9 OPA-3 

Region 9 SFD 7·5 

Region 9 {FJRE & YU Region 9 

Region 9 {f!RE & YU Region 9 Regioo9 (HHE & YU Region 9 

Regi0r'l9 

Region9 

COlineu 

LatJralawrente 

JaniceWittul 

AUis.on Watanabe 

Sylvia Quast 

Gretchen Suste1ud 

Jefferson Wehling 

Janet Magnuson 

Anabel Yo·Eco 

Artdrew:Bain Andrew HelM linger 

Barbara lee Barbara tee 

Becky Mitsche!e 

Sin Jones 

BretMox!ey 

Ch1 \Stopher Myers 

Craig Whitenack 

Steiner 

Rojas-Mlcketson 

Dana Barton 

l);u1ietMeer 

Dean Higuchi Eric Canteenwaiia 

GraceMa 

HarryAHen 

HowardKahari 

Jotmlyons 

Jeff Woodlee 

KarlyHo 

00018337 0233lQ83 

00021874 

00020713 00033904 

00029333 

00022400 OOOU;t71 00016038 

17449 

00017£14 

18431 

00018431 

2335964 

000:191:41 

00018005 

'00029321) 

17507 

00018475 

00183JE 

2332397 

7524 

31645 

15849 

00017866 

00017768 

00017490 

Manager, DrinkmgWater ManagementSectlon Physica!Sdentist 

Environmental 

Speciahst 

Regional Counsel 

Deputy Regional Counsel 

Attorney AdVISOr 

Attorney Advisor Attorney Advisor 

Attorney Advisor 

Attorney Adv150r Attorney AdVisor Attomey 

Provide technical asslstanw to emergency response StJff to assure drin

security for tribes & coordination with State Drinking Water Programs 

Court-ordered deadline. 

Administrative trial fiHng dea:dflne. FJFM import contact f9r (:SP. 

Issues. 

Administrative tria! filing deadline. 

Court-ordered deadline. 

Administrative tria! fi!ing deadllne. 

Crimin!ll Enfon.:emertttrJaf deadline. 

Court-ordered status conference 

Adminbtrative trial Hlingde:ad!!ne. 

f!RE and YUTU EXCEPT£'ba!td LIST 

F!RE and YUTU EXCEPTED andON..CALL US.r 

F!R£ and YUTU QN .. ·tAll (.!Sf 

f!Rf and YUTU fXCf;PTED and ON--CALL UST f!RE and YVTU EXctrn;o and ON<Alt UST FIRE andYUTV EXCEPTED and ON-CAll U$1 

f'JRE ;o.md YUTU EXCEPTED and ON..CALL UST 

fiR€ and YU1U EXCEJ•TED)·md 0N-(AU, tJST flRE and YUTU EXCEPTED and ON-(ALL UST 

FlR£ and YUTU EXCEPTED: and ON"CALL U&T 

flRE and YUfU EXCEPTED and ON...CAll UST 

FIRE and VUTU EXCEPTED andON--CAU UST 

fiRE and 'fUl U EXCEPTED and ON-CALL UST 

F!RE and YUTU EXCEPTED and ON-CALL t 1ST FIRE and YUTU EXCEPTED and ON-CAlL liST 

35314.197

Region 9 {FIRE & YU KevmRyan 

Region 9 {FIRE & YU K<Jr!flanks 

Region 9 (FIRE & YU Region 9 SFD 9-3 Kathryn{Kay)Lawrence 

Region 9 (FIRE & YU Region 9SFD 9-3 Lance Rkhman 

Reg1on 9 {FIRE & YU Region 9 SFD 9 lynn Keller 

Region9SFD Margot Peret-sunivan 

Maria Soledad Ca!vino MarkSamoi!s 

Mary Matthews 

Michelle Rogow 

MindyC!ements 

Olivia TrOrnbadore 

Region 9\FJRE & YU Region 9SFO 7"1 Patricia Bowlin 

{FIRE & YU RegionS SFD 6-1 P'eterGtda 

Region 9 {FIRE & YU Region 9 SFD·l PhilipKum 

Region 9 {FIRE & YU Region 9 SFD 9-4 RamonAfbizu 

Region 9 {FIRE & YU Region 9 SFD Rich Hiett 

Region :9 (FIRE & Yl,J Region 9 Rtch¥d Ftands 

Robert Wise Rusty Harris-Bishop Fred Stroud Henry Gerard 

Region 9 (FlRE & YU ERT Alam Fr6df!rique Region- 9 {FIRE & YU ERT Joseph Bunclens 

Region 9\F!RE & YU CMAD Leroy Mickelsen 

Region9 (FIRE & YU Regioo 1 r ony Honnemo 

Region 9 (FIRE & YU Region l Alex Sherrin 

Regjbn 9 (FiRE & YV RegJQn 1 DatrielsWatts 

Region2 Greg DeAngelis 

Region2 Carl Pe!egrinu 

Region 9 (FIRE & YU Region 2 Cecilia Echols 

Region9 {FfR:E & YU Chris D'OnofrioRegion 9 {FIRE & YU Region 2 KelthG!enn 

Region 9 {FIRE & YU Region 2 Shawna Hoppe 

KelliLucarina 

Keith-Glenn 

Chadie Fitzsimmons 

J;;mes Wrlg_ht 

Fe!idaFred 

Jessk;aDulfy 

fia Hodoh 

Pfirry Gaughan 

TerryStilman 

00016900 

00013292 000078-11 

00017091 

2332624 

22075 

00016755 

0000312:2 

0025576 

00030013 

17960 

2334890 

0011449 

00012637 

0030573 

00027:.?55 

25391 

00033773 

0021755 

00010674 

2335963 

0003734 

30211 

U0010164 

23168 

2:}32613 

'00005409 '00004593 '00004774 '00005565 

FJRE and YUTU EXCEPTED and ON-CALL LIST 

FJRE and YUTU EXCEPTED and ON-CALl liST 

FJRE and YUTU EXCEPTED and ON-CALl UST 

and YUTU EXCEPTED :;md 014-CP.LLUST 

FIRE and YUTU EXCEPTED and ON-CAUUST 

FIRE and Yl,ITU EXCEPTED and Of'.f-CALl LIST 

FlRE and YUTU EXCEPTED and ON·CAU UST 

FIRE and YUTU :EXCEPTED and ON-CALL UST 

F!RE and YUTU EXCEPTED and ON·CALt LIST 

FIRE and YUTU EXCEPTED and ON-CALl. UST FlRE :md YUTU EXCEPTED and ON-CALL LIST 

FIRE and YlffU EXCEPTED- <lim ON-CAL!..lJST 

fiRE and YUTU EXCEPTED- and ON-CALL LIST 

F1R£ and YUTU EXCEPTED aryd ON-CAtl LIST FIRE and YUTU EXCEPTED and UST 

HRE and YUTU EXCEPTEtf and ON-CALL LIST FJRE and YUTU EXCEPTED and ON-CALL UST 

FtRE and YUTlJ £XC£# TED and ON-CALL USt F!R£ and YUW EXCEP!ED and ON·CALL UST FIRE and YUfU <Jnd UST 

F!R€ and YUTU EXCE"PTH.'Yiin;d O"fH.:ALUtsT 

35314.198

Region 9 {HRE & YU Region S HerlbertoLeon Region 9 {FIRE & YU Region 5 JasonSewel! 

Region 9 {FIRE & YU fl:egion 5 KelthFusinsk! 

Region 9 (F!RE & YU Region 5 Safakas 

Region 9 (FIRS & YU Region 5 Pk<ulRvesch 

Ramon Mendoza 

EricDclgado 

Adam Weece 

Angela Restivo 

Region 9 (fiRE & YU Regiun 6 Bryant Smalley 

Region 9 (F!RE & YU ReglOfi 6 ErkPah!ey 

Region 9 (FIRE & YU JustlnMcDoweU Region 9 (F!RE & YU Buchanan 

Region 9 (FIRE & YU Region 6 M:arkHayes 

Regioo 9 {FIRE & YU 

Region 9 (FIRE & YU Regton9{FIRE & YU Monk<> Smith 

Region 9 {FIRE & YU Region 7 GregCrcb!e 

RegiOn 9 (FIR!'U} YU RegiOn 7 MkheleMiHer 

Region 9 {FIRE & YU Region 7 Jeff Pritchard 

Region 9 (FIR€ & Yll Regtcn 7 roddCpmpheH 

Region 9\HRE & YU Region 7 Doug 

Da-vid WtHlams 

Region 9 {FIRE & \'U Region 8 Christine Vigil 

Region 9 {F1R£ & YU Rer,ior1 8 Da11idChlistenson Region 9 {FIRE & YU Region 8 Duane Newell 

Region 9 {f1R£ & YU Rt'!gion 8 Joni Sandov<J! 

Region8 Kar!yScholten 

Region 8 leslie Sims 

Region 9 (FIRE & YU Region 8 luke Chavez Region 9 {FIRE & YU Region 8 Martin McComb 

Region 8 

Reglon-8 

Region 9 {F!RE & YU Region 8 Steven Merritt 

Region 9 {HRE & YU Reglon 8 Tim-othy Rehder 

Region 9 {F!RE & YU Region & Todd DeGarmo 

Region 9 (f'!RE &_ YU Region,10 Dale Becker 

Region 9 (FIRE & YU Region 10 Edward John.son 

Region 9 (FIRE &YU RegJon- iO Edcf>tuchims 

James lopez"Balrd 

WaHyMooo 

Region 9 (FIRE & YU Region 10 Kay Mormon Region9 {FIRE & YU :RegfonlO Madison Baxter Region 9 \FlRE & YU Region 10 Tom Townsend 

RegiDnlO RA HladickChds 

ORA 

Region 10 Pirzadeh Mkhe!le 

OMP Tyree, James 

Region 10 

'00031609 '00027815 

25162 

2333104 

'00025365 

'09020369 

02333145 00030873 

'00025382 

'D0015236 

'Q0(}27522 

'02333584 

'00026180 

000215?1 

'00022893 

rx':Ol0307 

'00020942 

'000'3.5830 

'00020825 

'{\0004994 

'00028156 '02335267 

02334884 

00029913 

'00027541 '00021574 

00017029 

00027764 

Regional Administrator 

Deputy Regional 

Administrator 

Acting Assistant Regional Administrator 

FIRE ilnd YUTU EXCEPTED and ON-CALl UST FJRE and YUTU EXCEPTED and ON"CAll UST 

f!RE and YUTU EXCEPTED and ON-CALVUST 

FIRE and YUTU EXCEPTED and ON"CAlL UST FIRE -anti YUTU fXCEPTEP and mH:;.Ait U5T 

F!Rf and YUTU EXCEPTED and LIST 

ruu: and VUTU EXCE:fffb ?nd Ot•KAlL tiST 

FIRE and YUTU EXCEPTED and ON-CALL UST 

HRE and YUTU EXCEPTED UST 

fiRE and YUTU EXCfPTEO and ON-CALL LIST f1RE and YUTU EXCEPTfi}ar\d DN.CAlll.lST 

F!RE and YUTU EXCEPTED and UST FIRE and YUTU EXCEPTED and ON-CALL LIST 

fiRE and YUTU EXi:EPTfD- and ON-CAU'UST F!RE Bnd VUTU EXCEPTED and ON·CAlt. UST FIRE and YUTU EXCEPTED and ON-tAtt UST 

FIRE and YUlU EXCEPTED and UST 

FIRE and YUTU EXCEPTED and ON-CAll LIST 

FJRE and YUTU EXCEPTED and LIST 

FIRE and YUTU EXCEPTED and ON-CALl UST 

flRE and YUlU EXCEPTED and ON, CAll LIST 

fiRE and YUTU EXCEPTED and ON·{ALl LIST 

Fl!i.E ;-;nd YUTU EXCEPTf:D pnd ON-CALL UST 

F!RE and YUTU EXCEPTED and ON-CALL LIST F!RE and YUTU EXCEPTED and ON-CAll UST 

HRE and YUTU EXCEPTED and UST 

FIRE and YUTU EXCEPTED and ON-CAll LIST 

FIR£ and YUTU €XCEPTED and Off. CAll UST 

FIRE and YUTU EXCEPTED and ON-CALL LIST 

FIR£ and YUTU EXCEPTED ?nd ON-CALL UST 

Oversee overaH shutdown and secure operations, Presidential appointe

Regional Opetat\ans during shutdown and 

Provide resource and operational support for aH Regional Operations du

shutdown and for excepted activities, 

35314.199

RegionlD ORC Stern AJ!yn OOOHS34 Regional Counsel 1 Provide legal-support for excepted activities 

RegianlO OMP Michael Laure! 00017802 IT Specialist 1 Oversee lT security operatioflS to support e.l(cepted work 

0003:1534 

Region 10 OMP Bre£Jz5teven fT Specialist 1 Handle lT network system admlnlriratkm ls$1Je$ in support of €)(J:ept€

1 

Region 10 DERA MmisdDavid 02333942 Keep fadhty operational, oversee contract teams (O&M, sewrlty, jani

000f72l4 

Region10 ECL Terada, Calvin Manager 1 Malotain emergency resporis€! operations 

ECL Baxter, Madison 02333473 On-S<ene Coordinator 1 R9 Typhoon Yutu Deployment (31 December 2018 231anuary 2019) 

ORA 

Morrison,~Kay 00027541 Community Involvement Coo 1 R9 Wildflte~Deploymeot (2S Decemkier~ · 11 January 2019) 

Region 10 000 Townsend, Tom 00021574 Management Analyst 1 R9 \Mldflre Deployment (28 December· 11 January 2019) 

Regi(ln 10 oww Ricard!Dwit 02333274 Environmental Engineer 
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Attachment Q122a 

Dear Colleagues, 

Federal employees have the nght to be free from prohibited personnel practices, mcluding retaltation for whist!eblowing The U.S 

Environmental Protection Agency is committed to making sure that all employees are aware of their nghts as well as the safeguards that are 

m place to protect them 

The purpose of this memorandum is to ensure that all EPA employees are aware of and understand the prohibited personnel practices and 

whistle blower protections available to federal employees 

The U S. Office of Special Counsel (OSC) is an independent agency that protects federal employees from prohibited personnel practices, 

mcluding whistle blower retaliation and unlawful hinng practices. OSC also provides an independent, secure channel for disclosing and 

resolving wrongdoing in federal agenc1es 

The VVhistleb!ower Protection Act of 1989 and the VVhistleblower Protection Enhancement Act of 2012 provide the right for al! covered federal 

employees to make whist !e blower d!sclosures and to ensure that employees are protected from whtstle blower retaliation The Dr. Chris 

Kirkpatrick VVhist!eblower Protection Act of 2017 and OSC' s ReauthorizatiOn Act under the National Defense Authonzation Act of Fmcal Year 

2018 further enhanced and remforced these nghts and protections 

VVhist!eblowing is defined as the disclosure of information that an employee reasonably believes evidences a v1olal!on of any law, rule or 

regulatton; gross mismanagement; gross waste of funds. an abuse of authOrity: a substantial and specific danger to public health or safety; or 

censorship related to sctentific research or analysis. Employees may make lawful dtsclosures to anyone, includtng, for example, management 

officials, the Inspector General of an agency and /o r OSC 

More informatton can be found on the OSC website at bttps·/fosc QPvtpages/WbatWeDo aspx 

Andrew VV"heeler 

Actmg EPA Admmistrator 
209 

Senator BARRASSO. Thank you very much for your testimony. 

As mentioned, the hearing will include questions. There will be 

two 5 minute rounds of questions. I will start the second round 

after we close the first round. To be fair to all the members of the 

Committee and to the witness, I ask Senators to please limit your 

questions in each round to 5 minutes. 

Throughout the hearing and with the questions for the record, 

our Committee members will have an opportunity to learn more 

about your commitment to public service and to our great Nation. 

I would like to ask throughout the hearing that you would please 

respond to the questions today as well as those submitted for the 

record. 

There are a couple of questions I have to ask as I do of all nominees and I did with you previously. These are on behalf of the Committee. 

Do you agree, if confirmed, to appear before this Committee or 

designated members of this Committee and other appropriate committees of the Congress and provide information subject to appropriate and necessary security protections with respect to your responsibilities? 

Mr. WHEELER. I do. 

Senator BARRASSO. Do you agree to ensure that testimony, briefings, documents in electronic and other forms of communication of 

information are provided to this Committee and its staff and other 

appropriate committees in a timely manner? 

Mr. WHEELER. I do. 

Senator BARRASSO. Do you know of any matters which you may 

or may not have disclosed that might place you in a conflict of interest if you are confirmed? 

Mr. WHEELER. I do not. 

Senator BARRASSO. I will now begin my first round of questions. 

For the information of Senators, we will be having two rounds as 

I previously stated. 

Let me start with this. The EPA is one of the Federal agencies 

directly impacted by the partial Government shutdown. Could you 

explain what actions you have taken to ensure that the EPA continues to fulfill the mission of protecting human health and the environment during this period? 

Mr. WHEELER. Absolutely, Senator, thank you. 

First, again I want to say I really am looking forward to our furloughed employees coming back to work. 

We are still on the job in any emergency actions as well as any 

court ordered actions. For example, we still have personnel on the 

ground in California dealing with the wildfires, people in Puerto 

Rico dealing with the hurricane, as well as other emergency responses that have been ongoing. 

Since the shutdown we have responded to seven new emergency 

responses around the country. We continue to monitor our hotline 

and tips lines. We are also fulfilling all of our court ordered deadlines. 

A perfect example is, as the shutdown has continued we are taking a look at what deadlines are coming up. We have five or six 

regulations that have court ordered deadlines. One of them is on 

lead dust, some regulation which is due in June. I sat down with 

210 

my senior staff last week and we charted out what the court ordered deadlines are, working backward on when we need to have 

people back on the job to take care of those. We recalled people this 

week to work on the lead dust regulation. 

Out of 14,000 employees, we started with around 700 that were 

exempt from the furlough. We are at around 800 now. That varies 

on a day to day basis. 

Senator BARRASSO. The Clean Air Act requires the EPA grant relief to small refineries which suffered disproportionate economic 

hardship under the Renewable Fuel Standard, the RFS. The law 

explicitly states a small refinery may petition the EPA for hardship 

relief, and it says, ‘‘at any time.’’ 

Do you agree that the EPA does not have the authority to limit 

when small refineries can apply for that hardship relief? 

Mr. WHEELER. That is correct. They can apply at any point. 

Senator BARRASSO. The law further states, ‘‘The EPA needs to 

act within 90 days upon receiving a petition from a small refinery.’’ 

Do you agree the EPA does not have the authority to delay decisions on small refinery petitions beyond the 90 days? 

Mr. WHEELER. I agree that the petition first goes to the Department of Energy for technical review before it comes to the EPA. 

Senator BARRASSO. According to the EPA’s online dashboard, 

there are at least 11 petitions that have been pending for more 

than 90 days. Is that correct? 

Mr. WHEELER. I am not sure of the number. 

Senator BARRASSO. I never cease to be amazed by the power of 

innovation from energy production to manufacturing. Innovation 

has grown and improved the environment significantly. One key 

question is how we can harness that innovation to reduce greenhouse gas emissions and turn these emissions into useful products. 

We have discussed that we can use carbon dioxide to get oil out 

of the ground, to construct building materials, and to make fuels. 

What role does the EPA play in supporting innovations that would 

reduce greenhouse gas emissions? 

Mr. WHEELER. We have a lot of opportunities. We do that 

through our air program as well as all of our programs. We are 

looking to do innovation and encourage new innovation. I think it 

is important on the regulatory side that we do not try to tip the 

scale one way or the other on, for example, energy sources. We 

want to encourage innovation in the marketplace and encourage 

new ideas to come forward. 

Senator BARRASSO. Thank you. I am going to reserve the balance 

of my time. 

Senator Carper. 

Senator CARPER. Thank you, Mr. Chairman. 

Mr. Chairman, I ask unanimous consent to submit for the record 

several articles and a letter that describes the current state of affairs at EPA during this Government shutdown. While 95 percent 

of EPA employees are not receiving paychecks, EPA also is not 

fully carrying out its fundamental core mission. That is to protect 

human health and the environment. 

This means that scientists may lose data collection opportunities 

related to the deadly California wildfires, there is no EPA superVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00216 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
211 

vision at too many of our Superfund sites, and many more critical 

functions will not proceed until the EPA is funded. 

That is my request. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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NEWS > COLORADO NEWS 

"We should be at work": 

Furloughed federal 

employees in Colorado 

bemoan uncertainty of 

government shutdown 

Partial shutdown entered fifth day on 

Wednesday with no resolution in sight 

By JOHN AGUILAR 1 jagui!ar@denverpost.com 1 The Denver Post 

PUBLISHED: December 27, 2018 at 6:00am I UPDATED: December 27, 2018 at 

9:15am 

The partial shutdown of the government have into effect 

over the weekend, but with the first two days of the work week 

federally declared holidays, Wednesday marked the first day most 

federal workers ----of which there are more than 50,000 in Colorado 

found themselves forced off the job. 

For Chris Fowler, a project manager with the U.S. Department of 

Housing and Urban Development in Denver, the work stoppage 

resulting from ~-~-~ .. i!!~P~~~.~-.i. ~~ .. ~~~~<i~:t .. ~~:~~_?t.i.<l ~ i ()IlS.l):,~~~::.~: .. tt.~-~ Tr,~1~ J_IJJ 

administration and Congn'ss means another period of unwelcome 

uncertainty for him and his colleagues. 

"I have a mortgage to pay, a daughter in college and a son about to 

graduate high school," said Fowler, who \vent through the .~:?.:.~l<:tX 

"The bottom line 
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35314.202

But Fowler and 800,000 fellow federal employees across the United 

States are now furloughed - or required to work without pay - as 

President Donald Trump continues to insist that Congress allocate $5 

billion to fund construction of a wall along the Mexican border. The 

president last week 

averted a shutdown because it didn't contain enough mom!y for a 

border wall. 

Fowler, who serves as vice president of the local chapter of the 

American Federation of Government E:mployees, said Washington's 

stark political divide is at the heart of the dysfunction enveloping the 

federal government, which endured two shutdowns albeit 

short ones ~·· in 2018. And federal employees have become "pawns" in 

the repeated political standoffs, he said. 

"We have two parties that just stare at each other hoping the other side 

blinks,~ Fowler said Wednesday. "The federal employee has just 

become another rider in an amendment someone is trying to pass. 

We're bargaining chips." 

"Frustrating to be in this situation" 

Even though federal workers typically are compensated with back pay 

for the time they are forced to sit idle (the U.S. Senate lust week 

upproved a measure to do just that for the current shutdown), it doesn't 

alleviate the pain thut muny federal employees who struggle financially 

must endure while the shutdown is in effect. 

"There are a lot of people in my office who live paycheck to paycheck," 

said Britta Copt, who works in the U.S. Environmental Protection 

Ageney's safe drinking water enforcement unit in Denver. "It's 

frustrating to be in this situation constantly. It gets rE!ally old." 

Copt said the uncertainty posed by a shutdown is one ofits biggest 

challenges. A colleague who is planning to head to Califon1ia to help 

with disa.:~ter .r.ecove.!fill the wake of deadly wildfires there isn't clear 

on whether that assignment will still be happening, she said. 

"It's stressful, constantly wondering if we're coming to work," she said. 

The shutdown, which began at midnight Saturday, is affecting about 25 

percent of the federal gov~'rmnent's operations. Many essential 

services including mail delivery, food stamps, Social Security, 

Medicare/Medicaid programs and Transportation Security 

Administration screening at airports will continue. 
214 


35314.203

Colorado's federal workforce is robust in the Denver-Boulder area .• with 

thousands of employees working at the Federal Center in Lakewood 

and the National Renewal Energy Laboratory in Golden, and thousands 

mon• at otht!r labs, like the National Oceanic and Atmospheric 

Administration and the National Institute of Standards and Technology, 

in Boulder. 

Federally funded research facilities here contributed about $2.6 

billion to Colorado.'s ec<.momy in fiscal year 2015, and supported more 

than 17,600 jobs, according to a report from the business research 

division of the Leeds School of Business at the University of Colorado. 

Tnking a toll on morale 

The eventual extent of the shutdown is unknown at this point, with 

lawmakers out of town for the holidays it difficult to achieve 

before the new convenes next week. On Christmas 

Day, the president made it dear that the government will remain 

closed until he gets the wall funding he seeks. 

"I can't tell you when the government is going to reopen," Trump told 

reporters in the Oval Offic<! on Tuesday. "I can tell you it's not going to 

be open until we have a wall, a fence, whatever they'd like to call it." 

Trump also tol.d reporters that many federal employees support the 

shutdown. That claim was immediately countered by Tony Reardon, 

president of the National Treasury Employees Union, which represents 

150,000 members at 33 federal agencies and departments. 

Reardon called the shutdown a "travesty" and said, "Congress and the 

White House have not done their fundamental jobs of keeping tin~ 

government open." 

Jeff Kelly, who has spent 4 1/2 years working for the Department of 

lntPrlor in LakPwood, said he will g<'t partkul:c~rly worried if the 

shutdown stretches into a third or fourth week. 

"I've got enough money to go through one billing cycle," he said 

Wednesday, citing child support, a mortgage and a car payment as 

obligations he needs to be able to satisfy. 

Kelly said the unwillingness or inability of government leaders to agree 

on anything mor<! than temporary spending measures oflate and to 

impact the livelihoods of federal workers in the process has taken a 

toll on morale. 
215 


35314.204

"Tiwre's less """~'"'"'r'"l'•nn and of the ''vork federal 

workers he said. 
216 


35314.205

A Pulitzer Prize-winning, non-profit, non-partisan news organization dedicated to covering climate change, energy 

and the environment. 

Government Shutdown Raises Fears of 

Scientific Data Loss, Climate Research 

Delays 

National Hurricane Center staff would normally be working on 

forecast improvements: 'We can't do any research and development 

for the next hurricane season.' 

BY MARIANNE LAVELLE Fol!ow @mlave!!es 

JAi\i 2UH 

The 2018 government shutdown has affected sCientific agencies and their research 

and data collection across the government. Credtt: Andrew CaballeroReynolds/AFP/Getty Images 
217 


35314.206

Updated )an. 12 with the government shutdown surpassing the 1995-96 shutdown to 

become the longest in U.S. history. 

Even though the ideology of President Donald Trump's administration has been to 

deny climate science, communities across the country and institutions around the 

world have continued to rely on the U.S. government to grapple with the climate 

crisis. 

Whether it's dealing with the devastating impacts of global warming, or supporting 

research efforts to better understand it, the government shutdown has abruptly 

stymied that work. 

"The one thing that feels very different this time is it feels like there's no hope in 

sight," said Nicole Cantello, chief steward of the American Federation of 

Government Employees Local 704 in Chicago. "How this is going to end is not 

readily apparent." 

Sign up for lnsideCiimate News Weekly 

Our stories. Your in box. Every weekend. 

EMAIL 

SIGN UP 

0 I agree to Inside Climate News' Terms of Service and Privacy Policy 

The budget impasse over Trump's demand for funds to build a wall on the 

U.S.-Mexico border became the longest U.S. government shutdown in history on 

Jan. 12, surpassing the 21-day record set in 1995-96 over former House Speaker 

Newt Gingrich's demands for deep budget cuts. Although the Democrat-led House 

was making a bid to pass bills to get parts of the government up and running, 

Senate Majority Leader Mitch McConnell has signaled he will not bring any 

measure to a vote that the president won't sign. 

Here are some of the climate-related government tasks that have been affected: 
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35314.207

California Wildfire Aftermath 

In the wake of the deadliest and most destructive wildfires in California history, 

the EPA planned to take a dedicated look at the impact of wildfires on air and 

water quality, human health and the environment. 

That project now will be delayed, and scientists fear they may lose some 

opportunities for data collection that would be carried out in conjunction with the 

U.S. Forest Service. (Although firefighting itself is considered an essential service, 

and emergency personnel are expected to work throughout the shutdown, 

employees are prohibited from doing "regular work.") 

California has a robust state government research effort, so the loss may not be as 

severe as it would have been in a state without that capacity. "But the inability for 

any of the relevant federal agencies to participate and contribute will certainly 

reduce the scope and magnitude of the data researchers can collect," one 

government scientist said. 

On one aspect of the wildfire aftermath, EPA employees were still on the job, 

although with uncertainty on when they would be paid: Toxicologists and other 

specialists were continuing to help in the hazardous waste assessment and 

cleanup in the aftermath of the devastating Camp Fire, which killed at least 86 

people. Two months after the fire, the teams have conducted assessments on 

about half of the 13,000 destroyed properties for household chemicals that need 

special handling before debris can be cleared. 

As essential personnel, the EPA personnel deployed to the Camp Fire aftermath 

are expected to work without pay. But EPA Acting Administrator Andrew Wheeler, 

a former coal lobbyist who was nominated by Trump on Wednesday to become 

administrator, sent an email to staff on Tuesday telling them they would receive 

one-half of their salary for the first week of the shutdown on their upcoming 

regular pay date this week. 

Hurricane Research and Recovery Funding 

At the National Hurricane Center in Miami, which is part of NOM, many of the 

center's 50 employees are still required to work-without pay-but they are 

limited in what they can do, said Eric Blake, a union representative at the center 

and hurricane specialist. 
219 


35314.208

This is the time of year that the center's scientists work on improving their 

forecasting models, but the center's employees are now "limited to only essential 

lifesaving activities, which means current weather," Blake said. 

"We can't do any research and development for the next hurricane season," he 

said. 

Hurricane recovery efforts are also a problem. North Carolina Gov. Roy Cooper, a 

Democrat, sent a letter on Wednesday to Trump urging an end to the shutdown 

to help speed assistance for the state's recovery from Hurricane florence. As 

with wildfire conditions, research shows global warming can exacerbate 

conditions that fuel destructive storms. 

"While we continue the short-term recovery with [the Federal Emergency 

Management Agency's] help, our critical long-term work to rebuild stronger and 

smarter is delayed with every day that federal funds are held in Washington," 

Cooper wrote. He said grants from the U.S. Department of Housing and Urban 

Development, including one to make flood-prone areas safer, are tied up in the 

government shutdown. 

Clin1ate Monitoring and Science 

Climate scientists are concerned that the pause in federal funding could mean a 

gap in the data that has been so important in assessing the changing state of the 

planet. For example, if an oceanographic beacon goes down-which happens 

often-there will be no one available to fix it, noted Kevin Trenberth, a climate 

analyst at the University Corporation for Atmospheric Research in Boulder, 

Colorado. 

"The biggest shortcoming is if data gaps occur, if people are not maintaining 

instruments and an instrument goes down," Trenberth said. At this point, it's not 

even certain if that is happening. "Nobody's keeping track," he said. "It's quite 

unfortunate." 

Trenberth expects that the National Oceanic and Atmospheric Administration 

(NOAA) will still put out its global mean surface temperature report for 2018 as 

scheduled next week, but that it will be short on the analysis it usually includes 

about regional variations and impacts, because people aren't working. 
220 


35314.209

His own organization, UCAR, a nonprofit consortium that manages the National 

Center for Atmospheric Research under a grant from the National Science 

Foundation, has funding to operate through jan. 18. UCAR is assessing its options 

if the shutdown continues beyond that date. 

NOAA specialists in Alaska fisheries and in ocean dynamics are on the team of 

scientists from around the world who are supposed to be working on a special 

report on oceans and the cryosphere that the Intergovernmental Panel on Climate 

Change is scheduled to release this year. But if the shutdown continues, their 

participation could be severely limited. 

Federal scientists were also directed to cancel travel plans for the annual meeting 

of the American Meteorological Society in Phoenix this week. Hundreds of federal 

employees typically speak at the conference, which is the world's largest gathering 

of weather and climate researchers. The EPA posted a warning to its employees 

that even if they fund their own travel to such conferences, they cannot represent 

themselves as federal employees, nor can they moderate or participate in panels 

or present data. 

A Pollution Plan for Lake Erie 

Extreme rainfall and warming waters are increasing phosphorus pollution in Lake 

Erie, and the resulting risk of toxic algae blooms like the one that left a half 

million residents of Toledo, Ohio, without drinking water for two days in 2014. 

Community and environmental groups have been litigating against EPA for faster 

action in reducing the pollution, but a federal judge last fall refused the 

environmentalists' bid to find EPA in violation of the Clean Water Act-a move that 

would have set deadlines for action. 

"As climate change and heavy rainfall are pushing out more of this phosphorus 

pollution, we need a larger system of accountability and oversight," said the lead 

lawyer in the case, Madeline Fleisher, a senior attorney with the Environmental 

Law and Policy Center, a Midwestern public-interest and legal advocacy group. 

The government shutdown has put the problem in sharp relief, because the EPA is 

now not on hand to coordinate the many stakeholders involved in the Great 

lakes Water Quality Agreement, the deal between the U.S. and Canada under 

which authorities have agreed to address the phosphorus pollution. It's not clear 

how the shutdown will affect a Lakewide Action and Management Plan that was 
221 


35314.210

scheduled to be completed by March, for Lake Erie, which the Ohio EPA last year 

designated as "impaired." 

Oil, Gas and Long-Term Ilnpact on Staff 

One government function does appear to be continuing: oil and gas drilling 

permits. The Interior Department's Bureau of Land Management is treating 

permits as an exempted activity, according to reports by Bloomberg and E&E 

News. Rep. Raul Grijalva (D-Ariz.), the new chairman of the House Natural 

Resources Committee, has sent a letter to the acting head of the agency, 

questioning how such activities are being funded. 

One federal scientist, who asked not to be named, worries that the impact of the 

shutdown could be long-lasting, especially for agencies like the EPA. The EPA had 

already lost more than 1,500 workers, or 8 percent of the staff, in the first 18 

months of the Trump administration due to retirements, buyouts and attrition, 

according to a tally by The Washington Post. 

"My biggest concern is that this is the catalyst that makes people decide they've 

had enough," the scientist said. "The younger staff are hit hardest, both in terms of 

money and career advancement. It could result in losses that will hurt us for 

decades." 

lnsideC/imate News reporters Nicholas Kusnetz and }ames Bruggers contributed to this 

story. 

PUBLISHED UNDER: 

POLITiCS, CLIMATE SCIENCE 

CHANCE, HUPPICAi'-JE, WILDFiRL~; 

ABOUT THE AUTHOR 

Marianne Lavelle 

Marianne Lavelle is a reporter for lnsideCiimate News. She has 

covered environment, science, law, and business in Washington, 

D.C. for more than two decades. She has won the Polk Award, 

the Investigative Editors and Reporters Award, and numerous 

other honors. Lavelle spent four years as online energy news 

editor and writer at National Geographic. She also has worked 
222 


35314.211

at U.S. News and World Report magazine and The National Law 

journal. While there, she led the award-winning 1992 

investigation, "Unequal Protection," on the disparity in 

environmental law enforcement against polluters in minority 

and white communities. 

She can be reached at marianne.lavelle@insideclimatenews.org. 

PG P key: biLiy/PG PM L 1 5 
223 


35314.212

Government shutdown impacts 

EPA oversight at West Lake 

landfill 

The impacts of the government shutdown are now reaching the 

radioactive waste at the West Lake landfill, an EPA superfund site. 

Author. Jenna Barnes 

Published 10·11 PM CST December 28,2018 

Updated· 10:17 PM CST December 28, 2018 

The impacts of the government shutdown are now reaching the radioactive waste at the West Lake landfill, 

an EPA Superfund site. 

The EPA ran out of funding Friday, furloughing employees. 5 On Your Side learned the work at the West 

Lake landfill will continue but without its normal EPA oversight. 

'There's nobody watching over us. That's scary,' activist Dawn Chapman said. 

Q) NEXT STORY 

Man found dead in De Solo, deputies 

investigating it as a suspicious death 

MORE NEWS 

@ JUST FOR YOU 

Shirley Boone, wife of Pat Boone and 

philanthropist. dies at 84 

She spent the day Friday trying to get answers from EPA officials and provided their responses to 5 On 

Your Side. 
224 


35314.213

Steven Cook, the chair of the superfund task force, replied that an emergency spill line will remain open 

but cautioned, "please be mindful that we may be limited in our ability to provide a substantive response 

depending on the issue involved," 

Chapman called that distressing. 

Back in November, a fire erupted at the Bridgeton landfill, which neighbors the radioactive waste. Dawn 

worries how an emergency like that would be handled if it happens again during the furlough, 

RELATED: All-clear given after fire eru~geton Landfill 

"So the kids are left in the classroom, there's no teacher. no principal," she said. "We're on our own." 

The furlough does not impact local first responders. If something does happen at the site, the Pattonville 

Fire District will respond. The assistant chief tells 5 On Your Side it just means they won't have backup or 

scientific expertise from EPA. 

The EPA sent 5 On Your Side this statement: 

"Ongoing work at Superfund sites will continue without EPA involvement up to the point that additional EPA 

direction or funding is needed. The West Lake Landfill Potentially Responsible Parties conduct the work 

regarding the site and may continue working during the duration of the lapse in funding. The 24-hour EPA 

Region 7 Emergency Response Line will remain open in the event of a spill or release at the West Lake 

landfill, That number is 913-281-0991 ." 
225 


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VIA ELECTRONIC MAIL 

January 11, 2019 

The Honorable Mitch McConnell 

Majority Leader 

U.S. Senate 

Washington DC, 20510 

The Honorable John Barrasso 

Chair, Committee on Environment and Public Works 

U.S. Senate 

Washington DC, 20510 

Dear Majority Leader McConnell and Chairman Barrasso, 

On January 9, 2018, on the eighteenth day of President Donald Trump's unnecessary and wasteful 

government shutdown, former coal industry lobbyist Andrew Wheeler was officially nominated to serve 

as Administrator of the Environmental Protection Agency. On the same day, Senator John Barrasso, RWy., Chairman of the Senate Committee on Environment and Public Works, announced to reporters that 

he would schedule Mr. Wheeler's confirmation hearing for next week. 

We write to you to demand a postponement of Mr. Wheeler's confirmation hearing until the president's 

wasteful government shutdown, which has put more than 800,000 Americans out of work and millions 

more in financial jeopardy is ended, and the scientists, public health experts, law enforcement officers 

and career civil servants that serve at the Environmental Protection Agency can return to work. 

It is profoundly unfair for Mr. Wheeler to audition for a promotion to lead an agency while the entire 

agency workforce is locked out and denied their paychecks, making it difficult to pay their bills and 

mortgages and provide for their families. The Senate has important business to address, including 

passing measures to fund the government and end this costly and wasteful shutdown, but ramming 

through controversial nominations to lead federal agencies that are shuttered is not among those 

priorities. 

Andrew Wheeler, just before closing the EPA's doors to its workers, used the agency's last available 

resources to begin to undermine long-standing protections against mercury pollution, at the request of 

the coal industry at the expense of the American children and unborn babies. We deserve an EPA 

administrator who will prioritize the agency's mission of protecting public health and enforcing laws like 

the Clean Air Act and Clean Water Act rather than rushing to a job interview so he can keep doing favors 

for the industry for which he served as a high-paid lobbyist. 
226 


35314.215

The Senate should delay consideration of the Wheeler nomination while Americans go unpaid during 

the government shutdown. 

Sincerely, 

Gene Karpinski, President, League of 

Conservation Voters 

Collin O'Mara, CEO, National Wildlife 

Federation 

Rhea Suh, President, Natural Resources 

Defense Council 

Ken Kimmel, President, Union of 

Concerned Scientists 

Michael Brune, Executive Director, 

Sierra Club 

Abigail Dillen, President, Earthjustice 

John Podesta, Founder and Director, 

Center for American Progress 

Fred Krupp, President, Environmental 

Defense Fund 

Erich Pica, President, Friends of the 

Earth 
227 


35314.216

BREAKING Trial to determine Portage mayor's fate kicks off 

https://www.nwitimes.com/news/local/lake/epa-cancels-superfund-site-public-hearing-amid-federalgovernment-shutdown/article_7ce2b6b0-f5d7-5448-9ec8-b16b1a3af03c.html 

juRGEN~ 

EPA cancels Superfund site public hearing amid 

federal government shutdown 

Lauren Cross lauren.cross@nwi.com, 219-933-3206 Jan 1, 2019 Updated Jan 11,2019 

BUY NOW 
228 


35314.217

Thomas Frank, a member of Calumet Lives Matter, urges EPA to select a more stringent cleanup plan for 

West Calumet at a public meeting Thursday night The $48.8 million cleanup plan removes soil and debris 

left over from the lead smelter demolished and buried there years ago to depths reaching clean native 

sand, disposes of it at an off-site location and treats the most contaminated soil using chemical 

stabilization. 

EAST CHICAGO- The federal government shutdown has forced the U.S. 

Environmental Protection Agency to cancel an upcoming public hearing on 

cleanup proposals for the former West Calumet Housing Complex. 

EPA spokeswoman Rachel Bassler sent out a news release this week, saying 

EPA has cancelled the public hearing set for Thursday, I an. I 0, due to the 

government shutdown, which was heading into its lith day on Monday. 

A lively public meeting at the local library in late November was cut short 

because of the hearing's two-hour time limit, robust participation and the 

complicated nature of the proposal, leaving many residents' questions 

unanswered. 

Since that time, a community group successfully appealed to EPA to hold 

another hearing. They argued EPA would otherwise not be fulfilling its 

commitment to fully engage the lead- and arsenic-contaminated USS Lead 

Superfund community. 
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EPA is proposing a seven-month, $26.5 million plan for West Calumet that digs 

to a maximum depth of two feet, treats severely contaminated soil and disposes 

of it at an off-site location. 

The agency has said it could finalize a cleanup plan that includes a contingency, 

allowing for a less stringent cleanup if the city moves forward with industrial 

redevelopment instead of residential. 

In a letter to the EPA, CAG members said the proposed plan includes the 

unusual contingency that allows the agency to change course on cleanup levels 

if city leaders change their minds on the property's future use. 

EPA's proposed plan is not preferred by residents. Residents argue it isn't 

protective enough because contamination beneath two feet will remain in place 

and it does not factor in pending results of EPA's ongoing study on 

groundwater contamination. 

Institutional controls under that plan will impede future redevelopment, 

residents have said. 

Though he's long maintained he wanted the site cleaned to residential standards, 

Mayor Anthony Copeland sent a letter to EPA earlier this year to let them know 

oftwo interested industrial/commercial developers. 
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The EPA has said it has no authority over Mayor Anthony Copeland's plans for 

the fon11er public housing site and always aligns Superfund site cleanup with 

the local property owner's future use. In this case, the owner is the city and the 

housing authority. 

His desire to have the property cleaned to residential standards has not changed, 

though he is open to all ideas about the highest, best possible use for the 

property, city officials have said. 

Residents can submit public comments until Jan. 14, and have several options 

to weigh in: 

• Submit comments orally or in writing at the public meeting 

• Send a fax to Janet Pope, 312-385-5311 

• Use the form at epa.gov/uss-lead-superfund-site/forms/commentproposed-amendment -cleanup-plan-residential-area-zone-1-0 

• Mail comments to: 

Janet Pope (pope.janet@epa.gov) 

Community Involvement Coordinator 

77 W Jackson Blvd, SI-6J 

Chicago, IL 60604 
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East Chicago residents urge EPA to hold second meeting, citing complicated nature of 

West Calumet plan 
232 


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Residents unnerved with EPA cleanup, future use uncertain for demolished West 

Calumet housing site 
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UPDATE: Shutdown Day 12: Lawmakers to hear wall plea at White House 
234 


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Tops on House Democrats' to-do list: Try to end shutdown 
235 


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Day 13: New Congress, same old impasse over Trump's wall 

Group: Federal government shutdown no excuse for canceled EPA hearing in East 

Chicago 
236 


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UPDATE: Signs of GOP unease over shutdown as White House talks start 
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Indiana health department encourages residents to test homes during National Radon 

Action Month 
238 


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Federal work at Superfund sites suspended during shutdown 

Lauren Leone-Cross 

Northlake County Reporter 

Lauren covers North Lake County government, breaking news, crime and environmental issues for The 

Times. She previously worked at The Herald-News in Joliet. She holds a master's degree in Public Affairs 

Reporting. 
239 


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1/1<1/2019 Shutdown Means E.P.A. Pollution Inspectors Aren't on the Job- The New York Times 

Shutdown Means E.P .A. 

Pollution Inspectors Aren't on 

the Job 

~ By Coral Davenport 

Jar~9.2019 I, W 

Want climate news m your mbox? S;gn up here fo1 Climate Fwd· 

emal/newsle/ler. 

\VASHJ:SGTON- The hm-week-old shutdown has halted one of 

the federal )!;Overnmcnt's most important public health actidties, 

the inspections of chemical factories, pm\·er plants, oil refineries, 

v.:ater treatment plants, and thousands of other industrial sites for 

pollution \iolations. 

The Environmental Protection Agency has furloughed most of its 

roughly 6oo pollution inspectors and oth!"r worl.;crs who monitor 

compliance with environmental laws. Those scientists, engineers 

anrl analysts are responsible for detecting \iolatlons that !"ndanger 

human lwalth, as they did, for 0xampiE' during an August 201R 

airbornl:' inspt'ction that found that oil and gas fields in Karnes 

County, Tex., were leaking illegal !evt:'ls of chemicals into the 

atmosphere, in \'iolation of th(' Clean Air Act. 

While the inspection persomwl represent a relath·ely small 

proportion of the E.P.A.'s total of about 15,000 workers, their 

absence increases the chances that, either by design or by 

acddent, companies might emit illegalle\·els of contaminants into 

the air or water without detection, for \\·eeks on end, according to 

people familiar with the E.P.A. inspections. 

"There are plants that discharge wastewater into streams and 

rivers, places that store hazardous chemic.1ls in containers that 

could lE>ak- Wt> show up and test these places to sec if they'n• 

meeting pollution la\\·s,'' said Garth Connor, a 

furloughed E.P.A. inspector based in Phlladelphia who has bt>en 

off the job since Monday. "Now there's nobody out there to check 

if they're complying." 

https"//www.nytimes.com/2019/01/09/dimate/epa-po!lution-inspection-shutdown.html 114 
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1114/2019 Shutdown Means EPA. Pollution Inspectors Aren't on the Job- The New York Times 

Mr. Connor inspects for air and water pollution and hazardous 

waste disposal at sites throughout the MklMAtlantic, 

The inspectors "are the cops on the beat,'' Cynthia Giles, who 

headed the E.P.A. enforcement dhision during the Obama 

administration. wrote in an email. 

She noted that, in 2017, E.P.A. workers performed about 11,700 

such inspections, a\·eraging to about 225 inspections per week, 

according to theJ.!f!,crl£)~ The numbers suggest that 

hundreds of such inspections may have already been canceled this 

year, with the potential for hundreds more to not take place 

should the shutdown continue for days or weeks more. 

''Those weeks can never be made up," Ms. Giles wrote. "!n 

addition to the violations not found and the inspections not done, 

there is also the impact of no inspectors in the field doing 

unannounced inspections," she added, asking: "Will that result in 

more violations because companies know E.P.A.Isn't ·watching"!"' 

Andrew \\.heeler, the acting administrator of the E.P.A, did not 

respond to an email requesting comment. On Wednesday, 

Pre.<:ident Trump formally nominated 1'1-fr. Vo/heeler, who was 

confirmed last year as the deputy chief of the agency, to formally 

take O\'Cf as the agency head. 

When on t!w job, E.PA inspectors rE-gularly cite companirs for 

,;olations that endanger human health, For example, during an 

Apri12016 inspection at a Firestone n1bber plant in Sulphur, La., 

E.P.A. inspectors discovered that the plant was emitting illegal 

levels of butadiene, a carcinogC'n, into the community. 

A telephone message left at the plant was not returned. 

Some E.P .A. inspections are unannounced. Others take the form 

of two~ and three~\\"eek on~site visits. 

Still other E'Xaminations don't happen on-site: E.P.A. experts 

sitting in labs or at computers will re\·iew documents detailing a 

plant's own reported emissions of pollution or wastewater. 

checkit1g whether legal limits were met or violated. Thcst~ 

acth·ities, too, are on pause during the shutdown. 

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1/14/2019 Shutdown Means E.PA Pollution Jnspectors Aren't on the Job~ The New York Times 

Inspectors need to read those reports "and say, ·no, you can't do 

that,"' said Eric Schaeffer, who worked at the E.P.A. on 

enforcement from 1990 to 2002 and now runs the Environmental 

Integrity Project, an adYocac~· group. ''Then they follow up and go 

on-site. But none of that is happening.'" 

Unlike other federal agencies affected by the government 

shutdown, the KPA continued to operate through the week of 

Dec. 24. but pollution inspections, along \\ith most of the rest of 

the work of the agency, had ceased by ~ew Year's En~ 

Mr. Schaeffer recalled the effect on pollution enforcement of the 

longest government shutdown in history, which ran from Dec. 16, 

1995, to Jan. 6, 1996. 

''That was one of the worst years ewr at the E.P.A. in terms of 

numbers of inspections and enforcement," he said. He added that 

the damage to the work of pollution inspections didn't end 

compk•tely once the gmwnment reopened. "Everything was 

ground to a halt, bogged down. You can'tjust restart at 100 miles 

per hour. You haw to re.."-ch<•duie e\·erything." 

Another former E.PA official who now lobbies on behalf of 

industl) offered a different \·iew, saying that a shutdown of even a 

few weeks was unlikely to make much difference in the amount of 

illegal pollution emitted or detected. 

''What you have is a delay," said the former official, ,Jeffrey 

Holmstcad, who sen'ed in the E.P.A. during both Bush 

administrations and nO\\' works for some oft he largest coal 

companles and electric utilities ln the count!)'. "I don't think it's 

tnw that all of a sudden, bec.,;tuse E.P.A.'s inspectors are not there, 

that most people will take advantage of that," be said. "There may 

be a fe\v folks who believe they can get away \\ith more, but I don't 

think that's the biggest issue." 

Among Mr. Holmstead"s clients are several companies that have 

been cited for ·dolations by the E.P .A. including the electric utility 

Southern Company, which has had 52 sites with \'iolations over 

the past fiw years, including 23 sites with current \iotations, 

according to E.P .A.'s tn.fu.~rnJ..ellt..d.atilllim.'., An email sent to a 

Southern Company spokesman requesting comment on the 

do lations \\·as not ans\\·Ned 

Another of Mr. Hohnstead's clients, the electric utility, Ameren, 

owns 23 sites that ha\·e been cited for pollution violations over the 

past five years. A telephone messagt" left with an Amcren 

spokeswoman was not returmod. 

https·/fwww.nytimes.com/2019/01/09/climate/epa-pollution-inspection-shutdown.htm! 314 
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1!14!2019 Shutdown Means E.P.A. Pollution Inspectors Aren't on the Job- The New York T1mes 

In many ~·ears, about 10 to 2.0 percent of the E.P.A.'s pollution 

inspections turn llp significant \·iolations, according to the 

agency's data. 

Most operators ·'really are doing a good job," said "\dam Kushner, 

a forme-r top legal official at the E.P.A. "But there's a 1 percent that 

are bad actors. who \,i!J continue. to do \l·hat they're going to do, 

unless inspectors find them. And then there are sites where the 

operator just may not have identified the problem, and they're 

putting bad stuff out into the air without knm,ing it." 

Angela :\1cFadden, a furloughed F..P.A. environmental engineer 

\dlO oversees state permits for pollution discharge and has 

worked as an on-site inspector dealing with dean water violations, 

said she "always" found dolations during her time as an inspector. 

For example, she said, in inspecting municipal w~tcr systems in 

rural areas she frequently found that cities and towns overchlorinated or under-chlorinated their water- not a legal 

\iolation, but a potentially harmful situation that is easily 

corrected when identified by an inspector. 

Ms. ~tcFadden reeal!ed a more frightening inspection she once 

performed in Pennsyh·ania that found excessive nitrate levels in a 

municipal water supply. Nitrates can sap oxygen from the blood 

and, when found in high levels in drinking water, are linked to 

"blue baby syndrome,'" in which infants struggle to deliver enough 

oxygen to their bodies. 

"Right now, E. P.A. is not monitoring any of that," Ms. McFadden 

said. "Things arc falling through the rrad:s" 

Far mare news on climate and the enwonment. fo!low @NYTCI!mate on 

Twttter 

Correction: Januw·y 10, 2019 

A picture caption with an earlier version of this article twice tm'sidentijicd the 

owner qfthe E. D. Hdwards power station in Bartonville, Ill. The station is 

owned by Vistra Energy, not Amerert Corp and not Dynegy Inc. (Amercm sold 

the plant to Dynegy in 2013. Dynegyfo/dcd into Vistra in 2018.) The pictllre 

has heen removed. 

Correction: Jant.wry 11, 2019 

An earlier uer·sion of this article described inconectly Angela McFadden's role 

at the Envirorvncntal Protection AgencJJ. She is an em.;ironmcntal engineer 

who works for an agency program that oversees state-issued pcnnitsfor the 

discharge of pollution in rivers and str·earns. Though she has worked as an on~ 

site inspector dealing with clean water violations, she is not an inspector of 

water sites. 

The article also misquoted Ms. McFadden in her comments about her work a1 

th<' E.PA While Ms .. '\.fcFadden said, '"I always find violations," she did not go 

on to say, "even ~fit's not things that are illegal." 

The article also suggested that problems with chlorine levels in tvatcl' are 

cspeciully com moll in rural West \/ir-yinia. Tit at is not the case. 

https·I/WW\-v.nytlmes.com/2019/01/09/dimate/epa-po!lution-mspection-shutdown html 414 
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- SECTIONS c;i 

POLITICS & GOVERNMENT 

During shutdown, water samples to check 

for GenX are sitting in the fridge untested 

BY CRAIG JARVIS 

RALEIGH~ Some of the surface-water tests to make sure potentially toxic 

chemicals are no longer discharging into the LO\Ner Cape Fear River 

are on hold because of the federal government shutdown. 

But for now, a spokeswoman for state regulators said FridJy, the agency is 

confident the water still meets safety standards. 

The N.C. Department of Environmental Quality has heen testing the water and 

sending samples to the U>S. Environmental Protection Agency's lab in Athens, 

Ga. But the hudget impasse has closed the EPA- among other federul 

departments-- including that lab, which can no longer process the s:1mples. 

Trump: I have 'absolute right' to 

declare national emergency if no 

deal is reached 

Federal employees march in 

protest oft he government 

.)hutdmvn in Raleigh 

VIEW MORE VlDEO -

TRtNDING STORIES 

By continuing to use this stte. you give your consent to our use of cookH'5 for analytics. personaHzaticn and ads. flgillilil.Qfg X 
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State regulator~> are continuing to take samples, but instead of sending them to 

Georgia it is storing them in a state facility in Fayetteville, where they are kept in 

refrigerators. How long the samples can be saved without degrading will be up to 

the EPA. 

Your All Access subscription is waiting! 

Enjoy 92% off your first month of digital access when you finish signing up today. 

SIGN UP NOW! #READLOCAL 

The state environmental agency samples the surface water twice a week at a point 

where in 2017 the unregulated chemical GenX was discovered discharging into 

the Lower Cape Fear River by the Chemours chemical company factory south of 

Fayetteville. That discharge point has been disconnected, and state regulators 

issued notices of violations. Water there is within state standards, the agency 

said. 

The state also conducts samples at five drinking water treatment facilities in the 

Lower Cape Fear region once a week. That water meets federal standards for safe 

drinking water. 

In addition to those samples taken by hand and sent to the EPA, DEQ uses 

computerized equipment that samples water at the Chemours site at different 

hours of the day. That provides regulators a more frequent check on the water 

quality around the clock. To date, the tested water is within standards, DEQ 

spokeswoman Bridget Munger said. 

GenX is a chemical used to make nonstick cookware and other products. 

Independent of state regulators, a team comprised of North Carolina's leading 

university science researchers have begun an ambitious project to test water 

throughout the state. Their work will lay the groundwork for long·term 

monitoring of changes in the state's water quality. 

Each municipality in the state will have water tested at the point where the water 

enters the public system. Each municipality will also pick one well that supplies 

public drinking water to test. 

Researchers are looking for chemicals that are classified as per· and 

polyfluoroalkyl substances (PFAS), and include GenX. 

UNC·Chapel Hill professor Jason Surratt, the lead investigator on the project, said 

in an email Friday that the team's work won't be affected by the government 

shutdown. His investigators have their own instruments to measure water quality 

and don't have to rely on EPA equipment. 

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JANlJARY1J.20190544PM 

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1/14/2019 Shutdown wreaks havoc on local lives I The Brattleboro Reformer 1 Brattleboro Breakmg News. Sports. Weather, Traff1c 

Brattleboro@ Reformer 

Shutdown wreaks havoc on 

local lives 

A look into the Robertson Paper Company Complex, in Bellows Falls, on Aug. 

10, 2018. 

KRISTOPHER RADDER· BRATTLEBORO REFORMER 

Posted Wednesday. January 9. 2019 8:09pm 

By Susan Smallheer, Brattleboro Reformer 

SAXTONS RIVER Will Scarlett is set to 

graduate from the Maine Maritime Academy this spring, and start a career as a ship's engineer or 

deck officer, whether it is working on an oil tanker or oil rigs on the other side of the world or working 

for a U.S. Navy civilian subcontractor. 

Scarlett, 21, at Saxtons River, was all ready to take his Coast Guard engineer or deck officer exam 

from Jan. 3 to 7, when the federal government shutdown cancelled those plans. 

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1!14/2019 Shutdown wreaks havoc on local lives ! The Brattleboro Reformer j Brattleboro Breaking News, Sports, Weather, Traffic 

Without that all-important licensing exam, Scarlett's four-year-degree really can't get him a job. 

"It's really all-important," said Scarlett on Tuesday, as he worked during his school break at Sheila 

Patin kin's Wagyu beef operation on Pleasant Valley Road. 

"It's a really big disappointment," said Scarlett, a 2015 graduate of Bellows Falls Union High School. 

Scarlett said the word is that the Coast Guard exam, which he's been studying for for weeks, 

including over Christmas break, is now slated for the spring break, and he hopes he doesn't have to 

pay a second fee for the exam. Without the Coast Guard engineering license, potential employers at 

the maritime academy's job fairs wouldn't even talk to him. 

Scarlett's plight is just one example of how the government shutdown, which is entering its third 

week, is playing havoc with people's lives, and town business across southern Vermont. 

National Forest 

For Vermonters and visitors alike, the Green Mountain National Forest, managed by the U.S. Forest 

Service, is the most prominent federal presence in the region. 

According to the office of U.S. Sen. Patrick Leahy, D-Vt., the majority of GMNF's roughly 40 

employees are furloughed and are not being paid, while those who are required to work are working 

without pay. 

While trails and recreational opportunities are open to the public, there's no one on duty to plow out 

parking lots. take out the trash, guide visitors, monitor sign-in books, or staff the trails, Leahy's office 

said. 

"All of the services provided by the Forest Service, the park rangers. are there for a very important 

reason. Public safety is a primary purpose of all of that, so it's a great concern not only to Senator 

Leahy but everybody who understands the impact of this Trump shutdown," said David Carle, a 

spokesman for Leahy. 

The partial shutdown, which entered its 19th day on Wednesday, has forced federal agencies to 

stop issuing paychecks for hundreds of thousands of government employees. With President 

Donald Trump refusing to sign a government spending bill unless Congress funds his proposed $5.7 

billion Mexican border wall, government services largely have been limited to the most pressing, 

such as Transportation Security Administration workers providing security at airports without pay. 

Federal offices 

In Bennington, while town operations have not been directly affected by the shutdown, some of the 

town's information-gathering has been affected, said Town Manager Stuart Hurd. 

The town has attempted to contact the USDA to learn about borrowing eligibility and rates related to 

the proposed purchase of a ladder truck for the Bennington Fire Department, "and unfortunately, 

their offices are closed," Hurd said. That's stalled the board's decision on whether to ask town 

meeting voters to authorize a bond for replacing the nearly 22-year-old ladder truck, at an estimated 

cost of as much as $1.2 million. 

At Harlow's Farm in Westminster. one of the state's largest organic vegetable farms, the shutdown 

has created headaches for its end-of-year tax work. Evan Harlow, who runs the farm along with his 

father Paul Harlow and Cory Walker, said Social Security offices haven't been open to answer 

questions about the end-of-the-year payroll questions. Harlow and other farmers said the shutdown 

so far hasn't created any problems applying for government programs, since the deadlines for crop 

insurance applications isn't until March. 

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1/14/2019 Shutdown wreaks havoc on local lives I The Brattleboro Reformer 1 Brattleboro Breakmg News, Sports, Weather. Traffic 

The government shutdown, which has affected local Environmental Protection Agency offices, as 

well as the Department of Agriculture, is complicating the long-anticipated clean up of the Robertson 

Paper Co. mill in downtown Bellows Falls. 

Gary Fox, Rockingham's development director. said the recent archaeological work done on the 

site, which is located on the banks of the Connecticut River and near a known Native American site, 

had to be reviewed by EPA experts. along with others in state government. With EPA regional 

offices in Boston closed, the review can't take place. 

"We were sample trenching to identify areas on The Island of the likelihood of finding indigenous 

people's artifacts, both inside and outside the building," said Fox, who is shepherding the demolition 

and clean up of the old paper mill. 

The archaeological work started on Dec. 12, a scant two weeks before funding for the federal 

agencies dried up. 

In addition, Fox said, the closure of the USDA's Rural Development business grant program has put 

the town's effort to get funding to help subsidize his position also on hold, just as the town is 

formulating its 2019-2020 budget. 

Fox also said the town was also applying for a recent Department of the Interior historic 

preservation grant applications, as soon as the federal agency reopens. 

"But those areas are now dead in the water, right now," said Fox. 

Some wastewater projects in other small Vermont towns have stopped receiving federal payments 

during the shutdown. but Bennington receives its wastewater project funding from state agencies, 

Hurd said. 

Sue Andrews, the executive director of Greater Bennington Interfaith Community Services, says 

that while she has not seen much "up front and personal impact," she has heard multiple people 

discuss their concerns about receiving their tax refunds. 

Leahy, in a speech delivered before the Senate last week. said with the passage of the 2018 Farm 

Bill, farmers and ranchers need information immediately on how the law will affect their operations, 

"but no one is in the office or staffing the phones to answer those questions or sign up producers for 

new programs." 

Contact Susan Smallheer at ssmallheer@reformer.com or 802 254-2311, ext. 154. Christie 

Wisniewski and Tiffany Tan of the Bennington Banner contributed to this report, which includes 

information from The Associated Press. 

hltps.ff\WIW.reformer.com/slories/shutdown-wreaks-havoc-on,!ocal-lives,SG1159 313 
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1!14/2019 From business loans to the weather, fed shutdown bemg felt· Times Un1on 

From business loans to the weather, fed shutdown 

being felt 

By Eric Anderson and and Brian Nearing 

Updated 8:13pm EST, Monday, January 7, 2019 

Photo Paul Buckowskl, Albany T1mes Un10n 

tMAGE 1 OF 25 Buy Photo 

A sign is seen posted on an information board alerting visitors of 

reduced staff at the Saratoga National Historical Park on Monday, Jan, 

7, 2019, in Stillwater, NY A person hand wrote a comment 

about. .. more 

Colonie 

Small businesses aren't expanding or hiring. Hundreds of 

meteorologists have skipped a major conference this week 

where advances in weather forecasting are shared. And 

airline pilots are expressing concerns about the safety and 

security of the national airspace system. 

The federal government shutdown, now in its third week, is 

rippling throughout the economy with no apparent 

ht!ps 'I /'N'NW,!imesu nlon. com/business/a rtide/F rom-bus iness-!oans-to-the-we ather -fed-s hutd own-1351518 O.php 117 
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1114/2019 From business loans to the weather, fed shutdown bemg felt· Times Un1on 

movement toward a settlement. 

Agents at the Federal Bureau of Investigation in Albany 

continue to report for work, even though they're not being 

paid. Customs and immigration officials are working at the 

Port of Albany, also without pay, while Transportation 

Security Administration employees continue to screen 

passengers and luggage at Albany International Airport. 

So far, the Hudson River is free of ice, but U.S. Coast Guard 

crews are prepared to clear any ice that forms, also without 

pay. 

Federal employees who were furloughed and not required to 

work are eligible to receive unemployment insurance 

benefits, according to the state Labor Department. But those 

who are required to work- from TSA and FBI agents to 

meteorologists and food safety inspectors -aren't eligible. 

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1/14/2019 From bus1ness loans to the weather, fed shutdown bemg felt T1mes Umon 

They are "considered employed and not available for other 

employment," according to the Labor Department. 

If the government pays the claimants retroactively, they will 

have to repay the benefits they received. 

The federal government employs 6,600 people in the 

Capital Region, according to the state Labor Department, 

about 1.4 percent of the workforce. Their absence is being 

felt. 

Stefanik votes with 

Dems to reopen 

government 

Researchers 

nervously study 

shutdown impact 

Federal shutdown 

doesn't help NTSB's 

investigation of limo 

crash 

As shutdown 

continues, TSA staff 

work without pay 

Federal courts In New 

York will run out of 

funds 3 weeks into 

shutdown 

"The small 

businesses 

we deal with 

require a 

(Small 

Business 

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1/14/2019 From busmess loans to the weather. fed shutdown being felt- Times Un1on 

Administration) guarantee," said Bill Brigham, director of the 

Small Business Development Center at the University at 

Albany. The loans provide working capital, startup capital, 

turnaround capital and funds to expand and hire additional 

workers, he added. 

But with the Small Business Administration shut down and 

its employees furloughed, loans aren't being processed. 

"We work with about 1,000 small businesses a year," 

offering counseling at no cost, Brigham added. "We see 

businesses that needed money yesterday." 

Some of the funding goes to technology startups and 

researchers. Those efforts also are put on hold. 

"There really is a ripple effect, whether it's processing of 

loans, whether it's our transportation projects, whether its 

veterans services ... the shutdown does have a direct 

impact whether it's on businesses or residents," said Mark 

Eagan, president and CEO of the Capital Region Chamber. 

At the Port of Albany, General Manager Rich Hendrick said 

customs and immigration officials continued to report to 

work, even though they're not being paid. Customs and 

Border Protection Port Director Drew Wescott referred calls 

to Department of Homeland Security spokesman Aaron 

Bowker. Bowker said that, because of the shutdown, he 

wasn't able to accept media calls, and that the DHS was 

focusing on border security. 

At Albany International Airport, TSA employees continued to 

report to work, and lines were normal, airport spokesman 

Doug Myers said. Elsewhere, some TSA agents reportedly 

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1114/2019 From busmess loans to the weather, fed shutdown being fell T1mes Un1on 

have called in sick as they seek jobs that will provide a 

paycheck. 

FBI agents also were expected to report. 

"FBI operations are directed towards national security and 

violations of federal law, and must be able to continue 

during a lapse in appropriations," said spokeswoman Sarah 

Ruane at the Albany FBI office. "As such, all FBI agents and 

support personnel in field offices are considered excepted 

from furlough." 

The U.S. Environmental Protection has been hit particularly 

hard by the shutdown, with only about 6 percent of its preshutdown workforce of nearly 14,000 still in place, according 

to EPA figures. 

One of the largest EPA projects in the state is the PCB 

cleanup of the Hudson River from Troy to Fort Edward, 

where EPA is currently producing a so-called report card on 

whether the cleanup concluded in 2017 met it objectives, 

something disputed by state officials and conservation 

groups. A local advisory committee that has been 

monitoring the cleanup is run by an outside, EPA-funded 

contractor, the Massachusetts-based Consensus Building 

Institute. 

Since the institute is not now being paid, no new meetings 

of the Citizens Advisory Group can be scheduled, if needed, 

said Althea Mullarkey, an analyst with the environmental 

group Scenic Hudson and a group member. When the 

cleanup report card might be issued could not be 

immediately determined, as EPA public relations officials in 

the Capital Region and the New York City regional 

headquarters are not at work because of the shutdown. 

https·ffWMN.timesunion.comJbusiness/article/From-business-loans-!o-the-weather-fed-shutdown-13515180.php 5!7 
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1/14/2019 From busmess loans to the weather, fed shutdown be1ng felt- Times Union 

Also in limbo is an agreement that EPA is working on 

regarding potential cleanup options at the Dewey Loeffel 

toxic waste landfill in Nassau, Rensselaer County. A local 

advocacy group that support a cleanup held a meeting last 

weekend on potential options, but due to the shutdown, no 

EPA officials were able to attend. 

The American Meteorological Society's 99th annual meeting 

began Monday in Phoenix. While no one from the Albany 

office of the National Weather Service had planned to 

attend, several hundred NWS employees from across the 

country typically participate, where research papers are 

released and improvements in forecast models are 

revealed. 

Because of the shutdown, those meteorologists have been 

told not to go. 

"Our focus is basically on protection of life and property," 

said Ray O'Keefe, meteorologist in charge at the Albany 

NWS office. "As far as longer-term projects go, basically 

we're focused on our day-to-day job of forecasts and 

advisories.n 

"The AMS annual meeting is clearly impacted by the 

absence of NOAA, NASA, DOE, etc. It's very sad," said 

Chris Thorncroft, chair and professor in UAibany's 

Department of Atmospheric and Environmental Sciences, 

who was en route to Phoenix. "This meeting is an 

opportunity for academia, private sector and government 

agencies to interact for the betterment of the country. We 

are missing a key partner this year." 

https /lwww.timesunion.com/business/article/From-business-!oans-to-the-weather-fed-shutdown-135151 80.php 
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1/14/2019 From business loans to the weather, fed shutdown being felt~ T!mes Umon 

Meanwhile, the president of the Air Line Pilots Association, 

International, Joseph DePete, called on President Trump "to 

take the necessary steps to immediately end the shutdown 

of government agencies that is affecting the safety, security 

and efficiency of our national airspace system." 

He said all involved "are being asked to work unpaid. They 

are dutifully providing safety of life services while facing 

increasingly difficult financial pressures to provide for those 

dependent on their paycheck." 

"The pressure these civil servants are facing at home," he 

said, "should not be ignored." 

http s '//W'W'W_ !imesu nion. com/business/article/From-business-loans-to-the-weather -fed-s hutdown-1 35151 80. p hp 717 
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1/14/2019 The Energy 202 Senate Democrats warn EPA may be 'afoul' of law by preppmg Wheeler for confirmation during shutdown- The Wash1n 

The Energy 202: Senate 

Democrats warn EPA may he 

'afoul' of law hy prepping 

Wheeler for confirmation 

during shutdown 

Q ' 

,..,"~ 

By Dino Grandoni 

January 11 

THE LIGHTBULB 

Andrew Wheeler. acting head of the Environmental Proteetion Agency, signs an order withdrawing federal 

protPctions for countlPss watt>rways and wetlands at EPA headquarters in December. (AP Photo/CliffOwen) 

A group of Senate Democrats says the Environmental Protection 

Agency may be violating spending laws by preparing the 

agency's acting chief, Andrew Wheeler, for his confirmation 

hearing during a partial government shutdown, 
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1114/2019 The Energy 202 Senate Democrats warn EPA may be 'afoul' of law by prepp1ng Wheeler for conflrmatwn during shutdown- The Washm 

Four members of the Senate Environment and Public Works 

Committee -Thomas R. Carper of Delaware; Sheldon 

Whitehouse of Rhode Island; and Benjamin L. Cardin and Chris 

Van Hollen, both of Maryland- sent a letter to the agency 

questioning whether it is improperly using resources to help 

Wheeler get ready for his confirmation hearing before them next 

Wednesday. 

The move underscores the extent to which Senate Democrats are 

ready to fight President Trump's second pick to run the EPA 

after the former chief, Scott Pruitt, and now Wheeler have 

sought the reversal of many environmental regulations 

implemented under President Obama. 

In response to the letter, the EPA told The Post it is well within 

its rights under Justice Department guidelines to work 

toward getting the agency a Senate-confirmed leader. 

The EPA is one ofthe agencies that isn't receiving funding as the 

partial government shutdown drags into its 21st day over the 

standoff surrounding President Trump's border wall. Only about 

8oo ofthe EPA's 14,000 employees have been deemed essential 

to work through the shutdown. The vast majority of those 

remaining at work are "necessary to protect life and property." 

Only a handful of other employees - six top-level political 

appointees and a dozen others "necessary to the discharge of the 

President's constitutional duties and powers"- are still allowed 

to work during a shutdown, according to the agency's Dec. 31 

contingency plan. 

https·ftwww.washingtonpost,com/news/powerposVpa!omafthe-energy-202/2019/01/11/the-energy-202-senate-democrats-warn-epa-may-be-afoul-of-la... 214 
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1/11.1/2019 The Energy 202· Senate Democrats warn EPA may be 'afoul' of law by preppmg VVhee!er for confirmallon dunng shutdown- The Washm 

But according to the Democratic senators, five EPA employees 

have been involved in coordinating meetings with senators, 

who will have to approve Wheeler to serve as the agency's 

permanent chief after President Trump this week formally 

tapped him for the position. 

An EPA notary also worked to certify an ethics form for Wheeler, 

who worked for years as a lobbyist. 

"It is difficult to understand how preparing you for next week's 

confirmation hearing credibly falls within any of the categories 

listed in EPA's Contingency Plan, particularly the category of 

employee that is 'necessary to protect life and property,' "the 

senators wrote in their letter to Wheeler, sent Thursday. 

"Using EPA resources in this manner may also run afoul of the 

Antideficiency Act," they added, referring to the law requiring a 

federal agency's expenditures not exceed the 

amount appropriated by Congress. 

Matt Leopold, the EPA's top lawyer, told The Post by e-mail that 

the Justice Department's Office of Legal Counsel has "clearly" 

already deemed participating in a confirmation hearing 

as essential work. 

Leopold added: "Additionally, the Constitutional appointment 

power allows for EPA to take the steps necessary to ensure the 

https"i/'W!'N.washingtonpost.com/newslpowerposUpalomalthe-energy-202/2019/01/11ithe-energy-202-senate-democrats-warn-epa-may-be-afou!-of-!a 3/4 
258 


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1114!2019 The Energy 202: Senate Democrats warn EPA may be 'afoul' of law by prepping VI/heeler for confirmation during shutdown The Washm 

Acting Administrator is prepared for his hearing." 

Jeffrey Lubbers, an administrative law professor at American 

University, wondered whether helping Wheeler get ready for his 

Senate confirmation falls under that category. 

"It·s unclear what those are, but one of them might be the 

nomination of an agency head," he said. 

The EPA has been without a Senate-confirmed 

administrator since the White House forced Pruitt to resign in 

July amid investigations into his ethical and managerial 

decisions. 

While happy to see Pruitt gone, many environmentalists are 

fiercely oppose to Wheeler's nomination after he spent years 

representing coal mining and nuclear energy firms in 

Washington. 

They have long been critical of the EPA under both Pruitt and 

Wheeler for pursuing the rollback of Obama-era rules. During 

the shutdown, however, much of that work rewriting regulations 

has been put on pause. 

But activists still take issue with Trump and Senate Republicans 

working to advance Wheeler's nomination while other EPA 

employees are furloughed, such as those working to inspect 

factories for pollution or prepare cleanup plans for toxic waste 

sites. 

"It's a shocking waste of precious resources to spend any staff 

time preparing Andrew Wheeler's nomination," Collin O'Mara, 

president and chief executive of the National Wildlife 

Federation, said while calling for a delay in the hearing. 

https · f!VNIW. washingtonpost comtnewstpowetpo s tip a lo m a/the-energy-202/20 19/0 1 I 11/the-energy-202¥s en a te-democrats-wa rn-epa-m ay-be-afoul-of-!a, , 4/4 
259 


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Air of Uncertainty: Government shutdown impacts 

EPA air monitoring around Denka plant 

Air of Uncertainty: GovernmentshutdownimpactsEPA air monttoringaroundDenkap!ant 

By Amanda Roberts I January 2, 2019 at 8,05 PM CST- Updated January 2 at 10,30 PM 

NEW ORLEANS (WVUE) Sitting around the Denka plant in Laplace are six canisters that monitor 

chloroprene levels in the air, but levels are not taken daily. The EPA samples chloroprene in the air once 

every three days while Denka samples once every six days. However with the government shutdown, the 

EPA is not measuring any levels. 

In 2015, scientists found that the Denka rubber plant had heen emitting chloroprene into the air-- the 

same chemical the EPA has labeled a "likely carcinogen." With the government shutdown, and EPA not 

taking chloroprene air samples, that's five days' worth of missing information. 

Wilma Subra, a technician with the Louisiana Environmental Action Network said without this 

information, ithe citizens living in the area are at a disadvantage, and potentially even more risk from 

the Denka plant. 
260 


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"We really need data on an ongoing basis so we can see what's happening in the community, and how 

sick it's making the community," Surba said. "If they decide they need to clean out some kind of vessel or 

do a 'dirty job' they wouldn't do it on a day they were monitoring." 

The EPA recommends chloroprene emission levels not rise above 0.2 micrograms per cubic meter. Suhra 

said while chloroprene levels have trended downwards in the past year, there have heen days where the 

levels are very high. Without constant monitoring, she fears there will be more "high-level" events. 

"A week is too long [to go without data], especially when we're seeing the high level in October and the 

hiRh levels in November. Then what are we missing? We never know what we're missing if we don't have 

the data," Suhra said. 

Laplace resident Bobby Taylor continues to fiRht against the plant and the chloroprene emissions. He 

said multiple friends and family members have suffered from various illnesses and cancer because of the 

plant, including himself. 

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"They're all suffering someone dying of cancer is not a nice sight," Taylor said. 

And despite watching those around him in pain, he said what angers him most is the inaction of people 

in power. 

"It is inhumane. There's nothing humane about what's taken place while these fat cats walk around, 

driving new cars, living in expensive subdivision, and poisoning the common folk over here, and its 

gotten to the point I'm fed up with it,· Taylor said, "Something has to be done," Taylor said. 

With the EPA is not, Denka is continuing with its monitoring schedule and the last report was published 

mid-December. Just before the shutdown, the last set of data the EPA posted online was through Nov. 

12th. But Subra fears every week that passes without all the information, the people of St. John are put at 

risk. 

"They deserve to have a constant stream of data available to them so they know how to conduct their 

lives living right up to the fence line at this facility," Suhra said. 

FOX 8 contacted Denka regarding whether or not they will take more air monitoring samples until the 

shutdown has lifted, but did not hear back Tuesday (Jan. 2). 
261 


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linitcd ~tatrs ~cnatr 

January I 0, 2019 

The Honorable Andrew Wheeler 

Acting Administrator 

Environmental Protection Agency (EPA) 

!301 Constitution Ave. NW 

Washington, DC 20460 

Dear Acting Administrator Wheeler: 

We write with questions regarding the implementation of EPA's December 31, 2018 

Contingency Plan in the Event of a Government Shutdown', particularly in light of next week's 

confirmation hearing on your nomination to lead the EPA as its Administrator. 

The majority of EPA employees have been furloughed without pay since December 29, 2018. 

The consequences of the shutdown on public health and the environment include the slow-down 

or cessation of clean-up work at hundreds of toxic Superfund sites across the country, a halt in 

most EPA inspection and enforcement activities, and a stop to new chemical and pesticide safety 

evaluations and approvals. 

EPA's December 31, 2018 contingency plan notes three categories of employees who would be 

expected to continue to report to work even though these employees would also not be paid. 

Specifically, the plan contemplates: 

6 Presidentially Appointed/Senate Confirmed employees "necessmy to perform activities 

expressly authorized by law"; 

12 employees "necessary to the discharge of the President's constitutional duties and 

powers"~ or 

794 employees "necessary to protect life and property". 

We are concerned that preparations for your confirmation hearing may be occurring using 

resources that are not described in or authorized under EPA's Contingency Plan. For example, 

meeting requests with Senators have copied five EPA employees on the emai!s to our offices. 

The agency's Senior Counsel for Ethics and an EPA notary worked to certify your ethics form on 

January 9, 2019. We have also been informed that most EPA political officials as well as some 

EPA career staff have been supporting your hearing preparations and briefings. 

1 https ://www. epa.gov/a boutepa/usvepa·contingency-p Ian-event -government -shutdown 
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It is difficult to understand how preparing you for next week's confirmation hearing credibly 

falls within any of the categories listed in EPA's Contingency Plan, particularly the category of 

employee that is "necessary to protect life and property." Using EPA resources in this manner 

may also run afoul of the Antideficiency Act. More disturbingly, if EPA is diverting resources 

that are intended to be used to "protect life and property" to prepare you for your confirmation 

hearing, the already-dire consequences of the shutdown on public health and the environment 

could be even greater. 

So that we can better understand EPA's implementation of its Contingency Plan, please provide, 

in advance of your January 16, 2019 confirmation hearing, the following materials: 

1. The names and titles of the 6 Presidentially Appointed/Senate Confirmed employees 

"necessary to pe1jorm activities expressly authorized by law." 

2. The names and titles of the 12 employees "necessary to the discharge of the President's 

constitutional duties and powers". 

3. The names of the 794 employees "necessary to protect life and property." 

4. A list of all briefings, meetings, and conference calls related to your nomination and 

upcoming confirmation hearing that have occurred since December 29, 2018, along with 

all participants in those briefings, meetings or conference calls. 

5. For any participant in a briefing, meeting or conference call described in item 4 who is 

not listed in response to item 1 or 2, please provide a legal justification for the 

participant's activities in light of both EPA's Contingency Plan and the Antideficiency 

Act. 

6. Copies of all em ails, memos, presentations, correspondence, meeting requests and 

briefing materials related to your nomination and upcoming confirmation hearing, 

including reviews of your financial and ethics documentation submitted with your 

nomination on January 9, 2019, that have been prepared or circulated since December 29, 

2018. 

7. An official accounting, including the names, titles and a schedule of total hours worked 

by all EPA staff involved in preparing you for or otherwise related to your nomination 

and upcoming confirmation hearing since December 29, 2018. 

8. Any legal opinion or memoranda produced or reviewed in anticipation of your 

nomination or upcoming confirmation hearing that relates to the Antideficiency Act or 

government shutdown. 

Thank you very much for your attention to this important matter. If you have any questions or 

concerns, please have your staff contact Michal Freedhoff of the Environment and Public Works 

Committee staff, at 202-224-8832. 

Sincerely, 

~ -~ ~amm L. Cardin 

Ranking Member United States Senator 
263 


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~ Un•ted States Senator 

, 

~~~ Chris Van Hollen 

United States Senator 
264 


35314.253

U.S. Environmental Protection Agency 

Contingency Plan for Shutdown 

January 14, 2019 

1 
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35314.254

EPA CONTINGENCY PLAN 

FOR SHUTDOWN OF THE AGENCY DllE TO A FUNDING HIATUS 

I. PURPOSE. The lJ.S. Environmentall'rotcctinn A~cnc1· has 134 tacilitics that occup) approximately 

R.2 million square feet of space. EPA fitcilitics consist,,,: office. laboratory. and warehouse space. The 

largest fa..:ilities arc the headquarters facilities located in the \Vashingh)n. DC metropolitan area. the 

ten regional offices that suppm1 and manage EPA·~ environ menial policies and programs in the state:;. 

and the twn major research centers situated in Re_scarch Triangle Park. North Carolina. and Cincinnati. 

Ohio. 

!'his contingency plan provides general guidelines for the orderly handling of EPA operations in the 

c\·cnt of a funding hiatus caused by the lack of 1!jlpropriations. ln the event of an actual shutdown where 

1:1';\ is required to implemcnllhis gcneml guidance. supplemental governmcnt-wiuc guidance issued 

by the Oi'ficc of Management and Budget. the Oflice of Pcrsnnncl Management. and the (Jenera! 

Services Administration also apply. 

2. AUTHORITY. In the event of a funding hiatus due to the lack of an appropriations ad or a continuing 

n .. •solution. an ngcncy may only continue those activities th.at arc cxt..~mpted or excepted. 

An agency may exempt activities from the shutdown if the a~th hies urc.: funded \\ ith llll!.!Xpircd 

appropriations wherL· carryon:r funds remain unobligated or if the activities arc funded \\ith non~ 

appropriated f'umb. such as f~cs and payments that ar~ m ailablc fl)f obligation. i\ppro\·Cd C;\t:mptcd 

actiYitles nHI) only continue as long a~ there an: funds available to ~upport thc e:\cmptcd activitic~. 

An agcnc~ ma) incur obligations in ad vane'-! of appropriation~ if: 

i\. A statute or other legal requirement cxprc»ly authorizes an agency to obligate hmds in advance of 

appropriations: 

fl. Pursuant to .ll tJ.S.C. U-12. the function addrcs,cs cmcr1!cncv circnmstanccs. such that the 

suspension of the functi<m would imminently threaten the saf~ty o.flmman life or the protection of 

property: or 

( · The fimction is necessary to the discharge of the President· s "'''"titutional dutk•, and pcm crs. 

There arc als~' a limitl'd number of government a~li\'itics that an ag0nJ.:y must continue. in the abscn..:c 

of appropriations. because their conlinuatinn is "ncccs:mrily" implied from the authoritcd continuation 

of other (exempt or excepted) activities. 

OM!3 C'ircular A-ll. Section 12.\ requires agencies to dc1·clop and maintain plans for an order!~ 

shmdown in the event of till' absence of npprupriations. Plans must be submitted to OMB and include 

the ll1llo11 in!( information: 

I. Fstimated time (lo the nearest hall~da}) to complete any shutdown: 

\Vhile most shutdown activities can he accnmplished within four hours, some agency 

shutdown pcrsonnd may nceu to work longer to secure and shutdown EPA propert~· and 

fncilitics, including the val'icd laboratory I'Csearch facilitit's and experiments that EPA i.< 

conducting. EPA expects the vnst majol'ity ofshutdownactiYitics will be completed in less 

than lin flt1~·s. 
266 


35314.255

0 ~umber of employees e~pc.:tcd to he on-hoard before implementation <'f the plan. 

l'et·m1ment Employees 

Full Time 

Intermittent 

Parf Tim..: 

Temporal)· Employees 

Full Time 

13.489 

I 

2.18 

I Rl 

Intermittent 57 

Part Time 6 

13,728 

244 

Total (as of [)eccmber 17, 2018) 13,972 

3. Total number ofcmpl<'yces to be retained under the plan for each of the f(JII<ming categories: 

a. Their compen:-;alion is financed by a resource other than annual appropriatit)ns: 0 

b. They arc necessary to pcrfonn activities expressly authorized by law: 6 Presidentially 

Appointed/Senate Confirmed individuals. 

c. They nrc nccc.ssaty to pcrf<mn activities ncccssaril~ implied hy law: 12 

d. They nre ne-cessary w the discharge ,,fthc Presidl!nt"s con,;titutional duties and powers: 28 

c. They arc necessary to protect life and property: EPA estimates 845 employees (444 

llclldqunrtcrs and their field and laborato~· componl'nts: ami 401 rc~:ional). 

The policies and procedures detailed in this contingcnc~ plan arc issued in accordance \\ith OMB 

Circular A-ll. Section 124; OMB Bulletin 80-14. dated August 28. 1980 (a,; amended by the OMB 

Director",; mcnwmndum of Nmcmbcr I i. 1981 and Suppkml'llt I to Bulletin 80-l.J. dared August ~0. 

1982). The~ af"l.• al"' consistent with the !i1lk"' ing! .'.S. Oepanmcnt 0f Justice. Office of Legal ( 'ounsd 

opinions: ··Applicability of the Anti-De1icicncy Act Upon a Lapse in an Agency's Appropriations"" 

( 1980). ·· :\uthorit) l(lr the Continuance of Government Functions During a Tcmp0rary Lapse in 

Appmpriations .. (1981). and an opinion dated Aug. 16. 1995. that rcartinm and updates the 1981 

opini<m. 

3. COVERAGE. In the event of a funding hiatus caused h) the lack of either an appropriations act llr a 

continuing: rcs,,lution. all EPA programs must follov\ this guidnucc. Four actions will be taken. These 

actions im olvc conducting (A) furil,ugh activities; ( ll) shutdov\tt activities; (C) c~ceptcd activities. and 

(D) exempted acti,itics. 

A. FlJRLOLJGII ACTIVITIES: All furloughed cmplo)cc> \\ill be ad,iscd to conduct an order!~ 

shutdown of their activ itics. Shut(hmn activities can be completed in the oflicc or by tdcvvork 

unless otherwise nc1tilicd. 

B. Slll!TDOWN ACTIVITIES: Some personnel will be dc,;ignatcd as ncccssal) tn complete tasks 

lt>r the orderly shutdown oft he agency and" ill wntinuc to report until such time as their shutdo\\ n 

tasks have been completed. 

3 
267 


35314.256

C. EXCEPTED ACTIVITIES: Some activities and !\mctinns will continue because they arc 

authorized by law or fall within the ADA· s emergency exception. The personnel carrying out these 

activities may work even in the absence ofnn appropriation. These functions nrc described in more 

detail in Section 5 of this contingency plan. 

0. F:XEMPTED ACTIVITIES: Certain progmms funded with unexpired appropriations where 

carl) over funds remain unobligatt:d or programs funded from sources other than appn)priatinns, 

>nch as fees and pa) mcnts that arc a'ailahle for obligation. 111<1y be exempted. See Section 6 . 

.t. EMPLOYEE REPORTING PROCF.DliRF.S 

A. ALL PEnSONNEL: Under the applicable regulations and OPM policy. employees dn not need 

In be pro,ided advance "rittcn nc>tice of a furlough if the furlough is due to a lack of an 

appropriations act or a continuing resolution. However. the agency will make every effort to notify 

all employees adversely affected by the furlough in advance and adhere to related collective 

bargaining agreements. In the event of an appropriations hiatus. all personnel will report for dut~ 

on their lirst working day following the expiration of an appropriations act or a continuing 

rcsoluti,munless twti fic.:l otherwise nr unless they are on pre\ iousl) approved annual or sick lea,< c. 

On that day. all personnel not designated h> carry out shutdown. excepted. or exempted activities 

will be furloughed. Furlough decision notices will be distributed to each employee. All personnel 

receiving lltrlough notices \\ill he dismissed and directed not to r~port to work 1mti! an 

Appropriatilllls Act or a Continuing Resolution is enacted. Appropriate action placing affected 

agency employees in a non-pay stnllls will be !<>ken. Additionally. any approved leave during a 

furlough will be cancelled and an) new r<."<juests felT leave during the fitrlough "ill be denied. 

Only personnel required !(w tlw orderly shutdown of the agency or assigned to excepted or 

exempted limctions should continue to report for duty. A II <>I her personnel must depart folll1\\ ing 

their dismissal after they have secured their work space <>nd documents: idcntifocd an~ approved 

travel plans over the next JO da\S: and entered their time into the a~cncv 's time & attendance 

system. if required. EPA estim;;tes that these activities should take less than one-half workday 

(f\1ur hours) nnd these activities can he pcr!(>nncd remotely. 

In nccordanc<.> with the ADA. no employees on furlough will he• authorized to work or volumcer 

th..:ir services during the shutdown pcri()d. 

B. SHUTDOWN PERSONNEL: Personnel designated for the onlerlv shutdown of the agcncv will 

cominuc to report for duty until such time as thclr shutdown tasks ha~e been completed. SIHlidown 

acth<itie5 will need to he ~omplcted as cxpctlitinu~ly as possible. Once the services of these 

employees arc no longer required. shutdc1wn personnel will also be furloughed, Any obligations 

l\1r shutdown activitic., will be paid aficr a new appropriation is prm idcd. Shutdown activities are 

described in more detail in Section 7.8. 

C. EXCEPTED l'ERSONNEL: Personnel "ho arc required to perform c':\ceptcd activities b~ 

ensuring the safety of human life and the protection of property (including the protection of 

government property) where the threat to life or property is imminent will Cl>ntinuc to report 

li>llowing a shutdown. E.xccptcd activities are described in more detail in Section 5. By l<l\\, 

excepted acti' itic> may c.:outinnc It> be pcr!brmcd. Any nc\\ obligations incun·cd f(>r excepted 

activities will h<' paid f(Jr alicr a new appropriation is provided. 

4 
268 


35314.257

D. COMMISSIONED OFFICt:RS: Commissioned officers arc employees of the Public Health 

Service. If [!'A has a lapse in appropriations. PHS officers will continue to work at the EPA 

because they arc authorized hy law to continue working. 

E. EXEMI'TED PERSONNEL: Personnel who pcrl(mn exempted activities and who arc exempted 

from the shutdown order will continue to repon f(H' duty and conduct their assigned responsibilities 

until available canyovcr funds are close to being fully obligated or funds from Ices and payments 

are ncar Jiqu1dation. 

EPA retains the authority to modify lists of personnel working on e:-;cepted or exempted activities, 

as necessary, during any period or shutdown. 

5. EXCEPTED ACTIVITIES: All Senior Resource Officials must develop and submit a list of 

personnel who would be necessary to perlt1nn excepted activities including those ful.lmU!lg shutdo" n. 

Additional inf(mnation concerning this list is found under Section 7.A 

When determining which personnel are needed to can)' out excepted operations, SROs should consider 

those personnel necessary to carry out activities such as those identified in the government-wide 

examples listed below. Among these arc personnel required to ensure compliance with OMB bulletin 

R0-14. supplement No.I, and at!achmcnts thereto. 

Primary examples of activities relmed tn EPA that the agency Ulll.l: continue to perform following 

shutd,mn include: 

A. Providing for homeland and nati<mal security. including the conduct of foreign relations essential 

to the national security; or 

B. Personal services necessary to respond to emergencies involving the safety of human life or the 

protection of property, where the threat to human life or propetty is imminent. including: 

1. Activities essential to ensure continued public health and safety. including safe usc of fond and 

drugs and safe use of hazardous materials; 

2. Protection of federal lands. buildings. equipment. research propeny. and other property owned 

hy the t!nited States; 

:1. Law enforcement and criminal investigations: and 

4. Emergency (lnd disaster assistance. 

5. Supp01t StaiT: Only the minimum staff and support services necessary to continue the above 

listed functions should he maintained. 

The specific excepted activities. personnel. and level of suppon required based on the examples above 

will be determined by the Office of Mission Support in consultation with the Office of the Chief 

Financial Officer. the Office of General Counsel and appropriate program 0ffices, 

Excepted personnel arc excluded from furlough during shutdown but onlv for the hours/davs it takes 

them to perform their excepted acti•·itics. If a function requires one hour per day, then the excepted 

employee may work for only one hour per day to perform only that excepted ta,k. 

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Specific examples of excepted activities in~·h1dc: 

Excepted Activities to Support Superfund Rl•sponse Site Work 

lmminelll tltrenr w Public Health Sites/projects. predominantly as,ociatcd with the sup~rrund 

program. where- a nti!urc to maintain operations \hmld pos~ .an imminent threat to human life. The 

_,itcslprojects require the EPA personnel to direct or oversee the response activities and/or provide 

critical support functions. There is an expectation that the EPA presence or activities. typically by an 

onsccnc coordinator or remedial project manager will he required. The EPA will cvnluatc more than 

800 super fund sites to dctenninc hlm many meet this criterion. !For exampk ilceming the operatirm 

ld an acid mine t!rainap,l! trl!alment plcm would cause a release to a stream thai prodded drinking 

\rater to a comnwm)y: the ag.em:y would c.·onJid,·r that .~iltwlionlo pose wt imminenlthrea/ . .-1 second 

c.wmple is"'' emergenq remow1/ reSf>OIIS<' ro a situation posing m1 imminelll tilrem to human ilealth.J 

EPA Laboratories 

!"he EPA maintains 29 program and regional lahoratorics across the continental United States. These 

laboratories hnvc uni4uc ftmctions that support the agency in fulfilling its mission to salcguard human 

health and prntect the natural em ironment. Tlw EPA "ill take necessary measure' to ensure the 

physical integrity of the EPA's research property is protected where. without these measures. the 

property would he damaged t)r dcslroycd. ln order to protect research propcl'ty and stand-alone 

facilities. personnel will be excepted as needed to ensure critical operating requirements are not 

impaired. Thcst.> needs arc as l~lr~nmging tb ensuring the physical protect inn of federal property. that 

controlled cnvironmcllls (such as freezers) will tlmction and not he damaged. that sdcmilic 

instrumentution will fm11;tion and not be impaired. and that lab animals. plant>. a~d other unique test 

organisms '"'iU not he damaged or dcstroyt.::d. 

Laboratory operaliuns inn)lvcd in the toxicity testing of cnvironmcntnl sample~ require.~ the usc nf 

unique test urg:ani~ms ~uch as tttthcad minncm and small crustaceans. The tcsl oru.anism.s must he !!:fO\\ n 

under contmlled laboratory conditions such a;: temperature, li[!ht. water quality ,;;,d food supply ir; order 

to pnwidc n.:prodw.:iblc results during testing. Depending on the test organism. a pt.~riod of '"'eel\:-; or 

months under corltrollcd grO\\ ing conditions is required fnr the organism to reproduce. Personnel \\ill 

he excepted as needed in c>rdcr to pmtcct the physical integrity of the !est organi>ms ;:o that a shutd,mn 

\\ill not result in the loss of,iahk test organisms. 

The responsibilities for many of these laooratory. related excepted activities "ill be shared between 

Se\·eral individuals. splitting work on an as needed basis whenever pDssiblc. 

Emergency Response Readiness Operations 

EPA· s emergency resp,m,;c pmgram scf\ c·s as a safety net to states. local and private lirst responders 

for situntions in\ olving actual and/or threatened of environmental emergencies. The program suppnrts 

the White !louse national cs;:cntinl functions through our prinwry mission essential function. 

Specifically, EPA's P!'vlEF is to pt·cvent. limit miti[!Utc or contain chemical. oil. radi,llogical, 

bin logicaL and ha;:ardous materials during and in the aftermath of an ac~ident. natural or nwnwmade 

disaster in 1he United States. and provide e1wironmcnta1 monitoring. assessment and rcportinp. in 

support or d\>mcstic incident management. 

ln the event of a shutdol'n. regional olliccs shoukl utilize exi;:ting procedures to maintain their phone 

and response on-duty on~:o;cenc coordinatur(s) to maintain am] ensure prQmpt support of en\·ironmcntal 

emergency rcspnnsc.s that requires EPA attention andllH. n~.:tion. I 10 offices with emergency respon-tc 

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responsibilities should also maintain their duty personnel to ensure prompt support and/or oversight of 

environmental emergency responses thnt require EP/\ attention and/or action. 

In the event of a water related incident "here the threat 10 human life or property is imminent. 

individuals from tht.~ \Vater s~curity Division emergency rcspo·nsc team would need to retun1 to \Vork 

in order to assist with EPA's response elli>rts. 1\lsP. certain technical specialists from the Office of 

Water incident suppm1 team would need to return to wPrk depending on the type of emergency. The 

WSD indidduals would need tn repon tt> their normal \\orkstation or to the EPA Emcrgenc;. Operations 

Center. Duties would include: national incident command center reporting on SSi\ issues: setting up 

the wntcr desk: running the water desk (i.e. managing c-mails and calls, reaching out to tcdmical 

specialists to answer inquiries; developing a schedule fclr "'~tcr desk slatTing fi·om among the incident 

suppot1 team members wlH> arc aJ.;o t>ll call; attcndin~ '<ICC meetings: draliing OW management 

report~: rc,·lewing and apprr~ving contractor in,·oiccs and emergency travel authorir,ations. In addition. 

the EPA may draw upon technical specialists as relevant expertise contingent on the nature of the 

emergency. 

Legal Counseling, Litigation, and Law Enforcement Activities 

La\\ enforcement personnel involved in m;tivities designed to protect human life and proper!) from 

imminent threat will he excepted f(>r the time minimally neccssar;. to carry out such activities. 

Attorneys prO\ iding legal supponto excepted activities" ill be excepted only for the time necessary to 

provide such support. i\ttonwys who charge their time hl apprnpriations impacted by the funding lapse 

"ill be excepted to support excepted or e~Ct1lllted acti1 itics if there is a necessarily implied 

authori;ation for the attonh.·~s to continue to \\Ork. 1..\ neccssaril~ implied authorization exists v.hcn a 

statute directs EP;\ or a governmental cntit) to pcrfonn an nctivity during a lapse in appropriations and 

non~pcrfiJrmance of an attorney\; suppon f(-,r that activity during the fimdlng IapRe would undermine 

implementation of the terms <>I' the statute. For the contingency planning fill' shutdo11n in April of20 I I. 

the Department of Justice ncldscd that the courts '"'uld remain open during a shutdown. but DO.f "Ou!d 

request sta) s of some litigation and court ordered deadlines fhr the dural ion of the shutdown. Ira C(\lll1 

did not grant the stay, DO.f expected the l'PA to continue to provide the legal or technical support 

necessary to meet any coun deadlines or orders. including but not limited to court appearances and 

response to discolcf!' requests. Thcrc!l,lrc, in EPA's April 201 I and September 2013 Contingcnc~ 

Plans fill' Shutdown. the EPA planned to continue to support DOJ as needed. In implementing this 

Contingency Plan for Shuldnwn, EPA will consult with DOJ and l(lllow its guidance. 

6. EXEMI'TF.O ACTIVITIES: 

In the event of a funding hiatus due to the luck of an appropriations act or a continuing resolution. the 

Agency will asses,; the a1 ailabilily of unexpired multiple and no-year appropriations as well as funds 

availahle from other source~. 

If it determines there is sunicicnt carryn1cr fill' it to be practicable f<lrthc Agency to opc•·ate for a period 

of time until these appropriations and funds arc close to being exhausted. it "ill do so. The Agency 

would proceed with shutdown activities when there is nn longer suflicienl carryover f(lr it to he 

practicable f(>r the Agency to operate. 

If it determines from the beginning that there arc not surticicnt CatT)·ovCI' funds f(>r it to be practicable 

l(JT the i\gcncv to operate. it >~ill proceed "ith shutckmn activities immediately. 

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7. SHUTDOWN ACTIVITIES: 

A. SHlJTUOWN !'LANNING: 

Shutd~)W!l activities should he conduclcd in a manner" herch~ expedient r!.!activation of n(H·mal 

nperati(l!lS and acti\ ities may ~)t;Cur "hen funds an.· made available. 

Senior resource oflicials must develop and submit a tist of personnel essential to carr:- nul an 

orderly 5hutdo\\ n to OMS. In preparing thb list. SROs should consider the specific actions that 

\\Ottld be n~ccssary to affect an on.Jl!rf) shutdo\\n of the agenc~. giving primary considemtion to 

protect in!( life and safeguarding government propcny and records. The list should not replicate the 

list to maintain the agency's continuity of operations since this list will he to shutdown agency 

opemtions. Fach SRO is responsible for in!(mning their employees if they arc on the shutdown list. 

The list should indicate which pcrsonnd would he necessary ttl perform excepted activities 

following a shutdo\1 n. The SRO is r6pnnsiblc 1\lr in limning th<'ir employees if they are on the 

cxcepled activiti~s list 

rhc shutdown and excepted personnel list is su~jcct to review and appnwal b:- OMS. OMS ma:-

consuh with Ol'FO and OGC as necessary. The Jist should identil~ each person's name. employee 

identiticntion number. position. otlice/division. and function. The list should continually he rc' i><•d 

as necessary and will be kept on file b) OMS. Each SRO must also provide the list of names of the 

excepted and any exempted personnel to the facility manager at each EPA location. Only those 

employees ucsignated as excepted or exempted personnel will be allowed into EPA 1:1cilitics alter 

a shmdo\\ n is C<lmplctcd. 

lndiddual Ofliecs in Ol\·lS and OCTO ma) Jlf'<" ide additional guidance relating to their specific 

operatinn~ in the l'H.·nt a ~hutdo'' n. 

The assistant at!mini.,trator ltlr OMS \\ill keep the EPA Administrator apprised of the agenc:- ·, 

shutdown activities. The AA for OMS. and other appropriate ofliccs dcsignakd within that oflicc. 

will coordinate cl1(lrts as necessary with reginnal. lH:adquru1crs. and lidd oHiccs. 

A limited number nf cmplo)ces performing cx~;~:ptcd and/or appnncd excmpkU activities ma) be 

designated as standhy and must be included in any excepted nr exempted pcn;onnel list. 

As_sistant.lr~ghmal administrators may need lll idcntit~· additional empltlyL'cs for excepted acti\ itics 

in an cmcrgcnc) siwatinn. These indi\ iduab ''ill not be in a pay statu:\ prior to being n .. "'tai!L-J In 

\\Ork and will he added to the list of excepted pc"onnel a tier being recalbL If funds arc available 

to support additional employees in ~ul C"mergcncy situation. assistantlrcgimli11 administrators ma) 

add the indi"iduals t<> the approved exempted li" and the employee will be recalled to work and 

will assume a pay status. Assistant/regional administrators must notily the OMS and OCTO of any 

changes to their approved lists for payroll. travel and other purposes and also notif)' the local 

facility/security lmlllagcr f(Jr building accl:ss. 

B. SHl'TUOWN IMPLEMENTATION: 

In the cn:nt nf a funding hi:ltus. the fn!ht\\ in!! n.~striclions apply tP ail Agency appropriations: 

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l. Halt Obligations: In th~ event of a shutdown in the absence of an appropriations act or a 

continuing resolution. the EPA will stop incurring new obligations other than those 

supporting excepted or approved exempted acti\ities. ;md shutdown operations. 

tinder the authority of the ADA (3 I l JSC 1 J42). federal officials may in..:ur obligations as 

necessary fiJr excepted acth itics such as emergencies invol\ ing the safety of human life or 

the protection of property where the threat to life or property is imminc11t and for orderly 

termination activities. Additionally. the U.S. government has the legal authority to incur 

obligations to pay lilr: 

a. Its workforce for the approximnte one-half day (4 hours) furlough activities and 

n.:ccssary agency shutdlmn a..:ti1 itics estimated not to exceed !lve days; 

b. Costs incurred in conjunction with equitablt.: adjustments for work stoppages on contrat.:t 

and grant activities; and 

c. Infrastructure costs associated with shuHiown and excepted actl\'lltcs such as rent. 

telephone ser\'icc. etc. which will be incurred until appropriations have been pnwidcd_ 

d. Approved travel costs incurred in by excepted personnel in the performance of excepted 

activitks. 

Additionally. the EPA may incur obligations 10 pay approved travel costs incurred by 

e:xempted personnel in the performance of exempted activities to the extent that there is 

carryo,cr or <'!her funds mailable lor obligations to pay the trllVe! costs. 

The authority to incur the obligation to pay does nN extend tn the actual disbursement. 

Payment f(·•r th<'Sc' obligation' \1 ill generally not he disbursed until the resumption of normal 

agenc) activities l(>lloll'ing the shutthm n when an Appropriations Act or Continuing 

Resolution is enacted. Paynwnt f(>r sen•iccs rendered may be made for excepted activities 

where there is an imminent threat to the safety of human life and property and funds arc 

a\ailablc in the comract. 

2. N(•w Contmct Obligations: Unless necessary fix ex.:epted activities or for appmved 

exempted activities. no nc\\ obligations for contracts including the ~:xercise of options. may 

be entered into beginning with the first day of a fiscal y.:ar when an appropriations act or a 

continuing resolution has ne>t been .:nacted or on the first day immediately folio'\ ing the 

expiration of H continuing resolution and no new appropriations act or continuing rc·>olutinn 

has been enacted. Options exercised prior to the start of the new !iscal year already contain 

a "sul~jcct tu availability of' funds" clmtse to provide fM any lack of funding in the new fiscal 

year. If a new obligation is necessary filr an cxccpwd or exempted activity. the national 

program manager is to b" consulted who '~ill then consult with other organizations such a, 

OMS and OCFO. 

3. Existing Contract Obliglltions: EI'A has thousands of ordering documents including 

contrncts. delivery orders. wurk assignments and task orders. Contracting oniccrs may not 

issue any new wnrk assignments. task or ddivcry orders. unles> for excepted acti\ities or 

approved exempted activitic~. Existing limdcd contracts that do not require intcrm:tion \\ ith 

fc:dcral employees can continue work until >udl time govcm111cnt interaction is ncccssm') 

and/or runding is exhausted. 

9 
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Generally, EPA employees will not he available to make payments until the shutdown ends. 

Payment for scr\'kcs rendered may be made for excepted activities where there is an 

imminent threat to the safety of human life and property and funds arc a\·aiiable in the 

contract. 

4, Existing Grants, Coopemtivc Agrct•mcnts, and Jntcmgcncv Agreements: EPA has 5.593 

m:tivc assistance agreements and I.~ 19 actiw interagenC) agreements as of tht• date of this 

plan. As a general ruk:. recipiems offundcd grants and cooperative agreements can continue 

\\ork on their prt~jects during any EPA shutdown. Grant recipients currently approved to 

utilize the Aul!Jlllatcd Standard Application Payment (ASAP) system may make drawdowns 

of authorized obligated levels during a shutdown. \Vith the exception of grant recipients 

using ASAP, in the case of government shutdown no payment processing will be available 

for cost reimbursable llr recipients with special award terms and Cllnditions requiring EPA 

approval prior to paylllcnt disbursement (either by paper c.:hcch. drawdown, or by ACH 

payment outside of the ASAP system), Generally. EPA staff will not be availahlc to make 

payments until the shutdown ends. Recipients must st,lp 11orl- if they reach a point at \\ hich 

they rc:quirc EPA involvement or appnwal. Recipients should maintain dncumcntati<lll of any 

allowable costs associated with the 11 ork ,;toppagc. Recipient staff assigned to EPA facilities 

will not be allowed m:cess to those fitcilities. If thev can sntist:1ctorih continue work ofi~ 

site, the project can continue SEE enrollees 11ill be ,;otilicd of furloug,it in ac:cordance with 

their grant proccdun:s, Additi,,nal guidance 11 ill be provided through the agency's SEE 

progran1 nwnagt:r. 

EPA program offices in conjunction with the OGD and in eonsultation 11 ith the other agency 

wil! detenninc if'' ork under <my funds-in lAs is necessary for shutdown, excepted, or 

approved exempted activities. If not, work on such agr.:cmcnls will stop. Other agencies 

can .:nntinue to work on fhllv fumh:d timds-out lAs if the other accncv is not shut down. 

llo''"'·cr. other agencies mu~l slop IIWk if the~ reach a poi Ill at ~ hicl1 they require I' PA 

ill\ohcmcnt or appro,aL If the other agency is closed. that agency in consultation with EPA 

11 ill tktcrmine whether activities under funds-om lAs arc ncccssal') for shutdn11n or arc for 

cxccpt.:d or .::xcmpt activities. 

EPA may issue additional guidance to determine if work funded under existing lAs, not 

invoh ing excepted or exempted activities. may continue. 

5, Suspend Travt>l: There should he no travel in the absence of an appropriations act or 

continuing resolution except f(Jr tra\d ncccssal')· lor excepted uctivitics or travel necessar') 

to carryout approved exempted activities where there is carryll\·er or other limds available 

to pa~ the travel costs of the cxemph:d personneL ;\II personnel in travel staltls will return 

10 their duty station as soon as possible, unless continued travel is essential for 

accomplishing the nrderly shutdown of the organi7~1tion or for excepted or approved 

exempted activities. EPA employees "ill not be :t\ ailahlc to mak.:: payments until the 

shutdown ends. 

In the event of a shutdown. tlw Office of' lntcrnatill!Wl and Tribal A !lairs will provide each 

Deputy Assistant Administrator and Deputy Regional Administrator a list of staff currently 

on inll:rnational traveL The int<mnation will include a lra\dcr's hotel and emergency contact 

infi.mmllion so programs and rc!!ions can reach those employees. 

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Employees assigned nvcrs.:as an: not in tra' el status. The overseas location is their 

permanent station. These cmploy.:es in temporary quar1ers during the furlough will remain 

in temporal'}' qum1ers. If these .:mployces arc not designated a:; essential or exempted. they 

would not rcpnrt to "ork. 

Employees on extended TDY travel \\here a detail personnel action (SF52) was issued and 

funded should follow instructions given by the n:cciving nflice. The employee would not 

return to their home location during a shutd<mn unless instructed. 

6. Process Panoll: OC'FCJ's { !ITice ofTechno!ogv Soluti(lns must assure delivery ofpaychec~s 

by .:lectronic transmission. 

a. ( !TS will maintain stniT to continue payroll processing fllr the last full pa) period or 

any partial pay period prior to the shutdown. The payroll oflice will also begin 

reconciliation and clnseout acti1itics. 

b. OTS will not process any subsequmt paymll(s) during the shutdown for excepted tlr 

shutdown pcrsonnd until the end nf the shutdo"n in accordance with curn.:nt IBC 

shutdnwn J)(llicy. 

c. If applicable. OTS will process time and attendance records fi.1r exempted employees 

for subsequent pay ro!!(s) during the shutdown only if IBC maintains its civilian payrnl! 

<lpcrations. 

d. OTS "ill notil)' all employees prior to the initiation of any furlt'ugh action. "ith 

instructions regarding the completion of electronic time cards. 

7. Suspend All (nthct· than panolll Non-Essential Fimmcial Trnnsnctions: OCFO's Oflic~ 

oftht· Controller\\ ill notif) nil tinnnce centers to secure cash funds. n:ceivahks. collection>. 

and all financial records. The processing of requests for payments from contractors. grantees. 

lA recipients for obligations incurred prior !Ll shutdown generally arc not considered 

emergency t_lpl!rations. 

a. OC Hnancc centers and staff will suspend all but em.;rgency actions and Agency 

shutdown activities until enactment of an Appropriations Act or Continuing 

Resolution. 

b. Instructions will be provided concerning operations of the ngency's core financial 

management system for excepted or exempted activities prior to suspension of agency 

operations. The agency's core tirwncial management system will be used to monitor 

obligations l\1r e!(ct•ptcd or cxcmptcd acti1 ities during a >hutd(>wn. 

8. Personnel Activities: The !'Pi\ nntst not hire any IIC\\ personnel in the abs.:nce of nn 

i\ppwpriations Act or a Continuing Resolution. The agency's humun resources shared 

scr"vice centers will process the required personnel actions to a!Tcct the tltrlough and \\ill 

noti(y employees of their rights and benefits ''hile they arc in furlough status in accordance 

"ith OI'M and OMil polic). 

9. Tclcwork Activitil~s <Jml Alternate Work Schedules: Employees should coordinate 11ith 

their supervisors. All work. whether conducted on an AViS schedule or at an Altcmnt.: Wnrk 

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35314.264

Location ucte,\nrk). must be stopped unless the activit) is for an excepted or approved 

exempted activity. 

10. Information Technolo!!~ (IT) S\Stems: Unless ntherwi;,e idcntilict.l as being a 

mi:-.sinn~critlcal system that would supp{1rt a~.:tivilics outiiw ... ·d in (S..:c:tion 5 cx~.:t!pted acti' ities 

or s~:ction 6 exempted activities) of this contingency plnn; most agency n sy,<.;tcms, including 

nct\\Ork operations. should he scaled hack to bnsic n~ratinnal statu~. This means eliminating 

all activities associated with upgrades. development. dcploynK'nt and sen ling back contract 

support to minimal levels in order to prm ide support tor excepted and exempted activities 

and on-call activities (both fed and contractor). This will ensure the protection of g<wcnnncnt 

records. that information and C) ber security controls are in place. and assist in reactivating 

once the period of the shutdown is"' cr. 

The agency Chief lnlonnation Oflkcr "ill identity which systems will be required f(>r 

continued operation during the period of a shutdm,n. DiviS will '"'rk "ith the seni<lr 

int;)nnation officials in each program and reg inn to identify a list nr these mission critic~ll 

system~ and prn' ide guidance r~garding hO\\ continul!d op~ration nf those systems will he 

accomplished as well as the mderly shutdo\\ n and securing of other IT systems and de' ices. 

OCFO "ill manage the Pcoplcl'lus S)S!cm and Concur Travel systc·m. In addition. OCTO 

"ill manage the user support help cksks to assist employees and coordinate "ith OMS on the 

<l\ailability of the help desk t<>r these systems during any shuHiown/furl<'llgh period. 

II. Protection of Non-Personnel Records: Only inventories of vital records will be made 

availahlc during an agency emergency <>r shutdown situation. Vital records arc those rcconb 

that arc needed to pcrl(mn the most critical tiu1etions of the agency and those needed to 

protect kgal and financial rights oft he go\-cTntncnt and oft he pcrso11s af1i:ctcd by its action..,. 

Vital records also include enH.:rgetH.:;. plans and n:latcd r0~-:ords that specit~ ho" an ag.~..~nc~ 

\\ill respond tu an emergency. 

It is csst!ntial to secure records in t~ccordancc with the agency\ records management pnli-eic~ 

th:n affect the rights llf the gm·crnmcnt. private entities mtd individuals. any other records 

that contain ~.:onfidcntial husines.11 infrmnation. Privac) Act information. information 

respon!<>ivc to active or pending litigation. or othen-visc sensitive information {includin,!! 

electronic records.). 

EP:\ detailed records manng('menl guidance is contained in: 

CFR Chapter XII. Suhchaptcr B. Records Management. 36 CFR Part 122.1 

(Managing Vital Rcc(lrds} 

U'6_R<:YJ2£c!~-~1<mngcnJcJltj'_Qljc:_y. CIO 2155J (Fchruar~ 10. 2015) 

.tJ)I\ Esscnti:ti.D'jl>!Jl.lk~llt:<i'.l:'r:g,,cJ.gr.c§. CIO 2155. 1'0 1.1 (March 24. 2015) 

8. NOTIFICATION of RESUMPTION of ACTIVITIES: 

/\. OCFO wiH notify OiV1S and agency "cnior managC'rs of !!nactmcnt of the ncccssar) fuuding: 

mechanism (i.~: .. either a Continuing Resolution or an Appropriation-.: Act). 

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B. OMS will ad\ise all employees to monitor public news broadcasts and OPM"s inremct site 

(~~.1~:.!22!Jk&!2Y) to obtain updat~:d infixmation on the .st::ltus of a pending Appropriations /\ct or a 

Continuing Resolution. 

C. OMS will coordinate as ncccssmv with the Oflicc of Public Affairs. to communicate updated status 

report:-; and actions necessary to ,:cturn to normal Agcnt:y operations anJ to place status updates on 

the '"·"'.l'""J'"'•Jl.O.l: website. OMS "ill alsn ensure the 1-888-EPA·TAIX ( 1-888-372-8255) 

provides updated informntiou. 

D. Contracting otlicers will 11\>tif, contrach,rs of funds availability and OGO "ill t1C1tify recipients 

of funds availabiHt), 

E. OC:FO \\ill coordinate with OMS to communicate any necessary information to employees regarding 

f'copld'lw; and Concur systems. 

9. START liP ACTIVITIES/RESl!MI'TION OF ORDERLY OI'ERATIONS: 

,\. Once EPA receives notification that an appropriation has hccn approwd or is imminent. OMS 

''ill he gin ~ontacting. program/regional offices to begin calling batk their starl~up pcrsonnd 

neccssnry to resume onkrly operations. 

fl. EPA has identified the fc>llt>wing aetivitics.'pcrsonncl required to resume (mlerly opcrati(lllS once 

appropriation~ an.· restored: 

Facilities Acth·iticsll'ersonncl responsible for: 

I. Buildiug Systems: Coordinate with OSi\ilcssor to ensure all FPA building systems. 

including f IVAC~ arc in fulL regular operations prior lo reopening buildings 

Ciuard Force: Conrdinatim! with h:dt!ral Prolecti' t: Services (FPS) or sccurit" contractor to 

en~nrc security is full:' stalft.:d for n:·opcning . 

3. Janitorial/Cleaning Services: Coordinating" ith GSAilcssor to ensure all janitorial services 

rc~umc regular opcrathms 

·l. Building Access: Change access control schedules to daytime 

5. Restore Key Cnntrncts: Ctx,rtlinatc \\ith acquisition personnel to lilt stop work orders on key 

c(mtraL:ts 

Information TechnoiO!..'V Activilies/J'ersonnel responsible for: 

I. Infrastructure Start-Up: Prepare tn hring-up idled syotcms and patch all servers. 

User Suppon llclp Desks: Ensure that all hdp desks arc fully stalled and prepared for Day 

3. Communit.:ati<ms: Support at:li\'itiel:' to update weh p<Jges and mes-.;;aging 

l'r·ocuremcnt Om•rations Activitiesfl'ersonnel responsible for: 

I. Begin cancelling "Stop W"rk Orders" fllr agency contracts related to security. facilities 

operations and rnaitltcnnncc. warehouse and mail scr., ices. 

2. I~suc post-guidance for agency contracting oflkt:rs 

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Grants/lnteragencv Agreements Opcn1tions Activities/Personnel responsible ror: 

I. Issue post~guidanc(..· fOr agency g:ranh 1Ii\ community. 

10. SUPERSESSION: This ,;ontingcncy plan supcrscues any other EPA guidance or order prior to 

this date. 

EPA PERSONNEL RESPONSIBLE FOR IMPLEMENTING/ADJUSTING PLAN 

Donna J. Vizian, Principal Deputy Assistant Administrator, OMS 

Ken Lapierre, Acting Deputy Assistant Administrator for 

Administration and Resources Management, OMS 

lynnann Hitchens, Director, Office-! of Resources and Business Operations, OMS 

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EPA Excepted/Exempted Personnel 

.hmuarv 9, 2019 

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3 

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35314.268

U.S. Environmental Protection Agency 

Contingency Plan for Shutdown 

December 31, 2018 

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35314.269

EPA CONTINGENCY PLAN 

FOR SHUTUOWN OF THE AGENCY I>UE TO A FUNDING HIATUS 

l. PURPOSE. The U.S. Environmental Protection 1\gcncy has 134 iiJCilitics that occupy approximately 

8.~ million square feet of space. El' !\ fitcilitics consist of ollicc. laboratory. and warehouse space. The 

largest facilities arc the hcadqum1crs 1:1cilitics located in the Washington. DC metropolitan area. the 

ten regional offices that suppor1 and manage EPA ·s environmental policies and programs in the states. 

and lht! two mt~jor n:sean:h centers situated in Hcscarch rrianglc Park. North Cnn1lina. and Cincinnati. 

Ohio. 

Thb contingency plan pro' ides general guidelines fill· the order!) handling of EPA operations in the 

event of a funding hiatus caused by the lack of appropriations. In the event of an actual shutdown" here 

El'l\ is required to implement this general guidance. supplemental government-wide guidance issued 

by the Office of Management and Budget. the Office of Personnel Management. and the General 

Services Administration also apply. 

2. AUTHORITY. In the ewnt of a funding hiatus due h> the bck of an appropriations act ora continuing 

resolution. nn a~ency may on!) continue those acti\ iti..:s that arc exempted or excepted. 

An agency ma~ C:\Ctnpt activities fhml the shutchn\n if the activities are funded "ith unexpired 

appropriations where carr~o\cr funds remain unobligated or if the activities are funded with twnappropriatcd fllll<b. such as fees anu payments that arc available for obligation. t\pprowd exempted 

m:tiviries may only continue as long as thcrc arc funds nvailah!e to supptHi the cxl.!mptcd al:tivitics. 

An agency may incur nh!igations in advance of appropriations if: 

:\. :\ statute or tHhcr lc!:!Hl requirement cxprc:-~sly authnriJ.cs an agenc~ to obligate funds in advance t)f 

appropriations: 

B. Pursuant to .11 l i.S.C. 1.1·12. the litnctinn addr~sscs emergency circumstances. such that the 

suspension oft he limcti<>n would imminent I) threaten the safety nfhumanlilc or the protection of 

property: or 

C. The function is necessary to the discharge of the President's constitutional duties and powers. 

There arc also a limited nt11nber of government m:tivitics that an agency must continue. in the absence 

nf appropriations, because their continuation is hn~;cessarily" implied from thl: authorized continuation 

nt' other (c:\.empt or excepted) activities. 

O!VIIl Circular A-11. Section l ~4 requires agencies to develop and maintain plans l(Jr an order!) 

shutdo" n in the event of the absence of appropriations. Plans must be submitted to OMB and include 

the following inl<.>nnation: 

I. Estimntcd time (to the nearest half-day) to complete any shutdown: 

While most shutdown activities can he uccomplishcd within four hout·s, some agency 

shutdown personnel may need to work lon~cr to secure and shutdown EPA properly and 

facilities, including the varied labomhwy rcscar·ch facilities and experiments that EPA is 

conducting. EI'A expects the ,·ast nmjorit)' or shutdown acth·ities will be completed in less 

than five days. 
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2. Number of employees expected to be on-board before implementation of the plan. 

Permanent Employees 13,728 

Full Time 13,489 

Intermittent l 

Pan Time 238 

Temporary Employees 244 

rull Time 181 

l ntenn ittcnt 57 

Part Time 6 

Total (as of December 17, 2018) 13,972 

3. Total number of employees to be retained under the plan f(Jr each of the following categories: 

a. Their compensation is financed by a resource other than annual appropriations: 0 

b. They arc necessary to perform activities expressly authorized by law: 6 Presidentially 

Appointed/Senate Confirmed individuals. 

c. They are necessary to perform activities necessarily implied by law: 0 

d. They Me necessary to the discharge of the President's constitutional duties and powers: 12 

c. They are necessary to protect life and property: EPA estimates 794 employees (433 

Hcad<tuartcrs and their field and laboratory components; and 361 regiomll). 

The policies and procedures detailed in this contingency plan arc issued in accordance with OMB 

Circular A-ll. Section 124; OMB Bulletin 80-14, dated August 28. 1980 (as amended by the OMB 

Director's memorandum of November 17. 1981 and Supplement I to Bulletin 80-14, dated August 20, 

1982). They arc also consistent with the following U.S. Dcpartmefll oi'Justice, Office of Legal Counsel 

opinions: "Applicability of the Anti-Delicicncy Act Upon a Lapse in an Agency's Appropriations" 

( 1980), "Authority for the Continuance of Government Functions During a Temporary !.apse in 

Appropriations' ( 19& I), and an opinion dated 1\ug. 16, 1995, that reaffirms and updates the 1981 

opinion. 

3, COVERAGE. In the event of a funding hiatus caused by the lack of either an appropriations act or a 

continuing resolution, all EPA programs must follow this guidance. Four actions will be taken. These 

actions involve conducting (A) furlough activities; (B) shutdown activities: (C) excepted activities, and 

(D) exempted activities. 

A. FURLOUGH ACTIVITIES: All furloughed employees will be advised to conduct an orderly 

shutdown of their aclivilies. Shutdown activities can be completed in the office or by tclework 

unkss otherwise notified. 

B, SHUTDOWN ACTIVITIES: Some personnel will be designated as necessary to complete tasks 

for the orderly shutdown of the agency and will continue to repon until such time as their shutdown 

tasks have been completed. 

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C. EXCEPTED ACTIVITIES: Some activities and functions will wntinuc because they arc 

authorized by law or fall 11-ithin the ADA· s emergency exception. The personnel carrying out.thcsc 

activities may wnrk even in the absence of' an appropriation. These timet ions arc described in more 

detail in Section 5 or this Ctllllingcncy plan. 

D. EXEMPTED ACTIVITIES: Certain programs llinded with unexpired appropriations whct·c 

carryover funds remain unobligated nr programs funded from sources other than appropriations. 

such as fees and payments that are available f{)r ohligation. may he exempted. Sec Section 6. 

4. EMPLOYEE REI'OHTING I'HOCEDlJHES 

A. ALL PERSONNEL: Under the applicable regulations and OPM policy, employees do not need 

to he provided advance wrincn notice or a furlough if the litrlough is due to a lack of an 

appropriations act <'r a continuing resnlution. llowcvcr. the agency will make every effort to noti(v 

all employees adversely affected by the ll~rlough in advance and adhere to related collective 

bargaining agreements. In the event of an appropriations hiatus. <til personnel will report for duty 

on their lirst working day following the expiration of an appropriations act or a continuing 

resolution unless tWt ilicd other" isc or unless the: arc on previously approved annual or sick lcm·e. 

On that day. all personnel not designated to catT) out shuttltm n. excepted. or L'XCmptcd activitic:; 

\\ill be fmloughcd. Furlough decision notices will be distributed to each employee. All personnel 

receiving furlough notices "ill be dbmissed and directed not to report to work until an 

Appropriations Act or a Continuing Resolution is enacted. Appropriate action placing affixtcd 

agency employees in a non-pay status will he wken. ;\dditinnally. any approved leave during a 

furlough will be cancelled and an~ new requests l(1r leave during the furlou~h will be denied. 

Only personnd required l(lf the orderly shutdt>~vn or the agency or assigned to excepted or 

exempted functions should continue to report lhr duty. All other pcrS<lllltclmust depart thllowing 

their dismissal atkr they haw secured their \lotl space and documents: identified any approved 

travel plans mer the next 30 da)s: and entered their time into the agency's time & attendance 

system. if required. El't\ estimates that these activities should take less than one-half worktht) 

(four hours) and these activities can be performed remotely. 

In accordance with the ADA. no employees on ful'l<>ugh will be authorized to work or volunteer 

their services during the shutdown period. 

B. SHlJTDOWN I'EI{SONNF:L: Personnel designated I(H' the orderly shutdown of the agency will 

continue to rcportliw duty until such time as their shutdown tasks have been completed. Shuldnwn 

activiti~s will need It> be completed as c~pcditiously as possible. Once the services of these 

Cl1lllloyces arc no longer required. shutdown personnel" ill also he furloughed. Any obligation> 

lor shutdown activities will be paid allcr a nc\\ appropriation is provided. Shutdown activities arc 

described in nwre detail in Section 7.B. 

C. EXCEPTED PEI{SONNEL: Personnel who arc required to perform excepted activities by 

ensuring the safety of human life and the protection of property (including the protection of 

government property) where the threat to lile or property is imminent will continue to report 

f'oll(ming a shutdown. l·:;,ccptcd activities arc described in more detail in Section 5. By lm>. 

excepted activities may cnntinuc 10 he performed. Any nbligations incurred li.>r c~t:cptcd activities 

"ill be paid ll1r alier a nc" appropriation i, provided. 

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D. COMMISSIONED OFFICERS: Commissioned officers arc employees of the Public Health 

Service. If EPA has a lapse in appropriations, PHS offkers will continue to work at the EPA 

because they arc authorized by Jaw to continue working. 

E. EXEMI'TED PERSONNEL: Personnel who perform exempted activities and who arc exempted 

from the shutdown order will continue to report f(Jr duty and conduct their assigned responsibilities 

until available carryover funds are close to being fully obligated or funds from fees and payments 

arc ncar liquidation. 

El' A retains the authority to modify lists of personnel working on excepted or exempted activities, 

as necessary, during any period of shutdown. 

5. EXCEPTED ACTrVITIES: All Senior Resource Oflicials must develop and submit a list of 

personnel who would be necessary to perform excepted activities including those follg~l.!!g shutdown. 

Additional infonnatinn concerning this list is f(Jtmd under Section 7.A 

When determining whil;h personnel me needed to c;my out excepted operations. SROs should consider 

those personnel necessary to carry out activities such as those identified in the govcrnment·widc 

examples listed below. Among these are personnel required to ensure compliance with OMB bulletin 

80-14, supplement No.!, and attachments thereto. 

Primary examples of activities related to EPA that the agency !lli!.Y continue to perform following 

shutdown include: 

A. Providing f(>r homeland and national sc<:urity. including the conduct of foreign relations essential 

to the national security: or 

B. Personal services nc<:cssary to respond to emergencies involving the safety of human life or the 

protection of property. where the threat to human life or property is imminent. including: 

I. Activities essential to ensure continued publi<: health and safety, including safe use or rood and 

drugs and .safe usc of hazardous materials; 

2. Protection of federal lands, buildings. equipment. research property. and other property owned 

by the United States: 

-'· Law enforcement and criminal investigations~ and 

4. Emergency and disaster assistance. 

5. Support StafT: Only the minimum staff and supp011 services necessary to continue the above 

listed functions should be maintained. 

The spccilic excepted activities. personnel. and level of support required based on the examples above 

will be detennincd by the Oflkc of Mission Support in consultation with the Office of the Chief 

Financial Of1iccr. the Office of General Counsel and appropriate program offices. 

Excepted personnel are excluded from furlough during shutdown hut only for the hours/days it takes 

them to perform their excepted activities. II' a function requires one hour per day. then the excepted 

employee may work fi1r only one hour per day to perform only that excepted task. 
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Specific examples of excepted activities include: 

Excepted Activities to Support Superrund ncsponse Site Work 

Inmritl£'111 threat 10 Public Ilea/til - Sites/projects. predominantly associated with the supcrfund 

program. \Vhcrc a fb.ilurc to maintain operations \\Otild ro~c an imminent threat to human life. The 

sites/projects require the 1-:l'i\ personnel to direct or oversee the response activities and/or provide 

critical support functions. There is an expectation that the EPA presence or activities. typically by an 

on scene coordinator or remedial prrljcct manager will be required. I he EPA \\ill evaluate more than 

800 supcrfund sites to determine hO\\ many mct.:t this criterion. tFor example. ~lcew·•ing the operaJiuu 

t~( un acid mine draitWKt' treat men/ plan 1rou/d cwt.w a release In a stream duJJ pro\'idt?d drinking 

water to a communily; the agency a·mtld nmsider !lull sillwlirm lo fJOSe an imminent rhreal. A second 

example is WJ eml!rgcll(T remora/ responn! lou xituation posing (II/ imminenllhreallo Iutman !Jeallh.J 

El' A Laboratories 

The EPA maintains 29 program and regional laboratories across the continentalllnitcd States. These 

lat>oratories han' unique functions that support the agcnc) in fullilling its mission to safeguard human 

health and protect the natural environment. The El'i\ will take necessary measures to ensure the 

physical integrity of the Ll'i\ ·, research property is protected where. without these measures. the 

propcr1y would be damat,!ed or destroyed. In order to protect research property and stand-alone 

t"':lcilitics. personnel \\·ill be cxccptct.l as necUcU lo ensure critical upcmting requirements arc not 

impaired. These needs arc as lhr-ranging as ensuring the ph~sical protection of federal property. that 

controlled environments (such as freezers) \\ill function and not be damaged, that scientilic 

instrumentation will llmction and not be impaired, and that fab animals. plants, nnd other unique test 

organisms will nnt be damag.l!d or destroyed. 

Lat>oratory operations involved in the toxicity testing or environmental samples requires the use of 

unique t~st organisms such ns fathead mintHn\ nnd small crustaceans. The test organisms must be gnJ\\Il 

under controlled laboratory conditions such us temperature. light. \\liter quality and f(Jod supply in order 

to provide reproducible results during test in~. Depending ''n the test organism. a period ()f weeks or 

months under controlled growing conditions is required ll1r the organism to reproduce. Personnel will 

be excepted as needed in order to protect the physical integrity <lflhc test organisms so that a shutdtn'n 

will not result in the loss of viable test organisms. 

rhc responsibilities f(lr lll;lllJ or these lahoratnry- related excepted acti,·itics will be shared between 

several individuals. splitting work on an as n~cdcd basis wh~ncvcr possible. 

Emergency Response Readiness Operations 

EPA's cml.~rgcnc~ rcsronsl.! program serves as a safety net to states. local and private lirst rcspond~:rs 

for situations involving actual <mdior threatened of en\·ironmcntal emergencies. The program supports 

the White !louse national essential functions through our primary mission essential function. 

Specifically. FPA·s I'MEF is to prevent. limit mitigate or contain chemical. oil, radiologicaL 

biological. and hazardous materials Juring and in the aftermath or an accident, naturul or man-made 

disaster in the United Slates. and provide ~nvironmental mpnitoring. assessment and reporting in 

suppon of domestic incident management. 

In the cwnt of a shutd0\\11, regional otliccs should utilize existing procedures tn maintain their phone 

and r~:iponsc on-duty on-scene coordinator(s) to maintain and ensure prompt support of environmental 

emergency responses that requires EPA attention and/or action. li<) offices \\ith emergency response 

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rcsponsibiliti~s should also maintain their duty personnel to ensure prompt suppon and! or oversight of 

environmental emergency responses that require F. I' A atlention and/or action. 

In the event of a water related incidcm where the threat to human life or propcny is imminent, 

individuals from the Water Security Division emergency response team would need to return to work 

in order to assist with EPA's response ciTons. ,\lso. ccnain technical specialists frc\fn the Ollicc of 

Water incident support team would need to return to work depending on the type of emergency. The 

WSD individuals would need to reponto their normal workstation orto the EPA Emergency Operations 

Center. Duties would include: national incident command center reporting on SSA issues: setting up 

the water desk: running the water desk (i.e. managing c-mails and calls, reaching out to technical 

specialists to answer inquiries; developing a schedule for water desk staffing from among the incident 

suppon team members who arc also on call; attending NICC meetings: drafting OW management 

repor1s; reviewing and approving contractor invoices and emergency tmvel authori1.1tions. In addition. 

the FPA may draw upon technical specialists as relevant e~pcnisc contingent on the nature of the 

emergency. 

Legal Counseling, Litigation, and Law Enron:cmcnt Acth·ilics 

Luw enforcement personnel involved in activities designed to protect human life and propcny from 

imminent threat will be c~ccptcd for the time minimally necessary to carry out such activities. 

Attorneys providing legal suppon to excepted activities will be excepted only for the time necessary to 

provide such support. Attorn~:ys who charge their time to appropriations impacted by the funding lapse 

will be excepted to support excepted or exempted activities if there is a necessarily implied 

authorization lor the attorneys to continue to work. A necessarily implied authorization exists when a 

statlltc directs EPA or a governmental entity to perform an nctivity dming a lapse in appropriations and 

non-pcrfonnance of an attorney's suppon fhr that activity during the funding lapse would undcnninc 

implementation of the tcnns c>fthc statute. For the contingency planning !(lr shutdown in April of20 II. 

the Department of .Justice ad,•iscd that the courts would remain open during a shutdown. out DOJ would 

request stays of some litigation and court ordered deadlines for the duration of the shutdown. !fa cout1 

did not grant the stay. DOJ expected the EPA to continue to provide the legal or technical suppor1 

necessary tn meet any conn deadlines or orders, including but not limited to coun appeamnccs and 

response to discowry requests. Therefore. in EPA's April 20 ll and Scpteml>cr 2013 Contingcnc) 

Plans lhr Shutdown. the EPA plann<'d to continue 10 suppon DOJ as needed. In implementing this 

Contingency Plan !or ShutdLlWtl, EPA will consult with DOJ and lclllllw its guidance. 

6. EXEMPTEU ACTIVITIES: 

In the event of a funding hiatus due to !he lack of an appropriations act or a continuinj! resolution. the 

Agency will assess the availahility of unexpired multiple and no-year appropriations as well as funds 

available from other sources. 

I ri! determines there is sullicicnt carryover lhr it to be pntclicablc for the Agency to operate for a period 

of time until these appropriations and funds arc close to being exhausted, it will do so. The Agency 

would proceed with shutdown activities when there is no longer sullkicnt CHrryovcr for it to be 

practicalllc for the Agcnc} to operate. 

I fit detern1ilws from the beginning thnt there arc not sunicicnt carryover funds for it to be practicable 

liw the Agency to operate. it will proceed with shutdown activities immediately. 

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7. SHliTf)OWN ACTIVITIES: 

A. SHUTDOWN PLt\NNING: 

Shutckmn activities should be conducted in a manner \\hereby expedient reactivation of normal 

operations and activities may occur when funds are made availahlc. 

Senior resource ollicials must develop and submit a list of personnel essential to carry out an 

orderly shutdown to OMS. In preparing. this list. SROs sl](luld consider the specific actions that 

would be necessary to affect an orderly shutd0\\11 of the ngcncy. giving primary consideration to 

protecting life and safeguarding govcmmcnt propeny and rcc('r<is. The list should not replicate the 

list tu maintain the agency's continuity (1f operations since this list will be to shutdown agenc~ 

operations. Each SRO is rcsp(lllsiblc for inf(>nning their employees if they arc on the shutdown list. 

The list should indicate which pcrsonnd would be necessary to perfimn excepted activitks 

folio" ing a shutdtm n. The SRO is responsible for infNming their employees if they are on the 

excepted activities list. 

The shutdown and excepted personnel list is subject to review and approval by OMS. OMS may 

consult with OCFO and OGC as necessary. The list should identify each person's name. employee 

identification number. position.ofticc/divbion. and function. The list should continually be revised 

as necessary and will be kept on tile by OMS. Each SRO must also provide the list of names of the 

c.wcpted and any cwmptL'<I personnel to the facility manager at each EPA location. Only those 

employees designated n' excepted or exempted persnnncl will he allowed into EPA facilities af\cr 

a shutdown is completed. 

Individual Olliccs in OMS and OCFO may provide additional guidance relating to their spccilic 

operation,; in the event a shutdown. 

lhc assistant administrator for OMS "'ill keep the EPA Administrator apprised of the agenc~ ·s 

shutdown activities. The i\i\ forO MS. and other appropriate nlliccs designated within that of1icc. 

will coordinate ciTorts as necessary with rcgi(>nal. headquarters. and tield ofliccs. 

A limited number of employees performing excepted and/or approved exempted activities may be 

Jcsignah!d as s.tandb_y and must he induJcd in any excepted or c.\.J~mpted personnel list 

Assistant/regional administrator;; may need to identify additional employees for excepted activities 

in an emergency situation. rhesc individuals will not be in a pay status prior to hcing recalled to 

work and will be added to the list of excepted personnel aller being recalled. If funch are available 

to support mJditivnal employees in an cmL:rgcncy situation. assistant/regional administrators ma) 

add the individuab to the approved c~cmptcd li:.t and the employee will be recalled to work and 

will assume a pay status. Assistant/regional administrawrs must notify the OMS and OCFO of an) 

changes to their approved lists for pa) rnll. travel and other purposes and also notify the local 

litcility/sccurity manager for buildin~,t access. 

B. SHliTDOWN IMPLEMENTATION: 

In the event of a funding hiatus. the following restrictions apply lc) all Agency appropriations: 

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I. Halt Obligations: In the event or n shutdown in the absence of an appropriations act or a 

cuntinuing resolution, the EPA will stop incurring new obligations other than those 

supporting excepted or approved exempted activities. and shutdown operations. 

llndcr the authorit~ of the ADA(.\ I USC 13-12). federal officials may incur obligations as 

necessary f\Jr c.\Cepted activities such as emergencies involving the safety of human life or 

the protection of property where the threat to life or property is imminent and for orderly 

termination activities. Additionally. the U.S. government has the legal authority to incur 

obligations to pay f<x: 

a. Its work!hree !(w the approximate one-half day (-1 hours) furlough activities and 

necessary agency shutdown activities estimated not to c'xcet.'!.l live days: 

b. Costs incurred in conjunction with equitable adjustments ltlr work stoppages on contract 

and grant activities: and 

c. Infrastructure costs associated with shutdo" n and excepted actlvtl!cs such as rcnl. 

telephone service. etc. which will he incurred until appropriations have hccn provided. 

d. Approved travel costs incwTcd in hy cxccptccl personnel in the pcrl(mnancc of excepted 

activities. 

Additionally. the EPA nH1) incur obligations to pay approved travel CllSts incurred b) 

exempted personnel in the pcrf(>rmance of exempted actil'itics to th~ extent that there is 

can)'ovcr or other !imds available li>r obligations to pay the tmvcl costs. 

The authority to incur the obligation to pay docs not extend to the ac:tuai disbursement. 

Payment for these obligations will not be disbursed until the resumption of normal agency 

activities I(JIIowing the shutdown when an Appropriations Act or Continuing Resolution is 

enacted. 

2. New Contract Obli!:mtinns: Unless necessary for cx;;cptcd acl!VIttes or for approved 

exempted activities, no new obligations for contract~ including the exercise or options. may 

he entered ill!o bcginning with the lirst day of a fiscal year when an appropriations act or a 

continuing resolution has not been cmt..:tcd or on the llrst day immediatdy following the 

expiration of a continuing resolution and no new appropriations act or continuing resolution 

has been enacted. Options exercised pri<>r to the sta11 of the new fiscal year already contain 

a "subject to availability of funds" clause to provide fbr any lack of funding in the new fiscal 

year. lf a new obligation is necessary for an excepted or exempted activity, the national 

program manager is to be consulted who will then consult with other organizations such as 

OMS and OCFO. 

3. Existing Contract Oblilmtions: EPA has thousands of ordering documents including 

contracts. delivery orders. work assi[!lllllents and task orders. Contracting ofllccrs may not 

issue any new '~ork assignments, ta~k or delivery orders, unless for excepted activities nr 

approved exempted activities. Existing limded contracts that do not require interaction with 

!cticral employees can continut· work until such time government intcmction is necessary 

and/or funding is exhausted. 

EPA employees will not be availabl~ to make payments until the shutdown ends. 

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-4. Existing Grants, Cooperati\'C Agreements, and lnten1gcncv Agreements: EPA has 5.593 

actiw assistance agreements and 1.419 active interagency agr.:cments as of the date of this 

plan. As a gen.:ralrulc, recipients of funded grants and cooperative agreements can continue 

work on their projects during any EPA shutdown. Grant recipients currently approved to 

uti liz.: the Automated Standard Application Payment (ASAP) system may make drawdowns 

of authorized obligated levels during a shutdown. With the exception of grant recipients 

using ASAP. in the case of government shutdown no payment processing will be available 

for cost reimbursable or recipients with special ;mard terms and conditions requiring EPA 

approval prior to payment disbursement (either by paper check. drawdown. or by ACII 

payment outside of the ASAP system). EPA statr willm>t be available to make payments 

until the shutdown ends. Reciph:nts must stop 1\0rk if they reach a point at which they 

require EPA involvement or appn>val. Recipients should maintain documentation of an) 

allowable costs associated with the work stoppage. Recipient staiTassigned to EPA f11cilitil's 

will not be allo,,cd access to those facilities. If they can satisfactorily continue work ofl~ 

site. the project can continue. SEE enrollees \\ill be notified of furlough in accordance with 

their grant procedures. Additional guidance will be provided through the agency's SIJ' 

program manager. 

EPA program offices in conjunctilln with the OGD and in consultation with the other agcnc) 

will determine if ''ork under any funds-in lAs is necessary for shutdown. cxcepteu. or 

appn>V<'d exempted activities. If not. work on such agreements will stop. Other agencies 

can continue to work on fully funded funds-out lAs if the other agency is not shut down. 

However. other agencies must stop work if they reach a point at which they require EPA 

involvement or approval. If the other agency is dosed. that agency in consultation with EPA 

will detenninc \\hethcr activities under funds-om lt\s arc necessary for shutdown or arc t(w 

excepted or exempt activities. 

EPA may issue additional guidance Ill determine if work funded under existing lAs. not 

involving excepted or exempted activities. may continue. 

5. Suspend Trani: There should be no travel in the absence of an appropriations act or 

continuing resolution except for travel neccs~ary for excepted activities or travel necessary 

to carryout approved exempted activities where there is carryover or other funds available 

to pay the travel costs of the exempted personneL All personnel in travel status will return 

to their duty stntinn as soon as pmsihle. unless continued travel is essential for 

accompli:;hing the onkrl) shutdo"n of the organization or for c.xcepted or approvcu 

c.,crnptcd activities. EPA employees will not be available to make payments until the 

shutdown ends. 

In the event of a shutdown. the Ot1lce of International and Trihal AlTa irs will provide each 

Deputy Assistant Administrator and Deputy Regional Administrator a list of staff cum:ntly 

on international travel. The information will incluue a traveler's hotel and emergency contact 

infi.>rmation so programs and regions can reach those employees. 

Employees assigned owrscas arc not in travel status. The nverscas loclltion is their 

permanent station. These employees in temporary quarters during the furlough will remain 

in temporary quarters. If these employees arc not designated as essential or exempted. they 

would not report to work. 

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Ernploy~cs on extended TDY travel where a detail personnel action (SF52) w:~s issued and 

funded should follow instructions given by the receiving office. The employee would not 

return to their home location during a shutdown unless instruct~Ll. 

6. Process l'avroll: 0( 'FO·s OOice ofTcdmolog~ S!1lutions must assure delivery of paychecks 

by electronic transmission. 

a. OTS will maintain stntr to continue payroll processing for the last full pay period or 

any panial pay period prior to the shutdown. The payroll omc~: will also begin 

n:conciliation and closeout activities. 

b. OTS will not process any subsequent payroll(s) during till: shutdown f()r exccptcd or 

shutdm1 n personnel until the end of the shutdown in accordance \\ ith cunent IBC 

shutdown policy. 

c. If applicable. OTS will prn..:css time and attendance records l(lr c.xcmptcd employees 

for subsequent payroll(s)during the shutdown only iflBC maintains its civilian payroll 

operations. 

d. OTS will notifY all cmplo)ecs prior to the initiation of any furlough action. with 

instructions regarding the comrlction of electronic time cards. 

7. Suspend All (other than pavroll) Non-Essential Financial Transactions: Ol'FO's Office 

of the Controller 11 ill notify all finance centers to secure cash funds. rcceivahlcs. collections. 

and all linam:ial rc..:ords. The processing of requests fbr payments from contractors. grantees, 

lA recipients for obligations incurred prior to shutdown g~:ncrally arc not considered 

cmergcncy operations. 

a. OC finance centers and staff will suspend all but emergency actions and Agency 

shutdown activities until enactment of an Appropriations Act nr Continuing 

Resolution. 

b. Instructions will be provided concerning operations of the ugcncy·s core financial 

management system for excepted or exempted activities prior to susrcnsion of agency 

operations. Th.: agcncy·s cor.: financial management s> stem 11 ill be used to monitor 

obligations for c.xcertcd or exempted adivitics during a shutdown. 

8. Personnd ,\ctiyitics: The El' i\ must not hire any ncw personnel in the absence of an 

Appropriations Act or a Continuing Resolution. The agency's human resources shared 

service centers will pmecss the r..:quired personnel actions to aO'cct the !hrlough and will 

notify employees of their rights and benefits while they arc in furlough status in accordance 

lvith Ol'fVI and OMB policy. 

9. Tdework Activities and Altcrnute Work Schedules: Employees should coordinate with 

their sup~:rvisors. All work. whether conducted on an A WS schedule or at an Alternate Work 

Location (t.:lcwork). must he stopped unless the activity is for an excepted or approved 

exempted activity 

10. Jnformntion Technologv (IT) Systems: Unless otherwise identified as being a 

11 
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35314.279

mission-critical system that 1\0uld support activities outlined in (Section 5 excepted activities 

or section 6 exempted activities) of this contingency plan: most agency IT systems. including 

network operations. should be scaled back to basic operation~! status. This means eliminating 

all activities associated with upgrades. development. deployment and scaling back contract 

support to minimal k' cis in order to prnvide support l(>r excepted and exempted activities 

and on-call activitic.< (both fh! and contractor). This will ensure the protection of government 

records. that inf<,nnation and cyher security l:ontroL..; an~ in place. and assi:~t in reactivating 

once the perintl oft he shutdown is over. 

The agency Chief lnl(>rmatinn Oniccr \\ill idcntil) which systems will he required for 

continued operation during the period of a shutdown. OMS will work with the senior 

inl(mmuion orticials in each program and region to identify a list of these mission critical 

s~stcms and provitlc !!Uidnncc regarding IHm continued operation of those systems will be 

accomplished as well as the orderly shutdown and securing of other IT systems and devices. 

OC'FO "ill manage the PeoplcPius system and Concur Travel system. In addition. OCFO 

will manage the user support help desks to assist cmplo~ces and coordinate with OMS on the 

availahility of the help desk i(>r these systems during any shutdown/furlough period. 

II. Protection of Non-Personnel Records: ( lnl~ inventorks of vital records will be made 

available during an a~cncy cJw.:rgL·ncy or shut dO\\ n situation. Vita! reconJs arc those rccnn.ls 

that arc needed to perl(mn the most critical functions of the ngcncy and those necdctl to 

protect legal and linandal rights of the government and of the persons aflcctcd by its uctions. 

Vital rcwrds also include emergency plans antl related records that specify how an agcnc~ 

will respond to an emergency. 

It is cs~cntialtn sc..:url' n:Cllrds in ac~on.lancc with the agcnl:y's rcconJs management policie-s 

that a fleet the ri!!hts of the go1crnmcnt. pri\atc entities and individuals. any other r<·cords 

that contain confidential businc" information. l'ri\acy Act infomultion. inl(mmuinn 

responsive to active or pcndin~ litigation. or otherwise sensitive inl(>nnation (including 

elcctronit.: l't.'l'ords). 

I:PA d~taiied rccc)nfs nuwag~?mcnt guidan~...·c is contnim:d in: 

CFR Chapter XII. Subchapter B. Records Management. 36 CFR Part 1223 

(:Vlanaging Vital Records) 

Ll't\ R"c"cords M;magcmcrJ! J'olic). l'IO 2155.3 (February I 0. 20 15) 

Fl'i\ Fss~ntialtVItal) l{cc.<>r<i'I'roc·cdurcs. C'IO 2155. PO 1.1 (March 24. 2015) 

~. NOTIFICATION or RESUMPTION of ACTIVITIF.S: 

A. 0('1'0 \\ill noti(\ 01\lS and agency senior managers of enactment of the necessary fl111ding 

mechanism (i.e .• either a Continuing Resolution PI' an Appropriations 1\ct). 

B. OMS will a<hisc all employees to monitor public news hromknsts and OI'M's intemct site 

( ""'' 1\ "<lfl'!!"gn1) to ohtain updated inf(mnation on the status of a pending Appropriations Act or a 

Continuing Resolution. 

12 
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35314.280

C. OMS will coordinate as necessary with the Ortice of Put> lie !I !lit irs. to communicate updated status 

reports and actions necessary to return to normal Agency operations and to place status updates 011 

the \\\'"&lliWm'> website. OMS will also ensure the 1-888-EI'A-TALK ( 1-888-372-8255) 

provides updated inllmnation. 

D. Contracting officers will notify contractors or llmds availability and OGD will notify recipients 

or ltl!lds availability. 

E. O<.TO will coordinate with OMS to comnntnicatc any n<'ccssary inl(mnationto employees regarding 

Peoplcl'lus and Concur systems. 

9. START lll' ACTIVITif:SJRESliMI'TION OF ORDERLY OI'ERATIONS: 

A. Once I :I' A receives notilication that an appropriation has been approved orb imminent. OMS 

\\ill begin contacting JWngrnm/rcgional (\fli('c~ to begin calling ba~k their stari-Uf' personnel 

ncccssar: to resume orderly operations. 

B. EI'A has identified the following activities/personnel required to resume orderly operations once 

appropriations arc restored: 

Faciliti~s Activilies/l'crsonncl responsible for: 

Building Systems: Coordinate \\ith GSA/lessor to ensure all EPA building systems. 

including HV AC. arc in full. regular opcmtions prior to reopening buildings 

Ciuard Force: Cnordinating with Federal Protective Services (FPS) or security contractor to 

ensure security is fully staffed lor re-opening 

3. Janitoriai/Cieaning,Scr~iccs: Coordinating with GS.>\/ks>or to ensure all janitorial services 

resume regular operations 

Buildin!'. Access: Change access control schedules to Ja\1ime 

5. Restore' Key Contracts:' Coordinate with acquisition pcr~onncl to I ill stop work orders on key 

contracts 

Information Technologv Activitiesil'ersonnel responsibh' for; 

I. Infrastructure Start-tip: l'r~pare to bring-up idled S)stcms and patch all servers. 0 User Support llclp Desks: Ensure that all help desks arc fully stalled and prepared for Da) 

_,. Communicalions: Support activitiL'S 1o update web pages and nwssaging 

Procurement Out•ratious Activiticsll'ersonncl responsible for: 

I. Begin cancelling "Stop Work Orders" for agency contracts related to sc;;urity. facilities 

operations and maintenance. warchous~: and mail scrvkcs. 

0 Issue [lOSt-guidance for agency contracting olliccrs 

Gruntsllntcragencv t\grecments Opt•rations Activiticsll'crsonncl responsible for: 

! . Issue post-g.uidtul~.:c li.'r agency grants/!,~\ cnmmtmit~, 

13 
292 


35314.281

10. SlWERSESSION: This contingency plan supersedes nny other EPA guidance or order prior to 

this date. 

_JJ ----------··---· 

Henry I rwin, Chief of Operations 

US E1 ·ironrncntal Prott:ction Agency 

EPA PERSONNEL RESPONSIBLE FOR IMPLEMENTING/ADJUSTING PlAN 

Donna J. Vizian, Principal Deputy Assistant Administrator, OMS 

Ken Lapierre, Acting Deputy Assistant Administrator for 

Administration and Resources Management, OMS 

Lynnann Hitchens, Director, Office of Resources and Business Operations, OMS 

14 
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35314.282

EPA Exceptedll~xempted Personnel 

Onboord totals as qf'Deceml:ll!r 17, 2018. 

In accordance with EJ>A~r Comingen~·y Plan under #6 """"""'"'""' 

operational with can;,'l:lver jimds :tram December 24·31. 

Q/}lcer.t exempted from forlaugh. 

15 

5.81% 0.38% 
294 

Senator CARPER. I want to talk a little bit about PFOA, PFOS, 

and the PFAS chemicals. The fact that we do not have a Federal 

drinking water standard for those chemicals, flying in the face of 

the TSCA legislation, the toxic substances legislation, that we 

passed a couple of years ago, a number of the States have basically 

taken matters into their own hands. States that have set their own 

standards include California, Connecticut, Maine, Massachusetts, 

Minnesota, New Hampshire, New Jersey, North Carolina, and 

Vermont. 

Mr. Wheeler, my question is your PFAS management plan was 

supposed to come out, I think, last fall but has been delayed. I am 

asking you to commit to the members of this Committee that EPA 

will set a drinking water standard for these chemicals within 2 

years. Can you make that commitment today? 

Mr. WHEELER. First of all, our PFAS management plan, we were 

hoping to unveil next week. With the shutdown, it is going to be 

delayed slightly. It is in the middle of interagency review. 

We are looking at all of our statutes. I am not going to pre-judge 

anyone in particular because of the interagency review. All the 

other agencies have to sign off on the plan itself, but we are looking at all of our statutes, and our enforcement abilities. 

We have been enforcing on drinking water around the country at 

a number of sites and helping States. 

Senator CARPER. I am asking you if you can commit to 2 years. 

We are not talking 2 months or 2 weeks. I am asking you to make 

a commitment to us that EPA will set a drinking water standard 

for these chemicals within 2 years. Can you make that commitment 

today? If you cannot, just say I cannot make it. 

Mr. WHEELER. I cannot make that commitment pending interagency review at this point. 

Senator CARPER. I just want to impart a sense of urgency on 

PFAS, and frankly, on the others. We only have 5 minutes, and I 

have 3 minutes left. 

Mr. WHEELER. You said 95 percent of EPA is not being paid. No 

one at EPA is getting paid today. I want to thank Congress for 

passing the legislation for back pay for everyone. 

Senator CARPER. Clean cars—I mentioned I was at the Detroit 

auto show. I have been going for a long, long time. There are representatives from 10 auto companies. They all have one message 

for me, actually two or three. 

One message is they want certain predictability. They are building more energy efficient cars. Their future is electric powered vehicles; their future is hydrogen powered vehicles. They need charging stations to be deployed, built across the country. They need 

fueling stations to be built. They need a tax credit extended for 

electric vehicles. 

They do not want to end up in a lawsuit with California and 12 

or 13 other States for the next 4 or 5 years. They need certainty 

and predictability. They want some near term flexibility on the fuel 

efficiency standards and tailpipe emissions that were set in the last 

Administration. They want some flexibility in the near term and 

more rigor on the standards over the long term. 

295 

Why are you, why is EPA, why is California and these other 13 

States, why are we unable to come to agreement on a deal that 

every auto company wants? 

Mr. WHEELER. Senator, we talked about this yesterday, and I 

have talked about this with you at least four or five times. I am 

not going to go through the entire back and forth we have had and 

the State of California. 

Nobody wants a 50 State deal more than I do. That would be a 

successful program if we had a 50 State deal. I have not given up 

hope on that yet. We are also looking at the calendar. We know 

that we need to finalize our proposal by March 30. We are running 

short of time. 

I have met with Mary Nichols from California three times in my 

office. We have had numerous conversations. My staff has worked 

with her staff for months now. We would love to have a 50 State 

solution. 

Senator CARPER. The greatest source of carbon emissions on our 

planet right now is mobile sources, our cars, trucks, and vans. 

There is deal that is ready to be made—ready to be made. I am 

trying to impart some sense of urgency. 

If I were you, I would have her in my office, I would be in California. I would be trying to make this deal. The idea that you are 

waiting for them, or they are waiting for us, your job is to basically 

be the leader for fighting this battle. 

I am told oceans are heating up by 40 percent faster on average 

than predicted by the global science community just 5 years ago. 

The year we just finished was the hottest year ever. I would urge 

you to feel a sense of urgency on this stuff, OK? 

Let us talk about mercury. I will reserve the balance of my time 

to look at mercury. 

Thank you. 

Senator BARRASSO. Thank you, Senator. 

Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

There is a lot of media spin, and you heard it again just now over 

the recent report showing that CO2 emissions in the United States 

increased last year. A lot of the adversaries are wanting to blame 

the Administration’s so called rollback of the Clean Power Plan and 

the withdrawal from the Paris agreement, among other actions. 

I would like to enter in the record a Forbes article that says this 

is not surprising given the unprecedented economic growth that the 

United States has seen in the last year and states, ‘‘CO2 emissions 

in the United States are still down 11 percent since 2005.’’ 

Can you address this mischaracterization? 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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lJ96 VIeWS '10, 

Rhodium Group, an independent economic and policy research tlrm, 

released report Tuesday estimating that l:S energy-related C02 emissions 

increased by 3A percent in 201 That marks the largest emissions 

increase in more than twenty years, surpassed only hy 20 I O's emissions the 

economy bounced back from the Great Recession. 
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1/16/2019 The Not Too Surpnsing Emissions Surprise 

To some observers, the uptick in emissions may come as a surprise given a 

decadal trend of national emissions decline, the notion that we had somehow 

decoupled emissions from economic growth (spoiler alert- we haven't), and 

notable breakthroughs in clean energy technologies such as renewable power, 

battery storage and vehicle electrification. But emissions are driven by a complex 

mix of market, policy and natural factors that can change over time. 

This is a story of "Even Withs." Even with a near-record number of coal-fired 

power plant closures in 2018, natural gas beat out renewables to replace the lost 

coal generation while also meeting most ofthe growth in electricity demand. 

Electricity demand growth itself is a phenomenon that runs counter to the recent 

trend of flat growth. Even with a decrease in gasoline consumption, demand for 

diesel and jet fuel drove transportation emissions up one percent. Rhodium 

points out that the biggest change came from sectors that often go ignored in 

policy discussions: industry and buildings. 

A Reversal of Emission Trends? 

US energy-related C02 emissions peaked in 2007 at about 6 hill ion tons. Even with 

last year's increase, C02 emissions in the US are still down 11 percent since 2005. 

The Great Recession played a role in bringing down emissions, but so too did 

transitioning electric power generation from coal to natural gas and renewables. 

The 2018 uptick, though, can be seen as part of a phenomenon years in the 

making: even though overall emissions are down since the mid-2000s, the pace of 

that decrease has been slipping. In 2015, emissions fell by 2. 7 percent. In 2016, 

emissions fell only !. 7 percent, and in 2017 that number was just 0.8 percent. 

Coal generation dropped in 2018, but less so than it did in 2012,2015, and 2016. 

The key difference, though, is that in those other years, electricity demand was 

flat or falling. In 2018, electricity demand picked up, and natural gas beat out 

renewables in replacing coal's lost generation. Natural gas generation emits 

roughly half the C02 of coal, but the scale of natural gas's growth canceled out 

emission reduction benefits. The Rhodium report points out that natural gasfired generation increased by 166 million kWh from January to October 2018. 

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1/16/2019 The Not Too Surprising Emiss1ons Surprise 

That is three times the decline in coal generation and four times the combined 

growth in wind and solar. 

YOU MAY ALSO LIKE 

Rumors Of Decoupled Emissions And Economic Growth Have Been 

Greatly Exaggerated 

"The big takeaway for me is that we haven't yet successfully decoupled U.S. 

emissions growth from economic growth," Trevor Houser, head of Rhodium's 

Energy and Climate group, told the New York Times' Brad Plumer. And 201 R was 

by any measure a year of relatively high economic growth in the US. The New 

York Times piece highlights manufacturing emissions specifically, noting that as 

the economy revved, "emissions from the nation's industrial sectors including 

steel, cement, chemicals and refineries- increased by 5.7 percent." 

Plumer notes that policymakers at the federal and state levels have focused on 

decarbonizing the electricity sector but have largely avoided regulating heavy 

industry, which now contributes about one-sixth ofthe country's carbon 

emissions, a share that is growing. The industrial sector is, of course, very directly 

tied to macroeconomic conditions and thus the relative lack of decarbonization of 

industrial processes means that those emissions remain tightly coupled to 

economic growth. 

The notion that emissions have been decoupled from growth has always been a 

bit oversold. The well-known "Kaya Identity" tells us that GHG emissions are the 

product offour factors: population, per capita economic output (GDP), energy 

intensity of GDP and carbon intensity of energy. So by definition, emissions can 

never be completely decoupled from economic growth, at least until energy is 

completely carbon-free (or economic growth is energy-free). Over the last decade 

in the US, decarbonization of electric power driven by coal to gas substitution has 

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1/16/2019 The Not Too Surprtstng Em1sslons Surprise 

played a major role in the fact that emissions declined while the economy grew. 

But the relationship between emissions and the economy remains fairly strong, as 

the post-Recession plummet in emissions and the 20\R emissions and economic 

hump suggest. 

Transportation Retains A Pivotal Role 

Transportation has now surpassed electric power as the largest single source of 

US GHG emissions. Rhodium reports that from January through September of 

2018, gasoline demand declined by 0.1 percent even though there was a slight 

increase in vehicle miles traveled. That can likely be attributed to modest vehicle 

fuel efficiency gains. Preliminary data from the fourth quarter of 2018 reflects an 

even greater decline in gasoline demand. The catch, though, is that demand for 

diesel and jet fuel - propelled by trucking and air travel -saw robust growth (3 .I 

percent and 3.0 percent, respectively). Those trends also continue into the fourth 

quarter. 

While President Trump's decision this summer to freeze future fuel economy 

standards at 2021 levels is important for the future trajectory of transportation 

emissions, that decision did not cause a three percent increase in diesel and jet 

fuel use in 2018. Though fuel efficiency mandates played a role in the slight drop 

in emissions from personal vehicles, diesel andjet fuel emissions are the slices of 

the pie that have been more impet'\~ous to policy efforts. These two sources arc 

tied largely to bulk transportation and aviation and thus are more tightly tied to 

economic activity, are more technologically challenging and thus have been less 

influenced by policy. 

Changing transportation fuel sources to electricity or hydrogen, of course, could 

shift matters considerably. A substantial uptake in electric or hydrogen fuel cell 

vehicles would hring down transportation tailpipe emissions with it, but shifting 

the fuel source from petroleum to electricity would shift the emissions 

accordingly. The net effect on emissions will then be determined by the carhon 

intensity of electric power generation or hydrogen fuel production. 

Baby It Was Cold Outside 

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1i16/2019 The Not Too Surprismg Emissions Surprise 

Buildings also saw a tremendous increase in emissions in 2018. The Rhodium 

report points out that despite modest improvements in the efficiency of oil and 

natural gas furnaces, it was not enough to offset the emissions impact of 

population growth and increased demand for heating and other building energy 

services. Early 2018 saw particularly cold temperatures, especially in New 

England, compared to 2017. The number of heating degree days across the U.S. 

increased by 15 percent during the first quarter of 2018 relative to 2017. The first 

three months of 2018 were still warmer than average for the US, though, so absent 

a deeper understanding of the cyclicality of polar vortexes, the 2017-18 change 

may be best viewed as a blip rather than a recurring trend. 

The Outlook 

As I have argued elsewhere, markets have provided the engine by which 

emissions reductions have occurred in the US over the last decade, but policies 

have not only influenced those market responses to date, they are necessary to 

sustain reductions over time. Because energy costs money, there are natural 

market incentives to conserve it and the resulting improvements in energy 

efficiency will continue to drive some emission reductions so long as energy is not 

dirt cheap. But carbon emissions are largely treated as free, so there is no natural 

incentive to conserve there without policy intervention. 

That leaves three options for deep carbon reductions concurrent with economic 

growth: (I) put a price on carbon to motivate reductions, (2) mandate or 

otherwise incentivize the development and use of low-carbon technologies, (3) 

hope that low-carbon technologies that are cheaper or higher performing than the 

carbon-intensive alternatives will emerge on their own. The first two approaches 

require deliberate policy. The third is a matter of faith. 

[Will Niver of the Duke University Energy Initiative provided research and 

writing assistance for this post.] 

I am Director of the Duke University Energy Initiative, a university-wide 

interdisciplinary hub for energy research, education and engagement, and 

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"i"he Not Too Surpns1ng Emissions Surpnse 

research professor at Duke's Nicholas School of the Environment, where l teach 

cow·scs in economics and energy systems lran4or ... MORE 

14,677 Vif:':WS / 3, 2019, 06:39pm 

Workday BRANDVO!CE 

Workday 1nslghts and Perspectives 

Workday is a leading provider of enterprise cloud applications for finance and human 

resources. Founded in 2005, Workday delivers financial management, human capital 

management, and anatytics applications designed tor the world's targest companies, 

educational institutions, .. Read More 

~;ttps:/!www. forb ~s .corn/si!es/bria n murray1!20 1 S/0 1 ! 1 0/the~Ml-too-sw prls:ng·emissions-surprise/#394.6c3fe i 61 d 6/6 
302 

Mr. WHEELER. Yes, Senator. You are correct. Our CO2 emissions 

peaked in 2005 and have been on the decline since then. I was just 

briefed by my career staff yesterday morning on this. We believe 

we are going to continue to see it decline. The CO2 emissions for 

last year, we had an exceptionally hot summer and cold winter, but 

we had, more importantly, an uptick in manufacturing and industrial output that brought up our CO2 emissions slightly but overall, 

we do not expect that to continue. We think the downward trend 

is going to continue in the long run. 

Senator INHOFE. That economic growth has been phenomenal. I 

assume the ACE rule would continue the general downward trend 

in CO2? 

Mr. WHEELER. It will. After ACE is fully implemented, we expect 

CO2 levels to decrease an additional 34 percent by 2005 levels from 

the electric power sector. 

Senator INHOFE. Of all the regulations from the previous Administration, in my State of Oklahoma, the one the farmers of America—not just in my State of Oklahoma but throughout the country—found the WOTUS rule to be the one that was the scariest of 

all. It is one you have reworked, and I have heard nothing but 

praise about this. 

I would like you to share with us the successes you have had in 

that particular rule. That is the one rule that means the most to 

my Oklahoma farmers. 

Mr. WHEELER. Thank you, Senator. 

We put out our proposal in December. The overarching guiding 

principle that I gave the staff in crafting the WOTUS rule was that 

I believe any property owner should be able to stand on his or her 

property and be able to tell for themselves whether or not they 

have waters of the U.S. on their property without having to hire 

an outside consultant or an attorney. 

I say that knowing that I used to be an outside consultant putting some people out of business, but I think people should be able 

to tell for themselves whether or not they have a wetland on their 

property. 

I want to make the big distinction that usually is not discussed, 

particularly in the media, that we are working in partnership with 

the States. Even if a water is not a water of the United States, it 

does not mean it is not protected at the State level. 

A lot of the waters that surround the wetlands that would no 

longer be considered a Federal waterway under the new WOTUS 

proposal will still be protected under State laws, and it does not 

impact our recovery efforts with our national priority areas such as 

the Chesapeake Bay, the Great Lakes, the Everglades, the Gulf 

Coast, or Puget Sound. All those recovery efforts will continue, and 

this does not impact any of those. 

Senator INHOFE. I appreciate that. I will share with you that the 

other day I was in western Oklahoma, our panhandle, a very arid 

area, and their concern was if we had not done this, we would 

probably be considered a wetland. 

I do not have to tell you my position on RFS, but in light of the 

rumors about the possible actions the Administration is considering, I would like to take a moment to remind everyone that corn 

is not the only stakeholder in this program. You have the real 

303 

world cost borne by not just refiners but also by consumers, by motorcyclists, both, operators of lawn equipment for the use of gas 

blended with ethanol. 

There is growing concern that the Administration is only listening to one side of the argument and that those arguments are not 

based on actual real world conditions. Will any reset rulemaking be 

based on market realities including the increased demand for zero 

that the market is seeing today? 

Mr. WHEELER. We will take all those issues into consideration as 

part of the reset. We intend to move forward with the reset as well 

as the E15. The President is committed to the E15. For the last 2 

years, we have RVOs, which is setting the levels for the renewable 

fuels for the next year. We have gotten both of those out on time, 

the first time that has ever happened in the history of the program. 

We are committed to doing that again this year. They provide 

certainty to the marketplace. It is very important, not just for the 

farmers, but also for the oil industry as well. 

Senator INHOFE. It is very, very important and you are doing a 

great job. 

Thank you. 

Senator BARRASSO. Thank you, Senator. 

Senator Cardin is next, but I think Senator Carper, you have a 

request. 

Senator CARPER. I have a unanimous consent request to submit 

for the record the recently released national climate assessment by 

13 Federal agencies under this Administration, including the EPA, 

that lay out the costs our country will pay if we do nothing on climate change and you keep rolling back rules. 

Senator BARRASSO. Without objection. 

[Editor’s Note: Due to size constraints the above referenced material may be found at https://nca2018.globalchange.gov/ 

downloads/] 

Senator CARDIN. Thank you, Mr. Chairman. 

Mr. Wheeler, thank you for being here, and thank you for your 

willingness to serve the public. 

I really want to first underscore the point Senator Carper made 

regarding the shutdown. The shutdown is dangerous and is devastating to the individuals involved, their families, to paying their 

bills, but also to the missions these agencies have to carry out. You 

have a very large percentage of your work force that is furloughed 

today without pay. 

To me it is not possible under these circumstances for EPA to 

carry out their mission to protect our environment, clean air, and 

clean water. You and I had a chance to talk about this in my office, 

but as you reach certain required deadlines, you need to have the 

personnel in place. It is going to be challenging to have workers 

work without pay, but I want to underscore how tragic this shutdown is and support Senator Carper in that regard. 

You talked about partnership with the States. I think there has 

been no better example of that than the Chesapeake Bay Program. 

We also had a chance to talk about this. 

The Chesapeake Bay Program was developed by the States in 

partnership with the stakeholders, developers, local government, 

farmers, and private groups. It was based upon what every State 

304 

can do based upon the science in collaboration in order to improve 

the quality of the Bay. 

The Washington Post over the weekend published that, ‘‘The importance of the Chesapeake Bay health cannot be overstated.’’ I 

agree with them completely. 

The Federal role is critically important because that is the umpire, the one that holds it together, using TMDLs to establish how 

we are making progress in every State doing what it says it can 

do and should do. 

My first question to you is will you support the Chesapeake Bay 

Program and work collaboratively with the other Federal agencies, 

State and local jurisdictions, and stakeholders in protecting the 

Chesapeake Bay Watershed, including the partners of the program 

in the office today in Annapolis? 

I want to point out that this Committee has reauthorized the 

Chesapeake Bay Program, recommended that, and the Congress 

has fully funded the Chesapeake Bay Office. 

Mr. WHEELER. Yes, Senator, I fully commit to that. As you may 

remember, I live in a Chesapeake Resource Protection Area in Virginia. I am personally very concerned about the Chesapeake Bay. 

In my second week as a Deputy Administrator, I attended a 

Chesapeake meeting in DC, and in the first month as Acting Administrator, I attended the large meeting in Baltimore with the 

Governors of all the Chesapeake States. I think we had one lieutenant Governor there. I am very much committed to the Chesapeake Bay and to the Chesapeake Bay Program. 

Senator CARDIN. And for the Federal office to be located in Annapolis? 

Mr. WHEELER. Yes. 

Senator CARDIN. Thank you. I appreciate that. 

I want to talk about some of the related issues with clean air 

that Senator Carper mentioned, the mercury standard. Let me 

start with that. By the way, I support Senator Carper in regard to 

the CAFE or auto emission standards. That is a huge issue with 

regard to clean air and concerning the Bay. 

You mentioned the reduction of carbon emissions, but remember 

that the auto industry is still one of the largest sources, so the 

CAFE standards are important. 

In regard to mercury, quite frankly, I do not understand EPA’s 

position. It seems to me that the mercury standards have worked. 

In your recent announcements, will there be any reduction in enforcement of the current mercury toxic standards? 

Mr. WHEELER. We do not believe there will be. We believe that 

every piece of mercury controlled equipment that is installed on a 

power plant today will remain under our proposal. The important 

thing to remember on the mercury regulation is that it has already 

been fully implemented, but what we had was a Supreme Court 

case, the Michigan v. EPA case, which directed us to go back and 

take a look at the cost-benefit analysis that the Obama administration conducted for the original MATS regulation. We did that. 

At the same time, we also conducted the Risk Technology Review. By conducting both of those at the same time, also under a 

D.C. Circuit Court decision, we believe that although we do not 

find it appropriate and necessary, that under the Risk and TechVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00310 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
305 

nology Review, the technologies that have already been implemented on the coal fired power plants will remain in place. 

That is our preferred option under the proposal. We are taking 

comment. We issued this right before the shutdown began. I do not 

believe it has been published in the Federal Register yet because 

the Federal Register is closed. As soon as it does, we are accepting 

comment on that. We would like to have comment, but at the end 

of the day, I do not believe a single piece of mercury controlled 

technology will be removed from any power plant, under our preferred option. 

Senator CARDIN. Last, under Section 4101 of the bipartisan 

WRDA bill, the EPA is to establish a Stormwater Infrastructure 

Funding Task Force composed of representatives of Federal, State, 

and local governments and non-profit entities to study ways to improve the availability of public and private sources for funding of 

the construction, rehab, operation, and maintaining our stormwater 

infrastructure which is critical to the Bay. 

Are you committed to setting up that task force? 

Mr. WHEELER. Yes. We have already started looking at how we 

can set that up. We believe it would have to be done under the 

FACA process, but we are committed to getting that done. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Before turning to Senator Capito, Senator 

Inhofe, you have something you want to submit for the record? 

Senator INHOFE. Yes, I do. Mr. Chairman, I would submit three 

things into the record. These are items into the record that highlight the flaw in the science and the assumptions that make up the 

Fourth National Climate Assessment released: one by the Cato Institute, one by the Competitive Enterprise Institute, and the last 

one an article by Nicolas Loris entitled, The Latest Climate Report 

Feeds into Alarmist Fearmongering. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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COMMENTS ON THE FOURTH NATIONAL CLIMATE ASSESSMENT 

Patrick J. Michaels 

Director, Center for the Study of Science 

Cato Institute 

Washington DC 20001 

1. Introduction and Plain language Summary 

The draft fourth "National Assessment" ("NA4") of climate change impacts is systematically flawed and 

requires a complete revision. 

NA4 uses a flawed ensemble of models that dramatically overforecast warming of the lower 

troposphere, with even larger errors in the upper tropical troposphere. The model ensemble also could 

not accommodate the "pause" or "slowdown" in warming between the two large El Nifios of 1997-8 and 

2015-6, The distribution of warming rates within the CMIPS ensemble is not a true indication of a 

statistical range of prospective warming, as it is a collection of systematic errors. Despite a glib 

statement about this Assessment fulfilling the terms of the federal Data Quality Act, that is fatuous. The 

use of systematically failing models does not fulfill the "maximizing the quality, objectivity, utility, and 

integrity of information" provision of the Act. 

Institutional memory relating to the production of previous assessments is strong, and the process itself 

is long, as the first drafts of this version were written in the middle of the second Obama Administration. 

They were written largely by the same team that wrote the 2014 Assessment, which NOAA advertised, 

at its release, was "a key deliverable of President Obama's Climate Action Plan." The first (2000) 

Assessment used the two most extreme models of the 14 considered for temperature and 

precipitation. In my review I applied them to 10-year running means of lower-48 temperatures and the 

residual error was larger than the error of the raw data itself! The historical lineage of the fourth 

Assessment has all but guaranteed an alarming report, regardless of reality. 

USGCRP should produce a reset Assessment, relying on a model or models that work in four dimensions 

for future guidance and ignoring the ones that don't 

Why wasn't this done to begin with? The modei1NM-CM4 is spot on, both at the surface and in the 

vertical, but using it would have largely meant the end of warming as a significant issue. Under a realistic 

emission scenario (which USGCRP also did not use), INM-CM4 strongly supports the "lukewarm" 1 

synthesis of global warming. Given the culture of alarmism that has infected the global change 

community since before the first (2000) Assessment, using this model would have been a complete 

turnaround with serious implications. 

The new Assessment should employ best scientific practice, and one that weather forecasters use every 

day. In the climate sphere, billions of dollars are at stake, and reliable forecasts are also critical. 

1 Those who agree an a human influence on global climate, but at, below, or at the bottom of the range specified 

by the U. N.'s Intergovernmental Panel on Climate Change. 
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When making a forecast, it's a good idea to look out the window. Meteorologists decide what mix or 

what individual model is providing the most reliable guidance. Rarely do forecasters average up every 

available one, because some are better than others, depending upon the situation. 

All of the fourth Assessment models other than INM-CM4 forecast the entire tropical troposphere too 

warm, especially in the upper reaches, and also have the surface too warm. 2 The "pause," which is 

obvious in both the satellite and HadCRU4 data,' wasn't accommodated, as noted by Fyfe et aL (2016). 4 

Because INM·CM4 doesn't run hot, it is able to further accommodate the lack of strong warming in the 

early part of the 21" century. 

If one assumes, as the International Energy Agency does,' that natural gas is going to continue to replace 

large amounts of coal energy, 21" century warming predicted by INM-CM4 is approximately 1.5°C, a 

value so low that the social costs of carbon become the social benefits of lukewarming. 

In summary, the USGCRP must hit the reset button now. It should use a methodology that works-i.e. a 

model that works-rather than a family of failures that tout a future of unwarranted gloom and doom. It 

would also be wise to rely more heavily on a concentration pathway that recognizes the massive 

worldwide switch from coal to natural gas for both electrical generation and manufacturing. That's the 

right way, and the only way to produce a credible Assessment. 

I would normally also supply an extensive commentary on the Key Findings, but because an entire new 

Assessment is warranted, the current ones are likely to change dramatically when the new drafts are 

released. 

Administratively, resetting the Assessment will prove difficult. The leadership is long-standing and 

descended from the community that produced the previous Assessments. A more diverse team is 

needed to produce what is likely to be a dramatically different document. 

2 See the review of this Assessment submitted by Richard McNider and John Christy. 3 See Footnote 22 near the end of this document. 4 Fyfe, J.C., et al., 2016. Making sense of the early 2000s warming slowdown. Nature Climate Change 6, 224-228. 5 lEA, 2017. lEA Sees Global Gas Demand Rising to 2022 as US Drives Market Transformation. 

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transloiJ!l~!on.html 

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2. Detailed Review 

A Brief Historical Perspective 

This is the fourth National Assessment. It continues the tradition established by the first three. 

The First National Assessment (2000) used models that were worse than a table of random numbers 

when applied to ten year running means for lower 48 temperature. The science team knew this and 

went ahead anyway.' Given that these documents are very influential on national and international 

policy, that was tantamount, in my opinion, to scientific malpractice.7 It also chose the two most 

extreme models, for temperature and precipitation, of the suite that it examined.' The second (2009) 

Assessment was so incomplete that it prompted an entire pillimpsest. The third (2014) billed itself as "a 

key deliverable of President Obama's Climate Action Plan," which again received a detailed critical 

review about its content, illogic, and omissions. 

Systematic problems with the Fourth Assessment models 

The Fourth National Assessment (hereafter, NA4) is model-based. Quoting from Chapter 2: 

The future projections used in this assessment come from global climate models (GCMs) that 

reproduce key processes in the earth's climate system using fundamental scientific principles. 

It follows that if, as an ensemble, these models are systematically flawed in a significant fashion, it is 

improper to use them to project the impacts of the climate changes that they predict. That didn't stop 

the first (2000) Assessment from using models worse than a table of random numbers, or the second 

and the third Assessments from using models with flaws similar to the ones in the this version (many are 

simply "improved" versions of second and third Assessment models). But perhaps this review will get a 

bit more attention than previous ones, as the political climate of Washington recently underwent an 

unforecast and abrupt change. 

The growing disparity between predicted bulk tropospheric temperatures and observed values, 

especially at altitude in the tropics {see Figure 1), casts overall doubt on the utility of the large ensemble 

of general circulation models (GCMs) with regard to 21st century temperatures. The current model suite 

has an average equilibrium climate sensitivity (ECS) of 3.4°C (Andrews, 2012).' The disparities may arise 

as a consequence of the recently acknowledged significant tuning of the GCMs in order for them to 

simply simulate the evolution of 20th century surface temperatures; see below. Regardless of the cause, 

these disparities cast doubt on the overall utility of the large ensemble of models with regard to 21" 

century temperatures. 

6 I wrote to the chief scientist, Tom Karl, and he emailed me back, that "we ran the test you did but changed the 

averaging period" from 10-year running means to 1, 5, 10, 20 and ZS years. He kindly included a graph that showed 

at all time intervals tested that the residual variance after applying the models was larger than the raw variance. A 

modified version (for clarity) can be found as Figure 25, page 109 of my 2016 book lukewarming. 1 first 

documented it in 2003 in a chapter, "Science or Political Science? An Assessment of the U.S. National Assessment 

of the Potential Consequences of Climate Variability and Change." In Gough, M., Ed., Politicizing Science: The 

Alchemy of Policymaking. Hoover, Palo Alto. 7 This action was exactly analogous to a physician prescribing a medication hear she knows will make the patient 

worse. 

'Documented on page 209 of my 2004 book Meltdown. 

'The associated Fifth Assessment Report of the IPCC gives this figure as 3.2°C, but the calculated average is 3.37. 

3 
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Figure L Modelled and observed tropical mid tropospheric (surface-100mb) temperature changes, 

1979-2016. From testimony of John Christy to the House Committee on Science, Space and Technology, 

March 29, 2017. The one model that tracks the observations is INM-CM4. The data are also available in 

tabular form in the American Meteorological Society's "State of the Climate" report for 2016. 

Figure 2. The vertical discrepancy between radiosonde-measured and model predicted tropical 

temperature trends, 20N-20S, is persistent and very large in the mid and upper troposphere. From 

Christy and McNider (2017); the exception is again the modei1NM-CM4. 

4 
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Similarly, Figure 2 shows the vertical distribution of forecast and observed trends. Commenting on it, 

Christy and McNider {2017) note: 

In every case, with the exception of the Russian model "inmcm4" below 250hPa, individual 

tropospheric model trends are larger than the observational average below 100 hPa with the 

discrepancies largest in the upper troposphere ... 10 

The point should be clear: unless INM-CM4 is also making systematic errors with major consequences 

(which are not apparent), the Assessment should be using it rather than the suite of models that is 

systematically and dramatically wrong. 

This type of exercise is undertaken frequently in operational meteorology. Oftentimes the many global 

and regional forecast models give conflicting results for a given synoptic situation. Forecasters then 

examine which ones have been performing well, or which perform better given the situation, and then 

settle upon one or a blend of models to arrive at the final forecast. They rarely average all of them up. 

Emphasizing the ECMWF model in favor of the GFS for 2013 storm Sandy was a prudent choice in the 

longer timeframes. Averaging them would have been very costly. 

Using the range of models that suffer from considerable bias in order to estimate the statistical 

distribution of a forecast is a folly of additive error, while using unbiased model{s) (in the global sense) 

minimizes the probability of such an error. 

In the 2017 Climate Science Special Report (CSSR) for both surface temperatures and specific impacts, 

and the draft fourth National Assessment, the range of warming is generated almost exclusively by the 

models that don't work, and not the model that works. This is the central reason why the entire fourth 

Assessment process must be reset. 

To reiterate: A collection of errors biased in one direction is hardly a true estimate of the range of a 

forecast. It is the opposite, a false estimate from models that are clearly warming the topical 

troposphere at over twice the observed rate. The warming rate forecast in the zone around 200mb is a 

stunning six times what has been observed in the last 36 years. About 38% of the earth's surface is 

underneath the zone studied. 

The Implications of Shale Gas were not Properly Considered 

To compound prospective future errors, the over-reliance on RCP 8.5 in the current Assessment is also 

questionable. To its credit, the NA4 does repeatedly mention the major displacement of coal with 

natural gas for electrical generation in the U.S., but fails to note the implication of large-scale 

international adoption of this switch, and the substitution of gas for coal in worldwide industry. The 

implication is that RCP 8.5 (mentioned in seven separate textual references (not counting the 

bibliographies)) is increasingly unlikely." 

1

° Christy, J. R., and R. T. McNider, 2017. Satellite bulk tropospheric temperatures as a metric for climate 

sensitivity. Asia-Pac. J. Atmos. Sci. 53,511-518. 11 This will be a result of the increasing real per-capita incomes and GDP. When certain levels of affluence are 

reached, environmental protection becomes affordable and is publicly demanded. This happened in the mid-20" 

century in the US, beginning with the miasmatic air of Pittsburgh. The horrific air quality in urban China will likely 

be the first target of any nascent green movement there. The amount of retrofitting of their newer coal plants 

5 
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Quoting from the International Energy Agency (lEA) 

The global natural gas market is undergoing major transformation driven by new supplies 

coming from the United States to meet growing demand in developing countries and industry 

surpilsses the power sPctor as the largest source of gas demand growth« 

The evolution of the role of natural gas in the global energy mix 

on energy trade, air quality and carbon emissions«. 

far-reaching consequences 

Global gas demand is expected to grow by 1.6% a year. .China will account for 40% of this 

growth. 

NA4 should therefore rely more on RCP 6.0 rother than 8.5. 

Figure 3. There is no evidence for rapidly increasing displacement of coal with natural gas for electrical 

generation in in RCP 8.5, even though this is now forecast by the lEA worldwide. 

The argument this is simply a U.S, phenomenon is premature. Unless the Chinese, who are the world's 

largest emitters, are different than people elsewhere, there will ultimately be restive demands to clean 

their unhealthy, coal-polluted air as their per capita income rises The abundance of available gas at that 

time will almost certainly result in major fuel switching. 

remains unknown, but as lEA indicates (above), China w1ll be responsible for the largest percent of gas usage 

growth the next five years. 

"!EA, 2017. !EA Sees Global Gas Demand Rising to 2022 as U 5 Drives Market Transformation. 

6 
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The reset NA4 needs to a~count for this, with an increased emphasis on RCP 6.0. 

The Social Cast (or Benefit) of Lukeworming 

INM-CM4 is decidedly lukewarm. I used KNMI Explorer to estimate 21" century warming-however, 

unlike for many of the other models, KNMI only has RPC 4.5 and 8.5 for INM-CM4. Using a warming 

slightly below the midpoint for those two gives a 21" century surface warming of approximately 1.5°. 

This is quite consistent with the empirical transient sensitivity recently calculated by Christy and 

McNider (2017) 13 

We therefore used their probability density function in a subsequent calculation by Kevin Dayaratna of 

the Heritage Foundation using the FUND model to determine an approximate social cost of carbon. We 

elected to follow the OMB {2004) guidelines that recommended using the robust historical average 7.0% 

discount rate, as well as the 3.0 it also recommends and the 5.0 used by the Obama Administration. 

We show results of with equilibrium climate sensitivity/transient climate sensitivity ratios of 1.3 and 1.7. 

Social Costs (Benefits) of a Ton of Carbon Dioxide and Probability of Benefit 

1.3 Ratio ECS/TCS 

YEAR 

2020 

2050 

3% D.R 

(0.55) (.55) 

1.19 (.46) 

1. 7 Ratio ECS/TCS 

2020 

2050 

4.04(.23) 

5.99 (.19) 

5% 

{1.36) (.64) 

(0.39) (.52) 

0.21 (.36) 

1.25 (.31) 

7% 

(1.31) {.72) 

{0.77) {57) 

(0.86) (.72) 

(0.23) (.57) 

These results are very similar to what Dayaratna et al. (2017) 14 published last year using the probability 

density functions for warming of Lewis and Curry (2015) 15 This is expected because it is quite similar to 

what is derived from Christy and McNider (2017). I fully expect if we used a distribution from INM-CM4 

run with RCP 6.0 that there would be similar results. 

13 Christy, J. R., and R. T. McNider, 2017. Satellite bulk tropospheric temperatures as a metric for climate 

sensitivity. Asia-Pac. J. Atmos. Sci. 53, 511-518. 

"Dayaratna, K., McKitrick, R., and D. Kreutzer, 2017. Empirically constrained climate sensitivity and the social 

cost of carbon. Climate Change Economics, April2017. DOl: bJlp://dx.doi.org/10.1142/S2010007817SOOQ§l 11 Lewis, N., and J.A. Curry, 2015. The implications for climate sensitivity of AR5 forcing and heat uptake estimates. 

Cli. Dyn., 46 1387-1396. 

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These are, of course, radically different from the cost estimates emanating from the previous 

Administration, but it is noteworthy that it specifically omitted the OMS-recommended robust historical 

discount rate of 7%. 

We note that seven of the 12 estimates shown above are net benefits rather than costs. A reset 

Assessment using ICM·CM4 or a satellite/radiosonde derived probability function for 21" century 

warming is going to be radically different than estimates using the larger, warm-biased suite of climate 

models. 

We May Never Know the Cause of the Overestimated Bulk Warming 

It may be nearly impossible to determine the cause(s) of overforecast bulk warming, but its effects are 

manifold. By forecasting a much warmer upper troposphere than is being observed, the models must be 

systematically underestimating tropical precipitation. 16 1t would also seem that descending air into the 

subtropical high pressure systems would be warmer than what is being observed. These two simple 

examples would have consequences for vegetation; a drier tropical regime would affect the vast tropical 

rainforests, and warmer descending air is likely to increase desertification in the persistent Hadley cells. 

Both of these processes will then create their own secondary feedbacks to surface temperature and 

sensible weather. 

If these problems can't' be corrected, the reset NA4 may as well exit the business of predicting climate 

impacts, especially on vegetation, agriculture, and sea level rise. Those impacts are all primarily driven 

by a rise in temperature, and if too much bulk warming is being demonstrably predicted, NA4 becomes 

not unlike NAl (2000), when the science team went ahead anyway after being told (and finding out 

themselves) that the models were actually supplying negative knowledge, inducing larger residual errors 

after applying them to the raw data. "Damn the data, full speed ahead" can no longer be tolerated. 

The problem is that we may never know what has gone wrong with the models as an ensemble. In a 

paper detailing the process of model tuning, Mauritsen (2012) noted it is apparently impossible to 

completely know what was done to these models over their historical development. In Mauritsen's 

words, "model development happens over generations, and it is difficult to describe 

comprehensively." 1718 

Significant portions of climate models are therefore black boxes with varying degrees of subjectivity. 

Recently, Hourdin et al., (2017) issued a rather strident call for more transparency about model tuning. 

Left to their own devices, it has long been known19 that climate models run with increasing atmospheric 

carbon dioxide only produce too much warming. As a result, internal parameters that ultimately predict 

16 Unless, of course, this output is systematically "tuned". But, •s Mauritsen implied, and Hourdin lamented, we 

may never know what was done. 17 Mauritsen, T., et al, 2012. Tuning the Climate of a Global Model. I. Adv. Modelling Earth Systems 4, DOl: 

10.1029/Z012MS000151 

18 Grad students and postdocs marching through the models didn't always keep good notes on what they did. 19 Tom Wigley wrote of this in an in-house journal Climate Monitor in 1987, and it was explicitly acknowledged in 

the second (1996) Assessment Report of the IPCC. 

8 
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future climate are tuned to reproduce the global temperature history of the 20'h century. 20 Model 

parameters are tuned to what Hourdin et al. called an "anticipated acceptable range."" 

NA4 and the accompanying Climate Science Special Report repeatedly state that models show 

anthropogenic emissions are responsible for almost all 20'h century warming. 

This is claimed despite the fact that of the two twentieth-century warmings; the first one, 

approximately from 1910 to 1945, could hardly have been a result of carbon dioxide emissions. The 

1910-1945 warming is statistically similar in slope to the 1976-1997 warming." 

Ice core data from Law Dome show the surface concentration was only around 298ppm when the first 

warming began, which gives a co, forcing of +0.35 w/m' based upon the standard formula (dRF= 

5.3Sin(298/279)). Stevens (2015), 23 citing Cars law et al. (2013) gives a sulfate forcing of -0.3 watts/m2

, 

resulting in a near-zero net combined forcing. Tuning the models to somehow account for this warming 

implies an enormous sensitivity. If that were actually true, current temperatures would be so high that 

there would be little policy debate. 

Tuning the models to mimic the historical record and then claiming that anthropogenic emissions 

explain the early warming is circular reasoning at its finest; reset NA4 needs to be explicit about this, 

2

° From Voosen, 2016: "Jndeed, whether dimate scientists !ike to admit it or not, nearly every model has been 

calibrated precisely to 20th century climate records-it would have ended up in the trash. 11lt is fa!r to say that a!! 

models have tuned it", says Isaac Held, a scientist at the Geophysical Fluid Dynamics Laboratory, another 

prominent modelling center in Princeton, New Jersey." (Voosen, P., 2016. Climate scientists open up their black 

boxes to scrutiny. Science 354, 40l-402.) 21 Hourdin, F,, et al., 2017. The art and sdence of climate model tuning. Bulfetin of the American Meteorological 

Society.Https:/ /doi.org/10.1175/BAM5-D-15-0013335.1 

" 

Surface Obsentatlons (HadCRUT4vS) 

0 

1997 1999 l001 1003 2005 200? 2009 lOU lot) 2015 2011 

Post-1998 remains controversial. There is a clear "pause" from late 1997 through 20.14 (or 2002-2014, 

after the first ENSO cycle in this plot is complete) evident both the latest version of HadCRUT4 and the 

UAH lower tropospheric sate!llte~sensed data, 

13 Stevens, B., 20l5. Rethinking the lower bound of aerosol radiative forcing.). Clim. 28, 4794-4819. 

9 
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Consequently, we are left with the following unhappy circumstance: it is the modeler, and not the 

model that decides what the "anticipated acceptable range" of parameters is in order to fit the double 

peak of warming in the 20'h century. Claiming that this is evidence for the reliability of the models' 

future prediction is fatuous. 

In fact, the opposite is true. Each time a model is tuned in search of a particular result, an increment of 

potential future instability is added. It's not surprising that, in forecast mode, the models make such 

egregious errors over the entire tropical troposphere. 

Data Quality Act 

Any Assessment must comply with the Data Quality Act, including a reset NA4. It is doubtful that relying 

on systematically failing models with parameters tuned to an "anticipated acceptable range" fulfills the 

Act's requirement to "maximize the quality, objectivity, utility, and integrity of information." 

3. Conclusion 

This review has demonstrated that NA4 suffers from a fundamental methodological flaw in assuming 

that models making large bulk errors are representative of a range of future warming. Ubiquitous tuning 

of the models to the 20'h century history hardly increases their reliability. NA4 also pays inadequate 

attention to the implications of an ongoing seismic shift in world energy towards natural gas. Warming 

predicted by the one model that does not suffer the bulk errors, coupled with a slightly lower 

concentration pathway because of forecast switching from coal to natural gas, becomes a net benefit 

rather than a social cost. 

Going back to 2000, there have been persistent problems throughout the entire assessment 

process,underscoring the need for major administrative change. 

For these and other reasons, draft NA4 should be shelved and reset, so that time and resources can be 

devoted to a new Assessment that corrects and addresses the first three Assessments and the draft 

NA4. 

10 
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1116!2019 Nat1onal Climale Assessment Still Needs a Reset 1 CompetitiVe Enterpnss Institute 

...,..-.Aiiilb.. t:OMI'U !T!V!. 

, ... ~ ENT!·.RPRI~!.C ~., !NSTrn I'!T 

National Climate Assessment Still 

Needs a Reset Mario Lewis, Jr. • November 30,2018 

The U.S. Global Change Research Program (USGCRP) released Volume II of its Fourth 

National Climate Assessment (NCA4) report last week on November 23rd ~. 

published in 2017, claims to present the "foundational science" of climate change. 

Volume II claims to present "the human welfare, societal, and environmental elements of 

climate change and variability for 10 regions and 18 national topics." The big takeaways 

are the same as in previous iterations of the NCA: 

Climate change impacts are "already being felt in communities across the country." 

As the world warms, floods, droughts, heat waves, wildfires, and storms will 

increase in frequency and intensity; sea-level rise will accelerate. 

• Unless policymakers implement "substantial and sustained global mitigation and 

regional adaptation efforts," climate change will impose "growing loses" on 

American infrastructure, forestry, agriculture, military installations, recreation, 

tourism, labor productivity, economic growth, human health, public safety, and 

biodiversity. 

Predictably, progressive media bashed President Trump for dismissing the dire warnings 

of the 13 federal agencies that contributed to the report. Defending Trump, Interior 

Secretary Ryan Zinke opined during a television interview in Sacramento, California that 

NCA4 relies on worst-case scenarios. Lead author Katherine Hayhoe tweeted in 

response that "the report considered a very broad range of scenarios, from one where 

carbon emissions go negative to one where they continue to grow." 

Zinke is right about the big picture. The USGCRP modeled climate impacts using four 

different emission scenarios called representative concentration pathways (RPCs). 

However, as the report acknowledges. "NCA4 focuses on RCP8.5 as a 'higher' scenario, 

associated with more warming, and RCP4.5 as a 'lower' scenario with less warming" (p,_ 

!).). So, in nearly every case, the general reader sees a range of impacts that go from 

bad to worse. 

https.//cel.org/b!oglnationa!-cllmale-asoess!T'ent-stlll·needs-resot 116 
317 


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1!16!2019 Nat1onal Climate Assessment Still Needs a Reset! Competitive Enterprise !nshtute 

Although the report does not describe RCP8.5 as a "baseline" or "no action" scenario, 

readers are left with the overwhelming impression that the worst impacts are highly 

probable absent "significant global mitigation action." But RCP8.5 is not a realistic 

baseline scenario. It projects higher emission levels in 2100 than ~I&WillLQf 

baseline scenarios in the literature. That makes RCP8.5 darn close to being a worstcase scenario. 

The core defect of RCP8.5 can be stated in two words: natural gas. RCP8.5 derives 

from an earlier emission scenario called A2 used by the Intergovernmental Panel on 

Climate Change (IPPC) in its 2007 Fourth Assessment Report (AR4). The il.IJlljy~ who 

developed A2 did not foresee the coming U.S. shale boom. RCP8.5 tacitly assumes that 

coal becomes the world's dominant energy source in the 2040s and continues to expand 

market share relative to gas through the rest of the century. Coal, of course, is the most 

carbon-intensive fossil fuel, emitting about twice as much carbon dioxide as natural gas 

per unit of energy consumed . 

., 

w 

2000 2020 2040 2«MMO 2080 2100 6Wim2 4.5Wim2 2.6Wim2 

[)(ovclopmcnt of gl<>bal primary cnl!rgy :mpply in RCP8.5 (Jejl-haml pa11el) 11nd global primary energy supply in 2 tOO inlhe nssodoted mitigntion cases slabilizins radiative forcing at levels of6. 4,5, nnd 2.6 W/m2 

(right-lwud bar:\·), Note that ptimary energy is accGuntl..'d u!iing the direct t.-quivfltcnl method 

Few experts today expect coal to dominate global energy in the 21't Century. For 

example, the U.S. Energy Information Administration's 2018 International EnergY. 

Outlook projects global consumption of all fuels to increase through 2040 except coat. 

h!tps·/Jcei.org/blag/nationa!-ctimate-assessment-stitl-needs-reset 216 
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111612019 National Climate Assessment Still Needs a Reset l Compstltive Enterprise lnst1tute 

World energy con~urnption increases li1r fuels other thun coal 

tE02018 R.,.,_nca eaM 

world en9rgy contumpUon by onorgy to urea. 

C~Uadrtllton Btu 

The NAC4 authors are undoubtedly aware that RCP8.5 is an overheated scenario. Their 

justification for using it? "Current trends in annual greenhouse gas emissions, globally, 

are consistent with RCP8.5" (R...-32.). Well, of course, current trends are consistent with 

RCP8.5, because current trends are consistent with all four RCPs. It is only in the 2030s 

and 2040s that the RCPs noticeably diverge. 

Emissions and radiative in the RCPs 

Emissions GtC02 Radiative Forcing 

30 ; ~ -\ 15 

25 .r 

..... 20 I 8 

~ 15 f 

j 10 .E 

!e j i E 

UJ 0 a: 

12 

.... ·"': :-. ~- -.. ~ ~ .. - ........ ·- ~·~ ·~ 

3 ·5 ECP ·10 

1900 2000 2100 2200 2300 2000 2100 2200 2300 

In technical comments submitted in February on the draft NCA4 report, Cato Institute 

scientist Patrick Michaels called for a "reset" of the Global Change Research Program. II 

would be "wise," he wrote, "to rely more heavily on a concentration pathway that 

recognizes the massive worldwide switch from coal to natural gas for both electrical 

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1116/2019 National C!lmate Assessr'lent Still Needs a ResGt 1 Compet1~1ve Enterprise lnslilule 

generation and manufacturing. That's the right way, and the only way to produce a 

credible Assessment" 

More importantly, Michaels also urged the USGCRP to fundamentally change how it 

models the climate impacts of emission scenarios. Like the IPCC, the USGCRP runs 

ensembles of numerous models, develops ranges and averages of model-based 

temperature projections, and infers additional climate change impacts from those 

projections. 

Since most models RIQject more warming than actually observed, the assessments 

typically end up somewhere between dire and catastrophic, especially when the models 

are run with an inflated emissions baseline like RCP8.5. The grim assessments 

generate headlines, fuel activism, and put pressure on policymakers to hammer fossil 

fuels. However, the results are not scientific verities but artifacts of a bizarre 

methodology. 

The proper approach is to find models that accurately forecast changes in global 

temperature, and use only those to inform speculation about other potential climate 

change impacts. As it happens, only one climate model, the Russian INM-CM4, 

accurately projects warming in the bulk tropical atmosphere where greenhouse theory_ 

gredicts the most ragid warming_will occur. Since INM-CM4 is the only model that works, 

it should be the basic model for official climate change assessments. In the chart below, 

courtesy of University of Alabama Huntsville atmospheric scientist John Christy, the 

purple line is the INM-CM4 projection. 

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1!16!2019 Nat:ona! Climate Assessment Shl! Neods a Rese! I CompetitiVe Enterprise Institute 

2.0 

ModaJ Trend Awrase: +0.44 '"C/decade 

Observation Trertd Averase: +0,15 "C/decadf! 

{p-.,-alut < O.QOOS tfnlt they are thr same, i.e. 

1.5 l the mQde/s andQIJservatiOllS aN not from the $Qme phvs/ooJ s~tem} 

Tll_"_H'!f'_OT!f!_S!S!_AlLED (R~-~ed) 

1.0 

o.s 

0.0 

·0.5 

1975 1980 1985 1990 1995 2000 2005 2010 2015 2020 

-'1"""'" .. , -.,,..f.,<,,. .. 

Michaels's comment letter concluded: "If one assumes, as the International Energy 

Agency does, that natural gas is going to continue to replace large amounts of coal 

energy, 21st century warming predicted by INM-CM4 is approximately 1 .5°C, a value so 

low that the social costs of carbon become the social benefits of lukewarming." 

Earlier this week, Michaels reiterated the case for resetting the U.S. Global Change 

Research Program: 

We contributed extensive public comments on the penultimate draft of the latest 

Assessment, which has changed very little between the review draft and the final 

copy. The final version contains the same fatal flaws we noted earlier this year. It's 

based upon a family of climate models that are predicting far more warming than 

has been occurring in the all-important tropical atmosphere. It should have used 

the one model (out of the 102 available runs) that actually gets things right, the 

Russian INM-CM4, but it relied upon the average warming produced by all1 02. 

INM-CM4 has the least warming of all of them, but doing the right thing-using 

the one that works-would have pretty much gutted climate change as a serious 

issue. 

These reports take several years to produce, and the current one was largely a 

product of the Obama Administration. If there's a Trump Administration when the 

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next one is scheduled (2022), it is likely to be very different. Why the current 

regime just didn't do as Bush did and simply elide the 1990 law is probably so it 

will get another crack at it in 2022. 

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1116/2019 National Climate Assessment: Unlikely Scenanos 1 National Rev1ew 

POLITICS & POLICY 

Latest Climate Report Feeds into 

Alarmist Fearmongering 

By NICOLAS LORIS I November 29, 2018 6:30AM 

Clouds over the skyline of San Francisco, Calif., in 2014 (Robert GJ!braith/Reutt'r~i 

The doomsday scenarios in the National Climate Assessment are close 

to impossible. 

T he latest National Climate Assessment, released just last week, aims to 

plant yet another seed of climate catastrophism into the mind of the 

public. Predictably, its worst-case scenarios got huge play in the media. 

After all, disaster sells. 

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ll16/2019 Nal!ona! Climate As5essmert UniJke!y Scenanos j National Review 

But the doomsday scenarios that animated talking heads throughout the 

weekend aren't just highly unlikely; they're close to impossible. For example, the 

report speculated that climate "inaction" could result in as much as a 10 percent 

drop in U.S. gross domestic product by 2100. Admittedly, a lot can happen in 82 

years. But a 10 percent drop in GDP is more than twice the loss suffered during 

the Great Recession. 

How could things get so bad? Well, put garbage in, and you'll get garbage out. 

The study, funded in part by climate warrior Tom Steyer, calculates these costs 

by assuming that the world will be 15 degrees Fahrenheit warmer by 2100. That 

mind-boggling assumption is even higher than the worst-case scenario 

predicted by the United Nations Intergovernmental Panel on Climate Change. 

In other words, it is completely unrealistic. 

Other scary projections in the National Climate Assessment rely on a theoretical 

climate trajectory known as Representative Concentration Pathway 8.5 (RCP 

8.5) -one of four trajectories that climatologists use to estimate the effects of 

different greenhouse-gas concentrations. 

To put it plainly, RCP 8.5 assumes a combination of extreme factors - all badthat are not likely to all coincide. It assumes "the fastest population growth (a 

doubling of Earth's population to 12 billion), the lowest rate of technology 

development, slow GDP growth, a massive increase in world poverty, plus high 

energy use and emissions." 

This extraordinary scenario assumes a massive increase in coal consumption -

completely ignoring the dramatic increase in natural-gas production from the 

shale revolution. It also ignores technological innovations that continue to occur 

in nuclear and renewable technologies. 

NOW WATCH: 'Los Angeles Public School Teachers Go on Strike' 

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1!16!2C19 National Climate Assessment Unlikely Scenanos I National Rev1eW 

When taking a more realistic view of the future of conventional fuel use and 

increased greenhouse-gas emissions, the doomsday scenarios vanish. 

Climatologist ,Judith Curry recently wrote, "Many 'catastrophic' impacts of 

climate change don't really kick at the lower C02 concentrations, and RCP 8.5 

then becomes useful as a 'scare' tactic." 

The National Climate Assessment insists that climate change is already taking a 

heavy toll, and things will only get worse. Global warming has worsened heat 

waves and wildfires, it claims. And we'll be seeing more hurricanes and floods, 

too. 

But last year's National Climate Assessment on extreme weather tells a different 

story. As University of Colorado Boulder professor Roger Pielke Jr. pointed out 

in a Twitter thread in August 2017, there were no increases in drought, no 

increases in frequency or magnitude of floods, no trends in frequency or 

intensity of hurricanes, and "low confidence for a detectable human climate 

change contribution in the Western United States based on existing studies." 

It's hard to imagine all of that could be flipped on its head in a matter of a year. 

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This year's report stresses that it "was created to inform policy-makers and 

makes no specific recommendations on how to remedy the problem." Yet the 

takeaway was clear: The cost of inaction is bound to dwarf the cost of any 

carbon-reduction proposal out there. 

The reality, however, is that all of the currently favored proposals for combatting 

climate change carry significant costs and (here's the even more important part) 

would do nothing to mitigate warming, even if there were a looming 

catastrophe like the National Climate Assessment imagines. 

Just last month, the Intergovernmental Panel on Climate Change proposed a 

carbon tax of between $135 and $5,500 by tbe year 2030. An energy tax of that 

magnitude would bankrupt families and businesses and undoubtedly catapult 

the world into economic despair. 

These policies would simply divert resources away from more valuable use, such 

as investing in more robust infrastructure to protect against natural disasters or 

investing in new technologies that make Representative Concentration Pathway 

8.5 even more of an afterthought than it already should be. 

It's human nature to ponder what-ifs and worse-case scenarios. Every time I 

board a flight, I think about the plane going down. But I know the statistical 

likelihood of that happening is near nil. And I certainly don't go around 

spreading misinformation about how unsafe planes are. 

Climate alarmists, however, see things differently. They want the world to share 

their concerns and seem willing to say "whatever it takes" to get people on 

board. But propagating improbabilities isn't science. It's irresponsible and does 

a disservice to the climate discussion broadly. 

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1116/2019 National Climate Assessment Unlikely Scenanos ! National Review 

NICOLAS LORIS- Nicolas Loris is the Heritage Foundation's Morgan Fellow in Energy 

and Environmental Policy. 

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327 

Senator CAPITO. Thank you, Mr. Chairman. 

Thank you, Mr. Wheeler, for your willingness to serve. I know 

you have been a great Acting Administrator at the EPA and would 

certainly fill that role in a permanent capacity. 

I would like to say to Senator Cardin that I echo his concerns 

being a State that is impacted by the Chesapeake Watershed. West 

Virginia obviously has impacts there. I am fully supportive of any 

work that is being done that benefits not just Maryland but the 

whole region as well and Virginia, as we discussed. 

I would also like to make a comment about the shutdown. I am 

speaking for myself. I think a Government that is shutdown, I have 

said, is a useless process. It is painful for your agency and others 

that are impacted and for the American people, but it is fully within the realm of both Republican and Democratic colleagues to come 

to a reasonable conclusion. I implore the other side to come to the 

table. 

I would like to ask you about some of the criticisms that have 

been launched against you and give you a chance to respond. Some 

of our colleagues have talked about the responsiveness of the EPA 

to congressional letters of inquiry. Could you flesh that out a little? 

Yesterday, there was a letter published that talked about your 

negligence in recusing yourself certain matters. I would like to give 

you a chance to address those issues. 

Mr. WHEELER. Thank you very much. 

Senator CAPITO. If you can do it briefly, that would be great. 

Mr. WHEELER. I believe we have been very responsive to the letters from Congress as well as FOIA. In particular, the Administrator’s office received a 400 percent increase in FOIA request during 

this Administration. We have added a lot of additional employees 

to process things like that. 

On the recusal side, I have worked with the career ethics officials 

at the agency since day 1. I have recused myself from any work involving my prior law firm and all of my prior clients under both 

the ethics regulations as well as the Trump Ethics Pledge. I have 

not violated that, and I continue to consult with our career ethics 

officials on a regular basis. 

Senator CAPITO. Thank you. 

You and I have talked about PFAS and the concerns I have, not 

just for West Virginia but nationally. You mentioned the management plan will be coming out and that it has more than one agency 

weighing in on that. 

I could not tell from your answer whether you are going to be 

setting a standard in that management plan or not. 

Mr. WHEELER. We are going to be recommending and moving forward on a number of different areas under a number of different 

statutes. We are looking on the water side as well as the CERCLA 

Superfund side and the TSCA Program as well. 

When it comes out, this is going to be our management plan, a 

multimedia approach to dealing with PFAS and PFOA. I do not 

know the specifics of what is in the management plan because it 

is currently in interagency review. 

Senator CAPITO. OK. 

Mr. WHEELER. We were hoping to release it next week, but with 

the shutdown it is going to be slightly delayed. 

328 

Senator CAPITO. Another question I have is on the water management issues. There have been a series of reports in Appalachia 

saying that leakage out of our municipal and our rural systems of 

water in West Virginia is that 55 percent is lost at a significant 

cost to taxpayers, ratepayers, and also to the environment. 

For areas short on water, which does not happen to be ours, but 

for areas short on water, this has to be a daunting challenge for 

water systems all around the country. I was wondering if this is 

something you could address at EPA. Are there specific programs 

there under the Drinking Water State Revolving Fund that we 

might have some possibility to help these systems get more efficient and be better stewards of the environment through the water 

systems? 

Mr. WHEELER. I think there is. I think you are correct and under 

the State Revolving Loan Fund, I think we can be helpful. I would 

certainly be more than happy to work with you and your staff in 

trying to address those issues in West Virginia. 

Senator CAPITO. It is obviously a country-wide issue. I think a lot 

of it has to do with the age of the systems, when the systems were 

built, and how they have not been reconstituted. 

Also, on the Clean Power Plan replacement, we heard there was 

an emissions rise in 2018 that was attributed, you said, to a cold 

winter and hot summer, and also to more economic activity. 

Mr. WHEELER. Yes. 

Senator CAPITO. You said you expect that to go down over time. 

What gives you the confidence, if this economy rolls the way we 

think it is going to, that will actually result? 

Mr. WHEELER. We are beginning to see new investments and 

more energy efficiency not only in the electric power sector but also 

in automobiles where we still have the CAFE standards in place 

to reduced emissions going forward. 

Once ACE is fully implemented, we will see 34 percent reductions in CO2 by the 2005 levels. We see across the board for all the 

industries we are working with also reductions in methane emissions as well, and we believe the CO2, greenhouse gas emissions 

will continue to go down. 

Senator CAPITO. Thank you. 

Senator BARRASSO. Thank you, Senator Capito. 

Senator Sanders. 

Senator SANDERS. Thank you for being with us, Mr. Wheeler. 

President Trump has indicated his belief that climate change is 

a hoax perhaps perpetrated by the Chinese. Do you agree? 

Mr. WHEELER. I believe that climate change is real. I believe 

man has an impact on it. 

Senator SANDERS. The President has said that climate change is 

a hoax. Do you agree with him? 

Mr. WHEELER. I have not used the hoax word myself. 

Senator SANDERS. Leading scientists around the world, looking at 

many, many hundreds of reports, have indicated that we have 12 

years in order to stop the worst impacts of climate change. What 

they are talking about are rising sea levels, more drought, more extreme weather disturbances, more wildfires, more migrations of 

people. 

329 

Do you agree with the scientific community that climate change 

is a global crisis that must be addressed in an aggressive way? 

Mr. WHEELER. I believe that climate change is a global issue that 

must be addressed globally. No one country can—— 

Senator SANDERS. That was not my question. I do not have a lot 

of time, and I would appreciate your answering the questions. 

The scientific community has said climate change is one of the 

great crises facing our planet, and if there is not unprecedented action to transform our energy system away from fossil fuel to sustainable energy and energy efficiency, there will be irreparable 

damage in the United States and virtually every country on Earth. 

Do you agree with the scientific community? 

Mr. WHEELER. I would not call it the greatest crisis, no, sir. I 

consider it a huge issue that has to be addressed globally. 

Senator SANDERS. I found it interesting, Mr. Wheeler, that you, 

as the nominee to be the head of the Environmental Protection 

Agency, in your opening statement, you did not mention the words 

‘‘climate change.’’ How does it happen that the nominee to be the 

head of the Environmental Protection Agency does not mention the 

words ‘‘climate change’’ at a time when the scientific community 

thinks climate change is the great environmental crisis facing this 

planet? 

Should the American people have confidence that you are going 

to help us deal with this global crisis? 

Mr. WHEELER. Yes, they should have confidence because we are 

moving forward to reduce CO2. Our ACE proposal will reduce CO2

approximately the same levels that the Clean Power Plan would 

have, if it had been implemented. 

We are reducing CO2 from our CAFE standards and also addressing greenhouse gases through our methane program as well. 

Senator SANDERS. You are addressing? 

Mr. WHEELER. Yes. 

Senator SANDERS. The scientific community tells us that we have 

a crisis and that we need unprecedented action to dramatically reduce carbon emissions, not only in this country but around the 

world. 

We are the strongest economy in the world. If the leadership of 

the Environmental Protection Agency in the United States says to 

China, Russia, India, and countries all over the world, we have to 

move aggressively to protect this planet for our children and our 

grandchildren, we can have some impact on the entire international community. Are you prepared to do that? 

Mr. WHEELER. We are implementing the laws that Congress has 

passed. 

Senator SANDERS. But you are the leader. 

Mr. WHEELER. We will implement those. 

Senator SANDERS. That is not what I am talking about. We have 

people over here who do not believe that climate change is even 

real, but you are the nominee for the leadership of the Environmental Protection Agency. 

Will you provide the leadership in this country and the world to 

say we are concerned about the future of this planet for our kids 

and our grandchildren? 

330 

Mr. WHEELER. We are concerned about the future of this planet 

for our children and grandchildren and we are implementing the 

laws passed by Congress including the Clean Air Act. That is why 

we are moving forward with the ACE proposal to reduce CO2 from 

the electric power generating sector. We are moving forward with 

the safe CAFE proposal to reduce CO2 levels. 

Senator SANDERS. Is rising sea levels a concern or is that a hoax? 

Mr. WHEELER. Rising sea levels is a concern, and we believe in 

adaptation. We are looking at a number of things. 

Senator SANDERS. I am sorry, adaptation? 

Mr. WHEELER. Adaptation to help our rising sea levels, absent 

additional congressional authority. 

Senator SANDERS. Here is the point. We have people here who do 

not believe in climate change, but you are going to be the leader 

perhaps of the Environmental Protection Agency. We need your assistance now. Are rising sea levels real? What are we going to do 

to minimize that? Are the wildfires we have seen in California and 

elsewhere related to climate change, in your judgment? 

Mr. WHEELER. There is probably some relation to climate change. 

I think the biggest issue with the wildfires has been forest management. 

Senator SANDERS. That is the biggest issue, not the droughts 

that we are seeing? 

Mr. WHEELER. That is the biggest issue. 

Senator SANDERS. Not the droughts? 

Mr. WHEELER. In my opinion, yes. 

Senator SANDERS. Thank you. 

Senator BARRASSO. Thank you, Senator Sanders. 

We have already heard from Administrator Wheeler that he supports innovation as a means to reduce emissions. I recently wrote 

a New York Times op-ed entitled Cut Carbon Through Innovation, 

Not Regulation. I look forward to working with Acting Administrator Wheeler to support innovation in ways that respect the law 

and do not unfairly punish businesses. 

I ask unanimous consent to enter into the record the New York 

Times editorial of December 18, 2018, Cut Carbon Through Innovation, Not Regulation. 

Senator WHITEHOUSE. Without objection, as long as my response 

to it can also be put in the record. 

Senator BARRASSO. It was a very nice letter to the editor. 

Senator WHITEHOUSE. Thank you. 

[The referenced information follows:] 

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117i2019 Opinion 1 Cut Carbon ThroVgh lnnovaton, Nol Rc-guf<~tion- fhe New York limes 

Cut Carbon Through Innovation, 

Not Regulation 

People across the world are rejecting the idea that carbon taxes are the answer to lowering 

emissions. 

By John Barrasso 

Senator Barrasso, a Republican of Wyoming, ls chalrm.an of the Environment and Public Works 

Committee. 

Dec. 18. 2018 

Leaders from nearly 200 countries met in Katowice, Poland, last week and agreed to rules to 

carry out the Paris climate accord. Now that the 22,000 delegates have returned home, there are 

three truths they need to recognize to make actual progress in the hard work of lowering carbon 

dioxide emissions across the globe. 

The first is, the climate is changing and we, collectively, have a responsibility to do something 

about it. Second, the United States and the world will continue to rely on affordable and abundant 

fossil fuels, including coal, to power our economies for decades to come. And third, innovation, not 

new taxes or punishing global agreements, is the ultimate solution. 

People across the world are rejecting the idea that carbon taxes and raising the cost of energy is 

the answer to lowering emissions. In France, the government just suspended a planned fuel tax 

increase after some of its citizens took to the streets in protest. And in the United States, the 

results of November elections showed that these plans and other government interventions are 

just as unpopular. 

Voters in Washington State rejected the creation of an expensive tax on carbon emissions. In 

Colorado, a ballot measure to severely restrict drilling was defeated. And in Arizona, voters 

rejected a mandate to make the state's utilities much more dependent on renewable energy by 

2030- regardless of the cost to consumers. All three of these states elected liberal Democrats to 

Congress on election night. 

The United States is currently on track to reduce emissions to 17 percent below 2005levels by 

2025, according to one recent analysis. That's roughly two-thirds of the way to the original United 

States target under the Paris climate agreement. 

The nation is leading the way not because of punishing regulations, restrictive laws or carbon 

taxes but because of innovation and advanced technology, especially in the energy sector. 

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1/712019 Op1nion j Cut Ca;bon ThroUflh Innovation. Not Regulation· The New York Times 

Over the past decade, American energy-related carbon dioxide emissions have been falling. 

Technology breakthroughs have led to an American energy renaissance and a growing economy. 

As our economy has strengthened, we have lowered emissions. 

While the United States cut its emissions in 2017, global emissions moved in the opposite 

direction. Emission levels increased in China and India, and even rose in the European Union in 

2017. 

Making energy as clean as we can, as fast as we can, without raising costs to consumers will be 

accomplished through L·westment, invention and innovation. 

As chairman of the Senate Environment and Public Works Committee, I am working across party 

lines to support the development of new technologies that will further decrease America's carbon 

emissions. 

Nuclear energy is produced with zero carbon emissions. It has been a source of clean, affordable 

and reliable power for decades. Nuclear energy provides more than twice the global electricity of 

wind power and more than five times the amount of solar energy. 

Washington needs to make it simpler for innovators who are building state-of-the-art nuclear 

reactors. These advancements in nuclear energy will create jobs, lower costs and contribute to 

America's energy security without additional carbon emissions. 

Ground breaking new research in the area of carbon utilization to turn emissions into productive 

commodities, and even direct air capture of carbon dioxide from the atmosphere, also hold keys 

to major emission reductions. We have made meaningful progress on bipartisan legislation to 

help researchers engaged in cutting-edge carbon capture and utiliz.ation technologies. 

The legislation supports efforts to find profitable uses for the captured carbon dioxide. The 

legislation will also simplify the process for building carbon dioxide pipelines, so that we can 

safely move the gas to where it is needed. 

A leading commercial use of captured carbon dioxide is a process called enhanced oil recovery. 

By injecting carbon dioxide into an otherwise unproductive well, oil can be economically 

extracted. This is good for the environment and the economy- producing more American 

energy and sequestering carbon dioxide underground. 

In addition to being used for enhanced oil recovery, carbon bas the potential to be repurposed in 

building materials, medical supplies and manufactured goods. 

Citizens around the world will continue to reject climate policies that cost them personally, either 

by direct taxation or by undermining the competitiveness of their own economies. The sooner the 

world's leaders accept this reality, the sooner we will be able to put new and lasting solutions in 

place. 

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1n/20i9 Opinion 1 Cut Carbon Through lnno'w'abon, Not Regulation· The New York T1mes 

Senator John Barrasso was an orthopedic surgeon before joining the Senate in 2007. In addition to heading the 

Environment and Public Works Committee, he is a member of the Energy and Natural Resources Committee. 

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and lnstagram. 

READ 979 COMMENTS 

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lETTER 

Taxing Carbon Emissions 

Senator Sheldon \Vhitehouse writes that "the savings from avoiding climate catastrophe are 

imrnense." 

Dec. 30, 20 HI 

To the Editor: 

I must respectfully disagree with my friend John Barrasso's Op-Ed article ("Cut Carbon Through 

Innovation, Not Regulation," nytimes.com, Dec. 18). 

First, the referendum result in Washington State looked like more relentless campaigning by the fossil fuel 

industry against climate action; without that industry onslaught, the carbon tax referendum there would 

probably have passed. 

Second, a carbon tax is not "expensive," except maybe for fossil fuel interests, as in our proposals all the 

money goes back to the public. In addition, taxing carbon moves energy markets toward cheaper 

renewables. On balance, people save money. 

On top of that, the savings from avoiding climate catastrophes are immense. If you really want to innovate, 

there has to be a cost to carbon pollution. Without that, where is the incentive to innovate? 

1bday, fossil fuel enjoys a $700 billion-a-year subsidy in the United States, according to the International 

Monetary Fund. That subsidy warps the economy; it discourages innovation. 

We need to come together to solve this problem, not let the fossil fuel industry's talking points lead us away 

from a meaningful solution because leading us astray suits its interests. 

Sheldon Whitehouse 

Newport, R.I. 

The writer, a Democrat, is a United States senator from Rhode Island. 

A version <lf this artic:e appears in. prtnt an Dec. 31, 2018, on Page A22 of the New York odition With the heBdBne: Taxing Carbon Emissinns 
335 

Senator SANDERS. By the way, Mr. Chairman, may I place an article in the record in response as well? 

Senator BARRASSO. Yes, without objection. 

[The referenced information was not received at time of print.] 

Senator BARRASSO. Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Mr. Wheeler, I am going to give you an opportunity to share a 

bit in terms of the approaches we need on an international basis, 

but before we get into that, I would like some specific thoughts 

with regard to an item you do have control over, and that is the 

nationwide plan to develop E15 markets. 

Mr. Wheeler, last week, an EPA spokesman commented on the 

EPA’s proposal to permit the sale of year-round E15, which are 15 

percent ethanol and 85 percent regular petroleum products. 

The quote that was given to us is this: ‘‘This is a priority for both 

President Trump and Acting Administrator Wheeler. The ongoing 

partial shutdown will not impede the EPA’s ability to keep our 

deadline.’’ 

I think one of the concerns a lot of producers in the upper Midwest have with regard to ethanol is in order to get into the summer 

driving season, we really need to have the guidelines and rules laid 

out as quickly as possible. 

Do you believe you will be able to commit to finalizing EPA’s rule 

permitting year-round sale of E15 before the summer driving season starts? 

Mr. WHEELER. As of today, yes, but I do caveat that with we are 

unable to work on it right now during the Government shutdown. 

Senator ROUNDS. Where are you in the process, and when do you 

expect the proposed rule to be released? What is your best guess? 

I understand you have a Government shutdown, and you have to 

work around it as well. 

Mr. WHEELER. I believe we were originally planning on issuing 

the proposal in February. I kept the EPA open an additional week 

longer than the rest of the Federal Government, so we have not 

been shut down as long as some of the other Federal agencies and 

departments. 

It is not a day for day exchange as far as how much longer it 

will take us on the proposal, but we may be slightly delayed at this 

point, but we will get it done before the summer driving season 

provided we are back. 

Senator ROUNDS. In a reasonable length of time? 

Mr. WHEELER. Reasonable time. 

Senator ROUNDS. Within the law, small petroleum refineries are 

offered the opportunity to request a rollback on their requirement 

to actually incorporate ethanol into their products. Right now that 

amounts to about a 2.25 billion gallon per year reduction in the 

total amount of ethanol that has been incorporated into the fuel 

supplies. 

I do not think the original intent of Congress was that reduces 

the total amount of ethanol that is actually being marketed. Can 

you share with us your thoughts about the options we have when 

we recognize the law allows those refineries to take a reduction or 

apply for a reduction? 

336 

What guidelines, alternatives, or authority do you have to try to 

still meet the original goals for ethanol production while at the 

same time honoring the guidelines in the law that allows those 

smaller refineries a hardship exemption? Can that exemption be 

reduced if you feel you cannot meet the guidelines Congress established with regard to the RVOs? 

Mr. WHEELER. As you know, Senator, we have had three court 

cases on the small refinery program instigated during the Obama 

administration when they were not granting any small refinery exemptions. EPA has lost all three in the courts. 

We are moving forward to implement the small refinery exemptions as included in the RFS program as part of the Energy Policy 

Act of 2005, Clean Air Act, but it has also been encouraged through 

the appropriations process. We have appropriations language telling us to implement the small refinery exemption program as well. 

You are correct. There are two competing issues there. If you 

grant a small refinery, it takes barrels away from the overall RFS 

goal of 15 billion gallons. There is not a lot of leeway there for us. 

It depends somewhat on the timing of the applications. 

If we were to reduce the 15 billion gallons by the amount we 

grant, you would end up having a rolling impact on having more 

refineries being subjected to higher levels of the ethanol mandate 

and end up having even more refineries being eligible for the exemption. 

We have tried to provide more transparency. We started the 

dashboard this past fall so that everyone understands what we are 

doing with the small refinery exemption. We are also taking a hard 

look at the overall numbers through our reset program. We intend 

to move forward with both the reset, the E15 and our RVOs. We 

are hoping to propose all three of those in February. 

Senator ROUNDS. Very good. Thank you. 

My time has expired. Thank you, Mr. Chairman. 

Senator BARRASSO. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you very much. 

Welcome, Mr. Wheeler. I wanted to let you know that I appreciate the polite and professional demeanor that you have brought 

to your task. Substantively, I continue to believe that you have 

your thumb, wrist, forearm, and elbow on the scales in virtually 

every determination that you can in favor of the fossil fuel industry. I think that is very unfortunate. 

I do think there is a baseline that we should work off of straight 

answers that are truthful and complete. I would note with respect 

to your recent answers to Senator Sanders about the CAFE standards, the Federal Register analysis, your analysis, of the CAFE 

standard proposal you have increases CO2 emissions year after 

year after year after year up to 9 percent increased CO2 emissions 

by 2035 relative to the existing baseline. 

I do not think it is fair to say you are taking action to help the 

carbon emissions problem when your proposal is worse than the 

baseline you began with of the Obama CAFE standards. I would 

put the page into the record, page 43327. 

Similarly, you referred to your ACE Program replacing the Clean 

Power Plan as being something that would reduce carbon emissions. Again, your own analysis in the Federal Register, the GovVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00342 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
337 

ernment’s own analysis in the Federal Register shows that compared to the Clean Power Plan, your proposal will raise carbon 

emissions—CO2 emissions—by tens of millions of tons every single 

year, including, for example, in 2030 raising it by 60 million tons 

in that year. 

I would like to put those two pages into the record. 

Senator BARRASSO. Without objection. 

[The referenced information was not received at time of print.] 

Senator WHITEHOUSE. When you were last here on November 8, 

2017, for your confirmation hearing as Deputy, I asked what you 

knew about your client, Bob Murray’s so called action plan, that he 

was running around bragging was being implemented by Scott Pruitt and the Trump administration. 

Here is what you told me: ‘‘I did not work on the plan, and I do 

not have a copy of it. I saw it briefly at the beginning of the year, 

but I do not have a copy of it. I looked at it and handed it back 

to Bob Murray.’’ I think the reasonable conclusion from that testimony is that you really only had a hand on it briefly and only saw 

it very briefly. 

Scroll forward to December 6, 2017, when we learned by published reports on March 29, 2017, you attended a meeting between 

your client, Bob Murray, and Energy Secretary Rick Perry, where 

this action plan was discussed. 

There you are, and there is Murray. If we go on to the next photograph, you can see this action plan was right there in the room. 

It was a nice cozy meeting. Let’s show the bear hug photo. That 

is really a sweet regulatory relationship. 

Mr. WHEELER. For the record, that is not me, though. 

Senator WHITEHOUSE. No, no, that is your client, Mr. Murray. 

We later obtained a copy of the Murray action plan which was 

in that room with Secretary Perry. It turns out it was also provided 

to Vice President Pence and provided to former EPA Administrator 

Pruitt. 

You arranged for Murray to meet with Perry. You tried to schedule a meeting with Pruitt, but he fell ill, and the meeting did not 

take place. Murray was scheduled to meet with Pruitt that same 

day. 

Can you tell me now how many meetings with Trump administration officials for Bob Murray did you arrange, attempt to arrange, or attend, and with whom? 

Mr. WHEELER. Yes, sir. First of all, I did not try to arrange the 

meeting with Scott Pruitt. Somebody else in my firm did that. The 

meeting with Secretary Perry, the purpose of that meeting was to 

talk about the relief, and I forget what it was called at the time. 

Senator WHITEHOUSE. My question was quite specific, which was 

how many meetings with Trump administration officials did you 

arrange or attend for Mr. Murray? 

Mr. WHEELER. The meeting with Secretary Perry, and then I believe we had an additional meeting at the White House for the energy advisor there. I did not attempt to arrange or attend any 

meetings where Mr. Murray attended. 

Senator WHITEHOUSE. I am sorry, Mr. Wheeler. My time has expired. I do not want to play gotcha with you. What I do want is 

truthful, complete factual answers about this. I am going to expand 

338 

on these questions in questions for the record. I expect you to provide complete and truthful answers as if under oath here at the 

hearing. Is that understood between us? 

Mr. WHEELER. Absolutely. 

Senator WHITEHOUSE. Thank you. 

Senator BARRASSO. Thank you, Senator Whitehouse. 

Before heading to Senator Boozman, Senator Inhofe. 

Senator INHOFE. Thank you. 

There is an editorial in the Investor’s Business Daily that looks 

at the Government charts that map out trends in hurricanes, tornadoes, droughts, wildfires, and all that. There is no upward trend 

in extreme weather, but instead it shows there is no trend in any 

of them. 

I would ask this be made a part of the record at this point. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

339 


35314.314

INVESTOR'S BUSINESS DAILY@ 

Despite What You've Heard, Global 

Warming Isn't Making Weather More 

Extreme 

I il-l 201A 

Climate Myths: We keep reading about how the extreme weather of 

2017 is the "new normal" thanks to global warming- even if the 

weather in question is frigid air. But the data don't show any trend in 

extreme weather events in the U.S. for decades. Science, anyone? 

The latest to make this "new normal" claim is Munich RE, which issued 

its annual report on the damage costs from hurricanes, floods, wildfires 

and the like on Thursday. 

According to the report, insurers paid out a record $135 billion because 

of these disasters, and total losses amounted to $330 billion, the second 

worst since 2011. It was also, the report says, the costliest hurricane 

season on record. And if you look at the chart in the report, it does 

appear that the cost of natural disasters has been on the uptrend since 

1980. 

Naturally, climate change advocates point to this as further proof that the 

increase in C02 levels is already causing calamities around the world. 

"As human-induced climate change continues to progress, extreme 

weather is becoming more frequent and dangerous," is how the 

Environmental Defense Fund put it. 

Munich RE's own Corporate Climate Center head claims that "2017 was 

not an outlier" and that "we must have on our radar the trend of new 

magnitudes." 

No Hidden Aaenda: Get News From A Pro-Free Market, Pro-Growth 

Perspective 
340 


35314.315

INVESTOR'S BUSINESS DAILY® 

But what evidence is there that extreme weather "is becoming more 

frequent and dangerous." In the U.S., there isn't any. 

If you don't believe that, then look at the series of charts below, which 

are taken from government sites, that depict trends in hurricanes, 

tornadoes, droughts and wildfires- all of which should be, according to 

environmentalists, on the uptrend. 

What do you see in these charts. There is no trend in any of them. 

Average Drought Conditions In the Contiguous 48 StatE!:5, 1895-2015 

·• 1890 t900 1910 1920 1930 1940 1950 1960 1970 1960 1990 2000 2010 2020 

Year 

Wot 

t 

~ "'' 

Oa!<i50urce· NOAA (NatiOnal Oc'I"<Hli~ and Atm;::nphe!lc Adn1i!HW~lion) 1016. N~lio•1al (tH11Fr~ for !'n~ironmenta! lnforrnatior> 

At.n~~sed January 2016, wwwlncri< noaa.gov!COOfCOODIV•s,onaiSelect ~~ 
341 


35314.316

INVESTOR'S BUS1NESS DA1LY 

~~~~~~ ~~ ~§H~~ ~ ~g~§~~~g~~~ ~~~~ ~%~ ~~~;~~ ~ ~~ g~~ ~ ~U~~~~E~ ~~~ 

North Atlantic ACE lndeK 

1950-2015 

~ .. ~>a..:e NOM/NWS\lotlt\P<0~1""'"N"' 

300 ;--------------------, 

250 

200 

150 

100 

50 
342 


35314.317

INVESTOR'S BUSINESS DAILY10 

East North Pacific ACE Index 

1970.2016 

350 ~--------------, 

300 

Total Wildland fires 

100 In thousands 

80 

60 

40 

'85 '90 '95 '00 '05 '1 0 '15 

Source: National Interagency Fire Center 
343 


35314.318

INVESTOR'S BUSINESS DAILY® 

Snow-Covered Area In North America, 1972-2015 

4.0 

M 

.. ; != 

" E '1:1 Ql 

M ! ~ : :3 

err 

' ;; 

~5! ;;5 2.5 lA! 

0 

1990 1995 2000 2005 2010 101$ 

Year 

Look at the data on drought conditions, from the EPA. There is no 

meaningful increase from 1900 to 2016. In fact, the past decade has 

been relatively mild on the drought front, with several years below 

average. 

The same is true when it comes to tornadoes. The number of tornadoes 

in 2014 was below the number in 1954, National Oceanic and 

Atmospheric Association data show. Indeed, the trend line seems to 

indicate that tornado activity has been lower since the mid-1980s than it 

was in three decades before that. 

What about hurricanes? Yes, this year was a bad one in terms of the 

number and damage caused by hurricanes. But these storms came after 

years of lower than normal hurricane activity, both in the Atlantic and in 

the Pacific. NOAA data show the annual Accumulated Cyclone Energy 

(ACE) in each region going back to 1970. 
344 


35314.319

INVESTOR'S BUSINESS DAlLY(,, 

As NOAA explains "The ACE index is used to calculate the intensity of 

the hurricane season and is a function of the wind speed and duration of 

each tropical cyclone." Can anyone see a discernible upward trend in 

this index in the past 46 years? As with tornadoes, the index seems to 

have declined since the 1980s. 

Wildfires? Sorry, but as with the other natural disasters, there's nothing 

here to validate the environmentalists scare stories, either. According to 

the National Interagency Fire Center, there were 67,743 wildfires in 

2016. That's down from more than 85,000 in 1986. By December 22 of 

last year, there had been about 66,000 fires, NIFC data show. 

The snowfall trend hasn't changed in decades, either, according to EPA 

data, although you'd think there'd be less snow as the planet warms. Of 

course, whenever there's a blizzard or a blast of arctic air- as with the 

"bomb cyclone" in the northeast- environmentalists start mewling 

about how that, too, is a sign of global warming. So if there's no trend 

one way or another, what does that mean? 

Even global temperatures aren't rising as fast as the global warming 

computer models say they should be, as we pointed out in this space 

recently. 

Yet despite these data, story after story continues to peddle the claim 

that the weather is getting more extreme, using whatever recent string of 

bad weather as the hook. 

OK, but what about the Munich RE numbers showing the continued 

increase in costs? That can easily be explained by the fact that the past 

several decades have seen increases in development and population in 

areas that are prone to severe weather. 

If a hurricane battered Florida 100 years ago, the monetary damages 

would be far, far less than today- even if you adjust for inflation -for 

the simple reason that Florida's population and its economy have 

exploded over the intervening years. 
345 


35314.320

INVESTOR'S BUSINESS DAILY~ It's also not inconceivable that Munich RE could have a vested interest in 

playing up the potential for climate-caused natural disasters, as a way to 

justify rate increases. That would present a conflict of interest that 

journalists- normally on guard for things- are noticeably disinterested 

in exploring. 

In any case, the question remains: If climate change is supposed to 

unleash waves of horrifying natural disasters as climate experts claim, 

why aren't we seeing any evidence of it here? 

https:j/www.investors.com/politics/editorials/despite-what-youve-heard·global-warming-isnt-makingweather-more-extreme/ 
346 

Senator BARRASSO. Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Thank you for being here and your willingness to serve. 

First of all, I want to thank you and your staff for your timely 

response. We have an issue going on in Bella Vista, Arkansas, with 

a fire that has to do with a stump disposal. Your staff has been 

very, very good. This is the State’s problem, but you do have the 

expertise on staff to help them. 

Senator INHOFE. Senator Boozman, could I interrupt for just a 

moment? I dropped the ball here. You had agreed to help out Senator Ernst by allowing her to go first. Would you still like to do 

that? 

Senator BOOZMAN. Go ahead. 

Senator ERNST. I still have some time. 

Senator BOOZMAN. OK. Are you sure? 

Senator ERNST. Yes. 

Senator BOOZMAN. Like I said, thank you for doing that. I think 

it is a great example of the agency working with States in situations like that. We need more of that. Thank you very much. 

Mr. WHEELER. Thank you, Senator. 

Senator BOOZMAN. Over the years, you were an integral part of 

helping this Committee pass many important pieces of legislation. 

You understand the work that goes into getting comprehensive bipartisan legislation passed, which this Committee can be very 

proud of. We have passed a bunch of that. 

How do you feel your role as a staff member on the EPW Committee has prepared you to bring people from all walks of life to 

the table to develop and implement important EPA regulations? 

Mr. WHEELER. Thank you, Senator. 

I think it has helped me a lot. I worked on several highway bills. 

I was the staff director for the 2005 highway bill that we did as 

well as several WRDA bills. I brought together people on both 

sides. 

Oftentimes on the highway side, it was people from not necessarily different parties, but different sized States in different 

parts of the country and learning about the issues that impact different States, small States, large States, populated States, and 

sparsely populated States. I am thinking of Alaska and Wyoming 

in particular. 

It really does educate someone on how to address large scale 

problems that face the entire country. That has helped me in my 

time so far at EPA. 

Senator BOOZMAN. Very good. 

During the previous Administration, there was concern that 

rules were developed not based on sound science but on political 

ideology. Under your leadership, can we expect the EPA to be more 

transparent regarding how rules are developed? 

Further, as Administrator of the EPA, can we count on you to 

base all of your decisions on the rule of law and not on the Administration’s or even your own political ideology? 

Mr. WHEELER. Absolutely. We are following not just the statutes 

but also the Supreme Court cases as well. I know there are cases 

where people on the left are not happy that we are moving forward 

with the solutions, and people on the right are not happy we are 

347 

moving forward with the solutions. It is my job as Administrator 

to follow the law and follow Supreme Court cases. 

Senator BOOZMAN. Very good. 

In your time at EPA and at the EPW Committee, you worked 

hard to improve environmental outcomes while providing regulatory certainty for the country. Can you please explain the environmental and economic benefits regulatory certainty provides? 

That is what we hear so much that you can play with good or bad 

rules, but if you do not know what the rules are, it is very, very 

difficult. 

Mr. WHEELER. Absolutely. I think our proposal for WOTUS regulation is a perfect example of that. As I mentioned earlier, I think 

it is really important for a property owner to be able to stand on 

his or her own property and be able to tell whether or not they 

have Federal water on their property. 

By clearly defining what is and is not, in defining what is not 

a water of the U.S. is just as important as defining what is and 

would give that certainty to the American public and allow people 

to use their property and land, prosper, and help the entire country. I think that is key and important. 

Senator BOOZMAN. Criticism of EPA during the previous Administration was the agency’s disconnect with rural America. Many 

hardworking Americans in rural States felt they did not have a 

voice and their opinions did not matter. 

What have you done and what do you plan to do in the future 

to facilitate a stronger level of trust between EPA and rural America? You just mentioned Waters of the U.S. 

Mr. WHEELER. I try to get out of DC out of the office as much 

as I can, and travel around the country. I have met with farmers 

leading up to our WOTUS proposal. I met with farmers all over the 

country. 

I was out in California meeting with farmers, in Kentucky, Montana, and Tennessee. It is real important for me to hear from people as to what their issues are and what their concerns are about. 

The farmers and the agriculture community are good stewards of 

the land. We need to make sure we are working in conjunction 

with them to protect the land. 

Senator BOOZMAN. Thank you. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Boozman. 

Senator CARPER. Mr. Chairman. 

Senator BARRASSO. Senator Carper. 

Senator CARPER. Mr. Chairman, I ask unanimous consent to submit for the record an article and letter regarding EPA’s dismissal 

of the Particulate Matter Review Panel and the agency’s insistence 

on moving forward with its secret science proposal limiting scientist input for advisory panels while also attempting to ignore scientific studies where the underlying data has not been made public 

will greatly hinder EPA’s ability to use the best available science 

to protect human health and the environment. 

Thank you. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

348 


35314.321

To: Acting Administrator Andrew Wheeler, Environmental Protection Agency, 1200 Pennsylvania Ave. 

01W. Mail Code !lOlA, Washington, DC 20460 

We write to express our deep concern with the recent dismissal of the Paniculatc Matter Review Panel, a 

long-standing and indispensable group of technical experts reporting to the Clean Air Scientific Advisory 

Committee (CASAC). 

For the past 40 years. the United States has been well-served by independent. data-driven science. and 

this has enabled the Environmental Protection Agency (EPA) to meet part of its fundamental mission by 

protecting the public from air pollution. Non-politicaL fact-guided examination by scientific expel1s. such 

as those formerly comprising the Particulate Matter Review Panel, is essential for the EPA to receive the 

best scientitic advice needed to protect public health. This process has always taken place in a transparent 

environment in order for all voices to be considered and decisions to be grounded in evidence. 

The science of particulate matter's impact on public health is a complex one that requires a qualified panel 

ofcxpcl1s. Particulate matter is an especially complicated pollutant because. unlike other EPA criteria 

pollutants. it is comprised of a mixture of many different chemical compounds that vary in concentration. 

composition, and physical size. Some of these compounds-even at low concentrations-arc likely to 

pose dispropol1ionatc health risks to vulnerable populations throughout the country. In fact, exposure to 

particulate matter causes more than 88.000 early deaths' per year in the United States-more than 

firearms and motor vehicle traffic deaths combincd2

-and this number appears to be growing over time. 

New science continues to be reponed each week that requires interpretation by qualified experts who can 

apply understanding, scrutiny, and constructive criticism to each published rep011. 

Without sufficient expertise by qualified, independent scientists, the EPA's air pollution decisions arc 

likely to lack the information necessary to provide an honest assessment of particulate matter impacts on 

health. The end result may be particulate matter standards that insufficiently protect the United States 

public. especially our most susceptible populations such as children and the elderly. 

As professional scientists and engineers, we strongly object to sidelining science in this 

decision making process, We strongly urge you to reinstate the Particulate Matter Review Panel to 

provide the Clean Air Scientific Advisory Committee, as well as your agency, with the best-possible 

scientific understanding, 

Sincerely. 

We, the undersigned 206 scientists and engineers with expe11ise in air quality, environmental sciences, 

and public health. 

attnbuwblt• to ambient a1r po!!utlOrr An analysis of da;a from the giohal 

of the global burden of disease 

Lant:et 389 !907·19i8 

<Murphy SL Xu l Koch<mek I\. D. Cunm SC, Amls 2()17 N<111onal Vitdl Stultstlc.s Reports. Deaths F11ml Data for Centers for D1scasc 

Control and Prevention Vol fl6 No(, Onl!ne at ~t\p-?)L..Y~'-':Y'{:::.Q.\:..gQ~/C_('l?l(1..2ti!hY5!/DY.SL\l,6/n'.:'~r2!?.. Q~ PI!f 
349 


35314.322

Clark Fincher. M.D. 

Medicine 

Searcy, AR 

Barbara Warren. M.D. 

Public Health 

Tucson, AZ 

Jason Coker, M.D. 

Medicine 

Glendale, CA 

Marsha Epstein, M.D. 

Medicine 

Los Angeles, CA 

Linda Schermer. M.P.H. 

Public Health 

Sedona, AZ 

Roger Bales. PhD 

Environmental Science 

El Cerrito. CA 

Don Collins, PhD 

Engineering 

Riverside. CA 

H. Kenneth Fisher. M.D. 

Medicine 

Los Angeles. CA 

Eve Shapiro. M.D. 

Medicine 

Tucson, AZ 

Kathryn Boyd. M.S. 

Earth Sciences 

San Francisco. CA 

Paul English, PhD 

Public Health 

Alameda. CA 

Lauren Fite. M.D. 

Medicine 

Pacific Palisades. CA 
350 


35314.323

Erik Gonzalez, M.D. 

Medicine 

San Pablo, CA 

Johanna Heyer, PhD 

candidate 

Environmental Science 

Sacramento, CA 

Amy Karon, Post Doctorate 

Public Health 

San Jose, CA 

Cara Maesano, Post 

Doctorate 

Physical Science 

Laguna Beach, CA 

Robert Gould, M.IJ. 

Medicine 

San francisco, CA 

Jerome Hoffman, M.D. 

Medicine 

Santa Barbara, CA 

Paul Kender, B.S. 

Engineering 

Oakland, CA 

Michael Martin, M.D. 

Medicine 

San Francisco. CA 

John Griffith. PhD 

Biology 

Garden Grove, CA 

Cesunica lvey, Post 

Doctorate 

Engineering 

Riverside. CA 

Gigi Lin, PhD 

Engineering 

Stanford. CA 

Nora Mascioli, Post 

Doctorate 

Eatih Sciences 

San Diego, CA 
351 


35314.324

Ed Maurer, PhD 

Engineering 

Santa Clara, CA 

Kennedy-Kiet Vu, M.S. 

Chemistry 

Riverside, CA 

Ray Weiss, PhD 

Earth Sciences 

La Jolla, CA 

Elizabeth Wobus, M.D. 

Medicine 

Rough And Ready, CA 

Rod Repke, M.S. 

Public Health 

Oakland, CA 

Pat Waring. M.P.H. 

Public Health 

Irvine. CA 

Mel Werbach, M.D. 

Medicine 

Tarzana. CA 

Douglas Beltman, M.S. 

Environmental Science 

Boulder. CO 

Joshua Sowa, M.S. 

Engineering 

Sacramento, CA 

Henry Weinberg. PhD 

Chemistry 

Santa Barbara, CA 

Megan Willis, PhD 

Chemistry 

Berkeley, CA 

Daniel Birkenheuer. PhD 

Physical Science 

Lakewood. CO 
352 


35314.325

Eric Hintsa, PhD 

Chemistry 

Boulder. CO 

Cindy Parker, M.D. 

Public Health 

Salida. CO 

Rosemary Gattcr-Evarts. 

M.S. 

Ecology 

Meriden. CT 

Faith Weidner, M.D. 

Medicine 

Simsbury, CT 

Jose Jimenez. PhD 

Engineering 

Boulder. CO 

John Shepherd. M.D. 

Medicine 

Boulder. CO 

Arnold Gordon. PhD 

Chemistry 

Greenwich, CT 

Antonia Herzog, PhD 

Physical Science 

Washington, DC 

Thomas La Point, PhD 

Biology 

Fort Collins. CO 

Greg Finch, PhD 

Biology 

Waterford, CT 

Robert Heimer. PhD 

Public Health 

New Haven, CT 

Christopher Rea, PhD 

Public Health 

Washington, DC 
353 


35314.326

Alan Greenglass, M.D. 

Medicine 

Wilmington, DE 

Douglas Morse, PhD 

Public Health 

Saint Augustine, FL 

Vaughn Barry, PhD 

Environmental Science 

Atlanta, GA 

David Ramsey, M.P.H. 

Public Health 

Commerce, GA 

Susan Hubbard-Reeves. 

M.P.H. 

Public Health 

Pensacola. FL 

Felix Rivera-Mariani. PhD 

lmmunotoxicology of Air 

Pollutants 

Fort Lauderdale. FL 

Laura Helms. B.S. 

Engineering 

Atlanta, GA 

Raencll Soller, PhD 

Environmental Science 

Duluth, GA 

Paul Mayer, M.D. 

Medicine 

Orange City. FL 

George Ubogy, M.D. 

Medicine 

Sarasota, FL 

James Mulholland. PhD 

Engineering 

Atlanta, GA 

Paige Tolbert, PhD 

Public Health 

Atlanta, GA 
354 


35314.327

Michele Nihipali, M.P.H. 

Public Health 

Hauula, HI 

John Calomeni, M.D. 

Medicine 

Boise. lD 

Sherri Sheftel, M.P.H. 

Public Health 

Highland Park. IL 

Steven Vigdor, PhD 

Physical Science 

Bloomington. IN 

Catherine Pirkle. PhD 

Public Health 

Honolulu, HI 

Matthew Dircksen. B.S. 

Engineering 

Chicago. IL 

Eric Sullivan, M.D. 

candidate 

Medicine 

Chicago. IL 

Barbara Bliss. PhD 

Biology 

Bardstown. KY 

Dale Minner. M.D. 

Public Health 

Creston, lA 

Chris Holden. M.P.H. 

Medicine 

Chicago. IL 

Bruce Hlodnicki. M.D. 

Medicine 

Indianapolis, IN 

Loren Tapp. M.D. 

Public Health 

Union, KY 
355 


35314.328

Gerold Willing, PhD 

Engineering 

Louisville. KY 

Radha Raman. M.D. 

Medicine 

New Orleans, LA 

Sara Duncan, PhD 

Public Health 

Amherst, MA 

Jonathan Levy. PhD 

Public Health 

Boston, MA 

Paul Klcrks. PhD 

Biology 

Church Point. LA 

William Beckett. M.D. 

Medicine 

Watertown, MA 

Robert Gamache. PhD 

Physical Science 

Dunstable. MA 

Philip Marrone. PhD 

Engineering 

Wayland. MA 

Robert Kuehn. M.S. 

Engineering 

New Orleans. LA 

Priyanka Desouza, PhD 

candidate 

Environmental Science 

Cambridge. MA 

Patrick Kinney. PhD 

Public llealth 

Sharon. MA 

Emily Monosson. PhD 

Environmental Science 

Montague. MA 
356 


35314.329

Ana Otero. PhD 

Environmental Science 

Brookline. MA 

Beth Rosenberg, PhD 

Public Health 

Somerville. MA 

Chester Buckenmaier. M.D. 

Medicine 

Annapolis, MD 

Elliott Levine. M.P.H. 

Environmental Science 

Rockville, MD 

Richard Peltier. PhD 

Public Health 

Amherst. MA 

Rebecca Saari, PhD 

Engineering 

Somerville, MA 

Gretchen Goldman. PhD 

Engineering 

Takoma Park. MD 

Michael Sevcner. M.S. 

Engineering 

Riverdale Park. MD 

Winfield Peterson, M.S. 

Engineering 

Natick. MA 

Alison Wood. PhD 

Engineering 

Needham. MA 

Mohammad Khalid, M.D. 

Physical Science 

Wheaton. MD 

Laura Welch, M.D. 

Public Health 

Takoma Park. MD 
357 


35314.330

Kathryn Bourgoin, M.D. 

Medicine 

Orono. ME 

Kevin Crupi. M.S. 

Earth Sciences 

Marquette, Ml 

Thomas Kovacs. PhD 

Earth Sciences 

Ypsilanti, Ml 

Robert Blake. M.D. 

Medicine 

Columbia, MO 

Edward Walworth. M.D. 

Medicine 

Lewiston. ME 

Jamie Falik. M.S. 

Public llealth 

Lansing. MI 

Robert M. Railey. PhD 

Chemistry 

Marquette. MI 

John Lueders. B.S. 

Engineering 

Weatherby Lake. MO 

Peter Wilk. M.D. 

Medicine 

Portland. ME 

Patricia Koman. PhD 

Public Health 

Ann Arbor. MI 

Jeffrey Indrelie. M.D. 

Medicine 

Waconia. MN 

Douglas K. Miller. M.D. 

Medicine 

Kirkwood. MO 
358 


35314.331

Phil Monroe, M.D. 

Medicine 

Springfield, MO 

Morton Barlaz. PhD 

Engineering 

Raleigh, NC 

Daniel Costa, PhD 

Environmental Science 

Chapel Hill. NC 

Fernando Garcia Menendez. 

PhD 

Engineering 

Raleigh. NC 

Stephen Mudrick. PhD 

Earth Sciences 

Columbia, MO 

Terry Brenneman, M.D. 

Medicine 

Raleigh. NC 

Joseph Decarolis. PhD 

Engineering 

Cary, NC 

Andrew Gricshop. Post 

Doctorate 

Engineering 

Raleigh. NC 

Markita Williams. M.P.H. 

Public Health 

Olive Branch, MS 

Susan Cordes. M.S. 

Environmental Science 

Tuckasegee. NC 

Radhika Dhingra. PhD 

Public Health 

Chapel Hill. NC 

Samuel Grossinger. M.S. 

Medicine 

Durham, NC 
359 


35314.332

David HilL M.D. 

Medicine 

Wilmington, NC 

Carlos Lucero. M.D. 

Medicine 

Graham, NC 

James West PhD 

Engineering 

Carrboro. NC 

Jonathan Allen. PhD 

Physical Science 

Titusville, NJ 

.Jonathan Kotch. M.D. 

Public Health 

Chapel HilL NC 

Rachel Royce. PhD 

Public Health 

Hillsborough, NC 

Suzanne Coble. M.D. 

Medicine 

Keene. NH 

Alessia Eramo. PhD 

Engineering 

Clifton. NJ 

Rachel Long. M.P.H. 

Public Health 

Chapel HilL NC 

Ruchir Vora. B.S. 

Engineering 

Chapel Hill. NC 

John Walter, M.D. 

Medicine 

Keene. Nll 

Janet Heroux. M.S. 

Public Health 

Princeton. N.J 
360 


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Sydonia Manibusan. PhD 

candidate 

Environmental Science 

New Brunswick. N.J 

Nirmala Thomas. PhD 

candidate 

Environmental Science 

New Brunswick, N.l 

John Booker. Post Doctorate 

Public Health 

Las Vegas. NM 

David Mitchell, PhD 

Earth Sciences 

Reno. NV 

Roland Saeger. PhD 

Engineering 

Runnemede. N.l 

Melody Wren. PhD 

candidate 

Public Health 

Highland Park. NJ 

William Buss. Post 

Doctorate 

Medicine 

Corrales. NM 

Richard Allen, M.D. 

Medicine 

Ithaca, NY 

Anthony Tedesco, B.S. 

Engineering 

Bridgewater. NJ 

Robert Bernstein. M.D. 

Medicine 

Santa Fe. NM 

Norty Kalishman, M.D. 

Public Health 

Albuquerque, NM 

Patricia Harlow. PhD 

Biology 

Rexford. NY 
361 


35314.334

Kim Knowlton, PhD 

Public Health 

New York. NY 

Barbara Rogers, M.S. 

Chemistry 

Brier Hill. NY 

S ivaraman Balachandran, 

PhD 

f::ngineering 

Cincinnati, OH 

Alan Lockwood. M.D. 

Medicine 

Oberlin. 01 I 

William Kuehnling, M.D. 

Medicine 

East /\mherst. NY 

K. Shafer Smith. PhD 

Physical Science 

New York. NY 

Debra Brinker. M.D. 

Medicine 

Dublin. OH 

Susan Righi. M.D. 

Medicine 

New Marshfield. Ol I 

Jerry Rivers. PhD 

Environmental Science 

Roosevelt, NY 

Sivaraman Balachandran. 

PhD 

Engineering 

Cincinnati. 01 I 

Gurpinder Deol, M.P.H. 

candidate 

Public Health 

Strongsville, OH 

Chadwick Wright, M.D. 

Medicine 

Lewis Center. OH 
362 


35314.335

Andrew Frost, M.D. 

Medicine 

Norman, OK 

Robina Ingram-Rich, M.P.H. 

Public Health 

Lake Oswego, OR 

Craig Stephens, M.S. 

Physical Science 

Lake Oswego, OR 

Mike Wolf. M.S. 

Earth Sciences 

Corvallis. OR 

Lawrence Dunlap. M.D. 

Medicine 

Eugene, OR 

Paul Ruscher. PhD 

Earth Sciences 

Eugene. OR 

Theodora Tsongas. Post 

Doctorate 

Environmental Science 

Portland. OR 

Joseph Baur, PhD 

Biology 

Merion Station. P A 

Elizabeth Graser-Lindsey, 

PhD 

Engineering 

Beavercreek, OR 

Elizabeth Sommer, M.S. 

Chemistry 

Portland. OR 

Mary Vorachek. M.D. 

Medicine 

Salem. OR 

David Christiansen, M.D. 

Medicine 

Mechanicsville, PA 
363 


35314.336

Peter Decarlo. PhD 

Chemistry 

Philadelphia. PA 

Felicia Lewis, M.D. 

Medicine 

Philadelphia. PA 

Alan Peterson, M.D. 

Medicine 

Willow Street. P A 

Darrel Easter. B.S. 

Engineering 

Bartlett. TN 

Ed Hetzel. M.S. 

Engineering 

Tunkhannock. P ;\ 

Robert Little. M.D. 

Medicine 

Harrisburg. P ;\ 

Audra Chini. M.P.H. 

Public Health 

Fort Mill. SC 

Joan Mitchell. M.P.H. 

Public Health 

Hermitage. TN 

Edward Ketyer. M.D. 

Medicine 

Bridgevile. Pi\ 

Donald Miller. PhD 

Engineering 

Downingtown. Pi\ 

Tim Oolman. PhD 

Engineering 

Charleston. SC 

Lauren Samuels. PhD 

Biostatistics 

Nashville. TN 
364 


35314.337

Jimmy Kumana, M.S. 

Engineering 

Missouri City, TX 

Tomas Sherwen, Post 

Doctorate 

Chemistry 

London, UK 

Patricia Kadar, B.S. 

Engineering 

Richmond, VA 

Mary Devany, M.S. 

Biology 

Vancouver. W A 

Celeste Monforton. PhD 

Public Health 

San Marcos, TX 

.lames Viney. M.D. 

Medicine 

Salt Lake City. UT 

Gary Timm, M.S. 

Chemistry 

Herndon, VA 

Antoinette Emch. PhD 

Public Health History 

Vancouver, W i\ 

Lisa Stone. M.P.!-!. 

Health & Wellncss 

Promotion 

Houston, TX 

Arthur .Jameson, PhD 

Earth Sciences 

Arlington, VA 

Arina Van Breda. M.D. 

Medicine 

Alexandria, VA 

Erica Frank, M.D. 

Public Health 

Sedro Woolley, \VA 
365 


35314.338

Anne Holmes, B.S. 

Engineering 

Edmonds, \VA 

John Potter. PhD 

Public Health 

Seattle, WA 

Marian Wineman. M.S. 

Engineering 

Seattle. WA 

Claire Gervais. M.D. 

Medicine 

Madison. WI 

Jeffrey Johnston. PhD 

Chemistry 

Olympia. WA 

Richard Rust. M.D. 

Medicine 

Seattle. WA 

Robert T. Block. M.D. 

Medicine 

Madison. WI 

Robert Park. PhD 

Engineering 

Madison. WI 

Kenneth Lans. M.D. 

Medicine 

Seattle. WA 

Rachel Shaffer. M.P.H. 

Public Health 

Seattle. WA 

Jed Downs. M.D. 

Medicine 

Fitchburg. WI 

Anthony Maciorowski. PhD 

Environmental Science 

Shepherdstown. WV 
366 


35314.339

John Harkness, PhD 

Engineering 

Teton Village, WY 

Ellin Stiteler. M.D. 

Medicine 

Gillette. WY 
367 


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1!1512019 

Just ln ... 

Delta Air lines 

expected to take $25 

million hit this month 

due to shutdown 

Cuomo to propose 

stretch limo ban in New 

York following fatal 

crash 

Air traffic controller 

union official says if 

shutdown continues 

there won't be any 

workers left 

Federal judge rules 

against census 

citizenship question 

COIJRT BATTLES- liM 355 AGO 

Could Nancy Pelosi be 

the next president of 

the United States? 

Ex-DOJ official says 

Trump's view of 

attorney general role 

should give Barr 

'serious pause' 

RISING -14M 10S AGO 

Trump spent about 

$3,000 on Clemson fast 

food spread: analysis 

ADMINISTRATION- 24M 105 AGO 

Huawei says it won't 

comply with China's 

EPA to pursue fmal 'science transparency' rule m 2019 I TheH1II 

EPA to pursue final'science 

transparency' rule in 2019 BY TIMOTHY CAMA -11:i14/18 OS lS PM EST 

87 '""" 

The Environmental Protection Agency (EPA) plans to pursue next year a 

final version of its much-criticized rule that would restrtct the scientific 

studies It can use to JUstify regulations, 

In a Friday intervieW with The HilL acting EPA chief Andrew Wheeler 

dismissed the idea that the science transparency regulation was on the 

"back burner" since the administration recently li~ as a "long-term" 

regulatory action. 

"It is not a back-burner issue. l feel strongly about that," Wheeler said, 

"And we will move forward to finalize that next year." 

The transparency rule was a key priority of Wheeler's predecessor, 

Scott Pru;tt, before he resigned from the agency 1n July under a slew of 

ethtcs and spending scandals 

But Wheeler made it clear that he isn't letting it fall by the wayside. 

X 

'Tve worked on those 1ssues for over 20 years. So I feel very strongly 

about science transparency," said Wheeler, who has previously served as a 

career EPA employee, a GOP Senate aide and an energy industry lobbyist 

Under the proposal, the EPA would only be able to use scientific data and 

studies if they are reproducible and the underlying data can be made 

public, among other factors, with some exceptions. including for personal 

health data 

hUps 1/!hehil!. comlp oli cy /energy-environ me nt/4214 7 9-ep a-to-pursue-final-science-trans pare ncy~ru!e-i n-20 1 9 1!3 
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1/15/2019 

request for customer 

data 

1NTEIINAT!ONAl- 25M J\S AClO 

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Far-right politician 

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EPA to pursue f1nal "sc1ence transparency' rule m 2019 1 TheHill 

Republicans and regulated industries have been pushing similar proposals 

for years, arguing that the EPA previously relied too much on "secret" 

science that could not be fully scrutinized. 

"I fundamentally believe that the more information that we put out as an 

agency, the better our decisions wil! be and the more confidence the 

public will have in what we're doing," Wheeler said. 

"And I think if we're going forward with a regulation, particularly a major 

regulation, we need to tell the American public, what are we using for 

basis? How did we decide what we're deciding? We need to put that 

information out there." 

Wheeler rejected the main criticism from opponents of the rule, that it is 

meant to restrict the agency's ability to regulate by putttng out of reach 

large bodies of valuable science, such as many epidemiological studies 

that by their nature cannot be reproduced. 

"l don't think it's designed to restrict what we use. It's designed to get the 

information out to the public. The critics look at it as 'oh, you're trying to 

get rid of a lot of the studies, you're trying to restrict what the agency can 

use.' No," he said. 

"And part of it is to send a signal to the research community that you need 

to make your data available to the public. Particularly if the United States 

government is paying for it. But we need to make the data available to the 

public." 

Wheeler's opponents had read as a positive sign an October report by the 

White House Office of Management and Budget that the proposal was 

either dead or not a priority for the EPA, since it was listed in "long-term" 

actions that wouldn't be finalized before 2020 at the earliest. 

For those critics, Wheeler's dedication to the rule is concern mg. 

California Attorney General Xavier Becerra, who has sued the Trump 

administration's EPA numerous times- frequently with success said if 

the science rule moves forward, he'll fight it. 

This Skin Disease 

Affects Each Family 

Member [Watch] ~ 

BY SANOF!-GENZYME AND REGENERON 

US-AT0-1084 

"If that's the case, California wouldn't stand for this and we'd urge EPA to 

get back to its main mission: protecting our environment and the health of 

our families from California to Maine," he said in a statement. 

"Not only would this rule limit the kinds of facts and sc!ence EPA can 

consider in rulemakmg, it would cripple EPA's ability t<J fully assess the 

public health impact of its decisions." 

Gretchen Goldman, an environmental engineer and research director for 

the Union of Concerned Scientists's Center for Science and Democracy, 

https:!/lhehil!.camlpolicytenergy-environmentf421479-epa-to-pursue-fina!-science-transparency-ru!e-in-2019 2!3 
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1/15/2019 EPA to pursue final 'science transparency' rule :n 20191 TheH1ll 

said the Apn! proposal ;sa !ong way from be1ng artything that could 

reasonably be Implemented. 

"He has a lot of to do. g1ven all of the problems w1th the current rule and 

the degree to which It wouldn't work," Goldman sa1d. 

"It's completely unworkable. lt"s a solution without a prob!ern."' she said of 

the proposaL "lt would create huge burdens both on the EPA and on the 

scientif1c comMunity that would have to implement th1s." 

TAGS XAVIER BECERRA SCOTT PRUITT ENVIRONMENT ENVIRONMENTAL PROTECTION AGENCY EM 

SCIENCE TRANSPARENCY 

THE H1Ll1G25K STREET, NWSUIT£ 900 WASHINGTON DC:l0006l20:l·fi28·8.500 TELl "202·628·8503 FAX 

THE CONTENTS OF THIS SITE ARE X'2019 CAPITOl Hill PUBliSHING CORP .. A SUBSIOIARY OF NEWS COMMUNICATIONS, INC. 

h!tps 1/thehi!l co m!po!l cy /energy·e nv1 ronme ntf 4 21117 9· epa. to-pursue-fmal-sc1ence-transparency· ru!e-1 n-2 0 19 313 
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1!24/2019 EPA fight agamst 'secret sc1ence' slowed am1d pushback from researchers- ABC News 

EPA fight against 'secret science' slowed amid pushback from 

researchers 

Sctentists said the push was atmed at limiting research to regulate tndustry 

By Stephanie Ebbs and Anne Flaherty 

Oct 17,2018 4 38 PM ET 

:; j SPECIAL REPORT CPA chi0f Scott Pui!"t! hns rcstgncd 

00:38 

A fbrious public response has slowed down the Trump administration's plan to stop using 

so-called "secret science," a move that scientists complained could have restricted the 

types of research used to regulate toxins, pesticides and pollution. 

Six months ago, then-EPA chief Scott Pruitt said his agency would demand that raw data 

behind every study is made public before being used to regulate the environment. 

AGVERT!S[MfNT 

https //abcnews.go.com/beta-story-container/Pohtics/epa-slows-fight-secret-science·amld-pushback-researchers/story?ld=58584686 113 
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1!24/2019 EPA fight aga1nst 'secret SCience' slowed am1d pushban; from researchers~ AGC News 

(MORE: Pruitt wants EPA to stop basing rules on what he calls 'secret science') 

"Americans deserve to assess the legitimacy of the science underpinning EPA decisions 

that may impact their lives," he said at the time. 

The scientific community was outraged. They noted that such a rule could knock out from 

consideration studies that use patient medical records that can be critical to drawing links 

between the environment and public health, such as air pollution. Such records must be 

kept confidential under the law. 

Pruitt later resigned under a cloud o[ ethical inquiries, including allegations that he struck 

a sweetheart real estate deal with a lobbyist. He was replaced by his deputy, Andrew 

Wheeler, a former coal lobbyist. 

(MORE: Trump says EPA administrator Pruitt chose to resign, 'Scott felt that he was a 

distraction') 

On Wednesday, the EPA listed the rule as long-term, meaning it doesn't expect to "publish 

an action within the next 12 months," according to EPA spokesman Michael Abboud. 

h\tps I 1 ab cnews go co mfbe !a-s tory-contai ne r/Poh tfCSiepa-s!ows-f1 gh t -se ere\ -sc1 ence-a md -Push back-research ersis:o.'Y71d =58 5646 86 213 
372 


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112412019 EPA f1ght agamst 'secret sctence' slowed am1d pushback from researchers- ABC News 

lie later said the agency is working as expeditiously as possible on the rule and could 

move on it sooner, but said it has to respond to more than half a million comments and 

complete the rest of the official process before the rule is final. 

The EPA was inundated with 597,000 written comments in just three months and a July 

17 hearing involved nearly 100 speakers on the subject, including members of Congress. 

Officials said they didn't want to rush the review process and don't have a set deadline for 

the rule. 

(MORE: Environmental, health advocates speak out against EPA 'secret science' rule) 

"This is not a delay," said Abboud. "The agency is continuing its internal rulcmaking 

development process for this action. The spring agenda gave no deadline on a final rule." 

Gina McCarthy, who led the EPA under President Barack Obama, said the proposed rule 

could undermine rules intended to protect public health because the studies used to 

support those rules rely on private health data. 

"Don't be fooled by this talk of transparency. [Pruitt] and some conservative members of 

Congress arc setting up a nonexistent problem in order to prevent the E.P.A. from using 

the best available science," :'v!cCarthy wrote in a New York Times op-ed with the former 

head of the EPA's air office. 

https·!fabcnews go com/beta-story-conta!nerJPohltcs/epa-slows-fight-secret-sclence-amtd-pushback-researchers/story?id=58564686 313 
373 


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~12412019 EPA 'Secret Science' Rule May Not See Dayligr,t Untii2020 (1) I Bloomberg Enwonment 

October 17 2018 

EPA 'Secret Science' Rule May Not See 

Daylight Until 2020 (1) 

From Environment & Energy Report REQUEST A DEMO 

to the n.?Jtton's most objective and mhrmative daliy env1romnenta! news 

to learn how tile U111ted Stcr\F:S and key nlayers arcunCf 

respondmg to the envtronrnenta.l 

By Abby Smith 

world are 

The EPA's plans to restrict the type of science it will use to craft regulations is on the back burner for 

now. 

The Environmental Protection Agency is pushing back its goal to issue the rule until January 2020, 

according to the administration's fall regulatory agenda released Oct. 17. 

That timeline means the April 30 proposal (RIN:2018-AA 14) could languish at the agency for nearly 

two years. Former EPA Administrator Scott Pruitt had rushed out the plans to change what he dubbed 

the agency's "secret science" rules. but even supporters of the approach have suggested it was poorly 

crafted. 

The EPA proposal would reverse its decades-old approach to regulatory science. The plans would bar 

the EPA from using scientific research that includes data that isn't or can't be made public. That would 

include epidemiological studies, which often use private medical information that must be kept 

confidential. 

Pushing back the time line doesn't mean EPA Acting Administrator Andrew Wheeler will abandon the 

policy, observers say. And the EPA also says it isn't delaying the policy but continuing with its internal 

rulemaking process. 

"Given the scope and volume of public comments, the Agency's review process cannot be rushed, 

and EPA has a significant amount of work ahead to fully consider and develop any final action," 

Michael Abboud, an EPA spokesman, said in a statement. 

https liv•Avw bna.com/epa·secret-scfence-n73014 483401/ 
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1/2412019 EPA ·secret Science' Rule May Not See Daylight Un\112020 (1) 1 Bloomberg Env1ronment 

Abboud added prior regulatory agendas hadn't yet listed a timeline for the EPA to finish the science 

rule. The EPA could also advance long-term actions more quickly than anticipated, he said. 

Not Backing Off 

"It may be pushed farther down the regulatory agenda, but I don't see this administration backing off 

from that policy," Norman Dupont, a partner at Ring Bender LLP in Costa Mesa, Calif., said at the 

Association for Environmental Health and Sciences Foundation conference in Amherst, Mass. 

Dupont also suggested the EPA is digesting the hundreds of thousands of comments submitted on the 

proposal. 

The approach has drawn sharp opposition from environmental groups, scientists, and public health 

researchers who say the plans will undercut the EPA's ability to properly regulate air pollutants, toxic 

chemicals, and other environmental harms. 

The EPA could use the longer timeline to tweak its proposal or to release a second version of its 

plans, as some supporters of the approach such as the Texas Commission on Environmental Quality 

have urged. 

"The lack of specific policy design has led to confusion among experts and particularly the media 

about the real consequences of this proposed rule," the state agency said in comments to the EPA. 

-With assistance from Sylvia Carignan. 

https '//WNW bna.com/epa-secret-science.n73014483401/ 212 
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1!24/2019 A!R POLLUTION EPA scraps sc1ence panel 'Your serv1ce has concluded'-- Fnday. October 12. 2018-- W'NW.eenews.net 

THE LEADER IN ENERGY AND ENVIRONMENT NEWS 

AIR POLLUTION 

EPA scraps science panel: 'Your service ... has concluded' 

Sean Reilly, E&E News reporter 

Publ:shed Fnday, October 12 2018 

Acting EPA chief Andrew \Nheeler yesterday fired a panel of scientific experts charged with assisting the agency's 

latest review of air quality standards for partiwlate matter. He t~!so scrapped plans to form a s1milt~r advisory panel 

to a1d in a recently lawnched assessment of the ground-level ozone limits. 

Those steps, coupled Wilh VV'heeler's previously announced dec1smn to concentrate authonty in a seven-member 

committee made up mostly of his appOintees. quickly sparked objectiOns that the agency is 1ntent on skewing the 

outcome of those rev1ews Jn favor of Industry 

"I think they are trying to rush through a process that will provide a result that is driven by political science. not 

health science," said Paul Billings. senior V1ce president for public policy at the American Lung Association 

Under the Clean Air Act, EPA is supposed to review the adequacy of the standards for particulate matter, ozone 

and four other common pollutants every f1ve years with help from outs1de experts. VVhile the seven-member 

comm1ttee, officially known as the Clean Air Scientific AdvJsory Committee (CASAC). has the lead in the process, 

the review panels are supposed to provide additional know-how in assessing the relevant scientific literature. 

which can span a vanety of academic disciplines 

For the panel's some two dozen members. most of whom are university researchers, news of their dismissal 

came late yesterday in an email from an EPA staffer who said Wheeler had tasked the CASAC with serving "as 

the body to review key science <~ssessments for the ongoing review of the particulate matter" standards 

"Therefore the CASAC PM Review Panel will no longer be involved with the agency's ... review and your service 

on the panel has conduded."wrote the staffer, Khanna Johnston. In a separate message, Johnston similarly told 

applicants for membership on the ozone rev1ew pane! that the agency would not be proceedtng with its creation. 

"I guess I'm disappointed," sa1d Barbara Turpin, head of the environmental sciences and engineering department 

at the University of North Carolina, Chapel HilL Turpin had been on the particulate matter review panel. Her 

colleagues there were among the best in their fields. Turpin satd in an tnterview this mornmg. "!n a sense. we 

serve as a check that the EPA ts foUow1ng the reqwrements of the Clean Air Act" 

Jeremy Sarna!. another former member of the panel. who 1s an associate professor of enwonmental health at 

Emory University, called the move "depressing" 

"\/lft1at the new and previous EPA administrators have done is dismantle .a process which has, over many years, 

proven itself to be highly-successful and effective," Sarna! said in an email. The new process, he added, now 

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1/24/2019 AIR POLLUTION EPA scraps sctence panel 'Your serv1ce has concluded'-- Fnday, October 12. 2018 -- W>NW.eenews net 

wnsolidates mput "'to a small. and in some cases 

unqualified, group ofmdi~duals. and ultimately 

opens EPA up to the charge that 11 is politiCS, not 

sctence. that is dnvmg th1s new policy" 

Review panel members were considered "'special 

government employees" 

Asked why EPA scrapped the panel, agency 

spokesman John Konkus pointed to VVheeler's 

deciSIOn to concentrate more authority mthe sevenmember CASAC He d1d not reply to an email this 

morn1ng seeking comment on the cnl!c1sm from 

81\hngs and others. 

Earlier thiS week, Wheeler announced five new 

appomtees to CASAC. the bulk of whom come from 

state and local regulatory agencies, not academ1a 

Tony Cox, the committee's chairman. is a Colorado consultant who had done work for the oil mdustry. 

Earlier this year, Cox told E&E News that he has also served as an expert in nsk analysis for EPA and the World 

Health Organization. and had not made a decision on whether the particulate matter thresholds need rev1s1on 

But under a timetable 1m posed by former EPA Admimstrator Scot1 Pru1tt the agency now plans to complete the 

rev1ew of the particulate mat!er standards by late 2020, or about tvvo years ahead of the anginal schedule 

(Green wire, May 10). The new rev1ew of the ozone standards. which has barely begun, IS also set to wrap up 

around the same time 

As a reason for the fast-track approach. Prui!! and EPA air chief Bill Wehrum have pointed to the Clean Air Act's 

reqwement that the rev1ews be done every five years, a goal that in the past the agency has rarely met. 

But the disbandmg of the parttculate matter revmw panel comes as EPA's Office of Research and Development is 

set to soon release a draft summary of the scientific research to be used in dec1dmg whether the existing 

standards need to be changed 

Andrew Rosenberg. who heads the Center for Science and Democracy at the Un10n of Concerned Scientists. said 

he sees the two events as directly connected. He said that in light of ev1dence that the current limits on fine 

partiC\llate exposure are not strong enough to adequately protect public health "I'm really worried about [what 

EPA 1s] gomg to say." 

Both ozone and particulate matter are closely connected to produchon or consumption of fosstl fuels. Meeler, 

before Joining EPA. was a lobbyist whose clients mcluded Murray Energy Corp. The Ohio-based coal giant was a 

strident cnlic of Obama-era enwonmental regulatJOnS, CEO Bob Murray IS a promment supporter of Pres1denl 

Trump 

Murray has had no contact with VVheeler smce the latter was sworn 1n as EPA deputy administrator in April. 

company spokesman Cody Nett said this mormng. Asked whether the firm has a poSition on Wheeler's decision to 

disband the particulate matter rev1ew panel. Nett dec)!ned to comment 

Advertisement 

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1/24/2019 Pentagon fires a warnmg shot against EPA's 'secret science' rule 1 Science I AAAS 

Pentagon fires a warning shot against EPA's 

'secret science' rule 

By Sean Reilly, E&E News I Aug. 28, 2018, 2 00 PM 

Originally published by E&E News 

Add the U.S. Department of Defense (DOD) to the ranks of those 

expressing concern about the U.S. Environmental Protection Agency's 

(EPA's) plans to restrict the use of scientific research in writing new 

regulations. 

"While we agree that public access to information is very important, we 

do not believe that failure of the agency to obtain a publication's 

underlying data from an author external to the agency should negate its 

use," Patricia Underwood, a senior Pentagon official in the Office of the 

Assistant Secretary of Defense for Energy, Installations and 

Environment, wrote in recent comments on the EPA proposal. 

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Because it's "improbable" EPA would always be able to obtain such 

underlying data, Underwood added, "this should not impede the use of 

otherwise high-quality studies." 

https 1/wwvv.Sclencemag.org/nem/2018/08/pentagon-fires-warning-shot-against-epa·s-secret-science-rule 

RUD! R!ET/FllCKR (CC BY-SA) 

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1/24/2019 Pentagon f;res a warn1ng shot agamst EPA's 'secret science· rule 1 Sctence I AAAS 

The proposed rule-"Strengthening Transparency in Regulatory 

Science"-would generally limit EPA to using studies for which the 

underlying research data "are publicly available in a manner sufficient 

for independent validation," according to the text. 

In unveiling the plan this spring, then-EPA Administrator Scott Pruitt 

touted it as a confidence booster in agency decisionmaking. 

Critics view that premise as a smokescreen for thwarting consideration 

of research that would help justify stricter regulations. 

After Pruitt resigned last month under White House pressure, an array 

of advocacy groups opposed to the proposed rule have urged acting 

EPA Administrator Andrew Wheeler to scrap it (Greenwire, 15 August). 

In an interview last month, Wheeler told E&E News he would take "a 

hard look" at the proposal but added that he believed "the more 

information we put out to the public as far as what we're basing our 

regulations on, the better our regulations will be" (Greenwire, 13 July). 

The Defense Department. the largest federal agency when measured 

by its budget and the size of its civilian workforce, is also a prime 

sponsor of scientific research. 

Underwood's comments were among more than a half-million that EPA 

received on the proposed rule by a 16 August deadline; they were 

added late last week to the online docket on the Regulations.gov 

website. 

Under the draft rule, the EPA administrator could grant exceptions to 

the data access requirements under specified conditions. 

Alongside a host of more technical concerns with the draft rule, 

Underwood urged EPA to allow for such exemptions when "underlying 

study data may be difficult to obtain from authors outside the agency." 

She also suggested that EPA "grandfather" existing analyses unless 

those studies "are being updated or challenged." 

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1124!2019 US EPA sc1ence adv1sers quest1on 'secret science' rule on d<:~ta transparency 

US EPA science advisers question 

'secret science' rule on data 

transparency 

Independent board 't-t'i/lrel'ielF agency decision.\' to repeal or change climate regulations 

and rules on the use (?!'non-public data. 

Jeff Tollefson 

PDF version 

https /I~WIW.nature.com/artic!es/d41586-018-05319-2 113 
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~/2412019 US EPA sc1ence adv1sers ques!mn ·secret scJen.ce· rule on data transparency 

The US Environmental Protection Agency has proposed changing the rules that 

limit greenhouse-gas emissions from facilities including power plants. Credit: 

Citizen of the Planet/Education lmages/UIG via Getty Images 

Science advisers to the US Environmental Protection Agency (EPA) voted on 31 l'v1ay to rcvinv a series oi' 

controversial rules that the agency has proposed over the past eight months. They include a plan that 

would limit the types of scienti tic research that the EPA could usc to justily environmental regulations, and 

proposals to strike down limits on greenhouse-gas emissions. 

EPA administrator Scott Pruitt li·arncd the data rule as part of' a push f'or transparency- and against ·secret 

science'- when he released it on 24 April. The policy would prevent the EPA from relying on studies that 

include any non-public data. 

The decision by the EPA Science Advisory Board (Si\13) to review the rule comes after earlier criticism by 

some of its members. In a 12 May memorandum, an SAB working group chastised the EPA for not 

submitting the proposal to the board lc1r review. 

"The working group is very much in favor of transparency." said Alison Cullen. an environmental health 

researcher at the University of Washington in Seattle and chair of the \Vorking group. during the SJ\B 

meeting. But on this particular proposal. there is a "very real lack of clarity"' in how the rule would be 

applied_ she said. 

t:nsccn science 

The proposed transparency rule is modelled on a similar bill that Republican lawmakers in the !-louse of 

Representatives have pushed for years. The House passed the latest version of the legislation in 2017. but it 

died in the Senate. 

Scientists and environmentalists have decried the EPA's proposal. noting thtlt many important 

epidemiological studies are based on public-health data that cannot legally be released owing to privacy 

concerns. As a result. critics say, such a rule would prevent the agency from considering some of the best 

health research, ultimately making it harder to create new environmental regulations. 

Under previous presidents. the EPA has typically given the SAB advanced notice of regulatory actions. 

such as the release of a proposed rule, although that is not required by law. This week's meeting was the 

first time that the full panel had considered the transparency rule. The EPA is not required to toll ow the 

advice of its advisory board. but failing to do so could bolster legal challenges against the agency. 

The agency has yet to finalize the transparency rule: the deadline for public comments. originally scheduled 

to close on 30 :V.1ay. has been extended to 16 August. 

Setting the ba•· 

https"I!WWVII.nature.corn!artiCies/d41586-018-05319-2 213 
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":/2<1/2019 US EPA scu'lnce adv1sers quest1on ·secret sc1ence' rule on data transp<~rency 

Th~ science-advisory hoard also \'Ot~d to assess the research underlying a series of proposed regulations to 

limit grccnhousc~gas emissions from power plants. \'chicles and oil and gas operations. 

That includes a review of the research behind Pruitt's decision to repeal the Clean Po\ler Plan. The plan 

sought to reduce carbon emissions from existing power plants and was former president Barack Obama 's 

signature climate-change policy. The advisers also intend to look over a decision made by the EPA in April 

to revoke emissions standards for vehicles manufactured betvvecn 2022 and 2025. 

Separate emissions standards set by the state oi'California, and followed by a dozen other states, would 

remain in place; Calil(>rnia ol'ficials have warned that they will fight any attempt by Pruitt to rev·oke a 

\vaiver that allows the state to set its own regulations in this regard. 

The EPA has yet to propose new standards to replace the Clean Power Plan or the Obama administration's 

vehicle~emissions regulations. 

The advisers did what they were supposed to do. said board member Steven Hamburg. chief scientist for the 

En\'ironmental Defense Fund. an ad\'ocacy group based in New York City. "The SAB is a congressionally 

chartered organization." he said. "Any administration can reject our advice. but \\·e are part or the record." 

Nature 558, 15 (2018) 

doi.· 10.1038/d41586-018-05319-2 

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1/24/2019 The EPA Is Tabling Its Controversial 'Secret Science' Proposal- Pacific Standard 

Pacific Standard 

HOME > NEWS IN BRIEF > FOOTNOTES > FROM THE ARCHIVES 

THE EPA IS TABLING ITS CONTROVERSIAL 'SECRET 

SCIENCE' PROPOSAL 

REBECCA WORRY· OCT 17, 2018 

The Environmental Protection Agency has decided not to rush through a controversial policy that would 

have required total transparency for all data used in federally commissioned studies, according to 

a regulatory agenda released Wednesday. 

Long-term actions "are those under development, but for which the agency does not expect to publish 

an action within the next 12 months," EPA spokesman Michael Abboud explained, ~g.tll..tb.e 

Washington Examiner. 

The "Strengthening Transparency in Regulatory Science" policy, which Pacific Standard has ITPJ1£ted on 

~Y.. was proposed in April under then-administrator Scott Prujtt. Dubbed the "secret science" 

rule by critics, it would require that the data for all scientific studies used to justify major regulatory 

actions" be publicly available. Though the EPA has touted the proposal as a push for public trust and 

transparency, many scientists have spoken against it. As Pacific Standard staff writer Francie Diep 

fl>!llil.iD.s: 

The public outcry against the rule led the EPA to extend its comment period and plan public hearings. 

As a result, the agency has close to 6oo,ooo comments on its hands, which helps explain the slower 

timeline: "Given the scope and volume of public comments, the agency's review process cannot be 

rushed, and EPA has a significant amount of work ahead to fully consider and develop any final action," 

a spokesman told the Hjll. 

The EPA is also back-burnering its plan to stop enforcing a regulation limiting the manufacture of 

high-polluting diesel trucks. After the decision was announced in july-on Pruitt's final day as EPA 

chief-attorneys general of 14 states sent a letter of O(lllQ.Si..tiQn to the EPA, and the Sierra Club and other 

groups sued to challenge the decision. In their letter, the attorneys general called the EPA decision "an 

unlawful rule suspension masquerading as an exercise of enforcement discretion." 

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~ 12 4/2 0 1 9 Q&A Thts atr poilutwn expert advtsed EPA for a decade. Now he sa leadmg cnttc, Science! AAAS 

Q&A: This air pollution expert advised EPA for 

a decade. Now, he's a leading critic 

Tom Oates I Dec. 11. 2018 3 JO PM 

This week, a key science advisory panel to the U.S. Environmental 

Protection Agency (EPA) will meet to review recent research on a 

particularly dangerous form of air pollution: tiny soot particles, which 

have been shown to damage lung and heart function and contribute to 

premature death. 

Such meetings, designed to help EPA meet a mandate to review air 

pollution regulations every 5 years and revise them if necessary, 

typically attract little notice. But the 12-13 December meeting of EPA's 

Clean Air Science Advisory Committee (CASAC) in Washington, D.C., 

has drawn unusual attention-and sparked a surge of criticism. In large 

part, that's because President Donald Trump's administration has 

dramatically remade the committee's membership, appointing all 

seven of its members. It has also dismantled a 26-member Particulate 

Matter Advisory Panel that traditionally was tasked with advising 

CASAC on soot pollution. (That move was criticized yesterday by 

two of the current CASAC members.) 

The administration says the changes. which are just one part of a larger 

(and also controversial) effort to remake EPA's science advice 

process, are aimed at streamlining and accelerating CASAC's work. 

But critics say they are mostly designed to reduce the voice of 

independent experts in agency decisions and to ease the 

administration's efforts to weaken existing air pollution standards or 

block the imposition of tighter limits. EPA's standards for particulate 

matter have been a particular flash point. Although the nearly 2000-

page science summary that CASAC will be reviewing suggests current 

U.S. standards are too lax, many industry groups and conservative 

lawmakers fiercely opposing any tightening of the standards, arguing 

they would be too costly, even as other nations move to crack down 

on soot. 

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One scientist who has emerged as an especially vocal critic of the 

changes to EPA's science review process is air pollution 

specialist Chris Frey of North Carolina State University in Raleigh. He 

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1/24/2019 O&A Th1s a1r pollut1on expert adv1sed EPA for a decade. Now, he s a !eadmg cnt1c j Sc1ence 1 AAAS 

served as CASAC's chair from 2012 to 2015, and also served on the 

recently disbanded particulate review panel. Between 2007 and 2018, 

Frey led or served on CASAC panels that reviewed the state of the 

science on ozone, sulfur dioxides, nitrogen oxides, lead, and carbon 

monoxide. 

Over the past several months, Frey has been widely quoted in 

articlesexamining the Trump administration's air pollution policies. He 

has also written analyses and helped organize several lengthy 

letters from former members of EPA advisory panels commenting on 

CASAC issues. Yesterday, for example, Frey and 14 other members of 

the now disbanded particulate review panel sent the CASAC a 134-

page comment on its upcoming review of soot science. 

It includes some scathing criticism. EPA's changes "are collectively 

harmful to the quality, credibility, and integrity of the scientific review 

process," they write. And, "The current 7-member CASAC does not 

have the depth or breadth of expertise needed for the particulate matter 

review, nor could any group of this size cover the needed scientific 

disciplines." Panel members are no longer chosen for their "scientific 

expertise first and foremost." they write. 

Sciencelnsider recently spoke with Frey about his experience and 

concerns regarding CASAC, the origins of his advocacy, and advice for 

early-career scientists. The interview has been edited for clarity and 

brevity. 

Q: What is CASAC? 

A: Section 109 of the [federal] Clean Air Act [CAA] says that the [EPA] 

administrator will "appoint an independent scientific review committee 

composed of seven members including at least one member of the 

National Academy of Sciences, one physician, and one person 

representing state air pollution control agencies." Whether to retain or 

revise or set new standards has been the main focus of what people 

think of as CASAC's role. 

CASAC is also asked to advise the [EPA] administrator whether there 

are areas of uncertainty that might be priorities for new science for a 

new review cycle ... [and to] advise the administrator on the so-called 

adverse effects of implementation of the standard. That's been 

controversial because it's very clear that EPA may not consider cost or 

technical feasibility when setting standards. That is [described in] a 

Supreme Court decision written by the late Justice Anton in Scalia. His 

interpretation was crystal clear that. under the CAA, Congress intended 

for EPA to set the standard based on health effects and that cost was 

not an allowable consideration. 

A challenge of asking CASAC to get into the effects of implementing a 

standard is that those [involve] issues of costs and technical feasibility. 

Historically, CASAC has not provided that kind of advice-in large part 

because EPA hasn't asked for it. However, some observers note that 

the CAA says that CASAC 'shall" provide that advice, implying that it's 

mandatory. I think that's a legal debate. The reality is that since EPA 

hasn't asked for that advice, it hasn't developed assessment 

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1124/2019 O&A This mr pollution expert advised EPA for a decade Now he sa leadmg cnttc 1 Sc1ence j AAAS 

documents that would provide a scientific basis for providing that 

advice. 

Q: You have been critical of the Trump administration's 

appointments to CASAC. Why? 

A: The words I keep coming back to are that the CAA requires a 

thorough review based on the latest scientific knowledge, and further 

requires EPA to appoint an independent scientific review committee. All 

of that language confirms to me that the scientific review committee 

needs to be comprised of scientists who know the latest scientific 

knowledge. 

I mention that because former EPA Administrator Scott Pruitt wrote a 

[2017] memo that changed the membership criteria for appointments to 

EPA federal advisory committees generally, including CASAC. Pruitt 

stated that key membership criteria of all EPA advisory committees is 

that they should be based on geographic diversity and should include 

members from state, local, and tribal agencies. with no distinction 

regarding science committees. 

Those are not inherently bad things in themselves, but they are not 

consistent with finding the best scientific experts. For a science 

committee, it is not really necessary to have geographic diversity or 

more than the minimally required representation. It doesn't make 

CASAC four times better to have four representatives from a state 

agency instead of one. 

The concern I have is that, as a group, this is not the right composition 

to have for CASAC. Many of the [current members] are not on the 

cutting edge of the latest research. Some of them, it's been a while 

since they've done things related to air. There is, kind of shockingly, no 

epidemiologist on CASAC. That's a central scientific discipline in the 

review of most of these air quality standards, including ozone and 

particulate matter. 

It's a very curious combination. It just doesn't have enough horsepower 

do to what it needs to do. 

Q: What is the remedy? 

A: My colleagues and I have strongly called for rescinding [the changes 

instituted] by former administrator Pruitt Part of our argument is that 

imposing those criteria on CASAC is inconsistent with its mandate 

under the CAA and inconsistent with 4 decades of practice. They were 

created with the flick of a pen and could be rescinded with a flick of a 

pen, too. 

Q: How did you come by your bent for advocacy? 

A: I grew up in Manhattan [in New York City]. As a child, I remember 

large flakes of soot would come from the sky, almost an inch in width or 

length. I never liked those. I wrote an essay when I was 9. "Air pollution 

is bad for people and animals too." Maybe that was my first advocacy 

piece. 

https ltw.wv se~en cemag_ org/news/2 0 I 81 12/q a-air· po llut10 n-expe rt -adv1s ed-e pa-d ecad e-now-he-s -lea dmg-critic 314 
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1/2412019 O&A Th1s a1r poHu!IOn expert adv1sed EPA for a decade. Now. he s a !oad1ng cnt1c 1 Sctence 1 AAAS 

I've always been interested in the public significance of science. I did a 

Ph.D. in engineering and public policy that gave me some quantitative 

tools that helped bridge the gap between science and policy. I had 

some opportunities early in my career to get involved in science 

advising which is something I tremendously enjoy. 

Policy questions are coming at us faster than science can provide 

answers. For policymakers, that means there's often uncertainty. 

Something like an air quality standard is based on value judgments that 

don't uniquely belong to scientists. We may have unique expertise, but 

we don't have any unique privilege. 

Q: Has your advocacy cost you professionally? 

A: I'm a tenured professor, so having an opinion is not one of the 

reasons I can be fired. Not everyone is in that position. What I'm doing 

now is advocacy for science, for a process not an issue. I'm not at a 

point in my career where I'm ready to do issue advocacy. I'm not going 

to chain myself to a fence because of an issue, unless it's science 

advising. 

Even if you're an early career researcher. however, if you have unique 

knowledge [such as on air or water pollution], there is some 

responsibility to do something. Even if it means sharing it with someone 

else, or engaging someone else to take it the next step, or to be 

engaged yourself. 

Advocacy isn't the first thing to do if one is building their research 

program. Establish your individual niche as a researcher and scholar. 

Be mindful that that's a very special and precious thing. The reputation 

you build is your most important asset, hard to build but easy to 

destroy. 

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1/24/2019 EPA's Transparency Rule Won't Help Science, Sc1ent1sts Say- The Atlantic 

Even Geologists Hate the EPA's New Science 

Rule 

Dozens of scientific and medical gro11ps oppose the proposal, which began under 

former EPA Administrator Scott Pruitt. 

ROBINSON MEYER JUL17, 2018 

Oops. 

A fev,/ months ago. the Environmental Protection Agency fill!fill=Li!..=."' 

r.olicy: that it claimed would '"strengthen transparency"' in science it uses to 

craft regulation. To support its case. the agency alluded to a few major 

research institutions~namely. three of the world's most prestigious scientific 

journals and two bipartisan reports on science and polic;. 

'"The proposal is consistent," bragged an EPA statement. ··with data access 

requirements for major scientific journals like ScienL'C, Xature. 

and Proceeding:i.JJ.[!he Sationaf Academ,t:_p[Science.v as we!! as 

recommendations from the Bipartisan Policy Center's Science for Policy_ 

Project and the Administrative Conference of the United States' Science in the 

Administrative Process Project." 

It \Vas not. actually. \Vithin a w0ek. the editors in chief of those three "major 

scientific journals"' clarified that the proposed rule had nothing to do with their 

policies. And a lead author of the t\vo bipartisan reports rejected the rule as 

\Veil, saying that her colkagues "would laugh and hoof' at its ideas. 

"They don't adopt any of the recommendations of any of the sources they 

cite," says that author, \Vendy Wagner, a lmv professor at the {)niversity of 

Texas. ·Tm not sure why they cited them." 

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1/24/2019 EPA's Transparency Rule Won't Help Sc1ence, Sc1ent1sts Say- The AtlantiC 

The seven-p..Eg~p....m.poscd rulc~one or Scott Pruitt's most ambitious initiatives 

!'rom his last months at the EPA-uses th~ language of"scientific 

transparency'' to prohibit the agency from consulting a wide swath of peerreviewed scientific research. If adopted, thl' pnlicy would essentially bar the 

EPA from consulting most large-scale medical studies \Vhcn creating rules 

about air pollution. toxic chemicals, and water contaminants. The proposal 

could also force the agency to revoke decades of c!ean~air protections. 

The proposal may not, on its face, seem particularly far-reaching. It requires 

that scientific studies that support "pivotal regulatory science" publish their 

underlying data. models. and assumptions. Son1C scientific studies-in 

ecology. for instance-may already meet this requirement. 

But scientific and medical institutions have rejected the proposal en masse 

because it would paralyze most medical researchers. These scientists cannot 

publish their supporting material ror public consumption without invading 

patients' privacy, as one study's data may encompass the identifying details 

and full medical history of hundreds of people. Often, subjects will only agree 

to participate in a medical study after being promised their data \Vill be kept 

private. 

The EPA rule creates a catch~22 for these researchers. If they disclose the 

identity of their research subjects. then they could face criminal 

penalties under federal medical-privac;~- But if they respect the privacy of 

their subjects. then their final study cannot be used by the EPA. 

If this sel'ms strange, it is: The proposal \\·ould forbid the EPA, whose mission 

is ffi....:protect human health.:,: from consulting scientific rese-arch into humans. 

On Tuesda). the EPA will hold the first public hearing about the proposaL It 

will serve as a test of sorts for whether EPA policy can command public 

attention after the departure of its infamous leader. The proposal has failed to 

capture the mainstream attention (or the press coverage) that met even minor 

Pruitt scandals. such as llli..pursuit of Ritz-Carlton lotion or his i\lcgl!l 

purchase of a $43.000 soundproof phone booth. 

But dozens of scicntitic and medical leaders have taken notice. arguing that 

the proposed rule doesn't seem to he about scientific transparency at all. 

"II' the EPA wanted to engage in a good~ faith discussion in how to improve 

transparency. that's certainly something they could have done. But this doesn't 

seem to he that," Jeremv Bcru., the editor in chief oLS'cicnce and a 

computational biologist at th~ University o!' Pittsburgh. told me. -

Ikrg issued a statement dccr;iog~p.LQposaL which was co-authored by the 

editors of four other major scicnti flc journals: ,\'ature. Cell, PLOS 

One, and Proceedings (;j'the .\athma·/ /lcademy of' Sciences (FNA,)'J. 

Recall that the EPA had once claimed that 1Yature. Science, and P:VAS had 

inspired its policy in the first place. Berg said. in so numy \vords. that this was 

hullshit. 

"'What concerns me and what concerns the other editors is that the proposed 

rtllc is much more rigid than our policies." Berg said. "Based on our 

experience, that could have some very negative impacts in preventing the usc 

ofhigh~quality science." 

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1/24/2019 EPA's Transpare0cy Rule Won't Heip Sc1ence Sclenltsts Say- The At!anl1c 

"\Ve'rc interested in making things as transparent as possible." he added. "But 

\Ve understand there arc circumstances where this isn't possible. and we think 

there's a lot of scientific values in those papers." 

It's also possible to crall transparency rules that allow for these exceptional 

circumstances, Berg said. For instance: '0/hi!e some human-subject studies 

can't release their data publicly, researchers can still make their data available 

confidentially to other academics, who can then check and replicate their 

findings. Science and Natwe·s policies both allow ((or this possibility. The EPA 

proposal does not. 

On Monday. 69 and public-health 

American Lung the American 1 !cart """":wtu" 

Medical Association, and the Americ<1n Psychological Association--<:~lso 

denounced the proposal. 

"'V./c strongly oppose EPA's efftxts to restrict the use of the best available 

science in its policymaking and encourage EPA to withdraw its proposal," said 

a statement from the coalition. "lfEPA excludes studies because the data 

cannot be made public, people may ht.! exposed to real harm:· 

The group included representatives of the natural sciences \\.ho have 

historically avoided politics, including the American Geophysical Union and 

the Geological Society or Anwrica. Chris McEntee. the chief cx~cutivc of the 

American G!.:!ophysica! Union. wrote that the proposal was a "a \\o!f:.in~ 

sheep's-clothing policy that \\Otdd undermine hm\ the agency uses science in 

decision-making." 

Harvard has also opposed the policy. as has the Association of Public and 

Land-grant Universities. Drc\~.: Gilpin Fnust. the president of Harvard, wrote in 

a June letter to Pruitt that the proposal "is fundamentally tlmved" and that it 

··would significantly limit the EPA's ability to consider the best available 

scientific findings.'' 

It "risks not just erosion of public trust in the EPA's important \\ork. but abo 

progress on improving ih~ health and \\ cllbt>ing of our communities and our 

nation." she added. 

As 1 wrote in April, the proposal is believed to target one study in 

particular: the Harvard "'Six Cities" report. \vhich in t 993 found that 

Americans living in more-air-polluted cities died faster than Americans living 

in !ess-po!luted cities. The study used contidential rncdical informntion. but its 

data has been shared with other research teams and ££plicatcd several times. 

Particulate matter. the specific type of air pollution identified by the study, has 

since been round to cause Jype 2 diabetes, and has been associated with 

elevated rates or lung cancer. heart attacks. asthma altacks. emergency-room 

visits, and hospital admissions. But because the Six Cities study cannot 

publish its data publicly. some Republican activists and lobbyists have 

attacked it as "secret science'' nnd argued that particulate matter docs not harm 

human health. 

"If you have data that's really important for public health, then 

you ought to be 'Ailling to share it," Steven :'vlilloy, a policy 

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1!24!2019 EPA's Transparency Rule Won'! He!p Sc1ence. Scientists Say- The AUant1c 

adviser at the Heartland Institute and a longtime advocate of 

"anti-secret science" policies, told me in April. 

He added that the Six Cites study was "the granddaddy of all 

this stuff' and the "biggest science fraud that has gone on in 

this country's history." Milloy also rejects the mainstream 

scientific consensus that greenhouse-gas emissions arc 

warming Earth's climate. 

"To call such science 'secret' is to misrepresent the scientific 

process," Faust wrote in her letter. "Harvard has shared 

significant information and cooperated entirely in a full 

independent reanalysis of the [Six Cities] data by the Health 

Effects Institute (HEI), which confirmed the validity of the 

findings ... Beyond the HEI reanalysis, the findings of Six Cities 

have been replicated numerous times in many independent 

studies." 

It's true that mainstream public-health researchers have 

concluded that particulate matter is intensely dangerous to 

public health. But many of their studies are based on 

confidential medical information as well. If the policy is 

adopted, the Trump administration could possibly try to repeal 

or weaken policies restricting the amount of particulate matter 

in the air. 

A peer-reviewed EPA report has found that the agency's 

particulate-matter rules have prevented J:QJJghl)120o,ooo earl)! 

deaths since 1990. But even at their current levels, the EPA's 

rules arc not strong enough to prevent type 2 

diabetes, according to a recent stud)!. 

An EPA spokeswoman did not respond directly when asked 

about the wide number of scientific and medical agencies who 

have opposed the proposal. 

"The EPA is committed to public participation and 

transparency in the rulemaking process," Molly Block, an 

agency spokeswoman, wrote in an email. "This proposed 

regulation is intended to strengthen the transparency of EPA 

regulatory science. EPA will consider all submitted commentsboth those given orally at the hearing and those submitted in 

writing to the docket-as it moves forward in the rulemaking 

process." 

"The public comment period for the rule closes on August 16, 

2018," she added. 

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1/24/2019 EPA left key official ovt of 'secret sc1ence' rule I The Hill 

EPA left key official out of 

'secret science" rule BY MIRANDA GREEN -10/03118 05:40PM EDT 

545 

The Environmental Protection Agency (EPA) under former Administrator 

Scott Pruitt excluded one of its top scientists while devising its new "secret 

science" rule, the Washington Post reported Wednesday. 

Emails obtained through a Freedom of Information Act request by the Union of 

Concerned Scientists show that the EPA's director of the Office of the Science 

Advisor (OSA),Tom Sinks, was self-admittedly completely out of the loop as the 

EPA worked to devise the new rule that aimed to limit the types of science that 

could be used by the agency in devising new regulations. 

In an April 24 email. Sinks wrote, "Even though OSA [the Office of Science 

Advisor] and I have not participated in the development of this document and 

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106 

1/3 
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1/24/2019 EPA left k.ey offic1al out of 'secret SCience' rule I TheH1II 

I just this moment obtained it (have yet to read it), I am listed as the point of 

contact.'' 

Sinks added that he was also concerned about his lack of involvement because 

the rule clearly would affect the roles of his office, saying "the proposal likely 

touches upon three aspects of OSA work- public access to EPA funded 

research, human subjects research protection, and scientific integrity." 

An EPA spokesperson said in a statement to The Hill that the agency 'received 

input from a number of stakeholders and utilized the intra and interagency 

process to ensure a robust proposal was put forward." 

The rule is formally known as the "Strengthening Transparency in Regulatory 

Science," and was ~ntroduce~ in April. It aims to expose the methodology behind 

scientific findings and cut back on what Pruitt had deemed "secret science." 

It is one of many decisions made by Pruitt under the auspices of increasing 

transparency and getting rid of conflicts of interest. Last year he announced a 

new agency-wide policy that would bar scientists receiving money through an 

EPA grant from sitting on any science advisory board. 

The rule met almost immediate resistance from the science community, which 

argued that it would exclude a number of peer reviewed scientific studies related 

to public health because many would not be able to share the details of the 

patients studied. 

Instead, critics feared, the rule would place more reliance on industry produced 

studies that might reaffirm arguments that certain chemicals or emissions had 

little harmful side effects on human health or the environment 

In June, a group of 103 lawmakers signed a letter sent to Pruitt calling on him to 

reverse course on the rule-making. 

"Contrary to its name, the proposed rule would implement an opaque process 

allowing EPA to selectively suppress scientific evidence without accountability 

and in the process undermine bedrock environmental laws," the lawmakers 

wrote. 

The Senate's Environment and Public Works Committee on Wednesday held a 

hearing to discuss the merits and disadvantages posed by the new rule. 

Sen. Cory Booker (D-NJ.) likened the rule to the tobacco industry's old 

playbook, where companies paid for and pushed studies that appeared to find 

no heath risks associated with smoking. 

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1/24/2019 EPA left key official out of 'secret SCience' rule 1 The Hill 

''This rule is far more likely to hinder science-based regulation than help it," he 

said. adding that this was 'deja vu all over again." 

EPA confirmed to the Hill last week that it is reorganizing a number of offices 

within ORD including merging the Office of the Science Advisor with the Office 

of Science Policy, a move that critics fear would diminish the role of the 

scientists there and push it further down the totem pole. 

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394 


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1/24/2019 E.P.A to Disband a Key Scient1f1c Review Panel on A1r Pollulton The New York Times 

l!rbc Nc\u U ork ~hues 

E.P.A. to Disband a Key Scientific Review 

Panel on Air Pollution 

() By Lisa Friedman 

Oct. 11.2018 

Want climate news in your in box? Sign up here for Climate Fwd:, our email newsletter. 

WASHINGTON- An Environmental Protection Agency panel that advises the agency's 

leadership on the latest scientific information about soot in the atmosphere is not listed as 

continuing its work next year, an E.P.A. official said. 

The 20-person Particulate Matter Review Panel, made up of experts in microscopic airborne 

pollutants known to cause respiratory disease, is responsible for helping the agency decide what 

levels of pollutants are safe to breathe. Agency officials declined to say why the E.P.A. intends to 

stop convening the panel next year, particularly as the agency considers whether to revise air 

quality standards. 

Environmental activists criticized the move as a way for the Trump administration to avoid what 

they described as the panel's lengthy but critical assessment of how much exposure to particulate 

matter is acceptable in the atmosphere. 

"To me this is part of a pattern;' said Gretchen Goldman, research director at the Union of 

Concerned Scientists, a science-oriented environmental nonprofit. "We're seeing E.P.A. trying to 

cut science out of the process." 

She and others noted that the move follows other decisions at the E.P.A. they find worrisome, 

including eliminating a senior science advisory position and pressing for new rules that would 

restrict the number and type of studies the E.P.A. could consider when writing new regulations. 

Dr. Goldman, an environmental engineer, wrote on Twitter that the E.P.A. quietly telegraphed its 

latest move in a personnel announcement Wednesday. In that announcement, the E.P.A. said that 

a smaller, seven-person umbrella advisory board would from now on be conducting reviews of 

federal air standards and that the administration hoped to complete any revisions by late 2020. 

When asked about the future of the larger, 20-person scientific board, the E.P.A. spokesman 

confirmed that the board was not "listed" in agency documents as continuing its work past 2018. 

The body is slated to meet in December. 

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1/2ll/2019 E P.A. to Disband a Key Sclerllif!C Review Panel on A1r Pollut1on ·The New York T1mes 

The EPA is responsible for updating six air standards every five years under the Clean Air Act: 

carbon monoxide, particulate matter, nitrogen oxides, sulfur dioxide, lead, and ozone. 

The smaller, seven-member group, known as the Clean Air Scientific Advisory Committee, or 

C.A.S.A.C., is legally obligated to provide advice to the administrator about those air quality 

standards. But the work of its sub-panels, such as the one on particulate matter, is not required by 

law. 

Those panels are typically made up of researchers, doctors and others with specific expertise in 

the individual pollutants. Their reviews can take as long as 18 months, Dr. Goldman said. 

At the same time, the C.A.S.A.C. also is going through a shake-up. Andrew Wheeler, the acting 

administrator of the E.P.A., announced Wednesday he was installing new members to that panel. 

They include a biochemist from the Texas Commission on Environmental Quality; an air pollution 

control engineer with the Jefferson County, Ala., Department of Health; a toxicologist with the 

Utah Department of Environmental Quality; and a pulmonary doctor and professor emeritus 

from the University of Rochester Medical Center. 

Lianne Sheppard, a professor of biostatistics at the University of Washington who until 

Wednesday served as a member of the C.A.S.A.C. and also is on the particulate-matter review 

board, expressed concern that the resulting panel may be too small and inexperienced in some of 

the specific issues to handle the new volume of work. 

"They're being asked to implement a new process, which will significantly increase their 

workload;' Dr. Sheppard said. "All of this will result in poorer-quality scientific oversight." 

Thomas Pyle, president of the Institute for Energy Research, a think tank that supports fossil 

fuels, dismissed concerns about the changes. "Apparently it seems the enviros still don't 

understand that elections have consequences," he said. 

Last year Scott Pruitt, Mr. Wheeler's predecessor, barred advisory committee members from also 

receiving E.P.A. grants, a change he said was designed to limit conflicts of interest. It also had the 

effect of making it harder for academic researchers to participate on agency boards. With Mr. 

Wheeler's additions to the panel, the C.A.S.A.C. board now has only one researcher. 

Mr. Wheeler, in a statement, praised the group as being highly qualified with a diverse set of 

backgrounds needed to take on new responsibilities. 

"These experts will provide critical scientific advice to E.P.A. as it evaluates where to set national 

standards for key pollutants like ozone and particulate matter;' he said, adding the group would 

"work hard over the next two years to advise E.P.A. in a manner consistent with the Clean Air Act 

and the protection of public health." 

For more news on climate and the environment, follow @NYTCiimate on Twitter. 

https Jlwww.nyt1mes com/2018/10/11/c!lmate!epa-disbands-po!lution-soence-panel.ntml 2!3 
396 

Senator BARRASSO. Senator Merkley. 

Senator MERKLEY. Thank you, Mr. Wheeler. 

Yesterday when we talked, I laid out all the things that are affecting Oregon through climate chaos, affecting our forests, our 

farming, and our fishing. I asked you how concerned are you about 

these impacts on my constituents, the people of the United States, 

and you shifted to saying, ‘‘My job is to follow rules and work to 

obey lawsuits.’’ 

I came back to you again, and I said again, these are tremendous 

impacts that we are seeing, hugely damaging. How concerned are 

you? You shifted to saying you are looking forward to going to Africa to talk about clean drinking water for Africans. 

I am going to give you a third chance to answer this question. 

The calamities we are seeing are enormous in my State and across 

this country, more powerful hurricanes, more devastating forest 

fires, more acidic waters affecting our shellfish industry, loss of 

water for irrigation from snow packs, and pine beetles that are eating up our forests. 

On a scale of 1 to 10 with 10 being you stay awake nights worrying about it and 1 being it occasionally crosses your mind, how 

concerned are you about this devastating impact on our Nation and 

the world? 

Mr. WHEELER. I would say I stay awake at night worrying about 

a lot of things. 

Senator MERKLEY. One to 10, please answer my question and not 

answer some other questions. On a 1 to 10 scale, how concerned 

are you? 

Mr. WHEELER. Eight or nine. 

Senator MERKLEY. Really? Then let us turn to the issue of ACE, 

the Affordable Clean Energy Plan. You told me this gets just as 

much carbon reduction as does the Clean Power Plan. However, 

your own agency says it will result in 3.5 percent higher CO2 production by 2030 than the Clean Power Plan. 

Why did you come to my office and tell me it is the same when 

your agency experts say it will produce a lot more carbon dioxide? 

Mr. WHEELER. My agency experts have told me that we are going 

to get a 34 percent reduction in CO22 based on 2005 levels once the 

ACE regulation is fully implemented. 

Senator MERKLEY. Yes, but what you quoted to me was a comparison to the Clean Power Plan so when you shift statistics, that 

is not transparency, and that is not integrity. 

A study from Boston University, Harvard University, and Syracuse University found that because ACE has no meaningful reductions in CO2, because it allows plants to bypass pollution controls, 

that in 20 States you have a significant increase in sulfur dioxide 

and nitrogen dioxide and you have, in 6 States, an increase in CO2

as compared to no regulation at all. 

How is does a plan have integrity when you get more reductions 

from no regulations than from your plan? 

Mr. WHEELER. I believe that study just came out yesterday or 

today. I saw an article about it this morning. I have not had a 

chance to review it. I am not sure how they are calculating that, 

but that is not what the career people at the agency are telling me 

about the ACE. 

397 

Senator MERKLEY. Let us turn to forest fires. It is really shocking 

to hear you say it is forest management. All the conditions of 

longer, hotter summers have tremendously increased the fire potential in our forests. 

We saw it devastating Idaho, Montana, Washington, Oregon, and 

California under very different types of conditions. Is forest management an issue? Yes, which is why I advocate for thinning and 

fuels reduction, but that is not the reason these fires are so much 

longer. It is because the summer season is so much hotter and 

longer. We have different types of storms that are starting a lot 

more fires. 

I encourage you to actually become informed on this issue if you 

are going to comment publicly on it. Would you agree to actually 

read some of the literature on this? 

Mr. WHEELER. I will agree to continue to read the literature on 

this, yes. 

Senator MERKLEY. When I spoke to you yesterday, I asked if you 

were aware of how much carbon dioxide rates of production and 

levels of pollution have increased in your lifetime. Can you now 

share with the answer to that question? 

Mr. WHEELER. I believe you told me it was close to 100 percent 

increase in CO2 since I was born. 

Senator MERKLEY. No, that is not the case but 100 percent would 

be dramatic but it is not that dramatic. In your lifetime or my lifetime, I am a few years older than you, it is 100 points from about 

314 to 414, 100 points or is it more like a 30 percent increase. That 

is a very significant change in the chemistry of our air on this planet. 

The other thing I talked to you about was when you were born 

or I was born, it was about a rate of a third of a point per year, 

and now it is aiming toward two and a half points per year. The 

rate of pollution, despite all the conversation we have been having, 

is accelerating. This is of enormous concern, that the rate is actually accelerating despite the international conversations. 

My time is up. I hope you will become more familiar with these 

issues. Our entire ecosystem and our rural agricultural base— 

which you have been talking about—our fishing, our farming, and 

our forests, are at grave risk. 

Mr. WHEELER. Thank you, Senator. 

Senator MERKLEY. I do want to clarify I meant 100 points, not 

percent. That was a mistake. 

Senator BARRASSO. Thank you. 

Senator Ernst. 

Senator ERNST. Thank you, Mr. Chair. 

Thank you, Mr. Wheeler. I do want to commend you because you 

have been actively engaged with me and my staff. I truly do appreciate the time you have taken to address some of our concerns. 

I would like to just have you reaffirm for me today—and you 

know exactly the questions I am going to ask—the commitment 

that we will see E15 for our summer driving season. 

Mr. WHEELER. Yes, we are still on schedule for that. It depends 

on if we are not able to work on it during the Government shutdown. When I listed some of the States I visited and talked to 

398 

farmers—I was obviously in Iowa talking to your farmers. I am 

sorry I did not mention that. 

Senator ERNST. I do appreciate that, because I know the RFS is 

very important to our Iowa farmers as well as WOTUS. Thank you 

very much for working on that. We have had a very good response. 

I do understand we are in a Government shutdown. I hope we 

can resolve this very soon. Have you been able to take any steps 

that would mitigate any sort of delays we might see due to the 

shutdown for the implementation of E15 year round? 

Mr. WHEELER. I am afraid not on the E15. It is not a court ordered deadline for us, and it is not considered an emergency. At 

this point, we can only work on the court ordered deadlines emergencies and the constitutional authorities such as assisting in my 

preparation for the confirmation hearing. 

Senator ERNST. We know just this past Monday, the President 

also reiterated again that he wants to see E15 year round, so we 

will hope for the best as we work through the Government shutdown. 

When President Trump was elected, REM prices were more than 

a dollar at that time. During 2016 and 2017 we saw over four 

dozen small refinery exemption petitions granted during that time 

period. 

In the last 2 years REM prices have dramatically dropped, so 

they are down to 10 cents and lower now. With the REM prices 

being so much lower today than they were 2 years ago, do you 

agree this means there is less economic hardship associated with 

having to purchase those REMs? 

Mr. WHEELER. The REM prices are certainly one criteria that is 

looked at to determine the economic hardship. The analysis for that 

is conducted by the Department of Energy, and they send their recommendations over to EPA. 

Senator ERNST. In terms of addressing those sent over from 

DOE, I do understand they evaluate for that hardship. I would say 

with REMs being a tenth of what they were many years ago, the 

prices, the DOE evaluates for the hardship and makes that recommendation to you at the EPA. What is the EPA’s role in granting or denying a full or partial waiver? Can you describe that process to me? 

Mr. WHEELER. It is done by our technical team and the Air Office 

where they review the information from the Department of Energy, 

and they move forward with the recommendation to the Administrator for Air and onto myself for a recommendation on whether or 

not to grant a full, partial, or no relief. 

Senator ERNST. Can you assure me that you will be examining 

those exemptions and not giving blanket exemptions as it appears 

has been done in the past by your predecessor? 

Mr. WHEELER. Yes, we will be examining each one individually 

to make sure each one is warranted individually. 

Senator ERNST. Certainly we understand the potential for hardship out there, but we do not agree that every exemption given in 

the past has been due to a hardship. 

I have 1 minute left. I want to touch on WOTUS, and again, 

thank you very much for working on that issue. Our Iowa farmers 

399 

and ranchers are very, very appreciative of the work that has been 

done. 

Can you elaborate on how the replacement rule provides more 

clarity to our farmers and landowners than the original 2015 rule? 

Mr. WHEELER. Absolutely. As I mentioned earlier, we specifically 

define what is a water of the United States, and we also define 

what is not. We are very clear on what is and what is not. 

Again, my overarching goal for the WOTUS program is so that 

the property owner can decide for themselves whether or not they 

have water of the U.S. without having to hire outside consultants 

or attorneys to do that for them. 

Senator ERNST. I thank you for that. 

I will give my time back. Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Ernst. 

Senator Booker. 

Senator BOOKER. Thank you, Mr. Chairman. 

Thank you, Mr. Wheeler. 

I know a lot of my colleagues have brought this up, but you are 

aware of the Intergovernmental Plan on Climate Change? 

Mr. WHEELER. Yes, sir. 

Senator BOOKER. You disagree with the findings of it? 

Mr. WHEELER. No, I have not disagreed with the findings. 

Senator BOOKER. I guess I am asking are you aware. 

Mr. WHEELER. I have not disagreed with the findings. I have 

been briefed once by my career staff. They gave me a number of 

background information to read, and we scheduled additional briefings on it for early January. Those have been postponed, but no, 

I do not disagree with the findings. 

I am still examining the findings, trying to understand what was 

in it and what was covered. 

Senator BOOKER. I find that frustrating because of the urgency 

of the challenges we face before us. Again, the review talks about 

the emissions, the urgency to reduce greenhouse gas emissions and 

keeping warming below 1.5 degrees, and potentially catastrophic 

natural disasters, extreme heat, literally potentially seeing upwards of $1 trillion worth of damage to U.S. property. 

What about the National Climate Assessment issued by the 13 

Federal agencies, including the EPA that was issued last November? Are you familiar with that, sir? 

Mr. WHEELER. I am sorry; I thought that was what you were 

asking me about. 

Senator BOOKER. No, the ITCC report. 

Mr. WHEELER. Oh, the ITCC. I am talking to my staff about the 

U.S. Government assessment. 

Senator BOOKER. Again, sir, this is cross-agencies that have concluded that we are going to suffer impacts, heat related deaths, 

coastal flooding, and infrastructure damage. In light of the ITCC 

scientists, the Federal Government scientists that range from the 

United States military to your very own agency, the compelling and 

overwhelming science of this, there is this urgency to move as 

quickly as possible. 

Yet it seems in light of this the consistency of the different regulatory changes you are making fly in the face—and I know others 

of my colleagues have brought this up, but when it comes to the 

400 

clean car standards, according to the EPA’s own analysis of the 

proposal, you estimated over time your recommended approach 

would result in 7.4 billion tons of additional carbon pollution. Do 

you not agree with that? 

Mr. WHEELER. My career staff has told that it is a slight incremental increase from what the Obama administration’s proposal 

was. I think a lot of people do not understand that under the 

Obama numbers, they offered a number of exemptions so that the 

actual number itself, the end effect would be lower. 

Senator BOOKER. I am pulling from the EPA’s own analysis. You 

may call it slight, but 7.4 billion tons of additional carbon pollution, 

your Clean Power Plan repeal when it released its proposed Affordable Clean Energy Rule, repealing and replacing the Clean Power 

Plan, again, your own analysis from your own agency estimates 

this will lead to substantially higher levels of greenhouse gas 

warming. 

If you go to your air pollution from oil and gas infrastructure— 

again, your own scientists—EPA releases its proposed rules, and 

looking at methane, one of the very powerful greenhouse gases, 

again your own analysis shows your weakening of this rule will 

lead to substantially more greenhouse gas pollution. 

Your air pollution from landfills efforts, later in October, you released a proposed rule to delay for 2 years, if I am correct, the 

deadline for landfill mission guidelines that would limit these very 

dangerous methane emissions and other pollution. 

Again, this 2 year delay seems to again add to that larger problem. It seems a consistency of actions you are taking to weaken 

rules undermining the sense of urgency that cross-agencies are telling us we face growing challenges, not just now but really over the 

next 25 years. 

I am just wondering if your mission at the EPA which is to protect human health and the environment, which you swore an oath 

to faithfully discharge these duties, yet you seem to be consistently 

doing things that undermines the health and safety of this Nation, 

the economic well being of our Nation and frankly, putting in further peril not just our country but the planet. 

I am trying to understand what is motivating this. I do not want 

to be cynical in that question, but why are you pulling back on regulations that will ultimately help us to deal with what our climate 

scientists say we need to do in terms of reducing the greenhouse 

gas emissions? 

Mr. WHEELER. I believe we are moving forward on a proactive 

basis on the ACE regulation. I believe that is going to show a 34 

percent reduction in CO2. In the course of the regulatory analysis 

for each of our regulations, we do a number of different scenarios, 

a number of different data runs. I would be happy to supply information to you in writing, but my career staff tells me that our proposal is going to get us a 34 percent reduction in CO2 and the 

Obama proposal would have gotten between 33 and 35 percent reduction. 

Senator BOOKER. I know my time has expired. I would like to introduce for the record the data from his own scientists that shows 

what he is saying just does not hold water and contradicts the 

claims he is making. 

401 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

402 


35314.369

Regulatory Impact Analysis for the Proposed 

Emission Guidelines for Greenhouse Gas 

Emissions from Existing Electric Utility 

Generating Units; Revisions to Emission 

Guideline Implementing Regulations; Revisions 

to New Source Review Progrmn 
403 


35314.370

Table ES-5 Projected C02 Emission Impacts, Relative to Base Case (CPP) Scenario 

COz Emissions CO, Emissions Change COz Emissions Change 

(MM Short Tons) (MM Short Tons) Perren! Change 

2025 2030 2035 2025 2030 2035 2025 2030 2035 

No CPP I ,829 I ,811 1.794 50 74 66 3(% 4% 4°/o 

Base Case (CPP1 1,780 I ,737 I ,728 

2% HRI at $50ikWI 1.816 I ,798 1.783 I 37 61 55 2% oo~ J /0 3% 

4.5% HRI at S50ikWI I ,812 1,797 I ,787 32 60 59 2Yl0 3%) 3?/0 

4.5% HRI at Sl 00/k\VI 1.799 1.785 1.772 20 -17 44 !% 3% 3~/Q 

Table ES-6 shows the projected C02 emissions impacts of each scenario. relative to the No CPP 

alternative baseline. 

Table ES-6 Projected C02 Emission Impacts, Relative to No CPP Alternative Baseline 

COz Emissions 

l

i (\11\l Short Tons) 

2025 2030 2035 

No CPI'i 

2% HRI at $50/k\\~'1 4.5% HRI at $5Q!k\\i 

4.5% HRI at$100/kW 

I ,829 I ,811 1,794 

1,816 

1.812 

1,799 

I ,798 

1,797 

1.785 

1,783 : 

1.787 I 1.772 

COz Emissions Change 

(\1\1 Short Tons) 

2025 2030 2035 

-] J "13 ·II 

·18 ·14 -7 

-30 -27 -22 

C02- Emissions Change 

Percent Change 

2025 2030 2035 

-] ~~{J ~I% -1% 

-1'}0 -lo/o 0°·0 

~2~;/o -1% •l ~c'O 

Table ES-7 shows projected emission increases relative to the base case for carbon dioxide 

(C02), sulfur dioxide (S02) and nitrogen oxides (NOx) from the electricity sector. 

ES-8 
404 


35314.371

Regulatory Impact Analysis for the Proposed 

Reconsideration of the Oil and Natural Gas 

Sector Emission Standards for New, 

Reconstructed, and Modified Sources 
405 


35314.372

2016 using a 7 percent discount rate, and are in millions of2016S. The total emissions are the 

sum of the increase in emissions from 2019 through 2025. 

Table 2-18 Total Cost Savings and Increase in Emissions of the Co-Proposed Options 

Under Alternative Monitoring Frequencies at Compressor Stations 

Semiannual Annual 

Quarterly (Co-Proposed (Alternative CoTotal Cost Savings $177 5380 S~2~ 

Cost Savings SJ 12 SJ29 S~R5 

Forgone i'alut! (?fProduct l?ecO\'etJ' 535 S~8 S61 

Equivalent Annualized Cost 

Total Cost Savings $48 S66 S73 

Cost Savings S5~ sc~ 58~ 

Forgone i'alw: q(Product Recore1y $()I 58.~ Sll 

Total Emissions Increase (2019 through 2025) 

Methane (short tons) 270.000 380.000 ~80.000 

VOC (sh011 tons) 76.000 I 00.000 120.000 

HAP (sh011 tons) 2.900 .1.800 4.700 

\!ethane (million metric tons COo Eq.) 6.2 8.5 II 

1 Total cost savings include the planning cost savings for a!l fugitive emissions, the annual operating and 

maintenance cost savings for the fugitive emissions requirements every year, the cost savings uf certifications in 

each year, the cost savings IT-om streamlined record keeping and reporting. and the forgone revenue from the 

decrease in product recovery, discounted to 2016. 

Totals may not sum due to independent rounding. 

Table 2-18 presents a comparison of the co-proposed Option 3, which requires 

semiannual monitoring at compressor stutions. with the alternative co-proposed option, which 

requires annual monitoring at compressor stations. and a third alternative that requires quatierly 

monitoring at compressor stations, that vary only with respect to the frequency of the fi.1gitive 

emissions monitoring requirements for compressor stations. All other requirements are those of 

the co-proposed Option 3, as shown in Table 2-1. The cost savings, fi.lrgone value of product 

recovery, and total emissions decrease compared to the co-proposed Option 3 under quarterly 

monitoring and increase under the alternative co-proposed option (annual monitoring). 

Assuming a 7 percent discount rate. and including the forgone value of product recovery. 

the present value of the total cost savings !!·om 2019 through 2025 are about $43 million greater 

under the co-proposed option assuming annual monitoring than under the co-proposed option 

assuming semiannual monitoring. This is associated with an increase in the equivalent 

annualized value of total cost savings of about $7.5 million per year in comparison to the coproposed option under semiannual monitoring. 

2-28 
406 


35314.373

* 

'f:he Safer Affordable Fuel-Efficient (SAFE) 

Vehicles Rule for Model Year 2021-2026 

Passenger Cars and Light Trucks 

Draft Environmental 

Impact Statement 

July 2018 

:~ocket No. NHTSA-2017-0069 

'U5, Department of Transportatbn 

:i:!oational Highway Traffic 5afety 

.!4ldministrotion 
407 


35314.374

Summary ________________ --------------------------------------------------------

Air Quality 

Market-driven changes in the energy sector are expected to affect U.S. emissions and could result in 

future increases or decreases in emissions. Trends in the prices of fossil fuels and the costs of renewable 

energy sources will affect the electricity generation mix and, consequently, the upstream emissions from 

energy production and distribution as well as electric vehicle use. Temporal patterns in charging of 

electric vehicles by vehicle owners would affect any increase in power plant emissions. Potential 

changes in federal regulation of emissions from power plants also could result in future increases or 

decreases in aggregate emissions from these sources. 

The forecasts of upstream and downstream emissions that underlie the air quality impact analysis 

assume the continuation of existing emissions standards for vehicles, oil and gas development 

operations, and industrial processes such as fuel refining. These standards have become tighter over 

time as state and federal agencies have sought to reduce emissions to help bring nonattainment areas 

into attainment. To the extent that the trend toward tighter emissions standards could change in the 

future, total nationwide emissions from vehicles and industrial processes could change accordingly. 

Cumulative changes in health impacts due to air pollution are expected to be consistent with trends in 

emissions. Higher emissions would be expected to lead to an overall increase in adverse health impacts 

while lower emissions would be expected to lead to a decrease in adverse health impacts, compared to 

conditions in the absence of cumulative impacts. 

Greenhouse Gas Emissions and Climate Change 

The global emissions scenario used in the cumulative impacts analysis differs from the global emissions 

scenario used for climate change modeling of direct and indirect impacts. In the cumulative impacts 

analysis, the Reference Case global emissions scenario used in the climate modeling analysis reflects 

reasonably foreseeable actions in global climate change policy. 

Greenhouse Gas Emissions 

The following cumulative impacts related to GHG emissions are anticipated: 

Projections of total emissions increases from 2021 to 2100 under the Proposed Action and 

alternatives and other reasonably foreseeable future actions compared with the No Action 

Alternative range from 1,800 MMTCO, (under Alternative 7) to 7,400 MMTC02 (under 

Alternative 1). The Proposed Action and alternatives would increase total vehicle emissions by 

between 2 percent (under Alternative 7) and 10 percent (under Alternative 1) by 2100. Figure 5-6 

shows projected annual C02 emissions from passenger cars and light trucks by alternative compared 

with the No Action Alternative. 

Compared with projected total global CO, emissions of 4,044,005 MMTCO, from all sources from 

2021 to 2100, the incremental impact of this rule making is expected to increase global co, 

emissions between 0.04 (Alternative 7) and 0.18 (Alternative 1) percent by 2100. 

5-18 
408 

Senator BARRASSO. I would like to interject that the EPA’s decision to withdraw this so called Clean Power Plan I believe was the 

right one. Twenty-seven States challenged the Clean Power Plan in 

court. The Supreme Court stayed the rule; it was not just bad policy, it was against the law. 

Senator Braun. 

Senator BRAUN. Thank you. 

It is good to be on a Committee like this. It means a lot to me. 

I have been a steward of the land for over 30 years. I have always 

felt that conservatives need to do a better job of talking about conservation and talking about the things that we believe in that really make a difference. 

I have been a tree farmer for nearly 30 years, involved in agriculture. I used it in the campaign. I started the Ecology Club back 

in high school. What we are talking about here is important. 

To me, I always view something in the process that you look at 

how you are going to accomplish the goal. I think clean air and 

clean water is important to everyone. I also look at the fact that 

over the weekend—and I know it has been discussed here before— 

I had three different farmers approach me about dealing with the 

technicalities of Waters of the U.S. 

I am going to ask you a couple specific questions, and then I 

want to get your viewpoint on how we navigate this dynamic of 

wanting to adhere to what I think all of us believe in, clean air, 

clean water, good health, and then the practicality of doing what 

you do through the EPA to make sure we take care of the big picture and not unduly complicate lives for people on the firing line. 

Waters of the U.S., the ruling, as given in 2015, has it changed 

at all in the meantime, or is it in the process of being looked at? 

Mr. WHEELER. The 2015 Obama proposal was stayed by some 

courts, has been implemented by others. Right now we have a 

patchwork quilt of what is the current regulatory process for 

Waters of the United States which is why we came out with our 

proposal in December to rewrite and redo the Waters of the United 

States going forward. 

I believe we are going to provide the certainty the American public needs in order to protect the waters of the United States. 

Senator BRAUN. In my State of Indiana, is the regulation component being administered more through State agencies trying to figure out what the ruling is or the interpretation of it, or is it being 

mandated more from the EPA? 

In other words, I get the feeling in our case we might be not fully 

understanding what that regulation is and maybe being overbearing in the enforcement of it. 

Mr. WHEELER. It is a rulemaking in conjunction with the Army 

Corps of Engineers. They are the ones that issue the permits on 

the ground and would be working with your constituents in Indiana. It varies from State to State right now based upon the district 

courts as far as which standard is in place, the prior to 2015 or the 

current 2015. 

Senator BRAUN. What is your goal to have that fully clarified so 

farmers and State agencies know what is what? 

Mr. WHEELER. We issued our proposal in December. It is out for 

public comment. I do not believe it has been published in the FedVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00414 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
409 

eral Register because of the shutdown. Our goal is to have that 

rulemaking completed before the end of this year. 

Senator BRAUN. Do you consider yourself a conservationist? How 

will you measure your own success in this job once you get into it? 

Mr. WHEELER. I do consider myself a conservationist. I am an 

Eagle Scout, I am an avid hiker and camper. I still hike and still 

camp. When I met with you last week, I shared with you so far my 

favorite job in my life has been as a Boy Scout summer camp counselor for three summers when I was in college. 

I am a big believer in the outdoors, and I think success will be 

that we have moved the ball forward on reducing pollution. I will 

go back to what I said in the opening statement, helping communities that are ravaged by Superfund sites. It greatly impacts low 

income Americans, oftentimes and in most cases, minority communities, and try to help those communities. 

Some of the Superfund sites we have cleaned up and we are getting cleaned up are contaminated by lead. These are areas and 

communities where actually people and families are living today. 

To get those areas cleaned up so those children are not exposed to 

lead is very important. 

There is one site in Colorado that I did not mention in my opening statement. It was on track to be cleaned up over I think 20 

years. We are speeding that up. We are going to get that cleaned 

up in the next few years so that we will not have two generations 

of children growing up in low income housing subjected to lead in 

their ground. 

Senator BRAUN. Thank you. 

Mr. WHEELER. Thank you. 

Senator BARRASSO. Thank you very much. 

Senator Duckworth. 

Senator DUCKWORTH. Thank you, Mr. Chairman. 

Deputy Administrator Wheeler, as you know, I am very proud 

that my State is home to EPA’s Region V office, which features 

civil servants who are leaders in the fields of water quality, Superfund cleanup, and Great Lakes restoration. 

I am, however, concerned that EPA Regional Administrator 

Cathy Stepp and other political appointees are working to undermine that important work. An ATSDR report published last year 

indicated an elevated cancer risk in the community of Willowbrook, 

Illinois, as a result of being next to a facility that uses ethylene 

oxide, a known carcinogen. 

I do want to thank you for how accessible you have been to me 

and Senator Durbin on this issue, for numerous personal phone 

calls you got on, and meeting with us in person. Thank you for how 

accessible you have been. It has been a nice change from your predecessor. 

However, recently my office received alarming information alleging that senior political appointees instructed EPA personnel not to 

inspect any facilities in Region V that emits ethylene oxide. Yesterday evening when we checked EPA’s public enforcement tool, the 

Eco tool, we found there has been no ethylene oxide inspection 

across the country in at least the last 6 months. This disclosure is 

incredibly disappointing to me. 

410 

The EPA Office of Inspector General should immediately begin 

an independent investigation into this allegation that political appointees within the EPA are issuing orders to not conduct ethylene 

oxide inspections. 

Will you commit now to joining me in requesting that the EPA 

OIG initiate an investigation into this public health matter? 

Mr. WHEELER. First, Senator, I would like to talk to my staff and 

find out what is going on. This is news to me. I would like to know 

whether or not it is accurate before I go further with that. 

Senator DUCKWORTH. We ran the check just yesterday evening 

after you and I had spoken. 

Will you at least commit to issuing a document retention order 

to all personnel in Region V and promise to me that EPA will monitor all facilities in my State that emit this carcinogen? 

Mr. WHEELER. I know we are monitoring a number of facilities 

that release ethylene oxide not just in your region but across the 

country. We are looking at all of them. 

The Willowbrook facility that mentioned, we have had a couple 

of public meetings there where we have discussed the monitoring 

data with the residents of the community. We are looking at the 

emissions at other facilities around the country. I know that is taking place. 

Senator DUCKWORTH. What about issuing a document retention 

order to all personnel as I will be requesting an IG inspection? 

Mr. WHEELER. If there is an issue there, certainly we want those 

documents retained, not just for this but for anything. We maintain 

all of our documents. 

Senator DUCKWORTH. Thank you. 

Right before the holidays and the Government shutdown, you announced release of the Administration’s long delayed Lead Action 

Plan. I was disappointed to see that this plan walks back earlier 

goals on eliminating lead exposure. In fact, the new plan has the 

objective to reduce children’s exposure as opposed to eliminate 

their exposure in homes and child occupied facilities with lead 

based hazards. 

Will you commit EPA to the goal of eliminating—not just reducing but eliminating—lead exposure in children? 

Mr. WHEELER. It is certainly our goal to eliminate lead exposure 

in children, and we do want to do that. We are moving forward 

with a number of regulatory programs to accomplish that, the Lead 

Dust Rule that I mentioned earlier, or Lead and Copper Rule. This 

would be the first time in over 20 years. We take very seriously 

lead contamination at Superfund sites around the country. 

Senator DUCKWORTH. Thank you. 

Will you immediately reinstate Dr. Ruth Etzel who led the Office 

of Children’s Health Protection and was abruptly put on leave? 

Mr. WHEELER. I am sorry, what were you asking about Dr. 

Etzel? 

Senator DUCKWORTH. Will you immediately reinstate her? 

Mr. WHEELER. She is on investigative leave because of allegations by her employees. I cannot go into more detail in a public setting because of personnel issues, but I would be happy through the 

oversight function of the Committee to brief you. I think we have 

to go through the Chairman to do that. I want to make sure my 

411 

general counsel is involved to go into more detail about the circumstances around that. 

Senator DUCKWORTH. Thank you. 

As some of my colleagues across the aisle have mentioned, the 

state of renewable fuels industry in this country is at a turning 

point. Over the last 6 months, we have seen more ethanol plants 

sold, idled, or closed than ever before. 

Meanwhile, EPA is granting the world’s largest refining companies the so called hardship waivers. My colleague, Senator Ernst, 

brought up the issue of these hardship waivers. 

These companies are earning record profits—billions with a B. 

The CEOs of these companies have even pointed to the fact they 

were able to obtain these hardship waivers on their earnings calls 

as contributing to their profitability. 

You promised to finalize a waiver for E15 blends by May 31. Will 

you also promise that you will end this abuse of the hardship waivers by companies like Exxon or Chevron? 

Mr. WHEELER. Senator, the hardship waiver is based on the refinery itself not the refiner. It is based on the actual refinery. It 

does not matter who the parent company is. There could be a hardship at a refinery. We want to make sure that just because you are 

a large company, if a refinery is not economical, we do not want 

those shut down because of this program. 

Oftentimes these small refineries are located in the Rocky Mountains and other areas where they are the only supplier of gasoline 

in their region. We have to base it according to both the statute 

and the regulations on the size of the refinery, not the refiner. 

Senator BARRASSO. The Senator’s time has expired. 

Senator DUCKWORTH. Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you. 

Senator Sullivan. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

Mr. Wheeler, thank you for your service to our country and your 

willingness to take on this job. I also want to thank your family. 

As you know, these jobs oftentimes entail the whole team, so thank 

you. I know some of them are here, and we really appreciate you 

guys being here. I am sure you are proud of your spouse or your 

dad who is in the chair. Thank you. 

I also appreciate the time you spent with me. I think one of the 

themes here is how responsive you are to Democrats and Republicans. That is a real important part of the job. 

Our discussion yesterday had a number of Alaska related issues, 

the PM2.5 non-attainment problem in Fairbanks and North Pole, 

Alaska, working on clean water issues in my State, particularly in 

rural communities, cleaning up ANCSA, contaminated lands which 

the Ranking Member and I had a bill last year that passed that 

helped do that. Transmining issues are a big challenge in Alaska. 

I am not going to go into each of those. 

One commitment I do want to get from you is to get up to Alaska 

soon after your confirmation. Can I get a commitment from you on 

that? 

Mr. WHEELER. Yes, sir, I would be happy to. 

412 

Senator SULLIVAN. Maybe even if I invite you in the winter, it 

is 45 below in Fairbanks right now, so you have to be a little tough 

to come up. 

Mr. WHEELER. August sounds great. 

Senator SULLIVAN. Maybe I am not going to be so supportive. No, 

I am just kidding. 

This is a confirmation hearing that is supposed to look at your 

past qualifications and experience for the job. What was your first 

job out of law school? 

Mr. WHEELER. My first job was a career employee at EPA working in the Toxics Program. 

Senator SULLIVAN. You were a career employee at the EPA. You 

did that for how long? 

Mr. WHEELER. For 4 years. 

Senator SULLIVAN. You received some awards I believe during 

that time? 

Mr. WHEELER. I did. I received three bronze medals. 

Senator SULLIVAN. What does that mean? 

Mr. WHEELER. They were not gold or silver but they were still 

very important. 

Senator SULLIVAN. You got medals though, right, from the EPA 

as a career employee? 

Mr. WHEELER. Yes, a career employee. 

Senator SULLIVAN. I think that is important. You would probably 

be one of the first career employees to run the agency, wouldn’t 

you? 

Mr. WHEELER. I believe Steve Johnson, an Administrator under 

President Bush, was probably the first. 

Senator SULLIVAN. Then you came to this Committee, which has 

oversight of the EPA and all the issues covered; how long were you 

at this Committee? 

Mr. WHEELER. Fourteen years. 

Senator SULLIVAN. Fourteen years as counsel and staff director? 

Mr. WHEELER. I was the staff director and chief counsel for the 

last 6 years that I worked here. 

Senator SULLIVAN. Essentially, you were the main guy running 

the Committee, with the exception of the Senators? 

Mr. WHEELER. I had a lot of help. There was a Chairman with 

a gavel, yes. 

Senator SULLIVAN. I think it was Senator Inhofe, so I do not 

want to get in trouble here, but you know what I mean. 

We are talking almost 20 years in the public sector either at the 

EPA or at the Committee overseeing the EPA, correct? 

Mr. WHEELER. Correct. 

Senator SULLIVAN. I think that is really strong qualifications for 

this job. Hopefully my colleagues on both sides of the aisle will at 

least acknowledge that, because it is obvious. You come highly, 

highly qualified in the public sector. We appreciate that, your service to America. 

Mr. WHEELER. Thank you, Senator. 

Senator SULLIVAN. I hope the media that is watching this hearing will write about your almost 20 years of public sector because 

what they love to write about is ‘‘a lobbyist for a coal company.’’ 

So you were a lobbyist. 

413 

Mr. WHEELER. I was. 

Senator SULLIVAN. Can you talk about what you did in that job, 

and I know Murray Energy comes up. What was your big issue 

with representing them? You represented a lot more. 

Mr. WHEELER. Yes, I represented over 20 different clients during 

my time as a consultant. I ranged from companies to trade associations to NGOs. I represented an air quality management district in 

California. For the last 4 years that I represented Murray Energy, 

the No. 1 issue I was asked to work on each of those 4 years was 

to try to shore up the United Mine Workers pension and health 

care funds. 

They were underfunded. We were successful on the health care 

side, but we were not successful in getting the pension bill through 

Congress before I left, but I am very proud of the service that I did 

there. I am very proud of the work I did. 

Senator SULLIVAN. I hope our friends in the media might want 

to cover that issue as well. I am sure Senators Capito and Manchin 

also appreciate that hard work. We all do. I have coal miners in 

my State, I have miners in my State, and they are great Americans. 

Let me ask one final question. Oceans and ocean pollution and 

plastics is a huge issue, an issue we have made a lot of bipartisan 

progress on, pointing to Senator Whitehouse’s empty seat. He and 

I had a bill last year that the President signed. The Trump administration is doing great work on this, arguably much better than 

the previous Administration. 

We are going to soon put forward our Save Our Seas Act 2.0. 

Save Our Seas Act 1.0 was signed by the President just a couple 

months ago with Senator Whitehouse and I both in the Oval Office. 

Do you have any ideas that we can move forward with on addressing the big challenges we have with ocean pollution, plastics, 

and the role that you have already played in that regard with regard to the EPA? 

Senator BARRASSO. Perhaps the nominee could very briefly answer and in writing as well. 

Senator SULLIVAN. Or maybe just commit to work with us just 

to keep it short. 

Mr. WHEELER. I would be happy to commit to work with you. It 

is a very big problem internationally and something we are on top 

of. 

Senator SULLIVAN. Great. 

Thank you very much. 

Senator BARRASSO. I would like to interject that the nominee has 

received praise from the United Mine Workers of America. Cecil 

Roberts, the United Mine Workers International President has said 

the following of Mr. Wheeler, and I am going to submit the statement to the record. He said, ‘‘He will be a reasonable voice within 

the agency and will recognize the impact on both the workers and 

the mining communities directly affected as EPA develops future 

emissions regulations.’’ 

That will be submitted to the record without objection. 

[The referenced information follows:] 

414 


35314.375

CECIL E. ROBERTS 

INT£RNATlONAL, PR(.S!OENT 

TEL£ PI-ION£ 

c?Oa! 211' t ·a420 

FAX (103) Ut•l-4!11 

UNiTii:O -.ONE WORKERS' HEADQU-'RTi:AS 

IQ:J~ .. QU~-UITE aoo 

The Honorable Tom Barrasso 

i\2l7Z.·1't70 

~~l 

November ll, 20 17 

Chair, Senate Committee on Environment and Public Works 

The Honorable Tom Carper 

Ranking Member, Senate Committee on Environment and Public Works 

Dear Chairman Barrasso, Ranking Member Carper and Members of the Committee; 

As you consider the nomination of Andrew R. Wheeler for Deputy Administrator of the 

Environmental Protection Agency,lask that you take into consideration his hard work on behalf of 

America's active and retired coal mine workers. For the past five years, Mr. Wheeler ha.! been an ally 

as the United Mine Workers of America has worked to preserve the health care and pensions that 

retired miners worked for over their lifetimes. 

Andrew worked alongside our UMWA team to successfully pass legislation that has ensured 

that our miners will have the health care that was promised to them, and that they earned. As you arc 

aware, this effort lasted years, and we faced major setbacks along the way. However, Andrew was a 

strong partner to us and we are very appreciative ofthat. 

Andrew will bring a wealth of experience, from both the public and private ~tors, to EPA. 

It is our beliefthat he will be a re!l.!onable voice within the agency, and will recognize the impact on 

both the workers and mining communities that are directly affected as EPA develnps funtre 

emissions regulations. 

We look forward to working productively with Andrew in this role at EPA. l am available to 

discuss this further at your convenience. 

Sincerely, 
415 

Senator BARRASSO. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman. 

Mr. Wheeler, earlier you said that you thought we were having 

a climate issue and not a climate crisis. Is that correct? 

Mr. WHEELER. I did say that, yes. 

Senator MARKEY. Let me just begin by saying I think you are 100 

percent wrong. We are having a climate crisis. How do I know? I 

know because 13 Federal agencies, including your own, in November issued a report. Here is what all 13 Federal agencies said: ‘‘Our 

efforts do not yet approach the scale necessary to avoid substantial 

damages to the economy, environment and human health.’’ 

How did President Trump respond when asked about the conclusion of the National Climate Assessment that your agency helped 

to produce that climate change could devastate the American economy? He said, ‘‘I don’t believe it.’’ Do you agree with Donald 

Trump? 

Mr. WHEELER. I believe President Trump was referring to the 

media reports of the assessment itself. I questioned the media reports as well because they focused on the worst case scenario and 

also focused on one study that was actually not in the report. That 

is the study that said there would be a 10 percent hit to the GDP. 

I believe that was what he was referring to, and that was what I 

raised questions about after the assessment was released. 

Senator MARKEY. So you do not agree with the broader conclusion that the actions we are taking do not approach the scale necessary to avoid substantial damage to our country? You do not 

agree with that? 

Mr. WHEELER. No, I did not say that, Senator. 

Senator MARKEY. I am asking you that question. Do you agree 

with that conclusion? 

Mr. WHEELER. I have been briefed by my career staff after the 

assessment came out, and I have asked a number of questions. We 

have a number of follow up briefings scheduled for them to go over 

the findings in the assessment. 

Senator MARKEY. The report came out in November. You are the 

head of the EPA. We are heading to the end of January. 

Mr. WHEELER. I did not review the report before it came out. 

There was no political interference in the assessment. We have 

been shut down for the last few weeks. I have been briefed by my 

staff once on the assessment, and we have several briefings scheduled before I can make further public comment. 

Senator MARKEY. That is not acceptable. You are looking to be 

confirmed as the head of the Environmental Protection Agency. We 

are having a hearing on your worthiness for this job, and you very 

conveniently have not had enough time yet to review whether or 

not there is an extra level of urgency to this problem. 

You are saying it is a worst case scenario they are talking about, 

so therefore you do not have to deal with it, but the worst case scenario is your proposal to roll back the fuel economy standards in 

our country. 

The worst case scenario is your proposal to roll back the rule to 

reduce emissions dramatically from the coal burning plants in our 

country. That is where it is relevant that you are a former coal inVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00421 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
416 

dustry lobbyist who is sitting here. Your proposal to roll back those 

regulations is the worst case scenario, what you are proposing. 

My question to you is in terms of fuel economy standards, we import 2.5 million barrels of oil a day from OPEC, 2.5 million barrels 

a day. We have young men and women all over the Middle East 

protecting that oil coming in. 

Do you think that is a worst case scenario, or do you think that 

is something we should accept by not increasing the fuel economy 

standards because interestingly under the Obama standards, we 

back out 2.5 million barrels of oil a day every day that we would 

import from OPEC. Do you think that is a worst case scenario, or 

do you think that is something we should maintain and increase 

as our goal, Mr. Wheeler? 

Mr. WHEELER. Senator, first of all, we did not roll back the Clean 

Power Plan because the Clean Power Plan never took effect. It was 

stayed by the Supreme Court. Our proposal follows the Clean Air 

Act, follows the court decisions. 

Senator MARKEY. The effect of your decision is to not implement 

the Clean Power Plan. It dramatically reduces greenhouse gases. 

Mr. WHEELER. It was stayed by the Supreme Court because it 

went outside the bounds of the Clean Air Act. What we put forward 

is a proposal that follows the Clean Air Act and follows the law. 

Senator MARKEY. Here is the problem I have, sir, with you. In 

this hearing, you are putting up a smoke screen to ensure that 

there is an advancement of Donald Trump’s dirty policies. The impact on ordinary families, their health, the health of our country, 

the security of our country is absolutely urgent. 

The American people want higher fuel economy standards, they 

want higher standards for reducing pollutants going into the lungs 

of the people in our country, and what you are here doing is defending Donald Trump’s policy. I don’t believe it, he said. The 

American people believe it because they know it is American scientists that came to this conclusion, including your own. 

You can say you have not had time to read it but that, in and 

of itself, from my perspective, is a disqualification for having the 

job which you are sitting here seeking to be nominated for. 

Mr. WHEELER. I did not say I did not read it. I said I that I have 

not finished being briefed on it by my staff. 

Senator BARRASSO. The Senator’s time has expired. 

I would like to interject. The EPA’s decision to review the vehicle 

standards was the right one. In 2017 the Alliance of Automobile 

Manufacturers sent a letter to the EPA stating, ‘‘If left unchanged, 

these standards could cause up to 1.1 million Americans to lose 

their jobs due to lost vehicle sales, and low income households 

would be hit the hardest.’’ 

I ask unanimous consent to enter this statement into the record. 

Without objection, it will be done. 

[The referenced information follows:] 

417 


35314.376

AUTO ALLIANCE 

DRtYtNG INNOVATlONe 

G. Scot! Pruitt 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Mail Code !lOlA 

Washington, D.C. 20460 

803 7th 5tteetN"W., Suit!! 300 j Was:hh1gton, DC 20001 

202.326.SSOD 1 www.auloalHance.org 

Februnry 21,2017 

RE: Final Determination on the Appropriateness of the Model Year2022-2025 

Light-Duty Vehicle Greenbouse Gas Emissions Standards under the Midterm 

Evaluation 

Dear Administrator Pruitt, 

l write on behalf of the Allia.'lce of Automobile Manufacturers (Alliance). an 

association representing twelve leading manufacturers of wrs and light trucks,' to 

reqctestlhat :he U.S. Environmental Protection Agency (EPA) witl1draw the Final 

Determination on the Appropriateness of the Model Ye<rr 2022-2025 Light-Duty 

Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation (FiOBl 

Determination) which was announced on January 13,2017 but never published in the 

Federal Register. 

For the auto industry, the Final Determination may be the single most important 

decision that EPA has made in recent history. The Alliance requests that EPA withdraw 

the Final Determination and resume the Midterm Evabation, in accordance with its 

original timetable, to remedy the severe procedural and substantive defects that have 

in:'ccted the process to date. We explain, in more detail below, EPA's authority to 

withdraw the Final Determination and why that withdrawal is appropriate and essentiaL 

l. EPA Should Exercise lts AuthoritxJo Withdraw the Final Detem1ioation 

As you know, on January 20, the White House issued a memorandum to the 

heads of all executive departments aod agencies instituting a freeze on regulatmy 

activity, pending review by the Office of Management and Budget (OMB) Director.2 

The Alliance urges EPA to withdraw the Final Detennination on its own initiative in 

accordance with the regulatory freeze. Irre>;pective of whether EPA considers the Final 

Determination a rule or an adjudication, the Final Determination should be reviewed 

l Alliance members are BMW Group, FCA US LLC, Ford Motor Company, General Motors Company, 

Jaguar Land Royer1 Mazda, Mercedes· Benz: USA, Mitsubishi Motors, Po.rsche Cars North Americ&. 

Toyota, Volkswagen Group of America~ and Volvo Car USA. 

2 See Memorandum for the Heads of Executive Depart men Is and Agencies, Jan. 20,2017, 

ht1ps://www. whitehou;.e .gov/thc--press·office/20 17/0 I /20/memorandu rn .. heads~executlve-dcpartments~ 

and-agencies. 
418 


35314.377

and withdrawn. As the Alliance has noted, a wealth of precedents conlirm :bat the 

Pinal Determination is a rule, and all rules not yet published in the Federal Regisrer are 

subject to the regulatory freeze.J Even if EPA continues to construe the Final 

Determination as an adjudication, however, it is still snbject to the regulatory freeze as 

an "agency statement of general applicability a11d future effect 'thJJt sets forth a policy 

on a statutory, regulatory, or technical issue or an interpretation of a statutory or 

regulatory issue."' The Finul Determinution reaffirms and reinstates industry-wide 

greenhouse gas emissions standards for ali light vehicles sold in America for MY 2022-

2025, and thereby establishes a policy on a regulatory issue of central importance to the 

auto industry. 

Furthermore, EPA has ample authority to withdraw the Final Determination on 

iL' own initi~tive, iJTespective of whether EPA considers it a rule or an adjudiClltion. Jf 

the Final Determination is a rule, it is clearly a non final one, because it has not been 

published in the Federal Register. See 5 U.S.C. § 553(d); Kennecott Utah Copper 

Corp. v. US. Dep 'toflnterior, 88 F.3d 1191, 1209 (D.C. Cir. 1996). And, as a nonfinal 

rule, EPA can readily withdraw the Final Determination without engaging in noticeand-comment rulemaking. Kennecoll, 88 FJd at 1206. 

Even if EPA continue.s to endorse the view that the Final Determination is an 

adjudication, however, EPA has broad inherent power to reconsider its decision '·wtthin 

the period available for taking an appeal." Am. Methyl Corp. v. EPA, 749 F.2d 826,835 

(D.C. Cir. 1984). Agencies have long exercised this power to fix determinations Uke 

this one that suffer from "serious procedural and substantive deficiencies." Behille 

Min. Co. v. United States, 999 F.2d 9&9, 998 (6th Cir. !993). Regardless of how EPA 

classifies the Finul Determination, EPA should promptly withdraw it in light of the 

many procedllfal and substantive flaws described below. 

2. EPA Has Abrogated fts Cpmmitrnent toe ll,pbust Midterm Evaluation 

As the Supreme Court has recognized, EPA's regulatory efforts to address 

greenhouse gases have already produced "the single largest expansion in the scope of 

the (Clean Air Act] in its history,"' b 2009, EPA issued an Endangem1entFinding that 

motor vehicle greenhome gas emissions contribute to climate change and thereby 

threaten public health and welfare. Thcrcufier, EPA and the National Highway Traffic 

Safety Administration (NHTSA) began jointly selting greenhouse gas emissions and 

fuel economy standards for new light-duty motor vehicles, stat1ing with Model Year 

(MY) 2012-2016. Then, in 2012, EPA and NHTSA took the tmprecedented step of 

3 See AUla nee Comments O!! Proposed Determination on Appropriateness of the Modd Year 2022-2025 

Light·D'uty Vehicle Grr.:cnhou5e Gas Emis.sions Standards under the Midterm ~ .... a!uation at t! -lJ. Dec. 

30, 2016 1 D-ockcl ID No. EPA-HQ-OAR-20! 5-0827; Memor.mdum for the Head.s of Executive 

Departments and Agencies, Jan. 20, 20 I 7. 

'Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427,2436 (?.014) (internal quotation mocks omitted). 

2 ofG 
419 


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setting joint greenhouse gas and fuel economy standards over a decade in advance for 

MY 2022-2025 vehicles. 77 Fed. Reg. 62,628 (Oct. 15, 20 12). No agency ever had set 

emissions standards so far into the future, and all stakeholders understood that no one 

could accurately project the circumstances affecting the technological and economic 

feasibility of these standards. 

The Alliance supported these efforts--but only on tne condition that EPA and 

NHTSA would reassess standards as data became available to test their feasibility. That 

commitment was essential because of the great uncertainty regarding the feasibility of 

the future standards. Based on the projections in the 2012 rule, manufacturers must 

achieve an average 54.5 miles per gallon equivalent across their new vehicle fleets by 

2025. Even today, no conventional vehicle today meets that target, and conventional 

vehicles comprise 9G.5o/o of the new light-duty vehicle fleet. Only some nonconventional vehicles (i.e., hybrid, plug·ln electric, and fuel·cel! vehicles), which 

comprise fewer than 3.5% oftoday's new vehicles, currently can do so.5 Even under 

EPA's optimistic estimates, the automotive industry will have to spend a staggering 

$200 billion between 2012 a11d 2025 to comply, making these standards many times 

more expensive than the Clean Power Plan. 6 

EPA and NHTSA committed loa robust Midterm Evaluation that would take a 

fresh look at these standards by April2018. The agencies promised that this review 

would be collaborative, so that the industry could offer the agencies real-life data to 

adjust their modei·driven forecasts. The agencies also committed to developing 

greenhouse gas emissions standards and fuel economy standards in tandem. 7 And they 

repeatedly represented that they would not complete the Proposed Determination/Notice 

of Proposed Rulemaking until mid-2017 at the earliest. 8 Tne industry took the agencies 

at their word, commissioning complex studies critical to assessing the MY 2022-2025 

standards and the processes used by EPA in its analysis, that we had e><pected to add to 

the administrative record for the Midterm Evaluation in 2017. 

On November 30,2016, EPA abruptly abrogated these commitments. EPA 

issued a Proposed Determination that the MY 2022-2025 standards should go into force 

! .. Light-Duty Automotive Technology, Carbon Dioxide Emissions, and fuel Economy Trends: 1975 

through 2016," at 1!8. U.S. Environmental Protection Agency. EPA-42D·R-16-0!0, Nov. 2016. 

6 See EPA Regulatory hnpnot Analysis for 2012-2016 rule (EPA-420·R·l0-009, Apr. 2010) at 

https://www.epa.gov/regulations .. emissions~vehic les.-and·engines!fina1-J\Ile·modcl-yeAr .. 20 12-20 16-Jightduty-vehicie; EPA Regulatory Impact Analysis for 2017·2025 rule (EPA·420-R-12-0l6, Aug. 2012) at https://www.epa.gov/regu lations-emissions-vehicles·aml-engineslfinal-ruJe-model-yeru·-2 01 7 -and-!aterlight-duty·vehicle. 

1 See40 C.F.R. § 86.1818-12(b), 77 Fed. Reg. 62,784 (Oct. 15,201 2), 40 C.F.R. § 86.1818·12(h)(l) -(2); 

81 Fed.Reg.49,219(1ulyn,2016). 

'See Alliance Comments on Proposed Detecmination at l 0, Dec. 30,2016, Docket lD No. EPA·HQ· 

OAR·20 ll·OS27. 

3 of6 
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35314.379

without modiilcalion. EPA issued the Proposed Determination without coordinating 

w\th NHTSA. EPA demanded comments by December 30,2016, even though the 

Proposed Determination was not published in the Federal Register until December 6. 

The public and industry had a mere 24 days, spanning a major national holiday, to 

comment on nearly I ,000 pages of documents, plus additional cited documents and 

computer modeling, regarc'ing requirements that "ill profoundly affect the automobile 

industry and the more than 900,000 American workers it directly employs.9 After EPA 

denied requests by various stakeholders to e:<tend the abbreviated comment period, we 

did our best to fiie substa'ltive comments. EPA received more than !00,000 oublic 

comments, including 63 sets of comments from various organizations sparmi~g 

hundreds of pages. 10 Many objected that the comment period was inadequate, EPA 

denied all requests to extend the abbreviated comment period and yet EPA issued the 

Final Determination on January 13, 20 i 7, just 14 days after the comment period closed. 

EPA brushed aside objections to its procedural shortcuts nnd never justified the need for 

such an abbreviated comment period. EPA also rejected commenters' subs:antive and 

technical concems by resting on its earlier analysis. 

}, EPA Should Withdraw the Final Detenn\nution Immediately 

The Final Determination is the product of egregious procedural and substantive 

defects and EPA s'10uld withdraw it." In EPA's rush to promulgate the Final 

Determination before the new administration took office, EPA bypassed reqt:ited 

procedures, failing for instance to provide an adequate period for meaningful notice and 

comment. The Final Detennination asserts U1at there was no need for more time 

because the Proposed Detcnninotion did not include much new material. But that 

contention is belied by EPA's acknowledgement that the Proposed Dctennination 

adjusted a number of EPA assumptions in response to commenters v.1JO pointed out 

errors at earlier stages. The irrdustry also had nn unacceptably short period to try to 

ascertain why EPA rejected many of its objections." These procedural defects are 

significant irrespective of whether the Final Determination constitutes rulemaking or 

adjudication. 

EPA's unilateral rumouncement of its Final Detennination also constitutes a 

failure to harmonize its greenhouse gas emissions standards with NHTSA's fueleconomy standards, contrary to the letter and intent of EPA's own regulations. NHTSA 

has not yet reached a detem>ination on its fuel economy standards and continues its 

9 U.S. Department of Labor. Bureau of Labor Statistics, 2015, U.S. Vehicle and Equipment 

Manufacturing Employment cqua!ed 90:9;/00 people. 

1

° Final Determination} Response lo Comments at l-3. 

11 S<e Alliance Comments on Proposed Determination, Dec. 30, 2016, Docket lD No. EPA-1-lQ-OAR.-

2015-0827. 

12 See Final De!erminatlon, Rcs;Jonse to Ccmments at 7. 

4of6 
421 


35314.380

Midterm Evaluation rulemaking activities. EPA's failure to act in coordination with 

NHTSA olso casts serious doubt on the legitimacy of EPA's data and conclusions, 

given the substantial discrepancies between EPA's and NHTSA's analysis oftl1e 

technologies and costs associated with the MY 2022-2025 standards. 13 

Furehermore, EPA's Final Detetmination that the MY 2022-2025 greenhouse 

gas standards should remain unchanged, is riddled with indefensible assumptions, 

inadequate analysis, and a failure to engage with contrary evidence. Here are just a few 

examples: 

EPA estimated that these standards will cost the industry at least $200 

billion. But EPA underestimated the burden. Contrary to EPA's assumptions, 

manufacturers will have to rely on much more expensive electritled technologies 

(i.e., hybrids and plug-ins), driving up vehicle prices ond depressing auto sales. 

• EPA refused to conduct an analysis of consumer acceptance and 

technology affordability needed for compliance, claiming this was too difficult. 

EPA refused to analyze substantively the economic impact of the MY 

2022-2025 standands, instead making cursory assertions that downplayed the 

impact of its mandate on auto sales and employment. 

• EPA refused to consider many of the Alliance's technical concerns even 

when supported by an outside consultant", asserted the Alliance provided 

insufficient data, and then refused further meetings for clarification. 

4. Studies and Data Highly Relevant to the Midterm Evaluation Have Not Been 

Submitted to EPA Because They Still Are Pending 

!tis partlcularly critical that EPA withdruw the current Final Determination and 

reopen the Midterm Evaluation process because analysis commissioned according to 

EPA's original timetable is ongoing and the Alliance expects that new information 

relevant to the Final Determination's underlying assumptions and resulting analysis will 

soon emerge. EPA's rushed timetable, coupled with its about-face on the timing of the 

Midterm Evahmtion, prevented consideration of this information. 

13 See Alliance Comments on US EPAl US DOT, California's Air Resources Board Draft Technicol 

Assessment Report of Greenhouse Gas Emissions and Fuel Economy Standards for Model Year 2022-2025 

Cars and LightTmcks at ES-9, Sept. 26, 20!6, Docket lD Nc. EPA-HQ-OA R-2015-0827, NHTSA 's costs 

are approximately 42% higher than EPA's (NHTSATablc ES-2 v. EPA ES-4 Table ES-1). 

14 See Novation Anafytics Comments on Draft: Technical Assessment, Sept 26.20 16; Docket IO No. 

EPA·HQ-OAR-20 15·0827. 

5 af 6 
422 


35314.381

We urge EPA to reconsider imposing such a far-reaching mandate on an entire 

industry without adequately considering the consequences, and without giving 

stakeholders a meaningful opportunity to comment. The MY 2022-2025 standards 

threaten to depress an industry that can ill afford spiraling regulatory costs. If left 

unchanged, those standards could cause up to /.I million Americans to lose jobs due to 

lost vehicle sales. 15 And low-income households would be hit the bardest. 16 

The Alliance is not asking EPA to make a different Final Detennination at this 

time. All we are asking is that EPA withdraw the Final Determination and resume the 

Midterm Evaluation, in conjunction with NHTSA, consistent with the timetable 

embodied in EPA's own regulations. We believe that, if carried out as intended, the 

Midterm Evaluation can lead to an outcome that makes sense for all affected 

stakeholders and for society as a whole. 

The Alliance welcomes the opportunity for further dialogue about ways to 

rekindle the industry's longstanding cooperation with EPA on these issues. 

Cc: Secretary Elaine Chao, DOT 

Kevin Green, DOT 

Bill Channley, EPA 

Chris Grundler, EPA 

Michael Olechiw EPA 

Rebecca Yoon, NIITSA 

James Tamm, NHTSA 

Mike McCarthy, CARB 

Annette Hebert, CARE 

Sin~~i' / ~ ~/?k /~--;:// 

Mitch Dainwol 

President and CEO 

"McAiinden, Sean, et al., The Potential Fjfects of the 10!7-2025 EPAINI/TSA GIIG/tliel Economy 

Mandates on the U.S. Econamyt Center for Automotive Research (Sep, 2016) at 49. Referring to I he 

$3.00 per gallon gasoline price $6,000 technology cost scenario. 

16 Walton, Tom) ct a!., The Impact ojFuture Fuel Economy Standards on Low Income Households, 

Defour Group LLC (Sep. 2016); Walton, Tom, et al., Defaur Group Response to EPA Rejoinders to 

Defour Group I Alliance of Autamobile Manufacmrers Submission Regarding the 

Regressivity!AjJordabilily of EPA's Prop<md Fuel Economy Standards, (Dec. 20 16). 

6 of 6 
423 

Senator BARRASSO. Senator Cramer. 

Senator CARPER. Mr. Chairman. 

Senator BARRASSO. Senator Carper. 

Senator CARPER. I would like to ask unanimous consent to submit for the record a letter I sent to Mr. Wheeler last month asking 

about the possible coordinated campaign between Mr. Wheeler and 

the White House to bury the results of the report mentioned by 

Senator Markey and other materials as well related to EPA’s efforts to take us backward on climate change and the climate 

change crisis. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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35314.382

The Honorable AnJrew Wheeler 

Acting Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

Dear Acting Administrator Wheeler: 

llnittd ~tatrs ~cnau COMMITTEE ON ENVIRONMENTAND PUBLIC WORKS 

WASHINGTON. DC 2D510 ·ti1713 

December 3, 2018 

I write to express my grave concerns regarding the recent public comments made by you and 

your agency with respect to the release of the Fourth National Climate Assessment. These 

comments appear to run afoul of the commitment you made to me during your confirmation 

hearing, when you committed not to distort climate science studies, saying, "[ m ]y goal would be 

to not distort any scientific or economic analysis."' 

On the day after Thanksgiving, thirteen federal agencies led by NOAA released the Fourth 

National Climate Assessment. This nearly l, 700-page, congressionally-mandated report 

highlighted the devastating impacts that climate change will have over the next eighty years if 

we do not change course now. The report was a dire warning to our nation and our planet, a 

warning that the world's leaders arc today attempting to heed as the 24'h session of the 

Conference of the Parties to the United Nations Framework Convention on Climate Change 

begins this week. 

The Fourth National Climate Assessment took three years to develop and write. It was written 

with input from more than 300 federal experts some of which are EPA employees- as well as 

non-federal experts who volunteered their time. The scientific report was finalized following an 

extensive public outreach and interagency review process, and its conclusions are important to 

every person living on this planet. 

Since the report was released, comments made by you and other Trump Administration officials 

have sought to undennine the findings of the report. For example, on November 26,2018, 

President Trump stated "I don't believe it" when asked about the report, adding that "we're at the 

cleanest we've ever been."2 The following day, White House Press Secretary Sarah Huckabee 

Sanders stated at the White House press conference that "We think that this is the most extreme 

1 https:llwww.eenews.net/assets/20 l7!ll/281documcnt_pm_06.pdf 2 https:l/www.cnn.com/20 t 811!/26/politics/donald-trump-climate-change/index.html 
425 


35314.383

version and it's not based on facts.'" She also said that "(I]t's not data-driven" and that it 

"contradicts long established trends."3 

At a Washington Post event held on November 28,2018, you stated that "The drafting of this 

report was drafted at the direction of the Obama administration" ... and "(G]oing forward, I think 

we need to take a look at the modeling that used for the next assessment" and "I don't know this 

for a fact- I wouldn't be surprised if the Obama administration told the report's authors to take 

a look at the worst case scenario for this report."4 The EPA then doubled down on these 

comments the next day, by releasing a statement5 that purported to validate your remarks, citing 

an article6 issued by The Daily Caller, a publication with a long history of issuing false 

statements about climate change.7 This article greatly mischaracterized the scope of the climate 

report by falsely asserting that Obama Administration officials directed it to focus on the 'worstcase' scenario. 

As you must certainly know, the National Climate Assessment is not developed at the direction 

of any one Administration, but was directed by Congress through the Global Change Research 

Act of 1990, which passed the United States Senate unanimously and was signed into law by 

President George H. W. Bush. This law requires, every four years, a report that, "analyzes the 

effects of global change on the natural environment, agriculture, energy production and use, land 

and water resources, transportation, human health and welfare, human social systems, and 

biological diversity" and "analyzes current trends in global change, both human-induced and 

natural, and projects major trends for the subsequent 25 to I 00 years."8 The memo 

mischaracterized by EPA and The Daily Caller clearly states that the Fourth National Climate 

Assessment should use scenarios and science that are consistent with previous reportsY 

If the United States continues to ignore the dangers of climate change, the costs for all 

Americans will be devastating. This isn't an alarmist prediction. It doesn't come from some 

left-leaning organization, and it doesn't come from talk radio. It comes directly from our 

nation's leading scientists. We may not all agree about what to do to address these dire 

warnings, but it disturbs me greatly that counter to the commitment you made to me during your 

confirmation hearing, you seem to be actively working to undermine and distort the scientific 

evidence itself. 

So that I can understand the basis for EPA's views and involvement in shaping the Trump 

Administration's response to its own report, I ask that you provide me with the following 

materials, no later than January 15,2019: 

' https:/lwww .cnn. com/2 0 181 11/28/po1 itics/c !imate-fact-check/index .htm 1 

' https://www.politico.com/story/20 18/11/28/epa-trump-next-climate-study-992872 5 https://www.epa.gov/newsreleaseslfact-check-obama-administration-pushed-worst-case-scenario-climateassessment 

6 https://dailycaller.com/20 18/11/28/epa-andrew-wheeler-obama-c!imate-report/ 7 https://dailyca11er.coml20 18/03/23/deceptive-language-ruins-earth-hour/ 

"Pub.L. 101-606 9

https://scenarios.globalchange.gov/sitesldefaultlfiles/Extemal%20memo%20NCA4%20scenarios%20framing_2015 

0506.pdf 

2 
426 


35314.384

J. Copies of all briellng materials prepared for you or other Trump Administration EPA 

political officials related to the preparation and release of the Fourth National Climate 

Assessment, including but not limited to the May 2, 2018 briefing for the Office of Air 

and Radiation whose invited participants included Bill Wehrum and David Harlow. the 

May 14, 2018 bricllng for the Oftice of Water whose invited participants included Lee 

Forsgren and Owen McDonough, and the May 29, 20 J 8 briefing for the Office of 

Research and Development whose invited participants included Richard Yamada. 

2. Copies of all brieling or materials prepared by EPA that were sent to any other entity 

within the Trump Administration related to the preparation or release of the Fourth 

National Climate Assessment. 

3. Copies of all documents, including em ails, white papers, memos, briefing slides, meeting 

minutes, drafts of press remarks or talking points. or other materials related to the release 

of the Fourth National Climate Assessment, including documents related to the decision 

to release the report the day allcr Thanksgiving. 

4. Copies of all documents, including em ails. white papers, memos, briefing slides. meeting 

minutes, drafts of press remarks or talking points. or other materials related to your 

appearance at the November 28. 20 I 8 Washington Post event or the EPA press release 

the following day. 

Thank you for your assistance in this matter. lfyou or your sta!Thavc questions about this letter 

or the requests, please contact me directly or have your staff contact Laura Gillam or Michal 

FreedhofTofthe Environment and Public Wnrks Committee staff. !look forward to your timely 

response. 

With best personal regards, I am, 

Sincerely yours. 

Tom Carper 

Ranking Member 

3 
427 


35314.385

The Honorable Elaine L. Chao 

Secretary 

U.S. Department of Transportation 

1200 New Jersey Ave. SE 

Washington, DC 20530 

'llnitcd ~ States ~ ~cnatc COMMITIEE ON ENVIRONMENT AND PUBliC WORKS 

WI\SH1NGTON, OC ?051(). til If:. 

October 16, 20 18 

The Honorable Andrew Wheeler 

Acting Administrator 

Environmental Protection Agency 

1301 Constitution Ave. NW 

Washington, DC 20460 

Dear Secretary Chao and Acting Administrator Wheeler: 

I write to strongly urge you to reverse course on your August, 2018 proposal to dramatically 

weaken future vehicle fuel economy and greenhouse gas tailpipe standards. The proposal, which 

is currently out for public comment, also seeks to remove California's authority to set and 

enforce its own greenhouse gas tailpipe standards (as well as the authority of the 12 additional 

states, including Delaware, which have adopted them). The proposal wrongly asserts that 

California's authority is preempted by law. 

As I noted in my May, 2018 correspondence1 regarding an earlier version of the draft rule that 

my office received, your proposal, if finalized, would harm U.S. national and economic security. 

It would also undermine efforts to combat global warming pollution, create regulatory and 

manufacturing uncertainly for the automobile industry and unnecessary litigation, and increase 

the amount of gasoline consumers would have to buy. 

In past months, I have urged you both repeatedly to work to negotiate a 'win-win' solution on 

federal fuel economy and greenhouse gas tailpipe standards that can be supported by both the 

automobile industry and the State of California. President Trump2, the automobile industry1 and 

the State of California4 have also indicated that they support such an approach. 

Regrettably, your proposed vehicle standards do not seem to reflect the almost universallyshared view that a consensus approach is within reach and should be pursued. Moreover, the 

pending proposal is rife with seemingly unlawful assertions and erroneous assumptions. 

Specifically, the proposal makes the inaccurate assertion that the 'maximum feasible' fuel 

economy and tailpipe standards can legally be frozen for the better part of a decade, bases its 

1 https://www .carper .senate.gov/public/index.ctin/20 1815/carper-calls-on-chao-pruitt·to-abandon-draft -proposal-toweaken-fuel-economy-and-tailpipe-emissions-standards 

' https:l/www.cbsnews.comlnewsltrump-hopes-to·negotiate-with-california-on-fue!-standards/ 

3 https:/lwww.reuters.cornlarticle/us-autos-emissions/major-automakers-urge-trump-not-to-freeze-tuel-economytargets-idUSKBNI !821 P 4 https://www.reuters.cornlarticle/us-autos-emissionslcalifornia-rcgulator-sees-window-for-deal-on-fuel-economyrules-idUSKBNI JZ2TS 
428 


35314.386

safety analysis on a model that in no way reflects real-world driving or consumer behavior, 

artificially inflates the costs and minimizes the benefits of fuel-efficient technologies that are 

currently being used by automobile manufacturers, and fails to follow statutorily mandated 

requirements and procedures. 

ln fact, in comments submitted to the Department of Transportation and the White House Oftlcc 

of Management and Budget (OMB), EPA observed5 that "EPA analysis to date shows significant 

and fundamental flaws in CAFE model ... These Haws make the CAFE model unusable in 

~urrent form for policy analysis and for assessing the appropriate level of the CAFE or GIIG 

standards." 

I have auached a non-exhaustive list of some of the most significant deficiencies in your 

Agencies' proposal. As you work to evaluate public comments, I want to underscore the 

consequences that could result if these deficiencies are not addressed in a final rule which 

include precisely the sort oflitigation and regulatory uncertainty the automobile industry wishes 

to avoid. Moreover, a likely outcome of that litigation is that courts will overturn NHTSA's 

proposed model year 2021-26 fuel economy standards, leaving no fuel economy Stllildards 

whatsoever in place starting in model year 2022, and will additionally overturn EPA's proposed 

modifications to its existing model year 2021-26 tailpipe standards, leaving the current, more 

stringent EPA tailpipe standards in place. This appears to be the opposite of the outcome this 

Administration has said it wants. 

I have spent considerable time over the past year talking frequently and extensively with 

automobile manufacturers, suppliers, officials representing the State of California, and other 

stakeholders. I remain convinced that an agreement is well within reach that would provide 

ncar-term flexibility and predictability for the auto industry, more rigorous standards going 

forward, and continued compliance ±lexibilitics and incentives to develop electric and other 

advanced technology automobiles, all while avoiding years of unnecessary litigation with 

California and others. I urge you to abandon your current approach and do all that you can to 

support efforts to identify and finalize a 'win-win', consensus approach. 

Thank you very much for your attention to this important matter. If you have any questions or 

concerns, please contact me directly or have your staff contact Michal Frccdhoff of the 

Environment and Public Works Committee staff: a! 202-224-8832. 

With best personal regards, I am, 

Sincerely yours, 

~ (tftn~J- _., ~~~--~c?;qr .·~ 

Ranking Member 

s. See the June 18, ::w 18 email from William Charmk:y which can be accessed at https://www.rcgulations.gov/document?D·cEPA-HQ,OAR-20 l ~-02~3-0453 
429 


35314.387

Attachment l 

A non-exhaustive list of significant deficiencies in the proposed rules that, if finalized, could 

leave the rules vulnerable to legal challenge. 

l. Freezes the standards for almost a decade: The Energy Policy and Conservation Act, 

as modified by the Energy Independence and Security Act, requires NHTSA to set the 

'maximum feasible' fuel economy standard each ycar6• The Trump Administration's 

'preferred altcmative' freezes the stringency of the fuel economy standards in place from 

model years (MYs) 2020-26. Historic data (Attachment 2) shows that the fuel economy 

of the fleet has increased by 2-2.5 percent per year since the Bush Administration began 

increasing fuel economy standards for light duty trucks in 2005. It is simply implausible 

that the 'maximum feasible' fuel economy standard required under NHTSA's statute 

could legally be left unchanged for seven model years. Moreover, because the Notice of 

Proposed Rulemaking (NPRM) seeks to eliminate EPA's compliance credits for 

automakcrs that switch to less polluting air-conditioning refrigerants, the proposal 

effectively freezes the stringency of EPA's standards for almost nine model ycars7 

2. Ignores the statutory requirement to consider the need to conserve energy: The law8 

states that when setting fuel economy standards, the Secretary of Transportation is 

required to consider "the need of the United States to conserve energy." This is a core 

tenet of the Energy Policy and Conservation Act. as modi tied by the Energy 

Independence and Security Act. Despite this explicit mandate, NHTSA proposes to 

abandon or minimize this consideration, stating that: "Given the discussion above, 

NHTSA tentatively concludes that the need of the U.S. to conserve energy may no longer 

function as assumed in previous considerations of what CAFE standards would be 

maximum feasible .... The world has changed, and the need of the U.S. to conserve 

energy, at least in the context of the CAFE program, has also changed." Contrary to 

NIITSA's statutory fuel conservation mandate, the proposed rule would increase fuel 

consumption by about half a million barrels per day9 

3. Relics on modeling of driver habits that contains documented errors and yields 

conclusions whieh defy common sense, distorts projections of regulatol')' impact, 

and lacks credibility. NHTSA is required by law to consider economic practicability 

when it is setting fuel economy standards. 10 As part of this analysis, NHTSA developed 

a new and not-yet-peer-reviewed module for predicting consumer behavior. The module 

essentially assumes stronger f ucl economy standards depress new car sales and keep 

more old cars on the road. Despite repeated corrections by EPA that are recorded in the 

docket, the NHTSA module projects that each new vehicle sale that is deferred results in 

many more old cars staying on the road, driving billions more miles than the new 

'' 49 U.S. C. 12902(a) 7 Sec Table 1·3 of the NPRM, which shows that the tailpipe standard for MYs 2021·26 is proposed to be 

approximately the same as that for MY 2018. 8 lntps.:l/www.la\"'·tomeH.edu/uscode/textf49/32902 

9 NPRM, p. 42986 

"'49 U.S. C. 32902(t) (2007) (discussed in NPRM, p. 42306) 
430 


35314.388

vehicles themselves otherwise would have -- a pattern that defies common sense. 

Because additional vehicle miles traveled (VMT) correlate to both emissions increases 

and roadway fatalities, these implausible modeling results disto11 the regulatory impact 

analysis and render its results virtually meaningless as a basis for the statutorily reqttircd 

economic analysis. Indeed, the NPRM concludes that leaving the more stringent 

standards in place would lead to 12,700 additional deaths by MY 2029, 11 6,180 of them 

attributable to this new module. However, materials in the rulemaking docket 12 indicate 

that EPA believes this NHTSA module is fundamentally f1awed, cannot be relied upon to 

justify the proposed rollback, and that EPA repeatedly brought these dcticicncics to 

NHTSA's attention. Specifically: 

According to EPA's analysis. NllTSA's module predicts that if the current 

standards arc left unchanged, there will be a 15-20%, increase in registered 

vehicles because so many old cars will stay on the road- a conclusion that cannot 

be explained by any real-world policy or projection. 

According to EPA's analysis, NHTSA's module predicts that the current, more 

fuel-c!llcient, standards would result in 8,000 new vehicles that consumers would 

not purchase each year (because they would be too costly), and also result in an 

additional 512,000 used vehicles remaining on the road each year, a phenomenon 

that appears to be a fictitious creation of the module that has no real-world 

explanation. 

According to El' A's analysis, NHTSA 's module predicts an unexplained l 0-15% 

increase in vehicle miles traveled (VMT) if the standards remain unchanged. 

Specifically, the module predicts people will drive an extra almost 700 billion 

miles in model years 1977-2029 vehicles, with no real-world explanation for why 

that would be13 

• The exaggerated estimates of vehicle miles traveled are magnified by a factor 

called the 'rebound effect,' to which NHTSA attributes 6,340 of the 12,700 

additional deaths that would result if the current standards arc left unchanged. 

This factor assumes that because fuel-efficient cars are cheaper to use, people will 

drive more. The NPRM assigns a value of 20 percent to the 'rebound effect' 

(meaning 20 percent more driving by consumers in more fucl-cflicient vehicles) 

twice the value that both EPA and NHTSA have determined to be appropriate 

since 20 l 0, and absent any justification for departing from its past practice. 14 

EPA also found f1aws in the application of the rebound factor, noting 15 that 

N! ITSA 's model wrongly predicts less driving associated with more stringent 

standards when the rebound effect was set to 20 percent than when it was kept to 

0 percent, which is the opposite of what would be expected in the real world. This 

11 Table Il-73 of the NPRM 

"Sec for example the June 18, 2018 email fi·om William Charm ley which can be accessed at 

https://www. rcgulations.govid oeumcnt?D~EPA-HQ-OAR-20 18-0283 ·04 53 

"Table Vl-88 of the NPRM, 1

'

1 Sec for example the June 18,2018 email from William Channlcy which can be accessed at 

hl!ps:ilwww.regulations.gov/document ?D·' EP A-HQ-OA R-20 1 8-0283-0453 15 See for example the June 18, 2018 email from William Charm ley which can be accessed at 

https:/lwww.regulations.gov/document?D--EP A-1! Q-OAR-20 18-0283-04 53 
431 


35314.389

once again undermines the credibility ofNHTSA 's modeling results as a basis for 

legally justifying a regulatory decision. 

4. Ignores industry data on automobile safety; Safety analysis has always been an 

important component of the balance that NHTSA seeks to achieve when setting fuel 

economy standards. Of the 12,700 additional deaths the NPRM states will occur if the 

currents standards are left unchanged, 16 160 of them are attributed to 'mass changes'. 

This means that as vehicles arc light-weighted to comply with more stringent standards, 

NllTSA believes that more people will die as a result of tranic accidents that occur in 

these lighter vehicles. Although the proposal notes that reducing the mass oflight trucks 

generally improves the l1eet's overall safety. it does not note that a recent study 

disproves 17 the argument that fuel economy standards result in more traffic fatalities in 

the first place. The proposal additionally fails to incorporate other industry 18 analysis 19 

that shows that most of the mass reductions the industry is undertaking to improve fuel 

economy is being planned to occur in light trucks (which therefore, even by NHTSA's 

own l1awed argument, should be projected to result in an overall reduction in traffic 

fatalities). 

5. The NPRM ignores premature deaths due to increased air pollution that arc 

presented within their own environmental study: Even NHTSA's contorted modeling 

shows that freezing fuel economy standards would increase air pollution, since vehicles 

that usc more gasoline also emit more toxic air pollutants. Table 4.2.3.1 of the Draft 

Environmental Impact Statement20 on the proposed rule shows that there will be as many 

as 299 premature deaths associated with freezing the standards from MYs 2020-26 by 

2050. These additional deaths relative to the current standards are not factored into the 

total fatalities contained in Table 11-27 of the NPRM, and do not appear to be included in 

the analysis used to justify freezing the standards. 

6. Uses inaccurate and/or disputed cost, technology and compliance data that 

undermine the statutorily mandated analysis of 'technological feasibility': Another 

factor that NHTSA is required to consider when setting standards under the law is 

'"technological feasibility."21 Two years ago. NHTSA claimed there would be nearly 

$100 bill on of net societal benelits22 associated with maintaining the current standards, 

while now it claims that keeping these rules will lead to about $200 billion of net societal 

costs23 In its extensive comments24 to NHTSA and OMB prior to the release of the 

proposed rule, EPA repeatedly highlighted examples of problematic cost. technology and 

"Table 11-73 of the NPRM 17 https :/ /ww w. wash ingtonpost. com/ne ws/c nergy-env iron ment/wp/20 1 7/0 5/0 3 /scientists-just -dcbun ked -on e-o f-th cbi ggcst~argu ments-against- fuel~cco no my -standards-for -ca rs/?norcd i rcct=on& utm._ term, .. bB 72ce9 5 24 4 J 

IR http://www.drivcalum inum.org/wp-content/uploads/20 18!08/Mass-Rcduction-Chart.pd r " http://www .drivcaluminum.orglwp-content/uploads/20 17 I 1 0/Ducker-Public _FINAL. pdf 1

" https:llwww.nhtsa.govlsitcslnhtsa.dot.gov/li lcs/documents/ld .. cafe _my202 I -26 _ deis_ 0 .pdf 21 NPRM. 42306 2' https:i/nepis.cpa.gov/Exc/ZyPDF.cgiiP I OOOXEO.PDF'1Dockey··P I OOOXEO.PDF page I 3-103 11 Table 1-4 of the NPRM 24 See for example the June 18, 20!8 emoil from William Charm ley which can be accessed at https:l/www.regulations.gov/document?D~EPA-HQ-OAR-20 18-0283-0453 
432 


35314.390

compliance assumptions made by NHTSA, most, if not all of which, do not seem to have 

been remedied in the proposed rule. All of these assumptions result in an over-estimation 

of the current, more fuel-efficient standards' costs, and an under-estimation of their 

benefits. If these assumptions are not remedied in the final rule, litigation could be filed 

on the grounds that each or all of them are arbitrary and capricious. Some examples of 

these t1aws include: 

EPA observed that NHTSA over-estimated the costs of some fucl-cftlcicnt 

technologies compared to their current, real-world costs and use. For example, 

EPA noted that NHTSA assigned a cost of Dynamic Cylinder Deactivation that 

"is 2-4 times higher than industry quoted costs for the version of the technology 

which is going into production in MY20 19," observing that the high costs lead to 

a prediction that this technology will not be implemented at all under its 

'preferred alternative,' even though GM is offering the technology in the MY 

2019 Silverado which will be available for sale in late 2018. EPA believes that 

existing plans to use this technology will likely result in its inclusion in "well past 

4.4%" of the new vehicles sold in the MY20 19-2022 timctrame. In another 

example, EPA notes that NHTSJ\ assumes that the cost of batteries for hybrid and 

plug-in vehicles is in most cases 20-40% more expensive than would be expected 

using Department of Energy projections. 

EPA told NHTSA and the White !louse 0!1lcc of Management and Budget that 

the NllTSi\ model uses the most expensive technology packages available to 

meet the standards, which overestimates the most cost-effective ways to do so by 

$1-2,000 per vehicle. For example, NHTSA's assumptions about which types of 

hybrid technology to include in its model results in "strong hybrid packages that 

are significantly higher costs [sic J and less effective than the vast majority of realworld implementations." 

• EPA identified NHTSA's omission of the beneiits of some fuel-efficient 

technologies entirely, along with errors in the values NHTSA assigned to others. 

For example, 'start/stop' technology, which causes engines to automatically shut 

off while vehicles arc stopped in traffic (and thus use no fuel), was estimated by 

NI-lTSA to have a negative effect on fuel-efficiency in some scenarios, which is 

simply not plausible. In another instance, EPA observed that the most advanced 

eight-speed transmission technologies arc assigned unrealistically low fuelefficiency effectiveness values for some vehicle types. EPA also noted that the 

more expensive version of an engine technology {TUR802), which would be 

expected to be more fuel-efficient, was instead assigned a negative fucl-cf!icicncy 

value for some types of vehicles in NHTSA's modeL Additionally, an existing 

engine technology called cooled exhaust gas recirculation (CEGRl), which has 

been demonstrated in the market to significantly reduce carbon dioxide emissions, 

was assigned a fuel-efficiency effectiveness of at or ncar zero for nearly all of the 

options modeled by :-.IHTSA. 

• EPA also called out NHTSA 's decisions to omit the existence of technologies that 

provide a significant improvement to fuel economy that are currently deployed in 

the marketplace, such as the Atkinson engine, EPA observed that with "Mazda 

applying the technology to the majority of their current vehicles, and Toyota 
433 


35314.391

announcing its plan for at least 60 percent application (by volume) by 2021," it 

was unrealistic that the NHTSA model does not even project the inclusion of this 

technology in future compliance modeling scenarios of the companies that use the 

technology today 

EPA also noted that NHTSA did not appear to recognize that the Clean Air Act 

allows trading of compliance credits between a company's car and truck fleets, 

which most companies currently and regularly engage in. This failure had the 

effect of driving compliance costs up since it assumes that a company would need 

to purchase credits from other companies rather than transfer credits from (for 

example) its over-compliant car fleet to its under-compliant truck tleet. 

According to EPA, the model also "inappropriately applies the credit cap ( 1 Og/mi) 

separately to each manufacturer's car and truck fleets" rather than the combined 

tleet as allowed for in the regulations. 

7. Relying on preemption analysis that has been rejected by courts: The NPRM states 

that "States may not adopt or enforce tailpipe greenhouse gas emissions standardo when 

such standards relate to fuel economy standards and are therefore preempted under EPCA 

[Energy Policy and Conservation ActJ, regardless of whether EPA granted any waivers 

under the Clean Air Act (Ci\A)." It additionally concludes that "the California ZEV 

[zero-emissions vehicle] mandate is expressly and impliedly preempted by EPCA." 

These assertions are starkly contradicted by the body of case law interpreting the 

interplay between EPCA, CAA2\ State waivers under the CAA, and the legislative 

history of both acts. That history at1inns that EI'CA 's preemption provisions simply do 

not apply to pollution standards applicable to new motor vehicles, including greenhouse 

gas pollution standards, set by EPA or by California acting pursuant to a Clean Air Act 

waiver. The document also docs not cite the clear Congressional intent on this point 

expressed by three of the principal26 authors27 of the fuel economy provisions ofEPCA 

during their December, 2007 consideration on the House and Senate Floors that also 

refute the preemption proposal's premise. 

8. Unprecedented attempt to revoke California's waiver to set standards: The NPRM 

also proposes to revoke the waiver California received under section 209 of the Clean Air 

Act to enforce its own light duty vehicle and zero-emissions vehicle standards, although 

EPA has never before revoked any of the more than 100 such waivers that have been 

grantcd 2 K The NPRM invokes all three statutory criteria that could be used to deny a 

waiver, namely that "EPA finds that California's determination that its standards arc, in 

the aggregate, at least as protective of public health and welfare as applicable Federal 

''Sec for example ,14assachuse/ls v_ EP.A., 549 U.S. 497,532 (2007), which stated that the two statutory directives 

"may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid 

inconsistency", and Cemral Valley Chrysler-Jeep, lnc. v, Goldslene, 529 F, Supp. 2d I I 5 I, I I 77 (E.D_ Cal. 2007); 

Green Mountain Chrysler l'lymouth Dodge Jeep v, Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007), which both held 

that EPCA does not preempt California's standards. 

"' https:l/www.gpo.gov/fdsys/pkg/CREC -2007- I 2-06/pdf/CREC-2007- I 2-06-pt I -PgH 14434-2.pdf. See page I 0 for 

the remarks of then-Congressman Edward. J. Markey 27 https://www.gpo.gov/fdsys/pkg/CREC-2007-12-!3/pdf/CREC-2007-12-13-pt 1-PgS 15385.pdf. See page 2 for the 

remarks of Senator Feinstein and the late Senator Inouye 8 http"-: I !www. nrdc .org!cx perts/ ircnc-gutierre7 !base !ess-th reats-cal i forn ias-clean-car -waiver 
434 


35314.392

standards, is arbitrary and capricious; that California does not need its own standards to 

meet compelling or extraordinary conditions: or that such California standards and 

accompanying enforcement procedures are not consistent with Section 202(a) of the 

Ci\1\.'' Since the NPRM proposes to freeze federal standards between MYs 2020-26, it is 

difficult to understand how a determination that California's stronger standards would be 

more protective of public health and welfare could be arbitrary and capricious. No 

scientific or other evidence was provided to refute EP ;\ 's 2009 approval 29 of California's 

waiver application, which acknowledged the "adverse impact that climate change may 

have on local ozone conditions'' as wdl as "the evidence submitted concerning the 

observed and projected impacts of global climate change in Califomia and other states" 

when it determined that the conditions the California standards were intended to meet 

constituted compelling and extraordinary conditions. Finally, as noted in the above 

section, several court decisions have informed the question of whether fuel economy 

standards, EP ;\tailpipe standards and California's separate standards can co-exist free of 

conflict, as they have since 2009. 

9. El'A did not draft its own proposed rule, which may be unlawful: Numerous reports 

have indicated that EP ;\provided almost no input into this proposal, which was written 

largely by NHTSA. One recently retired EPA official stated that "EPA staff had 

basically nothing to do with that entire document and analysis, 30" and another current 

EPA oHicial asked 31 that EPA's logo be remm·ed from the document to reflect that fact. 

Not only is this a dramatic departure from past inter-agency processes, it is also likely 

illegal, as courts32 have33 repeatedly34 ruled that agencies can use external input and 

advice when writing regulations under their own statutory authorities, but must write the 

regulations themselves. 

10. NHTSA failed to include a reasonable range of rl'gulatory alternatives as mandated 

by the National Environmental Policy Act: The rangt: of alternative standards that were 

analyzed in NHTSA's Draft Environmental Impact Statement depart from past practice, 

because they do not appear to include a reasonable range of alternative rulemaking 

options. In fact, none of the alternatives analyzed are more stringent than the cuncnt 

(augural) standards. This also poses a legal vulnerability. In 1981, the Council on 

Environmental Quality published in a memorandum to agencies that addressed how 

alternatives should be sclected/5 saying that the range examined should include "the full 

spectrum of alternatives". It uses as an example a proposal to designate wilderness areas 

within a National Forest from 0 to l 00 percent of the forest and states that ";\n 

appropriate series of alternatives might include dedicating I, 10, 30, 50, 70, 90 or 100 

" https:f/www.gpo.gov/fdsys/pkg/FR-2009-07 -08/pdf/E9-15943 .pdf 

"https:itwww.ecncws.net'stories/1060091981 

.> 1 https://w\VW. washingtonpost.com/energy-cnvironmcnl/20 18/08/ l5itrump-administration~said~wcakrr-fuelstandards-would-save-!ives-epa-experts-disagreciOutm _term= .21 ffib9849f67 

U.S. Telecomm v. FCC. 359 F. Jd 554, 567-6H (D.C. Cir. 2004) 

.n See the illustrative discussion in Coalition for Responsihie Regulation v. EPA regarding EPA 15 use of the IPCC 

reports in crafting the cndangem1ent finding at 6M f .ld at 120 

"Ergon-Wcst Virginia, Inc. v. EPA, No. 17-1839 (4th Cir. 2018) 

'

5 llltps://www.energy.gov/sitcslproditiles!G-CEQ-40Questions.pdf 
435 


35314.393

percent" The document goes on to explain that reasonable alternatives include those that 

are practical or feasible from the technical and economic standpoint and using common 

sense, rather than simply desirable from the standpoint of the applicant. Several 36 court37 

decisions38 have opined on this 'reasonableness' test and required a broader range of 

alternatives to be required for consideration by agencies that were found to have 

unlawfully constrained them. 

"Sierra Club v Marsh, 714 F. Sup. 539 (1989) 17 Calvert Clitls' Coordinated Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971 ), cert. 

denied, 404 U.S. 942 ( 1972) 

"Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972) 
436 


35314.394

Attachment 2- Historic Tailpipe Performance of Cars and Trucks (not including advanced technology vehicle, 

air conditioning off-cycle or other compliance flexibilities) 

Tailpipe cfficiencv improvement ror cars and trucks combined 

Year EPA Unadl. Lab IMPGl NHTSA CAFE !MI'Gl Actual tailnine imorovement over orior vear -- 1975 15. N'A ······ !976 16. N!A 9.15% ----- _1272_ 17.7 

~~~ 5.99~/~ 197& 18.6 ··-s()8~i ···· -- --ffi-~- - ~+- -! ----¥,: . ~£ -:~~;; __ 

-= 1·--mt-- -· 24.1 24.6 --" ~~'-" ---- __ , __ 

24.7 

~N 2.41::>% 1983 24.6 ---~_:-~0A(w, ---==::::. -

~-- 24.6 25.0 o.ooo,-o ~--··-

25.0 254 ·-- If;)%-

1986 25. iH-- ---- 280% ··- 1987 25.9 0.78% -·------ 1988 25.9 26.0 0. , ... ---~·"· 

1989 25.4 25.6 -1.93% . --------· 1990 25. :079% 

1991 25.< ---~-

.79% 

.. _ .. 1992 24.9 25.l -1.97% ------ 1993 24.6 _________ i-- ..2_#- -- ------o so·/,- 1994 :.99% 

---flli 24.7 1-- 24.9 0.41% -

24.8 24 9 0.40% 

__ 1997 24.5 24.6 -!.2!o/~-~----· -

··-···· ·- 1998 24.5 24.7 0.00% -·~-·---· 

1999 24.1 24.5 

-~i- 1~i-- ...... 24.8 -~~·~;~~ ----. -----

~~-~ ----0.41% 

~ ~1; :0.41% ···-----

. LS l3% -------------

··-1ri~i-·· ·--~:~ ... ---· -~} --- -1.23% ... 3.33% . .. 

............ 2006_ 252 25.8 !.61% ............. 2007 25.8 26.6 2.38% 

2008 16.3 1.94% 

2009 28.2 29.0 7.!2% 

2010 28. 29,3 ~.71% 

2011 28. 29.0 -1.06% 

2012 29.9 30.8 6Al% 

20U 30,7 31,6 2.68% 

- 2014 30.7 31.7 0,()_0_% 

2015 1.4 32.2 2.28% 

2016 3!.6 ),64% 

2017 31.3 (pridim) 2.12%J 

lA verage, 2005-2016 2.35% 

!Average, 2012-2016 !40% 

;ource: EPA's Fuel Trends, Table 9.1 
437 


35314.395

United ,States Senate 

The Honorable Elaine L Chao 

Secretary 

U,S, Department of Transportation 

1200 New Jersey Ave, SE 

Washington, DC 20530 

WASHINGTON, DC 205'10 

October25, 2018 

The Honorable Andrew Wheeler 

Acting Administrator 

Environmental Protection Agency 

1301 Constitution Ave. NW 

Washington, DC 20460 

Dear Secretary Chao and Acting Administrator Wheeler: 

We write regarding your proposals to dramatically weaken the fuel economy and greenhouse gas 

tailpipe standards for cars and light trucks. These proposals additionally seek to remove 

California's authority to set and enforce its own greenhouse gas tailpipe standards, wrongly 

asserting that California's authority is preempted by the Energy Policy and Conservation Act 

(EPCA), as amended by the 2007 Energy Independence and Security Act (EISA). 

As elected officials who were deeply involved in the negotiation of the fuel economy provisions 

of EISA, we can attest to Congress' intent that California's authority under the Clean Air Act be 

preserved, Not only did Congress include a broadly worded savings clause that expressly retains 

all authorities conferred by environmental laws, 1 we did so in rejection of several alternative 

proposals to preempt California's authority. This intent was clearly expressed by two2 ofus3 

during the provisions' December, 2007 consideration on the House and Senate Floors. 

This letter transmits contemporaneous emails and other documents that demonstrate 

unequivocally that in the month before EISA was enacted, there were repeated efforts on the part 

ofthe automobile industry, some Members of Congress and the Bush Administration to preempt, 

limit or otherwise constrain both EPA's and California's authority under the Clean Air Act. All 

of these efforts were rejected, and were not included in the enacted law, 

Specifically. these materials (also attached) include: 

Several draft legislative proposals shared by representatives of Cerberus• in lateNovember, 2007 that sought to constrain EPA's authority to set greenhouse gas tailpipe 

standards for cars and light trucks, and remove California's authority to do the same. 

• A November 30, 2007 press release that describes the Congressional agreement on the 

fuel economy provisions of EISA. 

• Two December, 2007 Statements of Administration Policy issued by the Bush White 

House that threatened a Presidential veto of EISA, in part because it did not eliminate 

EPA's Clean Air Act authority to set greenhouse gas tailpipe standards for cars and light 

1 Sec 42 USC 17002, 2 https://www.gpo.gov/fdsyslpkg/CREC-2007-12-06/pdfiCREC-2007-12-06-ptl-PgH 14434-2.pdf See page l 0 for 

the remarks of then-Congressman Edward, J. Markey 3 https:i/www.gpo.govlfdsyslpkg/CREC-2007-12-13/pdfiCREC-2007-12-13-ptl-PgS l5385.pdf See page 2 for the 

remarks of Senator Feinstein and the late Senator Inouye 

"At the time, Cerberus had purchased Chrysler, and hired Pauon Boggs to represent them. See, for example, 

http:/lwww,pressreader.com/usa/the-detmit-news/20070718/2 82651798082147 
438 


35314.396

trucks in order to abrogate the Supreme Court's decision earlier that year in 

lv!assachuset/s v. EPA, 

Draft legislative language proposed in mid-December, 2007 that sought to prevent EPA 

from setting more stringent greenhouse gas t<lilpipe standards lor cars and light trucks 

than the fuel economy standards that would be set by the Department of Transportation. 

A press release issued on the date EISA was signed into law acknowledging that the new 

law did not include any provisions that impacted EPA ·s or California's authority to set 

greenhouse gas tailpipe standards for cars and light trucks. 

Your Agencies· proposals that assert that California's Clean Air Act authority is preempted by 

EPCA (as amended by ElSA) arc starkly contradicted by the body of case law interpreting the 

interplay between EPCA, Clean Air Act5

, State waivers under the Clean Air Act, and the legislative 

history of both acts. That history affirms that EPCA's preemption provisions simply do not apply 

to pollution standards applicable to new motor vehicles, including greenhouse gas pollution 

standards, set by EPA or by Califon1ia acting pursuant to a Clean Air Act waiver. The documents 

we arc transmitting today also make clear that Congress \:Onsidcrcd, and ultimately rejected, 

lnnguagc that would have eliminated or otherwise constrained this authority, even when faced with 

two Presidential veto threats. We urge you to abandon your legally llawed proposal, and instead 

support eftorts to identify and finalize a consensus approach to fuel economy and greenhouse gas 

tailpipe standards that has the supporL and preserves the authority of. the State of California. 

Thank you very much for your attention to this important matter. If you have any questions or 

conccms, please haYc your staff contact Michal Freed hoff of the Environment and Public Works 

Committee staff, at 202-224-8832, Trevor Higgins of Senator Feinstein's staft~ at 202-224-3841 

or Morgan Gray of Senator Markey's staff. at 202-224-2742. 

With best personal regards. we are. 

Sincerely yours, 

&-

te 

--~~~ Feinstein 

United States Senator 

United States Senator 

5 See for example Massachusells ''·EPA., 549 U.S. 497,532 (2007), which stated that the two statutory directives 

"may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid 

inconsistency". and Central Va/iev Chrysler-Jeep. Inc, v. Goldsl<ne, 529 F. Supp. 2d 1151, 1177 IE. D. CaL 2007); 

Green .tfoum,?in Chrysi<'r f'lymouth Dodge .kep \'. ( 'romhie, 508 F. Supp. 2d 295 (ll. Vt. 2007), which both held 

th0:11 EPCA does not pre~mpt California's standJrds. 
439 


35314.397

From: 

Sent: 

To: 

Subject: 

Attachments: 

Importance: 

Here you go, will call in a few ... 

·----Original Message-----

••••• <4liiiiiiiiiP@ P a \to nBogg s.com > 

Tuesday, November 20. 2007 4:38 PM 

Freedhoff, Mkha! 

GHG Amendment 

WASHINGTON-#4911620-v16-GHG Rulemaking Nov 20.00Co.DOC 

High 

From: Freed hoff, Michal [mailto:Michai.Freedhoff@mail.house.gov] 

Sent: Tuesday, November 20, 2007 4:37 PM 

To:·--· 

Subject; RE: this dear colleague just went out 

Great Talk soon then. 

Michal IIana Freedhoff, Ph.D. 

Polley Director 

Office of Representative Edward J. Markey (D-MA) 

2108 Rayburn House Office Building 

Washington, DC 20S1S 

202-22S-2836 

-----Original Message-----

From: [mailto~@PattonBoggs.com] 

Sent: Tuesday, November 20, 2007 4:35PM 

To: Freed hoff, Michal 

Subject: Re: this dear colleague just went out 

You will have it momentarily and a call from me as well. 

lll!lla 

Sent from my BlackBerry Wireless Handheld 

Original Message-----

from; Freedhoff, Michal <Michal.Freedhoff@mail.house.gov> 

To:··-~~~~ Sent: Tue Nov 20 16:33:22 2007 

Subject: RE: this dear colleague just went out 

Happy to do so, I talk to him frequently. But it would help to have language .... 
440 


35314.398

Michal IIana Freedhoff, Ph.D. 

Policy Director 

Office of Representative Edward J. M~~y (D-MA) 

2108 Rayburn House Office Building 

Washington, DC 2051S 

202-22S-2836 

-----Original Message--~--

From: [mailto-@PattonBoggs.com] 

Sent: Tuesday, November 20, 2007 3:14 PM 

To: Freed hoff, Michal 

Subject: Re: this dear colleague just went out 

Please tlk to Matt Nelson on GHG rulemaking we talked about, please. 

We are finishing with him now. 

-

Sent from my BlackBerry Wireless Handheld 

-----Original Message-~---

From: Freedhoff, Michal <Michai.Freedhoff@mail.house.gov> 

Sent: Tue Nov 20 14:42:37 2007 

Subject: thls dear colleague just went out 

November 20, 2007 

STUDY: CARS & TRUCKS SAME SIZE, SAME FUEL ECONOMY 

Support the Senate Fuel Economy Provisions 

Dear' Colleague: 

Recently, you may have heard from certain auto industry lobbyists that eliminating the 'light-truck loophole,' which 

allows cars used for transporting people to be classified as trucks for purposes of fuel economy standards, "is a recipe 

for disaster. 11 The basis forth is assertion is that cars and trucks that are the same size should not have to meet the same 

fuel economy standard because of the different performance requirements of SUVs, minivans and pickups trucks. 

Well guess what? It turns out that cars and trucks that are the same size ALREADY have the same fuel economy. 

Analysis rec~'tltly cb'nducted by Meszler Engineering Services plotted the size of EVERY SINGLE 2007 car and light truck 

against its fuel economy, Result? The "average" car fuel economy differs from the "average!! truck fuel economy by only 

1 mile per gallon- for every vehicle size, 

The complaint raised by the Detroit companies is yet another red herring unsupported in any way by the facts. Don1

t be 

fooled. Support the Senate fuel economy language. For a copy of the study or more information1 please have your staff 

contact Michal Freed hoff (Rep. 
441 


35314.399

\.\' '· 

November 20, 2007 

DRAFT i\MENDZv!ENT 

On page 396, strike lines 1 through 4 and insert: 

SEC. 519. GREENHOUSE GAS VEHICLE EMISSIONS REGULATIONS. 

Chapter 329 of title 49, United States Code, is <>mended by adding a new section 32920 as 

follows: 

"§ 32920. Greenhouse Gas Vehicle Emissions Regulations. 

"(a) TN GENERAL--Notwithstanding any other provision of law or regulation, should the 

Administrator of the Environmental Protection Agency (hereinafter "the Administrator") 

promulgate regulations applicable to emissions of greenhouse gases from automobiles, the 

Administrator shall promulgate re1-,>ulations subject to the requirements set forth in subsections (b) 

and (c), and (d). Subject to subsections (b), (c), and (d), the Administrator may amend the 

regulations subsequent to their initial promulgation. 

"(b) CONSULT:\TIONS.--ln promulgating or amending regulations under this section, the 

t\dministt:ator shall consult with the Sccret"f)' of Transportation Q1ereinaftcr "the Secretary"). 

Before issuing a notice proposing ro prescribe or amend regulations under this section, the 

Administrator shall give the Secretary at least 30 days from the receipt of the notice during which 

the Secretary may, if the Secretary concludes the proposed regulations would conflict with fuel 

economy standards established by the Secretary under section .32902 or vehicle safety standards 

established by the Secretary under section 30111 of this title, provide written comments to the 

Administrator regarding those concerns. To t.he cxtenr that the Administrator does not revise a 

proposed regulation to take into account the Secretary's comments on any adYersc impact of the 

standard, the Administrator shall include those comments in the notice. Before taking final action on 

a regulation under this section, the Administrator shall provide the Secretary a reasonable time to 

comment. 

"(c) MAXIMUM FEASIBLE REDUCT!ONS.--,\ny regulations promulgated or amended 

pursuant to subsection (a) shall result in standards to achieve the maximum feasible reduction of 

emissions through the usc of technology that is or will be al'ailable for the model year to which the 

standards apply. Such standards shall be based on vehicle attributes related to fuel economy and 

emissions reductions. In determining the maximum feasible reduction of emissions pursuant to this 

subsection, the 1\dministrator shall consider technological feasibility, economic practicability 

(including maintaining consumer choice and employment in the domestic automobile industry), the 

impact of the regulations on fuel economy standards established by the Secretary under section 

32902, and the preservation or enhancement of vehicle safety. 

"(d) LEAD TIME i\ND STt\BIUTY.-··Any standard promulgated or amended under 

subsection (a) shall---
442 


35314.400

"(1) take effect after such period as the J\dministrator tinds necessary to pennit the 

development and application of new technology, giving appropriate consideration to the cost 

of compliance within such period; and 

"(:!) apply for a period of no less than 2 model years beginning no earlier than the 

model year commencing 4 years after such revised standard is promulgated; /J!Vvided, That an 

amendment that reduces the stringency of a standard may rake effect as early as immccliately. 

"(e) STATE AND POLITIC.\L Sl'IIVIS!ON M;T01\fOIIlLES.--A State ur a puliti<:al 

subdivision of a State may prescribe requirements for greenhouse gas emissions for automobiles 

obtained for its O\vn usc. 

"(f) DEF!N!TION.--The term 'greenhouse gas' means carbon dioxide, methane, nitrous 

oxide, hydro fluorocarbons, pcrfluorocarbons, and sulfur hexafluoride.". 
443 


35314.401

From: 

Sent: 

To: 

Subject: 

411111111111•• -<-@PattonBoggs,com> 

Wednesday, November 28, 2007 8:34 PM 

Freedhoff, Michal 

Language· GHG Rulemaking 

Here you go: Its my understanding that there may be another iteration that may have been passed along, though not 

from us. 

Chapter 329 of title 49, United States Code, is amended by adding a new section 32920 as follows: 

"§ 32920. Greenhouse Gas Vehicle Emissions Regulations. 

"IN GtNERAL~~Notwithstanding any other provision of law or regulation, should the Administrator of the Environmenta 

Protection Agency (hereinafter 11 the Administrator") promulgate regulations applicable to emissions of greenhouse 

gases from automobiles, the Administrator shall ensure that such regulations are fully consistent with Section 32902 of 

this title and any standards or regulations promulgated or enforced thereunder. 

Sent from my BlackBerry Wireless Handheld 

DISCLAIMER: 

This e~mai! message contains confidential, privileged information intended solely for the addressee, Please do not read, 

copy, or disseminate it unless you are the addressee. If you have received it in error, please call us (collect) at (202) 457· 

6000 and ask to speak with the message sender. Also, we would appreciate your forwarding the message back to us and 

deleting lt from your system. Thank you. 

This e~mail and all other electronic {including voice) communications from the sender1

S firm are for informational 

purposes only. No such communication is intended by the sender to constitute either an electronic record or an 

electronic signature, or to constitute any agreement by the sender to conduct a transaction by electronic means. Any 

such intention or agreement is hereby expressly disclaimed unless otherwise specifically indicated. To learn more about 

our firm, please visit our website at http:/ /www.pattonboggs.com. 
444 


35314.402

From; 

Sent: 

To: 

Subject: 

Importance: 

>flit 

·····I<~PattonBoggs.com> 

Thursday, November 29,2007 12:17 PM 

Freedhoff, Michal 

GHG Language 

High 

> * "'** ** *** ** **"'* **"" ..... * **** ** ***"" * * "'* *** * *"'* 

> 

>What was proffered: 

>Chapter 329 of title 49, United States Code, is amended by adding a 

> new section 32920 as follows: 

> 

> tl> § 32920. Greenhouse Gas Vehicle Emissions Regulations. 

> 

> "> IN GENERAL--Notwithstanding any other provision of law or 

>regulation, should the Administrator of the Environmental Protection 

>Agency (hereinafter>"> the Administrator>">) promulgate regulations applicable to emissions of greenhouse gases 

from automobiles, the Administrator shall ensure that such regulations are fully consistent with Section 32902 of this 

title and any standards or regulations promulgated or enforced thereunder. 

>What we (Patton Boggs) propose as compromise: 

> u§ 32920. Greenhouse Gas Vehicle Emissions Regulations. 

> "Ia) IN GENERAL--Notwithstanding any other provision of law or 

>regulation, should the Administrator of the Environmental Protection Agency promulgate regulations applicable to 

emissions of greenhouse gases from automobiles, the Administrator shall consider the impact of the regulations on fuel 

economy standards established by the Secretary under Chapter 329 and any regulations promulgated or enforced 

thereunder." 

> "lb) STATE AND POLITICAL SUB VISION AUTOMOBILES.--A State or a political subdivision of a State may prescribe 

requirements for greenhouse gas emissions for automobiles obtained for its own use. 

>"(c) DEFINITION.--The term 1

greenhouse gas' means carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, 

perfluorocarbons, and sulfur hexafluoride. 

>"(d) SAVINGS CLAUSE.--Nothing in this title shall be construed to diminish existing authority of any State or political 

subdivision thereof under section 209 of the Clean Air Act (42 USC 7543).". 

DISCLAIMER: 

This e-mail message contains confidential, privileged information intended solely for the addressee. Please do not read, 

copy, or disseminate it unless you are the addressee. !fyou have received it in error, please call us {collect) at {202) 457-
445 


35314.403

FOR IM!\1EDIATF: RELF:ASE: 

Friday, November 30, 2007 

Contact: Scott Gerber (Feinstein) 202/224-9629 

John Gentzel (Snowe} 202-224-8667 

Jenilee Keefe (Inouye) 202-224-0411 

Landmark Bipartisan Agreement to Increase 

Fuel Economy Standards Reached 

-Agreement would raise fleet-wide fuel economy standards to 35 mpg by 2020-

Washington, DC- A landmark, bipartisan agreement on increasing fuel economy 

standards has been reached by key Senate and House negotiators. 

"The House and Senate have reached an historic agreement that achieves the first 

major mileage efficiency increase in two decades. It will increase the mileage of the 

overall fleet of vehicles by 10 miles per gallon over 10 years," Senator Feinstein said. "We 

have been able to reach an agreement with the House that achieves the goal of the 10-in-10 

Fuel Economy Act, without affecting the integrity of the bill. 

"It is a major milestone and the first concrete legislation to address global warming. 

Transportation produces about a third of global warming gases in the United States, and 

this bill addresses cars, light trucks, SUVs, and medium and heavy trucks- which account 

for the vast majority of transportation emissions. The standards are estimated to remove 

192 million metric tons of global warming pollution in 2020, a savings that will continue to 

increase in subsequent years. 

"This agreement is the culmination of years of hard work- and so many people 

contributed to this effort. I'd like to thank the cosponsors ofthc Feinstein-Snowe 10-in10 Fuel Economy Act: Senators Inouye and Stevens, Boxer, Cantwell, Collins, Durbin, 

Kerry, Lauten berg, Lieberman, Menendez, Bill Nelson, Akaka, Cardin, Dodd, Leahy, 

Jack Reed, Sanders. I'd also like to thank Senators Alexander, Carper, Corker, Craig, 

Dole, Dorgan, Hagel, Klobuchar, Lott, Sununu, and Chairman Markey for their 

contributions to this effort. 

Special thanks go to Inouye and Stevens who showed tremendous leadership as 

Chairman and Vice-Chairman of the Commerce Committee; Speaker Pelosi, who was 

determined from the very beginning to get this done; Chairman Dingell for the 

agreement; and all the others who have worked on this issue over the years. 

"America's energy policy has been dormant for far too long, and tonight's 

agreement is a significant step in reviving our nation's commitment to America's 
446 


35314.404

environment and security," Senator Snowc said. "Improving our fuel efficiency by 40 

percent will do immeasurable benefits to mitigating our addiction to oil, and I strongly 

urge the President and my colleagues in the Senate to expeditiously pass this historic 

legislation." 

"Increasing fuel economy standards places the country on a bright path toward 

reducing our nation's dependence on foreign oil, protecting the environment, and helping 

consumers deal with rising gas prices," Senator Inouye said. 

The agreed-upon legislation stems from legislation introduced earlier this year by 

Senators Dianne Feinstein (D-Calif.) and Olympia Snowe (R-Mainc)- the "Ten in Ten Fuel 

Economy Act." 

By 2025, the fuel economy increases for cars and light-duty trucks would: 

• Save 1.1 million barrels of oil saved per year, or nearly half the oil imported by 

the United States today from the Persian Gulf. (Union of Concerned Scientists) 

• Remove 192 million metric tons of global warming pollution in 2020, a savings 

that will continue to increase in subsequent years. (Union of Concerned Scientists) 

• Save American families $700- $1000 per year at the pump, depending on 

driving habits, (based on a $3.00 gas price). By 2020, the standards are estimated 

to save consumers $22 billion in net consumer savings in that year alone, a savings 

that will continue to increase in subsequent years. 

Summary of the Agreement 

10-in-10: Increases Fuel Economy Standards for All Vehicles 

• Beginning in 2011, the National Highway Traffic Safety Administration (NHTSA) will 

annually increase the nationwide average fleet fuel economy standards for cars and light 

trucks to achieve a standard of35 miles per gallon (mpg) by 2020. This will be the first 

statutory fuel economy increase for passenger cars since 1975. 

• For the years 2021-2030, car and light truck fuel economy standards will increase at the 

maximum feasible rate. 

• For the first time, NI ITSA will establish a program for medium and heavy duty trucks 

under which fuel economy standards will improve at the maximum feasible rate. 
447 


35314.405

• NHTSA will establish a separate fuel economy standard for work trucks that will increase 

their fuel efficiency at the maximum feasible rate. 

Ensures Fuel Economy Standards Will Be Reached 

• The compromise eliminates the "off-ramp," which ensures that NHTSA will mandate a 

fuel economy standard of35 mpg by 2020. 

• The compromise eliminates the low volume manufacturer exception, which would have 

allowed any company that sells less than approximately 64,000 cars and trucks a year in 

the United States to be exempt from the 35 mpg by 2020 fuel economy standard. 

La hor Protections 

e The compromise inserts domestic car production rules intended to encourage continued 

production of small cars in the United States. 

Manufacturer Flexibility 

• The compromise phases out the flexible fuel vehicle (FFV) credit on the following 

schedule: 

2011: 1.2 mpg 

2012: 1.2 mpg 

2013: 1.2 mpg 

2014: 1.2 mpg 

2015: l.O mpg 

2016: 0.8 mpg 

2017: 0.6 mpg 

2018: 0.4 mpg 

2019: 0.2 mpg 

2020: 0 mpg 

• NHTSA must tailor attainable fuel economy standards based on the physical attributes of 

particular models of cars and light trucks. Cars and light trucks will be accounted for on a 

separate basis. 

• The compromise gives manufacturers the ability to trade extra fuel economy credits 

earned between the passenger car and light truck fleets when the perfonnance of either 

fleet exceeds the standards. The amount of credit traded would be limited. 
448 


35314.406

• Automakers will have the flexibility to borrow against future fuel economy gains up to 3 

years in the future and to carry forward earned fuel economy credits earned for up to 5 

years. 

Improved Consumer Information 

• Automakers will be required to provide improved fuel economy and emissions 

information to consumers. A label will be prominently placed on each vehicle that 

includes information on the fuel economy of the automobile and the greenhouse gas and 

other emissions consequences of operating the automobile over its likely useful life. 

o The deal also includes improved consumer information on tire fuel efficiency, safety, and 

durability, and increased consumer awareness of flexible fuel automobiles. 

### 
449 


35314.407

EXECUTIVE OFFICE OF THE PRESIDENT 

OFFICE OF MANAGEMENT AND BUDGET 

WASHINGTON, O.C. 20503 

December 6, 2007 

(House) 

STATEMENT OF ADMINISTRATION POLICY 

H.R. 6 Energy Independence and Security Act of2007 

(Rep. Rahal! (D) WV and 198 cosponsors) 

In his 2007 State of the Union Address, President Bush announced the "Twenty in Ten" 

Initiative, a plan to reduce projected gasoline usage in the United States by 20 percent in 10 

years. "Twenty in Ten" called on Congress to pass legislation that would: (l) establish an 

Alternative Fuel Standard requiring the equivalent of35 billion gallons of alternative fuels by 

2017; and (2) provide the Department of Transportation (DOT) authority to increase fuel 

economy standards for cars under a reformed structure (CAFE reform) based on sound science, 

safety, and cost-benefit analysis. 

The Administration appreciates that Congress, in response to the President's call, has produced a 

bill including aspects of the "Twenty in Ten" initiative. Unfortunately, the bill contains several 

highly objectionable provisions that would impose higher costs on American taxpayers, 

electricity consumers, and businesses. Specifically, the bill raises taxes in a way that will 

increase energy costs facing consumers. It would also impose a national renewable electricity 

standard that would ignore the specific energy and economic needs of individual States. !fH.R. 

6 were presented to the ?resident in its current form, his senior advisors would recommend that 

he veto the bit I. 

The Administration's principal objections to H.R. 6 are described below. 

Fuel Economy Standards (CAFE): The Administration supports significant increases in fuel 

economy standards, and has proposed such increases in the "Twenty in Ten" initiative; it soon 

will propose such increases by administrative rulemaking. Unfortunately, H.R. 6 leaves 

ambiguous the role of the Environmental Protection Agency (EPA) in regulating vehicle fuel 

economy, and as a result would likely create substantial regulatory uncertainty, confusion, and 

duplication ofcff<)rts. The bill could also delay effective implementation of new fuel economy 

requirements due to inevitable litigation. The double regulation that would result trom this 

failure to clearly identify the relative roles of EPA and DOT in national fuel economy 

regulations could greatly undermine our shared objective of rapidly reducing gasoline 

consumption. The bill needs to clarit)' one agency as the sole entity, after consultation with 

other affected agencies, to be responsible for a single national regulatory standard for both ft1el 

economy and tailpipe greenhouse gas emissions from vehicles. 

Alternative/Renewable Fuel Standards fAFS/RFS): The "Twenty in Ten" initiative contained an 

ambitious alternative fuel standard to displace 35 billion gallons of gasoline consumption by 

2017. H.R. 6's prescriptions regarding the greenhouse gas content of approved fuels lack 

flexibility, and would interfere with the bill's ability to facilitate alternative fuel generation. The 
450 


35314.408

bill would fragment the market by picking and choosing among fuel types instead of relying on 

market forces to develop new, more advanced technologies and the next generation of fuels with 

lower greenhouse gas emissions. Additionally. a new alternative fuel standard should include an 

effective safety valve, should be technology neutral, and should rely on market innovation 

instead of excessive statutory prescription. The safety valve included in the bill is inadequate to 

its purpose. Whereas a properly functioning safety valve would limit price distortions arising 

from an alternative tuel mandate, the safety valve in H.R. 6 would be too limited to function 

effectively, being triggered only in the event that a single fuel (cellulosic ethanol) fails to meet 

prescribed production targets, Finally, the AFS!RFS programs established by this legislation 

must clearly be granted exclusivity over all other Federal, State, and local laws and regulations 

relating to alternative fuels. 

Renewable Electricity Standards: The bill would impose a national renewable electricity 

standard (RES) for power generation, which the Administration previously has stated would be 

strongly opposed. A one-size-fits-all Federal RES would result in higher electricity costs for 

consumers in areas where renewable resources are less available and could place new strains on 

electricity reliability. Such a Federal RES mandate ignores the specific energy and economic 

needs of individual States. There are significant regional differences in availability, amount, 

and types of renewable energy resources, resulting in different regions of the country relying on 

different fuel mixes for their electric generation needs. As a result, standards are best left to the 

States' discretion. Efforts created by and tailored to individual States have led to a significant 

increase in lower-carbon power generation nationwide, including a four-fold increase in wind 

power from 2000 to 2006. The bill arbitrarily chooses certain technologies with low-carbon 

emission profiles, while excluding many existing and emerging technologies that perform 

similarly. 'T'oday, almost 30 States have portfolio standards. A Federal RES that is unfair in its 

applications and prescriptive in its definition will hurt consumers and undercut decisions States 

have made and arc making. 

Taxes: The Administration strongly opposes raising taxes in a way that will lead to higher 

energy costs to U.S. consumers and businesses. Furthermore, the Administration strongly 

opposes using the Federal tax code to single out specific industries for punitive treatment. For 

example, repealing the manufacturing deduction for certain oil and gas companies is a targeted 

tax increase that puts U.S. firms at a disadvantage relative to their foreign competitors. Changes 

to the foreign tax credit rules related to foreign oil and gas extraction income and foreign oilrelated income will also disadvantage US-based companies by reducing their ability to compete 

for investments in foreign energy-related projects, 

As indicated in previous communications, the Administration supports an extension of the 

Secure Rural Schools program provided it is appropriately offset with spending reductions and 

that payments are phased out over time, which the provision in this bill docs not achieve. The 

Administration also opposes shifting the Payment in Lieu of Taxes (PILT) program from 

discretionary to mandatory spending. 

H.R. 6 also includes expensive and highly inefficient tax credit bonds for renewable energy 

production and conservation efforts. Current law already provides sufficient Federal assistance to 

encourage these e!lorts. 

2 
451 


35314.409

Davis-Bacon: H.R. 6 is contrary to the Administration's long-standing policy of opposing any 

statutory attempt to expand or contract the applicability of Davis-Bacon prevailing wage 

requirements. One example, among others, is Section 136, which would impose a new DavisBacon requirement for loans made under the Advanced Technology Vehicles Manufacturing 

Incentive Program. 

High Performance Federal Buildings: The requirements of this subtitle are less flexible, more 

limiting, and inconsistent with the timelines of the High Performance Buildings goals of 

Presidential Executive Order 13423. E.O. 13423 includes additional building attributes beyond 

the energy efficiency and water consumption goals of the subtitle. These additional elements of 

the E.O., such as daylighting, building materials, and indoor air quality, are important to creating 

truly sustainable high performance buildings. E.O. 13423 also accounts for possible extenuating 

circumstances that keep an agency from meeting a goal in a particular year by allowing them to 

make it up in subsequent years to still achieve the overall goal of 30 percent reduction of energy 

intensity by 2015. 

Additional Concerns: The Administration strongly opposes unnecessary and duplicative new 

Federal energy efficiency programs. These include provisions that would establish unnecessary 

new bureaucracies and impose unrealistic deadlines for promulgation of appliance standards, 

which conflict with existing court orders. Also highly objectionable are provisions that would 

establish unnecessary and duplicative workforce training programs and provisions that would 

unnecessarily increase taxpayer-funded subsidies for small business programs. Among the most 

problematic of these is a provision that would create a renewable fuel investment company 

program, providing subsidized venture capital where government assistance is not needed, in a 

manner that is likely to result in high taxpayer cost The Administration strongly opposes 

provisions that are inconsistent with Federal credit policy, which would increase risk and 

displace private sector credit markets at the taxpayers' expense. Finally, the bill contains several 

provisions that would raise constitutional concerns. 

* * * * * 

3 
452 


35314.410

from: Schafer, Jessica 

Sent: Friday, December 07, 2007 4:03 PM 

Subject: MARKEY: President Threatens to Undo Fuel Economy Deal 

FOR IMMEDIATE RELEASE 

DECEMBER 6, 2007 

http://markev.house.gov 

CONTACT: JESSICA SCHAFER (:vfARKEY) 

202-225-2836 OR 202-812-8193 

EBEi'i BURNHAM-SNYDER (SELECT CMTE.) 

202-225-4081 OR 202-494-4486 

MARKEY: PRESIDENT THREATENS TO UNDO 

FUEL ECONOMY DEAL 

White House Wants to Reverse Supreme Court's Massachusetts v. h'l'A Gloha/ Warming 

Tailpipe Decision 

WASHINGTON, D.C. -Today, Representative Edward J. Markey (D-MA), chairman of the Select Committee 

on Energy Independence and Global Warming and chieft!ouse proponent of raising fuel economy standards to 

35 miles per gallon, deplored the White House's Statement of Administration Policy on the Energy Bill. 'll1e 

White House threatened to veto the bill unless Congress reverses the landmark Supreme Court decision in 

Massachusetts v. EPA that validated the authority of the EPA to cut heat-trapping emissions from cars, trucks 

and SUVs. Such a move would also imperil the efforts of 17 states, including Massachusetts, that have used 

their Clean Air Act authority to establish clean car programs. 

"As delegates from almost 200 nations meet in Bali to lay the groundwork for a treaty to combat global 

warming, and an energy bill is now on the table that would raise fuel economy standards for America's 

vehicles, President Bush has once again shown his utter disregard for the environment, our economy, and 

the health of our planet," said Rep. Markey. "By asking Congress to undo the landmark Supreme Court 

decision in Massachusetts v. EPA, the President has effectively thumbed his nose at the rest of the world. 

"As every other country in the world debates how best to combat the clear and present danger of rising 

carbon dioxide emissions, the Bush Administration is still trying to make up its mind about whether 

carbon dioxide emissions pose a danger at all." 
453 


35314.411

On April2, 2007, the Supreme Court determined in Massachusetts v. EPA that EPA has the authority under the 

Clean Air Act to regulate carbon dioxide (C02) emissions from motor vehicles, and that it must do so if it 

determined that these emissions endangered public health or welfare. 

In response to the Supreme Court ruling, the President issued an Executive Order on May 14, 2007, directing 

EPA to coordinate with the Department of Transportation and other agencies in developing any rule covering 

greenhouse gas emissions from motor vehicles, and EPA staff have been working hard to conduct the necessary 

tcc!mical analysis and craft a rule by the end of this year. 

While the Supreme Court decision said that there was no conflict associated with two agencies having authority 

over motor vehicle regulations, the President is now threatening to veto the entire energy bill on this question--· 

one that has already been asked and answered by the Supreme Court, and one that would also effectively throw 

out all of the work the President ordered the EPA to do in May. 

The Energy Bill passed by the House of Representatives yesterday directs the Depattment of Transportation to 

set fuel economy standards for cars and light trucks of at least 35 miles per gallon by 2020. Despite efforts by 

auto industry supporters to reverse the April Supreme Court decision, the House chose to preserve EPA's full 

authority in the bill it passed yesterday. 

The White House's December 6, 2007 Statement of Administration Policy on the Energy Bill states that the 

energy bill "needs to clarify one agency as the sole entity, after consultation with other affected agencies, to be 

responsible for a single national regulatory standard for both fuel economy and tailpipe greenhouse gas 

emissions from vehicles.'' 

"The Bush Administration is saying to Congress, 'Please take away the authority I have to cut emissions, 

so I don't have to,'" concluded Markey. "It follows years of legal wrangling by the White House to avoid 

any decisive action on global warming, and now they are willing to take down the entire energy bill with 

their climate inaction scheme." 

........................ 

........................ 

Jessica Schafer 

Communications Director 

Congressman Ed Markey [MA·07) 

202.225.2836 ofc 

202.812.8193 cell 

# # # 
454 


35314.412

December 7, 2007 

TO THE MEMBERS OF THE UNITED STATES SENATE: 

The complexity and broad scope of the energy legislation now under consideration raises several 

important issues with regard to overlapping regulatory authorities under the Clean Air Act. These issues 

must be addressed now in order to prevent the unintended triggering of an expansive and costly stationary 

source control program, 

Any effort to establish a low-carhon fuel standard or to control carbon or any other greenhouse gas 

emissions from vehicles or fuels under the Clean Air Act could cause these substances to be regarded as 

pollutants subject to regulation more broadly under the Act. Under the provisions of the Act, this in turn 

would trigger a pre-construction permit program that will affect hundreds of thousands of very small 

stationary sources that have hitherto not been subject to requirements under the Act. Initial estimates 

suggest that the majority of small, mid-sized, and large manufacturing businesses-over 300,000 facilities~ 

would potentially become regulated stationary sources. In addition, hundreds of thousands of commercial 

buildings as well as over a hundred thousand fann operations could be impacted, 

The expected transaction and administrative costs of the program for individual sources, states, and 

the federal government would be unprecedented. Thousands of determinations as to whether the Clean Air 

Act's regulatory requirements are triggered would be required. Given the potential number ofpennits and the 

resulting delay in permit issuance, the construction and modification of plants would likely come to a 

standstill, causing significant ham1 to the economy. Even the ability to produce renewable fuels could be 

hampered through the imposition of lengthy pre-construction permitting requirements. 

To address this problem and the broader problem of conflicting and overlapping regulatory 

authorities, the energy bill now under consideration must do two things, First, the energy legislation must 

contain explicit language clarifying that nothing in this bill can be construed as triggering the regulation of 

C02 or any other greenhouse gas under the Clean Air Act. This will prevent the unintended and costly 

regulatory program described above from being triggered. 

Second, the kgislation must addn ... ·ss the pokntial ror duplkating and conllkting regulatory 

requirements by clarifying that carbon dio:ddt= and other greenhouse gases cannot he regulated under l'itlc I I 

of the Clean Air Act Title ll nfthe Clean Air Act addrcs:-~cs emissions from fuels and vehicle~ "hich arc the 

~am~ sources that are subjr;!ct to reyuiremtnts under thl;' ~ncrg) bill. Directing the National llighway Trartic 

Safety Administration to estahlish new fud c~OI1l)my ~tcmdards could be undermined iflho:)e same ~ourccs 

art:" required to nchieve conl1icting standards under the Clean i\ir Act (liven the c\.traordinar) challenge 

industry may be asked lo addres;-;. it is only t:iir that there he nne regulator} body and one set of regulator) 

requirements. Creating duplicative and potentially contlicting r~gulatory n:quiremcnts wuuid almo~1 

cenainly delay the vel') technology advances sought h) the legislalion. The vehicle efficiency improvement 

standard and the alternative fuels provisions in the President Bush's energy proposals and in the energy 

legislation are preferred approaches to achieving substantial reductions in greenhouse gas emissions while 

reducing U,S. reliance on foreign energy sources. 

Sincerely, 

American Forest & Paper Association 

American Gas Association 

Association of American Railroads 

National Association of Manufacturers 

National Mining Association 

National Petrochemical and Refiners Association 

U.S. Chamber of Commerce 
455 


35314.413

From: 

Sent: 

To: 

Subject: 

Importance: 

Frank O'Donnell <deanairfrank@cleanairwatch.org> 

Wednesday, December 12, 2007 4:29PM 

'Frank O'Donnell' 

Car industry makes its move! -- Sen. Levin floats energy language to kneecap EPA, 

California and other states 

High 

For the past week, many of you have asked me, "what the heck is going on with all these efforts" (the White House, the 

car companies, the Chamber of Commerce, etc.) with regard to the energy bill and possible "coordination" of the efforts of 

EPA and DOT 

Wei! now the truth (at least part of it) can be told. 

All these letters apparently were an attempt to soften up the Senate leadership -the airstrikes before the ground 

invasion. But now the ground attack is on. 

Language undoubtedly draited by car company lobbyists is now floating around the US Senate. (See below.) It 

reportedly is being shopped not just by car companies, but by senators including Michigan's Carl Levin. (See story 

below.) We understand that the staff of Senator Ted Stevens of Alaska is making similar noises. 

The language would require that any move made by the US EPA that could "affect the fue! economy of new motor vehJde 

engines or new motor vehicle engines" would have to be ··consistent" with fuel economy requirements set by the federai 

Department of Transportation. 

In other words, this is a bid to kneecap EPA and states led by California that seek to enforce tougher 

greenhouse gas standards for motor vehicles. EPA would become subordinate to the Transportation 

Department And states like California would be left out in the cold 

The timing is most ironic, given the federal court declsion today in California which shot down the very arguments being 

made by the car companies and their proponents in the Senate. 

Look for California and other states to start pushing back agamst this ground attack 

On page 21, insert alter line 4, at the end of section 102 (oftbe soon to be filed Reid substitute): 

"(d) APPLICATION WITH CLEAN AIR ACT. Chapter 329 of title 49, United States Code, is amended by 

inserting after section 32919 the following: 

"Section 32920. Consistent Standards. 

"Notwithstanding any other provision of Jaw or regulation, should the Administrator of the Environmental 

Protection Agency promulgate carbon dioxide emissions regulations under section 202 of the Clean Air Act (42 

U.S. C. 7521) that a !Teet the fuel economy of new motor vehicles or new motor vehicle engines, the 

Administrator shall adopt regulations that are fully consistent with chapter 329 of this title and any standards or 

regulations promulgated or enforced thereunder.". 

"(e) RULE OF CONSTRUCTION-- Nothing in the amendments made by this title to chapter 329 of title 49 

shall be construed to conflict v.ith the authority provided by section 209 of the Clean Air Act (42 U.S.C. 7543)," 

1 
456 


35314.414

Levin Presses CAFE Authority in Energy Debate 

By: Geof Koss 

CongressNow Staff 

Wednesday, December 12,2007 2:23PM 

Sen. Carl Levin (0-Mich.) is continuing to press for the insertion of language in the Senate energy bill that 

would clarify the role of two key federal agencies in setting corporate average fuel economy, or CAFE, 

standards. 

''I'm trying to clarify it to make sure there's no conflict," Levin told reporters this afternoon, of the role of the 

Environmental Protection Agency and the National Highway Transportation Safety Administration, or NHTSA. 

The Senate is poised to pass a Jleetwide CAFE increase of 35 miles per gallon -the first such increase in 30 

years - in the Senate energy bill. 

llowever, lawmakers whose home states are heavy in automobile manufacturing, including Levin and House 

Energy and Commerce Committee Chairman John Dingcll (0-Mich.), as well as the White l louse, have raised 

concerns that future EPA rules regulating greenhouse gas emissions from automobiles could cause a conflict 

with NHTSA, which has historically overseen the CAFE program. 

"We've got to try to make it clear that what the EPA is authorized to do is consistent with what everyone agrees 

should be the number," Levin said of the 35 mpg mandate. 

The issue emerged after the Supreme Court earlier this year ruled that F.PA has authority under the federal 

Clean Air Act to regulate greenhouse gas emissions like carbon dioxide. 

That landmark ruling has been hacked by similar rulings in other federal courts. For instance, a federal judge in 

C\tlifomia today upheld that state's authority to regulate greenhouse gases under the Clean Air Act in a lawsuit 

brought by automakers. 

The rulings have sparked concerns by the auto industry that they will face con!licting federal CArE rules as 

EPA moves to control greenhouse gas emissions from auto tailpipes. 

Levin declined to say whether he would withhold support for the larger energy bill over the matter. "For me, it's 

an important issue,~> he said. 

The White House also raised the issue last week in a Statement of Administration Policy on the energy bill 

(H.lt 6). 

"Unfortunately, H.R. 6 leaves ambiguous the role of the Environmental Protection Agency in regulating vehicle 

fuel economy, and as a result would likely create substantial regulatory uncertainty, confusion, and duplication 

of efforts," the statement reads. 
457 


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. ...,.(''fR~!l/Dt+,.,. 

" '~ 

EXECUTIVE OFFICE OF THE PRESIDENT 

OFFICE OF MANAGEMENT AND BUDG!;OT 

WASHINGTON, D,C, 20503 

December 13, 2007 

(Senate) 

STATEMENT OF ADMINISTRATION POLICY 

H,R. 6- Energy Independence and Security Act of2007 (Reid Amendment) 

(Rep. Rahal! (D) WV and 198 cosponsors) 

The Administration opposes the Reid substitute amendment, which tails to correct many of the 

highly objectionable provisions identified in previously-issued Statements of Administration 

Policy on HK 6. lfH,R. 6 were presented to the President as modified by the Reid substitute 

amendment. his senior advisors would recommend that he veto the bill. 

The Administration strongly opposes the amendment's tax title, which would raise taxes in 

several ways that will increase energy costs facing consumers, More specifically, the 

Administration strongly opposes using the Federal tax code to single out specific industries for 

punitive treatment. Furthermore, the tax increases included in the Reid substitute amendment 

vastly exceed the amount necessary to offset the estimated revenue reductions arising from the 

bill's fuel economy provisions. The Administration compliments the Senate tor giving the 

Department of Transportation (DOT) the authority to establish a new CAI'E standard, which 

would both improve fuel economy and reduce tailpipe greenhouse gas emissions. The bill 

should clarify. however, that DOT should establish this single national regulatory standard. in 

consultation with the Environmental Protection Agency. and that neither agency should add 

additional layers of regulation. The Administration also supports an ambitious alternative fuel 

standard, which should include an eftcctive safety valve, should be technology neutral, and 

should rely on market innovation instead of statutory prescription. The proposed legislation, 

however, is excessively prescriptive and fails these tests, picking and choosing among fuel types, 

and failing to include an adequate safety valve, The Administration also retains several 

additional concerns previously outlined in the Statements of Administration Policy on the 

underlying bill. Congress should seize the current opportunity to enact bipartisan legislation to 

enhance American energy security and to achieve vital goals of the President's "Twenty in Ten" 

initiative proposed more than ten months ago. The Administration urges Congress to put 

political considerations aside, to repair the repeatedly noted problems with the energy bill, and to 

send the President legislation that he can sign, 

* * * * * 
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From: Energy&CommercePress 

Sent: Wednesday, December 19, 2007 7:36 PM 

Subject: Dingell on EPA decision 

NEWS RELEASE 

Committee on Energy and Commerce 

Rep. John D. Dingell, Chairman 

For immediate release: December 19, 2007 

Contact: Jodi Seth, 202-225-2927 

Dingell on EPA Decision 

Rep. John D. Ding ell, Chairman of the Committee on Energy and Commerce, made the following 

statement in response to EPA's decision regarding the California waiver: 

"EPA's decision raises serious and important public policy questions about the roles and 

responsibilities of different agencies at different levels of government. 

"For decades, this Committee has carefully examined these issues and we will continue to monitor 

the situation going forward. 

"The energy bill signed into law by the President today takes measurable and concrete steps to 

reduce greenhouse gas emissions and energy consumption. While the legislation did not explicitly 

address policy questions relevant to the EPA's decision, these and other matters must be raised as 

we craft comprehensive climate change legislation next year." 

-30-
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1!14/2019 The Trump admmistratmn said weaker fuel standards wmild save lives. EPA experts disagree. -The Washington Pnst 

The Truntp administration 

said weaker fuel standards 

would save lives. EPA experts 

disagree. 

An analysis by the National Highway 

Transportation Safety Administration, EPA experts 

said, used faulty assumptions. 

Traffic heads eastbound on Route 50 in Bowie, Md. Internal documents show the Environmental 

Protection Agency questioned the Trump administration's finding that freezing Obama-era 

mileage standards would make drivers safer. (Susan Walsh/AP} 

By Chris Mooney and Dino Grandoni 

August 15, 2018 

Staffers at the Environmental Protection Agency strongly 

criticized the logic behind a recent move to loosen future gas 

mileage rules for cars, at one point requesting that the EPA's 

name and logo be removed from a key regulatory report. 

Documents released Tuesday provide a window into a tense 

technical battle between experts at two separate government 
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1/14/2019 The Trump admtn1stra\10n sa1d weaker fuel standards would save lives EPA experts d1sagree - The Washington Pas: 

agencies- the EPA and the National Highway Traffic Safety 

Administration (NHTSA), an agency of the Transportation 

Department - and show that just months or even weeks before 

the rollout of a massive new policy proposal, the two agencies 

behind it had major disagreements. 

The contested policy represents one of the Trump 

administration's single largest reversals of an Obama-era move 

to fight climate change by cutting polluting emissions from 

vehicle tailpipes. New evidence of an internal dispute will 

probably strengthen the hand of California and other states 

suing over the proposed changes. If finalized, the freeze would 

translate to an average fleetwide fuel economy of about 37 miles 

per gallon, rather than rising to more than 51 mpg by 2025. 

1\DVCHT!SING 

"EPA's technical issues have not been addressed, and the 

analysis performed ... does not represent what EPA considers to 

be the best, or the most up-to-elate, information available to 

EPA," agency expert William Charm ley wrote in a critique less 

than two months before the proposal was released. 

http s !!WWVI' washing to npos!. com/en e rgy~enviro nmen t/2 0 18/08/1 5/tru m p-ad m1 n1stra!io n-s a1d-wea ker -fuel-standards-would-sa ve-hves-e p a-experts-dis a 2/8 
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1!14/2019 The Trump admmistratton Said weaker fuel standards would save lives. EPA experts disagree.- The Washmgton Post 

Several weeks later, Charm ley, the agency's central point person 

on the technical aspects of the car standards, sent the White 

House's Office of Management and Budget comments on a vast 

regulatory document weighing the costs and benefits of the 

changes. Charmley wanted EPA's name taken off the document, 

called a Preliminary Regulatory Impact Analysis or RIA. 

"This Preliminary RIA is a work product of DOT and NHTSA, 

and was not authored by EPA," wrote Charmley, adding: "EPA's 

name and logo should be removed from the DOT-NHTSA 

Preliminary Regulatory Impact Analysis document.'' 

The Post reported earlier this month that EPA career staff 

warned the agency's leaders just days before the proposal's 

release that the plan for cars and light trucks did not reflect their 

technical input. 

The docunwnt as ultimately released has both agencies' names on 

it. 

EPA experts also called "indefensible" some aspects of a program 

the transportation agency used and said they had corrected 

"erroneous and otherwise problematic elements of the model's 

logic and algorithms." 

Transportation Department officials countered that EPA was 

using a "developmental version" of the model and that the 

https '/ NJINW.was hmgtonpost. com/energy-e nwonmenU20 18/08/15/trum p- adm1 n 1strat1o n-s aid-weaker -fuel-stand ards-would-s ave-!ives-epa-experts-d IS a 3/8 
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1/14/20:9 The Trump admmJstrat10n sa1d weaker fuel stalldards wculd s.ave lives. EPA experts d1sagree ~The Washtngtor Post 

agency's changes relied on "strong assumptions" about the 

future size of the auto fleet and how much people will drive their 

cars in the future. 

The key disagreement centered on tbe transportation agency's 

claim that the Obama-era car rules would lead to more deaths. 

The agency contended upping car mileage per gallon would cost 

automakers money and make new cars several thousand dollars 

pricier - leading people to stay in older cars that perform less 

well in accidents, resulting in more auto fatalities. 

Ultimately, the transportation agency prevailed. The joint 

proposal EPA and NHTSA issued to freeze car fuel standards at 

2020 levels through 2026 endorsed the idea that the Obama 

standards would lead to more deaths. 

"It is now recognized that as the stringency of standards 

increases, so does the likelihood that higher stringency will 

increase on-road fatalities," said a joint notice of the proposed 

regulatory change released two weeks ago. "As it turns out, there 

is no such thing as a free lunch." 

But EPA's internal analysis suggested the opposite 

thatfreezingthe Obama-era rules would lead to slightly more 

fatalities (seven for every trillion miles driven), cost jobs, and in 

economic terms, have a net negative impact of $83 billion. 

https //www.washmgtonpostcomlenergy-environment120 18/0S./15/!rump-admmtstr.ation-sald-weaker-fuel-standards-wou!d-save-hves-epa~experts-dlsa 4/8 
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1114/20i9 The Trump admm1stral10n sa•d weaker fuel standards would save l1ves. EPA experts disagree -The Washmgton Post 

"The EPA material seriously casts the whole proposal in a very 

negative light with respect to its technical adequacy," said Chet 

France, former director of assessment and standards at the 

agency, who now works "~Vith the Environmental Defense Fund 

as a consultant. 

In their joint statement, the agencies claimed that the rollback 

"is anticipated to prevent thousands of on-road fatalities and 

injuries as compared to" the Obama-era standards. 

Little changed between the time of the EPA staff critiques and 

the final release of the proposed rollback, according to former 

EPA employee Jeff Alson, a 40-year agency veteran and senior 

engineer at the agency's Office of Transportation and Air 

Quality, who retired in ApriL 

"We know at most they made minor changes, because they're 

still quoting the thousand fatalities per year," said Alson, who 

worked closely on the standards. "They may have made some 

less important changes." 

The decision to include the revealing documents directly 

challenging the rollback's logic was approved by senior EPA 

political appointees, according to two federal officials with direct 

knowledge of the matter who spoke on the condition of 

anonymity to discuss internal deliberations. Including the 

records in the regulatory docket could influence the shape of the 

final rule, one of the officials said, since it won't be finalized for 

months. 

The fact that Trump appointees agreed to make such documents 

public suggests that agency leaders, from acting EPA 

Administrator Andrew Wl1eeler on down, harbored serious 

concerns that Transportation officials used faulty assumptions to 

justify freezing fuel standards. 

https II>WN-1 wash•ngtonpost.cam/energy-enwonment12018!08/15/trump-administratlon-said-weaker-fuel-standards-would-save-!ives-epa-experts-disa 5!8 
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1/'4/2019 1 he Trump admm1strat:on s;:ud weaker fuel standards would save lives EPA experts d:sagree - The Washington Post 

An EPA spokesman said the documents show only a limited 

picture of what was going on. 

The emails represent "but a fraction of the robust dialogue that 

occurred during interagency deliberations for the proposed rule. 

EPA is currently soliciting comments on eight different 

alternative standards and we look forward to reviewing any new 

data and information," said EPA spokesman John Konkus in a 

statement. 

In a statement, NHTSA said, "As is typical for any joint 

rulemaking, the agencies provided feedback to each other as they 

developed their policy and analysis for the proposal." 

The two agencies have reached different findings about aspects 

of fuel efficiency targets in the past, but the chasm has never 

been this wide. Margo Oge, a former director of EPA's Office of 

Transportation and Air Quality, said in an email that the 

transportation agency suggested in 2009 that stricter limits on 

vehicle greenhouse gas emissions would cost consumers roughly 

Ss,ooo per car. After EPA "corrected their inputs," Oge said, 

NHTSA staff agreed the Obama standards would have increased 

auto price tags by about $900. 

The EPA staffs critiques could empower critics of the proposed 

rollback, particularly in California. The Trump administration's 

https //~.t2~ft?~&,b~2J-M/~n£J~~n~r~gl~t9J{J~~;~;f?~iJ_~~~~~tr§ttotj~~-B~~~lJr.r~ll£f~~rds-wou!d-save-lives-epa-experts-dlsa 618 
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11';4/2019 The Trump admJn1strat1on satd weaker fuel standards would save lives, EPA experts d1sagree -The Washington Post 

stringent standards. And the state has given every indication it is 

preparing for a courtroom fight. 

Xavier Becerra, California's attorney general, said the freeze is "a 

brazen attack, no matter how it is cloaked." And California Air 

Resources Board Chair Mary D. Nichols said her team "will 

examine all 978 pages of fine print to figure out how the 

Administration can possibly justify its absurd conclusion that 

weakening standards to allow dirtier, less efficient vehicles will 

actually save lives and money." 

Next month, the California air agency will vote on scrapping a 

provision that would keep California's tailpipe rules in line with 

the federal government's. Though the Clean Air Act grants 

California special authority to restrict auto emissions to clean up 

its historically smoggy cities, for the past decade policymakers 

there and back east in Washington had agreed to keep a uniform 

set of standards so carmakers did not need to meet different 

rnles in different U.S. states. 

"The EPA documents challenging the Administration's alleged 

safety rationale for rolling back fuel economy and tailpipe 

emissions standards are devastating from a legal perspective," 

said David Hayes, who served as the Interior Department's 

deputy secretary under presidents Bill Clinton and Barack 

Obama. 

https ·ttwww.washmgtonpost.com/energy-environment/20 18/08/15/trump~admmtstratton-satd-weakBr-fuel-standards-wou!d-save-lives-epa-experts-d!Sa 7!8 
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1/14/2019 The Trump admmmtril.tion sa1d weaker fuel standards would save lives EPA experts disagree -The Washington Post 

"!fin fact there was internal warfare, that just provides further 

grist for litigators." 

Juliet Eilperin contributed to this report. 

https !IVMw washmgtonpostcom/enet{!y-enwonment!2018!08!15/trump-administratl0n-sa;d-weaker-fue!-standards-wou!d-save-!tves-epa-exper1s-diSO 8/8 
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1115/2019 WHITE HOUSE. 'Deregulation 1s not always helpful for manufactunng jobs'~· Fnday, November 30, 2018 -- ww..-v.eenews.net 

WHITE HOUSE 

'Deregulation is not always helpful for manufacturing jobs' 

President Trump promised to revitalize the manufacturing sector after decades of dedme. a message that has 

especially resonated in the M1dwest, where manufactunng has an outsize share in total state employment 

But h1s rollbacks of key Obama-era enVIronmental rules could test that pledge 

The Trump admm1stration has proposed to rework tailpipe pollution rules for cars. It's also looking to unwind 

act1ons the Obama administration took to phase out the use of potent heat-trapping gases known as 

hydrofluorocarbons. orHFCs 

Both moves could spell bad news for the manufacturing sector. That's because auto companies have already 

made big investments in technology a1med at improving vehicle fuel efficiency. Similarly, a1r conditioning and 

refngerat1on companies have invested m replacements to the planet-warmmg gase5 

And those Investments have created good-paying jobs that could go away, industry sources said, 

''These are JObs that wl!l be lost to other markets," laurie Holmes, sen1or director of environmental policy at the 

Motor & Equipment Manufacturers Association, said of the car rule. "A lot of these Jobs wdl probably be lost to 

Ch1na because they are moving forward w1th the fuel efficiency standards and with electric vehides. 

"We know that one area that the Trump admtmstrat!On cares about is manufacturing jobs." Holmes added. "But I 

would say that it's important to understand that deregulation JS not always helpful for manufactunng jobs" 

Trump's regulatory rollbacks could reverberate in the Midwestern states that helped him clinch victory in 2016. 

The top five manufacturing states- lndJana, Wisconsin, Iowa, Mich1gan and Alabama- all backed Trump in the 

elecVon 

The impendtng closure of a General Motors Co. factory in Ohio illustrates this dynamic. 

Spe<~king to a group of autoworkers in Ohio's Mahoning Valley last year. Trump promised that jobs were "all 

coming back. They're all coming back. Don't move. Don't sell your house." 

But GM announced this week that it would dose the assembly plant 1n Mahoning Valley and lay off hundred5 of 

workers. promptmg a nahona!outcry. 

To be sure, GM's decision stemmed from a van sty of factors, including the administration's tar\f!s on imported 

steel and alummum. But at least one lawmaker- Ohio Democratic Rep, Tim Ryan- linked the decisiOn to 

Trump's rollback: of Obama~era dean car rules (E&E News PM. Nov. 26). 

https:/lwww.eenews.net/stones/1060108251 
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1/15/2019 WHITE HOUSE Deregulat•on IS not aiways helpful for manufactunng JObs'-- Fnday. November 30 2018 - W\w1eenews.net 

Dav1d Cohen, a political SCience professor at tne Umvers1ty of Akron, sa1d M•owestern conStituents may feel that 

Trump made them empty prom1ses That could muddy his chances of bemg re-e!Gcted. 

"VVhen people in these areas see their Jobs gomg away and the1r plants closmg. they're gomg to connect that w1tl' 

the president, who has told them all along that they should not move away \!<at they should keep thetr house. and 

that the Jobs are go1ng lobe there," Cohen sa1d 

'You know, Donald Trump cannot wm a second term to the presidency Wl\~ou! carrymg the 1ndustnal Midwest 'he 

added. "The electoral math just doesn't work. If he IS the Repubilcan candidate in 2020, the road to the VVMe 

House goes throt.Jgh OhiO, Michigan and W1scons:n" 

The car rules 

!n 2008, General Motors and Chrysler Signaled that tney were on \he verge of bankruptcy. PreSident George W. 

Bush agreed to bail them out- a poli!Jcally unpopui<Jr dec1s1on But he handed the1r long+term future to hts 

successor. Pres1dentObama 

Vllhen Obama took office. he oversaw a comprehensive batlout of GM and Chrysler. although he imposed a 

number of condt!Jons a1med at he!p1ng them stay competitive. One was that the companieS must set fuel 

effic1ency standards 

In 201L EPA and the Na!tonal Highway Traff1c Safety Administration got to work on draftmg the first-ever 

greenhouse gas and fuel economy standards for cars And when the agenc1es Issued those rules 1'1 2012., they 

expected them to encourage jOb creat1on 

"The agenoes ant1C1pate that these final stanc01rds will spur econom1c growtn and creal€ h1gh quality domestiC 

jobs," EPA and NHTSA wrote 111 the:r 2012. fi£1al rule 

The <Jgencles' reasor>mg went like this. Ach1evmg greater fuel off1oency mveh1cles would reqwre new 

technologieS. And more workers would be needed to develop and install those technologies 

A recent J:Qp..Qtl from the B!ueGreen Alliance, which a1ms to un1te environmental and labor groups, bore out thiS 

thmktng It found that more than 1,200factones rn 48 states-compns1ng 288 000 workers- are building 

technology that 1m proves fuel economy m venicles 

The top five states for Jobs m fue!-efficmnl vehrcle technology were M1ch1gan lnd1ara, OhiO, Tennessee and 

Kentucky, the report found. 

"Over the past decade we've seen a real comeback 1n the automotive sector. And the fuel economy standards 

have been a cntical part of that recovery." satd Zoe Lipman, director ol the BlueGreen Alliance's vehicles and 

adva!"lced transportatlOn program 

"lmprov1ng fuel ecoqomy dnves mvestment •n new a'1d added technology that goes 1nto all of our cars and trucks" 

Lipman added. "Building, designing and Installing that technology reqwres more labor hours and creates JObs 

And that'S something we've seen on the ground 1n factones and manufacturmg communit1es all across the United 

Slates" 

Enter Trump 

V\lhen Trump took off1ce m 2017, he indrcated that he planned to take a fresh look at the car rules And m August 

of this year h1s administration proposed freezing fuel economy requirements at 2020 levels. rather than 

mcreasing their strmgency each year as Obama had env1s:oned 

The adrnmlstratJOn acknowledged 1n 1\s own proposal tha\ freezing the fuel eff:c1ency targets could rest. I! 1n a labor 

reduction eqwvalent to 60,000 jObS 1 hat figure was qu1etly tucked mto the 97B-oage document from EPA and 

NHTSA (Ciimatewire. Aug_ 7] 

'The agenc1es' own analys1s of the rollback predicted that it would result m !50,000]-60.000 fewer JObs from 2021 

onward," L1pman said. "And that's JUSt spending thOJt doesn't happen on advanced technology, lt doesn't get rnto 

what happens :f we fall behind on the next generatiOn of mvestments ., 

Furthermore. it'S Widely acknowledged that freeztng the standards would lead to a lengthy legal battle among the 

Trump admtn1strahon. Ca!iforn1a and the 1:3 other states that have set tougher tailpipe po!!ut1on rules than the 

federal government 

Durrng lrtlgat,on. automakers would be left witn prolonged regulatory uncertainty. which could undermme their 

long-termolannmg 

"The proposal does put suppliers in a Silualion where It'S difficult lo make long-term deCISions 'said Holmes of the 

motoreaulpmenttradeqroujj 

https /l'MW/ eenews.net!stonesl1 050108251 2/4 
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1/15/2019 WHITE HOUSE 'Deregulation is not always helpful for manufacturing jobs'-~ Friday, November 30. 2018 •• \Ww'W.eenews.nei 

33,000 jobs 

Obama also made phasing out HFCs- a gas more potent tnan carbon dioxide at trapping heat in the 

atmosphere- a key part of hts strategy for curbing global warming. 

In 2015. EPA issued a rule effectively banning uses of the chemicals across four industrial sectors: aerosols, air 

conditioning for new cars. retail food refrigeration and foam blowing. 

But two foreign HFC manufacturers sued EPA over the rule. And in an August 2017 majority opinion penned by 

Judge Brett Kavanaugh. the U.S. Court of Appeals for the District of Columbia Circuit sided with them. wlmg that 

EPA had exceeded its authority under the Clean Air Act~. Aug. 8, 2017). 

The Trump administration later aligned itself with Kavanaugh, who would go on to become a Supreme Court 

justice, and the foreign companies(~. Aug. 29). It's unclear whether EPA wi!! issue a replacement rule. 

The agency has already taken steps to water down a separate HFC rule. 

But two American companies. Honeywell International Inc. and Chemours Co., remain committed to phasing out 

HFCs. That's because they've made significant investments in safer alternatives. For instance, Honeywell last 

year opened a 5300 million Lows1ana facility to manufacture an HFC replacement for use in cars. 

Francis Dietz, vice president of public affairs at the Air-Conditioning, Heating and Refrigeration Institute (AHRI), 

sa1d the Trump administration's stance on HFCs has created regulatory uncertainty for his member companies. 

"Jt created uncertainty for the industry where there was not uncertainty before," Dietz said. 

Dietz also noted that the United States has yet to ratify the Kigali Amendment to the Montreal Protocol, which 

aimed for a global phase-down of HFCs. Finalized in October 2016. tile amendment would avert enough 

emissions from air conditioning umts and refrigerators to reduce warming by 0.5 degree Celsius by 2100. 

Nearly 200 countries have said they're on board witll Kigali. But Trump has refused to send the amendment to the 

Senate for ratification. 

A recent !l!P..Q.!l from AHR! and the Alliance for Responsible Atmosplleric Policy projected that U.S. ratification 

would create an addltional33,000jobs. 

"U.S. Implementation of the Kigali Amendment is good for American jobs,'' the report states. "!twHI both 

strengthen America's exports ancl weaken tile market for imported products. Finally, it will enable U.S. technology 

to continue its world leadership role." 

"VVhat sticks in my mind is the figure that there would be 33,000 more manufacturing jobs in the ratification case 

than in the case where we spurn the treaty," said Natural Resources Defense Council attorney David Doniger, 

who has been working with industry to phase out HFCs. 

"Basically, it's an international market in chemicals ancl in equipment." Do niger said< "The United States curtentfy 

has a lot of!eadership in the technology and the patents_ And we're poised to expand on that if we're part of 

[Kigali]. 

"But if we don't participate," he said, "that investment and those jobs will end up being located elsewhere" 

Tw;tter @maxinejoselow ! Emilll mjoselow@eenews.net 

Like what you see? 

We thought you might. 

Start a free trial now. 

Get access to our comprehensive, dally coverage of energy and environmental politics and policy_ 

https'f/vmv.t.eenews.netfstories/1060108251 314 
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1/1412019 The Energy 202· Trump's EPA 1s targetmg rules for yet another greenhouse gas* The Washmgton Post 

The Energy 202: Trump's EPA 

is targeting rules for yet 

another greenhouse gas 

By Dino Grandonl 

September 21. 2018 

THE LIGHTBULB 

Em-ironmental Protection Agency acting administrator Andre·w Wheeler speaks to headquat1ers staff in 

.July, shortly aft('r taking owr the agency·. (AP Photo/Jacquelyn Martin) 

First it was carbon dioxide, when the Environmental Protection 

Agency proposed in August relaxing pollution standards for coalfired power plants meant to curb emissions of that 

most common greenhouse gas. 

Then it was methane, when both the EPA and Interior 

Department each took steps in recent weeks toward 

replacing Obama-era rules regulating the leaking of that climatewarming gas from oil and natural gas infrastructure. 
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1/14!2019 The Energy 202 Trump's EPA 1s targeting ruies for yet another greenhouse gas The Washmgton Post 

Now, the Trump administration is trying to replace 

regulations for an even more obscure set of greenhouse 

gases in an effort apparently aimed at slowing down the 

Obama administration's efforts to deter global warming. 

On Wednesday, the EPA announced it wanted to get rid of rules 

meant to prevent the leaking and venting of a set of organic 

compounds called hydrofluorocarbons, or HFCs, from 

large refrigerating and air-conditioning units. 

The new rule, which has yet to be finalized, is the latest 

in a flurry of EPA proposals over the past month or so 

fm·ther attempting to unwind Obama's climate 

legacy. The actions- on C02, on methane and now on HFCs 

demonstrate the agency still has much of the same attitude 

toward climate regulations under acting administrator Andrew 

Wheeler, who took over the agency in July, as it did 

under former EPA chief Scott Pruitt. 

In the case of HFCs, even tiny amounts leached into the 

atmosphere pack a wallop of a punch to the climate. On a 

pound-for-pound basis, those compounds have a warming 

potential thousands of times greater than that of carbon dioxide. 

"This is climate vandalism," contended David Do niger, director 

of the climate and clean air program at the Natural Resources 

h!\ps /IWM."! wash 1 ng ton pos I. corT'fn ewslpowerpost/pal omafthe-energy-20 2120 18109/21 /the-energy-2 0 2 -trum p-s-e p a-1s-targetmg-ru!es-for -yet-a nether -g 2/5 
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1/14/2019 The Energy 202 Trump's EPA is targe11ng rules for yet another greenhouse gas- The Washmgton Post 

Defense Council. "They're just going through all these things that 

Obama did and trying to destroy them all." 

ADVER riSING 

Some Democrats held up the proposal as yet 

more evidence the Trump administration is unwilling to 

do even the bare minimum to address climate change. 

"Unfortunately, this action is yet another reminder the Trump 

Administration isn't willing to take even the smallest step to 

address climate change or protect Americans from the threats of 

extreme weather," Sen. Thomas R. Carper (Del.), the ranking 

Democrat on the Environmental and Public Works Committee, 

said in a statement. 

If the new rule goes through, large commercial and industrial 

appliances using HFCs will no longer need to conduct certain 

leak rate calculations and make repairs when the machines are 

letting offtoo much of the gas. Facilities such as supermarkets, 

ice rinks and factories, which use such units, will also no longer 

need to report to the EPA on chronic leaking problems or retire 

units that are not fixed. 

https /lwww,washlngtonpost.com/news/powerpostfpa!oma/the-energy-202/2018/09121/the-energy-202-trump-s-epa-is-targeting-rules-for-yet-another-g 3!5 
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l/1412019 The Energy 202 Trump's EPA IS target1ng rules for yet another greenhouse gas -The Washington Post 

Like with most of Trump-era decisions, the EPAjustified 

the new rule by pointing out the benefit to businesses if 

it is finalized. The agency said its new rule would save 

companies $39 million annually in regulatory costs. 

But the cost of the rule could be borne by the rest of 

society in the form of higher temperatures later 

on. If enacted, the estimated annual leakage would have an 

effect on the climate equal to that of an additional 642,000 

passenger cars on the road per year. 

Not all companies are on board with Obama-era efforts 

regulating the chemicals. In particular, makers of 

chemical alternatives to HFCs, Honeywell and Chemours, have 

petitioned the Supreme Court to reverse a ruling on another set 

of HFC regulations on manufacturers of air 

conditioners, refrigerators and other appliances. 

https·ffV'JW\/V.wash~ngtonpost com/news!powerpostipa!oma!the-energy-20212018109!21/lhe-energy-202-trump-s-epa-ls-targetmg-rules-for-yet-another-g 415 
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1114/2019 The Energy 202 Trump's EPA !S target1ng rules for yet another greenhouse gas- The Washington Post 

Last year, the U.S. Court of Appeals for the District of Columbia, 

a court one step below the Supreme Court, struck down those 

rules. The opinion was written by Judge Brett Kavanaugh, who is 

now President Trump's nominee for the high court. 

The decision was classic Kavanaugh. Throughout his time 

on what many call the second-most important court in the 

country, the judge consistently gave more regulatory power to 

federal bureaucrats only when Congress clearly spelled out in the 

law that that is what it wanted. 

"EPA's well-intentioned policy objectives with respect to climate 

change do not on their own authorize the agency to regulate," 

Kavanaugh WTote. "The agency must have statutory authority for 

the regulations it wants to issue." 

https /!wwvv.washingtanpost.com/news/powerpost!patoma/the-energy-202/2018/09f21/the-energy-202-trump-s-epa-is-targeting-rules-for-ye!~anolher-g 5/5 
475 

Senator BARRASSO. Senator Cramer. 

Senator CRAMER. Thank you, Mr. Chairman. 

Thank you, Mr. Wheeler, for being here and your willingness to 

serve in this capacity. I believe when you and I sat down in my 

transitional office, I had not been appointed to this Committee yet, 

but you were telling me it was the best committee in Congress. 

Mr. WHEELER. I stand by that. It is the best committee in Congress. 

Senator CRAMER. I appreciate that. 

Before I forget, up front, I want to also invite you to my State 

of North Dakota. You can come in August if you like, but January 

and February are not quite as cold as Alaska, but you could bring 

your family and go camping. We would love to have you and would 

especially invite you to the Energy and Environmental Research 

Center at the University of North Dakota where we could have a 

discussion on these and several other topics that are important. 

I also want to thank you for your very good work on the rollback 

of Waters of the U.S. and coming up with what I am sure is a 

much more common sense and legal definition of Waters of the 

U.S. and the same with regard to the Clean Power Plan being replaced by ACE. 

While I appreciate the passion from some on the other side, I am 

quite certain that ignoring a Supreme Court stay is not in your authority, is it? 

Mr. WHEELER. No, it is not. We have to follow the Supreme 

Court. 

Senator CRAMER. I would think so. Thank you for that. 

I also want feedback a little bit on what Senator Ernst talked 

about with regard to the year round E15. That was something that 

I had advocated for a long time. Certainly she and others, not just 

advocates of ethanol, but I think as conservatives, we like to eliminate barriers to markets. 

While some might argue over the RFS or the volume set, again, 

the law is the law. I think it was an appropriate move, and I congratulate you and appreciate what you and the President did in 

making that commitment. With regard to the RFS, there are as 

many opinions and there are divergent opinions in North Dakota 

as you might imagine as there are in this room on the RFS and 

what it should do and what it should not do. 

I would like to ask you though, what is your professional opinion 

on what happens in 2022, because I think sometimes we discuss 

this issue or pass each other without a clear understanding of what 

exactly the law does in 2022 and what options there are, and what 

happens if we do nothing? 

Mr. WHEELER. If Congress does nothing by 2022, then the implementation and operation of the program would be up to the agency, 

up to the EPA. We could continue the program as is. There are a 

number of different options we could do. We have not started to 

look at what we might do in 2022. I know there is legislation at 

least in the House on extending the program further, but we will 

have to make some decisions as far as what the RFS Program looks 

like post-2022. 

Senator CRAMER. Would it be your recommendation that Congress get together with all our divergent views and find a prescripVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00481 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
476 

tive solution that does not leave too much discretion over the 

course of Administration after Administration? 

Mr. WHEELER. I think it is always helpful for Congress to write 

the legislation that directs the agency to implement the programs. 

I think where the agency, the EPA has gotten into trouble in the 

past in the Obama administration with the Clean Power Plan is 

when they went beyond the law. 

Senator CRAMER. I agree. Thank you for that. 

Now, just as a matter of following up a little bit on what Senator 

Sullivan was talking about, and I have sat here—and I apologize, 

Mr. Chairman, for being late. I had my first day of presiding over 

the Senate this morning. And not nearly as exciting as this, I 

might add. 

I am perplexed a little bit. Let’s go back to what Senator Sullivan 

said. It occurred to me as he was talking, did those 18 years as a 

professional staff person at the EPA prepare you well for your work 

in private industry? 

Mr. WHEELER. It did. And I think my overall career, both implementing laws at the EPA and at the beginning of my career to 

helping to draft the laws here when I worked in the Senate to talking to a wide variety of different clients, potential clients, clients 

when I was in the private sector, to see how the regulations, the 

laws were impacting hard working people who were trying to make 

a living. 

Senator CRAMER. And I would suspect that your further work in 

industry prepared you well for this job, and I want to appreciate 

that. With time running out, I would just like to propose some scenarios, like should we bar farmers from being Secretary of Agriculture? Should we bar doctors from being the head of Health and 

Human Services, or attorneys from being the Attorney General? Or 

bankers from being head of the Treasury Department and whatnot? I just think this is a very funny path to go down, realizing this 

is my first confirmation hearing. Maybe I don’t know everything I 

should. 

Mr. WHEELER. I agree with you, I don’t think we should ban 

farmers from being head of the USDA, or doctors at HHS and 

bankers of, whatever the banker’s the head of. 

[Laughter.] 

Senator CRAMER. Treasury. 

Thank you, I yield back, Mr. Chairman. 

Senator BARRASSO. Thank you so very much. 

Senator Van Hollen. 

Senator VAN HOLLEN. Thank you, Mr. Chairman, and welcome, 

Mr. Wheeler. I do want to associate myself with some of the comments made by the ranking member and others regarding climate 

change, auto emissions standards, mercury rules. And I do appreciate your working with Senator Cardin and I and others on the 

Chesapeake Bay and look forward to continuing that work together. 

But I wanted to use my time today to talk about this shameful 

and unnecessary Government shutdown. We are now 26 days into 

it, the longest Government shutdown in U.S. history. My understanding is there are about 13,000 EPA employees that are currently furloughed. Is that correct? Approximately? 

477 

Mr. WHEELER. Approximately, yes, sir. 

Senator VAN HOLLEN. And that there are approximately 891 who 

are on the job, is that approximately right? 

Mr. WHEELER. That sounds pretty exact, 891. It varies from day 

to day. We bring back people to work on specific issues. 

Senator VAN HOLLEN. Right. Including some that you brought on 

to prepare for this hearing, is that right? 

Mr. WHEELER. Yes, Senator. 

Senator VAN HOLLEN. And you’ve worked at the EPA, you’ve had 

experience. In your experience, are these hard working, dedicated 

civil servants? 

Mr. WHEELER. Yes, they are. I have full confidence in the EPA 

staff. 

Senator VAN HOLLEN. And have they shared, some of them, their 

stories of hardship with you, what they’re experiencing now because of the shutdown? 

Mr. WHEELER. Yes, and I was an EPA employee back in the 

1990s when it was shut down, and I remember the frustration at 

the time. And my heart goes out to the EPA employees and all the 

other ones who are on furlough. 

Senator VAN HOLLEN. And I appreciate that, because they are 

definitely stuck in the middle of something they had nothing to do 

with. 

I just want to read some of the statements I am getting from 

EPA employees; I am sure you are as well. ‘‘I work for the EPA 

and have been furloughed.’’ Then it goes on to say, ‘‘I have triplets 

that are in college, and it is very tough to meet their education 

needs and pay our bills without my salary, which is the major income source for our family. My son has Crohn’s disease, requiring 

expensive medical treatments.’’ She also goes on to say, ‘‘Our 

younger employees at EPA have just started out, and are unable 

to make rent and loan payments.’’ 

Here’s another employee who’s been furloughed. She actually 

may be here in the audience today. ‘‘I work for EPA. I love my job, 

and feel like my program is important to protecting public health.’’ 

She goes on to say, ‘‘My son is a junior in high school. I found out 

yesterday that fees for the AP exams are due January 31st. I don’t 

see how I can afford to pay these fees. He is going to lose the opportunity to pass four AP tests. Ironically, one of them is U.S. Government.’’ 

Another one, 15 year old student, Montgomery County, Maryland: ‘‘I am a 15 year old student. My father, like many people in 

this area, is a Federal employee working at the EPA. He has now 

missed an entire pay check from the shutdown, will likely miss another if this keeps up. Please vote to override the veto.’’ Of course, 

we don’t have a chance to override the veto because we haven’t 

passed legislation that is pending here in the U.S. Senate. 

Mr. Wheeler, I have here in my hand the mission statement for 

the EPA. First line, the mission of the EPA is to protect human 

health and the environment. EPA works to ensure that. It goes on 

to list a number of things, starting with Americans have clean air, 

land, and water. I assume you are familiar with the EPA mission 

statement. 

Mr. WHEELER. Yes, I am. 

478 

Senator VAN HOLLEN. And there is nothing in this statement 

about how the EPA is the lead agency when it comes to issues of 

border security, is there? 

Mr. WHEELER. Border security, no. 

Senator VAN HOLLEN. Border security, homeland security. 

Mr. WHEELER. We do a lot of border work, that is, a lot of pollution. 

Senator VAN HOLLEN. I am referring, Mr. Wheeler, to the security aspects of the job with respect to border security. That is done 

primarily by the Department of Homeland Security, is it not? This 

is not a trick question. 

Mr. WHEELER. Well, no, because we do a lot of inspections along 

the border. 

Senator VAN HOLLEN. I know you do stuff along the border. But 

here is my question. You are familiar that last August the U.S. 

Senate passed the appropriations bill for the EPA by a vote of 92 

to 6? Are you familiar with that? 

Mr. WHEELER. Yes, Senator. 

Senator VAN HOLLEN. It was an overwhelming vote. 

Mr. WHEELER. Yes. 

Senator VAN HOLLEN. That bill is now before the Senate again, 

as part of other bills that had overwhelming bipartisan support in 

the U.S. Senate. And the Republican leader says that we can’t vote 

on this bill, because the President of the United States won’t sign 

them. My question to you is, why won’t the President, you are the 

senior Administration official here today in this middle of this 

shutdown, and this Committee, why won’t the President sign a bill 

to fund EPA, which has nothing to do with the Government shutdown, a bill that passed this body 92 to 6? Can you just explain 

to people, including the people that wrote in to me, why that is the 

position of the President of the United States? 

Mr. WHEELER. Well, the President takes border security very seriously. 

Senator VAN HOLLEN. I am asking about the EPA bill, Mr. 

Wheeler. Why is it that he refuses to support a bill that passed the 

Senate by 92 to 6? We care about border security, too. Why is it 

that he says he won’t sign a totally unrelated bill? Why is that? 

Mr. WHEELER. Well, I believe the President has been very up 

front about his desire to have all the appropriation bills pass at the 

same time, along with the border security. The border security, as 

you mentioned, is outside of the—outside of our authority at the 

EPA. 

I do want to take a moment to thank you for helping pass legislation guaranteeing that all the furloughed employees will get back 

pay. That is very important to the employees. On behalf of my employees at EPA, I thank you for your work on that, and Congress. 

I think that was a very important message to send. 

Senator VAN HOLLEN. I am grateful that you mentioned that. 

Thank you for saying that. And I just have one request as we leave 

here. The President has not yet signed that bill. Will you urge the 

President of the United States to sign that bill? 

Mr. WHEELER. I think it is important to have all the appropriations bills signed along with the border security that the President, 

that the American people want. 

479 

Senator VAN HOLLEN. No, we passed this is in the Senate and 

the House separately, right? And I have no reason to believe that 

the President is not going to sign; in fact, the Republican leader 

said that the President was going to sign it. My question is, will 

you on behalf of your employees urge the President to sign the bill? 

Mr. WHEELER. I am sure that the wants to reopen the Government as much as you do. 

Senator VAN HOLLEN. No, this is not a question of reopening the 

Government. This is a bill that has already passed during the Government shutdown to provide some confidence and certainty that 

at the end of the day people will be made whole. I appreciate your 

mentioning the importance of that bill. On behalf of your employees at EPA, can you ask the President to sign the bill? 

Mr. WHEELER. Senator, I also know that this is part of a larger 

negotiation, and I hope that all the parties can come to the table 

and negotiate and end this shutdown as soon as possible. 

Senator VAN HOLLEN. Well, this Senate, on a bipartisan basis, 

was able to do this for the reasons you say in the middle of a shutdown. I hope the President will sign the bill, and I really encourage 

you to let your employees know that you support the bill. 

Senator BARRASSO. The Senator’s time has expired. 

This is the end of the first round of questioning. We are going 

to proceed, if we could, to the second round. Probably fewer members will want to ask a second round of questions, and we do have 

a roll call vote coming up at 12:30. 

So I just want to go into round two. I understand that when considering a small refinery’s petition for hardship relief, under the 

Renewable Fuels Standard, RFS, the EPA consults with the Department of Energy, as you mentioned. 

Mr. WHEELER. Yes. 

Senator BARRASSO. These two agencies conduct a detailed, objective analysis based on the small refineries confidential business information. Under the Clean Air Act, the agencies must look at each 

small refinery on an individual basis, which you had mentioned in 

a comment earlier, regardless of whether the refinery is part of a 

larger company. Is that your understanding of the law? 

Mr. WHEELER. Yes, it is, sir. 

Senator BARRASSO. OK. Now, I also want to thank you for withdrawing the Obama administration’s proposed duplicative rule on 

groundwater monitoring on in situ uranium recovery. This rule was 

a midnight regulation the EPA issued the day before President 

Obama left office. When you talk about a midnight regulation, that 

by definitely really, really fits it. 

The Nuclear Regulatory Commission—our Nation’s principal nuclear regulator—stated that there was no health or safety justification for the rule. The NRC has also said that the rule interfered 

with its jurisdiction over uranium recovery activities. To ensure 

this doesn’t happen again, I have written EPA, asking the agency 

to sign a memorandum of understanding, which would clarify the 

NRC’s and the EPA’s jurisdiction over those activities. 

Do you know if this work has begun on that memorandum of understanding? 

480 

Mr. WHEELER. It has begun; it began before the end of last year. 

At this point, we are not working on it because it is part of the 

shutdown. But it has begun, sir, yes. 

Senator BARRASSO. Great. The cost of regulations coming out of 

the EPA was staggering before President Trump took office. According to the Office of Management and Budget, major EPA rules 

cost between $54 billion and $86 billion a year, between the years 

2006 and 2016. That total was more than the cost of major rules 

from seven other Cabinet level Federal agencies combined. Seven 

agencies combined. 

Has this Administration taken a hard look at those costs, and in 

your opinion, has the EPA better balanced regulatory costs with 

environmental protection? 

Mr. WHEELER. We have. And we have a cost-benefit rule that we 

proposed in early last year, we received 3,200 comments on it. We 

are reviewing those comments and plan to go forward with that, 

which will help define how we look at cost-benefit analysis across 

the board. 

Senator BARRASSO. I have seen some stories in the press the EPA 

enforcement cases have fallen. In my opinion, how many enforcement cases are filed isn’t the best metric to measure the EPA’s successes. Our goal should be to actually make sure that people are 

following the law in the first place. This is called the compliance 

assurance, making sure that businesses across the country comply 

with the law up front, so that enforcement actions aren’t needed. 

What is the EPA doing to improve compliance assurance? 

Mr. WHEELER. We are working very hard on compliance assurance. I think the agency has for a number of years. I think the 

more compliance assurance that we have, the fewer enforcement 

actions that we need to take. 

But there has been lot of misleading information in the news 

media about our enforcement program. I would like to correct two 

items real fast if you don’t mind. Last summer, a group, EGGI, released a report on what they thought our enforcement numbers 

were. We went over it, and we went over it again, and our career 

people went over it, and it appears that they made some simple 

mathematical errors in their report. They claimed, for example, 

that our administrative compliance orders were down 42 percent, 

but actually they were up 3 percent. 

And just recently, PEER released a report on our criminal enforcement program. They said that we are making the criminal referrals. We don’t actually make criminal referrals. We make requests for prosecutorial assistance. And at the agency, the metric 

that we use is to track the number of new criminal enforcement 

cases that open each year. Last year we opened more criminal enforcement cases than in 2017. That reversed a downward trend 

that started in 2011. So since 2011 we have been on a steady decline. Last year we reversed the decline for the first time. 

Senator BARRASSO. Anything else from the first round of questions that something has just come to you, and you say, gee, I 

would like to clarify something? 

Mr. WHEELER. Well, I would like to clarify, because there has 

been a lot of discussion on our CAFE proposal. And a lot of it having to do with the CO2 remissions and reductions from the CAFE 

481 

proposal. And yes, under President Obama’s proposal on CAFE, 

that was their one goal for the program, was energy efficiency, 

CO2. 

We have multiple goals for the program, multiple policy goals, including protecting lives. Under our proposal, we have submitted 

that there will be 1,000 lives saved a year under our CAFE proposal. I neglected to mention that earlier, but I think that is very 

important for everyone to understand. It would decrease the cost 

of a new care by $2,300. And that will get older cars off the road. 

And when you get an older car off the road, people are buying safer 

cars, and it will save 1,000 lives a year. I think that is a very important fact to get out there in the public. 

Senator BARRASSO. Thank you. 

Senator Inhofe, do you have a unanimous consent? 

Senator INHOFE. I do have a unanimous consent request. I would 

like to submit these studies into the record. Both are from the Department of Agriculture and Consumer Economics at the University of Illinois–Urbana. The first study is from September 2018. Its 

conclusion: ‘‘Little if any evidence that the blend rate for ethanol 

has been reduced by small refinery exemptions.’’ The second one: 

‘‘The updated analysis in this article shows even less evidence that 

the blend rate for ethanol has been reduced by SREs.’’ 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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farmdoc 

Small Refinery Exemptions and Ethanol Demand Destruction 

Scott Irwin 

Department of Agricultural and Consumer Economics 

University of Illinois 

September 13, 2018 

farmdoc daily (B): 170 

Recommended citation format: Irwin, S, "Small Refinery Exemptions and Ethanol Demand Destruction." 

farmdoc daily (8): 170, Department of Agricultural and Consumer Economics, University of Illinois at 

Urbana-Champaign, September 13,2018. 

Permalink: https:/!farmdocdaily. illinois .edu/20 18/09/small-refinery-exem ptions-and-etha nol-demanddestruction.html 

Small refinery exemptions (SREs) represent the latest controversy to engulf the Renewable Fuel 

Standard (RFS). When the U.S. Congress first created the RFS in the Energy Policy Act of 2005 (P.L. 

109-58) it included a temporary exemption for small refineries from the mandate through 2011. Under the 

Obama Administration. SREs were rarely granted after 2011. This changed radically under the Trump 

Administration, which granted a total of 48 SREs retroactively for 2016 and 2017. As detailed in this 

farmdoc daily article (July 12, 2018), SREs effectively reduced the conventional ethanol mandate for 2017 

from 15 biilion gallons to 13.9 billion gallons. This was not only a large reduction in absolute terms, but it 

also resulted in the conventional mandate being set below the E10 blend wall. If similar numbers of 

SREs are granted for 2018 and 2019, comparable reductions in the effective conventional ethanol 

mandate should be expected (assuming the SRE volumes are not reallocated to non-exempt obligated 

parties). 

While there is no doubt that SREs have opened a backdoor mechanism for EPA to reduce the statutory 

and obligated RFS volumes, there is sharp disagreement about the impact of SREs on the physical 

consumption of ethanol. On one side, obligated parties, mainly refiners, argue that physical ethanol 

demand has been unaffected. On the other side, the corn ethanol industry argues there has been 

substantial destruction of demand in the physical ethanol Market due to the SREs. The purpose of this 

article is to investigate the impact of SREs on demand for ethanol in the physical market. 

Analysis 

There are two key questions for the analysis of the impact of SREs on the physical demand for ethanol. 

First, what measure should be used to detect the impact? Second, what is the relevant time window? 

With respect to the first question, we do not want to examine the physical consumption of ethanol directly 

because ethanol use has trend and seasonal components. Instead, we want to remove trend and 

seasonal effects by examining consumption of ethanol relative to something else. In this case, there is an 

obvious something else-the consumption of gasoline. By dividing ethanol consumption by gasoline 

consumption, we obtain the blend rate for ethanol, a measure that should be normalized to systematic 

trends and seasonality, at least in recent years. 

We request all readers, electronic media and others follow our citation guidelines when re-posting articles 

from farmdoc daily. Guidelines are available here. The farmdoc daily website falls under University of 

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Illinois Copyright Information and Policies here. 

farmdoc daily September 13, 2018 
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Determining the time window for the analysis is not as clear-cut With the exception of two SREs 

reportedly granted for 2018, all of the SREs granted to date were retroactive for 2016 and 2017, and 

therefore, could not have impacted physical ethanol demand after the fact. However, the argument made 

by many in the corn ethanol industry is that the impact on ethanol consumption of SREs is indirect 

through incentives provided by D6 ethanol RINs. The granting of SREs did increase the supply of RINs 

substantially, with the EPA estimating that the size of the RIN bank ballooned to over 3 billion gallons. 

Naturally, this caused a large decline in RIN prices, which is then argued to have reduced incentives for 

physical blending of ethanoL Based on this logic, the relevant time window should start when the SREs 

were granted and D6 RIN prices dropped. Figure 1 presents weekly 06 RIN prices from April 3, 2008 

through September 6, 2018. The figure shows that 06 prices were around $0.90 per gallon in November 

2017 and !hen plummeted to the current level of around $0.20 per gallon. This suggests the impact of 

SREs on the physical demand for ethanol, if any, should start around December 2017. 

uo 

1.40 

1.20 

;; 1.00 

~ 

~ 0.60 " ·~ 

.. 0.60 

0.40 

0.20 

0.00 

Figure 1. Weekly (Thursday) DG Ethanol RINs Price, 04103/2008 

-09/0612018 

2007 2006 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Date Source: OPIS 

A further complication is that there are different methods for computing the ethanol blend rate, depending 

on the particular data series used. We follow Radich and Hill (2011) and compute three ethanol blend 

rates to determine whether the results are sensitive to different assumptions about the relevant data from 

the U.S. Energy Information Agency (EIA). All three measures are computed on a monthly basis because 

monthly EIA ethanol and gasoline consumption data are more accurate than weekly data because the 

monthly data is based on more comprehensive surveys. 

The first measure of the ethanol blend rate is presented in Figure 2 For January 2007 through June 2018. 

The EIA surveys refiners and blenders in the U.S. about the net input of ethanol into gasoline and this is 

used in the numerator, The EIA also surveys refiners and blenders about the net production of motor 

gasoline that is blended with ethanol. In other words, if a gallon of gasoline contains ethanol then it is 

counted towards the denominator of this measure. Based on this data, the ethanol blend rate started 

relatively high, a bit higher than 9 percent in 2007, rose quickly to around 10.5 percent in 2010, and then 

stayed remarkably stable through June 2018. The blend rate exceeds 10 percent with this measure 

because higher ethanol blends such as E15 and E85 are included in the·accounting but 100 percent 

petroleum gasoline (EO) is not. There does not appear to be any perceptible change in the ethanol blend 

rate with this measure starting in December 2017. In fact, the average ethanol blend rate for the seven 

months From May 2017 through November 2017, 10.6 percent. is exactly the same as the seven months 

between December 2017 and June 2018. 

2 farmdoc daily September 13, 2018 
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11 

10 

Figure 2. Monthly Net input ol Ethanol as a Percent ol Net U.S. 

Production of Motor Gasoline Blonded with Ethanol, 

January 2007 -June 201 B 

2007 2008 2000 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Year 

A potential limitation of the previous measure of the ethanol blend rate is that it does not reflect ethanol 

blended outside of the refiners and blenders surveyed by the EIA, and as noted above, the data series on 

gasoline does not reflect EO consumption. Both could bias the measure of the blend rate. The second 

measure of the ethanol blend rate attempts to correct for these two sources of bias by using more 

inclusive measures of physical ethanol and gasoline consumption. Rather than being a direct survey 

estimate, ethanol consumption for this measure is implied based on the ethanol balance sheet as follows: 

Domestic Use = Beginning Stocks + Production + Imports - Exports -Ending Stocks. 

This measure of physical ethanol consumption in th8ory includes all domestic sources (E10, E15, and 

E85) in the numerator of the blend rate. However, it also may be subject to more measurement error 

since consumption is implied. In this sense, it is analogous to the computation of feed and residual use 

on a corn balance sheet. Finished motor gasoline consumption is implied in a similar manner by the EIA, 

and therefore EO consumption is included in the denominator of the blend rate. 

Figure 3 presents the second ("implied") measure of the ethanol blend rate on a monthly basis over 

January 2007 through June 2018. As expected, this measure is noisier than the first one. It also starts at 

a much lower level because of the large amounts of EO that were being consumed in the early part of the 

sample. This measure of the ethanol blend rate started to consistently hit 10 percent in 2013 and has 

basically been in a fairly tight range near 10 percent ever since. There is an unusual amount of volatility 

in this measure of the blend rate starting in November 2017 when it hit 10.6 percent, reached another 

peak of 10.8 percent ir January 2018, dropped back to 9.5 percent in Apri12018, <>nd then recovered 

back to near 10 percent. It is possible that some of the decline in this measure of the blend rate in early 

2018 was related to SREs and the D6 incentive effect, but since the decline in the blend rate was not 

sustained, a more likely explanation is volatility associated with unusually large amounts of ethanol 

shipped by rail for the surging ethanol export market The coverage of ethanol in rail transit in EIA surveys 

is uncertain, and while in transit this would increase implied domestic ethanol consumption. Once the 

railed ethanol is counted in exports it would show up as a drop in implied domestic ethanol consumption. 

This explanation is consistent with the fact that the average ethanol blend rate declined very slightly from 

10.1 percent for the seven months from May 2017 through November 2017 to 10.0 percent for the seven 

months between December 2017 and June 2018. 

3 farmdoc daily September 13, 2018 
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11 

Figura 3. Monthly Implied Domestic Consumption of Ethanol as a 

Percent of U.S. Finished Motor Gasoline Supplied, 

January 2007 • June 2018 

2007 2009 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Source: EtA Year 

A third measure of the physical blend rate for ethanol takes into account gasoline exports. Some ethanol 

is likely blended in gasoline that is exported but it is not separately counted in EIA data. Therefore, in 

order to have the broadest possible measure of gasoline supplies, this third measure simply adds 

gasoline exports to the denominator of the second measure of the blend rate. Figure 4 presents the 

exports-included ethanol blend rate on a monthly basis over January 2007 through June 2018. Not 

surprisingly, this measure closely resembles lhe second measure, but with somewhat lower percentages 

due to the inclusion of gasoline exports in the denominator. This measure shows a slightly larger decline 

during the period in question, dropping from an average of 9.4 percent over the seven months from May 

2017 through November 2017 to an average of 9.1 percent for the seven months between December 

2017 and June 2018. However, this decline can be explained by surging gasoline exports, which reached 

record levels that exceeded 1 billion gallons each month between November 2017 and April 2018, and 

therefore, would depress this measurement of the ethanol blend rate. 

4 

11 

10 

Figure 4. Monthly Implied Domestic Consumption of Ethanol as a 

Percent of U.S. Finished Motor Gasoline Supplied and Motor 

Gasoline Exports, January 2007 • Juno 2018 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Source: EIA Year 

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Overall, the three measures of the ethanol blend rate provide a consistent picture of the 1m pact of SREs 

on physical consumption of ethanol There is little if any evidence that the blend rate for ethanol was 

reduced as the waivers went into effect. If there has been any ethanol "demand destruction" to date it 

was very small, perhaps a drop in the ethanol blend rate of a tenth, which equates to only about 140 

million gallons of ethanol consumption on an annual basis. This may seem counter-intuitive given the 

magnitude of the impact of SREs in reducing the conventional ethanol mandate and the precipitous drop 

in 06 RINs prices that followed. The answer turns out to be straightforward and something that has been 

discussed in several previous farmdoc daily articles (e.g., January 30, 2015, February 3, 2016, February 

17, 2016, March 15, 2017). The essential insight is that the demand for ethanol fundamentally consists of 

two segments, one for E10 and one for E15 and E85. 

The value of ethanol in E10 is based on two components: i) an energy (MPG) penalty relative to 

petroleum gasoline because ethanol has a lower energy content; and ii) an octane premium based on the 

generally lower price of ethanol relative to petroleum sources of octane. The analysis found in this 

farmdoc daily article (March 15, 2017) shows that the energy penally and octane premium for E10 almost 

exactly offset one another over time. This means that all else constant the breakeven price of ethanol in 

E10 is equal to the price of petroleum gasoline. With this background, consider Figure 5, which shows 

!he ratio of weekly wholesale prices in Chicago for ethanol and CBOB gasoline blend stock from January 

25,2007 through September 6, 2018. Pre-2012 ethanol prices are adjusted for the blender tax credit that 

was in place (VEETC). What this figure reveals is that ethanol prices since late 2017 have become very 

cheap relative to gasoline. In recent weeks, the ratio has fallen all the way to 0.60, which is near 

historical lows. This is the reason ethanol demand in the form of E10 has not been affected by SREs and 

low 06 RIN prices. Put differently, ethanol is a highly price competitive in the E10 gasoline blend in the 

U.S. at the present time and the conventional ethar1ol mandate up to the E10 blend wall is non-binding. 

2.26 

2.00 

1.76 

g 1.50 

~ 1.25 

0.25 

Figure 5. Weekly (Thursday) Ratio Ethanol to Wholesale 

CBOB Price at Chicago, 01125/2007. 09/06/2018' 

2007 2008 200S 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Date Source: OPIS 'VEETC Adjusted Pre-2012 

One possible concern with the above conclusion is that the tlmmg of the precipitous drop in the 

ethanol/gasoline price ratio since late 2017 roughly matches the drop in 06 RIN prices shown in Figure 1. 

If 06 prices are positively related to ethanol prices as many claim ("the incentive effect") then the fall in 

the price ratio could simply be due to a 06-driven decline in ethanol prices. This Is not the case. Figure 6 

shows the underlying ethanol and CBOB gasoline prices used to compute the price ratio in Figure 5. It is 

clear that the fall in the ethanol/gasoline price ratio since late 2017 is almost entirely due to the jump ir1 

gasolir1e prices, as ethanol prices moved in a narrow sideways range. Figure 7 provides further evidence 

in this regard by plotting the wholesale ethanol price versus the 06 ethanol RIN price. The lack of 

correlation is obvious. 

5 farmdoc daily September 13, 2018 
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4.00 

3.60 

3.00 

oi 2.60 

~ Gl 2.00 {! 

.. 1,60 

1.00 

0.60 

0.00 

Figure 6. Weekly (Thursday) Wholesale CBOB and Ethanol 

Price at Chicago, 01/25/2007 • 09/06/2018 

C80El 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2018 2017 2018 

Date Source: DPIS 

~ ~ 

~ 'C 

.. 

0 

; 

:5 

"' 

4.00 

3.60 

3.00 

2.60 

2.00 

1.50 

1.00 

0.50 

0,00 

Figure 7. Weekly (Thursday) Wholesale Ethanol Price at 

Chicago and 06 Ethanol RIN Price, 01/2512007.09/0612018 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 

Date Source: OPIS 

uo 

1.40 

1.20 

1.00 

0,80 

0.80 

0.40 

0.20 

c 

0 

'ii 

~ 

~ .. 

z 

i2 

8 

The story for E15 and E85 is quite different from E 10. While there is some controversy in this regard. it is 

generally acknowledged that the additional octane in E15 and EB5 does not provide extra value, and 

therefore, there is no offset to the energy (MPG) penalty for these higher ethanol blends. Further, the 

energy penalty is larger for E15 and E85 simply because the ethanol content is higher than for E10. This 

means that, unlike E1 0, higher ethanol blends are not price competitive at the pump without a subsidy. 

06 RINs (in theory) provide the subsidy needed to incentivize drivers to purchase E15 and EBS, and 

therefore, the demand for higher ethanol blends above the E 10 blend wall depends on 06 RIN prices. If 

SREs drove 06 RIN prices below the level necessary to incentivize E15 and EB5 consumption, then 

demand for this segment of physical ethanol consumption would be reduced by SREs. A recent study by 

Lade, Pouliot, and Babcock (201 B) suggests this is precisely what happened, However, consumption of 

E15 and EB5 is so small and difficult to measure that it barely registers in the aggregate statistics on 

physical ethanol consumption. With at most a few hundred million gallons of ethanol consumed in E15 

and EBS, cutting demand in this segment has little overall effect. 

6 farmdoc daily September 13,2018 
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Implications 

There is widespread interest in whether small refinery exemptions (SREs) under the RFS have 

"destroyed" demand for ethanol in the physical market. It seems obvious that this would be the case 

since SREs have the effect of waiving more than a billion gallons of the conventional ethanol mandate 

under the RFS. However, analysis of data on ethanol and gasoline consumption in the U.S. shows there 

is little if any evidence that the blend rate for ethanol has been reduced by SREs. If there has been any 

ethanol "demand destruction" to date it was very small, perhaps a drop in the ethanol blend rate of a 

tenth, which equates to only about 140 million gallons of ethanol consumption on an annual basis. The 

reason for this counter-intuitive result is that all but a tiny sliver of ethanol in the U.S. is consumed in the 

form of E1 0 and the price of ethanol in recent months has been very low relative to gasoline. The price 

competitiveness of ethanol in E10 means that the conventional ethanol mandate is non-binding up to the 

E10 blend wall. 

This finding does not preclude SREs from having an impact on ethanol demand in the future or a demand 

impact on other biofuels at the present time. First, if the price of ethanol increases sharply, say, due to 

corn supply problems at some point in the future, then ethanol could become expensive enough relative 

to gasoline that the conventional mandate would become binding even for E1 0. SREs could result in 

some destruction of physical demand for ethanol under this scenario. Second, SREs have in all 

likelihood reduced the demand for ethanol in the form of E15 and E85. While the magnitude of this 

impact is very small at the present time, it also means that further expansion of the demand for higher 

ethanol blends is not in the cards so long as SREs are granted (and not reallocated). Third, the demand 

for biomass-based diesel in all likelihood has been reduced in direct proportion to the impact of SREs on 

total obligated gasoline and diesel gallons because the biomass-based diesel mandate is highly binding. 

This form of "demand destruction" from SREs will be explored in a future farmdoc daily article. 

References 

Coppess, J. and S. Irwin. "EPA 2019 RFS Proposed Rulemaking: What You See Is Not What You Get'' 

farmdoc daily (8): 128, Department of Agricultural and Consumer Economics. University of Illinois at 

Urbana-Champaign, July 12, 2018. 

Federal Register, Vol. 83, No.132, Proposed Rules. July 10,2018. https:/lwww.gpo.gov/fdsyslpkg/FR20 18-07-1 0/pdf/20 18-14448.pdf 

Federal Register, VoL 75, No.236, Rules and Regulations, December 10, 2010. 

https :llwww.gpo.gov/fdsys/pkg/FR -201 0-12-09/pdf/20 1 0-30296 .pdf 

Irwin, S. and D. Good. "On the Value of Ethanol in the Gasoline Blend." farmdoc daily (7):48, Department 

of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign. March 15,2017. 

Irwin, S., and D. Good. "More on the Competitive Position of Ethanol as an Octane Enhancer." farmdoc 

daily (6):31, Department of Agricultural and Consumer Economics, University of Illinois at UrbanaChampaign, February 17. 2016. 

Irwin, S. and D. Good. "The Competitive Position of Ethanol as an Octane Enhancer." farmdoc daily 

(6):22. Department of Agricultural and Consumer Economics. University of Illinois at Urbana-Champaign, 

February 3, 2016. 

Irwin, S., and D. Good. "Further Evidence on the Competitiveness of Ethanol in Gasoline Blends." 

farmdoc daily (5):17, Department of Agricultural and Consumer Economics, University of Illinois at 

Urbana-Champaign, January 30, 2015. 

Lade, G.E., S. Pouliot. and BA Babcock. "E15 and E85 Demand Under RIN Price Caps and an RVP 

Waiver." CARD Policy Brief 18-PB-21, Iowa State University, March 2018. 

https:l/www.card.iastate.edu/products/publicationslpdf/18pb21.pdf 

Radich, T., and S. Hill. "Issues and Methods for Estimating the Share of Ethanol in the Motor Gasoline 

Supply." U.S. Energy Information Administration, October 6, 2011. 

https :1/www. e ia. gov/working papers/ pdf I ethano I_ blend_ ratio .pdf 

7 farmdoc daily September 13, 2018 
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farm doc 

More on Small Refinery Exemptions and Ethanol Demand Destruction 

Scott Irwin 

Department of Agricultural and Consumer Economics 

University of Illinois 

December 13, 2018 

farmdoc daily (8): 228 

Recommended citation format: Irwin, S. "More on Small Refinery Exemptions and Ethanol Demand 

Destruction." farmdoc daily (8): 228, Department of Agricultural and Consumer Economics. University of 

Illinois at Urbana-Champaign, December 13,2018. 

Perm alink: https ://farmdocdaily. illinois .edu/2018/12/more-on-small-refinery-exemptions-and-ethanoldemand-destruction.html 

The impact of small refinery exemptions (SREs) under the RFS continues to be a highly controversial 

subject. While there is no doubt that SREs have opened a backdoor mechanism for the EPA to reduce 

the statutory and obligated RFS volumes (farmdoc daily, July 12, 2018), there is sharp disagreement 

about the impact of SREs on the physical consumption of ethanol. Some argue that physical ethanol 

demand has been unaffected, while others argue there has been substantial destruction of demand in the 

physical ethanol market due to the SREs. An earlier farmdoc daily article (September 13, 2018) reported 

little evidence that the blend rate for ethanol had been reduced by SREs through June 2018. Since the 

impact of SREs likely started no earlier than December 2017, it is important to revisit the issue with more 

up-to-date data. The purpose of this article is to investigate the impact of SREs on demand for ethanol in 

the physical market using data through September 2018. In addition, the reason for the extreme volatility 

in the implied ethanol blend rate during the second half of 2017 and the First half of 2018 is investigated. 

Analysis 

When the U.S. Congress first created the RFS in the Energy Policy Act of 2005 (P.L. 109-58) it included a 

temporary exemption for small refineries from the mandate through 2011. Under the Obama 

Administration, SREs were rarely granted after 2011. This changed radically under the Trump 

Administration, Which granted a total of 48 SREs retroactively for 2016 and 2017. As detailed in th1s 

farmdoc daily article (July 12, 2018), SREs effectively reduced the conventional ethanol mandate for 2017 

from 15 billion gallons to 13.9 billion gallons. This was not only a large reduction in absolute terms, but it 

also resulted in the conventional mandate being set below the E10 blend wall. If similar numbers of 

SREs are granted for 2018 and 2019, comparable reductions in the effective conventional ethanol 

mandate should be expected (assuming the SRE volumes are not reallocated to non-exempt obligated 

parties). 

We examine here two of the three measures of the ethanol blend rate used in the farmodc daily article of 

September 13, 2018 in order to test the impact of SREs on ethanol demand. We do not consider the 

blend rate measure that includes gasoline exports here because of concerns about the noise added by 

gasoline exports. The first measure of the ethanol blend rate is based directly on EIA surveys. The 

We request all readers, electronic media and others follow our citation guidelines when re-posting articles 

from farmdoc daily. Guidelines are available here. The farmdoc daily website falls under University of 

Illinois copyright and intellectual property rights. For a detailed statement. please see the University of 

Illinois Copyright Information and Policies here. 

farmdoc daily December 13, 2018 
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numerator is U.S. refiner and blender net input of ethanol in gasoline and the denominator is U.S. refiner 

and blender net production of motor gasoline that is blended with ethanol. In other words, if a gallon of 

gasoline contains ethanol then it is counted in the denominator of this measure. Potential limitations of 

this first measure of the ethanol blend rate are twofold: i) it does not reflect ethanol blended outside of the 

refiners and blenders surveyed by the EIA; and ii) the survey on gasoline blending does not reflect EO 

consumption. Both could bias the measure of the blend rate. 

The second measure of the ethanol blend rate attempts to correct for the two sources of bias mentioned 

above by using more inclusive measures of physical ethanol and gasoline consumption. Rather than 

being a direct survey estimate, ethanol consumption for the second measure is implied based on the 

ethanol balance sheet as follows: 

Domestic Use Beginning Stocks + Production + Imports Exports- Ending Stocks. 

This measure of physical ethanol consumption in theory includes all domestic sources (E10, E15, and 

E85) in the numerator of the blend rate. However, it also may be subject to more measurement error 

since consumption is implied. Finished motor gasoline consumption is implied in a similar manner by the 

EIA, and therefore EO consumption is included in the denominator of this version of the blend rate. 

Figure 1 presents the first measure of the ethanol blend rate on a monthly basis over January 2007 

through September 2018. Based on this data, the ethanol blend rate started relatively high, a bit higher 

than 9 percent in 2007, rose quickly to around 10.5 percent in 2010, and then stayed remarkably stable 

through September 2018. The blend rate exceeds 10 percent with this measure because higher ethanol 

blends such as E15 and E85 are included in the accounting but 100 percent petroleum gasoline (EO) is 

nat. There does not appear to be any perceptible change in the average ethanol blend rate with this 

measure during 2017 or 2018. 

11 

10 

Figure 1. Monthly Net Input of Ethanol as a Percent of Net U.S. 

Production of Motor Gasoline Blended with Ethanol, 

January 2007 ·September 2018 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Source: EIA Year 

Figure 2 presents the second ("implied") measure of the ethanol blend rate on a monthly basis over 

January 2007 through September 2018. As expected, this measure is noisier than the first one. It also 

starts at a much lower level because of the large amounts of EO that were being consumed in the early 

part of the sample. This measure of the ethanol blend rate started to consistently hit 10 percent in 2013 

and has generally been in a fairly tight range near 10 percent ever since. There is an unusual amount of 

volatility in this measure of the blend rate starting in November 2017 when it hit 10.6 percent, reached 

another peak of 10.8 percent in January 2018, dropped back to 9.5 percent in April2018, and then 

2 farmdoc daily December 13, 2018 
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recovered back to near 10 percent. Once again, there does not appear to be any perceptible change <n 

the average ethanol blend rate during 2017 or 2018 with this second measure. 

11 

Figure 2. Monthly Implied Domestic Consumption of Ethanol as a 

Percent of U.S. Finished Motor Gasoline Supplied, 

January 2007 ·September 2018 

10 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 

Source: EIA Year 

In order to more formally analyze changes in ethanol blend rates in relation to SREs, average blend rates 

for various breakpoints are presented in Table 1. The first breakpoint is December 2017, which is when 

the price of D6 RINs began to decline sharply. The argument is that granting of SREs increased the 

supply of R!Ns substantially and caused a large decline in RIN prices. This in turn is allegeded to have 

reduced incentives for physical blending of ethanol. Averages are computed for the 10 months before 

and after December 2017. The second breakpoint is February 2018, when the implied blend rate 

dropped sharply. In this case, averages are computed for the same February-September period in 2017 

and 2018. The third breakpoint is January 2018 in order to compute year-to-date average blend rates for 

2017 and 2018. 

____ Table 1. Average U.S. Ethanol Blend Rates for Various Breakpoints 

Average Net Input Average Implied Domestic 

Comparison Blend Rate (%) Blend Rate (%\ 

RIN Price Break: 

February 2017 - November 2017 

December 2017 - September 2018 

Blend Rate Break: 

FebruarY 2017- September 2017 

February 2018- September 2018 

Year to Date Break: 

January 2017- September 2017 

Januarv 2018- September 2018 

10.64 10.09 

10.65 10.03 

10.65 10.00 

10.65 9.94 

10.64 10.02 

10.65 10.03 

Regardless of the break point considered, Table 1 shows that the average ethanol blend rate based on 

net inputs (first measure) is virtually unchanged at 10.64 or 10.65 percent. There is some evidence of a 

verY slight decline in the average implied blend rate (second measure) depend1ng on the breakpoint 

3 farmdoc daily December 13, 2018 
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considered. Both the RIN price (December 2017) and the blend rate (February 2018) breaks show 

declines in the average blend rate of 0.06 percent. II is important to keep in mind that the decline in 

average rates is less than one-tenth of a percent in these cases. The year-to-date comparison shows 

almost no difference in average implied blend rates for 2018 versus 2017. 

Overall, the comparisons in Table 1 provide very little evidence that the blend rate for ethanol has been 

reduced by SREs. If there has been any physical ethanol "demand destruction" to date it has been very, 

very small, perhaps a drop in the ethanol blend rate of a half-a-tenth or so, which equates to only about 

70 million gallons of ethanol consumption on an annual basis. This may seem counter-intuitive given the 

magnitude of the impact of SREs in reducing the conventional ethanol mandate and the precipitous drop 

in 06 RINs prices that followed. As discussed in the farmdoc daily article on September 13, the answer is 

simply that all but a tiny sliver of domestic ethanol is consumed in the form of E1 0 and ethanol is highly 

price competitive in the E10 gasoline blend in the U.S. The implication is that the conventional ethanol 

mandate up to the E1 0 blend wall is non-binding, and thereforo, SREs should not have any impact on this 

component of domestic ethanol demand. This is not the case for E15 and E85 demand, which should be 

highly sensitive to the price of 06 RINs. However, the amount of ethanol consumed in the form of these 

higher blends is so small that any RIN price incentive effect barely registers in the aggregate amount of 

ethanol consumed in the U.S. 

One remaining issue is the extreme volatility of the implied ethanol blend rate (Figure 2) in the second 

half of 2017 and the first half of 2018. It is possible that some of the sharp decline in this measure of the 

blend rate in early 2018 is related to SREs and the D6 incentive effect, but since the decline in the blend 

rate was not sustained, this argument is not persuasive. In addition, the D6 incentive effect cannot 

explain the sharp increase in the implied blend rate in the second half of 2017. The likely explanation is 

measurement error in EIA export surveys. The issue is coverage of ethanol in rail transit in EIA export 

surveys. Ethanol being transported by rail for export should be counted in the current EIA production 

survey as having been produced but it may not yet be counted as exported in the EIA export survey 

because it is in transit. This has the effect of inflating implied domestic use of ethanol in the current 

month because ethanol that is produced has to be balanced by usage. The impact on implied domestic 

use is reversed in the following month when the ethanol in transit is properly counted as part of exports. 

Of course, the larger the amount of ethanol in rail transit for exports the large the impact on implied 

domestic use. It is interesting to note that exactly the same issue arises in grain markets when implying 

feed and residual use (Irwin, Sanders, and Good, 2014). 

Figure 3 provides confirmation that measurement errors in the EIA export survey are the likely culprit in 

explaining the volatility in the implied domestic blend rate in the second half of 2017 and first half of 2018. 

The red line in the figure is the implied domestic blend rate in the current month and the blue line is 

ethanol exports in the following month. There is clearly a positive relationship between the current 

implied blend rate and the following month's exports, consistent with the logic laid out in the previous 

paragraph. In particular, the surge in ethanol exports in the second half of 2017 and early 2018 must 

have been associated with large amounts of ethanol in transit for ethanol. This created the appearance 

of a surge in implied domestic ethanol use and the implied ethanol blend rate over this same time period. 

Once the surge in ethanol exports receded, there was a compensating drop in implied domestic ethanol 

use and the implied ethanol blend rate. While this episode is a dramatic illustration of the impact of 

measurement errors on implied ethanol blend rates, Figure 4 shows this is not an isola led phenomenon, 

but, rather, a systematic tendency in the data for some time. 

4 farmdoc daily December 13, 2018 
493 


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250 

200 

... 

" ' 0! 

" 150 .g 

! 

~ 100 0 

c. 

.ll 

50 

11 

~ 11 

!I 

~ , 10 

" .. 

iii 

~ 10 0 

:! 

" 

~ ::J 

u 

B 

Implications 

Figure 3. Current Month Implied Domestic Blend Rate for Ethanol 

and Following Month Ethanol Exports, January 2016- September 

2018 

Q 

Figure 4. Relationship Between Current Month Implied 

Domestic Blend Rate for Ethanol and Following Month Ethanol 

Exports, January 2010 ·September 2018 

50 

• 0 

100 

• a 

150 

y = 0.426Gin(x) • 7.9593 

R': 0.4132 

200 

Following Month Exports (mil. gal.) 

11.0 

10.6 

10.6 

10.4 

10.2 ~ 

$ 

10.0 ~ ., 9.6 ., 

.l1 " 

9.6 

9.4 

9.2 

9.0 

6.8 

250 

There is widespread interest in whether small refinery exemptions (SREs) under the RFS have 

"destroyed" demand for ethanol in the physical market. It seems obvious that this would be the case 

since SREs have the effect of waiving more than a billion gallons of the conventional ethanol mandate 

under the RFS. The updated analysis in this article shows even less evidence that the blend rate for 

ethanol has been reduced by SREs. If there has been any ethanol "demand destruction" to date it was 

very, very small. perhaps a drop in the ethanol blend rate of a half-a-tenth or so, which equates to only 

about 70 million gallons of ethanol consumption on an annual basis. The reason for this counter-intuitive 

5 farmdoc daily December 13, 2018 
494 


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result is that all but a tiny sliver of ethanol in the U.S. is consumed in the form of E10 and ethanol is very 

price competitive in the E10 gasoline blend. This article also shows how measurement errors in the EIA 

export survey likely explain the extreme volatility of the implied domestic blend rate in the second hall of 

2017 and first half of 2018. 

As discussed previously (farmdoc daily, September 13, 2018), the finding that SREs have not had a 

material impact on physical ethanol demand to elate does not necessarily mean that all biofuels demand 

has been unaffected. First, the drop in RIN prices associated with SREs should have reduced E15 and 

EB5 demand. While the magnitude of this impact is very small now, it also precludes further expansion in 

the demand for higher ethanol blends so long as SREs are granted (and not reallocated). Second, the 

demand for biomass-based diesel in all likelihood has been reduced in direct proportion to the impact of 

SREs on total obligated gasoline and diesel gallons because the biomass-based diesel mandate is highly 

binding. 

References 

Coppess, J. and S. Irwin, "EPA 2019 RFS Proposed Rulemaking: What You See Is Not What You Get." 

farmdoc daily (8):128, Department of Agricultural and Consumer Economics, University of Illinois at 

Urbana-Champaign, July 12,2018. 

Irwin, S. "Small Refinery Exemptions and Ethanol Demand Destruction." farmdoc daily (8):170, 

Department of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign, 

September 13,2018. 

Irwin, S.H., O.R. Sanders, and D.L. Good. "Evaluation of Selected USDA WAOB and NASS Forecasts 

and Estimates in Com and Soybeans." Marketing and Outlook Research Report 2014-01, Department of 

Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign, January 2014. 

farmdoc daily December 13, 2018 
495 

Senator BARRASSO. Senator Carper. 

Senator CARPER. I have a couple UC requests, Mr. Chairman. 

First of all, Mr. Chairman, I ask unanimous consent to submit for 

the record articles that describe Mr. Wheeler’s troubling decision to 

continue his predecessor’s efforts to weaken EPA’s enforcement 

power, including maintenance of the sue and settle directive 

changes, and the Clean Water Act enforcement, and the twice introduced proposal to eliminate the Office of Environmental Justice. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

496 


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1115/2019 Trump's Nom1nee to Head the EPA Really Loves Coal 

POLITICS I JAN. 10. 2019 

Andrew Wheeler Is Bad News for Coal Miners 

and Environmentalists Alike 

By Sarah .Jones 

,\ndrew Wheeler. Photo: Andrew Harrer/Bloomberg ,·ia Getty Images 

Donald Trump formally nominated Andrew Wheeler to be the Environmental Protection 

Agency's new administrator, the White Honse annonnced on Wednesday. Wheeler has 

been the EPA's acting administrator since last July, when his predecessor and former boss, 

Scott Pruitt, resigned amid a corruption scandal. The prospect of administrator Wheeler 

presents its own ethics concerns: Wheeler is a former coal lobbyist, and his ties to K Street 

create a number of possible conflicts of interest. The Sierra Club, an environmental 

advocacy group, has filed an open records request for thousands of emails between EPA 

officials and fossil-fuel industry representatives. The Washington Postreported on Monday 

that a federal judge has ordered the EPA to release those emails within the next ten 

http.//nymag,com!1nteUigencer/2019/01/trumps-nominee-to-head-the-epa-really-loves-coal.html 1!3 
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1/15/2019 Trump's Nom1nee to Head the EPA Rea!!y Loves Coal 

months. "The agency had initially asked the court to have until 2022- halfway into the 

next presidential term- to complete the requests," the Postwrote. 

Wheeler's nomination also affirms the Trump administration's persistent commitment to 

the fossil-fuel industry. Though Wheeler is generally regarded as a more competent 

administrator than Pruitt, his actual policies differ little from those of his predecessor. He 

is a climate denialist, and as Carolyn Kormann reported for 71w New Yorker in July 2018, 

he pushes a deregulatmy agenda informed by his free-market economic commitments, not 

hy scientific evidence. Wheeler makes much of his status as the grandson of a coal 

miner; Rolling Stone reportedlast November that he mentioned the connection in his first 

remarks to EPA staffers. "My grandfather was a coal miner during the Depression," he 

said. "My grandmother raised her children in the coal camps in West Virginia. In fact, I still 

have some of the company scrip that she used to buy food in the company store." 

Maybe Wheeler longs for the good old days. Under Pruitt's watch, the EPA relaxed 

regulatory standards on the storage of coal ash, which can leak into local water sources 

and poison people, and there's no reason to think Wheeler will change course. As a 

lobbyist, he represented Murray Energy, the largest coal operator in the country. Trump 

has been good for Murray. In June 2018, the company managed to avoid insolvency thanks 

to news that the Trump administration planned a bailout of coal and nuclear plants. 

Murray's debt holders were encouraged by the development, Bloomberg reported at the 

time, and "agreed to refinance a chunk ofthe company's bonds and loans." In December, 

during Wheeler's time as acting administrator, the EPA introduced a proposal that "would 

require new power plants to have more advanced technology than in their older 

counterparts and proposes a higher limit on how much carbon dioxide they can release," 

ABC News reported. If these new rules go into effect they would make it easier for 

corporations to create new coal plants, as ABC noted at the time. 

The Trump administration's conciliatory posture toward the coal industry is expansive, 

involving other federal agencies and departments. While Wheeler waited in the wings at 

the EPA, Labor Secretary Alexander Acosta eased federal oversight of West Virginia's 

Affinity Mine, which is operated by Pocahontas Coal Company. As NBC News reported in 

September, Affinity had become subject to "tough enforcement actions" because of a 

http llnyrPag.comlintelligencerl201 9/01/trumps-nommee-to-head-the-epa-really-foves-coal.htrn! 213 
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1115/2019 Trump's NOminee to Head the EPA Really loves Coal 

pattern of safety violations. Wheeler obviously doesn't make Acosta's decisions, but the 

Affinity case does help illustrate the potential impact of Wheeler's continued tenure at the 

EPA. A proliferation of coal plants plus the deregulation of coal-ash storage and a rollback 

of worker-safety oversight spells trouble both for the environment and for coal miners 

themselves. Wheeler might be the proud grandson of a miner, but if the Senate confirms 

his nomination, he'll probably make mining communities even more difficult places to live. 

TAGS POLITiCS DO~ALD TRUMP COAL E~V!RO;.IMENT :>.10RE 

http //nyma g. corn/inte lligencer/2 0 1 910 1 /trumps~nomi nee-to-head-the-epa-really -loves-coat him! 3/3 
499 


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CLIMATE 

Scott Pruitt's Environmental 

Rollbacks Stumbled in Court. 

His Successor Is More Thorough. 

BByUsaFriedman 

21,2018 

Want cltmate news in your mbox? Sign up here for Climate Fwd: our email newsletter 

WASHINGTON Before resigning as the head of the Environmental Protection Agency this year, Scott Pruitt delighted President 

Trump with hts zeal for proclaiming sweeping regulatory rollbacks, even though he left behind a trail of courtroom setbacks. 

Andrew K Wheeler, a former energy lobbyist whom Mr. Trump plans to nominate to lead the E.P.A., has been quietly cleaning up 

the mess. 

Where virtually a!! of Mr. Pruitt's hastily written rollbacks and suspensions have been blocked by the courts, Mr. Wheeler has taken 

a far more deliberative approach, immersing himself in the legnl intricacies-- a strategy that could make Mr. Wheeler one of the 

most effective drivers of the Trump administration's ambitious plan to rewrite the nation's rule book on the environment and 

climate. 

"He's done a fantastic job," Mr. Trump said Friday of Mr. Wheeler, who has served as the E.P.A.'s acting administrator since Mr. 

Pruitt stepped down in July amid a \vave of ethics scandals. Supporters say the White House sees in Mr. Wheeler the anti-Pruitt: 

drama-free, low-key, and, most importantly, able to get the proposed rollbacks through the courts. 

In doing this, however, Mr. Wht:"eler has already found himself at odds not only with conservative groups but others within his own 

administration. 

But these tensions underscored what many say is the essential cilfference between Mr. Trump's f1rst and second choices for E.P.A. 

chief: Where Mr. Pruitt sought the limelight, Mr. Wheeler sweats the details. And that could make him a far more formidable weapon 

than his predecessor in the Trump administration's vast reshaping of environmental and climate rules. 

"Andy Wheeler is one of the few calm spots in the turbulent seas of this executive branch," said Scott Segal, a fossil fuel lobbyist for 

Bracewell who has worh-:ed closely with Mr. Wheeler. "That must come as a pretty welcome relief to thls White House." He also has 

"sufficient process understanding to make that agenda stick," Mr. Segal added. 

This summer, for instance, the KP.A. took steps to replace the Clean Power Plan, a major Obama administration policy designed to 

reduce greenhouse gas emissions from power plants. The new version of the plan is significantly weakeL 

But Mr. Pruitt had wanted to eliminate the program entirely, while Mr. Wheeler, according to several industry sources, insisted that 

the government was legally obligated to have a climate plan. Therefore, eliminating the Clean Power Plan without replacing it could 

be challenged in court and leave an opening for even tougher regulations under a future Democratic president. 

"I got phone calls from conservatives wanting to know, 'Why did we do anything? Why are we putting forward a proposal at all?''' 

Mr. Wheeler acknowledged in an interview last week. His argument, that more restrictive replacement is better than killing off the 

climate regulation entirely, won the day 

Then, in August, the E.P.A. and the Transportation Department moved to gut another major fed era! e>ffort to combat climate change 

by relaxing rules aimed at reducing car tailpipe pollution. The Trump adm\mstration plan a!so voided California's ability to set its 

own, stricter standards, triggering potentially ugly legal battle between Washington and blue states over the abtli:y to fight global 

warmmg. 
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CLIMATE 

Mr. Wh~e!er, left, and Mr, Pruitt, during Mr. Wheeler's swearing in as deputy administrator 

m ApnL He became acting administrator m July. us. Env1romnental PnHe<:tJon Agency 

That hasn't endeared him to environmental groups, however. In fact, many say Mr. Wheeler's softer touch has made it harder to 

focus the public's attention on his weakening of clean air and water laws. 

"In some ways Pruitt distracted from some of the very negative things that were going on in environmental law, but in other ways 

there was a lot of attention being paid to E.P.A.," said Conrad Schneider, advocacy director for the Clean Air Task Force, an 

environmental nonprofit organization. 

Analysts on both sides say Mr. Wheeler is more pragmatic than his predecessor and more disciplined. Where Mr. Pruitt would throw 

his energy into ideological battles, like trying to create support for a military-style televised debate of climate science, Mr. Wheeler 

has eschewed the limelight and strategically focused on a handful of major policy initiatives. 

Under Mr. Wheeler's watch, the E.P.A. has moved forward with rolling back or weakening every major Obama-era climate change 

regulation. In addition to the proposal to loosen car pollution rules, those moves include replacing a landmark effort to curb 

greenhouse gas emissions from coal-fired power plants with a plan that the agency says will see air pollution actually rise, and 

reducing limits on methane pollution, a powerful greenhouse gas, from oil and gas wells. 

He also has focused on work begun by Mr. Pruitt to revise Mr. Obama's clean water regulation, known as the Waters of the United 

State rule, saying on Friday that the revisions "will be coming out soon." He has taken on an effort to weaken and perhaps repeal a 

2011 rule that limits mercury, a toxic chemical that is emitted from coal plants. 

And, while he has pushed back to 2020 a plan initiated by Mr. Pruitt to impose broad new restrictions on the types of scientific 

research the E.P.A. uses to write regulations, he said he fully intended to finalize it. Emails obtained by the Union of Concerned 

Scientists, an advocacy group, have found that Mr. Pruitt's political staff excluded the E.P.A.'s chief science adviser from helping to 

design the rule. The group says the absence of scientists in the writing of the regulation undermined the administration's argument 

that the proposal was done in the interest of science. 

"Which is why we're taking our time with it now," Mr. Wheeler said. "It was proposed before I got here.'' 

However, under Mr. Wheeler, the E.P.A. also has eliminated the office of chief science adviser. 

"By word and deed, Wheeler is proving to be as bad and dangerous as Pruitt," said John Walke, clean air director at the Natural 

Resources Defense CounciL 

Conservatives see Mr. Wheeler and his predecessor in a different light. Among them is Myron Ebell, who led Mr. Trump's E.P.A. 

transition team. "Pruitt was an outstanding advocate for the Trump agenda, and now it's up to Andy Wheeler to be the outstanding 

implementer of the Trump agenda," Mr. Ebell said. 

For more news on climate and the environment, follow @NYTCiimate on Twitter, 
501 


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Mr. Wheelerct.lt?.fRffling to several people involved in t~ij~"%Ji~R~1Ui~eack forcefully against an analysis used by highway 

offkials to jmtify the rolltnck, ·wi'tich argued that :'>i.tkter fuel pvliution i·ulcs wvuld cause thousands of deaths in road accidents. Tl!;;: 

agency argued that more efficient cars arc less safe because they are lighter. 

People who have attended meetings with Mr. Wheeler said he argued that the fatality numbers relied on bad calculations and were 

likely to be successfully challenged in court. 

Mr. Wheeler on Friday denied that he had clashed with Jeffrey A. Rosen, the chief Transportation Department architect of the autostandards rollback, saying he merely sought to understand his colleagues' mathematical modeling and legal reasoning. "I wanted to 

make sure what we were putting forward would be upheld in the courts, and he assured me that the work they had done would be," 

Mr. Wheeler said. 

A department official, speaking on condition of anonymity because he was not authorized to speak on the record, said on Tuesday 

that there was "no dispute" between the agencies. 

Mr. Wheeler's predecessor, Mr. Pruitt, faced more than a dozen federal investigations into his conduct, including his extensive use of 

first-class air travel, renting a condo from the wife of an energy lobbyist with busin€ss before the E.P.A. and enlisting aides on 

personal tasks like buying a used mattress from Trump Internalional Hotel and seeking a Chick·fi!*A franchise for his wife. 

The grandson of a coal miner and an Ohio native, Mr. Wheeler studi<~d biology in college and got his first job after law school in the 

1990s working at the E.P.A's office of pollution prevention and taxies. He later worked in the Senate for 1<1 years, most of that time 

for Senator James Inhofe, an Oklahoma Republican who has denied the established science of climate change. 

During that time, Mr. Pruitt was seen as a protege of Senator Inhofe. The senator last week said he strongly supported Mr. 

Wh~~eler's nomination. 

As an energy lobbyist since 2009, Mr. Wheeler's top client was Robert E. Murray, the chief executive of one of the country's largest 

coal companies, a fierce opponent of E.P.A. climate change regulations and a denier of established cllmate science. 

Asked last week to des('ribe his understanding of the best available science on global warming, Mr. Wheeler said: "I think climate 

change is happening. Man has an 1m pact. C02 has an impact." 

It's not a full acceptance of the scientific consensus that humans are the dominant cause of rising global temperatures. But it's closer 

to it than the positions of Mr. Pruitt, who falsely claimed that there was "tremendous disagreement" among scientists about how 

great a role humans play in driving warming, or Mr. Trump, who said "I don'r know that it's man-made." 

Still, Mr. Wheeler argued, sweeping regulations, like the plan put forth by the Obama administration to force a shift toward 

renewable energy by asking states to reduce emissions from coal plants, would have "basically ended the coal industry in the United 

States," 

"People have to realize the usc of coal worldwide has not peaked,'' Mr. Wheeler said. 

Since taking over as acting E.P.A. administrator, Mr. Wheeler has replaced Mr. Pruitt's artwork of Henry Clay, a former senator and 

secretary of state, with wall hangings of the Senate roll call vote for a highway spending bill he helped pass in 2005 and the bronze 

medals he earned for budgetary work at E.P.A in the 1990s. He said he has not needed to use the $43,000 secure phone booth Mr. 

Pruitt installed. 

He also has made a point of being more deeply involved in the agency's inner workings. He visited alllO of the E.P.A.'s regional 

offices at the start of his tenure and has involved the agency's longtime career employees in policy meetings, things Mr. Pruitt hadn't 

done, Moves like these have won praise from some of Mr. Pruitt's fiercest critics. 

"He's somebody that respects tt1e institution of the E.P.A.," Kevm Mino!i, the E.P.A.'s former top ethics counsel who had called for 

investigations into Mr. Pruitt, said of Mr. Wheeler. 
502 


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Correction: t!~~er 21,2018 i!Ebr )\"rill Hork (!!imrs 

An ;;:u_rUcr 'v'E:r':>ic;; v.t :::.is a.rticic rt;{tPJ.Zd ii<CO<I£Ctiy tG a w·or!~ G.f wrth.at ;,;:us iTPI<G\:cdfnJn< thf E.I'.A. a.dmir;iatratvr':; of.tkc. It ',.;.:a:;(< 

ponrait of Henry Clay, not former President James Madison. 

L1sa Fnedman reports on climate and env1ronmenta! poliCY m Washmgton. A former 

ed1tor at Cl:matew1re. she has covered nme mternat1onal climate talks. @LFFr:edman 
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1/15/2019 

Just ln •.• 

EPA braces for onslaught of lawsu1\s m 20191 The Hili 

EPA braces for onslaught of Ia, 

in 2019 llY TIMOTHY CAMA·12i1:l/l1J 08 :w 1\M f~1 

195 SHARES 

;~~e~~~~i~oni~:~~tost .C>< local news 

Trump shares article 

blasting federal 

workers, calling for fang 

shutdown 

Rhode Island governor 

will commit to 

achieving universal 

preschool in state 

We should offset 

emergencies- just not 

right away 

New York legislators 

pass sweeping overhaul 

of voting laws 

STATE WATCH- 5M 145 AGO 

Hirano says she can't 

trust Trump on 

shutdown talks: 'His 

word is not good' 

Clapper: 'Americans 

should be very 

concerned' about lack 

of notes from Trump· 

Putin meetings 

Barr hearing marks first 

time Senate Judiciary 

The Environment\31 Protection Agency (EPA) Is confident that its prospects 

in federal court are about to change for the better when 11 comes to f1ghts 

over regulatory rollbacks 

Federal judges have frequently blocked the EPA's attempts to Implement 

President Trump's aggress1ve deregulatory agenda by delay1ng 01 

changing major environmental rules. 

In the cornmg year, the EPA is expected to get sued over a slate of 

finalized repeals or rollbacks, mostly perta1ning to Ob\3rna-era po!1cies. 

"On procedural grounds, we have lost a number of the last year-and-a· 

half_'' acting EPA chief Andrew Wheeler told fhe Hillin an mterv1ew thiS 

month. "And our goal is not to lose them gotng forward" 

Trump's opponents, however. rlon't see an end to their winn1ng streak. 

Env1ronmental1sts <1nd Democ.rats a1gue that the EPA 1s not l1vmg up to its 

statutory ob!igat1ons, and they say federal courts are mcl1ned to agree. 

"We're really alarmed by the climate and public health 1mpl1cations of all 

of those actions, and we see them as contrary to EPA's mandate under the 

Clean Air Act. and in many cases, the record EPA nas gathered m the past 

in supporting these standards," said Torn3s Carbonell, lead attorney at the 

Environmental Defense Fund. which has successfully sued Trump over 

previous rollbacks. 

The first maJor round of litigation at the EPA next year is likely to start in 

late March. That's when \.~,Jheeler hopes to release a ftna! version of the 

h1tps llthehi!l.com/po!lcylenergy-environment/422394-epa-braces-for-o'lslaught-of-new-!awswts-!~-2019 1/4 
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1115!2019 

has GOP women serving 

on panel 

VIEW ALL 

This Brand Will Get You 

Out of Your. 

Fox News' Shep Smith 

fact·checks Trump ... 

Ex-Bill Clinton aide has 

heated confrontation ... 

Manafort attorneys file 

answers to Mueller ... 

EPA braces for onslaught of lawsUits in 2019 I TheH!!I 

Safer Affordable Fuel Efflcient (SAFE) Vehicles Rule, the joint effort with 

the Department of Transportation to roll back fuel efficiency and 

greenhouse gas rules for cars made through 2026. 

As proposed, the rollback would freeze standards in 2021, canceling out 

the plans to make them more stringent going forward. 

The plan rests largely on the Trump administration's argument that it 

would save 1,000 lives per year to stop the Obama administration's 

standards- an estimate opponents say is critically flawed 

"A lot of the people who are criticizing the 1,000 lives saved are some of 

the people that think we should only be looking at energy efficiency and 

not lives saved or safety factors," Wheeler said. 

It's a near certainty that once the forthcoming rules are finalized- a step 

expected next year for many of the most consequential rollbacksenvironmentalists and Democratic state attorneys general will take legal 

action. 

That case and other EPA-related lawsuits could even make their way up to 

the Supreme Court, where two new Trump-nominated judges will help 

decide their fate. 

The EPA has been dealt court losses, either in full decisions or in smaller 

orders, for various actions and inaction: deciding not to ban the pesticide 

chlorpyrifos; delaying its designation of which areas don't comply with 

ozone pollution standards; postponing implementation of an Obama-era 

chemical plant safety rule; attempting to avoid enforcing pollution 

standards on certain heavy trucks; and delaying the Obama 

administration's methane pollution rules for oil and natural gas drillers. 

Wheeler said that writing legally defensible regulations has been an 

emphasis of his since he took over the agency following Scott Pruitt's 

resignation in July. 

"That has been the overarching message that I've given to a!l of our 

political [appointees] here, is that! want to put forward regulations that 

will be upheld by the courts," Wheeler said. 

[Video] Every Day Is a 

Battle Living With 

Eczema~ 

B'l SANOfl·GENZYME AND REGENERON 

But Wheeler's confidence also stems from the fact that the upcoming 

battles will be about the merits of the regulatory rollbacks, like the 

agency's weaker replacement for the Clean Power Plan, its attempt to stop 

automobile emissions rules from getting more stringent and and 

redefinition of which waterways are subject to federal jurisdiction. 

That's in contrast to the procedural problems the EPA had before, which 

courts said the agency didn't follow the right processes. 

hltps"//!hehi!Lcomtpolicy/energy-environmenV422394-epa-btaces-for-ons!aught-of-new-tawsuits-in-2019 214 
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111512019 EPA braces for onslaught of lawsu1:s 1n 2019 1 The Hill 

"A lot of those were procedural and they were regulatory act1ons to deiay 

Obama regulations," Wheeler said. "fls we're mov1ng forward, we're 

replacmg those. 1 certamly hope and expect that those replacements wi!! 

go through" 

Thomas Lorenzen, an attorney at Crowell & Moring LLP and a former 

lawyer in the Justice Department's environment division, said the fPA 

could fare better going forward 

"You would think the procedural issues would be the eas!er ones, and the 

substantive 1ssues would be harder ones for EPA to nad. But 1t turns out 

that's exactly the oppos1te in th1s realm," sa1d Lorenzen, who has 

represented some of the compan1es and mdustry groups who support the 

rollbacks 

When 1t comes to the EPAs final regulations, "they do have the deck 

stacked slightly more m their favor," he sa1d. "The standards of rev1ew 

tend to be defererJtlal to executive authority" 

LorenLen expects judges review1ng lawsu1ts against the EPA's final rules to 

stick to judicial precedent that defers to agenc1es in areas of the1r 

expertise, like sc1ence or how far rules must go to protect public health 

"They are the experts on env1ronrnental protection. and the courts are not 

expected to second guess them unless t~cre renlly 1s no substant1al 

evidence that supports the agency's view," Lorenzen sa1d 

But the groups likely to sue the EPA say the agency has crossed that 

threshold, and that 1udges will overturn those changes 

Many of those !awsu1ts will come from Democratic attorneys general like 

California's Xavier Becerra and Brinn Frosh of Maryland. 

"AGs are really un1quely situated to stop these rollbacks, because it's their 

JOb to look out for the legal1nterests of all citizens 1n their states," said 

Dav1d Hayes, oxecut1ve director of the State Energy & Env:ronmental 

Impact Center, a project housed in New York University and funded by 

former New York City Mayor M1chaei Bloomberg 

"They come to litigation w1th a real credtbd1ty and respons1bil1ty to iook 

out for the public welfare of the1r c!tizens," he <~dded 

Hayes, who served as deputy secretary of the lntenor Department durong 

the Obama admlr'!istratlon, predicted that the state attorneys general 

suing Trurnp will keep racking up victones 

"The rationale cited 1n these rulemakhgs really opens them up to 

challenges, and to me, l1kely successful challenges," he sa1d 

"In a number of cases, the agency ts openly admitting that i\'s focused 

almost entrrely on the cost to industry for compliance," he said, argumg 

that the EPA Isn't properly accounting for the environ~ental and health 

benefits being lost when a rule is weaket~ed. 

TAGS XA\ilER BECERRA DONALD TRUMP SCOTTPRlJ!TT 

http s 'lithe hill com/policy !energy-environ menV4 22 394 -epa-braces. for-o nsl aught-of -new-laws u1 tS-"'-2 0 1 9 3!4 
506 


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1/23/2019 EPA Enforcement IS Declmmg Across All Reg1ons of the Country 1n Programs Des1gned to Protect A1r. Water Land and Public Healt!l- E 

EPA Enforcement is Declining Across All 

Regions of the Country in Programs Designed 

to Protect Air, Water, Land and Public Health 

Posted on December 7, 20·1a Leif Fredrickson Posted in Blog 

By Leif Fredrickson and Sarah Lamdan 

Following up on our recent report on enforcement at the Environmental Protection Agency (EPA). we wanted 

to dig into the numbers to see what was happening in different EPA regions and programs across the nation. 

The results are startling, showing huge declines in environmental enforcement actions across most regions 

and programs. These enforcement actions- which include orders to institute anti-pollution measures, frnes 

requirements for clean up and so on- are critical to getting companies and other regulated entities to 

comply with environmental laws. which in turn help assure a clean and healthy environment. 

In our report. A Sheep in the Closet: The Erosion of Enforcement at the EPA. we showed that. based on the 

EPA's enforcement and compliance database, enforcement has significantly declined in Fiscal Year (FY) 

2018. (Fiscal years run from October 1 to September 30). The reasons for the declrning enforcement 

numbers and the negative health and safety impacts related to decreased environmental law enforcement 

are elucidated in news coverage of our report, and in the report itself, which is based on extensive interviews 

with agency staff and internal documents we obtained. 

Among other things, EPA's internal documents include a detailed analysis of the agency's declining 

enforcement broken down by EPA region and by the major statutory programs (e.g., the Clean Air Act. the 

Clean Water Act. and so on). We wanted to include the EPA's internal analysis in our report to show that the 

agency, not just our group. had found steep declines in enforcement across regions and programs. 

But that analysis of regional and program declines in enforcement was only based on mid-fiscal year 

numbers. And since we have released our report. people have asked about the regional implications of the 

national decline rates- are these declines happening in every EPA region? Are they affecting some areas 

worse than others? To answer some of these questions, we decided to look at full fiscal year data for 

different regions and programs. 

Large Regional Declines in Enforcement 

Our original map breaking down declining enforcement by region was intriguing to us and others. We 

wanted to understand what enforcement declines looked like for the full frscal year by region (rather than just 

national trends), so we created a map with full fiscal year numbers (below). 

https flenvirodatagov.orglepa-enforcement-is-declining-across-all-reglons-of-the-country-in-programs-deslgned-to-protect-alr-water-land-and-public-he 115 
507 


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112312019 EPA Enforcement 1s Dec!rntng Across All Reg1ons of the Country in Programs Designed to Protect A1r, Water, Land and Public Health- E 

Percentage Decline in Civil Enforcement Case Conclusions by EPA Region, 

FY 2017 to FY 2018 

Percentage decline in civil case conclusion from FY 2017 to FY 2018, As the map shows, there were 

declines in every region, and most regions showed huge, double-digit declines, Source: /CIS FE&C Data Set. 

downloaded from Enforcement and Compliance History Online, Data Downloads, Environmental Protection 

Agency, accessed December 3, 2018, hltps:/!echo,epa,gov!too/s!data-downloads 

As the map shows, the number of civil cases concluded declined in every region, Civil case conclusions are 

the number of CIVIl (as opposed to criminal) cases the EPA has completed whether through settlements, 

administrative orders or court orders. 

Another way of measuring enforcement is to count the number of cases started, or what the EPA calls "case 

Initiations." The two are linked, of course, because a case must be initiated before it can be concluded. 

Today's case initiations are tomorrow's conclusions. However, data on case initiations are not publicly 

available. nor is detailed information on criminal cases. Civil case conclusion are, nevertheless, a 

fundamental measure of EPA enforcement Civil cases conclusions provide a glimpse into how many cases 

are being initiated and provide a way to measure how diligently the EPA is pressing to conclude cases, In the 

opaque realm of EPA enforcement, civil case conclusion data provide evidence of how the EPA is pursuing 

environmental law violations. 

In several regions, the drop in civil cases settled is enormous, Region 4 saw a decline of 77%, and three 

other regions (1, 3, and 8) saw declines of about 55%, Three more regions (2, 5, 9) saw declines of 40% or 

more, Regions 6 and 10, had relatively smaller declines, although in absolute numbers the declines were still 

quite large (32% and 37% respectively), Region 7 saw the smallest declines, the only one in the single digits, 

but the EPA region nevertheless closed out fewer civil enforcement cases in 2018 than in 2017, 

https lienviradatagov.org/epa-enforcement-ls-declmmg-across-all-reg•ons-oqhe-country-ln-programs-deslgned-to-protect-alr-water-land-and-public-he 215 
508 


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1123/2019 EPA Enforcement IS Dedinmg Across All Regwns of the Country m Programs Oes1gned to Protect Atr, Water !..and and Public Health- E 

Percentage Declines in Civil Case Conclusions, FY 2017 to FY 2018, by Region 

Region 1 2 3 4 5 6 7 8 9 10 

FY 2018 46 184 122 136 213 251 224 53 78 118 

FY 2017 104 313 274 598 399 371 242 118 129 186 

Percent -56% Decline -41% -55% -77% -47% -32% -7% -55% -40% -37% 

-

Percentage decline in civil case conclusions from FY 2017 to FY 2018. As the table shows, there were 

declines in every maJor region except Region 7. Source. /CIS FE&C Data Set. downloaded from 

Enforcement and Compliance History Online. Data Downloads, Environmental Protection Agency, accessed 

December 3, 2018, https:!lecho.epa.govltools/data-downloads. 

Accelerating Declines in the Second Half of Fiscal 

Year2018 

We also wanted to review and update the numbers because the EPA has responded to our report by 

claiming that our numbers are based on preliminary. mid-fiscal year data, and that the agency expects that its 

final2018 numbers will show "a significant improvement from mid-year" [i.e .. the mid-fiscal year]. 

Curious whether the EPA's data showed that enforcement actions did improve in the second half of the fiscal 

year compared to the first, we went ahead and pulled data from their site and analyzed it 

The short answer is: No, EPA enforcement numbers did not improve from mid-year 2018 to the end of the 

year. In fact. based on civil case conclusion data. enforcement got worse 1n the second half of fiscal year 

201 B. not better. 

In every region except Region 7, the decline in civil enforcement case conclusion was even more severe 

when comparing all of fiscal year 2018 to all of fiscal year 2017, rather than JUSt the first halves of those fiscal 

years. This especially obvious when you compare the above map to the one below, from our report. 

https·/fenwodatagov,org/epa-enforcemenHs-dedimng-across-.a!l-regwns-of-the-country-ln-programs-destgned-to-protect-air-water-land-and-pub!ic-he 3/5 
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1/23/2019 EPA Enforcement 1s Oeclirung Across All Reg1ons of the Country 111 Programs Des1gned to Protect A1r, Water, Land and Public Health-- E 

Percentage Decline in Civil Enforcement Case Conclusions by EPA Region, 

Midyear FY 2017 to Midyear FY 2018 

Percentage decline in civil case conclusions from the first half of FY 2017 to the first half of FY 2018. 

Comparison with the map above shows that these declines got even more severe in the second half of the 

fiscal year (with the exception of Region 7). Source. Office of Enforcement and Compliance Assurance. 

"FY17 to FY18 Mid- Year Analysis for Regional Evaluation," June 16, 2018 {document in EDG/'s possession] 

Overall, there were 1,435 case conclusions in fiscal year 2018, but 935 of these came in the first half of the 

fiscal year. This means that nearly two-thirds of the EPA's civil case conclusions happened in the first half of 

2018. showing clearly lagging civil enforcement work, especially in the second half of 2018. 

Enforcement Decline by Environmental Program 

Looking at how enforcement has declined by program (i.e., specific environmental laws) shows the same 

overall pattern that enforcement declines by region show, namely that the declines are across the board. 

Every major program saw substantial declines. The bedrock programs that protect the air (the Clean Air Act. 

CM), the water (the Clean Water Act CWA, and the Safe Drinking Water Act, SDWA) and the land (the 

Resource Conservation and Recovery Act, RCRA) all saw declines of over 40%. 

Even the Superfund program (Comprehensive Environmental Response, Compensation, and Liability Act 

CERCLA)- which forces polluters to clean up the polluted land and had been one of the few anti-pollution 

programs former EPA administrator Scott Pruitt's said who would champion- saw a decline of 24%. 

https·llenwodatagov.org/epa.enforcement-is-declining-acro.ss-all·region.s-of-tl>e,country-in-programs-designed-to-protect-air-water-land-and-public-he 4/5 
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1/23/2019 EPA Enforcement ts Dechnmg Across All Reg1ons of the Country m Programs Designed to Protect Atr Water. Land and Public Health- E 

Other programs that deal with toxic and hazardous substances, such the Toxic Substances Control Act 

(TSCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) saw declines of 47% and 60%. 

Last, but not least, the Emergency Planning and Community Right-to-Know Act (EPCRA)- a foundational 

law for environmental justice that warns people about hazardous substances nearby- saw a 48% declines 

in case conclusions. 

Percentage Declines in Civil Case Conclusions, FY 2017 to FY 2018, by Statute 

Statute CAA CERCLA CWA EPCRA FIFRA RCRA SDWA TSCA 

FY 2018 199 147 320 56 363 149 121 80 

FY 2017 405 194 565 107 910 275 178 152 

Percent 

Decline -51% -24% -43% -48% -60% -46% -32% -47% 

-

Percentage decline in civil case conclusion from FY 2017 to FY 2018. As the table shows, there were 

declines in every major declines in every major environmental program (statute). Source· /CIS FE&C Data 

Set, downloaded from Enforcement and Compliance History Online, Data Downloads. Environmental 

Protection Agency, accessed December 3, 2018, https:l!echo.epa govltoo/sldata-downloads. 

A Closer Look at Regions 4 and 8 

Region 4 and 8 were two of the regions with the largest declines in the number of civil case conclusions from 

FY 2017 to FY 2018. As with most other regions and the overall nation, these regions showed declines in 

enforcement in the second half of fiscal year 2018, not Increases. Region 4 had 89 case conclusions in the 

first half of the fiscal year, but only 47 in the second half. Region 8 had 34 case conclusions in the first half of 

the fiscal year, but only 19 in the second half. 

Looking back at data from prior fiscal years shows that the number of civil cases concluded in FY 2018 in 

Regions 4 and 8 is historically low. Region 8's 53 cases are the lowest since at least 2006. Indeed, they are 

not even half as much as the next lowest year (FY 2017 with 118 cases). Region 4's numbers are even 

worse. There were 136 civil case conclusions in FY 2018, by far the lowest number since at least 2006, The 

next lowest year was FY 2015, with 376 cases- over two and a half times as many as in 2018. 

Penalties were also very low in these regions compared to previous years. Region 4 levied about $2.95 

million in penalties in FY 2018, the lowest since at least 2006. The next lowest was $7.99 million in 2009. 

n:tps /lenvtrodatagov orgtepa-<Jnforcement-ls-declmlng-across-aiHegtons-of-the-co.1n\ry-Jn-programs-destgned-to-protect-alr-water-land-and-plJblic-he 5!5 
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ewg 

Horne> News> 1\cws Relcssos > EPAs Crintnai Enforcement Podutom (-)!urnrnets Uncler Trump 

EPA's Criminal Enforcement Against Polluters Plummets Under Trump 

EWG: Shameful, hut No Surprise 

Contact: Alex Formuzis 

(202) 667-6982 

alex@ewg.org 

FI!R IMMEW;lTE RELEASE Tl.iESDA}~ JANUARY 15. 2019 

WASHINGTON- Under President Trump and Acting 

Administrator Andrew Wheeler. the Environmental Protection 

Agency has cut back criminal action against polluters to the lowest 

levels since the Reagan administration. according to an analysis of 

federal data. 

The Associated Press reported Tuesday that data obtained by the 

nonprofit Publk Employees for Environmental Responsibility. 

or PEER, show the EPA referred only 166 cases to the Justice 

Department for criminal prosecution last year, the lewest since 1988. The report comes a day before 

Wheeler, a former top coal-and-chemical-industry lobbyist. goes before the Senate Environment and 

Public Works Committee for a confirmation hearing on his nomination as EPA administrator. 

PEER said in the 11rst two months of this year. the pace has slowed even further. with EPA making only 24 

referrals. In 1998. during the Clinton administration. the EPA referred more than 590 cases for criminal 

prosecution the most in a single year. 

News of the Trump administration's shameful failure to hold polluters criminally accountable does not 

come as a surprise. said Environmental Working Group President Ken Cook. 

"If you're in the business of illegally dumping pollution into the environment, your prospects of staying 

out ofjail and piling up profits could not be better with Trump and Wheeler in charge of the EPA," said 

Cook. 

Much of the progress that has been made since the early 1970s to clean up the nation's air and water came 

because the EPA and federal prosecutors held polluters criminally responsible. 

Before former President Nixon established the EI'A and the agency took on polluters, rivers in Ohio 

caught on fire and the skylines o§~"l'U~'s largest cities were notxill!8Je from a few miles away because 

the air was so contaminated. 

Do You Think Glyphosate Should be 
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35314.462

"Since the days of the Cuyahoga River burning. n rogress has been made by both Republican and 

~ocratic administrations until now."' said Cc lack of enforcement by the Trump 

ml'm'inistration, combined with its rollbacks of pub lth programs. should trouble all Americans. 

especially those who remember when rivers burnecl'*fdJthc skylines of New York and Los Angeles were 

buried behind smog." 

### 

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healthier lives in a healthier environment. Through research. advocacy and unique education tools, EWG 

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Copyright 2019. Environmental \Vorking <lrouj[)O!M~I:IISlibin:~Gfyphosate Should be 
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C:if~EC·l WALOFN, OREGON 

CHc~IRMAN 

fl1ANK PALLO NEe JRc, NEW JERSI Y 

11/\NI<ING MEMBER 

ONE HUNDRED FIFTEENTH CONGRESS 

QJ:ongre£55 of tbe '(ll;tntteb ~tate% 

Jl)ousc of ~qJrescntatil.lcs 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE Omc[ ButLDING 

WASHINGTON, DC 20515-6115 

The Honorable Andrew Wheeler 

Acting Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N W 

Washington, DC 20460 

Dear Acting Administrator Wheeler: 

Major>ty {202\ ?25~2927 

Mmonty (207) 

December 6, 2018 

We are writing to request information on a series of actions by the Trump Administration 

regarding the U.S. Environmental Protection Agency (EPA) Office of Enforcement and 

Compliance Assurance (OECA). EPA documents and press reports over the past year indicate 

several disturbing trends, including a decline in the number of enforcement cases initiated; a 

reduction in enforcement staff; an overreliance on state enforcement programs; and an increased 

political review of potential or pending enforcement actions. We are deeply concerned that these 

actions undermine key enforcement programs and severely limit EPA's ability to address climate 

change and protect public health and the environment 

Enforcement Action Reductions Suggest EPA Is Taking Lenient Approach to Polluters 

EPA continues to reduce the number of enforcement actions against polluters. Agency 

data indicates an ongoing decline across a range of key EPA enforcement activity during the first 

year of the Trump Administration_~ An analysis by NBC News noted: 

The EPA initiated 20 percent fewer civil cases against polluters for violating 

environmental laws from the beginning of September 2016 to end of September 2017, as 

compared to the previous fiscal year, according to the EPA's latest enforcement numbers. 

The EPA also opened 30 percent fewer criminal enforcement cases during the same time 

period. The past fiscal year marked a historic low for enforcement actions across the 

board: the number of new civil and criminal cases, defendants charged, and federal EPA 

1 U.S. Environmental Protection Agency, Enforcement Annual Results Analysis and 

Trends for Fiscal Year 2017 (https:/1\vwvr.epa.gov/enforcement/enforcement-annual-resultsanalysis-and-trcnds-fiscal-year-20 17). 
514 


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The Honorable Andrew Wheeler 

December 6, 2018 

Page 2 

inspections and evaluations all reached their lowest levels in at least a decade, according 

to the data 2 

A similar analysis by n,e New l'ork Times also suggested that the Agency has adopted a 

more lenient approach to enforcement compared to the two previous administrations 3 As the 

Times noted: 

During the first nine months under Mr. Pruitt's leadership, the E.P.A started about l ,900 

cases, about one-third fewer than the number under President Barack Obama's first 

E.P.A. director and about one-quarter fewer than under President George W. Bush's over 

the same time period. 

In addition, the agency sought civil penalties of about $50.4 million li·om polluters for 

cases initiated under Mr. Trump. Adjusted for inflution, that is about 39 percent of what 

the Obama administration sought and about 70 percent of what the Bush administration 

sought over the same time period. 4 

Former enforcement expens described these reductions as stark, noting "if you're not 

filing cases, the cop's not on the beat ... [olr has the cop been taken off the beat7 " 5 

Staff Reductions Hinder EPA's Ability to Protect the Public 

We are concerned that historically low starting levels, combined with a series of recent 

actions taken by EPA management, undermine the Agency's enforcement capability. Over 

1,600 workers reportedly departed EPA during the first 18 months of the Trump Administration, 

bringing the Agency's staffing levels to an historic low6 

2 EPA Enforcement Aclions Hit 10-year low in 2017, NBC News (Feb. 8, 2018) 

( www.nbcnews.com/politics/white-housclepa-enforcement-actions-hit-l 0-year-low-20 17-

n846151). 

3 Under Trump, EPA Has Slowed Actions Against Polluters, and Pur Limits on 

Enforcemenl Officers, New York Times (Dec. l 0, 20 17) 

( www.nytimes.com/20 l 711211 0/us/politics/pollution-epa-regulations.html). 

4 Id 

5 See note 3. 

6 Wilh a Shrinking EPA, Trump Delivers on His Promise ro Cut Government, Washington 

Post (Sept. 8, 20 18) (www.washingtonpost.com/national/hcalth-scicnce/with-a-shrinking-epatrump-delivers-on-his-promise-to-cut-government/20 l8109/08/6b05 8f9e-b 1 43-ll e8-a20b5f4 f84429666 _ s\ory.html?utm_term=.663 5 79406f6b ). 
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The Honorable Andrew Wheeler 

December 6. 2018 

Page 3 

EPA's enforcement operation has been particularly hard hit by staff departures, losing 

more than l 00 employees in that time7 Experts have warned that a staffing cut of this 

signiticance will require the Agency to reduce both enforcement and compliance effortsg As 

noted by the Washington Posl: 

One of the EPA divisions hardest hit by staff cuts is the Oftice of Enforcement and 

Compliance Assurance, whose numbers dipped 15.7 percent between January 2017 and 

August 2018. Several experts said that any cuts to that division have a major impact 

because the vast majority of its budget comes ti·om personnel costs rather than grants or 

other expenditures. 

Granta Nakayama, who headed the office fi·om 2005 to 2009. said that it couldn't sustain 

that deep a siaffing cut without curiailing some of its opcrati(;ns. 9 

Additional Political Review and Overreliance on State Enforcement Programs 

Could Deter Enforcement Activity 

EPA recently announced a series of policies which require political appointees to review 

enforcement activities. Examples of enforcement announcements with review requirements 

include: 

A May 31, 2017 memorandum stating that EPA enforcement staff no longer have 

authority to require information requests under the Clean Air Act and the Resource 

Conservation and Recovery Act (RCRA) without first receiving approval from EPA 

headquarters for requests where EPA has no information that a recipient is in 

violation of the law; those requests which require testing or sampling; or requests in 

authorized or delegated states where EPA and a state are not in agreement. 10 

A January 22, 2018 interim guidance memorandum requiring review by the Assistant 

Administrator in certain instances where EPA and a State do not agree on a particular 

enforcement matter. 11 

7 Email from Christian Rodrick, U.S. Environmental Protection Agency, Oftlce of 

Congressional Affairs to Minority Staff, House Energy and Commerce Committee and Majority 

Staff, House Energy and Commerce Committee (June 21, 2018). 

8 See note 6. 

9 See note 6. 

10 U.S. Environmental Protection Agency, Memorandum hom Susan Shinkman, Office 

of Civil Enforcement Director to EPA Regional Counsels, Regional Enforcement Directors, 

Regional Enforcement Coordinators, and Office of Civil Enforcement Division Directors on 

Interim Procedures for Issuing Information Requests Pursuant to Clean Air Act (May 31, 20 17). 

11 U.S. Environmental Protection Agency, Memorandum from Susan Parker Bodine, 

Assistant Administrator, Office of Enforcement and Compliance Assurance to Regional 
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The Honorable Andrew Wheeler 

December 6, 2018 

Page 4 

DOJ: 

A March 23, 2018 memorandum instituting interim pmccdures requiring early notice 

to EPA political appoimees of civil judicial referrals to the U.S. Department of Justice 

(DOJ).I2 

An April 31, 2018 memorandum introducing interim pmccdures for providing early 

notice of civil judicial referrals under the Comprehensive Environment Response, 

Compensation, and Liability Act (CERCLA) to the Office of Enforcement and 

Compliance Assurance (OECA) Assistant Administrator.IJ 

According to a recent Washington Posr report regarding political review of referrals to 

Former enforcement officials worry the new procedures will have a chilling effect among 

career employees who are already worried about running afoul of an administration that 

is trying to roll back many environmental rules at the behest of companies the agency 

regulates. 

George Czerniak, the former director orthc air and radiation division at the EPA's 

Chicago office, said the new policy is a sign to potential polluters that they will face less 

scrutiny. ''Industry will take this as a signal that the cop on the beat is relaxing a little,'' 

Czerniak said, ''and I think a little bit of the deterrence that has been built up will be 

lost." 14 

We arc concerned these changes could also undermine EPA's ability to ensure states arc, 

in fact, executing their delegated authorities to ensure a consistent minimum level of protection 

nationwide, pm1icularly in states which arc "philosophically opposed to taking enforcement 

Administrators on Interim OECA Guidance on Enhancing Regional-State Planning and 

Communication on Compliance Assurance Work in Authorized States (Jan. 22, 20 18), 

12 U.S. Environmental Protection Agency, Memorandum Jl·Oln Susan Parker Bodine 

Office of Enforcement and Compliance Assurance Assistant Administrator to EPA Regional 

Counsels, Regional Enforcement Directors, Regional Enforcement Coordinators, and Office of 

Civil Enforcement Division Directors Director, Deputy Director, and Division Directors on 

Interim Procedures for Providing Early Notice of Civil Judicial Referrals (Mar. 23, 2018). 

13 U.S, Environmental Protection Agency, Memorandum from Susan Parker Bodine 

Office of Enforcement and Compliance Assurance Assistant Administrator to EPA Regional 

Counsels and Regional Superfund Directors on Interim Procedures for Providing Early Notice of 

CERCLA Civil Judicial Refmals (Apr. 31, 20 18). 

14 The Energy 202. Trump Appointee at EPA to Scrutinize Which Po/lulion Cases Afay 

Go to Court, Washington Post (June 15, 2018) 

(www. washingtonpost.CDm/news/powerpostipaloma/the-cnergy-202/20 18/06/15/the-energy-202-

trump-appointee-at-epa-to-scrutinizc-which-pollution-cases-may-go-tocourt/5b22ee7e 1 b3 26b3967989aee!?utm_ternF.351 047094bb3 ). 
517 


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The Honorable Andrew Wheeler 

December 6, 2018 

Page 5 

action." 15 In addition, we are concerned that headquarters review will cause further delays in the 

enforcement process. According to Justin Pidot, former deputy solicitor for land resources at the 

Interior Department, "[t]he notion that this process will speed up enforcement is laughable to me 

... anytime you bring in the front office, everything slows down." 16 

To better understand changes the Administration made to EPA's enforcement program, 

and the human health and environmental impacts of these changes, we request a briefing on these 

issues and that you provide the following: 

1. A list of the following OECA positions at headquarters and EPA regional o11ices. For 

each, please provide position title, description, GS level, and location: 

a. Positions vacated during the period from January 2017 to present, including 

the reason the position was vacated (e.g. buyout, retirement, dismissal) and 

current status of the position (e.g. filled by new hire, currently vacant, 

eliminated). 

b. Positions created or tilled from January 20, 2017 to present, through new 

agency hires and intra-agency hires. 

2. Did EPA conduct any workforce analysis of the impact on OECA operations and 

enforcement activity of staff reductions and staff turnover since .l anuary 2017, current 

OECA stafllng levels, or the Agency's proposed reorganization ofregional offices? 

If so, please provide this analysis. 

3. Regarding the May 31, 2017 memorandum which established headqum1ers review 

prior to the issuance of certain information requests pursuant to major environmental 

statutes: 11 

a. How many requests for sampling, monitoring, and testing that meet the 

criteria of the May 31, 2017 memorandum did OECA send in FY20 14, 

FY2015, FY2016, and FY2017? 

b. In the period from May 31, 2017 to present: 

i. How many requests for sampling, monitoring, and testing have been 

submitted to headqum1ers for review? 

15 U.S Environmental Protection Agency, Office of!nspector General, EPA Must 

Improve Oversight of State Enforcement (Dec. 9, 2011) (Report No. 12-P-0113). 

16 See note 14. 

17 See note l 0. 
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The Honorable Andrew Wheeler 

December 6, 2018 

Page 6 

ii. How many have headquarters reviewed and, of those reviewed, how 

many were approved and how many were denied? 

c. How many information requests arc currently pending headquarters review? 

4. Regarding the March 23, 2018 memorandum instituting interim procedures requiring 

early notice to EPA political appointees of civil judicial referrals to DOJ: 18 

a. How many civil judicial referrals did the OECA Assistant Administrator, 

Regional Adminis!ra\or, or other EPA political appointees receive briet!ngs on 

or otherwise review, and decide not refer to DOJ? Please provide the number 

of civil judicial referrals to DOJ, by month, from January 2017 to present 

b. How many civil judicial referral recommendations arc currently pending 

review by the OECA Assistant Administrator or Regional Administrators'-' 

5. Regarding the April 31, 2018 memorandum that introduced interim procedures for 

providing early notice of CERCLA civil judicial referrals: 19 

a. Since the introduction of this policy, has the OI:::CA Assistant Administrator 

requested additional review time of a week or greater for any CERCLA 

referrals going to DOJ'l 

b. Since introduction of this policy, has the OECA Assistant Administrator or 

any other EPA political appointee prevented referrals from going to DOJ'.' 

6. With respect to the January 22, 2018 interim guidance memorandum: 20 

a. Which state enforcement officials are eligible to raise disagreements that 

require elevating issues to the OECA Assistant Administrator under this 

policy? Is this power limited to certain positions? 

b. The memorandum imposed a September 28,2018 deadline for regions to 

provide OECA with a progress report on work following this interim 

guidance, including their views on how well it is working and areas for 

improvement. We request a copy of all progress reports. 

c. Under this policy, arc EPA enforcement oflicials authorized to independently 

decide to no longer pursue an enforcement issue even if a state disagrees? Or 

does this policy require EPA enforcement ofllcials to elevate !o the OECA 

18 See note 12. 

19 See note 13. 

20 See note 11. 
519 


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The Honorable Andrew Wheeler 

December 6, 2018 

Page 7 

Assistant Auministrator the decision to no longer pursue the enforcement 

issue? 

7. For each consent decree under the Clean Air Act, Safe Drinking Water Act, 

CERCLA, and RCRA revised by EPA from January 20, 2017 to present: 

a. Please explain which EPA political appointees participated in EPA's decision 

to authorize the revisions. 

b. For each revised consent decree, does the Agency calculate the anticipated 

emissions impacts of the revised consent decree compared to the consent 

decree before revisions? If so, please explain the anticipated emissions 

impacts for each revised consent decree compared to that consent decree 

before revision. 

Thank you in advance for your prompt and full attention to this request. Please respond 

to this inquiry as soon as possible, but no later than December 20, 2018. Should you have any 

questions, please contact Jon Monger with the Democratic Committee staff at (202) 225-3641. 

1~~~f~,)l. Ranking Member v 

Diana DeGette 

Ranking Member 

Subcommittee on Oversight 

and Investigations 

Sincerely, 

Paul D. Tonko 

Ranking Member 

Subcommittee on Environment 
520 


35314.470

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, 0 C, 20460 

MEMORANDUM 

SUBJECT: Transition trom National Enforcement Initiatives to National Compliance Initiatives A \ 

~¢"~\ ' '\ 

FROM: Susan Parker Bodine /, " 

Assistant Administrator/ c:f 

TO: Regional Administrators 

The EPA's FY 2018-2022 Strategic Plan includes enforcement-related strategic measures to increase the 

environmental law compliance rate and reduce the average time from violation identification to 

correction, 1 To accomplish these goals, the EPA recognizes that (I) joint governance and accountability 

is a key principle and (2) increased compliance requires a broad range of compliance assurartce tools to 

be available lor use. 

Recognizing the need to focus resources to achieve environmental law compliance, the EPA identities 

national priorities, currently called National Enforcement Initiatives (NE!s) 2 The EPA intends to evolve 

the National Enforcementlnitiatives program into a National Compliance Initiatives (NC!s) program by 

providing states and tribes with additional opportunities for meaningful engagement, by developing and 

applying a broader set of compliance assurance tools, and by aligning the NC!s with the Agency 

Strategic Plan measures and priorities. 

Background 

For the past two decades, the EPA has strategically focused its enforcement and compliance resources 

on the most serious environmental violations at tilcilities across the country hy developing and 

implementing national priorities (currently called NEls). The EPA generally reviews the NEls every 

three years to determine whether to conclude an NEI, or, where it is decided that an NEI should be 

continued, whether uny changes arc appropriatc3 

The EPA's work has increased compliance and reduced pollution in the priority areas. For example, 

under the initiative to Keep Raw Sewage and Contaminated Stonnwater Out of Our Nation's Waters, 

97% of large combined sewer systems, 92% of large sanitary sewer systems, and 70% of Phase 1 

municipal separate storm water systems are now either in compliance, or are on an agreed upon schedule 

to come into compliance. Under the initiative to Reduce Air Pollution from the Largest Sources, EPA 

enforcement actions addressing Clean Air Act violations have resulted in annual reductions of over 2.8 

million tons ofNOx and S02 air pollution emissions. 

'FY 2018-2022 US. EPA Strategic Pian, 

'For about 10 years priorlo FY 20 II, NEI work was 1 For information on the eight NEls currently in crrect. see http< 
521 


35314.471

Transition to National Compliance Initiatives 

NEls have always focused on impmving compliance and reducing pollution, and have often used not 

only enforcement actions but also other compliance assurance tools, such as compliance assistance ami 

compliance alerts. To better convey the message that increased compliance is the goal. and enforcement 

actions are not the only tool for achieving this goal. the EPA will change the name of its priorities from 

National Enjiwcement Initiatives to National Compliance Initiatives. 

In the transition to NCis. we are making four important adjustments: ( 1) modifying our selection criteria 

for the FY 2020-2023 NCI cycle to better align with Agency Strategic Plan measures and priorities: (2) 

engaging more fully with states and tribes in the selection and development of the initiatives; (3) 

enhancing the FP A· s use of the full range of compliance assurance tools in an NCI: and ( 4) extending 

the priorities cycle to four years to better align with the Agency's National Program Guide cycle. 

1. NCI Selection Criteria for the FY 2020-2023 

Cvcle. 

~cting the NC!s for the FY 2020-2023 cycle, 

the EPA plans to consider the following factors: 

a) Alignment with the Agency Strategic Plan 

measures and priorities to address: 

nonattainment areas. impaired waters. public 

health threats posed by drinking water noncompliance. populations vulnerable to air 

taxies or chemical accidents. and children's 

exposure to lead. OECA will emphasize 

Box l: Agency Strategic Plan Measures 

(SM) & Priorities Related to NCis 

SM-1· Reduce the number ofnonattainment 

areas. 

SM-2: Reduce the number of community 

water systems out of compliance with healthbased standards [drinking water]. 

SM-4: Reduce the number of square miles of 

\Vatershcd \vith surface water not meeting 

standards [impaired waters]. 

selecting new NC!s that advance our progress SM-! 7: Reduce the average time from 

in meeting our Strategic Plan measures and violation identification to correction. 

priorities (see Box I). 

b) Need for EPA expertise, authority. or 

resources - States or the EPA may determine 

that the EPA's expertise, authority, or 

resources are needed to improve compliance. 

Examples may include: remedying violations 

where states lack the authority or the 

expertise; sharing technologies: providing 

national cmnpliance assistance tools~ or, 

SM-18: Increase the et"ironmentallnw 

compliance rate. 

Strategic Plan: ""With our partners. we will 

pay particular attention to vulnerable 

populations'' (p. 7) 

creating data analy1ic tools to identify serious environmental problems or disproportionate 

adverse impacts to public health. 

c) Need to address serious and widespread non-compliance across the country. While a noncompliance problem may not be present in every EPA region or state. it may be so common 

that a national focus is necessary to remedy the non-compliance to maintain certainty for 

regulated entities through a level playing field and a consistent level of environmental and 

public health protection across our country. 

2. NCI Co-Regulator and Stakeholder Input. 

The EPA will provide new opportunities for early and meaningful input from states and tribes at 

several key points in the process. The EPA looks forward to receiving state and tribal input on the 

current NEls- such as whether to continue. modify. or conclude them- and suggestions for new 
522 


35314.472

NC!s. Opportunities for state and tribal engagement in the identification and development of the 

FY 2020-2023 NCls will follow the schedule in Attachment 1. In addition to getting input from 

states and tribes, the EPA will continue its practice of seeking public comments through the 

publication of a Federal Register notice. 

For example, the EPA has begun exploring the possibility of adding drinking water as an NCI in 

the FY 2020-2023 cycle to support the EPA's Strategic Plan goal to increase compliance with 

drinking water standards. The Agency is interested in state and tribal input and engagement on this 

topic, and has already begun discussions with the Association of State Drinking Water 

Administrators on the value of this possible NCI. 

3. Enhanced usc of the full range of compliance assurance tools. 

After the EPA selects NC'ls for the FY 2020-2023 cycle, the EPA will develop an implementation 

strategy for each NCL The NCl implementation strategies will include options for remedying the 

most significant non-compliance problems and improving overall compliance in the timeliest 

manner. 

The implementation strategies will idcnti fy the most appropriate tools for achieving the goals 

described in the strategy. During strategy development. the EPA will seek the views of states and 

tribes on which compliance assurance tools would be most effective for the implementation of 

each NCI. Compliance assurance tools could range from general compliance assistance to 

inspections to informal and formal enforcement actions. 

Consistent with the January 2018 Interim OECA Guidance on Enhancing Regional-Slate Planning 

and Communication on Compliance Assurance Work in Authorized .'i'tates (hereinafter, January 

2018/nterim OECA Guidance), the EPA welcomes active state and tribal participation in 

implementing the NCI if the state or tribe is authorized for the particular program 4 This 

participation, which is voluntary, may include state action in lieu of EPA action where the result is 

a return to compliance consistent with national expectations to maintain a level playing field. 

The EPA will continue to pursue and publicize NCl enforcement actions. Enforcement actions will 

continue to be a critical tool for addressing serious violators and deterring violations. Publicizing 

enforcement actions. both to the public and the regulated community, also is a critically important 

tool for deterring violations and ensuring a level playing field. In addition, the EPA will strive to 

make the public more aware of our usc of other tools to achieve compliance. 

Measurable goals for each NC! will need to be developed and included in each specific NCI 

strategy. Historically, the lack of reliable national information on compliance rates has been a 

challenge, especially when the regulated universe being addressed by an NEI was large. The EPA 

will seck state input in developing these goals and piloting new ways to measure progress and 

success. 

4. Extending the NCI cycle from three years to four years to better align with the Agencv's 

National Program Guide cvcle. 

States and others have requested that we align the NEl cycle with the National Program Guidance 

cycle (formerly "National Program Managers Guidance"). The National Program Guidance is 

~January 2018, Interim OECA Guidance, hlql\ '\\\ \\ ;,'p;l g1~\ l\'lllpii:n:~,.·,,' in1· rllll ·t'·,'l 1-b' Jid.t!h'v~c:nhdlh. !n_s-l'l.';;,>~i~n.d--.!::h:­

,'' .1111 ·: ii:O>llh! -rtll nn:un k''cl111 \il-L •'>~111' 1 ),tt\(;_\ 
523 


35314.473

revised every two years; in most cases however an NCl cannot be completed in a single two-year 

cycle. OECA believes that the better approach would be to extend the NC! cycle from three to four 

years to facilitate this alignment. 

Modified Implementation of NEls to NCis in FY 2019 

For FY 2019, the EPA will modify its implementation of the existing Nl'ls to evolve them into NCls. 

guided by the Agency Strategic Plan measures and priorities, as follows: 

I. Keeping Industrial Pollutants Out of the Nation's Waters. 

The EPA has started to engage with authorized states, initially with the Association of Clean Water 

Administrators. as we transition this NEI to become the NPDES Significant Non-Compliance 

(SNC) NC!. This new NC! would have a broad focus on increasing the percentage ofNI'DES 

pem1ittees in compliance with their permit limits (as measured by reducing the rate of permittees 

in SNC). The new NCI supports the FP i\ 's five-year Strategic Plan measure and two-year Agency 

Priority Goal to increase the environmental law compliance rate. This change would redeploy EPA 

resources fi"om the current NE! to the broader NCI Clean Water Act SNC rate reduction eft(Jrt. and 

could establish a model for improving compliance rates that could be used in other programs. 

2. !'.L~'I_ml....6Jll!llal.WJ!S!e fr.9J:IL(;_Qil\.~ll.Ul11lting_S.9J fa~~-!Ln.<L0.r'liJHQ 3! Lllf!.L 

Starting in FY 2019, OECA intends to return this NE! to our core program rather than keep it as a 

national priority. As part of the core program. in collaboration with authorized state programs. 

regions will continue to conduct inspections and enforcement actions to address serious violations 

in this area. focusing on the Strategic Plan goal to address water quality impairments . 

. >. Keeping Raw Sewage and Contamim~tc_d~~19_mnvatcr Ou.\_ of QQI...!'lilli9Jl~S Waters. 

The EPA has almost completed this NCI, obtaining signilicant improvement in compliance and 

major reductions in water pollution. Work in fY 2019 will be focused on completing ongoing 

enforcement cases and monitoring compliance with existing enf<Jrcemcnt settlements. In 

collaboration with authorized state programs. work in these areas will continue as part of core 

program in FY 2020. especially with a focus on addressing impaired waters. 

4. Reducing Air Pollution ti"om the Largest Sources. 

The EPA has almost completed this NCI, obtaining signiticant improvement in compliance and 

major reductions in air pollution. Work in FY 2019 will be focused on completing ongoing 

enforcement cases and monihrring compliance with existing enforcement settlements. ln 

collaboration with authorized state programs. \.Vork in these areas wi!1 continue a.s part of the core. 

program in FY 2020, especially with a focus on addressing clean air non-attaimnent arects. 

5. Reducing Risks of Accidental Releases at Industrial and Chemical Facilities. 

This NCl is still in its first cycle. It will continue to focus on the most serious situations of noncompliance, with a focus on the Strategic Plan objectives of addressing vulnerable populations and 

achieving a timely return to compliance. The EPA will enhance our usc of compliance assistance 

and expedited settlement agreements to address the numerous smaller sources in urban areas. 

6. Cutting Hazardous Air Pollutants (HAPs). 

This NCJ will continue to f(lcus on addressing the most significant sources of hazardous air 

pollution, with a focus on the Strategic Plw1 objectives of addressing vulnerable populations, 

addressing clean air non-attainment areas. and achieving a timely return to compliance. 

4 
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7. Ensuring Energy Extraction Activities Complv with Environmental Laws. 

This initiative historically focused on one industrial sector, implying that the EPA considers all 

problems in this sector large or small- to be a priority. For FY 2019, the EPA is clarifying that 

work under this NCI will focus on significant public health and environmental problems: exposure 

to signitlcant releases of volatile organic compounds, reducing non-attainment, and reducing water 

quality impaim1cnt. When we consider the FY 2020-2023 NCI cycle, we will evaluate the idea of 

merging this work into the "Cutting Hazardous Air Pollutants" NCI or focusing this NCI on 

significant sources of VOCs that have a substantial impact on air quality (without regard to sector), 

including the potential to adversely affect an area's attainment status, and returning other work in 

this sector to the core program and Regional priorities. 

8. Reducing Toxic Air Emissions from lla7Jll'dous WasteFacili!is:!h 

This NCJ is in its first cycle and will continue to focus on addressing the most serious situations of 

non-compliance, prioritizing our work based on the Strategic Plan objectives of addressing 

vulnerable populations. reducing non-attainment areas, and achieving a timely return to 

compliance. We will also continue our work to build state capacity in this program. 

As noted above. we plan to rename the NEls in FY 2019 as NC!s to highlight the focus on compliance 

as the goal, the broader use of compliance assurance tools, and the opportunity for enhanced state 

engagement per the January 2018 Inrerim OECA Guidance. 

We look forward to working with the regional compliance and enforcement programs and our state 

partners as we move forward with these changes. 

Attachment 

cc: Assistant Administrators 

Regional Enforcement Directors and Program Division Directors 

Regional Counsels 

Enforcement Coordinators 

OECA Office Directors 

OC and OCE Division Directors 
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1123/2019 PEER- CRIMINAL ENFORCEMENT COLLAPSE AT EPA 

PEER PROTECTING EMPLOYEES WHO 

PROTECT OUR ENVIRONMENT 

Home About Us 

News 

Releases 

News Clips 

Search here 

Publications Help Center Campaigns State/Federal Watch Join Us 

For Immediate Release: Jan 15, 2019 

Contact: Kirsten Stade (202} 265-7337 

CRIMINAL ENFORCEMENT COLLAPSE AT EPA 

Lowest Number of New Anti-Pollution Cases 1n 30 Years 

Posted on Jan 15, 2019 I Tags: EPA 

Washington, DC Even before the governme'1t shutdown, the U.S. Environmental Protection Agency's 

cnmmal enforcement program was m1ssmg m act1or>, accordmg to new figures posted ~oday by PL:bl1c 

Employees for Environmental Responsibility (PEER). !n 2018, EPA generated the fewest new cnminal case 

referrals for prosecut1on than any year stnce 1988. 

In Fiscal Year 2018 1n October), EPA made 

of Justice. represents a nearly 50% 

of enforcement activ.ty twenty years ago m 1998; 

In the first two months of FY 2019, the pace has slowed even w1th EPA moking 24 

referrals. When the effects of the government shutdown arc figured m, current year will set 

another all-t1me enforcement low mark; and 

• EPA cases resulted m only 62 conv1ct1ons tn FY 2018, fewer than any year datmg back to 1992. 

"These figures md1cate that the Trump plan to cnpple EPA IS wo~k1ng," stated PEER Sc1ence Po!1cy Director 

Kyl.a Bennett, a SCientiSt, wetland specialist, and attorney formerly With EPA, point1ng out that a dearth of 

new cases means fewer prosecutions, conv:ct1ons, ano pnson sentences m tl"le years ahead. "Not enforcmg 

our ant1-po!lution laws steadily transforms them mto dead letters." 

These numbers also reflect a decrease m the number of cnmma! mvestigators asSigned to pollut1on cases. 

In Apnl 2018, there were only 140 spec1a! agents In EPA's Cnmmal Invest1gat1on DIVISIOn. Reportedly, that 

number has dropped to only 130 today. This IS more than a th1rd less thon the 'lUmber of CID agents 1n 

2003, well below the mm1mum of 200 agents required by the U.S. PollutiOn Prosecution Act of 1990. 

Polictes launched by EPA Admmtstrator Scott Pr\Jitt and contmued by actmg Admm•strator A11drew Wheeler 

may also be dnvmg enforcement dec!mes. They replaced EPA's Er-forcement Initiative With a Compliance 

ln1t1at1Ve that lets offenders avoid prosecution by merely agreemg to suspe11d the:r vtolat10ns. 

At the same t1me, deCISiO'lS on prosecution referrals are now Cel)tral:zed 1n headqua1ters, enab!mg 

Wheeler and polit:cal deput1es to lliX cnmmal referrals. In add1t10n, states have been g1ven veto power, 

thus InJeCting local politiCS mto prosecution dec1s1ons. 

"The absence of cnmmal prosecutiOn means corporate polluters can be comfortable that they will suffer no 

personal consequences, no matter how egregious the offense," remarKed PEER Executive D1rector Jeff 

Ruch, notmg that Wheeler had been a lawyer handling corporate pollutiOn defense before his 2017 EPA 

appomtment. "Nothmg could be more core to EPA's miSSIOn than enforcmg our nat.on's pollut10n laws.'' 

Nor are the sharp declines confined to cnmmal cases. PEER pomts to Similar drop-offs m EPA CiVil and 

admmlstrattvecnforce'Tlentsmce 2017, 

Tomorrow, January 16th, thi:! Senate Environment and Publ1c Works Comm1ttee takes up Wheeler's 

nommat1on to shed h1s 'actmg" t1tle and succeed Pru1tt as EPA AdminiStrator. 

See the EPA criminal referrals and convictions from1986~201S 

Compare the environmental enforcement records of this and previous administrations 

Look at the drop in the number of CID agents 

https·f!www.peer.orgfnews/press-releaseslcriminal-enforcement-co!!apse-at-epa.html 112 
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thru October 

2018 

Attachment l 

FY 2020-2023 NCI Selection with State and Tribal Engagement 

memo 

input from them, specifically; 

ECOS 

ACWA, NACAA and APCA. ASTSWMO, ASDWA, SF!REG and 

APCO 

National Tribal Water Council. N~tion~l Trib~l Toxics Council. <tnd 

the Tribal Waste and Response Assistance Program 

National Tribal Air Association and National Tribal Pesticides 

Council 

OECA will offer conference calls with the associations to solicit their input. 

f-.:----:c-:c--:------+Jnput need not be consensus. ··----·----.. ·------------ I 

2. Regions will solicit early input from all their states and tribes. OECA will l 

3. 

September to 

October 2018 

2018 

6. Early March 

2019 

7. Early April 

2019 

April 22, 2019 

provide the regions with a framework for these discussions. These meetings I 

would solicit input on current NEls (continue/modify/return-to-core) and I 

ideas for new NC!s. 1 

OECA evaluates input received from public with state and tribal 

engagement using ECOS, the National Tribal Caucus, and the state and 

trihalmedia associations. 

Input sought on narrowing proposed NC'ls, as well as potential 

strategies and range of compliance assurance tools best suited to 

each strategy. 

OECA will discuss with EC'OS sp~cific option .. ~- for the FY 2020/2023 Ncl~.-

OEC' A-Assistant Administrator makes s;lection of the FY 2020-2023 NC!s. 

OCFO publishes FY 2020-2021 NP Guidance including the newly selected 

NC!s. 

OECA develops strategies for implementing NCls, with engagement of 

states and trihes that want to collaborate with EPA on specitic strategies. 

I 

9. April2019-

Sept em her 

20!9 '---=-'-'--'-----'----------------·---.. ---· 
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1/2312019 Overmghl Energy: Watchdog mvestigalmg EPA enforcement numbers i EPA's VI/heeler faces Senate gnl!mg jlntenor"s offshore dn!!1ng st 

Overnight Energy: Watchdog 

investigating EPA 

enforcement numbers I EPA's 

Wheeler faces Senate grilling I 

Interior's offshore drilling staff 

returning to work during 

shutdown 

BY M1RANDA GREEN~ 01!15/19 06:18PM EST 

2 

GAO INVESTIGATING EPA'S LAW ENFORCEMENT NUMBERS: The 

Government Accountability Office (GAO) has launched an investigation into 

declining enforcement actions against companies accused of violating EPA's 

pollution standards during the Trump administration. 

https·flthehi!l.com/policy/energy~envlronmentlovernights/425523-overmght-energy-epa-under-gao-investlgatJOn-for 1/7 
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112312019 Overn;ghl Energy Watchdog ;nvest;gat:ng EPA enforcement numbers l EPA's \IVheeler faces Senate grlllmg llntenor's offshore dn!ling st 

A GAO spokesman said Tuesday that the probe began in October, with a focus 

on 2017 enforcement data that showed a significant drop in dollar amounts for 

settlements made with polluters. 

The final report is underway but not 

expected to be completed "until later in 

the year, likely fall," the spokesman 

said. 

News of the probe comes as EPA's 

Inspector General (IG) continues its 

own investigation into the agency's 

enforcement figures and as the EPA is 

gearing up to release its 2018 

enforcement numbers, which are 

expected to be even lower than the 

previous year. 

The numbers: Data compiled by Public Employees for Environmental 

Responsibility (PEER) and released Tuesday, found that the EPA in 2018 

generated the fewest new criminal case referrals for prosecution to the Justice 

Department than any year since 1988. 

Those numbers follow a November report by the Environmental Data and 

Governance Initiative, which found that EPA's data showed steep declines in 

enforcement and compliance actions and outcomes. The 2018 declines were 

seen in civil settlement amounts, cases filed against polluters, compliance 

orders and criminal enforcement. 

Last year's annual EPA enforcement report showed that polluters were fined a 

total of $1.6 billion in penalties in fiscal2017 --about one-fifth of the $5.7 billion 

EPA penalties collected the prior year. 

The drop in the EPA's enforcement of regulations were even more stark when 

looking at the agency's actions on injunction relief-- the monetary commitments 

polluters pledge to spend in order to remediate their pollution and keep it from 

recurring. 

Injunctive relief in 2017 stood at $20 billion, compared to $13.7 billion the 

previous year, but $15.9 billion of the recent total come from the landmark 

Volkswagen settlement. When the settlement is taken out of the calculation, 

injunctive relief payments in fiscal 2017 totaled $4 billion-- less than one-third of 

the previous year's amount and less than half of the total in 2015. 

http s /It he hill com/p oticy lenergy-envtronme nl!overni g hts/42 552 3-overn ight -energy-epa-under -ga o-inve stig a t1on-for 2!7 
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1/23/2019 Overnight Energy: Watchdog mvestigatmg EPA enforcement numbers I EPA's \1\fneeler faces Senate grilling llntenor's offshore dn!\lng st 

The probe: EPA's IG office in November began a comprehensive investigation, 

comparing the agency's enforcement rates between 2006 and 2018. The probe 

is comparing overall enforcement trends and intends to determine the factors for 

the falling numbers. 

At EPA, political officials are said to be aware of the bad optics of lower 

enforcement numbers. 

"The numbers are down," said an EPA source with knowledge of internal 

discussions. "Now there is a different emphasis --we're encouraging 

compliance .. so you can't just count the number of cases." 

Read more on the probe here. 

Happy Tuesday! The government shutdown clock is at 25 

days. Here'sthe @!_El_~ on !11_~ shutdown front. 

Welcome to Overnight Energy, The Hill's roundup of the latest energy and 

environment news. 

An Insane Credit Card 

Offering 0% Interest 

Until2020 

SPONSORED BY NEXTADVISOR 

Please send tips and comments to Timothy Cama, tcama@thehill.com, and 

Miranda Green, mgreen@thehill.com. Follow us on Twitter: @Timothy_Cama, 

@mirandacgreen, @thehill. 

9LICK HERE to subscribe to our newsletter. 

INTERIOR TO BRING OFFSHORE DRILLING STAFF BACK DURING 

SHUTDOWN: The Trump administration is bringing dozens of federal 

employees back to work to carry out the administration's plan to expand 

offshore oil and natural gas drilling. 

https·flthehi!Lcom/po!icy/energy-environmentfovernights/425523~overnight-energy-epa-under-gao-investigatlon-for 3i7 
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1123/2019 Overmght Energy Watchdog mvesttgatmg EPA enforcement numbers I EPA's VVheeler faces Senate gnllmg ! lntenor's offshore dnilir.g st 

The Interior Department's Bureau of Offshore Energy Management (BOEM) 

updated its plan for the ongoing partial federal government shutdown last week 

to state that 40 workers would be brought in for offshore drilling, in addition to 

the 84 others who have already been working during the shutdown. 

The employees are working in four areas: geological testing for offshore oil and 

natural gas in the Atlantic Ocean; the administration's proposal last year to allow 

offshore drilling in the Atlantic, Pacific and Arctic oceans; environment review for 

that proposal and preparations for two upcoming offshore drilling lease sales in 

the Gulf of Mexico. 

Other BOEM responsibilities, like opening offshore areas for wind energy 

development, remain closed. 

Each of the areas is being financed through "carryover funds." BOEM said. 

Most federal employees who are being asked to work during the shutdown are 

there for a variety of very limited reasons, including "protection for life and 

property," since federal law severely restricts who can work. 

But BOEM made clear that the workers newly exempted from the shutdown are 

there to carry out President Trump's agenda. 

"In order to comply with the Administration's America First energy strategy to 

develop a new OCS Oil and Gas leasing program, work must continue toward 

issuing the Proposed Program per the Outer Continental Shelf Leasing Act 

requirements," BOEM said of bringing back workers for the plan to expand 

drilling. 

As for the Gulf of Mexico sales, "Failure to hold these sales would have a 

negative impact to the Treasury and negatively impact investment in the U.S. 

Offshore Gulf of Mexico," BOEM said. 

BOEM and Interior did not respond to requests for comment. 

Interior has been under fire by Democrats and environmentalists for bringing on 

workers in many areas related to fossil fuel extraction during the shutdown, 

while parks, wildlife refuges and other Interior responsibilities suffer. 

Read more here. 

WATCHDOG FILES ETHICS COMPLAINT AGAINST EPA CHIEF: A 

government watchdog group filed an ethics complaint against EPA acting 

https //thehiil.com/policy/energy.enwonmentlovernights/425523-overnight-energy-epa-under-gao-lnvestlga!iOn-for <17 
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1/2312019 Overn1gh! Energy, Watchdog 1nvest1gatmg EPA enforcement numbers! EPA's VI/heeler faces Senate gnllmg 1 !ntenor's offshore dni!Jr>g st 

Administrator Andrew Wheeler on Tuesday over meetings held with past fossil 

fuel clients after he took over the agency. 

Citizens for Responsibility and Ethics in Washington (CREW). in a letter to the 

EPA's acting inspector general, asked the office to investigate whether Wheeler, 

a former energy lobbyist. violated his ethics pledge. 

Specifically, the group asked the office to look into two 2018 meetings with 

former clients Darling Ingredients, Inc., Growth Energy, and the Archer Daniels 

Midland Company, during his two-year recusal period. 

CREW also questioned whether Wheeler was right to participate in the 

rulemaking process for several EPA standards over which he had previously 

lobbied the agency. Those regulations include the Coal Combustion Residuals 

(CCR) rule, the Affordable Clean Energy (ACE) rule and the Renewable Fuel 

Standard (RFS) program. 

"Mr. Wheeler's involvement in these matters also gives rise to the appearance of 

a lack of impartiality, which critically undermines the agency's integrity in 

carrying out these programs and operations," the CREW letter read. "As a 

result, unless he was authorized to participate, his involvement violated his 

ethical obligations under the Standards of Ethical Conduct for Employees of the 

Executive Branch ("Standards of Conduct")." 

Before being sworn in as deputy EPA administrator in April. Wheeler signed an 

ethics pledge that prohibited him from participating "in any particular matter 

involving specific parties" that is directly and substantially related to his or her 

former employer or former clients for two years after appointment." 

Wheeler became acting administrator in July following former EPA head 

Scott Pruitt's resignation. Trump formally nominated Wheeler to be EPA 

administrator last week. 

EPA response: An EPA spokesperson denied the accusations. 

"All of these baseless accusations are wrong. Acting Administrator Wheeler 

works closely with career EPA ethics officials and follows their guidance. This is 

nothing more than a last second political stunt by a group to try to attack 

President Trump's nominee hours before his confirmation hearing and should be 

recognized as such." 

More on the ethics complaint here. And more on his confirmation hearing below. 

https /ltheh1!1 com/oo!icy/energy-environrnenVovernightsf425523-overnlght-energy-epa-under-gao-•nvest:gat•on-for 5!7 
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;/23/2019 Overn1gh\ Energy Watchdog mvest1gatmg EPA enforcement numbers I EPA's Wheeler faces Senate gnllmg 1 !ntenor's offshore dnllmg st 

ON TAP WEDNESDAY: 

Acting Environmental Protection Agency (EPA) chief Andrew Wheeler will face a 

Senate grilling Wednesday on the aggressive deregulatory actions he's 

undertaken during the last six months as head of the agency. 

He will testify at a Senate Environment and Public Works Committee hearing on 

President Trump's nomination for him to be the official administrator of the EPA. 

Wheeler is no stranger to Capitol Hill. He was confirmed by the Senate to be 

deputy administrator and has been in charge at EPA since former chief Scott 

Pruitt was forced out under pressure from ethics and spending allegations in 

July 2018. 

His first appearance before Congress since August is likely to focus on his 

efforts at the EPA's helm to scale back regulations, including moving to undo the 

climate change rules for power plants, cars and oil drillers, and federal 

protections for small waterways like wetlands and streams. 

Sen. Ed Markey (0-Mass.), who sits on the Environment Committee, told The 

Hill he's expecting the hearing to feature "very tough questions on his 

relationship to the coal industry, pollution and harming the public health of 

Americans." 

OUTSIDE THE BELTWAY: 

-Bark beetle outbreaks expand in Colorado, the Colorado State Forest 

Service r_e_l2~~~· 

-Yellowstone plans to ship 600-900 bison to slaughter this winter, The Billings 

Gazette reports. 

-Energy Department says surging oil output will push US towards energy 

independence in 2020. CNBC r:eJl.Cl!:~· 

IN CASE YOU MISSED IT: 

Check out Tuesday's stories .. 

https //thehil!.com/pollcy/energy-environment/overnights/425523-m.rernight-energy-epa-under-gao-investigatlon-for 6/7 
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Washington Post 

Health & Science 

With a shrinking EPA, Trump delivers on his promise to cut 

government 

By Rrady Dennis , 

Jull(~i Edperin and 

/l.ndrew Go Tran 

September 8, 2018 

On the campaign trail, Donald Trump vowed to dismantle the Environmental Protection Agency "in almost 

eyery form. We're going to haYe little tidbits left, but \ve're going to take a tremendous amount out." 

As president, he is making headway on that promise. 

During the first 18 months of the Trump administration, records show, nearly 1,600 workers left the EPA, 

while fewer than 400 were hired. The exodus has shrunk the agency's workforce by 8 percent, to levels not seen 

since the Reagan administration. The trend has continued even after a major round of buyouts last year and 

despite the fact that the EPA's budget has remained stable. 

Those who ha\·e resigned or retired include some of the agency's most experienced veterans, as well as young 

environmental experts who traditionally would have replaced them- stirring fears about brain drain at the 

EPA. The sheer number of departures also has prompted concerns o,·er what sort of work is falling by the 

wayside, from enforcement investigations to enYironmental research. 

According to data released under the Freedom of Information Act and analyzed by The Washington Post, at 

le-ast 260 scientists .. 185 "environmental protection specialists" and 106 engineers are gone. 

Several \·eteran EPA employees, who ha\·e worked for both Republican and Democratic administrations, said 

the agency's profound policy shifts under Trump hastened their departure. 

"I felt it was time to leave given the irresponsible, ongoing diminishment of agency resources, which has 

recklessly endangered our ability to execute our responsibilities as public servants/' said Ann Williamson, a 

scientist and longtime supervisor in the EPA's Region 10 Seattle office. 

She left in March after 33 years at the agency, exasperated by having to plan how her office would implement 

President Trump's proposed cuts and \·Veary of what .she viewed as the administration's refusal to make policy 

decisions based on eYidence. "I did not ·want to any longer be any part of this administration's nonsense," she 

said. 

In a statement Friday, Acting Administrator Andrew Wheeler said he was focused on right-sizing the EPA, 

whieh Republicans have argued overreached under President Barack Obama, burdening industry with 
534 


35314.484

regulations such as those focused on climate change. 

"With nearly half of our employees eligible to retire in the next five years, my priority is recruiting and 

maintaining the right staff, the right people for our mission, rather than total full-time employees," he said. 

Congress has so far maintained the EPA's budget at just more than S8 billion, and while current proposals 

could shrink that amount, any cuts are likely to be modest. 

"The Trump administration comes in and goes way, \\·ay beyond what the budget requires," said Rep. David E. 

Price (D-N.C.), a senior member of the House Appropriations Committee and whose district is home to a major 

EPA research center. Price said multiple constituents have told him that working at the EPA has become 

"intolerable" after seeing their findings sidelined. 

"It is profoundly demoralizing, and I think, profoundly damaging in terms of the agency's mission," he said. 

The EPA is not alone in shedding personnel under Trump, despite the fact that Congress passed a SL3 trillion 

budget bill in :vlarch that boosted both military and domestic spending. 

The State Department's total number of permanent employees, for instance, fell64 percent between Trump's 

inauguration and March 2018, according to federal records, while the Education Department declined 

94 percent during that time. 

Part of the drop stems from a government-wide hiring freeze Trump imposed after his inauguration, which 

lasted nearly three months. The president has continned to press for a leaner federal payroll, asking Congress 

recently to withhold pay raises for federal workers in 2019. 

In a few instances, Trump's deputies are trying to fill the widespread vacancies in their department's ranks. 

Secretary of State Mike Pompeo recently began trying to staff the many senior positions that remained empty 

under his predecessor, Rex Tillerson. Meamvhile, Veterans Affairs is eager to hire doctors, nurses and other 

medical professionals to fill thousands of vacancies. 

But at the EPA, it is largely a case of career staff members headed for the exits. Hundreds of employees 

accepted buyouts last summer, and records show that nearly a quarter of the agency's remaining 13,758 

employees are uow eligible to retire. At its peak in the late 1990s, the EPA employed more than 18,ooo people. 

Christopher Zarba, who retired in February after serving as director of the EPA's Scientific Advisory Board, 

disagreed with former administrator Scott Pruitt's decision last war to overhaul the board's membership. 

Zarba, a 38-year EPA veteran, said that for mauy staff members, a belief in the agency's mission had 

compensated for less-than-ideal v1orldng conditions. 

'That is the crazy glue that holds the place together, the idea, 'This is important We're making a difference,'" 

he said. "And when that crazy glue begins to fall apart, things change." 
535 


35314.485

That sentiment played a role in Betsy Smith's decision to retire in June after 20 years with the EPA's Office of 

Research and Development- a department singled out for massive cuts in Trump's first budget proposal. She 

said ofl1cials largely shelved a project she was leading that aimed to help port communities deal with climate 

change and other environmental challenges. 

"It's really awful to feel like you don't have any role to play, that there's not any interest in the work you're 

doing," said Smith, 62, "My feeling was I could do better work to protect the environment outside the EPA" 

Troy Hottle, 32, arrived at the EPA in early 2016 as a research fellow after getting his doctorate in sustainable 

engineering at Arizona State University, He expected to forge a career there, as others like him had historically 

done. 

"!really felt good about what I was doing and who I was working with," Hottle said, 

But a year and a half into his time at the EPA, the future hiring prospects within the Ofiice of Research and 

Development seemed uncertain at best The career path he had "spent half a lifetime" pursuing, he said, no 

longer looked so appealing, 

Last September, when he got a job offer from a national environmental consulting firm, he decided to make the 

leap, 

After his arrival, Pruitt quickly gained a reputation for excluding career officials from key decisions and 

showing little regard tor the agency's own research, He also took the president's desire to scale back the EPA to 

heart, repeatedly boasting about how a buyout and early retirement push last )'ear reduced the agency 

workforce. 

Other conservatives also have cheered the whittling down of EPA's size and reach as appropriate and overdue, 

''It doesn't take a bigger bureaucracy to clean our em ironment,'' Rep, Ken Calvert (R-Cali[,J, who chairs the 

House subcommittee overseeing the EPA's budget, said in a statement. "A lean and efficient vmrkforce at the 

EPA is a win for taxpayers and the environment by allowing more funding to go towards efforts to clean our 

"·ater and air," The agency also underwent buyouts during the Obama administration, but EPA still had about 

15,000 employees when he left office, 

EPA officials last year launched a reorganization aimed at streamlining the agency, and Wheeler has struck a 

more measured tone as he has pursued it. A former EPA staff member himself, he praised career employees in 

a speech after his appointment, saying his "instincts" would be to defend their work and sympathizing about 

the stress that comes with the changes the agency is undergoing, 

On Thursday, he sent an agencywide email announcing that regional offices would be redesigned to mirror the 

structure at headquarters, 
536 


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As the departures continue, some EPA workers ha\'C Yoiced worries that the administration's refusal to fill 

yacancies with younger employees has effectiYely blocked the pipeline of new talent, 

Dan Costa, 70, joined the EPA 34 years ago as a staff scientist, rising through the ranks to direct its national air, 

climate and energy research program in 2011. He stepped do\\'11 from that post in January, and he said he spent 

part of the last year counseling younger researchers who saw no possibility of replicating his career path, 

"I had young people come into my office, close the door and say, 'What should I do'! Should I be looking for a 

job somewhere else?'" he said. He said he advised one young man to "'test the \-q.tters'' gi\'en the current regime. 

"These people are like termites, gnawing at the foundation," 

Multiple current and former employees also say that the exodus at the EPA has left important work falling 

through the cracks, In Chicago, for instance, a eiYil inYestigator responsible for probing who is responsible for 

Superfund sites left earlier this year and has yet to be replaced, said Mike Mikulka, president of the local union 

that represents EPA employees, 

"You can talk all you want, but your actions speak far louder," he said, noting that Pruitt had held up Supnfund 

as a top priority during his tenure, "What's happening is that the lo\\·est priority work just doesn't get done, 

And some of that work is really criticaL'' 

One of the EPA divisions hardest hit by staff cuts is the Office of Enforcement and Compliance Assurance, 

whose numbers dipped 15,7 percent between ,January 2017 and August 2Cl18, Several experts said that any cuts 

to that diYision have a major impact because the \·ast majority of its budget comes from personnel costs rather 

than grants or other expenditures, 

Granta Nakayama, who headed the office from 2005 to 2009, said that it couldn't sustain that deep a staffing 

cut without curtailing some of its operations. 

·'If you don't have people to enforce the regulations, J'Ou're not going to get enforcement, and you're not going 

to get compliance," said Nakayama, nov\' a partner at the lmv firm King & Spalding. "If you don't haYe boots on 

the ground, it doesn't bappen,'' 

Brady Dennis 

Dennis a national ;eporter for nw WfY>i;ington Post. focusntg on tll8 envirnnment cmd puhl:c !wn!th tsstH~s. HE· 

prcvtously spent years r.overine, the natlon's economy. Dennis was a finaltst for the 2009 Pulitzer Pnze for a senes of 

cxpltmdtory stones about the global finrHicial crisis. Follow~ 

Juliet Eilperin 

L fhe Wtlshlngton FrY~\'s senior il,ltlO!kil resnorroc•nl. covet illf!, how t\)P. nr>\V ndnnni'-;tra:ion :s 

range of U.S. poliCiC".> 0n1l ;"gil! HX of t\'Vt) boohs -- on~~ on 

Congre;.,s, not to conf!!sed \VIti 1 ec1ch oHwr Follow~ 

Andrew Ba Tran 
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1123!2019 The EPA IS lettmg environmental cnm1nals off the hook Vox 

Vox 

How Trump's EPA is letting environmental criminals off the 

hook, in one chart 

Refer-rals for criminal prosecutions for environmental crimes are at a 30-year low. 

ltr{ln 1 J;n 1n. ?oJs. a 

The Environmental Protection Agency isn't going after polluters like it used to. 

At his Wednesday confirmation hearing, Acting Administrator Andrew Wheeler tried to 

make the case to senators on the Environment and Public Works Committee that 

enforcement is a priority. "In Fiscal Year 2018, EPA enforcement actions required the 

treatment, disposal, or elimination of 809 million pounds of pollutants and waste almost 

twice as much as compared to 2017," he said. 

But according to government watchdog groups, under the Trump administration, the 

agency has seen big declines in both civil and criminal enforcement of environmental laws. 

A report this week from Public Employees for Environmental Responsibility (PEER), an 

advocacy group for public sector workers who deal with environmental issues, shows that 

the number of criminal cases the EPA referred to the Justice Department under President 

Trump is at the lowest level in 30 years: 

https lf'M'!W.vox.com/20 19/111 Gt18183998!epa-andrew-wheeler-environmental-policy-enforcement 1i5 
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1/23/2019 

600 

450 

300 

150 

The EPA IS !etimg en>'lronmental cnm1nals off the hook- Vox 

EPA enforcement at a record low 

Under Trump, the EPA has generated the fewest anti-pollution 

cases since 1988 

Referrals for criminal prosecution Convictions 

62 

'88 '90 '92 '94 '96 '98 '00 '02 '04 '06 '08 '10 '12 '14 '16 '18 

H.W.BUSH CLINTON W. BUSH OBAMA TRUMP 

Source: Public Employees for Environmental Responsibility Vox 

It follows a 2018 report from the Environmental Integrity Project, which found a massive 

drop in the amount of fines Trump's EPA collected from polluters relative to the past 

three administrations during the same time frame. 

Both reports make the case that the EPA is neglecting its mission and letting bad actors off 

the hook. That, in turn, could lead more scofflaws to ignore critical air. water, and soil 

protection rules. 

https /lwww. vox.com/201 9/1/16/18183998/epa-andrew-wheeler-envlronmental-policy-enforcement 215 
539 


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1/23/2019 The EPA IS lettmg enwonmental cnm1na!s off the hook- Vox 

"The deterrent effect of these statutes gets limited," said Jeff Ruch, the executive director 

of PEER. "Arguably, if they're ignored altogether, you have pollution that goes on 

unabated." 

A big part of the EPA's job is to go after individuals, businesses, and even local 

governments that violate environmental regulations. That can mean assessing a civil 

penalty for a company that doesn't refine fuel properly. It can also mean prosecuting an 

auto engineer conspiring to cheat emissions standards, leading to federal prison time. 

Join the Vox Video Lab 

Go behtnd the scenes. Chat with creators. Support Vox video. Become a member of the Vox Video lab on 

VouTube today. (Heads up: You might be asked to s1gn in to Goog!e first.) 

Generally, the cases referred for criminal prosecution involve actions that directly harm 

rublic health. But that requires the EPA to follow up on leads, analyze the evidence, and 

build a legal case. 

One major reason this kind of enforcement has been down in recent years is that there's 

been a big drop-off in investigations by its Crimina! Investigation Division, the armed law 

enforcement branch of the EPA whose agents are trained to fight environmental crime. 

In 2017, the number of agents at the division fell to 147, below the legal minimum of 200 

set out in the Pollution Prosecution Act of 1990. That's less than half the tally of agents 

employed in 2003. 

"There's a direct relation between personnel and the cases you can prosecute," Doug 

Parker, a former EPA career employee who led CID under President Obama, told me. With 

fewer investigators to pursue leads, "you are absolutely missing cases." 

However, the Justice Department also has discretion over which cases it chooses to 

prosecute out of the cases it receives from the EPA. So a referral is only the first step in 

advancing a case against a polluter. "If you look at the data, they decline a healthy 

percentage of the referrals from the EPA," said Ruch. 

Over the past 32 years, the Justice Department prosecuted between 24 percent and 63 

percent of the cases it received from the EPA in a given year. However, there were just 62 

convictions in fiscal year 2018, the fewest since 1995. 

https.ltwww vox.comf2019f1/16118183998/epa-andrew-wheeler-enwonmental-po!ICY-enforcement 
540 


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1/23/2019 The EPA IS letting enwonmental cnm1nals oft the hook" Vox 

Many of the cases underway now under the current EPA started under the prior 

administration, Parker noted. "Everything that I have seen announced in terms of 

substantive prosecutions have been cases that originated in the Obama administration," 

he said. "There is little that I've seen that is not an Obama-era investigation." 

When asked for a comment about the decline in enforcement, an EPA spokesperson 

referred me to an EPA statement on the Fiat Chrysler settlement on emissions cheating 

allegations announced last week. The settlement requires the company to recall and repair 

vehicles that were equipped with a defeat device to fool emissions tests. Fiat Chrysler also 

has to pay a civil penalty of $305 million. 

The statement explains the EPA's enforcement strategy: 

The [Fiat Chrysler] settlement also demonstrates how enforcement accomplishments for each year 

are highly influenced by large cases. The civ1! penalty for the FCA case alone is more than four times 

greater than all the civil penalties collected in FY2018. ThiS case also demonstrates that while our 

overall number of case conclusions declined slightly in FY2018 from 1.978 to 1,818 cases, EPA is 

continuing to direct its resources to tho most significant and impactful cases. 

For example, the cases EPA concluded in FY2018 required regulated entities to address over 809 

million pounds of waste and pollutants. an increase of more than 40% over FY2017. Similarly, while the 

dollar value of Superfund c!c<:mup commitments, oversight costs, and cost recoveries obta1ned in 

FY2018 ($613 million) is lower, those numbers also ore greatly impacted by a few cases. In FY2018, EPA 

used its Superfund enforcement tools to facflitJte cleanup and redevelopment at over 150 sites. 

In essence, the EPA is arguing that the agency is going after the big fish- that the number 

of cases is down, but the impact of the cases it does pursue, in terms of settlements and 

pollution avoided, is up. 

Ruch isn't convinced by this. He said the EPA should be able to fight big and small cases at 

the same time, and that the reduced number of t·eferrals reflects a lower priority on 

enforcement under the current administration. "We view enforcement as a core part of 

their mission," he said. 

And Fiat Chrysler's emissions cheating was first uncovered by the EPA in 2015. The 

settlement is also a civil penalty, not a criminal penalty. 

At the same time, the EPA is pursuing an aggressive policy agenda of rolling back and 

relaxing environmental regulations: greenhouse gas limits, mercury regulations, and 

ht\ps 1/wwvv.vox com/20 1911116!18183998/epa-andrew-wileeler-enVIfonrnental-pol!cy-enforcemem 415 
541 


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1/23!2019 The EPA 1s !ett1ng enwonmenta! cnm1nals off the hook Vox 

clean water authority, among others. 

By changing the rules, the EPA is changing what counts as a violation in the first place. That 

means if the Trump administration's changes stick and aren't undone in the courts, we 

may see even fewer prosecutions in the future. 

h!tps'l/www.vox com/20 19f1/16/18183998/epa-andrew-wheeler-environmental-policy-enforcement 515 
542 

Senator CARPER. And second, I would like to ask unanimous consent to submit for the record materials that indicate that the safety 

analysis that Mr. Wheeler referred to with respect to the previous 

Administration’s CAFE proposals, that that his safety analysis, 

which I think is badly flawed from this Administration, I would 

like to have for the record an analysis that indicates as much. 

Senator BARRASSO. Without objection, and please feel free to proceed with your round two of questions. 

[The referenced information follows:] 

543 


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October 26, 2018 

VIA ELECTRO~IC SUBMISSION 

Heidi King 

Deputy Administrator 

National Highway Traffic Safety Administration 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Andrew R. Wheeler 

Acting Administrator, 

Environmental Protection Agency 

1200 Pennsylvania Ave., ~W 

Washington, DC 20460 

Attn: Docket No. NHTSA-2018-0067 

Docket No. EPA-HQ-OAR-2018-0283 

Re: Comments of Environmental Defense Fund on National Highway Traffic Safety 

Administration's and Environmental Protection Agency's Proposed Rule: The Safer 

Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 

Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986 (Aug. 24, 2018) 

On behalf of our members across the country. Environmental Defense Fund ("EDF") 

respectfully submits these supplemental comments on the National Highway Traffic Safety 

Administration's (''NHTSA'') and the Environmental Protection Agency's ("EPA") Proposed 

Rule: The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 

Passenger Cars and Light Trucks. 83 Fed. Reg. 42986 (Aug. 24. 20!8) ("Proposed Rule" or 

··Proposed Roll back"). 

These short. supplemental comments address certain additional flaws with the agencies' safetyrelated analysis in the Proposed Rule. 

The Administration is falsely claiming that rolling back the Clean Car Standards will save 

lives. This could not be further from the trnth. 

The Agencies claim that they need to roll back the Clean Car Standards in order to reduce traffic 

fatalities. The Agencies own analysis, however, shows that the Clean Car Standards will, if 

anything, improve the safety of driving. The large number of traffic fatalities projected by the 

Agencies are instead due to the Agencies' projections that under the standards, driving will 

increase. These projections arc unsound, but even if they were not, the increase in traffic 

accidents associated with individuals choosing to drive more cannot be seen as "imposed by'' the 

standards a position the Agencies agree with in some contexts but inexplicably ignore in 

others. Because the Agencies rely on this projected increase in driving and the traffic accidents 
544 


35314.493

associated with it to justify the rollback. the proposal must be abandoned as arbitrary and 

capricious. 

There is no increased vehicle safety risk under the standards. 

There are two ways that the number of traffic fatalities can change one is that there is a change 

in the fatality rate, or the number of fatalities per mile. and the other is that people can change 

the amount they drive. because driving more increases the chance of being involved in an 

accident. 

Notably, the agencies have not provided information on the overall change in the fleet average 

fatality rate due to the proposed rollback. Under their analysis. there are two possible sources of 

changes in the fatality rate. The first is that some automakers might reduce the weight of 

vehicles to make them more fuel efficient (called mass reduction). However, the Agencies 

actually concede that their analysis finds no statistically significant effect of mass reduction on 

the fatality rate. As the Agencies state. "None of the estimated effects have 95-percent 

confidence bounds that exclude zero" (Proposed Rule at 43.111)- which means that traffic 

fatalities could go up slightly, go down slightly. or be zero. As a result. there is simply no 

foundation for attributing any traffic fatalities to the existing standards from changes made to 

vehicles. 

This is the case even though the Agencies' mass reduction analysis is inappropriately skewed to 

in ways that understate how the standards can reduce traffic fatalities. First, to analyze the effect 

of reducing vehicle weight. the Agencies inappropriately usc historical data that does not reflect 

advances in high-strength materials and design that enable vehicles to be made lighter while 

making them safer. [See comments submitted to these dockets by: VanAuken. R.M. Comments 

on the Preliminary Re~;ulaton·!mpact Analysis of the Proposed Safer Aj/imlable Fuel-E!ficienl 

(SAFE! Vehicles Ru/ejiu· A-fodel l'ear 202 I -2026 Passenger Cars and Ligh1 Trucks. DR I-TR-18-

07. October 25, 20 18; Consumers Union: Gregory Peterson, Modern Vehicle Ugh/weighting: A 

Review on Sqf'ety ofReduced Weight Vehicles, CONSUMERS UNION (Oct. 24. 2018). 

https :/ /consu mersu n ion.org/rcscarchimodern -vch i clc-1 i ghtwei 12ht i ng-a-rev i cw-on-safet V:D.f:: 

reduced-weight-vehicles/, appended to comments submitted to these dockets by Consumers 

Union.] Second, the Agencies are. contrary to their prior approach. allowing the model to reduce 

the weight of smaller vehicles. Evidence from the auto industry and their suppliers indicates that 

in fact automakers have been reducing the weight of heavier vehicles. and plan to do so going 

forward-which will reduce overall fatalities. [Sec NRDC (October 20!8). Evalualion oj.'vfass 

Reduclion Assumplions in Nl!7SA Volpe Model. appended to comments submitted to these 

dockets by Natural Resources Defense Council.] 

The second possible source of changes to the overall average t1cct fatality rate is changes in the 

make-up of the fleet, or in other words, the prevalence of different model years in the overall 

fleet. If, for example, more older cars (which have a higher fatality rate than newer cars) are 

kept in operation, that could change the overall average fatality rate for the t1eet. As discussed 

more below, the agencies' analysis of these types of changes the sales of new vehicles. 

scrappage of old vehicles, changes in the share of cars and trucks in the t1eet, and additional 

driving due to lower operation costs under the current standards (known as the "rebound'' effect) 

2 
545 


35314.494

is fundamentally flawed. From a lack of peer review. to misapplication of economic theory. to 

basic missteps in model design, to a failure to recognize or reconcile the bizarre results they were 

getting from the models. the agencies· failings on these fronts are now well documented. 

Despite these numerous errors and contrary to the Agencies' assertions, however, even the 

Agencies' analysis shows that under the standards. the end result of all the projected changes to 

fleet composition is a decrease in fatalities. [See ACEEE, Breakdown ofNPRM incremental 

fatalities (auguralfiwl economy and exisling GHG standards vs proposed standards) by cause, 

appended to comments filed to these dockets by the American Council for an Energy-Efficient 

Economy.j 

Given the lack of statistical significance of the mass reduction analysis, which the Agencies 

acknowledge. the associated traffic fatality projections must be treated as zero. Taking this into 

account, under the Agencies' own analysis of the effects of mass reduction and changes in fleet 

composition, the impact of the existing standards is to improve the overall fatality rate of the 

fleet and decrease fatalities. Under the standards, the percentage of total vehicle miles traveled 

by newer, safer vehicles is greater than the percentage of total vehicle miles traveled by older. 

less safe vehicles. and overall, traffic fatalities from fleet composition shifts decline. 

The Agencies' projected traffic fatalities are not due to changes in vehicle safety risk, but 

instead are due to increased driving, which cannot be attributed to the standards. 

Leaving the statistically insignificant results of mass reduction aside, all of the fatalities the 

Administration claims to be avoiding through the roll back are from their projections that under 

the standards people will drive more-drive new vehicles more, and drive existing vehicles 

more. 

The Agencies' projections of increased vehicle miles traveled are in direct conflict with 

established economic theory and the best available evidence. as discussed more below. But 

furthermore. it is not. as the Agencies themselves note, appropriate to view the traffic accidents 

that occur because individuals make a choice to drive more as "compelled by" the standards. 

Nor can the Agencies lawfully rely upon the repercussions of increased driving as a justification 

for failing to fullill their statutory mandates to set maximum feasible fuel economy standards and 

to mitigate the dangerous air pollution from vehicles. The fact that the standards do not 

"compel" this driving prevents such reliance, and so do the respective statutes, which nowhere 

indicate that the Agencies can refuse to comply with their statutory obligations by pointing to a 

projection that individuals might drive more and in doing so. some of them will get into traflic 

accidents. 

It is especially unlikely that Congress intended for NHTSA to consider potential increases in 

driving (or ··vehicle miles traveled.'' or '"YMT''). Under basic economic theory and under the 

Agency's traditional analysis (including their analysis of this proposal), an improvement in fuel 

economy-which makes driving cheaper-would be expected to lead to some increase in driving 

for households that arc sensitive to and conscious of that effect on their budgets. Thus, 

consideration ofVMT impacts could be used to undermine any fuel economy standard. Because 

YMT is ;.a factor [that] is both so indirectly related to [fuel economy] and so full of potential for 

3 
546 


35314.495

canceling the conclusions drawn from [a fuel economy analysis] , , , it would surely have been 

expressly mentioned in [the statute] had Congress meant it to be considered'' Whitman v. Am. 

7/·ucking Associations, 531 U.S. 457, 469 (200 I). 

Even setting aside the plain illegality of attributing traffic fatalities that result fl·om individuals 

choosing to change their driving habits to the standards. the Agencies' projections of increased 

driving are so fundamentally flawed as to be unusable. 

The increases in VMT come from three sources in the Agencies' modeling- the rebound effect, 

the scrappage model, and the dynamic fleet share modeL 

Rebound The Agencies have doubled the rebound rate that they are using to project how much 

more the owners of new vehicles will drive because those vehicles are more fuel efficient, and 

thus cheaper to drive. As laid out in great detail elsewhere in the comments submitted to these 

dockets, the rebound rate the Agencies have chosen cannot be supported when the best available 

and most relevant research is examined. [See comments submitted to these dockets by: 

Environmental Defense Fund and the Union of Concerned Scientists; Kenneth Gillingham, The 

Rebound Ejj'ect of Fuel Economy Standards: Comment on the Safer Affordable Fuel-Efficient 

(.<JAFE) Vehicles Proposed Rule for ivfodel Years 2021-2026 Passenger Cars and Light Trucks, 

October 19, 2018, appended to comments submitted to these dockets by the California Air 

Resources Board; the Institute for Policy Integrity at NYU School of Law.] Further, the 

Agencies themselves note that the fatalities and accident costs that happen because of rebound 

driving cannot be attributed to the standards, because they are the result of an individual's choice 

to drive more. [Proposed Rule at 43, I 07, I The l~1Ct that the Agencies nonetheless cite rebound 

traffic fatalities as a justification for rolling back the standards is inappropriate and deeply 

misleading to the public. [Sec, e.g, Proposed Rule at 43.266: comments submitted to these 

dockets by Environmental Defense Fund and the Union of Concerned Scientists.] 

Scrappage. The development, design, and validation of the Agencies' scrappage model are so 

flawed from an economics point of view that the model is unusable for policy purposes. That the 

model is fatally flawed is obvious from its own projections, as the model predicts that existing 

vehicles will become more expensive and that as a result there will be higher demand for those 

vehicles. This is a violation of basic economics (and common sense). which dictates that as the 

price of a good increases, demand for it will decrease. Nonetheless, the Agencies' scrappage 

model predicts that because existing vehicles become more expensive, total fleet size will 

increase-and that those vehicles will be driven the same amount as the average vehicle of that 

type and age. In other words, the Agencies assume that it is solely the number of vehicles that 

determines the amount of driving-not the demand for driving, the availability of alternative 

options, or the state of the economy. And it is that (unjustified) increase in driving, due to the 

(unjustified) increase in the size of the existing vehicle fleet that results in increased accident 

costs and increased traftlc fatalities. [Sec comments submitted to these dockets by: the Institute 

for Policy Integrity at NYU School of Law: the Environmental Defense Fund; David Bunch, An 

Evaluation of/\'f/1:)~4 's Economics-based ,\Iodeling and lmp/icationsfiJr Benefit-Cost Analysis 

in the NHTSAiFPA August 2-1.2018 Notice ofProJ'osed Rulemaking (:\'l'RJ/j ["The Saj'er 

Affordable Fuel-Efficient (SAFE) Vehicles Rulefi>r Afodel l'ears ]0]1-2026 Passenger Cars and 

Light Trucks"}, October 24, 2018, appended to comments filed by the California Air Resources 

4 
547 


35314.496

Board; David Greene, How Consumers Value Fuel Economy and Implicalionsfor Sales ofNew 

Vehicles and Scrappage of U~ed Vehicles, October 21, 2018, appended to comments filed by the 

California Air Resources Board; Mark Jacobsen and Arthur van Benthem, NHTSA-2018-0067-

7788.1 

Dvnamic Fleet Share. The Dynamic Fleet Share model is intended to project what types of 

vehicles individuals will purchase. Because its design is flawed, its projections cannot be 

credited. The model looks at the effect of changes in fuel economy on the decision to purchase a 

car versus a truck, but it does not incorporate the cost of those changes. As a result if a truck's 

fuel economy had been improved by 5% at a cost of $2 million, and a car's fuel economy had 

been improved by 4% at a cost of $100, the model would project that truck sales would increase 

and car sales decrease. This is not a rational projection. Further, the Agencies assume that the 

individual who purchased a truck rather than a car because of the greater fuel economy 

improvement in the truck will drive more, just because they purchased a truck rather than a car. 

This is also not a rational projection. [See comments submitted to these dockets by Consumers 

Union (CU). Consumer Federation of America (CFA), and American Council for an EnergyEfllcient Economy (ACEEE), Joint Commen!s on Vehicle Sales. Ownership Costs, and 

Consumer Willingness to Pay/or Fuel Economy.] 

In short. these projections of increased driving are not credible, and even if they were, it would 

be inappropriate-as the Agencies themselves concede in their discussion of rebound-to 

attribute traffic fatalities that result from individuals' decisions to drive more to the standards. 

There are, of course, many things the federal government can and should do to make driving 

safer-including finalizing vehicle safety standards proposed under the prior Administration that 

NHTSA projects could dramatically reduce accident rates. But claiming that highly dubious 

projections of increases in driving prevent the Agencies from fulfilling their statutory obligations 

to set maximum feasible fuel economy standards and mitigate dangerous greenhouse gas 

emissions from vehicles is neither appropriate nor lawful. 

5 

Respectfully submitted. 

Peter Zalzal 

Chet France 

Environmental Defense Fund 
548 


35314.497

From: Charmley, William 

Sent: Monday, June 18,2018 12:51 PM 

To: Achanta, Chandana L. EOP/OMB <Chandana_ L. Achanta@omb.eop.gov>; 'Whiteman, Chad S. 

EOP/OMB' <Chad_ S Whiterl}_<'l_n_@_o_Illb.eop.gQ:,!>; Laity, Jim A. EOP/OMB 

<James A. Laity@omb.eop.gov> 

Cc: Burch, Julia <Burch.Julia@epa.gov>; Hengst, Benjamin <Hengst.Benjamin@epa.gov>; Simon, Karl 

(Simon.Karl@epa.gov) <Simon.Karl@epa.gov>; Bolon, Kevin <Bolon.Kevin@epa.gov>; Michael Olechiw 

(olechiw.michael@epa.gov) <olechiw.michael@epa.gov>; Robin Moran <Moran.Robin@epa.gov> 

Subject: Material for to day's light-duty GHG NPRM discussion. 

Dear Chad, Chandana, and JimAttached are materials for our conference call this afternoon. Most of this material you have seen 

previously, here is what we have sent for our discussion 

1) An EPA staff presentation dated today, which builds off of our April16, 2018 presentation to 

OIRA. This is what we would like to discuss with OIRA today. The file is 8 pages, and is named 

"1. EPA Staff Review of CAFE Mode I for OM B June 18, 2018.pdf' 

2) An EPA staff memo dated today, which includes the detailed assessment supporting the 

information in today's presentation 

3) EPA initial observations on the CAFE model from February 9, 2018 

4) EPA further observations on the CAFE model and inputs from February 28, 2018 

5) EPA Presentation to OMB from April16, 2018 

Thanks 

Bill 
549 


35314.498

Meeting with Office of Management and Budget/OIRA 

6/18/2018 
550 


35314.499

Size Due Issues with CAFE model implementation 

The new vehicle sales model produces small reductions in projected sales under the Augural standards, while the scrappage 

model projects an increase in fleet size that far outweighs the sales reductions (by a factor of 60:1.) The combined result is a 

fleet size that grows much more rapidly than AEO projections. 

EPA-Revised code issue resolution 

Specific the overall fleet growth as an input and scale the scrappage rate curves (maintain the new sales model as is) 

Year~overwyear change in new vehicle sales (top) and increase in 

used fleet size (bottom) (note the difference in ywaxis scale) 

Total Fleet size 
551 


35314.500

increase 

Issues with CAFE model implementation 

Per-vehicle VMT schedules are fixed, and not 

dependent on the scrappage model. As a 

result, total VMT can vary in an 

Change in VMT due Augural standards, with 0 percent 

rebound (relative to Proposed standards) 

unexpected/unintended ways (e.g., VMT ~ ~ 

changes with zero rebound, zero rebound ~ ~ 

growth more expensive new and used tn ~ 

vehicles.) e £ 

EPA-Revised code issue resolution ~ ~ Scale per-vehicle VMT schedules so that total~~ ts,ooo.ooo 

VMT is consistent with definition of rebound ';;:: ~ 

(i.e. Total VMT remains constant across ~ ~ 10,ooo,coo 

regulatory alternatives at 0 percent rebound.~ ~ 

c: ""' S,OO)J)OO 

H -S,CQO,OOO 

2@5 2040 2045 205Q 

Cal-endar Year 
552 


35314.501

reference in rebound calculations 

Issues with CAFE model implementation 

The CPM 'reference' in calculation of rebound VMT erroneously tracks FE values backward in time. (i.e. Analysis year MY2017 

uses a MY2015 FE reference; MY2018 uses a MY2014 FE reference; MY2019 uses a MY2013 FE reference, etc.) The fuel price in 

the CPM 'reference' remains fixed in CY2016, while fuel price projections in future analysis years generally increase. The 

combined effect produces an anomalous results with VMT reductions under the Proposed standards, despite increases ln FE. 

EPA~Revised code issue resolution 

CPM 'reference' is defined based on each vehicle's own MY2016 baseline FE, and the current analysis year fuel price. 

Chanee in VMT due to 20 oercent rebound. Proposed standards case (relative to 0 percent rebound) 

25,000,000 

§ 

;: ~0.000,000 

~ ~ 1SJ);)Q.J:00 

_g 

~ lO,OOO,OOO 

·~ 5,000,0(),1 

]_ 

-12,000,000 20 . 30 vehKleAfl~ 

As-Received code EPA-revised code 
553 


35314.502

Background of CAFE model logic 

Cost-minimizing 'Efficiency' metric is used to 

select packages. Based on tech cost, fuel 

savings to consumer (2.5 years), consumer 

welfare loss from electrified vehicles, and 

manufacturer valuation of compliance credits 

Cost and Effectiveness of MV2030 vehicles relative to a 'null' tech package 

$20,000 

! $18,000 

! $16,000 

-~ $14,000 Issues with CAFE model implementation &; 

In GHG mode, reducing C02 below a 'E -g $12,000 

vehicle's C02 target is erroneously given a ~ ~ 10,000 

manufacturer valuation of zero. J ~ 

Consumer welfare loss for electrified vehicles~ gJ $8.000 

is taken as the difference between ~ ]- ss,ooo 

technology cost and observed WTP for ~ £ electrification from transaction price } $4

·

000 

so net cost 

per gC02 credit is minimized, regardless of 

above or below vehicle target C02 value 

Results in significant reduction in tech costs, 

and more efficient utilization of available 

technology packages, including electrification 

sum 2 

~ $'0 

~ 0% 100% 
554 


35314.503

Issues with CAFE mode! implementation 

logic for manufacturer compliance status 

requires that both car and truck fleets 

have positive credits. As a result, withinyear transfer of credits between car and 

truck fleets is prevented. 

EPA-Revised code issue resolution 

Changed the manufacturer compliance 

status determination so that a positive 

sum of car and truck fleet credits will be 

appropriately considered as 'in 

compliance." The results show broad 

transfer of credits between car and truck 

fleets, as would be expected. 

status 

MY2030 Required and Achieved C02 levels for Each 

manufacturers regulatory car and truck fleets 
555 


35314.504

Table 3 Technology Costs, Fuel Savings, Payback 

Source EPA Revised Code 

Scenario 

MYs 

Annual Rate of Stringency Increase 

Total Tech Costs, S/'fftb, 

MY2030 relative to MY2016 packages 

~~;~~tai-T~h--C~s·t;-:·s7Y§h~-Mv203o 

Fuel Savings, $/y_tlt"' MY2030 

{3% discounting) * 

Payback based on Total Cost of Ownership 

20% Rebound (years, 3% discounting) 

Augural 

2017-2025 

No Action 

$2,044 

Baseline 

Baseline 

4.1 3.5 

*Negative fuel savings indicate an increase on consumer spending on fuel. 

Proposed 

2021-2026 

0%/yr PC 

0%/ rtT 

$474 

-$1,570 

-$1,734 

1.0 
556 


35314.505

Table 4 Change.s in Fatalit)-'1..-ietrics and Nef Social Benf!fits 

Source 

Scenario 

Annual Rate of Stringency Increase 

C11.angemAverageAnm.Ja1f.atalittes, 

CalendarYeilf'i 1036-2045,, 

As Received EPA Revised -code 

A Hil Pro sed A ural Pro osed 

2:017-2:025 2021-.2026 2017-l-Q25 1021-.2026 

No Action (}%/yr PC No Act:ion 6%/yr PC 

O%{yrlT 

Baseline -150 B.aseUne +17 

ReYised cede. Social benefiU sum Tecbuology.1-iainte:n:mce.1Repalr, Val.U£: Loss, Pretu Fuel, Drive and Refuel Value, 

Fatality, Crnhe:~/Congelltiilll·Noue and all Em.t:oslon Damage CO;';t1i chang~ for the lifetune:J of1IT2016 through 2032 

wlude11; a negatin~ Net Social Benefit represent$ a rn::t ~OClill cost 
557 


35314.506

EPA Further Review of CAFE Model & Inputs, June 18, 2018 

Since first receiving a copy of the CAFE model executable from NHTSA in January, EPA technical 

staff have been attempting to answer the question of whether or not the model and its inputs are suitable 

for use in representing the EPA GHG program for the upcoming NPRM. We have adopted a number of 

approaches, including in-depth analysis of the input and output files, running the executable model with 

alternate settings which more closely represent the GHG program, and using input files that reflect 

EPA's technical assessments. Our initial findings stemming from this work were summarized in the 

briefing we gave to OIRA career staff on April 16'", with additional detail in our March 1 ''materials. 1 

Among these findings were several issues related to the intemallogic and calculations within the CAFE 

model. First, the scrappage model produces vastly unrealistic growth in the overall t1eet size, which in 

turn causes an unrealistic over-inflation of the fatalities estimated for the Augural standards. 2 Second, 

the technology packages applied by the model tend to be much more costly than necessary for any 

specified set of inputs and application constraints. Finally, the model tends to produce fleets that overcomply and make sub-optimal use of available credits, resulting in an unrealistic over-estimation of 

costs. 

In this memo, we document our investigation of the underlying computer code for the version of the 

CAFE Model as received from NHTSA on April 13,2018. We also document a small number of 

modifications to the CAFE Model code. The combined effects of our revisions are presented in tables 

and figures at the end of this memo. 

Altogether, the effects of our code revisions on the CAFE model outputs are substantial, and resolve 

several of the most indefensible aspects of the CAFE model's representation of the GHG program. 

Compared to the results from the As-Received version, our EPA-Revised version provides technology 

costs that are nearly $500 lower3 and safety outcomes that show the Proposed standards are detrimental 

to safety, rather than beneficial as suggested by the As-Received version. In other words, results with 

our code revisions indicate that the Proposed standards would result in an increase in the fatality rate of 

7 deaths per trillion miles driven, and an average increase of 17 fatalities per year in CYs2036-2045 

relative to the Augural standards 4 Additionally, the EPA-Revised version shows that the Augural 

standards have a consumer payback period of3.5 years, instead of the 11.6 year payback period in the 

As-Received model. Additionally, both As-Received and EPA-Revised code suggest job losses under 

1 Document titled 'EPA Feb 28, 2018 findings on rcvicvv ofNHTSA Jan~22. 2018 CAFE model runs' 

:: In this memo. \:reuse the term·' Auguml standards'' for case of discussion since that tcnn is used throughout the AsReceived input files provided by NHTSANolpe to reference the standards that \:vould align with EPA's existing MY 2022 

to 2025 standards. 3 For the Augural standards, the MY2030 technology cost increase from the baseline vehicle fleet is estimated to be $2,0-1-4 

per vehicle (EPA-Revised version), compared to $2,518 per vehicle (As-Received version.) The incremental technology 

cost for the Augural standards relative to the Proposed standards in MY2030 is estimated to be $l,:i70 (EPA-Revised 

version), compared to $1.879 (As-Received version.) 1 The safety outcomes from our EPA-Revised CAFE model version show 17 additional fatalities per year attributable to the 

Proposed standards, excluding any fatalities that occur from voluntary changes in VMT due to the rebound effect. 

EPA June 18, 2018 further revie\v ofNHTSA April 13, 2018 version of lhe CAFE Model 
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the Proposed standards, with 35,000 and 27,000 jobs lost per year, respectively. Finally, the EPArevised version shows that the Proposed standards would reduce Net Social Benefits by $83B, in stark 

contrast with the increase of $49B indicated by the As-Received version. 5 

In summary, with the EPA-Revised version of the CAFE model; 

Proposed standards increase fatalities by 17 fatalities per year in CY s 2036-2045 

Proposed standards increase fatality rate by 7 deaths per trillion miles driven in CY s 2036-2045 

Proposed standards result in 35,000 jobs lost per year 

Proposed standards reduce Net Social Benefits by $83B 

Augural standards have a consumer payback period of3.5 years 

The significant changes in outcomes with our EPA-Revised version for the CAFE model were 

achieved solely by correcting some erroneous and otherwise problematic elements of the model's logic 

and algorithms. We did not make any modifications to the input files, or to the particular elements of the 

CAFE model that constrain technology applications based on platfonn sharing and redesign cycle 

considerations. While the results of the EPA-Revised version of the CAFE model are now directionally 

closer to our previous work where we used our own tools and models for the 2012 FRM, 2016 DTAR, 

and 2016 Proposed Determination, we are not endorsing the use of our modified version of the CAFE 

model for use in policy setting for the GHG program, in part because of the range of issues we have 

previously identified with the modeling inputs and assumptions-such as unduly high battery costs, 

production-ready but unconsidered and/or overly constrained technologies and technology application 

processes, etc.-that are outside of the scope of this memo and are not addressed by the EPA-revised 

version of the CAFE model. 

Note that we did not attempt to evaluate the suitability of the As-Received version for policy usc in 

the CAFE program. While some of the issues that we identify here are unique to the GHG program (e.g. 

accounting for the compliance value of COz credits), other elements are common to both the GHG 

program and the CAFE program (e.g. the implementation of the rebound effect calculations, and logic 

and decision mles for comparing and selecting cost-efficient technology packages.) Given the 

opportunity, we would therefore recommend that NHTSA consider these issues further before using the 

As-Received version of the model for setting policy for the CAFE program. 

Table 1 CAFE model changes itcmi..-.ed by NHTSA in the draft NPRM text- Scope of this EPA reYiew 

NHTSA·identified changes since 2012 FRM 

Expansion of model inputs, procedures, and outputs to accommodate technologies not included in prior 

analyses 

Updated approach to estimating the combined effect of fuel-saving technologies using large scale 

simulation modeling 

Modules that dynamically estimate new vehicle sales and existing vehicle scrappage in response to 

changes to new vehicle prices that result from manufacturers' compliance actions 

Within scope 

of this memo? 

·,·· ······ ._.... \ '"":•'\'". 

5 These net social benefit values exclude the additional fatality tmd non-fatal crush costs from voluntarilv-drivcn miles 

associated with rebound, and the 'value loss· that NHTSA ·adds on top of the tech costs for electrified vehicles. 

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A safety module that estimates the changes in light-duty traffic fatalities resulting from changes to 

vehicle exposure, vehicle retirement rates, and reductions in vehicle mass to improve fuel economy 

Disaggregation of each manufacturer's fleet into separate "domestic" passenger car and "import" 

passenger car fleets to better represent the statutory requirements of the CAFE program 

Changes to the algorithm used to apply technologies, enabling more explicit accounting of shared vehicle 

components (engines, transmissions, platforms) and "inheritance" of major technology within or across 

powertralns and/or platforms over time 

An industry labor quantity module which estimates net changes in the amount of U.S. automobile labor 

for dealerships, Tier 1 and 2 supplier companies, and original equipment manufacturers (OEMs) 

Cost estimation of batteries for electrification technologies incorporates more direct and internally 

consistent use of Argonne National Laboratory's BatPAC (battery) model for HEVs, PHEVs and BEVs 

Expanded accounting for CAFE credits carried over from years prior to those included in the analysis 

(a.k.a. "banked" credits} and application to future CAFE deficits, 

The ability to represent a manufacturer's preference for fine payment (rather than achieving ful! 

compliance exclusively through fuel economy improvements) on a year-by~year basis, 

*Also discussed in the 'Unresolved Issues' section of this memo. 

Table 2 CAFE model reYisions specific to GHG program- Scope of this EPA reYie,,· 

NHTSA~identified changes since 2012 FRM 

Calculation of vehicle models' C02 emission rates before and after application of C02-reducing 

technologies 

Calculation of manufacturers' fleet average C02 emission rates under attribute-based C02 standards 

Accounting for adjustments to average C02 emission rates reflecting reduction of air conditioner 

refrigerant leakage 

Accounting for the treatment of alternative fuel vehicles for C02 compliance 

Accounting for production "multipliers" for compressed natural gas (CNG) vehicles, plug-in hybrid 

electric vehicles, (PHEVs), battery electric vehicles (BEVs), and fuel eel! vehicles (FCVs) 

Accounting for transfer of C02 credits between regulated fleets 

Accounting for carried-forward (aka "banked") C02 credits, including credits from model years earlier 

than modeled explicitly 

EPA June IS. 20l8 furthcrreYicw ofNHTSA Aprill3. 20l8vcrsionofthe CAFE Model 

Within scope 

of this memo? 

See 'ssee s'3 is th'S memo 
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Background on the CAFE model approach for developing a Oeet of new and used vehicles in each 

calendar year 

The As-Received version of the CAFE model contains two elements added since the 2012 FRM 

which are intended to dynamically estimate new vehicle sales and existing vehicle scrappage in response 

to the various regulatory alternatives under consideration. The first element is a Dynamic Fleet Share 

model (DFS), which estimates new vehicle sales and car/truck split as a function of vehicle price (as 

determined by the average MY2016 vehicle price plus the average additional technology costs to future 

standards in a given year) and the macroeconomic variables of GOP and a consumer confidence index. 6 

The second element is a scrappage model which estimates the quantity of used vehicles remaining in 

each calendar year by vehicle type and age. The Volpe-developed scrappage rate equation was 

estimated by a regression of historical new vehicle prices, and average fuel costs per mile for the car, 

van/SUV, and pickup vehicle types. 7 As shown in Figure 1, the total fleet in each calendar year is the 

combination of the outputs from these two fleet models: a fleet of new vehicles sold in that year, and a 

fleet of used vehicles of various ages remaining in the fleet that have not been scrapped. 

~-------------------~ I 

Figure 1 As-ReceiYed CAFE model generation of total neet of registered Yehicles by in each calendar year 

Directionally, the incorporation of new vehicle price as an independent variable tends to drive the 

individual outputs of sales and scrappage models in offsetting ways; higher vehicle prices result in lower 

new vehicle sales and additional retention of existing vehicles, while lower vehicle prices result in 

greater new vehicles sales and increased scrappage of existing vehicles. However, these models operate 

completely independently, and there is no mechanism within the CAFE model to reconcile the combined 

effects of the sales and scrappage models in order to produce a realistic total fleet of registered vehicles. 

Identification of the problem with the overall fleet size in the CAFE model 

The effect of the disconnect between the new sales and scrappage models in the As-Received version 

is illustrated in Figure 2. Both the new sales fleet (i.e. vehicles of age 0) and the used fleet (i.e. vehicles 

of age greater than 0) generally increase year-over-year in the Augural and Proposed cases. For the used 

fleet, this is an expected trend since new vehicle prices and GOP increase for both the Augural and 

~>In other words. the DFS is a consumer choice model. 

The scr.:~ppagc model represents an added layer of consumer choice modeling in that it attempts to predict 'vhcthcr 

consumers will purchase new or retain used vehicles and the types of vehicles consumers \Vill continue to drive versus 

shed in favor of a new purchase. As with the dynamic fleet shmc model. \Ve do not believe that such a model should be 

integrated into the primary analysis and should instead be presented as a sensitivity, if at alL 

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Proposed cases, resulting in the model's prediction of delayed scrappage. The new vehicle sales model 

has increasing sales for all but a few years, indicating that the positive effects of GDP growth generally 

outweigh the negative effect of increased vehicle prices. 

While directionally those trends are logical, the difference in the magnitude of impact the Augur a! 

standards have on the new sales and scrappage models is difficult to justify. The As-Received model 

estimates that the Augural standards will reduce the year-over-year annual increase sales of new vehicles 

by approximately 8,000 vehicles on average between CY2021 and CY2032. However, during the same 

period, the As-Received model estimates that the used fleet will grow by an average of 512,000 vehicles 

per year, far exceeding the decrease in new vehicle sales. It's hard to imagine any real-world scenario 

under which over 60 additional used vehicles are retained for each new vehicle that the sales model 

predicts will be unsold as a result of the higher new vehicle prices. 

5,.000,00) 

30.1.000 

3.0CO,OOO 

100,000 

1,0flt1,000 

/015 2020 ?030 ?0;35 2040 2045 

Calendar Year 

Figure 2 Year-o''Cl"-~'ear increase in new vehicle sales (left) and increase in used fleet size (tight) using As-Received 

CAFE model (note the difference in y-axis scale) 

Figure 3 shows the combined effect of the new vehicle sales model and the scrappage model in the 

As-Received version of the CAFE model. A change in the overall fleet size due to the Augural standards 

might not in and of itself be problematic, as long as the VMT schedules are adjusted to account for 

overall travel activity that is distributed over a larger number of vehicles. However, the As-Received 

version of the model does not adjust VMT schedules, with the result that the additional unscrapped 

vehicles inflate total VMT proportionately. During the period over which the summary statistics for 

fatalities are reported in the draft NPRM (CYs 2036-2045), the difference in the estimated fleet sizes 

between the Augural and Proposed standards is approximately 7 million vehicles, or over 2% of the 

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roughly 300 million vehicles in the fleet The effect of this error is to erroneously inflate the total VMT, 

and thus increase the estimated fatalities due to the Augural standards by many hundreds of lives. 8 

210,000,000 

2015 1020 2025 2030 2035 2040 2045 2050 

C:::1lendar Year 

Figure3 Total fleet size in As-Received CAFE model (AEO 2018 0.5% growth rate shown for reference) 

Description of EPA Revision to resolve unrealistic growth in overall fleet size 

NHTSA's written description in the draft NPRM indicates that the intent of the As-Received 

scrappage model was to capture the effect of changes in new vehicle prices and fleet fuel economy on 

the composition of total fleet (i.e., the balance between new and old vehicles and proportion of the 

various vehicle types), rather than the effect on the total fleet size. The emphasis on fleet composition is 

re-iterated in one ofNHTSA's conclusions in the scrappage model section of the draft NPRM, that 

'differences in the composition c<fthe baseline fleet and thejleetunder each alternative are the source()( 

many ()(the proposed action's henejits and costs.' 

EPA modified the CAFE model to align with the NHTSA's stated intent, so that the scrappage model 

predicts fleet composition, but does not dictate total fleet size. Our modified code allows the user to 

select a fleet growth rate (we have used the AEO value ofO.S% growth per year by default, but other 

rates could be used.) Our code then allows the model to run as usual to determine new vehicle sales and 

the composition of the used vehicle fleet These values are then used to scale the size of the used vehicle 

fleet (maintaining the predicted composition) to achieve the user-provided growth in fleet size. This way 

the new vehicle sales are identical to the As-Received values, the used vehicle fleet has the identical 

composition as the As-Received values, but the fleet size grows at much more reasonable rates. 

8 The As-Received CAFE model and inputs apply a fixed safety effect of about 10 fat::~Jitics per billion miles in CY2030. 

Assuming an aycragc vehicle dtivcs 10,000 miles per year_ an overestimation of fleet size by 7 million vehicles would 

result in the model's overestimation of fatalities by approximately 700 liYcs. 

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Finally, because the real-world consequence of substituting older vehicles for newer vehicles would 

cause a departure from the empirically-derived mileage accumulation schedules (which define annual 

mileage by vehicle age), we developed mileage accumulation scaling factors in a similar manner to the 

fleet size scaling factors described above to maintain total fleet VMT under a 0 rebound case. Then in a 

second pass of the effects model, we apply the scaling factors to produce a realistic total VMT in the 20 

percent rebound case. 

See Appendix B for the details of the code revisions. 

Isl!lle .~z.: ~Jlcullsisten~y J)~tw¢e~ tqtal.·VM'J' es'tlril~~s an~ sp~it'ielt vaiJie o.tthe ... • · 'Q.ebuund E.ffett · · · · · · · · · 

Background on the CAFE model approach for accounting for the rebound effect when estimating 

VMT 

The Proposed standards would produce higher fuel costs per mile than the Augural standards. This 

higher cost may result in a reduction in miles driven- what NHTSA refers to in the draft NPRM text as 

a 'reverse rebound etTect.' The principle is the same as the rebound effect we normally associate with 

improvements in fuel economy, but in the opposite direction. The As-Received CAFE model assumes 

that the magnitude of the effect is the same (20 percent), irrespective of whether cost per mile increases 

and VMT decreases, or cost per mile decreases and VMT increases. In the CAFE model code, the 

rebound value is used to estimate the fractional change in VMT (CPMrate) that results from a change in 

the cost per mile relative to a reference cost per mile according to: 

(Equation I) 

CPMrate = (CPMnew I CPMref- 1.0) • rebound Effect; where rebound Effect is equal to -0.2 

The fractional change in VMT (CPMrate) is then applied to the mileage accumulation values from 

the 'parameters' input file which specify the annual miles (MILESPERYEAR) based on the age of the 

vehicle. Separate mileage accumulation curves are defined for Car, Van/SUV, and Pickup vehicle styles. 

The total VMT for a vehicle of a given age, i, is defined according to the following equation: 

(Equation 2) 

VMT(,ge~iJ = FLEET(,ge~i) * MILESPERYEAR(,ge~i,,.hid"tyleJ * (1.0 + CPMrate); where FLEET is the 

number of vehicles remaining at that age as determined by the scrappage model 

Identification of the problem with VMT estimation and the application of the rebound effect in the 

CAFE model 

One of the problems with the implementation of the rebound calculations in the code of the AsReceived model is illustrated in Figure 4 for the Proposed standards. In this case, the inclusion of 20 

percent rebound causes a reduction in VMT in future calendar years, despite the fact the Proposed 

standards produce a fleet with higher fuel economy and lower cost per mile than the baseline (MY2016) 

fleet. This result is clearly inappropriate, since by definition the rebound effect should result in more 

miles driven as cost per mile decreases. 

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2,000,00) 

" 0 0 c 0 ~ 

~ 30 40 50 ..8 X 

1! ~ -2,000,000 CalemJar Year 

* -" 

;::; ·g -------2016 

s §~ -4,000,000 ····-··- 2036 ~ 

~ 

~ ..8 -------2045 ,._ ~ -6,000,000 ::E * > 0 

~ s -8,000,00) 0 ~ 

~ ·~ 

<! ~ -10,000,000 

·12,000,000 

Figure 4 Change in VMT due to 20 percent rebound with As-RC€.'ciYed model, ProJlOsed standards case (change 

shown is rclath·e to 0 Jlercent rebound) 

Figure 5 gives a closer view of the CPMrates determined from Equation 1 for three example vehicles, 

with MY2016 versions which maintain a constant fuel economy at levels equal to, 25 percent above, and 

25 percent below an average MY20 16 car. 9 These values are maintained until a MY2025 redesign, when 

the fuel economy is improved by either l 0 percent (left panel) or 50 percent (right panel) compared to 

the MY20l6 versions. 

One notable observation is how the CPMrates vary by calendar year as the individual vehicles age. 

This is unexpected, since the CPMrate is applied to the annual mileage values that already account for 

the progressive decline in the miles driven each year as vehicles age. What the age- or year-related 

phenomenon this variation in CPMrate would be intended to represent is not clear. Another notable 

observation is the inconsistency in the direction of change in CPMrate of the new MY2025 vehicle, 

relative to the 8-year old MY2016 vehicle in CY2024. When the MY2025 vehicle is 50 percent more 

fuel efficient than MY20l6 (right panel of Figure 5), the CPMrate shifts upward, resulting in higher 

VMT for the vehicle with greater fuel economy as would be expected. However, when the MY2025 

vehicle is only 10 percent more fuel efficient than MY20 16 (left panel of Figure 5), the CPMrate shifts 

downward. This tendency to produce VMT reductions for newer vehicles with moderate levels of fuel 

economy improvement is consistent with the inappropriate VMT results shown in Figure 4 above, 

indicating that this issue is caused by the calculation ofCPMrate within the CAFE model. 

9 The average car fleet fuel economy· is 36.9 mpg for a :NfY2016 car, as defined in the CAFE model's 'parameters' input file. 

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MY2025with MY2025with 

0.12 

-0.12 

Vehicle 

"",'' (ageD+ I 

Figure 5 CPMrate yariation by vehicle age and fuel cronomy imJlrovcmcnts during redesign of 10 l>crccnt (left Jlancl) 

and 50 JlCrccnt (right panel) 

In addition to the problems described above with the As-Received model's implementation of the 

rebound effect, an additional inconsistency between VMT estimates generated by the model and the 

specified rebound value became evident when we looked at the VMT results for alternatives with 

different stringencies, holding rebound at 0 percent 10 With no rebound, we would not expect to see any 

change in total VMT, since by definition rebound is measured as the change in VMT for a given change 

in fuel cost per mile. However, even with 0 percent rebound, the As-Received model does produce total 

VMT values that are influenced by stringency leveL See Figure 6, below. We believe that this zerorebound VMT growth is an artifact ofthe disconnect between the sales model, scrappage model and 

mileage accumulation schedules described with Issue# I. And while this problem is not directly related 

to the model's calculation of the rebound effect, it points to the importance of carefully considering how 

the various elements are integrated when making changes or additions to a modeL 

l() We cn1luatcd a range of rebound values as part of our QAQC process and to inYcstit,ratc the sensitivity of the model to 

changes in the rebound effect Note that we are not suggesting here that a n1lue ofO is the most appropriate assumption for 

the rebound effect. 

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30,000,000 

~ 

~ 0 25,000,000 

--g8 

..... 

~ ~ 20,000,000 

~E 

~ .g 15,000,000 

s] 

"' u 

""0 ""' :£! 10,000,000 

~~ > 0 

.s; 

QJ .2: 

m~ 

~~ 

Calendar Year 

Figm·e 6 Change in VMT due Augural standards, \Yith 0 percent rebound (relatin to Proposed standards) 

In total, the As-Received model I) inappropriately incorporates a vehicle age-related effect due to 

rebound, 2) exhibits directionally incorrect VMT changes in response to fuel economy improvements, 

and 3) produces a VMT response to changes in stringency even when the rebound value is set to 0. We 

conclude that the model's implementation of the rebound effect is inappropriate, and that the model code 

produces VMT values that are inconsistent with the 20 percent rebound value that is specified in the 

input tiles. As with the problems described for the Scrappage Model in Issue# l, resolving the problems 

with the CAFE model's implementation of the rebound effect is critically important. An inappropriate 

accounting ofthe rebound effect will produce unreliable VMT estimates, which in turn will produce 

unreliable estimates of net fuel savings, emissions costs, fatalities, etc., making it impossible to 

accurately evaluate and compare the various policy alternatives. 

Description of EPA Revision to resolve rebound effect implementation errors and total VMT 

estimation 

After reviewing the CAFE model code, we have determined that the directionally incorrect reduction 

in total fleet VMT with 20 percent rebound shown in Figure 4 and Figure 5 above is due to the 

combined effect of two problematic assumptions used for calculating the reference cost per mile 

(CPMref) in Equation I. The first assumption is the use of a constant CY2016 fuel price to calculate 

CPMref, even as CPMnew is calculated using the future year's fuel price. The consequence of using two 

fuel prices that diverge further with each year (due to future projected increases in fuel prices) is that 

VMT calculated from Equation 2 becomes lower over time, independent of any changes in fuel 

economy. Such a result is unjustified since it ignores the economic and income l,>rowth that is projected 

to occur concurrently with fuel price increases. 

The second problematic assumption is the selection of fuel economy values used to determine the 

reference cost per mile. When determining the reference cost per mile, the As-Received code uses a fleet 

average MPG value that tracks backward in time. In other words, a MY20 16 vehicle in CY2019 (i.e., 

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age=J where CY2016 would be age=O) would not use a baseline MPG value for a MY2016 vehicle, but 

would instead use aMPG value for a MY2013 vehicle (i.e., age=-3). 

A hypothetical example will help to illustrate the impm1ance of making appropriate assumptions 

when selecting CPMref. Building off the example in Figure 5 with MY2025 improvements to an average 

MY2016 car with fuel economy of36.9mpg, Figure 7 shows how the CPMrate (and therefore the VMT) 

can change dramatically based on assumptions for CPMref. The inappropriate referencing of 

progressively older fleet average fuel economy values (red and gray curves), causes the CPMrate to be 

higher than when constant MY2016 reference fuel economy values are used (black and green curves.) 

The inappropriate referencing of CY20 16 fuel prices (red and black curves) causes the CPMrate to be 

lower than when the current CY fuel prices are used (gray and green curves.) While these two 

problematic assumptions for CPMref tend to work in opposite directions, the general tendency of the AsReceived model to produce a negative CPMrate in the example in Figure 7, despite the improvement in 

fuel economy, seems to indicate the assumption of maintaining CY2016 fuel prices is dominant. 

~0.14 

MY2016 Vehicle 

(ageO+) 

MY2025 Vehicle (age 0+) 

Figure 7 Effect of CPMref assumptions on CPMrate with 20 percent rebound (hypothetical exam11le shown for 

MY2025 ·vehicle with 10 percent fuel economy impronment from MY2016 vehicle) 

We believe that the most defensible implementation of the rebound effect is one that maintains the 

same CPMrate over every calendar year in the course of a vehicle lifespan. ln the example shown by the 

green line in Figure 7, the CPMrate for the MY2025 vehicle then becomes simply a function of the ratio 

of the reference fuel economy to the new fuel economy and the 20 percent rebound effect value, or [(I I 

1.1 -1)* (-0.2) J = 0.0182. To achieve this, we revised the CAFE model code so that: 

1) CPMref is calculated using the fuel prices in current calendar year rather than the fixed CY2016 

fuel price, and 

2) CPMref is calculated using the MY20 16 baseline fuel economy of the specific vehicle, rather than 

a fleet average fuel economy of progressively older MY vehicles. 

Please see Appendix B for the details of the code revisions. 

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Background on the CAFE model selection of technology packages and ranking decisions 

The selection of technology packages by the CAFE model is based on an 'efficiency' measure, which 

in simple tenns prioritizes decisions where the value of C02 credits (to the manufacturer) most exceeds 

the net cost of the technology package. 11 When comparing two packages, given the availability 

constraints for redesign years, platform sharing, etc., the model will select the one "1th the most 

negative efficiency calculated as: 

(Equation 3) 

efficiency= (netpackagecost • DeltaC02CreditValue) / totaiAffectedSales; 

where netpackagecost =tech Cost+ consumer_valueloss - 2.5years_Fue1Savings; and 

DeltaC02CreditValue is an assumed monetary value of the difference in compliance credits 

between the two packages considered. 

Identification of the problem with technology package ranking and application in the CAFE 

model 

Figure 8 shows the total technology cost and effectiveness for all technology packages applied by the 

As-Received CAFE model to the MY2030 fleet, relative to a 'null' package with only basic 

technologies. 12 While we would not expect manufacturers to consistently apply technology packages 

that lie exactly on the cost-efficient 'frontier', the frequency with which the As-Received CAFE model 

applies packages that are several thousand dollars more expensive than other available packages is 

striking. 

11 The As-Received CAFE model \Yill only consider tcclmology packages \Yhcrc the value of CO:: credits to the manufacturer 

exceeds the net package cost. ignoring the potential for any cross-subsidization tvithin a manufacturer's vehicle lineup. 

This net cost could be thought of as the mnount a manufacturer \YOuld need to adjust the vehicle price. higher or lmvcr, in 

order to offset any changes in consumers' wiJling11css to pay for the \·chicle due to the added technologies. The model 

assumes that consumers will be willing to pay for 2.5 y·cars or fuel savings. and that consumers face a loss in value for 

c1cctrificd vehicles beh.vccn approx. $1.300 (for strong hybrids) and $16,000 (for BEYs.) 12 I.e. a 5-speed transmission port rucl injected naturally aspirated engine. no improvements in tires, aerodynamics, or mass 

reduction. 

EPA June 18, 2018 further review ofNHTSA Apri113. 2018 version of the CAFE Model 12 
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i 10,000 

$9,000 

- $8,000 

6'i 

~" $7,000 ~ 0 0 c 

U-f] 

OJ w 

""" $6,000 

"'0 

""'~ 

<UN 

u w ~5,000 c... ru~ 

.<:::~ u~ $4,000 OJ w r-J $3,000 

m $2,000 

B 

~ $1,000 

]'_ $0 

•Individual vehicles 

o Fleet Average 

0% 10"!0 20% 30% 40% 50% 60% 

Effectiveness 

(reduction in C02, relative to a hypothetical, zero-technology 'nuW package) 

Figure 8 Cost and Effectiveness of MY2030 vehicles relative to a 'nuJJ' tech Jlackage (PEV's arc off chart area, but 

inciULied in fleet average) 

Based on our review of the CAFE model code, we have identified several factors that contribute to 

the model's widespread application of cost-inefticient packages. The tirst factor is the problematic 

approach used by the model for estimating the DeltaC02CreditValue variable in Equation 3 above. In 

reality, the value of a C02 compliance credit to any manufacturer is a function of complex and interrelated factors, making it difticult to incorporate a realistic estimate into any model. The dollar value of 

a credit for a particular manufacturer would depend on their compliance status, their fleet composition 

and applied technologies, the cost of the available technologies for further reducing C02 emissions, the 

availability of banked credits, the level of future stringency increases, and many other factors. 

Figure 9 shows the C02 Credit Values by Model Year, which are defined in CAFE model input tiles 

using a simple scaling of the CAFE tine rates by a constant factor of6.53. While the application of a 

uniform credit value is problematic given all the potential variations among manufacturers, it is probably 

even more problematic that the COz value is assumed to be decreasing over time. Given that the GHG 

program does not allow manufacturers to pay tines as a compliance strategy, we assume that NHTSA's 

intent was for the COz credit value to represent a market value for trading credits between 

manufacturers. Regardless of the intent, as the adoption of the lower-cost technologies leaves only the 

more expensive alternatives available to meet future year stringency increases, it is implausible that the 

value ofCOz credits to a manufacturer will decrease in this way over time. 

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$40.00 

$35.00 

<ll-

:J N 

-0 $30.00 rnu 

>"" i;:2 $25.00 

"' Q; u a. $20.00 oN-VJ 

u~ $15.00 

$10.00 

$5.00 

$0.00 

2005 

$40.00 

$35.00 

$30.00 ~ 

"' E $25.00 ~ ~ 

$20.00~ "' ~ 

w " $15.00 ~ ~ 

u ~ 

$10.00 ; 

$5.00 

$0.00 

2010 2015 2020 2025 2030 2035 

Model Year 

Figure 9 C02 Credit Value, bJ Model Year, as defined in As-Rccch·cd CAFE model inputs 

The second factor that contributes to the CAFE model's application of cost-inefficient packages is in 

the calculation of the difference in C02 credit values between the two packages being considered in 

Equation 3 above. The newC02CreditValue and curC02CreditValue variables in Equation 4 below 

represent a dollar value of the C02 credits or deficits, based on the value of a single credit from Figure 9, 

and the gap between the given package CO, and the CO, target for that vehicle. Negative values result 

from packages above the target (C02 deficit), and positive values result from packages below the target 

(C02 credit). 

The problem is that in truncating credit values at zero as shown in Equation 4, the CAFE model gives 

less consideration to technologies that reduce a vehicle's C02 below its target, regardless of how costeffective that technology might be. For example, Package A might reduce C02 to well-below the target 

and be cost-effective in tenns of dollars per gram co, reduced, but the CAFE model would give 

preference to any Package B that meets or exceeds the target by a lesser amount with lower net costs, 

even if the dollars per gram C02 reduced were much higher for Package B than Package A. 

(Equation./) 

DeltaC02CreditValue = Min(O.O, newC02CreditValue))- Min(O.O, curC02CreditValue)); 

The consequence of truncating CO, credit values at zero in the efficiency calculation may be difficult 

to understand in the abstract, so to illustrate the concept, we're providing an example here of two 

vehicles from the same manufacturer which have the same starting C02 and sales volume, but different 

technology pathways and CO, targets. Absent other considerations, a manufacturer would choose the 

most cost-effective packages which, in total, would achieve compliance for the manufacturer's entire 

fleet, whether those packages were applied to Vehicle A, Vehicle B, or both. 

However, because Vehicle A starts out further from its co, target than Vehicle B, the CAFE model 

will generate efficiency values for Vehicle A that are more negative (and thus preferable) than Vehicle B 

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as shown in Fi~o,>ure 10, since the credit value for reducing Vehicle B below its 280 g/mi target is 

truncated and not included in the efficiency calculation. The CAFE model will choose to apply 

technology to Vehicle A to reduce C02 to 200 g/mi, even though that technology pathway is less cost 

effective than one where technology is applied to Vehicle B (point B' in Figure 10) with a technology 

cost of$1,417 for Vehicle A compared to $1,246 for Vehicle B for the same C02 reduction. 

CO, rating {g/mi, for compliance} 

Figure 10 Effect of truncating C02 credit Yalue in CAFE model's "efficicnq'~ calculation for tech package selection 

Assuming $3/gal fuel price. $35/MgC02 credit value. and 30k miles driving in first 2.5 years (H)rconsumcr payback) 

The third factor that cont1ibutes to the CAFE model's application of cost-inefficient packages is the 

separate treatment of regulatory classes when determining compliance status. Figure ll below shows 

that with only one exception, 11 the achieved C02 levels for the regulatory car and truck fleets for all 

manufacturers in MY2030 is below the required CO, level. This result is striking, not only in the 

consistency of overcompliance, but also in the apparent lack of balancing within a manufacturer 

between car and truck regulatory fleets. A more realistic modelling representation would tend to show 

some overcompliance in one regulatory fleet, offset by undercompliance in the other fleet as the 

manufacturer seeks to reduce compliance costs by applying technology to reduce emissions where it is 

most cost-effective. 

13 JLR 'scar fleet is the only regulatory fleet for which the achic\'ed CO~ value is abo\'e the target CO~ ·value in MY2030. 

EPA June 18, 2018 further revie\v ofNl-ITSA Aptil lJ. 2018 version of the CAFE Model 15 
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0 Required~Car 

112 Achieved- Car No 

Figure 11 MY2030 Required and Achieved C02 le"els for Each manufacturers regulatory car and truck neets in AsReceived CAFE model output 

After our review of the CAFE model code, we have identified an issue that contributes to this lack of 

within-manufacturer fleet averaging. As shown in Equation 5, the CAFE model does not flag a 

manufacturer as 'in compliance' unless both the car and the truck fleets have positive credits. While this 

model requirement may produce the intended results for modeling of the CAFE program, it is not 

appropriate for representing the GHG program, which has the provision of unlimited transfer of credits 

between car and truck fleets. 

(EquationS) 

mfrlnCompliance = (GetNetC02Creditsce~ >= 0) AND (GetNetC02CreditStruck> >= 0) 

Description of EPA Revision to resolve cost-ineffective technology ranking and application 

decisions 

To resolve the issue of the cost-ineffective technology application decisions, EPA revised two 

elements of the CAFE model code. First, we revised "efficiency" calculation used for package ranking. 

Because we don't believe that the value of a C02 credit to any manufacturer can be reasonably 

determined in advance 14, we have removed the monetary valuation of C02 credits from the numerator of 

Equation 3, and instead include the change in quantity of compliance credits (in grams COz) as a 

nom1alizing factor in the denominator of the efficiency calculation. The modified calculation, shown as 

Equation 6, can be interpreted as the cost-efficiency of a technology application in terms of the net cost 

per gram C02 credits earned. We think that this decision rule would reasonably represent a manufacturer 

that is applying technologies in a cost-minimizing manner, subject to all the original constraints on 

technology availability and redesign cycles specified in the As-Received CAFE model input files. As 

with the As-Received CAFE model logic, our revised code prioritizes technology packages with more 

negative efficiency values. 

(Fquation 6) 

efficiency= (TechCost- FueiSavings) I ( newC02Credit,,,,- curC02Credit,,,,,) 

The second change in the EPA-Revised code involves the lack of credit transfers between regulatory 

classes. As shown in Equation 7, we now set each manufacturer's 'in compliance' flag based on the 

14 For the reasons described earlier, the value of a C02 credit to any given nmnufacture ·will be dependent on their current 

compliance status, stringency of the standards. 3\'ailable technology and cost etc. 

EPA June 18, 2018 further review ofNHTSA April13. 2018 version of the CAFE Model 16 
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sum of the credits for car and tmck regulatory classes, instead of required positive credits for both 

classes individually, as in Equation 5. 

(!equation 7) 

mfrlnCompliance = curC02Creditto~ol >= 0; 

Effect of EPA-Revisions on Issue #l (Unrealistic growth in overall fleet size) 

400,000 

200,000 

/OLS5.000.000 

:3,.000.000 

2.0o-..1,(J()O 

1,000,000 

2025 

Increase in Used Fleet 

from previous year 

Figure 12 EPA ReYised Code Effects, Compare to As~RcceiYed CAFE model results in Figure 2: 

"'Year-oYer-~·ear increase in new vehicle sales (left) and increase in used fleet size (right) using As-Rl-'CCived CAFE 

model (note the difference in y-axis scale)" 

EPA June 18. 2018 further review ofNHTSA April lJ, 2018 version of the CAFE Model 17 
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~ 

~ 

330,000,000 

310,000,000 

u 290,000,000 :2 

;:: 

0 270,000,000 

ID 

~ 250,000,000 z 

230,000,000 

210,000,000 

As-Received 

1) Fleet 

2015 2020 2025 

Calendar Year 

Figure 13 EPA Revised Code Effects, ComJlarc to As-Received CAFE model results in Figure J: 

"Total fleet size in As-Received CAFE model" 

Effect of EPA-Revisions on Issue #2 (Inconsistency between total VMT estimates and specified 

value of the Rebound Effect) 

10 20 30 Vehicle Age 40 50 

Figure 14 EPA Revised Code Effects, Com1mrc to As-Received CAFE model results in Figure 4: 

'"Change in VMT due to 20 percent rebound, Pmposcd standards case (relative to 0 percent 1-ebound)" 

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Figure 15 EPA Reyised Code Effects, Compare to As-Receind CAFE model results in Figure 6: 

"Change in VMT due Augural standards, with 0 percent rebound (relative to PrO(lOSed standctrds)" 

Effect of EPA-Revisions on Issues #3 and #4 (Cost-inefficient application of technology packages) 

w 

M 

m 

u 

m 

~ 

~ >-

~2 "" ~0 Oc 

U{j 

(J)ru 

""" roo 

"""~ u ru roN 

a.. ru~ 

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wru 

>--£ 

~ 0 

ru 

> 

:;: 

]. 

$20,000 

$18,000 

$16,000 

$14,000 

$12,000 

10,000 

$8,000 

$6,000 

$4,000 

$2,000 

$0 

0% 

Fleet in 2030 

<~> As received vehicles 

111 EPA revised vehicles 

• As received fleet average 

,. EPA revised fleet average 

20% 40% 60% 80",6 100% 

Effectiveness (reduction in CO;, relative to a hypothet1cat zero~technoJogy 'null' package) 

Figure 16 EPA Revised Code Effects, Compare to As-Received CAFE model results in Figure 8 

•~cost and Effccti'vcness of MY2030 Ychicles relative to a •null' tech paclmge" 

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I $4,000 

:1 $3,500 

~ $3,000 > 

00 

~2 

V>O 

Qc $2,500 Ufi 

wru 

CC'C 

roo 

-""~ $2,000 uru "'N a...m' 

.<::~ 

u~ $1,500 <llru 

r--ii 

~ $1,000 

m 

8 

ru $500 > 

~ 

I $0 

2030 

"2030 

--Yearly Average, EPA Revised 

-Baseline with learning 

--Cost-Effective Frontier 

15% 20% 25% 30"!6 35% 40% 45% 50% 

Effectiveness (reduction in C02. relative to a hypothetical, zero-technology 'nuW package) 

Figure 17 EPA Revised Code Effects: 

Cost and Effectiyeness of each 1\'IY relative to the MY2016 baseline tech package 

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0 Requir.ed"Car 

II Achieved - Car As-Received code: 

No rnanufatturer$ (0xcept JLR*) show ?.:>vldt?rlce of' 

bdlancing betwf'en and truck fleets 

Hyundoi 1-iyundai Subaru Toyot:<~ 

General Honda H\'lmd;,i H)'lmdai Mazdd Nis><~n Sul>¥u Toyota Volvo 

Motors Kia-H Kla·K Mit<"J.•bi'>hi 

Figure 18 EPA ReYised Code Effects, Compare to As-RecciYed CAFE model results in Fi~'lJre 11 

"'MY2030 Required and Achieycd C02 Je,·els for Each manufacturers regulator~· car and truck fleets" 

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Table 3 Technology Costs, Fuel Savings, Payback 

Source As Received EPA Revised Code 

Scenario Augural Proposed Augural Proposed 

MYs 2017-2025 2021-2026 2017-2025 2021-2026 

Annual Rate of Stringency Increase No Action 0%/yrPC No Action 0%/yrPC 

0%/yrLT 0%/yrLT 

Total Tech Costs, $/veh, $2,518 $639 $2,044 $474 

MY2030 relative to MY2016 packages 

Incremental Tech Costs, $/veh, MY2030 Baseline -$1,879 Baseline -$1,570 

Fuel Savings, $/veh, MY2030 Baseline -$1,519 Baseline -$1,734 

(3% discounting) * 

Payback based on Total Cost of Ownership 11.6 4.1 3.5 1.0 

20% Rebound (years, 3% discounting) 

*Ncgatn e fuel savmgs mdicatc an mcrcasc on consumer spcndmg on fuel. 

Table 4 Changes in Fatality Metrics and Net Social Benefits 

Source As Received EPA Revised Code 

Scenario Augural Proposed Augural Proposed 

MYs 2017-2025 2021-2026 2017-2025 2021-2026 

Annual Rate of Stringency Increase No Action 0%/yrPC No Action 0%/yrPC 

0%/yr LT O"lo/yr LT 

Change in Average Annual Fatalities, Baseline -150 Baseline +17 

Calendar Years 2036H2045, 

No Rebound* 

Change in Average Annual Fatalities per Trillion Miles, Baseline +4.5 Baseline +6.9 

Calendar Years 2036-2045, 

No Rebound 

Average Annual Employment, Baseline -35,020 Baseline -27,269 

Lifetimes of MY2016-2032 vehicles 

Change in Net Social Benefits, 200/a Rebound, excluding rebound-related Baseline +$49 Baseline -$83 

fatality and non-fatal crash costs 

and 'value-loss' associated with electrified vehicles, 

($Billions, 3% discounting) ** 

* ' -- The ch,mgc m ,t, emge dtmual fatdhttes dunng CYs 20.,6-20-b mcludmg the addtttonal nules dm en' olunt~ml) due to 

rebound are projected by the model as -863 (As-Received) and -321 (EPA-Revised). 

**The change in net social benefits inclusive of rebound-related fatality and non-fatal crash costs and NHTSA ·s 'valueloss· associated with electrified vehicles 'vonld be +$202 billion for the As-Received code and +$103 billion for the EPARevised code. Social benefits sum Technology, Maintenance/Repair. Value Loss. Pretax FueL Drive and Refuel Value, 

Fatality. Crashes/Congestion/Noise and all Emission Damage costs changes for the lifetimes of MY2016 through 2032 

Ychiclcs: a negative Net Social Benefit represents a net social cost. 

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Table 5 Technology Penetration Rates 

Source As Received EPA Revised Code 15 

Scenario Augural Proposed Delta Augural Proposed Delta 

MYs 2017-2025 2021-2026 2017-2025 2021-2026 

Annual Rate of Stringency Increase No Action 0%/yrPC No Action 0%/yrPC 

0%/yr LT 0%/yr LT 

Tech Costs, $/veh, MY2030 $2,518 $639 -$1,879 $2.044 $474 -$1,570 

Technology penetrations 

Weight Reduction 19% 12% -7% 14% 11% -3% 

(not including powertrain) 

High Compression Ratio {aka ATK2) 26% 12% -14% 26% 12% -13% 

Turbo-downsized 62% 46% -16% 57% 42% -16% 

Dynamic Deac 7% 0% -7% 0% 0% 0% 

Diesel 1% 1% 0% 1% 1% 0% 

Advanced transmissions {non-hybrid) 82% 88% +6% 77% 86% +9% 

Stop-Start (12V) 10"/o 13% +3% 9% 12% +3% 

Mild HEV (48V) 41% 2% -39% 3% 0% -3% 

Strong HEV 14% 2% -11% 10% 2% -8% 

Sum of Mild and Strong HEV 55% 5% -50% 13% 2% -11% 

Plug-in HEV 1% 0% 0% 7% 0% -6% 

Battery Electric (BEV) 0% 1% 0% 2% 1% -2% 

SumofPEVs 1% 1% 0% 9% 1% -8% 

Note that the three tables presented above, comparing the As-Received and EPA-Revised results, 

maintain NHTSA's costs and effectiveness values from Autonomie large-scale full-vehicle simulation, 

platform sharing, redesign cycles and technology application constraints. ln other words, the input tiles 

applied in this analysis are identical to the as-received files from NHTSA. 

The effects of our minor code revisions on the CAFE model outputs are clearly substantial, and 

resolve some of the most significant issues with the CAFE model's representation of the GHG program. 

However, although the "EPA Revised" version of the CAFE model has corrected some issues, there are 

still outstanding issues with this modeL Thus we cannot endorse the use of our modified version of the 

CAFE model for use in policy setting for the GHG program. 

In part, this is because of the range of issues we have previously identified with the modeling inputs 

and assumptions-such as unduly high battery costs, production-ready but unconsidered and/or overly 

constrained technologies and technology application processes, etc.-that are outside of the scope of this 

memo and are not addressed by the EPA-revised version of the CAFE modeL 

15 This analysis Ilk'lintains NHTSA, s costs, effectiveness values from Autonomic large-scale rull-Yehicle simulation. platfonn 

sharing. redesign cycles and technology applicatjon constrdints. In other words. the input files applied in this analysis arc 

identical to the as-received files from NHTSA. Had we applied EPA inputs \\·e vyould expect a significant change in 

tcclmology penetration projections. 

EPA June 18,2018 further review ofNHTSA April13. 2018 version of the CAFE Model 23 
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There are also additional issues with the CAFE model that have been uncovered during the current 

investigation, but we have not had the time and resources to fully evaluate and/or correct For example, 

the model appears to favor credit generation for possible future use over transfer of credits across a 

given manufacturer's car and truck fleets (a major cost savings element of the GHG program); further, 

the model does not appear to use credits etticiently once generated; the model uses fuel share in many 

places but does not maintain a careful accounting of that fuel share to ensure a total of 100% each year; 

the model continues to make use of what we consider to be strange mileage accumulation rate schedules 

(as we discussed with NTHSA/Volpe during development of the DT AR); the model still has a general 

tendency towards overcompliance across the range of years analyzed; and potentially other issues. 

ApJ1endix.~: comJia,ris~)i9f th'!&~ost"~f{ectiY~ue.S$ t:t~ appl*ed tec~llotogy ~ac~~es i!l' As-Recei~eil and EP ~R~v)&!.ld . .Versious, by Yehicl~ Type · · · · · · · 

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2030 Fleet, Small Car 

60% 

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$0 

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$16,000 

$14,000 

$12,000 

$16,000 

$14,000 

: $12,000 

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$16,000 

$14,000 

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EPA Initial Review of CAFE Model & Inputs, February 9, 2018 

Overview 

This document summarizes EPA's initial findings from a review of the CAFE model and inputs, 

based on the materials provided on January 241

" and February 1" by NHTSA. This is not intended to be 

a compressive assessment of the model, or the inputs and associated assumptions, but is instead meant to 

serve as the first step in an iterative review where the process of making observations and asking 

clarifying questions will lead to further exchanges of information. The following sections cover the four 

topic areas reviewed: the CAFE model in general, the representation of technologies, economic factors, 

and safety. Each section contains EPA's observations, along with supporting information where it may 

help to explain EPA's rationale for identifying a particular modeling element 

Between January 24'" and February 1'1 EPA received several files from NHTSA representing 

NHTSA's "January 22, 2018" runs. These files included four Excel files: 'analysis fleet', 

'technologies', 'parameters', and 'scenarios' In addition, NHTSA subsequently provided instructions 

for accessing tech package effectiveness and battery cost values embedded in the model. The overall 

obseivations and questions presented below are based on the information provided to-date. 

In reviewing NHTSA's analysis, EPA has noted that many aspects of the CAFE analysis are similar 

to previously reviewed analyses and identified portions of the analysis that are new to the model's 

operation, these include the Fleet Scrappage Model, Dynamic Fleet Share, and Fleet Safety Fixed 

Model. 

Olmm.•ation 1: When AI' A utilizes the Jan 22 inputfiles and executes the CAF1·: model with the 

d~fault settings as provided by NHJSA, the resulting outputs do not match the mlues in the 

NHI:'iA-generatedsummary table. (5ee comparisons in Table I and TCtble 3) 

The EPA-generated "Price increase due to new CAFE standard" for a MY2030 vehicle shown in 

Table 3 is -$1,599 compared to the value of -$1,769 provided by NHTSA The EPA-generated 

"Average Annual Fatalities CY's 2036-2045" value shown in Table 1 is -703 (relative to the no action 

alternative) compared to a NHTSA-provided value of -1,186. Overall, nearly every output variable 

summarized in Table 1 and Table 3 shows a difference of some degree between the EPA- and NHTSAgenerated results. There are multiple possible explanations, including EPA's misinterpretation of the 

meaning of a particular row label, or potential differences in the selection of which output fields to 

include in a particular total cost or total benefit summation. Without additional information, EPA can 

not further evaluate the underlying reason for the difference in values seen. At the same time, an 

etfective review of the CAFE model and inputs by EPA will depend on EPA's ability to correctly 

replicate and interpret the model outputs. 

Ouestion Information Request I. Please provide the output files (contents r!f the 'reports-c.\V' directory) 

from the NH7;~A-generated run that was used to populate the t•alues shown in hrhle 1 and htble 3, 

along with the associated 'Summary. txt' run em/figuration description file. 

EPA findings on initial rcvic\v ofNHTSA Jan-22. 2018 CAFE model runs (final version for 2/12/2018 Nl-JTSA briefing) 
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Table 1 Results of Standard Setting Run from 22-Jan-18 as summarized by NHTSA, and values produced by EPA's 

run of NHTSA-twovided model ·with default settings 

Source ;~s sQmmariz~d b.vNHTSt\ · EPA-generated values 

Model Years xozz;1pzs •®.21-202.6' 2022-2025 2021-2026 

Annual Rate of Increase in Stringency 'NO.Actibn 

\~;~~~::: ~f No Action 0.5%/Year PC :·:·< 0.5%/Year LT 

AC/Off-Cyde Procedures 'NoC,haf1!le' " .N.9Change No Change No Change 

Fuel Economy 

Average Required Fuel Economy- MY 2026+ (mpg) I 46-p•i,,{,,,• ~!!:2,'•1 46.8 38.1 

Average Achieved Fuel Economy- MY 2030 (mpg) 47.6 _ .... 40:6 46.5 40.7 

Change in Physical Quantities Attributable to CAFE Alternative 

Fuel Consumption {b. gal) ba~ellhe . 76,4 baseline 74.8 

Fuel Consumption (b. barrels) ·',baseline ,1:.8, baseline 1.8 

C02 Emissions (mmt) ~?$liUQe 

••• baseline 827 

CH4 Emissions (metric tons) ',bl!sefine baseline 1,453,288 

N 20 Emissions (metric tons) · bas~Un~· baseline 16,761 

Average Annual Fatalities CY's 2036-2045 b:cis~line: baseline (703) 

Average Annual Fatalities CY's 2036-2045 without rebound paseune:·· . (3QS)> baseline 

Sales (millions) 1.< bas~liM ' ;t:o baseline 0.9 

Technology Use Under CAFE Alternative in MY2030 (total fleet penetration) 

Weight Reduction {not including powertrain) 1'7%'" ·1,2% 16.4% 12.7% 

High Compression Ratio Non-Turbo Engines ~·%~ .... ' .;;.3% 26.2% 20.9% 

Turbocharged Gasoline Engines c6()%. '1!7%; ..... 61.9% 52.8% 

Dynamic Cylinder Deactivation I·<· 6JW .•· 'll%' : 5.0% 1.9% 

Diesel Engines l%> r :1%: 0.6% 0.5% 

Advanced Transmissions {Non-Hybrid) 7,2%' :· .. · 87.% 68.0% 87.2% 

Stop-Start 12V (Non-Hybrid) 15%' ,' ~3% 14.2% 15.6% 

Mild Hybrid Electric Systems (48v) $5% .·• '<1% \< 29.3% 4.7% 

Strong Hybrid Electric Systems 1····. :20% . <.5%:• 26.9% 3.6% 

Sum of Strong Hybrid and Mild Hybrid _Sl;%> . 5~ ;< 56.2% 8.3% 

Plug-In Hybrid Electric Vehicles (PHEVs) .~%· • •, ._ ... '4~ <\ 1.4% 0.7% 

Dedicated Electric Vehicles (EVs) ':, >"l% _,, ·l.' 0.5% 0.5% 

Sum of Plug-In Vehicles .:5% .··· il% 1.9% 1.2% 

Total of All Electrified Vehicles 61% ..... 1¢% 58.1% 9.5% 

Table 2 EPA's groul)ing a."isumptions for technology penetration sum mar~' in the table above, based on 

'tl"Chnolog_v_utilization_report.csv' output file 

Tech 

Wetght Reduction (not including powertrain) 

High Compression Ratio Non-Turbo Engines 

Turbocharged Gasolme Engines 

Dynam1c Cylmder Deactlvatwn 

D!esel Engines 

Advanced Transmissions (Non-Hybrid) 

Stop-Sta1t 12V (Non-Hybnd) 

Mild Hybrid Electnc Systems (48v) 

Strong Hybrid Electnc Systems 

Plug !n Hybnd (PHEVs) 

Dedicoted 1 ; (m) 

Assumed Calculation 

MRl *5%+MR2 *7 .S%+MR3 * 10%+MR4*15%+MR5*20% 

HCRl 

TURB01+TURB02+CEGR1 

ADEAC 

OSLI 

A!l but AT5, AT6, DCT6, CVf 

SS12V 

B!SG 

SHEVP2+SHEVPS 

PHEV30+PHEV50 

BEV200 

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Table 3 Results of Standard Settin~ Run from 22-Jan-18 as summarized by NHTSA, and nllucs produced by EPA's 

run ofNHTSA-Jli"OYided model ·with default settings 

Source .'AS s.uimnarized t>v NHTSA EPA-generated values 

Model Years 2021;2025 2021;~026. 2022-2025 2021-2026 

Annual Rate of Increase in Stringency N~~:~n ~:~jCt:,ea; P5 No Action 0.5%/Year PC 

v:.~"l r~ar Lr 0.5%/Year l T 

AC/Off-Cycle Procedures 'No(;han!le NaC~arig<i No Change No Change 

Consumer Costs and Savings for Average MY 2030 Vehicle 

Price Increase due to New CAFE Standards($) ti.aselio<! ( £,7&9~. baseline (1,599) 

Increase in Other Ownership Costs($) ba$~!line ·' 1722) baseline (381) 

Total Consumer Costs($} , naseli~~ !;49.2 baseline (1,980) 

Discounted Fuel Savings to Owner($) baseline • .,2()0)'. baseline (1,033) 

Other Consumer Benefits($) kia$:E!Jirte, 14871 baseline (389) 

Total Consumer Savings($) b~Seline·, {1,~81) baseline (1,422) 

Discounted Net Savings to Owner($) baSeline &05 . baseline 558 

Payback Period Relative to Baseline (years) · b""'eli~e. baseline 

Payback Period Relative to MY2016 (years) .. ..··· 1)!.() 5.6 

Social Costs and Benefits (Total Through MY 2029} 

Technology Cost ($b) l,baselin<l.·J. '(2!16).' baseline (211) 

Other Private Costs {$b) < l-:1.5$):' baseline (152) 

Crashes, Noise and Congestion ($b) (}'f>) . •' baseline (42) 

Total Costs of New CAFE Standards ($b) baseline (403) 

Fuel Savings ($b) baseline (132) 

Other Private Benefits {$b) enhe baseline (101) 

Social Cost of Carbon {$b) baseline (4) 

Other Environmental Damages {$b) baseline (4) 

Petroleum Market Externalities ($b) baseline (21) 

Total Benefits of New CAFE Standards ($b) • · ,~si.line.. >I ,J2S3), baseline (262) 

Net Benefits of New CAFE Standards ($b) I· basettife' .· I :£9:! baseline 141 

Additional Measures (Total Through MY 2029) 

Additional Fine Payments ($bl I . t\as~llne> l : o:o I 

A full understanding of the model will require a review of the inputs and assumptions that are 

embedded within the executable file that EPA requested for this initial review. For example, details 

about the technology application decision trees are encoded within the CAFE model, and determine 

whether or not individual technologies (and associated costs) are included along a technology pathway. 

There are a number of examples of this type of embedded inputs and assumptions that EPA is aware of, 

and potentially others that EPA is not aware of. 

Technology effectiveness 

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The technology inputs provided by NHTSA on Febtuary I define effectiveness values for 

approximately 150,000 packages across ten vehicle classes. In addition, the 'technologies' input file 

contains the individual technology effectiveness values which are not modeled in full vehicle simulation 

sucb as electric power steering, improved accessories, low drag brakes, and low friction lubricants. A 

full evaluation of the assumed effectiveness values for individual technologies and their various 

combinations will require more time than the approximately one week that EPA has spent to-date and 

will require additional follow-up. The following summary of an effectiveness review conducted over the 

course of approximately one week is intended to highlight specific areas for further discussion and begin 

to identify additional information tbat is needed for a complete review. 

Observathm 2: lhe incremental ~ffectiveness t?fthe more advanced turbocharged engine 

(TURB02) compared to the less advanced version (TURBO 1) engines is often negative. 

Tbe technology inputs include two levels of turbocharged engines, TURBO I and TURB02. The 

incremental cost of TURB02 hardware over TURBO! hardware is about $350 to $700 in 2030; 

although it is unclear what specific technologies are represented by this cost, one would expect a 

generally higher effectiveness. However, depending on the package and car class, the actual incremental 

effectiveness values from the NrlTSA technology inputs for the TURB02 technology is often negative. 

The "Medium SUV" class, shown in Figure I has the most pronounced effect, with the addition of the 

TURB02 technology, on average, having a negative effectiveness. 

6% 

4% 

~ 2% 

.~ tl 0% 

~ 

~ -2% 

~ j -4% 

-6% 

10% 20% 30% 40% SO% 

Base Effectiveness ofTURBOl package 

Figure 1 Incremental Effectiveness of TURBOt to TURB02 (MedSUV class) 

ObservatliJII 3: lhe addition <Jfcooled exhaust gas recirculation (Cl;GRJ) onto turbochmged 

engines (TURB02) provides no relative benefit, despite the additional cost of the technology. 

Given this input as.111mption, the C4F1c model outputs, as expected, do not show CljJplication of 

Cio'GR!. 

A cooled EGR package when added to the advanced turbocharged engine (TURB02) has a cost of 

$334 in 2030. Cooled EGR is a technology that has been used in the market, and has a significant effect 

on C02 reduction. However, as illustrated in Figure 2, the incremental effectiveness is at or near zero for 

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nearly all packages (and averaging zero for all packages). The "Medium Car Pe1formance" class shown 

in the figure is representative of the near-zero effect of the technology for all classes. 

2.0j>S 

1.5% 

"' " LO% 

" 2 " 05% tl 

" iS o,arx) 

s 

~ -0,5% 

f! 

u 

.= 

-1.5% 

-2.0% 

OS{) 10% 20% 30% 

Base Effectiveness for TURB02 Package 

Figure 2 Incremental EIIectiwness ofTliRB02 to CEGRI (MedCarPcrf class) 

Observation 4: The ~ffectiveness the most advanced eight-speed transmission (4 T8L3) is only 

moderately more than the most advanced six-speed transmission (A T6L2). 

The modeled automatic transmissions include one "improved" level of a six-speed automatic 

(AT6L2) and two improved levels of eight-speed automatics (A T8L2 and AT8L3). The cost of the 

AT6L2 package (additional to an AT6) is $362 in 2030. The cost of the AT8L3 package (additional to 

an A T8) in 2030 is nearly the same ($358). Incremental to the AT6, the best eight-speed package is $485 

(i.e.,$123 more than the AT6L2). However, on average, the technology inputs provided show that the 

AT8L3 is only 1% more effective than the AT6L2, and in some cases is worse (as shown by the Small 

SUVplot). 

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4% 

0% 10% 20% 3Wb 

Starting Package Effectiveness 

Fi~ure 3 Incremental Effectiveness of the best six~sJJeed (AT6L2) ''- the best eight-speed (A T8l..J) (Small SUV) 

Oh'S<'J''vtl'fion5: lhe effectiveness improvement from a basic six-speed transmission (6A I) to a basic 

ei!{ht-speed (8A I) transmissions is unexpectedly lowjbr trucks. 

The technology inputs provided seem to show that the incremental effectiveness associated with 

moving from a six-speed transmission (A T6) to an eight-speed transmissions (AT8) is noticeably 

different depending on class. The figure shows effectiveness for a medium car and a pickup; on average, 

the eight-speed effectiveness for the car is about twice that for the truck. This trend seems to hold for the 

small and medium car classes, which have AT8 effectiveness about twice that of the medium SUVs and 

trucks (with the small SUVs in between). This may be due to assumptions about front-and rear-wheel 

drive systems; however, comments from stakeholders have indicated that R WD systems should have 

greater potential for transmission effectiveness improvements, as packaging more gears in the space 

provided is less of a concern. 

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10% 

9% 

~ 8% 

c 

~ ·" tl 

~ 

iS 

;;; 

"' ~ 

E 

~ 

E 

0% 

0% 10% 20°!0 30')6 40% 50% 

Starting Package Effectiveness 

Figure 4 Incremental Effectiveness of six-speed (6A T) to eight-SJleed (SAT) for Picku(l and Medium Car 

Ob8ervatitm 6: On average. 48V Mild Hybrid with a crank-integrated starter-generator (CISG) is 

the same. or slightly worse than with a belt-integrated starter-generator (B!SG) despite having a 

higher cost. 

The cost of a crank-integrated starter-generator (CTSG) system in 2030 is given as either $178 (for 

smaller vehicles) or $767 (for larger vehicles) in 2030. incremental to a belt-integrated starter-generator 

(B!SG). Additional battery costs in 2030 are about $617 for the BTSG and $805 for the CIS G. making 

the incremental CISG battery cost an additional $187. The CTSG is expected to provide additional 

effectiveness over the BTSG because of the direct couple to the crank. 

However, on average, the CTSG is slightly less effective tan the BTSG, although with a wide spread of 

effectiveness. The small car example shown in Figure 5 is typical, with the incremental effectiveness of 

most packages between about+ l% and -1%. 

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4% 

2%) 

~ 0% ~ 

~ EJ 

c 

w 

! 

-6% 

-8% 

0% 1CJ'% 30% 50% 

Base Package Effectiveness 

Fi,.re :i Incremental EffectiYeness of 48V Mild H~-brid with belt-integrated statier-generator (BISG) to crankintegrated starter-generator (CISG) (Small Car class) 

Observatilm 7: Some 12 V Stop-Start cqJp!ications have negative effectiveness values. 

The cost of stop-start technology is either $466 or $521 in 2030, depending on vehicle class, plus 

about $582 in battery costs. However, there are some packages where the provided technology inputs 

indicate a negative effectiveness, as shown in Figure 6 for the small car class below. Moreover, there are 

a few packages in some classes that are clear outliers (see the medium SUV performance class), either 

high or low. 

Figure 6 Incremental Effectiveness of CONV to SS12V for Small Car class (left) and Medium SUV Perf class (right) 

Oue,<.,'fionlnformalion Reauesi 3. Please provide a description (?flhe hardware that is assumed to be 

included in the technology packages highlighted in the observations above: TURB02 (relative to 

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Ti!RBOI), CFURI (relative to TURB02), ATfiL3 (relarive toAT8L), A16L2 (relative roA76), C'lSG 

(relatir·e to BISG), and SS12V (relative to CONV) 

Ouestion1nformation Request ..J. Plea/"~'e provide a table oft he vehicle characteristic,s· used simulate each 

of the 10 vehicle classes represented in this analysis (with MJW,ROIIO, AloROO). In particular res!, 

weight, road load co~fficienrs, power ·acceleration lowing melrics, drive layout (R WD, FWD, A WD, 

4 WD), aud any or her specifications used when generating rhe 'FCI. Jmprovements.csv 'file. 

Technology application constraints 

In the CAFE model, the application of a technology may be constrained in order to reflect the leadtime required to achieve large-scale production and wide-spread penetration into the fleet. The broad 

application can be excluded from consideration by the specification of a year in which the technology is 

initially available, by setting a phase-in cap, or by the use of a 'FALSE' application flag value. 

Technologies can also be excluded ±rom application to a specific vehicle by the platform, engine, and 

transmission sharing constraints, by the technology pathways encoded into the model, and by the 

explicit defmition a "SKIP" flag to an individual vehicle-technology combination. 

Ohser>'lltimt8: Application ofHCRI is restricledfor large portion '!(the .fleet. 

Atkinson cycle engines with high geometric compression ratios (HCR) have proven to be a costeffective pathway for reducing fuel consumption, with Mazda applying the technology to the majority 

their current vehicles, and Toyota announcing its plan for at least 60 percent application (by volume) by 

2021. The 'analysis fleet' file contains the 'SKIP' application flag for over 70 percent (by volume) of 

the fleet, while most other powertrain technologies are not similarly constrained (see Table 4.) 

Table 4 Proportion of tlt•et YOiume with Yehicle-specific technology application constraints ('SKIP• flag) with 

examples of high-compression ratio Atkinson cycle engines (HCRt) and strong h~·brids 

Application Flag in HCRl Strong Hybrid notes 

'analysis fleet' file (SHEVP2 +SHVEPS) 

USED 6.3% 1.8% Assumed to be applied in MY2016 

blank 23.0% 98.2% Application allowed in future 

Ouestionofnformation Request 5. Why is the HCRI technology highly constrained in the 'analysis0fleet' 

file relative to other technologies that are more complex and les·s cost-effective? 

OlJSt!J'W1timt 9: The packages <n'ailable.fiJr consideration as inputs to the C.AFF model do not 

include some significant technologies that are available in production vehicles today. 

For example, the 2018 Mazda CX-5 CUV and Mazda 6 sedan both are examples of non-hybrid 

electric vehicles that use Atkinson Cycle engines with cylinder deactivation. NHTSA's package 

designation for Atkinson Cycle is HCRI and for cylinder deactivation is DEAC. In the 2016 Draft TAR 

analysis, NHTSA had a package designation ofHCR2 for a combination of Atkinson Cycle, cooled 

EGR, and cylinder deactivation. The input files used in the most recent analysis do not allow any 

combination of DEAC and HCRI and the HCR2 package is restricted from application through the use 

of a "FALSE" flag in the 'technologies' input file (also, no packages are built using HCR2.) In other 

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words, a high-efficiency technology combination currently in production by Mazda for the 2018 model 

year will not be available for consideration in the CAFE model using the current input files. 

Technology costs 

Observation lf): The cost '!(Dynamic Cylinder Deactivation (ADEAC) is 2-4times higher than 

industt)l quoted costs for the version of the technology which is going into production in 

MY2019. 

General Motors recently announced their implementation of ADEAC on two V8 OHV engines for 

the Silverado for MY2019 and EPA test drove and benchmarked an ADEAC-equipped GMC Yukon V8 

OHV at NVFEL in 2017, verifying the effectiveness of the ADEAC system in drive cycle tests and the 

system's transparency to the driver. The supplier of the ADEAC system on the GMC Yukon 

(Tula/Delphi) quoted the 2017 cost for this system (manufacturing cost plus licensing fee), to which 

EPA applied a learning factor of 13.5% (from 2017 to 2025) and a manufacturer mark-up cost multiplier 

of 1.5, and this is shown on the far right in Figure 7. For this application (V8 OHV), the CAFE model 

marked-up cost is 4 times higher than the industry quoted manufacturer marked-up cost 

$2,400 

$2,100 

$1,300 

$1,500 

$1,200 

$900 

$600 

$300 

$0 

ADEAC Manufacturer Marked-Up Cost in 2025 

ml NHTSA CAFE Model 

•Industry Quoted Cost 

II Interpolated from Industry Quoted Cost 

13 DOHC 14 DOHC V6 DOHC V6 OHV V8 DOHC V8 OHV 

Fi~re 7 Comparison of D)'Ramic Cylinder Deactivation Costs 

NHTSA's 2-4 times higher cost of ADEAC impacts the CAFE model's application of the technology. 

NHTSA's summary of CAFE model output (Table 1) shows a 6% market penetration of ADEAC in 

2030 if current standards are kept in place and 0% if"altemative I" standards are selected. (note that as 

shown in Table I, EPA was unable to reproduce these results using provided input files and default 

CAFE model settings.) 

The CAFE model's 0% penetration of"altemative 1" is unrealistic considering General Motors will 

be offering two en1o;ines for the Silverado with ADEAC in MY2019, and the sales of these engines (prior 

to ADEAC) was 767,000 in MY20!6, or about 4.4% of the entire LDV fleet Other manufacturers likely 

have similar plans, which will likely increase ADEAC market penetration well past 4.4% in the 

MY20 19-2022 timeframe. 

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The CAFE model's 6% penetration in MY2030 using current standards may also be low, considering 

that it is much easier to apply a technology to subsequent engines after several examples have been 

developed and entered production. EPA believes the low penetration of ADEAC in the CAFE model 

may be due to the high ADEAC cost assumed by the CAFE model. 

Ouestion1n[ormation Request 6. Please provide detailsfor how rhe costs ji>r dynamic cylinder 

deactivation were estimated, particularly the $1,931 costfor V8 OHV engines. 

Consumer choice modeling ('dynamic fleet share' and 'scrappage' models) 

The effects of the standards on vehicle sales and market shares has been a recurrent question. On the 

one hand, the standards reduce operating costs; all else equal, that change should make new vehicles 

more attractive and increase sales. On the other hand, the standards increase technology costs; all else 

equal, that change should discourage new vehicle sales. Which effect dominates has been subject of a 

great deal of controversy. A key variable is the role of fuel economy in consumer purchases, measured 

either in payback period (the number of years of fuel savings that people consider when buying a new 

vehicle) or discount rate (how people discount the lifetime offuture fuel savings). EPA has reviewed 

this literature, as has the National Academy of Sciences; in both cases, the finding was a very wide 

range, and no consensus, in the literature. 

Academic and other researchers have developed a number of vehicle demand (consumer choice) 

models for the new and/or used vehicle markets to look at effects on sales and fleet mix. Rarely has 

there been any effort to validate these models, either for consistency across models, or for ability to 

predict out of sample. Recent academic research (Haaf et al. 2014, 2016), as well as work by EPA, has 

found that these models commonly perfmm worse, especially in the short run, than simply holding 

market shares constant. For these reasons an absence of solid science supporting the use of vehicle 

demand models for predicting the effects of the standards on vehicle sales neither EPA nor NHTSA 

has used consumer choice modeling in either the 2010 or 2012 rulemakings, or in the 2016 Draft TAR, 

or in previous CAFE rulemakings. The agencies have occasionally estimated the effects of the standards 

on new vehicle sales using a Total Cost of Ownership model, where the key parameter, as mentioned 

above, is the role of fuel savings in consumer purchase decisions. This approach was recently 

recommended by Dr. John Graham and others from Indiana University in their February 2016 report, 

"Rethinking Auto Fuel Economy Policy". 

The CAFE model appears now to include a "Dynamic Fleet Share" model (which we think is a 

consumer choice model for new vehicles) and a "Scrappage" model (scrappage models estimate the 

effect of new vehicles on the used vehicle market). These have not previously appeared in the CAFE 

model. 

Ol>serwlliml f 1: J•imn a review of the model outputs, the use of the 'Dynamic Fleet Share' and 

'Scrappage' models appear to significantzy impact overall sales, fleet volumes, and model mix, 

and therefore are important factors in the CAFF; model's resulting net benefits, costs, and safety 

results. 

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Sales increase for both the augural standards and the alternative standards, though they appear to 

increase slightly more for the alternative standards. In addition to total sales, sales mix changes between 

the augural and alternative standards (that is, sales for individual vehicles increase at different rates, 

though all increase). Price increases at least as much as technology costs for individual vehicles; in a 

number of cases, vehicle price increases more than technology costs, though we have not been able to 

figure out how those price increases are calculated (see below). These changes are likely to affect 

emissions and other model outputs. 

Observation 12: However, the inputs Jbr these new modelling elements are not clear and the 

operation C?.l the elements· i.s· ab;o not clear to the model user. 

The "Dynamic Fleet Share" model coefficients for FP, HP, and MPG, seem to indicate that the sales 

response to changes in these variables for cars is opposite of the sales response for trucks. This table is 

the documentation presented for the DFS. Tt is our t,>uess that these are regression coefficients used to 

predict vehicle sales for cars (LDV) and light trucks (LOT l/2a). It is further our guess that FP is 

footprint, HP is horsepower, CW is curbweight, MPG is miles per gallon. We do not have guesses what 

Rho and Dummy are associated with. 

Coefficients LDV LDT1/2a 

Constant 3.4468 7.8932 

Rho ! 0.8903 0.3482 

FP 0.1441 -0.4690 

HP -0.4436 1.3607 

cw -0.0994 -1.5664 

MPG -0.5452 0.0813 

Dummy -0.1174 0.6192 

We observe that HP and MPG have negattve stgns for cars (t.e., more HP and more MPG reduce 

sales), while those coefficients are positive for trucks (i.e., more HP and more MPG increase sales). In 

contrast, FP increases car sales but reduces truck sales. These results are not what we would expect. 

As discussed above, the role of fuel savings in vehicle demand modeling is critically important; it 

essentially determines the direction of new vehicle sales effects. As noted, it appears that more fuel 

economy is bad for cars but good for light trucks, with unexplained magnitudes. 

Ohw!n'ation 13: 7he scrappage model coefficients do not have consistent signsjor cars, Vans SUI~'­

Pickups 

It is not known exactly what the Scrappage model predicts: how many vehicles of which vintages are 

scrapped each year? The scrappage model appears to include 34 parameters, including new vehicle 

prices, vehicle age, CPM (cost per mile?), GOP growth rate, and interactions among these in polynomial 

forms. It is thus hard to evaluate. Below is a partial representation. Signs of the coefficients are again not 

consistent (see, e.g., Age, Age"2, Age"3, New Price, New Price* Age, New Price* Age"2), though how 

these affect predictions is not easy to determine. 

Parameter Cars Vans/SUVs Pickups 

Estimate Scrappage TRUE TRUE TRUE 

Beta Coefs 

Age 0.616047051 -0.473441117 -1.119398279 

Age/\2 -0.057406753 0.032324147 0.037890057 

Age"'3 0.001582126 -0.000301894 0 

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ln(MY-1959) -1.608885894 -3.946616362 -3.364968508 

ln(MY-1959)'Age 0.213582275 0.504803381 0.34204715 

ln(MY-1959)'AgeA2 -0.006715995 -0.015159639 -0.008384946 

ln(MY-1959)*AgeA3 I 0 0 0 

New Price -0.000161276 0.000371589 -0.000303124 

New Price* Age I 7.84025E-06 -2.88675E-05 2.83304E-05 

New Price*Age/\2 I 1.00488E-07 5.91183E-07 -9.62014E-07 

New Price*AgeA3 I -1.212E-08 0 0 

Oue.,-tion Jn(ormation Request 7. Please describe any prerious rulemakings where these or similar 

models lvere used to examine impact.;,- on sa!e.s· andfleet mix. 

Observation 14: The C4fE model vehicles report output file provides vehicle price increases, 

which in some cases is the same as the tech cost increase, and other cases sign(ficantly higher. 

Ouestion!ntiJrmation Request 8. Please provide an explanation <if the methodology for indiridual 

determining price increaves, and I he relationship heflreen the technology costs, fines, and price 

increa.\·es. 

Discount rates 

In rulemakings, EPA and NHTSA have calculated and reported net benefits with a 3% discount rate 

for both benefits and costs, and separately with a 7% discount rate for both benef1ts and costs. These are 

intended to represent expectations of impacts of the standards. 

Obsen•alion 15: The summmy tah/es provided hy NH'ISA includes a fiJotnote for "Consumer Costs 

and Sm•ingsfor Average MY 2030 Vehicle .. staling, "Consumer Costs and Savings are 

discounted to net present value tJ.<.,'ing a 7% discount rate. " On the other hand, "Societal Costs 

and Benefits are discounted to net present value using a 3% discount rate.,. 

OMB Circular A-4 observes that the real discount rate of 7 percent "is an estimate of the average 

before-tax rate of return to private capital in the U.S. economy," that is, for private-sector business 

activity. On the other hand, according to Circular A-4, "When regulation primarily and directly affects 

private consumption (e.g., through higher consumer prices for goods and services), a lower discount rate 

is appropriate." On that basis, it seems inappropriate to use a 7 percent discount rate for "Consumer 

costs and savings." 

As discussed above for consumer choice modeling, it may be reasonable to choose a different 

discount rate for fuel savings when analyzing sales impacts, as an alternative to using a limited number 

of years of future fuel savings (payback period). Such alternative rates are used to estimate how 

consumers behave when buying vehicles; they do not necessarily represent what consumers will 

experience once they have bought their vehicles. "Consumer Costs and Savings" should reflect what 

consumers are expected to experience; the Dynamic Fleet Share and Scrappage models already serve the 

function of estimating sales impacts. 

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Oue:·;tionlnlormation Request 9. Please explain the basi.<.; for using a 7 percent di,\·count rate fbr 

Consumer costs and savings, and how thai sali.~fies the instructions of OMB Circular A--1. Also, the 

parameters input sheet includes "Consumer Discount Rates" ~f0.03, 0.07, 0.12, and 0.15. Are 12 

and 15 percent discount rates used? lfso, where are they used, and what is the explanationji>r their 

u:•;e? 

VMT schedules 

The assumptions made about how much the average vehicle is driven in each year over a vehicle 

lifespan is an important factor in the calculation of greenhouse gas emissions, fuel savings, and 

discounted net benefits. The accumulation of vehicle mileage earlier in a vehicle's lifetime will tend to 

result in fuel savings and emissions benefits that are pulled ahead to earlier calendar years, and therefore 

discounted less in terms of net present value compared to a vehicle that accumulates more mileage later 

in its lifespan. 

Observation 16: The form of the mileage accumulation schedule provided in the 'parameters' input 

file is unexpected, and not consistent H'ith mileage accumulation 5>'Chedules in other data sources. 

The table of vehicle miles traveled (VMT) by vehicle age described in the 'parameters' input file 

shows a steep drop-off in annual VMT after age 6. NHTSA had first utilized a curve with that shape in 

the 20 J 6 Draft TAR, and EPA understands the underlying data source is an IHS/Polk product based on 

odometer readings from individual vehicles. The drop-off in annual VMT in the Nl:-ITSA schedule 

shown in Fit,>ure 8 is not seen in other data sources, including the 2001 National Household Travel 

Survey (NHTS), and a DOE LBNL analysis based on odometer readings from DMV records of the 

Texas inspection an maintenance program. The 2009 NHTS data shows a decline that coincides with the 

NHTSA schedule, but of a much smaller magnitude. 

4\)00• 

0 

Figure 8 Comparison of NHTSA mileage accumulation schedule ·with data from other sources for cars (left) and 

trucks (right) 

Ouestionln(ormation Request 10. Can NHl~~A provide an explanalionfi!r why such a dramatic 

decline in annual VMToccurs after age 6, and considering that large decline why does NH7:~A 

believe that the IHSPolk data is more defensible than multiple other sources which are based on 

population-weighted samples of odometer readings of individual vehicles. 

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Employment Analysis 

In past rulemakings, NHTSA has based its employment analysis solely on sales volumes (the "output 

etTect"): if sales are projected to change, employment would change in a constant ratio. Because EPA 

has not quantitatively estimated sales impacts in recent rulemakings, for reasons discussed above for 

"Consumer Choice Modeling," it has not quantified the effects of sales changes on employment. It has, 

however, estimated the proportion of technology costs that are labor costs- that is, the labor involved in 

the new technologies, known as the "cost e!Tect" or "substitution effect" -and included estimates of 

those effects in its analysis. NHTSA has not included those effects in its employment analysis, even 

though labor costs are a significant fraction of technology costs. This initial review is based on an 

inspection of input files. 

In the "parameters" spreadsheet, "Employment Values" includes information for revenue per 

employee for OEMs and suppliers. These parameters are not consistent with NHTSA's approach to the 

output effect in recent rules of using workers per vehicle, nor is it consistent with EPA's method of 

estimating the substitution effect. 

The spreadsheet also includes multiplier values, which seek to measure the ripple effects of 

employment in the auto sector to other sectors in the economy. Multiplier effects are most suitable for 

situations, such as small regions, where it is reasonable to expect people to enter (or move into) and 

leave jobs in the area in response to changes in one sector. At the level of the U.S., multiplier effects 

depend on assumptions about the state of the macroeconomy at the time of impacts. If unemployment is 

high, as in 2009, then multiplier effects can happen, as people enter or leave the workforce. On the other 

hand, if unemployment is low, then it is unlikely that new jobs are created in response to changes in the 

auto sector; rather, workers will switch among sectors. The use of multipliers for auto sector job impacts 

thus requires assumptions about unemployment at the time of the changes. 

Ouestion'lnformalion Request 11. Please provide documentation/or how NHl~\:4 is calculating 

employment impacts. 1> it based on revenue? If so, what is the methodfbr doing so? 

OueslionlnfiJrmation Request 12. What do the employment numbers in the outpul sheets measure -

Auto sector.7 Multiplier effects? If multiplier effects are used in NHTSA 's employement estimates, 

what w~'c"''llmptions· are being made about the state of the macroeconomy at the time of impacts? What 

is the source (!(those assumptions? 

Ouestionlntbrmation Request 13. l> NHJ:\'A including in its ana(ysis the employment ~[feels 

associated with technology costs.? If not, what is the explanation for this omission? 

VMT Rebound 

In past LDV rulemakings in 2010 and 2012, and the Draft TAR published in July 2016, EPA, 

NHTSA and CARB jointly determined that an LDV VMT rebound estimate of 10% was the most 

appropriate value for assessing standards out to the 2025 timeframe. In the Summary Tables provided by 

NHTSA (the parameters spreadsheet, Economic Values for Benefits Calculations (2016$), Rebound 

Effect: Vl\.1T elasticity wrt fuel cost per mile), NHTSA doubled its estimate ofVMT rebound to 20% for 

passenger cars, light trucks and light trucks 2b3. 

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~[feels since the 2016 Drqfi TAR that NHlSA used to update its estimate of the LDV VMTrebmmd 

effect.> Please provide documentationfiJr the updated methodology rationale. 

Emissions impacts and costs 

Effects of the standards on both COzand other pollutants depend on not only the changes in 

technologies to vehicles, but also changes in the amount driven (rebound effect), changes in the number 

of vehicles and fleet mix (Dynamic Fleet Share and Scrappage models), and changes in fuels produced 

(upstream effects). 

ObsuwJtilm In the "societal ~ffectsreport,,. it appears, atleastfor 2025 and 2030, that, in 

going from the augural standard' to the alternative standardv, emissions ofsome pollutants 

(VOC', NOx, S(), PM, C02, CH4, N20, DPM) increase, while emissions of others (CO, 

Acetaldehyde, Acrolein, Benzene, Butadiene, Formaldehyde) decrease. 

It seems peculiar that some increase while others decrease; it's especially counter-intuitive that taxies 

go down while VOC goes up. 

I OuestionlnfiJrmation Request15. Can NH7SA explain what contributes to this e,[fect? 

Obserl'atiou 18: It is unclear where NHT~'iA selected the unit values to monetize changes in PMrelated criteria pollutant emissions (aka, benefit per ton values- BPI). 

NHTSA provides the following table for Emission Damage Costs: 

Emission Damage Costs ($/metric-ton) 

Carbon Monoxide 

Volatile Organic Compounds 2,000 

Nitrogen Oxides 8,200 

Particulate Matter 371,100 

Sulfur D!oxide 48,000 

Methane 0.0000 

Nitrous Oxide 0.0000 

They appear to be outdated (e.g., they include a unit value for VOCs, which EPA no longer 

monetizes due to uncertainty in the underlying air quality modeling); and they don't appear to account 

for how BPT values increase over time. 

OuestionlnfOrmation Request 16. What is the sourcefor these emissions damage costs, and does the 

CAFE model change the values orer time? 

Oue.S'tion·fnformation Request 17. Hmv are the ·:fixed effect...,···, as presented in the sqfdy values sheet 

of the parameters inputftle estimated? Why are valuesflat from 201./ through 2021? Why do they 

decrease beyond 2021.? Why the large step change reduction in 2026 with a.flattening h~yond 2026? 

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-15 

-20 

~25 

Figure 9 Fixed Effect Values used in the Safety Analysis 

Ouestionlnfbrmation Request 18. Running the CAf1·.· model with the IHS model turned OFF (and all 

other inputs as received by EPA) results in.fim·er.fi.rtalities in both the Augured and Alternative 

scenarios while simultaneously reducing sales in MYs 2017 through 2029 by -18 million vehicles 

(5ee table below). Is there 011 explanation.fi>r why this would happen? 

Model inputs All inputs as received by EPA DFS Model turned OFF 

Scenario Augur a! Alternative Delta Augural Alternative Delta 

Fatalities 18,055 17,352 -703 16,259 15,556 -703 

(avg/CY 2036-2045) 

Sales (MY2017-2029, millions) 223.7 224.6 0.9 205.8 205.8 0.0 

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EPA Further Review of CAFE Model & Inputs, February 28,2018 

Overview 

This document summarizes EPA's findings to-date from a review of the CAFE model and inputs, 

based on the materials provided on January 24th, and follow-up materials and discussions with NHTSA. 

EPA chose to use the available timeframe to focus on the modeling inputs and assumptions that are 

likely to have the most significant influence on the results, with particular attention to the effects on 

technology costs, net benefits, penetration of strong electrification technologies, and fatalities. 

At this point, EPA cannot endorse the use of the CAFE model for an EPA NPRM. Given the 

application of new, unreviewed models, errors and anomalies in technology effectiveness, higher than 

expected costs for batteries and some conventional technologies, and dated nature of some of the inputs 

and indefensible technology application constraints, it is not possible for EPA to conclude that the 

current NHTSA analysis reflects the conclusions of the research pe1formed by EPA over the last five 

years. We also note that EPA's review of the CAFE model is limited by our ability to review the CAFE 

model code, and we renew our request for the uncompiled CAFE model code to enable EPA to complete 

our review. 

EPA's observations are grouped into four topic areas: the CAFE model in general, the representation 

of technologies, economic factors, and safety. The first four sections of this document cover the most 

sih'11ificant observations and supporting information for each topic area. Additional observations are 

included four subsequent sections. 

Executive Summary 

While a significant amount of information has been shared between the two agencies, EPA feels that 

these results represent a limited understanding of the CAFE model. Some priority requests have been 

left unfulfilled and other information was received very late in the review process and has not been fully 

considered in the preparation of this summary. Under the category of unfulfilled requests, EPA feels 

that obtaining the CAFE model source code would provide the detailed level of understanding required 

to support a joint NPRM. With respect to critical analysis information, details on the scrappage model, 

safety factors, and engine maps were provided on the same day that EPA's analysis was scheduled to be 

completed. It is difficult to assess the significance that any individual concern we've raised would have 

on the outputs from NHTSA's modeling, given the limited amount we know. However, based on what 

we do know, EPA has two concerns that we believe have a highly significant impact on modeling 

results. First is NHTSA's reliance on new, untested models (i.e., fleet sales and scrappage): the outputs 

of these models can have a large effect on the policy choices the Administration makes, and we don't 

believe these models have received sufficient scrutiny to be used in such a significant policy process. 

And the second is the outdated, questionable quality of some of the tech inputs: relying on old 

technology, or preventing new technology from being used, has a material impact on the modeling 

outcomes, and therefore the policy options that will be presented to decision makers and the public. 

In considering the NHTSA analysis results provided to EPA in late January it is important to keep in 

mind that there is approximately a $700 difference in estimated average vehicle cost between EPA's 

analysis and NHTSA's for existing GHG/augural CAFE standards, with NHTSA's being higher. A cost 

difference of this magnitude could be attributed to a number of significant differences in the modeling 

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inputs and assumptions, and has a dominant effect on the range of projected effects presented by 

NHTSA for the existing/augural standards and for each alternative standard scenario modeled by 

NHTSA, including the projected COz reductions, projected fuel savings, net benefits, vehicle sales, 

vehicle scrappage, employment, VMT and safety impact. EPA believes that ifNHTSA were to limit the 

application of consumer etfects models to sensitivities and not the primary analysis, correct errors in 

their assessment of technology effectiveness and to update key inputs with the latest available data, the 

per-vehicle costs projected by NHTSA's models would be substantially lower and the overall 

conclusions regarding the stringency of the standards would be significantly different. 

There are aspects ofNHTSA's analysis that are new and we have never seen before. These include a 

fleet model and a scrappage model. EPA is not aware of any previous NHTSA rulemaking for which 

these models have been applied. EPA did receive a short briefing on some aspects of the consumer 

effects on February 281

", however, there was no underlying documentation provided to justify NHTSA' s 

conclusions. In addition, the tone of the briefing implied that there is considerable discretion being 

exercised by Volpe staff in the calibration and application of these critical models. At this time, we do 

not recommend using these elements of the CAFE model for setting policy. 

EPA has observed and presented to NHTSA that several of their inputs regarding technology 

effectiveness are incorrect. These technologies include some applications of advanced transmissions, 

12V stop/start, cooled EGR (CEGR), crank integrated starter generator (CISG), turbo-charged GDI 

engines, strong hybrids and the application of high compression ratio engines (HCRl). For each of 

these technologies EPA has identified either errors in the input data or incorrect assumptions regarding 

the application of the technology which are inconsistent with trends seen in the current vehicle market. 

Each incorrect technology input contributes to a higher estimate of average vehicle cost to meet future 

standards. 

EPA has also noted that more recent and representative data are available. In their Draft TAR 

analysis, NHTSA applied engine maps developed by TAV in 2013 from a DOE-funded project unrelated 

to the assessment of CAFE standards. During the course of EPA's evaluation of the NHTSA analysis, 

NHTSA informed EPA that they were using the same lA V engine maps for their NPRM analysis. These 

maps were out of date at the time of the 2016 Draft TAR and we have additional, and newer data, further 

strengthening our conclusions that the engine maps used in the CAFE analysis are not representative of 

what the industry is currently producing and will be producing in the 2020~2030 time frame assessed in 

the CAFE model. This out-of-date characterization of modern engines also cont1ibutes to the higher 

estimated vehicle cost. 

The "siloing" of technologies is also contributing to the higher projected compliance costs. NHTSA 

has adopted a modeling methodology that limits a manufacturer's ability to transition to an alternative 

technology, even if that technology is a more cost effective solution. For example, N1iTSA assumes 

that a vehicle that is currently equipped with a turbo charged engine must remain turbo charged, even in 

the case of electrification to a hybrid electric vehicle. In the current and past light-duty fleet, only one 

turbo charged hybrid has ever been manufactured, with the majority of the hybrids being powered by a 

more cost effective Atkinson Cycle engine. This approach would not be appropriate for modeling 

through 2025, and is certainly not appropriate given that NHTSA projects technology and fuel economy 

performance out to 2032 MY. These assumptions regarding the application technology are overly 

constrictive and unrealistic. 

EPA has also observed some volatility in the model results. EPA has noted in this document 

observations of projected results and impacts that do not appear to make sense, and EPA is concerned 

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that sufficient quality assurance checks of the CAFE model have not occurred and the current version of 

the CAFE model may not be ready for use for rulemaking. 

Finally, EPA's observations regarding the Safety Values Fixed Effects curve continue to be a 

concern. EPA noted that the original January 22"d NHTSA analysis included a safety effects curve with 

a distinct kink in the curve in 2025 MY. NHTSA revised the curve to reflect a more gradual 

improvement in safety. On February 281

h, NHTSA further explained that this curve represented an 

internal NHTSA estimate of improved vehicle safety based on anticipated safety regulations and safety 

improvements implemented by vehicle manufacturers of their own volition. Given the impact that this 

curve has on the projection of future fatalities and policy implications, EPA believes further review is 

required. 

Between January 24'" and February I" EPA received several files from NHTSA representing 

NHTSA's "January 22, 2018" runs. These files included four Excel files: 'analysis fleet', 

'technologies', 'parameters', and 'scenarios'. ln addition, 1\'HTSA subsequently provided instructions 

for accessing tech package effectiveness and battery cost values embedded in the model, and a 

description of the runtime settings. The overall observations and questions presented below are based 

on the information provided to-date. 

Observation I: When EPA utilizes the Jan 22 inputfiles and executes the CAJ<J;; model with 

the runtime settings as provided by NHJ:~A. many of the resulting outputs exactly match 

the values in the NHTSA-generated summary table. While this indicates that EPA is 

generating the same output files that were reference by NHJ:'lA, loP A is not at this time 

able to replicate the net benefits mlue and several of the sub-items. D'A is not able to 

make a jiJ!ljudgment oft he Jan 22 model and inputs before receiving some further 

description (?f which model outputs are used in generating the net benefits value (r:;ee 

comparisons in Table I and Table 3.) 

The EPA-generated values for the "Physical Quantities Attributable to the CAFE standards" in Table 

I, the Consumer Costs in Table 3, and many of the Social Cost, Total Cost, and Net Benefit values in 

Table 4 are different than the numbers provided by NHTSA. There are multiple possible explanations, 

including EPA's misinterpretation of the meaning of a patticular row label, or potential differences in 

the selection of which output fields to include in a particular total cost or total benefit summation. 

Without additional information, EPA cannot turther evaluate the underlying reason for the difference in 

values seen. At the same time, an effective review of the CAFE model and inputs by EPA will depend 

on EPA's ability to correctly replicate and interpret the model outputs. 

Ouestionlnfi!rmation Request I. Please provide the calculations that NHJSA believes should be used to 

generate the change in physical quantities, the consumer costs and ben~ftts and, importantly, the 

social cost and benefits results. 

Table 1 Results of Standat·d Setting Run from 22-Jan-18 as summarized by NHTSA, and Yalues produced by EPA's 

run of NHTSA-Jlro\'idcd model and runtime settings 

!source EPA-generated values 

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Model Years 41J:~C2!)'25 2ll:J1C2Q21i'· 2022-2025 2021-2026 

Annual Rate of Increase in Stringency [\"~;oo~ .'d~;%y;,;~tit No Action 0.5%/Year PC 

0.5%/Year LT 

AC/Off-Cyde Procedures No change flloCh!lnge No Change No Change 

Fuel Economy 

Average Required Fuel Economy- MY 2026+ (mpg) . 4li:6 l 3s .. z 'I 46.6 38.2 

Average Achieved Fuel Economy- MY 2030 (mpg) I. 47 . .6. ··40:6 ~ I 47.6 40.6 

Change in Physical Quantities Attributable to CAFE Alternative 

Fuel Consumption (b. gal) base nne (OA';. baseline 122 (1) 

Fuel Consumption (b. barrels) , , hasettne: ,: .•.. : .. •1:8 • baseline 2.9 (1) 

C02 Emissions (mmt) ·baseline .1!47:. baseline 1,355 (1) 

CH4 Emissions {metric tons) .:lia5ellne· . 1,48~,53;! baseline 2,382,315 (1) 

N 20 Emissions (metric tons) b~sE!Uin?, ·S!IE baseline 26,857 (1) 

Average Annual Fatalities CY's 2036-2045 .bas~Une baseline (1,186) 

Average Annual Fatalities CY's 2036-2045 without rebound baseline (395) 

Sales (millions) baselintl' :,. .l.(). ' baseline 1.3 (1) 

Technology Use Under CAFE Alternative in MY2030 (total fleet penetration) 

Weight Reduction (not including powertrain) •:!-7% 12%' 17% 12% 

High Compression Ratio Non-Turbo Engines 26' .. ':. \).3%•. 26% 13% 

Turbocharged Gasoline Engines 60: .4%% 60% 47% 

Dynamic Cylinder Deactivation . ··~~ .• .. ... '0.%.:; 6.0"/o 0% 

Diesel Engines I . ;I~ •. -... ·.·:1%. 1% 1% 

Advanced Transmissions (Non-Hybrid) 12% 87% 71% 83% 

Stop-Start 12V (Non-Hybrid) 1S% , '~"!% ; 15% 13% 

Mild Hybrid Electric Systems (48v) I,· .ss% '; .. 1% .. , 35% 1% 

Strong Hybrid Electric Systems 20% ' .<'. S% 20%±t Sum of Strong Hybrid and Mild Hybrid 

Plug-In Hybrid Electric Vehicles (PHEVs) '.5% 4%i,_._. \ 5% 4% 

Dedicated Electric Vehicles (EVs) ·.·., 1% ..... 1%".'"' 1% 1% 

Sum of Plug-In Vehicles S%:. 4%, 5% 4% 

Total of All Electrified Vehicles 61!11; <' ······"lo% 61% 10% 

(l) Lifetime sum ofMY20 16 thm 2032 Ychiclcs 

Table 2 EPA's grouping a.rr;surnptions for tecbnolo~'Y penetration summary in the table aboYe, ba..•ietl on 

'tecbnology_utilization_report.csv' output file 

Tech Assumed Calculation 

Wetght Reduction (not includmg powe1train) MRl *5%+MR2*7.5%+MR3 * 10%+MR4* 15%+MR5*20% 

High Compression Ratio Non-Turbo Engines HCRl 

Turbocharged Gasolme Engines TURB01+TURB02+CEGR1 

Dynamic Cylinder Deactivation ADEAC 

Diesel Engines DSLI 

Advanced Transmissions (Non-Hybrid) AU butATS, AT6, DCT6, CVT 

stop-Start 12V (Non-Hybrid) SS12V 

Mild Hybrid Electric Systems (48v) B!SG 

Strong Hybnd Electric Systems SHEVP2+SHEVPS 

Plug In Hybnd Electric Vehtcles (PHEVs) PHEV30+PHEV50 

Dedicated Electric Vehicles (EVs) BEV200 

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Table 3 Results of Standard Setting Run from 22-Jan-18 as summarized by NHTSA, and Yalues produced by EPA's 

run ofNHTSA-provided model and Runtime Settings- Consumer costs & benefits 

Source EPA-generated values 

Model Years 2022-2025 2021-2026 

Annual Rate of Increase in Stringency N.>Acti~n ,tk~%/Year Pe 

• > .{).5%/'ll\~r LT; 

No Action 0.5%/Year PC 

0.5%/Year LT 

AC/Off-Cyc!e Procedures No Change No Change 

Consumer Costs and Savings for Average MY 2030 Vehicle 

Price Increase due to New CAFE Standards($) · b~:Selirie' •·; • !1.76!!) baseline (1,769) 

baseline (722) 

baseline (2,492) 

baseline (1,200) 

Increase in Other Ownership Costs($) ~ !2} 

Total Consumer Costs($) \{2;492:);. 

~D~i~sc~o~un~t~e~d~Fu~e~I~Sa~v~in~g~s~to-O~w-n_e_r~($~)--------------- ba~lro~~~-~1l~WQ~)~+-~~~~~~~~__, 

Other Consumer Benefits($) f' 'baseline. . , · · (487) • baseline (203) (1) 

baseline (1,403) 

baseline 1,089 

baseline 

TotaiConsumerSavings($) ~~~-· > {~,_6·8·7 •. ) 

~D~i=sc=o~un~t~e~d~N~et~S=a~vi~n~gs~t=o~O~w~n=e~r~($~)--~----------- ~--·~···~~~OS~·-•~t-~~~~~--~=---1 Payback Period Relative to Baseline (years) · ·· ·• '·. ·: ;· ~P~a~y~ba=ck~P=erio=d~R~e 1a ti~ve~t=o~M~Y~2~0~1~6~(y~e=ar=s~)----------- ~~-.~ .•. ~1~~0~-+--~~~-4----~---1 13 

(l) DtiYe Yalue & Refuel Yalue for scenario 1 (from societal_costs~report.csv) di\'idcd by sales for scenario 1 (from 

socictal_effccts_report.csY) forMY2030. 

Table 4 Results of Standard Setting Run from 22-Jan-18 as summarized b~' NHTSA, and Yalues tnoduced by EPA's 

run using recently Jlrovided Runtime Settings- Social Costs & Benefits 

Social Costs and Benefits (Total Through MY 2029) 

Technology Cast ($b) baseline (246) 

Other Private Costs {$b) baseline (107) (1) 

Crashes, Noise and Congestion {$b) baseline (54) (1) 

Total Costs of New CAFE Standards ($b) baseline {407) 

Fuel Savings ($b) baseline (167) (1) 

Other Private Benefits ($b) baseline 71 (1) 

Social Cost of Carbon ($b) baseline (5) (1) 

Other Environmental Damages ($b) baseline (5)(1) 

Petroleum Market Externalities ($b) baseline (26) (1) 

Total Benefits of New CAFE Standards ($b) baseline {133) 

Net Benefits of New CAFE Standards {$b) baseline 275 

Additional Measures (Total Through MY 2029) 

Additional Fine Payments ($b) 

(1) Regarding cerk'lin calculations in the social costs and benefits analysis, \Ye cannot line up our results \Vith those from 

NHTSA. This makes impossible our ability to measure impacts on net benefits that rcsull from changes to model 

inputs. For the values shown in this table where we do not line up, we h.wc summed lifetime results through 

MY2029 as indicated in the NHTSA table. HoweYeL for fuel savings, we show a total of $167 billion foregone 

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savings under the alternative while NHTSA shows just $138 billion (sec below. note tlmt fuel savings are in 

thousands). 

For ··other Private Costs.'' ·which we take to include the Value Loss and Fatality metrics. \YC get a reduction in costs of 

$107 billion under the alternative standards (sec belo\v. again in thousands) while NHTSA shows a reduction of$158 

billion. 

(107,459,155} 

The "Other Private Benefits'' metric. which we take to include the Drive Value and Refuel Value. NHTSA shows a 

reduced benefit of $117 billion under the alternative standards \Yhile we calculate an increased benefit of $71 billion (sec 

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below. again in thousands) which is. obviously, directionally incorrect since the benefits of both drive value and refuel 

value should be greater under the Augurdl standards. 

There is the possibility thnt EPA is misinterpreting the output files and how to pull together some of the results. We have 

requested guidance but have not yet received it. Without knowing how to calculate the net benefits. we arc hindered in 

our ability to properly assess ho\v different inputs to the model impact net benefits. 

In reviewingNHTSA's analysis, EPA has noted that many aspects of the CAFE analysis are similar 

to the Draft TAR analysis. EPA has previously reviewed the Draft TAR analyses and the associated 

documentation and in this current review has reviewed the Draft TAR source code available on the 

NHTSA' s website and identified portions of NHTSA's NPRM analysis that are new to the model's 

operation or significantly revised; primary among these changes and additions are the Fleet Scrappage 

Model, Dynamic Fleet Share Model, and Fleet Safety Fixed Effects Model. Observations on these new 

model elements are presented in the section on Economic Factors. A full understanding of the model 

will require a review of the inputs and assumptions that are embedded within the executable file that 

EPA requested for this initial review. For example, details about the technology application decision 

trees, assumptions for fleet scrappage model, and programmatic assumptions for GHG regulatory 

analysis are encoded within the CAFE model. These are a few examples of embedded inputs and 

assumptions that EPA is aware of, but there are potentially more that EPA is not aware of 

In the CAFE Modeling Update presentation dated February 2, 2018, NHTSA noted that among the 

changes to the CAFE model since the 2012 Final Rule is the capability for "Full Simulation of EPA 

GHG program requirements and provisions." In order to evaluate the CAFE model for application in 

setting GHG standards, EPA needs to understand how the CAFE model has been updated to reflect the 

CAA statutory requirements and programmatic provisions for other GHGs, in addition to an 

understanding of the CAFE model and its basic operation. These provisions include one-time carry 

forward for credits, unlimited car/truck credit trading, treatment of other greenhouse gases such as 

hydrotluorocarbons (HFC), methane, and N20, credit multipliers for advanced technologies, oft~cycle 

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technologies, zero g/mi upstream emissions forxEVs and treatment ofFFVs and diesel vehicles 

consistent with the GHG program. 

Ouestion1nformation Request 3. Please provide the uncompiled model and executable file which is 

configured to perform the GHG programmatic analysis 

Technology cost, effectiveness and baseline 

Observation 2: The use of EPA input mlues in the CAJ·E model which update and'or correct 

the anomalous inputs used in the NIHSA-reported runs from Januwy 22 has a 

significant impact on several key output results: Relative to the Augural Standards, 

technology cost savings of Alternative standard' are reduced andfatalities increase. 

Furthermore, the technology penetration '!fstrong electrtfication is significantly reduced 

in the Augural standards with the use of updated input values. 

EPA has identified a number of anomalies in the CAFE model effectiveness inputs, including 

negative effectiveness numbers for more advanced technology packages, duplicated effectiveness 

numbers for unrelated technology packages, and incremental effectiveness values in unexpected 

directions, both higher and lower. Additionally, EPA has identified technology cost values in the 

January 22 version of the CAFE model inputs that are higher than expected when considering data from 

DOE for battery costs, and teardown data for other conventional technologies. EPA has performed an 

iteration of the CAFE model in which the following updates and corrections were made to the input 

files: 1) corrected anomalous effectiveness input values in the FCl_Improvements.csv file, 2) allowed 

HCRl technology to be available to all manufacturers in MY2030, 3) updated cost inputs for battery and 

conventional technologies, and 4) updated baseline fleet to use final MY2016 volumes and lHS 

projected volumes. Using these updated inputs, EPA also evaluated the effect of enabling the DFS and 

Scrappage models. The results shown in Table 5 indicate that the CAFE model results are heavily 

influenced by the use of updated input values. 

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Table 5 Key CAFE model outputs using UJ>dated and corrected input yaJues (including correl1ed effectiyeness values, 

final baseline volumes, and updated battery costs) 

Source EPA-updated inputs EPA-updated inputs w/o 

w/ DFS and Scrappage DFS and Scrappage models 

models (441 (44) 

Model Years 2022- 2021-2026 2022-2025 2021-2026 

2025 

Annual Rate of Increase in 0.5%/Year PC No Action 0.5%/Year PC 

Stringency 0.5%/Year LT 0.5%/Year l T 

Price Increase due to New -$996 baseline -$861 

CAFE Standards ($/veh) 

MY2030 

w 10% 15 

HCR 

Turbo-downsized 28% 

Dynamic Deac (DeacFC) 0% 0% 0% 

Diesel 1% 0% 1% 1% 

Advanced transmissions 96% 93% 95% 93% 

Stop-Start (12V) 1% 9% 4% 12% 

MHEV48V 37% 2% 33% 4% 

Strong HEV 2% 2% 2% 

Sum of mild and strong HEV 3% 34% 5% 

Sum of PEVs 1% 2% 2% 

Average Annual Fatalities CY -449 baseline 128 

2036-2045 without rebound 

Net Benefits of New CAFE 130 baseline -149 

Standards ($b) 

Technology application constraints 

In the CAFE model, the application of a technology may be constrained in order to reflect the leadtime required to achieve large-scale production and wide-spread penetration into the fleet. The broad 

application can be excluded from consideration by the specification of a year in which the technology is 

initially available, by setting a phase-in cap, or by the use of a 'FALSE' application flag value. 

Technologies can also be excluded from application to a specific vehicle by the platform, engine, and 

transmission sharing constraints, by the technology pathways encoded into the model, and by the 

explicit definition a "SKIP" flag to an individual vehicle-technology combination. 

Observation 3: Even when modeling manl!facturer decisions as jar as 15 years in the jilture, 

the CAFE model severely limits the technologies consideredjor application based on the 

technologies present on the vehicle in A1Y2016. 

The technology pathways defined in the CAFE model code have the effect of reducing the number of 

technologies available for consideration in the subsequent model year. While in some cases this might 

be a realistic representation of a firm's actions for near tenn decision making, it is almost certainly not 

representative of the long tenn strategic planning approach that automaker's apply when making product 

decisions for new vehicle platforms and powertrains. A manufacturer's investment decisions for new 

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engine, transmission, and electrification families I 0 or more years into the future would account for, 

among other things, the availability for more cost effective technology packages that lie outside of the 

NTH SA-defined pathways. For example, a manufacturer of a turbocharged engine today would consider 

the opportunity for more potentially more cost-effective nomtally aspirated mild hybridization, or high 

compression ratio (HCR) engines decisions which are not allowed in the CAFE model structure. 

The only point at which choices can be made between turbocharging and HCR is for those vehicles 

equipped currently with naturally aspirated, non-HCR engines. This is not realistic between today and 

2025, and is indefensible when modeling is carried out through Model Year 2032. Furthermore, should a 

vehicle need to hybridize in an effort to achieve compliance, the technology pathway constriction 

appears to apply hybrid technologies to the vehicles as they exist prior to the hybridization. In other 

words, even a TURB02 with cooled EGR engine will add the hybrid system and not remove any of the 

very costly turbocharging technology. Again, this is unrealistic since any vehicle that moves to 

hybridization would reasonably remove any costly and unnecessary turbocharging technology and still 

achieve over 40 percent effectiveness as do hybrids on the road today. 

Observation 4: Application r!f HCRJ is restrictedfor large portion of the fleet. 

Atkinson cycle engines with high geometric compression ratios (HCR) have proven to be a costeffective pathway for reducing fuel consumption, with Mazda applying the technology to the majority 

their current vehicles, and Toyota announcing its plan for at least 60 percent application (by volume) by 

2021. The 'analysis_fleet' file contains the 'SKIP' application flag for over 70 percent (by volume) of 

the fleet, while most other powertrain technologies are not similarly constrained (see Table 7.) For 

example, the strong hybrid technology, which is far more complex and requires more investment to 

implement on a vehicle, is allowed on all future vehicles with no restriction. 

Table 6 Proportion of fll>et Yolume with vehicle-SJlecific technology ap1Jiication constraints ('SKIP' flag) ·with 

examples of hi!!:h-compression ratio Ati.Unson cycle engines (HCR1) and strong b:yhrids 

Ouestion!nfiJrmation Request .f. Why is the HCRJ technology high!v constrained in the 'ana/ysis7fleet' 

jile relative to other technologie:.,- that are more complex and less CO.\'t-effective'! 

Observatio11 5: 1l1e packages available for consideration as inputs to the CAFE model do not 

include ;;;ome sign{ficant technologies that are Cl\Yti!ah/e in production vehicles today. 

For example, the 2018 Mazda CX-5 CUV and Mazda 6 sedan both are examples of non-hybrid 

electric vehicles that use Atkinson Cycle engines with cylinder deactivation. NHTSA's package 

designation for Atkinson Cycle is HCRl and for cylinder deactivation is DEAC. In the 2016 Draft TAR 

analysis, NHTSA had a package designation ofHCR2 for a combination of Atkinson Cycle, cooled 

EGR, and cylinder deactivation. The input files used in the most recent analysis do not allow any 

combination ofDEAC and HCRl and the HCR2 package is restricted ±rom application through the use 

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of a "FALSE" flag in the 'technologies' input file (also, no packages are built using HCR2.) In other 

words, a high-efficiency technology combination currently in production by Mazda for the 2018 model 

year will not be available for consideration in the CAFE model using the current input tiles. 

Battery Costs 

Obsen•ation 6: The cost C!l batteries for hybrid and plug-in vehicles is in most cases 

significantly higher than expected based on the most recent projections derivedji·om 

DOE's BatPaC model. 

EPA examined the NHTSA battery cost inputs listed in the file "Battery_Costs.csv" of the CAFE 

modeling package. The costs in this file represent total cost (direct manufacturing cost marked up by an 

RPE of 1.5) in a future base year. To compute costs for a specific year, the CAFE model multiplies these 

figures by a corresponding learning factor, found in the Battery Cost Learning Rates Table in the file 

"technologies.xlsx." The learning factor approaches 1.0 in MY2029, indicating that the listed costs 

represent a base year of approximately MY2029. For comparison, EPA developed an alternate set of 

battery costs using the latest DOE BatPaC-derived direct manufacturing costs as a basis, which BatPaC 

attributes to MY202l. 

On average, the projected MY2029 NHTSA total cost for BISG batteries is almost 40% higher than 

BatPaC projects for MY2021. Total cost for SHEVP2 batteries is about 20% higher when compared on 

the same basis. Given the potential importance of these technologies, these differences could have a 

significant impact on projected technology penetrations and costs across the analysis. 

Hybrid battery cost differences 

$-

Figure 1. ComJlarison of HEV battery costs 

Similarly, the average projected total cost for BEV200 batteries in MY2029 is almost 40% higher 

than BatPaC-derived figures for MY2021. This is particularly concerning given that NHTSA defines the 

200 mile range as a 2-cycle laboratory range, which could be achieved with a smaller battery than the 

200-mile real-world ("label") range modeled by EPA. 

The base year battery cost for the NHTSA PHEV30 (2 cycle range) is similar to that ofEPA's 

PHEV20 (which would have a comparable 2-cycle range of about 28.5 miles). However, the NHTSA 

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PHEV50 (with a 50-mile 2-cycle range) shows a 23% higher average battery cost than the EPA 

PHEV40 (which would have an approximately 57-mile 2-cycle range). 

PHEV and BEV battery cost differences 

Figure 2 Comparison ofPHEV and BEV battery costs 

As previously noted, the NHTSA cost figures represent a MY2029 base year while the EPA figures 

represent a MY202l base year. If the NHTSA costs are adjusted to MY2021 by applying the learning 

factor of 1.43 (from the Battery Cost Learning Rates Table), the differences for HEVs, PHEVs, and 

BEYs are larger, as seen in the following figures. 

Hybrid battery cost differences (MY2021) 

$1J3VO.OO 

Fi;.,'llre 3 HEV battery cost differences for MY2021 

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PHEV BEV battery cost differences 

$.2ROOO_DD 

PHfVSO 

Figure 4 PHEV and BEV battery cost differences for MY2021 

Although there are differences in the exact power requirements and curb weights of the vehicle 

classes as respectively defined by EPA and NHTSA, they do not seem sufficient to account for these 

differences. In order to fully understand the source of these differences it would be necessary to know 

the capacity, power, and battery design assumptions employed by NHTSA in developing these 

estimates. 

Consumer choice modeling ('dynamic fleet share' and 'scrappage' models) 

The etfects of the standards on vehicle sales and market shares has been a recurrent question for 

many years. On the one hand, the standards reduce operating costs; all else equal, that change should 

make new vehicles more attractive and increase sales. On the other hand, the standards increase 

technology costs; aU else equal, that change should discourage new vehicle sales. Which effect 

dominates has been subject of a great deal of controversy. A key variable is the role of tuel economy in 

consumer purchases, measured either in payback period (the number of years of fuel savings that people 

consider when buying a new vehicle) or discount rate (how people discount the lifetime of future fuel 

savings). EPA has reviewed this literature, as has the National Academy of Sciences; in both cases, the 

finding was a very wide range, and no consensus, in the literature. 1 

of Sciences. Finding 9.3: '"The results of recent studies find that consumers' responses vary from 

in only 2 to 3 years to almost full lifetime valuation of fuel savings" (p. 9-JG). For interim results of 

for vehicle characteristics. see: 

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Academic and other researchers have developed a number of vehicle demand (consumer choice) 

models for the new and/or used vehicle markets to look at effects on sales and fleet mix. Rarely has 

there been any effort to validate these models, either for consistency across models, or for ability to 

predict out of sample. Recent academic research, 2 as well as work by EPA, 3 has found that these models 

commonly perform worse, especially in the short run, than simply holding market shares constant These 

models are also highly inconsistent in their estimates of the role of various vehicle attributes in the 

vehicle purchasing process, as the citations in Footnote 1 indicate. Due to an absence of solid science 

supporting the use of vehicle demand models for predicting the effects of the standards on vehicle sales, 

neither EPA nor NHTSA has used consumer choice modeling in either the 2010 or 2012 rulemakings, or 

in the 2016 Draft TAR, orin previous CAFE rulemakings. The agencies have occasionally estimated the 

effects of the standards on new vehicle sales using a Total Cost of Ownership model, where the key 

parameter, as mentioned above, is the role of tuel savings in consumer purchase decisions. This 

approach was recently used by Dr. John Graham and others from Indiana University in their February 

2016 report, "Rethinking Auto Fuel Economy Policy." 

The CAFE model now includes a "Dynamic Fleet Share" model and a "Scrappage" modeL These 

have not previously appeared in the CAFE modeL 

Obsen•ation 7: From a review <if the model outputs, the use of the "Dynamic Fleet Share" 

(DFS) and ''Scrappage" (S) model' appear to significantly impact m•erall sales, fleet 

volumes, model mix, and vehicle miles traveled, and therefore are importantfCtctors in 

the CAFE model's resulting net ben~fits, costs, and safety results. 

The DFS model forecasts future new vehicle sales and changes the fleet mix. 

o The Alternative standards have higher new vehicle sales and a higher share of cars 

relative to light trucks. 

Using the S model leads to a larger overall fleet and to higher vehicle miles traveled (VMT) 

relative to not using it, and to a larger overall fleet with the Augural standards than with the 

Alternative standards. 

o The S model does not affect new vehicle sales. 

Ob ... ;ervation 8: Hmrever, the inputsjhr the.Ye new modelling elements are not clear and the 

operation qf the elements is also not clear to the model u!-:,-er. 

The "Dynamic Fleet Share" model coefficients for FP, HP, and MPG, seem to indicate that the sales 

response to changes in these variables for cars is opposite of the sales response for trucks. This table is 

the documentation presented for the DFS. It is our guess that these are regression coeftlcients used to 

predict vehicle sales for cars (LOY) and light trucks (LDTI/2a). It is further our guess that FP is 

footprint, HP is horsepower, CW is curb weight, MPG is miles per gallon. We do not have guesses what 

"Rho" and "Dummy" are associated with. 

Coefficients LDV LDT1/2a 

2 Haaf. C. G .. J.J. Michalek W .R. Morrow. andy_ Liu (20 J.-1. ). --sensiti\'ity of Vehicle Market Share Predictions to Discrete 

Choice Model Specification." Journal of Mechanical Design 136: 121402-12l..J.02-9: Haaf. C. G .. W.R. Morro\\·. LM.S. 

Azevedo. E.M. Feit and J.J. Miclilllek (2016). "Forecasting light-duty vehicle demand using altcmativc-specific constants 

for endogeneity correction yersus calibration." Transportation Research Part B 84: 182-210. 3 Helfand. Gloria, Changzheng Lin_ Marie Donahue. Jacqueline Doremus. Ari Kahan and Mich.ael Shelby (2015). ''Testing a 

Model of Consumer Vehicle Purchases.·· EPA-1.20-D-15-0ll. 

https://nepis.cpa.gov/Exe/ZyPDF.cgi!PlOONNOZ.PDf?Dockcy~PlOONNOZ.PDF. 

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Constant 3.4468 7.8932 

Rho 0.8903 0.3482 

FP 0.1441 -0.4690 

HP -0.4436 1.3607 

cw -0.0994 -1.5664 

MPG -0.5452 0.0813 

Dummy -0.1174 0.6192 

We observe that HP and MPG have negative signs for cars (i.e., more HP and more MPG reduce 

sales), while those coefficients are positive for trucks (i.e., more HP and more MPG increase sales). In 

contrast, FP increases car sales but reduces truck sales. These results are not what we would expect. 

As discussed above, the role of consumer valuation of fuel savings in vehicle demand modeling is 

critically important; it essentially determines the direction of new vehicle sales effects. As noted, it 

appears that more fuel economy is bad for cars but good for light trucks, with unexplained magnitudes. 

Observation 9: The scrappage model co~fficienls do not have consistent signs for cars, 

Vans-SUf\ Pickups 

It is not known exactly what the Scrappage model predicts: how many vehicles of which vintages are 

scrapped each year0 The S model appears to include 34 parameters, including new vehicle prices, 

vehicle age, CPM (cost per mile0 ), GDP grov.-ih rate, and interactions among these in polynomial forms. 

It is thus hard to evaluate. Below is a partial representation. Signs of the coefficients are again not 

consistent (see, e.g., Age, AgeA2, AgeA3, New Price, New Price* Age, New Price* AgeA2), though how 

these affect predictions is not easy to detennine. 

Parameter Car.; Vans/SUVs Pickups 

Estimate Scrappage TRUE TRUE TRUE 

Beta Coejs 

Age 0.616047051 -0.473441117 -1.119398279 

AgeA2 -0.057406753 0.032324147 0.037890057 

Age/\3 0.001582126 -0.000301894 0 

ln(MY-1959) -1.608885894 -3.946616362 -3.364968508 

ln(MY-1959)'Age 0.213582275 0.504803381 0.34204715 

ln(MY-1959)'AgeA2 -0.006715995 -0.015159639 -0.008384946 

ln(MY-1959)'AgeA3 I 0 0 0 

New Price -0.000161276 0.000371589 -0.000303124 

New Price* Age I 7.84025E-06 -2.88675E-05 2.83304E-05 

New Price*AgeA2 I 1.00488E-07 5.91183E-07 -9.62014E-07 

New Price*AgeA3 I -1.212E-08 0 0 

Some observations related to the DFS and S models suggest questionable findings: 

The smaller overall fleet with the Alternative standards relative to the Augural standards 

implies that more people give up used vehicles than are buying new vehicles that is, relative 

to the Augural standards, lower new vehicle prices sh1ink the overall fleet. Why does the 

overall fleet shrink when switching to the Alternative standards from the Augural standards? 

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In 2016, which has already passed, initial VMT levels change depending on the use of the 

DFS and S models, and the scenarios modeled. The graph below shows VMT from the 

Societal Effects Reports under various scenarios: The Jan. 22 Volpe results (Volpe), which 

uses both the DFS and the S models; turning off the DFS (NDFS); turning off the S (NS); and 

turning off both DFS and S (NDFSS), for both the Augural (Aug) and Alternative (Alt) 

standards. Note the different baseline levels of VMT for these different scenarios. 

VMT: 2.016 Values are not Consistent 

3,300,000,000 

3,200,000,000 

3,100,000,000 

3,000,000,000 

2,900,000,000 

2,800,000,000 

2,700,000,000 

2,600,000,000 

2,500,000,000 

2,400,000,000 

2014 

--NSAug --NSAit 

NDFSAit 

--NDFSS Aug--NDFSS A!t 

The graph below shows differences in VMT between the Augural and Alternative standards. 

It finds that the change in the new vehicle fleet modeled by the DFS leads to a smaller 

difference in VMT during the period of the Augural or Alternative standards than before or 

after, although the Augural standards have a larger overall fleet, more rebound driving, and, 

using the DFS, a higher proportion of light trucks. 

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VMT, Augural -Alternative Standards 

2014 2016 2013 2020 2022 2024 2026 2028 2030 2032 2034 

EPA does not support the use of the CAFE consumer choice and scrappage model for a primary 

analysis for the NPRM standard setting. Academia, EPA, NHTSA, vehicle manufacturers and others 

have for many years worked on developing these tools. The literature is clear that there is no consensus 

on consumer willingness to pay (WTP) for fuel economy and other attributes, a primary symptom 

indicating that the quality and robustness of the models vary widely. In addition, the new CAFE 

models, to the best of our knowledge, have never been publicly reviewed and/or applied to create policy, 

and may suffer from the same limitations as the many similar models available in the public domain. 

Our review to date of the scrappage model identifies counter-intuitive results that raise questions about 

its suitability for policy modeling. Therefore, it is our recommendation that the DFS and S models be 

used in sensitivity analyses and not to inform the primary analysis. 

OuestionJnfbrmation Request 6. How are the "jixed effects", as presented in the safety values sheet of 

the parameters inputfile estimated? Why are valuesjlatji·om 20f.lthrough 2021? Why do they 

decrease beyond 2021? Why the large step change reduction in 2026 with a flattening beyond 2026.? 

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Safety Values- Fixed Effects 

Figure 5 Fixed Effect Values used in the Safety Analysis 

EPA's initial observation with regard to the safety values in Figure 7 are noted above. Since that 

time NHTSA has modified the data and provided a brief description of how the revised curve was 

created. NHTSA explained that the curve was developed in consideration of future NHTSA safety 

regulations and the belief that manufacturers would improve the safety of their vehicles of their own 

volition. In addition, NHTSA explained that the majority of the increased fatalities associated with older 

vehicles is the result of driver demographics and use. For example, older vehicles which are involved in 

fatalities also tend to be operated under the influence of alcohol. EPA has requested a full explanation 

of how this curve was developed, including both the quantitative estimates of safety improvements due 

to regulation and the subjective estimates of safety improvements. 

Ouestion!nfimnation Request 7. Running the CArl\ model with the DIS model turned OI~F (and all 

other inputs as received by PTA) results infewerfatalities in both the Augura/ and Alternative 

scenarios while simultaneously reducing sales in MYs 2017 through 2029 by -Iii million vehicles 

(vee table below). Lv there an explanation.fbr why this would happen? 

Model inputs All inputs as received by EPA DFS Model turned OFF 

Scenario Augural Alternative Delta Augural Alternative Delta 

Fatalities 18,055 17,352 -703 16,259 15,556 -703 

(avg/CY 2036-2045) 

Sales (MY2017-2029, millions) 223.7 224.6 0.9 205.8 205.8 0.0 

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As with VMT, the number of fatalities in 2016 depends on the use of the DFS and S models and on 

the scenario being studied. 

34000 

32000 

30000 

28000 

26000 

24000 

22000 

20000 

Fatalities: 2016 Values Are Not Consistent We were told that NHTSA 

recognizes the drop in 

fatalities in 2025~6 as a bug to 

be fixed. 

2014 2016 2018 2020 2022 2024 2026 2028 2030 2032 2034 

--Volpe Aug ,. .. ,,,,~Volpe Alt =='~" NDFS Aug NDFSAit 

--NSAug --NDFSS Aug--NDFSS A!t 

Here are a couple of charts showing fatality and C02 impacts of running with DFS/S~True: 

DFS/S=False; Rebound~20%; Rebound=O%. Notice that the No DFS/S with 0% rebound run actually 

increases fatalities under the alternative standards. Also, 0% rebound shows higher C02 under the 

alternative standards relative to augural, regardless ofDFS/S setting. These charts used all of the default 

runtime settings with the exception of toggling DFS/S and rebound. The fatalities are annual averages 

during the CYs 2036 thru 2045. The COz values are lifetime sums ofMY2016-2032 vehicles. 

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A<l.~it~(J#alabserr~tillils:,R~presen~~tioAo~i~ltnologi~s ~*tit!; ~AFE ~Qjl~l~~,~!I • · inputs.· · · · · · · · · ' · · ·· 

Technology effectiveness 

The technolOb'Y inputs provided by NHTSA on February I define effectiveness values for 

approximately 150,000 packages across ten vehicle classes. In addition, the 'technologies' input file 

contains the individual technology effectiveness values which are not modeled in full vehicle simulation 

such as electric power steering, improved accessories, low drag brakes, and low friction lubricants. A 

full evaluation of the assumed effectiveness values for individual technologies and their various 

combinations will require more time than the approximately one week that EPA has spent to-date and 

will require additional follow-up. The following summary of an effectiveness review conducted over the 

course of approximately one week is intended to highlight specific areas for further discussion and begin 

to identify additional information that is needed for a complete review. 

Observation 1: l11e incremental effectiveness of the more advanced turbocharged engine 

(TURB02) compared to the less advanced version (TURBO I) engines is '!ften nes;atil'e. 

The technology inputs include two levels of turbocharged engines, TURBO I and TURB02. The 

incremental cost ofTURB02 hardware over TURBO! hardware is about $350 to $700 in 2030; 

although it is unclear what specific technologies are represented by this cost, one would expect a 

generally higher effectiveness. However, depending on the package and car class, the actual incremental 

effectiveness values from the NHTSA technology inputs for the TURB02 technology is often negative. 

The ''Medium SUV" class, shown in Fib>ure 8 has the most pronounced effect, with the addition of the 

TURB02 technology, on average, having a negative effectiveness. 

6% 

4% 

i 2% 

~ 0% 

~ 

~ -2% . 

~ j -4% 

-6% 

-8% 

0% 

"6AT, DCT, rviT 

7 AT, MT 

·' 8 AT, DCT, rviT 

"'9AT 

lOAT 

lo<Yo 20% 300/o 400/o 50% 

Base Effectiveness of TURBOl package 

Figure 6 Incremental Effectiveness of TURBO! to TURB02 (MedSUV class) 

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Observation 1: l'he addition of cooled exhaust gas recirculation (CEGRl) onto turbocharged 

engines (1VRB02) provides no relatiw benefit, de.1pite the additional cost of the 

technology. Given this input assumption, the CAFE model outputs, as expected, do not 

show application of CEGRJ. 

A cooled EGR package when added to the advanced turbocharged engine (TlJRB02) has a cost of 

$334 in 2030. Cooled EGR is a technology that has been used in the market, and has a significant effect 

on C02 reduction. However, as illustrated in Figure 9, the incremental effectiveness is at or near zero 

for nearly all packages (and averaging zero for all packages). The "Medium Car Performance" class 

shown in the figure is representative of the near-zero effect of the technology for all classes. 

2.0% 

Base Effectiveness for TURBOZ l'ackage 

Figure 7 Incremental Effectiveness of TliRB02 to CEGRl (MedCarPerf class) 

When this original observation was communicated to NHTSA staff, NHTSA replied that "there was 

little/no opportunity to add Cooled (external) EGR in the two-cycle operating region, because operation 

was at/near combustion stability limits," and therefore the effectiveness ofCEGR was limited because 

"Cooled EGR improves efficiency under higher speed and load (off-cycle) conditions." 

However, cooled EGR has been used in production engines at lower speeds and loads to significantly 

lower fuel consumption. As an example, the Mazda 2.5L turbocharged engine in the 2016 CX-9 

incorporates cooled EGR, both for high speed/load combustion stability (off-cycle) and for low and midrange speed/load fuel efficiency (on cycle). Restricting the use of cooled EGR to only high speed/load 

combustion stability effectively ignores this feasible technology. 

An external cooled EGR control strategy that favors internal EGR as was used in NHTSA's modeling 

is completely different than what is used in current production applications (for example Toyota and 

Hyundai offerings), differs from EGR strategies described in the peer-reviewed literature, and differs 

from what was used in EPA's peer-reviewed developmental programs that applied cooled EGR systems 

to both naturally aspirated and turbocharged engine applications. Cooled EGR can be used as part of 

knock mitigation and to reduce pumping losses. Internal (hot) EGR can also reduce pumping losses but 

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can exacerbate knocking combustion and require additional spark retard. Hot EGR also requires intake 

and exhaust cam timing with significant overlap. The use of overlap for internal EGR limits the 

available range of intake cam phasing. The strategies used during EPA's engine development program 

all favored cooled external EGR except at very light load conditions (e.g., below 2 bar BMEP) where the 

increased combustion speed from use of hot, internal EGR can improve combustion stability. As a 

result, there was significant opportunity to add cooled (external) EGR over the two-cycle operation 

region while maintaining measured COY oflMEP to acceptable levels (<3% in the case of the 

turbocharged cooled-EGR engine development). 

Heavy knocking area 

200 

Torque(Nm) 

Figure X: Areas of cooled EGR usage for the Mazda CX-9 (left) and characterization of fuel consumption 

imtnm'cmcnts at mid-range loads doc to cooled EGR (right). Both figures from Mazda. 

500 

Obsermtion 2: Observation 2: Jhe ~ffectireness the most advanced eight-speed transmission 

(A T8L3) is only moderately more than the mas/ advanced six-speed transmission 

(Al6L2). 

The modeled automatic transmissions include one "improved" level of a six-speed automatic 

(A T6L2) and two improved levels of eight-speed automatics (AT8L2 and AT8L3). The cost of the 

AT6L2 package (additional to an AT6) is $362 in 2030. The cost of the AT8L3 package (additional to 

an AT8) in 2030 is nearly the same ($358). Incremental to the AT6, the best eight-speed package is $485 

(i.e.,$123 more than the AT6L2). However, on average, the technology inputs provided show that the 

A T8L3 is only 1% more effective than the A T6L2, and in some cases is worse (as shown by the Small 

SUVplot). 

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-4% 

0% 10% 30% 40% SD% 

Starting Package Effectiveness 

Figure 8 Incremental Effeetiwness oftbe best six-s11eed (AT6L2) v. tbe best eight-speed (AT8L3) (Small SUV) 

Observation 3: The effectiveness improvementfrom a basic six-.speed transmission (6A 7) to 

"basic eight-.I]Jeed (8Al) transmissions is unexpectedly /owfor 11·uckl'. 

The technology inputs provided seem to show that the incremental effectiveness associated with 

moving from a six-speed transmission (A T6) to an eight-speed transmissions (AT8) is noticeably 

different depending on class. The figure shows effectiveness for a medium car and a pickup; on average, 

the eight-speed effectiveness for the car is about twice that for the truck This trend seems to hold for the 

small and medium car classes, which have AT8 effectiveness about twice that of the medium SUVs and 

trucks (with the small SUVs in between). This may be due to assumptions about front-and rear-wheel 

drive systems; however, comments from stakeholders have indicated that RWD systems should have 

greater potential for transmission effectiveness improvements, as packaging more gears in the space 

provided is less of a concern. 

As part of the review process with NHTSA, NHTSA requested additional information and specific 

examples of vehicle technologies that did not follow the logical progression of transmission technology 

and commensurate effectiveness. In response EPA provided Figure 9: EPA observations of transmission 

effectiveness below. This figure shows that as advanced transmission technologies are applied to 

several powertrain types, there are instances where the more advanced transmission demonstrates lower 

effectiveness than the less advanced transmission. In addition, to this chart EPA also provided the exact 

technology package references from the CAFE model inputs. As of this summary, NHTSA has not yet 

responded to this observation. 

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Small SUV non-perf with MRO, AeroO, RollO 

~10% 

Transm1ssion Type 

Figure 9: EPA Observations of Transmission Effectiveness 

.10% 

~ 8% 

~ ~ 

~ 

tj 6% ~ 

iS 5% 

~ ~ 

E 

j 

0% 

0% 10% 20% 30% 409/(l 50% 

Starting Package Effectiveness 

Figure 10 Incremental EffcctiYeness of six-speed (6AT) to eight-speed (SAn for Pickup and Medium Car 

Observation 4: On average, 48 V Mild Hybrid with a crank-integrated starter-generator 

(C'ISG) is the same, or slightly worse than with a belt-integrated stm·ter-generator 

(BISG) de.1pite ha1•ing a higher cost. 

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The cost of a crank-integrated starter-generator (ClSG) system in 2030 is given as either $178 (for 

smaller vehicles) or $767 (for larger vehicles) in 2030, incremental to a belt-integrated starter-generator 

(BlSG). Additional battery costs in 2030 are about $617 for the B!SG and $805 for the ClSG, making 

the incremental ClSG battery cost an additional $187. The CISG is expected to provide additional 

effectiveness over tbe BlSG because of the direct couple to the crank. 

However, on average, the C!SG is slightly less effective than the BlSG, although with a wide spread 

of effectiveness. The small car example shown in Figure 12 is typical, with the incremental effectiveness 

of most packages between about+ 1% and -1%. 

4% 

-8% 

0% 10?;(, 20% 30% 40% 50% 

Base Package Effectlveness 

Fi~JUre l1 Incremental Effectiveness of 48V Mild H~'brid with belt-integrated statier-generator (BISG) to cranl.._-

integrated starter-generator (CIS G) (Small Car class) 

Observation 5: Some 12V Stop-Start applications hcn;e negative effectiveness values. 

The cost of stop-start technology is either $466 or $521 in 2030, depending on vehicle class, plus 

about $582 in battery costs. However, there are some packages where the provided technology inputs 

indicate a negative effectiveness, as shown in Figure 13 for the small car class below. Moreover. there 

are a few packages in some classes that are clear outliers (see the medium SUV performance class), 

either high or low. 

ln addition to examples of unexpected transmission effectiveness estimates, NHTSA also requested 

examples of observed negative J 2V start-stop effectiveness. ln Figure 12: EPA's Observations of 

Negative Effectiveness for Start/Stop Packages, below, EPA has identified l2V start/stop packages that 

demonstrate negative effectiveness. These results are not rational. There are not situations under which 

turning off the engine instead of allowing the engine to idle would result in increased tuel consumption. 

ln addition, for those packages with the same engine and positive effectiveness, it is also unexpected to 

observe such large variation in start/stop effectiveness. A SOHC GDl SIS should consume the same 

amount of fuel at idle independent of being mated to an AT8 transmission or an AT8L2 transmission. 

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Small SUVPerf /w ROLLO, MRO, AEROQ 

Figure 12: EPA's Observations of Negative Effectiveness for Start/Stop Packages 

Figure 13 Incremental Effcctiwness of CONV to SS12Vfor Small Car class (left) and Medium SUV Perf class (right) 

Observation 6: Incremental effectivenes.>:,' improving GDJ pawertrains to Atkinson 

powertrains is sign{ficamly greater than benchmarked engines. 

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Shown in Table 5 and Table 6, improving a GDI powertrain to an Atkinson powertrain is 

significantly different for the EPA analysis using benchmarked inputs and the CAFE analysis. The 

following observations have more detail on this subject. 

Table 7 EfTccth·eness com1Jarison impro\·ing GDI 6-speed 11owcrtrain to Atkinson 6-spccd 110wertrain 

EPA EPA CAFE CAFE Package Code (Medium Car) Benchmarked CAFE COo 

co, Effectiveness Effectiveness 

DOHC;VVT;;SGDI;;;AT6;CONV;ROLLO;MRO;AEROO 241.87 222.40 0% 0"/o 

;;;;;HCR1;AT6;CONV;ROLLO;MRO;AEROO 231.32 197.14 4.4% 11.4% 

Table 8 Effccth·eness comparison improYing GDI 8-spccd 110wcrtrain to Atkinson 8-speed powertrain 

EPA EPA CAFE CAFE Package Code {Medium Car) Benchmarked CAFE COo Effectiveness Effectiveness co, 

DOHC;VVT;;SGDI;;;AT8;CONV;ROLLO;MRO;AEROO 226.49 209.12 0% 0"/o 

;;;;;HCR1;AT8;CONV;ROLLO;MRO;AEROD 212.61 184.53 6.1% 11.8% 

Based on typical GDI maps and the Mazda Atkinson map, an expected effectiveness for an Atkinson 

engine incremental to a GDI engine is near 5% (but varying depending on the associated transmission, 

which determines where the engine operates). 

Speed(RPM) 

Figure 14 Percent fuel consumption difference between a typical GDl engine (from a 2013 Chevrolet Malibu) and an 

Atkinson engine (from a 2014 Mazda 3). Engine maps haYc been scaled to match peak pO\Ycr and adjusted to match heating 

Yalues. The percentage difference in fuel consumption tends to be around 5% in the heart of the ·'"on-cycle'" portion of the 

map (50-100 Nm and 1000-2000 rpm). 

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Speed(RPM) 

Figure 15 Percent fuel conswnption difference behvcen a typical GDI engine (from a 2013 Chevrolet Malibu) and an 

Atkinson engine (from a 2018 Toyota Canny). Engine maps have been scaled to match peak power and adjusted to match 

heating values. The percentage difference in fuel consumption tends to be around 7-8% in the heart oft he ''on-cycle·· portion 

of the map (50-100 Nm and l000-20l~l rpm). 

Ouestionlnformation Reauest 8. Pfea,ye provide a description (~(the hardware that is w;:sttmed to he 

included in the technology packages highlighted in the observatiom above: Tl!/1802 (relative to 

TURBO I), CEGRJ (relative to TURB02), AT8L3 (relative toAT8L), AT6L2 (relative toAT6), CISG 

(relative to BISG), and SS12V (relative to ( 'ONV) 

Ouestion1nformation Request 9. P/eas·e provide a table l?( the vehicle characteri!';tics used to .s·imu/ate 

each ()(the 10 vehicle classes represented in this analysis (with MIW, ROlLO, AlcROO). In particular 

lest, weight, road load co~fficients, power acceleralion'towing metrics, drive h~ymJt (RWD, FWD, 

AWD, .fWD), and any other .1pecijications nsed when generating the 'FCJ. Improvements.csv 'file. 

Technology costs 

Observation 7: lhe cost of Dynamic Cylinder Deactivation (ADJCAC) is more than double 

the cost publicly quoted to l1PA by industry (Delphi:71Jia, the suppliers()( ADEAC to 

2019 GM Silverado). 

General Motors recently announced their implementation of ADEAC on two V8 OHV engines on the 

MY20 19 Silverado and EPA test drove and benchmarked an ADEAC-equipped GMC Yukon V8 OHV 

at NVFEL in 2017, verifying the effectiveness of the ADEAC system in drive cycle tests and the 

system's transparency to the driver. The supplier of the ADEAC system on the GMC Yukon 

(Delphi/Tula) quoted the 2017 cost for this system (manufacturing cost plus licensing fee), to which 

EPA applied a leaming factor of 4% (from 2017 to 2019) and a manufacturer mark-up cost multiplier of 

1.5, and this is shown on the far right in Figure 14. For this application (V8 OHV), the CAFE model's 

EPA Feb 28. 2018 findings on review of NHTSA Jan-22, 2018 CAFE model runs 

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output file shows a marked-up cost of$1101, while the supplier quoted cost (with learning factor and 

manufacturer mark-up factors applied) is $541. 

Alongside the V8 OHV engine, the V6 OHV engine is an attractive candidate for near-term adoption 

of ADEAC technology. The CAFE model's output file also shows a significantly higher cost of ADEAC 

on V6 OHV engines as compared to costs calculated from supplier data ($815 versus $449). CAFE 

model cost and supplier quoted cost are better aligned for other engine types, e.g., 14 DOHC, but it is 

surprising that the CAFE model's cost is higher for a V8 OHV engine than a I4 DOHC engine when 

each engine requires the same number of deactivatable components: 16 solenoids+ 16 deactivatable 

roller tlnger followers for a !4 DOHC and 16 solenoids+ 16 deactivatable hydraulic lash adjusters for a 

V80HV. 

$1,400 

$1,200 

$1,000 

$800 

$600 

$400 

$200 

$0 

ADEAC Manufacturer Marked-Up Cost in 2019 

13 DOHC 14 DOHC V6 DOHC V6 OHV V8 DOHC VS OHV 

Figure 16 Comparison of Dynamic C~·linder Deacth:ation Costs 

NHTSA's high cost of ADEAC suppresses the CAFE model's application of the technology. 

NHTSA's summary of CAFE model outputs (Table I) shows 6% market penetration of ADEAC in 2030 

if current standards are kept in place and 0% for "alternative I" standards. 

The CAFE model's 0% penetration for "alternative I" is unrealistic considering General Motors will 

be offering two engines for the Silverado with ADEAC in MY20l9, and the sales ofthese engines (prior 

to ADEAC) was 767,000 in MY2016, or about 4A% of the entire LDV fleet Other manufacturers have 

similar plans, which will likely increase ADEAC market penetration well past 4A% in the MY2019-

2022 timeframe. 

The CAFE model's 6% penetration in MY2030 if cunent standards are maintained is likely also low, 

considering that it is much easier to apply a technology to subsequent engines after several examples 

have entered production. EPA believes the low penetration of ADEAC in the CAFE model is due to the 

high ADEAC cost assumed by the CAFE modeL 

Furthermore, the cost of ADEAC for V8 OHV engines shown in the CAFE model output ($1101) 

does not agree with the cost of ADEAC for V8 OHV provided by NHTSA in their "NHTSA Feedback 

on NPRM Analysis February 22, 2018" letter ($1008). 

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Ouestion·fnlorrnation HequestlO. Please proFide detai/sfor how the co,\·tsfor dynamic cylinder 

deactivation were eslimated, particularly the SJJOJ cost for VS OHV engines. 

Employment Analysis 

In past rulemakings, NHTSA has based its employment analysis solely on sales volumes (the "output 

effect"): if sales are projected to change, employment would change in a constant ratio. Because EPA 

has not quantitatively estimated sales impacts in recent rulemakings, for reasons discussed above for 

"Consumer Choice Modeling," it has not quantified the effects of sales changes on employment. It has, 

however, estimated the proportion of technology costs that are labor costs- that is, the labor involved in 

the new technologies, known as the "cost effect" or "substitution efl'ect" 4 - and included estimates of 

those effects in its analysis, based on data from the Bureau of Labor Statistics (BLS) and the Census 

Bureau. NHTSA has not included those effects in its employment analysis, even though labor costs are a 

significant fraction of technology costs. This review is based on an inspection of input flies. 

Our understanding, based on our 2/28/18 discussion, is that NHTSA now includes employment 

impacts due to technology costs via a calculation of revenues per worker in the manufacturing and parts 

supplier sectors, as well as estimates of dealership employment based on new vehicle sales. 

ln EPA's observations of the NHTSA modeling, employment values in the model start at about 1.1 

million in 2016, and increase to about 1.3 million under the Augural standards in 2025, and about 1.25 

million under the Alternative standards in 2025, a difference of about 50,000 jobs. The Dynamic Fleet 

Share (DFS) model affects employment values, as shown below; the Scrappage model appears not to 

affect em pl oym ent. 

4 Bcnnan. E. and L. T M. Bui (2001). "Em·ironmental Regulation and Labor Demand: Evidence from the South Coast Air 

Basin.·· Journal of Public Economics 79(2): 265-295: Morgenstern, Richard D .. William A. Pizer. and Jhih-Shyang Shih 

(2002). '"Jobs Versus the Etl\'ironmcnt An Industry-Level Perspective:· Journal or Environmental Economics and 

Mmmgerncnt -1-3:412--1-16. 

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Jobs, Millions 

1.35 

1.3 

1.25 

1.2 

1.15 

1.1 

1.05 

2014 2016 2.018 2020 2022 2024 2026 2028 2030 2032 2034 

"NDFSAit 

Figure 17: Jobs (Millions) using Volpe settings (including DFS) and No DFS (NDFS, or DFS off) 

Ouestion Information Request I 1. According to BLS data for 20I 6, total emplo}ment in the Motor 

Vehicles and Parts sector (NAICS 3361, 2, 3) was about 950, 000; Automobile Dealers (NAIC'S 

-14I I) had about 1.3 million; and Motor Vehicle and Parts Dealers (NAICS 4-II) about 2.0 million 

The NHTSA jobs values do not correspond to these values; to what do they correspond? 

Discount rates 

In previous mlemakings, EPA and NHTSA have calculated and reported net benefits with a 3% 

discount rate for both benefits and costs, and separately with a 7% discount rate for both benefits and 

costs. These are intended to represent expectations of impacts of the standards. 

Observation 8: The summm:y tables provided by NHI:S'A 

includes afootnote.fiJr "Consumer Costs and Savings.fiJr Average MY 2030 Vehicle" 

stating, "Consumer Costs and Savings are discounted to net pre,yent value using a 7% 

discount rate. " 

OMB Circular A-4 observes that the real discount rate of7 percent "is an estimate of the average 

before-tax rate of return to private capital in the U.S. economy," that is, for private-sector business 

activity. On the other hand, according to Circular A-4, "When regulation primarily and directly affects 

private consumption (e.g., through higher consumer prices for goods and services), a lower discount rate 

is appropriate." On that basis, it seems inappropriate to use a 7 percent discount rate for "Consumer 

costs and savings." 

As discussed above for consumer choice modeling, it may be reasonable to choose a different 

discount rate for fuel savings when analyzing sales impacts, as an alternative to using a limited number 

of years of future fuel savings (payback period). Such alternative rates are used to estimate how 

consumers behave when buying vehicles: they do not necessarily represent what consumers will 

experience once they have bought their vehicles. "Consumer Costs and Savings" should ret1ect what 

consumers are expected to experience: the Dynamic Fleet Share and Scrappage models already serve the 

function of estimating sales impacts. 

EPA Feb 28.2018 findings on reYic1v ofNHTSA Jan-22, 2018 CAFE model runs 

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Ouestion1nf(Jrmalion Request 12. Please explain the hw·;i_-·;for using a 7 percent discount rate for 

Consumer cos·ts and savings, and hmv that sati.~fies the instruction:\' ofOMB Circular A--1. 

VMT schedules 

The assumptions made about how much the average vehicle is driven in each year over a vehicle 

lifespan is an important factor in the calculation of greenhouse gas emissions, fuel savings, and 

discounted net benefits. The accumulation of vehicle mileage earlier in a vehicle's lifetime will tend to 

result in fuel savings and emissions benefits that are pulled ahead to earlier calendar years, and therefore 

discounted less in terms of net present value compared to a vehicle that accumulates more mileage later 

in its lifespan. 

Observation 9: The form of the mileage accumulation schedule provided in the 'parameters' 

inputfile is unexpectecf, and not consistent with mileage accumulation schedules in other 

data s·ources. 

The table of vehicle miles traveled (VMT) by vehicle age described in the 'parameters' input file 

shows a steep drop-off in annual VMT after age 6. NHTSA had first utilized a curve with that shape in 

the 2016 Draft TAR, and EPA understands the underlying data source is an lHS/Polk product based on 

odometer readings from individual vehicles. The drop-off in annual VMT in the NHTSA schedule 

shown in Figure 16 is not seen in other data sources, including the 2001 National Household Travel 

Survey (NHTS), and a DOE LBNL analysis based on odometer readings from DMV records of the 

Texas inspection and maintenance program. The 2009 NHTS data shows a decline that coincides with 

the NHTSA schedule, but of a much smaller magnitude. 

4000> 

0 

Figure 18 Comparison of NHTSA mileage .accumulation schedule with data from other sources for cars (Jeft) and 

trucks (right) 

Ouestionlnfiwmation Request 13. Can NHI:)'A provide an explanation for why such a dramatic 

decline in annual VlvfT occurs qfter age 6, and considering that large decline why does NHJ:')A 

believe that the IHS Polk data is more defensible than multiple other sources which are based on 

population-weighted samples of odometer readings <!f individual vehicles. 

VMT Rebound 

Changing the rebound value from 20% to I 0% has the expected effect, for the Augural standards, of 

reducing co, emissions, because of reduced rebound driving. However, the same change for the 

EPA Feb 28.2018 findings on rcyiew ofNHTSA Jan-22, 2018 CAFE model nms 

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Alternative standards leads to greater C02 emissions, although, as noted previously in the discussion of 

the DFS and S models, new vehicle sales are higher, and the overall fleet is smaller, under the 

Alternative standards. The same pattern exists for fuel use. 

1250 

1200 

1150 

1100 

1050 

1000 

950 

900 

Lower rebound 

(gray) implies 

lower C02 

C02 (mmt) 

2014 2016 2018 2020 2022 2024 2026 2028 2030 2032 2034 

-~Aug20% ""Ait10% 

Emissions impacts and costs 

Effects of the standards on both C02 and other pollutants depend on not only the changes in 

technologies to vehicles, but also changes in the amount driven (rebound effect), changes in the number 

of vehicles and fleet mix (Dynamic Fleet Share and Scrappage models), and changes in fuels produced 

(upstream effects). 

OhservalionJO: in the "societal ~fleets report," it appears, at leas/for 2025 and 2030, 

that, in going from the augural standards to the alternative standard,, emissiom '!fsome 

pollutants (VOC, NOx, S02, PM, C(h, CH4, N,O, DP!vl) increase, while emissions of 

others (CO, Acetaldehyde, Acrolein, Benzene, Butadiene, NJ!'maldehyde) decrease. 

It seems peculiar that some increase while others decrease; it's especially counter-intuitive that taxies 

go down while VOC goes up. 

Observation 11: it is unclear where NH70'A selected the unit values fo monetize changes in 

PM-re/ated criTeria pollutant emissions (aka, benefiT per ton values- HPJ). 

NHTSA provides the following table for Emission Damage Costs: 

Emission Damage Costs {$/metric-ton) 

Carbon Monoxide 

Volatile Organic Compounds 2,000 

Nitrogen Oxides 8,200 

Particulate Matter 371,100 

Sulfur DiOXIde 48,000 

EPA Feb 28, 2018 findings on rcyie\Y of NHTSA Jan-22, 201 R CAFE model runs 

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Methane 

Nitrous oxide 

They appear to be outdated (e.g., they include a unit value for VOCs, which EPA no longer 

monetizes due to uncertainty in the underlying air quality modeling); and they don't appear to account 

for how BPT values increase over time. 

Ow!5;tion1nfbrmation Reauest 15. What i/•: the source for these emi.•J"siom"- damage CO.'>'fs. and does the 

CAFE model change the values over time? 

EPA Feb 28.2018 findings on reyiew ofNHTSA Jan-22, 2018 CAFE model runs 

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r. 

Meeting with Office of Management and Budget/OIRA 

4/16/2018 
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35314.587

• Overview 

• Review of CAFE model Safety Analysis 

• Review of CAFE model Realism 

• Review of CAFE representation of GHG program 

• Summary of CAFE model results 'cost walk' • Contributions of the identified issues to large overestimation in program costs 

• Other observations 

Performance 

Effectiveness 

Battery costs and sizing 

• Appendix: Update on LDV Rebound 
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1 

• EPA began reviewing CAFE model in late January 

• Shared very initial observations with OMB on February 9, raising 

many significant concerns, and requesting: 

(1) technology descriptions for a handful of key technologies 

(2) description of components included in net benefits summary 

(3) model code 

• EPA has received neither of the requested items 

• DOT provided a "GHG" version of the CAFE Model March 8 

• Intent is to properly model the EPA C02 program provisions 

• EPA discovered on March 31 model had a built-in "expired" date. 

• EPA requested on April 2 a workable version of the model 

• There has been no response to EPA request from DOT 
640 


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2 

• EPA analysis to date shows significant and fundamental flaws in CAFE model 

(both the CAFE version and the "GHG version") 

These flaws make the CAFE model unusable in current form for policy analysis and for assessing the 

appropriate level of the CAFE or GHG standards 

• DOT has provided OMB draft preamble and RIA Chapter assessments for the 

upcoming CAFE and GHG NPRM 

The underlying technical basis for the Folicy decisions and the proposed standards is the CAFE model, 

which has significant and fundamenta flaws that must be addressed before being used for informing 

policy 

EPA will not be providing comments on the draft material, as the underlying basis (CAFE model) is 

flawed, and thus comments are of no value until the technical basis is fixed 

• DOT has drafted preamble language in which DOT repeatedly speaks for the EPA 

Administrator 

DOT speaks for the EPA Administrator's views on the apRropriate level of the EPA standard, EPA's 

interpretation of the Clean Air Act, EPA's views on what factors are relevant in determining EPA's 

program design and the EPA standards 

EPA will be drafting the EPA Administrators views for the upcoming rulemaking, and we will not be 

starting from the DOT draft text 
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• Total fatalities are highly 

correlated with total VMT 

• CAFE model improperly 

estimates the VMT impact 

the Augural standards 

(following slides) 

• The safety metric of 

'fatalities per mile'1 is 

unaffected by anomalies in 

VMT projection, and is 

therefore a more reliable 

metric of safety for this 

review 
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The augural standards provide an overall 

safety benefit, relative to flat standards 

Mass reduction provides a safety benefit 

due to the greater amount of weight 

removed from larger vehicles (relative to 

smaller vehicles) and the resulting 

improvement in crash compatibility 

Any detriment due to delayed scrappage 

is more than offset by the benefit of 

mass reduction 

The benefit of mass reduction extends 

perpetually into the future, while the 

detriment of delayed scrappage becomes 

smaller over time 

scrappage mass 

Safety benefit of mass reduction (6_1b} 

0 Net Safety Effect (w/o Rebound) 
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The use of a 20% rebound value in 

the CAFE model reduces the safety 

detriment of delayed scrappage 

As in the case of excluding 

rebound, the auguralstandards 

provide an overall safety benefit, 

relative to flat standards when 

rebound is included 

mass 
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Real-world ; The total number of 

registered vehicles would not change 

significantly as a result of consumer 

decisions to retain used vehicles 

longer instead of purchasing new 

vehicles. 

CAFE model implementation: The 

use of the scrappage model produces 

a 15-20% increase in the total fleet 

size. The 2016 fleet increases by 26 

million vehicles, and the 2030 fleet 

increases by 46 million 
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Real-world :The total number of vehicle 

miles travelled (VMT) would not change 

significantly as a result of consumer decisions 

to retain used vehicles longer instead of 

purchasing new vehicles. 

CAFE model implementation: The use of the 

scrappage model produces a 10-15% 

increase in total VMT. 

The 2016 VMT increases by 239 billion miles, 

and the 2030 VMT increases by 302 billion 

miles 

Implication of this Error: The unexplained 

VMT disconnect is clearly wrong, and is 

driving incorrect fatality estimates 1. 

1Because of the disconnect with the vehicles sales 

projections (DFS mode!), the use of the scrappage mode! 

causes an inappropriate increase in the fatalities impact of 

the Augural standards, and an inappropriate 

underestimation of the fuel savings and emissions 

benefits. 
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Real-world :Manufacturers will consider 

future vehicle model plans and compliance 

strategy when introducing technology, 

transferring credits from year-to-year as 

needed and avoiding significant overcompliance, on average. 

CAFE model implementation: Technology 

in excess of what is necessary for 

compliance is applied in nearly every year, 

particularly prior to MY2024 when lead 

time is more limited. This sustained and 

significant overcompliance projected by 

the CAFE model implies that the industry 

will not make use of the large quantity of 

banked credits, or year-to-year credit 

transfer provisions. 

Implication of this overcompliance: 

Significant overestimation in industry 

costs. CAFE model is not properly 

accounting for banked credits in GHG 

program, which firms clearly do today. 

Note: The 'Achieved' emissions represented m the CAFE mod~ mdudetailptpe C02, AC emdency 

and leak~ge cred!ts, and off.cyde credlh B.:ml<~d credJts ore not mdud~d m thf' 'Ach•~ved' val uP 
647 


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Real-world :Manufacturers will manage 

their credit banks to even out 

compliance status given staggered 

introduction of technology. It is unlikely 

that manufactures will consistently add 

excess technology in the earlier years in 

order to maintain a large credit bank into 

the future. 

CAFE model implementation: 

Manufacturers are projected to strongly 

prioritize the carry-forward of credits 

into future years, relative to within-year 

transfers between car and truck fleets. 

The CAFE model projects almost no 

within-year transfers between car and 

truck fleets prior to MY2021 

Implication of unrealistic credit carryforward: Overestimation of GHG 

standards cost. CAFE model not taking 

advantage of car-truck credit transfer, 

which firms are clearly doing today 

of 

Credtt famed Yea; 
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CAFE model implementation: Over 

80% ofthe strong hybrid packages 

applied in the Augural case include 

turbo-downsized engines (11.5% of 

14% fleet-wide strong-hybrid 

penetration) 
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Real-world :The effectiveness benefits of 

strong hybridization (P2HEV and PSHEV) is 

dependent on the base engine technology to 

which the technology is applied. !n typical 

applications, manufacturers will pair strong 

hybridization with efficient, but low cost 

Atkinson cycle engines. 

CAFE model implementation: Due to the CAFE 

model's pre-defined technology pathways, 

strong hybridization is applied almost 

exclusively to turbocharged downsized engines, 

resulting in strong hybrid packages that are 

significantly higher costs and less effective than 

the vast majority of real-world 

implementations. 

Implication of strict technology pathways: 

Overestimation of GHG standards cost. CAFE 

model is forcing combinations of technologies 

that are highly cost-ineffective. 
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Real-world: Plug-in vehicles (PEV's) 

provide significant compliance 

benefits due to low or zero emissions 

and multiplier incentives. Mainstream 

manufacturers will likely continue 

adopt PEV's in a strategic fashion, 

without drastically exceeding the 

volumes needed for compliance 

CAFE model implementation: PEV 

technology is applied to platforms in 

'all-or-nothing' manner, resulting in an 

inability to track the standards closely, 

and producing overcompliance levels 

ranging from moderate to very high. 

CASE Study: Single vehicle manufacturer 

Achieved~ CAFE model 

(GHG ver.) 
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Real-world : Manufactures will 

apply technology packages that are 

within a reasonable cost range of 

the most cost-effective 

technologies (e.g. well within 

$2,000) 

CAFE model implementation: Using 

the NHTSA inputs, as provided, 

manufacturers are projected to 

apply, on average, technology 

packages that are $1,000-$2,000 

more costly than the most costeffective packages. 

consideration 

$7,000 

$5,000 

$4,000 

$3,000 

$2.000 

$1,000 

So 

0% 10% 2D% 30% 40% 

Effective11ess 
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• The cost of batteries for hybrid and plug-in vehicles is in most cases significantly higher 

than expected based on the most recent projections derived from DOE's BatPaC model 

and battery sizes are substantially larger than observed in the current LD fleet. 
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In the modeling for CAFE, engines 

are re-sized in two circumstances: 

o When constructing an initial 

conventional or hybrid package. 

o When applying over 7.5% mass 

reduction. 

However, applying lower levels of 

mass reduction, advanced 

transmissions, or other load 

reduction will increase acceleration 

performance. 

This additional benefit is not 

accounted for in the CAFE model. Target 0-60 time for this class is 9.0 seconds. Actual DOT 

Autonomie simulations show 0-60 accelerations much better 

than the target for many technology packages. 
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Program element CAFE model implementation issues 

CAFE model only adjusts the fleet average emissions to account for the multiplier values. 

BEV and PHEV Advanced Vehicle Technology For proper accounting of credits, the multipliers must also be incorporated into the GHG 

Multipliers target. 

Accounting for plug~in vehicle (PEV) upstream CAFE model does not have any inputs or apparent mechanism for accounting for the 

emissions upstream emissions of PEVs, as required by the EPA regulations 

The input files, as received from NHTSA, assume that all manufacturers earn a constant 

credit from AC efficiency and leakage in a !I years. However, the inputs for the standard 

A/C credits (efficiency and leakage) footprint curves are adjusted for AC efficiency and leakage that increases over time. As a 

result, the standards defined in the CAFE model, as received, are less stringent than the 

actual standards. 

Unlimited transfer is allowed within a CAFE model does not realistically account for car-truck credit transfers within a 

manufacturer between car and truck fleets manufacturer (as described in earlier slide.) This likely contributes to the model's overall 

overcomp!iance, and the associated increase in costs. 

Off-cycle Emission Credit caps 

CAFE model inappropriately applies the credit cap (lOg/mi) separately to each 

manufacturer's car and truck fleets. The GHG regulations specify that the cap is applied to 

a manufacturer's combined fleet. 
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• Specification of redesign cycles 

and year-by-year compliance 

considerations have a minimal 

effect on the projected 2025 

compliance costs in the CAFE 

model. 

• Differences between NHTSA 

and EPA cost projections are 

the result of modeling inputs, 

constraints and anomalies 

within the CAFE model (see 

other EPA slides). 

vs. 

$2,500 

CAFE Yeur"by~year {Js 

received) 

CAFE long-range 

Strategic 

OMEGA Long* range 

Strateglc 
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CAFE runs 

[l;\(ill[jj) ~~ ~~[E ~@J[F(J@J W@[fo~ 

"As received" from NTHSA which 

uses: 

Augural standards as the 

reference case 

Flat 2020 forward as the 

alternative case 

NHTSA/Volpe effort at 

characterizing the A/C provisions 

of the GHG standards 

Engine effectiveness estimates 

are compared against targets 

incorporating A/C efficiency 

expectations 

A/C leakage values not properly 

reflected 

EPA 
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EPA's 2022-2025 FRM targets as 

the reference case 

EPA's 2021 and later FRM 

targets as the alternative case 

EPA characterization of the A/C 

provisions of the GHG standards 

Engine effectiveness estimates 

are appropriately applied to 2-

cycle targets that ignore 

influence of A/C efficiency 

expectations 

A/C leakage values corrected 

EPA 
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Use of EPA's baseline fleet 

which incorporates a higher 

level of technology 

Use of EPA's cost input 

estimates including more recent 

BatPaC results 

Use of EPA's ALPHA modeling of 

effectiveness, but with NHTSA's 

engine resizing approach which 

does not maintain performance 

neutrality 

EPA 
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• Use of EPA's baseline fleet 

as in the "C" set 

Use of EPA's cost inputs as 

in the "C" set 

Use of EPA's ALPHA 

modeling of effectiveness, 

maintaining performance 

neutrality 

EPA 
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CAFE runs 

~Qj][Ji) [g~ ~~[f[g ~@J[HJ@J \W@Ifo» 

Full use of ALPHA and 

OMEGA 

EPA 
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EPA has a/sa identified specific techna/agy effectiveness abservatians that are 

inconsistent with expected perjarmance.(examples provided belaw) 

Observations of Transmission Effectiveness 

Consistent values could indicate lack of resolution in 

modeling (single values being applied broadly). 

Additional technology does not follow a logical 

progression of improvement. 

Observations of Stop1Start Fffcctivcncss 

Effectiveness of stop/start should be consistent 

independent of the transmission (for a given engine). 

Stop/start can never produce a negative effectiveness. 
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From EPA's March pt summary 

status report of CAFE model 

review: 

The use of EPA input values in the CAFE 

model which update and/or correct the 

anomalous inputs used in the NTHSAreported runs from January 22 has a 

significant impact on several key 

output results: 

Relative to the Aug ural Standards, 

technology cost savings of Alternative 

standards are reduced and fatalities 

increase. 
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Appendix: 

Update on LDV Rebound 

4/16/2018 
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What is LDV Rebound ... and Why Care? 

• Buy a more fuel-efficient car, drive more because it's cheaper to 

drive; this is what is typically meant by the LDV rebound effect 

• More driving means: 

• Less energy savings/more greenhouse gas emissions 

• Increase in consumer benefits (i.e., you can drive more, since 

it is cheaper to use your vehicle) 

• More air pollution (NOx, PM, etc.)/congestion/refueling costs 

• Large number of academic papers have attempted to estimate 

the LDV rebound effect 

• Early studies, starting in 1970s, focused mainly on oil price 

shocks, gasoline taxes 

• Over the last decade, 12 relevant U.S. studies quantified 

rebound effect/6 international studies 

• Most studies look at how drivers respond to fuel costs/fuel 

prices (not actual fuel efficiency of vehicles) 23 
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Types of Rebound Studies 

• Aggregate, Time Series Studies 

• Estimate rebound effect based upon national LDV travel patterns over time; in U.S., 

data is available at the national/state level 

• Able to account for trends in key variables influencing rebound (e.g., fuel 

costs/income/congestion etc.) over time 

• Studies that rely on a system of equations (e.g., travel, size of vehicle stock, fuel 

efficiency, congestion) have some of the best capabilities of controlling for variables 

causing rebound effect 

• U.S. studies provide "ready-made" national rebound estimates for LDV rulemakings 

• Per Vehicle Studies (single year or time series) 

• Most studies use odometer readings from smog check data/individual vehicles/state 

level; most accurate measure of travel 

• Data rich; can address some issues of heterogeneity: how rebound varies with some 

characteristics of vehicles (e.g., age); households (e.g., income); geography (e.g., 

residential density) 

• Results from individual states are unlikely to be representative for national, U.S. 

rebound estimates 
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Types of Rebound Studies 

• Household Studies (single year or time series) 

• Most studies use cross sectional, single year household survey data 

• Like Per Vehicle studies, data rich; can address issues about how characteristics of 

households/vehicles affect rebound (e.g., heterogeneity) 

• Tend to see a wider range/higher rebound estimates than aggregate studies 

• Even well executed, single year studies have difficulty in controlling for factors 

influencing rebound effect (e.g., limited to looking at one year effect) 

• Most recent studies based upon National Household Travel Survey (NHTS) (2009) 

• Time Period: unique set of circumstances with the onset of the Great Recession 

• Fuel prices fluctuated dramatically from $3.30/gallon in March 2008 to $4.10 

gallon in summer of 2008, followed by a decline to ~$1.70/gallon in the late 

2008/early 2009 period 

• U.S. GOP fell1% growth rate to -7.5% annualized growth rate 

• U.S. unemployment increased from 4% to 10% 
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EPA Selection Criteria for Rebound Estimates 

• There are a wide variety of estimates of the rebound effect, in part due to the many 

different methodologies/data sources used to try to quantify this impact 

• Given the broad range of values, EPA believes it is important to critically evaluate which 

studies are most likely to be reflective of the rebound effect of future GHG/fuel economy 

standards 

• In other words, we can't just take the "average" rebound estimates from literature 

• Geosraphic/Timespan relevance: Priority given to U.S. vs. state/international studies; 

stud1es that can project based upon U.S. demographic/land use patterns in LDV 

rulemakings timeframe (e.g., 2020-2040) 

• Model relevance: 

• Priority given to studies that measure driving response to changes in fuel economy, the variable of 

interest, rather than to changes in fuel price( costs 

• Priority given to studies that measure driving response to increases to fuel economy (i.e. 

"asymmetry") over studies that assume uniform response to increases/decreases 

• Time period of study: Priority given to recent rebound studies (in the last decade) 

• Priority given to studies with strong statistical/methodological basis 

• Data source type: Priority given to studies based upon time series data vs. single-year 

studies 
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Recent Rebound Studies 

-Aggregate; U.S. IIIII- Per Vehicle; U.S. Household Studies; U.S. International 32 
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Summary 

• There are a wide variety of estimates of the rebound effect, in part due to 

the many different methodologies/data sources used to try to quantify 

this impact 

• Within the existing literature, aggregate, time series studies of the U.S. 

provide the most reliable estimates of the rebound effect for use in LDV 

rulemakings 

• Results from individual states are unlikely to be representative of national, U.S. 

rebound estimates 

• Even well executed U.S. studies using single year data, particularly from the NHTS 

2009 time period with the onset of the Great Recession, have difficulties in 

providing reliable estimates of the U.S. rebound effect 

• Recent studies using the same data set, NHTS (2009), find rebound estimates that range 

from 9-40% 

• Even well executed international studies do not provide reliable estimates of the 

U.S. rebound effect1 as the U.S. has different travel patterns from other countries 

due to a variety of ractors 

• Recent U.S. aggregate, time series studies find a rebound effect lower 

than 20% 
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GlobaiAutomakers 0 A~ton Martin .. Aptw " O.osch " Uyton Q L1~·mo " t·em:Hl "' Honda 

"' !!IUZU ,. Kla ~ M<Hehltl "' Mcl<lren " NXP " Nis.s.1n 

.,. Strius XM " Subaru " $qzuk; ~ Toyota 

ATIACHMENT A: DETAILS REGARDING THE COMMENTS FROM THE 

ASSOCIATION OF GLOBAL AUTO MAKERS ON THE PROPOSED SAFE VEHICLES 

RULE 

Table of Contents 

ATIACHMENT A: DETAILS REGARDING THE COMMENTS FROM THE ASSOCIATION OF GLOBAL 

AUTOMAKERS ON THE PROPOSED SAFE VEHICLES RULE & TABLE OF CONTENTS ......................................... l 

Overview ...................................................................................................................................................... 3 

11. History and Support of One National Program ......................................................................................... S 

A. History and Evolution of One National Program .................................................................................. S 

B. Strong Support for ONP ...........................................................•.............................................................. B 

Ill. Agencies' Discretion to Set Standards under Their Respective Statutory Criteria ............................. 9 

IV. The Final EPA and NHTSA Regulations Should Set Standards that Provide for Meaningful YearOver-Year Improvements in Fuel Economy and GHG Emissions Reductions ................................................ ll 

A. Industry Supports Standards that Increase Over Time and that Are Set at a Level that Meets 

Customer Needs and Technology Capabilities ............................................................................................ 11 

B. Accurate Technical Analysis and Modeling Considerations are Critical to Final Rulemaking ......... 11 

1. Updated Volpe Modeling Using the Most Up-to-Date Data .......................................................... 12 

2. Fuel Economy Increases and GHG Emissions Reductions are Feasible ......................................... 14 

c. A Steady Increase in Standards is Economically Practicable and Supports U.S. Employment ........ 16 

1. Increasing Standards Supports Employment in the Auto Industry ............................................... 16 

2. Incrementally Increasing Standards Support Existing and Planned Investments ........................ 17 

3. Manufacturers Compete in a Global Market .................................................................................. 19 

4. Consumer Acceptance and Economic Practicability Support Increased Standards ..................... 21 

s. Safety Considerations Do Not Support Freezing the Standards .................................................... 22 

V. Flexible Compliance Pathways Need to be Part of the Rulemaking ...................................................... 32 

A. Programmatic Elements that lncentivize Investment in Advanced Technologies ........................... 32 

B. Credit Averaging, Banking and Trading that Facilitate Early Compliance ......................................... 3S 

1. Extend GHG Credits .......................................................................................................................... 3S 

2. Transfer of EPCA Credits ................................................................................................................... 3S 

3. Trading of EPCA Credits .................................................................................................................... 36 

C. The Importance of Off-Cycle and Air Conditioner Efficiency Technologies ...................................... 36 

1. Defining a Time Limit to Address Applications ............................................................................... 39 

AuodlttonorGlobatAutomakert,II\C. 10SOK5tfeet.NW,Sutl:e650 'W.lhfngton..OClOOOt 1; 202.650.S555 
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GlobalAutomakers 0 

2. Expediting Approval for Applications and Adding to the Pick list ................................................ 40 

3. Establishing a Supplier Process to Apply for Off-Cycle Credits ............................•......................... 41 

4. Streamlining the Data or Testing Requirement Process .....................•.......................................... 42 

5. Eliminate the 10 g/mi Fleet Cap ...................................................................................................... 42 

6. Eliminate Regulatory Language that Prevents Off-Cycle Technology Credits for Advanced Safety 

Technologies .............................................................................................................................................. 42 

0. The Importance of Maintaining Non-co, Emissions in the EPA Program ........................................ 43 

E. Treatment of ElO Test Fuel for GHG Testing ...................................................................................... 44 

VI. Additional Issues for Comment ............................................................................................................ 48 

A. Standardized Template for Reporting ................................................................................................. 48 

B. Application of Fuel Savings Adjustment Factors to Credits Carried Forward or Sack Beginning in 

MY 2021 ......................................................................................................................................................... 49 

C. Vehicle Miles Traveled Estimate Alignment for Both Agencies ......................................................... 49 

D. looking Beyond 2025 ........................................................................................................................... 49 

VII. Asserting EPCA Preemption is not the Best Way to Preserve One National Program ..................... 50 

VIII. Global Automakers Does Not Support the Revocation of California's Waiver for its Existing 

Regulatory Programs While "Deemed to Comply" Remains in Place ............................................................ 53 

A. GHG Waiver ........................................................................................................................................... 53 

B. ZEV Waiver .......................................................................................... , ................................................. 55 

IX. The Federal Agencies Should Maintain One National Program Through a Negotiated Outcome 

with California .................................................................................................................................................... 56 

A. A Bifurcated System Makes Fleet Management More Oifficult.. ...................................................... S7 

B. The Federal Agencies Should Consider How to Address ZEV Requirements in the Context of a 

National Program .......................................................................................................................................... 57 

X. Small Volume Manufacturers ................................................................................................................... GO 

XI. Conclusion ............................................................................................................................................. 63 

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I. Overview 

The following contains details to support the comments submitted by the Association of Global 

Auto makers (Global Auto makers) on the joint Notice of Proposed Rulemaking (NPRM) issued by the 

National Highway Traffic Safety Administration (NHTSA) and the U.S. Environmental Protection Agency 

(EPA), entitled "Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger Cars 

and Light Trucks" (SAFE Vehicles NPRM) (83 Fed. Reg. 42986, August 24, 2018]. This NPRM is an 

important step in maintaining, improving, and strengthening the "One National Program" (ONP) for 

motor vehicle fuel economy and greenhouse gas (GHG) emissions and for providing a public and 

transparent process for input on the regulations. 

The standards as affirmed by the previous Administration in its waning days clearly needed to be 

revised. The revisions should provide for continuous improvements, flexible mechanisms for compliance 

in improving fuel economy and reducing GHG emissions, and the maintenance of ONP for regulating fuel 

efficiency in the most efficient and effective manner possible. 

There are a number of factors that the agencies must fully examine in order to determine both the 

appropriate stringency of the standards out to model year (MY) 2026 and improvements to other 

elements of the regulatory program. We do not believe that any of the Alternatives set forth in the 

NPRM, or the current augural standards, offer an acceptable pathway for meaningful fuel economy 

improvements and GHG emissions reductions in a unified national program. Rather, a final rule that 

includes the following elements would establish feasible and reasonable standards, consistent with both 

the Energy Policy and Conservation Act (EPCA) and the Clean Air Act (CAA), and support a continuation 

of ONP. These items would also encourage ongoing innovation and investment in the auto industry 

resulting in safer, more fuel-efficient vehicles that meet consumers' needs. We therefore request that 

the final rule address the following three items: 

1. The regulations should provide for meaningful year-over-year fuel economy improvements 

and GHG emissions reductions through MY 2026 and provide for a continuation of a unified 

and coordinated ONP with California. We do not believe that any of the proposed Alternatives 

would lead to this result, although we agree that the current EPA and NHTSA augural standards 

are not appropriate and must be adjusted to account for today's market realities and technology 

trends.lndustry can thrive under a level regulatory playing field that allows for a smart approach 

to competition and efficiency improvements. 

2. There are a number of ways to address the stringency of the standards. Global Automakers 

believes that the best policy outcome would provide for a combination of meaningful yearover-year Improvements In chassis-based efficiency coupled with a package of programmatic 

elements. This approach would provide automakers with flexible compliance options to 

produce a wide range of vehicles meeting their respective customers' needs, ease 

manufacturer compliance burdens, and support investments in advanced fuel-saving 

technologies. This package should consist of the following items (though the specific parameters 

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GlobalAutomakers Q 

of some of these items would need to be determined in conjunction with the appropriate 

numeric stringency of the standards): 

Multipliers for advanced-technology vehicles-i.e., battery electric vehicles (BEV), plugin hybrid electric vehicles (PHEVs) and fuel cell electric vehicles (FCEVs), extended 

through MY 2026. 

o The values of the multipliers should be fixed at specific levels depending on the 

stringency of the standard. 

o In order to prevent a dilution of the benefits of the program and prevent a 

windfall to certain automakers, the impact of these multipliers should be 

subject to a manufacturer's fleetwide cap on a model year by model year basis; 

the appropriate level of the cap would depend on the stringency level of the 

standards. 

Upstream emissions for BEVs, FCEVs, and the electric portion of use from PHEVs should 

be permanently set to zero grams per mile (0 g/mi). 

Strong HEVs should receive credit amounting to 20 g/mi credit for light-duty trucks 

(LOT), with no sales threshold minimum and no performance requirement. Agencies 

should consider a smaller incentive for passenger cars as well. 

• A one-time expiration date extension through MY 2026 for GHG credits earned in 

previous years; the agencies should determine the applicable model years eligible for 

the extended carry-forward. 

The off-cycle credit cap should be raised to 15 g/mi, in recognition that these important, 

innovative fuel-saving technologies have an important compliance role, result in realworld GHG emission benefits, and should be encouraged to expand in coming years. 

The off-cycle "pick list" should be updated with the most recent data conceming the 

values of efficiency benefits from these fuel-saving technologies. Technologies that 

should be added to the list include, but are not limited, to: advanced A/C compressor, 

high efficiency alternator, and variable crankcase suction valve compressor. 

There should be no GHG curve adjustments or GHG test procedure adjustments based 

on any changes to ElO test fuel. 

Improvements should be made to the off-cycle program, including: 

o Blanket approval for applications using specific technologies and calculation and 

measurement procedures; 

o Allow suppliers to apply for provisional credit at the system or "pre-vehicle" 

level; 

o Accept the European Union's. eco-innovations process; 

o Pre-approve calculations and measurements prior to demonstration; and 

o Provide general regulatory fixes that are critical to improving the efficacy of this 

program. 

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Air conditioning refrigerant leakage and nitrous oxide and methane emissions standards 

should be included for compliance with the EPA standards for all MYs, even if it means a 

divergence from the NHTSA standards. This is important to maintaining regulatory 

flexibility through real GHG emission reductions and would prevent the potential for 

additional bifurcated, separate programs at the state level. 

Global Automakers believes this package of compliance flexibilities is critical to the national 

program, because it promotes technology investment in the industry (and represents a large 

portion of industry investment that would otherwise be stranded without these provisions), 

provides real fuel savings benefits for the consumer and the vehicles, and can also encourage 

innovation in the industry. Further, it provides manufacturers with a diverse range of 

compliance options to select the best, most cost effective technology approach for each 

company's vehicles, thereby also providing support for a diverse range of technologies. 

3. The Industry needs a coordinated set of standards between the NHTSA, EPA and California Air 

Resources Board (CARB) so manufacturers can allocate resources to investment in new and 

innovative technologies and jobs, Instead of efforts to comply with inconsistent standards. 

This important policy goal can be achieved without resorting to costly and uncertain litigation to 

either assert preemption under EPCA or to revoke California's waiver under the CAA. Therefore, 

Global Au tom akers emphasizes that maintaining ONP will require CARB's participation, along 

with EPA and NHTSA, and compromise. Any action that maintains ONP obviates the need to 

address California's authority under EPCA preemption or the CAA waiver but achieves the same 

goal of providing regulatory certainty and reducing regulatory overlap. 

Global Automakers recommends that the agencies remain committed to the fundamental goal of the 

ONP- a harmonized set of regulations that improve fuel economy and reduce GHG emissions, that are 

aligned (but not necessarily 100% equivalent in terms of miles per gallon (mpg) target), are costeffective, and account for the needs of customers. Fundamental to this goal is a data-driven and 

objective rulemaking process in which EPA, NHTSA, and CARB are fully engaged. 

II. History and Support of One National Program 

A. History and Evolution of One National Program 

The U.S. Department ofTransportation's Corporate Average Fuel Economy (CAFE) program was first 

enacted by Congress in 1975 in response to the Organization of Petroleum Exporting Countries oil 

embargo.' From 1975 until2010, motor vehicle fuel economy was regulated solely by NHTSA through 

the Corporate Average Fuel Economy (CAFE) program. In the early 2000's, CARB took action to regulate 

GHG emissions- a metric virtually synonymous with fuel economy -leading the way for 11 other states 

and the District of Columbia to also adopt california's GHG regulations. After the Supreme Court's 2007 

1 Energy Policy and Conservation Act of 1975, Pub. L No. 94·163, 89 Stat. 871 (1975). 

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GlobaiAutomakers 0 

decision in Massachusetts v. EPA.' EPA moved to regulate GHG emissions from vehicles as well.' 

Because Califomia had set its own emissions standards, the auto industry faced potentially conflicting 

regulations governing the same aspects of fuel efficiency and GHG emissions reduction under three 

separate regulated programs. 

In 2009, the automobile industry and regulators from EPA, NHTSA and CARB reached a historic 

agreement to establish the ONP to address motor vehicle fuel economy and GHG emissions in a 

coordinated and harmonized fashion that allowed for continual improvements while preserving 

investments made by industry. NHTSA, EPA and CARB worked together with manufacturers and other 

stakeholders to create ONP as a way to address the concern that different standards at the federal and 

state levels would waste resources, add unnecessary friction in the system, discourage innovation, and 

diminish the benefits of all ofthe standards. As one of the Obama Administration's representatives 

correctly observed when describing the ONP adopted in 2009: 

[T)here was a significant likelihood that the regulators, acting independently, would produce 

inconsistent standards with different levels of stringency, along with duplicative or confusing 

compliance programs and incompatible enforcement policies, which could raise the costs to 

industry, and compromise the potential benefits of the new standards for consumers and the 

public.' 

This commitment resulted in joint fuel economy and GHG emission standards promulgated by NHTSA 

and EPA in 2010, for MY 2012 through 2016. 

For its part, CARB amended its GHG emission regulations to include a "deemed-to-comply" provision 

whereby auto makers could be in compliance with its state MY 2012·2016 GHG emission standards by 

complying with EPA's national GHG regulations.' CARB's reason for doing so was premised on a greater 

level of GHG emission reductions that could be achieved by a national program compared to a state· 

based program that encompassed only California and 12 other states. 

The commitment to the ONP was renewed in 2011 when the agencies proposed standards covering MY 

2017 through 2025, which were then finalized in 2012.6 Again, EPA and NHTSA jointly issued a proposed 

rule and a final rule, to ensure that their respective standards were aligned with each other. Because 

NHTSA is statutorily limited to setting standards for no more than five years at a time, it published 

"augural" standards for MY 2022·2025, targeting what the standards could be if the agencies' 

technology, cost and market predictions-the basis for setting the standards-proved mostly accurate. 

2 549 u.s. 497 (2007). 3 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 

74 Fed. Reg. 66,496 (Dec. 15, 2009). 4 J. Freeman, The Obama Administration's National Auto Policy: Lessons from the "Car Deal." 35 Harv. Env. Law 

Review 343, (2011). p. 358. 5 13 C.C.R. § 1961.3{c). 6 77 Fed. Reg. 62,624 (Oct. 15, 2012). 

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GlobalAutomakers 0 

EPA's standards through MY 2025 were finalized in the regulations, and CARB once again adopted a 

"deemed-to-comply" provision to allow federal compliance in place of state-based compliance.' 

The Final Rule also included a Midterm Evaluation, which was fundamental to all parties' commitment 

and agreement to the standards through MY 2025; the Midterm Evaluation was designed as a check 

point in the process to reassess assumptions and predictions made more than ten years in the future, 

and to determine whether adjustments to the standards would be needed.' The timing for the Midterm 

Evaluation was set so that the agencies could incorporate the latest industry and market data, and align 

any potential EPA regulatory changes with the necessary NHTSA rulemaking process, keeping the 

agencies once again in close coordination. 

In the Draft Technical Assessment Report (Draft TAR), the agencies summarized the benefits of the ONP 

as follows: 

Under the National Program, consumers continue to have a full range of vehicle choices that meet 

their needs, and, through coordination with the California standards, automakers can build a single 

fleet of vehicles across the U.S. that satisfies all GHG/CAFE requirements.' 

This description captures the foundation upon which ONP was built; the realization of this goal will 

enable manufacturers to maximize economies of scale, deliver efficient vehicles at lower cost and 

provide environmental benefits across the nation. 

Based on statements in the preamble to the 2012 rule, those made by EPA personnel, and on the 

agency's website, a proposed rule and a proposed determination were expected in the summer of 

2017,10 and a final NHTSA rule and EPA determination were expected no later than Apri11, 2018.11 

However, shortly after the 2016 election, the outgoing EPA Administrator determined in January 2017 

that the standards should be continued without changes. 12 That decision was rushed, issued only a few 

7 13 C.C.R. § 1961.3(c). 

'Critical to the Midterm Evaluation was the recognition that the MY 2025 standards were a best estimate of future 

capabilities and that the standards could change, rather than must be affirmed. 

'U.S. EPA OTAQ, NHTSA and CARB, Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle 

Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025. 

Executive Summary, (2016). p. ES-1. 10 See https:Uwww .epa .gov /sites/production /files/20 16-10/docu men ts/gru nd le r-sae-naipc-2015-09-17-

presentation.pdf at 24 (indicating that EPA Proposed Determination and NHTSA notice of proposed rulemaking 

would be released mid-2017 and the final determination made in April 2018). 11 /d. See also 2012 Final Rule, 77 Fed. Reg. at 62,784. 

12 However, the Administrator acknowledges that while the standards may be feasible at the current levels, that: 

... several commenters spoke to the need for additional incentives orflexibilities in the out years of 

the program including incentives that could continue to help promote the market for very 

advanced technologies, such as electric vehicles. My determination, based on the record before 

me, is that the 2022-2025 standards ... [are) appropriate under section 202 and do not need to be 

revised. This conclusion, however, neither precludes nor prejudices the possibility of o future 

rulemoking to provide oddltfonallncentives far very clean technologies or flexlblllties that could 

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weeks after receiving thousands of public comments on the proposed determination, and leaving 

necessary adjustments based on changing market conditions unaddressed. The April 2018 Revised 

Determination was based on updated data and information and demonstrated that the current MY 

2022-2025 standards are no longer appropriate in light of changed market realities, including: 

Changing sales volumes (peak sales of 18.1 million in 2016 to 17 million in 2017); 

Smaller-than-expected fuel efficiency gains in MY 2016 and MY 2017; 

• Changes in the car and truck fleet splits (in 2012, the projected car/truck split was 67%/33% for 

MY 2025, but the current car/truck split has changed significantly to 48.5% cars/51.5% trucks); 

and 

Lower than expected gasoline prices (in 2012, EIA reference price forecast of $3.86/gallon for 

gasoline in 2025 (in 2010 dollars), and now the projected price is $2.92/gallon (in 2016 dollars). 

Today's new proposed rulemaking offers the opportunity to work on a transparent next step in a 

coordinated process that considers safety, the need to conserve oil and reduce GHG emissions, and 

supporting a strong automotive market. 

B. Strong Support for ONP 

Global Auto makers supports the ONP to regulate vehicle GHG emissions and fuel economy and strongly 

wants to see it continued."The ONP represents smart and strong federal policy to provide a consistent 

and certain path for ongoing improvements and reduces regulatory burden, consistent with this 

Administration's regulatory program goals. While the ONP has not been perfect in its implementation, 

today's Administration has an opportunity to get it right. Further, the possibility of three separate 

regulatory programs, resulting in multiple jurisdictions for compliance, raises concerns that auto makers 

might have to manufacture different versions of vehicles and manage fleets In each jurisdiction to meet 

the differing standards throughout the country. 

While the rationale for ONP remains strong, the promise of it has not been fully met. Under the current 

regulations, it is possible for a manufacturer's fleet to comply with one set of federal standards but not 

the other. Further, the standards lack proper alignment, unnecessarily increasing complexity and 

regulatory burden. Efforts to harmonize the programs under ONP would help lower costs and enable 

greater environmental benefits than separate state-by-state programs. 

There are several challenges in the event of a bifurcated program where NHTSA, EPA and CARB are not 

aligned, including driving up costs to consumers due to the loss of economies of scale, the excess 

administrative or transactional costs to comply with two programs, and challenges with vehicle sales 

auiJt manufocturers with Ianger term planning without rompramiJing the eflectiveneu af the 

current program. The EPA is always open to further dialogue .... (emphaJ/s added) 

This text alone suggests that perhaps the standards alone were insufficient through MY 2025. "EPA Administrator's 

signed Cover Letter to the Final Determination (January 12, 2017)", https://www.epa.gov/regulations-emissionsvehicles-and-engines/epa-administrators-signed-cover·letter·final. 

u From Global Automakers comments to the Midterm Evaluation: "NHTSA and California need to work together to 

maintain the One National Program as all parties committed to at its inception." 

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distribution networks (interstate vehicle transfers, for instance). There is also the potential for costly 

and protracted litigation, which results in the highest level of uncertainty and hardship for industry and 

likely results in automakers having to meet the highest standard in the interim period while any 

litigation is ongoing. 

It is our hope to reach a solution where California and the federal government agree to a program that 

avoids protracted litigation and uncertainty. A collaborative and open process with all parties is critical 

to understanding all of the issues and working towards a managed solution that takes into account 

safety, fuel efficiency, the consumer and market realities. 

Ill. Agencies' Discretion to Set Standards under Their Respective Statutory 

Criteria 

Global Automakers has consistently requested that the standards be harmonized so that a fleet that 

complies with one standard complies with the other. In previous comments, we have pointed out ways 

in which the standards can be better harmonized." 

Global Automakers, however, has never advocated that the standards be numerically equivalent. While 

a grams per mile of carbon dioxide (CO,) standard can be converted to a miles per gallon (mpg) 

equivalent, differences in the authorizing statues require some adjustments to allow manufacturers to 

meet both standards simultaneously and efficiently, as well as to allow the agencies to meet the 

requirements of those statutes. 

For example, NHTSA must weigh four EPCA factors to determine the "maximum feasible" fuel economy 

standards: "technological feasibility, economic practicability, the effect of other motor vehicle standards 

of the Government on fuel economy, and the need of the United States to conserve energy." 15 "Other 

motor vehicle standards" includes safety regulations, and "economic practicability" includes consumer 

acceptance. As NHTSA has affirmed, the agency has broad discretion concerning how to weigh these 

factors: 

NHTSA has broad discretion in balancing the above factors in determining the average fuel 

economy level that the manufacturers can achieve. Congress "specifically delegated the process 

of sening ... fuel economy standards with broad guidelines concerning the factors that the agency 

must consider." The breadth of those guidelines, the absence of any statutorily prescribed formula 

for balancing the factors, the fact that the relative weight to be given to the various factors may 

change from rulemaking to rulemaking as the underlying facts change, and the fact that the factors 

may often be conflicting with respect to whether they militate toward higher or lower standards 

give NHTSA discretion to decide what weight to give each of the competing policies and concerns 

and then determine how to balance them-"as long as NHTSA's balancing does not undermine the 

14 Global Automakers, Comments on the "Request for Comment on Reconsideration of the Final Determination of 

the Midterm Evaluation of Greenhouse Gas Emissions Standards for Model Years 2022·2025 Light-Duty Vehicles." 

~'See 49 CFR 531 at 34242-3 (June 17, 2008). 

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fundamental purpose of the EPCA: Energy conservation," and as long as that balancing reasonably 

accommodates "conflicting policies that were committed to the agency's care by the statute." 

Thus, EPCA does not mandate that any particular number be adopted when NHTSA determines 

the level of CAFE standards." 

In contrast, Section 202 of the CAA directs EPA to set standards "applicable to the emission of any air 

pollutant" from certain motor vehicles "which in [the Administrator's] judgment cause, or contribute to, 

air pollution which may reasonably be anticipated to endanger public health or welfare." Section 202 

further requires EPA to provide adequate lead-time for manufacturers to develop and apply the 

requisite technology, with appropriate consideration to costs of compliance within that period. Safety is 

also a consideration; Section 202(a)(4} of the CAA prohibits the use of any emission control device, 

system or design that will cause or contribute to an unreasonable risk to public health, welfare, or 

safety." Like NHTSA, EPA has considerable discretion concerning the appropriate emission standard for 

a given pollutant. EPA has stated that: 

EPA also has significant discretion in considering a range of stringency. Section 202(a}(2) of the 

Clean Air Act requires only that the standards "take effect after such period as the Administrator 

finds necessary to permit the development and application of the requisite technology, giving 

appropriate consideration to the cost of compliance within such period." This language affords EPA 

considerable discretion in how to weight the critical statutory factors of emission reductions, cost, 

and lead time."' 

The U.S. Supreme Court has acknowledged that application of EPCA and the CAA could lead to 

coordinated but not necessarily identical outcomes. In Massachusetts v. EPA, the Court observed that 

although agencies' statutory obligations overlap, "there is no reason to think the two agencies cannot 

both administer their obligations and yet avoid inconsistency."19 The Court also noted that "EPA no 

doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with 

those of other agencies.""' 

However, because of differences between EPCA and the CAA, there are limitations on the extent to · 

which the CAFE standards can (and should} be aligned with EPA's GHG emission standards. For instance, 

EPA can regulate emissions of GHG other than C02 under the CAA-Iike A/C leakage, methane and 

nitrous oxide-while NHTSA effectively cannot, because these emissions do not result in vehicle fuel 

efficiency improvements. Therefore, a straight numerical conversion from a GHG g/mile standard that 

includes non-co, emissions to mpg does not actually result in standards of equivalent numerical 

stringency. As we discuss in greater detail below, Global Auto makers supports EPA maintaining these 

16 See 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel 

Economy Standards, 77 Fed. Reg. 62,624, 62,670 (Oct. 15, 2012) (quoting Center for Auto Safety v. NHTSA, 793 F.2d 

1322, 1341 (D.C. Cir. 1986) and Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1195 (9" Cir. 2008). 17 See 83 Fed. Reg. 42986,43231 (Aug. 24, 2018); 42 U.S.C. 7521(a)(4)(A). 18 See Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles 

--Phase 2, 81 Fed. Reg. 73,478, 73,910 (Oct. 25, 2016). 19 Massachusetts v. EPA, 127 5.Ct. 1438, 1443 (2007). 20 ld. at 1462. 

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emissions as part of the ONP even if it results in NHTSA's and EPA's standards diverging numerically. 

Similarly, while both agencies allow credit trading, there are statutory limits on trading under EPCA, but 

not under the CAA. This is another area where allowing for differences between the EPA and NHTSA 

programs could lead to greater efficiencies and ease of compliance for automakers. 

The details in our comments below discuss how EPA and NHTSA, in implementing their respective 

governing statutes, should address the questions of the stringencies of the CAFE and GHG emission 

regulations and the other programmatic elements that streamline manufacturer compliance and 

account for emissions benefits of advanced vehicle technologies. 

IV. The Final EPA and NHTSA Regulations Should Set Standards that Provide 

for Meaningful Year-Over-Year Improvements in Fuel Economy and GHG 

Emissions Reductions 

A. Industry Supports Standards that Increase Over Time and that Are Set at a Level that 

Meets Customer Needs and Technology Capabilities 

Maintaining a trajectory of increasing standards that provides investment certainty makes the standards 

more "durable" over the longterm, because it provides certainty for research and development 

direction, encourages investment in manufacturing, and provides consumers a full spectrum of options. 

The current Preferred Alternative in the proposed rule of a 0% per year increase from MY 2020 

standards does not create a clear path nor support competitiveness in a global marketplace. In order for 

the U.S. auto industry to remain competitive and continue to export vehicles to the rest of the world, 

industry is better served by a reasonable, steady ramp rate that accounts for investments made and the 

global nature of the market. Steady increases allow for long-term planning and create an environment 

of security that fosters ongoing investment in vehicle technology and consumer confidence in 

purchasing newer vehicles. It also provides a level-playing field upon which automakers can compete. 

We also agree with the agencies that the standards as previously codified by EPA and set as augural by 

NHTSA should be adjusted from their current form. We encourage NHTSA and EPA to look for a new 

Alternative that provides meaningful year-over-year improvements in fuel economy and GHG emission 

reductions, is acceptable to the state of California for a national program and provides important and 

necessary policy support for a broader transition to vehicle electrification. We believe such a solution is 

not only achievable, but also meets the agencies' statutory requirements for maximum feasible and 

technical feasibility. 

B. Accurate Technical Analysis and Modeling Considerations are Critical to Final 

Rule making 

The agencies must consider numerous factors in the standard setting process, including technical 

feasibility and lead time.ln order to create truly durable standards, the final rule should provide for 

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meaningful year-over-year increases with appropriate flexibilities that encourage investment in new 

technology, while also ensuring that consumers can afford to purchase newer vehicles with the latest 

safety innovations. It is also consistent with meeting the goals of maximum feasibility under EPCA. To 

accomplish these goals, the agencies should continue to focus on establishing a predictable trajectory 

for improvements to fuel efficiency and GHG emissions, set at equivalent levels of stringency increases 

for passenger cars and light-duty trucks. A consistent approach to improved fuel efficiency and GHG 

emissions reductions creates the market stability that industry needs to ensure long-term investments 

and product planning timelines.ln order to accomplish these goals, the agencies have correctly 

identified that a consistent approach to using the most up-to-date data and a robust technical analysis is 

needed. 

1. Updated Volpe Modeling Using the Most Up-to-Date Data 

This NPRM's use of a single model to evaluate alternative scenarios for both programs provides 

consistency in the technical analysis, and Global Auto makers supports the Volpe model's use as it has 

proven to be a transparent and user-friendly option in this current analysis. The use of the Volpe model 

has allowed for a broad range of stakeholders, with varying degrees of technical expertise, to review the 

data inputs to provide feedback on this proposed rule. The Volpe model's accompanying documentation 

has historically provided a clear explanation of all sources of input and constraints critical to a 

transparent modeling process. Other inputs have come from modeling that is used widely by other 

sources, specifically the Autonomie model, allowing for a robust validation, review and reassessment. 

One of the foundational underpinnings of the standards is the agencies' technical modeling. There has 

been a lot of discussion about the modeling since the Draft TAR, including the way the models work and 

assumptions inputted into each of the models. Upon request, Global Auto makers and our members 

have worked with the Volpe Center to provide updated and revised assumptions and baseline data to 

support improved outputs from the Volpe model, and we understand that the Volpe Center has used 

many of these inputs. However, in evaluating the analysis it has become clear that there is still missing 

data on some technologies deployed from MY 2015 forward that should be added to the input files to 

ensure that the Volpe model is using the most complete, up-to-date data. 

Global Automakers believes that in updating the agencies' modeling, assumptions and data, revised 

findings would support the conclusion that adjustments to the existing regulations are needed but the 

question of what those adjustments should be requires a full spectrum of data inputs. This point is 

supported by our analysis. Adjustments could take numerous forms, including a revision to the 

stringency levels, the implementation of credit flexibilities or any combination thereof that would 

continue the path of annual fuel efficiency improvements and GHG emissions reductions. 

Global Automakers and the Auto Alliance have received updated study results from a third-party 

consultant who continues to conduct a longitudinal analysis of fleet performance. This analysis uses data 

similar to those submitted to the agencies as well as data from publicly available sources. The findings 

indicate differences from the current considerations in the NPRM regarding passenger car and light-duty 

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truck production shares and the increasing production shares of various technologies, including 

advanced technology. 

In terms of production share of vehicles, the projected consumer interest in sport utility vehicles (SUVs) 

has continued in an upward slope. In 2012, the agencies projected a car/truck split of 67%/33% in MY 

2025.21 The split in MY 2015 was 57% cars/43% trucks," and presently this split has moved to 48.5% 

cars/51.5% trucks.23 1n addition, truck SUV shares continue to increase in popularity, while sales of nonSUV passenger cars are declining. Meanwhile, for MY 2018, light-duty truck volumes are expected to 

exceed passenger car volumes. This shift may reflect the impact of lower gasoline prices on purchasing 

decisions and suggests fuel economy may not be an overriding consideration for many buyers. 

Figure 1: Vehicle Production Volume 

lOll lOU 1014 lOIS 1016 1017 1018 

16 

" 14 

II:!+----~--------------------------------~--------------------­ j!: 4 

l +-"""--...--'""-"'._r- 1012 101) 1011 lOIS 

Model Year 

1016 1017 

Source: Novation Analytics Model Years 2012·2018 Baseline Studies 

1018 

Equally important to the share of production are assumptions regarding the implementation of various 

technologies in vehicles. The closer the model can simulate real-world deployment of the vehicle 

technologies at the correct volumes the better the agencies are able to suggest the most efficient, costeffective and safe regulatory frameworks. 

21 Draft TAR, p. ES-8. 

"U.S. EPA. 2016 Fuel Economy Trends Report, (2016). p. 4. Note that the per vehicle fuel economy is better year 

over year even though the car/truck split is not consistent with EPA's projections. ld. 23 Novation Analytics. Model Years 2012 to 2018 Baseline Studies prepared for Alliance of Automobile 

Manufacturers & Association of Global Automokers. October 8, 2018. 

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An example of this discrepancy is with the common vehicle technology- variable valve timing & liftdeployment versus projections. Deployment of variable valve timing (VVT} is effectively 100% in the 

market. This emissions reduction technology implementation continues to outpace the NHTSA projected 

pathway for technology deployment with implementation occurring more than five years earlier than 

assumed. On the other hand, variable valve lift (WL), a performance technology, continues to be 

deployed at much lower levels from the NHTSA projected pathway. The disparity between actual 

deployment and implementation assumptions needs to be recalibrated if the most updated data is used 

in the modeL Using the most updated data allows the agencies to address the disparities between 

projections and actual fleet performance. Eliminating these types of inconsistencies creates an 

opportunity for the agencies to establish a regulatory path that takes into account those technologies 

that have proven to provide both fuel efficiency benefits and are accepted by consumers. 

Figure 2: Variable Valve Timing Deployment Real-World vs. NHTSA Assumptions 

100 ,--r---~ 

0 

2012 1111l 2014 11115 :1016 11117 1018 1012 lOll 2014 :1101.5 1016 1017 1011 

Hodel Yew 

Source: Novation Anolytics MadeJ Years 2012-2018 Baseline Studies 

Global Automakers asks that the agencies confirm that the most up-to-date vehicle and fleet 

information have been fully captured in the input files for the modeL 

2. Fuel Economy Increases and GHG Emissions Reductions are Feasible 

The auto industry has been steadily increasing the fuel economy and GHG emissions performance of 

passenger cars and light trucks since MY 2012. Industry has continued to contract with Novation 

Analytics to provide an updated fleet baseline analysis following each model year, to compare to the 

agencies' assumptions, and to serve as an additional verification for data inputs. The most recent 

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analysis is included in Attachment C(l) of these comments. Novation Analytics' findings show that motor 

vehicles, both passenger cars and light-duty trucks, are consistently improving year-over-year with the 

encouragement of government standards. 

Figure 3: 2-Cycle Fuel Economy Improvements 

2011 lOll 2014 2015 2016 2017 2018 

&::11~-don"'**' 8aHiine 5cudios ·----·- ~TRICk -· 

-Profocud.HYs 2012-2025 ll~ ----------

2011 2011 2014 2015 

ModelYur 

2016 2017 

Source: Novation Ano/ytics Model Years 2012·2018 Baseline Study 

2018 

As the figure above indicates, year-over-year improvements in fuel economy and GHG emissions 

reductions are feasible and achievable, though not at the levels required under the current standards. 

In addition, an analysis presented by Greg Pannone of Novation Analytics earlier this year supports the 

technical feasibility of continuing to increase the stringency of the standards through MY 2026.'4 The 

presentation, found in Attachment C(2) of these comments, reviews the technical challenges in 

increasing internal combustion engine (ICE) efficiency and concludes: 

Assuming continued investment and application of high efficiency ICE technologies, achievement 

of the ZEV [zero emission vehicle] mandate, constant non-ZEV hybrid take rates, and plausible 

reductions of mass, aerodynamic drag, and tire rolling resistance, a non-hybrid ICE-dominated U.S. 

fleet could plausibly achieve CAFE values of 49 mpg for PC and 35 mpg for LOT by MY 2025." 

14 G. Pannone, Novation Analytics, "What's the Role of ICE Going Forward?", presented to SAE High Efficiency IC 

Engine Symposium (Detroit April2018). 

"/d. at slide 18. 

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Further analysis is necessary, but this presentation provides confirmation that further increases in 

powertrain-related stringency are technically possible. 

C. A Steady Increase in Standards is Economically Practicable and Supports U.S. 

Employment 

Throughout the Midterm Evaluation, Global Auto makers has supported standards with meaningful 

increases in year-over-year stringency. To accommodate compliance flexibility, we also have urged the 

agencies to add a variety of compliance tools to the standards."·27•

28 Just as the agencies have provided 

a number of options for stakeholders to evaluate, there are numerous combinations of stringency and 

compliance tools that can be formulated to find an outcome that meets statutory requirements, 

provides industry with certainty, continues fuel savings for consumers, and maintains ONP. 

Steadily increasing standards support the investments that OEMs and suppliers have already made in 

fuel economy, are consistent with the long lead-times that apply in the auto industry, support the 

competitiveness of U.S. automotive manufacturers and suppliers, increase employment in the 

automotive industry, avoid the uncertainty and cost that will result from the prospect of a bifurcated 

regulatory scheme, and meet consumer expectations. 

1. Increasing Standards Supports Employment in the Auto Industry 

The NPRM acknowledges that the Preferred Alternative will reduce U.S. auto sector labor relative to 

more stringent Alternatives." This is consistent with a study by researchers at the Indiana University 

School of Public and Environmental Affairs, which explored the economic impact of fuel economy 

standards. The "Macroeconomic Study of Federal and State Automotive Regulations"'" ("20171U 

Study") looked at vehicle price effects on factors like employment and gross domestic product (GOP); 

supply chain innovations spurred by the regulations; and consumer fuel savings. The study concluded 

that "the overall annual impact of the regulatory programs on the national economy is negative in the 

near-term but positive in the long-term, a pattern that is consistent with theoretical expectations."" The 

2017 IU Study found that in the long-term, the higher vehicle prices that the standards will drive will be 

"We recognize that the agencies have different statutory authorities and constraints. If one agency includes a 

flexibility that the other agency cannot under the latter agency's statutory authority, there may be a difference in 

numerical stringency of the standards. However, if the agencies then harmonize the standards so that a single fleet 

can meet both standards, the result will still be a unified national program, preferably with California in agreement 

with and part of the program. 27 See Section IV herein, as well as Comments of Global Automakers dated 9/26/16 at 0·1; Comments of Global 

Automakers dated 12/30/2016 at 20; and Comments of Global Automakers dated 10/5/2017 at 3. 28 Global Automakers and the Auto Alliance. "Petition for Direct Final Rule with Regard to Various Aspects of the 

Corporate Average Fuel Economy Program and the Greenhouse Gas Program." June 20,2016. 

https://www.globalautomakers.org/OidSiteContentAssets/bulletin/Joint-Harmonization·Petition-for-GHG·and· 

CAFE-assets/2017·06·20-joint·alliance-global-harmonization-petition-for·rulemaking·pdf. 

"83 Fed. Reg. at 43436·37. 

"'Carley, S. et al. "Macroeconomic Study of Federal and State Automotive Regulations with Recommendations for 

Analysts, Regulators, and legislators." School of Public and Environmental Affairs, Indiana University. March 2017. 

("2017 IU Study"). 

"2017 IU Study at 3. 

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more than offset by increased innovation and employment in the supply chain and consumer fuel 

savings. The 2017 IU Study estimated that the current fuel-efficiency standards could increase jobs by 

between 200,000 and 375,000 in the year 2025 and add between $138 billion to $240 billion in GOP 

between 2017 and 2025.12 

Global Automakers acknowledges that some of the literature, as noted above, predicts negative 

employment impacts from the current standards in the short term. These employment impacts are 

significant and the need to mitigate them is why Global Auto makers has proposed flexibilities in the 

standards. Global Auto makers believes that if the short-term shocks can be mitigated through 

flexibilities and adjustments in stringency, a steady year-over-year increase in standards will provide 

national economic benefits in the long run and enhance the ability of U.S. auto manufacturers to 

compete globally. Such changes must also be accompanied by continuation of a unified national 

program, including Califomia and the Section 177 States, to provide the optimal economic outcome 

associated with this rulemaking. 

2. Incrementally Increasing Standards Support Existing and Planned Investments 

In anticipation of the expected increases in stringency, automakers and their suppliers have invested 

$76 billion in facilities, and much of this has been driven by the "enhanced investment to meet globally 

leading fuel economy and greenhouse gas standards."" Auto makers have developed product plans that 

call for the deployment of these technologies across their fleets. 

An abrupt halt in the gradual increase in fuel economy standards would leave auto makers and suppliers 

with stranded costs. Automakers and suppliers may not be able to recoup investments already made in 

fuel economy technology." Auto makers cannot change their product plans quickly; product 

development cycles in the auto industry are necessarily long because of the massive investments they 

require. Average vehicle model development cycles now last for 6.7 years. 35 Powertrain programs cycles 

are even longer- typically ten years, spanning two or more vehicle cycles." These lengthy product 

development cycles impose costs: 

One of the greatest risks an OEM faces for any investment, but particularly for powertrain 

investment since it is so large and specialized, is having an investment become stranded. That is, 

12 https;//spea.indiana.edu/doc/research/wor1<ing-groups/auto-report-032017.pdf (accessed 14 September 2018). 

While Global Automakers believes that changes are necessary to the current standards, this study is nonetheless 

useful to show that increases in fuel economy standard stringency can have a long-term positive impact on 

employment. 

"Blue Green Alliance. "Driving Investment: How Fuel Efficiency is Rebuilding American Manufacturing." 

https:Uwww.bluegreenalliance.org/resources/driving-investment-how-fuel-efficiency-is-rebuilding-americanmanufacturing/. (January 25, 2018) (accessed 19 October 2018). 

""[S]uppliers have already invested to retool facilities and design new products to meet auto makers' steadily 

increasing fuel efficiency demands." https://www.brookings.edu/blog/the-avenue/2018/07/02/why-underminingfuel-efficiency-standards-would-harm-the-us-auto-industry/ (July 2, 2018) (accessed 14 September 2018). 

"https:{/www.cargroup.org/automotive-product-development-cycles-and-the-need-for-balance-with-theregulatory-environment/ (September 20, 2017) (accessed 12 September 2018). 

"ld. 

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if a specific nameplate or vehide platform fails in the marilet place or needs to be replaced before 

its planned IWe cycle, any engine or transmission program and plant investment that is tied to such 

a platform is at risk of needing to be absorbed by other vehicle programs or be "stranded" and 

written off as a loss." 

While the agencies' model shows that lower costs are associated with its Preferred Alternative, the 

model assumes that companies can respond more quickly than is possible. As discussed in Section IV.C. 

of these comments, the abrupt cessation of increases in fuel economy requirements will require 

retooling and learning changes for which the model has not fully accounted. The model also does not 

account for the changes to labor and material requirements that the agencies' Preferred Alternative will 

require. These factors impose significant costs on industry and greatly detract from the cost savings 

associated with the Preferred Alternative. 

Steadily increased standards also provide the industry with a hedge against sudden shifts in consumer 

demand caused by abrupt changes in gasoline prices. As described elsewhere in the comments, there is 

a direct connection between consumer demand for high-fuel efficiency vehicles and gasoline prices. For 

example, between 2004 and 2008, gasoline prices nearly doubled, from $1.58 per gallon to $3.26 per 

gallon.38 That trend coincided with a dramatic drop in demand for trucks and SUVs," which had 

catastrophic consequences for the U.S. auto industry and led to the bailouts of General Motors and 

Chrysler. As one publication explained in late 2008: 

The first shot was the dramatic rise in energy prices this past summer. That caused a rapid mix shift 

in vehicles--and had a major impact on profitability." GM, Ford and Chrysler have relied on SUVs 

and trucks for the majority of their profits. Those vehicles commanded high sticker prices and by 

the late nineties made up SO percent of the U.S. car market. When demand for the big vehides 

dropped quickly and customers went for smaller, less expensive, less profitable cars, auto 

companies had two major issues to deal with: A loss of revenue and a backlog of unwanted 

trucks.40 

Given the long lead times in the auto industry, it is impossible to adjust to sudden and unexpected shifts 

in demand. Steadily increased fuel economy standards can provide a stabilizing hand in the face of yoyoing gasoline prices and protect manufacturers long-term investments in fuel saving technologies. As 

37 /d. 

"Samuel R. Avro, "Charting the Dramatic Gas Price Rise of the Last Decade." Energy Trends Insider. March 14, 

2012. Available at htto://www.energytrendsinsider.com/2012/03/14/charting-the-dramatic-gas-price-rise-of·the· 

last-decade/; see also Energy Information Administration, Annual Gasoline and Diesel Prices (2007 and 2008), 

https://www.eia.gov/dnav/pet/pet pri gnd deus nus a.htm (accessed 4 July 2018). 

1' Chuck Squatriglia, "Rising Gas Prices Finally Kill the Once-Mighty SUV." Wired Magazine. June 9, 2008. Available 

at https://www.wired.com/2008/06/rising-gas-pric/; see also B. VIa sic, "As Gas Costs Soar, Buyers Flock to Smaller 

Cars," New York Times (May 2. 2008); https://www.nytimes.com/2008/05/02/business/02auto.html (accessed 4 

July 2018). 40 Larry Webster, "GM in Crisis-5 Reasons Why America's Largest car Company Teeters on the Edge." Popular 

Mechanics. Nov 17, 2008. The article quotes David Cole, then Chairman of the Center for Automotive Research. 

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one commentator noted, "strong standards insure automakers against future market loss when gas 

prices inevitably rise again."41 

3. Manufacturers Compete in a Global Market 

The impact of the risks to manufacturer investments are also impacted by the fact that automakers 

operate in a global market. It is therefore important that U.S.-based auto manufacturing is poised to 

meet demand throughout the globe, and thereby support exports. The U.S. auto industry-which 

consists of 14 companies operating facilities throughout the nation-currently produces10.9 million 

cars and trucks in the U.S., 17 percent of which (or 1.9 million units) are exported overseas. Expanding 

exports will help strengthen the auto manufacturing base in the U.S. and increase employment. 

No manufacturers sell only in the U.S. Automakers must therefore consider the fuel economy and GHG 

standards established around the world when developing their product plans. Illustrated in Figures 4a 

and 4b below, in most of the rest of the world, these standards will increase in stringency between MY 

2020 and MY 2025, and therefore manufacturers will have to manufacture vehicles that will meet those 

stricter standards. Manufacturers can achieve greater economies of scale in production if U.S. standards 

are relatively aligned with standards elsewhere in the world. 

41 D. Richardson, "Commentary: How Rolling Back Fuel Standards Could Crush America's Auto Industry," Fortune 

Magazine (3/30/2018); http:/lfortune.com/2018/03/30/epa-rollback-fuel-emissions-standa rds-scott·pruitt/ 

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55 

~ " 25 

I 

i 20 

j 

i 

Figure 4a: Light truck miles per gallon, normalized to CAFE 

EU 2030:53.2 

- historical performance 

---· enacted target 

· · · · · · propoaed target 

15~~------~------~--------r-------,-------~------~~ 

2000 2005 2010 2015 2020 2025 2030 

Source: ICCT, www theicrt orqlcharNibrarY:Passenqervvehicle4uel~economy (Apri/2018) 

Figure 4b: Passenger car miles per gallon, normalized to CAFE 

80 

"' IL 

c 75 - historical psrtormance 0 

g - --· enacted target 

) 70 ... proposed target 

EU 2030 76 3 33 

31 

.. 65 ~ a 

" I 60 

55 

::1 

i 

! 50 

I 45 

" 40 :!! 

& 35 l 

• 30 i 25 

2000 

Source: ICCT; www.theicct.org/chqrt-librqry-oassenqer-vehic/e-fuel-economy (Apri/2018) 

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16 i 

14 j 

l 

:: i ..: 

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Rough parity between U.S. and foreign fuel economy standards is also needed to maintain and expand 

the U.S. auto industry's ability to export vehicles. For example, 23 percent of the U.S.'s vehicle exports 

go to Canada.42 Canada is currently deciding whether to continue to follow the current standards." If 

Canada decides to maintain its current standards, auto makers that produce vehicles in the U.S. will face 

the unpalatable choice of losing market share in Canada to more fuel efficient vehicles imported into 

Canada from Europe or China or incurring extra expense to manufacture to two different standards. In 

the long term, these trends will make U.S. auto manufacturers less competitive and reduce our vehicle 

manufacturing capabilities. 

The efficiencies flowing from the production of vehicles that can be sold worldwide will enhance the 

competitiveness of manufacturers producing in this nation. This enhanced competitiveness will create 

more jobs here and allow manufacturers to produce vehicles for export at their U.S. facilities. Therefore, 

steadily increasing fuel economy standards will benefit U.S. employees, U.S.-based manufacturing and 

American consumers. 

4. Consumer Acceptance and Economic Practicability Support Increased 

Standards 

Consumer acceptance is an important component of economic practicability. It also has been an 

important limiting factor in increasing fuel economy, because consumer demand for fuel economy 

technology has not matched the level of fuel economy that government agencies have required 

manufacturers to meet. Concerns about consumer acceptance were a major factor in Global 

Automakers' request for the agencies to reopen the Midterm Evaluation.44 Global Automakers 

appreciates that the agencies are investigating the degree of consumer demand for the technology that 

the current standards will require. 

Global Automakers respectfully submits, however, that the agencies' investigation does not justify 

holding the standards constant from MY 2021 through 2026. Since the ONP came into effect in MY 2009, 

consumers have become accustomed to year-over-year increases In fuel economy. The agencies' models 

do not suggest that a radical departure from steady year-over-year increases is warranted based on 

consumer acceptance concerns. Fuel economy remains a factor in vehicle purchase decisions, though 

perhaps not a dominant one. Similarly, while we agree that consumers consider a shorter payback 

period than the agencies' previous analyses have suggested,45 consumers are willing to pay for 

improvements that pay off in that time frame; the willingness to pay for better fuel economy is not zero. 

42 https://www.statista.com/chart/15247/us-imports-exooas-cars-canada/ (accessed 9/12/18). 43 https:ljwww.canada.ca/en/environment-climate-change/news/2018/08/canada-begins-consultations-onvehicle-emission-standards.html (accessed 9/13/18). 44 Global Automakers Comments on the Request for Comment on Reconsideration of the Final Determination of 

the Midterm Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 light-Duty Vehicles; 

Request for Comment on Model Year 2021 Greenhouse Gas Emissions Standards" [82 FR 39551, August 21, 2017]. 

Docket ID: NHTSA-2016-0068. 

"83 Fed. Reg. at43217. 

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And, as discussed above, providing for steady year-over-year increases in fuel economy helps provide a 

hedge against rapid shifts in consumer demand caused by sudden changes in fuel prices. 

It is true, as the agencies have noted, that auto makers who wish to provide better fuel economy can do 

so even if the standards are flat.•• However, Global Automakers urges the agencies to take a longer and 

larger view of fuel economy and GHG regulation and their impact on consumers. For example: 

Flat standards will confuse consumers, who have come to expect year-over-year increases in 

fuel economy standards and will seek more fuel-efficient vehicles as gasoline prices increase; 

The prospect of a bifurcated program will confuse consumers, who may be faced with the 

possibility that certain vehicles may become available only in certain states; 

A bifurcated program will increase costs for consumers and could lead to less consumer choice 

in regions with more stringent regulations; 

Consumers have come to expect that the vehicle fleet eventually will become electrified, based 

in part on previous regulatory actions and the announced plans of manufacturers; 

• Steady year-over-year increases will increase consumer confidence in the certainty and 

durability of these regulatory programs; and 

Consumers are also members of society. As a society we recognize that co, is a pollutant, but as 

a consumer, there is a reluctance to pay for this improvement. On the other hand, such cost 

increases are tolerated "for the good of the whole" while not eagerly embraced. 

For these reasons, Global Auto makers submits that consumers will accept some level of year-over-year 

fuel economy increases and GHG reductions. At the very least, consumer acceptance does not demand 

flat standards, and Global Auto makers urges the agencies to work with all stakeholders to develop 

standards that continue to provide a single regulatory scheme and certainty for consumers. 

5. Safety Considerations Do Not Support Freezing the Standards 

One of the most significant bases for freezing the CAFE and GHG emission standards after MY 2020 is 

the notion that the more stringent standards could have a detrimental impact on safety. The agencies 

point to three distinct elements of their safety conclusions: the "rebound" effect, a vehicle "scrappage" 

effect, and a vehicle weight effect. The rebound effect is an economic-based principle arguing that 

reducing the cost of driving through improving vehicle fuel efficiency would cause people to drive more, 

thereby exposing them to increased risk of being involved in a crash. The scrappage effect is an 

economic-based principle arguing that higher new vehicle prices resulting from more stringent 

standards would cause some consumers to defer purchasing new vehicles and keep older (ostensibly 

less safe) vehicles on the road longer. The weight effect has been considered In several NHTSA CAFE 

proceedings. Safety analysis has shown the weight discrepancies in two-vehicle crashes (heavier vehicle 

and lighter vehicle collide) results in greater damage to the lighter vehicle, with the adverse safety effect 

increasing with the magnitude of the weight discrepancy. 

"83 Fed. Reg. at 43211. 

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The agencies' proposal with regard to the safety issue raises several ironies and conflicting trends 

relating to the three safety arguments: 

The concerns regarding adverse safety effects are discussed in the context of long-term trends 

of improved safety, with the expectation that advanced driver assistance systems, such as 

automatic emergency braking, will achieve even greater improvements through their 

widespread implementation during the 2021-2026 period. Even under the agency's safety 

analysis, it is extremely likely that vehicle safety will improve during this period. 

• The proposal projects adverse safety Impacts as a result of both consumer cost savings (reduced 

fuel consumption} and consumer cost increases (new vehicle price increases} which occur 

simultaneously. Some netting out of these effects would be appropriate. 

The concerns regarding the safety effects of vehicle weight reduction are considered in the 

context of an underlying trend in which vehicle weight has steadily increased. As the Preliminary 

Regulatory Impact Assessment (PRIA) notes "fv]ehicle mass continued an historical upward 

trend across the MYs in the newest databases."" 

• The concern regarding the safety effect associated with new vehicle price increases is made at a 

time when the Trump Administration has proposed increased tariffs on new vehicles, which 

would have a price impact many times greater than that which would result from the increased 

standards. 

We urge the agencies to consider whether these existing trends in the light vehicle market may 

overwhelm the projected safety impacts of the CAFE and GHG standards. Our comments on the three 

safety arguments are as follows: 

a. Rebound 

The proposal describes the rebound effect and cites potential safety consequences. Ultimately this 

factor is not attributed by the agencies to the standards but rather to consumer choice. As stated in the 

proposal: 

... although a safety Impact from the rebound effect Is calculated, these Impacts are considered to 

be freely chosen rather than Imposed by CAFE and Imply personal benefits at least equal to the 

sum of their added costs and safety consequences. The Impacts of this nonfatal crash adjustment 

affect costs and benefits equally. When considering safety Impacts actually imposed by CAFE 

standards, only those from mass changes and vehicle purchase delays are considered." 

We agree that the rebound effect should not be attributed to the standards and should not serve as a 

basis for keeping the standards flat. 

47 Preliminary Regulatory Impact Analysis (PRIA) at 1349. 

41 83 Fed. Reg. 43148. 

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The Dynamic Scrappage (OS) module is the newest addition to the Volpe model. It attempts to assess 

the impact of the various Alterniltives on vehicle fatillities and the associated societal cost ln fact, our 

view of the data shows that the results of the OS module provide the overwhelming majority of the net 

benefits associated with each of the Alternatives. In assessing the impact of the module, Global 

Auto makers evaluated the net benefits of each ofthe Alternatives with the OS module turned "ON" and 

"OFF." Figure 5 below illustrates the outcomes of these model runs. 

As Figure 5 shows, almost all of the net benefits associated with the various Alternatives result directly 

from use of the OS module. 

Furthermore, Global Automakers assessed the costs and benefits of the Preferred Alternative compared 

with the augural standards under two scenarios: with the OS module "ON" (blue bar) and with the OS 

module "OFF" (green bar), as shown in Figure 6 below. (Note all results are shown in the negative 

because this is a comparison against the augural standards, i.e. a negative cost is a benefit in this figure.) 

Figure 6 shows that the modeled safety (fatality and non·fatal crash) benefits are only apparent the OS 

module is turned "ON." In the case that the 05 module is disabled or "OFF," the non-rebound fatality 

costs and non-fatal crash costs are higher in Preferred Alternative as compared to the augural standards. 

Thus Figure 6 also demonstrates the importance of the OS module on driving the results of the 

cost/benefit analysis. 

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Source,· Global Automakers' Modeling Analysis Run 

Given the undeniable significance of the DS module in the agencies' cost benefit analysis, it is critical 

that the module be thoroughly assessed for accuracy and reliability. NHTSA's own observations suggest 

that not all of the "details of this new approach will be immediately intuitive for reviewers accustomed 

to results that do not include a dynamic sales model or dynamic scrappage model, much less, results 

that combine the two."49 This statement demonstrates that additional work is needed in order to fully 

understand how the model offsets the increased sales "by the somewhat accelerated scrappage that 

accompanies the estimated decrease in vehicle prices" associated with the Preferred Alternative 

Preferred Alternative, and whether these modeled results are consistent with reality. 50 Global 

Auto makers technical modeling shows that they are not consistent with reality. The DS module should 

therefore be removed from the Volpe model at this time for purposes of the final rule. 

49 83 Fed. Reg. at 43,098. 50 !d. 

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The theoretical underpinning of the OS module is the notion that as vehicle prices increase, consumers 

will drop out of the new car market. However, the assessment of vehicle price effects associated with 

increasing standards is extremely complex. The Increase In prices related to the increase in standards is 

not straight-forward, like a tax (or tariff) Increase, without perceived direct benefit to the consumer. 

Rather, they are investments in Improved product. For some consumers, the enhanced features of the 

new vehicle may more than justify the price increase, such that new vehicle demand actually increases, 

notwithstanding the price Increase. NHTSA has consistently predicted that past standards save 

consumers money in the long term due to reduced fuel costs that may offset the retail price increase. 

Moreover, increasing vehicle prices may not necessarily price consumers entirely out of the new car 

market. A purchaser may simply decide to save money by buying the same vehicle with a lower trim 

level. Given that a full range of safety features is migrating throughout the new vehicle market, even 

lower priced models will have enhanced safety performance. For instance, pursuant to a voluntary 

agreement entered into by twenty auto makers in 2016,51 automatic emergency braking (AEB) systems 

are being offered as standard equipment on all substantially new passenger vehicles by 2022. 

Setting aside our concerns with the theoretical underpinnings of the OS module, we have also identified 

some significant concerns with how the module works, including impacts on vehicle miles traveled 

(VMT) and overall fleet size. For example, Global Automakers' technical analysis found that for the 

Preferred Alternative, enabling the OS module resulted In a reduction in overall VMT compared to the 

augural standard, which is not associated with the rebound effect. This unexplained decrease in VMT as 

compared to the augural standards leads to: 

A large reduction of non-rebound crash costs (fatalities and injuries); 

A large reduction of congestion costs; 

A small increase in pre-tax fuel savings (because less miles are driven) when compared to the OS 

module being "OFF;" and 

A large increase in net benefits for the Preferred Alternative (attributable to the above 

reduction in costs and increase in benefits). 

We discuss these concerns related to the overall fleet size, VMT, and lack of sensitivity analysis below. 

Impact on Fleet Size 

One anomaly concerning the OS module we observed is its impact on fleet size. When the OS module is 

enabled, it causes dramatic changes in the overall on-road fleet size in each of the eight Alternatives 

compared with the augural standards, as shown in Figures 7 and 8, below. 

When the scrappage model is disabled, this Isolates the effect of increased sales of new vehicles without 

accounting for any impact this may have on the fleet of used vehicles. This is shown in Figure 7, below. 

51 httos;//www.iihs.org/iihs/news/desktopnews/u-s-dot-and-iihs·announce-historic·commitment-of-20-

automakers-to-make-automatic·emergency-braking-standard-on-new-vehicles. 

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Figure 7: Fleet Difference from Augural Standards by Calendar Year- DS Module OFF 

Alternative 

• 0.0%· O.O%[PNfP:rNdAitemative) 

• 0.5%-0.5% 

• O.S%- O.S% ACP{O 

•1.0%-2.0% 

• 1.0%-2.0%2022-2026 

• 2.0%·3.0% 

• 2.0% -l.O%AC P /0 

2.0%-3.0%2022-2026 

·l.DOQOOO 

l'l -3.000.000 

0 

z 

~. -4,000000 

::' 

;:) ·5.000000 

-6.000000 

·7.000.000 

•8,000000 

1 ODilOOO 

900.@ 

e:ooooo 

f'OOJ«! 

fi()(JOC<) 

500@ 

400,000 

300000 

19 ZGQ,(((l 

100000 

·H.iOJl)'J 

SUm(CAFE.ss NO OS Fleet) vs. calendar y..,. 

2014 201S 20l2 2026 2030 2'034 203$ 204.1 Z046 2050 2054 205e 206ll066 Ztk 

Ca!endatYe¥ 

Source: Global Automakers' Modeling Analysis Run 

Predictably, the result of running the model with the DS module turned off is that the total on-road fleet 

increases starting in MY 2022 (the first year impacted by the standards). This is consistent with what one 

would expect to see in the model to the extent that consumers are more likely to purchase a new 

vehicle if the price is lower compared to the augural standard, thus increasing the total on-road fleet 

(again, because we are holding the used car fleet constant). 

Figure 8, below, shows that when the DS module is turned "ON," the total on-road fleet contracts 

significantly for each of the Alternatives when compared to the augural standards, with the most 

pronounced effect showing for the Preferred Alternatives. This finding is counter-intuitive. While we 

would expect that the on-road fleet may shift from older to newer vehicles as new vehicle prices are 

decreased under the Preferred Alternative compared to the augural standards, there is no reason to 

conclude that the total number of vehicles driven by Americans would change to the extent modeled by 

the OS module. 

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Figure 8: Fleet Difference from Augural Standards by Calendar Year- DS Module On 

Sum{CAFE_u Fleet) vs. Calendar Vear 

1,000000 

-2.000000 

! -3,000000 

tl 

~· -4,000,000 

v 

-5.000000 

-7,000,000 

Source: Global Automakers' Modeling Analysis Run 

Impact on Total VMT Resulting from Scrappage 

Altemative 

• 0.0% ~ 0.0% (PrefeJTed Alternative) 

• o.S%-0.5% 

• 0.5%-0.5% A£ P/0 

• L0%·2.0% 

.. 1.0%.- 20% 2022-2026 

• 2.0%-3.0% 

• 2.0%-3.0%ACP/O 

' 2.0%- 3.0% 2022-2026 

We notice the same incongruity with respect to the impact of the scrappage model on total combined 

VMT. Simply turning on the DS module results in an increase in VMT in all the scenarios modeled. We do 

not understand why this would be, since vehicle scrappage should not have any impact on the total 

number of miles Americans drive. (Note that scrappage effect on VMT is different from increased VMT 

caused by the rebound effect, discussed above). By way of example, Figure 9 below shows the VMT 

impact for the augural standards when DS module is turned "ON" compared to when it is turned "OFF." 

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Figure 9: VMT Increases in the Augural Standard with Dynamic Scrappage Module On 

Sum(CAFE_ss kVMT) 81 S\lln(CAFE_ss NO OS kVMT) vs. calendar Year 

'j 2500000000 

~ 

~ 

~ 2000000000 

""v~' ' 1500000000 

Of$ 

... 

~ 1000000000 

~~ -· § 500,000.000 i • 

io 

oi i 

i 

. 

. ·•. .. 

·~"---

r t '":"'r"':"''~T'1'C''''{-''" 

1975 1985 1995 2005 2015 2025 2035 2045 2055 2065 

Calendar v .. , 

Source: Global Automakers' Modeling Analysis Run 

• S.Um(CAFE_u kVMl) 

• S.Um(CAFE_s. NODS kVMl) 

Again, we are unaware of any reason why scrappage would have any impact on the total number of 

miles driven by Americans in a given year. The two variables should be entirely independent from each 

other. 

Global Automakers also ran the Volpe model with the DS module turned "OFF" and "ON" for each of the 

Alternatives and compared them to the augural standards. This analysis, illustrated in Figure 10 below, 

shows that as standards decrease from the augural standards, total VMT decreases as well, with the 

most pronounced impact in the Preferred Alternative. 

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Figure 40: VMT Comparison Between OS Module ON and OFF 

·1()!!000\XX! 

Source: Global Automakers' Modeling Analysis Run 

When the DSM is disabled, the model shows combined VMT dipping beginning in MY 2016, and then 

increasing. The magnitude in the VMT decrease is more pronounced as stringency decreases, which is 

principally the result of the rebound effect discussed above. !n 2022, the impact of the VMT decrease 

under the Preferred Alternative is roughly 60 trillion miles. 

When the DSM is turned "ON," VMT starts to decrease in MY 1998, and then spikes back up a bit 

between MY 2022 to 2026. Again, this effect is more pronounced at lower stringency levels. 

Significantly, however, turning the scrappage model on results in a much larger drop in VMT for the 

various Alternatives. In 2022, the impact of the VMT decrease under the Preferred Alternative 1 is 

roughly 90 trillion miles with the DSM "ON.'' 

Just as there is no reason to think that increased scrappage would cause Americans to drive significantly 

more {as we explain above), there is also no reason to believe that the impact would be any more 

pronounced from one Alternative to another. Rather, it appears that this significant change in VMT is 

merely an artifact of some quirk in the OSM that one would not expect to see in the real world. 

Moreover, this unexplainable drop in VMT appears to be the primary driver of the modeled safety 

benefits of holding the CAFE and GHG em;ssion standards flat. 

Lack of Sensitivity Analysis 

!t appears that the agencies did not recognize these problems with the OS module, because they never 

conducted a full sensitivity analysis with the OS module turned completely "OFF." Based on our review 

of the DS module, there are up to 25 separate parameters that can be adjusted. In conducting the 

sensitivity analyses, NHTSA disabled only two of them-the scrappage price effect and the fleet share 

and sales response, as shown in Table 1, below. NHTSA did not disable any of the other parameters, and 

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even more significantly, there is no documentation to suggest that it ran a sensitivity case with the DS 

module turned completely off. 

Table 1· List of Sensitivity Cases 

Sensitivity Case ! Description 

0 Reference Case Reference Case 

1 Consumer Benefit at 50% Assume 50% loss in consumer surplus- equivalent 

to the assumption that consumers will only value J the calculated benefits they receive at 50% of the 

.... 

fC~nsu~;rB~n~~~~a-t75%-~----···· analy.sis estimates ......... 

r- 75% loss in consumer surplus 

Fleet share and Sales Response Disabled New vehicle sales will remain at levels specified 

for MY 2016 in the market data input file. 

4 Disable Scrappage Price Effect Keeps average new vehicle prices at MY2016 

levels within the scrappage model throughout the 

: model simulation; this disables the effect of 

I slower scrappage when new vehicle prices 

I increase across more stringent scenarios. 

5 Scrappage and Fleet Share Disable I Disables both the scrappage price effect and the 

I fleet share and sales response 

Source: Global Automakers assessment ofNHTSA scns1ttV1ty cases 

c. Weight Effects 

The NPRM also estimates a limited safety impact of between a -0.61 percent for light trucks to 1.2 

percent for small cars fatality increase per 100-pound mass reduction attributable to the downweighting of vehicles in response to more stringent standards. 52 NHTSA's assessment of the weightsafety issue for the proposal appears to be the same as it has been in recent years: 

... societal effects of mass reduction are small, and mass reduction concentrated in larger vehicles 

is likely to have a beneficial effect on fatalities, while mass reduction concentrated in smaller 

vehicles is likely to have a detrimental effect on fatalities. 53 

I 

Footprint-based standards were developed to minimize or eliminate safety concerns associated with 

weight reduction.54 As NHTSA has stated, "any reasonable combination of mass reductions that held 

footprint constant in MY 2017-2021 vehicles- concentrated, at least to some extent, in the heavier LTVs 

and limited in the lighter cars- would likely be approximately safety-neutral; it would not significantly 

increase fatalities and might well decrease them."" The agency concluded, in its updated analysis for 

this rulemaking, that "[f]or all light-duty vehicles in the CAFE model, mass changes are estimated to lead 

51 See SAFE Vehicles NPRM Fed. Reg. page 43132. 53 See PRIA page 1345. 

""Footprint·based standards create a disincentive for manufacturers to produce smaller-footprint vehicles." P RIA 

page 1332. 51 See PRIA page 1344. 

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to a decrease in fatalities over the cumulative lifetime of MY 1977-2029 vehicles in all Alternatives 

evaluated."" This conclusion is consistent with previous analyses." 

Given the small and uncertain weight effect and the fundamental difficulty in assessing anticipated 

weight reduction strategies- there are very few vehicles that have implemented lightweight material 

substitution strategies to an extensive degree, complicating analysis of such strategies- we conclude 

that there is no clear basis for freezing standards levels due to weight reduction concerns. 

Finally, Congress has established a policy of promoting enhancements in all regulatory areas (safety, 

emissions, efficiency). In light of advances auto makers have made in all of these areas simultaneously, 

there is no reason to conclude that increasing fuel economy standards would somehow make vehicles 

less crashworthy. Auto makers are committed to making the safest vehicles on the road. As noted above, 

vehicle safety, fuel economy, and emissions control are all improving rapidly (and together) in recent 

years and will likely continue in the future. For the above reasons, we do not believe that safety 

considerations should prevent increases in stringency of CAFE and GHG emissions standards. 

V. Flexible Compliance Pathways Need to be Part of the Rule making 

In addition to addressing the numeric stringencies of the standards, it is critically important that the final 

rule provide for flexible compliance pathways to assist automakers in achieving those standards in the 

most efficient manner and in a way that incentivizes investment in advanced emission-reduction 

technologies. Two broad types of flexibilities are significant in the administration of the standards. The 

first is allowances for advanced technology vehicles that incentivize technology investment and industry 

innovation. The second are credits and adjustments that recognize real-world benefits of either fuelsaving technologies that cannot be measured in the 2-cycle test (i.e., the off-cycle program) or early 

compliance with the standards (i.e., averaging, banking, and trading of various types of credits). Both 

credits are important to manufacturers and benefit consumers. Both types of flexibilities should be 

maintained, and in some cases expanded or extended, to better serve the goals of EPCA and the CAA. 

A. Programmatic Elements that lncentivize Investment in Advanced Technologies 

The MY 2017-2021 regulations provide important flexibilities that encourage the rollout of advanced 

technologies. Advanced technologies, such as BEVs, PHEVs, and FCEVs, continue to cost more than 

gasoline-powered vehicles, but are an important part of industry's shift to lower carbon transportation. 

Industry recognizes that funding a shift to electrification is important to maintaining competitive 

automotive manufacturing and export yet doing so independent of a level-playing field and regulatory 

signals is nearly impossible If industry is to remain competitive. Additional credits are needed to balance 

tomorrow's goals with today's technology costs. Thus, EPA should: {1) extend the 0 g/mi upstream 

provision, without limitation, and (2) extend the advanced technology vehicle multipliers through MY 

2026. NHTSA should consider including these credits as well to the extent that are not already captured 

,. See PRIA at 1358. 57 "None of the estimated effects have 95-percent confidence bounds that exclude zero, and thus are not 

statistically significant at the 95-percent confidence level." See PRIA at 1348. 

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under NHTSA's existing alternative fueled vehicle credits and, like the precedent set by adoption of offcycle credits, consider including an advanced technology multiplier. 

NHTSA and EPA raise several potential objections to incentives for advanced technology, including: 

The possibility that advanced technology credits may distort the market by incentivizing 

manufacturers to build vehicles for which there is no natural market; 

The possibility that overly-complex credit schemes without sufficient transparency may 

complicate the ability to understand manufacturers' paths to compliance or create unnecessary 

costs to track, account for and manage the credits; 

The possibility that advanced technology credits will induce manufacturers to invest in certain 

government-favored technologies and encourage "rent-seeking" to protect those credits; 

• The possibility that advanced technology credits may disadvantage manufacturers by 

encouraging them to become overly reliant on credits instead of improving vehicles to meet 

market demand."' 

The agencies seek comment on how credits may be changed to avoid these negative effects, as well as 

whether to allow all credits (other than those mandated by statute) to expire." 

Global Automakers strongly supports continued incentives for advanced technology vehicles in 

coordination with reasonable and meaningful year-over-year improvements in fleet stringency. Global 

Auto makers also supports extending the sunset date of those policy incentives from MY 2021 to MY 

2026. There is little disagreement that advanced technology vehicles will be needed, both here and 

abroad, to maintain automakers' competitiveness and meet societal goals for reductions in 

transportation-related GHG emissions. There is also little disagreement over the fact that as these 

technologies develop, their costs will come down; however, at present, the costs of vehicle 

electrification still exceed their gasoline-powered counterparts. These vehicles will need to be part of 

the future of the vehicle market, and thus manufacturers must build a foundation for these vehicles in 

the market now. But consumers have been slow to accept these vehicles, in part because most states 

have done little to provide infrastructure for these vehicles. As a result, these vehicles will struggle to 

establish a foothold in the market without the temporary support that incentives provide. In the interim, 

providing credits for these vehicles can help manufacturers use an integrated approach to how they 

manage their fleet and rollout advanced technologies in a smart and cost-effective manner. 

Based on these points of view, the potential objections to incentives for advanced technology vehicles 

are easily addressed. The concerns that credits for advanced technology vehicles will divert resources 

into vehicles for which there is no natural demand, encourage "rent-seeking," or encourage 

manufacturers to become reliant on these credits to the detriment of their rest of their fleets, are not 

borne out by the evidence. First, the market share of these vehicles is currently very small-less than 1.5 

'"83 Fed. Reg. at43441-442. 59 /d. at 43442. 

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percent of new vehicle sales- even though these incentives have been in a place for almost a decade.60 

Because the market for advanced vehicles is so small, it is not likely that incentives will distort the much 

larger market for conventional vehicles in any material way in the next seven years. Similarly, concerns 

about the administrative complexity and transparency of these credits have not been raised during the 

several years that they have already been in place. There is thus no reason that the extension of these 

credits will result in a lack of transparency or administrative complexity. 

The slowly-developing market for electric vehicles justifies the extension of the credits in these 

regulations. Policy incentives supportive of industry's pursuit of electrified vehicle technologies will help 

bring them to market in greater numbers, more rapidly and at a more reasonable cost. Regulatory 

incentives, which do not cost the government anything in terms of dollars, are the best means of 

smoothing that transition. For these reasons, Global Automakers strongly supports extending advanced 

technology vehicle multipliers until MY 2026. 

Automakers recognize that many models of electric-drive vehicles depend on the use of the nation's 

electric grid to supply capacity to the vehicles. However, consumers do not choose the manner that the 

grid uses to generate power. The automotive and the utility generation industries are two distinct 

industries with different market realities and goals. While electric-drive vehicle charging is dependent on 

the grid, automakers do not have input into the electricity generation choices and therefore should not 

be responsible for emissions generated by another industry. The 0 g/mile upstream provision is critical 

to maintaining the autonomy of each of these industries while also promoting a full-range of vehicle 

options for consumers. 

In addition, hybrid vehicles have been in the market for nearly 20 years, but these vehicles continue to 

face consumer challenges, particularly when gasoline prices are low. The challenges of transitioning 

hybridization beyond passenger cars has proven to be more complex than initially projected and 

modeled. In addition, hybridization helps build the industrial manufacturing base for electrification. To 

further encourage hybridization, EPA should expand its hybrid truck incentives, which is presently in· 

place for full-size pickup trucks, to all light-duty trucks, without the minimum sales provision, through 

2026. The agencies should consider a smaller incentive for passenger cars as well. 

Inclusion of advanced technologies credits is important to the GHG and CAFE standards, because they 

provide support to market signals and help smooth compliance costs. These incentives are the advanced 

technology vehicle counterpart to the credits offered for technologies that improve efficiency in 

conventional vehicles in the powertrain and beyond. like the credits available for conventional vehicles, 

incentives for advanced technology vehicles encourage manufacturers to innovate and to bring those 

innovations to market more quickly. 

60 Pannone, G.; Betz, B.; Reale, M.; and Thomas, J. "Decomposing Fuel Economy and Greenhouse Gas Regulatory 

Standards in the Energy Conversion Efficiency and Tractive Energy Domain," SAE lntf'mationol. March 28,2017 

(Accessed August 11, 2018). 

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B. Credit Averaging, Banking and Trading that Facilitate Early Compliance 

Earned and banked credits reflect manufacturer investment in technologies to improve fuel economy 

and reduce GHG emissions beyond the levels specified by the regulatory targets, providing early 

environmental benefits and additional fuel savings value for customers. Table X·1 of the NPRM outlines 

the flexibilities currently provided with respect to the use of credits." Global Automakers supports 

improving these aspects of the National Program, as outlined below. 

1. Extend GHG Credits 

EPA has requested comment on whether to allow credits to be carried forward for longer periods, or to 

allow credits to never expire. 62 Currently, GHG credits earned in MY 2010-2015 may be carried forward 

until MY 2021, and other GHG credits are subject to the five-year carry-forward provisions. To be clear, 

the GHG credits may only be used once; but once earned, they should remain viable until used. The 

environmental rationale is that an avoided ton of GHG emissions is avoided in perpetuity, and thus the 

credit associated with that avoided ton should not expire. GHG credits represent real and actual 

environmental benefits that are not undone at five years. In addition, as EPA has noted, "longer credit 

life would provide manufacturers with additional flexibility to further integrate banked credits into their 

product plans, potentially reducing costs."63 Thus, a longer credit life for GHG credits is warranted. 

Additionally, Global Auto makers requests that EPA allow for a one-time expiration date extension 

through MY 2026 for GHG credits earned in previous years. How far back this carry-forward should 

reach should be determined by the agencies, considering program stringency, industry's needs, and 

impact on programmatic benefits. Unexpired, previously-earned credits represent real and actual fuel 

savings and GHG reductions and will be important for addressing compliance deficits, as seen in recent 

MY 2016 and 2017 perfornnance data. Credits provide a rationale for investment and allow auto makers 

an ability to account for the variability of product development cycles inherent in the auto industry. 

Further, these same credits can help "provide flexibility to account for market conditions that may 

impact year-over-year compliance."64 

2. Transfer of EPCA Credits 

EPCA caps the amount of credits a manufacturer can transfer each year; for MY 2018 and beyond, that 

limit is 2.0 mpg per year. Global Automakers has petitioned NHTSA to apply the limit when credits are 

transferred, not when they are used.ln the NPRM, NHTSA proposes the opposite approach, wherein it 

intends to apply the limit when credits are used rather than when they are transferred. 65 Global 

Auto makers opposes this proposal, because it is inconsistent with EPA's program, is not statutorily 

61 83 Fed. Reg. at 43442. 

"83 Fed. Reg. at 43464. 

"83 Fed. Reg. at 43464. See also 77 Fed. Reg. at 62798 (Oct. 15, 2012) (noting that carry forward credits "provide 

flexibility to account for market conditions that may impact year-over-year compliance"). 64 1CCT. Ught-Duty Vehicle Greenhouse Gas and Fuel Economy Standards. 2017. Retrieved from: 

https://www.theicct.org/sites/default/files/publications/2017-Giobai-LOV-Standards-Update ICCTRePOrt 23062017 vF.pdf. 

"83 Fed. Reg. at 43452. 

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required, and is unnecessarily constraining, with little to no additional fuel savings. Global Automakers 

incorporates the discussion on this issue from its earlier Petition for Direct Final Rule it filed with the 

Auto Alliance.•• 

3. Trading of E PCA Credits 

Under EPCA, credits may be traded between manufacturers in unlimited quantities, although traded 

credits may not be used to meet the domestic passenger car standard. NHTSA seeks comment on 

whether this trading program should be discontinued, noting the "potential for compliance flexibilities 

to have unintended consequences."" NHTSA does not point to any specific unintended consequences, 

but it does state that when credits are traded, "the public is not made aware of inter-auto maker trades, 

nor are shareholders. And even the agencies are not informed of the price of credits."68 

For the most part, when a manufacturer uses credits that they have obtained, it is to offset a short-term 

gap and not as a long-term solution. For some manufacturers, these credits are used during periods 

when the next steps of research and development are occurring to make gains in fuel efficiency and to 

create the next generation of vehicles. Without such assistance, it is difficult for companies to remain 

competitive as they meet today's obligations while also planning to meet future standards. 

Global Automakers recommends continuing the option for manufacturers to trade credits. It lowers 

costs for manufacturers and consumers and results in real fuel savings across the fleet. Through existing 

processes, manufacturers report on trades that are made to the agencies, which includes the credits in 

their banks. The agencies may not be informed of the price of the credits at each trade. The fact that the 

agencies are not informed of the price of credits for each trade and that this highly sensitive information 

is held for competitiveness reasons is no justification for discontinuing the program.ln private markets, 

trades and prices often are not made public; this privacy does not mean that the markets operate any 

less effectively, nor that the public at large does not benefit from the transactions that lower costs for all 

parties. Nonetheless, the agencies do know which companies are trading credits and where and how the 

credits are being used, which is the most important aspect of the program. 

C. The Importance of Off-Cycle and Air Conditioner Efficiency Technologies 

Off-cycle technologies spur innovation as manufacturers strive to improve the overall efficiency of 

vehicles, not just the efficiency of the powertrain, and air conditioner efficiency technologies promote 

additional fuel savings onboard the vehicle when the vehicle operates with the air conditioner on. The 

off-cycle technology program is intended to encourage use of additional fuel saving technologies with 

real-world emissions benefits not captured through laboratory testing. Since they provide efficiency 

improvements for the vehicles, the off-cycle technology credits were considered as part of the EPA's 

standards-setting process since MY 2012 and later were recognized by NHTSA as efficiency 

66 Petition for Direct Final Rule by Alliance of Automobile Manufacturers and Global Automakers to NHTSA and EPA 

(June 20, 2016) at pp. 13·15. 

"83 Fed. Reg. at 43452. 

"83 Fed. Reg. at 42998. 

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improvements in the MY 2012-2021 CAFE standards." Manufacturer and supplier resources have been 

dedicated to developing, testing, and implementing these technologies since ONP started; these are real 

fuel savings, but also real company investments, that would otherwise be stranded should the agencies 

significantly alter or remove these credits. 

As the agencies have recognized, fuel economy and GHG emissions are determined through regulated, 

standardized testing procedures (the "2-cycle test") that do not recognize the savings in fuel 

consumption that certain technologies generate.'0 As an example, the NPRM notes that because NC is 

turned off during 2-cycle testing, the reduction in energy demand that improved A/C technology yields is 

not captured in the test. 71 For 2017 and beyond, NHTSA has developed regulations to capture such 

efficiencies in fuel economy values." For its part, EPA began recognizing off-cycle credits in the 2012· 

2016 MY standards.73 

At this juncture, however, we note the overall importance of these technologies in helping the industry 

comply with the standards. For the 2016 MY, the fleet reduced GHG emissions by an average of three 

g/mile (or about 0.5 mpg) through off-cycle technologies, not including A/C.74 A/C efficient technologies 

provided another four g/mile reduction in GHG emissions in 2016.75 The recognition of off-cycle 

technologies gives manufacturers a way to obtain a return on investments in technology and thereby 

reduces the "first mover" disadvantage in new fuel economy technology. They also lower manufacturer 

-and therefore consumer- costs by allowing manufacturers to choose the most cost-effective means of 

complying with the standards, while at the same time providing real and actual fuel savings and 

reductions in GHG emissions. 

The agencies note, however, several potential objections to the off-<:ycle and NC efficiency programs, 

including the diffiCulty in administering the program and the opposition of certain groups to the 

program on the grounds that many of the technologies are commonplace and not deserving of 

incentivization.76 Global Automakers disagrees. Many of the benefits of off-cycle and NC efficiency 

technologies are specified in the regulations and therefore are easy to determine; these values can 

always be reassessed and adjusted if sufficient data demonstrates a gap in the agency-determined 

values. 

"."These credits reflect real world emissions reductions, so they do not raise the levels of the Achieved C02 

values, but they do allow manufacturers to meet their compliance targets with 2-cycle test C02 emissions values 

higher than otherwise apply." US EPA. Regulatory Impact Analysis: Final Rulemaking for 101 7·1015 Light-Duty 

Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards. at 4·128. 70 83 Fed. Reg. at 434S4. 71 1d. 72 1d. 

1lld. 

74 See Greenhouse Gas Emission Standards for Light-Duty Vehicles: Manufacturer Performance Report for the 1016 

Model Year (EPA Report 42D- R18-o02), U.S. EPA (Jan. 2018), at p. 41. 

https :ljnepis.epa .gov /Exe/ZyPOF .cgi? Dockey=P lOOTG lA .pdf. 

"83 Fed. Reg. at 43053. 

"83 Fed. Reg. at 43467-469. 

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Four of the Alternatives offered in the proposal would phase-out the benefits of off-cycle technologies." 

Global Automakers opposes the phase-out of these provisions for several reasons. First, these 

technologies provide real-world environmental benefits that should be recognized and accounted. The 

incentivization of these technologies is consistent with agencies' mandates to conserve fuel and protect 

public welfare. 

Second, manufacturers and suppliers have invested substantial sums to develop these technologies on 

the reasonable expectation that they would continue to be recognized. The cost of these technologies 

must be amortized over the life of the vehicle. If the agencies no longer recognize the benefits of these 

technologies, they will be imposing a loss upon the manufacturers in the form of stranded investments. 

Global Automakers notes that the agencies suggest that the proposed phase-out of credits will avoid 

hardship on manufacturers.'• No analysis is provided to support this finding. In fact, investments in offcycle technologies are amortized over the life of the vehicle platforms, which can be five to seven years 

long."' A phase-out that begins in three model years (i.e., the beginning of MY 2022) is not long enough 

to allow manufacturers to fully amortize their investments in these technologies. In contrast, such a 

phase-out may have the reverse effect of constraining manufacturers' ability to meet the standards. 

Third, phasing out these programs will deprive manufacturers of the freedom to use the lowest-cost 

technologies to meet the standards. As the agencies themselves note, "the modeling shows that phasing 

out the A/C efficiency and off-cycle programs decreases fuel consumption over the 'no change' scenario 

but confirms that manufacturers will have to apply costlier technology to meet the standards."80 This 

costlier technology would also have to be procured, integrated and validated in a shorter than expected 

period oftime. 

Moreover, the off-cycle program should be streamlined, not discarded. While the off-cycle program has 

been amended, it continues to be unnecessarily restrictive and time-consuming, which slows product 

investment and implementation. The program also represents an area where EPA and NHTSA have an 

opportunity to better align, along with CARS, and fix the current system to account for real-world 

emissions reductions and fuel economy savings in the same capacity, as well as through a timely and 

efficient process. This will provide manufacturers with more certainty about benefits of off-cycle 

technologies under consideration, bring technology into the field more quickly, and encourage 

additional manufacturer and supplier investment in new, innovative fuel saving technologies. 

To the extent that off-cycle technologies are validated based on manufacturer petitions under the 

alternative approval method, Global Automakers favors adding new technologies to this "menu" 

n 83 Fed. Reg. at 42990 (Alternatives 3 and 7). 78 83 Fed. Reg. at 43468-369. 19 "Automotive Product Development Cycles and the Need for Balance with the Regulatory Environment," Center 

for Automotive Research (Sept 20, 2017); https://www.cargroup.org/automotive-product·development-cydes· 

and·the-need-for-balance·with·the-regulatorv-environment/. 

80 83 Fed. Reg. at 43469; see also 83 Fed. Reg. at 43225 fn. 64. 

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whenever a manufacturer has demonstrated the value of a new technology, which will further ease the 

administrative burden of the program. The menu does not complicate the administration of the 

standards. Global Automakers is willing to work with EPA on ways to streamline the program. 

The agencies also note that the program may result in double-counting of the benefits of these 

technologies because of specific features of the 2-cycle test and the 5-cycle test.'1 To the extent that this 

is an issue, Global Automakers recommends that the agencies fix this specific issue rather than discard 

these beneficial programs entirely. 

Finally, the fact that certain technologies are widely deployed throughout the industry is not a reason to 

ignore their real-world benefits. While the off-cycle program may spur innovation, it also is designed to 

recognize the benefits of technologies that actually reduce fuel consumption and decrease GHG 

emissions that would not otherwise be counted by the standardized test procedure. Many times, these 

emissions benefits result in the addition of complementary technologies to support powertrain and 

chassis improvements and can be cost-effective approaches to managing the overall fuel efficiency of a 

vehicle. Plus, as further noted below, the program does not yet operate at an efficient enough level to 

promote innovative technologies earlier application in vehicles, so by default, the program requires a 

certain level of widespread usage before credits are valued and applied. 

Our primary requests to NHTSA and EPA regarding off-cycle technologies are to reduce programmatic 

and process-related burdens, while still encouraging improvements to fuel economy and GHG emissions 

reduction and maintaining the off-cycle technology program, as well as the A/C efficiency program. Our 

requests to help streamline and improve the program include the following, and a markup of the current 

regulations identifying the issues to be addressed is attached as Attachment B. 

1. Defining a Time Limit to Address Applications 

For the vast majority of comments on regulatory processes, the agencies have defined timelines for 

public comment and response; this is not the case for applications for off-cycle technology grams per 

mile requests. Certainty through a timelier response to applications would allow auto makers to better 

plan and would incentivize the use of advanced technology helping deliver greater environmental 

benefits. While often times manufacturers meet with EPA prior to submitting an application, to discuss 

methodology and data collected, even once an application is submitted, time delays to process the 

application exist. For example, four months passed between the receipt of the application from Toyota 

Motor North America and its public notice for comment.'' Despite recent activity to clear applications, 

however, several application requests remain outstanding with no EPA response, and these pending 

81 /d. 

"Toyota Motor North America's application was submitted on December 7, 2017 (see note 5, above), but this 

Notice was not published until February 26, 2018. 

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applications need to be addressed in a timely manner, preferably before the close of the model year, 

since the credits will be used to determine overall vehicle compliance." 

Going forward, Global Automakers recommends that EPA issue Federal Register notices for submitted 

off-cycle applications under the alternative method within 30 days and issue a final decision within 90 

days. In the event that EPA lacks resources to address all the details in applications, the agency could 

partner with national laboratories, like the National Renewable Energy Laboratory, to conduct reviews, 

provide input and even help validate requests, if needed. National laboratories understand both the 

peer review process and the need for science-based, data-driven scrutiny of technology. Their 

experience and third party nature make the labs clear allies in the analysis process, while reducing the 

burden of review by EPA staff, and in coordination with CARS and NHTSA, when needed and 

appropriate. 

2. Expediting Approval for Applications and Adding to the Pick List 

Once off-cycle technologies are approved by EPA for use by specific manufacturers, to the extent 

additional auto maker applications will contain the same request, EPA should evaluate a method to add 

these technologies and/or the process for determining their credit values to the pick list. We suggest 

that EPA streamline efforts to avoid reduplication of applications in situations where multiple 

automakers have submitted petitions for same technology. This addition would greatly streamline EPA's 

process and the influx of requests for the same technology. 

The current process for evaluating applications for off-cycle credit under 40 CFR § 86.1869-12(d) can 

result in excessive time between notice for public comment in the Federal Register and completion of a 

final application,84 and several application requests remain outstanding with no EPA response.8

' Global 

Auto makers has previously commented, in the context of each application for the Dense A/C efficiency 

technologies, that EPA streamline and standardize the off-cycle application process. This particular 

technology has been requested for credit approval by six automakers (BMW, FCA, Ford, GM, Hyundai 

and Toyota), and has thus far been approved for five of the six. EPA now has demonstrated experience 

with applications for this technology, and this particular example demonstrates that process 

improvements are needed to speed approval of previously-approved technologies. 

The pick list has always served as a conservative starting point for off-cycle technology credit values and 

provides a simple and easy path for achieving credits. Many technologies in recent years have been 

applied for, and approved, by several manufactures citing robust scientific evidence for these values. 

Following approval of new credit values for technologies, EPA and NHTSA should add these new credit 

"EPA. "Compliance Information for Ught-Duty Greenhouse Gas (GHG) Standards." Retrieved from 

https;//www.epa.gov/vehicle-and-engine-certification/compliance-information-light-dutv·greenhouse-gas-ghgstandards. (Accessed March 22, 2018). 84 Toyota Motor North America's application was submitted on December 7, 2017 (see note 5, above), but this 

Notice was not published until February 26, 2018 . 

., EPA. "Compliance Information for Ught-Duty Greenhouse Gas (GHG) Standards." Retrieved from 

https:Uwww.epa.govtvehicle-and-engine-certification/compliance-information-light-dutv-greenhouse-gas-ghgstandards. (Accessed August 22, 2018). 

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values to the pick list, to encourage additional implementation of the technology by more 

manufacturers and to allow for an equal playing field across industry. Examples of recent technologies 

that could be added to the pick list include, for example, but are not limited to: advanced A/C 

compressor, high efficiency alternator, and variable crankcase suction valve compressor. 

This request is not intended to force EPA's and NHTSA's hands to add every technology to the pick list. 

Indeed, some additional parameters may need to be included, like agreement that the value added to 

the table may be a conservative estimate, that the equation to determine a credit would likely still 

require some manufacturer or supplier generated data to substantiate the credit claim, or that some 

threshold for applications for alternative technology values could be established to signal that a 

technology is widely used prior to adding it to the pick-list. In the end, however, this process 

improvement could greatly increase efficiency of the off-cycle technology program and would promote 

innovation and fuel savings throughout the program. It would also provide additional certainty to 

manufacturers, who have included off-cycle technologies in vehicles as part of their strategy for 

improving efficiency, and ideally provide this certainty in advance of a model year. 

It may also be appropriate to reevaluate and/or adjust existing credit values in the table, since many 

automakers have applied for higher values than the table has offered, demonstrating that the original 

values appear to be overly conservative. In the event that any values are adjusted, they must be done so 

prospectively only. 

3. Establishing a Supplier Process to Apply for Off-Cycle Credits 

The fuel economy and GHG emission regulations have not only encouraged significant manufacturer 

investment in the past years but have also encouraged and supported a renewed investment in 

technology development by automotive suppliers. Suppliers are innovating at an unprecedented pace 

and have devoted many resources to the development of more efficient, fuel saving technologies in 

recent years, including many off-cycle technologies; but a chicken and egg scenario remains. 

Suppliers develop technologies and work with manufacturers to incorporate them. The manufacturer 

then has to take a "bet'' on buying the technology, running it through testing, and ultimately submitting, 

and waiting, for EPA approval before there is any guarantee of receiving credit for use of the technology. 

A better way to encourage faster rollout of new and innovative technologies would be to allow suppliers 

to request, from the outset, a grams per mile values for their off-cycle technologies. Suppliers could 

submit an initial application for pre-approval by EPA, determining an appropriate and conservative 

provisional off-cycle technology credit value. The resulting quantification would provide automakers a 

minimum guarantee of off-cycle credit once the technology is incorporated onto vehicles. This would 

help reduce process-related uncertainty and encourage earlier adoption of societally beneficial 

technologies. 

Global Automakers is supportive of the proposed concept as developed by the Motor Equipment 

Manufacturers Association {MEMA). This proposed concept would provide a clear process to analyze the 

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benefit of new technologies and how they might best be tested and incorporated into the off-cycle 

technology program." 

4. Streamlining the Data or Testing Requirement Process 

Some of the data required to accompany the alternative approach applications for off-cycle technology 

is extensive, burdensome, and often poorly defined. The agency should explore ways to streamline the 

data collection and/or testing process. One possible approach would be to provide a defined template 

of requirements, information to be shared, and a standardized process for data review.ln the 

certification space, this is done on an annual basis with a collaboration between EPA and industry. These 

process improvements would reduce burden on both industry and EPA. 

5. Eliminate the 10 g/mi Fleet Cap 

As more technology receives off-cycle credit values, this arbitrary cap will restrict innovation. EPA should 

lift the cap now in anticipation of increased use of technologies, like start-stop, LED headlamps, and 

even advanced safety technologies that may provide real-world emission and fuel saving benefits. 

Global Automakers supports full elimination of the cap but could also support raising the cap to 15 g/mi. 

6. Eliminate Regulatory Language that Prevents Off-Cycle Technology Credits for 

Advanced Safety Technologies 

Current EPA regulations prevent the ability to apply for off-cycle technology credits for advanced safety 

technologies.•' Many of these technologies have real and measurable emissions benefits, resulting from 

improved flow of traffic, less idling and reduced congestion resulting from fewer crashes. The current 

EPA rule prohibits manufacturers from obtaining off-cycle credits for installing such technologies in 

passenger vehicles. 

EPA has the opportunity to revise the regulation to explicitly authorize off-cycle credit petitions for 

advanced safety technologies, such as connected vehicle technologies, that can demonstrate emission 

reduction benefits. The process of providing a methodology and data to support emissions benefits and 

fuel economy savings is well established in the industry and with the agencies. Additionally, these 

technologies continue to prove wider industry use and increased consumer adoption of the 

technologies. The agencies can seize the opportunity to assist the market leadership in this country by 

offering a path forward to gain benefits for investing in technology that has both safety and 

environmental benefits. At a minimum, the regulatory text needs to be struck, to allow all parties an 

opportunity to consider whether these technologies are appropriate under the GHG program. Adding 

such a credit value would encourage manufacturers to Implement this technology, accelerating both 

real-world emission reductions and safer roadways. 

"Motor Equipment Manufacturer Association Comments to this Notice of Proposed Ruiemaking. 

"40 CFR 86.1869-12. 

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D. The Importance of Maintaining Non-C01 Emissions in the EPA Program 

EPA has also requested comment on whether to phase out regulation of non-CO, green house gases, 

such as methane, nitrous oxide and A/C leakage and refrigerants. 88 EPA proposes to do so in MY 2021. 

EPA believes that the inclusion of these compounds in the current standards creates disharmony 

between the NHTSA and EPA standards. 

Global Au tom akers does not consider the regulation of non -C02 GHGs to be a source of disharmony 

between the regulatory regimes of NHTSA and EPA. As noted earlier, the regulations can be consistent 

even if they are not identical, and Global Automakers prefers a small numerical divergence in EPA's and 

NHTSA's standards if it provides for a consistent and certain federal policy, rather than resulting in a 

separate patchwork of fragmented state regulations. 

A/C refrigerant and leakage credits are important, because while they do not directly impact the 

efficiency of the vehicle, with respect to EPA's program, they provide real and additional GHG reductions 

by reducing refrigerant leakage and encouraging a transition to lower global warming potential 

refrigerants. In the context of the GHG program, this approach is smart and cost-effective, because it 

does not require these changes, but instead works with the overall package of flexibilities to provide an 

additional compliance path for reducing overall vehicle GHG emissions, according to the best strategy 

for the vehicles and the customers that buy each vehicle. 

We also support continuation of EPA's NC leakage credits, because they result in real world GHG 

emissions reductions, are complementary to EPA's program, and are better managed through a timely, 

coordinated federal policy. Global Automakers does not support the proposal for implementing a 

separate regulatory program to address NC leakage for several reasons. First, if EPA separately 

regulated these aspects of the program, it greatly limits the ability to select the most cost-effective 

approach for technology improvements and result in a costlier, separate set of regulations that actually 

relate to the overall GHG standards. A/C leakage and refrigerants are part of the overall vehicle system, 

and since they result in real GHG emission reductions when controlled, they should be controlled as part 

of the overall strategy and technology plan specific to each vehicle. 

Second, it takes agency resources and time to promulgate separate and new regulations, and this would 

result in a gap in controlling these elements, while also leaving the floor open for states to take separate 

action in this area. In the time it takes to promulgate these rules, states may take separate action to 

regulate, or even ban, refrigerants. This would result in a patchwork approach to regulating GHG 

emissions, less integration in technologies to achieve separate sets of standards, and a potentially more 

stringent compliance scenario since trade·offs could not be made for the most cost-effective 

approaches. Global Auto makers much prefers a coordinated, systematic approach to A/C leakage and 

refrigerant, that allows for a smart, cost-effective approach to technology improvements on a per 

vehicle basis to having to manage separate state standards, or even refrigerant bans, that attempt to til 

the gap in federal policy. Further, there is the potential that EPA's CAA authority may not be as directly 

88 83 Fed. Reg. at 42988. 

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applicable if NC leakage is controlled separately, or even by another branch of the agency.lt is unclear 

to what eKtent federal CAA authorities would apply if states took separate action in these areas; there 

are several states that may consider taking action if EPA does not take it, and this would be problematic 

without the ability for federal oversight. On the other hand, if these provisions remain part of the overall 

vehicle GHG regulations, EPA maintains clear CAA waiver authority for any separate action to regulate 

these aspects. 

Third, the proposed phase-out could harm manufacturers economically. Our manufacturers have 

already invested capital and know-how to develop technology to meet the current regulations. The 

proposed phase-out also creates another risk that manufacturers will have stranded capital in 

technologies that are not fully amortized. While EPA states that it will impose separate regulations for 

MY 2021 and beyond, that is less than three years ahead. Phasing out these standards creates 

uncertainty for manufacturers, who may find themselves subject to different regulatory standards for 

these compounds in the future depending on the outcome of the rulemaking for the new regulations. 

Continuing the availability of A/C leakage credits is critical to enabling EPA to meet its legal mandate to 

drive more efficient vehicles, while allowing support for market competitiveness in the face of other 

global actors. 

Finally, EPA also asked whether, if it continues to regulate these compounds, the regulatory 

requirements should be modified. At this point, Global Automakers recommends that they remain in 

place per the eKisting program but continues to support that the N,O testing is not necessary ... 

E. Treatment of ElO Test Fuel for GHG Testing 

In 2013, EPA finalized the Tier 3 light-duty vehicle emissions regulations, which require the use of 10% 

ethanol ("E10") test fuel for fuel economy testing by MY 2020; however, EPA still has not issued the 

"In Global Automakers' May 15, 2017 comments to EPA on the "Evaluation of Existing Regulations" [82 FR 17793, 

April13, 2017], we note: 

Over the years, manufacturers have worked with EPA to address concerns with available 

technology to test for N20. Manufacturers have also raised concerns with test-to-test variability 

and the cost of such technologies. At one point in time, EPA did agree to delay the test 

requirements as a result. These concerns, however, have not been addressed, and testing remains 

a significant burden with little to no benefit to the environment or impact on meeting the GHG 

standards. 

Therefore, Global Automakers strongly recommends reducing the need for N20 testing or 

eliminating these test requirements in their entirety.lt should be sufficient to allow manufacturers 

to attest to compliance with the N20 capped standards based upon good engineering judgement, 

development testing, and correlation to NOx emissions. EPA could, however, maintain the option 

to requesttesting to be performed for new technologies, only, which could have unknown impacts 

on N20 emissions. 

The elimination or significant reduction of these testing requirements for N20 may exceed 

$600,000 per year in savings per manufacturer. 

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regulatory changes necessary to enable such testing. This delay has eroded the expected lead time for 

this changeover, cast doubt on the feasibility of the MY 2020 deadline, unnecessarily increased testing 

burdens, and created considerable uncertainty in manufacturers' product development and compliance 

planning processes. Global Automakers reiterates our previous requests that the agencies use today's 

rulemaking to issue guidance to continue use of the current EO test fuel until EPA and industry can 

finalize the necessary test procedure adjustment regulation. 

The provisions of 40 C.F.R. § 600.117 were put in the Tier 3 rule as a stopgap measure until EPA could 

incorporate the necessary changes to allow E10 testing for fuel economy and GHG via new rulemaking. 

EPA did not intend for a lack of new updated regulations to create the current situation where the MY 

2020 regulations do not permit testing on either fuel {EO or E10) for fuel economy and GHG reporting. 

In recent discussions with EPA, industry has proposed several ways to address the yet-to-be issued 

regulations, ranging from the issuance of a test procedure adjustment concurrent with the Tier 3 final 

rule back in 2013 to, more recently, the issuance of a standalone, limited-scope rulemaking to postpone 

the MY 2020 deadline for the test fuel changeover. Since there are no provisions in the existing 

regulations to test on EO or E10 starting in MY 2020, industry requested that EPA issue an extension of 

the Tier 2 EO testing provisions in 40 C.F.R. § 600.117 past its current expiration date at the end of MY 

2019.1ndustry has also urged EPA to address test procedure adjustments in coordination with the next 

rulemaking action- the current SAFE NPRM would provide such a forum to do this. In addition, industry 

has requested that EPA issue a guidance letter that would have the effect of assuring no adverse action 

against industry in the absence of updated testing regulations. 

Measuring and accounting for co, in a consistent manner is critical for consistency and equity in 

regulatory treatment regardless of the test fuel used. The measurement methods, which have been 

used for many years for ethanol containing fuels, have correctly accounted for upstream GHG emissions 

and have set a precedent for how co, from new ethanol fuels should be measured. EPA should 

therefore seek to maintain consistency and should strive to avoid adopting arbitrary and inconsistent 

approaches based solely on the amount of ethanol in the fuel. 

The approach that EPA followed in implementing the measurement of co, emissions from ESS flexible 

fuel vehicles (FFVs) establish a precedent to follow for how co, emissions should be measured from 

other ethanol fuels. The co, emissions from ESS FFVs tested on ESS are reported as direct 

measurements from the tailpipe of C02 g/mile, without any adjustments."' For ESS FFVs, EPA correctly 

avoided double counting the benefits of ethanol-derived C02• Had EPA increased the measured tailpipe 

co, to debit the fuel for its improved C02 performance, this would have constituted a double counting 

90 See EPA Guidance C0-14-18, https://iaspub.epa.gov/otaaoub/display file.jsp?docid=33581&flag=1: • ... FFV 

emissions will be based an measured C02 results from emissions resting on the fuels an which the vehicle 

operates." November 12,2014. And, see GHG and CAFE Final Rule, 75 Fed Reg 25433. • ... EPA believes the 

appropriate approach is ta ensure that FFV emissions are based an demonstrated emissions performance." May 7, 

2010. 

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of the benefits. EPA would have been then obligated to revise co, credits elsewhere, such as for ethanol 

producers. 

The 2012 GHG Final Rule established procedures for measuring emissions from FFVs that are operated 

on both E10 and E85. In essence, auto makers must measure tailpipe GHG emissions on both gasoline 

and E85, and weight these two tailpipe results by a "utility" factor that reflects the percentage of time 

FFVs are fueled with EBS; there is no adjustment factor applied to the EBS results for FFVs. The GHG 

Final Rule cites a methodology to allow for FFVs to receive credits for their real-world emissions 2012 

benefits: 

This methodology established a default value where ethanol FFVs are assumed to be operated 100 

percent of the time on gasoline, but allows manufacturers to use a relative E85 and gasoline vehicle 

emissions performance weighting based either on national average E85 and gasoline sales data, or 

manufacturer-specific data showing the percentage of miles that are driven on E85 vis·a-vis 

gasoline for that manufacturer's ethanol FFVs. Since tailpipe GHG emissions from FFVs operated 

on EBS are typically slightly lower than those from gasoline operation, this methodology provides 

on opportunity for ethanol FFVs to eorn GHG emissions credits, porticularly if EBS use grows in the 

future. 91 (Emphasis added) 

Thus, the adoption of a C02 adjustment factor for vehicles tested using other ethanol-containing fuels, 

such as Tier 3 E10 fuel, would therefore be inconsistent with the treatment of C02 emissions from FFVs. 

In contrast, for estimating tailpipe emissions from 2020 and later MY vehicles certified to GHG standards 

utilizing Tier 3 E10 fuel, EPA may be planning to count the co, from combusting ethanol. 

A number of commenters on the 2012 GHG final rule thought that compliance with the tailpipe GHG 

standards should include upstream or lifecycle benefits of biofuels. EPA's response to these comments is 

shown below. 

Several commenters pointed out that cellulose-based ethanol and other renewable fuels have the 

potential to yield large lifecycle GHG emissions benefits due to the C02 uptake during plant 

growth, and recommended that such fuels be given credits, or have compliance measured, to 

reflect the upstream GHG emissions benefits. The use of blofuels with lower lifecycle GHG 

emissions is already required under the Renewable Fuel Standard (RFS) program, which is designed 

to achieve GHG emissions benefits through the required use of renewable transportation fuels 

that have better lifecycle GHG emissions performance than the gasoline or diesel fuel that they 

displace. EPA has already quantified the GHG emissions benefits associated with the RFS program. 

Therefore, as noted above, providing an additional incentive in the MYs 2017·2025 GHG program, 

which is focused on emissions from the vehicle and not life cycle emissions, would not achieve any 

greater use of renewable fuels than is already required under the RFS program, and thus would 

not achieve any greater emissions reductions from the use of such fuel. Thus, providing an 

additional incentive, or using lifecycle emissions for compliance, would reduce the need to take 

other actions and thereby reduce the emissions benefits of the MYs 2017·2025 light-duty vehicle 

91 EPA and NHTSA. 2017 ond Loter Madel Yeor Light·Duty Vehicle Greenhouse Gos Emissions 

ond Corporate Averoge Fuel Ecanamy Standards; Fino/ Rule, 77 Fed. Reg. 199. October 15, 2012. 

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GHG emissions program given that renewable fuel use is already required by and accounted for 

under the RFS program." 

The commenters here are generally stating that upstream benefits of biofuels should be incorporated 

into the tailpipe GHG standards and that ethanol-derived tailpipe C02 should be counted as zero to be 

consistent with the RFS.9

' EPA is aware of this request from industry and appears to agree stating that 

these upstream "would reduce the need to take other actions and thereby reduce the emissions 

benefits of the MYs 2017·2025 light duty vehicle GHG emissions program." 94 EPA knew that its GHG 

standards were based on emission testing of vehicles using EO, and that it was intending to transition to 

an ElO certification fuel. EPA was therefore concerned that if it counted ethanol C02 as zero as in the 

RFS, that the relative stringency of its regulations would be reduced. Any C02 emissions benefit from the 

use of ethanol in gasoline is included in the RFS, but not passed on to the automotive manufacturers. 

To avoid double counting the benefits of ethanol-derived co,, and to make its treatment of ethanol 

derived co, consistent between the RFS and GHG, and also Tier 3, rules, EPA should not count the co, 

derived from ethanol at all. It should only count the CO, derived from gasoline in comparing vehicle 

emissions to the standards, for both baseline and control cases. Thus, when tailpipe emission standards 

are reduced, all the benefits will be only from gasoline. This would make the vehicle regulation 

consistent with the RFS regulation and avoid double-counting reductions in ethanol-derived co,. 

As EPA and NHTSA evaluate and arrive at a SAFE Final Rule, the agencies should determine if there is a 

need to explicitly take into account any stringency adjustment for the Tier 3 change to ElO test fuels for 

fuel economy testing. The agencies should undertake this determination within the SAFE Vehicles Rule, 

because considerations that could affect stringency should not be considered as separate issues but 

should be handled together through a comprehensive evaluation. Performing this evaluation within the 

SAFE Vehicles Rule reduces the need for additional rulemakings in accordance with Presidential 

Executive Order 13777 and is the most logical and efficient approach to evaluating the necessity for 

stringency adjustments. 

There are other important issues in addition to the R-factor that EPA should address in regulations 

pertaining to the ElO test adjustments. First, the regulations will need include an adequate phase-in 

period for the new requirements. A significant testing burden for manufacturers would be created if the 

new regulations do not adequately provide for reasonable carry-over and sequencing of tests. While 

industry is appreciative of EPA staffs acknowledgement of the need for a phase-in as it works to 

promulgate the new test procedures, industry requests that EPA allow for an extended carry-over 

period because of the delay that has occurred in releasing guidance or regulations for industry. 

92 2017 and Later Model Year Ught·Duty Vehicle Greenhouse Gas Emissions and Corporate A~~erage Fuel Economy 

Standards: EPA Response to Comments, EPA-420-R-1Hll7, August 2012, page 6·135. 

"There is some precedent for this concept in existing regulations for estimating fuel economy from FFVs. The use 

of the 0.15 adjustment factor to estimate fuel economy of FFVs operating on E85, (sometimes called the 

petroleum displacement factor), is analogous to not counting ethanol derived co, for estimating tailpipe CO,. 

94 EPA. Response to Comments: Final Determination on the Appropriateness of the Model Year 2022-2025 Light· 

Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation 

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Second, industry requested that EPA provide manufacturers with an updated method for calculating the 

Net Heating Value (NHV) and Carbon Weight Fraction (CWF) of Federal Tier 3 Emissions Gasoline. EPA 

has recognized in previous guidance letters that corrections to the NHV and CWF methods published in 

the CFR are required.95•

96 We ask that EPA apply updates to the methods from letter C0-95-09 and adopt 

the use of modified ASTM International (ASTM) Test Methods 03338 and 03343 for fuels containing 

ethanol rather than MTBE in the forthcoming NPRM. Again, industry is appreciative of EPA staff's 

acknowledgement of the need for adopting the use of these modified methods. 

VI. Additional Issues for Comment 

A. Standardized Template for Reporting 

NHTSA is proposing to adopt a standardized template for reporting all required data for pre-model year 

(PMY), mid-model year (MMY), and supplemental CAFE reports. Standardization of the report template 

and the process can help provide transparency on what is reported to the agencies and at what time. 

Further streamlining the report by making the PMY and MMY reports the same would allow many 

manufacturers to continue the process of submitting PMY reports and then updating the MMY reports 

with the same type of information. This would further simplify reporting and reduce burden for the 

agencies as staff would be able to refer to a single, consistent document template for all reporting 

requirements. An addition to this procedure would be to add a final model year (FMY) report that could 

be an update to the MMY report. This would further clarify the reporting and would allow both NHTSA 

and EPA to use similar end-<lf-model year reporting metrics. 

NHTSA has taken the suggestion of streamlining reporting requirements for end-of-model year one step 

further, by suggesting that reporting include additional data elements related to credit trading. In 

theory, Global Automakers and our members agree that a standardized template with credit trading 

information is appropriate, and there is already a template in use for these types of reporting 

requirements that could be integrated into the end of model year report." The use of this template is 

well established and can be implemented across agencies with very little lag time in learning. Industry 

"EPA recognized that the methods contained in 40 CFR 600.113 are not applicable to Phase II test fuel and other 

oxygenated fuels. U.S. Environmental Protection Agency. "1994-16: Protocol for MPG Calculations for Vehicles 

Tested on Phase II Gasoline." August 5, 1994. Retrieved from: 

https://iasoub.epa .gov /otagoub/display file Jsp ?docid=14096&flag= 1. 96 EPA provided in this guidance revised NHV and CWF calculations based on ASTM 03338 and 03343 for MTBE 

containing fuels. This provides a precedent for revising the fuel economy equations for Net Heating Value and 

Carbon Weight of Fuel. U.S. Environmental Protection Agency. "MPG Calculations for Certification Vehicles Tested 

on California Phase 2 Gasoline." June 1, 1995. Retrieved from: 

https://ia soub .epa .gov /otagpub/display file .jsp ?docid= 14107 &flag=1 

"EPA template for averaging, banking and trading of credits. Available at: https:Uwww.epa.gov/regulationsemissions-vehicles-and-engines/final-rule-control-air-oollution-motor-vehicles-tier-3#additional-resources. 

(accessed September 14, 2018). 

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would suggest combining the two templates (EPA's AB& T and the PMY template) to streamline 

reporting and reduce burden. It is not, however, clear that credit transaction prices should be reported. 

There is no real value to the agencies knowing this information, and since this is confidential business 

information (CBI) status, this information could not be shared publicly at any time. 

B. Application of Fuel Savings Adjustment Factors to Credits Carried Forward or Back 

Beginning in MY 2021 

Global Automakers stands by the arguments made in its harmonization petition."' Global Automakers 

does not believe that the adjustment will result in a windfall of credits to manufacturers or disadvantage 

manufacturers. Instead, it ensures that credits have a consistent value over time. 

C Vehicle Miles Traveled Estimate Alignment for Both Agencies 

NHTSA has proposed to deny Global Automakers' request for retroactive adjustment of the VMT 

estimates of fuel savings.'" We, however, stand by our request made in the June 2016 harmonization 

petition.""' Specifically, we request that NHTSA reconsider its position with regards to the VMT estimate 

used in the adjustment factor. For the previous MYs 2012-2016, NHTSA had estimated VMT separately 

by MY and added an additional estimate for MY 2011 in 2012. VMT needs to be better estimated, 

because there is a potential to undervalue fuel savings per credit if estimates of VMT are off from actual 

usage. 

Estimating VMT remains complex -taking into account various factors such as fuel price, consumer use 

of vehicles and fleet turnover- conditions that are wholly external to vehicle manufacturers. It is for this 

reason that harmonizing VMT estimates for all model years of ONP is particularly important to 

maintaining consistency in manufacturers' compliance planning in light of market conditions and for 

aligning the agencies approaches in modeling the final standards. Credit flexibilities are critical to 

providing the support that ensures companies can meet the requirements of both programs with the 

same fleet of vehicles. It is for this reason that industry has requested that NHTSA apply the EPA VMT 

estimates to MYs 2011-2016. 

D. Looking Beyond 2025 

Much of the world, California, and automakers are already looking ahead to 2030, 2035 and beyond as 

part of ongoing efforts to lower carbon in the transportation sector and ultimately increase 

electrification of the light-duty fleet. Vehicle electrification is not happening in isolation; announcements 

"Global Automakers and the Auto Alliance. "Petition for Direct Final Rule with Regard to Various Aspects of the 

Corporate Average Fuel Economy Program and the Greenhouse Gas Program." June 20,2016. 

https://www.globalautomakers.org/OidSiteContentAssets/bulletin/Joint-Harmonization-Petition-for·GHG-andCAF E-assets/2017·06·20-jo int -a Iii an ce-glob al-h a rmon ization-petition-for-rulema king-pdf. 

,. 83 Fed. Reg. at 43453. 100 Global Automakers and the Auto Alliance. "Petition for Direct Final Rule with Regard to Various Aspects of the 

Corporate Average Fuel Economy Program and the Greenhouse Gas Program." June 20,2016. 

https:f/www.globalautomakers.ors/OidSiteContentAssets{bulletin/Joint-Harmonizatign-Petition-for-GHG-andCAFE-assets/2017-06-20-joint-alliance-global-harmonization-petition-for-rulemaking-pdf. 

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and implementation of technologies that willie ad to connected and automated vehicles continue to 

come out of traditional and non-traditional industry players as well. In addition, ride sharing models and 

alternative transportation options will influence the underlying nature of the automotive business. 

Taken as a whole, these trends will likely provide a more efficient and safer future fleet of vehicles, and 

the need to invest in these technologies should not be ignored. 

Global Automakers believes that this NPRM needs to consider how to support a transition toward 

decarbonization levels necessary to meet our mid-century climate goals. The "post-2025" regulatory 

direction is critical, because these efforts require significant changes in customer behavior, 

infrastructure, and the overall automobile market. These changes will also require billions of dollars of 

investment, which must come from profitable vehicles, as well as protect against the inevitable 

possibility of technology obsolescence and stranded investment. 

It is critical to begin to adopt a long-range view for where industry trends are headed. The agencies can, 

and should, weigh these competing priorities and consider how to properly balance all aspects of the 

regulation through MY 2026. The Midterm Evaluation revealed that the world has greatly changed from 

2012 to 2016, and we do not imagine that the rate of change will slow in the coming years. It for this 

reason that we do not advocate promulgating final standards past MY 2026 unless that framework 

comes with an opportunity for thoughtful mid-course correction along the way. 

Rather, we support developing aspirational goals out to MY 2030, and a future rulemaking consistent 

with those goals. These aspirational goals would include a clear outline of the responsibilities of 

different stakeholders to meet those goals. For instance, more stringent fuel economy standards in 2030 

would necessarily assume a certain market penetration of electric vehicles (EVs). This, in tum, would 

depend on federal and state efforts to support the technology, such as infrastructure investment. The 

later promulgation of the aspirational standards would depend in part on whether states have made the 

necessary investments in electric charging and hydrogen refueling infrastructure. 

VII. Asserting EPCA Preemption is not the Best Way to Preserve One National 

Program 

In the NPRM, NHTSA proposes to find that state regulations of motor vehicle GHG emissions and of Zero 

Emission Vehicles (ZEVs) are both expressly and impliedly preempted under EPCA in order to ensure that 

automakers will be required to comply with a single set of nationwide standards for fuel economy and 

GHG emissions performance.101 While Global Auto makers agrees with this important policy goal to 

coordinate national standards, we do not believe that federal preemption is the best means for 

achieving it. Enforcing EPCA's preemption provision or obtaining a court order that California's GHG 

emission program conflicts with NHTSA's administration of the CAFE program would require years of 

uncertain litigation. Instead, we support a continuation of ONP with California, which would also result 

in automakers complying with a single, unified set of fuel economy and GHG emission standards. 

101 49 U.S.C. § 32901, et seq. 

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As NHTSA points out in the NPRM, EPCA includes an express preemption provision stating: 

When an average fuel economy standard prescribed under this chapter is in effect, a State or a 

pol~ical subdivision of a State may not adopt or enforce a law or regulation related to fuel 

economy standards or average fuel economy standards for automobiles covered by an average 

fuel economy standard underthis chapter.102 

GHG regulations are expressly preempted, NHTSA asserts, because "GHG emissions, and particularly co, 

emissions, are mathematically linked to fuel economy; therefore, regulations limiting tailpipe co, 

emissions are directly related to fuel economy."101 More specifically, NHTSA states: "Standards that 

control tailpipe co, emissions are de facto fuel economy standards because co, is a direct and 

inevitable byproduct of the combustion of carbon-based fuels to make energy, and the vast majority of 

the energy that powers passenger cars and light trucks comes from carbon-based fuels." 104 

NHTSA's position on this question is long-standing and consistent. Back in 2005, NHTSA articulated its 

position that a "state law that seeks to reduce motor vehicle carbon dioxide emissions is both expressly 

and impliedly preempted" under EPCA.'05 NHTSA concluded that "[s]ince the way to reduce carbon 

dioxide emissions is to improve fuel economy, a state regulation seeking to reduce those emissions is a 

'regulation related to fuel economy standards or average fuel economy standards.'"106 N HTSA 

reaffirmed and expanded on this view in the final light truck standards promulgated the following year: 

In mandating federal fuel economy standards under EPCA, Congress has expressly preempted any 

state laws or regulations relating to fuel economy standards. A State requirement limiting C02 

emissions is such a law or regulation because it has the direct effect of regulating fuel consumption. 

C02 emissions are directly linked to fuel consumption because C02 is the ultimate end product of 

burning gasoline ... It is therefore NHTSA's conclusion that such regulation is expressly 

preempted.107 

Despite this consistent view on the part of NHTSA and the technical discussion to support its conclusion 

that state GHG regulations are "related to fuel economy standard," asserting EPCA preemption is not 

without litigation risk. As the agency notes in the NPRM, two district courts have found that California's 

GHG emission standards are not preempted under EPCA if California obtains a CAA Section 209(b) 

waiver from EPA.'08 We note, however, that the Green Mountain case was on appeal and that the case 

102 49 U.S.C. § 32919(a) (quoted at 83 Fed. Reg. at 43,233. 103 83 Fed. Reg. at 43,234. 100 1d. at 42.999. 105 See Average Fuel Economy Standards for Light Trucks; Model Years 2008-2011, Notice of Proposed Rulemaking, 

70 Fed. Reg. 51,414, 51,457 (Aug. 30, 2005). 

""ld. 

107 See Average Fuel Economy Standards for Light Trucks Model Years 2008-2011, 71 Fed. Reg. 17,566, 17,654 

(April6, 2006). 1011 Green Mountain Chrysler v. Crombie, 508 F.Supp.2d 29S (D. Vt. 2007); Central Valley Chrysler-Jeep, Inc. v. 

Goldstene, S29 F. Supp. 2d 1151 (E.D. Cal. 2007). 

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had been fully briefed and argued to the Second Circuit when the agreement for the first National 

Program was reached. As part of that agreement, the industry dismissed the appeal of that case as well 

as the appeal of Central Valley Chrysler-Jeep. Consequently, no appellate court has passed on the novel 

theories adopted by the district courts concerning why the California regulations are not preempted 

under EPCA. Reaching a final legal determination on this question will take years of costly litigation. 

Moreover, as NHTSA discussed in the NPRM, California is considering regulatory amendments to its GHG 

program to revoke its deemed-to-comply provision, which would effectively break the state from the 

ONP.109 Should California finalize this rule (and we have explained to the state why it should not) at the 

same time NHTSA pursues EPCA preemption, that would lead to a prolonged period of uncertainty 

during which companies may take a conservative approach and assume that they will need to comply 

with both the federal standards and California's.110 This would be incredibly inefficient and drive up 

compliance costs but would be the inevitable result from pursuing this strategy. 

Another by-product of preemption, out of NHTSA's control, is that in addition to co,, there are other 

non-co, sources of GHG emissions that left unregulated or separated from a federal policy, could very 

likely result in separate state action to control, limit, or even ban sources. This type of state-level control 

would be the worst situation for manufacturers, resulting in a patchwork of requirements and overly 

stringent control and command regulations. 

Instead of going down this path, we urge NHTSA to engage with California and reach an outcome akin to 

the first and second agreements for ONP, where california agrees to be part of the final national 

program. We believe this can be accomplished through the promulgation of aggressive but achievable 

federal fuel economy and GHG emission standards through MY 2026 with California maintaining its 

deemed-to-comply provision. This would yield that same result as asserting preemption-i.e., a single, 

unified national program with 50-state compliance. Moreover, it would provide automakers with 

increased certainty and keep separate state actions at bay.111 Automakers would not need to comply 

with separate California standards while litigation is pending. 

With respect to EPCA preemption of ZEV regulations, NHTSA is correct that it has never before 

articulated a view that such regulations are expressly or impliedly preempted under EPCA. In the NPRM, 

NHTSA states that state ZEV regulations are expressly preempted under EPCA, because they "directly 

109 See 83 Fed. Reg. at 43,233 n.495. 

tw This period of uncertainty may also lead to other states adopting and following Cal~ornia's regulations, a trend 

that has already started with the state of Colorado looking to finalize its first set of Section 177 Cal~ornia rules in 

November 2018. 111 NHTSA states that after the finalization of the national program, the agency "erroneously saw this as obviating 

consideration of EPCA preemption." 83 Fed. Reg. at 43,233. We disagree. While California's adoption of its 

deemed-to-comply provision would not impact the express preemption analysis, it does address the issue of 

conflict preemption. California's agreement to the National Program furthers one of the important policies EPCA is 

designed to protect-i.e., "a national fuel economy standard." ld. 

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relate to fuel economy,"m and are impliedly preempted, because they are "entirely at odds with critical 

factors that Congress required NHTSA to consider in establishing fuel economy standards."113 However, 

for the same reasons we discuss above, we do not believe that asserting EPCA preemption of California's 

ZEV mandate is the best path forward to achieve ONP. While it is true that the ZEV mandate requires 

automakers to utilize the most expensive technology to reduce fuel consumption, and address criteria 

pollutant emissions, there may be other ways to both increase the electrification of the light-duty 

fleet-a goal which Global Automakers unreservedly supports-and ensure that doing so does not 

conflict with the policy aims of EPCA. 

VIII. Global Automakers Does Not Support the Revocation of California's 

Waiver for its Existing Regulatory Programs While "Deemed to Comply" 

Remains in Place 

EPA states in the NPRM that it is proposing to withdraw the January 9, 2013 waiver of preemption for 

California's Advanced Clean car (ACC) program, ZEV mandate, and GHG standards that are applicable to 

new model year (MY) 2021 through 2025. EPA is offering three bases for this proposal: (1) under Section 

209(b)(1)(B) of the CAA, global climate change is not a "compelling and extraordinary condition" in 

California so as to justify its own emission standards,"' (b) even if climate change were a "compelling 

and extraordinary condition," California does not "need" its regulations to address it, and (3) under 

209(b)(1)(C), the standards are inconsistent with Section 202(a) of the CAA.U' We address the GHG and 

ZEV waivers separately, below. 

A. GHG Waiver 

Initially, we view EPA's proposal to withdraw the 2013 waiver as essentially a proposal to reconsider its 

earlier decision to grant the waiver. While an agency always retains the authority to reconsider its prior 

decisions, it usually does so in the context of the rulemaking docket in which the underlying decision 

was made, and not as an ancillary action in a completely separate rulemaking. 

In any event, Global Automakers is concerned that EPA taking this action to reconsider the earlier 

california waiver would lead to years of litigation and uncertainty. And just as with EPCA preemption, as 

noted above, in the face of this uncertainty, automakers would be faced with the decision as to whether 

to comply with the separate, more stringent California regulations until this issue is ultimately resolved 

by the courts. This situation creates additional uncertainty as states, like Colorado that is already in the 

112 According to NHTSA, the ZEV Mandate is related to fuel economy standards because "the only feasible means 

to eliminate tailpipe C02 emissions is by eliminating the use of petroleum fuel (i.e., electric or fuel cell propulsion), 

and because the purpose of the ZEV program is to affect fuel economy." 83 Fed. Reg. at 43,238. 113 83 Fed. Reg. at 43,238. 114 Section 209(b)(l)(B) provides that EPA shall deny the waiver if it finds that California "does not need such State 

standards to meet compelling and extraordinary conditions." 42 U.S.C. § 7543(b)(l)(B). 

11.5 Section 209(b)(l)(C) provides that EPA shall deny the waiver if it finds that California's "standards and 

accompanying enforcement procedures are not consistent with section 202(a) of (the Clean Air Act]." /d. 

§ 7543(b)(l)(C). 

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process of adopting California regulations, look to adopt California's standards, thereby increasing the 

market share reach of the California GHG program. 

For instance, we agree with EPA that California's entitlement to a Section 209(b) waiver for its GHG 

emission regulations will turn in large part on the agency's interpretation and application of Section 

209(b)(l)(B). That provision states that EPA shall deny the waiver if the agency finds that California 

"does not need such State standards to meet compelling and extraordinary conditions" in the state. 116 

As EPA points out, the agency has articulated differing interpretations of this provision. Historically, EPA 

has interpreted it to mean that California needs to have its own separate new motor vehicle program in 

the aggregate to meet compelling and extraordinary conditions in California, and not whether the state 

needs the specific standards under consideration. In 2008, in contrast, when EPA first considered 

whether state GHG emission regulations meet the requirements for a Section 209(b) waiver, EPA 

determined that the better reading of Section 209(b)(l)(B) would be to consider whether California 

"need[s]" the standards at issue "to meet compelling and extraordinary conditions," and the agency 

denied the waiver on these grounds. Then, when EPA reconsidered that denial in 2009, the agency 

reverted back to its traditional interpretation and granted the waiver. 

No court has addressed this question, let alone determine whether the language of Section 209(b) is 

ambiguous or susceptible to either of the competing interpretations.117 Therefore, should EPA withdraw 

the California waiver, the automotive industry would be faced with years of uncertainty. 

For this reason, Global Automakers does not support the withdrawal of the waiver for the current 

California GHG emission standards, because they include a "deemed-to-comply" provision. Those 

regulations include a deemed-to-comply provision, which states as follows: 

u• 42 U.S.C. § 7543(b)(l)(B). 117 We question whether, under well-settled cannons of statutory interpretation, Section 209(b)(1)B) can be read 

as referring to California's emission standards in the aggregate. There is a "natural presumption that identical 

words used In different parts of the same act are Intended to have the same meaning. • Envtl. De/. v. Duke Energy 

Corp., 549 u.s. 561, 574 (2007). The term "such state standard" is used In both 209(b)(1)(B) and (C), and It should 

be read consistently as between the two. Section 209(b)(1)(C) states that EPA shall deny the waiver If it finds that 

"such State standards and accompanying enforcement procedures are not consistent with section 202(a) of this 

part [42 uses§ 7521(a)]." It would make no sense to construe the term "such state standards" subsection (C) to 

mean the California program in the aggregate, and EPA has always construed Section 209(b)(1)(C) as referring to 

the standards before EPA for the waiver. For example, in EPA's 2009 decision to grant a waiver for California's GHG 

emission program, the agency assessed "whether CARS's GHG standards are consistent with section 202(a), 

including lead time." 74 Fed. Reg. at 32,777. In fact, EPA has in the past denied a waiver on the ground that the 

specific standards before the agency were not consistent with Section 202(a) because they failed to provide 

sufficient lead-time. See California State Motor Vehlcl~ Pollution Control Standards, 43 Fed. Reg. 998, 1001 (Jan. 5, 

1978) (in assessing certain aspects of California's motorcycle emissions program, finding "that section 19SS(f), as 

now drafted, is inconsistent with section 202(a) of the Act" and therefore "deny[ingJ California's request for a 

waiver of preemption for that section"). It follows, then, that the term "such state standards" must also refer to 

the specific standards before the EPA waiver with respect to the "compelling and extraordinary" prong in 

subsection (B). 

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For the 2017 through 2025 model years, a manufacturer may elect to demonstrate compliance 

with this section 1961.3 by demonstrating compliance with the 2017 through 2025 MY National 

greenhouse gas program, [provided certain procedural prerequisites are met].118 

As long as California maintains this national compliance option, there is no need for EPA to reconsider 

the waiver. EPA should defer any decision on the waiver until such time as California formally revokes 

the deemed-to-comply provision. In that case, the amended California GHG regulation would be 

materially different from the one that EPA waived in 2013, and EPA could either revoke the 2013 waiver 

(on the basis that California has materially altered its waived-standards) or declare that the amended 

regulations are not enforceable until California seeks and obtains a waiver. Then, when California seeks 

an EPA waiver for the amended GHG standards-which the state would need to do119-EPA could 

determine whether the amended regulations meet the standard for a waiver under Section 209(b) of 

the CAA. 

In the interim, Global Automakers reiterates our request that the federal agencies work with California 

to develop an outcome akin to the existing ONP. A single, unified national program is far preferred to 

the uncertainty of litigation surrounding California's waiver. 

B. ZEV Waiver 

EPA is also proposing to withdraw the waiver for California's ZEV mandate on the same grounds as its 

proposed withdrawal of the GHG waiver.ln our view, however, the ZEV waiver should be treated 

differently from the GHG waiver. Califomia has a long history of addressing criteria pollutants and local 

smog problem through its ZEV program. Courts have consistently held that Califomia's ZEV mandate is a 

motor vehicle emission standard that is subject to CAA preemption."" California has obtained several 

118 13 C.C.R. § 1961.3(c). 119 We note that an action by California to revoke the deemed-to-comply provision would not qualify for a "within 

the scope" determination by EPA. Rather, they would be subject to a full analysis under Clean Air Act Section 

209(b) because the result would be a much more stringent California program than was otherwise intended. 

Where a CARB regulatory amendment is "geared toward increasing the underlying stringency of the program," or 

"add[s) a new pollutant or other emission standard," then that "would require full waiver consideration" under the 

standard set forth in Section 209(b). See In the Matter of Califomia State Motor Vehicle Pollution Control 

Standards; Amendments to Califomia Zero Emission Vehicle (ZEV) Regulation; 2003-2008 Model Years Within the 

Scope Request; 2007 and Subsequent Model Years Waiver Request, Decision Document, at 20 (December 21, 

2006). Removing or altering the deemed-to-comply provision is "geared toward Increasing the underlying 

stringency of the program" because: (a) having to comply with a California-specific GHG program is more 

stringent-and would require greater fleet-wide GHG reductions in California-than the Callfomia regulation with 

the "deemed to comply" provision, and (b) California's GHG emissions regulations do not include some of the 

programmatic elements that the federal program has, which provide manufacturers with altemate compliance 

pathways and regulatory tools, thus easing the regulatory burden. 110 See, e.g., Engine M/rs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (holding that air quality 

management district requirements that fleet owners purchase a certain number of ZEVs is subject to Clean Air Act 

preemption); American Auto. M/rs. Ass'n v. Massachusetts Dep't of Envtl. Protection, 163 F.3d 74 (1st Cir. 1998) 

(finding that state zero emission vehicle mandates are presumptively preempted by the Clean Air Act); American 

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waivers for its ZEV regulations dating back to 1993 before the development of its GHG emission 

program121 

Although the ZEV mandate presents significant compliance challenges in California, Global Auto makers 

does not believe that those challenges are so insurmountable as to invalidate its waiver under Section 

209 of the CAA, at least as to the implementation ofZEV in California. California's market Is in many 

respects unique in its adoption of electric-drive vehicles, and in the overall vehicle market that makes it 

more susceptible to EV adoption. For instance, the car-truck split in California is 47%/53% (as compared 

to 33%/67% nationwide) and the all-wheel drive (AWD) and two-wheel drive (2WD) split in California is 

27%/73% (as compared to 45%/55% nationwide) (See Table 2 on page A-59 below). Moreover, 

California has made unparalleled investments of hundreds of millions of dollars in consumer incentives, 

infrastructure and consumer awareness programs. As a result, the percent of new EV sales in California 

for the first half of 2018 was over six percent, while the nationwide average still hovers at 1.5 percent 

(with half of those sales attributable to California)."' 

However, for reasons we have articulated in a still-pending motion for reconsideration, which is 

referenced in the NPRM, 123 EPA needs to assess ZEV feasibility in Section 177 States. EPA has previously 

taken the position that it is without authority to do so, but we view that as reading Section 209(b) too 

narrowly. Given the fact that states adopting a California emission standard under CAA Section 177 must 

take the California standards as they are, EPA can and should determine whether the ZEV mandate is 

feasible in those states. In the next section of these comments, we discuss how EPA and NHTSA should 

consider ways of addressing ZEVs in the context of a national program, which would go a long way to 

alleviating compliance problems in the Northeast states. If that is not possible, and in the event that EPA 

determines that the ZEV mandate is simply not feasible in the Northeast states, then the agency should 

take appropriate action on the waiver. 

IX. The Federal Agencies Should Maintain One National Program Through a 

Negotiated Outcome with California 

Rather than assert EPCA preemption or reconsider California's Clean Air Act waiver, EPA and NHTSA 

should maintain One National Program through a negotiated outcome with California. This would 

provide auto makers with the long-term certainty they need to produce vehicles fora single national 

market. Global Auto makers believes that the elements of a final rule discussed above-ensuring 

meaningful year-over-year improvements to fuel economy and GHG emissions performance combined 

with flexibilities that encourage investments in fuel-saving technologies-could form the framework for 

such a negotiated outcome. 

Auto. Mfrs. Ass'n v. Cahill, 152 F.3d 196 (2d Cir. 1998) (holding that ZEV mandates adopted by the State of New 

York were preempted by the Clean Air Act). 121 See California State Motor Veh ide Pollution Control Standards; Waiver of Federal Preemption, 58 Fed. Reg. 

4166 {Jan. 13, 1993). 

m Source: IHS Global Vehicle Registration Data for January through June 2018. 

See 83 Fed. Reg. at 43,242 n.562. 

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A. A Bifurcated System Makes Fleet Management More Difficult 

It Is critical that the agencies consider the economic impact of a bifurcated system-i.e., having one 

standard in roughly 60% oft he country and a stricter standard in at least 40% of the country.'24 This 

would mean that auto makers would have fewer vehicles in each fleet over which they can amortize fuel 

economy technology. For example, fewer engine platforms are needed if standards are roughly similar, 

as this article discusses when considering the effects of a federal standard less stringent that a California 

standard: 

For example, making the product innovations required to meet increasingly stringent standards in 

the Califomia-Jed market may require investing in engineers to redesign products using lighterweight materials; a bifurcated standard would mean these firms would have many fewer vehicles 

over which to amortize these fixed costs. Similarly, U.S. firms could compete with suppliers from 

abroad in the stagnant portion of the market by automating processes, but again would have many 

fewer vehicles over which to spread costs. Thus, scale economies in fuel-efficient technologies 

would benefit overseas suppliers, particularly those competing in European and Asian markets 

with more stringent standards and higher fuel prices. 125 

As discussed above, a unified national program that includes California and that allows for nationwide 

compliance is the most efficient framework for automakers. EPA and NHTSA should therefore continue 

their engagement with California and seek a compromise solution that achieves the policy goals of all 

three agencies. 

8. The Federal Agencies Should Consider How to Address ZEV Requirements in the 

Context of a National Program 

In addition to finding a nationwide solution to fuel economy and GHG emission regulations, we 

encourage EPA and NHTSA to all address electric vehicles in the context of the national program. 

California's ZEV mandate is a significant obstacle to harmonization, because it forces automakers to use 

one of the most expensive technologies electric-drive technology- at a greater rate than would be 

required to meet the GHG regulations alone. 116 1n addition, it has been particularly challenging to ramp 

up sales of electric vehicles in the northeastern ZEV states, which are far behind California in developing 

infrastructure, offering incentives, and otherwise developing their electric vehicle markets despite some 

increased efforts over that past couple of years. 

Auto makers are now offering over 40 models of electric vehicles, which include plug-in electric and fuel 

cell electric vehicles, and are estimated, based on auto makers' public announcements, to more than 

124 83 Fed. Reg. at 43208·209. 125 https: (/www .brookings. edu /b log/the-avenue/20 18/07 /02/why-u n d errn in ing-fu el-efficie n cy-sta n da rd s-wo uldharm-the-us-auto-industry/. July 2, 2018. (accessed 14 September 2018). 126 Customer acceptance remains one of the biggest barriers, and studies have shown that incentives, 

infrastructure and consumer education programs are all needed to address this concern. 

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double offerings in the next five years.127 Automaker investment in this technology will continue to 

increase- estimated on the order of $100 billion by 2025; this investment should be encouraged in the 

U.S. and not lost to other countries. Automakers' progress related to electrification also represents 

significant investment in product development, marketing and advertising, dealer and service training, 

working with states and other stakeholders to build infrastructure, and looking for new and creative 

ways to increase consumer education. Further, In the past year, auto makers jointly launched a 

consumer awareness campaign with several northeastern states, "Drive Change. Drive Electric.," aimed 

at in creasing customer awareness about the many benefits these vehicles offer to help address 

overarching concerns with customer acceptance of electric vehicles in the northeastern states. 

Auto makers are not only offering a wider selection of electric vehicles, but in a wider range of prices as 

well. Due to manufacturer and federal incentives, and some state incentives, electric vehicles are rnore 

affordable than ever. Auto makers are discounting electric-drive vehicles in an effort to enhance sales. 128 

Leases on electric-drive vehicles can start at just $149/monthn' Although studies have cited the ability 

of electric vehicles to reach cost parity with gasoline-fueled vehicles by 2025, there are still many 

unknowns regarding price, as well as customer acceptance and infrastructure development that can be 

partially managed through incentives and smart federal policies that promote innovation.U0 

As more electric vehicles come to market, Increased efforts are needed to support the market-e.g., 

offering vehicle incentives and ensuring funding for incentives, growing charging infrastructure, building 

out hydrogen refueling infrastructure, and addressing ongoing barriers (e.g., restrictions on hydrogen 

vehicles on bridges and in tunnels). This is especially true in states that mandate sales of electric vehicles 

and have committed to supporting growth of this market. 

States where these vehicles are succeeding the most have a confluence of programs that are building up 

electric chargers and hydrogen refueling stations, providing vehicle incentives, working to increase 

customer awareness, devoting state and agency resources to help create the right rnarket conditions, 

have necessary legislative and gubernatorial support for funding, and more. 

For instance, California has taken a significant step in this regard with Governor Brown's Executive Order 

B-48·18, which increases funding for California's Clean Vehicle Rebate Project and building out the 

infrastructure for electric charging and hydrogen refueling stations. It is thus no surprise that California 

127 As of September 2018, three of the electric vehicles offered for sale are fuel cell electric vehicles (FCEVs). FCEVs 

are reliant on the availability of hydrogen refueling stations in order to meet customers' daily driving needs. As a 

result, to date, FCEVs have been almost solely available in California, a state that is committing annual funding to 

growing refueling infrastructure. We encourage all ZEV states to commit funding to building hydrogen refueling 

stations, and further, we commend states, like Pennsylvania, who are offering potential grants for hydrogen 

refueling stations using funds from the VW Appendix 0 settlements. 128 http s:/fwww, b lao m berg.com/n ews/a rtides /2 0 18·05-14/how-to·iea se-a· 50-DOO·b mw-fo r-less-than ·a-so bwayA· 58 
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has led the market for all electric vehicles, including plug-in hybrid, battery and fuel cell electric vehicles, 

through hundreds of millions of dollars of state investment in consumer purchase incentives; electric 

charging and hydrogen refueling infrastructure; state policy development and market-building 

mechanisms; addressing codes, standards and permitting; agency implementation and planning 

resources; and tireless efforts to find new ways to encourage consumers to go electric. This investment 

has paid off, resulting in California's new electric vehicle market share exceeding six percent, when the 

rest of the nation's new electric vehicles sales barely exceed one percent 

Yet there are significant differences between the California vehicle market and that in other states that 

impact consumer acceptance of ZEVs. For example, California's new vehicle market remains car 

dominant, when the rest of the nation is moving to trucks; has a lower amount of AWO vehicles; and has 

the highest percent of electric vehicles compared to Section 177 States, as shown in Table 2. 

Table 2: Comparison of New Vehicle Sales in California, Section 177, and the United States 

New Electric-Drive 

Jurisdiction Vehicle Market 

Ore.g,on 6.3% 65/35 30{70 

Washington iu% 64/36 34/66 

Eastern 5177 States 2.7% 67/33 31/69 

Connecticut i4tt.6 33/f:a 

49/51 47/53 

55/45 34/66 

Massachusetts 31/69 

ivi~rYiand····· 37/63 

Maine 3.1% 78/22 22/78 

New Jersey 2.2% 64/36 36/64 

New York 2.6% 29/71 

Pennsylvania 2.3% 30/70 

Rhode Island 2.4% 68/32 22/67 

Vermont :;!.8% so/2() 23/77 

All SO States 3.4% 45/55 33/67 

Source: IHS Global Vehicle Registration Data for January through June 2018. 

Thus, since the ZEV mandate is designed for California's market and market conditions, this can be 

problematic for other states that must adopt the mandate in whole under Section 177 ofthe CAA, 

regardless of whether the mandate is appropriate or feasible for that particular state's vehicle market. 132 

m "Electric-drive vehicles" includes hybrid electric, plug-in electric, and fuel cell electric vehicles. 132 Similarly, Global Auto makers has concerns about whether Califom Ia's GHG standards, which are designed for 

California's conditions are feasible and/or can be implemented without additional amendments to account for a 

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There are likely better ways to address the mandate and bring some certainty to automakers that the 

U.S. as a whole wants to be a technology leader. Some ways to do this may include: 

The CAFE and GHG regulations should provide advanced vehicle technology multipliers and 0 

g/mile upstream emissions, without limit, for battery electric, plug-in hybrid, and fuel cell 

electric vehicles. These incentives are important market signals and regulatory mechanisms to 

encourage investment in this higher cost technology, as we explain in other sections of this 

document. They also allow manufacturers to earn credits for placing electric vehicles in markets 

best suited to these vehicles. 

There should be a process whereby California and EPA, along with states, evaluate the feasibility 

of the ZEV mandate in the other ZEV states, and if challenges are identified, work to implement 

a California regulation with sufficient flexibility for the mandate's implementation in the other 

states. 

There may be additional policies, under the construct of a national agreement, that can help 

temper the constraints of the mandate. This may include finding ways to continue or expand 

pooling, i.e. creating a single pool of all ZEV states, or ensuring that the impact of the mandate 

does not grow beyond the approximately 30 percent of the new vehicle market that is currently 

covered by the ZEV mandate. 

It is our hope that there is a robust dialogue between the federal and state agencies about the best 

ways to address the industry's shift to electrification under the umbrella of a unified national program. 

X. Small Volume Manufacturers 

The proposal does not address changes to the NHTSA or EPA regulations regarding exemptions from 

standards for small volume manufacturers (SVMs). However, the current mechanisms for processing 

SVM exemptions are not effectively functioning, and fundamental revisions are needed. The agencies 

have numerous pending petitions from SVMs, several of them for multiple years in the past. In the final 

rule establishing MY 2017-2025 standards, EPA stated that it "expects" that rulemakings on SVM 

standards would "take about 12 months," but this estimate has proven to be overly optimistic. 133 No 

new changes in vehicle design or performance are, of course, now possible to meet standards for past 

model years. However, these open petitions create contingent liabilities in the accounting systems of 

the SVMs, creating unjustified harm to the companies. 

The unique situations facing SVMs under the CAFE and GHG programs are, we believe, well understood 

by the agencies: 

variety of fleet mixes, product plans, and customer preferences amongst states following California's regulations. 

See h ttps ://www. arb. ca .gov /I ists/ com -alta ch /29-levi ii 18-Wz5 R LwR xB3oEXV U U2Qf. 

1.13 77 Fed. Reg. 62791, October 15,2012. 

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The ability of SVMs to meet the generally-applicable GHG and CAFE standards is restricted due 

to their relatively long product redesign cycles, limited resources, and narrow product lines in 

relation to the larger manufacturers. 

Moreover, the market for the vehicles produced by the SVMs is keyed to luxury and highperformance attributes, which do not generally align well with high levels of fuel efficiency and 

low carbon emissions. 

Given the small number of vehicles involved and traditionally small number of miles traveled 

each year by these vehicles, the total energy and emissions effects associated with the SVM 

fleet are negligibly small. 

By contrast, the staff resource and administrative burdens associated with the SVM process, for both 

the agencies and the SVMs, are disproportionately large. Analytic processes followed by full rulemaking 

proceedings are potentially required for each exemption petition. We are sympathetic to the situations 

facing NHTSA and EPA in dealing with SVM standards. When considering the range of responsibilities 

assigned by Congress to the agencies, it is understandable that processing SVM petitions would be 

assigned a lower priority. Nevertheless, the backlog of pending petitions creates significant financial 

burdens for the SVMs, as noted above. A more effective approach for responding to petitions in a timely 

manner is necessary. 

In petitioning for standard exemptions and alternative standards, SVMs must navigate separate 

administrative processes at NHTSA'34 and EPA. 135 We are now faced with the prospect of a third process 

in the state of California, as a result of the recent "deemed to comply" rulemaking136 Having three 

separate government agencies undertaking essentially the same regulatory task, with overlapping 

requirements results in administrative waste, potentially conflicting results, and negligible resulting 

environmental benefits; three separate processes would be a completely irrational outcome for small 

businesses. 

Shortly after Congress established the CAFE program in 1975, it directed DOT to reduce administrative 

burdens associated with SVM petitions. The Conference Report on this legislation states: 

In addition, the conferees agreed to require the Secretary to review the exemption and standard 

setting procedure to further reduce administrative burdens and to notify the Congress of his 

findings ... The conferees emphasize that in establishing alternate fuel economy standards, the 

Secretary of Transportation may establish a single standard for the duration of the exemption.137 

Thus, Congress was aware of the burdens associated with small businesses under the SVM process and 

directed DOT to address the matter. The guidance and authority provided by Congress regarding CAFE 

should be applicable to GHG standards as well, given the closely related elements of the programs. 

134 49 CFR Part 525. 

m 40 CFR 86.1818-12(g). 116 See https:/(WVf.''Li!..rb.c;J,gQyjregact/201fu'kviii201llflgyllif.918 hilll- m House of Representatives report No. 96-1402, 96" Cong. 2d Sess., September 25,1980. 

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Further reduction in burdens for the agencies would be to harmonize the definition for SVMs between 

EPA and NHTSA. The two agencies define the fleet of vehicles differently based upon sales; however, 

only the EPA subjects these volumes to the US: 

(g) Alternative fleet average standards for manufacturers with limited U.S. sales . 

... the terms "sales" and "sold" as used in this paragraph (g) shall mean vehicles produced for U.S. 

sale, where "U.S." means the states and territories of the United States. [ ... ]To be eligible for 

alternative standards established under this paragraph (g), the manufacturer's average sales for 

the three most recent consecutive model years must remain below 5,000 [ ... ]n8 

This definition identifies the sales of the vehicles that are intended for the US market only and not, as 

NHTSA stipulates, a manufacturing level for the globe.139 This distinction is critical because vehicles for 

the US market are specially designed to meet our stringent vehicle safety standards. This means that 

SVMs must consider the unique nature of the US market when considering selling a vehicle. EPA sets its 

determination ofSVM by a sales figure. 

The method of defining a SVM through sales seems justified as vehicle sales translate to actual vehicles 

on the road. Just because a vehicle is made in a model it does not require that it be sold or used during 

that same model year. In considering vehicles' impact on the dynamics of the fleet from a safety and 

environmental perspective it is important to consider the actual vehicles on the road. Using the EPA 

definition considers these actual vehicles on the road in this country and allows for the definition of SVM 

to be related to local annual sales. Global Auto makers and our members would ask that the agencies 

use this rulemaking to harmonize the SVM definition using the sales metric. 

Global Automakers and its SVM members would like to work with NHTSA and EPA, as well as California, 

to rationalize the SVM standard-setting process. We recommend that the agencies pursue this 

rationalization process in two steps. First, the agencies should undertake a "clean-up" proceeding to 

address past and current model year petitions, for which alternative standards can have no effect on 

vehicle designs. Second, we urge the agencies to harmonize their processes for the future, to enable a 

single application by SVMs for both agencies, culminating in the issuance of harmonized standards 

issued by each agency in advance of the applicable model years (i.e., standards of equivalent stringency, 

enabling manufacturers to meet both agencies' requirements with a single compliance plan), and 

ultimately "deemed-to-comply" by California.ln other words, we are urging a process similar to the 

National Program for the larger manufacturers. This undertaking would be consistent with Trump 

Administration regulatory reform efforts and would provide much needed long-term reductions in 

administrative burden for the agencies, as well as the SVMs, with no associated impact on fuel efficiency 

ns U.S. EPA. 40 CFR §86.1818-12 Greenhouse gas emission standards far light-duty vehicles, light-duty trucks, and 

medium-duty passenger vehicles. 139 NHTSA. 49 CFR §525.5. States that any manufacturer that manufactures 10,000 or more passenger vehicles 

from the second model year affected forward is ineligible for an exemption. 

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improvements. The harmonized standards should take full advantage of statutory authority allowing a 

single standard and proceeding to cover multiple SVMs and multiple model years. 

XI. Conclusion 

In conclusion, we appreciate that the agencies have taken the time to review the regulation and that 

they are continuing to work, through a transparent rulemaking process, to determine a path to address 

ongoing fuel efficiency improvements. As we have expressed in these comments, Global Auto makers 

and our members believe that the optimal outcome in a final rulemaking would yield meaningful 

increases each year and feasible standards that encourage ongoing innovation and investment in the 

auto industry, result in ongoing environmental benefits, and support a continuation of One National 

Program with California, 

The agencies, through this process should continue the work necessary to engage all stakeholders to 

achieve these important objectives. Doing so will help keep the U.S. auto industry competitive in a 

worldwide market that is transitioning to lower-carbon transportation, continue investment in the U.S, 

auto manufacturing sector, and help the auto industry thrive under a level regulatory playing field that 

allows for a smart approach to competition and efficiency improvements. 

Further, the regulations should provide automakers options for cost-effective compliance management 

and allow them to determine the best approaches to comply given diverse product mixes. These include 

credits for early compliance, which help smooth compliance over multiple years and recognize efforts to 

invest early in fuel-saving technologies; credits for advanced technologies to encourage investment in 

more expensive technologies now in advance offuture regulatory needs; real world emissions 

recognition of off-cycle technologies and A/C efficiency improvements; and inclusion of non-C02 GHG 

emissions under EPA's program to provide a consistent and flexible national policy for GHG 

improvements, rather than resulting in separate state actions. The programmatic tools and flexibilities 

should be retained, improved, and strengthened; this is a chance for the agencies to make policies 

designed under the previous rule making work more efficiently and as intended, These measures provide 

cost-effective options for achieving the fuel efficiency targets, encouraging the country's leadership 

when it comes to advanced technologies, and supporting efforts to provide a "common sense" approach 

to making the most fuel-efficient fleet 

Finally, working with California to ensure the continuation of "One National Program" is a key element 

that harmonizes separate federal and state regulatory programs and allows manufacturers to comply by 

producing a single fleet of vehicles. Any situation where there is dis harmonization between the 

programs would create a patchwork of unworkable standards that would skew vehicle sales and 

production and have a detrimental effect on industry and consumers. It would also result in a high level 

of uncertainty, during which protracted and costly litigation would occur, The industry needs a 

coordinated set of standards between the NHTSA, EPA and CARB so manufacturers can allocate their 

resources to new and innovative technologies, instead of efforts to comply with inconsistent standards 

with mixed policy signals. 

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Global Automakers appreciates being able to provide detailed input on the proposed SAFE Vehicle 

NPRM in recognition thatthere are a number of factors the agencies must fully examine to determine 

the appropriate stringency of the standards out through MY 2026. We remain available to agencies to 

answer any questions and provide additional information. 

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Appendix A 

October 26, 2018 

VIA ELECTRONIC SUBMISSION 

Heidi King 

Deputy Administrator 

National Highway Traffic Safety Administration 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Andrew R. Wheeler 

Acting Administrator 

Environmental Protection Agency 

1200 Pennsylvania Ave., NW 

Washington, DC 20460 

Attn: Docket No. NHTSA-2018-0067 

Docket No. EPA-HQ-OAR-2018-0283 

Rc: Comments of Environmental Defense Fund on National Highway Traffic Safety 

Administration's and Environmental Protection Agency's Proposed Rule: The Safer 

Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 

Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986 (Aug. 24, 2018) 
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Table of Contents 

I. Contrary to NHTSA's Claims, the Proposed Roll Back Will Actually Worsen Vehicle 

Safety .............................................................................................................................................. 4 

A. Summary .............................................................................................................................. 4 

B. NHTSA's Safety Claims in the NPRM ............................................................................... 6 

C. Fatality Rate-Not Total Fatalities-is the Longstanding and Appropriate Metric for 

Evaluating Vehicle Safety ........................................................................................................... 7 

D. NHTSA's Own Analysis Refutes Its Deceptive Claim That Rolling Back the Clean Car 

Standards Will Improve Safety ................................................................................................... 9 

E. NHTSA's Safety Claim is a 180-Degree Reversal of What NHTSA Has Understood and 

Reported for the Previous Seven Years......... .............................. .. ................... 15 

F. Mass Reduction Does Not Compromise Vehicle Safety .................................................. !8 

G. EDF-Modified Runs ofNHTSA 's Model, with More Defensible Assumptions, Show That 

the Roll Back Will Slightly Increase the Fatality Rate and Worsen Safety .............................. 26 

H. NHTSA Ignores Increased Fatalities Under the Proposed Roll Back Due to Increased PM. 

NOx and S02 Emissions ........................................................................................................... 3 7 

I. NHTSA 's Scrappage Model is Fundamentally Flawed and Yields Flawed Outputs ........ 38 

II. EPA and NHTSA Must Properly Account for GHG and Non-GHG Emission Reductions 

and Health Impacts ....................................................................................................................... 43 

A. EPA and NHTSA's claim that their preferred alternative would have negligible 

environmental and health impacts is inconsistent with the extensive existing record .............. 43 

B. Errors and biases in NHTSA's modeling that render the emission impact estimates 

incorrect and unusable .............................................................................................................. 44 

C. Health impacts of rolling back the current GHG standards arc consequential. ................. 55 

D. NHTSA's emissions and health impact estimates are grossly underestimated and 

categorically wrong ................................................................................................................... 57 

Ill. The NHTSA Model is Systematically Flawed and Projects Dramatically Overstated Vehicle 

Technology Costs, Understated fuel Savings. and Erroneous Net Societal Benefits..... 57 

A. Summary..................... . ................... 57 

B. Introduction................................................. . ............................................................ 59 

C. NHTSA's Model Fails at its Core Function-to Accurately Predict the Most CostEffective Technology Pathways for Automaker Compliance .................................................. 65 

D. Specific Examples of Blatant Flaws and Biases in the NPRM Model That Artificially 

Inflate its Vehicle Technology Cost Projections ...................................................................... 67 

E. Specific Examples of Blatant Flaws and Biases in the NHTSA Model That Artificially 

Reduce Consumer fuel Savings Projections.......................................... .. ..... 73 

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F. EDF-Modified Cost/Benefit Runs with NHTSA 's NPRM Model Show That the Roll Back 

Yields Net Societal Costs .......................................................................................................... 77 

G. EPA's Failure to Use its Own OlVIEGA Modeling Tool to Inform the NPRM is Arbitrary 

and Capricious ................................. .. ............................................................................... 8! 

IV. Additional factors further confirm the conclusion that the standards are achievable and 

appropriate. ................................................... . .............................................................. 83 

A. EPA's existing, well-documented findings on consumer behavior support the 

appropriateness of MY2022-2025 standards ............................................................................ 83 

B. The Auto Industry Has Made a Dramatic Return to Profitability and Added Jobs ........... 9! 

C. Clean car standards will continue to benefit and protect automakers, parts suppliers and 

workers ...................................................................................................................................... 96 

D. Clean car standards help ensure that automakers retain their global competitiveness ...... 99 

V. NHTSA Fails to Explain its Incongruous Treatment of Light Duty Trucks Compared to 

Heavy Duty Pickups and Vans............... ......................... . I 0 I 

VI. The Agencies' Rejection of Multiple Available Technologies is Inconsistent With the 

Governing Statutes, Under Which the Relevant Question Is Whether Given Technologies are 

Feasible and Can Be Deployed Within the Relevant Lead Time, Not Whether They are Currently 

Extant or Currently on the Market......... ................. .. ................................................... 102 

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I. Contrary to NHTSA 's Claims, the Proposed Roll Back Will Actually Worsen 

Vehicle Safety 

A. Summary 

NHTSA 1 claims that rolling back the current Clean Car Standards will reduce fatalities by 

between 12,700 (for the CAFE standards) and 15,700 (for the GHG standards) under NHTSA 's 

"model year" analyses. The agencies imply that these purported safety benefits are due to safer 

vehicle designs under the roll back, relative to the current standards, and to faster fleet turnover 

where there will be more newer, safer cars and fewer older, less safe cars under the roll back. 

However, nothing could be further from the truth. The agencies have severely mischaracterized 

the safety impacts of the proposed rule and misled the public by naming the rulemaking "The 

Safer Affordable Fuel-Efficient Vehicles Rule. or SAFE rule." 

NHTSA 's safety messaging is deceptive; its projected fatality reductions arc demonstrably false; 

and the agency has utterly failed to explain its departure from years of established practice for 

fuel efTiciency standards and the safety impacts ofthose standards. Accordingly, NHTSA's 

reliance on these claims as a basis for the rollback is manifestly arbitrary. capricious, and 

unlawful. 

In fact, 97-99 percent ofNHTSA's projected fatality reductions are simply due to assumptions 

about how people will change their driving habits under the roll back relative to the Clean Car 

Standards driving new cars less based on an exaggerated rebound effect and driving used cars 

less as well due to a new and deeply flawed scrappage model. These assumed changes in vehicle 

miles traveled ("VMT') have nothing to do with vehicle design or safety. NHTSA 's reliance on 

rebound and scrappage rates and the conclusions it draws with regard to associated fatalities are 

unsound for at least three independent reasons. 

First, because both the rebound and scrappage assumptions involve consumer behavioral changes 

not directly linked to the standards, their impacts should not be considered attributable to the 

standards. N HTSA concedes as much with respect to vehicle rebound effects; under the same 

reasoning, impacts from changes in VMT due to scrappage should not be considered attributable 

to the standards either. 

1 EDF's comments apply to both NHTSA and EPA and to both proposed rules. However, in this section, EDF will 

generally refer to NHTSA, rather than the agencies or NHTSA and EPA jointly. both for simplicity and for 

accuracy, as it is well known that NHTSA unilaterally carried out the NPR:-.1 analysis without any EPA staff 

technical input whatsoever. For example, in an EPA memorandum to the Office of Management and Budget dated 

July 12, 2018. a top EPA staffer stated that "The Preliminary RIA is based on the independent technical assessment 

from DOT-NHTSA, and the document should reflect appropriately who has authored the Preliminary RIA. EPA's 

name and logo should be removed from the DOT-NHTSA Preliminary Regulatory Impact Analysis." A recently 

retired EPA staffer who worked on the Clean Car Standards has cited: "DOT's refusal to have a single technical 

\Vorking meeting with EPA staff since the 20 !6 election. https://thehill.com/opinion/en~mv-environment/400051-

i c:nore-the-facts-on! v-wav -to-j usti fv-ro II back -of-eras-green lli2JJ2~ 

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Second, in its analysis of the safety impacts of the roll back, NHTSA now completely ignores 

(and arbitrarily departs from) the concept of fatality rate, or fatalities per mile, the metric that 

NHTSA itself has long used to evaluate the safety of its programs. Mobility is a societal good, 

and we contend that it is not NHTSA'sjob to try to convince people to drive their cars less. 

People will choose how much they need to drive. and however much driving they do. NHTSA 's 

job is to decrease the fatality rate per mile. not to decrease the number of miles people drive. If 

NHTSA had evaluated safety impacts using changes in fatality rate (even under its flawed 

analysis), the agency would find that the current standards have no meaningful impact on safety. 

Finally, the absolute numbers NHTSA presents arc the product of deeply flawed and irrational 

economics and modeling assumptions. NHTSA 'sown NPRM model 2 runs show that 

approximately half of its projected reduced fatalities under the roll back's model year analysis 

(covering the lifetimes of new vehicles sold through MY 2029) are due to the absurd scrappage 

modeling assumption that owners ot' used cars. completely una fleeted by new car standards, will 

drive nearly a trillion miles less under the roll back than under the current standards. This 

erroneous modeling assumption alone completely undermines :--.JHTSA 's safety analysis. The 

other large portion of its projected reduction in fatalities is due to the agency's use of a wildly 

exaggerated rebound effect, which also assumes that owners of new cars will drive nearly 

another trillion miles Jess under the proposal's model year analysis. Indeed. EDF's own 

modeling. which corrects several key deficiencies in l'JHTSA ·s analysis, shows a small net safety 

henefit associated with the current standards. compared to over 10,000 fatalities in NHTSA's 

flawed analysis. 

Since 97-99 percent of the reduced fatalities are due to the purported reductions in VMT we 

discuss above, only a miniscule 1-3 percent can be due to vehicle design and/or "fleet turnover," 

illustrating the deception behind NHTSA 's safety messaging. Even this tiny I -3 percent of 

fatalities is wrong, however, as it is based on several biased and unsupportable assumptions all 

designed to make the current standards look as unsafe as possible. Notably, tbe agencies concede 

that the analysis shows that mass reduction (the only impact they assert that might impact vehicle 

design) is statistically insignificant. Our modeling, which corrects several of the key errors in 

N!ITSA 's analysis, shows that the current standards will have net safety benefits. 

Even taking ]';HTSA's biased modeling assumptions at face value (such as the agency's view 

that automakcrs will reduce weight tram larger and smaller vehicles without consideration of the 

safety implications), the remaining 1-3 percent of fatalities accounts for about 5-30 fatalities per 

year. Given that there are about 37.000 annual highway fatalities in the U.S., 5-30 fatalities per 

year represents 0.01-0.08 percent of all highway fatalities. meaning over 99.9 percent of fatalities 

arc caused by unrelated factors. Even using NHTSA 's own biased analytical assumptions, the 

2 In this section, EDF refers to the NHTSA NPR\1 model. In the NPRM, NHTSA refers to its CAFE model, but that 

is confbsing since it uses its model for both CAFE and GHG analyses. In the past, NHTSA has called it the Volpe 

model, since the model was developed, and is maintained, by the Volpe National Transportation Systems Center 

While we refer to the NHTSA NPRM model for simplicity, the model is comprised of many individual modules on 

specific topics, which are sometimes integrated \Vith other modules and sometimes are not integrated with other 

modules. 

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resulting reduction in fatalities estimated in the proposed rule are so minimal as to have zero 

statistical significance 3 

EDF has carried out a series of modified safety runs with NHTSA's NPRM model for the model 

year GHG analysis, with a more defensible set of modeling assumptions. and these runs show 

that the roll back would actually lead to a slightly increased fatality rate. EDF's conclusion here 

is consistent with what NHTSA itself repeatedly concluded, in multiple rulemakings and 

technical assessments, over the seven-year period from 20 I 0-2016: that the current standards 

would either be neutral or positive in terms of vehicle safety. Contrary to NHTSA's deceptive 

claims, if anything, rolling back the current Clean Car Standards for eight years will slightly 

worsen vehicle safety. 

The justification at the foundation of this roll back is unsound both in premise- the reliance on 

absolute fatality figures that are dependent on VMT and not attributable to the policy, rather than 

on a fatality rate associated with the policy and in execution the models used to achieve these 

fatality figures are beset with flaws and biases. Moreover. the agency has utterly failed to 

reconcile either its methodology or its conclusions with the record supporting the current 

standards. These i1aws render the rollback fundamentally arbitrary, capricious, and unlawful. 

Meanwhile, EPA's adoption of the NHTSA analysis and inherent reliance on these safety 

considerations is wholly unmoored from the agency· s Clean Air Act obligations. Section 202 of 

the Clean Air Act provides that EPA shall consider .. if such device, system, or clement of design 

will cause or contribute to an unreasonable risk to public health. welfare. or safety in its 

operation or function.'' 4 The reduced fatalities that the flawed NPRM model projects under the 

roll back stem entirely from projections of consumer and manufacturer behavior that are far 

removed from the new vehicle and new engine safety concerns that EPA properly considers 

under its Clean Air Act obligations.' 

B. NHTSA's Safety Claims in the NPRM 

NHTSA projects that the 8-ycar preferred alternative roll back of the EPA Clean Car Standards 

will reduce fatalities by 15,7006 Separately, NHTSA projects that the roll back of the CAFE 

standards would reduce fatalities by 12.700. [n fact. the 12,700 reduced fatalities is the single 

most cited value from NHTSA's technical analysis, featured in the summary paragraph in the 

1 Indeed, NHTSA concedes that these fatalities attributable to vehicle design are statistically insignificant. 

Preliminary Regulatory Impact Analysis, July 2018, pages 1359-1360. 

'42 U.S.C. § 7521(a)(4)(A). 

'See Joint Coments of Center for Biological Diversity, Conservation Law Foundation. Ea1thjustice, Environmental 

Defense Fund, Environmental Law and Policy Center, Natural Resources Defense Council, Public Citizen, Inc., 

Sierra Club, an lJnion of Concerned Scientists ("Joint Environmental Comments") for a more detailed discussion of 

EPA's statutory obligations and constraints with regard to safety considerations. 6 83 FR 43352. August 24, 2018. Note that. in other tables. NHTSA shows I 5,600 or values between 15,600 and 

15,700. 

6 
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Federal Register notice7

, the only numerical value cited in the safety section of the Overview 

section of the Federal Register notice 3

, and featured in the "by the Numbers" fact sheet released 

by the Department of Transportation (DOT) and Environmental Protection Agency (EPA) when 

the Notice of Proposed Rulemaking (NPRM) was released9 Similarly, NHTSA and EPA 

leadership repeatedly claimed that the roll back would lead to safer vehiclcs. 10 These claims that 

rolling back the Clean Car Standards will lead to safer vehicle designs or faster and safer fleet 

turnover are demonstrably false, and, in fact, the opposite is true, as we demonstrate below. 

C. Fatality Rate-Not Total Fatalities-is the Longstanding and Appropriate 

Met.-ic for Evaluating Vehicle Safety 

NHTSA typically assesses and reports both total fatalities and fatality rates, i.e., fatalities per 

mile. But it has always used fatality rate as its metric for evaluating the safety impacts of a 

regulation. NHTSA stipulates this in its Preliminary Regulatory Impact Analysis when it clearly 

states: "In this rulemaking document, 'vehicle sqfe(r' ·is defined as societalfatali(v rates per 

vehicle mile of' travel (VMT), including fataliti~s to occupants of all vehicles involved in 

collisions. plus any pedestrians (emphasis added)." 11 Many NHTSA documents in the literature 

also focus on fatality raten There are obvious reasons for doing so. 

From a macro-economic perspective, mobility is a societal good as it promotes individual 

quality-of-life and standard-of-living, as well as national economic development and growth. 

Accordingly, federal, state, and local governments. and the Dcpaltment of Transportation (DOT) 

in particular, encourage mobility through massive public expenditures on roads and other 

transportation infrastructure. All programs that increase personal mobility while maintaining 

fatality rates, even when total fatalities increase due to greater vehicle miles traveled, are viewed 

as positive developments. It is not NI-ITSA 's job to try to convince people to drive their cars l~ss. 

People will choose how much they need to drive. and however much driving they do. NHTSA's 

core mission is to decrease the fatality rate per mile. Further, EDF is not aware that DOT has 

7 83 FR 42986, August 24, 2018. See also 83 FR 42995, August 24, 2018. 8 83 FR 42995, August 24,2018. 9 Fact Sheet: MYs 2021-2026 CAFE Proposal~ by the Numbers, EPA-420-F-18-901, August 2. 2018, available at 

https://www.govinfo.gov/content/pkg/FR-20 18·08·24/pdf/20 18·16820.pdf. 10 "Trump Administration Unveils Its Plan to Relax Car Pollution Rules," Coral Davenport, New York Times, 

August 2. 2018. 

"Preliminary Regulatory Impact Analysis, July 2018, page 1343. footnote 845. 

"For example, ·'The Impact of Safety Standards and Behavioral Trends on Motor Vehicle Fatality Rates," DOT HS 

810 777. U.S. DOT National Highway Traffic Safety Administration, January 2007" ([following text is in both 

Abstract and Introductionl "Typically, the metrics the agency uses to set goals are fatality rates based or1 exposure to 

risk. This pe~per describes the process, assumptions, and methods used by the agency to estimate the impact Df its 

safety regulations and behavioral programs on fatality rates, and measures the impact of these programs on those 

rates.''), available at llttps://www.nhtsa.gov/sites/nhtsa.dot.gov 'files/documents/8 I 0777v3.pdf. Another of many 

examples comes from the preamble to the final rule establishing Federal Motor Vehicle Safety Standards for 

Reduced Stopping Distance Required for Truck Tractors (RI": 2127-A537) where !\:HTSA stated "to the extent 

possible. the agency compares fatal crash involvement rates of vehicle types based upon fatalities per 100 million 

vehicle miles travelled'' {p, 53). posted at https:/•W\VW.nhtsa.go\" lav.'s-regulations/frnvss. 

7 
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ever rejected a road construction or maintenance project due to a likely increase in fatalities from 

greater travel, or that NHTSA has ever projected fatalities associated with DOT funding for such 

projects, precisely because mobility is a societal good that governments seek to maximize. 

Indeed, there are many examples of massive governmental expenditures and subsidies related to 

personal mobility, for example, construction of the trillion-dollar interstate highway system that 

Americans can access without fees. and similar state and local expenditures to maintain roads. 

From a micro-economic perspective, individuals choose how much to drive and they know that, 

each time they travel, there is a small risk that they will have an accident, and an even smaller 

risk that they will be killed in an accident. If they choose to drive twice as many miles (e.g., due 

to a different job location or long family vacation). they understand that the overall probability of 

a fatality is twice as high as it was when they drove less. Other things being equal, their personal 

mobility has doubled, their cumulative fatality risk has doubled, but the fatality risk per mile is 

unchanged. Under a '"total fatalities'' metric, their safety would be worse. Under a '"fatality rate" 

metric, their safety would be unchanged. Clearly, fatality rate is a more appropriate metric for 

evaluating safety from an individual perspective. 

Finally, from a regulatory perspective, the justification for using fatality rate is also 

straightforward, as NHTSA recognizes even in places throughout this rulemakingu It would 

simply make no sense to hold NHTSA responsible if Americans voluntarily choose to drive more 

(or, alternatively. to credit NHTSA if Americans choose to drive less). No matter how many 

miles that Americans choose to drive, NHTSA'sjob is to drive down the fatality rate when 

feasible and cost effective (we note that this is similar to EPA's vehicle pollution programs, 

where standards are explicitly expressed in grams per mile rather than total grams or tons). 

Consider a hypothetical example in which NHTSA successfully reduces the fatality rate by 1% 

in a given year due to the implementation of a new safety regulation or public education 

program, but Americans chose to drive 2% more miles in that year. Would the new NHTSA 

program be considered a safety success because the fatality rate decreased by 1 percent, or would 

it be considered a safety failure because total fatalities increased by 1 percent? The NHTSA 

safety program would undoubtedly be considered a success, as otherwise, fatalities would have 

increased by 2 percent. rather than by just I percent. 

Incredibly, NHTSA consciously chooses to not provide fatality rate data for the overall safety 

impacts of the roll back in its Federal Register preamble and Preliminary Regulatory Impact 

Analysis (yet another instance of the proposal's lack of notice as to critical issues). Doing so 

would reveal that the proposed roll back would not (as NHTSA has claimed) lead to safer vehicle 

designs or faster fleet turnover. NHTSA prominently features the fatality rate metric in the 

Federal Register notice in a background section on safety. 14 but fails to show fatality rate values 

in any of the scores of tables that purport to summarize safety impacts. For the model year 

analyses that yield the 12,700 and 15,700 reduced fatalities projections, EDF had to 

independently run the NHTSA model to generate the absolute fatality and vehicle miles traveled 

values necessary to calculate fatality rates. NHTSA 's failure to include transparent and 

13 See. for example, many references to fatality rate at 83 FR 43137-43143 and in Figures ll-5, ll-7. ll-8, and ll-9. 

"Ibid. 

8 
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accessible information on fatality rate arbitrarily obscures the true safety impacts of the proposal 

and reverses the approach the agency has previously taken to assessing safety impacts. This 

unsupportable reliance on absolute fatalities-as well as the agency's departure from past 

practice without explanation as a major justification for the rollback. renders the policy 

arbitrary and capricious. 

D. NHTSA's Own Analysis Refutes Its Deceptive Claim That Rolling Back the 

Clean Car Standards Will Improve Safety 

In order to investigate NHTSA 's safety claims in general, and to calculate the impact of the 8-

year Clean Car Standards roll back on fatality rates in particular, EDF had to replicate the 

NHTSA model runs that were featured in the NPRM. 15 The NHTSA analysis projects that 

fatalities under the roll back's model year analysis will be reduced by 12,700-15,700. and that 

Americans will drive between 1.5 and 1.8 trillion miles less. EDF has been able to replicate 

NHTSA's own NPRM model runs for the GHG analysis and has found that 97-99 percent of 

NHTSA's estimated reduction in fatalities is simply due to NHTSA's projections ofreduced 

VMT and therefore. even using NIITSA 's deeply flawed modeling assumptions. the fatality rates 

under both the current standards and the roll back are essentially unchanged. 

15 See attached report. Richard A. Rykowski, Review of the Agencies' Technical Analysis Supporting the SAlT 

l'ehicle SPRM(October 20!8) ("Rykowski Report"), for more detailed information about EDF's replication of the 

NHTSA NPRM model runs and identification of several weaknesses with the NHTSA model. Nevertheless, EDF 

uses the flawed NHTSA NPRM model as the baseline for both our comments and our recommended model 

improvements. 

9 
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Table l. EDF Replication ofNHTSA NPRM Model Runs 

I 'I NHTS Current Standards Preferred Alternative 

Chan~e--=--Cu~r~n.t Standards 

to Preferred Alternative 

A Scenario Fataliti I VMT Fatality I Fataliti I or VMT I Fatality fataliti VMT I Fatality 

(billion I I 

EDF es (billion Rate es Rate es (billion i Rate 

Run? 

I 

miles) (per miles) I (per miles) (per 

billion billion billion 

I miles) miles) miles) I 

I 

I e---- I 

2 

3 

5 

6 

NHTS NA NA NA NA NA I NA -12,700 -1,471 NA 

2029/CAFE' I 

---" 

I 

I NHTS MY 1977- NA NA NA :\A 1\A NA -15,680 -1,790 NA I A 2029/GHG" I I 

EDF MY 1977- 492,788 56,836 I 8.670 477,144 55,048 8.668 -15,644 -1,787 -0.003 

.!VDilJtllJ' I 

I 

NHTS 2050/CAFE" 853JOO 8.156 1831,300 101,961 8.153 j -22,000 I -2,662 -0.003 ! 

i I 

I 

NHTS CY 2017- 854,000 104.718 8.155 826,600 I 101,467 8.146 -27,400 -3.251 -o.oo9 I A 2050/GHG' I 

I EDF I CY2017- 854,188 104,719 8.157 826.665110 I ,464 1 8.147 -27,523 -3.255 -0 010 

2050/Gf!G'' I I I 

1 NHTSA reported only changes in fatalities and VMT in Preamble Table Vll-88 on page 43.351 

and did not report the absolute values necessary to calculate fatality rates. Note that the precise 

value for reduced fatalities in Table Yll-88 is 12,680, this value has been rounded to 12,700 

throughout the Preamble and other public documents. EDF has not tried to replicate the NHTSA 

runs for the CAFE analysis. 

"NHTSA reported only changes in fatalities and VMT in Preamble Table Vll-89 on page 43352 

and did not report the absolute values necessary to calculate fatality rates. 

"' EDF runs of the NPRM model (for the GHG analysis) released on August 2, 2018 for calendar 

years 2017 and later. See Rykowski Report for details on EDF runs. 

" NHTSA-reported values for individual calendar years in Preliminary Regulatory Impact 

Analysis Table 11-29 on page 1424. summed by loDF. EDF has not tried to replicate the NHTSA 

runs for the CAFE analysis, 

'NHTSA-reported values for individual calendar years in Preliminary Regulatory Impact 

Analysis Table 11-30 on page 1425, summed by EDF. 

"EDF runs of the NPRM model (for the Gf!G analysis) released on August 2, 20 !8. See 

Rykowski Repmi for details on EDF runs. 

10 

J 
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35314.693

Table I shows EDF's successful replication of the NHTSA model runs for the GHG analyses. 

Both in Table 1 and throughout the NHTSA Federal Register preamble and Preliminary 

Regulatory Impact Analysis (PRIA). there are four base modeling scenarios: the Model Year 

1977-2029 CAFE, Model Year 1977-2029 GHG, Calendar Year 20 !7-2050 CAFE, and Calendar 

Year 2017-2050 GHG scenarios. 16 EDF has chosen to focus its model replication efforts on the 

GHG scenarios, but Table I also includes data that NHTSA reported for the two CAFE scenarios 

as well. EDF focused only on the preferred alternative 8-year Clean Car Standards roll back. but 

the conclusions about the safety impacts associated with the preferred alternative 8-year GHG 

emissions roll back also apply to the other alternatives that NHTSA considered. 

The first three columns in Table I simply identify the specific modeling scenario and whether 

the run was performed by NHTSA or EDF. 

The following six columns provide the total values for fatalities, vehicle miles traveled (VMT). 

and fatality rates, for both the current standards and the agencies' preferred alternative for rolling 

back the standards. 

The final three columns in Table I show the changes in the values for the roll back relative to the 

current standards. i.e., the total value for the preferred alternative minus the total value for the 

current standards. A negative value means that the total value for the preferred alternative roll 

back is smaller than the total value for the current standards. 

Table I. Row I reflects NHTSA 's modeling run for the MY 1977-2029 CAFE analysis. NHTSA 

only reported the changes in fatalities ( -12, 700) and VMT (-I ,4 71 billion miles) under the roll 

back relative to current standards. It is noteworthy that, despite the fact that its NPRM model 

generates the total values for fatalities and VMT that arc necessary to calculate fatality rate. 

NIITSA chose not to report any of these values. Given the limited time that the agencies were 

provided for public comment on the proposal. EDF did not have sutlicient time to attempt to 

replicate NHTSA's model runs for the CAFE model year analysis. 

Row 2 is NHTSA's run for the MY 1977-2029 GHG analysis. Again, NHTSA only reported the 

changes in fatalities (-15,680, sometimes rounded to 15,700 elsewhere in this section) and YMT 

(-1.790 billion miles) and chose not to report the fatality rate or the total values for fatalities and 

VMT that would allow others to calculate the fatality rate. 

Row 3 shows EDF's replication ofNHTSA's results for the MY 1977-2029 GHG analysis. 

EDF's run yields changes in fatalities (-15,644) and VMT (-1,787 billion miles) that are both 

within 0.2 percent of NHTSA ·s values. This is excellent agreement and shows that EDF was able 

to successfully replicate NHTSA 's run. EDF then used the total values for both fatalities and 

16 The Model Year analysis accounts for the cumulative impacts over the vehicle lifetimes of all vehicles sold in MY 

1977-2029 (while the first year that the standards affect new vehicles is MY 2017. NHTSA includes MY 1977-2016 

vehicles to account for its erroneous scrappage module), regardless of the calendar years during which t:1ose impacts 

occur. The Calendar Year analysis simply accounts for impacts in the actual years in which they occur, :egardless of 

the model years of the vehicles involved. Therefore, the results for the two analyses are ver1· different. 

II 
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35314.694

VMT to calculate the fatality rate that was not shown in NI-ITSA ·s rulemaking documents. Using 

NI-ITSA's own biased modeling assumptions, the fatality rate under the current standards is 

8.670 fatalities per billion miles. and under the preferred alternative roll back is 8.668 fatalities 

per billion miles. The change in fatality rate is -0.003 (due to rounding) fatalities per billion 

miles, which is a 0.03 percent reduction. 

Row 4 reflects NHTSA' s modeling run for the CY 2017-2050 CAFE analysis. For its calendar 

year analyses, NI-ITSA reported (in the PRIA) both the total values and the changes in fatalities 

and VMT, for each calendar year, which allowed EDF to sum the values for calendar years 2017-

2050. The change in fatalities is -22.000. the change in VMT is -2,662 billion miles, and the 

change in fatality rate is -0.003. This small change in fatality rate represents a -0.04 percent 

reduction relative to that under the current standards. 

Row 5 is NI-ITSA's run for the CY 2017-2050 GHG analysis. The change in fatalities is -27.400. 

the change in VMT is -3.251 billion miles, and the change in fatality rate is -0.009. This small 

change in fatality rate represents a -0.11 percent reduction compared to that under the current 

standards. 

Finally, row 6 shows EDF's replication ofNI-ITSA 's results for the CY 2017-2050 GI-IG 

analysis. EDF's run yields changes in fatalities (-27,523) and VMT (-3.255 billion miles) that are 

both within 0.4% ofNI-ITSA 's values. This is excellent agreement, particularly since the 

NHTSA-repotied fatality results were rounded to three significant digits. These results show that 

EDF was able to replicate NHTSA 's run. In EDF's run in row 6. the change in fatality rate was0.0 I 0 which represents a -O.I2 percent change relative to the current standards. 

There are two clear conclusions from Table I. First, EDF was able to successfully replicate 

NHTSA's NPRM runs for both the model year and calendar year GHG analyses. Second, the 

changes in fatality rate between the current standards and preferred alternative roll back for the 

GHG analysis. even using NI-ITSA 's flawed model and assll!nptions, are miniscule, ranging from 

-0.003 fatalities per billion miles (a -0.03 percent reduction) for the model year analysis to -0.010 

fatalities per billion miles (a -0.12 percent reduction) for the calendar year analysis. And NI-ITSA 

itself has acknowledged that these fatalities are due to mass reduction and are not statistically 

significant. 17 These negligible changes in fatality roles demonstrate that essentially all the 

changes in fatalities can be explained by the changes in VMT, which should not be attributed to 

the standards. In short, NHTSA 'sown analysis shows that the current standards do not 

negatively impact vehicle safety. 

Table 2 provides additional analysis for the same six runs that were introduced in Table I (see 

Rykowski Report for data for the EDF runs). The first three columns from Table I are repeated 

in Table 2 in order to identify the modeling scenarios and whether the runs were performed by 

NI-ITSA or EDF. The fourth ("Fatalities'') and sixth ("VMT") columns in Table 2. which show 

17 "None of the estimated effects have 95~percent confidence bounds that exclude zt!ro~ and thus are not statisticallv 

significant at the 9o·percent confidence level. Two [note: out of five] estimated effects are statistically significant~~ 

the 85-percent level." Preliminary Regulatory Impact Analysis, July 2018. pages 1359-1360. 

12 
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35314.695

RO\V 

the changes in fatalities and VMT going from the current standards to the roll back. an' repeated 

from Table I. The remaining columns in Table 2 are new and will be explained below. 

Table 2. Key Safety Metrics for EDF and NHTSA Runs with NHTSA NPRM Model 

Assumptions 

Change--Current Standards Fatalities 

:--;HTS ~odc!ing to Preferred Alternative :--;on-\i?vlT 

;\ Scenario 

or Fatalities ! Fatalities V\lT 

EDF C%) {billion (?/o) 

Run? miles) 

I 

-·----

I 

i 

! 

NllTS MY 1977- -12,700 NA -1.471 :--;A 

! 

I A 2029/CAFE 

i 1 NHTS MY 1977- ' "15,680 NA -1,790 NA :--;A NA ' I A 2029/GHG I 

EDF MY 1977-

I 

-15,644 -3.175% -1,787 99.0% -156 i -5 

i 2029/GHG 13.14-1% 

I 

NI-ITS CY 2017- -22,000 -2.578% -2.662 I _ 9&.7% I -286 -8 -0.02% ! 

A 2050/C\FE 2.544%f 

I NHTS CY 2017- ! -27,400 -3.20&% -3,251 96.8% i -877 i A 2050/GHG 3.105%1 

EDF CY2017- -27,523 -3.222% -3,255 

I J.lOS% I 

96.5% -963 

2050/UHG 

Table 2, Rows I and 2 are shown for consistency, but no new data is presented as 'iHTSA did 

not report the total values for fatalities and VMT necessary for additional calculations. 

Row 3 shows EDF"s model run that replicates NHTSA ·s results for the MY 1977-2029 GHG 

analysis. The new fifth column ("Fatalities(%)) shows that the- I 5.644 fatalities under the roll 

back reflect a -3.175 percent change in fatalities (based on the total fatalities under both the 

current standards and preferred alternative roll back shown in Table I. row 3). The new seventh 

column ("YMT (%)")shows that the -1,787 billion miles under the roll back represents a -3.144 

percent change in VMT (based on the total VMT data shown in Table 1). Dividing the -3.144 

I 3 
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35314.696

percent change in VMT by the -3.175 percent change in fatalities shows that 99.0 percent of the 

change in fatalities is due to the change in VMT, and this value is shown in the eighth columni 8 

Since 99 percent of the reduced fatalities are explained by the reduced VMT, then only I percent 

of the changed fatalities arc due to non-VMT impacts. This value of -156 fatalities 19 is shown in 

the ninth column ("Total Non-VMT Fatalities Per Year'') and the negative value here means that 

there are fewer projected non-VMT fatalities under the roll back than under the current 

standards. NHTSA 's model year analysis operates over at least 34 calendar years (i.e., calendar 

years 20 17-2050), so the -156 fatalities represents approximately -5 fatalities per year, as shown 

in the tenth column. NHTSA recently reported that overall motor vehicle fatalities were about 

37,000 per year in 2017.20 Dividing 5 by 37,000 shows that the reduced fatalities represent about 

-0.01 percent of all annual highway fatalities, or about one out often thousand. This is shown in 

the final column. 

Row 4 reflects 1'\HTSA's model run for the CY 2017-2050 CAFE analysis. Here, 98.7 percent of 

the reduced fatalities under the roll back are due to lower VMT, with about -8 non-VMT-related 

fatalities under the roll back, representing about -0.02 percent of all annual highway fatalities. 

Rows 5 and 6 show that, for the NHTSA and EDF runs for the CY 2017-2050 Gl!G analysis, 

about 97 percent of the reduced fatalities are due to the lower VMT under the roll back, and that 

the remaining non-VMT fatalities arc between -25 and -30 per year. representing -0.07 to 0.08 

percent of all highway fatalities. 

Tables 1 and 2 conclusively show that, even when using NHTSA 's biased analytical 

assumptions, there are essentially no vehicle design or "fleet turnover'' safety-related benefits 

associated with the roll back. Between 97-99 percent of the projected reduced fatalities under the 

roll back are simply due to lower vehicle miles traveled, and fatality rate is essentially 

unchanged. The remaining l-3 percent of the projected reduced fatalities under the roll back, 

dependent on NHTSA 's biased assumptions, represent 5-30 fatalities per year, or 0.01-0.08 

P> EDF confirmed this math \Vith a second, separate approach. Using the data fi·om row 3 of Table I, multiplying the 

V~IT for the roll back of 55,048 billion miles times the fatality rate under the current standards of 8.670 fatalities 

per billion miles. yields a value of 477,266 fatalities if the fatality rate had remained unchanged under the preferred 

alternative. But, as Table I shows, the fatality rate decreased very slightly under the preferred alternative 1 and the 

total fatalities under the preferred alternative are projected to be 4 77, 144< The change in fatalities due to the change 

in fatality rate is 477,144 -477,266 ~ -122 fatalities, and these -122 addilional fatalities represent 0.8 percent of the 

total change in fatalities of -15,644. Since the change in fatality rate explains 0.8 percent of the change in fatalities, 

the remaining 99.2 percent would be explained by the change in V',lT. EDF believes the slight difference between 

this 99.2 percent and the 99.0 percent shown in Table 2 is due to rounding. For example, when more significant 

digits are included in the calculations, the results of this second methodology yield the same 99,0 percent. 19 We note that this number is smaller than the total number of fatalities that NHTSA attributes to mass reduction for 

the GHG program (468). NHTSA concedes that the mass reduction analysis is statistically insignificant. That 

means that, setting the mass reduction numbers aside. the overall fleet fatality mte due to changes in VMT actually 

improves under the current standards. 

"2017 Fatal Motor Vehicle Crashes: Overview, U.S. DOT, National Highway Traffic Safety Administration, DOT 

liS 812 603, October 2018. 

14 
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35314.697

percent of all highway fatalities. This is a drop in the ocean. which NHTSA concedes has zero 

statistical significance 21 

Even the remaining tiny 1-3 percent of reduced fatalities is analytically flawed, as this projection 

is dependent on a series of biased assumptions that make the Clean Car Standards look as unsafe 

as possible. This topic will be addressed in section G below, in which EDF critiques these 

assumptions and presents modified runs based on a more defensible, unbiased set of modeling 

assumptions. 

In short, even accepting the soundness ofNHTSA 's modeling inputs. which we do not, analysis 

of safety impacts using the appropriate metric- fatality rate- shows that the proposal will not 

provide any safety benefits and so undermines the agencies' justification for the proposed 

rollback of the Clean Car standards. 

E. NIITSA's Safety Claim is a !SO-Degree Reversal of What NHTSA Has 

Understood and Reported for the Previous Seven Years 

For seven years from 2010 through 2016, in multiple rulemakings and technical assessment 

reports, NHTSA concluded that the impacts of the current standards on vehicle safety were either 

neutral or beneficial. 

The final rule making adopting the MY 2012-2016 GHG and fuel economy standards tor new 

passenger vehicles. issued in 20 l 0, provided an extensive analysis and assessment of the 

potential for fatalities due to the adopted standards. The agencies concluded the safety effects 

were much lower than previously estimated and" ... may be close to zero, or possibly beneficial 

if mass reduction is carefully undertaken in the future and if mass reduction in the heavier LTVs 

[light trucks and vans] is greater (in absolute terms) than in passenger cars."22 The basic 

assumptions adopted by the agencies were that the footprint standards would discourage 

compliance by downsizing vehicles. mass reduction would be solely through methods like 

material substitution that would maintain structural integrity and other aspects of vehicle safety. 

and that more mass would be reduced in heavier vehicles than lighter ones (specifically by as 

much as l 0 percent for the heaviest light-duty trucks, but only as much as 5 percent for other 

vehicles). The NHTSA modeling closely matching these assumptions showed a net reduction in 

fatalities due to the standards. 

Analysis supporting the Phase 2 standards in 2012 confirms that automakers do, in fact, apply 

mass reduction preferentially to heavier vehicles and that this application reduces fatalities. See 

section F below for further discussion on this point. 

In the final rulcmaking for the MY 2017-2025 GllG and fuel economy standards for new 

passenger vehicles, issued two years later in 2012, the agencies updated their crash data set to 

Preliminary Regulatory Impact Analysis, July 2018, pages 1359-1360. 

"75 FR 25395, May 7, 2010. 

15 
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35314.698

reflect newer data (through the 2007 model year). The agencies also evaluated the results of 

several new third-party assessments of the updated crash data. Some of the findings of the thirdparty reviewers were that most of the calculated fatality rates attributed to a I DO-pound mass 

reduction were not statistically significant23 , and the impacts were small and ''overwhelmed by 

other known vehicle, driver and crash factors."24 None the less, NHTSA decided to continue to 

use an updated statistical analysis of its historical crash data set as its principal basis for 

determining fatality impacts, rather than concluding that its data were not statistically strong 

enough to quantify an effect of mass reduction on fatalities. The agencies proceeded with their 

assessment of feasible GHG and fuel economy standards by applying mass reduction limits to 

each of the vehicle classes, favoring greater percentage and absolute mass reduction of larger 

trucks compared to lighter cars. The result was again that when mass reduction is applied to 

achieve the standards with fleet safety in mind, the result is a small reduction in fatalities. 

The National Research Council of the National Academies issued a study in 2015, funded by 

NHTSA, on fuel economy technologies for light-duty vehicles. With respect to safety and mass 

reduction that may be used to comply with the adopted standards for MY 2022-2025, the study 

reported that: "It is the committee's view that mass will be reduced across all vehicle sizes, with 

proportionately more mass from heavier vehicles. The most current studies that analyze the 

relationship between vehicle footprint, mass and safety support the argument that removing mass 

across the fleet in this manner while keeping vehicle footprints constant will have a beneficial 

effect on societal safety risk.''25 

The next update of the agencies' safety assessment of GHG and fuel economy standards was 

presented in the drati Technical Assessment Report (TAR) for the EPA Midterm Evaluation. 

issued in July 2016 26 Since the previous evaluation of safety. the agencies performed new 

evaluations of light weighted vehicles, and again updated the statistical evaluation of the most 

recent crash data to reflect comments received. A quantitative correction to historical crash data 

was also developed to reflect the safety benefits of future implementation of adopted NHTSA 

crash safety standards. The agencies adopted a maximum limit of mass reduction in their 

technology selection models for each vehicle category-20% for light trucks, CUVs and 

minivans (for example, I 000 pounds maximum allowed reduction for a pickup), 7.5% for small 

cars (218 pounds). and I 0% for medium cars (268 pounds)- following the same principle used 

in prior analyses that safety is improved when greater mass reduction is applied to heavier 

vehicles compared to lighter vehicles. The results ofNHTSA's modeling found a net reduction 

of 61 fatalities due to the fuel economy standards over the lifetime of MY 2017-2025 vehicles, 

whereas EPA calculated a reduction of fatalities of 6-74 over the lifetime of MY 2022-2025 

"77 FR 62747. October 15.2012. 

'·'Ibid, page 62750. 25 Cost, Effectiveness, and Deployment of Fuel Economy Technologies for Light-Duty Vehicles. Committee on the 

Assessment of Technologies for Improving Fuel Economy of Light-Duty Vehicles, Phase 2, l\ational Research 

Council of the National Academies, 2015, pages 240-241. 26 Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025, Office of Transportation 

and Air Quality U.S. Environmental Protection Agency. National Highway Traffic Safety Administration U.S. 

Department of Transportation, and California Air Resources Board. EPA-420-D-16-900. July 2016. 

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vehicles. This assessment of fatalities was used in the Final Determination issued by EPA in 

January 2017, in which the EPA ''Administrator finds that the existing MY 2022-2025 standards 

will have no adverse impact on automobile safety.''27 

Two months later, the agencies announced their intent to reconsider the EPA Final 

Determination, without mentioning safety concerns. and undertook development of a rulemaking 

to reconsider the adopted GHG standards and augural fuel economy standards.28 

In this NPRM, even while conceding that their mass reduction findings are not statistically 

significant, the agencies ignore their previous findings, reached multiple times over the past 

seven years, that mass reduction can be applied in a manner that has no effect on, or results in a 

small reduction in. fatalities. Without even acknowledging its past findings, NHTSA tTjects its 

previous findings even after confirming in this proposed rulemaking that NHTSA's newly 

developed crash simulation modeling of vehicle design concepts for reducing mass revealed 

similar trends29 (i.e. fatalities do not increase if mass reduction is preferentially applied to 

heavier vehicles compared to lighter passenger vehicles). NHTSA and EPA now propose 

relaxing the adopted and augural standards for 2021 to 2025 based in part on a new finding that 

mass reduction used to meet the current standards will increase fatalities. rather than decrease or 

have no net effect on fatalities as they haw found many times in the past.J0 This inexplicable 

departure from a well-established and reasonable modeling assumption with real influc•nce on the 

chosen policy presents the hallmarks of an arbitrary and capricious action. 

Table 3 summarizes the NHTSA/EPA ftndings. over the past decade. of fleet fatalities due to 

mass reduction associated with the current standards. 

Table 3. Historical NHTSA!EPA Projections of Impact of Mass Reduction per 100 Lbs. on 

Fatalities 

Date Document 

I Imp•« '' ''""~ 

2010 MY 2012-2016 Standards final Rule I Unchanged or Decrease 

! 2012 MY 2017-2025 Standards Final Rule 

I 

Decrease ' 

2015 NAS Phase 2 Report on Fuel Economy Standards Decrease 

I 

2016 NHTSA/EPA/CARB Draft Technical Assessment I Unchanged 

i Report I 

I 

2018 MY 2021-2026 NPRM Standards Roll Back I Increase 

27 Final Determination of the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas 

Emissions Standards Under the Midterm Evaluation. U.S. Environmental Protection Agency, EPA-420-R-17-00 I, 

January 2017. 28 82 fR 14671, March 22.2017. 

"Preliminary Regulatory Impact Analvsis, The Safer Affordable fuel-Efficient (SAFE} Vehicles Rule for Model 

Year 2021 -2026 Passenger Cars and Light Trucks, Chapter II, page 1340, July 2018. 30 83 FR 43117. August 24, 2018, Table ll-50. 

17 
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F. Mass Reduction Docs Not Compt·omisc Vehicle Safety 

1. Passenger vehicle safety has been improving as fuel economy has 

increased 

Since 1990, the number of passenger vehicle-related fatalities per billion miles of travel has 

decreased by almost 50%, a dramatic improvement, as shown in Figure l. In a 2015 study, 

NHTSA found that safety devices (e.g. seatbelts, air bags, and stability control) and federal 

safety standards, reduced drunk driving. and faster medical response following a crash had 

contributed to a lower fatality ratc 31 

Although passenger vehicle fuel economy remained largely unchanged between 1990 and 2004, 

it began to rise in 2005 and has continued to do so through 20 I 6, an approximately 17% 

improvement as indicated in Figure 1. Since 2005. the trend of increasing vehicle weight has 

stopped, with vehicle weight holding constant. despite increased sales of heavier vehicles such as 

pickups and CUV/SUVs. Finally, new crash safety tests and standards such as automatic 

emergency braking, and improved safety information available to consumers, promise additional 

reductions in fatalities as new safety technologies penetrate the fleet. 

These data suggest that fuel economy improvements can be made without increasing fatalities, 

and while maintaining vehicle weight even in the face of increasing sales of large and more 

powerful vehicles. We assess this theory in greater detail below. 

11 Kahane, C. J. 2015. "Lives saved by vehicle safety technologies and associated Federal Motor Vehicle Safety 

Standards, 1960 to 2012 Passenger cars and LTVs With reviews of 26 FMVSS and the effectiveness of their 

associated safety technologies in reducing fatalities, injuries, and crashes." (Report No. DOT HS 812 069). 

Washington, DC: National Highway Traffic Safety Administration. 

18 
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Figure 1. Passenger Vehicle Occupant Fatality Rate and Model Year Fuel Economy32 

-Fatality Rate 

1990 1995 :woo 2005 2010 2015 

Calendar Year 

2. New, lighter weight vehicles are safe and will continue to improve in 

safety 

New vehicles are required to meet federal vehicle safety standards, which have expanded and 

become more stringent over the past decades. There are over 60 such standards, the majority of 

which apply to passenger vehicles 33 The Insurance Institute for Highway Safety (lll·IS) also 

performs crash tests on new passenger vehicles. and its publicly available rating system and 'Top 

Safety Picks' influence vehicle manufacturers to improve vehicle safety and may influence 

vehicle buyers as well 34 IIHS also analyzes crash data, and periodically reports the driver death 

rate due to accidents for relatively new vehicles. IIHS' data confirm the improved safety of 

recent vehicles in protecting the occupants. For example. driver deaths per million vehicle years 

decreased from 87 for 2002 models to 30 for 2014 models. 

Mass reduction of vehicles does not cause an increased risk to the occupants of the lightened 

vehicle. As reported in a recent Michigan Manufacturing Technology Center (MMTC) review of 

the safety implications of reducing the mass of passenger vehicles. the crash safety of 

contemporary automobiles can be assured by use of high-performance materials, energy 

absorbing vehicle structures and passive occupant protection systems. These elements properly 

19 
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applied are weight independent. and a lightweight vehicle can protect its occupants as well as a 

heavier vehicle35 

Vehicle manufacturers are actively reducing the mass of their vehicles, and most are using a 

multi-material approach (lightweight steel, aluminum, reinforced plastics and magnesium) to 

balance mass reduction, material strength and cost, while maintaining vehicle crash-worthiness. 

Design efforts have been refined and become more efficient by relying on computer simulation 

models of vehicle structures and the crash conditions specified in the numerous federal safety 

standards. These simulation tools have been calibrated and demonstrate approximately 90% 

correlation between the simulation model and actual vehicle crashes. important design goals are 

to provide a deformable crush area in the vehicle that can absorb the collision energy, thus 

reducing g-forces on the occupants, and protecting the passenger compartment from deformation 

and intrusions. 

Manufacturers do not release their crash simulations to the public. However, Table 4 shows that 

several government studies have been published that demonstrate that 20% or more mass can be 

removed from a vehicle without compromising the safety of the occupants. The MMTC study 

evaluates the crash simulation of reduced mass models of a Toyota Venza CUV, a Honda Accord 

and a Chevy Silverado pickup truck. All three simulations demonstrate that federal safety 

standards can be met with properly designed structures that reduce mass by 20% or more. 

Table 4. Low Mass Redesigns Including Crash Safety Simulation 

I MY Model I Study by Mass, 0

/o Mass, lbs Cost, (Yo I Safety Evaluation 

2012 Venza Lotus 31 1162 l Comparable 1 

2011 i Accord EDAG 21 682 2 Comparable 

20!1 Silverado FEV 21 1124 9 Comparable 

1 Comparable to the heavier, production model. In case of the Venza, also comparable to other 

similar CUVs. 

The MMTC study also reports on crash ratings for reduced mass production vehicles. The model 

coming closest to the mass reduction achieved in the three simulation studies is the 2017 Ford F150, which was about 700 pounds (14%) lighter (depending on the model) than its previous 

generation. The aluminum intensive 2017 F-150 achieved a 5 star safety rating. Compared to 

the 2017 Chevy Silverado, also a 5 star rated truck, the 2017 Ford-150 weighs about 450 pounds 

less. manufacturer recommended price statts at nearly $700 less. and fuel economy is 2 mpg 

1

' Modern Vehicle Lightweighting: A Review on Safety of Reduced Weight Vehicles, Gregory Peterson, Michigan 

Manufacturing Technology Center (MMTC), October, 2018, available at 

hllmi/consumer;;lmion.orgr'rcsearch/mQdc.rn-vf:l!is:J~lighl~bling:.~.:"l:S:_~j.£~.on-safety-of-roeduced-w~ 

vehicles!, 

20 

I 
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better (for the entry level model). This is a clear and convincing real-world example that 

significant mass reduction does not reduce the safety of occupants, can be achieved 

economically, and will improve fuel economy and reduce GHG emissions. 

The MMTC study notes that an overall reduction of mass in the fleet, over time, should result in 

less severe crashes because of the lower kinetic energy involved, especially in two vehicle 

crashes. Lower mass also contributes to better vehicle dynamic response in emergency 

situations, which can increase crash avoidance or reduce damage in a crash. These benefits have 

not been adequately considered in the NPRM analysis. 

The MMTC study points out that more mass will be reduced from heavier vehicles than lighter 

weight vehicles for several reasons. One reason is heavier vehicles offer more opportunity to 

reduce mass than lighter vehicles. In other words, it is easier to remove I 00 pounds from a 5000 

pound LTV than from a 3000 pound compact. Second. heavier vehicles generally are more 

expensive and have higher profit margins, so it is economically possible to apply more expensive 

mass reducing technologies to a heavier vehicle than a lighter weight vehicle. For example, a 

well-equipped Chevy Silverado retails for over $56,000 and weighs almost 5000 pounds. The 

price per pound of vehicle is $11.40. On the other end of the spectrum. a subcompact Chevy 

Spark retailing for about $13,000 and weighing a little over 2200 pounds has a price per pound 

of vehicle of$5.81, about half of the Silverado. Thus, there is more opportunity to apply 

somewhat more expensive mass reduction technologies to larger vehicles without pricing them 

out of their market sector. This is the path vehicle manufacturers are pursuing. 36 

Finally, the future suggests vehicle fatalities will continue to decline due to advancing 

technology. NHTSA has already reached agreement with most vehicle manufacturers to equip 

2022 models with automatic emergency braking, which Ill-IS predicts will reduce ti·ont-to-rear 

crashes with injuries by 56%. 37 Blind-spot monitoring is becoming available, and IHSS predicts 

this detection technology could reduce lane-change crashes involving injuries by 23%. Lane 

departure warning could avoid injury crashes with objects, sideswipes and head-on crashes by 

21%. Focusing ::-.JHTSA's efforts on facilitating vehicle adoption of these safety technologies, 

including autonomous driving, appears to offer more real public safety benelit than grossly 

relaxing the fuel economy standards based on the erroneous belief that these relaxed standards 

will improve vehicle safety. 

Drive Aluminum, .Automakers Not Planning to Reduce Weight in Small Cars Under Any Regulatory Scenario, 

available at http://www.drivealuminum.org/wp-content/uploads/20 18/08/\·1ass-Reduction-Chart.pdf. 

" IIHS, Real-world benefits of crash avoidance technologies (May 20 18), available at 

https: I !www. iihs.org/med ia/3 bO 8 af5 7-825 7-46 3 0-ba 14-

3 d 92 d5 54c2de/m Y L 9 rg/OAs/A utomation %20 and%20crash %20av o i dance/11 HS-rcal-world-CA- bene fits -0 5 I 8. pdf. 

21 
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·'· NHTSA 's method of assessing safety of mass reduction produces 

statistically insignificant results and should be identified as such 

In this subsection and in subsection 4 below, we specifically address NHTSA's erroneous 

conclusion in the proposed rulemaking that less mass reduction needed to comply with the 

preferred alternative will reduce 468 fatalities over the lifetime of 1977 to 2029 vehicles (GHG 

policy alternative). and reduce 160 fatalities in the CAFE policy alternative, compared to the 

current GHG and augural CAFE standards 38 We note that other studies point out that NHTSA 's 

underlying analysis of crash data used to estimate fatalities due to mass reduction is not 

statistically significant, and the calculated fatality results arc relatively small and overwhelmed 

by other vehicle, driver and crash factors. This suggests the mass-related fatality findings in this 

proposed rulcmaking have no meaningful value in establishing policy. 

We further identify that for this proposed rulemaking NHTSA has inappropriately changed a 

critical assumption regarding how mass reduction is safely applied to vehicles. Throughout the 

past decade, NHTSA has assumed vehicle manufacturers will remove more mass from heavier 

vehicles and remove less mass from lighter vehicles. This approach to mass reduction has been 

shown by NHTSA to have no effect or to slightly reduce fatalities from the fleet as a whole (see 

Section E). However, unique to this proposed rulemaking. NHTSA has revised its prior 

modeling assumption to allow unfettered application of mass reduction by vehicle manufacturers 

across all vehicle sizes without consideration of the safety implications. We present information 

below that vehicle manufacturers have been and will continue to follow a safe approach of 

reducing more mass from heavier vehicles, contrary to NHTSA · s newly revised and unsupported 

modeling assumption. We have also modified the NHTSA model by returning to NHTSA's 

historical assumption of safe application of mass reduction. and find the agency's proposed 

preferred alternative to flatline the standards increases fatality rate by a small amount, compared 

to the current standards. This is a finding exactly opposite ofNHTSA 's finding in this proposed 

rulemaking. 

Reducing the mass of a vehicle is an effective and otien cost effective means of improving fuel 

economy and reducing GHG emissions. The fundamental approach used by NHTSA to assess 

the safety implications of reducing the mass of vehicles in response to more stringent GHG and 

fuel economy standards is analysis of FARS crash data collected by NHTSA, which has been 

updated for this proposed rulcmaking to include 2004 to 20!1 model year vehicles operating in 

calendar years 2006 to 2012. The basic approach used by NHTSA in prior regulatory 

assessments, and in the current NPRM, is statistical analysis of historical crash data to determine 

the percentage change in fatalities per miles driven for a I 00-pound decrease in vehicle mass for 

five different size classes of vehicles, ranging from smaller passenger cars to heavier truck-based 

light duty trucks. These percent changes are then used in the CAFE and GHG modeling to 

assess the change in fatalities due to mass reduction needed to comply with different proposed 

standards. 

83 FR 43114 and 43117, August 24. 2018, Tables 1!-4 7 and 11-50. 

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The approach used by NHTSA has been reviewed by several external parties. and the NPRM 

summarizes the findings and conclusions of many of their reports. However, it is useful to put 

the NHTSA approach and results into context. using both statements in NHTSA's PRIA and the 

most recent repoti by Lawrence Berkeley National Laboratory (LBNL) assessing NHTSA ·s 

safety analyses39 : 

• None of the estimated changes in fatality rate due to a 1 00-pound reduction in mass for 

the 5 vehicle classes is statistically significant at the 95% confidence level. Only 2 

estimated changes (for small cars and heavier light trucks) are statistically significant at 

an 85% confidence level. The estimated changes for the remaining 3 vehicle classes are 

not significant (PRIA, pgs. 1359-1340). 

• Mass reductions in lighter cars are estimated to lead to increases in fatalities, and mass 

reductions in heavier light trucks arc estimated to lead to decreases in fatalities. 

·'However, NHTSA does not consider this conclusion to be definitive because of the 

relatively wide confidence bounds in the estimates." (PRIA. pg. 1360). 

• Many of the variables in Nf!TSA 's statistical model used to explain fatalities. such as 

side air bags and electronic stability control, have much higher estimated effects on 

fatality risk than mass. "The relatively small estimated effects of mass reduction are 

overwhelmed by these other vehicle, driver. and crash factors." (LBNL Wenzel, pg. iv). 

• To better explain which variables (e.g .. mass reduction) explain the range in fatality risk. 

LBNL analyzed 234 individual vehicle models representing nearly 90% of the fatalities 

in the crash data base, and found the correlation between fatality risk and mass is very 

low. ''These results indicate that, even after accounting for many vehicle. driver, and 

crash factors, the variation of risk by vehicle model is quite large and unrelated to vehicle 

weight". (LBNL Wenzel, p. v). 

While NHTSA acknowledges these findings (some of which are theirs), the inputs to their model 

that produce an estimate of changes in fatalities related to vehicles with reduced mass do not 

reflect the uncertainties described above. As the citations above demonstrate: 

• The results ofNHTSA 's fatality analysis are not statistically significant at levels 

commonly used in analyses; 

• The fatalities estimated are very small compared to other factors (e.g., driver 

characteristics) that have a much higher effect; and 

• Differences in fatality risk between similar vehicle models of similar mass are much 

greater than the change in fatality risk NHTSA calculates fat· that vehicle class (such as 

·"'One of the most recent is: Assessment ofNHTSA 's Repot1 "Relationships Between Fatalitv Risk Mass and 

Footprint in Model Year 2004-20 I I Passenger Cars and LTYs'' (LBNL Phase I). LBNL-200 I I 37. Tom Wenzel, 

Lawrence Berkeley National Laboratory, March 2018. 

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small passenger cars), suggesting individual vehicle design has a much more impot1ant 

and bigger impact on fatality rate than a hundred-pound reduction in mass. 

Because NHTSA itself found that the safety impacts associated with mass reductions are 

statistically insignificant, it was arbitrary for the agency to attribute any change in fatalities to 

mass changes. Indeed, relying on assumptions consistent with those that NHTSA has previously 

relied on but from which it has now departed without explanation, the safety effects of retaining 

the standards are positive. Likewise, NHTSA has arbitrarily failed to explain its decision to 

apply mass reduction equally across the fleet, despite the extensive evidence outlined below that 

this assumption does not reflect the reality of how automakcrs achieve compliance, 

4. NHTSA 's Mass-Reduction Modeling Approach is Wrong 

As discussed above, 97-99 percent ofNHTSA's predicted redLtction in fatalities from the 

proposed Clean Car Standards roll back is attributable to a projected reduction in vehicle travel, 

with only 1-3 percent attributable to all other factors including mass reduction technology to 

reduce GHG emissions and improve fuel economy. This raises the question: Will the technology 

of mass reduction used to comply with the current GHG and augural CAFE standards reduce 

vehicle safety, as NHTSA claims? The answer is no. 

The primary reason for NHTSA 's claim that mass reduction technology will decrease safety can 

be traced to a new modeling assumption that differs from all previous NHTSA and EPA safety 

analyses, as shown in Table 3. As discussed in subsection E, NHTSA has always concluded that 

applying more mass reduction to heavier vehicles such as pickup trucks, and less to lighter cars, 

results in either no change or a net reduction in fleetwide fatalities. It has embedded the 

assumption in previous safety analyses that vehicle manufacturers will apply mass reduction 

technology safely by favoring reductions from heavier vehicles. However, in this NPRM, 

NHTSA has adopted a new assumption that vehicle manufacturers may apply mass reduction to 

any size vehicle without regard to the safety implications of their decision. 

NHTSA offers no factual evidence to support its new modeling assumption that removes any 

limits to how mass reduction is applied by vehicle manufacturers to various sizes and classes of 

vehicles, an assumption contrary to current and projected industry practice. The explanation 

offered by NHTSA is "the modeling assumed that mass reduction technology was available to all 

vehicles regardless of net safety impact".40 We alTer rationale and evidence that NHTSA's new 

modeling assumption is arbitrary and inconsistent with the underlying record evidence as well as 

an unexplained departure from its previous analyses. The agencies must therefore return to their 

original modeling assumption that vehicle manufacturers will apply more mass reduction to 

heavier vehicles than lighter vehicles. As we show below, this will result in a revised finding 

40 Preliminary Regulatory Impact Analysis, July 2018, page 1341. 

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that mass reduction technology used to comply with the current adopted and augural standards 

will be safe, and result in a lower fatality rate than the proposed roll back of the standards. 

First, we examine how vehicle manufacturers have applied mass reduction since the GHG and 

fuel economy standards first went into effect, and how they will apply mass reduction over the 

upcoming years. 

As mentioned in subsection E above, the 2015 report from the National Research Council of the 

National Academies stated "It is the committee's view that mass will be reduced across all 

vehicle sizes, with proportionately more mass from heavier vehicles." 

A recent study from the Aluminum Association confirms the Academies' finding'11 . Examining 

the aluminum content of new vehicles, a material used to reduce mass, illustrates how mass is 

being reduced. For example, the Association's study found that the aluminum content of a 2012 

light truck was 18% greater than the aluminum content of a passenger car. However, with 

progressively more stringent GHG and fuel economy standards going into effect, by 2016, 

aluminum content of light trucks had increased to 45% greater than the aluminum content of 

cars, indicating preferential mass reduction has been applied to heavier vehicles. The Aluminum 

Association's assessment of 2020 models. for which designs were locked in at the time of the 

referenced study, confirms that greater mass reduction in light trucks compared to cars will 

continue. This trend is consistent with the agencies· original assumption, relied on for safety 

analyses over the past seven years. that mass reduction will be focused on heavier vehicles such 

as pickups and SUVs, and does not support NHTSA's new assumption that mass reduction will 

be used by vehicle manufacturers without consideration of the safety of the fleet as a whole. 

Moreover, as the MMTC report discussed above points out, the heavier weight of light trucks 

provides more opportunity to reduce a specific amount of mass compared to a lighter passenger 

car, and the higher price of light trucks provides more opportunity to recoup the cost of lower 

mass components. This logic also supports the trend that vehicle manufacturers are applying 

more mass reducLion to heavier vehicles. 

Finally, vehicle manufacturers are aware of how NHTSA measures the impact on fatalities of 

mass reduction, so it should be expected that vehicle manufacturers have taken and will continue 

to take into consideration the safety implications of how they apply mass reduction across 

different size vehicles they produce. Even ifl\HTSA believes it cannot assure that vehicle 

manufacturers will act responsibly regarding the impact of their new vehicles on fleet-wide 

fatalities, it would be relatively simple for NHTSA to require each manufacturer to demonstrate, 

using NHTSA's fatality calculation methodology, that it has applied mass reduction to its 

cumulative sales of a model year's vehicles in a manner that will not contribute to a ncl increase 

in fatalities. This approach would be similar to how the manufacturers currently demonstrate 

compliance with the fleet average GHG and fuel economy standards. 

41 Drive Aluminum, Aluminum Content in North American Light Vehicles 2016 to 2028. Summary Report (July 

20 17), available at http:liwww.drivealuminum.orglresearch-resourceslducker20 I 7 I. 

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To verify our conclusion (and the agencies' prior conclusion) that mass reduction is safe, EDF 

has run the current NPRM model for the MY 1977-2029 GHG analysis, using NHTSA's 

unfounded new assumption of unfettered mass reduction among vehicle classes, and compared it 

to a run with a single change-the more logical and supportable assumption NHTSA has used 

consistently since the beginning of the decade, which assumes vehicle manufacturers apply more 

mass reduction to heavier vehicles in consideration of overall fleet safety. 

Table 5. Mass Reduction Impact on Fatality Rate for NHTSA NPRM Model Runs 

for the MY 1977-2029 GHG Analysis 

Modeling Modeling Assumption of Fatality rate (per billion miles) 

done by: How Mass Reduction is Applied 

Current Stds. Roll Back Stds. 

NHTSA No limits on mass reduction, as used in the NPRM 8.670 8.668 

analysis I 

EDF Greater mass reduction applied to heavier vehicles 8.657 8.663 

(NHTSA 2016 TAR) i 

Table 5 illustrates two impmiant findings. First, favoring the use of greater mass reduction on 

heavier trucks, and less on lighter cars-consistent with how manufacturers have actually 

applied these reductions-reduces the fatality rate of the fleet for both the current standards and 

the proposed rollback standards, as expected. This is shown in Table 5 by comparing the top 

row to the bottom row in either column. Second. and most importantly. the EDF analysis 

(bottom row) shows that proper usc of mass reduction results in a lower fatality rate for the 

current standards and a higher fatality rate for the proposed rollback standards, which is the 

opposite of what Nl-ITSA claims in the NPRM (top row). :'\'1-ITSA should revise its analyses to 

properly reflect the safe application of mass reduction technologies, consistent with both the 

actual practice of manufacturers and past agency assumptions-and acknowledge in its final 

rulemaking that the rollback of current standards will increase the fatality rate. 

i 

I 

G. EDF-Modified Runs of NHTSA's Model, with More Defensible Assumptions, 

Show That the Roll Back Will Slightly Increase the Fatality Rate and Worsen Safety 

We showed above that even when using NHTSA 's biased analytical assumptions, there are 

essentially no safety-related benefits under the 8-ycar Clean Car Standards roll back associated 

with either vehicle design or "fleet turnover." Between 97-99% ofNI-ITSA's projected reduced 

fatalities under the roll back are simply due to lower vehicle miles traveled, and fatality rate is 

essentially unchanged. This leaves 1-3% of the projected reduced fatalities that could be 

associated with either vehicle design and/or "fleet turnover." This final section examines the 

underlying assumptions that drive this tiny remaining potiion ofNI-ITSA·s projected reduced 

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fatalities and includes EDF-modified safety runs with better alternatives for some ofNHTSA 's 

most indefensible assumptions. 

Table 6 provides an overview of six key assumptions in the NHTSA NPRM analysis that affect 

fatalities and fatality rate, the mechanisms by which these assumptions impact NHTSA's results, 

a qualitative estimate of the magnitude of the relative impacts on NHTSA's projected fatalities 

and fatality rates, and EDF's treatment of these key assumptions (retaining in some cases, 

improving in others) in a series of EDF -modified safety runs using NHTSA 's NPRM Model. 

One important point in Table 6 is that every safety-related assumption has a very small impact on 

fatality rate; i.e., they are all dwarfed by the much larger impacts of rebound and scrappage VMT 

on total fatalities. 

Table 6. Key Assumptions That Affect Safety Metrics in l'\HTSA NPRM Analysis 

(from current standards to roll back) 

i I Assumptions in NHTSA NPRM 

i I 

EDF·Modified 

Factor Mechanism Impact on Impact on Safdy Runs i Fatalities Fatality 

I i Rate 

Rebound Higher fuel cost per mile= less Very large Very small Runs for 20% 

new car VMT decrease as the increase due (NHTSA), I 0% 

model shows to fewer (EDF), and 0% I less VMT miles by (EDF) I 

f when driving newer 

costs more vehicles 

Scrappage Reduction of used car VMT Very large Very small Replace with EDF 

unrelated to standards or to decrease as the decrease VMTNeutral 

increase in new car sales model reduces due to fewer Through MY 2029 

VMT from the : miles by 

I fleet older 

vehicles 

Sales Slightly higher sales Small increase Very small I Keep NHTSA 

as the model decrease I adds vehicles due to more 

, and VMTto I miles by 

I the fleet newer 

vehicles 

! ! 

i 

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Car-Truck Higher car share and lower truck Small decrease I Unclear, but Keep NHTSA 

Share share as cars drive 1 extremely 

less than 1 small 

trucks per 

I 

agencies) 

YMT 

schedules 

Mass Manufacturers oblivious to fleet Small decrease Very small Replace with I 

safety impacts associated with decrease NHTSA 2016 TAR I i mass reduction 

The following six sub-sections will brieny discuss the issues raised in Table 6 and. most 

important, describe which NHTSA assumptions that EDF retains, and which we replace. in our 

modified safety runs. 

I. Rebound 

The concept of the rebound effect is that some consumers will drive more miles when fuel cost 

per mile decreases, and fewer miles when the fuel cost per mile increases. With respect to the 

Clean Car Standards. the theory is that standards will yield more efficient new cars that owners 

will choose to drive more, while the 8-year roll back will result in less efficient new cars that 

owners will choose to drive less. NHTSA acknowledges that rebound VMT involves consumer 

choice (and the benefit of increased mobility) and therefore is not properly attributable to the 

standards. Therefore, it certainly cannot be a justification for a roll back. 

Nl!TSA uses a 20 percent rebound effect assumption in the NPRM. As Table 6 shows, 

NHTSA ·s rebound effect has a very large impact on total fatalities under the 8-ycar Clean Car 

Standards roll back. As a threshold matter, NHTSA does not include fatalities attributable to the 

rebound effect in its cost benefit analysis. a concession that such fatalities are not appropriately 

valued as direct costs of clean car standards and should be disregarded. Elsewhere, NHTSA 

projects that the rebound effect accounts for 7.300 of the total 15.600, orjust under 50 percent, 

of the projected reduced fatalities under the MY 1977-2029 Gl!G analysis of the preferred 

alternative roll back42 On the other hand, because the rebound effect also results in 

approximately 900 billion miles less travel under the roll back43 , the impact of the rebound effect 

on the overall fatality rate is small. Under the 8-year Clean Car Standards roll back. the rebound 

e!Tect decreases the proportion of new car VMT-to-used car VMT, and so it is likely that the 

rebound effect slightly increases the overall fatality rate under the roll back. 

42 83 FR43157. August 24. 20!8, Table ll-77. 

" 83 FR 43352. August 24. 2018, Table VI!-89. 

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NHTSA's assumed 20 percent rebound value in the NPRM is twice as high as that used by both 

NHTSA and EPA throughout multiple rulemakings and technical assessment reports during the 

seven years from 2010 to 2016 44 It is also twice as high as the value recommended in a recent 

report by The Analysis Group, a comprehensive review of the economics literature on the 

rebound effect45 An excessively high rebound effect also illustrates a fundamental inte:rnal 

inconsistency within theN HTSA analysis-in its selection of an extremely high rebound effect, 

N HTSA inherently presumes that consumers base their decisions on how much to driv·e only on 

fuel costs/savings and completely ignore the impact of vehicle prices, while in its new vehicle 

sales module, NHTSA presumes that consumers only consider vehicle prices and completely 

ignore fuel costs/savings. These irrational assumptions render the agencies' rebound analysis 

arbitrary and capricious, and an erroneous justification for rolling back the standards. EDF has 

separately submitted comments jointly with Union of Concerned Scientists addressing NHTSA 's 

errors with regard to the rebound effect.•6 EDF also supports comments submitted by Professor 

Kenneth Gillingham, critiquing NHTSA ·s extraordinarily high rebound-effect assumption. 

In our EDF-modified runs that will be discussed below, we use three rebound assumpti.ons: I) 

the 20% rebound effect that NHTSA uses in the NPR!Vl, 2) the l 0% rebound effect that NHTSA 

and EPA had long used, and which EDF recommends for the final rule. and 3) a 0% rebound to 

show the impacts on fatalities and fatality rate when both scrappage VMT and rebound VMT arc 

excluded. 

2. Scrappage 

In a spectacular modeling error, NI-!TSA assumes that American drivers who own older vehicles, 

unatfected by the standards, by changes in new sales. or by a new vehicle rebound effect, will 

voluntarily choose to "stay home" and drive about 900 billion fewer miles under the roll back 

than they would under the current Clean Car Standards•7 A small amount of used car VMT 

would be expected to be displaced by the extra new car VMT due to a slight increase in sales that 

NI-!TSA assumes under the roll back, but the agencies have not modeled this connection. The 

44 75 FR 253 79, May 7, 20 I 0; 77 FR 62716, October 15. 2012: Draft Technical Assessment Report: Midterm 

Evaluation of Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy 

Standards for Model Years 2022-2025, EPA, NHTSA, and CARB. July 2016, page I 0-9, 

llttpo;:;neris.epa.gov/ExeZvPDF.cgiiP I OOOXEO.PDF''D0ckcvcP IOOOXEO.PilF; Proposed Determim:tion on the 

Appropriateness oftl1e Model Year 2022-2025 Light-duty Vehicle Greenhouse Gas Emissions Standards under the 

Midterm Evaluation, EPA, November 2016, page .1-8, 

https:i.'nepis.epa.gov/Exc/Zv PDF .cgi7Dockey~ PI 0003 L4 ,pdf 

'

15 Vehicle Fuel-Economy and Air-Pollution Standards: A Literature Review of the Rebound Effect. Analysis Group 

(June 28, 2018), available at 

bJ.tQj/www~analysLlliQ!!Q_:f_QI!:!{~!Qlgjl_9cdfiles/contcnt/insights/publishirrg/Jl_g_J~~U-~9119JTILnbound effCct june 2 

0 18.pdf. 

40 See Comment of Environmental Defense Fund and Union of Concerned Scientists, Re. Rebound Effect in .VHTS~~ 

& EPA 's Proposed Rule. The Safer Affordable Fuei-E[(icient (SA FE! l'ehicles Rulefor Model )'ears 2021 2026 

Passenger Cars and Light Ji-ucks, 83 Fed. Reg. 42,986, submitted to Docket Nos. NHTSA-2018-0067, EPA-HQOAR-2018-0283 (Oct. 26. 2018). 

83 Federal Register 43352, August 24,2018, Table Vll-89. 

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sales and scrappage models are completely separate. EDF modeling shows that approximately 90 

percent of the 900 billion miles lower VMT projected by NHTSA for the used car fleet is '·above 

and beyond" the small reduction in used car VMT needed to offset the higher new car VMT 

under the roll back compared to the current standards due to slightly higher sales projections. 

NHTSA provides no rationale (and there is none) for why overall used car YMT would decrease 

well beyond the small reduction that might offset the increase in new car YMT due to a slight 

increase in sales. or why aggregate nationwide YMT would decrease above and beyond the 

reduction in new car YMT due to the rebound effect. In decades of rulemakings on emissions. 

fuel economy, and safety. EDF is not aware of any analyst, economist. or public commenter who 

has even suggested such a possibility, let alone tried to provide a credible rationale. NHTSA 

admits that the new scrappage module is not linked with the new sales module,48 and that this 

lack of integration is almost certainly at the core of this substantial modeling error. It does not 

appear that there has been any peer review of the results of the NHTSA scrappage module. EDF 

provides a much more comprehensive critique ofNHTSA's scrappage module in subsection I 

below. EDF also supports the comments submitted by 1\ew York University's Institute for Policy 

Integrity. addressing the fundamental flaws in the agency's scrappage model. 

Table 6 shows, as with rebound, that the large decrease in YMT due to NHTSA's scrappage 

error directly accounts for a large portion of the projected fatalities under the roll back. 

NHTSA chose not to explicitly identify the impact of its scrappage assumptions on total 

fatalities. For example. in one of its key tables. NHTSA groups scrappage with other impacts 

such as sales and car-truck share under the misleading heading "Sales Impacts'' and states that 

this category accounts for 7,880 of the 15.600 projected reduced fatalities under the MY 1977-

2029 GHG analysis. 40 As discussed above, EDF has replicated NHTSA's NPRM runs, and found 

that nearly all of these 7,880 reduced fatalities are due to the scrappage error. Accordingly, of the 

total 15,600 reduced fatalities projected by NHTSA, about half are due to rebound YMT 

reduction and about half are due to scrappage VMT reduction. 

Again. as with rebound, the scrappage error only has a small impact on fatality rate, and the 

lower fatalities under the roll back are due to the lower VMT under the roll back. But, this small 

impact on fatality rate is in the other direction as rebound, and thus the scrappage error, by 

reducing used car YMT, increases the proportion of new car YMT-to-used (and less safe) car 

VMT, so the scrappage error slightly decreases the fatality rate under the roll back. 

Though the scrappage model is fundamentally flawed, we wanted to make the minimum changes 

necessary to the NHTSA model and therefore made only incremental adjustments to the model to 

simply eliminate the large and inexplicable decreases in used-car VMT that the model produces 

(which we refer to as the "YMT-neutral approach") in an attempt to isolate the impacts this clear 

error has on :'ii-ITSA's safety analysis. 

"' 83 FR 43099, August 24. 20 !8. 

·~" 83 Federal Register 43157, August 24.2018, Table 11-77. 

30 
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EDF also made one other adjustment with respect to NHTSA 's scrappage assumptions. Even 

though NI!TSA refers to its model-year analysis as covering only model years 2017-2029, 

NHTSA actually allows its scrappage model to reflect the impact of MY 2030+ vehicks as well, 

which is inconsistent with its stated intention. EDF corrects this by only accounting for 

scrappage through MY 2029 vehicles to be consistent with NIITSA 's stated intention of 

analyzing the impacts of standards through MY 2029. 

Accordingly, as shown in Table 6, we use the YMT Neutral Through MY 2029 scrappage 

approach in all the EDF-moditied safety runs. 

It is important to emphasize that, as shown in Table 2 above, the combination of lower rebound 

VMT and lower scrappage VMT accounts for 97-99 percent of the reduced fatalities in 

NHTSA 's NPRM model, using NHTSA's own assumptions, and these VMT-related reduced 

fatalities are not attributable to the roll back. Accordingly, all the remaining safety-related 

assumptions, combined, only affect the remaining 1-3 percent of fatalities. 

3. Sales 

Throughout multiple rulemakings and technical assessment reports over the previous seven 

years, NHTSA and EPA never tried to project the impact of the Clean Car Standards on new 

vehicle sales. There were two reasons for this: I) no one has ever developed a consumer choice 

model for the car market that has been validated, and 2) the impact could go either wa);, given 

that the standards would result in higher new vehicle costs, but also higher vehicle fuel economy 

and therefore lower fuel costs, which would be attractive to vehicle purchasers (especially those 

financing their vehicle purchase, who would see savings from day one).ln fact, in the 2016 

TAR, the agencies stated that: ''It is ditlicult, if not impossible, to separate the effects of the 

standards on vehicle sales and other characteristics from the impacts of macroeconomic or other 

forces in the auto market."50 Despite these obvious and fundamental barriers. NHTSA has now 

included a sales module in its analysis. 

NHTSA projects sales impacts based exclusively on changes in new vehicle technology costs. In 

the case of the roll back, because new vehicle technology costs will be lower, new vehicle sales 

are projected to rise. This is an incredibly simplistic approach. and ignores the many other 

factors that affect new vehicle sales. In particular, vehicles will be less efficient under the roll 

back, resulting in higher consumer fuel costs, and this important effect is totally ignored in 

NHTSA 's analysis. In addition, NHTSA 's approach is entirely inconsistent with (and does not 

account for) recent market trends-the Clean Car Standards have become increasingly stringent 

every year since 2012, and yet sales have been booming. U.S. auto sales have increased in all but 

one year since 2012, and the last three years (20 15-20 17) have been three of the four highest 

~o Draft Technical Assessment Report: :VIidterrn Evaluation ofLight~Duty Yehide Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards for ~1odel Years 2022-2025, Office of Transportation 

and Air Quality U.S. Environmental Protection Agency. National Highway Traffic Safety Administration, and 

California Air Resources Board, EPA-420-D-16-900, July 20 16.page 6- I. 

31 
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selling years in U.S. automotive market histmy 51 And press reports suggest that 2018 is on pace 

to also be one of the highest sales years in history 5 2 See Rykowski Repmt for more detail on the 

sales module. 

NHTSA's NPRM model projects that new vehicle sales will increase slightly under the roll back 

relative to the Clean Car Standards. Because NHTSA's NPRM model does not integrate the sales 

and scrappage modules, the increase in sales under the roll back would slightly increase fatalities 

by increasing the vehicle stock and VMT. In the real world, however. an increase in new vehicle 

sales would slightly reduce fatalities as higher new-vehicle sales accelerate fleet turnover, 

meaning that there are more newer, safer vehicles entering the fleet and displacing older. less 

safe vehicles. Still. because the sales increase is relatively small. this sales effect only has a very 

small impact both on increasing fatalities and decreasing fatality rate under the rollback as shown 

in Table 6. 

While there is no convincing rationale for \vhy the Clean Car Standards rollback would increase 

new vehicle sales-in fact, recent empirical evidence suggests the opposite-in order to be 

conservative and minimize the changes in assumptions to only those that truly matter, EDF 

retains NHTSA's sales module in the safety runs that will be discussed below. 

4. Car-Truck Share 

NHTSA's NPRM sales module also includes a dynamic fleet share equation that projects 

changes in new car/new truck market shares compared to prior years. The agency appears to base 

these changes exclusively on the different fuel cost per mile values for new cars and new trucks. 

This leads to yet another major internal consistency within NHTSA 's model, as changes in total 

car plus truck sales depend solely on vehicle price, ignoring fuel economy. while changes in new 

car and new truck shares depend only on vehicle fuel economy. ignoring vehicle price. In other 

words. NllTSA predicts that consumers will buy more light-duty trucks rather than cars under 

the current standards because the fuel economy improvement in the light-duty trucks is superior 

to that of the cars, even though the increase in cost of the light-duty trucks is higher than that of 

cars under NHTSA 's analysis. NHTSA docs not even stipulate this major internal inconsistency. 

let alone provide any rationale for it. 

In its NPRM run, NHTSA projects that new car share will increase slightly and that new truck 

share will decrease slightly under the roll back. Since cars are assumed to drive fewer miles than 

trucks, this yields a small decrease in fatalities under the roll back. The impact on fatality rate is 

extremely small. Since car-truck share is part of the broader sales module that EDF is retaining 

51 Alliance of Automobile Manufacturers, Facts About Auto Sales, available at 

h1ll1S ://au tQa l I iance.org/ ecQnom y I facts~ahou1-auto-s ales i. 

"Associated Press, lJS auto sales fell by 4 percent in the third qum1cr (October 4. 20 18). available at 

https :/h. .. ,rww. boston. com/ cars/ car-news/2 0 I 8/1 0/04/u s-auto-sa !es-fel !-hv -4-percen t-in-the-th ird-g uarter, 

32 
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in our modified safety runs to minimize changes to the NHTSA model, the car-truck fleet share 

is retained as well 5 3 

5. Mass Reduction 

As discussed above, NHTSA assumes that manufacturers will not take fleetwide safety 

considerations into account when they make their choices about the application of mass 

reduction technology. EDF believes that manufacturers will take safety considerations into 

account, and as discussed above, there is practical evidence that manufacturers have in fact done 

so with respect to the use of lightweight materials such as aluminum. 

As shown in Table 6, EDF recommends that Nl !TSA reject its assumption that manufacturers 

will refuse to take fleetwide safety considerations into account in the application of mass 

reduction technologies and instead return to its own assumptions !rom the 2016 TAR. 

The NHTSA 20 !6 TAR mass reduction approach is based on the agencies' safety assessment of 

GHG and fuel economy standards in the draft Technical Assessment Report (TAR) lor the EPA 

Midterm Evaluation5

·

1

, issued in July 20 !6. In the TAR. the agencies adopted a maximum limit 

of mass reduction in their technology selection models lor each vehicle category-20% for light 

trucks. CUVs and minivans (for example. 1000 pounds reduction for a pickup). 7.5% for small 

cars (218 pounds), and l 0% for medium cars (268 pounds)-following the same principle used 

in prior analyses that safety is improved when greater mass reduction is applied to heavier 

vehicles compared to lighter vehicles. EDF uses these same limits in our modified safety runs 

below. 

6. EDF-Modified Safety Runs with NPRM Model 

As summarized in Table 6, for EDF's modified safety runs with NHTSA's NPRM model. we 

retain NHTSA's assumptions for three of the six safety-related assumptions (sales, technology 

cost, and car-truck share). add two additional rebound scenarios (adding I 0% and 0% rebound, 

in addition to Nl!TSA 's 20% rebound), and replace two ofNHTSA 's assumptions (scrappage 

and mass reduction). The general principle was to make changes to those assumptions and 

modules that are clearly in error and which have large impacts on the model safety outputs, and 

to retain other assumptions and modules that do have large impacts on safety outputs, •:ven if we 

~~By retaining these assumptions, we do not endorse NHTSA 's presumed car·truck fleet share. 'Ne retained the 

assumptions to minimize changes to the model that do not have first-order effects on the fatality numbers and rates. 54 Draft Technical Assessment Repot1: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Comorate Average Fuel Economv Standards for Model Years 2022-202j, Office of Transportation 

and Air Quality U.S. Environmental Protection Agency. :"ationalllighway Traffic Safety Administration U.S. 

Department of Transportation, and California Air Resources Board, EPA-420-D-16-900, July 2016. 

33 
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consider them to be f1awed, to minimize the number of changes. In other words, we did not try to 

make the model as good as it could be. 

Table 7 identifies the specific EDF-modified safety runs using NHTSA 's NPRM model for the 

MY 2017-2029 GHG analysis. 

Table 7. Definition of EDF-Moditied MY 1977-2029/GHG Runs with NHTSA NPRM 

Model 

I NHTSA Model Input Assumptions 

or Row I EDF? Rebound Scrappage Mass i 

A NIITSA 20% NIITSA NPRM NHTSA NPRM 

I B EDF I 20%) NHTSA NPRM NHTSA NPRM l I 

I 

c EDF I 20% VMT Neutral Through MY 2029 NHTSA 2016 TAR 

D EDF 10% VMT Neutral Through MY 2029 NHTSA 2016 TAR 

' ' 

E EDF I 0% VMT Neutral Through MY 2029 NHTSA 2016 TAR 

Rows A and !3 are included in Table 7 to facilitate comparison with previous tables in this 

section. Row A is NHTSA 's NPRM model run for the MY 1977-2029 GHG analysis. which is 

also shown as row 2 in Tables I and 2 above. Table 7, row B is EDF's replication ofNHTSA's 

NPRM model run and is also shown as row 3 in Tables I and 2. By definition. rows A and B 

both used all ofNHTSA 's safety-related assumptions. 

EDF's modified safety runs are defined in rows C through E. The three EDF-modified safety 

runs replace NHTSA ·s horribly flawed scrappage module with EDF's VMT Neutral Through 

MY 2029 scrappage approach and replace NHTSA's unfettered mass reduction assumption with 

NHTSA's 2016 TAR approach. The three EDF-modified runs differ only by the rebound 

assumption-row C uses NHTSA 's 20 percent rebound, row D uses EDF's 10 percent rebound, 

and rowE uses a 0% rebound assumption. 

Table 8 has the same rows as Table 7. Table 8, rows C through E, provide the quantitative results 

fi·om the three EDF-modified safety runs for the MY 1977-2029 GHG analysis. 

34 

i 
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i 

A 

B 

i 

' c 

I 

I D 

E 

Table 8. EDF-Modificd Runs with NPRM Model for MY 1977-2029 GHG Analysis Show 

Fatality Rates and Vehicle Safety Will Worsen Under the Roll Back 

(negative~ lower and positive higher under the roll back) 

C'h "b' .J'w l Preferred Alternative I EDF Fatalities -I .ies fat<~!ities VMT VMT • Fatality Fatalities 

Run? (%) {bi!!ion (%) mil·:l~;on Rate Per Y.~ar 

miles) (%) 

, Nl!TSA -15,680 ' NA ' -1,790 NA NA NA :--:A NA 

I EDF' -15.644 1 -3.175% -1,787 -3.144% 1 -0.003 ~0.03% -156 -5 

EDF -5.932 i -1.400% -73! -! .484~'0 "0.007 ' .f0.08% "1 356 

EDF l -2,606 -0.615% -323 ! -0.656% ~o.oo4 t 0.05~/0 -174 •5 

I ; i EDF ·70 I 1..,.0.159% '83 '0.162% "0.000 I 

I 

(O;ij) 

*NHTSA NPRM analysts repltcated by EDF wtth addtttonal output data not mcluded tn '-!PRM. 

The first six columns of data in Table 8 show the change in absolute values and on a percentage 

basis for fatalities, VMT, and fatality rate going from the current standards to the rollback. The 

final three columns of data are provided to help the reader place the results in context. A negative 

value means that the value for the roll back is less than the value under the current standards. 

For example, Table 8, row C retains NI·ITSA's 20 percent rebound assumption, but uses the 

much more realistic VMT-Neutral Through MY 2029 scrappage estimate and the NHTSA 2016 

TAR mass reduction assumptions. As with Nl!TSA ·s ]'.;PRM run. there arc fewer fatalities and 

lower VMT under the roll back, driven by the 20% rebound assumption. Both fatalities. and 

VMT decrease by about 60%. relative to the NHTSA NPRM results in rows A and B. due to the 

use of the much more realistic scrappage approach. Most important, however, is that the decrease 

in VMT under the roll back is slightly higher than the decrease in fatalities, as reflected in the 

percentage reductions, so the overall fatality rate is higher under the roll back. The absolute 

increase in the fatality rate under the 8-year Clean Car Standards roll back is +0.007 L1talities per 

billion miles, for a "0.08 percent increase. This means that there would be a total of 356 

additional non-VMT related fatalities under the roll back. ~HTSA 's model year analysis 

35 

of I 

i 

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operates over at least 34 calendar years (i.e .. calendar years 20 17-2050), so the +356 fatalities 

represents approximately +10 non-VMT related fatalities per year. Given that there were 37,000 

motor vehicle fatalities in 2017, dividing I 0 by 37,000 shows that the increased non-VMT 

related fatalities would represent about +0.03% of all annual highway fatalities, or about three 

out of ten thousand. This is shown in the final column. 

Row 0 reflects the I 0 percent rebound assumption. The fatality rate increases by 0.004 fatalities 

per billion miles, or+ 174 total non-VMT related fatalities, or about +5 non-VMT related 

fatalities per year. 

Rows C and 0 show that fatalities and VMT are lower under the 8-year preferred alternative 

rollback, relative to the current Clean Car Standards, for both EDF-modified safety runs. This is 

to be expected, of course. as long as there is a non-zero rebound effect assumption. EDF agrees 

with NHTSA 's stipulation that rebound-related fatalities should not be attributed to the CAFE 

and GHG standards: ''Increased driving associated with rebound is a consumer choice ... lf 

consumers choose to do so, they are making a decision that the utility of more driving exceeds 

the marginal operating costs as well as the added crash risk it entails ... Only those safety impacts 

associated with mass reduction and those resulting from higher vehicle prices are directly 

attributed to CAFE standards.''55 Of course, the true safety metric, whichNHTSA has long used, 

is fatality rate. 

Row E uses a 0 percent rebound. in order to isolate the safety-related impacts when both the 

scrappage and rebound VMT impacts are excluded. Both total fatalities and total VMT rise 

slightly, but the overall fatality rate is unchanged. 

The most important conclusion from Table 8 is that under much more realistic and defensible 

assumptions for scrappage and mass reduction. the 8-ycar Clean Car Standards roll back will 

actually increase fatality rate and worsen vehicle safety under non-zero rebound assumptions, 

and will have no impact whatsoever under a 0 percent rebound assumption. 

The negative impacts on vehicle safety for the EDF-modificd safety runs in Table 8 are very 

small, with the fatality rate increases ranging from 0 to +0.007 fatalities per billion miles and the 

extra non-VMT related fatalities ranging from 0 to +356. These values are similar in magnitude, 

but opposite in direction, to the -0.003 fatalities per billion miles and -156 non-VMT related 

fatalities reductions in NI-ITSA 's NPRM model run. 

All of the data from this section, including both the NHTSA NPRM runs and the EDF-modified 

safety runs for the MY 1977-2029 GHG analyses, show that the overall impacts on fatality rate 

and non-VMT fatalities are extremely small, on the order of at most a few hundred over a 34-

year period, or at most I 0 per year. Whether a tiny decrease (as in the NHTSA NPRM runs), or a 

slightly higher but still very small increase (as in the EDF-modified runs), the bottom line is that 

both the Clean Car Standards and the 8-year roll back will affect total highway fatalities by less 

than 0.05 percent, which means that over 99.95 percent of highway fatalities will be unaffected. 

83 fR 43107, August 24, 2018. 

36 
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Another important contextual point is that there are statistical uncertainties in the crash data and 

methodology that underlie the NHTSA safety calculations. These uncertainties are far greater 

that the tiny fatality rate impacts shown in Table 8. 

Any vehicle related fatality is a tragedy, of course. but it is clear that any safety impacts from the 

Clean Car Standards are truly needle-in-a-haystack, without any meaningful significance. 

NHTSA's safety analysis is arbitrary and illegal for the following reasons: 

1) NI-ITSA has used total fatalities, rather than fatality rate, which would provide a true 

measure of vehicle safety and to be consistent with NI-ITSA and DOT past practice. 

Fatality rate increases under the proposed roll back when the biggest flaws in the NHTSA 

model are corrected. 

2) NHTSA relies on an absurd and totally indefensible scrappage modeL which alone 

accounts for much of the ascribed safety impacts. and has several other important 

analytical flaws. 

3) NI-ITSA assumes that the industry will ignore fleetwide safety in its application of mass 

reduction technology, abandoning without explanation its approach in the 2016 TAR. 

H. NHTSA Ignores Increased Fatalities Under the Proposed Roll Back Due to 

Increased I'M, !'~Ox and S02 Emissions 

In the NPRM, NI-ITSA inexplicably failed to include estimates of premature mortality under the 

roll back due to changes in emissions of criteria pollutants such as particulate matter (PM). 

nitrogen oxides (NOx) and sulfur dioxide (S02). 

EDF performed an analysis projecting premature mortality (or, in NHTSA's phraseology, 

fatalities) due to greater emissions of PM. NOx, and S02 associated with the proposed GHG 

standards roll back. This analysis was based on a modified NHTSA NPRM model run for the 

MY 1977-2029 GHG analysis. EDF's modified run corrected flaws concerning NHTSA's I) use 

of an inflated rebound effect. 2) assumption that Americans will drive their used cars nearly a 

trillion miles less under the rollback. 3) assumption that automakers will voluntarily over-comply 

with the rollback standards. and 4) assumption that the additional gasoline needed to fuel the 

rollback's less etlicient vehicles will be imported or refined from imported crude oil. 

While the I 0 percent rebound effect that EDF used in its modeling reduces estimated vehicle 

tailpipe emissions due to the lower new car VMT under the roll back, these tailpipe emissions 

reductions would be overwhelmed by much larger emissions increases under the roll back due to 

much higher levels of''upstream" emissions (oil exploration, drilling, production, and 

distribution, and gasoline refining and distribution). with the most significant factor being 

refinery emissions. Even though U.S. oil imports have been steadily decreasing and U.S. 

37 
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35314.720

gasoline imports arc essentially zero 56, NI-ITSA assumed that only 50 percent of the extra oil 

under the roll back would be refined at domestic re!ineries57, and of that domestic gasoline. 90 

percent of that would be from imported oil. In short, NHTSA assumed that 95 percent of the 

extra gasoline would eome from imported oil and 5% would come from domestic oil. To correct 

this obvious error, EDF assumes that all the extra oil and gasoline under the roll back would be 

provided from domestic sources based on recent market trends. 

The net result is that while NHTSA projected that criteria emissions impacts would be mixed, 

with increases for some individual pollutants and decreases for others, EDF shows that there 

would be increases for every major criteria pollutant For more detail on this analysis, see 

Rykowski Report 

Finally. EDF used an EPA assessment tool to project that there would be 4,800 to 10,800 cases 

of premature mortality under the roll back for the MY 1977-2029 GHG analysis. 

EDF has shown that 97-99 percent of all NHTSA projected reductions in fatalities under the roll 

back are simply based on the unjustified assumption that Americans will choose to reduce their 

mobility and drive less under the roll back. As shown in Table 8 above, the total non-YMTrelated fatality reductions under the roll back, even with the biases, flaws, and statistical 

unce11ainty in the base NI-ITSA NPRM model, is 156 for theMY 1977-2029 GHG analysis. 

When EDF corrected for NHTSA's errors with respect to rebound, scrappage. and mass 

reduction, non-VMT fatalities ranged from zero to an increase of 356 under the roll back. 

Accordingly, the 4,800-1 0,800 cases of increased mortality due to greater criteria emissions 

under the roll back dwarf any non-VMT related fatalities impacts. NHTSA 's choice to ignore 

this adverse impact of its proposed roll back is clearly arbitrary and capricious. 

I. NHTSA's Scrappage Model is Fundamentally Flawed and Yields Flawed 

Outputs 

In the proposed rule, NHTSA develops and uses a scrappage model to determine the impacts of 

the current vehicle standards on the existing used vehicle fleet According to NHTSA, the current 

vehicle standards increase new vehicle prices, thereby increasing the value of existing vehicles, 

which are substitute goods, which then leads to people holding onto their existing vehicles longer 

-in other words less vehicles scrapped. This leads to older, less safe vehicles staying on the road 

longer and increased fatalities. 

We find ~HTSA 's scrappage model to be fundamentally flawed in many respects. First and 

foremost, NHTSA's scrappage model is completely disconnected from its sales model which 

makes no economic sense. New and used vehicles are substitute goods and the decision to buy a 

new vehicle is related to the decision to scrap an existing used vehicle. Yet NHTSA develops 

56 2018 Annual Energy Outlook 2018. Department of Energy, Energy Information Administration, Fehruary 6, 2018, 

available at https://www.eia.gov/outlooks/aeo/pdf) AE020 18.pdf. 

NHTSA!Volpe Model "Parameters File" 

38 
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35314.721

separate and unconnected models to estimate new vehicle sales and existing used vehicles 

remaining. NHTSA's failure to connect these models leads to nonsensical results such as the 

significant increase in overall fleet size and vehicle miles traveled (VMT) under the current 

vehicle standards. ]';!-IT SA's scrappage model also omits key input variables or factors that 

influence scrappage. In fact, when developing its model, NHTSA finds that the model overpredicts the final remaining share of a vehicle model year fleet and has to force its model 

projections to match observed historic data. NHTSA's validation of its model is also flawed and 

the input assumptions NHTSA uses arc flawed as well. thereby yielding flawed outputs. 

1. NHTSA 's scrappage model is completely divorcedji·om its sales model 

The most fundamental flaw in NHTSA 's vehicle scrappage model is its complete 

disconnection from the vehicle sales model- this means that the results ofNHTSA 's scrappage 

model make no economic sense whatsoever. Under NHTSA's logic. the number of new vehicles 

sold has no relationship to the number of existing vehicles scrapped. However. according to 

NHTSA's own logic. new and used vehicles are substitute goods so there must be a relationship 

between new vehicles sold and existing vehicles scrapped. Individuals who need to purchase a 

vehicle and decide not to buy a new vehicle because of higher new vehicle costs will instead buy 

an existing vehicle or hold onto their current used vehicle. In other words, the extent W which 

vehicles are scrapped will influence and be influenced by new vehicle sales. 

Indeed, when the California Air Resources Board (CARB) examined the impact of increasing 

new vehicle prices as part of its 2004 proposal to reduce greenhouse gas emissions from motor 

vehicles. it included both the addition and deletion of vehicles in its CARBITS vehicle 

transaction choice model 5 3 This allowed CARB to look at vehicle scrappage with replacement 

and the effect of higher new vehicle prices on vehicle replacement rates 5 9 By contrast. NHTSA 's 

model looks at vehicle scrappage in isolation of any replacement. This "non-replacement" 

scrappage is unsupported by any economic theory or literature. Indeed, none of the literature that 

NHTSA relies on supports the agency's assumption that higher vehicle prices will lead to nonreplacement scrappage 60 

Yet. according to NHTSA, this non-replacement scrappage results in a significant increase in 

the total number of vehicles on the road under the current vehicle standards.61 NHTSA then 

assumes that each additional vehicle is driven a fixed average number of miles per year 

equivalent to the average VMT rate of a vehicle of the same age and style without adjusting the 

per-vehicle VMT based on fleet size increases. This inflates the total VMT and since NHTSA's 

estimates of fatalities under the current standards are a function of fleet VMT. this in turn 

substantially inflates the agency's estimates offatalities61 

58 NHTSA, Preliminary Regulatory Impact Analysis. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Year 2021-2026 Passenger Cars and Light Trucks at 1007. 

ld 

""See Comments of New York University's Institute for Policy Integrity submitted to this rulemaking docket ("!PI 

Comments"), 

61 NHTSA, Preliminary Regulatory Impact Analysis, The Safer Affordable Fuel-Efficient (SAFE) Vehicks Rule for 

Model Year 2021-2026 Passenger Cars and Light Trucks at I 008, I 063. 

ld at 1424. 

39 
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However, there is no reason to believe that the total overall demand for vehicle miles 

traveled, or driving, will change with or without the current vehicle standards. To the extent the 

current standards cause a shift from new vehicles to used vehicles or towards older rather than 

newer used vehicles, the relative amount of total driving by used versus new vehicles may 

increase. However. without significant changes to the demand f(Jr VMT, any non-rebound 

related increases will be offset by less driving of new vehicles. Indeed, in comments to NHTSA 

prior to publication of the proposed rule, EPA noted that with or without the vehicle standards, 

demand for VMT is unchanged other than through potential changes in the marginal cost of 

driving, which should already be addressed by the rebound effect63 In fact, if anything, an 

increase in the price of new and used vehicles could lead to individuals switching from driving 

their own vehicles to using public transportation, another substitute good64 

NHTSA's results showing a much larger overall vehicle fleet size and vehicle miles traveled 

under the current vehicle standards, outside of any rebound e!Tect from cheaper driving due to 

fuel economy improvements, compared to no standards makes no economic sense. Yet. these 

nonsensical results are the main driver of the increased fatalities that NHTSA attributes to the 

current vehicle standards and its justification for rolling back those standards. 

2. NH1SA 's model omits key input variables orfactors that influence scrappage 

The decision to scrap a vehicle is influenced by the cost of operating and maintaining the 

vehicle 65 The cost of operating or driving a vehicle depends on the price of gasoline and the 

vehicle's fuel economy. The cost of maintaining a vehicle is essentially the cost of repairs. 

While NHTSA includes the operating cost of a vehicle (a 'cost per I 00 miles of travel' variable) 

in its scrappage model, the agencyfails to include the cost of maintaining or repairing the vehicle 

-a key variable that intluences scrappage. Nl!TSA considers vehicle maintenance costs when 

developing its scrappage model but decides not to include maintenance costs in its model due to 

statistical insignificance or unexpected impacts on scrappage. For instance, according to 

NHTSA, including maintenance and repair in the model for vans and SUVs leads to a decrease 

in scrappage when maintenance and repair costs increase- a result that is opposite to what is 

expected 66 This in itself is indication that the model is tlawed. Excluding from a model a 

variable that is known to intlucnce the outcome of the model because its inclusion yields 

counter-intuitive results is evidence that the model itself is flawed and cannot be relied upon. In 

fact. maintenance and repair costs have been identified in the literature as significant drivers of 

scrappage and NHTSA cannot simply disregard these costs 67 

E.O. 12866 Review Materials, File: "Email 5- Email from William Charm ley to Chan dana Achanta- June 18, 

2018" (June 18, 2018), https:!/www.regulations.gov/document?D~EPA-HO-OAR-2018-0283-0453. 

"~See !PI Comments. 65 Richard W. Parks, Determinants of Scrapping Rates for Postwar Vintage Automobiles, Econometrica, vol. 45, no. 

5 (July 1977), p. I 099-1115. See also Franklin V. Walker, Determinants of Auto Scrappage, The Review of 

Economics and Statistics, Vol. 50, No.4 (Nov. 1968), pp. 503-506: Antonio Bento, Kevin Roth, and Yiou Zuo, 

Vehicle Lifetime Trends and Scrappage Behavior in the L;.S. L;sed Car Market (January 18, 2016): Alan Greenspan 

and Darrel Cohen, Motor Vehicle Stocks, Scrappage, and Sales (October 30. 1996). 66 NJITSA, Preliminary Regulatory Impact Analysis, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Year 2021-2026 Passenger Cars and Light Trucks at 1035. 

See Richard W. Parks, Determinants of Scrapping Rates for Postwar Vintage Automobiles, Econometrica, val. 45. 

no.5(July 1977),p.1099-1115. 

40 
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NHTSA's model also does not include interest rates or the cost of financing a vehicle, 

another variable which NHTSA acknowledges affects scrappage. NHTSA itself states that "[a)s 

the real interest rate increases so does the cost of borrowing and the opportunity cost of not 

investing. For this reason, it is expected that as real interest rates increase that vehicle ~;crappage 

should decline. Consumers delay purchasing new vehicles because the cost of financing 

increases.''68 Conversely, as real interest rates decrease. vehicle scrappage should incre-ase. Yet, 

:-.IHTSA chooses not to include interest rates in its model since inclusion of interest rates yields 

results that are opposite to what is expected- "as real interest rates increase, so does the 

scrappage rate" in NHTSA 's model. 69 As discussed above, this is yet another indication that the 

model is flawed and cannot be relied upon. 

In addition to excluding maintenance costs and interest rates, NHTS.A 's scrappage model 

does not explicitly use the actual used vehicle price or value of the used vehicle the price 

variable that directly influences the decision to scrap a vehicle. Instead. NHTSA assumes that 

changes in new vehicle prices will ultimately be reflected in those for used vehicles and relies on 

a new vehicle price variable as a proxy for used vehicle price without ever evaluating the effect 

of new vehicle prices on the value or price of used vehicles 70 In fact, Gruenspecht explained that 

the disadvantage of modeling scrappage as a function of new vehicle price and not the 

theoretically correct used vehicle price is that it may produce inaccurate results 71 

Finally, NHTSA's 'cost per 100 miles of travel' variable for used vehicles that is used in the 

model to represent the operating cost of a used vehicle is based on initial average fuel <;conomy 

values and does not account for any changes in average fuel economy of a model year cohort as 

it ages. NHTSA itself acknowledges that its model does not take changes in average fuel 

economy of a model year fleet into consideration. According to NHTSA. "[w]ork by Jacobsen & 

van Bentham suggests that these initial average fuel economy values may not represent the 

average fuel economy of a model year cohort as it ages."72 Jacobsen & van Bentham find that the 

most fuel-efficient vehicles scrap earlier than the least fuel eflicient models in a given cohort 73 

This means that the average fuel economy of a model year fleet will become less efficient as the 

vintage ages, which means it would become more costly to operate. [n other words, NHTSA's 

model underestimates the relative ·cost per 100 miles oftravel' for used vehicles. which in turn 

underestimates scrappage. 

"NJ-ITSA, Preliminary Regulatory Impact Analysis. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Year 2021-2026 Passenger Cars and Light Trucks at 1015. 

''" /d at 1033, 1035, 1037. 

'

0 /d at 1009. 71 Howard K. Gruenspecht, Differentiated Regulation: A Theory With Applications to Automobile Emissions 

Control, Yale University ( 1982) at 93; See also IPI Comments. 

NHTSA, Preliminary Regulatory Impact Analysis, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

~lode I Year 202 I -2026 Passenger Cars and Light Trucks at I 014. I 033. 

!d 

41 
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3. NHTSA 's model over-predicts !he final remaining share of a vehicle model yearfleet and 

NHTSA has to force its model projections to match observed historic data 

When developing its scrappage model, NHTSA finds that its model's projections overestimate the final share of a vehicle model year fleet that remains at the end of the fleet's 

lifetime. NHTSA finds that while its model fits the historical data of car and truck scrappage 

well, when used to project the scrappage of future model years, the model over-predicts the point 

of convergence for the final remaining share of the model year fleet. 7

' For cars, NHTSA's model 

predicts the final share of a model year fleet remaining by age 40 to be around 8%, while the 

observed historical final fleet share is around 1%75 For vans and SUVs, the model predicts that 

the fleet converges to a fmal tleet share of approximately II% when the observed final tleet 

share is around 2.5%. 76 And for trucks, the model predicts that the final fleet share converges to 

approximately 12%. which is significantly higher than the observed 2.5%77 For all body styles, 

the projected and historical trends appear to deviate after age 20. 

To correct for this discrepancy between predicted versus observed scrappage, NHTSA has to 

force its model to converge by imposing an exponential decay function after age 2078 In other 

words, for vehicles beyond age 20. scrappage would depend on the share of the fleet remaining 

at age 20, as determined by the scrappage modeL as well as the decay rate necessary to ensure 

that the final fleet share matches the final survival rate assumed for that vehicle class. So for 

example, for cars, NHTSA 's model predicted the final fleet share for future model years to be 

around 8%, while observed historic final fleet share is around I%. Once the decay function is 

added, the projections follow a similar pattern as historic observed data such that only I% of the 

model year fleet is projected to remain by age 40. The fact that NHTSA has to force its model to 

converge is further indication that the model itself is flawed. 

4. NHI~)A 's validation of its scrappage model isflawed 

To test the validity of its scrappage model, NHTSA uses the model to forecast the total fleet 

size for years 2005 through 2015 to see how well its model predicts the tleet size for this 

period.79 According to NHTSA, "[t]he last true population the scrappage model 'sees' is the 

2005 registered vehicle population. It then takes in known production volumes for new model 

year vehicles, and dynamically estimates instantaneous scrappage rates for all registered vehicles 

at each age for CY s 2006- 2015, based only on the observed exogenous values that inform the 

model (GOP growth rate, observed new vehicle prices, and cost per mile of operation), tlcet 

attributes of the vehicles (body style. age, cost per mile of operation). and estimated scrappage 

rates at earlier ages.''80 NHTSA concludes that, except for the years of the recession which 

represent a significant shock to the size of the fleet. its model produces results within one percent 

of the actual tleet size 81 

!d. at 1046. 75 !d. at 1047. 76 /d. 

"!d. at 1048. 78 !d. at I 046. 

!d. at I 060. so fd 

"!d at 1060-1061. 

42 
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NHTSA 's validation of its model is flawed since it relies on the same data it used to derive 

the scrappage model as validation of the model's output results, As discussed in the Preliminary 

Regulatory Impact Analysis, NI-ITSA develops the scrappage model using historical vehicle and 

macroeconomic data from the years 1975 through 2015 82 To validate its model, NI-ITSA then 

uses the model it derived using 1975 through 2015 data to predict outcomes for 2005 through 

2015. In other words, NI-ITSA only conducts in-sample testing to validate its model. To properly 

validate and test the accuracy of the scrappage model, NIITSA should perform out-of-sample 

testing. In fact, the need for such testing is consistent with agencies' past analysis of scrappage. 

In its 2016 Proposed Final Determination, EPA rejected the use of a scrappage model because 

the analysis needed additional examination including out-of-sample validation 83 

5. The inpul assumprions NHTSA uses in its model areflawed 

Setting aside the development and derivation of the model itself, model output results are 

also influenced by model input assumptions- using incorrect inputs will yield incorrect outputs. 

In other words, to the extent that model input assumptions are flawed then the model output 

results will also be flawed. 

This is specifically relevant with regards to the new vehicle price input assumptions that 

NI-ITSA uses in its scrappage model. As explained above, NHTSA uses a new vehicle price 

variable in its model to represent used vehicle prices. As discussed in more detail in Section Ill 

of our comments, the new vehicle price values Nl-ITSA uses are artificially inflated due in part to 

arbitrarily high technology costs. The use of these inflated new vehicle price values in the 

scrappage model in turn leads to underestimation of scrappage and flawed output results. 

II. EPA and NHTSA Must Properly Account for GHG and Non-GHG Emission 

Reductions and Health Impacts 

A. EPA and NHTSA's claim that their preferred alternative would have 

negligible environmental and health impacts is inconsistent with the extensive 

existing record 

Every recent analysis performed by EPA and NHTSA has consistently shown that the current 

MY 2025 GHG standards deliver substantial C02 reductions and impmtant non-GHG emission 

reduction co-benefits by reducing criteria and air toxic pollutants. The joint EPA/NHTSA Phase 

2 Final Rule and supporting Regulatory Impact Analysis, the Draft Technical Assessment 

Report, California's Midterm Review. and a recent EDF analysis of the impacts of weakening 

the EPA Phase 2 GHG standards all show that the current GHG standards will reduce GHG 

"See !d. at 1009-1016. 83 EPA, Proposed Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle 

Greenhouse Gas Emissions Standards under the tvlidterm Evaluation at A-43 (2016); See also !PI Comments. 

43 
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emissions significantly and provide important non-GHG emission reductions as a cobenefit. sus.s6.SH8 

Despite this extensive record, EPA and NHTSA have concluded in their August 24, 2018 

proposal that their preferred alternative to rollback the current MY 2021-2026 GHG standards to 

MY2020 levels will result in a "relatively small" increase in C02 emissions and would not 

·'noticeably impact net emissions of smog-forming or other criteria or toxic air pollutants.''89 

The remainder of this section will show that the Agencies' conclusions are based on an analysis 

that contains numerous errors and biased assumptions. We corrected these flaws and re-ran the 

VOLPE modeL Our results, which we present below, show that EPA and NHTSA have 1) 

grossly underestimated the impact of their proposed rollback of the standards on GHG emissions 

and 2) mistakenly concluded that the non-GHG emission and associated health impacts are 

negligible. 

B. Errors and biases in NHTSA's modeling that render the emission impact 

estimates incorrect and unusable 

The underlying analysis that NHTSA used to justify its proposal to roll back the current 

GHG standards contains numerous biases, questionable assumptions, and outright errors which 

render the results unusable. EDF and many other stakeholders have highlighted and carefully 

documented many of these flaws contained in the NHTSA analysis. For purposes of this section 

on emission impacts, only four fundamental flaws will be discussed. (A more detailed 

discussion of these flaws can be found in Section I and Section III of these comments and in the 

appended Rykowski Report.) These flaws are blatant and when corrected substantially alter the 

conclusions regarding the impact of the rollback on emissions. 

First, NHTSA 's scrappage model projects that Americans will voluntarily reduce their 

driving between 1.5 and 1.8 trillion miles under the rollback and puts forth no credible rationale 

for this effect90 EDF is unaware of (and NHTSA has not identified) any outside expert or 

analysis that would suppoti such an incredible outcome. This erroneous result. of course. 

"EPA & "'HTSA, 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate 

Average Fuel Economy Standards; Final Rule, 77 Fed. Reg. 62624 (Oct 15, 2012) ("2012 Final Rule"). 

"EPA, Regulatory Impact Analysis: Final Rulemaking for 2017-2025 Light-Duty Vehicle Greenhouse Gas 

Emission Standards and Corporate Average Fuel Economy Standards (Aug. 2012) ("2012 RIA"), 

https:i/nepis.epa.goviExe/2\ PDF.cgi/P I OOEZII.PDFODockey~P I OOEZ!I.PDF. 

""EPA. CARB, & NHTSA, Draft Technical Assessment Rep011: Midterm Evaluation of Light-Duty Vehicle 

Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025 

(July 20 16) ("Draft TAR"), https:/inepis.epa.gov/Exe/ZyPDF.cgi/PI OOOXEO.PDF''Dockey~P I OOOXEO.PDF. 37 CARB, California's Advanced Clean Cars Midterm Review (Jan. 18, 2017), 

h ttps :1 1\VW\V .arb .ca. gov I msprog/ acc/m tr/ ace mtr final rcpoiL.fuLLp_Q.f. 88 lmpacts of Weakening the Existing EPA Phase 2 GHG Standards, EDF Briefing (Apr. 2018), 

http:/iblogs.edf.orgiclimate411 /files/20 18/04-'MTE-Relaxation·ltnpacts-Final.pdf. 89 EPA & ;-.:HTSA, Notice of Proposed Rulemaking: The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Years 202!-2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42.986,42,996-98 (Aug. 24, 2018) 

("NPRM"). 

"" "'PRM. 83 Fed. Reg. at 43,351, Table Vll-88; id at 43,352, Table Vll-89. 

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significantly distorts NHTSA · s projection of the rollback· s emission impacts. Namely, if cars 

drive less under the rollback, their emissions will be less. EDF corrected this error in the 

VOLPE model by replacing NHTSA "s scrappage model with one that decreases used car vehicle 

miles traveled ('"VMT") (under the rollback) to the level needed to offset increases in new car 

VMT due to higher new car sales (under the rollback) 91 

Second, NHTSA assumes in their Volpe model that 50% of the gasoline needed to fuel the 

less efficient vehicles under the rollback standards will be imported. They went further and 

assumed that 50% of the remaining fuel that is refined domestically would be produced from 

90% imported crude oil. These assumptions arc at odds with one ofNHTSA's asserted bases 

justifying the proposal-that the U.S. is becoming self-sufficient in crude oil production 92 

Recent data from EIA"s 2018 Annual Energy Outlook) and the latest ElA data for 2017 also 

show only 0.3% of total national consumption of refined fuel came from importsY39495 These 

assumptions effectively ignore the vast majority of domestic upstream emission impacts from 

crude oil production and refining, and significantly understate the domestic emission impacts of 

the rollback. In EDF's modeling, these assumptions were deleted and replaced with a more 

reasonable and defensible assumption that I 00% of fuel saved under the current standards be 

refined from domestically produced crude oil. 

Third, NHTSA projects significant and ongoing industry-wide over-compliance under the 

proposed rollback through MY 2032. In addition. NHTSA predicts about a 1% per year 

continued improvement in fuel consumption beyond MY2032. There is no basis or historical 

precedent to support NHTSA's claim that auto companies will over-comply with stancards and it 

is inconsistent with the related Phase 2 final rule assumptions and detailed supporting rationale. 96 

(See Section Ill of these comments and the Rykowski Report for a more detailed discussion of 

this issue.) In fact, auto companies themselves have been advocating for a relaxation of the 

program because they claim that the current standards create compliance difficulties. NHTSA 

cannot both credit these claims (which we believe are deeply flawed) and also assume that these 

same automakers will voluntarily decide to exceed the requirements under the rollback 

standards. NHTSA ·s over-compliance projections have the effect of narrowing the difference in 

fuel saved over time between the rollback and the current standards. This assumption both 

reduces and obscures the costs and emissions impact of the rollback when compared to the 

current standards and, most importantly, the Agencies failed to justify its legitimacy in the 

context of the current standards. Consequently, we eliminated the over-compliance and assumed 

that the auto companies would meet the standards. 

91 We provide a more detailed critique of the scrappage model in Section I and in the Rykowski Report. 

\Ve have submitted separate legal comments critiquing this as an impermissible and unfounded rationale that does 

not support the rollback. See Joint Environmental Comments. 93 See ~PRM, 83 Fed. Reg. at 42993 ("'[Tjhe global petroleum market has shifted dramatically with the United 

States taking advantage of its own oil supplies through technological advances that allow for cost-effec1ive 

extraction of shale oiL The U.S. is now the world's largest oil producer and expected to become a net petroleum 

exporter in the next decade.""). 94 Energy Information Administration (EIA), Frequently Asked Questions: How much gasoline does the lnited 

States consume? (last updated Aug. 31, 20 18), https:l/www.eia.gov/toolsifaqs!fag.php?id~23&t~ I 0. 95 EIA, Annual Energy Outlook 2018 (Feb. 6, 2018 ). https:l/www.eia.gov/outlookslaeolpdfi AE020 l8.Fdf. 96 See 2012 Final Rule, 77 Fed. Reg. at 62,483-44; 2012 RIA at3-18 to 3-23. 

45 
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Finally, NHTSA increased the rebound level from I 0% to 20'% in its NPRM analysis. The 

rebound effect is intended to capture how consumers respond to fuel economy improvements. 

That is, consumers of new vehicles will drive more miles when fuel cost per mile decreases, and 

less when fuel cost per mile increases. NHTSA's doubling of the rebound effect is inconsistent 

with the rebound effect used in all of the Agencies' analyses over the last seven years and most 

recently in the Draft TAR.97 In addition, the use of a 20% effect runs counter to recent literature 

reviews that conclude that the appropriate rebound effect is 10% or less.98 NHTSA's use of a 

20% rebound effect overstates increases in vehicle VMT and fuel use which in turn overstates 

vehicle and upstream emissions. To correct this flawed assumption, EDF modeling returns to the 

use of a I 0% rebound effect. 

EDF incorporated the four corrections identified above into the VOLPE model and re-ran the 

model to determine the GHG and non-GHG emission and health impacts ofNHTSA's proposed 

rollback. For purposes of this analysis, only the NHTSA model runs for its GHG analysis ,,-ere 

critiqued and revised. The results from these runs are presented below and are more accurate 

and defensible as compared to NHTSA flawed modeling results. Furthermore. EDF modeling 

results show that NHTSA 's emissions assessment misrepresents the true impacts of the proposed 

rollback because of its systematic use of biased assumptions and modeling methods identified 

above. As a consequence, NHTSA has produced arbitrary and fatally flawed estimates of the 

impacts of the proposed rollback that are unusable. 

1. GHG emission impacts of the rollback are significantly 

higher than NHTSA and EPA claim 

Using the four VOLPE model adjustments described above, the projected C02 emission 

impacts the proposed rollback of the standards to MY2020 levels relative to the current standards 

were determined. The results of EDF's analysis are shown below graphically be!ow99 For 

comparison, the C02 emission impacts of the rollback using NHTSA's published version of the 

VOLPE model are also presented. 100 The EDF modeling results clearly show that the NHTSA 

estimates the C02 impacts of the proposed rollback are significantly underestimated. In fact, 

EDF results show that the impacts of the rollback are about 50% larger than NHTSA is claiming 

in their proposal for all of the model years analyzed. 

07 Draft TAR at I 0-10 to I 0-20. 08 Greene, D, Rebound 2007: Analysis of U.S. light-duty vehicle travel stalistics. Energy Policy (20 I 0}, 

doi: I 0.10 16/j .enpol.20 I 0.03.083; see Comment of Environmental Defense Fund and Union of Concerned Scientists, 

Re. Rebound E[f'ect in Nfll:'JA & EPA's Proposed Rule. The Safer Affordable Fuel-Efficient (SAFE) l'ehicles Rule 

for J',fodel Years 202/-2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986. submitted to Docket Nos. 

NHTSA-2018-0067, FPA-HQ-OAR-20 18-0283 (Oct. 26, 2018}. 

''

9 Rick Rykowski, Supporting Report for Environmental Defense Fund Comment, Review oft he Agencies· 

Technical Analrsis Supporting the SAFE Vehicle .\'PRM (Oct. 2018} ("Technical Analysis Review for EDF''}. 

"'Compliance and Effects Modeling System, The Volpe Model. NHTSA (20 18 version} 

https:l/www.nhtsa.gov/corporate-average-fuel-economy/compliance-and~effects-modeling-system. 

46 
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C02 Emission Increases Under the Proposed 

Rollback 

137 

2030 

IIIII NHTSA's Projections 11 EOF'sProjectlons 

2. Criteria pollutant impacts of the rollback are significant and not 

negligible as NHTSA and EPA claim 

EDF used the same VOLPE runs to assess the impacts of the proposed rollback on criteria 

emissions. The impacts for the key criteria pollutants- NOx, PM, VOC, and SOx- are 

presented below in graphical form for calendar years 2030, 2035, 2040, and 2050. A detailed 

explanation of the model runs and how the projections were derived can be found in the 

Rykowski Report Except for NOx emissions in 2025, the NHTSA's modeling results show that 

the rollback will increase NOx, PM, VOC, and SOx emissions for all ofthe years presented 

below. Even the Agencies acknowledged in the preamble that in 2035 "NOx. VOC, S02, and 

PM2.5 increase" for their proposed rollback of the current standards. 101 

101 NPRI'vl, 83 Fed. Reg. at 43,330. 

47 
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Most noteworthy arc EDF's modeling results that show the Agencies have dramatically 

underestimated the actual impact of the rollback due to their use of flawed and biased 

assumptions. EDF results clearly illustrate that there will be significant increases in all of the 

pollutants for 2030 to 2050. These results are also consistent with recent analysis performed by 

EDF to assess the impact of a rollback. In its comments on EPA's August 21,2017 request for 

comment on reconsidering the Final Determination, EDF estimated the impacts of a rollback 

using a recent version of EPA's Inventory Costs and Benefits Tool (ICBT) model. 1112 ·

103 This 

independent analysis arrived at the same conclusion as the analysis presented below which is 

based on the use ofNHTSA 's modeling tools. 

The Agencies' underestimation of the impacts is no small matter. The emissions increases under 

the rollback are underestimated by many orders of magnitude. These increases clearly 

demonstrate that there arc important co-benefits associated with the existing standards and any 

rollback will be harmful to public health. Many of these important reductions that the current 

standards achieve will occur in already overburdened communities, therefore helping to address 

environmental justice concerns. In addition, the criteria poilLJtant reductions of the final 

MY202l-2025 standards are substantial and will be relied upon by states to attain the ambient air 

quality standards and to accommodate future emissions growth. 

Compared to the recent light-duty Tier 3 rule, the emission increases attributable to the rollback 

in the 2030 calendar year will offset 24% ofthe VOC reductions expected from Tier 3, offset 

13% of the NOx reductions that are expected from Tier 3, and offset 38% of the PM2.5 

reductions that are expected from Tier 3. 104 These are significant amounts of health-harming 

criteria emissions that the current light-duty Phase 2 GI-!G standards will reduce in the form of 

co-benefits. The agencies' assessment of the emissions impacts of the proposed rollback utterly 

fails to properly and fully account for the climate pollution impacts and criteria emission health 

and welfare benefits. Moreover, the allowance of these emissions constitutes a clear and 

unlawful abdication of EPA's statutory duty to protect human health and welfare from healthharming pollution. 

'

02 Comment of Environmental Defense Fund, Clean Power Campaign, & Center for Energy Efficiency and 

Renewable Technologies, Re: Request for Comment on Reconsideration of the Final Determination of the MidTerm Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles, at 52, 

97 (Oct. 5, 2017), 

https:/lwww.edf.org/sites/defaultlfiles/contentifinal edf ld cpa reconsideration comments I 0.5, !7.pdf. 

toJ Draft TAR at 12-47. 

""EPA, Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards; Final 

Rule, 79 Fed. Reg. 23,414,23,443 (Apr. 28, 2014). 

48 
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50 
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Since NHTSA has drastically underestimated the impact of the proposal on emissions of ozone 

precursors (i.e. VOC and NOX), they have mischaracterized the impact of the rollback on ozone 

formation. The graph below is similar to the one the Agencies presented in the preamble to show 

that the rollback had a "negligible environmental impact.'' 105 When EDF added the results from 

its assessment, the graph starkly illustrates that the true impacts, for smog-forming emission 

impacts in this case, are significant and grow over time. 

- 120000 

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8' 

~ -NHTSA's PrediCtion - EDF's PrediCtion 

3. Key air toxic emissions impacts are higher than NHTSA and EPA 

claim 

Finally, the EDF modeling assessment also examined the impact of the rollback on several 

important air toxic pollutants which is described in more detail in the Rykowski Report. The 

following graphs compare the impacts over time of the rollback compared to the current 

standards for acetaldehyde, acrolein, benzene, 1,3 butadiene, and formaldehyde. The Agencies' 

projections show that there are decreases in all of these toxic pollutants which has led them to 

conclude that the rollback will have a beneficial impact on air toxics. 106 However, this 

conclusion is wrong because of the llawed modeling runs and their results the Agencies relied 

upon. 

NPRM. 83 Fed. Reg. at 42.996. 

'"6 NPRM. 83 Fed. Reg. at 43,332-34. 

51 
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As was done for C02 and criteria pollutant assessments, EDF corrected these errors. One of 

these errors discussed above involves NHTSA's arbitrary increase in the rebound effect from 10 

to 20%. NHTSA and EPA concluded that their rebound assumptions are the main reason for the 

air taxies benefits. In fact, the Agencies admit in the preamble that this result was caused by their 

VMT, rebound, and upstream emission assumptions. 107 EDF's model results, which are based 

on more defensible assumptions, are at odds with NHTSA's and EPA's conclusions. For all of 

the air toxic pollutal'lts presented below, the EDF projections show either insignificant effects or 

increases attributable to the proposed rollback. This result is consistent with all previous 

assessments performed by NHTSA and EPA. In no case do the EDF projections support a 

conclusion that the rollback reduces air toxic emissions. 

,. '-

~ ·100 ... 

0.·150 "' "' c 

,.'!, ---200 u 

~ "'250 

::!' ·300 

Acetaldehyde Increases Under the Proposed Rollback 

. ·39 I

. 

·297 

111 NHTSA's ProjectiOns 111 EDF's Projl!ctlons 

107 NPRM, 83 Fed. Reg. at 43,332. 

52 
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iii ~2 

~ ·4 '-2i ·6 

~ ·S 0 

~ ·10 

:s ~12 

:i!! "'·14 

·15 

·1$ 

.... 200 

"' $;' 100 '-2i 0 

1::: ·100 

~·200 

·~ ·300 

:i!! -400 

·500 

·600 

Acrolein Increases Under the Proposed Rollback 

0.1 0.3 

-·O.S 

-8 

·12 

2030 

-16 

2035 

-14 

2040 

Ill NHTSA's Projections II EDF's Projections 

Benzene Increases Under the Proposed Rollback 

206 242 

134 

-364 

11 NHTSA's Projections !II EDF's Projections 

53 

2050 

2050 
787 


35314.736

10 

so 

1,3 Butadiene Increases Under the Proposed Rollback 

-85 

2030 

Ill NHTSA's Projections 

1 

2040 

EDf's Projections 

Formaldehyde Increases Under the Proposed Rollback 

63 

·92 

-111 

1 

80 

2030 

·120 

2035 2040 2050 

11 NHTSA's Projections !ll E:DF's Projections 

54 
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35314.737

C. Health impacts of rolling back the current GHG standards are consc<JUential 

In order to put the adverse criteria emission impacts into perspective, EDF used EPA's 

regulatory assessment tool to translate the emission impacts due to a rollback into monality and 

mor!Jidity health impacts and to calculate the monetized value of those impacts. The assessment 

tool EDF used for this analysis is described in detail in EPA's Technical Support Document 

titled Estimating the Benefit per Ton ofRedueing PM2.5 Precursors from 17 Sectors." 108 A 

detailed description of EDF's application of this tool can be found in the Rykowski Report 

EDF's assessment was only performed for calendar year 2030, but similar results would be 

expected for other years since the health impacts and their monetization is roughly proportional 

to tons of emissions. Table 1 below presents the results of EDF's analysis and shows I) the 

monetized value of mortality and mor!Jidity and 2) the specific mortality and morbidity impacts. 

Moreover, this analysis is conservative because it does not monetize benefits relating to 

reductions in ozone-precursors, where premature mortality is among the associated health 

e1Tects. 80 Fed. Reg. at 65308-09 (Oct 26, 20 15) 

----------------------------- Table I -Effect of the Proposal on PM2.5-Related Health Impacts in 2030 (Derived using 

EPA Regulatory Analysis Tool) 

Monetized Value of Health Impacts: Mortality and Morbidity ($2016 million) 

3'Yo discount rate $4393-$9802 

Mortality and Morbidi(vlmpacts 

i Premature Mortality 440-982 

Respiratory emergency room visits 1,195 

i Acute bronchitis I 3,761 

i Lower respiratory symptoms 48,467 

I Upper respiratory symptoms ,------~--- 68,586 

Minor_ Restricted Activity Days I ,832,427 -- Work loss days 310.022 

Asthma exacerbation 68,802 

Cardiovascular hospital admissions 908 

i Respiratory hospital admissions i 743 

Non-fatal heart attacks (Peters) I 2,818 

Non-fatal heal1 attacks (All others) 305 

""Technical Support Document, "Estimating the Benefit per Ton of Reducing PM2.5 Precursors from 17 Sectors," 

U.S. Environmental Protection Agency, Office of Air and Radiation, Office of Air Quality Planning and Standards, 

Research Triangle Park, NC 27711, January 2013. 

55 
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This summary table above shows that the health impacts and their valuation are important. The 

two numbers in red are of particular note. First, the premature mortality estimates for calendar 

year 2030 is 440 to 982 incidences. Second, the monetized value of the mortality and morbidity 

impacts is $4.4 to 9.8 billion. 

In addition to analyzing the health impacts for calendar year 2030, EDF also calculated the 

cumulative PM-related health impacts from 2017 to 2050 and the results are presented in Table 2 

below. It should be noted that the damage functions used to calculate the health impacts were 

applied conservatively and as a consequence the impacts in the table are likely on the low side. 

Please see a more detailed description ofEDF's methodology in the Rykowski Report. 109 These 

results show that the cumulative adverse health impacts are stunning. In particular, premature 

mortality attributed to the rollback is far greater than NHTSI\'s f1awed safety-related fatality 

projected benefits when expressed on a cumulative basis. 110 The cumulative 14,50 l-32,362 

premature mortality incidences translate into dollar damages of $89 to 197 billion and were 

totally ignored by the Agencies. 

Table 2: Cumulative Effect of the Proposal on PM2.5-Related Health 

Impacts from 2017-2050 (Derived usin" EPA Regulatory Analysis Tool) 

• Premature Mortality 14,501-32,362 

Respiratorv emergency room visits 40,089 

Acute bronchitis 126,057 

Lower respiratorv symptoms 1,623,910 

Upper respiratorv symptoms 2,299,464 

Minor Restricted Activity Davs 61,424.459 

Work loss days 10,395,427 

Asthma exacerbation 2,358,166 

Cardiovascular hospital admissions 30,418 

Respiratory hospital admissions 24,887 

Non-fatal heart attacks (Peters) 94.492 

Non-fatal heart attacks (All others) 10,222 

Finally, EDF also calculated these health impacts over the lifetimes of MY 1977-2029 vehicles 

which was the same basis NHTSA and EPA used in their NPRM to express cumulative model 

year impacts for the rollback of the standards. 111 When expressed on this basis, the pollutantrelated mortality incidences, which the Agencies did not provide anywhere in the proposal, are 

estimated at 4,832 to 10,780. To put this in perspective, NHTSA and EPA claim that the 

rollback would reduce fatalities by 15,700 (a conclusion which we elsewhere show to be 

'"''Technical Analysis Review for EDF, at 86. 

""Jd. 

ll J Jd. 

56 
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35314.739

arbitrary and fundamentally flawed). 112 The monetized value of the health impacts is 43 to 96 

billion dollars which would be a cost that is attributable to the rollback. The Agencies' estimate 

for these same pollutant damages is a cost of $1 billion. 113 By any measure, these impacts are 

extraordinary and were not properly characterized in the proposal. EDF results show that the 

proposal is fatally deficit in its attempt to assess the impact of the rollback on emissions and 

associated health effects. 

D. NHTSA's emissions and health impact estimates are grossly underestimated 

and categorically wrong 

In spite of an extensive record demonstrating that the current standards provide significant GHG 

emission reductions and important non-Gt·IG emission and health benefits, NHTSA and EPA 

constructed flawed modeling assumptions that systematically distort and dramatically understate 

the estimated impacts of the proposed rollback of the current standards. EDF corrected these 

flaws, re-ran the NHTSA Volpe model. and produced a more accurate assessment that shows the 

Agencies grossly underestimated the GHG. non-GHG, and health impacts of the rollback across 

the board. In addition, the pollutant-related mortality estimates are staggering and represent 

many billions of dollars of health damages that are attributable to rolling back the standards. 

EDF's revised assessment demonstrates that the Agencies, by erroneously understating the 

emission impacts of their proposal, are willing to sacrifice the health and welfare of Americans 

in order to pursue a misguided attempt to gut the current standards. The Agencies got it wrong 

in their assessment of the emission impact of their proposal and given the significance of these 

errors they should withdraw their proposal immediately. 

III. The NHTSA Model is Systematically Flawed and Projects Dr·amatically Overstated 

Vehicle Technology Costs, Understated Fuel Savings, and ~~rroneous Net Societal 

Benefits 

A. Summary 

Over the course of seven years from 20 l 0 through 2016, and in thousands of pages of detailed 

analyses published in various rulemaking and technical documents, NHTSA and EPA repeatedly 

used the same core modeling approaches, with incremental refinements, to assess and improve 

their projections of regulatory costs and benefits associated with the Clean Car Standards. 

112 See NPRJ\1. 83 Fed. Reg. at 43.231, 43,352. Table Vll-89. 

IIJ NPRM, 83 Fed. Reg. at 43,313. 

57 
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In late 2017 and early 20 !8, NHTSA reversed course, fundamentally changing its modeling 

approach to incorporate multiple new, controversial, and unsupported changes. As a result, the 

experimental NHTSA NPRM model bears very little resemblance to the one that NHTSA used 

for the previous 15 years of CAFE rulemakings (or to the realities of how the automotive 

industry operates). Unsurprisingly, nearly all the experimental changes make the current Clean 

Car Standards look like they will entail greater costs and deliver fewer benefits, and accordingly, 

obscure the true and full extent of the harmful impacts associated with the agencies' proposal to 

roll back these standards. In particular: 

• For the previous six years, NHTSA and EPA projected that the incremental MY 2025 

vehicle technology costs for the current Clean Car Standards would be about $1,000-

now NHTSA projects that the vehicle technology costs will be approximately 50 percent 

higher for the CAFE standards and aboLtt twice as high for the GHG standards. 

• For the previous six years, NI-ITSA and EPA projected that MY 2025 lifetime consumer 

fuel savings would be between $2,200 (current CAFE standards) and $2,800 (current 

GHG standards)-now NHTSA projects that the fuel savings will be fully one-third 

lower for both the CAFE and GHG standards 

• For the previous six years, NHTSA and EPA projected that the final few years of the 

current Clean Car Standards would provide net societal benefits of approximately $100 

billion-now NHTSA projects that the standards will entail net societal costs of about 

$200 billion, or a $300 billion reversal 

EDF has successfully replicated NHTSA's NPRM model 114 results. Building from these results, 

we have analyzed a series of EDF-modified runs to demonstrate the fundamental flaws and 

biases in the NPRM model that lead to unreasonable. nonsensical, and arbitrary results, and 

certain results that undermine the grounds for the proposed rule. 

Technology Costs 

• EDF reduced the cost of every individual technology by 50 percent, yet the NHTSA 

model only projected a 40 percent overall vehicle technology cost reduction 

• EDF deleted one technology from the model, and the Nl-!TSA model predicted a lower 

and nonsensical vehicle technology cost even with fewer technology choices 

• EDF adjusted the flawed core technology ranking algorithm to better reflect true cost 

effectiveness, and vehicle technology costs fell by $350 

• EDF corrected a major bias in the NHTSA model that prohibits most manufacturers from 

using any high compression ratio technology packages, even in MY 2030 and beyond, 

and overall vehicle technology costs decreased by $600 

• EDF cites a Union of Concerned Scientists critique that shows that the NHTSA model 

assumes that automakers will act irrationally by letting valuable GIIG program credits 

expire, rather than using them to reduce their cost of compliance 

1

" In this section, EDF refers to the NHTSA :"'PRM model. In the NPRM, NHTSA refers to its CAFE model. but 

that is confusing since it uses its model for both CAFE and GHG analyses. In the past, NHTSA has called it the 

Volpe model. since the model was developed, and is maintained. by the Volpe National Transportation Systems 

Center. While we refer to the NHTSA NPRM model for simplicity, the model is comprised of many individual 

modules on specific topics. \Vhich are sometimes integrated with other modules and sometimes are not integrated 

with other modules. 

58 
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• EDF documents that the NHTSA model predicts that automakers will over comply with 

the current Clean Car Standards for several years, most remarkably in MY 2021-2023. 

years for which the agencies are proposing to completely roll back the standards 

Fuel Savings 

• EDF documents that the NHTSA model assumes that there will be industry-wide overcompliance underthe roll back standards throughout the MY 2021-2032 timeframc as 

well as beyond MY 2032-there is no historical precedent for such sustained overcompliance, even at much weaker standards 

• EDF documents that the NHTSA model ''projects" aggregate, nationwide VMT levels for 

2016 and 2017 that arc about 20 percent lower than formal government estimates by EIA 

and FHWA 

Cost/Benefit 

• In EDF-modified runs which retain some NHTSA assumptions and change the most 

egregious !laws and biases, we show that the roll back would entail net societal costs of 

up to $300 billion, up to a $500 billion change from the NHTSA NPRM's estimate of 

$200 billion of net benefits based on a series of indefensible assumptions and model 

design features 

This section clearly shows that the experimental and controversial changes that NHTSA made to 

its NPRM model exhibit systematic bias and yield a wide array of nonsensical results. Because 

these changes represent unexplained departures from the agencies' prior approaches and are 

disconnected from the underlying factual record, they are arbitrary and capricious. In addition. 

the agencies' reliance on this model to satisfy their statutory obligations under the Clean Air Act 

and EPCA is manifestly inadequate because the model systematically overstates costs and 

understates benefits of the current standards in a manner that frustrates the statutory purposes to 

reduce greenhouse gases and improve fuel economy. 

B. Introduction 

NHTSA 115 stipulates at the beginning of the Notice of Proposed Rulemaking (NPRM) that "this 

proposal is entirely de novo, based on an entirely new analysis." 116 

The decision to pursue '·an entirely new analysis" is a marked departure from NHTSA's prior 

approach to assessing the costs and benefits of the Clean Car Standards. NHTSA has used its 

internal model for many individual CAfE rulemakings since 200 I. Most recently, NHTSA used 

its model for two major rulemakings (the 2010 rule establishing the CAFE standards for MY 

115 EDF's comments apply to both NHTSA and EPA and to both proposed rules. However, in this section, EDF will 

generally refer to NHTSA, rather than NHTSA and EPA jointly, both for simplicity and for accuracy, as NHTSA 

unilaterally carried out the NPRM analysis without any EPA staff technical input. For example, in an EPA 

memorandum to the Office of Management and Budget dated July 12, 2018, a senior EPA staffer stated that "The 

Preliminary RIA is based on the independent technical assessment from DOT-NHTSA, and the document should 

reflect appropriately who has authored the Preliminary RIA. EPA's name and logo should be removed from the 

DOT-NHTSA Preliminary Regulatory Impact Analysis." A recently retired EPA staffer who worked on the Clean 

Car Standards has likewise cited "DOT)s refusal to have a single technical working meeting with EPA staff since 

the 20 16 election." https:l /thehi ll.com/opinion/cncrgv-environment/40005 !-ignore-the-facts-only-way-to-justifyro II back -of-epas-greenho use 116 83 FR42987, Augus124, 2018. 

59 
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2012-2016, 117 and the 2012 rule setting final CAFE standards for MY 2017-2021 and augural 

CAFE standards for MY 2022-2025 118), as well as Technical Assessment Reports (TAR) in 

2010 119 and 2016. 120 Throughout the 2010-2016 timeframe, NHTSA made incremental 

refinements to its model to improve its reliability and reasonableness. 

In 2017 and 2018, after 15 years of incremental refinement and improvement, NHTSA reversed 

course, making a large number of fundamental and controversial changes, purportedly in an 

effort to address newly-identified "problems" that NHTSA had not considered important over the 

previous 15 years. Individually, each of these experimental changes have the potential to 

significantly affect the reasonableness and magnitude of the model results. Acting in concert, 

these major changes have produced massive fluctuations in model outputs and, in some cases, 

results that are clearly nonsensical. The one theme that ties all these experimental changes 

together is that they drastically reduce the projected benefits and increase the projected costs of 

the current standards compared to the roll back. 

Some of these experimental changes are discussed elsewhere in EDF's comments. For example, 

see Section I for a detailed analysis ofthe new and deceptive modeling assumptions regarding 

vehicle safety, Section 1.1. for a critique ofthe indefensible scrappage module, and Section 

I.G.3.for an analysis of the questionable assumptions inherent in the sales module. More detail 

on all these flawed model features are in the attached Rykowski Report. 

This section focuses on the NPRM model flaws and biases that contribute to three key model 

outputs: vehicle technology compliance cost, consumer fuel savings, and the cost/benefit 

analysis. The NPRM model projections for all three of these critical outputs are very different 

from NHTSA and EPA projections in the recent past, as shown in the tables below. 

117 75 FR 25324, May 7, 2010. 118 77 FR 62624, October 15,2012. 119 "Interim Joint Technical Assessment Report: Light-Duty Vehicle Greenhouse Gas Emission Standards and 

Corporate Average Fuel Economy Standards for Model Years 2017-2025," issued jointly by EPA, NHTSA and 

CARB, September 2010, available at https://www.epa.gov/sites/production/files/2016-IO/documents/ldv-ghg· 

tar. pdf. 120 https://www.epa.gov/regulations-emissions-vehicles·and-engines/midterm-evaluation-light-duty-vehicle· 

greenhouse-gas#TAR 

60 
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Table 1. Comparison of MY 2025 Vehicle Technology Cost Projections for the Current 

Standards 

Analysis Year of Source Model Years Cost 

Publication CAFE GHG 

Final Rule121 2012 NHTSA 2017-2025 $1,500 

Final Rule 122 2012 EPA 2017-2025 $1,836 

Final Rule/TAR123 2012/2016 EPA 2022-2025 $1,070 

DraftTAR124 2016 NHTSA 2022-2025 $1,245 

Draft TAR 125 2016 EPA 2022-2025 $894 

Final Determination126 2017 EPA (Obama) 2022-2025 $875 

1CCT Report 127 2017 JCCT 2022-2025 $551 

EPA-to-OMB: 2018 EPA 2022-2025 $1,259 

modified NHTSA 

model 128 

EPA-to-OMB: 2018 EPA 2022-2025 $935 

updated OMEGA 129 

Current NPRM130 2018 NHTSA 2021-2025 $1,850 $2,260 

Table 1 is a comprehensive comparison of projections of vehicle technology costs to meet the 

MY 2025 standards. The various analyses are not always perfectly comparable, e.g., while most 

of the analyses addressed the MY 2022-2025 Midterm Evaluation timeframe, the projections in 

the first two rows from the 2012 Final Rule addressed a much longer time frame from MY 2017-

2025, and the projections in the final row covered one additional year, MY 2021. 

121 77 FR 62660, October 15,2012. 122 77 FR 62665, October 15,2012. 

"'Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025, EPA, NHTSA, and CARB, 

July 2016, page 12-35. https://nepis.epa.gov!Exe/ZyPDF.cgi/P I OOOXEO.PDF?Dockey=P IOOOXEO.PDF 124 Ibid, page ES-9. 125 Ibid, page ES-9. 126 Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas 

Emissions Standards under the Midterm Evaluation, EPA, January 2017, page 5. 

https://nepis.epa.gov!Exe/ZyPDF .cgi?Dockey=P1 000091.pdf 127 Efficiency Technology and Cost Assessment for U.S. 2025-2030 Light-Duty Vehicles, International Council on 

Clean Transportation, March 2017, https://www.theicct.org/publications/US-2030-technology-cost-assessment 128 EPA Review of CAFE Model with "GHG" Settings, Meeting with Office of Management 

and Budget/OIRA, found at PDF page 113 (Apr. 16, 20 18), available under the file titled 

"Email 5" at hnps://www.regulations.gov/document?D=EPA-HQ-OAR-20 18-0283-0453 129 Ibid. 130 83 FR 43323 and 43324, August 24,2018. 

61 
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Considering only the three rows with NHTSA projections for CAFE standards compliance, the 

NHTSA NPRM cost projection of$! ,850 is far higher than previous NHTSA estimates. The 

NPRM estimate of $!,850 for the five model years 2021-2025 131 is significantly higher than 

NHTSA's 2012 Final Rule estimate, even though the latter accounted for almost twice as many 

model years of standards as the NPRM. NHTSA' s NPRM estimate of $1,850 is also about 50 

percent higher than its Draft TAR estimate of $1,245 just two years ago. The one additional 

model year covered by the NPRM estimate could explain part of this large difference, of course, 

but certainly cannot explain the entire 50 percent increase. 

The comparison of vehicle technology cost projections for compliance with the GHG standards 

is even more stark. NHTSA's NPRM projection of$2,260 for MY 2021-2025 is, again, 

significantly higher than EPA's 2012 Final Rule projection, even though the latter reflects almost 

twice as many model years of control. There are six additional projections for GHG standards 

compliance for MY 2022-2025, with a range of$551-$1,259 (the high end of this range comes 

from an EPA staff analysis in which NHTSA' s core NPRM model was used, but with 

modifications to correct specific errors). Even setting aside the lowest end of the range, a 20!7 

estimate based on a technology analysis by the International Council on Clean Technology, and 

accounting for the additional year of control reflected in NHTSA's NPRM estimate, Table 1 

shows that the NPRM estimate of$2,260 for GHG compliance is about twice as high as multiple 

EPA analyses, most of which were performed in the last two years. 

131 The proposed alternative roll back also includes MY 2026, but since the augura! CAFE standards for MY 2026 

are no higher than for MY 2025, the addition ofMY 2026 should have no meaningful impact on the incremental per 

vehicle technology cost. 

62 
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Table 2. Comparison of MY 2025 Vehicle Lifetime Consumer Fuel Savings Projections for 

the Current Standards (3 percent discount rate) 

Analysis Year of Source Gasoline Price Lifetime Fuel Savings 

Publication in 2025-2030 CAFE GHG 

Final Rule 132 2012 NHTSA About $4/gal $6,300 

Final Rule133 2012 EPA About $4/gal $7,400 

Draft TAR 134 2016 NHTSA About $3/gal $2,200 

Draft TAR135 2016 EPA About $3/ga1 $2,800 

Final 2017 EPA About $3/gal $2,800 

Determination 136 (Obama) 

Current NPRM 137 2018 NHTSA About $3/gal $1,470 $1,830 

Table 2 shows a comparison of projections (all based on a 3 percent discount rate) oflifetime 

consumer fuel savings for a MY 2025 vehicle under the current Clean Car Standards. For fuel 

savings, future gasoline prices are, of course, a key factor. Accordingly, the first two rows, from 

the 2012 Final Rule, are not comparable with the remaining rows as fuel price projections at the 

time were around $4 per gallon for the 2025-2030 timeframe. But, setting the first two rows 

aside, NHTSA's lifetime consumer fuel savings projections for both its CAFE and GHG 

analyses are considerably lower than other, recent estimates using similar fuel price projections 

of about $3 per gallon for the 2025-2030 timeframe. NHTSA 's NPRM projection for its CAFE 

standards analysis of $1,4 70 is 33 percent lower than its own estimate just two years earlier in its 

TAR analysis. NHTSA's NPRM projection for its GHG analysis of $1,830 is 35 percent lower 

than EPA estimates in both the TAR and the original Final Determination. The fact that the 

differences in lifetime consumer fuel savings between the NHTSA NPRM projections and 

historical projections for both its CAFE and GHG analyses are similar suggests that there were 

systematic changes in the NHTSA approach for calculating fuel savings in the NPRM. 

While it is fairly simple to identify some of the experimental changes made by NHTSA, such as 

those that led to the major changes in how safety and used vehicle scrappage are treated, and to 

quantify their impacts on key outputs, the factors underlying the significant changes in NHTSA 's 

vehicle technology cost and lifetime consumer fuel savings projections are harder to identify and 

quantify. There are three reasons for this. One, it appears that, for both technology cost and fuel 

savings, the large differences are due not to a major change in one key assumption or model 

design feature, but rather are due to multiple changes, each of which in isolation probably had a 

1

32 77 FR 62661, October 15,2012. 133 77 FR 62926, October 15,2012. 134 Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025, EPA, NHTSA, and CARB, 

July 2016, page ES-11. https://nepis.epa.gov/Exe/ZyPDF.cgi/P l OOOXEO.PDF?Dockey=P1 OOOXEO.PDF 135 Ibid. 136 Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas 

Emissions Standards under the Midterm Evaluation, EPA, January 2017, page 7. 

https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P I OOQQ91.pdf 137 83 FR 43323 and 43324, August 24,2018. 

63 
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35314.746

relatively small-to-medium impact, but in combination (nearly always acting in the same 

"direction") had a very large impact. Two, NHTSA has failed to provide adequate information 

about the changes it has made with respect to these issues and, when it does identify that it made 

a change, makes little attempt to quantify the impact of the change on important model outputs. 

Three, accordingly, stakeholders have had to run the NHTSA model numerous times, investing 

considerable time and effort in trial-and-error mode to attempt to reverse engineer the key drivers 

influencing NHTSA's dramatic reversal during the limited 60-day comment period. As we 

describe elsewhere in our joint legal comments, EPA's failure to transparently set forth this 

information frustrates meaningful comment and violates the agency's obligations under section 

307 of the Clean Air Act, including to ensure the proposal sets forth "the methodology used in 

obtaining the data and in analyzing the data." 

Table 3 provides a similar comparison of projections of net societal benefits (i.e., total societal 

benefits minus total societal costs) for the MY 2025 standards relative to a no-standards baseline 

assumed in each study. Again, the various analyses are not always perfectly comparable, e.g., 

while most of the analyses addressed the MY 2022-2025 Midterm Evaluation time frame, the 

projections in the first two rows from the 2012 Final Rule address a much longer timeframe from 

MY 2017-2025, and the projections in the final row from the NPRM cover one additional year, 

MY 2021. 

In terms of net societal benefits, Table 3 shows that NHTSA projections for the CAFE standards 

and EPA projections for the GHG standards throughout the 2012-2017 timeframe were 

extremely similar in projecting large net societal benefits. In the Final Rule establishing the 

standards for the nine years from MY 2017 through 2025, both NHTSA and EPA projected very 

large net benefits in the $450 billion to $480 billion range. In the 2016 TAR, both NHTSA and 

EPA projections were for net societal benefits of approximately $90 billion for the four years of 

standards from MY 2022-2025. The smaller net benefits projections were to be expected, given 

that the TAR only addressed four years rather than nine, and gasoline price projections in the 

TAR were lower than in the 2012 rulemaking. Finally, in the original EPA Final Determination 

of January 2017, EPA projected net societal benefits of about $100 billion for the MY 2022-2025 

GHG standards. 

The final row in Table 3 shows that NHTSA is now projecting remarkably different results. After 

many years of projecting that its CAFE standards would have extremely positive societal impacts 

(and with EPA projecting very similar positive impacts for the corresponding GHG standards), 

NHTSA is now projecting that the current MY 2021-2029 standards, if maintained, would have 

net costs of approximately $200 billion during those five years, or, stated differently, rolling 

back the standards to MY 2020 levels would have net societal benefits of about $200 billion. 

64 
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Table 3. Comparison of Net Benefits Projections for the Current Standards 

(billions of dollars, 3 percent discount rate) 

Analysis Year of Source Model Years Net Benefits 

Publication 

CAFE GHG 

Final Rule m 2012 NHTSA 2017-2025 +476 to +483 

Final Rule 139 2012 EPA 2017-2025 +451 

Draft TAR140 2016 NHTSA 2022-2025 +88 

Draft TAR 141 2016 EPA 2022-2025 +94 

Final 2017 EPA 2022-2025 +98 

Determination"' (Obama) 

Current NPRM143 2018 NHTSA 2021-2029 -176 -201 

C. NHTSA's Model Fails at its Core Function-to Accurately Predict the Most 

Cost-Effective Technology Pathways for Automaker Compliance 

The agencies rely on the NPRM model to satisfy their respective obligations to establish 

"maximum feasible" fuel economy standards under the Energy Policy and Conservation Act and 

to set emission standards that protect public health under the Clean Air Act. So, consistent with 

those statutory charges, the NHTSA model must reasonably predict how manufacturers can 

apply new technology to meet future CAFE and GHG standards. If the model cannot do this 

successfully, then its vehicle technology cost projections will be wrong. And if the vehicle 

technology cost estimates are erroneous, then other critical projections which depend on vehicle 

technology cost-such as the sales and scrappage modules, which are primary determinants of 

fatality costs and non-fatal crash costs in NHTSA's model-will be wrong as well. 

As shown in the NPRM summary tables on societal net benefits for the MY 1977-2029 CAFE 

and GHG analyses, NHTSA projects that the sum of the costs for just three categories alonetechnology costs, non-rebound fatality costs, and non-rebound, non-fatal crash costs-represent 

about two-thirds of all projected gross benefits under the preferred alternative roll back, and 

138 77 FR 62629, October 15, 2012. 

"'Ibid. 

140 Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025, EPA, NHTSA, and CARB, 

July 2016, page ES-12. https:/lnepis.epa.gov!Exe/ZyPDF.cgi/PI OOOXEO.PDF?Dockey~P I OOOXEO.PDF. 141 Ibid, page ES-12. 142 Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas 

Emissions Standards under the Midterm Evaluation, EPA, January 2017, page 7. 

https:/lnepis.epa.gov/Exe/ZyPDF .cgi?Dockey~P 1 OOQQ91.pdf 143 83 FR 42998, 43310, and 43313, August 24, 2018. Note that the sign for net benefits underthe current NPRM is 

reversed in Table 3, as Table 3 refers to the change from flat (proposed preferred alternative) levels to the current 

standards, while the NHTSA NPRM tables refers to the change in the opposite direction, from the current standards 

to flat levels beginning in MY 2021. 

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approximately double the projected net benefits (i.e., benefits minus costs) associated with the 

roll back. 144 Simply put, if the NHTSA model cannot reasonably predict how manufacturers will 

choose new technologies to meet future standards, then the agencies' reliance on the model to 

establish standards cannot satisfy their statutory mandates. 

The automotive industry is a cost-driven business, and the most successful companies are those 

that can meet consumer demands and regulatory requirements in the most cost-effective manner. 

NHTSA stipulates this in the NPRM when it states that its model "adds technology, in response 

to the standards being considered, in a way that minimizes the cost of compliance."145 

In order to demonstrate how the NHTSA model fails to apply technology in a cost-minimizing 

manner, EDF ran the NHTSA model in three very different ways, each time changing a single 

element while maintaining every other aspect of the base NHTSA model. Table 4 shows the 

NHTSA model projections for fleet wide vehicle compliance costs 146 for meeting the current 

Clean Car GHG Standards, for the NPRM base run as well as the three EDF runs. We show 

results for five model years, 2028-2032, when NHTSA suggests that the technology pathways 

have reached equilibrium. More details on the methodology used for these runs are provided in 

the Rykowski Report. 

Table 4. Vehicle Compliance Cost Projections for Current MY 2025 GHG Standards 

Under NHTSA Model Base Case and 3 EDF Runs 

EDF Run 3 

EDF Run 1 EDF Run 2 Change from 

Model Year NPRM Base Run 50% Cost Delete 2.5-Yearto 15-

Reduction Cooled EGR Year Fuel Savin!ls 

2028 $2,785 $1,682 $2,660 $2,353 

2029 $2,815 $1,713 $2,678 $2,380 

2030 $2,773 $1,683 $2,627 $2,398 

2031 $2,730 $1,649 $2,584 $2,441 

2032 $2,707 $!,620 $2,553 $2,486 

Average $2,762 $1,669 $2,620 $2,412 

I 

In EDF Run I, we ran the NHTSA NPRM model with the single change of reducing the cost of 

each individual technology in the NHTSA model technology input file by 50 percent (columns P 

through AG of the worksheets for the I 0 vehicle subclasses). With all other things being equal, a 

reasonable cost optimization methodology would continue to select the same technologies and 

yield an average vehicle compliance cost projection of $1,381, 50 percent lower than NHTSA's 

projection of$2,762.1nstead, the 5-year average compliance cost projection only decreased from 

$2,762 to $1,669, or by 40 percent, and to a value that is $288 higher than expected. This is a 

nonsensical result as the NHTSA model picked a much less cost-effective set of technologies 

144 83 FR 42986, August 24, 2018, Table VII-45 on page 43310 for CAFE and Table VII-51 on page 43313 for 

GHG. 

145 43 FR 43002, August 24,2018. 146 Note that the cost values in Table 4 are total vehicle compliance costs, which include incremental technology 

costs plus additional incremental costs such as taxes, insurance, and maintenance, and accordingly the NPRM Base 

Run values in Table 4 are greater than the $2,260 "technology-only" value shown in Table 1 above. 

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under the "50 percent cost reduction" constraint, suggesting that there is a fundamental error in 

its cost optimization algorithm. 

EDF Run 2 involved the base NHTSA model with the one change of deleting (or "skipping" in 

NHTSA's terminology) cooled exhaust gas recirculation I (CEGRI) technology. Since this was 

the only change, there are two plausible outcomes: I) no change in vehicle compliance cost, if 

cooled exhaust gas recirculation was so cost-ineffective that it was never chosen in the base 

NHTSA NPRM run (or if it was chosen in the base run, but there were other technologies with 

only very slightly worse cost effectiveness that could be used instead), or 2) an increase in 

vehicle compliance cost, since there is one fewer technology for the model to choose and in 

some cases CEGR I may have to be replaced by a less cost-effective technology. Yet, as shown 

in Table 4, the NHTSA model again produced a nonsensical result as the average vehicle 

compliance cost decreased by $142 when EDF deleted CEGRI from the model. In reviewing the 

NHTSA data in more detail, we found that the base NHTSA model (with CEGRI) predicts that 

most strong hybrids retain CEGR I, which is irrational and not cost effective as this technology 

provides little to no additional GHG reduction benefit to a strong hybrid vehicle. 

In EDF Run 3, we ran the NHTSA NPRM model with the single change of replacing the model's 

assumption that automakers will automatically apply any technology that pays for itself in 30-

months with a 15-year assumption. This change much more accurately reflects true GHG 

emissions reduction cost effectiveness, as it more fully reflects the true GHG reduction potential 

of any given technology over the full vehicle useful life. As Table 4 shows, replacing the 2.5-

year fuel savings with 15-year fuel savings forces the NHTSA model to indeed choose more 

cost-effective technology pathways, with the average vehicle compliance cost projection 

decreasing from $2,762 to $2,412, or by $350 or 13 percent. This confirms that the base NHTSA 

NPRM model, with the flawed 30-months fuel savings assumption, fails to truly represent 

technology and standards compliance cost effectiveness. 

The three EDF runs summarized in Table 4 conclusively show, using three very different 

approaches, that the NHTSA NPRM model produces nonsensical results and fails to accurately 

predict the most cost-effective technology pathways for meeting future standards. These 

nonsensical results are indicative of deep and fundamental flaws with the basic design of the 

NHTSA model. The automotive industry is a highly competitive and cost-driven industry, yet the 

NHTSA model assumes that automakers will make a series of irrational and inefficient choices 

and waste money. This fundamental failure to fulfill its single most critical core function 

demonstrates that it is unreasonable for the agencies to rely on the model to satisfy their statutory 

obligations under EPCA and the Clean Air Act. 

D. Specific Examples of Blatant Flaws and Biases in the NPRM Model That 

Artificially Inflate its Vehicle Technology Cost Projections 

In Table 1 above, we showed that NHTSA's NPRM model yields vehicle technology cost 

projections for CAFE compliance that are up to 50 percent higher than NHTSA's own estimate 

from just two years ago, and about twice as high for GHG compliance as a series of EPA 

estimates in recent years. In subsection C, we showed, by running the base NHTSA NPRM 

model with individual changes, that the model repeatedly produces nonsensical results and 

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completely fails to provide reasonable projections for technology adoption and costs. Time 

constraints prevented an exhaustive exploration of every individual element of the NHTSA 

model, but this section will highlight some of the most important individual examples of flaws 

and biases that affect the NHTSA vehicle technology cost projections. 

I. Use of Flawed "Effective Cost" Technology Ranking Metric 

The NHTSA NPRM model uses a metric that it calls "Effective Cost" to rank technologies for 

automakers to choose from for future compliance. This is an inherently flawed metric that is a 

critical contributing factor to NHTSA's inflated vehicle technology cost projections. 

NHTSA defines Effective Cost for an individual technology as I) incremental cost associated 

with adding the technology to a vehicle, minus, 2) vehicle fuel savings associated with the use of 

the technology over its first 30 months, and, minus, 3) the reduction in CAFE fines for the 

vehicle based on the improved fuel economy. 

The fundamental flaw in NHTSA's Cost Effective definition is that it does not reflect a 

technology's overall contribution to GHG (or CAFE) compliance. The inclusion of the 30-month 

fuel savings assumption does reflect a small portion (approximately 20 or 25 percent) of the 

overall GHG (or CAFE) compliance contribution over a vehicle's full lifetime, but ignoring the 

majority of its contribution means that the NHTSA NPRM model does not rank individual 

technologies based on their true cost effectiveness in meeting future standards. 147 Put another 

way, the model is hard wired to over select more, relatively lower cost technologies, without full 

consideration of these technologies' ultimate effectiveness in reducing emissions. An approach 

along these lines would be expected to result in vehicles with more technology and higher costs 

than would actually come to pass which is precisely what the NPRM model produces. 

Consider the simple example where a manufacturer has two choices to reduce GHG emissions by 

I 0 percent. One option is to choose I 0 different technologies that each reduce GHG emissions by 

I percent and cost $100 apiece. The second option is to adopt a single technology that reduces 

GHG emissions by I 0 percent and costs $600. Both approaches yield a 10 percent GHG 

reduction, but the single technology will do so at a much lower cost. In the NHTSA model, the 

"effective cost" technology ranking metric for all the I percent/$! 00 technologies will be slightly 

less than $100 (accounting for the small fuel savings over the first 2.5 years), while the effective 

cost metric for the 10 percent/$600 technology will be over $100 (after accounting for the 

relatively larger fuel savings over the first 2.5 years). Accordingly, the NHTSA model will rank 

the 10 individual technologies as more "cost effective" than the single technology, even though 

the latter is truly more cost effective as it will provide the same overall emission reduction at a 

far lower cost. 

147 EDF notes that EPA's OMEGA model, inexplicably rejected for use in the proposed NPRM roll back, is far 

superior in this respect. OMEGA's Technology Application Ranking Factor includes a denominator that accounts 

for the technology's overall contribution to meeting future GHG standards, essentially representing a cost per gram 

(or per ton) value, that allows a true ranking based on technology cost-effectiveness and so is consistent with 

rational automaker compliance decisions. 

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One simple approach to estimate the minimum magnitude of the error in vehicle technology cost 

associated with NHTSA's flawed Effective Cost metric is the EDF Run 3 in Table 4 above. In 

this run, EDF replaced the 2.5-year fuel savings factor with IS-year fuel savings, which is a 

conservative, but much more reasonable, approximation of lifetime fuel and GHG savings. Table 

4 shows that this single change reduced the NHTSA NPRM model's vehicle technology cost 

estimates in the MY 2028-2032 timeframe by an average of$350. 

The Union of Concerned Scientists (UCS) has performed a more detailed critique ofNHTSA's 

flawed Effective Cost algorithm and has estimated that this error likely raises NHTSA's average 

MY 2028 vehicle technology cost projections by nearly $500. 148 This is consistent with the $350 

value above being a minimum estimate. 

EDF strongly recommends that NHTSA replace its flawed Effective Cost metric with a true costeffectiveness approach which would simulate rational decision making by automakers. 

2. Constraints on Using HCR 1 and HCR2 

In addition to using a flawed Effective Cost metric for selecting technologies, NHTSA has 

further imposed artificial and unreasonable constraints on the use of certain technologies that 

does not match how automakers are applying them in vehicles today. While time constraints 

have prevented EDF from conducting a comprehensive review of the impacts of the NHTSA 

model's technology effectiveness, cost, and constraints assumptions on its vehicle technology 

cost projections, we have evaluated the impact ofNHTSA's constraints on the use of high 

compression ratio (HCR) engines. 

HCRl represents Atkinson Cycle engine, non-turbocharger, technology that has already been in 

the marketplace for several years. Mazda has been a leader in bringing HCRl technology to the 

market, and a majority of its current U.S. vehicles utilize HCRl. Mazda's success had led to 

several other manufacturers adopting HCRI technology, including Hyundai and Toyota on nonhybrid vehicles and General Motors, Ford, and Nissan on hybrid vehicles. Yet, even for MY 

2030 vehicles and beyond, NHTSA only allows the use ofHCRI by about 30 percent of the U.S. 

fleet.l49 

In comments submitted to this rulemaking docket, the International Council on Clean 

Transportation (ICCT) provided a compelling illustration of how wrong NHTSA has been with 

respect to its projections ofHCR use. In the 2016 TAR, the NHTSA model prohibited Toyota 

from considering HCR through MY 2025. One year later, Toyota began adopting HCR in some 

of its 2016 vehicles, proving NHTSA wrong in its assumptions about the use of HCR by Toyota 

for the next nine yearsl 50 

HCR2 represents a more advanced version, combining HCRI with additional technologies such 

as cylinder deactivation and cooled exhaust gas recirculation. The 2018 Mazda CX-5 and Mazda 

148 See comments of the Union of Concerned Scientists (UCS), submitted to this rulemaking docket ("UCS 

Comment"). 

149 See comments of the International Council on Clean Transportation (ICCT), submitted to this rulemaking docket. 150 Ibid. 

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6 both use HCRI with cylinder deactivation, a package that is not permitted in NHTSA's 

model. 151 The 2018 Toyota Camry base engine, one of the most efficient spark-ignition engines 

on the market today, is an HCRI engine with cooled exhaust gas recirculation, another package 

that is not permitted by the NHTSA model out to MY 2030 and beyond. 152 

NHTSA's self-imposed constraints of extremely limited use ofHCRI and no use whatsoever of 

HCR2 through the early 2030s are inconsistent with the rapid increase in market penetration of 

both base HCRI and more advanced HCR applications (for example, HCRI combined with 

either cylinder deactivation or cooled exhaust gas recirculation). 

To evaluate the impacts of these unreasonable constraints, EDF ran the base NHTSA NPRM 

model with a single change of removing the constraints imposed by NHTSA and therefore 

allowing the use of both HCRI and HCR2 technology for all manufacturers by MY 2028. The 

impacts on the NHTSA model's vehicle compliance 153 cost projections are shown in Table 5. 

See Rykowski Report for more details on the methodology used for these runs. 

Table 5. Vehicle Compliance Cost Projections for Current MY 2025 GHG Standards 

Under NHTSA NPRM Model Base Case and EDF Run with HCR1/HCR2 

Model Year NHTSA NPRM Base Run EDF Run with HCRI and 

HCR2 

2028 $2,785 $2,167 

2029 $2,815 $2,192 

2030 $2,773 $2,174 

2031 $2,730 $2,153 

2032 $2,707 $2,144 

Average $2,762 $2,166 

Table 5 shows that the single change of allowing the use ofHCRI and HCR2 technology by MY 

2028 would reduce NHTSA's vehicle compliance cost projections from $2,762 to $2,166, or by 

nearly $600 and 22 percent. This is an unreasonable and arbitrary decision by NHTSA, to 

essentially eliminate a popular technology already being used extensively in the marketplace 

from its analysis for I 0 to 15 years into the future. 

3. Credit Constraints 

Another major flaw in the NHTSA NPRM model that inflates its vehicle technology cost 

projections is its treatment of GHG emissions compliance credits. Auto makers advocated for 

151 Inside Mazda, Mazda CX·5 Adds Numerous Upgrades After Being On Sale Just Nine Months, 

https :1/insi demazda.mazdausa.com/press-release/20 18-mazda-cx-5 -adds-numerous-upgrades/ (last visited Oct. 25, 

2018). 

152 James Riswick, Desirable at Last: 2018 Toyota Camry, Camry Hybrid First Drive, 

https://www.autoblog.com/20 17/06/21/201 8-toyota-camry-camry-hybrid-first-drive-review/ (last visited Oct. 25, 

2018). 

151 Note that the cost values in Table 5 are total vehicle compliance costs, which include incremental technology 

costs plus additional incremental costs such as taxes, insurance, and maintenance, and accordingly the NPRM Base 

Run values in Table 5 are greater than the $2,260 "technology-only" value shown in Table I above. 

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various credit mechanisms as a central element of the original Clean Car Standards, and credits 

remain a very important compliance mechanism for many manufacturers. 

The Union of Concerned Scientists (UCS) has performed an in-depth critique of the treatment of 

GHG credits in the NHTSA NPRM model. 154 It concluded that, in the aggregate, the design of 

the NHTSA NPRM model incorrectly reflects how manufacturers would use credits by assuming 

that manufacturers will make two very irrational and economically inefficient decisions-that 

they will let credits expire instead of using them as a cost-free element of an overall compliance 

strategy, and then they will have to add additional technology in order to make up for the 

compliance benefit that the foregone credits would have provided. The automotive industry is a 

competitive and cost-driven business, and auto makers will not make such irrational and wasteful 

decisions. 

UCS identified four specific examples of errors in the NHTSA NPRM model's approach toward 

credits. One, the model assumes that manufacturers will add certain technologies (those that pass 

an "Effective Cost" threshold) even if that manufacturer has credits that are about to expire. This 

is obviously unrealistic. Two, the model does not accurately reflect the one-time exemption from 

the EPA 5-year credit life for credits earned in the MY 20 I 0-2015 time frame, and erroneously 

assumes that these credits will expire after 5 years. This is likewise unreasonable, since the EPA 

exemption to allow these credits to be used through MY 2021 has been on the books for many 

years and is common knowledge. Three, NHTSA assumes that there will be absolutely no credit 

trading between manufacturers. This simplistic and unrealistic assumption is also inconsistent 

with reality-- there have been over 30 Mega grams of GHG program credit trades already, 

involving more than 10 different manufacturers. Trading will be even more valuable to 

manufacturers as standards become more stringent. Finally, the NHTSA NPRM model does not 

allow the use of credit "carryback" or borrowing from the future. Manufacturers are permitted to 

carry a compliance deficit for up to three years, and "carryback" credits generated from overcompliance in future years to offset the deficits in past years. While this has not been utilized 

much or at all yet, it is certainly an option that should be available to manufacturers as standards 

become more stringent in the future, and NHTSA's decision to constrain it in the model is 

unreasonable and arbitrary. 

Based on runs with the NHTSA NPRM model focused on these credits issues, UCS estimates 

that the model allowed nearly half of automakers' MY 2011-2015 credits to expire, even though 

they do not expire until MY 2021. UCS estimated that 141 Megagrams of credits were allowed 

to expire, with an approximate market value of$6 billion. In terms of the model's MY 1977-

2029 analysis, UCS concludes that a more reasonable and realistic use of credits could reduce 

NHTSA's projections of aggregate technology costs by up to $60 billion and translate to a 

savings of hundreds of dollars per vehicle. 

4. Over-compliance with Current Standards 

The final example in this section is the frequency with which the NHTSA NPRM model predicts 

industry-wide over-compliance with the current Clean Car GHG Standards. The GHG standards 

154 See UCS Comment. 

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on the books become more stringent each and every year through MY 2025. There is no 

historical precedent whatsoever for the contention that the industry will over comply with 

standards that are becoming more stringent each year155 , particularly with gasoline price 

projections that are relatively stable throughout the entire regulatory timeframe. 156 The overcompliance with the current standards is a particularly egregious consequence of the flawed 

Effective Cost metric discussed above. 

EDF ran the base NHTSA NPRM model for the current Clean Car GHG Standards scenario and 

calculated NHTSA's projected industry-wide over-compliance with the GHG standards. The 

results are shown in Table 6. A negative value means that the actual industry-wide GHG 

compliance value is projected to be less than the industry-wide standard, which means that the 

industry would be "beating the standard" or over complying. A positive value means that the 

industry would be under complying with that year's standard. 

For the 6-year period from MY 20 !8-2023, NHTSA projects significant industry overcompliance with the current GHG standards, ranging from 5 grams/mile to 15 grams/mile. The 

average projected over-compliance during this 6-year period is over l 0 grams/mile, which 

represents an average 5 percent over-compliance relative to the current standards during those 

years. 157 Meaningful over-compliance persists until MY 2024. 

This large and indefensible projected over-compliance in MY 2018-2023 is yet one more 

example of the unrealistic projections inherent in the NHTSA NPRM model and is another 

contributing factor to the exaggerated vehicle technology cost projections during that timeframe 

since over-compliance means that automakers are putting on more technology than required, 

which increases technology cost. Since this over-compliance ends in MY 2024, it would not 

affect NHTSA's technology cost projections for MY 2025 and later vehicles. 

155 Later in this section, EDF presents a detailed rationale for why there is no historical precedent for 

overcompliance even when standards are not increasing. The likelihood of overcomp!iance when standards are 

increasing, as discussed in this section, is even less. 156 83 FR43070, Table II-30, shows 2017 Annual Energy Outlook gasoline price projections remaining below $3.00 

per gallon through 2028 and only slightly rising to $3.19 per gallon in 2035. 157 EDF notes that NHTSA's projection thatthe industry will over comply with the MY 2021 GHG standard by !5 

grams/mile (and by II grams/mile in MY 2022 and 6 grams/mile in MY 2023) is particularly bizarre, given that the 

agencies' preferred alternative roll back would freeze the standards at MY 2020 levels and require no improvement 

whatsoever in MY 2021 or the following five years, let alone reflect the large improvements that would result from 

overcompliance. EDF also notes that NHTSA predicts a 3 grams/mile overcompliance for MY 2017, when it is 

common knowledge that the industry-wide fleet has under complied with the MY 2017 standards. 

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Table 6. Industry-Wide GHG Over-compliance Projections by the NHTSA NPRM Model 

for the Current Standards 

Projected Compliance 

Model Year -Projected Standards 

(grams/mile) 

2017 -3 

2018 -8 

2019 -11 

2020 -14 

2021 -15 

2022 -11 

2023 -5 

2024 0 

2025 +7 

2026 +3 

2027 +1 

2028 -1 

2029 -1 

2030 -1 

2031 -l 

2032 -1 

E. Specific Examples of Blatant Flaws and Biases in the NHTSA Model That 

Artificially Reduce Consumer Fuel Savings Projections 

In Table 2 above, we showed that the NHTSA NPRM model yields MY 2025 lifetime consumer 

fuel-savings projections, under the current Clean Car Standards, that are approximately 35 

percent less than recent NHTSA and EPA projections in 2016 and 2017. This section addresses 

two of the most important examples of flaws and biases that affect the NHTSA consumer fuel 

savings projections. 

I. Overcompliance with Proposed Roll Back Standards 

The NHTSA NPRM model not only predicts significant industry-wide overcompliance with the 

current Clean Car GHG Standards for several years, as discussed above, but also predicts 

ongoing overcompliance with the proposed preferred alternative 8-year GHG emissions rollback 

standards. EDF believes that the overcompliance with the current standards is also a consequence 

of the flawed Effective Cost metric discussed above, where the model assumes that 

manufacturers will adopt technologies that "pay for themselves" with fuel savings over the first 

30 months of a vehicle's life. 

Again, there is no historical precedent whatsoever for the contention that the industry, as a 

whole, will over-comply with standards, particularly when gasoline prices are projected to be 

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relatively stable throughout the entire regulatory timeframe. 158 Moreover, NHTSA' s projections 

that manufacturers will voluntarily exceed its proposed preferred alternative is entirely 

inconsistent with the agency's determination that "maximum feasible" fuel economy standards 

should remain flat between 2021 and 2026. 

In the 2012 Final Rule establishing the MY 2017-2025 GHG and CAFE standards, EPA 

presented a detailed rationale for its assumption that there would be no decrease in fleetwide 

GHG emissions performance in the reference case fleet for MY 2017-2025 beyond the GHG 

emissions performance necessary to meet the MY 2016 standards. 159 Key elements of the 

rationale were: 1) projections that gasoline prices would be relatively stable out to 2025, 2) 

historical evidence that during periods of stable gasoline prices and fuel economy standards, the 

only companies that typically over complied with fuel economy standards were those that 

produced primarily lighter vehicles that inherently over complied with the older, universal (one 

size fits all, non-footprint based) fuel economy standards that are no longer relevant, 3) that after 

meeting increasingly stringent footprint-based GHG and fuel economy standards for the five 

years from MY 2012-2016, it was likely that most major manufacturers ~ould be constrained by 

the MY 2017-2025 standards and unlikely to voluntarily over comply, and 4) ifthere were 

individual manufacturer over-compliance, that manufacturer would likely generate credits that 

could be sold to other companies, and therefore not lead to fleetwide over-compliance. 

EPA's rationale is even more relevant for the MY 2020-2030 timeframe for the following 

reasons: 1) current gasoline prices are lower than they were in October 2012 when the MY 2017-

2025 final rule was published, 2) Annual Energy Outlook 2017 projections for fuel prices in the 

MY 2020-2030 timeframe are relatively stable and approximately $1 per gallon lower than the 

Annual Energy Outlook 2012 Early Release projections which were used in the final rulemaking 

analysis for the MY 2017-2025 standards, 3) there have been several more years of increasingly 

stringent footprint-based GHG and fuel economy standards, so we have a more stringent 

"baseline" and manufacturers are even more constrained by future standards, and 4) due to the 

additional years of increasingly stringent standards, credits generated in the MY 2020-2030 

timeframe are likely to be even more valuable, and even more likely to be sold, than previously. 

For all these reasons, it seems unlikely that there would be any market-driven decrease in 

fleetwide GHG emissions performance (i.e., over-compliance) whatsoever in the MY 2020-2030 

time frame. 

EDF calculated the annual NHTSA NPRM model industry-wide over-compliance under the 

preferred alternative roll back GHG standards and the values are shown in Table 7. Again, a 

negative value means that the actual industry-wide GHG compliance value is projected to be less 

than the industry-wide standard, which means that the industry would be "beating the standard" 

or over complying. A positive value means that the industry would be under complying with that 

year's standard. 

Table 7 shows that, despite the lack of any historical precedent, the NHTSA NPRM model 

predicts significant industry-wide over-compliance under the preferred alternative roll back for 

158 83 FR 43070, Table ll-30, shows 2017 Annual Energy Outlook gasoline price projections remaining below $3.00 

per gallon through 2028 and only slightly rising to $3.19 per gallon in 2035. 

'" 77 FR 62843-62844, October 15,2012, and Regulatory Irnpact Analysis, pages 3-18 to 3-23. 

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many years. For the 12-year period from MY 2021-2032, NHTSA predicts consistent and 

widespread over-compliance, ranging from 4 grams/mile to ll grams/mile. Over this 12-year 

period, the average overcompliance is 9 grams/mile or about 4 percent of the standards during 

that timeframe. For the MY 2027-2032 time frame, this over-compliance accounts for l 0-11 

grams/mile, or 15-20 percent of the total65 grams/mile improvement required by the current 

standards at that time. 

This over-compliance under the preferred alternative roll back minimizes fuel consumption, C02 

emissions, and criteria emissions increases under the roll back because the vehicles are assumed 

to have lower C02 emissions and higher fuel economy than they would be required to achieve 

under the roll back standards. This in turn decreases the consumer fuel savings, C02 emissions, 

and criteria emissions reductions under the current Clean Car Standards, which are calculated as 

incremental relative to those applied to the roll back. lt also allows the preferred alternative roll 

back to be credited with some of the lower cost technologies that would otherwise be available 

under the current standards. This large and indefensible projected over-compliance is yet 

another example of the unreasonable projections inherent in the NHTSA NPRM model. 

The combination of the NHTSA's model's over-compliance with the roll back standards, and the 

large reductions in aggregate vehicle miles travelled associated with NHTSA's exaggerated 

rebound and erroneous scrappage modules under the roll back that are addressed elsewhere in 

our comments, are likely the primary causes of the 35 percent reduction in lifetime consumer 

fuel savings, for the current standards, from the NHTSA NPRM model compared to recent 

estimates by both NHTSA and EPA. This large underestimation of consumer fuel savings has a 

major effect on the overall cost-benefit analysis. 

Table 7. Industry-Wide GHG Over-compliance Projections by the NHTSA NPRM Model 

for the Roll Back 

Projected Compliance 

Model Year -Projected Standards 

(grams/mile) 

20!7 -2 

20!8 -2 

2019 -1 

2020 +I 

2021 -4 

2022 -7 

2023 -8 

2024 -9 

2025 -9 

2026 -9 

2027 -10 

2028 -10 

2029 -11 

2030 -10 

2031 -10 

2032 -11 

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2. Vehicle Miles Traveled Assumptions 

Vehicle miles traveled (VMT) assumptions are critical to any model making emissions and fuel 

consumption projections, of course, as emissions and fuel savings from more stringent standards 

depend directly on how many miles vehicles are assumed to travel per year and over the typical 

vehicle's lifetime. 

NHTSA made a major change in its VMT assumptions in its NPRM analysis of the current 

standards as shown in Table 8. 160 

Table 8. Change in NHTSA's Survival-Weighted Lifetime VMT in NPRM vs Previous 

A I . natYSIS 

Vehicle Body Style Previous NHTSA Current NHTSA Change 

NPRM 

Car 179 399 miles 142,119 miles -37,280 miles= -20.8% 

Van 196,725 miles 155,115 miles -41,610 miles - -21.2% 

suv 193,115 miles 155,115 miles -38,000 miles- -19.7% 

Pickup 188,634 miles 157,991 miles -30,643 miles = -16.2% 

Table 8 shows that NHTSA reduced its survival-weighted lifetime VMT by 30,000 to 42,000 

miles across various vehicle body types, or by between 16 percent to 21 percent, compared to its 

assumptions in previous analyses. Previously, NHTSA had relied on owner-reported data from 

the National Household Travel Survey, which is carried out by the Department of 

Transportation's Federal Highway Administration, considered to be the authoritative source on 

the travel behavior of the American public, and whose data is fully transparent and accessible to 

all researchers. In the NPRM, NHTSA changed from National Household Travel Survey data to 

proprietary data from Polk. NHTSA did not describe the Polk data or how it processed the data. 

Accordingly, it is impossible to compare the Polk approach to the transparent data available from 

the National Household Travel Survey. 

The most straightforward way to evaluate the accuracy ofNHTSA's approach is to compare the 

NHTSA model projections for nationwide light-duty VMT under the current standards to those 

from formal federal government estimates for recent calendar years. NHTSA entirely failed to do 

this in the NPRM. EDF makes this comparison in Table 9. 

Calendar Year FHWA 

2016 2850 

2017 NA 

Table 9 shows that the NHTSA NPRM model significantly underestimates total light-duty 

vehicle VMT relative to the federal government's two primary sources of VMT data. For 2016, 

160 Preliminary Regulatory Impact Analysis, July 2018, Section 8.9.1.1 page 973. 

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NHTSA's total light-duty VMT projection is over 500 billion miles less than the estimate in the 

2018 Energy Information Administration (EIA) Annual Energy Outlook (AEO), or 19 percent 

low. NHTSA's 2016 projection is over 600 billion miles, or 22 percent, low relative to the 

Federal Highway Administration's light-duty VMT estimate. For 2017, NHTSA's estimate is 

500 billion miles, or 18 percent, below the EIA/AEO estimate. The utter failure of the NHTSA 

NPRM model to even come close to accurately reflecting past and current nationwide VMT 

levels demonstrates that it cannot be depended upon for predictions a decade or two into the 

future. 

F. EDF-Modified Cost/Benefit Runs with NHTSA's NPRM Model Show That 

the Roll Back Yields Net Societal Costs 

NHTSA 's NPRM model projection that the preferred alternative Clean Car Standards rollback 

beginning in MY 2021 would yield net benefits of approximately $200 billion was a 180-degree 

reversal from all previous NHTSA and EPA estimates. Every estimate made by both NHTSA 

and EPA in various rulemakings and technical assessments from 2012 through 2017 had come to 

the opposite conclusion-that the Clean Car Standards would produce large net benefits and 

therefore rolling them back would yield large net costs to society. As shown in Table 3 above, 

even as recently as 2016 and 2017, the two agencies had performed three separate analyses that 

projected that the MY 2022-2025 CAFE and GHG standards would yield net benefits (and 

therefore that rolling them back would yield net costs) of approximately $100 billion. 

Accordingly, the current NHTSA projection reflects a stunning $300 billion reversal relative to 

the NHTSA and EPA analyses in 2016 and 2017. This massive change in NHTSA's bottom-line 

modeling output is only possible because NHTSA made a large number of fundamental changes 

in its modeling design and assumptions, and because nearly every change that NHTSA made has 

had the same directional impact of skewing the results to minimize the benefits and exaggerate 

the costs of the current standards and to exaggerate the benefits and minimize the costs of the 

proposed roll back. It is also relevant to note that NHTSA does not claim that the individual 

technologies that it expects auto makers to adopt to meet the current standards are much more 

expensive or much less effective than it did in its previous analyses. Rather, the massive shift in 

costs and benefits in NHTSA 's NPRM are primarily due to model design features and 

assumptions that are completely unrelated to individual technology cost and effectiveness 

assumptions. 

Building on the analysis and critique throughout our comments ofNHTSA's biased and 

nonsensical assumptions and model design features, in this section we discuss two modified 

modeling scenarios that EDF developed and ran with the NHTSA NPRM model for its MY 

1977-2029 GHG analysis to generate more defensible costs and benefits projections for the 

preferred alternative Clean Car Standards roll back. 

The two EDF runs retain several key experimental and questionable changes that NHTSA made 

to the NPRM model 161 : 

161 By retaining several of these experimental features, each of which is of questionable merit, the EDF-modified 

runs should be considered conservative. See Appendix A for more discussion of these issues. 

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• The Sales module, which is a major departure from previous NHTSA analyses, and 

which projects that new vehicle sales will rise under the roll back 

• The Fleet Share module, which projects that new car market share will increase, and new 

truck share will decrease, under the roll back, which is a major departure from previous 

NHTSA analyses 

• Lifetime VMT per vehicle, which yields aggregate national VMT levels in the near term 

that are well below formal federal government estimates by EIA/ AEO and FHW A, which 

was a major change from previous NHTSA analyses 

• Many internal inconsistencies associated with assumptions about the relative importance 

of changes in vehicle prices and changes in fuel costs/savings in affecting consumer 

behavior with respect to new vehicle sales, car/truck market share, and rebound VMT 

• Gasoline price projections, which are 40-50 cents per gallon low for 2018, do not reach 

the October 2018 price of$2.85 per gallon until2023, 162 do not approach $3 per gallon 

until2029, and reach a maximum of$3.46 in 2050 

The two EDF runs involve the following changes in the NHTSA NPRM model 163 : 

• Rebound is reduced from 20 percent to I 0 percent 

• Scrappage is changed from NHTSA's absurd approach (which assumes that used car 

drivers significantly reduce VMT under the roll back far beyond the small decrease 

necessary to offset higher VMT due to slightly higher new vehicle sales) to the EDF 

VMT Neutral Through MY 2029 approach (which reduces used car VMT under the roll 

back by the precise amount needed to offset higher VMT due to slightly higher new 

vehicle sales) 

• Overcompliance is eliminated under both the current standards and roll back scenarios 

• Mass reduction is changed to the NHTSA 2016 TAR approach 

• The monetized per ton values for C02, methane, and nitrous oxide emissions savings 

were increased, based on values from the Interagency Working Group of the Social Cost 

of Carbon 164; for C02 we used values of $50 per metric ton (up to 2020) to $71 per 

metric ton (2040 and later) 

• All incremental gasoline/oil consumption is assumed to be from domestic sources 

consistent with recent trends of decreasing oil imports and negligible gasoline imports 

Both EDF runs use the same assumptions and model design features above but differ in one 

important respect-the first EDF run uses NHTSA's extremely high NPRM vehicle technology 

costs discussed above, while the second EDF run assumes a 50% reduction in NHTSA's NPRM 

vehicle technology costs, still a conservatively high value but far more consistent with previous 

projections by NHTSA and EPA over the previous eight years as shown in Table I above. 

162 AAA, October Is Finally Falling Into Cheaper Gas Prices (October 22, 20 IS), available at 

https:i/gasprices.aaa.com/october-is-finally-falling-into-cheaper-gas-prices/. 

163 See Rykowski Report for more details on the changes that were made for the EDF runs summarized here. 164 IWG, Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis Under Executive 

Order 12866 (20 I 0), available at https://obamawhitehouse.archives.gov/sites/defaultlfiles/omb/inforeg/ 

foragencies/Sociai-Cost-of-Carbon-for-RIA.pdf. 

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Table I 0 shows the societal costs and benefits projections from the NHTSA NPRM model for 

the roll back, relative to the current standards baseline, using the MY 1977-2029 GHG analysis 

for three runs: the base run that NHTSA summarizes in Preamble Table VII -51 and the two 

EDF-modified runs described above. For ease of comparison, Table I 0 shows the same rows 

that NHTSA shows in Preamble Table VII -51, though to aid the reader we have reorganized the 

rows to group the benefit rows at the top of Table 10 and the cost rows at the bottom of the table. 

All individual costs and benefits are shown as positive values. Net benefits are simply total 

benefits minus total costs. The bottom row of Table I 0 shows net benefits, where a positive 

value means that the roll back is projected to yield net societal benefits, while a negative value 

indicates that the roll back is projected to yield net societal costs. 

The second column in Table 10 simply reports the values from NHTSA's NPRM model run as 

shown in Preamble Table VII-51 (and summarized in the Preamble overview as well). NHTSA 

projects net benefits for the preferred alternative roll back of $20 I billion. 

The third column in Table I 0 reflects the EDF-modified run with the I 00% NHTSA vehicle 

technology costs and the other changes described above. The results are dramatically different 

and demonstrate the great sensitivity of the NHTSA NPRM model results to the experimental 

input assumptions and model design features that NHTSA adopted in the NPRM. Even using 

NHTSA's inflated vehicle technology costs, the preferred alternative roll back yields net societal 

costs of $139-192 billion, reflecting a change of $300-400 billion relative to NHTSA's base run. 

The projected benefits and costs under the roll back for the first EDF run are very different for 

nearly every row in Table I 0. The most important change is that the monetized non-rebound 

fatality and non-fatal crash rows move from a large benefit in the NHTSA NPRM run ($118 

billion) to a small cost in the EDF run ($11 billion), i.e., with a much improved scrappage 

module and a better mass reduction approach, there are slightly more non-rebound fatalities and 

crashes under the roll back. Another big change is that the costs associated with higher fuel 

consumption for the first EDF run are over $100 billion higher. This is due to several factors 

acting in concert: more realistic VMT assumptions for both rebound and scrappage, and less 

over-compliance under the roll back scenario. A third major change is that the C02 damages 

costs are over $60 billion higher based on better social cost of carbon estimates, better rebound 

and scrappage assumptions, and the elimination of over-compliance with the roll back standards. 

Non-GHG emissions costs are also much higher than projected by NHTSA, and based on many 

factors: better VMT assumptions due to rebound and scrappage, the elimination of overcompliance under the roll back standards, and the assumption that all oil exploration, drilling, 

and refining would be domestic and therefore the emissions impacts would accrue in the U.S. 

Finally, the congestion and noise benefits are about $50 billion lower, due to the decreased VMT 

changes due to more defensible rebound and scrappage approaches. 

The final column in Table 10 shows the results of the second EDF-modified run using 

technology costs equal to 50% percent of the values used by NHTSA. The technology benefits 

row under the roll back is 50 percent lower than under the first EDF-modified run, of course, but 

all the other rows are the same as under the first EDF run. Here, the roll back would have net 

societal costs of $277-330 billion, or a net change of about $500 billion relative to the NHTSA 

NPRM base run. 

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Table l 0 shows that the NHTSA costibenefit analysis is extremely sensitive to the experimental 

mode! design features and assumptions that NHTSA adopted for the first time in the NPRM, 

with bottom line values for the NHTSA and EDF runs that differ by as much as $300-500 billion. 

Simply by correcting the most egregious and systematic errors and biases (most notably 

scrappage and over-compliance, but also rebound, mass reduction, social cost of carbon, and 

oil/gasoline sourcing assumptions), Table l 0 shows that the preferred alternative roll back would 

lead to large net societal costs as high as $330 billion, rather than the net societal benefits that 

NHTSA claims with its indefensible assumptions. This fact demonstrates that NHTSA's model 

and assumptions are both fundamentally flawed. The agency must fix these flaws, revise the 

model, re-do its analysis, and re-propose the rule for public comment. 

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Table 10. The Proposed Roll Back Yields Net Societal Costs with EDF-Modified 

Assumptions165 

(billions of dollars MY 1977-2029 GHG analysis, 3 percent discount rate) 

NHTSA EDF 

Technology Cost Assumption 100% IOO%NHTSA 50%NHTSA 

NHTSA 

Technology Costs (benefits under roll back) 260 275 137 

Rebound Fatality 48 22 22 

Rebound Non-Fatal Crash 75 35 35 

Non-Rebound Fatality 46 .. -- Non-Rebound Non-Fatal Crash 72 -- -- Congestion and Noise 63 12 12 

Total Benefits 564 344 206 

Pre-Tax Fuel Savings (costs under roll 144 258 I 258 

back) 

Offsetting Rebound Fatality 48 22 22 

Offsetting Rebound Non-Fatal Crash 75 35 35 

Non-Rebound Fatality -- 4 4 

Non-Rebound Non-Fatal Crash -- 7 7 

Mobility 70 32 32 

Refueling 9 14 14 

Energy Security 12 0.1 0.1 

C02 5 68 68 

Other Pollutants (including mortality) I 43 to 96 43 to 96 

Total Costs 364 483-536 483-536 

Net Benefits +201 -139 to -192 -277 to -330 

G. EPA's Failure to Use its Own OMEGA Modeling Tool to Inform the NPRM 

is Arbitrary and Capricious 

This section has documented the numerous fundamental flaws and biases in the agencies' NPRM 

model that lead to unreasonable, nonsensical, and arbitrary results. The EPA OMEGA166 model 

was created to allow EPA to properly carry out its statutory obligations under the Clean Air Act 

and is far superior to the NHTSA model in aiding the development of emission standards that 

165 Note that the values in Table l 0 evaluate the proposed preferred alternative roll back relative to the current Clean 

Car Standards baseline currently on the books. The same values can be used in the "other direction" to evaluate the 

impact of the current Clean Car Standards relative to a flat GHG baseline, by simply converting Table 10 costs to 

benefits, and Table 10 benefits to costs, i.e., for the current standards, NHTSA projects net societal costs while the 

EDF-modified runs project net societal benefits. 

'"Optimization Model for reducing Emissions of Greenhouse gases from Automobiles (OMEGA). 

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meet EPA's statutory mandate. 167 For example, OMEGA has a much better technology cost 

optimization algorithm based on true technology cost effectiveness, it places far fewer 

constraints on the ability of automakers to make rational economic decisions with respect to 

technology adoption and credit usage, and it uses data and science to inform more realistic 

assumptions about VMT and mass reduction approaches. EPA used the OMEGA model in the 

2010 rulemaking for the MY 2012-2016 standards, the 2012 rulemaking for the MY 2017-2025 

standards, and in the Midterm Evaluation. OMEGA has also been extensively peer reviewed, 

while many elements ofNHTSA's NPRM model do not appear to have been peer reviewed. Yet, 

it is clear from both the NPRM Preamble and the Preliminary Regulatory Impact Analysis that 

the agencies totally ignored EPA's OMEGA model during the development of the NPRM. 

EDF and others have tried to obtain access to the current OMEGA model so that the public could 

have access to a crucial tool for understanding the feasibility, costs, and benefits associated with 

the current Clean Car Standards and regulatory proposals. Unfortunately, EDF and our 

colleagues have been completely rebuffed in our efforts. On March 20, 2018, EDF, the Natural 

Resources Defense Council (NRDC), the Safe Climate Campaign, and the Union of Concerned 

Scientists (UCS) submitted a letter to EPA requesting that the agency make publicly available a 

range of materials relating to the OMEGA model. No response was received. On July 25, 2018, 

EDF and NRDC submitted a Freedom of Information Act (FO!A) request to EPA for these same 

OMEGA materials. The statutory deadline passed without any materials being provided. On 

September 20, 2018, EDF, NRDC, Safe Climate Campaign, and UCS submitted an updated 

version of their March 2018 letter to EPA, but this letter has also been ignored. 

It is known that EPA technical staff have continued to use the OMEGA model for internal 

technical analyses, as several documents authored by EPA technical staff are in the EPA docket 

for this rulemaking. 168 In a presentation by EPA technical staff on Aprill6, 2018 to the Office 

and Management and Budget, as part of the interagency review of the draft NPRM, EPA staff 

made several critical points that echo our own criticisms 169: 

• "significant and fundamental flaws in CAFE model (both the CAFE version and the 

GHG version)" 

• "Because of the disconnect with the vehicle sales projections, the use of the scrappage 

model causes an inappropriate increase in the fatalities impact of the Augural standards, 

and an inappropriate underestimation of the fuel savings and emissions benefits" 

• 'This sustained and significant over-compliance projected by the CAFE model implies 

that the industry will not make use of the larger quantity of banked credits, or year-toyear credit transfer provisions" 

• "Overestimation ofGHG standards cost. CAFE model is forcing combinations of 

technologies that are highly cost-ineffective" 

167 See Joint Environmental Comments for a more detailed discussion of the inadequacy of the Volpe model in 

developing standards consistem with EPA's statutory mandate. 168 See, e.g., E.O. 12866 Review Materials, File: "Email 5- Email from William Charmley to Chandana AchantaJune 18, 2018," at 113 (June 18, 2018), https:/lwww.regulations.gov/document?D=EPA-HO-OAR-2018-0283-0453. 

'"Ibid. 

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• EPA ran the NHTSA model for GHG with corrections for some of its most egregious 

errors, and found that the modified NHTSA model yielded a MY 2025 vehicle 

technology cost projection of$1 ,259; EPA also ran its updated OMEGA model which 

yielded a MY 2025 vehicle technology cost projection of $935 

The failure to provide the public with the OMEGA model or any explanation for why the agency 

has refused to use its own high-quality modeling tool to inform its regulatory proposal is 

arbitrary and unlawful. 

IV. Additional factors further confirm the conclusion that the standards are achievable 

11nd 11ppropri11te. 

A. EPA's existing, well-documented findings on consumer behllvior support the 

llpproprillteness of MY2022-2025 standllrds 

EPA comprehensively addressed relevant issues relating to consumer acceptance of fuel 

economy and GHG reduction technologies in the Draft Technical Assessment Report, Proposed 

Determination, and January 2017 Final Determination. The issues addressed include effects of 

the standards on vehicle sales, consumer response to the standards, impacts of the standards on 

vehicle affordability, and evidence- or lack thereof- of adverse effects on consumer welfare. 

As EPA recognized. its standards lead to substantial savings for consumers. Just one of the 

compelling findings with respect to consumer benefits was that families that purchase a new 

vehicle in 2025 are expected to save a net $1,650 over the lifetime of that vehicle compared to a 

vehicle just 3 years older-and possibly much more. 170 Families purchasing on credit would 

expect to see immediate payback: the increased load cost attributable to control technologies 

would be more than offset in the first year by fuel savings. 171 

Meanwhile, the agency concluded in its Proposed Determination that there is "little, if any, 

evidence that consumers have experienced adverse effects from the standards." 172 Likewise, the 

agency did not find "any evidence that the technologies used to meet the standards have imposed 

'hidden costs' in the form of adverse effects on other vehicle attributes." 173 Nor did EPA 

identify "significant effects on vehicle affordability." 174 Given the ten years of lead-time 

provided to achieve the MY 2022-2025 standards, EPA reasoned in its initial Final 

Determination "that any effects of the standards on the vehicle market will be small relative to 

170 EPA, Proposed Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle 

Greenhouse Gas Emissions Standards under the Midterm Evaluation, at E-6 (Nov. 2016) ("Proposed 

Determination"), https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey;PJOOQ3DO.pdf. 171 Proposed Determination at E-6. 172 Proposed Determination at 27. 173 Proposed Detem1ination at A·27. 174 Proposed Determination at 28. 

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market responses to broader macroeconomic conditions." 175 As with all other aspects of the 2018 

NPRM, there is no evidence that there have been any changes in facts or circumstances that 

would justify such a change of position. 

Reasoned decision making requires that EPA acknowledge and comprehensively take into 

account and discuss its existing, well-documented and reasoned findings regarding consumer 

acceptance, in which case it should reach the conclusion that there is no evidence on this issue 

that would justify flat-lining the federal standards at MY 2020 levels. 

i. EPA standards save consumers money 

Strong fuel economy and GHG standards for passenger cars benefit consumers by saving them 

money at the pump. David Greene has estimated that fuel economy improvements from 1975 to 

2015 have saved !.5 trillion gallons of gasoline and roughly $3.8 trillion (in 2015 dollars) in fuel 

costs. 176 Because of the savings, consumers are demanding more efficient models and 

automakers are delivering them. And more efficient models in the new car market leads to more 

efficient options in the used car market, helping low-income families save money on fuel as well. 

The current light-duty vehicle standards are already saving consumers money at the pump. For 

example, each F -150 bought in 2015 uses about 180 fewer gallons of gas a year than prior 

models, and will save its owner eight trips to the gas station and $300 to $700 per year, 

depending on the price of fuel. 177 The Consumer Federation of America has estimated that in 

2018, consumers are saving on average over $200 a year on fuel compared to 2011, the year 

before the current standards were implemented." 178 

And the current MY 2022-2025 standards will provide even greater savings- allowing families 

who purchase a new vehicle in 2025 to save a net $1,650 over the lifetime of that vehicle 

compared to a vehicle just 3 years older. 179 Further, the savings could double depending on 

future oil prices. The Consumer Federation of America estimates that under the current 

standards, consumers buying a new vehicle in 2025 would save $295 more in fuel costs than 

175 EPA, Final Detennination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse 

Gas Emissions Standards under the Midterm Evaluation, at 25 (Jan. 20 17) ("initial Final Determination"), 

https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=Pl000091.pdf; see also Proposed Determination at 51-52. 176 David Greene, A Trillion Gallons of Gasoline, The University of Tennessee Howard H. Baker Jr. Center for 

Public Policy, (Aug. 20 17), at 3, http://bakercenter.utk.edu/wp-content/uploads/2017/08/0nPoint-5-20l7.pdf. 177 BlueGreen Alliance, Combating Climate Change 426,000 Pickup Trucks At a Time, (June 2016), 

https:l/www.bluegreenalliance.org/resources/combating-climate-change-426000-pickup-trucks-at-a-time/. 

178 Consumer Federation of America, At-Risk MPG Standards Could Cost Future Labor Day Travelers (Aug. 28, 

20 18 ), https :1/consumerfed .org/press release/ at-risk -mpg-standards-could-cost· future-labor-day-travelers/ 179 Proposed Determination at E-6. 

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consumers buying a vehicle under the proposed rollback. 180 

A recent study by MJ Bradley and Associates found that the MY 2025 standards would save the 

average U.S. family $85 per year for every 50-cent-per-gallon increase in gas prices. 181 The 

study indicates that the current MY 2025 standards would increase lifetime savings by $2,800 

compared to a flatline at MY 2020 levels if oil prices stayed at their current level. 182 It also 

suggests that if prices increase, the lifetime savings for a car meeting the existing MY 2025 

standards could be up to $5,000 compared to the MY 2020 standards. 

These savings are particularly significant for families living in states where the state median 

income is below the national median, but the average miles driven are above the national 

average. The MJ Bradley report highlights eight states with below median incomes where 

families can expect higher than average savings; families in Mississippi can expect to save nearly 

twice as much as the average U.S. family from the 2025 standards.i83 

And the nearly 86 percent of Americans who finance their vehicles with a 5-year loan are 

expected to realize cost savings within the first yearY4 Over the life of the entire Clean Car 

program, the fuel cost savings to American families and businesses will add up to over a trillion 

dollars, 185 which is more than double the funds injected into the economy by the American 

Recovery and Reinvestment Act (aka, the stimulus package). 186 With the benefit of reduced fuel 

costs, businesses can invest more money and create jobs in local communities. 

Because of these fuel cost savings, consumers continue to rate fuel economy as one of their top 

criteria when shopping for a new car 187 - 81 percent said they support the Clean Car standards. 188 

And consumers have more choices in fuel-efficient models across the fleet today (see Figure I 

below). There are more than twice as many SUV models that achieve 25 mpg or more in MY 

2016 than there were in MY 20 II. The number of car models where at least one variant has a 

"° Consumer Federation of America, At-Risk MPG Standards Could Cost Future Labor Day Travelers (Aug. 28, 

20 18 ), https :/ /consumerfed .org/ press release/ at-risk -mpg-standard s-could-cost-future-labor-day-travelers. 181 MJ Bradley and Associates, Clean Car Roll-back: Estimated Costs for American Families if U.S. Climate 

Pollution and Fuel Economy Standards Are Relaxed, at 4 (July 20, 2018), 

https:i/www.edf.org/sites/default/files/MJ Bradley Clean Cars rollback report.pdf. 182 /d. at 2. 

"'!d. at 8. 

'" Proposed Determination at E-6. 185 EPA Regulatory Announcement. 186 Congressional Budget Office, Estimated Impact of the American Recovery and Reinvestment Act on 

Employment and Economic Output from October 2011 Through December 2011 (Feb. 2012), 

http://www.cbo.gov/sites/default/files/cbofiles/attachments/02-22-ARRA.pdf. 

187 Despite Cheap Gas, Fuel Efficiency Still a Primary Concern, JD Power (Jan. 14, 2015) available at 

http://www. jdpower.com/press-re Jeases/20 15-u s-avo ider-study. 188 Jack Gillis et al., Auto makers Are on the Road to Meeting Fuel Efficiency Standards: An Analysis of Automaker 

Progress in Meeting 2025 Fuel Efficiency Requirements and A Look At Consumer Attitudes Towards Fuel 

Efficiency, Consumer Federation of America (April25, 2016), http://consumerfed.org/wpcontent/uploads/20 16/04/20 16-Fuei-Economy-Report-April-25-20 l6.pdf. 

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combined city/highway label fuel economy of at least 30 mpg has grown from 39 models in MY 

20 ll to more than 70 models in MY 2016. There are 18 MY 2016 pickup and minivan/van 

models for which at least one variant of the model has a combined city/highway label fuel 

economy rating of 20 mpg or more. 189 

Figure 1 

Vehicle Models Meeting Fuel Economy Thresholds in MY Z011 and MY 2016 

Pickup and 

MlnlvanNan ~ 20 MPG 

Source: EPA's Light-Duty Automotive Technology, Carbon Dioxide Emissions, and Fuel 

Economy Trends: 1975 - 2015 

ii. No reliable evidence demonstrates a negative impact on consumer 

choice 

In its initial Midterm Evaluation, EPA convincingly showed that there is at present no reliable 

way to quantify the effect of the standards on vehicle sales. EPA engaged in a comprehensive 

literature search of all existing efforts to develop reliable consumer choice models that could 

yield quantitative predictions with adequate validity for use in policy making and found that 

there were no such models. 190 This finding is consistent with the NAS (2015) finding that the 

role of fuel economy on consumer purchasing decisions is "unresolved."191 

189 EPA, Light-Duty Automotive Technology, Carbon Dioxide Emissions, and Fuel Economy Trends: 1975-2015 

(Dec. 2015) ("EPA 2015 Trends Report"), 

https :I lnepis.eoa. gov IExe/ZyPDF .cgi/P 1 OOOEOE.PD F? Dockey=P 1 OOOEO E.PD F. 190 Automakers have been trying to develop such reliable predictive tools without success. See Proposed 

Determination at A-47 (summarizing comments of the Alliance that industry had tried and failed for a century to 

develop reliable quantitative consumer choice models). EPA's own efforts to develop such a model were likewise 

unsuccessful. Draft TAR at 6-4 to 6-5. 191 EPA, Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle 

Greenhouse Gas Emissions Standards under the Midterm Evaluation: Response to Comments, at 126 (Jan. 2017) 

("Final Determination RTC"), https:/lnepis.epa.gov/Exe/ZyPDF .cgi?Dockey=P I 00009Y.pdf (citing National 

Research Council, Cost, Effectiveness, and Deployment of Fuel Economy Technologies for Light-Duty Vehicles, 

National Academy of Sciences (2015)). 

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EPA also comprehensively analyzed the willingness-to-pay literature and found that estimates of 

willingness-to-pay for both fuel economy and performance are so varied (by over five orders of 

magnitude in the literature) as to preclude the drawing of reliable, quantifiable conclusions. 192 

EPA's March 2017 presentation of this analysis continued to conclude that the results vary 

widely even within studies- raising the issue of robustness of the stated willingness-to-pay 

values, and further suggesting a lack of robustness in the models used to generate the values: 193 

EPA previously found no evidence of consumer acceptance issues for conventional, nonelectrified technologies, which form the overwhelming majority of the compliance path posited 

convincingly by EPA for the MY 2022-2025 standards. 194 There also is evidence of increased 

consumer acceptance of electrification based strategies (strong hybrid, PHEV, and BEY 

vehicles). 195 Moreover, the flood of announcements from major manufacturers- including Ford 

and OM- of plans to electrify either some or all of their light-duty fleets strongly suggests that 

manufacturers believe there will be broad consumer acceptance of the technology, and do not 

view the technology as generating consumer resistance. 196 

EPA concluded that there is no evidence that the current standards have had a negative impact on 

light-duty vehicle sales. 197 This is consistent with market trends-where industry has 

experienced strong sales since 2009. 198 In addition, new vehicle prices have remained flat in 

recent years after adjusting for inflation and quality199 Because the record shows no evidence of 

any impediment to sales, EPA reasonably concluded in its initial Final Determination that there 

was no reliable way to make reasoned quantitative estimates of the effect of the standards on 

fleet turnover. 200 

Previous commenters during the Mid-Term Evaluation suggested that the "energy paradox" or 

"efficiency gap"- consumers' failure to adopt efficiency technologies notwithstanding these 

technologies' net financial benefits-must mean that there are some hidden costs preventing 

192 See Proposed Determination App. A at A-51; EPA, Proposed Determination on the Appropriateness of the Model 

Year 2022-2025 Light-Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation: 

Technical Support Document, at 4-16 (Nov. 2016) ("Proposed Determination TSD"), 

https :1/nepis. epa.gov/Exe/Z y PDF .cgi?Dockey~ PI 0003 L4 .pdf. 193 David Greene eta!., Presentation: Consumer Willingness to Pay for Vehicle Characteristics: What Do We Know? 

(Mar. 16, 2017), 

h ttps:l/benefltcostanalys is.org/sitesldefaul tlflles/pub I ic/C3 .I %20 Helfand%20et%20al%20 WTP%20for"/o20veh%20c 

har%2020170323.pdf. 

194 Draft TAR at 6-13; Proposed Determination at A-56. 195 Proposed Determination, App. A at A-63 to A-65. 196 For example see GM, Ford Pledge 33 new models, Electric Vehicles, GREENWIRE (Oct. 3, 2017), 

https:/lwww.eenews.net/greenwire/storiesll 060062413/feed. 197 Proposed Determination App. A at A-27. 198 Ahiza Garcia, Car sales set another U.S. record, CNN (Jan. 4, 2017), 

https:l/money.cnn.com/20 1710 1104/newslcompanies/car-sales-20 16/index.html. 109 Final Determination RTC at 136. 20° Final Determination RTC at 137. 

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adoption that EPA failed to account for. But there are multiple potential reasons for the energy 

paradox that do not require hypothesizing an unidentified hidden, countervailing cost, as EPA 

has reasonably noted. These reasons include, on the consumer side: lack of adequate information 

necessary to estimate the value of future fuel savings; mistaken valuation or uncertainty in 

calculating future fuel savings; a focus on attributes conveying visible status rather than invisible 

efficiency; and (pre-standards), a lack of available fuel efficient options among vehicles (like 

SUVs) having other desirable attributes.201 On the producer side, reasons for the efficiency gap 

include hesitation to be a first mover in investing in a new technology; the related desire of 

manufacturers to wait until a technology is further along the learning curve; and another related 

desire of manufacturers to work on the same technologies at the same time to benefit from 

arising research synergies.202 

The record again reflects the copious, reasoned consideration EPA has already given the issue of 

consumer welfare. The agency previously concluded that it had found no evidence of a so-called 

hidden cost to the standards.203 It is clear that consumers value fuel economy, although estimates 

of how much vary widely. 204 The NAS reached the same conclusion that the range of potential 

values for consumer willingness to pay for fuel economy is so varied as to preclude easy 

generalizations as to how much.205 EPA previously included in its cost estimates the cost of 

holding all vehicle attributes, including performance, constant in the presence of the added GHG 

reduction technologies.206 Beyond this already accounted for cost, there is no credible evidence 

that the current standards have had, or will have, an adverse effect on other vehicle attributes. 207 

Recent research by the Consumer Federation of America indicates that buyers of SUVs, 

crossovers, and pickup trucks may prefer more fuel-efficient vehicles.208 From 2011 to 2017 

there was a 70% increase in sales of SUV s, pickups, and crossovers that had a 15% or more 

increase in MPG. During that same time period there was only a 50% increase in sales of the 

same vehicles with a less than 15% increase in MPG.209 A particularly strong example is the 

Nissan Pathfinder, which saw a 224% annual sales increase when it increased its efficiency by 4 

201 Draft TAR at 6-6; 77 Fed. Reg. at 62,914. 201 Draft TAR at 6-7. As noted below, one benefit of the standards is to eliminate these producer-side issues. 203 Final Determination RTC at 127. 204 Final Determination RTC at 124. 205 See Final Determination RTC at 126; NAS (20 15) at 318. 206 Final Determination RTC at 129; Proposed Detem1ination App. A at A-49 and A-50. 207 Proposed Determination App. A section 8.1.4. 208 Press Release: SUVs, Crossovers and Pickups with High MPG Percent Increases Sell Better, Consumer 

Federation of America (Aug. 15, 2018), https://consumerfed.org/press release/suvs-crossovers-and-pickups-withhigh-mpg-percent-increases-sell-better. 

109 fd 

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MPG from 2011 to 2017.210 This correlation suggests that improvements in efficiency will lead 

to increased sales.211 

Most importantly-as discussed above-fuel savings far exceed increased expenditures for the 

emission control technology, so there is a direct, positive welfare benefit to consumers of new 

light duty vehicles. 

iii. The vehicle standards have no discernable negative effect on vehicle 

afford ability 

In the original Midterm Evaluation, EPA closely examined the impacts of the standards on 

vehicle affordability. EPA found, with ample record support, that the standards did not have 

discernible negative impacts on lower-income households or on the used vehicle market, did not 

limit access to credit, and had not decreased availability of low-priced vehicles.212 In particular, 

lower-income households are more affected by prices of used rather than new vehicles, and, 

although any effect of the standards on used vehicle prices is swamped by macro-economic 

factors, the payback period for price increases reflecting GHG emission reduction technology is 

less than for new vehicles given the depreciated price of a used vehicle but the constant 

performance of the emission reduction technology.21l In addition, used car market prices have 

remained flat. 214 Consumer loans for new vehicles remain widely available, and importantly, if 

consumers were to buy a new vehicle with standard five-year financing, the payback period 

would be less than one year.215 

Strong fuel economy and GHG standards indeed provide a strong co-benefit to used-vehicle 

purchasers by providing them with more efficient choices. When fuel prices become suppressed, 

new vehicle purchases can skew towards less efficient vehicles, and when fuel prices are high 

they tend to purchase relatively more fuel-efficient vehicles. This pattern has important 

consequences for the used vehicle market, where the supply of each model and vintage is largely 

determined by the past choices of new-vehicle purchasers, and the supply of a particular used 

vehicle model is essentially inelastic. That is, the choices oftoday's new-vehicle purchasers will 

determine which vehicles are available to tomorrow's used vehicle purchasers, and determine the 

fuel economy of the fleet for many years after the original purchase date. Strong fuel economy 

and GHG standards lead automakers to offer more diverse sets of products, including more 

210 !d. 

211 See, e.g .. id. (quoting Jack Gillis, Executive Director for the Consumer Federation of America "Clearly, the more 

improvement in MPG, the better the sales."). 212 See generally Proposed Determination TSD at sec. 4.3.3. 

2ll Proposed Detennination TSD at 4-49 and 4-47; Proposed Determination, App. A at A-79. 214 Proposed Determination TSD at Fig. 4-26. 215 Proposed Determination TSD at 4-50. 

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efficient models,216 which will have the co-benefit of increasing the supply of fuel-efficient used 

vehicles available for purchase. To the extent that low-income consumers are more likely to 

purchase a used vehicle, more efficient used vehicle choices will help save low-income families 

more money at the pump. 

iv. EPA fully accounted for vehicle performance 

Previous commenters on the Clean Car standards argued that there was a specific hidden 

consumer welfare cost to the standards in the form of decreased performance. Notwithstanding 

that EPA already estimated the cost of holding performance in its cost estimates for the current 

MY 2022-2025 standards,217 this argument contends that there would be still more performance 

added but for the standards, and that this lost performance is a consumer welfare loss not 

accounted for in the agency's cost estimates. The asserted engineering basis for this argument is 

that there is a necessary tradeoff between fuel economy/GHG emission reduction and 

performance (acceleration in particular). Some commenters supported their arguments by 

pointing to consumer willingness to pay studies, maintaining that these studies show a greater 

willingness of consumers to pay for increased performance than for fuel economy, confirming a 

hidden cost to the standards not reflected in EPA's cost estimates. 

The record convincingly refutes these arguments. Most particularly, the historic tradeoff 

between performance and fuel economy is far less likely to hold for advanced technology 

engines.218 EPA concluded in its Proposed Determination that "the assumption in the previous 

research that the tradeoffs among acceleration, fuel economy, and weight are constant does not 

appear to accurately represent the new technologies, and in fact may substantially overestimate 

the magnitude of the performance-fuel economy tradeoff."219 Thus, "fuel economy and other 

vehicle attributes are not mutually exclusive, so there is no necessary tradeoff between fuel 

economy and other vehicle attributes.'mo And EPA previously included the cost of preserving 

both. 221 The studies previously submitted to the record purporting to show a hidden cost of 

foregone increased performance reflected older engine technologies, and so failed to account for 

these highly relevant technology distinctions.222 

216 Meghan R. Busse et. a!., Who is Exposed to Gas Prices? How Gasoline Prices Affect Automobile Manufacturers 

and Dealerships, 14 QUANTITATIVE MARKETING & ECONOMICS 41·96 (Mar. 2016), 

https://dspace.mit.edu/handle/1721.11103416. 

217 See Proposed Determination App. A at A-58. 

"'See Proposed Determination TSD at 2·248 and 2-249 showing that gasoline direct-injection engines and turbo 

downsized engines have much flatter trade off curves than the older, port-fueled engines. 219 Proposed Determination, App. A, at 4-6. 22° Final Determination RTC at 127. 

221 fd. 222 A recent paper addressing this issue, Leard, Linn, and Zhou, "How Much Do Consumers Value Fuel Economy 

and Performance" (2017) likewise assumes that there is a necessary tradeoff between fuel economy improvement 

and performance, basing this conclusion on Knittel (20 II) and Klier and Linn (20 16) which studies did not account 

for the difference in more advanced engine technologies and performance. See Proposed Determination App. A at 

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B. The Auto Industry Has Made a Dramatic Return to Profitability and Added 

Jobs 

During the height of the economic recession in 2008, the American auto industry was on the 

verge of collapse. This prompted the Obama Administration to develop a bailout package for the 

industry, which provided the boost the industry needed to help rebound.223 

The auto industry returned to profitability at the same time fleetwide fuel economy has climbed 

to its highest level ever (see Figure 2 below). Drivers in the United States bought more cars in 

2016 than ever before- setting a record sales high for the seventh year in a row. 224 

2 

Passenger Vehicle Sales and Fuel Economy Have Steadily Risen Since 2008 

30.0 2D,OOO,rm 

28.0 18,000,0)) 

26.0 

!... 14.0 " 

16,000.roJ 

14,000,0CO ~ 1 22.0 12,000,00) I!! 

"' .. 

~ 10.0 

I!' 1D,OOO.OOJ Oil 

z 

0 

::: 18.0 -; 

iil 16.0 ii! 

• aooo.ooo 5 

s 6,000,000 z 

! 14.0 4,000,000. 0 

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11.0 • 1,000,000 

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2008 2009 2010 2011 2012 2013 2014 201S 2016 

"--.. cars -llghtTruc:h -Both -rotaiS.ales 

Source: Created by EDF from data available from Wards Auto225 and the EPA Fuel Economy Trends 

Report226 

4-6. In addition, Leard et al. (2017) acknowledges that their analysis omits any valuation of standard-based 

innovation. Id. at 27, 223 The Resurgence of the American Automotive Industry, The Obama White House (June 201 1), 

https://obamawhitehouse.archives.gov/sites/defaultifiles/uploads/auto report 06 OJ ll.pdf. 224 Ahiza Garcia, Car sales set another U.S. record, CNN (Jan. 4, 201 7), 

https://money.cnn.com/20 17/0 1/04/news/companies/car-sales-20 16/index.html. 225 See Data Center, WARD'S AUTO, available at http://www.WardsAuto.com/data-center (last visited Oct. 25, 2018) 

(including datasets on U.S. light vehicle sales). 226 See EPA, Light-Duty Automotive Technolog;.•, Carbon Dioxide Emissions, and Fuel Economy Trends: 1975 

Through 2016 (Nov. 20 16), https://www.epa.gov/fue1-economy-trends/download-co2-and-fuel-economy·trendsreport-1975-20 16. 

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During its return to profitability the auto industry also added jobs. Since the recession, overall 

job growth in the industry has been strong, aiding a recovery of domestic manufacturing as a 

whole. As of20 17, the U.S. auto industry had added nearly 700,000 direct jobs since the low 

point of the recession in mid-2009 and these jobs support several million indirect jobs 

throughout the economy.227 The growth in direct jobs includes more than 300,000 added jobs in 

motor vehicle and parts manufacturing and 380,000 added jobs at auto dealers.228 This brings 

total manufacturing employment in the industry to 930,000- representing nearly 50 percent 

growth since 2009, and bringing employment at auto and parts dealers to 2 million, which is its 

highest level ever. Indeed, auto-manufacturing jobs accounted for roughly 40 percent of all net 

jobs added in U.S. manufacturing since the recession.229 

A study by the BlueGreen Alliance found that nationwide, there are over 1,200 facilities in 48 

states specifically building the technology that increases fuel economy and cuts emissions.230 

And those facilities support hundreds of thousands of manufacturing jobs- including nearly 

I 00,000 in Michigan and Ohio alone.231 

For example, Ford's F-150, the best-selling vehicle in America, has led to additional jobs across 

the automotive supply chain. Ford reports that the MY 2015 F-150 is more powerful than earlier 

models.212 It also gets an average of 21 percent better fuel economy and uses 17 percent less fuel 

compared to 20 l 0 models that were built before the current standards took effect.233 The fuel 

economy savings from just the new F-l50s sold since 2011 save 5 million barrels of oil a year 

and cut carbon emissions by 2.3 million metric tons.234 

As part of achieving the first phase in fuel economy standards, Ford developed and deployed a 

number of new technologies, including its "EcoBoost" line of redesigned engines. And for the 

second phase of standards Ford is using innovative design and materials-advanced highstrength steels and high-strength military-grade aluminum-to make its F -150 lighter and 

stronger. Emissions gains have also come from suppliers of more efficient components, like 

advanced electrical steering (EPS) systems. 

127 BlueGreen Alliance, Supplying Ingenuity ll: U.S. Suppliers of Key Clean, Fuel-Efficient Vehicle Technologies, at 

5 (May 20 17), https://www.bluegreenalliance.org/resources/supplying-ingenuity-ii-u-s-suppliers-of-key-clean-fuelefficient-vehicle-technologies/ (citing underlying data from U.S. Bureau of Labor Statistics, 

https://www.bls.gov/iagltgs/iagauto.htm). 

228 Id; BlueGreen Alliance, Backgrounder: Sound Vehicle Standards & Policies Drive Strong Job Growth (June 

2016 ), https :1 /www. b luegreenalliance.org/resources/sound-veh icle-standards-po licies-dri ve-strong-jo b-growth/ 

"'ld 

230 BlueGreen Alliance, Supplying ingenuity II, supra n.231, at 4. 

23l[d 

232 BlueGreen Alliance, Combating Climate Change 426,000 Pickup Trucks At a Time, (June 2016), 

https://www.bluegreenalliance.org/resources/combating-climate-change-426000-pickup-trucks-at-a-timel. 

2lJ ld 

234 !d. 

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An analysis by the BlueGreen Alliance summarized some of the jobs that Ford has supported 

through its innovation in the F -150.235 

• Cleveland, Ohio: Ford's Engine Plant No. I employs 1,600 people 

• Saginaw County, Michigan: Nexteer, supplier of EPS system, employs 5,000 people, 

largest employer in the county, after coming back from bankruptcy. 

• Alcoa, Tennessee: Alcoa, aluminum producer, invested $275 million and added 200 jobs 

to expand its rolling mill. 

• Davenport, Iowa: Alcoa, invested $300 million in facility where the aluminum is further 

customized to facilitate bonding between aluminum components. 

• Dearborn, Michigan and Kansas City: Ford's Truck Plant and Assembly plant, invested 

$1.1 billion and added 900 workers before any aluminum body trucks could roll off the 

line. Kansas City Assembly, represented by United Autoworkers (UA W) Local 249, 

currently employs 6,450 hourly employees, the highest ever since the plant opened in 

1951. 

• Cleveland, Ohio: ArcelorMittal, steel mill, employs I ,900 people today after being 

mothballed in 2009. 

There are also numerous other signs of economic health in the auto industry. The granting of 

patents by the United States Patent and Trademark Office (PTO) is often cited as a measure of 

inventive economic activity. The Clean Energy Patent Growth Index (CEPGI), published by the 

Cleantech Group at Heslin Rothenberg Farley & Mesiti P.C. provides an indication of the trend 

of innovative activity in the Clean Energy sector from 2002 to 2015. The CEPGI tracks the 

granting of U.S. patents for the following sub-components: Solar, Wind, Hybrid/Electric 

Vehicles, Fuel Cells, Hydroelectric, Tidal/Wave, Geothermal, Biomass/Biofuels and other clean 

renewable energy. In 2015, Hybrid/Electric Vehicle (HEY) technologies grew more than all 

others with a 30 percent increase in patents over 2014. HEY technologies were granted nearly 

700 patents and fuel cell technologies were awarded more than 800 patents. The majority of 

these patents were granted to large automakers, including Toyota, GM, Honda and Ford.236 

Finally, there is broad support for rigorous greenhouse gas standards by the labor community. 

Here are some quotes in support of the existing MY 2022-2025 standards: 

• "In fact, that is the reason the UA W was central to the original CAFE agreement, which was 

carefully crafted to reduce emissions, increase fuel efficiency, give manufacturers flexibility 

to meet stringency standards, and create jobs in vehicle production and advanced technology. 

The UA W is proud of the role we played in reaching a consensus among a wide variety of 

2JS Jd, 

236 Clean Energy Patent Growth Index (CEPGI)- 2015 Year in Review, CLEANTECH GROUP AT HRFM (Oct. 31, 

2016), http://www.cepgi.com/2016/10/cepgi 2015 year in review.html. 

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stakeholders, including the Obama Administration, state and federal regulators, the 

automobile industry, environmental advocates, elected officials and others to reduce 

greenhouse gases and raise the average fuel economy of vehicles .... Fuel efficiency is our 

auto industry's future- plain and simple. From electric vehicles to full-sized pickups, fuel 

efficiency is improving across the industry. Countries around the globe continue to promote 

greater efficiency and lower emissions. If we ignore these realities, we could see the U.S. 

auto industry fall behind, hurting the American economy and American workers by ceding 

the auto markets of the future. Smart, balanced policies will make sure the U.S. auto industry 

does not fall behind, while also ensuring that these vehicles ofthe future are produced here, 

creating good paying union wage jobs."- Gary Jones, 2018 President of United Auto 

Workers 237 

• "[W]e urge the incoming Trump Administration and the !15th Congress to maintain our 

nation's commitment to improving fuel efficiency and reducing emissions. The basic 

structure and design of the One National Program was carefully constructed by a wide array 

of stakeholders and should be kept intact and not dramatically altered. We cannot afford to 

go back to the drawing board. Our competitors around the globe are working to strengthen 

environmental standards and it would be counterproductive to enact policies that provide 

disincentives for investing in advanced technologies and improving efficiency. History has 

taught us that a diverse fleet is essential for strong export sales and keeping jobs in the 

United States. Efficiency and emission standards can and must continue to be a win-win for 

the environment, working families, domestic manufacturing and the overall economy. The 

need to address climate change is real and urgent. We must act to protect our future and the 

future of our children and grandchildren. There is no scientific debate on the connection 

between fossil fuel consumption, rising carbon dioxide levels in the earth's atmosphere, and 

climate change. Climate change is real and we ignore it at our own peril. The need for a 

comprehensive strategy to address climate change could not be clearer and we all have 

responsibility to act."- Dennis Williams, 2016 President. United Auto Workers238 

• At a September 2017 public hearing on EPA's reconsideration of the Mid-Term Evaluation, 

United Steel Workers leaders urged EPA to retain strong fuel economy standards for model 

year 2022-2025 light-duty cars, trucks, and SUVs to protect the jobs of thousands of Ohio 

workers building components for today's rapidly innovating auto industry: 

237 Gary Jones, Labor Voices: Sensible fuel policies can create jobs, THE DETROIT NEWS (Sept. 25, 2018), 

https:!/www.detroitnews.com/story/opinion/columnists/labor-voices/2018/09/25/labor-voices-sensible-fuel-policiescan·create·iobs/l414150002. 

238 Comments of United Autoworkers on the Appropriateness ofthe Model Year 2022·2025 Light-Duty Vehicle 

Greenhouse Gas Emission Standards under the Midterm Evaluation, (Dec. 30, 2016), ID: EPA·HQ·OAR-2015· 

0827-6155. 

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o "As president of Local 2, I represent workers building cutting-edge technologies that 

are helping to make our light-duty cars, trucks, and SUVs cleaner than ever. We are 

part of a much larger group of workers that have benefitted from these clean car 

standards." Jack Hefner. President of USW Local 2 represents members in Akron at 

Maxi on Wheels, Goodyear, and other automotive industry suppliers.239 

o "Today's fuel economy standards are proofthat sound regulations can go hand in 

hand with making manufacturing thrive. Ohio and auto sector are proving you can 

build jobs while cutting pollution and enhancing energy security." Dan Boone, 

President of USW Local 979 represents members at the ArcelorMittal plant in 

Cleveland, one of most innovative and productive steel mills in the world that makes 

lighter, stronger steel primarily for cleaner vehicles.240 

• "For years the nation has reaped the benefits of these world-leading standards ..... 

Auto makers and suppliers have made billions of dollars in investments and created hundreds 

of thousands of jobs nationwide ensuring that any vehicle a consumer chooses to buywhether a car, truck, or SUV-gets more efficient every year. Strong standards keep that 

investment flowing and those jobs secure."- Kim Glas, Executive Director, BlueGreen 

Alliance241 

• In a recent blog post co-authored by United Steel Workers President, Leo Gerard, and 

Natural Resources Defense Council President, Rhea Suh, both expressed strong support for 

the current federal standards. 

o "Getting more miles per gallon helps reduce our exposure to global oil price shocks 

we can neither control nor predict. It also reduces the dangerous carbon pollution 

that's driving the central environmental challenge of our time- global climate 

change .... The clean car and fuel economy standards are helping us do that, while at 

the same time helping us bring back America's manufacturing leadership and jobs. 

We owe it to our workers, and we owe it to our children, to stay the course."- Leo 

239 BlueGreen Alliance, Congressman Ryan Joined USW Leaders in Akron to Discuss Their Upcoming Testimony 

in Washington DC on Keeping Fuel Economy Standards and Ohio Manufacturing Strong (Sept. 5, 2017), 

https://www.bluegreenalliance.org/the-latestlcongressman-ryan-joined-usw-leaders-in-akron-to-discuss-theirupcoming-testimony-in-washington-dc-on-keeping-fuel-economy-standards-and-ohio-manufacturing-strong/ 

240 !d. 

241 BlueGreen Alliance, Flawed Proposal to Roll Back Fuel Economy and Emissions Standards will Cost Thousands 

of Jobs (Aug. 2, 20 18), https://www .bluegreenalliance.org/the-latestlflawed-proposal-to-roll-back-fuel-economyand-emissions-standards-will-cost-thousands-of-jobs/. 

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Gerard, President, United Steelworkers, and Rhea Suh, President, Natural Resources 

Defense Council242 

C. Clean car standards will continue to benefit and protect automakers, parts 

suppliers and workers 

In addition to the current robust economic health of the auto industry, there is also strong 

evidence that automakers and their parts suppliers will continue to make profits under the future 

Clean Car standards and will be better safeguarded against fuel price shocks. And market 

stability translates into employment stability for American autoworkers. 

In a 2016 analysis, Ceres forecast automaker pretax profits under 5 different fuel price scenarios 

under the current MY 2022-2025 standards. They concluded that the top 3 U.S. manufacturers 

(Ford, GM and Chrysler) will be profitable under the current standards in all fuel price scenarios 

in the study, including the "very low" price scenario. They also found that U.S. automakers will 

be able to fully recover their compliance costs at any fuel price above the Energy Information 

Administration's long term forecasted "low price" .

243 

Suppliers too stand to gain from the Clean Car standards. Suppliers make up a significantly 

larger portion ofthe U.S. economy and of U.S. employment than do the automakers. In April 

2016, automakers employed 214,700 people in the U.S., while makers of auto parts employed 

564,100- or 2.6 times as many people. Stronger standards lead to increased supplier revenue 

because as much as 80 percent of automaker compliance investments are paid to suppliers of 

fuel-saving technologies. And the regulatory certainty of maintaining the current standards is 

especially valuable to the suppliers making the majority of fuel-saving technology investments in 

research, development, and production capacity.244 

In addition to supporting industry profits, studies have shown that fuel efficiency standards 

insulate the auto market from fuel price shocks- and that market stability translates into 

employment stability. In a marketplace without standards, not all manufacturers produce fuelefficient models. For example, the U.S. automakers relied heavily on less efficient vehicle lines 

before the Clean Car standards began in 2012. When fuel prices spike in the absence of fuel 

economy standards, more fuel-efficient vehicles are in greater demand, shifting demand across 

manufacturers and disrupting sales and employment. Peer-reviewed research suggests that fuel 

242 Rhea Suh & Leo Gerard, Don't Let Donald Trump Roll Back Auto Fuel Economy Standards, USA TODAY (Aug. 

2, 2018, 10:24 PM), https://www.usatoday.com/story/opinion/20 18/08/02/stop-trump-rollback-obama-fuelefficiency-standards-column/833287002/. 

243 Baum, Alan & Dan Luria, ANALYST BRIEF: Economic Implications of the Current National Program v. a 

Weakened National Program in 2022-2025 for Detroit Three Automakers and Tier One Suppliers, CERES (Jun. 27, 

20 16), https:/lwww .ceres.org/resources/reports/economic-i mpl ications-curren !-national-program-v·weakenednational-program-2022. 

244 ld 

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economy and GHG standards have led U.S. automakers to offer more diverse sets of products 

that are competitive under a wider range of fuel prices, making them better positioned to manage 

significant fuel price swings.245 For autoworkers and parts manufacturing workers, strong 

standards safeguard the industry against negative impacts associated with unanticipated changes 

in the price of fuel, which could otherwise lead to layoffs and lost wages. 

To evaluate whether the current fuel economy and GHG standards are a cost effective hedge (i.e. 

a correctly priced insurance policy) against future fuel price spikes, Ceres estimated the net 

losses of weakened standards in the event of a price spike. The analysis concluded that profits by 

the three largest U.S. automakers (Ford, GM and Chrysler) from U.S. new vehicle sales would 

plummet more than $1 billion per year in response to fuel price shocks without the Clean Car 

standards.246 And because as much as 80 percent of auto maker compliance costs are paid to 

suppliers of fuel-saving technologies, suppliers could lose up to $1.42 billion in the case of a fuel 

price shock. 247 This could put many American jobs at risk. Alternatively, Ceres also concluded 

that the U.S. auto makers stand to make significant profits under the Clean Cars program, even 

with low fuel prices, as discussed above.248 

As the Trump administration has proposed rolling back the Clean Car standards, automakers 

have expressed concern: 

• Two major automaker trade associations, the Alliance of Automobile Manufacturers and the 

Association of Global Automakers, wrote in letters to California Governor Jerry Brown and 

President Trump of their commitment to continued increases in fuel efficiency. 

o "As our CEOs wrote to you in February of2017, auto manufacturers are committed 

to continued gains in fuel efficiency and carbon reduction that appropriately balance 

environmental progress, safety, affordability, and jobs. That commitment has not 

wavered."- Alliance of Automobile Manufacturers & Association of Global 

Automakers249 

• At EPA and NHTSA hearings this fall regarding the proposal to roll back the Clean Car 

standards, Auto Alliance stated: 

o "First, let me say climate change is real and automakers are taking action to reduce 

carbon emissions from new vehicles. Automakers are also committed to continued 

improvements in fuel economy. Today, consumers have more choice in energyefficient vehicles than ever before. About 500 models are on sale that achieve 30 

MPG or more on the highway, and 80 of those models achieve 40 MPG or more. 

2" Meghan R. Busse et. al., Who is Exposed to Gas Prices? How Gasoline Prices Affect Automobile Manufacturers 

and Dealerships, 14 QUANTITATIVE MARKETING & ECONOMICS 41-96 (Mar. 20 16), 

https:l/dspace.mit.edulhandle/1721.1/1 03416. 246 Baum et aL 241 !d. 

14& !d. 

249 Letter from Mitch Bainwol, President and CEO of the Alliance of Automobile Manufacturers, and John Bozzella, 

President and CEO of Global Automakers to Governor Jerry Brown, California (Aug. 2, 20 18). 

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Consumers can choose from 45 hybrid-electric models and another 50 plug-in electric 

and fuel-cell models. And more electrified vehicles are on their way to market."--

Chris Nevers, Vice President, Energy & Environment, Auto Alliance250 

• "The last five years, we've sold more cars than have ever been sold in the history of the auto 

industry. It's not just because, but it coincides with these new standards. They're better cars, 

they're more fuel efficient. It clearly has not dampened sales .... We need those 

manufacturers to keep doing research and building better vehicles like they have been doing. 

And if they stop because the standards are reversed, it would be bad for us as a business, and 

for this country."- Adam Lee, Owner, Lee Auto Malls Dealerships251 

• "We support increasing clean car standards through 2025 and are not asking for a rollback. 

We want one set of standards nationally, along with additional flexibility to help us provide 

more affordable options for our customers. We believe that working together with EPA, 

NHTSA, and California, we can deliver on this standard."- Bill Ford, Executive Chairman, 

Ford, and Jim Hackett, CEO, Ford252 

• "Honda is committed to realizing a future of low-carbon mobility that will reduce greenhouse 

gas emissions that contribute to global climate change. This includes Honda's intention for 

two-thirds of our global automobile sales to be electrified vehicles by 2030. In addition, 

Honda supports continued improvements in the fuel economy of the U.S. vehicle fleet as 

prescribed by federal fuel economy and greenhouse gas (GHG) emissions standards through 

2025." --Robert J. Bienenfeld, Assistant VP, Regulatory Policy, Honda253 

• "Consistent with Honda's support for the goals ofthe 2017-2025 (ONP2) program, we 

believe it is appropriate to maintain top line targets of approximately 5% per year annual 

improvement (with advanced technology vehicle incentives noted below)." American Honda 

Motor Co., Comments on The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for 

Model Years 2021-2026 Passenger Cars and Light Trucks (Oct. 25, 2018)). 

• "A single, national standard would allow us to focus our resources on innovations that 

benefit our customers and society as we pursue our vision of a world with zero crashes, zero 

emissions and zero congestion, instead of diffusing resources to meet different rules within 

the United States. Regardless ofthe outcome of these discussions, I assure you we have an 

absolute and unwavering commitment to improve fuel economy, reduce emissions and invest 

in technologies to drive an all-electric future. These are the right actions for our customers, 

our company and our environment." GM CEO Mary Barra, Keeping Our Commitment to an 

All-Electric Future (May 8, 2018), https://www.linkedin.com/pulse/keeping-ourcommitment-all-electric-future-mary-barra/. 

250 Alliance remarks for NHTSA/EPA hearings on fuel economy standards, Auto Alliance (Sept. 24, 2018), 

https://autoalliance.org/20 18/09/24/alliance-remarks-nhtsa-epa-hearings-fuel-economy-standards/. 251 Mary Kuhlman, Maine Auto Leader: Fuel-Economy Rules Good for Business, PUBLIC NEWS SERVICE (Aug. 3, 

20 18 ), https ://www .public newsservice .org/20 18-08-03/climate-change-air-quality/main e-auto-leader-fuel-economyrules-good-for-business/a63 546-2. 252 Bill Ford & Jim Hackett, A Measure of Progress, MEDIUM (Mar. 27, 2018), 

https://medium.com/cityoftomorrow/a-measure-of-progress-bc34ad2b0ed. 

253 Our Perspective- Vehicle Greenhouse Gas and Fuel Economy Standards, Honda (Apr. 20, 20 18), 

https://hondainamerica.com/views/our-perspective-vehicle-greenhouse-gas-and-fuel-economy•standards/. 

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Several major automakers have recently made increased commitments to develop electric vehicle 

technology and invest in electrification. In late 2017, GM announced plans to release 20 new allelectric models by 2023 as part of a commitment to increase EV usage and acceptance.254 In 

January 2018, Ford committed to invest $11 billion dollars in electrification and launch 40 

electrified models by 2022.255 The company also just announced plans to start production of the 

first-ever hybrid-electric F-150 truck in 2020.256 Automakers' commitments to continue 

reducing emissions and their support for increasing standards underscore the needless radicalism 

ofthis proposal. 

D. Clean car standards help ensure that automakers retain their global 

competitiveness 

The Clean Car standards are essential to ensuring that the resurgence for U.S. automakers 

endures, and that American autoworkers have a strong position in the years ahead. The strong 

fuel economy and GHG standards have led U.S. automakers to offer a more diverse and more 

efficient set of vehicles. As a result, their fleets will remain attractive to consumers in the years 

ahead, even if fuel prices spike again.257 

Strong fuel economy and GHG standards are essential if the American auto sector is going to 

keep pace with global trends. Many other nations have adopted fuel economy and GHG 

emissions standards through 2025 that will drive improved passenger vehicle efficiency in line 

with the U.S., while some nations are planning to go farther faster. This includes a range of 

developed and developing countries, including: Canada,258 the European Union259, China,260 

254 Press Release, General Motors, GM Outlines All-Electric Path to Zero Emissions (Oct. 2, 20 17), 

https :I /media.gm. comlmedialus/enlgmlnews.detail .htm 1/content/Pageslnewslus/en/20 1 7/oct/1 002-electric .html 

(quoting Mark Reuss, General Motors executive vice president of Product Development, Purchasing and Supply 

Chain, "General Motors believes in an all-electric future .... Although that future won't happen overnight, GM is 

committed to driving increased usage and acceptance of electric vehicles through no-compromise solutions that 

meet our customers' needs."). 255 Stephen Edelstein, Ford Will Launch 40 Electrified Vehicles by 2022, THE DRJVE (Jan. 15, 2018), 

http://www .thedrive.com/tech/1 7 6 81 iford-wil 1-Jaun ch-40-electri lied-vehicles-by-2022. 156 !an Thibodeau, Ford Rouge complex's next chapter: a hybrid F-150, DETROIT NEWS (Sept. 27, 2018, 10:03 PM), 

https ://www .detro itnews.co m/story/b usiness/autos/tord/20 18/09/2 7/fo rd-rouge-complex-hybrid-f-150/144 3 5 79002/; 

see also Benjamin Raven, Ford says it will make hybrid F-150 at historic, 100-year-old Rouge complex, MICHIGAN 

AUTOMOTIVE NEWS (Sept. 27, 2018), 

https://www.mlive.com/auto/index.ssf/2018/09/ford says it will make hybrid.html. 2

" Meghan R. Busse et. al., Who is Exposed to Gas Prices? How Gasoline Prices Affect Automobile Manufacturers 

and Dealerships, I 4 QUANTITATIVE MARKETING & ECONOMICS 41-96 (Mar. 2016), 

https://dspace.mit.edu/handle/1 721. Ill 034 I 6. 258 Fact Sheet: Canada, Light Duty Vehicle Efficiency Standards (Jan. 2015), 

https://www. theicct.org/ sites/ default/files/info-too lsipvstds/Canada PV stds-facts jan20 15 .pdf. 259 EU Light Duty: GHG Emissions, TransportPolicy.net, https://www.transportpolicy.net/standardleu-1ight-dutvghg-emissions/ (last accessed Oct. 25, 2018). 26° China: Light Duty Fuel Consumption, TransportPolicy.net, https://www.transportpolicy.net/standard/china-Jightduty-fuel-consumption/ (last accessed Oct. 25, 2018). 

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lndia261 and South Korea262 (see Figure 5 below). And China- which is seeing the largest market 

growth worldwide- will require that foreign carmakers start manufacturing electric vehicles in 

2019. U.S. automakers who intend to export cars to China will have to earn points from electric 

vehicles and hybrids equivalent to l 0% of vehicles they import into the country, rising to 12% in 

2020.263 

Figure 3 

Passanger car C02 emissions and fuel consumption, normalized to NEOC 

20 

...,.... hl~t¢tleal pcl!tform<lnc~ 

.,..._•3nl1Ctlldtiii''OIIK5 

2020 

'. 

,, 

·---·"" 0 2025 

Source: ICCT, See http://www.theicct.org/sctp-ldv-e 

Looking past 2025, many nations have made commitments to fully phase out the combustion 

engine over the next couple of decades. Britain and France announced that they would end the 

sale of gas and diesel-powered vehicles by 2040264 Scotland pledged to phase out new petrol 

and diesel cars and vans by 2032, eight years ahead of the UK target.265 India is making a vow 

to start selling only electric cars by 2030. The government's National Electric Mobility Mission 

261 India: Light-Duty: Fuel Consumption, TransportPolicy.net, https://www.transportpolicy.net/standard/india-lightduty-fuel-consumption/ (last accessed Oct. 25, 2018). 262 South Korea: Light Duty: Fuel Consumption and GHG, TransportPolicy.net, 

https://www.transportpolicy.net/standard/south-korea-light-duty-fuel-economy-and-ghg/ (last accessed Oct. 25, 

2018). 

263 China Sets New deadline for Electric-Car Production, Dow JONES NEWSWJRES (Sept. 28, 20 17), 

http://www. fox business .com/markets/20 I 7/0 9/28/china-sets-new-deadline-for-electric-car-production .htm!. 264 Stephen Castle, Britain to Ban New Diesel and Gas Cars by 2040, N.Y. TIMES (July 26, 2017), 

https://www .nytimes.com/20 l 7/0 7 /26/world/ europe/uk -diesel-petrol-emis sions.htm!. 265 Shehab Khan, Scotland to 'Phase Out' New Petrol and Diesel Cars by 2032, INDEPENDENT. UK, (Sept. 5, 20 17), 

http://www.independent.co.uk/news/ukipolitics/scotland-petrol-diesel-cars-phase-out-ban-2032-nicola-sturgeon-snpenvironment-air-pollution-a793078I.htm!. 

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Plan wants annual sales of electric and hybrid cars to hit between 6 and 7 million by 2020.266 

Norway set a target that all new passenger cars and vans sold in 2025 should be zero-emission 

vehicles. The country is considered a leader in this area. About 40% of all cars sold in the 

country in 2016 were electric or hybrid vehicles.267 Austria, China, Denmark, Germany, Ireland, 

Japan, the Netherlands, Portugal, Korea and Spain have set official targets for electric car 

sales.268 A number of governments have also set objectives for EV deployment.269 To facilitate a 

deployment of 5 million electric vehicles by 2020, including 4.6 million passenger cars, China 

plans to implement a new energy vehicle (NEV) mandate that requires 7 ·I 0% of new cars sold in 

2020 to be NEV vehicles, increasing to 40-50% by 2030.270 The European Union has also set 

targets of 15% electric vehicle sales by 2025, and 30% by 2030.271 Any backtracking on the 

current 2025 standards would therefore risk leaving U.S. manufacturers behind. 

V. NHTSA Fails to Explain its Incongruous Treatment of Light Duty Trucks 

Compared to Heavy Duty Pickups and Vans 

NHTSA touts its prior use of the Volpe and Autonomie models in establishing fuel efficiency 

and C02 standards for heavy duty pickups and vans. 83 FR 43002. A more apt comparison is 

not between the use of those models for each set of standards, but for the appropriateness of 

year-over-year improvements for the vehicle classes covered by those standards and the 

standards for light duty trucks subject to this proposed rollback. EPA and NHTSA'sjoint heavy 

duty pickup and van standards require year-over-year increase in stringency in miles per gallon 

of2.5 percent from model years 2021 through 2027. 81 FRat 73732 (Oct. 25, 2016). Heavy 

duty pickups and vans use the same fuel efficiency and C02 emission reduction technologies as 

their light duty counterparts272, are made by the same manufacturers and sometimes use identical 

engine platforms.273 Compared to the current standards for light duty trucks subject to this 

proposed rollback, the standards for heavy duty pickups and vans are arguably more challenging 

to meet, due to fewer averaging opportunities, longer redesign cycles, and in some instances, 

lower technology efficiency. Heavy Duty RTC at 1342. 

266 Jackie Wattles, India to Sell Only Electric Cars by 2030, CNN.com (June 3, 2017), 

http://money.cnn.com/20 17/06/03/technology/futureiindia-electric-cars/index.html?iid~EL. 

267 Alanna Petroff, These Countries Want to Ditch Gas and Diesel Cars (July 26, 2017), 

http://money .cnn.co m/20 1 7 107/26/autoslcountries-that -are-banning-gas-cars-for-e lectriclind ex.html. 268 !d.; lEA, Global EV Outlook (2017) see https:/lwww.iea.org/publications/freepublications/publication/global-evoutlook-2017.html. 

"'International Energy Agency, Global EV Outlook 2018, at 34, Table 2.2 Announced country targets and 

objectives for EV deployment, 2020-30, https://webstore.iea.org/global-ev-outlook-2018. 

270 !d. 

271 !d. 

m See, e.g. Heavy Duty RIA (EPA-420-R-16-900, August, 2016) at 2-56 through 2-64 (engine technologies in 

common). The exception is certain technologies incompatible with heavy duty pickup towing functionality. Heavy 

Duty Response to Comment Document (EPA-420-R-16-901, August 2016) at p. 1331. 

m 81 FRat 73733/2. 

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Notwithstanding these constraints, the agencies adopted the year-over-year percentage increase 

standard274, no entity suggested that a freeze of standards was a reasonable alternative, and no 

entity challenged the promulgated standards. The agencies do not acknowledge, let alone 

provide a rational explanation for, this anomalous treatment of similarly situated vehicles. 

VI. The Agencies' Rejection of Multiple Available Technologies is Inconsistent With the 

Governing Statutes, Under Which the Relevant Question Is Whether Given 

Technologies are Feasible and Can Be Deployed Within the Relevant Lead Time, 

Not Whether They are Currently Extant or Currently on the Market 

We have shown elsewhere that the agencies' grounds for rejecting various of the advanced 

technologies, in particular HCR2, HCCI, and Miller cycle engines, are without factual basis. But 

the grounds assigned are also without legal basis. The agencies, for example, reject HCR2 as a 

"speculative technology" without "observable physical demonstration" and because it is a 

"theoretical application of additional technologies in combination ... " and so is "entirely 

speculative, as no production engine as outlined in the EPA SAE paper has even been 

commercially or even produced as a prototype in a lab setting".275 Similarly, HCCI is not 

considered because "manufacturers were not manufacturing HCCI engines at the time of the 

2012 rulemaking, and accordingly there was a lack of conclusive and independently verifiable 

effectiveness, cost, and mass market implementation data available."276 And the wellestablished, mass-produced Miller cycle engine technology is excluded from consideration 

because of the purported lack of engine maps.277 

The fundamental legal error in all of these formulations is that agencies mandated to engage in 

technology-forcing determinations, as are EPA278 and NHTSA279 here, are required to look 

beyond technology presently in commercial application, are not limited to consideration of 

current technology, and are not hamstrung by absence of this or that type of performance 

274 See 81 FRat 73801 (rejecting less stringent alternative still requiring emission reductions and increased fuel 

efficiency). 

275 83 Fed. Reg. 43038; 276 PRIA p. 240. 277 83 Fed. Reg. 43051 n. 174. 278 Standards under section 202 (a)(!) are "expected to press for the development and applicability of improved 

technology rather than be limited by what exists. Standards should be a function of the degree of control required, 

not the degree of technology available today". S. Rep. No. 91-1146 at 23. Congress "expected [EPA] to press for 

the development and application of improved technology rather than be limited by that which exists today". NRDC 

v. EPA, 655 F. 2d 318, 328 (D.C. Cir. 1981) (construing section 202 (a)(l ), see id. at 324-27 and 337). See 77 Fed. 

Reg. 62,624 at 62,777 (Oct. 15, 20 12) ("Under section 202(a), EPA is called upon to set standards that provide 

adequate lead time for the development and application of technology to meet the standards.") 279 "Congress created mandatory vehicle fuel economy standards, intended to be technology forcing, with the 

recognition that 'market forces ... may not be strong enough to bring about the necessary fuel conservation which a 

national energy policy demands." Center for Auto Safety v. Peck, 793 F.2d 1322, 1339 (D.C. Cir. 1986), citing S. 

Rep. No. 179, 94th Cong., lst Sess. 2 (1975), U.S.C.C.A.N. 1975 at 9; see also 77 Fed. Reg. at 62668 (NHTSA is 

"not limited in determining the level of new standards to technology that is already being commercially applied at 

the time of the rulemaking ... "). 

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information. The plain text of the relevant statutes makes this clear: The Clean Air Act directs 

EPA to identify "such period as the Administrator finds necessary to permit the development and 

application of the requisite technology," 42 U.S.C. 752J(a)(2). EPCA's fuel economy mandate 

is "intended to be technology forcing, with the recognition that 'market forces ... may not be 

strong enough to bring about the necessary fuel conservation which a national energy policy 

demands."' Center for Auto Safety, 793 F.2d at 1339, quoting S. Rep. No. 179, 94th Cong., 1st 

Sess. 2 (1975). NHTSA itself recognized that it is "not limited ... to technology that is already 

being commercially applied at the time of the rulemaking" but rather "can, instead, set 

technology-forcing standards." 77 Fed Reg at 63,0 15; see also 75 Fed. Reg. 25,324, 25,605 (May 

7, 2010). 

Not only does a technology-forcing mandate "not constrict the agency to technology that is now 

available", it "permit[s] the agency to set standards based on projections of technology that is not 

currently available."280 To prevent occurrence of "stagnating technology" and to further the 

Congressional objective to "promot[e] advances in emission control technology", the agency is 

"to engage in reasonable predictions and projections in order to force technology". 281 The D.C. 

Circuit has made clear that lack of existence of test data is not a bar to adopting technologyforcing standards based on technology and levels of performance not currently in commercial or 

theoretical application.282 Courts have also held that EPA can infer that a technology is 

demonstrated as a whole based on operation of component parts which have not, as yet, been 

fully integrated.283 A fortiori, the HCR2 package, where most of the components have been 

operated in combination already, cannot lawfully be rejected as "speculative" as the agencies 

dismissively do. 

EPA's task is thus to identify the major steps necessary for "development and application of the 

requisite technology," and then the respective standard "shall take effect."284 These individual 

decisions are highly consequential: as noted above, without changing anything else about the 

agencies' analysis, allowing HCR2 would reduce augural compliance costs by $619-or about 

280 NRDC v. Thomas, 805 F. 2d 410,429 (D.C. Cir. 1986). 181 805 F.2d at 430. 282 See Portland Cement Ass 'n v. Ruckelshaus, 486 F. 2d 375, 401-02 (D.C. Cir. 1973)(interpreting CAA section 

Ill (a) (I)'s requirement of standards reflecting performance of"best system of emission reduction ... adequately 

demonstrated,, as being satisfied "not on the basis of tests on existing sources or old test data in the literature, but on 

extrapolations from this data, on a reasoned basis responsive to comments, and on testimony from experts and 

vendors". The same case reiterates that a technology need not be in commercial application to be considered, since 

this technology-forcing provision "looks toward what may fairly be projected for tl1e regulated future, rather than the 

state of the art at present." /d. at 391 n. 59. 283 See Lignite Energy Council, 198 F. 3d at 933-34 (none of the components of the selected best system had been 

operated at industrial boilers, much less "applied ... in combination" (83 Fed. Reg. 43038); Sur Contra La 

Contaminacion v. EPA, 202 F. 3d 443,447 (lst Cir. 2000) (upholding "best available technology" determination 

under CAA section 169(3) based on a "novel combination of three proven control technologies" that "ha[d] not been 

used before"); Native Viii. of Point Hope v. Salazar, 680 F. 3d 1123, 1133 (9th Cir. 2012) upholding standard where 

"most major components for [the] system [were] available and ha[d] been [individually] field tested"), 284 NRDC v. EPA, 655 F. 2d 318, 333 (D.C. Cir. 1981 )(interpreting CAA section 202 (a)( I) and (2)); NRDC v. 

Thomas, 805 F. 2d at 428-30 (same). 

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30% of the total difference between the augural and rollback scenarios.285 The proposal's 

rejection of these technologies nowhere justifies how the (unfounded and cursorily justified) 

concerns accord with the agency's limited discretion under Section 202(a)(2) and duty to "press 

for the development and application of improved technology rather than be limited by that which 

exists today."286 

285 PRIA Table 13-4. See also the comments in this docket of the International Council on Clean Transportation. 

"' NRDC v. EPA, 655 F. 2d at 328; see also id. at 331 ("If the agency is to predict more than the results of merely 

assembling pre-existing components, it must have some leeway to deduce results that are not represented by present 

data."). Ironically, the agencies reject even a technology, the HCR2 package, which does consist of assembling preexisting components. 

104 
838 

Senator CARPER. Thank you. 

I have sat in this hearing room for 18 years. I have always 

looked for—and I think my colleagues for their part—always look 

for win-win situations. I always look for situations where we can 

have good things for our air, water, public health, and do so in a 

way that does not impinge or degrade economic opportunity, economic growth. 

I have raised in conversations with you, Mr. Wheeler, and here 

today, three instances where I believe we can do good things for 

our planet, for those of us who live here, and actually provide economic opportunity for American business. I have just talked 2 days 

ago with a cross-section of auto companies from all over the world. 

We talked about fuel efficiency standards, tailpipe emission standards. They are pleading for certainty. 

They said to me repeatedly, we don’t want to spend the next 4 

or 5 years in a court battle with California and 13 other States, including Delaware, on what these standards should be. We need certainty; we need predictability. We need near term relief. And in the 

out years, we can, with a lot of electric powered vehicles and hydrogen powered vehicles, we can prescribe for and meet much more 

rigorous standards for CAFE. 

I am troubled by something you said here. I think you said you 

have talked to the woman who runs CARB out in California, Mary 

Nichols, three times in I think 9 months about this. We are talking 

about the greatest source of carbon emissions on our planet is our 

mobile sources, our cars, trucks, and vans. California is critical to 

getting a deal, so are the other 13 States, including Delaware. And 

the idea that you spoke with her, whether it is her fault, your 

fault, three times in the course of a year, is deeply troubling. 

One of the thoughts that keeps coming back to me in this conversation today, this hearing today, is the thought, I don’t feel a 

sense of urgency. We do in Delaware. I live in the lowest lying 

State in the country. Our State is sinking; the oceans are rising. 

We are not too far away from a place called Ellicott City. They 

have had two 500 year floods in a year. In a year. I live in not a 

very big State, but there are wildfires, bigger than the size of my 

State, in Oregon, Montana, Washington, and California, just in the 

last year. We used to measure rainfall by the inch, now we measure it by the foot. And one of the things I just don’t sense of here 

is a sense or urgency to do something about it. We had 13 agencies 

that came together and said, this is a huge issue, and it is getting 

worse, not better. And they didn’t do this because of something 

that Obama law would compel them to do. I think that was legislation signed by George Herbert Walker Bush, many, many years 

ago. 

I am looking for some passion here. I just don’t feel it. And that 

is deeply troubling. I am also looking for win-wins. We talked about 

hydrofluorocarbons and the threat that they pose to our atmosphere. And it is American technology that has a follow on to HFCs, 

and there is a great interest in being able to adopt the Kigali Treaty that actually allows for the phase down of HFCs and the introduction of replacements, from American made companies with 

American made technologies. It is not some wild eyed, liberal, tree 

hugging idea. This is the U.S. Chamber of Commerce. This is the 

839 

American Chemical Council. It is all these American businesses. 

And EPA, rather than being a good partner and helping to expedite 

this and make it happen, if anything else, I think the agency is an 

impediment. 

And the other thing that I would say, I will never forget, my colleagues have heard me say this before, I beg their indulgence, I 

will never forget when Lamar Alexander and I, Senator Alexander 

and I were working on a four-P legislation to deal with—you may 

recall this—to deal with sulfur dioxide, nitrogen oxide, carbon, and 

mercury. The issue that we were kind of hung up on was mercury. 

And the idea, could we actually reduce mercury emissions by as 

much as 80 percent. Lamar Alexander said no, no, we can reduce 

it by 90 percent. 

We had a hearing right here, and a guy sat right at the end of 

the table. Everybody who was from a utility at this table, said, oh, 

we can’t even get to 80 percent, much less 90 percent. The guy who 

was representing the association that said, no, no, they can do better, they can do 90 percent; he said, they can do better than that. 

And you know what? They did. They reached 90 percent reduction. 

And if you look at the MATS rule, the reason why the utilities 

are essentially sanguine about this is, they make investments, it 

costs a third as much money to make the investments. It is actually working. And not only do we do, I think, a beneficial thing for 

children, infants, for those who haven’t even been born, we actually 

do a lot of goodness, not collateral damage, but collateral good 

things. And we do so in other areas, particulate matter and all 

kinds of stuff, to save lives. And to somehow say that that just 

doesn’t add up enough, and in terms of cost-benefit analysis for us 

just to say, all right, they got it right, they actually got something 

right, in the Obama administration. That’s on MATS, and all these 

other folks, all these other stakeholders, are for it, but maybe we 

should be as well. 

What we are afraid of is you are going to do something, your 

agency is going to do something that gives some of us, not EPA, 

but somebody else the ability to come in and have standing in court 

and undo MATS, undo the Mercury Air Toxics Standard. That is 

what we are afraid of. That is what we are afraid of. And those are 

three instances where I think we can have, I think a lot of us think 

we can have cleaner air, cleaner water, better public health, more 

jobs. 

And why we don’t take that ball and run it right down the field, 

I don’t know. I don’t know. That is what frustrates me. I am sure 

it frustrates others on this panel, and frankly, a lot of people in 

this audience and who might be watching. 

I don’t normally give long speeches, I normally ask short questions and look for short answers. But respond to that, if you would. 

I am looking for passion. I am looking for a sense of urgency. I am 

looking for a real commitment. And that might not be your nature, 

but we need it. I think this agency needs that kind of leadership. 

Mr. WHEELER. Senator, you and I have discussed the CAFE 

standard and a number of issues multiple times now. I want you 

to understand and believe that I really do want a 50 State solution. 

I really do. 

840 

When I met with Mary Nichols, that was one on one meetings 

with Mary Nichols, there were three over the last 6 months, that 

doesn’t mean we haven’t been working with California more than 

that. I know she has met with other people at the agency, we have 

had technical meetings between her technical staff and our technical staff. There have been a lot more meetings than just those 

three. 

Those are the three one on one meetings that I had with Mary 

Nichols in my office. We have also been on phone calls, and she has 

met with Department of Transportation. Again, this is a joint rulemaking with DOT. 

But at the end of the day, I want a 50 State solution. I want a 

regulation that provides certainty to the consumers, the automobile 

manufacturers, and to all the interested parties. And that is what 

I want at the end of the day, and that is what I hope we can get. 

Senator CARPER. Yes, methylene chloride. Methylene chloride. I 

want you to impart a sense of urgency on getting a rule done on 

that. It is actually something that Scott Pruitt did that we thought 

was right. And here it is 2 years later, and we still haven’t followed 

through. Let’s get it done. 

Mr. WHEELER. As I shared with you Tuesday, our hope had been 

to publish that last week. It is at OMB; it is ready to go as soon 

as the Federal Register opens. That is something that I have taken 

seriously, and it is something that we have spent a lot of time— 

I have spent a lot of personal time on that issue. And I hope we 

can get that out as quickly as possible. 

Senator CARPER. Methylene chloride, for the record, is a paint 

stripper. It kills people. It must be a really good paint stripper, but 

unfortunately, it kills people. 

Thank you. 

Senator BARRASSO. Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

First of all, I want our witness to recognize that I am not at all 

offended that you found your leadership in the Eagle Scouts to be 

more rewarding than your leadership under me for 14 years. 

[Laughter.] 

Mr. WHEELER. Thank you, Senator. 

Senator INHOFE. Also, I appreciate the fact that you brought up 

the—and someone else did, Senator Braun, I believe it was— 

brought up the fact that, how much more that our land owners, 

property owners are good stewards of their land. This is kind of interesting, because under the previous Administration, Dan Ashe 

was the head of the Fish and Wildlife. He came, at my invitation, 

out to Oklahoma. This is the first time that I think in his career 

he realized this was true. He was actually in the western part of 

the State, and in the central part of the State. This is a recognition 

that I really appreciate. 

Since the previous questioner brought up the CAFE standards, 

let me just share with you something you already know, but it 

needs to be in the record. That is that in 1975 the Congress created 

a law to help with the fuel shortage situation by establishing the 

corporate average fuels, or CAFE, standard. Now, we no longer 

have a fuel shortage, and yet that didn’t stop the Obama administration and California from ensuring that standards kept increasVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00846 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
841 

ing beyond what technology can do to force their electric car fantasies and the rest of this. 

Now, the consumers want trucks and SUVs; they make up about 

two-thirds of the market. And electric vehicles don’t even make up 

1 percent of the Nation’s auto sales. But auto manufacturers are 

producing more and more of them. Why do you suppose that is? 

Mr. WHEELER. I believe they are producing what the consumers 

want to buy. 

Senator INHOFE. Yes, but what does this do to—I guess the question, my follow up question would be, is it your understanding that 

many car manufactures are not technically complying with the current Obama standards? 

Mr. WHEELER. Yes. 

Senator INHOFE. Aren’t they paying penalties and cashing in 

credits to comply? 

Mr. WHEELER. Yes. 

Senator INHOFE. Now, what does that do to the ultimate price to 

the consumer? 

Mr. WHEELER. It adds additional price to the consumer. There is 

a misconception out there that all the automobile manufactures are 

currently complying with the CAFE standards. They are not; some 

of them are not. There is a penalty basis in the regulation, and 

they are paying penalties for not complying. 

It is projected over the life, if the Obama regulations were to stay 

in place, that the amount of penalties will be increasing, I believe 

up to a billion dollars over the life span of the Obama regulations. 

That—those penalties—would be passed on to the consumer. 

Senator INHOFE. They will be passed on to the consumer. I mean, 

there’s nothing else they can do to accommodate that. 

So I think that is important. Is it really the role of Government 

to dictate what people are buying in America and enforcing that? 

That is something that I have watched, and you have seen it over 

the years. It is something that we have a serious problem with. 

Mr. Wheeler, the EPA has been taking a lot of criticism for supposed lack of enforcement actions under Trump. Would you like to 

talk a little bit about the enforcement standards that have been 

imposed under your administration so far? 

Mr. WHEELER. Absolutely. First of all, I think it is important to 

note that we did not have a political head of our enforcement office 

for all of 2017. Susan Bodine was not confirmed until the end of 

2017, which is actually the first quarter of 2018. So we have only 

had a political head for the three quarters of 2018, yet our enforcement numbers, important enforcement numbers, are up. 

As I mentioned a little while ago, our criminal prosecutorial—the 

number of criminal cases we opened was up in 2018, compared to 

2017. We initiated 140 lead enforcement actions in fiscal year 2018, 

compared to 127 in 2017. And we are using all of our tools, including compliance assistance. The environmental benefits, as I mentioned in my opening statement, we removed 809 million pounds of 

pollution and waste through enforcement actions in 2018, which is 

almost double what we removed in 2017. 

What our enforcement program needed, in the Trump administration, was a head of the office, and I am glad that the Senate 

confirmed Susan last year. We still have—the head of our emerVerDate Aug 31 2005 07:53 Apr 26, 2019 Jkt 000000 PO 00000 Frm 00847 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\35314.TXT SONYA
842 

gency response office has not been confirmed yet. I hope the Senate 

will move forward and confirm Peter Wright. I think it is important to have a head of the office that is responsible for responding 

to the California fires, the hurricanes, and all the other disasters 

that EPA is responsible for the response efforts. And we have not 

had a head of that office now for 2 years. 

Senator INHOFE. I think you make that point very well, and let 

me compliment you on your responses to the questions that have 

been given to you during the course of this hearing. 

Mr. WHEELER. Thank you. 

Senator INHOFE. Thank you, Mr. Wheeler. 

Senator BARRASSO. Thank you, Senator Inhofe. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. 

Mr. Wheeler, you and I had a chance yesterday to talk about the 

WRDA bill, a bipartisan bill to pass this Committee that provides 

new tools in dealing with water issues in this country. And we both 

talked about the fact that you are going to be restrained by funding, because some of the issues have not been funded at the level 

I think this Committee would like to see funded. I agree with you 

on that, and we are going to work to get you not only the legislative authority but also the resources. 

In one case there is funds, and that is new Lead Service Line Replacement grant program. Congress did appropriate $10 million for 

the program for fiscal year 2018. Will you commit to standing up 

the program and providing this Committee a status update on how 

we are dealing with the lead service line replacements? 

Mr. WHEELER. Absolutely. That is an important part of our lead 

strategy and our drinking water strategy, is to try to make sure 

that people have safe drinking water and we get the corrosive pipes 

taken care of, and the lead service lines replaced as quickly as possible as well. 

Senator CARDIN. I appreciate that, and you will keep us informed 

as to how that is going? 

Mr. WHEELER. Yes, Senator. And the legislation you are referring 

to is the WIA legislation passed as part of WRDA. That was passed 

after our appropriations for fiscal year 2019 was passed, a bill that 

Senator Van Hollen mentioned earlier today, the appropriations 

bill. 

So it is my understanding there is no funding in the fiscal year 

2019, except for the $10 million that you just mentioned for that 

one program, there is no additional funding for the other parts of 

the legislation that was passed. I will note that there is a lot of 

deadlines in the legislation that we are going to try to work on. 

Senator CARDIN. Let’s hope you have a fiscal year 2019 budget. 

We talked about that at the beginning of this hearing. 

I think I understand what you are saying in regard to MATS, 

and in regard to the mercury standards. There is a process that is 

going through in your agency, including a comment process. But 

you are very confident that the current enforcement that is currently being done that is restricted to mercury emissions, that 

there will be no weakening in regard to the mercury emissions into 

our environment? 

843 

Mr. WHEELER. Under our preferred option, which is, when we 

put out the proposal, we took comments on everything, and you 

often do that in order to make sure that your proposals are legal 

sound in case they are challenged later. But under our preferred 

option, I do not believe there would be a weakening in the mercury 

standards at all, as far as the equipment that has already been deployed and implemented across the board. 

I get accused of rolling back the Clean Power Plan. I don’t think 

you can roll back a regulation that never took effect. And on 

MATS, I don’t think you can roll back a regulation that has been 

fully implemented. And the MATS requirements for the pollution 

control equipment has been fully implemented. And I don’t believe, 

I honestly do not believe that that equipment will be turned off or 

removed under our proposal. 

Senator CARDIN. And then let me just respond more to my good 

friend Senator Inhofe’s comments on energy efficiency in our autos, 

with CAFE standards. There are a lot of reasons to be interested 

in that, in regard to energy efficiency issues, particularly in transportation. Part of that is security issues; part of that is economic 

issues. 

But under your jurisdiction, it is the environmental impact. 

There is a cost associated with the unnecessary use of fossil fuels 

as it relates to emissions into our environment. 

So there is a real reason why we like to see more efficiency in 

the way that we transport. Part of that is the individual vehicle, 

part of that is transit policies; part of it is the whole way of making 

people happier but also more efficient in the use. 

So I just really want to underscore the point of your very first 

comments, when you were saying the progress that you have made 

in protecting the environment. To me, this is an extremely important, urgent issue in transportation efficiency and protecting our 

environment. I hope that as the leader, if you are confirmed as the 

Administrator of EPA, that you will be focused on the environment 

and the impact transportation has on the environment, so that we 

can use technology that has been developed here in America to 

help our economy as well as our environment, and also by the way, 

quality of life, if we can get less emissions coming out of our transportation sector. 

Thank you, Mr. Chairman. 

Mr. WHEELER. Absolutely. It is not just the energy efficiency or 

the CO2 from the automobile industry. But we are also, as I mentioned in my opening statement, moving forward on removing NOx

from the heavy duty trucks. That is a program that is not required 

under statute. It is not required by court order. But we are moving 

forward with that, because it makes sense, because it will protect 

the health and get more non-attainment areas into attainment 

around the country. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Senator Carper, do you have some unanimous consent requests? 

Senator CARPER. I do, Mr. Chairman. Let me, if I could, just very 

briefly follow up on something that Senator Cardin was raising 

with Mr. Wheeler. I would ask you to forgive me if I don’t feel fully 

844 

comfortable about the notion that the MATS rule implemented, not 

rolled back, doesn’t somehow leave us in a situation that we have 

in Delaware and Pennsylvania, for nitrogen oxide, for NOx pollution. 

In my State, we literally could cut off our economy, all our cars 

off the road, all the businesses shut down, and we would still be 

out of compliance for NOx. The reason why is because of pollution 

from Pennsylvania, three utility plants, coal fired. And I think one 

in West Virginia. 

The cruel irony is, each of those plants had installed the technology to stop the pollution and to relieve it to us in the downwind 

States. They turned it off. They still have it turned off. And when 

we applied through a Section 126 waiver to try to get EPA to do 

something about it, they declined. So forgive me for being concerned and cautious on this front. 

I have a couple of unanimous consent requests to put forward, 

if I may. I would ask unanimous consent to submit for the record 

materials that demonstrate the growing demand for electric and 

hybrid vehicles and the efforts by the oil industry to lobby in support of this Administration’s fuel economy rollback. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

845 


35314.787

This is an update on EV/PHEV sales through the 3nd quarter of2018 (plus October). 

Sources https://insideevs.com/monthly-plug-in-sales-scorecard/ 

https://www.hybridcars.com/culture-market/ 

Both EVs and PHEVs hit a new monthly market share high in September, with EVs capturing 

2.4% of the market and EVs capturing 0.74% of the market, for just over 3% of all sales (Figure 

I). The industry has now achieved 12 quarters in a row with growing EV /PHEV sales compared 

to the same quarter in previous years (Figure 2). 

The big story over the last four months is the increasing sales of the Tesla 3. Tesla 3 sales are 

estimated at 14,250 to 22,250 a month in that timespan (tesla does not directly report sales, but 

several outlets use other methods to estimate total deliveries). The Tesla 3 is by far the best 

selling EV on the market right now, followed by the Tesla X, Tesla S, Chevy Bolt, and Nissan 

Leaf. The Leaf and Bolt each averaged about I ,500 sales a month over the last four months. 

Tesla captured more than 50% of the EV/PHEV market in the 3'd quarter, up from 35% in the 

second quarter (Figure 3). The only new EV/PHEV addition in the last four months was the 

Jaguar i-pace. 

For PHEV s, the Prius Prime remains the sales leader with about 2,000 sales per month. Close 

behind the Prius are the Chevy Volt and Honda Clarity PHEV. The BMW 5-series, Chrysler 

Pacifica, and Ford Fusion all maintained sales roughly around 500 vehicles per month, with 

smaller sales volumes for many PHEVs. 

35314.788

Apr-18 

lan18 

Apr~l7 

Jan-17 

Oct-16 

Jul-16 

Apr"16 

Jan"16 

Oct<15 

Apro15 

Jan-1$ 

Oct-·14 

Apr 14 

Jan·14 

OctT> 

Jui"B 

Apt·B 

Jan·13 

OcH2 

JUlol2 

Apr-12 

Jan"l2 

Oci-11 

M-11 

Jan"ll 

"' 0. 

1- 00 

> 

> ~ w w 0 

:I: > it E 

a. UJ 

* >~ I ~- 

Oct"10 

 

* 0 0 '-.,.Q '-,d * * tt'-~ 6~ '" "' <?• 0 tfl 0 "' 0 ,,., rli N '"" ..; ,...; 0 

!(:1.01 jO 
847 


35314.789

Figure 2: EV/PHEV sales by quarter 

llll2011 

11112012 

100,000 2013 

11112014 

80,000 !112015 

2016 

1112017 

60,000 1112018 

40,000 

20,000 

0 

Ql Q2 Q3 Q4 

(2018 4'h quarter only includes October sales so far) 
848 


35314.790

Figure 3: 2018 QJ EV/PHEV sales share, by Manufacturer 

111 Testa 

!i!GM 

Toyota 

Ill BMW 

Honda 

Nissan 

111 Ford 

• Fiat-Chrysle 

WJVW 

• Kia 

1111 Others 
849 


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1/22/2019 The Oil industry's Covert Campaign to Rewrite American Car Emissions Rules • The New York Times 

~bt ~tw ilfork ~times 

The Oil Industry's Covert Campaign to Rewrite 

American Car Emissions Rules 

~ By Hiroko Tabuchi 

Dec. 13, 2018 

Want climate news in your inbox? Sign up here for Climate Fwd:, our email newsletter. 

When the Trump administration laid out a plan this year that would eventually allow cars to emit 

more pollution, automakers, the obvious winners from the proposal, balked. The changes, they 

said, went too far even for them. 

But it turns out that there was a hidden beneficiary of the plan that was pushing for the changes 

all along: the nation's oil industry. 

In Congress, on Facebook and in statehouses nationwide, Marathon Petroleum, the country's 

largest refiner, worked with powerful oil-industry groups and a conservative policy network 

financed by the billionaire industrialist Charles G. Koch to run a stealth campaign to roll back car 

emissions standards, a New York Tinles investigation has found. 

The campaign's main argument for significantly easing fuel efficiency standards - that the 

United States is so awash in oil it no longer needs to worry about energy conservation- clashed 

with decades of federal energy and environmental policy. 

"With oil scarcity no longer a concern;' Americans should be given a "choice in vehicles that best 

fit their needs;• read a draft of a letter that Marathon helped to circulate to members of Congress 

over the summer. Official correspondence later sent to regulators by more than a dozen 

lawmakers included phrases or sentences from the industry talking points, and the Trump 

administration's proposed rules incorporate similar logic. 

The industry had reason to urge the rollback of higher fuel efficiency standards proposed by 

former President Barack Obama. A quarter of the world's oil is used to power cars, and lessthirsty vehicles mean lower gasoline sales. 

In recent months, Marathon Petroleum also teamed up with the American Legislative Exchange 

Council, a secretive policy group financed by corporations as well as the Koch network, to draft 

legislation for states supporting the industry's position. Its proposed resolution, dated Sept. 18, 

describes current fuel-efficiency rules as "a relic of a dis proven narrative of resource scarcity" 

and says "unelected bureaucrats" shouldn't dictate the cars Americans drive. 

https:/Jwww.nytimes.comf2018!12113/dimatelcafe-emissions.rollback-oil-industry.html 111 
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1/22!2019 The Oil Industry's Covert Campaign to Revllite American Car Emissions Rules • The New York Times 

A separate industry campaign on Facebook, covertly run by an oil-industry lobby representing 

Exxon Mobil, Chevron, Phillips 66 and other oil giants, urged people to write to regulators to 

support the rollback. 

The Face book ads linked to a website with a picture of a grinning Mr. Obama. It asked, "Would 

YOU buy a used car from this man?" The site appears to have been so effective that a quarter of 

the 12,000 public comments received by the Department of Transportation can be traced to the 

petition, according to a Times analysis. 

Gary R. Heminger, Marathon's chairman and chief executive, said in a statement that the 

company supported "sound fuel economy standards" and wanted to "help ensure they are 

achievable and based on existing technology." 

He added, "We appreciate the administration's willingness to conduct a thorough review in order 

to ensure future standards are achievable and will actually benefit American consumers." 

Marathon's chief executive, Gary Heminger, third from right, at the New York Stock 

Exchange on Dec. 3 to note an acquisition that made the company the nation's largest 

refiner. Richard Drew/Associated Press 

A spokesman for Koch Industries, the energy conglomerate led by Mr. Koch, said the company 

had "a long, consistent track record of opposing all forms of corporate welfare, including all 

subsidies, mandates and other handouts that rig the system:• 

https:/lwww.nytimes.com/2018!12/13/dimate/cafe-emissionHollback·oil.tndustry.html 2/11 
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1/22/2019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules ·The New York Times 

The oil industry's campaign, the details of which have not been previously reported, illuminates 

why the rollbacks have gone further than the more modest changes automakers originally 

lobbied for. 

The standards that the Trump administration seeks to weaken required automakers to roughly 

double the fuel economy of new cars, SUVs and pickup trucks by 2025. Instead, the Trump plan 

would freeze the standards at 2020 levels. Carmakers, for their part, had sought more flexibility in 

meeting the original2025 standards, not a categorical rollback. 

The Trump plan, if finalized, would increase greenhouse gas emissions in the United States by 

more than the amount many midsize countries put out in a year and reverse a major effort by the 

Obama administration to fight climate change. 

The energy industry's efforts also help explain the Trump administration's confrontational stance 

toward California, which, under federal law, has a unique authority to write its own clean-air rules 

and to mandate more zero-emissions vehicles. 

California has pledged to stick to the stricter standards, together with 13 other states that follow 

its lead. But President Trump's plan challenges California's rule-writing power, setting up a legal 

battle that threatens to split the American auto market in two. 

That is a prospect automakers desperately want to avoid. 

But for gasoline producers like Marathon, a shift toward more efficient vehicles poses a grave 

threat to the bottom line. In October, the company acquired a rival, Andeavor, making it the 

biggest refiner in the United States, with sales of 16 billion gallons of fuel a year. 

Even while doubling down on gasoline, Marathon has projected an environmentally friendly 

public image. "We have invested billions of dollars to make our operations more energy efficient:' 

Marathon said in a recent report. The company's 1\vitter account recently highlighted a 

gardening project and the creation of a duck pond at one of its refineries. 

On a conference call with investors last week, Mr. Heminger, the Marathon chief executive, was 

already counting the extra barrels of fuel a Trump rollback would mean for the industry: 350,000 

to 400,000 barrels of gasoline per day, he said. 

"However, you have another side who doesn't want to pivot away" from the stricter rules, Mr. 

Heminger said. "So we have a lot of work to do to keep this momentum going:' 

Marathon's Early Start 

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1/2212019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules -The New York. limes 

A Marathon Petroleum refinery in Detroit. Erin Kirkland for The New York Times 

Marathon began its outreach to the Trump administration early, asking to meet with Scott Pruitt 

at the Environmental Protection Agency soon after he became its administrator in early 2017. 

Marathon had been a top donor to Mr. Pruitt in Oklahoma, a state where oil is so prominent that a 

well stands on the grounds of the capitol building. 

"Our CEO, Gary Heminger, would be very glad for an opportunity to visit with the Administrator," 

a Marathon lobbyist wrote in an email to Mr. Trump's transition team on May 8, 2017. "I believe 

this would be a constructive dialogue." The E.P.A. helps oversee fuel economy rules along with 

the Transportation Department. 

Mr. Pruitt was scheduled to meet with the Marathon chief at least twice- once in June 2017 as 

part of a meeting with the board of a powerful fuel-industry group, American Fuel and 

Petrochemical Manufacturers, and again in September for a more private talk, according to 

emails and schedules released in a lawsuit filed by the Sierra Club. 

A Marathon spokesman, Chuck Rice, said Mr. Heminger did not discuss auto-efficiency rollbacks 

with Mr. Pruitt. An E.P.A. official did not respond to a question about whether the auto rules were 

discussed. 

https:/!www.nytimes.com/2018/12/13/climate/cafe-emlssions-ro/lback-oil-industry.html 4/11 
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1/2212019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules ~ The New York Times 

Marathon then turned its focus to Congress, hiring the firm Ogilvy Government Relations to 

lobby legislators in Washington on fuel-economy standards, according to Ogilvy's disclosure 

forms. The firm did not respond to a request for comment. 

Over the summer, Marathon representatives also approached legislators about an industry 

talking-points letter, according to six people familiar with that effort. The file properties of a 

Microsoft Word version of one letter, provided by a Congressional delegation, show that it was 

last edited by a Marathon lobbyist, Michael J. Birsic, on June 11, 2018. 

Mr. Rice of Marathon said the company did not write the letter, and the company declined to say 

who did. It did not offer an explanation for Mr. Birsic's digital fingerprint on the document file. 

Nineteen lawmakers from the delegations of Indiana, West Virginia and Pennsylvania sent letters 

to the Transportation Department that included exact phrases and reasoning from the industry 

Jetter. The lawmakers' letters, sent in June and July, all make the point that oil scarcity is no 

longer a concern. 

EnKted ln the 19701, in a time of resource starclty, the CAFE progr.am sousf'lt tc redu~;& the Importation 

of forelgM Dll and consel"tt: enersv throiJih lncreaslrlg the effb;lency of motor vehicles (fueleccncmy), 

Fast forward, and today the tLHTeflt Iteration of the CAFE proaram, as eonstrueted by the pre'llous 

AdmlnlstratiOn, appears outdated and oYCrty tompl!catad. unable to keep up with the rapid d!an1esln 

the marketplace. The undef1.lgned believe the NPRM Is an lmportantstap forward for the examination 

of M¥2022-2025 CAFE standards. With oil seardty noJonaer a concern, historically low ps prices, and 

lnereasinaly ambitious CAFE r.qulrements. It is lmportlnt that NHTSA and EPA review- the mandate to 

ens.ure that the U.S. is protecting consumers from higher costs and still aliowlns for choice In vehk.les 

thatbestfltthelrneeds, 

A portion of a letter detailing pro-industry talking points that was later echoed in letters 

written by lawmakers to regulators, such as the example below. 

Enacted In the 1970s, iu a tl~ ofiQOUft:e acan:lty. the CAFE program JOUiht to reduce the 

impor18don or ron::isn oil and con&m"\111 euergy through increasing the efticieoq or moeor vehicles 

(fl>el""""""Y~Today.hawovcr,lhe......,.i..,.tioaorlheCAFEpro11111111.aC<IIlllnlcledbylhe 

Otana Admlnislndion, appears outdated and overly complicated. It is unable 10 keep up with the 

..,.td""""'"" ialhe marketplace. 

With oilswcil)' no lollser a conc::em, and iraculllll)' ambitious CAFE requln:mcatl. itll imporllllllllotNifi"SA IUid EPA ...tow !be-1D ....,.did !be U.S il (ll<lledi"'ICOIISIIIIIOQ 

from hiaher oosts 11nd still allowing Cor choice in vchk:.lm thee best fila thar needL Aa:ordina to lhe 

Nadonol Auto Iloalcrs Association. CAFE u it cwmttly lllltttdll could htmuolhe price or on 

·-vobicle by 13,000 in 2025. 

A letter sent by Pennsylvania's congressional delegation to regulators used language 

similar to the industry talking-points note, excerpted above. 

The Trump administration's proposed rollback echoes the post-conservation theme. While energy 

conservation is significant, the proposal says, the downside of additional petroleum consumption 

would be dwarfed by the rollback's benefits. 

https:I/Vf"H>N,nytimes.com/2018/12113/climate/cafe-emissions-rollback-oil~industry,html 5!11 
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1/22/2019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules • The New Yo~ Times 

Representatives from the three state delegations either declined to comment or did not respond 

to requests. 

Senator Tom Carper of Delaware, the top Democrat on the Senate Environment and Public Works 

Committee, criticized the industry's campaign. "It appears as though oil interests are cynically 

trying to gin up support in Congress for the weakest possible standards to ensure that cars and 

SUVs have to rely on even more oil;' he said. 

"If this attempt is successful, the outcome will be a blow to the auto industry, consumers, and our 

environment." 

The Facebook Campaign 

The Facebook ads, featuring Mr. Trump waving alongside the message, "SUPPORT OUR 

PRESIDENT'S CAR FREEDOM AGENDA! ;• appeared the week after the administration made 

public its fuel economy plan in August. At least 10 times during the two-month public comment 

period on the plan, the ads, which did not state their oil industry origins, asked people to write to 

the government to back weaker emissions standards. 

Public comments matter in federal rule-making. The law requires that citizens' views be taken 

into account before a rule is finalized. 

"File an official comment to SUPPORT our President's plan for safer, cheaper cars that WE get to 

choose;' read one ad, which ran for seven days in early October. The ad leads to a page that 

provides basic language to submit. 

• 

Energy4US 

Sponured • Paid for by Energy4US 

File an official comment to SUPPORT our 

President's !)fan for safer, cheaper ears that WE 

get to choose. 

Sign Up \o Flfv YOUR Comii1C'll 

ChekhtreloSUPPORTihcPru~enl 

Facebook ads by Energy4Us prompted more than 

3,300 of ttJe 12,000 public comments on the 

administration's rollback proposal, a Times analysis 

showed. 

More than 3,300 of the 12,000 public comments that D.O.T. has made public contain language 

identical to that petition, an analysis of the files showed. 

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1/2212019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules • The New York Times 

The campaign was a product of the fuel and petrochemical manufacturers trade group, widely 

known as AFPM. However, neither the Face book ads nor the site identified the industry group. 

Instead they name a group called Energy4 US, which describes itself as "a coalition of consumers, 

businesses and workers" promoting affordable energy. 

Energy4US has close ties to the industry group. According to internet domain records, Victor 

Adams, listed as an AFPM web manager, registered Energy4Us.org in 2015 using his work email 

address. Energy4US lists the group as a coalition member, along with about 50 other groups 

including energy interests, labor groups, a sheriff's association and even a recreational fishing 

alliance. 

The AFPM board includes representatives from Exxon, Chevron, Phillips 66, Marathon and Koch 

Industries. The companies all referred queries to the group. 

Derrick Morgan, a senior vice president at AFPM, said the group "regularly works with 

policymakers, coalition groups and individuals to promote shared goals;• and also will "lead and 

join groups like Energy4US." 

The Department of Transportation said it was "generally aware" that there were groups urging 

the public to make comments through online campaigns, but said it does not regulate them. 

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1/22/2019 The Oil Industry's Covert Campaign to Rewrite American Car Emissions Rules. The New York Times 

Transportation Secretary Elaine Chao at the White House this year. Tom Brenner /The New York Times 

Taking the Fight On the Road 

House billl593 is just eight words long: "To repeal the corporate average fuel economy 

standards." Koch Industries, a petroleum empire with interests as diverse as gasoline, pipelines, 

fertilizer and Stainmaster carpets, is the bill's sole corporate backer. 

The measure, which would eliminate fuel standards altogether, is not expected to go far. But it 

underscores the company's stance on the matter. And Koch interests are fighting that battle not 

only in Washington but increasingly in statehouses and even local policy meetings nationwide. 

Earlier Investigative Reporting 

Taking the fight over climate change to local communities 

How the Koch Brothers Are Killing Public Transit Projects Around the 

Country June 19, 2018 

In Dearborn, Mich., at a September meeting on the Trump fuel-efficiency rollbacks, Annie 

Patnaude of Americans for Prosperity, a Koch-funded group, spoke in favor. "This is a step in the 

right direction to protect consumers and workers against government mandates that would limit 

choice;• she said. 

In Iowa, Americans for Prosperity joined the fight over whether to make it easier for gas stations 

to install chargers for electric vehicles. In Illinois, it discouraged state officials from considering 

subsidies for electric vehicles. 

And last month an Americans for Prosperity representative trekked to a public hearing in 

Colorado, where regulators were thinking about becoming the 13th state to follow California's 

stricter standards. The representative, Shari Shifter-Krieger, a field director for the group, argued 

that people in the rugged state wanted SUVs, not tighter emissions rules. "Coloradans deserve 

much better;' she said. 

The oil industry lost that fight. Colorado allied itself with California. 

But Americans for Prosperity said fights like these get to the heart of its free-market philosophy. 

"We believe in a level playing field so all Americans have the equal opportunity to succeed;' said 

Bill Riggs, a spokesman for the group, in a statement The organization will keep fighting 

"mandates that unfairly pick winners and losers in any industry;• he said. 

https:/twww.nytimes,com/2018/12/131climate/cate-emissions.ro!lback~oil·industry.html 8111 
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1/2212019 The Oil Industry's Covert Campaign to Rewrtt:e American Car Emissions Rules ~The New Yot1( Times 

Drafting Pro-Oil State Legislation 

On August 6, a Marathon lobbyist, Stephen D. Higley, emailed a Wisconsin state representative 

an explainer of American fuel economy law. The memo didn't mince words. 

"It's a relic;' the memo said, particularly at a time when the United States was "poised to become 

the largest oil producer in the world:' 

The Wisconsin representative, Mike Kuglitsch, participates in the American Legislative 

Exchange Council, a Koch-funded group that helps companies write model legislation for state 

lawmakers to use as a basis for their own laws. 

Emails obtained by the Times show that Marathon has been working with members of the 

legislative exchange council to build support for the Trump fuel-efficiency rollback in state 

legislatures and to denounce California's power to write its own rules for cars. The emails were 

made public under Wisconsin's open records law to Documented, a watchdog group that tracks 

corporate influence in public policy. 

California's special authority could effectively split the American auto market in two, since 13 

other states -representing roughly 35 percent of nationwide car sales have agreed to follow 

California's stricter rules. That means automakers might find themselves making cars to two 

competing standards. 

"Who should decide what cars and trucks consumers should buy, consumers themselves or 

unelected bureaucrats in Sacramento, California or Washington, D.C.?" the memo sent by 

Marathon said. 

In a statement, Bill Meier ling of the legislative exchange council said that mandating fuel 

economy was a rule that "many state legislators believe doesn't make sense for working 

Americans:' 

Just days after the emails between Marathon and the Wisconsin lawmaker, some 1,500 state 

legislators and other officials from across the country gathered in New Orleans to cheer on Elaine 

Chao, the Secretary of Transportation, at the legislative exchange council's annual convention. 

Marathon sponsored the event. 

The Transportation Department was determined to cut government regulations, said Ms. Chao, a 

former fellow at the Heritage Foundation, which has received Koch funding and has long opposed 

the fuel economy rules. 

Mr. Trump's proposed rollback, she said, "ranks as one of the most significant regulatory reforms 

that this administration is undertaking:' The room erupted in applause. 

https:/Jw..vw,nytimes.com/2018/12/13/climate/cafe-emissionHollback-oil~industry.html 9/11 
858 

Senator CARPER. Thank you. 

I would also ask unanimous consent, Mr. Chairman, to submit 

for the record a comprehensive science report from Syracuse University, Harvard School of Public Health and other universities 

that finds that the benefits of reducing mercury to our society is 

around $4 billion per year, not $4 million to $6 million, as EPA 

claims in its report. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

859 


35314.800

MERCURY MATIERS 2018: A SCIENCE BRIEF 

FOR JOURNALISTS AND POLICYMAKERS 

electric utilities. 

DECEMBER 13, 2018 

Mercury In Context 

Coal-fired power plants are the largest 

source of mercury in the U.S., accounting 

for approximately 48% of mercury 

emissions in 20151• 

The Mercury and AirToxics Standards 

(MATS (https://www.epa.gov/mats)) were 

finalized in 2011 and currently regulate 

emissions of mercury, acid gases and other 

hazardous air pollutants (HAPs) from U.S. 

The MATS rule is expected to reduce mercury emissions from the power sector by 90%, improve 

public health, and play an integral role in meeting U.S. commitments under the international 

2017 Minamata Convention on Mercurv (https://www.epa.gov/internationalcooperation/minamata-convention-mercurv}. 

The Latest from EPA 

In August 2018, the U.S. Environmental Protection Agency (EPA) announced plans to revisit the 

Agency's prior determination that regulating HAPs emitted from power plants under section 

112 ofthe Clean Air Act was "appropriate and necessary." 

A proposal to reopen one or more aspects of MATS is currently under interagency review at the 

Office of Management and Budget and could result in lifting limits on mercury emissions from 

electric utilities in the U.S. 
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The Issue 

Recent research shows that MATS has substantially reduced mercury levels in the environment 

and improved public health at a much lower cost than anticipated. However, the Regulatory 

Impact Assessment (RIA) that the Administration is relying on in its rollback proposal does not 

reflect current scientific understanding of the local impacts and societal cost of mercury 

pollution in the U.S.2,3, 

Many of the health effects associated with mercury exposure are not fully reflected in the RIA, 

and the final estimate of the mercury-related benefits from MATS only accounted for benefits to 

children of freshwater recreational anglers in the U.S., a small fraction of the total population 

affected. 

Mercury Emissions Matter to Human Health and the Environment 

Mercury in the form of methylmercury is a potent neurotoxin. Important facts about the health 

effects of methylmercury include the following: 

• Children exposed to methylmercury during a mother's pregnancy can experience persistent 

and lifelong IQ and motor function deficits4• 

•In adults, high levels of methylmercury exposure have been associated with adverse 

cardiovascular effects, including increased risk of fatal heart attacks5• 

• Other adverse health effects of methylmercury exposure that have been identified in the 

scientific literature include endocrine disruption6 , diabetes risk7, and compromised immune 

function8• 

• The societal costs of neurocognitive deficits associated with methylmercury exposure in the 

U.S. were estimated in 2017 to be approximately $4.8 billion peryear9. 

• No known threshold exists for methylmercury below which neurodevelopmental impacts do 

not occur10·

11 . 

Mercury exposure in the U.S. occurs primarily through the consumption of freshwater fish and 

seafood (fish and shellfish). The consumption of marine fish, often harvested from U.S. coastal 

waters, accounts for greater than 80% of methylmercury intake by the U.S. population12. 

Dietary supplements cannot counteract methylmercury toxicity in U.S. consumers. A safe and 

consumable fishery is important to retaining a healthy, low-cost source of protein and other 

nutrients that are essential for pregnant women, young children, and the general population. 
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After mercury is emitted from power plants, it is deposited back to Earth where it can be 

converted to methylmercury, a highly toxic form of mercury that magnifies up food chains, 

reaching concentrations in fish that are 10 to 100 million times greater than concentrations in 

water13 . 

With increasing levels of mercury in the environment due to human activities, virtually all fish 

from U.S. waters now have detectable levels of methylmercury. Some fish, such as swordfish, 

large species of tuna, and freshwater game fish, can have levels that exceed consumption 

guidelines. 

States post fish consumption advisories for waterbodies that are known to have elevated 

contaminants. In 2013, consumption advisories for mercury were in effect in all 50 states, one 

U.S. territory, and three tribal territories, and accounted for 81% of all U.S. advisories14. This 

represents more advisories for mercury than for all other contaminants combined. 

Wildlife that consume fish, such as common loons, bald eagles, otter and mink, and many 

marine mammals can also experience adverse effects from mercury and are unable to heed 

advisories15. The health of many songbird and bat species is threatened due to methylmercury 

exposure in wetland habitats. The productivity of economically valuable game fish stocks can 

also be compromised 16• 

As Mercury Emissions In the U.S. Have Declined, Health Has Improved 

In the 2011 MATS RIA, it was assumed that mercury emissions from coal-fired utilities are 

mainly transported long-distances away from the U.S. and that a substantial fraction of 

mercury in the U.S. comes from international sources. Since that time, scientific understanding 

of the fate of U.S. mercury emissions has advanced 17·

18• Recent research reveals that the 

contribution of U.S. coal-fired power plants to local mercury contamination in the U.S. has 

been markedly underestimated. Accordingly, controls on mercury emissions from U.S. electric 

utilities have contributed to the following human health and environmental improvements. 

• Mercury emissions from U.S. coal-fired power plants have declined by 85% from 92,000 

pounds in 2006 to 14,000 pounds in 201619since states began setting standards, and 

MATS was introduced in 2011. Eleven states had implemented mercury emissions 

standards for power plants prior to 2011. 

• Concurrent with declines in mercury emissions, mercury levels in air, water, sediments, 

loons, freshwater fisheries, and Atlantic Ocean fisheries20 have decreased appreciably. 

• Mercury levels in the blood of women in the U.S. declined by 34% between 2001 and 2010 

as mercury levels in some fish decreased, and fish consumption advisories improved21 • 
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• The estimated number of children born in the U.S. each year with prenatal exposure to 

methylmercury levels that exceed the EPA reference dose has decreased by half from 

200,000-400,000 to 100,000-200,000, depending on the measure used22 • 

The Benefits of Reducing Mercury Are Much Larger Than Previously Estimated 

The EPA estimated in the MATS RIA that the annualized mercury-related health benefits of 

reducing mercury emissions would be less than $10 million. Recent studies that account for 

more pathways of methylmercury exposure and additional health effects suggest that the 

monetized benefits of reducing power plant mercury emissions in the U.S. are likely in the range 

of several billion dollars per year23 •

24•25 • These and other studies support the conclusion that the 

mercury-related benefits from MATS are orders of magnitude larger than previously estimated 

in the MATS RW6• 

In addition to the mercury-related benefits, MATS has also decreased sulfur dioxide and 

nitrogen oxide emissions, improving air quality and public health by reducing fine particulate 

matter and ground-level ozone. The EPA estimated that the annualized value of these 

additional benefits is $24 to $80 billion; bringing the total annual benefits from MATS to tens 

of billions of dollars. Even with these more complete estimates, substantial benefits of reducing 

mercury and other airtoxics remain unquantified due to data limitations27 • 

On the cost side, new information suggests that the EPA's original cost-estimate for MATS of 

$9.6 billion is much higher than the actual cost due to declines in natural gas prices and lower 

than expected control equipment and renewable energy costs28• Yet, even with the original 

overestimate, the EPA projected that MATS would increase the monthly electric bill ofthe 

average American household by only $2.71 (or 0.3 cents per kilowatt-hour). This value is well 

within the price fluctuation consumers experienced between 2000 and 201129 • 

The Bottom Line 

The science is clear, the health impacts of U.S. mercury emissions in the U.S. are large and 

disproportionately affect children and other vulnerable populations. Mercury emission 

standards in the U.S. have markedly reduced mercury in the environment and improved public 

health. The mercury-related benefits of MATS are much larger than previously estimated, the 

actual costs appear to be substantially lower than projected by the EPA, and the total 

monetized benefits across all pollutants far outweigh the costs ofthe standards. 

Contributors 

• Charles Driscoll, Department of Civil and Environmental Engineering, Syracuse University 
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• Elsie Sunderland, Harvard Paulson School of Engineering & Applied Sciences and Harvard 

T.H. Chan School of Public Health, Department of Environmental Health, Exposure, 

Epidemiology, and Risk 

• Kathy Fallon Lambert, Harvard T.H. Chan School of Public Health, Center for Climate, Health, 

and the Global Environment 

• Joel Blum, Department of Earth and Environmental Sciences, University of Michigan 

• Celia Chen, Department of Biological Sciences, Dartmouth College 

• David Evers, BioDiversity Research Institute 

• Philippe Grandjean, Harvard T.H. Chan School of Public Health, Department of 

Environmental Health, Environmental and Occupational Medicine and Epidemiology 

• Rob Mason, Departments of Chemistry and Marine Sciences, University of Connecticut 

• Emily Oken, Harvard Medical School 

• Noelle Selin, Department of Earth, Atmospheric and Planetary Sciences, Massachusetts 

Institute ofTechnology 

Media Contacts 

• Liz Purchia, Communications Director for the Center for Climate, Health and the Global 

Environment (C-CHANGE), Harvard University, lizpurchia@hsph.harvard.edu 

(mailto:lizpurchia@hsph.harvard.edu), 315-794-6943 

• Daryl Lovell, Media Relations Manager, Syracuse University, dalovell@syr.edu 

(mailto:dalovell@syr.edu), @DaryiLovell (https:/ jtwitter.comjdaryllovell), 315-443-1184, 

315-380-0206 

1. Streets, D.G.; Horowitz, H.M.; Lu, Z.; Levin, L.; Thackray, C.P.; Sunderland, E.M. Global, and 

regional trends in mercury emissions and concentrations, 2010-2015 

(https:/ jwww .dropbox.com; sj js8j0tlpgvg3 g5k/Streets_AE%2 Oman uscript_su bmitted083118. 

di=O). Atmospheric Environment. Accepted. 

2. Sunderland, E.M.; Driscoll, Jr., C.T.; Hammitt, J.K.; Grandjean, P.; Evans, J.S.; Blum, J.D.; 

Chen, C.Y.; Evers, D.C.; Jaffe, D.A.; Mason, R.P.; Goho, S.; Jacobs, W. 2016. Benefits of 

Regulating Hazardous Air Pollutants from Coal and Oil-Fired Utilities in the United States. 

Environmental Science & Technology 

(https:/ /pubs.acs.orgjdoijpdf/ 10.1021jacs.est.6b00239). 50 (5), 2117-2120. DOl: 

10.1021jacs.est.6b00239. 

3. Giang, A.; Mulvaney, K; Selin, N.E. 2016. Comments on "Supplemental Finding That It Is 

Appropriate and Necessary to Regulate Hazardous Air Pollutants from Coal- and Oil-Fired 
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Electric Utility Steam Generating Units". (https:; ;www.regulations.govjdocument?D=EPAHQ-OAR-2009-0234-20544) 

4. Grandjean, P. and Bellanger, M. 2017. Calculation ofthe disease burden associated with 

environmental chemical exposures: application oftoxicological in health economic 

estimation (https:/ ;www.ncbi.nlm.nih.gov/pmc/articles/PMC5715994/). 16:123. DOl: 

10.1186/s12940-017-0340-3. 

5. Genchi G., Sinicropi M.S., Caracci A., Lauria G., Catalano A. 2017. Mercury Exposure and 

Heart Diseases. lntJ Environ Res Public Health 

(https:; ;www.ncbi.nlm.nih.govjpmcjarticles/PMC5295325/). 2017;14(1):74. Published 

Jan 12. DOI:10.3390/ijerph14010074. 

6. Tan, S.W.; Meiller, J.C.; Mahaffey, K.R. 2009. The endocrine effects of mercury in humans 

and wildlife. Crit. Rev. Toxicol. 39 (3), 228-269. 

7. He, K.; Xun, P.; Liu, K.; Morris, S.; Reis, J.; Guallar, E. 2013. Mercury exposure in young 

adulthood and incidence of diabetes later in life 

(https:; jwww.ncbi.nlm.nih.gov/pmc/articlesjPMC3661833j): the CARDIA trace element 

study. Diabetes Care. 36, 1584-1589. 

8. Nyland, J. F.; Fillion, M.; Barbosa, R., Jr.; Shirley, D. L.; Chine, C.; Lemire, M.; Mergler, D.; 

Silbergeld, E.K. 2011. Biomarkers of methylmercury exposure and immunotoxicity among 

fish consumers in the Amazonian Brazil 

(https:/ ;www.ncbi.nlm.nih.gov/pmc/articlesjPMC3261989/). Env. Health Persp. 119 

(12), 1733- 1738. 

9. Grand jean and Bellanger 2017 (https:/ ;www.ncbi.nlm.nih.gov/pubmed/29202828). 

10. Rice, G.E.; Hammitt, J.K; and Evans, J.S. 2010. A probabilistic characterization ofthe health 

benefits of reducing methyl mercury intake in the United States 

(https:/ I d rive.google.com/file/ d/ 1y5aE6CGi 1AibqUXa_QiEmgqjwKq3y9aZjview). Environ 

Sci Techno I. 1;44(13):516-24. DOI:10.1021/es903359u. 

11. Grand jean and Bellanger 2017 (https:/ ;www.ncbi.nlm.nih.govjpubmed/29202828). 

12. Sunderland, E. M.; Li, M.; Bullard, K. 2018. Decadal Changes in the Edible Supply of 

Seafood and Methylmercury Exposure in the United States 

(https:/ jehp.niehs.nih.govjdoi/10.1289/EHP2644). Environ. Health Persp. DOl: 

10.1289/EHP2644. 

13. Driscoll, C.T.; Han, Y-J; Chen, C.; Evers, D.; Lambert, K.F.; Holsen, T.; Kamman, N.; and 

Munson, R. 2007. Mercury Contamination on Remote Forest and Aquatic Ecosystems in the 

Northeastern U.S.: Sources, Transformations, and Management Option 

(https:/ ;academic.oup.com/biosciencejarticle/57 /1/17 /224397)s. BioScience. 57 

(1):17-28. 

14. U.S. Environmental Protection Agency. 2011 National Listing of Fish Advisories 

(https:/ ;www .epa .gov I sites; prod uctionjfiles/2 0 15-06/ docu mentsjtech nical-factsheet2011.pdf). 2013. EPA-820-F-13-058. 
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15. Chan, N.M.; Scheuhammer, A.M.; Ferran, A.; Loupelle, C.; Holloway, J.; and Weech, S. 

2003. Impacts of Mercury on Freshwater Fish-eating Wildlife and Humans 

(https:/ jwww.tandfonline.com/ doij abs/ 10.1080/7136100 13? 

casa_token=6m2H70imiZ8AAAAA%3AIdqSJ 92MQ6v 7fm hStLqD 1 CM L0511Cq3Vy5 KpOQZ_2 RD bd KUG bGju EOAjhyiT7 eHJ BCZL051 P JC: 

Human and Ecological Risk Assessment. 9(4): 867-883. 

16. Sand heinrich, M.B.; Wiener, J.G. 2011. Methylmercury in freshwater fish: Recent advances 

in assessing toxicity of environmentally relevant exposures 

(https:/ jwww. dropbox.com; s/ calospticOslsatjSa nd hei n rich%20%20Wiener%202 0 11%2 0 Mel 

Recent%20advances%20Chapter%204.pdf?di=O). In Environmental Contaminants in 

Biota: Interpreting Tissue Concentrations, 2nd; Beyer, W. N., Meador, J.P., Eds.; CRC 

Press/Taylor and Francis: Boca Raton, FL; pp. 169-190. 

17. Zhang, Y.; Jacob, D.; Horowitz, H.; Chen, L.; Amos, H.; Krabbenhoft, D.; Slemr, F.; St. Louis, 

V.; Sunderland, E. 2016. Observed decrease in atmospheric mercury explained by global 

decline in anthropogenic emissions (https:/ jwww.pnas.orgjcontentj113/3/526). PNAS. 

113 (3) 526-531. DOl: 10.1073/pnas.1516312113. 

18. Lepak, R.F.; Yin, R.; Krabbenhoft, D.; Ogorek, J.; De Wild, J.; Holsen, T.; and Hurley, J. 2015. 

Use of Stable Isotope Signatures to Determine Mercury Sources in the Great Lakes 

(https:; jpubs.acs.orgjdoij10.1021jacs.estlett.5b00277). Environmental Science & 

Technology Letters. 2 (12), 335-34. DOl: 10. 1021jacs.estlett.5b00277. 

19. U.S. Environmental Protection Agency. 2018. 

https:j ;www .epa.gov jtrinationalana lysis/ electric-utilities-mercury-releases-20 16-trinational-analysis (https:j jwww.epa.gov/trinationalanalysisjelectric-utilities-mercuryreleases-20 16-tri-national-analysis). 

20. Cross, F.A.; Evans, D.W.; Barber, R.T. 2015. Decadal declines of mercury in adult bluefish 

(1972-20 11) from the mid-Atlantic coast of the U.S.A 

(https:/ jwww.dropbox.com/ s/ 15dzz8dykfe1yca/Cross%20et%20al. %2020 15.pdf?di=O). 

Environ. Sci. Techno!. 49, 9064-9072. 

21. U.S. Environmental Protection Agency. 2013. Trends in Blood Mercury Concentrations and 

Fish Consumption Among U.S. Women of Childbearing Age NHANES 1999-2010. EPA823-R-13-002. https:j jwww.regulations.govjdocument?D=EPA-HQ-OAR-2009-0234-

20544 (https:j jwww.regulations.govjdocument?D=EPA-HQ-OAR-2009-0234-20544). 

22. U.S. Environmental Protection Agency. 2013. EPA-823-R-13-002 

(https:j jwww.regulations.govjdocument?D=EPA-HQ-OAR-2009-0234-20544.). 

23. Rice et al. 2010. 

24. Giang, A.; Selin, N. E. Benefits of mercury controls for the United States 

(https:j jwww.pnas.orgjcontent; 113/2/286). Proc. Nat!. A cad. Sci. U.S. A. 2016, 113, 

286. 

25. Sunderland et al. 2016 (https:j jpubs.acs.orgjdoijpdf/ 10.1021jacs.est.6b00239). 
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26. Giang et al. 2016 (https:/ ;www.regulations.govjdocument?D=EPA-HQ-OAR-2009-0234-

20544.). 

27. Sunderland et al. 2016. (https:/ jpubs.acs.orgjdoijpdf/10.1021/acs.est.6b00239) 

2S. Declaration of James E. Staudt, Ph.D. CFA, September 24,2015, White Stallion Energy 

Center, et al., v. United States Environmental Protection Agency, Case No. 12-1100 

(https:/ /WWW .cad c.usco urts.gov I internet/opinions. nsf /2S4AC4 7 osseo 7 D09S525 7C B B004F 

$file/ 12-1100-14SS346.pdf) and Summary plus cases 

(https:/ jcases.justia.com/federal/ appellate-courts; cadc/ 12-1100/12-1100-2014-04-

15.pdf?ts=1411135625), Exhibit 1 Declaration of James E. Staudt, Ph.D., CFA 

(https:/ /www .edf.orgj sites; default/files/ content/ industry _respondentintervenors_response_to_stay_application_-_no_15a-SS6.pdf), U.S. Court of Appeals for 

the District of Columbia. 

29. U.S. Environmental Protection Agency. Final Consideration of Cost in the Appropriate and 

Necessary Finding for the Mercury and AirToxics Standards for Power Plants. 

https:/ jwww .epa.gov 1 sites/ prod uction/files/2 0 16-

05/ d ocu mentsj 2 0 160414_mats_ff_fr_fs. pdf 

(https:/ /www .epa .gov 1 sites; prod uction/files/20 16-

05/ documents/ 20 160414_mats_ff_fr_fs.pdf). 

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867 

Senator CARPER. Mr. Chairman, I ask unanimous consent to submit for the record two letters I sent to this Administration regarding EPA’s proposal to undermine the Mercury and Air Toxics rule. 

This includes an August 24th, 2018 letter to Mr. Wheeler from 

Senator Alexander and myself expressing our support to keep the 

MATS rule in place and effective. 

The second is a December 28th letter to OMB’s Office of Information Regulatory Affairs, affectionately known as OIRA, outlining 

why I have grave concerns about the EPA’s flawed cost-benefit 

analysis used in the MATS proposal. 

And finally, one last one. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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The Honorable Andrew Wheeler 

Acting Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., NW 

Washington, DC 20004 

Dear Acting Administrator Wheeler: 

United ~tares ,Senate COMMITTEE ON ENvleONMF.NT AND PUBLIC WORKS 

August 24, 2018 

We write to express our support for the Mercury and Air Toxics Standards (MATS) rule. This 

rule is already in effect, and we urge you not to propose changes to it. Keeping the current rule 

in place will provide much-needed certainty for the electric power industry and help protect the 

health of all Americans. 

In 1990, Congress listed mercury- along with one hundred and eighty-eight other air toxics such 

as lead and arsenic- as hazardous air pollutants in the Clean Air Act. We believe the 

Environmental Protection Agency (EPA) correctly implemented Congress' original intent when 

the agency issued the MATS rule in 2012. Modeling MATS on state actions that were already 

underway to address these pollutants, EPA issued standards that were achievable for industry and 

beneficial for public health and the environment. EPA also provided enough time for industry to 

comply with the new standards. Thus, EPA struck the right balance between protecting the 

environment, public health and our economy. For these reasons and more, we strongly 

supported the MATS rule when it was finalized and still support the mle today. 

Today, MATS is overachieving expectations. We are seeing public health benefits faster than 

predicted. On July 10, 2018, every major electrical utility trade organization representing coalfired generation and other utilities joined with labor organizations on a letter to EPA that 

confirmed our power plants have "reduced mercury emissions by nearly 90 percent over the past 

decade."IIJ These reductions are in large part due to the investments that were made to comply 

with MATS. The letter goes on to say that industry compliance with the rule has been easier 

than first estimated, stating that today "all covered plants have implemented the regulation 

[MATS] and that pollution controls-where needed-are installed and operating." Ill 

MATS has been a success, and changing the MATS rule just doesn't make sense. Industry 

agrees: in the July letter to EPA, industry and labor organizations urged EPA not to change the 

Ill https:llwww.eenews.net/assets/20 18107111/document_gw _04.pdf 

i'l https:llwww.eenews.net/assets/2018107/ll/document__gw _04.pdf 
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rule given all the investments that have already been made to comrly with the MATS rule, 

saying "leave the underlying MATS rule in place and effective."IJ We hope you agree. 

We thank you for your consideration of Qur request, and if you or your staff have questions about 

this letter please contac ' ; .... or Carper's Environment and Public 

Works Committee sta . indsay Garcia of Senator 

Alexander's office at 

With best personal regards, we are, 

Yours Sincerely, 

--~~~ Lamar Alexander .. ~~ United States Senator 

i'l https://www .eenews. netlassets/20 18/07/ll/document_gw _ 04 .pdf 
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The Honorable Neomi Rao 

Administrator 

~united States 5cnJte ' f'l"o. 

COMMITTEe ON ENVIRONMENT AND PURLIC WORKS 

December 13,2018 

Office of Information and Regulatory Affairs 

Eisenhower Executive Office Building 

1650 Pennsylvania A venue, NW 

Washington, DC 20503 

Dear Administrator Rao: 

I write with great concerns about the Environmental Protection Agency's (EPA) proposed 

reconsideration of the Mercury and Air Taxies Standards (MATS) Supplemental Finding (81 FR 

24420, April25, 2016). Your office received this reconsideration proposal for review on 

October 4, 2018. According to press reports, 1 EPA intends to propose to reverse its decision that 

it is "appropriate and necessary" to regulate mercury and toxic air pollution from coal- and oilfired power plants. These reports indicate that, in arriving at that conclusion, the EPA is 

attempting to ignore or dismiss many of the MATS rule's public health· benefits. If this is the 

case, this proposal should be rejected. It would contravene Congressional intent and endanger 

the health of all Americans. 

Mercury and other air toxics (such as lead, arsenic, benzene, and acid gases) harm the public 

while airborne, and when they settle on the soil and in the waterways we depend on for the water 

we drink and fish we eat. These toxic substances, which are emitted by power plants, then build 

up in our bodies, causing cancer, respiratory illness, mental impairment, and death. Mercury 

pollution is especially dangerous for unborn children, who can suffer long-lasting neurological 

damage if exposed during development. According to the American Academy of Pediatrics, 

there is no safe level of mercury exposure for children-none. 

After a long delay, in 2012 EPA issued the MATS rule to reduce emissions from power plants, 

our nation's largest sources of mercury and air toxics. The MATS rule was expected to reduce 

utility mercury emissions by 90% and other air toxic emissions by 50%. In the agency's 2011 

cost-benefit analysis for the MATS rule, EPA estimated that the quantifiable benefits to public 

'See, e.g., Stuart Parker, "EPA Sends Proposal to Reconsider MATS Rule for White House Review," INSIDEEPA, 

Dec. 11 ~ 2018, https://insideepa,com/clean-air~report/epa~sends·proposal·recons!der·mats .. rule~wh ite-house-review. 
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health (including II ,000 fewer deaths each year) of the MATS rule far outweighed the estimated 

costs of compliance for the utility industry.2 

The substance of the MATS rule survived court challenges, and remains on the books today. 

However, in the 2015 Michigan vs. EPA case, the Supreme Court ruled 5-4 that EPA should 

have considered costs when deciding whether it is was "appropriate and necessary" to regulate 

hazardous air emissions from power plants. Instead of vacating the MATS rule, the Court 

allowed the rule to stay in place while EPA addressed the Court's concerns. In Justice Scalia's 

majority opinion, he wrote: "We need not and do not hold that the Jaw unambiguously required 

the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis in 

which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency 

to decide (as always, within the limits of reasonable interpretation) how to account for cost."3 

In April2016, in response to Michigan vs. EPA, EPA issued the MATS "Supplemental Finding." 

That finding reconfirms that it is "appropriate and necessary" to regulate hazardous emissions 

from power plants under Section 112 of the Clean Air Act.4 EPA reiterated its conclusion after 

considering "the full range of factors relevant to the appropriate and necessary finding. "5 In 

coming to this conclusion, EPA reviewed the industry's compliance costs (e.g., revenue, 

consumer costs, capital expenditures, operation costs, etc.) based on data provided for the 

Regulatory Impact Analysis (RIA). EPA also reviewed all the health and environmental 

benefits, including those that "are impossible, to quantify or monetize, but are no less real than 

any other advantage of regulation."6 

Despite the MATS rule's overwhelming public health benefits, former-Administrator Scott Pruitt 

announced in 2017 that EPA would reconsider the Apri\20 16 MATS Supplemental Finding. 

OMB's Regulatory Review Dashboard shows that your office is currently reviewing EPA's 

proposal to reconsider those determinations. 7 Based on public comments made by EPA 

Assistant Administrator Wehrurn-both when he was a private citizen representing clients that 

opposed the MATS rule and supported a reconsideration of the MATS Supplemental Finding, 

and now in his official capacity at EP A-1 believe the agency has decided to make a legal 

finding that it is no longer appropriate and necessary to regulate power plant air toxic emissions. 

Further, Mr. Wehrum's comments suggest that EPA is making such a finding based on a limited 

view of the benefits from the MATS rule. It is my understanding that EPA has determined that it 

will only consider quantifiable costs and benefits of reducing hazardous air pollutants, not all the 

actual benefits. If true, this blatant attempt to undermine the MATS rule would contradict 

longstanding EPA practice, OMB requirements, Congressional intent, and common sense. 

2 U.S. EPA. 2011. Regulatory Impact Analysis for 1he Final Mercury and Air Taxies Standards. Office of Air 

Quality Planning and Standards, Research Triangle Park, NC. EPA-452/R-11·011, Docket!DNo. EPA-HQ·OAR2009-0234-20 131. 1 Michigan v. E.?. A., 135 S. Ct. 2699, 2711 (2015). 4 Supplemental Finding That it Is Appropriate and Necessary To Regulate Hazardous Air Pollutants from Coal· and 

Oil-Fired Electric Utility Steam Generating Units, 81 Fed. Reg. 24,419 (Apr. 25, 2016). 

' !d. at24,429. 

'Jd. 

'US EPA-OAR, Mercury and Mercury and Air To:xics Standards for Power Plants Residual Risk and Technology 

Review and Cost Review, Regulation Identifier No. 2060-A T99, 

hnps://www .reginfo.gov/publicldo/eAgenda View Rule?publdQ20 181 O&RIN~2060-A T99. 
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EPA should not to turn a blind eye to the societal benefits of the MATS rule that cannot easily be 

reduced to dollars and cents. Economic tools for projecting and estimating costs and benefits are 

always evolving and they work better in some situations than others. For example, EPA has 

good health, exposure, and mortality data that can translate to monetized health benefits for 

criteria air pollutants like ozone and particulate matter. Yet, EPA has struggled for over four 

decades to precisely monetize the health benefits of controlling air toxics such as mercury. EPA 

explains that difficulties in monetizing the health benefits of controlling mercury arise because: 

"the adverse health effects of toxics are often irreversible, not mitigated or eliminated by 

reduction in ongoing exposure, and involve particularly painful and/or protracted disease. 

'Iberefore these effects are not readily studied and quantified in human clinical studies, in 

contrast to, for example, ambient ozone."8 

Congress, EPA, and OMB have long recognized that if EPA cannot quantify the benefits that 

does not mean those benefits do not exist. When Congress wrote and passed the 1990 Clean Air 

Amendments-including Section 112(n}--there were few, if any, quantifiable data available on 

cancer risks of air toxics and no quantifiable data whatsoever available for non-cancer risks, like 

birth and neurological defects. 9 Despite the lack of quantifiable benefits, Congress still found it 

necessary to require EPA to pursue robust regulations to address major sources of air toxics 

emissions. At the same time, Congress indicated that it was well aware of the limitations of 

relying exclusively on cost-benefit analyses when assessing air toxics, stating: "[T]he public 

health consequences of substances which express their toxic potential only after long periods of 

chronic exposure will not be given sufficient weight in the regulatory process when they must be 

balanced against the present day costs of pollution control and its other economic 

consequences." 10 Based on this legislative history, it is clear Congress did not intend for EPA to 

ignore public health benefits that could not quantified into dollars when determining if it is 

"appropriate and necessary" to regulate power plant air toxic emissions. Congress also did not 

intend for EPA to ignore co-benefits that can be monetized. 

The scientific information critical to determining the monetized value of reducing air toxic 

pollution is still limited. This has resulted in some of the most important benefits (including 

reduced incidents of birth defects and cancer) not being able to be quantified in EPA's costbenefit analyses for air toxic rules. In 2003, then-EPA Assistant Administrator for Air and 

Radiation Jeff Holmstead testified before the House Energy and Commerce Committee on the 

difficulty of quantifying the benefits of reducing air toxic emissions from power plants, saying: 

"These estimates [for Clear Skies] do not include the many additional benefits that cannot 

currently be monetized but are likely to be significant, such as human health benefits from 

reduced risk of mercury emissions, and ecological benefits from improvements in the health of 

our forests, lakes, and coastal waters."11 

'U.S. EPA. 1997. The Benefits and Costs ofthe Clean Air ACI, 1970 to 1990, EPA Report to Congress. O.IJice of Air 

Quality Planning and Standards, Research Triangle Park, NC. EPA-41 0/R-97·002, 

https:llwww .epa,govlsites/production!files/20 17-09/documents/ee-029 5 _ all.pdf. 

' Legislative History 1990 Clean Air Act Amendments, H.Rept 101-490 Part I, lOist Congress (1989-1990). 10 Legislative History 1990 Clean Air Act Amendments, S.Rept 10 1·228, I Olst Congress (1989-1990). 

11 Statement of EPA Assistant Administrator JeffHolmstead, Hearing Before the U.S. House of Representatives 

Energy and Air Quality Subcomminee ofthe House Energy and Commerce Comminee entitled "The Clear Skies 
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EPA has tried to bridge the air toxic data gaps through various stakeholder workshops over the 

years. The latest workshop in 2009 concluded that monetizing all air toxic benefits is still not 

possible, making a cost-benefit analysis "difficult" to do for any action involving hazardous air 

pollutants: "[F) or many chemicals on the [Clean Air Act hazardous air pollutant] list, the 

information on potential health effects is so limited that quantitative benefits analysis is not 

feasible ... This lack of information is in contrast to the criteria air pollutants for which there is 

extensive human exposure or epidemiological data on the health effects at ambient-exposure 

levels ... characterizing the health effects of air taxies at ambient levels can be subject to a very 

high level of uncertainty; thus, using these health effects in economic benefits assessment is 

difficult." 12 

Fortunately, OMB has long-recognized the constraints of using cost-benefit analysis when 

evaluating a rule, especially when it is difficult to quantify benefits. That is why OMB's 2003 

Circular A4 requires EPA and other agencies to conduct a complete regulatory analysis that 

"includes a discussion of non-quantified as well as quantified benefits and costs. When there are 

important nonmonetary values at stake, you should also identify them in your analysis so 

policymakers can compare them with the monetary benefits and costs." 13 In addition, OMB 

clarifies in Circular A-4 that all ancillary benefits should be counted in any rule analysis, 

directing agencies to "look beyond the direct benefits and direct costs of your rulemaking and 

consider any important ancillary benefits and countervailing risks. An ancillary benefit is a 

favorable impact of the rule that is typically unrelated or secondary to the statutory purpose of 

the rulemaking." OMB also states that when agency personnel "can estimate the monetary value 

of some but not all of the ancillary benefits of a regulation, but cannot assign a monetary value to 

the primary measure of effectiveness, you should subtract the monetary estimate of the ancillary 

benefits from the gross cost estimate to yield an estimated net cost," 14 

For decades, and in multiple Administrations, EPA has followed OMB's direction by providing a 

robust record of all the quantifiable and qualitative data for air toxic rules. The Congressional 

Research Service has found that, since January l, 2000, EPA has issued at least thirty-two 

Regulatory Impact Analyses (RlAs) for rules that involve regulating air toxics under Section 

112(d) of the Clean Air Act, including the MATS rule. None of these thirty-two RlAs fully 

quantified the direct benefits of reducing hazardous air pollutants, yet the rules discuss benefits 

that cannot be quantified as important justifications for reducing the toxic emissionsparticularly those regarding critical health benefits. For the MATS rule specifically, EPA 

concluded "there are some costs and important benefits that EPA could not monetize, such as 

other mercury reduction benefits and those for the [hazardous air pollutants] other than mercury 

Initiative: A Mulitpollutant Approach to the Clean Air Act,'' (July 8, 2003), 

https;/larchive.epa.gov/ocir/hearingsltestimonyl l 08 _ 2003 _ 2004/weblpdf/2003 _ 0708 jh.pdf. 

"Gwinn et al, "Meeting Report: Estimating the Benefits of Reducing Hazardous Air Pollutants-Summary of2009 

Workshop and Future Considerations," Environ Health Per.pectives. 2011 Jan; 119(!): 125-130, 

https:llwww .ncbi .nlm. nih. gov/pmc/articles/PMC30 I 84 911. 

" 68 FR 58366. 14 /d 

4 
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being reduced by this final rule. Upon considering these limitations and uncertainties, it remains 

clear that the benefits of the MATS are substantial and far outweigh the costs."15 

In these thirty-two R!As, EPA also provided monetized ancillary benefits, sometimes referred to 

as "co-benefits." These co-benefits included the dollar value of lives saved and other health 

benefits from the reduction of sulfur dioxide and ozone pollution that occurs along with-and 

often as a result of-the reduction of air toxics. EPA found that the quantified ancillary benefits 

forMA TS·are significant, up to $90 billion in benefits per year. 

Based on all the health and scientific data, Congressional intent, and historical justification and 

precedent, it just does not make sense for EPA to change course regarding the consideration of 

non-quantifiable benefits in its Supplemental Finding forMATS. No judicial or legislative 

directive requires this willful blindness to the public health consequences of EPA's proposal. 

This decision is especially peculiar given that MATS is resulting in faster and significantly more 

cost-effective public health benefits than EPA initially predicted in 2011. On July 10,2018, 

every major electrical utility trade organization representing coal-fired and other utilities joined 

with labor organizations in a letter to EPA that confirmed our power plants have already 

"reduced mercury emissions by nearly 90 percent over the past decade." 16 These reductions are 

in large part due to the investments that were made to comply with MATS--investments that 

turned out to be about one-quarter the costs EPA conservatively predicted. The utilities and 

labor organizations explained that industry compliance with the MATS rule was easier than first 

estimated, stating that today "all covered plants have implemented the regulation [MATS] and that 

pollution controls-where needed-are installed and operating." 17 The letter went on to cite the 

importance of regulatory certainty given all the investments made to meet the MATS rule and 

asked EPA to "leave the underlying MATS rule in place and effective." 18 

My hope is that OMB will ensure that EPA follows Congressional intent under the Clean Air Act 

when it comes to determining ifit is "appropriate and necessary" to regulate air toxic emissions 

from power plants. If EPA looks at all the actual benefits and updated costs of this rule instead 

of persisting in its tortured effort to re-define its own legal authority and responsibility, there is 

no reasonable conclusion other than that it is appropriate and necessary to regulate these 

dangerous power plant emissions under Section 112 of the Clean Air Act. I echo the call of 

health and environmental groups, states and the business community: Keep the entirety of the 

MATS rule in place. 

"U.S. EPA. 2011. Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards. Office of Air 

Quality Planning and Standards, Researoh Triangle Park, NC. EPA-452/R-11·0 ll. Docket lD No. EPA-HQ·OAR2009-0234-20 I 3 I. 

"Letter to USEPA Assistant Administrator of Office of Air and Radiation William Wehrum &om The Edison 

ElectTic lnstitute, The American Public Power Association, The National Rural Electric Cooperative Association. 

The Clean Energy Group, The Ct .. s of'85 Regulatory Response Group The International Brotherhood of Electrical 

Workers The International Brotherhood of Boilem1akern, Iron Ship Builders, Blaoksmiths, Forgers & Helpers, July 

I 0, 20 18, can be found at https;l/www.eenews.net/assets/20 18107/ll/document_gw _ 04.pdf. Hereafter "201 8 

Industry Letter to EPA." 

"Id. 

18 ld 
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I thank you for your prompt attention to this matter. If you or your staff have questions about 

this letter, your staff is encouraged to contact Laura Gillam of my Environment and Public 

Works Committee staff at laura gillam@epw.senate.gov. 

With best personal regards, I am, 

Sincerely yours, 

~~ Tom Carper 

Ranking Memb r 

6 
876 

Senator CARPER. Thank you. 

Mr. Chairman, I ask unanimous consent to submit for the record 

a variety of materials. They include news articles, letters from 

stakeholders and other materials relating to Mr. Wheeler’s time as 

EPA Acting Administrator. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

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12126/2018 Trump Administration Prepares a Major Weakening of Mercury Emissions Rules w The New York Times 

~be Nctu !fork ~hncs 

Trump Administration Prepares a Major 

weakening of Mercury Emissions Rules 

~ By Conll Davenport 

Sept. 30, 2018 

Want climate news in your in box? Sign up here for Climate Fwd:, our email newsletter. 

The Trump administration has completed a detailed legal proposal to dramatically weaken a 

major environmental regulation covering mercury, a toxic chemical emitted from coal-burning 

power plants, according to a person who has seen the document but is not authorized to speak 

publicly about it. 

The proposal would not eliminate the mercury regulation entirely, but it is designed to put in 

place the legal justification for the Trump administration to weaken it and several other pollution 

rules, while setting the stage for a possible full repeal of the rule. 

Andrew Wheeler, a former coal lobbyist who is now the acting administrator of the 

Environmental Protection Agency, is expected in the coming days to send the proposal to the 

White House for approval. 

The move is the latest, and one of the most significant, in the Trump administration's steady 

march of rollbacks of Obama-era health and environmental regulations on polluting industries, 

particularly coal. The weakening of the mercury rule - which the E.P.A. considers the most 

expensive clean air regulation ever put forth in terms of annual cost to industry - would 

represent a major victory for the coal industry. Mercury is known to damage the nervous systems 

of children and fetuses. 

The details of the rollback about to be proposed would also represent a victory for Mr. Wheeler's 

former boss, Robert E. Murray, the chief executive of the Murray Energy Corporation, one of the 

nation's largest coal companies. Mr. Murray, who was a major donor to President Trump's 

inauguration fund, personally requested the rollback of the mercury rule soon after Mr. Trump 

took office, in a written "wish list" he handed to Energy Secretary Rick Perry, 

The proposal would also hand a victory to the former clients of William Wehrum, the E.P.A.'s top 

clean air official and the chief author of the plan. Mr. Wehrum worked for years as a lawyer for 

companies that run coal-fired power plants, and that have long sought such a change. 

A spokesman for the E.P.A. did not respond to a request for comment. 

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12/26/2018 Trump Administration Prepares a Major Weakening of Mercury Emissions Rules· The New York Times 

The proposal also highlights a key environmental opinion of Judge Brett Kavanaugh, the 

embattled Supreme Court nominee, whose nomination hearings have gripped the nation in recent 

days. 

The coal industry initially sued to roll back the mercury regulation, and in 2014 its case lost in the 

United States Court of Appeals for the District of Columbia Circuit. However, Judge Kavanaugh 

wrote the dissenting opinion in that case, highlighting questions about the rule's cost to industry. 

Should the legal battle over the proposed regulatory rollback go before the Supreme Court, some 

observers expect that Judge Kavanaugh, if elevated to a seat on the high court, would side with 

the coal industry. 

Specifically, the new Trump administration proposal would repeal a 2011 finding made by the 

E.P.A. that when the federal government regulates toxic pollution such as mercury from coal-fired 

power plants, it must also, when considering the cost to industry of that rule, take into account 

the additional health benefits of reducing other pollutants as a side effect of implementing the 

regulation. Under the mercury program, the economic benefits of those health effects, known as 

"co-benefits," helped to provide a legal and economic justification for the cost to industry of the 

regulation. 

For example, as the nation's power plants have complied with rule by installing technology to 

reduce emissions of mercury, they also created the side benefit of reducing pollution of soot and 

nitrogen oxide, pollutants linked to asthma and lung disease. 

The Obama administration estimated that it would cost the electric utility industry an estimated 

$9.6 billion a year to install that mercury control technology, making it the most expensive clean 

air regulation ever put forth by the federal government. It found that reducing mercury brings up 

to $6 million annually in health benefits- a high number, but not as high as the cost to industry. 

However, it further justified the regulation by citing an additional $80 billion in health benefits 

from the additional reduction in soot and nitrogen oxide that occur as a side effect of controlling 

mercury. 

The new proposal directs the E.P.A. to no longer take into account those "co-benefits" when 

considering the economic impact of a regulation. 

Should the proposal become final, it would mean that the mercury rule would, on paper, incur far 

greater economic cost than it would provide quantifiable health benefits. The Trump 

administration would then be legally justified in weakening the rule. 

And that change could also give companies like Murray Energy a legal justification to sue for its 

deletion entirely, while giving the E.P.A. the legal basis to craft weaker pollution regulations that 

no longer take into account the co-benefits of eliminating additional pollutants. 

https:/lwww.nytimes.com/2018/09/30/c!imateJepa-trump-mercury-rule.htm! 213 
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12126/2018 Trump Administration Prepares a Major Weakening of Mercury Emissions Rules~ The New York Times 

"This is a sweeping attack on considering the benefits of cutting hazardous pollution from coal 

plants;• said John Walke, a legal expert on the Clean Air Act with the Natural Resources Defense 

Council, an advocacy group that expects to take a lead role in the legal effort to uphold the 

mercury standard: "This is the first legal step toward eliminating the standard entirely!' 

A spokesman for Murray Energy cheered the expected move. 

"E.P.A!s proposal to revisit the outsized role that so-called 'co-benefits' play in the cost-benefit 

analyses used to justify costly regulations targeting pollutants such as mercury is appropriate 

and long overdue;• wrote the spokesman, Cody Nett, in an email. He said the process is "nothing 

less than double-counting;• since the E.P.A. already controls pollutants such as soot and nitrogen 

oxide in other regulations. He also called on the E.P.A. to review what he called "the questionable 

scientific foundation" for calculating the co-benefits. 

Supporters and opponents of the proposal believe that the Supreme Court is likely to uphold it, 

particularly if Judge Kavanaugh is confirmed. In his 2014 dissent to the mercury ruling, he wrote, 

"The benefits of this rule are disputed!' He added: "Industry petitioners focus on the reduction in 

hazardous air pollutant emissions attributable to the regulations, which amount to only $4 to $6 

million dollars each year. If those figures are right, the rule costs nearly $1,500 for every $1 of 

health and environmental benefit produced." 

The following year, in a decision that echoed Judge Kavanaugh's dissent, the Supreme Court 

blocked the Obama-era mercury rule, ordering the E.P.A. to conduct a new cost analysis. The 

Obama administration did so, and ultimately reinstated the rule in 2016. 

Murray Energy then sued to block it, but last year, the E.P.A.'s administrator at the time 

successfully petitioned the United States Circuit Court of Appeals of the District of Columbia to 

delay the oral arguments for that case, as the Trump administration sought to rewrite the rule 

entirely. 

For more news on climate and the environment, follow @NYTCiimate on Twitter. 

Correction: October 1, 2018 

An earlier version of this article stated incorrectly the initial estimate of health benefits from the 

mercury rule. The Obama administration estimated those benefits to be worth $6 million per year, 

not $6 billion. 

Coral Davenport covers energy and environmental policy, with a focus on climate change, from the 

Washington bureau. She joined The Times in 2013 and previously worked at Congressional Quarterly, Politico 

and National Journal. @CoraiMDavenport • Facebook 

A version of this article appears in print on Oct. 1, 2018, on Page A13 of the New York edition wlth the headline: Trump Prepares Major Weakening 

of Mercury Rules 

https://www.nytimes.comf2018!09!30fclimate/epa~trump-mercury-rule.html 313 
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[;.7he Washington Post 

Energy and Environment 

In rollback of mercury rule, Trump could revamp how government 

values human health 

Companies also would no longer have to consider additional health 

benefits from air regulation. 

By Juliet Eilperin and 

Brady Dennis 

October 1 

The Trump administration wants to change federal rulemaking in a way that could make it easier to allow the 

release of harmful substances into the atmosphere. 

It's making the case with mercury, a powerful neurotoxin that can damage the brains of infants and young 

children. In a proposal sent to the White House on Friday, the Environmental Protection Agency suggested 

recalculating the costs and benefits of a 2011 rule to limit mercury from coal plants, in part by questioning 

whether it was justified in the first place. 

The shift is part of a broader effort to narrow what the government counts as benefits when crafting air rules. If 

adopted, the change would prevent the office from calculating positive health effects-- known as "co-benefits"-

- that come from reducing pollutants other than those being targeted. 

Under President Barack Obama, the EPA estimated that it would cost utilities $g.6 billion a year to comply 

with the new standards, while limiting mercury would translate into merely $6 million in public health 

benefits. But the EPA estimated at the time that the soot and nitrogen oxide reductions that would accompany 

cuts to mercury pollution would save between $37 billion to $90 billion in annual health costs and lost 

workdays by preventing as many as 11,000 premature deaths and 4,700 heart attacks. 

But under President Trump, the EPA has published proposals to loosen carbon dioxide limits on power plants, 

arguing that it was inappropriate to count "co-benefits" such as having less soot in the air. And in a proposed 

rollback last month of a rule aimed at curbing leaks of hydrofluorocarbons, a potent greenhouse gas, the 

administration eliminated language in its analysis saying that children, elderly and the poor "are most 

vulnerable to climate-related health effects." 

In an interview Monday, acting Administrator Andrew Wheeler said the EPA is focused on producing analyses 

that capture the specific impact of a rule -- in this case, mercury-- rather than the accompanying benefits that 

stem from installing new pollution controls on equipment. 
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"I just think it's a little fuzzy math when you say, 'Reduce mercury and we have all these other benefits over 

here,' as the shiny object," Wheeler said, adding that the agency could still consider other benefits but should 

categorize them separately. 

If enacted, the new approach could reverberate far beyond this single rule. Previous administrations have 

repeatedly incorporated the benefits of cutting fine-particulate matter and smog-forming pollutants into their 

calculations when imposing limits on other emissions such as carbon dioxide. Reducing soot and contributors 

to smog often produce much bigger health benefits than curbs on greenhouse gas emissions linked to climate 

change, for example, because these traditional pollutants contribute to heart and lung disease. 

John Walke, a clean-air lawyer at the advocacy group Natural Resources Defense Council, said in an email that 

Wheeler and Bill Wehrum, the head of the EPA's air office, are seeking to exclude legitimate health benefits 

that stem from limiting toxins in the air. 

"The fraudulent denial of real-world benefits from clean air and climate safeguards is the unholy grail of EPA 

haters and polluting industry lobbyists," Walke said. 

Details of the rule were first reported by the New York Times. 

Jeff Holmstead, who was head of the EPA's air and radiation office under President George W. Bush and now 

represents some energy firms, said the Mercury and Air Taxies Standards represented the "most egregious" 

example of the Obama administration relying on incidental benefits to argue that a regulation was cost 

effective. "Really, all they are doing is saying that EPA has to live within the statutory framework that Congress 

established,'' Holmstead said. 

Wheeler defended the administration's approach to public health during an event at EPA headquarters Monday 

celebrating Children's Health Day. "We are here to highlight the many ways the EPA is helping to protect 

children where they live, where they learn and where they play,'' he said, standing in front of a school bus with 

a cleaner diesel engine funded in part through an agency grant. 

When reporters questioned Wheeler about whether some of the administration's recent proposals would harm 

children's health, he responded that the EPA had not changed the nation's overall air quality standards. "We 

have a criticism with the way the Obama administration tried to calculate their benefits," he said. 

In a separate policy proposal last month, the EPA suggested reversing an Obama rule limiting the release of 

hydrofluorocarbons from large refrigerating and air-conditioning units. Documents posted in the Federal 

Register show that a section detailing how climate change would disproportionately hurt young people, seniors 

and the poor was cut from the proposed rule after undergoing a White House review. 

"EPA is refusing to be transparent about the true costs of climate change, particularly to vulnerable populations 

like children," said Amit Narang, regulatory policy advocate at Public Citizen. 
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Coal-fired power plants are the single biggest emitter of mercury, which can cause brain damage in young 

children. Over time, these emissions also build up in fish, whose elevated levels of mercury are absorbed by 

people who eat them. 

Congress gave the EPA the authority in the 1990s to regulate the toxic metals that are the byproduct of burning 

coal- a list that also includes arsenic, nickel and selenium - but it took the agency years to develop a 

standard. 

In 2015, the Supreme Court dealt a major blow to the Obama administration's efforts, saying U.S. officials 

failed to properly consider economic costs. The court, in a 5-to-4 decision, remanded the rule back to the U.S. 

Court of Appeals for the D.C. Circuit with instructions that it should be sent back to the EPA in light ofthis 

cost-benefit analysis. In response, the EPA in April 2016 issued a final analysis detailing how the rule's benefits 

outweighed its costs. That finding became the subject of litigation. 

Last spring, the EPA asked a federal court to delay a case challenging the rule brought by 15 states and several 

companies. Wheeler said the new rule aims to address the Supreme Court's critique of the previous 

administration's approach. 

The nation's largest utility trade association, Edison Electric Institute, urged the EPA in July to leave the 

mercury rule "in place and effective" because the industry had already installed the required pollution controls. 

EEl estimates that the industry has spent $18 billion over the past five years, an average of $3.6 billion a year, 

installing scrubbers to capture toxic chemicals that otherwise would have been released into the air. 

Industry groups such as the National Mining Association said the rule has already caused the closure of dozens 

of coal-fired power plants across the country. 

Juliet Ellperln 

Juliet Ellperin is The Washington Post's senior national affairs correspondent, covering how the new administration is 

transforming a range of U.S. policies and the federal government itself. She is the author of two books- one on sharks and 

another on Congress, not to be confused with each other- and has worked for The Post since 1998. Follow W 

Brady Dennis 

Brady Dennis is a national reporter for The Washington Post, focusing on the environment and public health issues. He 

previously spent years covering the nation's economy. Dennis was a finalist for the 2009 Pulitzer Prize for a series of 

explanatory stories about the global financial crisis. Follow W 

The story must be told. Your subscription supports journalism that matters. 

for 
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1/2212019 EPA still hasn't acted a year after proposing ban on deadly chemical methylene chloride~ CBS News 

CBS NEWS December 27,2018, 7:36A..M" 

EPA still hasn't acted nearly two 

years after proposing ban on 

deadly chemical methylene 

chloride 

Many of America's largest retailers, including Amazon, are planning to stop sellingall paint 

stripping products containing methylene chloride. Fifty-six people have died since 1980 from 

exposure to paint strippers containing the chemical and although the EPA proposed banning it 

in 2017, the agency has yet to take action. 

CBS News correspondent Anna Werner has been investigating this story for the past year, 

reporting on three young men who died while using products made with methylene chloride 

since April 2017, and on a new, safer formula that's expected to be on the market in the U.S. 

soon. 

This Christmas wasn't the same for Lauren Atkins. Last February, her 31-year-old son Joshua 

died while using paint stripper in a bathroom to refinish the fork from his BMX bike. 

"He had a smile that lit the sky. He was very generous. He was very kindhearted," Atkins said. "I 

went up and knocked on the door and he didn't respond. So I opened the door and I found him." 

Joshua had been gone for several hours. 

"I was heartbroken because none ofthese deaths needed to occur. All of these were preventable," 

Lauren said. 

Joshua joined victims Kevin Hartley and Drew Wynne, who both died in 2017 --all young men 

who lost their lives using common strippers containing methylene chloride. 

The chemical is so dangerous the EPA's own scientists decided it should be banned for all 

consumer and most professional uses, saying it posed an "unreasonable risk." But that was a 

year ago and the EPA still hasn't taken action. So Lauren Atkins and the other mothers plan to 

sue the agency next month. 

https:/frNww.cbsnews.com/news/epa-sti!l~hasnt-acted~2~years-after-proposing-ban-.on-deadly-chemical-methylene-chloride/ 112 
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1122/2019 EPA still hasn't acted a ye-ar after proposing ban on deadly chemical methylene chloride· CBS News 

"We've banded together and we're going to continue to be together until our voices are heard 

and until this is off the shelves," Lauren said. 

The Environmental Defense Fund's Richard Dennison said those deaths were avoidable and the 

EPA must do more. 

"It can't cut corners, It can't start creating loopholes that allow the industry to escape the intent 

ofthis rule, which is to ban these uses and protect consumers as well as workers. We are 

concerned that one corner they might cut is to try to exempt from this ban commercial uses of 

these chemicals," Dennison said. 

But some aren't waiting for the government to act. Scientists at the University of Massachusetts 

Taxies Use Reduction Institute developed an alternative they say is safer and works just as well, 

and a Canadian company has announced it's producing a new product using that alternative 

formulation. 

"The goal is to have it available in every major hardware paint and retail chain in the United 

States, Canada, and Mexico ... we feel it's a great option to have on the shelves of every retailer," 

said Greg Morose, a researcher at the institute, earlier this year. 

In addition, major chains including Lowe's, Home Depot, Walmart and online retailer Amazon 

now say they will begin phasing out methylene chloride-based strippers by the end of the year. 

The changes should save lives 

The primary manufacturer of the strippers with methylene chloride has been critical ofthe 

researchers' new alternative in the past. They point out it's flammable and say it too is toxic. 

The researchers said the solvents in their formulation don't, "cause immediate death from high 

exposures" like methylene chloride can and that alone, they said, makes the new product much 

less hazardous. That product is expected to hit store shelves in the U.S. any day. 

© 2018 CBS Interactive Inc. All Rights Reserved. 

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1/22/2019 The Energy 202: This mother was onc:B 'optimistic' EPA would ban a cllemical that killed her son. Now she's suing.~ The Washington Post 

The Energy 202: This mother 

was once 'optimistic' EPA 

would han a chemical that 

killed her son. Now she's . SUing. 

By Dino Grandoni 

January 15 

THE LIGHTBULB 

Kevin Hartley died in 2017 while working in Nashville, Tenn. on refinishing a bathtub. His mother Wendy is 

now lobbying the En"ironmental Protection Agency to fully ban a chemical called methylene chloride 

contained in a paint stripper used by her son. (Courtesy of Safer Chemicals Healthy Families) 

Wendy Hartley says she was once "cautiously optimistic" that 

the Environmental Protection Agency would ban several uses of 

a toxic chemical that killed her 21-year-old son. Now she's a part 

of a lawsuit suing the agency to make sure that happens. 

Hartley met with then-Environmental Protection Agency 

Administrator Scott Pruitt in May to discuss the death of her 
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1/22/2019 The Energy 202: This mother was once 'optimistic' EPA would ban a chemical that killed her son. Now she's suing.· The Washmgton Post 

son Kevin Hartley, a trained contractor who died in 2017 from 

exposure to the fumes of a paint stripper while refinishing a 

bathtub. Though the EPA under President Trump had 

once postponed banning some uses of methylene 

chloride in paint stripper, Hartley says she and other 

environmental advocates thought Pruitt was "receptive to what 

we had to say." 

A day after their meeting, the EPA announced it "intends to 

finalize" a ban originally proposed under President Barack Obama. A 

week after that, Pruitt reiterated that pledge during a Senate hearing. 

ADVERTISING 

But now, optimism about getting a nearly full ban of the use of 

the chemical has evaporated. 

Hartley is one of two mothers of men dead from 

airborne exposure to the toxic compound who are now suing the 

EPA to keep that promise. They teamed up with the advocacy 

groups Safer Chemicals Healthy Families and Vermont Public 

Interest Research Group to file lawsuit in the U.S. District Court 

in Vermont to file suit on Monday. 

https:/f.Nv.N./.washingtonpost.com/news/powerposVpalomafthe-energy·202!2019101/15/the·energy-202·this-mother-was-once·optimlstio-epa·would-ban... 2/5 
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1122/2019 The Energy 202: This mother was once 'optimistic' EPA would ban a Chemical tnat kll!ed ller son. Now she's suing.~ The 1./1/ashington Post 

Promise or no promise, they argue the EPA is obligated under 

law to restrict the use of any chemical its scientists find to cause 

an unreasonable risk of harm to human health. Agency 

researchers during the Obama administration determined that it 

was too dangerous for do-it-yourselfers and most professional 

contractors to remove paint with products containing methylene 

chloride. The EPA found 49 people in the United States died 

of exposure to methylene chloride during paint and coating 

removal between 1976 and 2016. 

The lawsuit follows a decision in December by the EPA to move 

forward with banning the chemical's use by regular consumers 

but still allow commercial operators to continue using the 

product as long as they underwent training. 

That exception was too much for public-health advocates who 

were seeking- and felt they had been promised by Pruitt - a 

more comprehensive ban. 

"It's very much a breach of trust," said Liz Hitchcock, director of 

Safer Chemicals Healthy Families. 

But the EPA leader who made that commitment is no longer in 

charge. Since July, acting chief Andrew Wheeler had led the 

agency after the White House forced Pruitt to resign amid 

numerous ethics investigations. 

https://www.washingtonpost.com/newslpowerpostrpalomatthe~energy~202/2019/01/15/the~energy-202-this-mother-was-once-optimisllc-epa-would·ban... 3/5 
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1122/2019 The Energy 202: This mather was once 'optimistic' EPA would ban a chemical that ~il!ed her son. Now she's suing.- The Washington Post 

Safer Chemicals requested a meeting with Wheeler shortly after 

he was named acting administrator, but was offered time with 

one of his staffers. A meeting ultimately did not transpire 

because of scheduling issues. Separately, the Environmental 

Defense Fund, which helped coordinate the original meeting 

between Pruitt and the families, said it also asked in July to 

arrange a meeting between Wheeler and some of the mothers, 

but was not offered one. 

"Acting Administrator Wheeler appreciates EDF reaching out on 

the regulation and for their help arranging a meeting with family 

members, and we look forward to continuing to work with EDF 

on both," EPA spokesman John Konkus wrote by email. 

Wheeler was nominated this month by Trump to head the 

agency on a long-term basis. His confirmation hearing 

Wednesday is shaping up to be more contested than 

once thought, because the acting chief has pursued several of the 

most controversial policies adopted under Pruitt. 

"After Scott Pruitt's destructive tenure, I urged Andrew Wheeler 

to right the ship at @EPA," tweeted Sen. Thomas R. Carper (DDel.), the top Democrat on the Senate Environment and Public 

Works Committee. "But on issue after issue, he has kept the 

agency hurdling down a dangerous path, putting public health at 

risk." 

https:/tww.v,washlngtanpost.com/news/powerposUpalomafthe-energy-202f2019/01115/the-energy-202-this-mother-was-once-optlmis!ic-epa-would-ban.. 4/5 
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1122/2019 The Energy 202: This mother was once 'optimistic' EPA would ban a chemical that killed her son_ Now she's suing.· The Washington Post 

The EPA's slow-footed response toward the paint-stripping 

compound stands in contrast that of home improvement stores 

such as Lowe's and Home Depot, which voluntarily decided to 

discontinue selling paint strippers containing the chemical. 

That holdup has come at a cost. Since the Obama 

administration originally proposed banning consumer and most 

commercial uses of the chemical, at least three people in 

addition to Kevin Hartley died of breathing in methylene 

chloride fumes, according to media reports. 

Part of the delay may come from the fact that the Defense 

Department has lobbied to carve out an exemption for the toxic 

chemical's commercial use, The Post's Juliet Eilperin and Brady 

Dennis reported last week. 

Manufacturers of methylene chloride have also publicly pressed 

the EPA to stop short of a full ban. Wendy Hartley foresees a 

long court fight because of the influence of chemical makers. 

"''m pretty sure that they're going to drag this out," she said, 

"because that's what the chemical industry wants." 

https:l/www.washingtonpost.com/news/powerposUpalomatthe-energy-202/2019/01!15/lhe-energy-202-this-mother-was-once-optimistic-epa-would-ban... 515 
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i/1512019 'Not a problem you can run <:~way from': Communities confront the threat of unregulated chemicals in their drinking water~ The Washingto .. 

'Not a problem you can run 

away from'!: Communities 

confront the threat of 

unregulated chemicals in their 

drinking water 

·rt,~=!rf ;!f:~i!I:L=:'!r m*~r.!;~!!= :!;;'; .~;;~r"~~ '*"~*!; ;,'; ;!¢:.,';§!:!· !!:!';!¥~ !!'.;;;~!;;:; ·~ffili! :!!;.~~!l:r ~~ !"'!;P:ffi~!F;;:L ~;t.!b 

where she and her family live. She recently traveled to Washington for a Senate hearing on the 

chemicals Involved. {David KasnlcjFor The WMhlngton Post) 

By Brady Dennis 

January 2 

PARCHMENT, Mich. -The day this small town told its residents 

to stop drinking the water, life on Glendale Boulevard turned 

from quiet to alarming. 

One couple decided to immediately put their house up for sale. 

Another fretted over their young son and the baby who would 
891 


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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water- The Washingto 

soon arrive. And up the street, one mom felt a rising indignation 

that would turn her into an activist to ban chemicals 

contaminating her family's drinking water-- and that of millions 

of other Americans. 

That late July day, this town along the banks of the Kalamazoo 

River became the latest community affected by a ubiquitous class 

of compounds known as polyfluoroalkyl and perfluoroalkyl 

substances, or PFAS. For years, calls for the federal government 

to regulate the chemicals have been unsuccessful, and last year 

the Trump administration tried to block publication of a study 

urging a much lower threshold of exposure. 

ADVERTISING 

The man-made chemicals have long been used in a wide range of 

consumer products, including nonstick cookware, water-repellent 

fabrics and grease-resistant paper products, as well as in 

firefighting foams. But exposures have been associated with an 

array of health problems, among them thyroid disease, weakened 

immunity, infertility risks and certain cancers. The compounds do 

not break down in the environment. 

https:!tw.vw.washingtonpost.comlnational!health-s.cience/not-a-problem-you-can-run-away-from-commun!ties-confronMhe-threat-of-unregulated-che... 2/12 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water- The Washingto 

In Parchment, where they were once used by a long-shuttered 

paper mill, tests found PFAS levels in the water system in excess 

of 1,500 parts per trillion- more than 20 times the 

Environmental Protection Agency's recommended lifetime 

exposure limit of 70 parts per trillion. 

Local officials promptly alerted residents. Michigan officials 

declared a state of emergency. People started picking up free cases 

of bottled water at the high school. Within weeks, the town 

abandoned the municipal wells that had served 3,000 people 

and began getting water from nearby Kalamazoo. 

"This is not a problem you can run away from," said Parchment 

resident Tammy Cooper, who has become an outspoken advocate 

for better regulation. "There are Parchments across the country." 

https:/!W#IN.washingtonpost.comlnational/hea!th-science/not-a-prob!em-you-<:an-run~away·from-communities-confront-ttle-threat-of-unregu!ated-che... 3112 
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Not a problen1 you can run away from Corrm!Ur:!!1es confront t~1e 1llre<~t of unregulated chemicals m the!r ctrmkmg water~ fhe Wash1ngto 

Tammy Cooper sits with her 3-year·old daughter, Wli<~n, at their Parchment home. {David 

Kasnlc/For The Washington Post) 

A themed home along Riverview Drive, the town's 

main road. {David Kasnic/For The Washington 

Post} 

A shuttered paper mill is a suspected souree of 

the water contamlnation. (David KasnicjFor The 

Washington Post) 

Harvard Unh-ersity researchers say public drinking-water 

supplies serving more than 6 million have tested for 
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1/15/2019 'Not a problem you carr run away from': Communities confront the threat of unregulated chemicals in their drinking water~ The \'Vashingto .. 

experts argue should be far lower to safeguard public health. The 

level is only an agency guideline;the federal government does not 

regulate PFAS. 

The compounds' presence has rattled communities from Hoosick 

Falls, N.Y., to Tucson. They have been particularly prevalent on or 

near military bases, which have long used PFAS-laden foams in 

training exercises. 

Both houses of Congress held hearings on the problem last year, 

and lawmakers introduced bills to compel the government to test 

for PFAS chemicals nationwide and to respond wherever water 

and soil polluted by them are found. In late November, the head 

ofthe EPA vowed that the agency would soon unveil a "national 

strategy" to address the situation. 

Affected communities are still waiting. 

"There are some very real human impacts from this stuff," said 

Erik Olson, a drinking-water expert for the Natural Resources 

Defense Council. "Most people have no idea they are being 

exposed." 

Michigan is one of the few states where officials are trying to 

determine the extent of PFAS contamination. Health officials 

undertook statewide tests this year across 1,380 public water 

supplies and at more than 400 schools that operate their own 

wells. https://www.washingtonpost.com/national/hea!th-sciencefnot~a-prob!em-you-can-run-away-from-communities-confron!-the-threat·of-unregu!ated-che... 5/12 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water- The Washingto 

"When we look for it, we tend to find it," said Eden Wells, the 

state's chief medical executive. Yet detection raises difficult 

questions, given the lack of regulation involving PFAS in water 

and the evolving research on its long-term health effects. 

"Many of our responses are outstripping the scientific knowledge 

we need," Wells said. 

More is known about two particular types of the chemicals, 

pertluorooctane sulfonate (PFOS) and perfluorooctanoic acid 

(PFOA), which companies phased out years ago amid growing 

evidence that both were ending up in the blood of nearly every 

American. But thousands of other PFAS chemicals remain in use 

- among the many threats, including arsenic and lead, to 

drinking water nationwide. 

"From a policy perspective, what bothers me about all this is there 

are industries everywhere that don't really have to report what 

they are using," said DetlefKnappe, a North Carolina State 

University environmental engineer whose research helped 

identify another PFAS chemical, known as GenX, in Wilmington's 

drinking water supply. "As a class, there are so many compounds 

... and it pops up in the most unexpected places." 

https:/lw.MN.washingtonpost.com/national/hea!th-science/not-a-problem-you-can-run-away-from-communilies-confron!-the-threat-of-unregu!ated-che... 6/12 
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1115/2019 Not a problem you can run away from·. Commw11t1eS confront the threat of unregulated chemicals :n their dnnk.1ng water- Ttl<:! Washmgto 

Post) 

Scooter D's, a popular diner, scrambled to stay 

open during the. town's water crisls. {David 

Kasnlc/For The Washington Post) 

The diner served only canned sodas through the 

summer because lts drink machine was hooked to 

a water line. (David KasnlcjFor The Washington 

Post) 

The Trump administration's focus on the problem has been 

7112 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water- The Wa:shingto 

Politico reported in May that the White House and EPA sought to 

block publication of a federal health study on the nationwide 

effects of PFAS contamination after one administration aide 

warned in an email that it could result in a "public relations 

nightmare." The study from the federal Agency for Toxic 

Substances and Disease Registry, which eventually was released, 

suggested that the EPA's existing, nonenforceable standard is 

inadequate to protect public health and should be much lower. 

The same month, the EPA held a PFAS "summit" with industry 

representatives, public health groups, tribal leaders and officials 

from all levels of government. Then-administrator Scott Pruitt 

pledged action, saying, "There are concerns about these chemicals 

across the country because of their persistence, their durability, 

getting into the environment and impacting communities in an 

adverse way." 

Little has happened since then, however. 

At a hearing in early fall, Sen. Thomas R. Carper (D-Del.) pressed 

the EPA's director of groundwater and drinking water on when 

the agency might announce its plans to regulate the chemicals and 

finalize a drinking-water standard. Peter Grevatt, an agency 

veteran who recently retired, responded that officials were 

continuing to visit communities and develop a long-term 

"management plan." He acknowledged that it could take the 

agency a "number of years" to put enforceable regulations in place 

https:II'IM'W.washingtonpost.comlnationaUhealth-science/not-a-problem.you-can-run-away-from-communities-confront-the-threat-of·unregulated-che... 8112 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water· The Washingto 

-if it determined that the contaminants were surfacing in 

enough water systems to be considered a nationwide health 

concern. 

"Is it a national standard that requires all the nation's systems to 

sample on some regular basis and has the tools to get treatment in 

place?" Grevatt said. "Or is it something that we'll address more 

locally?" 

Environmental attorney Robert Bilott successfully sued DuPont 

on behalf of plaintiffs exposed to PFOA in Ohio and West 

Virginia, and this year he filed a class-action lawsuit against 3M, 

DuPont, Chemours and several other companies on behalf of all 

Americans with PFAS chemicals in their blood. Some states have 

taken aggressive steps on their own, with New Jersey the first to 

regulate certain types of PFAS chemicals in its drinking water. 

Federal attention is long overdue, Bilott contends. 

"It's a national issue that needs to be addressed in a national 

way," he said. 

https:IIWYNJ.washingtonpost.comlnationallhealth-science/not-a-prob!em-you-can-run-away-fmm-communities-confronMhe-threat-of.unregulated-che_. 9!12 
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1!15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water~ The Washingto 

Sara Dean and her husband, Matt, play with 2-year-old Patrick after dinner at their home. The 

couple moved to Parchment several years ago specifically for Its quieter, slower pace as they 

started their family. (David Kasnlc;For The Washington Post) 

At least outwardly, a sense of normalcy has returned to 

Parchment. 

Bottled water is no longer being handed out at the high school, 

though the town is still relying on water from Kalamazoo. Officials 

say their investigation is ongoing, with one likely culprit of the 

contamination being a local landfill once used by the now-closed 

paper mill. 

Yet beneath the surface, many people continue to worry. 

"In our minds, our water was safe," said Mayor Robert D. Britigan 

III, who noted that Parchment always had been in compliance 

with Michigan's drinking-water regulations. The city has since left 

the municipal water business. "We will never go back to those 

wells," he said. 

On a sunny day this fall, customers lined up at the window of 

https•lrwv:J:~~IdiiJI;\JC&blla~tJ!,;I!IJS .. ~W.oi!Q.Ii)!illlelil~.t.lJ&~/I.IMII,lfr~~front-the-thre•t-of-unregulated-che ... 10/12 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water· The Washingto 

sat in their usual spots inside Scooter D's, a popular diner off the 

main drag, where the waitresses call people "sweetheart" and the 

smell of hash browns hangs in the air. 

"We lost a lot of business, primarily because of fear," said 

manager Carrie Klinger, whose father started the diner more than 

two decades ago. During the month-long water crisis, the family 

bought So pounds of bagged ice a day, made soups with bottled 

water and served canned sodas because the drink machine was 

hooked to a water line. 

Scooter D's "lost a lot of business" during the water crisis In Parchment this summer, manager 

Carrie Klinger said. {Da~ld Kasnlc/For The Washington Post) 

"It's still not quite back to where it was," Klinger said. "I still have 

customers who say they'll never drink the water again." 

Echoes ofthat distrust linger on Glendale Boulevard, where 

Jennifer and Justin Koehler lived in a tidy, white clapboard house 

until selling and moving away because of their fears. 

https·ffwww.washingtonpostcom/natlonal/health·science/not-a·problem-you-can-run-away-from-communities-confronMhe·threat.of.unregulated-che... 11112 
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1/15/2019 'Not a problem you can run away from': Communities confront the threat of unregulated chemicals in their drinking water- The VIJashingto 

"It made me so scared, because our kids are so little. And it made 

me angry," Jennifer Koehler said of the water problems in 

Parchment. 

Their former neighbors, Tammy Cooper and her husband David, 

have wrestled with the same emotions. "What did this crisis do? It 

woke me up to what the government is and is not doing on many 

levels," she said. 

Down the street, life for Sara and Matt Dean remains a mix of 

anxiety, resignation and doubt. 

"We relocated here thinking it would be a really great life 

decision," Sara Dean said as her 2-year-old son, Patrick, played on 

the floor. "You're supposed to hear about this somewhere else. 

This is the most average of average communities that there could 

be. It's 'Leave It To Beaver' average. If it can happen here, it can 

happen anywhere." 

The family spent thousands of dollars to install a top-notch water 

filter. Still, they hesitate to wash their vegetables or cook with tap 

water. "It's just this giant question mark," Matt Dean said. "Are 

we responsible staying here?" 

But they are staying, for now. On Oct. 17, Sara gave birth to a 

second son, Britt. The next day, the family brought him home to 

Parchment. 

https:/fw.Nw.washingtonpost.com/nationallhealth-science/not-a-problem-you-can-run-away-from-communities-confront-the-threat-of-unregulated-che... 12!12 
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[,;.';The Washington Post 

Health & Science 

'Not a problem you can run away from': Communities confront the 

threat of unregulated chemicals in their drinking water 

By Brady Dennis 

January 2 

PARCHMENT, Mich. - The day this small town told its residents to stop drinking the water, life on Glendale 

Boulevard turned from quiet to alarming. 

One couple decided to immediately put their house up for sale. Another fretted over their young son and the 

baby who would soon arrive. And up the street, one mom felt a rising indignation that would turn her into an 

activist to ban chemicals contaminating her family's drinking water -- and that of millions of other Americans. 

That late July day, this town along the banks of the Kalamazoo River became the latest community affected by 

a ubiquitous class of compounds known as polyfluoroalkyl and perfluoroalkyl substances, or PFAS. For years, 

calls for the federal government to regulate the chemicals have been unsuccessful, and last year the Trump 

administration tried to block publication of a study urging a much lower threshold of exposure. 

The man-made chemicals have long been used in a wide range of consumer products, including nonstick 

cookware, water-repellent fabrics and grease-resistant paper products, as well as in flrefighting foams. But 

exposures have been associated with an array of health problems, among them thyroid disease, weakened 

immunity, infertility risks and certain cancers. The compounds do not break down in the environment. 

In Parchment, where they were once used by a long-shuttered paper mill, tests found PFAS levels in the water 

system in excess of 1,500 parts per trillion- more than 20 times the Environmental Protection Agency's 

recommended lifetime exposure limit of 70 parts per trillion. 

Local officials promptly alerted residents. Michigan officials declared a state of emergency. People started 

picking up free cases of bottled water at the high school. Within weeks, the town abandoned the municipal 

wells that had served 3,000 people and began getting water from nearby Kalamazoo. 

"This is not a problem you can run away from," said Parchment resident Tammy Cooper, who has become an 

outspoken advocate for better regulation. "There are Parchments across the country." 

Harvard University researchers say public drinking-water supplies serving more than 6 million Americans have 

tested for the chemicals at or above the EPA's threshold- which many experts argue should be far lower to 

safeguard public health. The level is only an agency guideline;the federal government does not regulate PFAS. 
903 


35314.843

The compounds' presence has rattled communities from Hoosick Falls, N.Y., to Tucson. They have been 

particularly prevalent on or near military bases, which have long used PFAS-laden foams in training exercises. 

Both houses of Congress held hearings on the problem last year, and lawmakers introduced bills to compel the 

government to test for PFAS chemicals nationwide and to respond wherever water and soil polluted by them 

are found. In late November, the head of the EPA vowed that the agency would soon unveil a "national 

strategy" to address the situation. 

Affected communities are still waiting. 

"There are some very real human impacts from this stuff," said Erik Olson, a drinking-water expert for the 

Natural Resources Defense Council. "Most people have no idea they are being exposed." 

Michigan is one of the few states where officials are trying to determine the extent of PFAS contamination. 

Health officials undertook statewide tests this year across 1,380 public water supplies and at more than 400 

schools that operate their own wells. 

"When we look for it, we tend to find it," said Eden Wells, the state's chief medical executive. Yet detection 

raises difficult questions, given the lack of regulation involving PF AS in water and the evolving research on its 

long-term health effects. 

"Many of our responses are outstripping the scientific knowledge we need," Wells said. 

More is known about two particular types of the chemicals, perfluorooctane sulfonate (PFOS) and 

perfluorooctanoic acid (PFOA), which companies phased out years ago amid growing evidence that both were 

ending up in the blood of nearly every American. But thousands of other PFAS chemicals remain in useamong the many threats, including arsenic and lead, to drinking water nation,.ide. 

"From a policy perspective, what bothers me about all this is there are industries everywhere that don't really 

have to report what they are using," said DetlefKnappe, a North Carolina State University environmental 

engineer whose research helped identify another PFAS chemical, known as GenX, in Wilmington's drinking 

water supply. "As a class, there are so many compounds ... and it pops up in the most unexpected places." 

The Trump administration's focus on the problem has been inconsistent. 

Politico reported in May that the White House and EPA sought to block publication of a federal health study on 

the nationwide effects of PFAS contamination after one administration aide warned in an email that it could 

result in a "public relations nightmare." The study from the federal Agency for Toxic Substances and Disease 

Registry, which eventually was released, suggested that the EPA's existing, nonenforceable standard is 

inadequate to protect public health and should be much lower. 

The same month, the EPA held a PFAS "summit" with industry representatives, public health groups, tribal 

leaders and officials from all levels of government. Then-administrator Scott Pruitt pledged action, saying, 
904 


35314.844

"There are concerns about tbese chemicals across the country because of their persistence, their durability, 

getting into the environment and impacting communities in an adverse way." 

Little has happened since then, however. 

At a hearing in early fall, Sen. Thomas R. Carper (D-Del.) pressed tbe EPA's director of groundwater and 

drinking water on when the agency might announce its plans to regulate the chemicals and finalize a drinkingwater standard. Peter Grevatt, an agency veteran who recently retired, responded tbat officials were continuing 

to visit communities and develop a long-term "management plan." He acknowledged that it could take the 

agency a "number of years" to put enforceable regulations in place if it determined thatthe contaminants 

were surfacing in enough water systems to be considered a nationwide health concern. 

"Is it a national standard that requires all tbe nation's systems to sample on some regular basis and has the 

tools to get treatment in place?'' Grevatt said. "Or is it something that we'll address more locally?" 

Environmental attorney Robert Bilott successfully sued DuPont on behalf of plaintiffs exposed to PFOA in Ohio 

and West Virginia, and this year he filed a class-action lawsuit against 3M, DuPont, Chemours and several 

other companies on behalf of all Americans "ith PFAS chemicals in their blood. Some states have taken 

aggressive steps on their own, \\-ith New Jersey the first to regulate certain types of PF AS chemicals in its 

drinking water. 

Federal attention is long overdue, Bilott contends. 

"It's a national issue that needs to be addressed in a national way," he said. 

At least outwardly, a sense of normalcy has returned to Parchment. 

Bottled water is no longer being handed out at tbe high school, tbough the town is still relying on water from 

Kalamazoo. Officials say their investigation is ongoing, with one likely culprit of the contamination being a 

local landfill once used by the now-closed paper mill. 

Yet beneath the surface, many people continue to worry. 

"In our minds, our water was safe," said Mayor Robert D. Britigan III, who noted that Parchment always had 

been in compliance with Michigan's drinking-water regulations. The city has since left the municipal water 

business. "We will never go back to tbose wells," he said. 

On a sunny day this fall, customers lined up at tbe window of Twisters for the last ice cream cones of the 

season. The regulars sat in their usual spots inside Scooter D's, a popular diner off the main drag, where the 

waitresses call people "sweetheart" and the smell of hash browns hangs in tbe air. 

"We lost a lot of business, primarily because offear," said manager Carrie Klinger, whose father started the 

diner more than two decades ago. During the month-long water crisis, the family bought So pounds of bagged 
905 


35314.845

ice a day, made soups with bottled water and served canned sodas because the drink machine was hooked to a 

water line. 

"It's still not quite back to where it was," Klinger said. "I still have customers who say they'll never drink the 

water again." 

Echoes of that distrust linger on Glendale Boulevard, where Jennifer and Justin Koehler lived in a tidy, white 

clapboard house until selling and modng away because of their fears. 

"It made me so scared, because our kids are so little. And it made me angry," Jennifer Koehler said of the water 

problems in Parchment. 

Their former neighbors, Tammy Cooper and her husband Dadd, have wrestled with the same emotions. "What 

did this crisis do? It woke me up to what the government is and is not doing on many levels," she said. 

Down the street, life for Sara and Matt Dean remains a mix of anxiety, resignation and doubt. 

"We relocated here thinking it would be a really great life decision," Sara Dean said as her 2-year-old son, 

Patrick, played on the floor. "You're supposed to hear about this somewhere else. This is the most average of 

average communities that there could be. It's 'Leave It To Beaver' average. If it can happen here, it can happen 

anywhere." 

The family spent thousands of dollars to install a top-notch water filter. Still, they hesitate to wash their 

vegetables or cook with tap water. "It's just this giant question mark," Matt Dean said. "Are we responsible 

staying here?" 

But they are staying, for now. On Oct. 17, Sara gave birth to a second son, Britt. The next day, the family 

brought him home to Parchment. 

Brady Dennis 

Brady Dennis is a national reporter for The Washington Post, focusing on the environment and public health issues. He 

previously spent years covering the nation's economy. Dennis was a finalist for the 2009 Pulitzer Prize for a series of 

explanatory stories about the global financial crisis. Follow W 

Be the first to know. Our award-winningjournalists are there when the news breaks. 
906 


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1/15/2019 Opinion! This Coal Lobbyist Should Not Run the E.PA- The New York nrnes 

This Coal Lobbyist Should Not 

Run the E.P.A. 

President Trump's nominee to head the Environmental Protection Agency has overseen the 

dismantling of the nation's environmental laws. 

By Dominique Browning 

Ms. Browning is a writer and co-founder of Moms Clean Air Force. 

Jan. 14. 2019 

When I was pregnant with my first child, 35 years ago, one of the first things my doctor in Texas 

told me was to stop eating tuna, swordfish and other large, fatty fish because they were 

contaminated with mercury. What I didn't know until I began working on children's health issues 

is that the mercury in our food starts as a pollutant in our air. 

Mercury is released from the combustion of coal and emitted into the atmosphere from the 

smokestacks of coal-fired power plants. It rains down on land and water, where it is passed up the 

food chain as methylmercury. Its effects among aquatic animals is particularly pernicious. By the 

time it reaches larger fish, the concentrations of mercury in their fatty tissue becomes 

dangerously magnified. 

That's why the federal government warns against consuming certain seafood. When pregnant 

women eat mercury-laden fish, the poison immediately crosses into the bloodstream, travels into 

the placenta and then makes its way into the fetus, where it deposits itself in the fattiest tissue 

available: the brain. Mercury is a potent neurotoxin. It disrupts the developing architecture of a 

baby's brain. It can cause brain damage in infants, affecting a child's ability to walk, talk, read and 

learn. 

For adults, ingesting even small amounts of mercury can cause serious health problems, harming 

the brain, heart, kidneys, lungs and immune system. Those coal-fired power plants also spew out 

lead, arsenic, dioxin, acid gases, as well as cancer-causing chromium and selenium. 

The Environmental Protection Agency spent more than 20 years working on standards that 

would require power plants to filter mercury from their emissions. The power industry repeatedly 

sued the agency to block restrictions. But finally, in 2011, the E.P.A. finalized a rule, the Mercury 

and Air Taxies Standards, that imposed limits on mercury emissions. The standards have been a 

resounding success; a testament to a government agency doing its job to keep us safe. 

https:Jlw.o.w.nytlmes.corn/2019/01/14/opinion/epa-trump-andrew-'Nhee!er.html 114 
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1/15/2019 Opinion 1 This Coal Lobbyist Should Not Run the EPA~ The New York Times 

To comply, many power plants were outfitted with technology known as scrubbers to remove 

mercury from the emissions before they leave the smokestack. Since the rule went into effect in 

2012, electric companies have cut mercury emissions by nearly 90 percent, according to the 

Edison Electric Institute, an industry group. Mercury levels in Atlantic fish have been dropping in 

recent years, a consequence of this rule, but not in fish in the Pacific Ocean, where prevailing 

winds carry mercury pollution from Asia. 

So who would want to unravel such an important health protection? The very man President 

Trump nominated last Wednesday to succeed Scott Pruitt as the administrator of the 

Environmental Protection Agency: Andrew Wheeler. Mr. Wheeler, currently the acting 

administrator, had served as the deputy administrator under Scott Pruitt, who resigned in July 

facing more than a dozen investigations into his spending and management practices. The 

Senate's Environment and Public Works Committee is scheduled to consider his nomination at a 

hearing this Wednesday. 

A former coal industry lobbyist, Mr. Wheeler recently proposed a revision to the way the 

government evaluates the costs and benefits of regulating mercury emissions and, more broadly, 

air pollution. While the proposed change would not itself upend the rule, it would revoke the 

E.P.A.'s determination that it was "appropriate and necessary;' undermining the very foundation 

on which the regulation is built. 

In other words, if the rule wasn't "appropriate and necessary," why have it? In essence, Mr. 

Wheeler is inviting the coal industry to challenge the mercury rule in court. And not only the 

mercury rule. By rewriting the way costs and benefits are evaluated, Mr. Wheeler's proposal 

threatens regulations governing a host of other environmental poisons. 

The issue over the mercury rule has focused on costs and benefits. Mr. Wheeler's E.P.A. argues 

that the Obama administration was wrong to include "co-benefits" that would result from the rule. 

The scrubbers that remove mercury from coal plant emissions also reduce other pollutants, 

especially particulates, which are deadly, so this co-benefit keeps lethal pollution out of the air. 

Reductions in heart and lung disease from particulates prevent up to an estimated 11,000 

premature deaths a year. And those other hazardous air taxies coming from industrial coal 

stacks? As someone who has survived kidney cancer- my oncologist vaguely explained it was 

"one of those environmental cancers"- I can promise you these aren't things we want to 

breathe: probable carcinogens like cadmium, arsenic, benzene and formaldehyde, among others. 

The cost associated with harm from these was not even monetized by the E.P.A. Keeping them 

out of our air is a "freebie.'' 

If anything, the benefits of reducing mercury have been vastly understated. Since the rule was 

finalized, the science documenting the severe health impacts of mercury has become even 

stronger. New studies show that the quantified benefits of reducing mercury are now in the 

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1115/2019 Opinion! This Coallobbyisl Should Not Run the E.PA ·The New York Times 

billions of dollars; a study published in the journal Environmental Health in 2017 estimated that 

the societal costs associated with the neurocognitive deficits from methylmercury exposure in the 

United States that year was $4.8 billion. 

Among those urging the E.P.A. to leave the mercury standards alone was, surprisingly, the 

nation's electric utility industry, which found that implementation cost far less than they had 

anticipated. Power industry experts indicate the true costs of the standards are $2 billion- or 

less than a quarter of what the agency originally estimated. Mr. Wheeler ignored the industry's 

request that the standards be left in place. As the Rev. Mitch Hescox, president of the Evangelical 

Environmental Network, wrote in The Christian Post, addressing Mr. Wheeler's legalistic cover of 

not overturning the rule but making it vulnerable to legal attack: "God is not fooled- and neither 

are we." He added, "We'll never give up on protecting children and the unborn from mercury 

pollution. Never." 

President Trump's pro-polluter agenda is profoundly radical - and immoral. We are in danger of 

normalizing the president's ruthless disregard for health- and science-based protections. Mr. 

Wheeler's cynical ploy to upend the mercury regulations is emblematic of his agenda. His 

fingerprints are all over proposed rollbacks of environmental regulations covering cars, carbon 

emissions from power plants, coal ash and more. For this destructiveness, Mr. Trump praised him 

in November, saying he had "done a fantastic job and I want to congratulate him." 

Mr. Wheeler's E.P.A. is also weakening implementation of a bipartisan law passed in 2016 

protecting the public from toxic chemicals; people with chemical industry resumes dominate his 

staff. And Mr. Wheeler has sought to roll back an Obama-era rule requiring energy companies to 

monitor and repair leaks of methane; these leaks can occur from the moment a well is fracked 

until the gas gets to your home. Methane is an extremely powerful and swift contributor to global 

warming. Rather than move the country onto a path toward climate safety, Mr. Trump and Mr. 

Wheeler are leading us - and the world- closer to mutually assured destruction. 

Mr. Wheeler is more media savvy than Mr. Pruitt ever was, and that makes him more dangerous. 

His nomination to run the E.P.A. is among the most consequential and cynical of all the cabinet 

appointments that Mr. Trump has proposed. Mr. Wheeler's disregard for the agency's core 

mission- to protect public health and the environment- is brazen. But what else should we 

expect from a former coal industry lobbyist? 

Andrew Wheeler has demonstrated over and over again why he should not be entrusted with 

protecting us from harm. If his failure to do one single thing to address the global warming 

catastrophe isn't bad enough to stop this nomination, perhaps his decision to upend the mercury 

rule, which could threaten the brains of tiny babies, will wake up senators. No one voted to make 

America dirty again. 

Dominique Browning is the senior director and a co-founder of Moms Clean Air Force. 

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and lnstagram. 

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Carbon emissions up as Trump agenda rolls back climate 

change work 

Last year's 34%jump in emissions is the largest since 2010 recession 

and second largest gain in more than two decades 

Tue 8 Jail 2019 05 CO EST 

18,329 

A ne\\- analysis shows US greenhouse gas le\"els arc increasing as the Trump adtninistration 

unra\'cls efforts to slow climate change, 

Cnrhon emissions rose sharply last year, increasing 3A%, according to new estimates frmn the 

economic firm Rhodium Group, That year's jump in emissions is the higgest since the bounce 

back from the recession in 2010. It the second largest gain in more than two decades. 

Trump on U\'in 

a(lminislratlon's 

climate report;'[ 

don't belit've it' 

Read more 

Coal plants are shutting clown, but el<:ctricity demand is gro\\ing, Natural-gas 

fired power emits about half as much c.arbon as coal but still contributes to 

climate change, The fossil fuel replacing most of tbc coal plants that are 

closing and also fed most of the higher demand, increasing pm,,er-sector 

climate pollution, Outside of the po\\,er sector, transportation, industry nne! 

buildings all increased their ernissions as we1l) aeeording to the estimates. 

The numbers undercut one of the Trnmp administration's key defenses 

for dismissing federal science reports that shm1, rising temperatures \\"ill 

lltlps /IW'MV,tflegtral\iran c:ornierwrro'lment/20191jan/081carbon-emrssrons-trump-rlgenda-cilmate·cha'lge 
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1/15!2019 Carbon emissions up as Trump agenda rolls back; climate change work! Environment 1 The Guardian 

wreak havoc on the economy, kill people and cause more extreme weather. Trump has said he 

doesn't believe the findings and his officials have argued they are exaggerated. 

The Environmental Protection Agency chief, Andrew Wheeler, often trumpets declines in 

greenhouse gases, citing data showing that they fell2.7% from 2016 to 2017. 

But the EPA is rescinding Obama-era climate work, including regulations meant to speed a shift 

from coal. The agency contends that Donald Trump's agenda is driving energy innovation that 

could help cut emissions. Energy experts, however, say Trump is doing the opposite by rolling 

back the rules and policies that could have sped renewable growth and by forgoing new 

regulations beyond the electricity sector. 

Rhodium Group tracks the most prevalent greenhouse gas, carbon dioxide. The firm found a 

modest decrease in carbon emissions between 2016 and 2017, in part because of a warmer-thanusual winter that didn't require as much heating. Since then carbon output has surged. 

The 'climate 

diaspora' trying to 

save the Paris 

agreement from 

Trump 

Read more 

"The tailwinds ofObama administration policy are dissipating," said Trevor 

Houser, a partner at the firm. "This year makes it abundantly clear that 

energy market trends alone -the low cost of natural gas, the increasing 

competitiveness of renewables - are not enough to deliver sustained declines 

in US emissions." 

Houser said the numbers would have been worse without the state and local 

policies enacted during the past five to 10 years. But that the groundswell 

of climate commitments by governors and mayors since Trump said he would 

exit the international Paris climate agreement might not translate into policy 

for some time, he added. He said those efforts are likely to be significant but not sufficient to meet 

the levels the US pledged. 

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1115/2019 EPA's Clean Power Plan replacement wm lead to thousands of deaths. from pollution ~ Vox 

Vox 

EPA analysis of its own new climate proposal: thousands 

of people will die 

The Trump administration is proposing to replace Obama's Clean Power Plan with a 

much weaker rule. 

By Umair lrfan I Aug 21, 2018, 2:20pm EDT 

The Tri-State Generation and Transmission Association's Nuda coaHired power plant is scheduled to shut down by 2020 due to environmental 

concerns, wh1ch will result in the loss of more than 80 area jobs. I Andy Cross/Denver Post/Getty Images 

The Environmental Protection Agency has released the details of its plan to replace 

President Obama's signature climate change policy, the Clean Power Plan, and it's pretty 

much what we expected: a tepid pledge to fight climate change that's actually a coal 

bailout. 

The 2015 Obama-era rule aimed to reduce greenhouse gas emissions from power plants, 

now the second-largest source of greenhouse gases in the United States. The CPP gave 

47 states unique emissions targets while leaving it up to them how to get there. The EPA 

invoked health provisions of the Clean Air Act to make this rule, arguing that cutting 

greenhouse gas emissions would also limit other pollutants. That, in turn, would avert 

3,600 premature deaths, 90,000 asthma attacks in children, and 1,700 heart attacks each 

year. 

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1/15/2019 EPA's Clean Power Plan replacement will lead to thousands of deaths from poHution- Vox 

However, 24 states sued to block the rule, arguing that the EPA overstepped its legal 

bounds. And in 2016, the Supreme Court put a stay on the CPP to allow the lawsuits to 

proceed. 

Then Donald Trump became president and declared his love of coal and hatred of all things 

Obama. Even during his campaign, he made it clear that one of his top priorities would be 

to tear up Obama's climate policies like the Clean Power Plan. And two months after taking 

office, he signed an executive order to start rolling it back (along with various other 

regulations on methane emissions and carbon standards for new coal plants). 

But unlike Trump's decision to begin to withdraw the United States from the Paris climate 

accord, something he could do unilaterally, the EPA is required by law to regulate carbon 

dioxide. So if the agency wants to toss out the CPP, it still needs to come up with a 

regulation that limits greenhouse gases. Otherwise, the EPA would need to launch a yearslong campaign to change the underlying law, which it might lose. 

Today, we're finally seeing the details of the replacement plan. Acting EPA Administrator 

Andrew Wheeler is calling it the Affordable Clean Energy proposal . 

• 

Acting Administrator Wheeler 

@EPAAWheeler 

Today @EPA released our Affordable Clean Energy proposal. At 

the direction of President Trump @POTUS this proposal will: 

->Protect the environment 

->Save consumers money 

->Save jobs 

Learn more about the proposal here: epa.gov/stationary-sou ... 

1,547 8:23AM -Aug 21,2018 ·Washington, DC 

Proposal: Affordable Clean Energy (ACE) R ... 

The proposal has several components: a best 

system of emission reduction analysis for coalfired power plants. changes to the trigger for New 

epa.gov 

981 people are talking about this 

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1/15/2019 EPA's Clean Power Plan replacement wlll lead to thousands of deaths from pollution~ Vox 

Repeal and replace. Sound familiar? As Vox's David Roberts noted, the process of undoing 

the Clean Power Plan echoes the fight to repeal Obamacare. And like the health care 

repeal fight, it's shaping up to be a huge mess. 

For the new proposal to stand, it has to be just as good as or better than the one it 

replaces in order to comply with the law. But it's much weaker than the rule it's replacing, 

so the EPA is arguing for a cost-benefit calculation that justifies a relaxed standard. 

Meanwhile, environmental activists and some states see this as a vulnerability and are 

girding themselves for a legal fight. 

How is the new Affordable Clean Energy proposal different from the old Clean Power 

Plan? 

The big difference is that rather than the federal government setting targets for states, 

states can set targets for themselves. The ACE also restricts what states can do to push 

coal-fired power plants to become cleaner. 

The CPP's goal was to cut US greenhouse gas emissions by 32 percent compared to 2005 

levels by 2030. The ACE would reduce emissions between 0.7 and 1.5 percent in the 

same time frame. 

In comparing the ACE to the CPP, remember that the emissions baseline has changed a lot since 2014 

thanks to cheap renewables and natural gas. @EPA could have responded to this by raising the 

ambition bar. Instead, they lowered it. pic.twitter.com/REdDtPiy9x 

-Trevor Houser (@TrevorGHouser) August 21, 2018 

That means states that draw on a fossil fuel-heavy energy mix won't have to do much to 

comply with the rule, essentially allowing them to carry on as is. 

To justify a much weaker regulation, the EPA is changing how it calculates the economic 

and societal values of reducing pollution, which reduces the benefits relative to the costs 

of curbing pollution. 

~ +raylor Kuykendall -,.. @taykuy 

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1/15/2019 EPA's Clean Power Plan replacement will lead to thousands of deaths from pollution~ Vox 

EPA says they are "unable to quantify the economic value of 

changes in exposure to mercury, carbon monoxide, 802, and 

N02, ecosystem effects or visibility impairment" in regulatory 

impact analysis epa.gov/sites/producti 

4 9:20AM -Aug 21,2018 

See ·'I!· Taylor Kuykendall's other Tweets 

But the EPA's own calculations show the new proposal would lead to upward of 1,400 

additional premature deaths and 48,000 new cases of asthma each year due to higher 

levels of air pollution. So the EPA is trading the health and well-being of thousands of 

Americans for keeping polluting and often unprofitable power plants online. (This news 

was first reported by the New York Times on Tuesday.) 

It's part of a broader agenda in the Trump administration to bail out and boost coal to 

deliver on campaign promises. 

While Trump, who is holding a rally Tuesday night in West Virginia, is likely to hail the new 

proposal as another win for the coal industry, the sector is still losing ground in large part 

due to competition from natural gas and renewables. Since 2010, more than 200 coal 

plants have gone offline or announced retirements. There are only four new coal plants 

planned in the US. 

So all the ACE would do is give some of the oldest, dirtiest coal-fired power plants a few 

more wheezing gasps of life. 

The public will now have 60 days to comment on the rule before it's finalized. 

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1122/2019 Sources: EPA blocks warnings on cancer-causing chemical- POUT! CO 

POLITICO 

POLITICO 

ENERGY & EKVIRONMENT 

Sources: EPA blocks warnings on cancer-causing chemical Burying the formaldehyde study is part of an effort by Pruitt and aides to undermine EPA's research program, current 11nd former officials 

tell POLITICO. 

By ANNIE SNIDER! 07/0b/2018 05:07AM EDT 

Interfering with the formaldehyde study is one of sever.-1! steps Trump's EPA has taken to s1de with the businesses the agency is supposed to regulate and undermine 

theagency'sapproachtosclence,critlcssay.) Pablo MartinezMonsivais/AP Photo 

The Trump administration is suppressing :.~n Environmental Protection Agency report that \varns that most Americans inhale enollgh 

formaldehyde vapor in the course of daily life to put them at risk of developing leukemia and other ailments, a current and a former 

agency official told POLITICO. 

The warnings are contained in a draft health assessment EPA scientists completed just before Donald Trump became president, according 

to the officials. They said top ad,isers to departing Administrator Scott Pruitt are delaying its release as part of a campaign to undermine 

the agency's independent research into the health risks of toxic chemicals. 

Andrew Wheeler, the No.2 official at EPA who will be the agency's new acting chief as of Monday, also has a history with the chemical. He 

was staff director for the Senate Environment and Public Works Committee in 2004, when his boss, then-Chainnan Jim Inhofe (R-Okla.), 

sought to delay an earlier iteration of the formaldehyde assessment. 

Formaldehyde is one of the most commonly used chemicals in the country. Americans are exposed to it through wood composites in 

cabinets and furniture, as well as air pollution from major refineries. The new assessment would give greater weight to warnings about the 

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1122/2019 Sources: EPA blocks warnings on cancer.-causing chemica!· POLITICO 

chemical's risks and could lead to stricter regulations from the EPA or class-action lawsuits targeting its manufacturers, as frequently 

occurs after these types of studies are released. Listen to Story 

"They're stonewalling every step of the "Way," the current offic .... ~~~ .. , ~~ .. ~ .... b .t'""''"'..,... "'.t-f'"""'"'~ ~· ···~~ .~ ~·~ ..................... ~ ....... ~ .. .~ ~~ 

assessment and other reports on toxic chemicals produced by EPA's Integrated Risk Information System. Industry has long faulted tbe 

IRIS program, tbe agency's only independent scientific division evaluating tbe health risks oftm:ic cbemica.ls, whose assessments often 

form the basis for federal and state regulations. 

Mom lng Energy newsletter 

a OlJI'Ce for energy ard environment news- weekday mornings, In your lnbal:. 

The current official and fanner official requested anonymity out offe.arfor their jobs and the impar.ttbat speaking out could have on the 

IRIS program, 

Interfering with the formaldehyde study is one of several steps Trump's EPA bas taken to side with the businesses the agency is supposed 

to regulate aod undermine the agency's approach to science, critics say. Public health advocates also expressed alarm after Pruitt replaced 

academic scientists with industry advocates on the agency's influential science advisory boards and sought to limit the types ofbuman 

health research tbe EPA can rely on in rolemakings. 

The officials said Trump appointees have required that career officials receive their permission before beginning the required internal 

review of the formaldehyde study and have canceled key briefings that would have advanced it That interference came after EPA career 

scientists revised the lrtudy once already last year to insulate it from political controversy, they said, 

[n a statement, EPA denied that the assessment was being held back. 

"EPA continues to discuss this assessment with our agency program partners and bave no further updates to provide at this: time," EPA 

spokeswoman Kelsi Daniell said, "Assessments of this type are often the result of needs for particular rulemakings and undergo an 

extensive intm-agency and interagency process.~ 

But as long ago as January, Pruitt told a Senate panel that he believed the draft assessment was complete, 

Five months later, it h;u; yet to see the light of day. Meanwhile, internal documents show, a trade group representing businesses that could 

face new regulations and lawsuits iftbe study were released had frequent access to top EPA officials and pressed them to either keep it 

under wraps or change its findings. 

~As stated in our meeting, a premature release of a draft assessment ... will cause irreparable harm to the rompanies represented by the 

Panel and to the many companies and jobs that depend on the broad use of the chemical," Kimberly Wise White, who leads the American 

Chemistry Council's Formaldehyde Panel, wrote in a Jan . .26lenerto top officials at the EPA. The panel represents companies including 

tbe Koch Industries subsidiary Georgia· Pacific Chemicals LLC that could face higher costs from stricter regulations or lawsuits . 

... 

Envlronmentallm: Pruitt's F1!placement 'ohould IICliF1! anyone who breathes' ElyDIIC:WtllFl" 

Nenly a million jobs "depend on the use of formaldehyde,~ White's letter argued. 

The holdup is attracting attention on Capitol Hill, where Democrats have already expressed alarm, arguing that the Trump administration 

has a11owed politics to interfere in EPA's scientific assessments of threats mch as toxic pollution and climate change. 

The ageccy must "move past politics and focus on its job of protecting human health" by releasing the formaldehyde study, Sen. Ed 

Markey (:D·Mass.) said in a statement to POLITICO. 

"Because formaldehyde can be found in evel}'thing from wood products to women's hair straighteners, the public health risks are 

substantial," Markey said. ~Delaying the F.PA's latest assessment of the health risks offormaldehyde only further endangers the health of 

Americans.~ 

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112212019 Sources: EPA blocks warnings on cancer-causing chemical- POLITICO 

Public health advocates have similarly expressed fears that the Trump administration has allowed EPA to be captured by the industries it 

regulates, The revelations about the formaldehyde study come after Pruitt removed academic scientists from the agency's intluential 

science advisory boards and in many cases replaced them with industry advocates, and after he pro)Xlsed a policy to limit the agency's use 

of human health data while offering a carve-out for confidential industry studies, 

~At every corner, you see the agency trying to either minimize the role of science or manipulate the role of science or just ignore the work 

of scientists in doing the critical work to ensure that human health and the environment is protected," said Jennifer McPartland, a senior 

scientist with the Environmental Defense Fund's health program. 

POLITICO also reported in May that Trump administration officials, including E.PA chief of staff Ryan Jackson, sought to delay an HHS 

study finding that nonstick chemicals pose health dangers at a lower level than EPA has said is safe. 

Insiders anticipate few major policy changes under Wheeler, wbo is widely expected to continue Pruitt's deregulatory agenda and is wellversed in chemicals issues, He began his career in EPA's chemical safety office, and after leaving Inbofe's staff lobbied for several 

chemicals companies, including Celanese Corp., a major formaldehyde manufacturer and ICOR International, a refrigerants manufacturer 

that was recently acquired by Chemours Co., a DuPont spin-off. A Celanese spokesman said Wheeler worked only on the Rene\'lahle Fuels 

standard for the company, although Wheeler's disclosure forms describe his lobbying as being on the broad topic of" chemicals issues." 

Wbeeleris not barred from working on chemicals issues under the recusal statement he signed in May. 

Decades' of research bas linked formaldehyde to nose and throat <.ancer and respiratory problems, and newer research has suggested the 

connection to leukemia - controversial conclusions that would gain significant credence if E.PA fonnally adopts them. Then ew 

assessment affirms thrue links to leukemia, nose and throat cancer and other ailments., acrording to the current and former officials 

familiar with its findings. 

The new assessmt"".nt could lead the EPA to impose stricter regulations of chernica.ls refineries or wood products and could spur da.'ls· 

action lawsuits from cancer patients attempting to hold companies responsible for their illnesses. 

The agency officials said the political aides blocking the assessment iucludeJackson and Richard Yamada, a former staffer for House 

Science Chairman Lamar Smith (R-Texas) who is now a top official in EPA's Office of Research and Development. And they said Nancy 

Beck, who criticized the IRIS program in her previousjoh as a top rhemical industry expert, is nowhelpiog to stymie the program's 

assessments in her new post as head of EPA's chemical safety office. Jackson, Yamada and Beck did not respond to requests for comment. 

The EPA spokeswoman disputed the accusations and said Yamada and Jackson have, in fact, requested briefings on the assessment 

The current EPA official told POLITICO that political appointees have managed to avoid creating written evidence of their interference 

with the formaldehyde assessment by refusing to send emails or cr-eate other records that eventually could become public, instead lliling 

what the official described as "a children's game of telephone." 

By blocking the report at tbe finrt step of the IRIS review process, political appoiotees are keepiog it from being reviewed by the National 

Academies of Sciences, an independent panel of the rountry's top scientists that must weigh in on all such risk assessments. EPA has 

already paid the academies $soo,ooo forth at review, the highest level of scrutiny a scientific study can receive, but the work cannot start 

until Pruitt's aides send the study. 

~If the !ldministration was really keen on protecting public health, why wouldn't they send this to the National Academy and give it a really 

good review?" tbe former EPA official asked. "If it survives that reviC"N, then there's a public heah:h problt>.m that needs to be dealt with, 

and ifit doesn't survive the review, then they can point the finger at IRlli and say, 'You're dead.'~ 

EJU .... BMilOliNDT 

How Scott Pruitt blew 1t B-,AlDCMIILlhl-.ndMmti!WIUIITUCCIA 

The former official said there would be only one reason not to ask the country's top BXIX!rts whether they agree with the analysis: "You 

don't want the answer." 

Public healtb advocates say the administration's attacks on science have bad especially significant implications for the IRIS program. The 

small office of about 35 experts pores over the huge body of existing research on chemicals, including industry-backed studies aimed at 

proving the subatancessafe, to independently assess their risks. While purely scientific, the program's reviews are looked to by regulators 

not just at EPA, but also in the states and around the world, ofte11 paving the way for new or more stringent regulations, 

But industry bas long targeted the program, arguing it uses an opaque proCI"!!ls to decide which studies to rely on and which research to 

give credence to when findings conflict. 

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11221'2019 Sources: EPA blocks wam1ngs on cancer~causing chemical~ POLITICO 

The American Chemistry Council. Beck's former employer, spent more than $7 million last year lobbying EPA and Congress on issue.-; 

including IRIS, formaldehyde and the policy to limit EPA's use of human health research. Chemicals manufacturers, including Hexion, 

one of the country's largest mant1facturers of formaldehyde, have also spent tens of thousands of dollars on lobbying related to the 

program this year. 

A National Academies panel agreed with some of industry's criticisms of the IRIS program in a blistering review of an earlier iteration of 

the formaldehyde assessment that recommended major changes to how tRIS decides how much weight to give contlil.1:ing studies, 

although it did not attack the substance of its findings about the bealth effects of formaldehyde. Critics of the IRIS program have pointed 

to that review frequently as they have sought to kill it, including in an appropriations battle this spring. The EPA spokeswoman also 

pointed to that assessment in her statement. "The National Academy of Science and Congress in legislative reports have for years been 

highly critical of EPA's previous assessments involving formaldehyde," she said. 

Butte EPA bas overhauled the program since then, hiring a newdircctorfor IRIS and a new head of the National Cl'lnter for 

Environmental Assessment, in which it is housed. The changes have received high marks from the NationalAca.demies in two more recent 

reviem, one in 2014 and one this past April. The latest formaldehyde assessment is expected to demonstrate further progress 

implementing the academies' rec.omnumdationa, potentially undel'mining industry critiques of the overall IRIS program if it were to be 

released. 

Although efforts to kill EPA's independent scientific arbiter have so far failed, EPA officials and public health advocates say the program 

has been significantly hobbled under an administration with close ties to the chemir.als industry. 

White, the top staffer for the American Chemistry Council's Fnrmaldehyde Panel, wrote the EPA three times between September 2017 and 

January2o18, urging the agency to incorporate industry·funded resea.rch that found no link between formaldehyde and leukemia, and 

argningthat the studies shifted the scientific consensus away from the conclusion that it does. In November, Pruitt appointed her to the 

agency's influential Science Advisory Board. 

Less than a week after the council's Jan, 24 meeting with EPA, Pruitt himself can firmed that the report had been complete for months. 

During a Senate hearing at tbeend of January, Markey asked Pruitt for an update on the formaldehyde assessment, saying it was his 

understanding "that the EPA has finalized its conclusion that formaldehyde causes leukemia and other cancers and that [the] completed 

ne\'1 assE'Ssment is ready to be released for public review, but ls being beld up." 

"You know, my understanding is similar to yours," Pruitt replied, promising to follow up. 

Markey reminded Pruitt ofthe exchange in a May 17letter. In a response Tlrursday, the agency's principal deputy assistant administrator 

for science, Jennifer Orme~Zavaleta, said EPA ~continues to discuss the formaldehyde assessment internally and has no further updates to 

provide at this time." 

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1!22!2019 World Chemical Outlook 2019: Environmental Forecast 

Detection ofPFAS pollution globally expected to increase 

by Cheryl Hogue 

Hot spots of drinking water contaminated with toxic fluorocarbons in 

Australia, the Netherlands, Italy, and the US grabbed headlines last 

year. In 2019, expect scientists to lookfor-and find-more areas 

polluted with nonpolymeric per- and polyfluoroalkyl substances (PFAS) 

in those countries and across the world. 

TAKEAWAYS 

Discovery of more PFAS-contaminated drinking water is almost a given. 

US states are likely to adopt their own limits for PFAS as the Environmental 

Protection Agency decides whether to act. 

"It's going to seem to the public like the problem is getting worse," says 

Ginny Yingling, a research scientist at the Minnesota Department of 

Health and a PFAS expert. But scientists will just be identifying existing 

contamination through better analytical methods, says Yingling, who 

coleads the US Interstate Technology and Regulatory Council's PFAS 

team. 

Scientists are also likely to identify additional PFAS besides well-known 

legacy compounds, such as perfluorooctanoic acid and 

perfluorohexanesulfonic acid, that were used industrially for decades, 

Yingling adds. Data indicate that at least some of these legacy 

chemicals, which have been found in people's blood, can 

cause reproductive, developmental, liver, and immunological effects in 

laboratory animals. Few toxicity data are available on many PFAS that 

replaced the older ones. 

More widespread detection of these chemicals will likely trigger more 

calls from the public for cleaning up PFAS contamination, Yingling says. 
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1/22/2019 World Chemical Outlook 2019. Environmental Forecast 

F F F F ~1/'0 F3C- X X :s, X X X OH 

FFFFFF 

Perfluorohexanesulfonic acid 

In the US, states facing contamination problems will be under pressure 

to act on their own. That's because the acting head of the 

Environmental Protection Agency, Andrew Wheeler, has said the EPA is 

weighing only the need for a federal drinking-water limit for certain 

widespread PFAS. 

Researchers and regulators are increasingly concerned that these 

substances are spreading into the food supply through polluted water 

and the use of treated sewage sludge to improve soils. 

Australia warned people living where drinking water is tainted with 

PFAS from nearby military installations not to eat leafy greens 

harvested from gardens or home-raised poultry, eggs, beef, or lamb. 

In 2019, Yingling expects to see advances in treatment technology for 

PFAS-tainted water supplies, moving beyond today's standard of 

activated carbon filters. 

Meanwhile, financial liability is expanding for militaries and companies 

that make or use PFAS-or formerly did so. Utilities are seeking money 

from polluters to pay for cleaning up PFAS-contaminated drinking-water 

supplies. 

https·//cen. acs .org/enwonmentl\l\lorld~Chemicai-Out!oo k-20 19-E nvironmental-forecastl97 fi2 2/2 
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1/1512019 EPA nominee Andrew Wheeler is even worse than Scott Pruitt (opinion)- CNN 

Opinion+ 

EPA nominee Andrew Wheeler is even worse than Scott 

Pruitt 

By Ken Kimmell 

Updated 8:34AM EST, 1\Je January 15, 2019 

Editor's Note: (Ken Kim me// is the president of the Union or Concerned Scientists. a nonprofit science advocacy organization. The 

vteVIIS expressed 1n this commentary are nis own. View more opinion on CNN) 

(CNN}- When Scott Pruitt stepped down as the Environmental Protection Agency administrator 

and his deputy Andrew Wheeler took over as acting administrator, many of us in the science 

advocacy community thought that it couldn't get worse. We hoped that Wheeler would listen to his 

agency's scientists and alter Pruitt's misguided policies of eliminating science-based pclicies and 

rolling back lifesaving climate and public health protections. 

The Senate, which will soon vote on whether to confirm Wheeler as EPA administrator, should know 

this hasn't happened. Instead, Wheeler has continued to advance an agenda focused on 

https:/la mp. cnn. com/cnn 1201910 1/15/opinion slandfew-wh eeler~bad-ch oice-epa-k!mme!Vindex.html 1113 
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urderrniring safeguards upon w:o:ch An1ericans rely to keep their air and water safe. 

w:;en 1 met VV!ieeter in October, we talked abo.Jt the imoact of clrmate change: dangerously 

temoeratures, rising seas, deadly w ldfims, torrent'a' rainfalls and devastat'ng .hcii·ricanes. 

oressed him to stop the climate policy roill!acks tl'at Pruitt nad rauncr,ed. 

I was gravely disappointed to l'ear him claim that the EPA didn't have the legal autllor·rty to do mcrc!c 

of anytt1!ng atJout caroon poilution from power plants, a departure not only from Su:Ye·ne Co •. Ji'l 

hlrnt 
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1/15!2019 EPA nommee Andrew Y\'hee.ler 1s e-ve-n worse than Scott Pruitt {opm1on)- CNN 

decisions, but also from the Trump administration's expansive claims of executive power in so many 

other areas. 

Wheeler made it clear he would press ahead in dismantling the two safeguards that lower major 

sources of US climate change pollution: the Clean Power Plan, which cuts carbon pollution from 

coal-fired power plants, and the clean car standards, which have already been saving consumers 

money at the pump. As an additional gift to the oil industry, the EPA is proposing the rollback of 

safeguards that limit the release of methane pollution, leaving communities near oil and gas facilities 

at even greater risk of developing serious health issues. 

Related Article: Congress, reverse the EPA's assault on our environment and healtll 

How does Wheeler justify policies that fly in the face of science? He obfuscates. Several months 

after our meeting, after a US government-led National Climate Assessment was released, he said in 

a press interview that he had not read the full report to which his own agency scientists had 

contributed. 

Even more disturbing, Wheeler still felt comfortable speculating about the conclusions. The report 

had, in fact, made clear that the harms caused by climate change will increase exponentially without 

https:l/amp C:in comfcnn/20i9/D11151oplnlons/andrew-whae!er-bad-cho!ce-epa-kimmelllindex hlml 3/13 
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111512019 EPA nominee Andrew Wheeler is even worse than Scott Pruitt (opinion)· CNN 

action. Wheeler again dumbfounded the scientific community when he claimed that future iterations 

of the report would need to be reviewed by the Trump administration's political appointees. 

But Wednesday is a moment of truth, as Wheeler will appear before the Senate committee that will 

consider his nomination. Lawmakers must grill him about how he has ignored the scientific 

community's overwhelming consensus on climate change and showcase just how dangerous it is 

when those in power leave science out of the equation. 

Senators must also focus on Wheeler's recently proposed plan to tilt the playing field against public 

health and safety protections. He has recommended a new formula for assessing mercury pollution 

from coal plants (mercury is one of the most toxic pollutants). Under this formula, the EPA can weigh 

coal plant owners' direct and indirect costs of installing technology to cut mercury pollution, but 

cannot look at all the protections' benefits to the public. 

More specifically, if a pollution control technology reduces mercury pollution and also other 

dangerous air pollutants, such as soot, the EPA can only consider the value of lives saved and health 

care costs reduced due to mercury reductions and must ignore the benefits of reducing soot. 

Putting this blinder on makes no sense, but counting all the benefits of this safeguard makes it 

harder to roll back the protection, which is what the coal industry-- Wheeler's former client-- wants. 

https:/la rnp. en n . com/cnn 1201910 1 !15/opinion stan drew-wh eeler-bad-ch O!ce- epa-kimmell/lndex .html 4113 
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1/15!2019 EPA nominee Andrew Wheeler is even worse than Scott Pruitt (opinion)· CNN 

While it's clear my meeting with Wheeler did not change his perspective, it's not too late for the 

Senate to do its job. Wheeler has a long track record that shows he does not follow science and is 

not advancing the EPA's core mission to protect public health and the environment. There is a better 

alternative. When EPA Administrator Anne Gorsuch Burford resigned in scandal, President Ronald 

Reagan brought in William Ruckelshaus, an experienced and trusted moderate who respected 

science. Senators should insist on no less here. 

View on CNN 

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https://amp.cnn.com/mn/2019/01/15/opinlons/andrew-wheeler·bacP-choice--epa·kimmelVindex.html 5113 
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The Washington Post 

Energy and Environment 

Trump plans to nominate Andrew Wheeler, former coal 

lobbyist, as EPA chief 

Wheeler took over as the agency's acting administrator in 

early July after Scott Pruitt resigned amid ethics scandals. 

By Brady Dennis and 

Juliet Eilperin 

November16 

President Trump said Friday that he intends to nominate former industry lobbyist Andrew 

Wheeler as the Environmental Protection Agency's next administrator, a move that would 

ensure a continued deregulatory push at the agency. 

Trump made the impromptu announcement during a Medal of Freedom ceremony at the White 

House, saying that Wheeler had done a "fantastic job" as the agency's acting administrator in 

recent months. Wheeler took the helm in early July after Scott Pruitt resigned amid mounting 

ethics scandals. 

During his brief tenure as the EPA's acting chief, Wheeler has proved far different from the man 

he replaced. Where Pruitt was a politician who appeared to enjoy the limelight and trappings of 

Cabinet life, Wheeler has long worked behind the scenes on energy and environmental policy 

and generally avoids public attention. Along with Health and Human Services Secretary Alex 

Azar and Veterans Affairs Secretary Robert Wilkie, Wheeler represents the sort of technocrat 

who has risen through the ranks after an initial Trump Cabinet pick stumbled. 

But Wheeler and his predecessor have this in common- a zeal to deregulate. Wheeler made 

clear from the start that he intends to carry out many of the regulatory rollbacks set in motion 

under Pruitt, and to pursue new ones. 

"I will try to work to implement the president's agenda," Wheeler told The Washington Post 

shortly after he took over the reins at the EPA this summer. "I don't think the overall agenda is 

going to change that much, because we're implementing what the president has laid out for the 

agency." 
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In the months since, Wheeler has continued to advance Trump's agenda, proposing rules to 

loosen carbon limits on power plants and relax fuel-efficiency standards for cars and light 

trucks. Those proposals, along with moves to change the way the agency calculates the health 

benefits of new air-pollution standards, have sparked sharp criticism from environmental and 

public health groups. 

But Wheeler also has struck a more conciliatory tone with career employees at the agency, 

emphasizing that he once served in their ranks and that he values their service. He also has 

postponed some of Pruitt's more controversial regulatory plans, including one relaxing 

emissions rules for long-haul trucks that place older engines in newer bodies, known as glider 

kits. 

Just this week, Wheeler announced a plan to impose stricter limits on nitrogen-oxide emissions 

from heavy-duty trucks, winning praise from the trucking industry and the American Lung 

Association. 

Wheeler, like his predecessor, undoubtedly will have the support of industry. 

"Andrew's steady hand will help ensure a balanced approach that will continue both 

environmental progress and economic growth," said Karen Harbert, president of the U.S. 

Chamber of Commerce's Global Energy Institute. 

Scott Segal, an energy lobbyist at the Bracewell law firm, called Wheeler "a good pick." 

"Andrew Wheeler's background shows that he has the capacity to advance an appropriate 

balance of energy, environmental and economic considerations in a manner consistent with 

open administrative process and respect for rule of law," Segal said in a statement. 

Wheeler stands a strong chance of winning Senate confirmation, though his nomination is still 

likely to spur debate. He won approval for his current job in April on a 53-to-45 vote, with three 

Democrats supporting his nomination. At the time, several Democratic senators questioned his 

past work for Murray Energy, one of the nation's biggest coal companies, as well as mining 

companies and other energy interests. 

The top Democrat on the Senate Environment and Public Works Committee, Sen. Thomas R. 

Carper (D-Del.), said in a statement that he will evaluate how Wheeler has performed in recent 

months before deciding whether to back his nomination. 
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"If the president intends to nominate Andrew Wheeler to be the Administrator of EPA," Carper 

said, "tben Mr. Wheeler must come before our committee so that members can look at his 

record as acting administrator objectively to see if any improvements have been made at the 

agency since he took the helm." 

Another Democrat, Sen. Sheldon Whitehouse (D-R.I.), was less diplomatic. 

"I hoped Scott Pruitt's policy dirty work would dry up after he left the EPA in disgrace, but 

proposals like tbe forthcoming rule to weaken or eliminate protections against mercury 

emissions make it clear Andrew Wheeler plans to continue ... with rollbacks of vital 

environmental protections," Whitehouse said in a statement. 

Environmentalist activists also were quick to criticize the idea of Wheeler as EPA chief. 

"In normal times, a zealous fossil fuel apologist and tbe top official in charge of protecting 

children's health from pollution would be two separate people witb conflicting agendas," said 

Ken Cook, president of the Environmental Working Group. "Butthis is tbe Trump 

administration, where a former top coal lobbyist could become administrator of tbe EPA." 

Brady Dennis 

Brady Dennis is a national reporter for The Washington Post, focusing on the environment and public health 

issues. He previously spent years covering the nation's economy. Dennis was a finalist for the 2009 Pulitzer 

Prize for a series of explanatory stories about the global financial crisis. Follow'# 

Juliet Ellperln 

Juliet Eilperin is The Washington Post's senior national affairs correspondent, covering how the new 

administration is transforming a range of U.S. policies and the federal government itself. She is the author 

of two books- one on sharks and another on Congress, not to be confused with each other- and has 

worked for The Post since 1998. Follow'# 

The story must be told. 

Your subscription supports journalism that matters. 

Try 1 month for $1 
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YENU Waste Q SEARCH 

Former EPA officials and employees are concerned 

the reorganization could open an opportunity to 

shrink the agency. 

Q 1!1 f 3• in !# ® 

LOGIN REGISTER 
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VENU Waste LOG IN 

Regional offices of the Environmental Protection Agency (EPA) are bracing for 

possible structural changes that could come by the end ofthe year. 

REGISTER 

'The EPA is moving forward with a reorganization of 10 of its regional offices to 

mirror EPA headquarters, Acting Administrator Andrew '\-\'heeler announced in a 

memo. 

Related: Pruitt's Short Tenure Could leave 

According to a Bloomberg Environment report, former EPA officials and current 

employees are wary the reorganization could give the Trump administration an 

opportunity to shrink the agency. "The effort (.'auld also allow political leadership a 

tighter rein over the regions-where approximately half ofthe agency's career staff 

work and where much of the on-the-ground permit reviews, oversight and 

enforcement operations occur," the report stated. 

Bloomberg Envirormumt has more details: 

The EPA's regiorwl offices could see structural changes by year's end, but the 

trickle-down effects-on enforcement, staff levels, and leadership-are 

already raising alarms among current and former workers. 
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MENU Waste Q SEARCH LOGIN REGiSTER 

The Environmental Protection Agency is moving forward quickly with a 

reorganization of its 10 regional offices to minimize uncertainty for staff in those 

ojfices, Henry Darwin, the agency's chi~{ of operations and acting deputy 

administrator, told Bloomberg Environment. 

Acting Administrator Andrew Wheeler announced the ~t]i.n·t, which wiliT·esht{ft1e 

the regional offices to mirror EPA headquarters, in a Sept. 6 memo. 

TAGS: COLLECTION AND TRANSFER THE BUSINESS lEGISLATION K REGULATION 

BUSINESS OPERATIONS LABOR RELATIONS 

OCOMMENTS 

RELATED 

Proposed Bill Would Allow NYC'! BIC to 

DlrW!y Pollee Labor Unions 
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Since the government shutdown began, the National 

Mall in Washington, D.C., has been scattered with 

trash near the Washington Monument and US 

CapitoL 

& illli f 8• in '01 ® 
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ThNe~at~~~e has announced that it will reso,!Tl!!maintenaoot~ servilllti$TER 

in Washington, D~a parks. The announcement comes after parks across the 

country have been overflowing with trash amid the ongoing partial government 

shutdown. 

Since the shutdown, the National Mall in D.C. has been scattered with trash near 

the Washington Monument and U.S. CapitoL Area agencies and organizations 

have been doing their part to pick up the federal government's slack during the 

shutdown. 

The Hill recently reported that members of a Muslim youth group collected trash 

and cleaned up national parks around the U.S. over the weekend of January 5 and 

6. Dozens of people associated with Ahmadiyya Muslim Youth Association, the 

largest national organization forM us lim youths, cleaned up litter, emptied trash 

cans and swept the grounds in places such as the Everglades National Park in 

Florida and Joshua Tree National Park in California. 

WAMUhas more details: 

The National Park Service announced that it 

would resume maintenance seNices In Washington-area parks on Friday, Including the National 

Ma/4 George Washington Memorial Parkway, and Rock Creek Park. It will also reopen several 

bathrooms at sites around the Mall. 

The Park Service has not completed any trash collection, roadwork, or sanitation 

services in its parks since the federal shutdown began on Dec. 22. 

It will dip into fee revenue from national parks across the country to cover the 

costs. Those funds are typically reserved for future projects. 

Read the full article here. 
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Boord of Di~crors 

Limb Reinstein 

President 

!~Hen Cost:~ 

Secretary 

K1mbcdy Cec(;hini 

Member at Large 

fo:l\cn·l\mkelrott 

Treaturer 

Nati'ontJJ 

Spokes penon 

Jordan Zcvon 

ScicJJcc Advisory BOJUd 

t\rth\~.t L Frank, MD, PhD 

Co·Chaif 

Richard Lemen, PhD, MSPH 

Co-Chair 

Dr. HraclH!ack 

Dr. Rap. Flores 

!kMit:hadllarbut 

Dr. Steven Markowitz 

Dt.ChrisrineOlivcr 

P~vcntion Advisory Bo11n! 

Brent Kvnoch 

Co-Chair 

Chri~tinc Wint~r 

Co-Chair 

Claire Deacon 

Tom Laubenthal 

Tnny lbch 

Mark Winter 

January 14, 2019 

Y&fiiDAO 

Asbestos Disease Awortfless Organization .. Voice of thv VIctims 

The Honorable John Barrasso, Chairman, Committee on Environment and Public Works 

The Honorable Tom Carper, Ranking Member, Committee on Environment and Public Works 

RE: Andrew Wheeler EPW Conunittee Nomination Hearing 

Dear Chairman Barrasso and Ranking Member Carper, 

As the largest asbestos victims' organization in the United States, the Asbestos Disease Awareness 

Organization (ADAO) is closely following the nomination of Andrew Wheeler for the position of 

Administrator of the Environmental Protection Agency (EPA). 

There is an overwhelming consensus in the scientific community that there is no safe level of 

exposure to asbestos. Despite the voluntary elimination of many asbestos products, the death toll 

from asbestos exposure remains alarmingly high. At ADAO's 14th Annual Asbestos Awareness 

and Prevention Conference in \Vashington D.C. in 2018, Dr. Jukka Takala DSc, MSc:, BSC1 

President of the lntemntional Commission of Occupational Health, reported that asbestos-related 

deaths in 2016, numbered 39,275- more than double the pre,Tious estimates of 15,000 per year. 

Americans demand and deserve a political appointee that will place the health of the public and our 

environment before corporate profits. Wednesday's hearing on his nomination is an important 

opportunity to ensure that Mr. Wheeler meets these demands. 

If conftrmed, Mr. \Vheeler will have the opportunity to change course on asbestos and make 

protection of public health EPA's top priority. As such, we believe the Committee should press 

Mr. \'(!heeler on a number of important issues pertaining to asbestos regulation. We urge the 

Committee to question Mr. Wheeler about whether or not he is concerned by the ongoing 

importation of asbestos and- given the risks v.Fith exposure to asbestos- if he will commit to 

eliminating all asbestos imports following the ongoing risk evaluation. Mr. "Wheeler should be 

questioned about whether he is prepared to strengthen and expand the ongoing asbestos risk 

evaluation under TSCA. 1-lis willingness to reverse the troubling exclusions of legacy use and 

disposal from the evaluation must also be discussed. We urge the Committee to press the nominee 

to effectively implement the safeguards for school children and teachers in the Asbestos Hazard 

Emergency Response Act (AHER.A). Finally, Mr. Wheeler should be asked whether he supports a 

comprehensive asbestos ban under TSCA. 

By addressing these essential issues, ADAO believes that the Committee may best safeguard the 

health and security of American citizens. We look forward to working with the EPA and the EP\V 

Committee to ban asbes once and for all. 

1

e , , thank you for your leadership, perseverance, and dedication to 

our environment. 

~ 

nt and CEO, Asbestos Disease Awareness Organization 

Asbesm~ Diseosc 1\warcnc~s Of!.iani:wion is a ft'gistcrccl501(c} (3) nonprolit Ol"l,>anization 

"Unltfil for ABbclitru DiacaMc A wrurncBS, Educ~tkm, Adv~:acy, ~nd Communiry SupPOrt" 

1525 ,-\vlation Uou!evanl,Suitc 318 · R~:ll<mdu Beach· Cahfonua · 'KJ27S · (3Hl) 251-7477 

l'W" \'I)( qq,l)!or!~<· \I\ lf! "l<'~'·m• 
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The Honorable Andrew Wheeler 

Acting Administrator 

1Jlnitrd ~tutrs ~rnatr COMMrtTEf ON ENVIRONMENT ANO ?U9UC WOHKS 

July 6, 2018 

U.S. Environmental Protection Agency (EPA) 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Dear Andrew: 

I write to congratulate you on being named Acting Administrator of the EPA and to ask you to do 

all that you can to restore the American people's confidence in the agency's mission, which is the 

protection of human health and our environment. 

Scott Pruitt's record of corruption, wasteful spending on himself while attempting to slash the EPA 

budget and workforce, secrecy, retaliation against those who dared object, and legally questionable 

rulemaking proposals have been well-documented. 

They say that history doesn't always repeat itself, but it often rhymes. A review of a different 

chapter in EPA's history reveals the truth of that adage. Mr. Pruitt's tenure at the agency brings to 

mind the tenure of former EPA-Administrator Anne Gorsuch, which \Vas described as "marked by 

sharp budget cuts, rifts with career EPA employees, a steep decline in cases tiled against 

polluters and a scandal over the mismanagement of the Superfund cleanup program that ultimately 

led to her resignation in 1983 .... She filled various departments at EPA with subordinates 

recruited ti·om the very industries the agency was supposed to be regulating. 1

" 

When Ms. Gorsuch was forced to resign, President Reagan nominated William Ruckelshaus, who 

had served as the nation's first EPA Administrator, and who had since that time also worked on 

behalf of many companies regulated by EPA, to serve as Ms. Gorsuch's replacement. Much like 

your nomination to serve as EPA's Deputy Administrator, Mr. Ruckelshaus's industry ties2 led to 

considerable skepticism3 when his nomination was considered by the Environment and 

Public Works Committee. 

In his opening statement (attached), he observed that the opposition to his nomination during the 

two days of hearings that preceded his appearance gave him "a sense that I was witnessing my own 

1 https;/lwww. wash in gtonpost.com/news/energy.en viron mentlwp/20 1 7/02/0 I !neil-gorsuchs-mother-once-ran-the.epa-itwas-a-dlsasternutm term=. l417o04c3592 

' https://www .nytimes.com/198 3i03/26/us/ruckelshaus-s-ties-split-environmental-leaders. html 

'https://www.washingtonpost.com/archive/politics/1983/05/04/wildlife-federation-endorses-tuckelshaus-other-groupsneutrallb649 ffii f-c7aa-4 fee- 896c-632 4974f5 2a0/?utm _ tenn;. 13b42767 8ce 7 
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lynching." During his confirmation hearing, Mr. Ruckelshaus committed to following and 

enforcing environmental laws, said he would request and use the advice provided to him by EPA's 

career staff, and also said: "There will be no hit list. There will be no "Big P" political decisions, 

there will be no sweetheart deals .... l will seek help from scientists, from environmentalists, from 

economists, from industrialists and from the general public ... Recognizing the important oversight 

function that Congress must play, a better dialogue and increased trust between the legislative and 

administering authorities in this area will be a high priority of mine." 

Alter he was nominated, the Washington Post reported (attached) that he received "an emotional 

hero's welcome" from the beleaguered EPA employees as he promised that "the atmosphere of the 

demoralized agency will change dramatically." Within a week after he re-assumed the helm of the 

agency, Mr. Ruckelshaus authored the 'fishbowl memo' (attached) to establish strong transparency 

and ethics procedures at EPA. When he resigned in 1985, The New York Times said4 that "he has 

widely been credited with restoring the morale of the career employees at the agency, bringing in a 

cadre of competent, experienced assistant administrators and restoring much of the agency's will 

and capacity to carry out the environmental laws. He also insisted that the agency's enforcement 

staff step up its operations against violators of the environmental laws." 

Mr. Ruckelshaus recently opined,5 of Scott Pruitt's EPA, that the "EPA should have no natural 

constituency but the public whose health it is mandated to protect. ... the consequence of such 

conduct is the slow, destructive erosion of public trust in the EPA. Once trust is lost and warnings 

of unsafe air or contaminated water are ignored, Americans will pay the price. Without that trust, 

not only will people question whether they can believe their government but also business and 

industry will face public backlash." 

Andrew, you have been granted an enormous challenge and responsibility, but an even greater 

opportunity. The damage Scott Pruitt has done to the Agency will not easily be undone. While you 

and I have not always agreed, and will not always agree, on every environmental policy matter, it is 

my hope and expectation that you will carefully consider the lessons of the past as you prepare to 

chart the Agency's future. My staff and I stand ready to help, and to that end, I request a meeting in 

the near future to discuss what we feel are some of the most important near-tenn steps you could 

take to restore confidence in the Environmental Protection Agency (attached). 

With best personal regards, I am, 

Sincerely yours, 

~ Ranking Memtler 

' h ttps :1/www .nytimes.com/1984/1 1/29/us/ruckelshaus-res igning-post-as-ch ief-<> f-the-epa. html 5 https :1/www. washingmnpost.co m/op in io ns/pru itt- is-tum ing-his-back-on-trans parency-at-theepa/2017111/0 l/cd2c 1 bB4-bdBB-11e7-8444-a0d4f04b89eb_story.htm1?utm_tenn=.67fb 14489d0a 
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Restoring Trust in the EPA 

This is a non-exhaustive list that does not include all EPA actions that are of concern. Rather, this 

list represents ways to remedy some of Administrator Pruitt's most egregious proposals, practices 

and missed opportunities. 

Restore transparency, trust and ac:countability 

I. Provide daily, more detailed information about the activities of confirmed and other senior 

unconfirmed EPA officials. 

2. Ensure that all policy and other decisions are properly documented in writing. 

3. Respond to Freedom oflnformation Act requests in a complete, minimally redacted, and 

timely manner. 

4. Respond to Congressional oversight letters in a complete, accurate, and timely manner. 

5. Cease efforts to dramatically sluink, exclude, or retaliate against members of the EPA 

workforce. 

6. Restore scientific information that was removed fl'Om EPA's website. 

7. Advocate in support of a budget that appropriately reflects the agency's needs and 

responsibilities. 

8. Ensure that environmental laws are enforced through enabling the detection and deterrence 

of potential violations and requiring appropriate monetary and/or environmental remedies. 

Abandon legally questionable policies and proposals 

l. Withdraw EPA's proposal to repeal air emission standards for glider trucks, which appears 

to largely benefit a single company while being opposed by the vast majority of industry, 

and was influenced by an industry-funded "study" that is currently the subject of an ot1icial 

investigation into research misconduct for failing to adhere to basic scientific standards. 

2. Withdraw EPA's "secret science" proposal, which will require EPA-when developing 

rules-to rely only on scientific studies where the underlying data have been made public 

and are available to be reproduced. Such a policy would likely violate several laws that 

mandate the use of"best available science," including the Toxic Substances Control Act and 

Safe Drinking Water Act because it would require EPA to ignore some of the "best" 

scientific studies, and would also likely run afoul of the Administrative Procedure Act, 

which requires agencies to consider and respond to all information presented to it pursuant 

to a ru lemaking. 

3. Abandon etTorts to complete the draft proposed rule that seeks to dramatically weaken 

vehicle fuel economy and greenhouse gas tailpipe standards and preempt California's 

authority to set and enforce its own greenhouse gas tailpipe standards (as well as that of the 

12 additional states, including Delaware, that have adopted them). Instead, work to negotiate 

a 'win-win' solution on federal fuel economy and tailpipe emissions standards that can be 

supported by both the automobile industry and the State of California. 
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4. Implement the near-unanimously enacted Toxic Substances Control Act in a manner 

consistent with Congressional intent that new and existing chemical safety reviews be 

conducted tor all uses of a chemical substance, and additionally, that proposed bans tor 

some uses of three chemical substances be quickly finalized. 

5. Follow the law when revising, implementing and enforcing rules to limit air pollution under 

the Clean Air Act, abandon efforts to weaken existing mercury and air taxies and ozone 

rules, and live up to the responsibility to protect downwind states from air pollution blown 

in from upwind states. 
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189 

Senator STAJTOJID, Thank you very much, Senator Simpson. Mr. Ruckelshaus, we woul<t be glaa to hear your statement. 

STATEHEJIT OF WILLIAM D. BUCDISJUUS, ADHiliiS'lUTOB· 

DESIGJIATE, UVIXOl'flltDTAL PBOTEOTIOJI AGEl'fOY 

Mr. RucXELSw.us. Thank you very much, Mr. Chairman and mPDl· 

bers of this committee. 

I appreciate very much those kind comments that many of you have 

made m ;rour charge to me to take my new assignment seriously. I 

watched these committee proceedings yesterday on television, and 

I must confess I had a sense that I was witnessing my own lynching. Here this morning, I have a sense in part that I have been at my own 

funeral •. 

Somewhere in between, I am sure,lies the real me. 

Twelve yeus ago I appeared before this same committee and I asked 

the members to recommend that the full ~nate confirm me as the first 

Administrator of the Environmental Protection Agency. I am today ask~ the committee to repeat its earlier vote of confidence. 

The committee has amassed more infol1Ilation about me than I knew 

existed 6 weeks ago. You have all my financial data, my personal recusal statement, my work history, and virtually ever;rthing I have 

said1 written, or thought about the environment or public health for 

the ta.st 12 years. You even have every personal letter I have been able 

to find in my files relating to the job of Administrator of EPA, and 

all of this information has been tumished by me or at my dhoection 

b;r the organizations with which I am affiliated. 

Mr. Chairman, I am about to note in passing the personal letters 

that the committee has. When the President announced his intention 

to nominate me some 6 weeks ago, I told my sta1f at Weyerhaeuser and elsewhere to cooperate with the committee fully, to give them any- thing the;r wanted. I gathered all of the speeches, testimony, articles 

that I bad written. I even gathered all my personal correspondence, and I gave all that material to my sta« and told them to give it to 

the committee. It never occurred to me, frankly, that the Committee 

would want my personal correspondence, but 1t was requested and 

turned over to the committee by my sta«. _ _ · I didn't realize that this had happened until last Friday. By way of explanation, Mr. Chairman, of a letter that I wrote to you on 

Thursday enclos~ some of the correspondencec that had appeared in the New York 'l'irnes, I indicated to you I didn't know where it was 

coming from. On Friday, a member of my sta« brought up the bundle 

he had sent and he was very proud of the fact that he had followed 

my instructions and turned everything over to the committee. That is 

how it hap).)ened. 

I did find over the weekend some mention of the environment in a 

couple of letters that I sent to my mother which I would be glad to 

tum over to the committee. 

She, like some other members of this committee, had a ~estion 

about judgment in returning. She asked me on the phone how I could 

possiblY, take a job 10 years later in which I was not getting a 

promotton. 

I told her she wouldn't want to hear the whole thing. 

~0-6~6 0 - 83 • 13 
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Well, I don't believe it is possible, Mr. Chairman, for this committee 

to know any more about me than you now do. What you see is really 

what you get. I will, of course, answer any questions that you might 

have regarding the material that I have given ,rou1 and I would re· 

spond to any questions that might have arisen at the hearing yesterday. 

In this statement I will not dwell on the record before you but in· 

stead will tell you what I plan to do if confirmed, how I intend to do it 

and what I hope to accomplish my second time around. 

Before I start, let me make clear my personal perception of the issues 

the EPA was created to address. To the American people, protection of 

public health and our national environment embodies a terribly impor· 

tant and enduring set of values. The surve1 data I have seen and my 

own experience stronsly indicate that Amencans feel more deeply committed to the protectiOn of public health and the environment than any 

people on earth. 

Our country, acting through Federa11 State and looal govomments 

over the past two decides, has translated that commitment into a massive network of laws and regulations to protect the health of our peo· 

pie, the air1 water and earth that they all share. As these Jaws attest, 

the debate m this country over whether we are going to protect public 

health and our environment has long since ended. 

I completely share our Nation's commitment to the values of public 

health and the environment. Since first coming to EPA in Ht701 I have participat~ in the national dialog about how to translate those values 

1nto achievable goals. I intend, while at EPA, to continue to participate, and if confirmed, many of the same arguments I have made in 

the past whether in or out of the government. 

Now, if I am confirmed what tlo I .Plan to do I I discussed the nature 

of the Administrator's job with the President ftnd his immediate staR' 

before he asked me to serve. We agreed that people and resources to do th~ iob were essential in~redientsof success. 

My first priority will be to recruit the best people I can find to man· 

age the agency. I am _gratified that in the last 6 weekst there have b!en 

literally thousands o~ofters to help. Many have come trom people who 

were tliere before who have proven themselves under fire and who are 

willing to disrupt their lives to help their country. 

I am confident that from that group and others a superior group of 

people can be assembled, · As to the resources to do the job, it will be a very high priority of 

mine to review the existing budgetary ceilings to see if additional 

money or ~pie are needed to carry out the mandate of Conga:ess. If I conclude . we need more help, working with the administraion, 

we will submit an amended 1984 bud~t request and supplementall988 bud~t request consistent with the 1984 a1nendments. 

Many of you have expressed an interest in whetller I intend tore· 

quest additional budgetary authority or whetller I will seek tX>licy 

rhanges on virtually every pro,gram area the agency administers. 

These questions are hard, H not Impossible. to answer fn the !lbstract, 

and many of them I sim~l)' cannot properly respond to untll I have 

a chance to review the pohcies and !)rogram neras in more detail. 

I can ofer some guidance on what I now see as hi~h-friority issues. 

Much has been said and written in criticism of EPA s enforcement 
941 


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policies. The questions seem to focus on three aapects of enforcement. 

The will, capacity and organization. As to will, let me disabuse anyone who believes EPA, while I am 

there, \'Vill not have the reouisite determination to enforce the laws 

as wr·itten bl Congress. The environmental laws of this countl'Y \vere passed by Congrest~ and were .meant to be taken seriously by the ad· 

ministermg authoritieS. I do take the Congressional charge seriously, and if I am confirmed, J.}P A will take that charge seriously, We \Viii enforce the laws of this country. Wo will be finn, and we will be fair. We must never forget that m a time of high emotion 

such as we now face where the public interest demands fairness in 

the enforcement of our Jaw, the public good· mirrored in the Bill of 

Rights demands that due process not be abandoned. The EPA I head 

win adhere to both principles. I have asked the ~o.Ple now at EPA for a review of both the capac· ity to enfot"Ce, which IS a resource question, and the organization of 

the enforcement function, which is a management question. I have 

had a preliminary response to both questions but have come to no final 

conclusions as .to what makes the mQSt sense for the agency. The whole issue of toxic substances, as some of you have already mentioned, is of much greater prominence than when I was first at 

EPA. The law to regulate pesticides, FIFRA, was already enacted. 

There were provisions in the Clean Air Act and Clean Water Act 

that related to toxic substances, but only since I left has EPA estab· 

Jished the basic structure to control the manufacture, distribution, 

use and ultimate disposal of toxic substances. 

In the last 6 weeks, I have seen in the press that the number of 

problems, this has had an impact on me. Mr. Chairman and members 

of tl1e committee, I had some feeling for the ~ope of this problem, but nothing like I received in the last 6 months by reviewing the clip· pings that EPA gets from all over the country relating to toxic sub· 

stances. I have seen that the number of problems surfacing all over 

the country relating to toxic substances and to;l'_ic chemicals is truly z,;taggering. . We have in place a complex set of laws and regulations to deal with 

the toxic subStance pro6lems. I certainly h11.ve no preconception whelher these laws or regulations or• the resoul"('~ we have committed 

to their implementation are adequate. I do know that wise and ag- gre~h"6 imp.lem~ntation of these laws must be a very high priority of mme, and 1t wlll be. 

There are other matters which will immediately demand my attention such as the reauthorization of most of the organic la\VS of EPA8 out of 10 have expired-along with specific issues such as acid rain. 

Last and certainly not least, I will mak-e a concerted effort to harness tl~e ~nergies and the talents of the people at EPA toward the Agency's mtss1on. 

EPA's greatest resource today is the same as when we started: It's 

people. Mr. Chairman, when EPA was created in 1970, in the first 

41i days of its existence, we received 260,000 applications for job& from all over this country. That was an expression that was impl'eS' sive to me at the time of the concern of tlie people of this country about the environment, and as best I can tell, that concerns has not. diminished since, 
942 


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If these people there nre trusted, if they are included in and given clear g11idance as to Wllat is expected of them, they will perfol'm to 

o. very high standard. l will work hard, and they will work hard toward our common objective. To carry this message of trust and reliance forward, I intend to 

personally visit and taJk to as many people at EPA her& and in the 

10 ~ons and laboratories in the first few weeks after confirmation. 

That is what I intend to do. How am 1 going to do it¥ In my judg· 

ment1 it is important for this committee's deliberations to know what 

I intend to do. It is also important to know how I will do it. 

The chargeji currently .lodged against some of the people of .EP .A 

focus primarily on abuse of process. There are many policy differ 

ences, but the main allegations concentrate on the way the existing laws are administered. Without commenting on the subStance of those 

charges, this committee should know how I intend to operate. The existing laws will be administered as written, I will continul\ 

to bring to this committee's attention recommendations for change where I believe change is warranted, but in the meantime ours remains a Nation of laws and not of men, and the laws wih remain 

supreme. . As I did before when I was thel!J I will do now, and that is, operate EPA as honestly as I know how. There will be no hit Jist. There wilJ 

be no "Big P" political decisions, there will be no sweetheart deals. 

We will attempt to communicate with evoryone from the environ· 

mentalists to those we regulate, and we will do as openly as possible. Mr. Chairman, I 4ave already directed that my staff attempt to 

prepare-assuming this body confirms me-to prepare some guidance fo1· how we will communicate so that. it will be clear to everyone exactly how this communication can take place, and it will be as open as we 

know how to make it. 

I will seek the best advice I can get on how to diml with the terribly complex ~roblems EPA must confront. I will seek help from scientists, from environmentalists, from economists, from industrialists and from 

the general public. I hope to engage former administrators of EPA in 

a constant dialogue to take advanta~ of th-eir collective wisdom. 

Last!y, I hope to engage this commattee-and I know, Mr. Chairman, 

every Committee that ever confirms anybody, and thi.o; body hears the 

same pledge made by the person they confirm, but I am goin_g to do the 

best I can to live up to tliis pledge. I hope to engage! this Committee, this Committee's staff and oth«!r committees of Congress and their 

staffs in a joint eft'ort to improve our Nation's ability to respond to 

the mission of health and environmental problems facing EPA. Reeo~i:ting the important oversight function that Congress must 

play, a better dialogue and increased trust between the Je,Vslative and 

administering authorities in this area will be o high priority of mine. 

In the past weeks, I have gh·en a good deal of thouglit to what 

I would like to do at EPA, what goals I would set for myself, what 

I would like to accomplish, and I thoun-ht it might be well to share with 

this committee at least my preliminary thought". abont tho~ goals. First and foremost, the Amer1cnn people need to hehe,·e that the a~ncy 

charged with protecting so mnnv aspects of their heRlth and their 

natural environment is staff'ed wi'th flrst·rate peorle doing their very best. The problems EPA confronts are hard ones. Some of these prob· 
943 


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193 

lems just defy solution. Throughout, from the definition of the prob· lem to ita solution, the agency must deal with enormous scientific un- certaint~Jt_often must act before it is clear what the optimum solution 

would be.' 

To function at all in such uncharted waters, the Amer·ican people 

must trust EPA's moth·ation and ability. To insure that necessary 

trust will be a prime objective of mine. 

I will endeavor to instill in the employees of EPA a sense of mission 

and dedication to e~ceJJence. I will try to convince them that EPA's 

mission must be carried out b):..People \vho recognize they are servants 

of the public and not their masters and by people who are as dedicated 

to fairness and civility to others as to excellence in themselves. An 

ngenc:y steeped in this tradition is a legacy to which I will aspire. I wall attempt to put a management system in place that can meet 

our goals effectively and efficiently. To accomplish this, EPA and all 

its elements must first understand our mission and objectives so we 

know what we are managing toward. 

Most of EPA's mission and objectives are defined by statute. I WQuld hope, working with the Congress, to create for the country a more 

etl'ective legal framework to attain our goals. As 1 have stated, my obligation as an Administrator is to faitllfully execute the laws of the 

country. In the process of such executiont I will seek to evaluate t.he 

impact of the law on both the intended ana '1m intended tar~ets. 

Where I think we can lessen the etl'ect on the unintended tar2et 

without sacrificinl( our objectives, I will recommend change to the 

Congress. I did tli1s at EPA before, and I will do it again. As part of my eft'ort to improve our legal framework, I intend to 

address the question of the role that the vat·ious levels of government pi~ in administering our environmental and health IR\Ys. Too much time is spent by one level of government overseeing the 

work of the other. With a more clear definition of understanding of 

who is supposed to do what and who pays for it, we could eliminate 

much of the public and private frustration over environmentalla\vs. That is a tall order in our Federal system, but with a joint effort l?Y the 

EPA, the Congress, and the States, more clarity and less-redundancy is possible. · I will work toward gain in~ greater public comprehension of the complexities of man~nlf risk m a free soeiety. I also hope to enlist the 

scientific communaty m a more aggressive participation in the public dialog. In my viewi the public needs to hear more of what the Admin· 

istrator of -a place· ike EPA hears regarding scientific uncertainty if 

they can be expected to support sound public policies. I will work particularly llard to foster a better dialog between gov· ernmant and environmentalists and the regulated industries. The end· 

less publio and private acrimony that surrounds the mix of problems before EPA deffects energy, saps resources, and is ultimately debilitat· 

ing to the whole effort. Over the last several years, I have become con· 

vinced that as Americans, we must first remember we all share this 

geography of our country, if we are to convince the rest of mankind 

that we must share and conserve the ~graphv of our planet. I have otherfoals regarding such things as developing new and ae· 

cepted ways o measurin~ progress against our environmental and 

health go9.1s and fashiomng e1tective ·long-term strate~ies for controlling toxic substances. 
944 


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194 

I could go on, but aecomplisldng even a fraction of these objectives 

will be task enough. I will welcome suggestions from this committee 

regarding the what and how of my ho~'· 

I did not seek this iob. But havin_g decided to accept it, I a.m en~r­

~d and excited by the challenge. If confirmed, I pledge to this eom· 

mittee and to the .American people to do the best I can as long as I'm 

there. 

Thank you, Mr. Chairman. 

Senator 8TAFI'ORD. Thank you very much, Mr. Ruokelshaus, for 

your excellent opening statement. · I have conferred with Senator Randolph, and we would propose 

to our colleagues on the committee that we limit ourselves in the first 

round to 10 minutes per member for questions, 

There will be as many rounds as n~ to satisfy all members 

of the committee. Questions which the'- wish to addres to Mr. 

Ruekelshaus will be addressed to him, and he will have a chance to 

res~nd to them. Is there objection to following that procedure t 

o response.] 

enator STAFFORD. I hear none, and that being the ease, we will 

start. Again, Senator Randolph and I have confeiTed, and we would 

like to propose continuing the hearing today until! o'elock1 at least, 

and then starting again at 10 o'clock tomorrow mornin!{ antt running 

as long as necessary to see that the members are satisfied in connection 

with questions and answers. 

Is there objection to following that procedure 9 

(No resPQnse.] 

Senator STAFFORD. Before going to questions, the Chair is delighted 

to see that Senator M"ynihan, a most valuable member of this com· 

mittee, has jf?ined us. · 

Senator .Moynihan, do you have any opening statements that you 

would like to make9 We would put them in an appropriate place in 

the record for you. 

Senator MoYNIHAN. I would like to welcome-my old friend, Mr. 

Ruekelshaus. We ~ere together. at the time of the draftinH of the 

Executive order which created the EPA and which is stil1 Its basis. 

We welcome ~ou bapk, sir. May I be the first to congratulate you on 

a superb o~ntng statement. 

Senator STAFFORD. Mr. Ruckelshaus, in my opening statement, I 

alluded to the fact that some decisions are entrusted by law to the 

Administrator of the Environmental Protection Agency and to no 

other person. lt has long been the collective view of this committee 

that tllere are some decisions which even the President himself can· 

not make, even t.hough the Administrator is a Presidential appointee. One example iF- the requirement of the Clean Air Act that the Administrator establish the ambient standards for air pollutants. I would 

like to ask you some questions regarding your view of the Administrator's independence in the administration as well as what. assurances 

you have received, and from whom 9 

But first, let me make this brief observation: After the election 

of 1980.!. but before the adminiAtration had actually changed hands, 

David ~tookman wrote an article layin~ out what he called a "~· latory blueprint." This article, entitled 'Avoiding a GOP Economic 
945 


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.-~) 

-'/ r./ ~:, .. 

-:;; ~·,;; 

RETURN i(lt!.-a./l. 0 

Rnckelshaus·Given an Emotional JFelcome 

By 1,000 Employes of Embattled EPA 

By DaleRu>...,koff WH~IIlllil,ll'll ~ ~ff Wr!Wt 

William D. Ru<kcl<hatL< returned .yest<lrday to the emhatUed Environ- JnentaJ Protection Agencyt receiving 

jn emotional hero's welcome from 

·~ore than 1,000 agency emp!oyes ~ho applauded him noisHy1 lau,::-hed 

_'at his jok~ and hoi5tcd a hllnner 

:~eadin~; 1

'Hnw do yuu spell relief? 

,ll.UCKF:LSHAUS." 

::~ · Ruckclshaus, the EPA's fit'l ad- ininistrator who was nominated ·]t.1onday by President Reagan to re-

·lurn to his uld pos~ pledged to re· 

'~tore public trust in Ule troubled 

.agency. to make it •'adhere to an iron 

.1ntegrity."' to respect civil servants ·and to "administer and enforce the )all" as they're writf<ln by Congress." 1: ·Those simple promises drew thun-

:tlerous ovation!l from the employes, who crowded into Watenoide Mall1 

where the agency is headquartered, 

to hear Ruckelshaus' first major ad· 

dress since his nomination. He did 

not mention his predecessnr, Anne 

M. Burford, and mad!' no specific 

commitments on policy or personnel 

shifts, but he oppcared to be sending a message that the atmosphere of 

the demoralized agency will change 

dramatically. 

The mood was reminiscent, many 

f:mployes said, of the early 1970s, when the agency was founded amid 

a national clamnr for environmentnl 

protection. Many of lhc EPA work· ers said they came to lhe agency as 

young college graduates with a sense of mission and they viewed Ruckel· 

shaus RS their comrade. .. The agency and the world were 

different then/' said Hugh Kaufmant 

a self ·lltyled "whistle hi ower" in the 

EPA toxic waste cleanup prngrnm, "In the last two years, we have been 

very much oppressed. We had poor 

management.. outrageous rna nage~ 

ment, pottntial criminal mismanage~ 

m'ent, oppression of civil servants, a 

feeling that we a:s EPA regulntors 

were bcin~ spat on by· the Whit< 

House. Seeing Bill Ruckelshaus com-e back is like opening the 'gates 

,arid tearing down the bars." 

Ruckelshaus waded into-· the 

and said lhmugh team: "I'm so happy you're hack, I mi,.;cd you." 

Another woman put one hand on 

each of his shoulders and said with feeling; 4

'The toxic waste program needs you badly." Ruckclshaus an· swered confidently: .. Great., we•«! 

going to stra~hten her oul.." 

Ruckel.1haus told the employes he is convinced that Reagan 41 is com· 

mitted to doing the joh we have been 

assigned by Congre~ and Lo giving 

us adequate resources to do it,u one 

of the few statements in the speech 

that wns not followed by cheern. He also portrayed himself a~ a supporter 

of Reagan's pooitions. 

Ruckelshaus indicated that he will 

support the ndministration's effort 

to revise the Clean Air Act and other 

landmark environmental la~. despite strong resistance from Congress in the last two years. White House~ 

sponsored amendments to relax. parlions of the Clean Air Act ha\'e been 

defeated, with members of Congress 

dP.nouncing them as an effort to 

favor industry over the public. 

"We need to examine the means to achieving these goals [of environ· 

mental protectiunf and where we 

find or where we bo:lieve that better 

means can be used, we should aJ;k the Congrtss for the authority nee· essary to adopt those means ... he 

said. "In the meantime, we will administer and enforce the lAws as they ore written by Congress. .. 

Interior Secretary James G. Watt said yesterdny that he hnd tnlked with Ruckels.haus and was '

1

greally 

impressed with his commitment to the Reagan philosorhy." 

Ruckelshaus acknowledged that he had worked on behalf of many in· dustries regulated by the EPA since · 

leaving the Nixon administration in 1973, nnd said he expects close ecru· tiny for those ties during his Senate confirmation hearings. 

As a Washington attorney he represented manufacturers of vinyl 

chloride and aluminum and other 

products. Since 1975 he bas been · senior vice pr-esident of the huge for· 

est products concern, Weyerhaeuser 

Co. nf T:u-om,..-,, Wash., nnmf>rl onP of 

the nation'!; "Fihhy Fiv«'" comprmi~ 

by En\·ironmento.l Aclion, an environmentalist lobbying group, 

WPyerhaeuser has contl'sted EPA 

efforts to curh spraying (If fowas 

with herbicides contnining toxic t:hemi~nls, including d:Oxin. 1

'My job as tl lowye: Wfl$ to rep· 

resent my clients. My joi.J at 

Weyerhaeuser wa~ to. represent oil 

the stakeholders. in that enterprise," Ruckelshaua said. "My job as EPA administrator is the s.nmc today os it 

was when I held that job before, and lhat is to represent the public inter~ 

est to the besl of my ability." That comment also drew loud npp!Ause, 

Huckelshaus also hinted at plan.. to bring in a new team or top EPA managers1 but gave no specifics 

other than saying that Re,1.gan "is committ<d. to getting the hcst people we can find in this agency, the best people with iron intkgrity." Employ~ 

es cheered those words As several tOp EPA political appointees, tArgets of 

congre~ional ond Justice Depart· 

men\ probes, watched quietly. They included acting RPA Administrator 

John W. Hernnndez, Assistant Ad· ministrator John Todhunter and 

general counsel Tlobert M. Pcrrv. Todhunter nnd Hernandez. "cnme under nl'\\' fire vcs.terdrw ns a drAft report by a House stibtummittce 

accused them of allowing the form· aldehyde industry to influence fin agency de-cision not to regulate the 

suspect.cd canccr~catming substance. Bot.h men have denied showing fa.' voriti.'lm toward industry. 

Whit<' House officials yesterday told presidential aides to report -to 

White House rounsol Fred F. Field- in~ aU contacts with EPA officials in the lflst two yea~. regardless or how 

insignificant they may seem. 

The instructions came after re~ 

ports that James Medas, specint as· aistant in the White House office o( 

intergovernmental affairs, had not 

reported a discussion with ousted 

EPA official Rita M. Lavelle on the political impact of toxic·waste cleanup deci.si?n.-;.. 
946 


35314.886

&EPA 

RUCKF:LSHAUS 

TAKES STBPS TO IMPROVE FLOW OF 

AGBNCY 

lNI'ORMATION 

R-81 

United Stales 

Emironmel'ltBI Protection 

Agency 

o.-ar 

Publie Affairs t.A-1071 

WaShington OC 20480 

Environmental News 

FOR RBLEASE: THURSDAY, MAY 19, 1983 

( 202) 382-4355 

William D. Ruckelshaus, Administrator of the 

U.S. Environmental Protection Agency, today set 

forth a number of operating principles to carry 

out his pledge that EPA will operate nin a fishbowl ... 

In addition, his legal staff has established a recusal system to assure his avoiding conflicts of 

interest and the appearance of conflicts of interest in the performance of his duties. Agency matters in which he excuses (recuses) himself from taking part 

will be made available to the public. 

In a memorandum to all EPA ernpl·oyeea, the Administrator said, "When I recently appeared before the 

Senate Committee on Environment and Public Works, I promised that EPA would operate 'in a fishbowl.' I said, 'We will attempt to communicate with every- one from the environmentalists to those we regulate 

and we will do so as openly as possible.•n 

Ruckelshaus said he thought it was critical to 

Set out for the guidance of all EPA eroployees a set of basic principles to guide their communications 

with the public. 

Ruckelshaus' letter covers four areas: general 

principles, appointment calendars, litigation and 

formal adjudication, and rulemaking proceedings. 

They call for: 

-- General principles. EPA will provide, in all 

its programs, for the fullest possible public participation in decision-making. This r.equir~s ,not only 

that EPA employees remain open and accessible to 

those representing all points of view, but also that 

(more) 
947 


35314.887

-2-

:JY7;t-::J_ 

3 tf 7 ;2 -·-JEPA employees responsible for decisions take affirmative steps in an open manner to seek out the views of those who will be 

affected by the decisions. EPA will not accord privileged status 

to any special interest group, nor will it accept any recommenda- tion without careful critical examination. 

He added that the guidelines would be disseminated to the public for it~ comments. "While this is not a formal solicitation 

of views, we w!ll have a 30-day waiting period in which to receive the opinions of the public. We want to get feedback from the public because of the high and continuing degree of interest in how the 

agency deals with the regulated community and other affected 

parties.• 

Ruckelshaus pointed out that the principles are general in 

nature "because you can't cover every eventuality." But he said that even while awaiting public comment which could lead to modifications, these guidelines will be in effect as agency policy. 

-- A~tPointment Calendars. "In order to make the public fully 

aware of any contacts with interested persons," Ruckelshaus wrote, 

"I have directed that a copy of my appointment calendar for each week be placed in the Office of Public Affairs and made available 

to the public at the end of the week." He added that all other key EPA officials will make their appointment calendars available in a similar manner. 

-- Litigation and formal ad~udication. All communication with parties 1n llt1gatlon must be t rough the attorneys assigned to 

the case. Program personnel who receive inquiries from parties in matters under litigation should immediately notify the assigned 

attorney, and should refer the caller to that attorney. Formal 

adjudications, such as pesticide cancellation proceedings, are 

governed by specific requirements to which Ruckelshaus said he would adhere and which he expected all EPA employees to meet. All adjudicatory rules governing ex parte (the interest of one party only) communications will be made available to all EPA employees 

and to the public to assure a policy of openness and candor. 

-- Rulemaking proceedings. EPA employees must ensure that the basis for the agency's decisions appear in the record. Ruckelshaus instructed employees to be certain that all written comments received 

from persons outside the agency be entered in the rulemaking docket, and that a memorandum summarizing any significant new factual information likely to affect the final decision received during a meeting or other conversations be placed in the rulemaking docket. 

"You are encouraged to reach out as broadly as possible for views 

to assist you in arriving at final rules,• Ruckelshaus said. "HowR-81 (more) 
948 


35314.888

-3-

JJ.--j'/~-3 

3 1

-l7 J __ s 

ever, you should do so in a manner that ensures, as far as 

practicable, that final decisions are not taken on the basis 

of information which has not been disclosed to members of the 

public in a timely manner." 

To avoid conflicts of interest or the appearance of them, 

a system has been established in which agency officials will 

use a recusal form to warn the Administrator of issues from 

which he shou~? excuse himself. 

Ruckelshaus has provided a list of companies in which he is 

in the process of divesting his financial interests as well as 

a list of various public institutions with which he has been 

associated as guidance in determining areas where conflicts of 

interest could exist. (lists attached. J 

Gerald A. Yamada, Deputy General Counsel and the agency's 

chief ethics officer, said that the Administrator must, in instances where he still has a financial involvement, excuse 

himself. These instances are mandatory recusals covered by statute, Yamada said. 

There also are discretionary recusals in which the Administrator will recuse himself because of the appearance of an 

impropriety or conflict of interest. Ruckelshaus' associations with public institutions, such as the Bio-Energy Council as an 

example, would fall into this discretionary category, Yamada said. 

Some issues will be decided on a case-by-case basis. Once 

program officials have provided advice in discretionary matters, 

a final decision will be made by the Administrator, with the 

advice of Yamada. In a memorandum on the subject, it was noted 

that specific procedures must be followed to identify and track 

matters involving rulemaking, correspondence, litigation and 

enforcement, formal adjudication, policy statements, grants and 

contracts. 

The memo on recusal to agency officials states, "When Mr. 

Ruckelshaus has recused himself from participating in any particular matter, your office is not to send him any written material 

or give him any briefings on such mat~ers. His recusals will be made available to the public." 

Yamada said the recusal system, however, does not mean that 

the Administrator will not be kept informed of everything that 

is going on at the agency. "He has to be made aware of what is happening, even if he can't participate in some of these matters," Yamada pointed out. 

R-81 (more) 
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-4-

In developing the guidance principles he announced today, Ruckelshaus had his staff meet with staff members of the 

Administrative Conference of the united States, an independent 

agency that develops improvements to legal procedures used by federal agencies in administering their programs. The principles are based on recommendations made by this group and EPA's Office 

of General Counsel. 

R-Bl II 

7. -z. I 
950 


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3J-/7:J-5 

NOTE: 

Attachment A lists those finns in which Mr. Ruckelshaus has 

a financial interest and is in the process of divesting himself 

of his financial involvement. 

Attachment B is a list of public institutions with which Mr. 

Ruckelshaus ha~ been associated. There may be instances involving some of these groups in which Mr. Ruckelshaus may decide to 

recuse himself because of the appearance of a conflict of interest. 

Until Mr. Ruckelshaus finishes divesting himself of his 

financial interest in the firms listed on Attachment A, he is 

prohibited by statute from participating in any particular matter that would involve any of the firms. Once his divesiture is 

completed, the firms on Attachment A will be moved to the Attach- ment B list, 
951 


35314.891

Attachment A 

Weyerhaeuser Company (pulp and paper manufacturing, logging, wood and plywood products) Cummins Engine Company, Inc. (diesel engine · manufacturing) 

Peabody International Corp. (manufacture of solid 

and hazardous waste cleanup equipment, manufacture of w~t and dry scrubbers and electrostatic precipitators) Nordstrom, Inc. (wearing apparel, shoes) Pacific Gas Transmission Company (gas transmission) 

U.S. West (telephone services holding company) United Siscoe Mines, Ltd. (on-shore oil and gas extraction, gold mining) 

Geothermal Kinetics, Inc. (a subsidiary of United 

Siscoe Mines) · SeaFirst Corp. (variety of financial servicesmortgage lending, leasing, computers, insurance) 

Seattle First National Bank (banking services- a subsidiary of SeaFirst Corp.) 

Lincoln National Corp. (insurance services-life, health, 

property, pension) 

.; -lO 
952 


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Attachment B 347(2-7 

AFS International/Intercultural Programs 

American Enterprise Iostitute for Public Policy Research 

American Paper Institute 

American Refugee Committee 

Bio-Energy Council · Conservation Foundation 

Council fo~ Public Interest Law 

Council on Foreign Relations, Inc. 

Council on Solar Bio Fuels 

The Diet 

Economic Development Council of Puget Sound 

Environmental & Energy Study Institute 

Environmental Law Institute 

Explorers Club 

Handgun Control, Inc. 

Harvard University 

Harvard/Monsanto Advisory Board 

Indiana Academy 

INFORM 

Monday Club 

National Business Council for ERA 

National Research Council 

National Victims of Crime 

Pacific Science Center 

Public Agenda Foundation 

Resolve (Center for Environmental Conflict Resolution) 

Seattle Art Museum 

Seattle Chamber of Commerce 

Seattle University 

Twentieth Century Fund 

University of Puget Sound 

University of Washington 

Urban Institute 

U.S. Business Commission on the Reconstruction of Lebanon 

Weyerhaeuser Company Archives 

Weyerhaeser Company Foundation 
953 


35314.893

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON. O.C, 2.0460 

3tf1J-? 

THE. AOMHrllSTRA~TOR 

MEMORANDUM 

SUBJECT: Contacts with Persons Outside the Agency 

TO: All EPA Employees 

When I recently appeared before the Senate Committee on Environment and Public Works, I promised that EPA would operate "in a fishbowl." I said, "We will attempt to communi<;ate with 

everyone from the environmentalists to those we regulate and we will do so as openly as possible." Therefore, I believe it is 

important to set out for the guidance of all EPA employees a set 

of basic principles to guide our communications with the public. 

In formulating these principles I considered more stringent restrictions on contacts with those outside the Agency than those 

described below. At my request, my staff met with staff members 

of the Administrative Conference of the United States to discuss 

these issues. This organization is an independent agency that 

develops improvements to the legal procedures by which Federal 

agencies administer their programs. Based on the recommendations 

of the staff members of the Administrative Conference and those of 

the Office of General Counsel, I am convinced that restrictions 

beyond those set out below would unnecessarily inhibit the free 

flow of information and views. In adopting these flexible procedures I am relying on EPA employees to use their common sense and good judgment to conduct themselves with the openness and integrity which alone can ensure public trust ~n the Agency. 

General Principles 

EPA will provide, in all its programs, for the fullest possible public par·ticipntion in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for 
954 


35314.894

-2-

decisions take affirmative steps to seek out the views of those 

who will be affected by the decisions. EPA will not accord privi- leged status to any special interest group, nor will it accept any recommendation without careful critical examination. 

Appointment Ctlendars 

In order to make the public fully aware of my contacts with 

interested persons, I have directed that a copy of my appointment calendar for each week be placed in the Office of Public Affairs 

and made available to the public at the end of the week. The 

Deputy Administrator, and all Assistant Administrators, A~sociate 

Administrators, Regional Administrators, and Staff Office Directors 

shall make their appointment calend?rs available in a similar manner. 

Litigation and Formal Adjudication 

EPA is engaged in a wide range of litigation, both enforcement 

and defensive in nature. All communication with parties in litiga- tion must be through the attorneys assigned to the case. Program personnel who receive inquiries from parties in matters under 

litigation should immediately notify the assigned attorney, and 

should refer the caller to that attorney. 

Formal adjudications, such as pesticide cancellation proceedings, are governed by specific requirements concerning ex parte communications, which appear in the various EPA rules governLng those 

proceedings. These rules are collected and available in the Office 

of General Counsel, Room 545, West Tower. I will conduct myself in accordance with these rules, and I expect all EPA employees to 

do the same. 

Rulemaking Proceedings 

In either formal or informal rulemaking proceedings under the 

Administrative Procedure Act, EPA employees must ensure that the 

basis for the Agency's decision appears in the record. Therefore, be certain (1) that all written comments received from persons outside the Agency (whether during or after the comment period) are entered in the rulcmaking docket, and (2) that a memorandum 

summarizing any significant new factual information or argument likely to affect the final decision received during a meeting or other conversations is placed in the rulemaking docket~ 

,r 

t? 
955 


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-3- 317:J-10 

You are encouraged to reach out as broadly as possible for 

views to assist you in arriving at final rules. However, you should do so in a manner that ensures, as far as practicable, that ftnal decisions are not taken on the basis of information or arguments which have not been disclosed to members of the public in a timely manner. This does not mean that you may not meet 

with one spe~}al interest group without inviting all other interest 

groups to the same meeting, although all such groups should have an equal opportunity to meet with EPA. It does mean, however, that any oral communication regarding significant new factual 

information or argument affecting a rule, including a meeting with an interest group, should be summarized in writing and 

placed in the rulemaking docket for the information of all 

members of the public. 

William D. Ruckelshaus 

c.cl 
956 


35314.896

Chairman John Barrasso 

Ranking Member Thomas Carper 

U.S. Senate Committee on Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairman Barrasso, Ranking Member Carper, and Committee Members, 

We write as communities of faith and conscience from diverse religious traditions, representing over 

30,000 congregations across the U.S.A., to urge you to protect our communities and congregations from 

the devastating health effects of pollution and vote against Acting Administrator Wheeler's no!l'ination to 

the position ofEPAAdministrator. 

Mr. Wheeler's background as a coal lobbyist should be enough to disqualify him from a position whose 

role is to protect human health and the environment; he made his living lobbying for the very industries 

he would be responsible for regulating. We are concerned that, based on his record, Mr. Wheeler would 

enter the Administratorship with an agenda to roll back common-sense environmental safeguards and put 

polluters before people. 

In fact, even during the current government shutdown, Acting Administrator Andrew Wheeler issued a 

proposal to undermine the EPA's Mercury and Air Toxic Standards by stating that they are no longer 

"appropriate and necessary." Mercury is a neurotoxin that impacts the most vulnerable among us: unborn 

babies and children. Babies exposed to mercury in the womb suffer long-term impacts on their memory, 

cognitive thinking, language, and fine motor skills. It's also dangerous for adults: exposure affects vital 

organs like the lungs, kidneys, brain, and heart. 

People of faith are committed to the work of protecting life: the life of our children, the life of our elders, 

and the life of non-human creatures. The nomination of Mr. Wheeler is a fundamental attack on life, 

risking the health and wellbeing of the people, places, and communities we are entrusted by God to 

protect. 

As people of faith and conscience, we are called to act from an ethic of love to defend the vulnerable and 

care for future generations. The mission of the EPA is "to protect human health and the environment." 

Mr. Wheeler's nomination goes against the very mission of the organization, and is anathema to the moral 

principles embraced by diverse religious traditions. 

In your constitutional role to advise and consent, we ask you to demonstrate moral leadership to protect 

all walks of life and vote against Acting Administrator Wheeler's nomination to the position of EPA 

Administrator. 

In faith, 
957 


35314.897

Alabama Interfaith Power & Light 

Arizona Interfaith Power & Light 

California Interfaith Power & Light 

Creation Justice Ministries 

Delaware Interfaith Power & Light 

Earth Ministry/Washington Interfaith Power & 

Light 

Franciscan Action Network 

Georgia Interfaith Power & Light 

Iowa Interfaith Power & Light 

Interfaith Power & Light 

Interfaith Power & Light (DC.MD.No VA) 

Kentucky Interfaith Power & Light 

.Maine Interfaith Power & Light 

.Massachusetts Interfaith Power & Light 

Minnesota Interfaith Power & Light 

Missouri Interfaith Power & Light 

Nebraska Interfaith Power & Light 

New Mexico Interfaith Power & Light 

North Carolina Council of Churches 

Office of Social Justice, Christian Reformed 

Church in North America 

Ohio Interfaith Power & Light 

Oregon Interfaith Power & Light 

Pennsylvania Interfaith Power & Light 

South Carolina Interfaith Power & Light 

Unitarian Universalist Ministry for Earth 

Virginia Interfaith Power & Light 

West Virginia Interfaith Power & Light 

Wisconsin Interfaith Power & Light 
958 


35314.898

EEl 

Edison Electric 

INSTITUTE 

Die 

Clean 

Energy 

Group 

July 10, 2018 

ANRECA 

~ Amerlu's Electric CI!Jqlerativea 

CLASS OF '85 lEG:JlAfC~ RESPONSE GWJP 

The Honorable William L. Wehrum 

Assistant Administrator 

Office of Air and Radiation 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave, NW 

Washington, DC 20460 

Dear Assistant Administrator Wehrum: 

AMERICAN 

PUBLIC 

~..R .. ASSOCIATION 

The Environmental Protection Agency (EPA or Agency) has indicated to the U.S. Court of 

Appeals for the District of Columbia Circuit its intent to address the Agency's Final 

Supplemental Finding for the Mercury and Air Toxics Standards (MATS) in which EPA 

determined that it was appropriate and necessary to regulate coal- and oil-based power plants 

under Clean Air Act (CAA) section 112 (Supplemental Finding). 81 Fed Reg. 24,419 (Apr. 25, 

2016). EPA's supplemental finding followed the Supreme Court's decision in Michigan v. EPA, 

which held that EPA must consider costs in evaluating whether it is appropriate and necessary to 

regulate. 1 

Driven by several factors-including customer demands, technology developments, and federal 

and state regulatory obligations-the electric power sector is undergoing a transition of its 

electric generating fleet that will continue over the next decade and beyond. Concurrent with this 

transition, electric companies, public power utilities, and electric cooperatives are making 

significant investments to make the energy grid smarter, cleaner, more dynamic, more flexible, 

and more secure in order to integrate and deliver a balanced mix of central and distributed energy 

resources. 

Since the MATS rule became effective in 2012, it is estimated that the owners and operators of 

coal- and oil-based electric generating units (EGUs or units) have spent more than $18 billion to 

1 Litigation following EPA's supplemental finding is being held in abeyance at the U.S. Court of 

Appeals for the District of Columbia Circuit. 
959 


35314.899

comply. These investments, parallel state requirements, other CAA programs, and nonenvironmental drivers have reduced mercury emissions by nearly 90 percent over the past 

decade. Given this investment and these emissions reductions, regulatory and business certainty 

regarding regulation under CAA section 112 is critical-many of these same units are part of 

ongoing rate reviews regarding the generating fleet operated by investor-owned electric 

companies. In the case of public power utilities and rural electric cooperatives (even those that 

are rate regulated by state commissions), compliance costs are directly borne by their customers. 

To provide this certainty, the Edison Electric Institute (EEl), the American Public Power 

Association (APPA), and the National Rural Electric Cooperative Association (NRECA), the 

Clean Energy Group (CEG), the Class of '85 Regulatory Response Group, the International 

Brotherhood of Electrical Workers (IBEW), and the International Brotherhood of Boilermakers, 

Iron Ship Builders, Blacksmiths, Forgers and Helpers ask EPA to complete the statutorily 

mandated Residual Risk and Technology Review (RTR)2 for power plants as expeditiously as 

possible. We believe a complete and robust RTR will recognize the capital investments already 

made for compliance and will allow the industry to continue full implementation of the MATS 

rule, which was completed in April2016. 

It is important to note that all covered plants have implemented the regulation and that pollution 

controls-where needed-are installed and operating. In traditionally regulated jurisdictions, 

state public utility commissions in many cases still are in the process of reviewing the cost of 

these controls for inclusion in rates, along with the related and ongoing operation and 

maintenance costs. Units that retired in part due to MATS-along with other regulatory 

requirements, low natural gas prices, resource planning initiatives, and a variety of other 

factors-have been decommissioned and cannot be reinstated. The U.S. Energy Information 

Administration reports that facilities representing 87.4 gigawatts (GW), or 29 percent of 2014 

coal capacity, added pollution control equipment to comply with the MATS rule. 3 As noted 

above, the industry already has invested significant capital-estimated at more than $18 

billion-in addition to these operating costs, and states are relying on the operation of these 

controls for their air quality plans. 

Therefore, we urge EPA to move forward with an RTR for power plants under CAA section 112 

and to leave the underlying MATS rule in place and effective. We also urge EPA to consider 

potential technical revisions to MATS-such as considering whether performance tests could be 

performed less frequently if units are running less frequently-while still ensuring that the 

standards are being achieved. We believe this approach can provide the regulatory and business 

2 See CAA sections 112(d)(6) and (f)(2), which require that EPA complete the RTR by April16, 

2020. 

3 U.S. Energy Information Administration, Coal plants installed mercury controls to meet 

compliance deadlines (Sept. 18, 2017), https://www.eia.gov/todayinenergy/detail.php?id=32952. 

This period encompasses the time during which most coal-based generators installed pollution 

controls at EGUs to comply with the MATS rule's April2015 compliance date and the one-year 

extension that many coal plants received to finalize their compliance strategies. By April 2016, 

virtually all coal- and oil-based generators completed their pollution control retrofits. 

2 
960 


35314.900

certainty our members need as they continue to provide safe, reliable, affordable, and 

increasingly clean energy to their customers. 

Sincerely, 

The Edison Electric Institute 

The American Public Power Association 

The National Rural Electric Cooperative Association 

The Clean Energy Group 

The Class of '85 Regulatory Response Group 

The International Brotherhood of Electrical Workers 

The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & 

Helpers 

3 
961 


35314.901

********* 

The Edison Electric Institute (EEl) is the association that represents all U.S. investor-owned 

electric companies. Our members provide electricity for about 220 million Americans, and 

operate in all 50 states and the District of Columbia. As a whole, the electric power industry 

supports more than 7 million jobs in communities across the United States. In addition to our 

U.S. members, EEl has more than 60 international electric companies, with operations in more 

than 90 countries, as International Members, and hundreds of industry suppliers and related 

organizations as Associate Members. 

The American Public Power Association (APP A) is the national service organization 

representing the interests of over 2,000 community-owned, not-for-profit electric utilities. These 

utilities include state public power agencies, municipal electric utilities, and special utility 

districts that provide low-cost, reliable electricity and other services to over 49 million 

Americans. 

1l1e National Rural Electric Cooperative Association (N'RECA) is the national service 

organization for more than 900 not-for-profit electric utilities that provide electricity service to 

approximately 42 million consumers. NRECA members own and maintain 2.6 million miles, or 

42 percent, of the nation's electric distribution lines and account for II percent of the total 

kilowatt-hours in the U.S. each year. With a commitment to contribute to the vitality and 

prosperity of the communities served by our members, electric cooperatives are dedicated to a 

healthy environment, building vibrant rural communities, and providing reliable and affordable 

electricity to our cooperative consumer. 

The Clean Energy Group (CEG) is a coalition of electric generating and electric distribution 

companies that share a commitment to responsible environmental stewardship. The mission of 

CEG is to support and enhance the efforts of its members in understanding state and federal 

legislative, regulatory, and policy developments in environmental and energy areas. 

The Class of '85 Regulatory Response Group is a voluntary ad hoc coalition of approximately 30 

electric generating companies from around the country that has been actively involved in the 

development of Clean Air Act rules affecting the electric generating industry for over 28 years. 

The Class of '85 has written comments on all major stationary source regulations since the early 

1990s, and members of the Class of '85 own and operate EGUs in approximately 35 states 

throughout the United States. 

The International Brotherhood of Electrical Workers (IBEW) represents approximately 775,000 

members and retirees who work in a wide variety of fields, including construction, utilities, 

manufacturing, telecommunications, broadcasting, railroads and government. 

Established in 1880, the International Brotherhood of Boilermakers, Iron Ship Builders, 

Blacksmiths, Forgers & Helpers is a diverse union representing workers throughout the United 

States and Canada who are employed in industrial construction, maintenance and repair; ship 

building; manufacturing; railroads; cement; mining and related industries. 

4 
962 


35314.902

116/2019 WOTUS: .....,yTrump waniS to repeal an Obama-era clean water rule~ Vox 

Why Trump wants to repeal an Obama-era clean water rule 

The EPA this week revealed a plan to determine which waterways are protected by the 

federal government. 

By Brad Plumer and Umair lrfan I Updated Dec 11,2018, 5:23pm EST 

Birds occupy a di!apicklted pier on th€' Little 81ackv.<ater Riv€'r Octolx"f 9. 2014, in Church Creek, f\Aaryland. ! r.Aar k Wilson/Getty !rn:'lges 

On Tuesday, the Environmental Protection Agency and the US Army Corps of Engineers 

presented the Trump administration's proposal to undo a major Obama-era environmental 

regulation, the Clean Water Rule. 

The rule defined the "Waters of the United States," a.k.a. WOTUS. These are the rivers, 

streams, and lakes that fall under federal jurisdiction and forms the foundation of a 

massive piece of environmental regulation, the Clean Water Act. 

The Obama rule, first published in 2015, was meant to clarify which streams and wetlands 

fall under federal clean water protections- a question that had been causing legal 

frustration for years. 

But it triggered fierce blowback from farm and industry groups across the country. 

"Opponents condemn it as a massive power grab by Washington,'' Politico reported, 

https :1/w>Nw. vox. com/energy-an ct.-environ m eni/2017/2/28/14761236/VY'Otu s--waters-un lted-s!ates-rule-tru mp 1111 
963 


35314.903

11812019 \I\OTUS_ 'Why Trurf1)wantsto repeal an Obama-era dean 'Wi'lterrule- Vox 

"saying it will give bureaucrats carte blanche to swoop in and penalize landowners every 

time a cow walks through a ditch." Some of those criticisms were overblown (it doesn't 

cover puddles, for instance), but the rule was widely cited by conservatives as a perfect 

example of EPA overreach under President Obama. 

Last year, President Trump signed an executive order directing the EPA to begin the long 

process of repealing the Clean Water Rule and replacing it with ... something else. 

Earlier this year, the EPA suspended the Obama rule. And on Tuesday, the agency revealed 

its replacement, one it said will smooth over the problems that made the 2015 regulation 

so contentious. 

"For the first time, we are clearly defining the difference between federally protected 

waterways and state protected waterways," said EPA acting Administrator Andrew 

Wheeler in a press release. "Our simpler and clearer definition would help landowners 

understand whether a project on their property will require a federal permit or not, without 

spending thousands of dollars on engineering and legal professionals." 

A Molly Block W @mollyerinb 

.@ EPAAWheeler and Army Asst Secretary for Ovil Works RD 

James sign the proposed new definition of #WOTUS surrounded 

by @SecretaryZinke and Congressional leaders 

https:/h\ww.vox com'energy-and-environment/20 170!2BI14 761236/wotus-waters-urnted-states-ru!e-trurf1) 2111 
964 


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1/8/2019 WOTUS: why Trump wants to repeal an Obama-era clean water rule- Vox 

11 11:35AM-Dec11,2018 ·Washington, DC 

See Molly Block's other Tweets 

However, environmental groups said the new definition would cut the number of 

waterways the federal government must regulate, leaving them vulnerable to pollution. It 

excludes, for example, waterways that flow only for parts of the year, like after rainstorms 

while snow melts. 

"This sickening gift to polluters will result in more dangerous toxic pollution dumped into 

waterways across a vast stretch of America," said Brett Hartl, government affairs director 

at the Center for Biological Diversity, in a statement. "The Trump administration's radical 

proposal would destroy millions of acres of wetlands, pushing imperiled species like 

steelhead trout closer to extinction." 

EPA officials said they didn't know just how many waterways would be excluded from 

federal jurisdiction under the new proposal. However, a document obtained by E&E News 

showed that the EPA and the Army Corps had estimated last year that 18 percent of 

streams and 51 percent of wetlands would not receive federal protections under the 

revisions. 

Tuesday's announcement is only the beginning of a long regulatory and legal process. The 

EPA is taking comments on the proposal for 60 days and will host a listening session in 

Kansas City, Kansas, in January. In the meantime, it's worth understanding how WOTUS 

became so controversial and what it means for huge swaths of the country. Here's what 

you need to know. 

What the Waters of the US rule actually does 

https:/lwww.vox.com/energy-and-environment!2017/2/2B/14761236/wotus-waters-united-states-rule-trump 3/11 
965 


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11812019 WOTUS: why Tnlmp wants to repeal an Obarna--era clean water rule- Ve« 

Caught betw€'en a rock and a tributary plitce. ! S!lu:rers:ock 

To understand this rule, we need to go back to 1972, when Congress passed the Clean 

Water Act. That law features dozens of regulations and permitting requirements for 

anyone discharging pollution into the "waters of the United States" in a way that could 

affect human health or aquatic life. These rules apply to factories, power plants, golf 

courses, new housing developments- and much, much more. 

For example, under the law, a facility storing oil that could leak needs to prepare a spill 

prevention plan aimed at minimizing discharges. If the facility is far away from any "waters 

of the United States," however, it doesn't face these requirements. 

But here's the tricky part. The Clean Water Act doesn't precisely define what "waters of 

the United States" means. That's left to the EPA and the Army Corps of Engineers. And it's 

a hard question. For instance, the law is clear that major navigable rivers and lakes and any 

connected waterways should be protected. That includes major rivers like the Mississippi 

River, the Colorado River, and the Ohio River. But what about waterways that are only 

loosely connected? What about the 60 percent of streams that are dry for part of the year 

but then connect when it rains? Any pollution dumped into those waters could affect key 

ecosystems. Should they be regulated? 

https:JNfww.vox.comfenergy..and-erNironment/20171212SI14761236A-votus*waters-unRed-stateHul~trump 4111 
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118/2019 WOTUS: Why Tl'Ump wanls lo repeal an Obama-era clean water rule~ Vax 

In the 2000s, this uncertainty led to a pair of Supreme Court decisions that only ended up 

creating more bewilderment. In a split decision in Rapanos v. United States in 2006, 

Justice Anthony Kennedy argued that Clean Water Act protections applied to wetlands 

that "significantly affect the chemical, physical, and biological integrity of other covered 

waters." But Justice Antonin Scalia argued that protections only applied to wetlands "with 

a continuous surface connection" to navigable water- a far smaller number of wetlands. 

And it wasn't totally clear which opinion took precedence. 

What'd I do? , VVHikLfTl Thmnas cain/G<>"~Y lmag~~ 

"The short answer is that the state of post-Rapanos wetlands jurisdiction is a mess," 

Richard Frank of the University of California Davis told Greenwire in 2011. In the ensuing 

years, whenever a dispute arose over whether a landowner- be it a housing developer, a 

golf course, a farm, or what have you- needed a Clean Water Act permit or not, courts 

had to resolve it on a case-by-case basis. 

So under Obama, the EPA and Army Corps of Engineers tried to bring clarity to the matter. 

They sifted through more than 1,200 scientific papers to figure out which types of bodies 

of water were important to aquatic ecosystems and therefore deserved protection, per 

Kennedy's opinion. 

hllps :/NtrMN.vru. ,com/anergy. and- envlronment/20 1712128!14 761236/wofus~wa!&fs-unHed--stateHule-trum p 5/11 
967 


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1/S/2019 WOTUS: why Trump wants to repeal an Obama-era clean water rtJle- Vox 

The final Waters of the US rule, published in June 2015, outlined which bodies of water 

were automatically covered by the Clean Water Act- requiring permits for discharges or 

dredging or dirt fill- and which ones still needed to be dealt with on a case-by-case basis. 

For instance: 

• In the past, tributaries of navigable rivers were evaluated on a case-by-case basis. But under the new 

rule, they're automatically protectec if they have a bed, a bank, and a high-water mark. This includes 

many streams that are dry for part of the year. Waterways without these features are still dealt with case 

by case. 

• Wetlands and ponds are now automatically covered if they're within 100 feet or within thelOO-year 

floodplain of a protected waterway. Otherwise, it's case by case. 

• Certain "isolated" waters that are not connected to navigable waters now get automatic protection if 

they have a "significant nexus" to protected waters- like the vernal pools of California. 

The rule also explicitly exempted a number of bodies of water often found on farms, such 

as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that 

would revert to dry land if irrigation were to stop. Here's a graphic: 

https:llwv;w. vox.ccm/e nergy-and-en vi ron me nt/2 01 7/2128/147 61236/wotus-waters-un ited· states-rule-trump 6/11 
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1/8/2019 wen us: 'Ahy Trump 'llllntsto repeal an Obama-era dean "<PSer rule~ Vox 

its part, the EPA argued that this rule didn't significantly expand the waters under its 

jurisdiction, Rather, it created more certainty for about 3percent of the nation's 

'tvaterways avoid bringing cases court every time there 'Nasa legal gray area, 

the EPA, the rule offered dearer protection to upstream bodies water that 

2ontribute to drinking supplies for one-third of the population. 

Before the came out few who worked on It expected widespread blowback "This rule 

provide the clarity and certainty businesses and industry ne8d about waters Jte 

the Clean Water Act," Obama said when the final rule was announced. But 

out very differently. 

Why the Waters of the US rule became so controversial 
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1/812019 WOTUS: why Trump wants to repeal an Obama-era clean water rule. Va:x 

Opponents of the rule- particularly farming and ranching groups- clearly didn't buy the 

EPA's line that this was only a technical update. Nor were they comforted by the EPA's 

exemptions for agriculture. Instead, they called it a power grab. 

"The agency is making it impossible for farmers and ranchers to look at their land and know 

what can be regulated," argues the American Farm Bureau Federation on its site. "EPA has 

vastly expanded its authority beyond the limits approved by Congress and affirmed by the 

U.S. Supreme Court." 

Some Western farmers, for instance, fretted about the open, unlined canals they use to 

irrigate their lands during the growing season. These systems divert water from streams, 

serve as water sources for wildlife, and can connect to larger bodies of water elsewhere. 

As Reagan Waskom and David Cooper of Colorado State University explain, farmers and 

ranchers feared that these canals would fall under the rule's definition of "tributary" and 

might have to be replaced by costly pressurized pipes. Or, alternatively, that fertilizer use 

near these waterways would be more strictly regulated. 

V\\.:tter stand::; in an Irrigation Cilllal at a sod farm on August 8, 2014. in Lodf, car!fornla, 1 Ju~, :in Sullivan/Getty f!ll.-'lgc:,; 

Defenders of the rule dismissed these scenarios. Jon Devine, a lawyer with the Natural 

Resources Defense Council, pointed out that the Clean Water Act has always regulated 

agriculture lightly. "This rule doesn't really change those exemptions," he says. Indeed, one 

https:Jtwww.vox.comlenergy-and-ernironmen11201712!2B!14761236..WOh.Js·walers·unHed-staleNule-trump 8/11 
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11812019 WOTUS: why Trump wants to repeal an Obama-era clean water rule- Vox 

recent study found that the EPA's jurisdiction over farms actually shrank under the new 

rule. 

The EPA was also pretty explicit that it wouldn't target farmers. "We will protect clean 

water without getting in the way of farming and ranching," then-EPA Administrator Gina 

McCarthy told the National Farmers Union in 2015. But few farmers or ranchers believed 

her. Their argument was that the rule was vague enough that the EPA could crack down on 

them if it chose. It's basically a question of trust. And at the moment, conservatives are 

not particularly inclined to trust the EPA. 

Joni Ernst, a Republican senator from Iowa, made that clear in former EPA Administrator 

Scott Pruitt's confirmation hearing in 2017. "My constituents tell me the EPA is out to get 

them rather than work with them and there is a huge lack of trust between many of my 

constituents and the EPA," she said. "If we take a look specifically at the WOTUS rule, 

Iowans truly feel that the EPA ignored their comments and concerns, threw them under 

the rug and then just moved forward." 

However the backlash started, it took on a life of its own. Trump began citing the water rule 

on the campaign trail as an example of EPA overreach, earning cheers from rural 

audiences. In signing his executive order in March, he called it a "destructive and horrible 

rule." 

Why it will be difficult- but not impossible - for the EPA to undo the Obama·era 

WOTUS rule completely 

https;!Nf.Nw. vox .com!e nergy..an d-en vironmentl7:017 f2/28114 7 61236twotus-waters-united-states-rule-trump 9/11 
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1/812019 WOTUS: why Trump wants to repeal an Obama-em clean water rule· VOK 

Former EPA Administrator Scot: Pruitt coufdrl': unto the Cle>an \!Vater Rule on hls awn, but he could put it on hold. ! A.3ron P. 8enl$tt-'in/Ge~ ·y 

!nH~ec; 

Pruitt delayed the Obama WOTUS rule's implementation for two years, buying the EPA 

time to come up with an alternative. 

But implementing a new definition for WOTUS requires proposing a new rule that's 

supported by extensive scientific and legal arguments, opening up the proposal for public 

comments, responding to those comments, and then defending the final rule in court as a 

superior approach. This could take years. 

And much of the ambiguity around which waterways deserve Clean Water Act protection 

still holds even if you repeal the Obama rule. Which wetlands are covered? How do you 

deal with streams that flow part of the year? How do you interpret that mess of a Supreme 

Court decision in 2006? 

In his executive order, Trump asked the EPA to consider Scalia's opinion in Rapanos, which 

extended protection to wetlands only if they had a "continuous surface connection" to 

navigable waterways and extended protection to streams only if they were "relatively 

permanent." So it's not surprising that acting EPA Administrator Wheeler's replacement 

rule would cover far fewer waterways -leaving out, for instance, many of the 60 percent 

of streams that don't flow year-round. 

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1/8/2019 WOTUS: why Trump wants to repeal an Obama-era clean water rule· Vox 

Environmental groups say that's a problem. Devine argues that polluters could take 

advantage of a weaker rule with less certain protection for streams and waterways. As long 

as there's ambiguity about where the Clean Water Act applies, it would be harder for 

citizen groups or the Department of Justice to bring a case against companies dumping 

chemicals or other pollutants into smaller bodies of water upstream. 

"Without this rule, enforcement has been unpredictable," Devine says. "The EPA has 

mainly been focused on big rivers and lakes so that they wouldn't have to litigate to the 

ends of the earth about whether the Clean Water Act applied to waters upstream. But if 

you can only regulate the biggest rivers and lakes- and the pollution problem is much 

farther upstream- then you're not effectively protecting the receiving water or the 

watershed." 

Still, it's not clear that the EPA can scale back the water rule significantly. Federal courts 

have typically embraced Kennedy's more expansive interpretation of the Clean Water Act 

rather than Scalia's, and any rollback of Obama's rule would still leave plenty of legal gray 

areas where the courts will need to decide on a case-by-case basis whether the Clean 

Water Act applies. "It's going to be incredibly complex to figure this out," says Richard 

Revesz, a professor of environmental law at New York University. 

Further reading: 

• Repealing the clean water rule is only step one for Trump. He's also targeting Obama's signature climate 

policy, the Clean Power Plan. Read here for more on how he might do that. 

• The EPA is also rolling back restrictions on major sources of toxic air pollution. 

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973 

Senator CARPER. Thank you. 

Senator BARRASSO. And members may submit follow up questions for the record. By 5 p.m. is the deadline, Friday, January 

18th. I will need you to respond to the questions by 5 p.m., Friday 

the 25th of January. 

I want to thank the nominee for his time, his testimony today. 

That concludes the hearing. The hearing is adjourned. 

[Whereupon, at 2:42 p.m., the hearing was concluded.] 

[Additional material submitted for the record follows:] 

974 


35314.913

January 28, 2019 

The Honorable John Barrasso 

The Honorable Thomas Carper 

Dear Chairman Barrasso & Ranking Member Carper, 

We, the undersigned organizations, write in support of Andrew Wheeler to be the 

next permanent Administrator of the U.S. Environmental Protection Agency 

(EPA). We ask the Environment and Public Works Committee to move swiftly to 

confirm his nomination. 

Growing crops, producing livestock and managing forests are challenging ways 

to make a living with a broad range of uncertainties including new and ever 

evolving pests and pathogens, unpredictable weather events and changing 

market dynamics. Farmers, livestock producers and foresters need a regulatory 

system that allows them to respond to these challenges and mitigate the risks 

that are inherent to agriculture. EPA has a significant role in approving the tools, 

innovations and mitigations that growers and livestock producers need to 

respond to the inherent uncertainties. The approval of innovative practices and 

tools require a rigorous assessment and evaluation by the EPA and must be 

overseen by an Administrator capable of leading the Agency and its staff in 

pursuit of assessments and decisions based in sound and reproducible science. 

Fortunately, Mr. Wheeler is eminently qualified for the role of Administrator and 

has exhibited so during his time as the Acting Administrator. His previous 

experience as a career employee of EPA and time spent as staff director and 

legal counsel of the Senate committee with the most expansive jurisdiction over 

EPA have undoubtedly prepared him for the broad and complex regulatory 

obligations of the Agency. 

It is hard to imagine a more qualified individual for the role of EPA Administrator 

and we respectfully request that the Committee move to confirm his nomination 

so that he may be considered by the full Senate at the earliest date possible. 

Thank you for your time and consideration of this important issue. 

Sincerely, 
975 


35314.914

Agricultural Retailers Association 

AMCOT 

American Farm Bureau Federation 

American Feed Industry Association 

American Seed Trade Association 

American Sesame Growers Association 

American Sheep Industry Association 

American Soybean Association 

American Sugar Alliance 

American Sugarbeet Growers Association 

American Wood Council 

AmericanHort 

Association of Equipment Manufacturers 

Calcot 

California Fresh Fruit Association 

California Specialty Crops Council 

California Wool Growers Association 

Carolinas Cotton Growers Cooperative 

Cherry Marketing Institute 

Colorado Sorghum Producers Association 

Cotton Warehouse Association of America 

Council of Producers and Distributors of Agrotechnology 

Delta Council 

Edge Dairy Farmer Cooperative 

Florida Fruit and Vegetable Association 

Georgia Agri-Business Council 

Georgia Cattlemen's Association 

Georgia Farm Bureau 

Grain and Feed Association of Illinois 

Kansas Grain Sorghum Producers Association 

National Agricultural Aviation Association 

National Alliance of Forest Owners 

National Association of Wheat Growers 

National Cotton Council 

National Council of Farmer Cooperatives 

National Milk Producers Federation 

National Onion Association 

National Pest Management Association 

National Potato Council 

National Sorghum Producers 

National Turkey Federation 
976 


35314.915

New Mexico Sorghum Association 

Northwest Horticultural Council 

Oklahoma Grain and Feed Association 

Oklahoma Sorghum Association 

Panhandle Peanut Growers Association 

Plains Cotton Cooperative Association 

Society of American Florists 

South Carolina Peach Council 

Southeastern Lumber Manufacturers Association 

Southwest Council of Agribusiness 

Staplcotn 

Supreme Rice Mil 

Tennessee Nursery and Landscape Association 

Texas Citrus Mutual 

Texas Grain Sorghum Association 

TRC Trading 

United Egg Producers 

US Apple Association 

US Rice Producers Association 

USA Rice Federation 

Western Growers 

Western Peanut Growers Association 
977 


35314.919

January 25,2019 

The Honorable John Barrasso 

United States Senate 

Washington DC 20510 

10 N Post St. Ste. 3051 Spokane WA 99201-0705 

P. 509.624.1158 I F. 509.623.1241 

info@mtningamerica.org I www.miningamerica.org 

The Honorable Tom Carper 

United States Senate 

Washington DC 20510 

Dear Chairman and Ranking Member: 

On behalf of the I ,700 members of the American Exploration & Mining Association (AEMA) 

we urge your support for the appointment of Andrew Wheeler as Administrator, U.S. 

Environmental Protection Agency (EPA). Mr. Wheeler is highly qualified for this position. His 

past service as the Deputy Administrator, as well as for Sen. lnhofe and as chief counsel for the 

Senate Environment and Public Works Committee has prepared him for this critical position. 

Mr. Wheeler has demonstrated his effectiveness as a leader of the EPA. He has earned the 

respect of the many dedicated employees at EPA, the regulated community, and the public. His 

dedication to ensuring a clean environment while allowing responsible economic activity has 

been clearly demonstrated throughout his tenure. We urge you and your colleagues to support his 

nomination. 

AEMA is a 123-year old, 1,700-member national association representing the minerals industry 

with members residing in 42 U.S. states. AEMA is the recognized national voice for exploration, 

the junior mining sector, and maintaining access to public lands, and represents the entire mining 

life cycle, from exploration to reclamation and closure. Our members work closely with EPA on 

necessary permits and to ensure that modern mining is environmentally responsible mining. 

Thank you. 

Yours truly, 

Laura Skaer 

Executive Director 

Mark Compton 

Executive Director (Incoming) 
978 


35314.916

NATIONAL 

ASSOCIATION of REALTORS' 

Bob Culdhng 

Clw"flixt:cum·~ ()fficcr 

ADVOCACY GROUP 

W1lham E Malbs1an 

Ch!t:f AdYocacy Officcr/Semor Vn:e Prcsu.knt 

Shannon :.'lc(;ahn 

Scmor V!ce Prcs1dent Gon:rnmcnt Affairs 

\\\\"\\ Nc\H..RE.\LTOR 

REALTOR X is a re.g1stered co!lectiw 

memOOr!:hlp m.21rl:: wh.ch rmv bl"' U'l!!d Mly by 

1-e~ estste prolession~lswho are members of 

the NATIONAl A.SSOC!ATION Of REAlTORS" 

<Jnd subscribe to ib strkt Code of Ethics, 

January 15,2019 

The Honorable John Barrasso 

Chair 

Senate Committee on Environment and 

Public Works 

307 Dirksen Senate Office Building 

Washington, DC 20510 

The Honorable Tom Carper 

Ranking l\1ember 

Senate Committee on Environment and 

Public Works 

513 Hart Senate Office Building 

Washington, DC 20510 

Dear Chair Barrasso and Ranking Member Carper: 

On behalf of the 1.3 million members of the National Association of 

REALTORS® (NAR), I would like to express NAR's support for the 

nomination of Andrew R. \Xr'heeler to be the Administrator of the 

Environmental Protection Agency (EPA). Furthermore, NAR asks that the 

Senate Committee on Environment and Public Works vote to approve ~{r. 

\\lheeler's nomination and move it to the floor of the Senate soon as possible. 

:rv1r. \X!heeler is well qualified for this position. He has served as the Acting 

Administrator since July 2017, and started his career at the agency, working on 

toxic chemical, pollution prevention and right-to-know issues. He worked on 

the Senate Committee on Environment and Public Works, sen,.ing as majority 

staff director, minority staff director and chief counseL In those roles, Mr. 

Wheeler worked on every major piece of environmental and energy-related 

legislation before Congress during that time, including the Energy Policy Act 

of 2005, the Energy Independence and Security Act of 2007 and the Clean i\ir 

Interstate Rule. 

NAR worked with Mr. %eeler during his tenure on the Senate Environment 

and Public works Committee and appreciated his professionalism, his work 

ethic and his dedication to working on important policy issues in a bipartisan 

and balanced manner. 

NAR urges the Senate Committee on Environment and Public Works to 

approve Andrew R. \Vbeeler as the Administrator of the EPA and move the 

nomination to the floor of the Senate so that one of the Administration's 

senior advocates for environmental protection can begin his important work 

on behalf of the country. 

Sincerely, 

]~~ 2019 President, National Association of REALTORS® 

cc: Senate Committee on Environment and Public \Vorks 
979 


35314.917

~ ~~ 7• National C~ttl~men's Beef Assoc1at1on P~;~~~s January 25, 2019 

The Honorable John Barrasso 

Chairman 

COUNCIL 

The Honorable Thomas Carper 

Ranking Member 

Senate Committee on Environment 

and Public Works 

Senate Committee on Environment 

and Public Works 

Washington, D.C. 20510 Washington, D.C. 20510 

Dear Chairman Barrasso and Ranking Member Carper: 

The National Cattlemen's Beef Association (NCBA) and the Public Lands Council (PLC) urge 

you to support the prompt confirmation of Andrew Wheeler as the Administrator of the U.S. 

Environmental Protection Agency (EPA). NCBA is the cattle industry's largest and oldest national 

trade association, representing American cattle producers who manage a large part of America's 

private property. PLC is the only national organization representing the 22,000 western ranchers 

who hold federal grazing permits and care for over 250 million acres of federal public lands. 

As Deputy Administrator, Mr. Wheeler has proven to be a capable EPA official, weighing multiple 

priorities and finding common ground on politically divisive issues. His background as an EPA 

staffer and his experience directing the staff of the Senate Environment and Public Works 

Committee informs his bipartisan perspective on federal environmental policy. 

Mr. Wheeler successfully navigated the confirmation process one year ago and we expect he will 

do so again. Please do not delay the process. We urge you to act promptly on his confirmation. 

Sincerely, 

Kevin Kester 

President 

Bob Skinner 

President 

National Cattlemen's Beef Association Public Lands Council 

Center for Public Policy Ol 1275 Pennsylvania Avenue NW, Suite 801 

Washmgton. D.C. 20004 a I 202 347-0228 •I ncba.org 
980 


35314.918

America's C~ment Manufacturers:~ 

PurtlandCementAssorialion 

The Honorable Mitch McConnell 

Majority Leader 

S-230, The Capitol 

Washington, D.C. 20510 

The Honorable John Barrasso 

Chairman 

Environment and Public Works Committee 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

January 15, 2018 

The Honorable Charles Schumer 

Minority Leader 

S-221, The Capitol 

Washington, D.C. 20510 

The Honorable Thomas Carper 

Ranking Member 

Environment and Public Works Committee 

456 Dirksen Senate Office Building 

Washington, D.C. 20510 

Majority Leader McConnell, Minority Leader Schumer and Senators Barrasso and Carper: 

The Portland Cement Association (PCA) strongly supports President Donald Trump's nomination of Acting 

Environmental Protection Agency (EPA) Administrator Andrew Wheeler to officially serve as next 

Administrator of the EPA. 

PCA, founded in 1916, is the premier policy, research, education, and market intelligence organization serving 

America's cement manufactures. PCA 's members represent 93 percent of the Unites States' cement production 

capacity and have facilities in all 50 states. Cement and concrete product manufacturing, directly and indirectly, 

employs approximately 600,000 people in our country, and our collective industries contribute over $100 billion on 

our economy. Portland cement is the fundamental ingredient in concrete. The association promotes safety, 

sustainability, and innovation in all aspects of construction fostering continued improvement in cement 

manufacturing and distribution and promotes economic growth and sound infrastructure investment. 

Acting Administrator Wheeler's leadership skills and professional qualifications in the public and private sectors 

make him the ideal candidate for this post. If confirmed, he will bring years of experience and knowledge to the 

role. Given his extensive background in the regulatory field and knowledge of environmental law, Mr. Wheeler 

will be an asset to the broader manufacturing industry as he leads thoughtful strategy and process for smart growth 

in American industries, while protecting the environment. 

Most notably, Mr. Wheeler's current tenure as Deputy Administrator and Acting Administrator lends to a strong 

foundation of institutional knowledge and an opportunity of seamless transition to leadership. PCA asks you to 

support the nomination of Acting Administrator Andrew Wheeler to serve as Administrator of the Environmental 

Protection Agency. 

Sincerely, !{JNr 

Rachel Derby, 

Vice President, Government Affairs 

Portland Cement Association 
981 

Æ 


35314.920

L,:jrhe Washington Post 

Letters to the Editor Opinion 

The importance of the Chesapeake Bay's health cannot be 

overstated 

By Letters to the Editor 

January 13 

After we have invested almost $20 billion to clean up the Chesapeake Bay, it's dismaying that the bay's health 

is declining for the first time in a decade ["Rainy year degrades health of Chesapeake Bay," Metro, Jan. 8]. 

Runoff from farms and development- washing nitrogen, phosphorus, sediment and other chemicals into the 

bay -is one of the principal culprits. Yet if, as it has proposed, the Environmental Protection Agency cuts 

Clean Water Act protections to wetlands and small streams, which naturally filter runoff pollution, the bay's 

health will suffer. On the Eastern Shore alone, for example, more than 34,000 acres of wetlands called 

Delmarva potholes could lose federal protections, opening them up to agricultural conversion or other 

development, according to a recent report by the Environmental Integrity Project. 

To continue to make progress cleaning up the bay and other watm........,ays, the EPA must maintain the Clean 

Water Act's long-standing protections for wetlands and streams. 

Ed Hopkins, Washington 

I think it is safe to say that the Chesapeake Bay nonprofit community took a collective sigh of relief after 

reading the Chesapeake Bay Foundation's State ofthe Bay report. While aD-plus is not something that we are 

striving for, nor are happy about, the reality is that we all thought it might be much worse. 

Last year, this region saw record rainfall, with Washington and other cities in the watershed recording their 

wettest years on record. Pennsylvania received so much rain that the Conowingo Dam's gates were opened 

multiple times, releasing incredible amounts of water filled with debris and nutrient and sediment pollution 

into the bay. However, despite all ofthis, the bay's health score dropped by only one point. This is what we 

have been hoping for - that the bay would not only be restored but be resilient, too. This is especially 

important as our region experiences an increase in intensity and frequency of major storms because of climate 

change. 

This report demonstrates that the work we are doing for the Chesapeake is making a difference and that now is 

not the time to slow down. 

Chante Coleman, Annapolis 

The writer is director of the Choose Clean Water Coalition.