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EPA’S PARTICULATE MATTER AND OZONE

RULEMAKING: IS EPA ABOVE THE LAW?

HEARINGS

BEFORE THE

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,

NATURAL RESOURCES, AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON GOVERNMENT

REFORM AND OVERSIGHT

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

APRIL 16 AND 23, 1997

Serial No. 105–37

Printed for the use of the Committee on Government Reform and Oversight

(

(II)

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

J. DENNIS HASTERT, Illinois

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

STEVEN SCHIFF, New Mexico

CHRISTOPHER COX, California

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

JOHN E. SUNUNU, New Hampshire

PETE SESSIONS, Texas

MICHAEL PAPPAS, New Jersey

VINCE SNOWBARGER, Kansas

BOB BARR, Georgia

ROB PORTMAN, Ohio

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

CAROLYN B. MALONEY, New York

THOMAS M. BARRETT, Wisconsin

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

TIM HOLDEN, Pennsylvania 1

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, Tennessee 2

———

BERNARD SANDERS, Vermont

(Independent)

1 Resigned from committee on April 17, 1997.

2 Assigned to committee on April 17, 1997.

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JUDITH MCCOY, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND

REGULATORY AFFAIRS

DAVID MCINTOSH, Indiana, Chairman

JOHN E. SUNUNU,

J. DENNIS HASTERT, Illinois

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

STEVEN C. LATOURETTE, Ohio

VINCE SNOWBARGER, Kansas

BOB BARR, Georgia

——— ———

BERNARD SANDERS, Vermont

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

DENNIS J. KUCINICH, Ohio

CHAKA FATTAH, Pennsylvania

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

MILDRED WEBBER, Staff Director

KAREN BARNES, Professional Staff Member

CINDI STAMM, Clerk

PHIL BARNETT, Minority Chief Counsel

(III)

C O N T E N T S

Page

Hearing held on:

April 16, 1997 ................................................................................................... 1

April 23, 1997 ................................................................................................... 303

Statement of:

Brodsky, Richard, New York State Assemblyman ......................................... 187

Browner, Carol, Administrator, U.S. Environmental Protection Agency,

accompanied by Mary D. Nichols, Assistant Administrator, Air and

Radiation; and Jonathan Cannon, general counsel .................................... 357

Cannon, John, general counsel, U.S. Environmental Protection Agency .... 478

Congress, Fred, president, Congress Enterprises .......................................... 71

Glover, Jere, Chief Counsel for Advocacy, U.S. Small Business Administration ............................................................................................................ 462

Golding, Susan, mayor of San Diego, CA ....................................................... 113

Grande, Christopher, M.D., executive director, International Trauma Anesthesiology and Critical Care Society ........................................................ 62

Katzen, Sally, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget .................................................... 454

Kline, Faith, school teacher, fourth grade, Philadelphia, PA ....................... 51

Monk, Frances, mayor of Port Neches, TX ..................................................... 139

Munzer, Alfred, past president, American Lung Association ....................... 73

Russman, Richard, New Hampshire State Senator ....................................... 195

Schlesinger, William, professor, Duke University; and Bruce Bertelsen,

executive director, Manufacturers of Emissions Controls Association ..... 274

Schoenberg, Jeffrey, Illinois State Representative ........................................ 128

Voinovich, George, Governor of Ohio .............................................................. 102

Wade, Mike, almond farmer, Atwater, CA ..................................................... 53

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

Barr, Hon. Bob, a Representative in Congress from the State of Georgia:

Petition ....................................................................................................... 424

Roll Call article of April 21, 1997 ............................................................ 422

Bertelsen, Bruce, executive director, Manufacturers of Emissions Controls

Association, prepared statement of ............................................................. 284

Brodsky, Richard, New York State Assemblyman, prepared statement

of ..................................................................................................................... 190

Browner, Carol, Administrator, U.S. Environmental Protection Agency,

prepared statement of ................................................................................... 360

Condit, Hon. Gary A., a Representative in Congress from the State of

California, prepared statement of ................................................................ 46

Glover, Jere, Chief Counsel for Advocacy, U.S. Small Business Administration, prepared statement of ..................................................................... 465

Golding, Susan, mayor of San Diego, CA, prepared statement of ................ 116

Grande, Christopher, M.D., executive director, International Trauma Anesthesiology and Critical Care Society, prepared statement of ................. 66

Kanjorski, Hon. Paul E., a Representative in Congress from the State

of Pennsylvania, prepared statement of ...................................................... 349

Katzen, Sally, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, prepared statement of ............. 457

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, study from the California Senate Office of Research .................. 261

McIntosh, Hon. David M., a Representative in Congress from the State

of Indiana:

Article entitled, ‘‘New Attack on Asthma: Doctors Now Recommend

Early Aggressive Treatment’’ ................................................................ 88

Commissioner Henry Henderson’s testimony ......................................... 249

Page

IV

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

McIntosh, Hon. David M., a Representative in Congress from the State

of Indiana—Continued

Letter dated January 31, 1997 from Ms. Browner ................................. 453

OMB supplied documents ......................................................................... 296

Prepared statement of ............................................................................... 306

Prepared statement of Dr. George Wolff ................................................. 3

Senate Congressional Record dated March 20, 1997 ............................. 491

Testimony of Governor Engler and Governor Sunquist ......................... 288

Monk, Frances, mayor of Port Neches, TX, prepared statement of ............. 142

Munzer, Alfred, past president, American Lung Association, prepared

statement of ................................................................................................... 75

Russman, Richard, New Hampshire State Senator, prepared statement

of ..................................................................................................................... 197

Sanders, Hon. Bernard, a Representative in Congress from the State

of Vermont:

April 21, 1997, article in Roll Call by Henry A. Waxman ..................... 451

March 2, 1997, article from the Cleveland Plain Dealer ....................... 240

Non-monetized benefit categories ............................................................ 242

Schlesinger, William, professor, Duke University, prepared statement of .. 277

Schoenberg, Jeffrey, Illinois State Representative, prepared statement

of ..................................................................................................................... 132

Snowbarger, Hon. Vince, a Representative in Congress from the State

of Kansas, comments provided by the Kansas Department of Health

and Environment .......................................................................................... 312

Sununu, Hon. John E., a Representative in Congress from the State

of New Hampshire, prepared statement of ................................................. 41

Voinovich, George, Governor of Ohio:

Information concerning impact that international trade has had on

Ohio ......................................................................................................... 265

Prepared statement of ............................................................................... 106

Wade, Mike, almond farmer, Atwater, CA, prepared statement of .............. 55

Waxman, Hon. Henry A., a Representative in Congress from the State

of California:

Excerpt from CASAC’s closure letters ..................................................... 98

Information concerning experts urging President Clinton to go with

EPA’s proposal ....................................................................................... 204

Prepared statements of ........................................................................... 49, 355

(1)

EPA’S PARTICULATE MATTER AND OZONE

RULEMAKING: IS EPA ABOVE THE LAW?

WEDNESDAY, APRIL 16, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, Washington, DC.

The subcommittee met, pursuant to notice, at 9:45 a.m., in room

2154, Rayburn House Office Building, Hon. David McIntosh (chairman of the subcommittee) presiding.

Present: Representatives McIntosh, Sununu, Scarborough,

Snowbarger, Sanders, Tierney, Turner, Condit, and Kucinich.

Ex officio present: Representatives Burton and Waxman.

Staff present: Mildred Webber, staff director; Todd Gaziano, chief

counsel; J. Keith Ausbrook and Larisa Dobriansky, senior counsels;

Karen Barnes, professional staff member; Cindi Stamm, clerk; Phil

Schiliro, minority staff director; Phil Barnett, minority chief counsel; Elizabeth Mundinger, minority counsel; and Ellen Rayner, minority chief clerk.

Mr. MCINTOSH. The House Subcommittee on National Economic

Growth, Natural Resources, and Regulatory Affairs will come to

order. After consulting with Mr. Sanders, each side will have 10

minutes of opening remarks that they can allocate however they

wish, and then we’ll proceed to our first panel of witnesses. On our

side, I believe I’m the only Member with opening remarks, and so

I’ll proceed.

The purpose of today’s hearing is to determine whether EPA has

engaged in an illegal rulemaking procedure to impose burdensome

new standards for particulate matter and ozone. We also will hear

from a variety of witnesses on what such an illegal rulemaking

means for America. Let me be clear. A great deal has been reported

on EPA’s proposal that indicates that it is, in fact, an illegal rulemaking and that there may be a terrible price to pay in terms of

human health if the Agency does not begin over and follow the law.

Despite the grave implications of its proposals, EPA’s rulemaking

has several problems. It has violated the Regulatory Flexibility Act.

The Agency refused to fully evaluate the impact of its proposed

rules on small businesses, as required by the Regulatory Flexibility

Act, despite an authoritative finding by the controlling legal authority at the Small Business Administration, that EPA is required

to do so.

EPA has violated the Unfunded Mandates Act. They refuse to

fully evaluate the impact of its proposed rules on small businesses,

2

as required by that act. The Agency also refused to adequately involve State and local officials in the development of new standards.

Specifically, EPA refused to conduct a complete cost-benefit analysis or to select the most cost-effective option among all the reasonable alternatives that achieve the objectives of the Clean Air Act.

EPA has refused to validate the key studies on which the Agency

is relying, by having the underlying data released for independent

review. EPA appears to have collaborated with OMB to impose a

gag order on other agencies’ written concerns on the proposed

rules. And EPA has refused to allow an adequate opportunity for

public comment on its proposed rules or to allow an adequate opportunity for regulatory review under President Clinton’s regulatory review Executive order. Not only has EPA refused to complete these required analyses, but the Agency has also ignored the

scientific findings of its own Clean Air Act scientific advisory committee.

While the Agency maintains that its standards must be healthbased, EPA’s own scientific experts, such as Dr. George Wolff, who

testified before the Small Business Committee, have said that

there is no scientific proof that the proposed rules will, indeed, improve public health. I ask unanimous consent that Dr. Wolff’s testimony be put into the record.

[The prepared statement of Dr. Wolff follows:]

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Mr. MCINTOSH. In contrast to the experts’ warning that the proposed rules provide no benefit, there is strong reason to conclude

that they will be harmful to effects to clean the air and the efforts

to protect Americans’ health. The end result will be the loss of hundreds of thousands of jobs and the degradation of human health— the exact opposite of EPA’s stated objective.

What are these alternatives to the illegal rulemaking? There are

clearly better investments that can be made to promote public

health. Eight billion dollars could save 3 to 4 times as many

women from breast cancer by paying for mammograms. And indeed, what we’re seeing is that communities who are making

progress today under the current standards will not know what

they need to do to comply with the new standards. I’m deeply concerned that the proposed standards would work against the considerable progress that has been made to date, because of either the

uncertainty that’s created or because of years of litigation that may

result in an invalidation of these procedurally flawed rules.

Frankly, hundreds of new communities will be thrown out of

compliance with the Clean Air Act. According to EPA, there are

600 additional counties that will be in non-attainment, and many

others that may be because of the lack of monitoring data. That

would more than triple the number of areas where State and local

officials will have to impose very onerous new control measures,

even though there is no proof that the new standards can ever be

met.

The greatest burdens will fall on small businesses and communities that may be forced to require such measures as mandated

car pooling and centralized emission inspections for family cars.

And the rules may force new restrictions on the use of boats, lawn

mowers, fireplaces, and even outdoor barbecues. New road construction projects may be delayed in these counties or halted altogether. Farming practices may be restricted. And urban sprawl

would indeed increase.

Well, let’s look at some of these alternatives with what we could

do with money that would be spent on this rulemaking. As I mentioned earlier, $8 billion could save 3 to 4 times as many women

from breast cancer by paying for mammograms. Or we could pay

for asthma research and the asthma medicine for all of the Nation’s asthma sufferers, not just a fraction of one kind of asthma

patients that EPA says may be helped by these ineffective rules.

Our goal is to ensure that the process is not only lawful, but that

it provides the best and most effective protection for public health

and the environment. Let me explain what I mean by using the following hypothetical. Suppose your child were to become seriously

ill, wouldn’t you, as a parent, want the best possible understanding

of the cause before your child undergoes surgery or treatment? You

would want your doctor to perform all of the necessary tests for a

sound diagnosis to determine the least intrusive procedure for curing your child.

Before agreeing to surgery or radical treatment, you’d want to

explore all other medical options and consider the risks and potential side effects of each one of them. We all know that the careless

prescription of medicines without screening for allergies and drug

interactions can indeed harm or even kill a patient instead of curVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
37

ing them. The care of our nation’s public health requires nothing

less then the same type of care needed to take care of our children.

In sum, America cannot breathe easily until EPA has fully complied with the law. Only then can EPA determine how our scarce

resources can be put to the greatest social good. EPA’s proposed

standards for particulate matter and ozone represent an irresponsible and, frankly, potentially illegal rush to judgment, which may

undermine our Nation’s efforts to clean the air. As Mayor Daley

has stated, standards do not improve public health, clean air does.

Thank you very much. Mr. Sanders, do you have an opening

statement?

Mr. SANDERS. I do. And thank you very much, Mr. Chairman.

Let me just begin by thanking you for holding this important hearing and also for making accommodations for Dr. Munzer to be on

the first panel. As you know, this is, in fact, a controversial hearing, although not a partisan one. And I end up disagreeing with

many of the assertions that you just made. But we’ll discuss those

later.

I, for one, am, in fact, very pleased that the EPA has proposed

stricter standards for ozone and fine particulates. Too many Americans, many of them young children in Vermont and, more importantly, in urban areas throughout this country, are suffering from

asthma and other respiratory conditions caused or exacerbated by

these pollutants. In fact, studies have shown that ozone levels typically below the current standard were linked to 29 percent of all

respiratory hospital admissions.

Ozone at levels below the current standard are causing asthma

attacks and exacerbating allergies. Ozone at levels below the current standard are linked to measurable declines in lung function in

children. Ozone at levels below the current standards cause inflammation of the upper airways of normal, healthy children. Healthy,

exercising adults exposed to ozone at or below the current Federal

standard experience 5 to 15 percent decrease in lung function. And

sensitive individuals suffered a debilitating 40 to 50 percent loss.

Non-smoking men and women living in areas with relatively high

levels of ozone and other air pollutants had approximately one-half

to three-quarters the lung function damage of a one-pack-a-day

smoker.

That is serious business. Similarly, studies of particulate matter

show particulate air pollution is linked to hospital admissions for

pneumonia, chronic obstructive pulmonary disease, heart attacks,

angina and heart failure. In a study of 1,850 school children, when

particulate pollution was increased, all children suffered symptoms,

even when the pollution was substantially below the current national danger standard.

The average life span shortening resulting from exposure to particulates is in the order of 2 years. This is strong evidence that the

time to act is now. Environmental degradation is becoming increasingly linked with health problems, like asthma, which are on the

rise. When we know there is a link with a particular pollutant, we

should use this knowledge to establish sound public policy. We

have the chance here to prevent an estimated 15,000 deaths.

We can give our children the chance to play outside on sunny

days with fewer asthma attacks. And I think we should seize this

38

opportunity. We have the obligation to protect the interests of the

health of the American people, and especially our children.

I have read that some critics feel that we need to do more research before setting these standards. More research is always a

good idea. But it looks like we have enough at this time to set the

proposed standards.

The Clean Air Scientific Advisory Committee, otherwise known

as CASAC, an independent review panel representing different

parts of the scientific community, has reviewed thousands of studies over a 3-year period and overwhelmingly supports the standards proposed by the EPA. And I have no reason to believe anyone

is concerned that the studies relied on were faulty. Let me quote

from the closure letter from that panel:

‘‘It was the consensus of the panel members that the criteria document provides an adequate review of the available scientific data

and relevant studies of ozone. The document is quite comprehensive and will provide an adequate scientific basis for regulatory decisions on ozone based on available information.’’ Further quote, ‘‘It

was the consensus of the panel that the ranges of concentrations

and allowable exceedances proposed by the agency were appropriate.’’

Similarly, on particulate matter, the CASAC panel wrote, ‘‘With

the incorporation of our suggested changes, the revised criteria document will be very comprehensive and will provide an adequate

scientific basis for regulatory decisions on particulate matter.’’ And

I quote again, ‘‘There were also concerns that a new PM2.5 NAAQS

be established, with 19 panel members endorsing the concept of a

24-hour and/or an annual PM2.5 NAAQS.’’

Now, others may have different opinions, especially special interests, who may have to clean up their act. However, under the

Clean Air Act, the EPA must set the standard based on the best

scientific evidence available. And that is what it has done. And Mr.

Chairman, I think that is an appropriate action.

I represent the State of Vermont. So let me take a moment to

address some regional issues. The problem with air pollution is

that it just doesn’t stay in one place. It is not just a California

issue or a Vermont issue. And in the case of ozone and fine particulates, Vermont, the Northeast, and our neighbor to the north, Canada, are breathing the second-hand smoke of the coal-burning

power plants in the Midwest. In fact, there is one plant in Ohio

that emits more NOx, a precursor to ozone, than all of the utility

plants in New Jersey and five times the annual emission of the

District of Columbia. And those NOx ride on westerly winds to the

Northeast. And we in the Northeast breathe that pollution and

have trouble attaining the current standards.

It is about time this issue was addressed. And these standards

will improve air quality in both places—in the Midwest and the

Northeast. Furthermore, as pointed out by the director of the air

pollution control division of Vermont’s Agency of Natural Resources, ‘‘These upwind reductions from large, fully controlled coalfired power plants would be very cost-efficient on a per-ton basis

and would reduce the burden of more costly per ton controls on

Vermont sources.’’

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Mr. Chairman, thank you again for holding this important hearing and thank you for working with the minority to ensure that

witnesses with differing points of view could testify and present a

full and fair picture of the issues. I look forward to working together with you on future hearings on the clean air standards and

other issues.

Mr. CONDIT. Mr. Chairman?

Mr. MCINTOSH. Yes.

Mr. CONDIT. Mr. Chairman, can you yield some time to me so I

can make a quick statement?

Mr. MCINTOSH. I would be happy to. Mr. Condit, I also didn’t realize that our vice chairman, Mr. Sununu, had one. Could I hear

from him, and then we’ll go back to you? Mr. Waxman, do you have

an opening statement as well?

Mr. CONDIT. Well, I think we’ll have time for both of those.

Mr. MCINTOSH. Mr. Sununu.

Mr. SUNUNU. Thank you, Mr. Chairman. And Mr. Condit, I will

try to be brief. I’d like to thank all of you who are taking the time

today to offer your testimony and share your thoughts with this

subcommittee. In particular, I want to welcome my friend, Senator

Rick Russman, who will appear in our next panel. And he continues to do an excellent job representing the 19th Senate District

in my home State of New Hampshire.

I’m proud to note that New Hampshire possesses a strong history

of support for high standards in environmental protection and resource management. Through the implementation of practices

based on sound science and common sense, and through inclusive

planning such as that which we used to develop our 10-year forest

plan, New Hampshire has actively protected the value of our natural heritage and maintained an extremely high quality of life. On

a national scale, the United States has been successful, as well,

reaping the benefits of the Clean Air Act as States, cities and

towns continue to improve the quality of the air we breathe.

Still, however, concerns remain. In the Northeast, for example,

as was mentioned by Congressman Sanders, we continue to deal

with the issue of pollution transport. To that end, I’m hopeful that

the work of the regional ozone transport assessment group will

help us move toward a long-term solution to this serious problem.

But the issue before us today is not whether we share the goal of

protecting public health.

Clearly, we all do share that goal. Our objective is to ensure that

the process we use to establish such regulatory guidelines utilize

the best available science to determine the most appropriate standards and implement them at the lowest cost to society. And equally

important, we must ensure that this process reflects the true intent

of laws such as the Clean Air Act signed by President Bush and

the Small Business Regulatory Enforcement Fairness Act passed

during this last session of Congress.

And the specific case of the EPA’s proposed particulate standards—I would hope that these hearings address the question of

whether adequate scientific evidence exists to support the restrictions being proposed. Given that the Clean Air Scientific Advisory

Committee in its final report noted, ‘‘There was no consensus on

the level, average time, or form of a particulate standard,’’ it’s clear

40

that some significant questions do exist. Moreover, the President,

recognizing the lack of hard and firm data, has himself called for

greater spending on research and monitoring activity.

Clearly, our focus should be on the need for accurate monitoring

in order to fairly assess the potential costs and benefits of any new

rule. With regard to the ozone standards, I hope we can begin to

get a clear picture of the actual anticipated benefits in real terms

rather than just in broad, sweeping statements. These hearings are

an important step toward understanding whether we’re properly

addressing the very concerns raised throughout the regulatory review process.

It’s encouraging that Administrator Browner has reacted appropriately to concerns that have been raised by extending and delaying the review and comment period. I look forward to the testimony

today and hope that it will shed some light on the process and

science that EPA has used to develop these standards. Our responsibility is to look at them in a fair and critical light to ensure that

they’ll provide us with real and measurable benefits to all of our

citizens without imposing an undue or unreasonable burden.

Thank you, Mr. Chairman.

[The prepared statement of Hon. John E. Sununu follows:]

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Mr. MCINTOSH. Thank you, Mr. Sununu. Mr. Condit, by the way,

let me thank you for helping to arrange for one of our witnesses

to come. And Mr. Sanders, thank you and your staff for the cooperation they’ve given us in preparing for the hearing.

Mr. CONDIT. Thank you, Mr. Chairman. What I would like to do

is submit a statement for the record. And the reason I’m taking

some time here is I do want to make an introduction of the witness

that has come from my district and is a constituent of mine. Because we’ve got a couple other hearings going on, I’m going to have

to step out just for a few minutes. But I’d like to take the opportunity to introduce Mike Wade, from my district. Mike is an almond farmer from Atwater, CA, where he farms about 70 acres of

almonds. He is also the executive director of the Merced County

Farm Bureau. And in that capacity, Mike has worked for many

years with other interests in the San Joaquin Valley on research

regarding PM10 standards.

Mike has become an expert on that issue. Today I look forward

to his testimony and I appreciate very much the fact that he’s come

all the way from California to be with us. And I appreciate you allowing him to be here today, Mr. Chairman.

So, with that, I have a statement to submit. I’m going to excuse

myself for a few minutes and I’ll be back.

Thank you, Mr. Chairman.

[The prepared statement of Hon. Gary A. Condit follows:]

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Mr. MCINTOSH. Thank you, Mr. Condit. We’ll put the full statement in the record. Mr. Waxman, did you—— Mr. WAXMAN. Mr. Chairman, I want to thank you for holding

this hearing. And I also want to thank you for including some of

our suggested witnesses in the hearing so that we could have a balanced presentation on all the different perspectives. The Clean Air

Act has been a great success. It is responsible for remarkable

progress in cleaning up the air in the last 25 years. Major air pollutants have decreased nationally by 30 percent. But at the same

time, our domestic product nearly doubled and our population increased by 28 percent.

Incredibly, the Clean Air Act has achieved all this at a cost far

lower than anyone had predicted. In 1990, for example, industry

predicted the law would cost about $91 billion a year. In fact, that

actual cost of the act is only 25 percent of industry’s projections.

Despite the repeated errors in these type of economic projections,

there are some who would like the Clean Air Act to set standards

based on costs. And I believe this hearing will highlight the dangers of such a scheme. The EPA has prepared a regulatory impact

statement, or what’s called an RIA, which analyses the costs and

benefits of revising the ozone and particulate matter proposals.

This analysis is the state-of-the-art. It was developed over a period

of 2 years, and it’s one of the best RIAs ever produced by any agency. Despite the efforts put into this RIA, it has shortcomings. There

are some who would argue that the costs are underestimated. Others would say that they’re overestimated. On the other hand, the

EPA admits that many benefits are simply not quantified. Estimating benefits and costs is an imprecise and easily manipulated task.

If we were to set air quality standards based on these cost projections, standards would be no better than arbitrary, and we could

no longer expect them to protect the public’s health. Arguing over

costs and benefits would throw our clean air efforts into gridlock.

Fortunately, we don’t have to face that problem. We have a rational approach in this law, which has made the Clean Air Act so

effective. Air quality standards are health-based. They are set at

a level which protects the public health. However, recent studies

inform us that the existing standards need to be modernized, because they are not adequately protecting the public health. Many

studies indicate that tens of thousands of people are dying and

hundreds of thousands more are suffering from illnesses caused by

commonly found levels of air pollution that are currently mis- labeled as safe.

We need the EPA to set a health-based standard that is going

to protect the public health. And then we can talk about the costs

and the timeframe to achieve those standards. That’s a very different approach and one that’s been very successful, than one that

has been talked about where we set the standards based on these

cost-benefit projections, which are so inadequate and which would

lead to standards that would not accomplish the goal of adequately

protecting the public health.

I thank you for your cooperation in scheduling the witnesses and

this hearing. And I look forward to the testimony of the witnesses

today.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. MCINTOSH. Thank you very much, Mr. Waxman. If any other

members of the committee would like to submit a statement for the

record, I’d be glad to take it. Let me now ask each of the members

of the first panel to please rise and raise your right hand.

[Witnesses sworn.]

Mr. MCINTOSH. Thank you. Let the record reflect that each of the

witnesses answered in the affirmative. By the way, just so you

don’t think that this is a special proceeding, this is something that

we’ve had as our full committee policy in the 3 years that I’ve

served in Congress, that we ask each of our witnesses to be sworn

in.

Our first witness today is Mrs. Faith Kline, who is a schoolteacher in the fourth grade. Mrs. Kline, if you could share with us

your testimony.

STATEMENT OF FAITH KLINE, SCHOOL TEACHER, FOURTH

GRADE, PHILADELPHIA, PA

Ms. KLINE. Good morning. My name is Faith Kline. I teach

fourth graders in the school district of Philadelphia. Many of my

students, and I, have severe asthma triggered by tobacco smoke,

extremes in weather changes, pollen and stress.

All of my 33 students are African-American. My school’s poverty

rate is 86 percent. The 80-year-old building should be repainted,

but there’s no money for that. When it rains, one wall of my room

floods and old paint and plaster fall from the ceilings and the

walls. Sometimes the cement yard where I pick my children up in

the morning hasn’t been cleaned. It’s littered with old needles,

empty crack vials, broken glass, and used condoms.

We don’t have any playground equipment. When they stay after

school to read, my children leave by 3:45 p.m., because at 4 o’clock

the drug dealers are on the corner.

Two weeks ago, an 11-year-old girl was shot six blocks from my

school. The aunt of one of my students was raped last week on her

way home from work. Last summer I called a former student, her

grandmom told me Neenee was sleeping by the fan because she

couldn’t get enough air. I asked about the air conditioner and she

replied, ‘‘I can’t afford an air conditioner. And even if I could, I

couldn’t afford the electric bill.’’

You talk about stress? If your asthma is triggered by stress, and

this is your life, no wonder you can’t breathe. The American Lung

Association cites studies and reports that at camp, it’s harder for

kids to breathe and they use more medication depending on pollution levels. My daughter has asthma. When she’s at camp, Kristin

runs around more. She rides horses, swims in a chlorinated pool,

and sleeps in a cabin on a 20-year-old mattress. The cabin is in the

woods. She shares it with 11 other girls. And at camp, Kristin uses

more asthma medication than she does at home.

But Kristin has attended summer camp for 7 years. She keeps

going back. I keep spending a lot of money to send her there. Obviously, the benefits of summer camp outweigh the asthma problems.

And clearly these studies have not controlled for intervening variables like physical activity, animal dander, molds and pollens.

EPA has indicated tightening the standard would produce an increased public health protection. Their own literature says, ‘‘ReVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00055 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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peated exposure to ozone pollution for several months may cause

permanent lung damage.’’ ALA’s literature states, ‘‘Many Americans appear to be at risk from ozone pollution. And in lab animals,

exposures to ozone may promote the development of some cancers.’’

Equally true, then, are these statements. Ozone pollution may

not cause permanent lung damage. Many Americans do not appear

to be at risk from ozone pollution. And lab animals may not develop cancer when exposed to ozone.

When they observed the same cumulus cloud, one of my students

thought it looked like a brontosaurus. Another one said it was Michael Jordan going for the three-point. And another argued it was

his mom in the morning with curlers in her hair. Appearances are

subjective. ‘‘May’’ and ‘‘appear’’ are not words that validate policy

change.

The Clean Air Trust wrote that in a national survey most people

wanted air pollution standards strict enough to protect human

health and asthmatic children. Passion, though, should not be used

as a vehicle to support policy change.

Who would say that air pollution standards should not protect

human health? Would any of us say that we don’t want to protect

asthmatic children? The question should have been: Would you be

willing to have new air quality standards set that may protect

human health more than the current standards, but also may

cause a change of your lifestyle? That question doesn’t attempt to

exploit emotions. It states facts, and the data it yields could be considered valid.

Last week my students and I discussed how clean the air should

be. Initially, everybody believed they had a right to cleaner air. I

explained that as a result of forcing some groups to work harder

to make air cleaner—one—you may not be able to use your lawn

mowers often, or you have to go out and by a new greener one.

Two—you may not be able to burn logs in your fireplace. And

three—you may have to have a certain number of people in the car

when you use it. One child said, ‘‘Our lawn mower works just fine.

We don’t want to buy a new one. And my mom likes the fireplace

in the winter.’’

Another said, ‘‘We can’t ride more than two in the car. It’s just

my mom and me. And we need the car.’’ Finally, Rashaan summed

it up by saying, ‘‘Ms. Kline, cleaner air might be good. But we

shouldn’t have to give up so much to get it. They don’t have the

right to take away our rights. That’s just not fair.’’ And silently I

agreed with him.

Our ambition should be critical evaluation and responsible problem-solving, so that we don’t take leaps, then find ourselves on slippery slopes because of our commitment to misinformation.

I urge everyone to base decisions on facts, on sound, logical

thinking, and not emotional responses. Equity for all in democratic

society requires fair policies, strict but attainable goals, a level

playing field, and commitment to responsible citizenship. Thank

you.

Mr. MCINTOSH. Thank you, Ms. Kline. Obviously, your students

are very wise. Let me now proceed with our second witness that

Mr. Condit has already introduced to us. Mr. Wade is an almond

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farmer from central California. Thank you for coming and sharing

your testimony with us.

STATEMENT OF MIKE WADE, ALMOND FARMER, ATWATER, CA

Mr. WADE. Thank you, Mr. Chairman and committee members.

My name is Mike Wade, and I’m a partner in an almond farmer

operation in Atwater, in California’s San Joaquin Valley. Our farm

is approximately 70 acres, smaller than the State average, 435, but

typical of the farms in our area.

Regulations governing agricultural operations aren’t new in California. In 1989, rules were proposed by air pollution control officers

in the San Joaquin Valley, which were intended to reduce the levels of PM10 in the valley. They included requiring every tractor

that is tilling a field to carry a huge water tank to spray the soil,

to prevent dust from drifting.

They also required that we would be spraying water on large

storage piles of seed and fertilizer to prevent wind-blown dust, and

limiting the amount of manure a cow could drop on the ground in

a given day. Bear in mind, these were all seriously considered for

PM10 control measures. Tractors would have to have been fitted

with a water system which would haul and disperse water around

tillage equipment. The inconvenience of continually filling the system throughout the day would slow field operations and increase

soil compaction due to the heavy weight.

It was suggested that the surface of storage piles be sprayed with

water to prevent dust from blowing. The problem with this solution

is that water will ruin stored seed by increasing mold and mildew

growth, and water on dry fertilizer will cause it to stick together

and make it impossible to spread evenly in a field. And, finally,

cows would have been prevented from standing in more than 2

inches of manure, meaning the amount they could drop on the

ground in a given day would be limited.

It was suggested—and I am not making this up—that the cows

wear some type of device—a diaper, I suppose—to capture the manure so the farmer could collect it and dispose of it elsewhere. The

proposed PM2.5 standard could have an equally dramatic effect on

farm operations such as the burning of tree prunings and grain

stubble. The issue of agricultural burning is important to farmers.

Burning crop residue such as orchard prunings or grain stubble is

an alternative which currently has few viable options. Some of the

hard choices we’ll have to make are going to be between a moderate amount of open burning and the use of certain chemical pesticides, or whether we want to begin sending agricultural crop residue to landfill sights.

These early PM10 regulations were based on wrong assumptions

regarding the volume of contributions of particulate matter from

suspect crops. The only basis for considering how to control sources

was groundless supposition on the part of air pollution control officers within the San Joaquin Valley. It was suggested that all vehicles leaving a dairy or feed lot would be required to be cleaned

prior to departing the property.

Power washers and mechanical shaking equipment were some of

the ideas which surfaced without considering, at the time California’s drought or the effect of mechanically shaking an entire truck.

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Water is at a premium in California, and shaking a truck would

increase maintenance and eventually destroy the vehicle. If our industry is forced to undertake control measures like those proposed

last time, it could very well lead to other adverse consequences.

Let’s say we could completely eliminate particulate pollution from

sources such as agricultural burning by completely doing away

with it.

It would still not solve all of our problems. Burning is an effective way to control certain pests and diseases without the use of

chemical pesticides. These tradeoffs have not been adequately addressed. The proposed rules were developed without adequate

science to even know whether the control activities would have had

any positive benefit to air quality or health effects. It’s the old case

of ready, fire, aim. And it was that same time of that misguided

rulemaking which led to the $24 million California Regional PM10

study. And as we approach the mid-point in the study, we still

don’t know enough about PM2.5 to make choices any better than

those which were made in 1989 for PM10.

The data we need to fully understand the consequences of the

proposed PM2.5 regulation is lacking. It’s just premature to move

ahead before we fully understand the problem and try to develop

meaningful solutions. We’re going to be implementing measures

that will have the end result of putting people out of business. This

will force buyers of agricultural products to look to sources in other

countries which don’t have the burdensome regulations we have in

the United States.

Produce buyers will begin filling their orders with products purchased from countries that don’t have the safeguards consumers

rely on here at home. We need to maintain the highest standards

possible. But at the same time, our regulations shouldn’t result in

overburdening our farmers to the point where they’re not competitive and the public health is put at risk from imported food grown

or packaged in substandard conditions. Although farmers in California will face definite challenges from this regulation, I believe

farmers who can only grow one crop per year, such as grain crops

in the Midwest, will be particularly hard hit.

In my opinion, more farms than not will be adversely affected by

this regulation. And in conclusion, it doesn’t seem to me that it’s

rational decisionmaking when we don’t know whether the efforts

we’ve put forth are even going to have the desired benefit we’re

seeking. There are too many questions and too many problems still

to be solved for me to agree that the supposed health benefits are

worth the effort. Not until we know more about minute particulate

pollution and how to effectively control it can we tell the American

public that the high cost of this regulation is even worth it. Thank

you for the opportunity today.

[The prepared statement of Mr. Wade follows:]

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Mr. MCINTOSH. Thank you very much, Mr. Wade, for sharing

that testimony. I’ll be looking forward to asking you more questions

about these cow diapers.

Our next witness is Mr. Christopher Grande. Mr. Grande is with

us today. He’s the executive director of the International Trauma

Anesthesiology and Critical Care Society. And I appreciate you

coming, Dr. Grande.

STATEMENT OF CHRISTOPHER GRANDE, M.D., EXECUTIVE DIRECTOR, INTERNATIONAL TRAUMA ANESTHESIOLOGY AND

CRITICAL CARE SOCIETY

Dr. GRANDE. Thank you, Mr. McIntosh. Good morning. I’m Dr.

Christopher Grande. I’m a practicing physician from Baltimore. I’m

a board-certified anesthesiologist and an intensive care specialist in

trauma injury. I’ve authored and edited numerous medical textbooks and have about 30 articles published in professional journals.

I’m also executive director of the International Trauma Anesthesia

and Critical Care Society, or ITACCS, for short. ITACCS is a 10-

year-old professional association of more than 1,000 trauma specialists and emergency room physicians, nurses, and related professionals.

I also hold a masters degree in public health from the Johns

Hopkins University School of Public Health.

I’d like to thank the committee and Chairman McIntosh for inviting me to provide ITACCS’ view on the proposed ozone and particulate matter standards. Before I specifically address the standards,

though, I’d like to give the committee some important background

information.

Every day I’m in the hospital emergency room, I see patients and

problems vying for critical resources. From acute asthma patients

to traumatic injuries—these are all competing public health priorities, all competing for limited available public health resources.

The focus of ITACCS is traumatic injury, often accidental in nature, such as that caused by motor vehicles, on the job, or household accidents. Injury is the leading cause of death for those under

the age of 45 and is the fourth leading cause of death overall in

the United States—about 150,000 deaths per year.

Trauma cuts across all of society. The injured person is not someone else. The injured patient is you, your child, your spouse, your

parent. The average age of the injury victim is 20. Death from injury is the leading cause of life lost in the United States. More than

twice the number of years of life lost as the next leading cause,

cancer, and three times that of heart disease. According to 1990

statistics from the Center for Disease Control and Prevention, traumatic injury was responsible for approximately 3.7 million years of

potential life lost.

In contrast, cancer was responsible for 1.8 million years of life

lost. And heart disease was responsible for 1.3 years of potential

life lost. What does this tell us? I think it was summed up approximately 10 years ago by the National Academy of Science that,

‘‘Trauma is the leading critical public health crisis in the United

States today.’’ And that statement is perhaps even more true 10

years later. How is this relevant to the debate over the ozone and

particulate matter standards? It can be put simply in three words:

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public health priorities. The fact is that society has limited resources that it can spend on public health. As such, public policy

dictates that such resources be spent so as to achieve the biggest

bang for the buck. ITACCS is not convinced, nor should the public

be, that the proposed ozone and particulate matter standards are

a smart way to spend our limited resources.

But I want to make clear that we are not singling out only the

proposed ozone and particulate air quality standards. The proposed

standards are merely the latest example in what we see as a disturbing trend over the last two decades where scarce public health

resources are diverted from more clearly demonstrated beneficial

uses. As the makers of our laws and ultimate allocators of our public health resources, Congress should take the lead in rationally allocating our limited resources. But how would Congress know what

is a priority and what is not?

The process behind the proposed ozone and particulate matter

air quality standards has not been helpful. First, the proposed

rules do not provide a ranking or comparison between the estimated health effects attributed to ozone and PM and those of other

public health needs. One of the health end points associated with

the proposed rules is asthma. No doubt asthma is a serious issue.

And public health resources should be directed at asthma.

But a recent study published in the February 1997 issue of

American Journal of Respiratory and Critical Care Medicine has

placed air pollution-induced asthma in perspective. In a type of

study—perhaps the same one Ms. Kline referred to earlier—that

has been characterized as the most reliable study of the potential

health effects of ambient ozone, that is, ‘‘A Study of Children Attending Asthma Camp,’’ air pollution was associated with a 40 percent increase in asthma exacerbation in children.

It sounds bad, but what does this really mean? According to the

study authors, this increase in asthma exacerbation equates to one

extra use of an inhaler among one in seven severe asthmatics on

the worst pollution day. An important health problem? Possibly.

But before we commit our scarce resources, wouldn’t it be useful

to know exactly where this health effect ranks among other public

health priorities?

Second, the proposed rules do not provide an accurate estimate

of what their associated opportunity costs are. For example, if a

community is forced to spend its resources implementing the ozone

and particulate matter standards, what other public health needs

will the community sacrifice? A new trauma center? Training for

its paramedics? A new ambulance?

Filling these other public health needs can produce results that

cut across many public health problems. For example, ambulances

and trauma centers can benefit everyone, from asthmatics to heart

attack and trauma victims. It would seem good public policy, therefore, to develop and rely on an analysis of opportunity costs. Third,

the true uncertainties associated with the proposed ozone and particulate matter air quality standards have not been fully presented.

For example, it has been estimated and widely reported that chronic exposure to fine particulate matter causes 20,000 deaths per

year.

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In fact, this estimate is based on very uncertain epidemiology. It

was acknowledged recently by the EPA and reported in major

newspapers, such as the Washington Post, that the simple error of

using an arithmetic mean as opposed to an arithmetic median reduced the estimated mortality from fine particulate matter by

5,000 deaths. It could very well be that chronic exposure to fine

particulate matter in fact causes no deaths. On this point, it is

greatly troubling that the data underlying this estimate has yet to

be made publicly available.

Given the major confounding factors for mortality appear to be

omitted from these analyses—factors like lack of exercise, poor diet

and prior health history—weak epidemiological associations could

easily vanish with more thorough analysis.

In stark contrast to what has been hypothesized about particulate matter and mortality, we know that about 150,000 people die

every year from injury. These are real deaths, not those calculated

through debatable assumptions and statistics.

One year ago, the television show, Dateline NBC, featured the

story of Robert Meier. In April 1995, Mr. Meier was driving home

through rural Oklahoma, heading home for Easter. Just before 4

p.m. that afternoon, Mr. Meier’s van careened off the highway,

slamming into a guard rail. His van rolled over five times before

plummeting into a ravine. Within minutes, rescue personnel were

on the scene. The ambulance took Mr. Meier to Shawnee Regional

Hospital. But the doctor on duty determined that Mr. Meier had

serious internal injuries and needed to be transferred to another

hospital better-equipped to treat them.

But as Mr. Meier bled profusely from a ruptured aorta, no other

hospital in the area would accept him, because critical resources

were not available. It was not until half past midnight, 8 hours

after his accident, that a surgeon was found to operate on Mr.

Meier. But this delay cost Mr. Meier his life. Mr. Meier was fully

covered by health insurance. He had done his part. But because of

a lack of crucial resources, the system failed.

Stories like this are common. But they should not be, nor do they

have to be. Proven solutions are available now, but must compete

for attention and funding. More than 25 studies indicate that between 20,000 and 25,000 Americans who die each year from injury

could be saved if regional trauma systems were in place across the

Nation, ensuring prompt access to a qualified trauma center.

In 1973, Congress enacted the Emergency Medical Services Act

to help States improve their trauma systems. But lack of Federal

support made this an unfundable mandate that States could not afford to implement on their own. And as a result, significant deficiencies exist in trauma systems across the country, like the one

that resulted in Mr. Meier’s death. But how would Congress know

this when currently there is no mechanism to identify, compare

and prioritize public health needs? The ozone and particulate matter proposals, in their present formats, are a prime example of this

defect of how we do public health in America.

I understand that a bill was introduced in the last Congress

which would have required the comparative ranking of health

risks. This would be helpful for prioritizing our public health needs.

I urge Congress to continue along this track. Stimulated by this

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latest raid on our scarce public health resources, ITACCS is establishing a new forum to facilitate public debate on the allocation of

public health resources.

The mission of the National Forum for Public Health Priorities

will be to provide policymakers with information necessary to

prioritize public health needs. Those who wish to commit the

public’s limited resources should be required to justify such proposed commitments against all other competing needs. And as a

major allocator of public health resources, Congress must ensure

that public health is not shortchanged by unproductive expenditures.

Thank you for your attention. I’d be happy to answer any questions you may have.

[The prepared statement of Dr. Grande follows:]

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Mr. MCINTOSH. Thank you very much, Dr. Grande. I appreciate

your testimony and look forward to a chance to talk with you more.

Our fourth witness on this panel is Mr. Fred Congress, who is

founder and president of Congress Enterprises. Mr. Congress,

thank you for coming to testify today.

STATEMENT OF FRED CONGRESS, PRESIDENT, CONGRESS

ENTERPRISES

Mr. CONGRESS. Thank you, Mr. Chairman, for allowing me to

come. Good morning, ladies and gentlemen. My name is Fred Congress, and I’m from Gary, IN. I’m the founder and owner of Congress Enterprises, Inc., a company I started back in 1953. Today,

Congress Enterprises is the sole source of employment for three

generations of my immediate family. My four children and three

grandchildren assist me in running this business.

We’re basically two-dimensional in terms of our business. We

supply home heating oil, diesel fuel, gas on a wholesale and retail

basis. Also, we have expertise on the structure demolition business.

In essence, we have a coming and going business tailored for Gary.

The fuel industry was created by a great need generated by the

thriving and bustling business climate of Gary back in the 1950’s

and 1960’s. The demolition business was created by the demise of

much of the great growth of Gary and the continuation of clearing

and renovating idle neighborhoods and industrial zones.

When the fuel business was thriving, Gary had over 32,000

workers in its steel mills, with the majority of the people that were

working in the mills living in the city limits of Gary. Today, the

mills only provide jobs for 7,000 workers. And only 1,600 of those

workers live in Gary. Gary once had a population of 200,000 people. By 1980, it dropped down to 157,000 people. And today we

have approximately 105,000 inhabitants.

In reflecting back on my fuel business, I point to 1973 as a

benchmark in reference to the peak of my business. It was here

that the great oil embargo went into effect and taxes, inflation and

stringent regulations on the environment raised costs and retail

price to the point of causing dramatic havoc on the steel, auto and

fuel industries. My fuel oil business today is only one-twentieth of

what it was in 1973.

The demand for steel lost out to foreign competition and shrinking American auto sales. Jobs went, as well as good citizens.

Schools became vacant. Neighborhoods began to decay with unemployment and welfare skyrocketing along with crime and despair.

I consider it a rare exception and a slight miracle that my family—

that means my children and grandchildren—have remained as one.

Many families cannot make that claim. Much of this, along with

the great blessings of God, is due to the fact that we are business

owners.

We, through entrepreneurship, have made our own future. However, it has not been easy and without challenges. Today, the challenges seem to be at their greatest. The Clean Air Act is effective,

even though it came with economic restraints. I feel that it was

necessary, as I reflect back on the days when the sun went down

in Gary at 2 p.m., due to the air pollution caused chiefly by the

steel mills. The air quality is much better. We all admit. The only

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regret is maybe more preparation and study could have achieved

the same results without the economic ruin.

The Clean Air Act partnered with the rising costs of business, opportunistic foreign competition, taxes after taxes, has put Gary and

its remaining inhabitants on the endangered list as a community.

Please don’t take me wrong. The Clean Air Act, along with other

environmental efforts, have made this country move in the right direction in regards to environment. There have been many new

businesses resulting from this. If only those who lost the plant jobs

could have gone directly into environmental jobs, then we wouldn’t

have all of the results we see today.

There were costs to be paid. And much of that was not equitable

to the common family. The EPA is now proposing a more stringent

ozone standard, and want to establish a new PM standard for particulate matter emissions, at or below 2.5 microns. Both of my businesses are conscious of environmental regulations. And we will be

directly affected. The fuel oil distribution, and even the demolition,

which involves heavy equipment, are sensitive to the applicable

laws.

My family is thankful for the capitalistic system that has allowed

us to work together for over 44 years. We have made it despite extreme challenges created by economic change caused by regulation

and policy that has not been business-friendly. Big business, little

business—it’s all the same, as the business world is one big circle.

What affects one segment will eventually have an effect on the

other.

If I were to die today, I would not have a clue as to if my family

would continue with the business as more and more regulations are

poured on them. This worries me extremely. For the sake of my

children, grandchildren and the beautiful babies and generations to

come, I plead for us to move on new regulations in a prudent manner. Again, in the past, perhaps we could have made the great

strides in environmental cleanup and air quality without as much

pain. Some very good people and families have been torn apart

right before my eyes.

Let us make the recent past the last unnecessary struggle to

make the world safe and great. The environment and economics

can work together. By doing so, we can create stronger regulations

and maintain a strong economy simultaneously.

Finally, we remaining Garyites still have hope for the future. Let

policy and regulation be friendly to us and the many other wonderful communities. We, the Congress family, have much fear about

the proposed regulations that will make the current Clean Air Act

a start of a longlasting struggle rather than a ‘‘bite the bullet’’ approach which has been successful and lasting in its goal. May the

casualties end at long last. Please, EPA, take it—meaning, policing

the environment—in a more prudent manner, and let us all win.

Thank you, sir.

Mr. MCINTOSH. Thank you very much, Mr. Congress. And welcome to a fellow Hoosier. Let me now introduce our final witness

on this panel, Dr. Alfred Munzer, who is the past president of the

American Lung Association. Welcome, and thank you for coming

today.

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STATEMENT OF ALFRED MUNZER, PAST PRESIDENT,

AMERICAN LUNG ASSOCIATION

Dr. MUNZER. Mr. Chairman, thank you for including me in this

early panel so I could tend to my patients this afternoon. I am Alfred Munzer, a physician specializing in diseases of the lung and

past president of the American Lung Association. I am also director

of Pulmonary and Critical Care Medicine at Washington Adventist

Hospital in Takoma Park, MD.

My testimony includes disclosure of funds received by the American Lung Association from the Federal Government as required.

I am delighted to be here today, specifically because I care deeply

about children like the ones Faith Kline talked about earlier. Because children in the inner cities will bear a disproportionate burden of the health effects of air pollution. The Clean Air Act represents an act of genius for limited government. It sets out a broad

vision of clean air for us, for generations to come. And it sets standards that we have arrived at through a broad national consensus.

The Environmental Protection Agency recently completed the

most comprehensive review of medical research on ozone and particulate matter. For both pollutants, the Agency correctly concluded

that the current standards are inadequate and must be tightened.

The American Lung Association agrees with this conclusion. We

strongly support EPA’s effort to set standards that will be more

protective of public health. Administrator Browner is to be commended for her leadership and efforts to tighten the ozone and particulate matter standards. EPA analyzed the peer-reviewed literature and appropriately determined that science supports

strengthening the current particulate matter standard by the addition of a fine particle standard: the so-called PM2.5 standard for

particles less than 2.5 microns in diameter. The American Lung

Association believes that science supports EPA’s proposal to set a

standard for fine particles. We believe, however, that the level

should be significantly tighter than those proposed by the EPA.

The American Lung Association’s report, ‘‘Gambling With Public

Health 2,’’ shows how many more Americans will be protected by

the American Lung Association-recommended fine particle standard. The ALA recommends that the EPA adopt a daily fine particle

standard of no more than 18 micrograms per cubic meter, rather

than EPA’s proposed level of 50 micrograms per cubic meter. ALA

also recommends that EPA adopt a yearly average fine particle

standard of 10 micrograms per cubic meter rather than EPA’s proposed level of 15.

Our report underscores the need for a more protective air quality

standard. Similarly, several studies published over the last 5 years

have linked ozone exposure at relatively low levels with an increase

in hospital admissions for respiratory causes, including asthma,

chronic obstructive lung disease, and pneumonia. As a result of our

review of these studies, the American Lung Association recommended a standard of 0.070 parts per million. And one exceedance per year is consistent with the bottom of the range included

in EPA’s ozone standard in the staff paper.

In our view, this level provides the most public health protection

with a margin of safety as required by the Clean Air Act. According

to an American Lung Association report, ‘‘Gambling With Public

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Health,’’ released in September 1996, an estimated 11.7 million

children, 7.7 million elderly, 2.8 million people with asthma and

3.2 million people with chronic obstructive lung disease live in

counties that would exceed the ALA’s proposed standard but would

be unprotected by the proposed EPA staff standard.

As a physician, I see the health effects of air pollution in my patients every day. Air pollution hurts the lung. For my patients with

serious lung disease, for children, whose lung defense mechanisms

are not yet fully developed, and for the elderly, whose lungs may

no longer be able to withstand the constant assault of poisonous

air, the law and science require EPA to move forward with new

standards.

Many ask about the health effects of air pollution. For some of

my patients, and for otherwise healthy adults as well, commonly

measured levels of ozone and particulate pollution cause coughing,

wheezing, and discomfort when breathing. For my patients with

asthma, chronic bronchitis and other lung diseases, particles can

cause more serious breathing difficulty. They may end up in my office, the emergency room, or be admitted to the hospital.

Finally, elevated particle levels are linked to premature death.

Fine particles are especially insidious, because the body cannot defend itself against these particles. They really behave like air.

Large airborne particles are prevented from being deeply inhaled

by the nose and upper airways. But fine particles are small enough

to avoid the body’s line of defense and are inhaled deeply into the

lungs. That’s where the most serious damage occurs. People with

cardiovascular disease or lung diseases like asthma are especially

vulnerable.

The health effects of air pollution is not an abstract concept for

my patients. It has a daily impact on their lives. Elevated air pollution levels can leave people struggling to breathe. Many may question the science and argue that tighter standards are unnecessary,

and argue that EPA’s estimates are wrong. The rhetoric is wrong

and foolish. The economists’ estimates are arbitrary. The suffering

that my patients experience due to unhealthy air is real.

Finally, I hope that the foes of the new standards, those who

argue that tighter standards are not worth the costs, will listen to

these vulnerable populations to understand what the real price of

air pollution is and the impact it has on people’s lives. Thank you.

[The prepared statement of Dr. Munzer follows:]

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Mr. MCINTOSH. Thank you very much, Dr. Munzer. We’ll now

proceed with questions to each panel in blocks of 5 minutes of time

per Member. And if we’ve got time—one of the witnesses on our

second panel is on a tight schedule. I’m going to try to get that second panel started as close to 11 as possible.

I’ve got a couple of questions that I’d like to ask. The first one

is for Ms. Kline. I understand that you attended one of EPA’s workshops on the PM ozone issue that was held in Philadelphia last

year. Could you describe it, the way in which the workshop was

conducted? And do you think it was a fair presentation of the subject matter at that workshop?

Ms. KLINE. It was a public meeting that was held in July 1996.

And at that meeting I was basically a spectator. And I became a

little upset by lunch time because I watched what I thought was

happening—what appeared to me was happening was that folks

were coming up to the front to make comment, and they were

being—we were being told that their attitudes and their testimony

represented public—the idea of what the public was thinking. It

represented the mind-set of the public.

And, in fact, they spoke only to one side of the question. And it

wasn’t an accurate—in my mind it was not an accurate example of

what the whole public, the broad spectrum, which is what EPA had

initially said they were looking for. It wasn’t. It did not represent

the broad spectrum of public comment.

Mr. MCINTOSH. Did you feel that it addressed the best possible

ways to benefit people who have asthma? And I guess, what do you

think we as a Congress should do to benefit people who do suffer

from asthma?

Ms. KLINE. I felt that there were—and, again, that’s why I mentioned the emotional responses. There were people that were being

wheeled up in wheelchairs, and people that were using medication

while they were speaking. And, to me, it appeared to be contrived.

And it felt upsetting to me. And I feel that Congress really needs

to, as Dr. Grande said, look at some other issues that are out there

that really impact.

For instance, my children. I’m not convinced that it’s ozone that

hurts my children. I’m real concerned about that wall that’s dripping plaster into my room everyday. You talk about stuff that we

breathe. This school. This is every day, all day long for some of my

children. And me, too. And I think that we need to look at some

other things besides just this. And I’m not convinced that the

science is there. I’m really not.

Mr. MCINTOSH. Thank you. And if I might introduce into the

record an article that was in the Washington Post yesterday, actually, titled ‘‘New Attack on Asthma: Doctors Now Recommend

Early Aggressive Treatment.’’ In the article it discusses how, coincidentally, we’ve seen an improvement in air quality because of the

Clean Air Act, we’ve seen at the same time an increase in asthma

suffering. They feel perhaps the greatest cause is not ambient

ozone or particulate matter, but causes in indoor air, dirty air, with

mites and other things.

Ms. KLINE. Right.

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Mr. MCINTOSH. I wanted to check with you, Dr. Munzer—do you

disagree with the basic premise of that article, that perhaps the

best thing we could do for asthma sufferers would be to find ways

to have cleaner indoor air?

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Dr. MUNZER. I haven’t read the article, there. I have it sitting

and waiting. Because I’m sure I’m going to get comments from my

patients about it, as invariably happens when there’s something in

the newspaper. But we have not said that air pollution, as such,

has caused asthma. There are many different causes for asthma.

And a lot more research is needed to find out exactly what those

causes are. One of the causes that we do know about, for example,

is maternal smoking. That has definitely been implicated as being

a causal factor in the development of asthma. But there is no question whatsoever that both indoor pollution and outdoor pollution

can aggravate and bring on attacks of asthma in people who have

the condition.

Mr. MCINTOSH. I want to get to Dr. Grande’s point in a second.

Just looking at the subset of the population that are asthma sufferers, couldn’t we do a lot more with $6 to $8 billion by spending

it on research to detail those causes and perhaps even paying for

the medicine that they need to alleviate the symptoms at this

point?

Dr. MUNZER. I think we need a lot more money invested in finding out what the causes of asthma are. And I think we need to do

both. We also need to tackle the problem of air pollution, which

doesn’t only affect people with asthma, but healthy populations.

And it also affects people with chronic obstructive lung disease.

And in many cases we found out—for example, especially in the

case of particulates—that the people who are most likely to die

from the effects of particulate pollution are people with heart disease.

Mr. MCINTOSH. And so there are other collateral causes in addition to the particulates? Is that what I understand you’re saying?

Dr. MUNZER. It appears that particulate pollution is maybe the

straw that breaks that camel’s back, when you have a person

whose system is compromised by heart disease.

Mr. MCINTOSH. Again, getting back to this question of how we, as a society, would spend $6 to $8 billion, I’m very skeptical that

the best use of those resources is one that provides very limited

benefit. I mean, EPA’s own estimate is less than 1 percent of the

population with asthma would benefit from it. Whereas you might

be able to directly benefit the entire population. Or, perhaps, as

you’re pointing out, benefit other people—people who suffer from

heart disease and other things by spending it on research in that

area.

Dr. MUNZER. But asthma is a very common disease. It affects

from 5 to 10 percent of the population. It’s also a disease that’s on

the increase. In the last 10 years, we’ve seen a 48 percent increase

in the incidence of asthma. So, yes, it is very important that we

find the underlying cause, that we try to find a cure for asthma.

But it is also very important that we help people who have asthma

today to breathe better.

Mr. MCINTOSH. Thank you. I’ll have some more questions. My

time is up. Mr. Sanders.

Mr. SANDERS. Thank you very much, Mr. Chairman. Let me

begin by directing some questions—Dr. Grande? Is that how you

pronounce your name?

Dr. GRANDE. Yes, sir.

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Mr. SANDERS. And maybe to Ms. Kline, as well. Because both of

you raised an interesting point. Ms. Kline described for us the horrendous working conditions—or educational circumstances that her

kids are forced to operate under—a school system clearly inadequate. And Dr. Grande appropriately pointed out that we are

underfunding many other areas of health care, which I certainly

agree with. He talked about trauma, cancer research, heart disease, and so forth and so on.

What I find a little bit incongruous, though—and let me start

with you, Dr. Grande—is while you’re here in a sense saying, ‘‘We

have limited resources. Why are we doing this rather than that?’’ And I’m wondering, would you give that testimony, perhaps—and

please—before the Armed Forces Committee, which is proposing to spend $1.5 billion each for 20 B–2 bombers that many people think

we don’t need. Would you give that same testimony in terms of

those committees dealing with corporate welfare, where we’re pro- viding $125 billion a year in tax breaks and subsidies to large corporations?

In other words, what you’re saying is we have limited priorities.

I agree. But I find it strange that you’re arguing against clean air

rather than against excessive military spending and tax breaks for

the wealthy. Would you want to comment on that?

Dr. GRANDE. Sure. I just want to clarify my position. I’m not arguing against clean air. I’m arguing against the decisionmaking

process where you’re allocating public funding to clean air without

doing a thorough review of competing priorities for those fundings.

Now, your question about the B–2 bombers—if it was placed in the

same context, my answer would be yes. I would give the same testimony.

Mr. SANDERS. OK.

Dr. GRANDE. I think it would be fairly naive of me to assume

that we’re playing some type of zero sum game here, that money

that doesn’t go to clean air now is going to go to trauma. I don’t

think that that’s true. And I’m not here talking about trauma or

about clean air. I’m talking about public health priorities. And I

haven’t seen anything nor am I convinced that there’s any correct

thinking in that regard yet.

Mr. SANDERS. I’m just suggesting that in a certain way we are

talking about zero sum. We have a budget, and we make decisions.

And the Congress will vote to spend $100 billion a year defending

Europe and Asia against a non-existent enemy or we will put the

money into trauma care, research for cancer, research for heart disease. Those are decisions that we make. And I just find it interesting that what you’re saying is, you’re deciding priorities between

cleaning up our air and trauma. And I would suggest that we

should broaden that debate over our national priorities.

Let me ask Dr. Munzer a question, if I might. Dr. Munzer, how

widespread of a problem is asthma in the United States today? And

does ozone trigger asthma attacks? Is there any scientific dispute

over whether ozone triggers asthma attacks?

Dr. MUNZER. Asthma affects about 5 to 10 percent of the U.S.

population. And over the last 10 years, there has been an approximately 48 percent increase in incidence of asthma. There is no

question but that ozone pollution does trigger asthma attacks.

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Mr. SANDERS. OK. Some have argued that revising the ozone

standard is not that important from a public health perspective because of the relatively small amount of hospital admissions attributable to asthma. Is the number of hospital admissions the best indicator for the magnitude of the public health threat that ozone

presents?

Dr. MUNZER. Emergency room admissions really only represent

the tip of the iceberg when it comes to the cost of asthma. Most

patients who develop acute asthma attacks do not end up in emergency rooms. But that is the most measurable thing we have available. And that’s why we cited the study about emergency room visits. But we should understand that that really only represents the

tip of the iceberg when we’re talking about the health effects of

ozone on people with asthma.

Mr. SANDERS. OK. I will pass at this point.

Mr. MCINTOSH. Thank you, Mr. Sanders. Mr. Waxman.

Mr. WAXMAN. Thank you very much, Mr. Chairman. Dr. Munzer,

you just made a very clear and unequivocal statement, and I want

to underscore it. You’re the only scientist on this panel that deals

with asthma and lung problems, and you’re the only physician that

deals with patients with those kinds of problems. Are you saying

unequivocally that ozone and particulates in the air cause an increased problem with those who have asthma?

Dr. MUNZER. Ozone is a very powerful irritant to the respiratory

tract. We’ve known that. And ozone causes, as part of its response,

a narrowing or spasm of the air passages, inflammation of the air

passages, which translates into the very basic mechanisms of asthma. So, yes. There is no question whatsoever that ozone causes

asthma attacks and that it also interferes with the lungs’ defense

mechanisms against other affecting agents such as bacteria and viruses, because it interferes with the function of the alveolar macrophage, the scavenger cells that keep our lungs clear.

Mr. WAXMAN. Mr. Chairman, the time should be started from the

beginning. Now, does particulate air pollution trigger asthma attacks?

Dr. MUNZER. Particulate air pollution has many of the same effects that ozone does. There are only so many ways in which the

lung can react. When the lung is injured it reacts by developing

spasm and inflammation of the air passages. And that’s what we

mean by asthma. And there are many offending agents that can

cause that.

Mr. WAXMAN. Are these asthma attacks triggered by ozone and

particulate air pollution at levels below the current standards?

Dr. MUNZER. The medical literature now is unequivocal about

the fact that the current standards are no longer protective for people with asthma, and that, indeed, asthma attacks occur at levels

below the current standard.

Mr. WAXMAN. I was surprised by Ms. Kline’s statement. She said

that she’s not convinced that ozone is hurting her child with asthma. She’s more concerned about plaster in the building. Yet Dr.

Munzer told us that the scientific literature is clear on this subject.

Do you still doubt the science of it?

Ms. KLINE. What I meant was that I don’t have a question about

whether or not ozone is bad for your lungs. My question is whether

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it’s worse than some of the other triggers and some of the other

problems that my children have. It’s not that ozone is a good thing.

It’s that ozone is not as important, perhaps, as some of the—and

I’m not even saying that I know that. I’m just saying——

Mr. WAXMAN. Yes. You don’t doubt, then, that ozone and particulate pollution can trigger asthma attacks?

Ms. KLINE. I believe that it can.

Mr. WAXMAN. OK. Now, does anybody on the panel disagree with

that?

Dr. GRANDE. Well, I just wanted to respond to one of your comments. I——

Mr. WAXMAN. No. I’m asking you the question. Do you disagree

with the statement that air pollution can trigger asthma attacks?

Dr. GRANDE. I believe that air pollution can trigger asthma attacks. I also agree that the data that I’ve reviewed—and spoken to

other experts—that addressing different components of that argument are equivocal.

Mr. WAXMAN. Yes. Dr. Munzer, do you have any comment on the

science of this?

Dr. MUNZER. I think the science has been reviewed by both the

Environmental Protection Agency, its panel of outside scientists, it

has been reviewed by scientists in the American Thoracic Society,

the medical section of the American Lung Association. And I believe that there is a very broad consensus on this issue, as broad

a consensus as you will find among scientists, that air pollution,

ozone, fine particulates do trigger asthma attacks.

Mr. WAXMAN. There’s a statement from the American Lung Association of a study that said emergency room visits for asthma occurred 28 percent more frequently when ozone parts were about 60

parts per billion, a level about one-half the current standard. When

they were below 60 parts per billion, the researchers concluded

that ozone adversely affects asthmatics well below the current U.S.

standard.

What does it mean if a kid has an asthma attack? I don’t have

asthma. I don’t have a child that has asthma. But I do know people

who have had it. It means that they can’t catch their breath. If

we’re talking about increased emergency room visits, those are the

ones who show up at the emergency rooms. I know kids who have

asthma attacks that never show up at emergency.

Dr. MUNZER. Asthma is really a form of suffocation. It’s like

breathing through a very fine straw. It’s extremely painful. It’s not

something to be minimized as a health effect. It’s a very serious,

very painful condition. It can come on very quickly. And it can, unfortunately, at times, be fatal. And, in fact, the death rate from

asthma has also gone up very markedly in the last 10 years.

Mr. WAXMAN. Dr. Munzer, the problem of asthma attacks triggered by air pollution, are they common or uncommon?

Dr. MUNZER. Asthma is a very common condition. And, unfortunately, air pollution is still a very common problem in many areas

of the country. And so I believe that air pollution is really a major

factor in precipitating asthma attacks.

Mr. WAXMAN. We’re talking about asthma, but air pollution also

affects people with heart disease and other ailments, as well.

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Dr. MUNZER. Air pollution certainly has an effect on people with

chronic bronchitis and emphysema. It has an effect on children,

whose lungs are not yet fully developed and who really need their

defenses against bacteria and viruses, and can’t have them interfered with. And that’s why they develop deep chest infections when

they’re exposed to air pollution. And the same thing is true for the

elderly. Their defense mechanisms are on the wane. And they, also,

are particularly vulnerable to the effects of air pollution.

Mr. WAXMAN. Now, Ms. Kline talked about her experience with

her child. Would a parent know if a child’s asthma attack is being

triggered by ozone levels that are maybe too high?

Dr. MUNZER. I think that would be very difficult for an individual parent to know. I think that’s precisely where Government

comes in. We, as individuals, cannot measure levels of ozone in the

atmosphere. But, certainly—— Mr. WAXMAN. Let me interrupt you, because I see the yellow

light. And before my time is over—the chairman suggested maybe

we ought to take money and spend it on research on asthma and

not on air pollution control. Maybe we ought to spend it on medications for people with asthma and not air pollution control. But that

doesn’t make any sense to me if we already know that air pollution

is such an enormous problem that we have to go buy medicines to

treat people. If we can avoid the problem and prevent some of

these asthma attacks by reducing air pollution that we breathe and

have such a devastating impact on people with asthma. What’s

your comment about that?

Dr. MUNZER. Well, it’s been suggested that people with asthma

who are exposed to pollution could just take more medication. But

these medications do have very serious side effects. There have

been several articles in the last few years of mortality attributable

to the excessive use of bronchodilators. So there is a real price to

pay. And, certainly, prevention remains the best medicine.

Mr. MCINTOSH. Thank you, doctor. I have some additional questions on that. We’re going to flip back and forth. Let me ask Dr.

Munzer a question. What I was, in fact, indicating was there’s an

evidence put forward in the Washington Post article and other

places that the greater cause of asthma does not come from ambient air pollution but other causes. Ms. Kline mentioned natural

causes—camp, also causes in the home, dust and mites—and if we

were going to allocate $8 billion of social resources to benefit the

total universe of asthma sufferers, which I understand the American Lung Association indicates is about 13 million.

The lower range of that 5 to 10 percent you mentioned, that you

could benefit all of those people by providing some assistance to

them in either determining ways they could be cured from asthma

or providing the medicines they need to treat asthma that is not

caused by air pollution, and that, rather than picking out—I guess

the EPA’s number 15,000 individuals, which is less then 1 percent

of that entire universe—then why wouldn’t we want to benefit a

greater number of people, perhaps, and imposing significantly less

trauma to society as Mr. Congress was mentioning?

Dr. MUNZER. The American Lung Association, certainly, for a

long time, has favored more research dollars for asthma. I think we

do need to know the causes for asthma. And we have to invest

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more in asthma as a disease. We have also very strongly supported

access of health care to people so that they can treat their asthma

properly. Asthma medications are extremely expensive. One of

those little metered dose inhalers costs about $60. And some patients take three or four of them.

Mr. MCINTOSH. Three or four inhalers over what timeframe?

Dr. MUNZER. Over a month. Three or four at a time. And they

last about a month.

Mr. MCINTOSH. Yes.

Dr. MUNZER. So, we have an immediate cost that is extremely

high. Plus some of these medications now turn out to have longterm side effects. There is no question, therefore, that in addition

to treating asthma, in addition to doing research in asthma, we

also need to try to prevent individual asthma attacks. And one very

important strategy in that battle is to control air pollution. Air pollution is a major factor, not just in a very small number of people

with asthma, but in many people with asthma.

Mr. MCINTOSH. Now, one of the things that I’ve heard from other

farmers—and Mr. Wade, you might want to address this—is that

it would be virtually impossible for most agricultural sectors in the

United States to comply with the proposed EPA standard and still

be able to till the ground. You mentioned problems that you face

in your particular sector of disposing of waste, storage of fertilizer

and other chemicals. Do you have any estimates of the magnitude

in the agriculture sector of that proposed change?

Mr. WADE. Well, to begin with, the PM2.5 problem isn’t a measured problem, at least in agriculture. It’s a problem that’s calculated based on PM10 measurements. And it’s extrapolated from that data. So the $24 million study that I alluded to in my comments that’s being conducted at Crocker Nuclear Lab at UC Davis

is looking at not only PM10, but PM2.5. And what we’re finding is

it’s a much smaller issue for agriculture. It’s more of an urban

issue. But it’s one that’s going to be pervasive and one that is nationwide. So I believe that everybody will be affected by it. But we

are unsure of the extent of it at this point.

Mr. MCINTOSH. Now, one hypothetical solution to making sure

that there wouldn’t be these PM2.5 particles in the air would be

to eliminate agriculture production, because then you wouldn’t

have that result from the disking in the spring or in the fall during

dry periods. Would that be worth the tradeoff?

Mr. WADE. Well, it depends on what consumers want to pay for

a food supply and what they want in terms of food safety, whether

or not we want an agriculture industry in the United States.

Mr. MCINTOSH. And could you explain why EPA’s proposal without finishing the study on PM2.5 would cause problems legally?

Mr. WADE. At one time the best science we had said that the

earth was flat. And what we’re trying to do is determine best what

the sources of PM10 and PM2.5 are. And until that data is available, it’s going to be impossible to develop a control measure or a

solution that’s going to be equitable for the public and equitable for

business in the country. When I’m making decisions on my farm,

when I need to determine whether or not I have an insect pest that

we have to take care of, we don’t go out and arbitrarily spray because there might be a problem.

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We check it out. We put pheromone traps out to determine what

the problem is. And we solve that particular problem. We’re not

doing that in this case. We’ve got a supposition that there might

be a problem. And we’ve got a blanket solution without determining whether or not it’s going to be helpful.

Mr. MCINTOSH. Thank you, Mr. Wade. Mr. Kucinich, do you have

any questions for the panel?

Mr. KUCINICH. Yes. I do. Thank you very much.

Mr. WAXMAN. Would the gentleman just yield for a unanimous

consent request?

Mr. KUCINICH. Yes.

Mr. WAXMAN. I want to put in the record an excerpt from

CASAC’s closure letters on the fine particulate matter standard.

And it says, ‘‘With the incorporation of our suggested changes the

revised criteria document will be very comprehensive and will provide an adequate scientific basis for regulatory decisions on particulate matter based on available information. There was also consensus that a new PM2.5 NAAQS be established with 19 panel

members endorsing the concept of a 24-hour and/or an annual

PM2.5 NAAQS.’’ Thank you.

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Mr. KUCINICH. Thank you very much, Mr. Chairman and members of the panel. I have a question for—is it Mrs. Kline? Ms.

Kline.

Ms. KLINE. Yes.

Mr. KUCINICH. OK. Mrs. Kline, first of all I want to say that

you’re to be commended for working with the children in the fourth

grade. I think teaching is very important, particularly in the inner

city. As someone who grew up in the inner city, I know how influential teachers can be. And, also, as someone who grew up in the

inner city, and with all of the economic problems that come from

growing up in a big family in the inner city, I was surprised to see

from your testimony that your students, even though the poverty

rate is 86 percent, have fireplaces and lawns. Because in my neighborhood, we didn’t have fireplaces and we didn’t have lawns. And

some of us didn’t even have cars. And I wonder how those choices

were brought before the children. Because in some poor neighborhoods they don’t have those kinds of choices.

Ms. KLINE. That’s right. And in my neighborhood, 86 percent is

good. There are neighborhoods in Philadelphia that are 99 percent

poverty level. My neighborhood is a neighborhood that used to be,

in its day, a rather well-to-do neighborhood, so that some of the

homes in the neighborhood are quite lovely. But the value of them

is not there any more. Some of them have three stories. Some of

them have five bedrooms. But the value of the home is not there.

Now, currently, we’re in the midst of a unit on ecology. So, my students have studied a lot about different biosystems of the world.

And they know something about pollution. And they know something about how to solve problems.

Mr. KUCINICH. Do your children ever complain about pollution?

Ms. KLINE. No. They really don’t. Because this is their life. So

they don’t really know that there’s anything to—— Mr. KUCINICH. Did you ever discuss with them the differences

that can occur in some places where children live in environments

which are polluted?

Ms. KLINE. Yes. Well, we’ve discussed things like the deforestation of the rain forest. And we’ve discussed some different—and

they’ve taken trips out of the city. And they see what other children have in their schools. And when I asked last year for the children to bring in just trash that they find in the neighborhood—because we were going to make a sculpture out of it—I had wine bottles brought in and beer cans brought in. And, so, that’s the neighborhood.

Mr. KUCINICH. OK. I have a question for Dr. Grande. You’re the

executive director of this ITACCS. Is that a full-time position, doctor?

Dr. GRANDE. No. It’s not. It’s a volunteer position.

Mr. KUCINICH. How often do you meet? How often does your association meet?

Dr. GRANDE. Well, around the world—we’re an international association—I would say at least on average one to two times per

month somewhere in the world.

Mr. KUCINICH. But, I mean, how often have you met in the

United States? When is the last time you had a meeting in the

United States?

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Dr. GRANDE. About 2 weeks ago. And we have one about 4 weeks

from now in Baltimore.

Mr. KUCINICH. And when you meet with this voluntary position

that you have, did you have kind of a roundtable discussion among

all your peers? Is your testimony representing—is it the product of

discussions among all your peers?

Dr. GRANDE. Well, the way the society works is we have over

1,000 members. It’s governed by a board of directors, which is duly

elected. I was elected as executive director. Decisions are taken at

board level. We’re advised by committees or subcommittees, much

like you are. And the consensus on this issue is one that has been

developed, I think, over the last 9 months or so.

Mr. KUCINICH. And when you say the consensus was developed,

who was involved? You have 1,000 members. How many people

made the decision about your testimony?

Dr. GRANDE. The board of directors and our advisors that we

have deemed appropriate in terms of media advice, political advice,

much, I suppose, like the American Lung Association.

Mr. KUCINICH. So, what’s the address of your organization?

Dr. GRANDE. The address is P.O. Box 4826, Baltimore, MD

21210.

Mr. KUCINICH. OK. And can you tell me if the job that you

have—do you see air pollution as a traumatic injury at any time?

Dr. GRANDE. It can be described that way. Yes.

Mr. KUCINICH. And if it is described as a traumatic injury, would

you say that a reduction in air pollution could reduce traumatic injuries?

Dr. GRANDE. I wouldn’t make that statement.

Mr. KUCINICH. Could a reduction in air pollution reduce traumatic injuries to the lungs, the incidents?

Dr. GRANDE. Well, I think the evidence that Dr. Munzer brought

out is that we know that air pollution is a risk factor for not only

developing the acute exacerbation of asthma. How important it

ranks as another issue, we don’t know. I think he stated that.

Mr. KUCINICH. So, do you support his testimony, then, with respect to the problems associated with air pollution and the impact

on the lungs? Do you agree with his—— Dr. GRANDE. Not completely. No.

Mr. KUCINICH. What do you disagree with?

Dr. GRANDE. Well, I’ve discussed this issue, as I’ve had to in my

role, to try to consolidate the testimony which was presented here

today. And I’ve spoken with experts in allergy and immunology

who are investigating specifically the issue of particulate matter

particularly with a view toward the differences as the chairperson

brought out between external and internal PM. And the thinking

now that I’ve heard is that ozone is not an issue, and that particulate matter, nobody really knows where it is, and that if it’s anywhere, it’s probably particulate matter is an issue within the interior rather than the external area. And these proposed regulations,

I understand, do not impact that differential.

Mr. KUCINICH. But as far as you’re concerned, if it does get that

bad, the victims, if you could call it that, could use an inhaler one

extra time on the worst day and that would help them? Is that

right?

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Dr. GRANDE. Well, no. I disagree. And I want to come back to

what some——

Mr. KUCINICH. That’s in your testimony.

Dr. GRANDE. What?

Mr. KUCINICH. Your testimony is, ‘‘According to the study authors, this increase in asthma exacerbation equates to one extra

use of an inhaler among one in seven severe asthmatics on the

worst pollution day. An important health problem? Possibly. But

before we commit our scarce resources, wouldn’t it be useful to

know exactly where this health effect ranks among other public

health priorities.’’

You’re citing something. Do you believe this or don’t you?

Dr. GRANDE. I believe that that’s what those authors said in

their statement. And I used it as an example to bring up the

equivocalness of this entire discussion.

Mr. KUCINICH. And would you prescribe an extra inhalation of a

bronchodilator as a way of solving air pollution as opposed to lower

particulate levels and lower ozone levels?

Dr. GRANDE. Well, I think that Dr. Munzer addressed that. I

think that patients that have inhalers know—ought to know it’s a

logical thing. If you have asthma and you’re having difficulty

breathing, and you have a methodose inhaler handy, use it. That’s

not a big issue. I take care of trauma patients. And as opposed to

the distinction made previously, I take care of acute emergency

asthma patients seen in the emergency department and in the critical care department.

If I have two patients coming through the door—an acute asthma

patient, pediatric, and an acute pediatric trauma patient—I can

say almost 100 percent I can reverse that asthmatic situation. I

can’t say that in the case of the trauma case, even though the resources exist which would allow me to do that if I had it.

Mr. KUCINICH. One final question. If you were convinced that improved standards for PM as well as for ozone could reduce the

number of emergency room visits by children and others with

chronic obstructive pulmonary disease or asthma, would you then

support those standards?

Dr. GRANDE. No. I think that they have to be presented within

the context of other priorities, and there has to be some rational

decisionmaking by those who are elected to make those decisions

in terms of how those moneys should be spent.

Mr. MCINTOSH. Thank you very much. I will not ask any more

questions now, but ask the panel if perhaps we could send you

some in writing and you could provide additional answers to those,

so that we could move on to the next panel. Mr. Sanders, a couple

more very brief questions.

Mr. SANDERS. Yes. I didn’t want Mr. Wade to feel left out and

ignored here. So I have a question for you. Mr. Wade, it is my understanding that it is a coal-burning plant in Ohio that emits more

NOx—that’s nitrogen oxide, a precursor to ozone—than all of the

utility plants in New Jersey and five times the annual emission of

the District of Columbia. And those NOx ride on westerly winds to

the Northeast, where folks in New York and Vermont and Massachusetts breathe that stuff.

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Now, do you think it is fair to the families in New England or

New York who have to spend money on medical bills or have to

take care of sick kids, that the Federal Government not deal with

that and that that coal plant continue to pollute?

Mr. WADE. I have to refer to comments by Secretary Browner in

her testimony when she used words like ‘‘may’’ and ‘‘might’’ that

cause a problem from PM10 and ozone pollutants. Until we know

that they do and they will, I don’t think we can effectively say that

this regulation is going to be helpful.

Mr. SANDERS. So you think that, at this particular point, we

should ignore that problem?

Mr. WADE. No. I don’t believe we should ignore it at all. I think

we should study it, and I think we should know what to do before

we act.

Mr. SANDERS. I see. OK. Thank you.

Mr. MCINTOSH. Thank you very much. Let me say thank you to

all the members of the panel. I believe greatly on input from citizens of different backgrounds and experiences. Your contribution

today has been very good. I think the admonition to use caution before we act, and make sure we know the problem we’re addressing,

and using our resources in the best possible manner, is a very good

one. I will take that to my colleagues in Congress. Thank you all

for participating today. We will be sending some additional questions.

Let me now call forward our second panel, which are several officials of government outside of the Federal Government. One of the

goals that we’ve had in Congress—at least as long as I’ve been

here—is to make sure that we are mindful of elective officials and

their duties in the State and local governments. I appreciate each

of you coming here today from various regions of the country as

well as representing different levels of Government and different

parties in the political system, to participate in this hearing and

to give us your input.

As I mentioned for the first panel, it is the policy of the full committee to ask all of the witnesses before our subcommittee to be

sworn in, in order to make sure their testimony is under oath. And,

so, with all due respect, I would ask each of you if you could please

rise and join in taking that oath.

[Witnesses sworn.]

Mr. MCINTOSH. Thank you very much. Let the record show that

each of the witnesses answered in the affirmative. Our first witness today is a leader from the Midwest, somebody that I’ve been

honored to work with when I was at the Council on Regulatory

Issues, the Hon. George Voinovich, Governor of Ohio. Thank you

very much. I understand fully how busy your schedule is. I appreciate your willingness to come and share with us your views on

these proposed standards. Governor Voinovich.

STATEMENT OF GEORGE VOINOVICH, GOVERNOR OF OHIO

Governor VOINOVICH. Thank you, Mr. Chairman, Congressman

Sanders and members of the subcommittee. Thank you for the opportunity to provide comment on the Environmental Protection

Agency’s proposed changes in the national ambient air quality

standards for ozone and particulate matter. I’m here today as the

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former mayor of the city of Cleveland and Governor of Ohio. I care

deeply about our environment. I was the lead sponsor of the legislation that created the Ohio Environmental Protection Agency back

when I served in the legislature, and fought to end the drilling for

gas and oil in Lake Erie.

And I strongly support Federal, State and local programs to protect the environment and the health of our citizens. And I’m very

proud. Over the last 20 years Ohio has made significant strides in

cleaning our air. Ozone has dropped by 25 percent overall, and by

as much as 50 percent in our urban areas Columbus, Youngstown,

Canton, Cleveland, Akron, Toledo and Dayton have been brought

into attainment. Cincinnati is the only area in the State not in attainment. And we’re just that close to attainment.

However, the proposed standards threaten to undo all the hard

work and sacrifice made by our constituents to bring their communities into attainment. Right now, only 4 of our 88 counties are not

in attainment for ozone. And two for particulate matter. If these

new rules go into effect, over half of Ohio counties will be in nonattainment.

I oppose these proposed standards for several reasons. First, according to the EPA’s own estimates, the cost for implementing the

proposed standard for ozone exceeds the benefits. EPA acknowledges that benefits from tightening the ozone standard may be as

low as zero. And the President’s own Council of Economic Advisors

predicted that the benefits would be small while the cost of reaching full attainment could total $60 billion.

Second, the costs of the proposed standard have been vastly underestimated. Although EPA estimates the annual compliance cost

for the ozone standard would be $600 million nationwide, we

project the annual capital expenditures for Ohio utilities alone will

exceed $730 million. These costs are estimated to boost utility rates

more than 17 percent in some areas, with an average increase of

about 7 percent.

Third, the projected benefits of the proposed ozone standard appear minimal. My own health director reports that Ohio doctors

will see no perceptible decrease in hospital visits as a result of

these proposals. And as the subcommittee is no doubt aware, EPA

recently has backed off even their own modest benefit projections.

EPA now admits that the current standards are providing greater

health protection than originally thought. I respectfully urge the

subcommittee to request that EPA provide an updated analysis

taking into account new cost and benefit data.

Fourth, with regard to particulate matter, there is no reliable

monitoring data and no established monitoring methodology. As a

result, EPA can only guess which areas will be non-attainment

under the new standards. So, Federal estimates of compliance costs

are highly questionable.

And finally, scientists do not fully understand the links between

particulate matter and health effects. More information is simply

necessary. And I think that the President agrees with that. Because, as you know, in his budget he has asked for a 37-percent

increase for research into the potential links between PM exposures and health effects. And I think in that budget message, in

the presentation, it said, ‘‘To reduce the great uncertainty about

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PM’s health effects, EPA will continue its effort to identify the

mechanisms by which particles affect human health.’’

This is clearly a case of putting the cart before the horse. I find

it hard to believe that anyone in public service has the luxury of

throwing billions of dollars at a problem without knowing if it is

hitting the right target. Yet that is exactly what EPA is proposing

to do. I say, show me the science. Without a significant public

health benefit, one must ask, why are we going to impose these jobkilling rules. Small businesses and manufacturing jobs in Ohio and

across the Nation will be devastated.

America’s competitiveness in the global marketplace undoubtedly

will suffer from this unnecessary burden as our trading partners

benefit from our lack of judgment. A Ford motor facility in Ohio

had the following real world example of the impact the proposed

standards for particulates will have. And I think, Congressman

Kucinich, that this facility is in your district.

The Cleveland Casting Plant currently controls more than 95

percent of the particulate sources. Controls on the remaining stacks

would produce very little if any additional reduction. Therefore,

should additional reductions be required, there may be no choice

but to curtail production from current levels.

Another company in northeast Ohio wants desperately to expand,

not just to meet the exploding demand that they have for their

product, but also to take care of their current customers. They employ 61 employees at the moment. At the present time they do not

know whether they ought to go forward and expand the way they’d

like to.

In other words, these proposals are creating a catch–22 for this

company. If they do not expand, they risk losing customers and

market share. However, if they do expand and new standards are

implemented, they risk being out of compliance. EPA’s proposals,

literally—I think this is important today—are checkmaking job creation in this country. As a former mayor, I’m concerned also about

the impact of these proposals on these vulnerable communities.

And you’ll be hearing from Representative Schoenberg, who I’m

sure will speak eloquently to the impact that it’s going to have on

the city of Chicago.

I would also like to say that I worked with this committee several years ago in terms of dealing with unfunded Federal mandates. Certainly, these proposed rules are a very, very large unfunded mandate. And, also, in my opinion, the way the EPA contemplates adopting the rules violates SBREFA, which is another

thing that Congress has done to try and get some sense in some

of these initiatives in the environmental area.

I’d like to conclude and point out that almost every major newspaper in Ohio has editorialized against these proposals. And ordinarily, our newspapers in the State are great advocates for a clean

and healthy environment. Our largest newspaper, the Cleveland

Plain Dealer, said it best. ‘‘To oppose the EPA’s new rules is not,

as some supporters suggest, to favor air pollution, asthma attacks,

or premature death. To oppose these rules is to favor solutions to

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identifiable problems, expenditures that produce the predicted results, science that stands up to scrutiny, and rulemakers who respect the difference and laws that expect them to do that.’’

Thank you for this opportunity to appear before your committee.

[The prepared statement of Governor Voinovich follows:]

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Mr. MCINTOSH. Thank you very much, Governor. I look forward

to talking with you more on this. A great quote from your newspaper in Cleveland. Our next witness has traveled to us from— she’s the mayor of San Diego, and traveled here from the West

Coast to be with us. I truly appreciate that. Let me now introduce

Mayor Susan Golding.

STATEMENT OF SUSAN GOLDING, MAYOR OF SAN DIEGO, CA

Ms. GOLDING. Thank you, sir. Mr. Chairman and members of the

committee, I appreciate the opportunity to appear before you today

and speak about the EPA’s proposed standards for ozone and fine

particulate matter. As the mayor of one of the largest cities in the

country, I’m very much aware and take very seriously the responsibility of protecting the public health. And I strongly believe we

have made tremendous progress in cleaning our air, and that we

should continue our efforts to make the air cleaner.

I’m aware of my responsibility in that regard, just as I believe

the EPA honestly believes they will improve the health of every

San Diegan, if the air standards on these two issues are made

more stringent. All cities should have cleaner air. However, simply

ordering us to clean our air to meet unproven standards without

clear implementation plans is not in the best interest of my city,

my citizens or any city in this country.

As a basis for my comments, let me give you a little background

on my region. We’re the sixth largest city in the country, with a

population of 1.2 million residents. Our county has approximately

2.2 million residents. Our air quality is monitored and regulated by

our local air pollution control board. Unlike most States, California

places the responsibility for achieving attainment standards in the

hands of individual counties, who then design programs to fit those

unique needs.

There is flexibility in doing this, and we find it’s far more effective in actually accomplishing goals. Let me assure you we are

committed to cleaner air for all our citizens. Our air pollution control board, on which I served as chair, and served for at least 8

years, has been a leader in pursuing programs which have steadily

improved our air quality over the last 10 years. As you know, California is known as an environmentally sensitive State, and we have

very strict standards ourselves.

In San Diego, the number of days we exceeded the Federal air

quality standards dropped from 39 in 1990 to only 2 in 1996. And

I should note for the record that those 2 days were directly attributable to wind conditions we call ‘‘Santa Anas’’ which transport air

from Los Angeles to San Diego. We already have rigorous control

programs in place and they are, in fact, working. We have a compliance division comprising 30 staff members—this is for this region only—who actively followup on citizens’ complaints, and who

perform regular site visitations. These efforts have produced very

measurable, significant and favorable results.

Yet as good as we have become, our air pollution control board

estimates that if the EPA’s new proposed standards become law,

our county could be out of compliance for ozone more than 40 times

the first year, and that we might never reach full attainment. Because of the stricter standards we already have in California, and

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the types of programs we have implemented to meet those standards, I remain skeptical when the EPA says that by simply further

regulating our already highly regulated stationary industries, we

can, in fact, attain these new levels, unless, of course, we attain

them by putting them out of business.

It just isn’t always so. According to the San Diego Air Pollution

Control District’s annual report, ozone producing emissions from

businesses account for less than 15 percent of our region’s air quality problems. San Diego’s aggressive 20 year air quality program

has already reduced emissions from stationary sources through the

application of strict emission controls. The emission reduction well

is pretty dry. Any further minimal reductions from stationary

sources can only come from drilling the well deeper into smaller

businesses or industries with small emissions, such as biotech, electronics or agriculture.

I think it is prudent then to ask, what is the cost? The question

we would have to ask ourselves as elected officials is, how do we

make up this difference? If we’re down to 15 percent on traditional

sources, where do we turn for further reductions, and what do

those further reductions cost, and what is the net benefit or effect?

What other priorities would have to be compromised? Would we

have to stop sweeping our streets for fear of raising airborne dust?

Would we have to take actions against our citizens as were contemplated in the district north of us—outlawing fireplaces and barbecues as has been suggested in some areas? Would there be a loss

of jobs because of costlier equipment mandates which could result

in lost health care benefits and financial stability for our citizens.

Now, those certainly would be the extremes, but I have to tell you

that I agree with much of the Governor’s comments. It is only rational to pursue scientific standards. But we need to know what

the benefits of these new standards are and the levels of protection

these new standards would bring.

We don’t really know at this point, and that’s what makes me

skeptical. One analysis in the Wall Street Journal said these proposals could cost more than $10 billion annually. And the Council

of Economic Advisors estimates that the true cost of full attainment could be upwards of $60 billion. I realize that the EPA has

stated that air quality standards are supposed to be based solely

on their effect on the public’s health and welfare and costs are not

supposed to be considered in setting them.

That simply isn’t realistic. Costs are considered in everything we

do. I do think shouldn’t the EPA have to show that a true benefit

will occur? That, to me, is only logical. Major changes should not

be recommended without considering the costs, because then you

are not considering one, whether they can be attained, and two,

whether they can be enforced.

The EPA analysis has failed to clearly demonstrate any quantifiable health benefit associated with the proposed ozone revisions.

And the creation of a new PM2.5 particulate matter standard is

being challenged by a number of segments of the scientific community as well as—at least at the level it is—as well as the EPA’s own

scientific advisory committee and other agencies in the Clinton administration for using questionable tools during the research. And

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those have already been indicated through other testimony here

today.

This debate, by the way, reminded me of a situation that we

have in San Diego. Mr. Chairman, if you’ll allow me very briefly

to tell you that the Clean Water Act, which I also was a supporter

of, required San Diego to go to secondary sewage clean up. It would

have cost us $5 to $10 billion to do that. And cost was not a consideration. A single set of standards was adopted without taking any

of the local differences into consideration. After being ordered to

comply, sued, agreeing to a consent decree, refused permission to

even apply for a waiver, and then having it granted, we eventually

emerged victorious after numerous years and cost to the public.

And the reason was science was on our side.

So all I’m asking is that when the EPA does this, it bases the

new standards and the levels of those standards on real science,

not on a guess.

Thank you, sir.

[The prepared statement of Ms. Golding follows:]

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Mr. MCINTOSH. Thank you very much. And your record of environmental accomplishment is very impressive, I know, in San

Diego. I appreciate your comments. Our third witness in this panel

is a member of the Illinois House of Representatives. I noticed he

is also chairman of the General Services and Equivalent Government Oversight Committee for that legislative body.

Mr. SCHOENBERG. Yes, sir.

Mr. MCINTOSH. Welcome. I appreciate you coming and sharing

your testimony—Representative Jeffrey Schoenberg from Illinois.

STATEMENT OF JEFFREY SCHOENBERG, ILLINOIS STATE

REPRESENTATIVE

Mr. SCHOENBERG. Thank you, Mr. Chairman and members of the

subcommittee, for this opportunity to appear before you today to

discuss the changes in the proposed ozone standards.

My name is Jeffrey Schoenberg and I am a State representative

from the 59th District in Illinois. As the chairman indicated, I am

currently chairman of the Illinois House Appropriations Committee

for General Services and Government Oversight. I’m the vice chairman of the Human Services Committee. I sit on the Financial Institutions Committee. And I’m also a member of the Illinois Economic and Fiscal Commission, which is the State’s bipartisan revenue forecasting agency.

My district is in the metropolitan Chicago area, specifically in

suburban Cook County, just outside the city, and includes all or

portions of Glencoe, Winnetka, Kenilworth, Wilmette, Evanston,

Skokie, Glenview and Northfield. My legislative district also falls

within one of the two ozone non-attainment areas in the State.

As stated earlier, one of the primary goals of the Clean Air Act

Amendments of 1990 is to protect human health and the environment by providing safer, cleaner air for Americans. There is certainly no argument as to the desirability of this goal. I’m hopeful

that, in the long run, the air quality standards proposed by the

USEPA with respect to ozone and particulate matter can be

achieved.

In an era when Government resources are already being strained

to the limits, I am fearful, however, that these new standards are

doomed to failure unless there is both adequate funding and new

strategies for implementation of these standards. The economic

consequences of the proposed rules, as Governor Voinovich and

Mayor Golding pointed out earlier, will preclude any health gains

and will result in differences for the people of my area and others

and the entire metropolitan Chicago area unless there is effective

cooperation between USEPA and the affected governmental entities.

Just several days ago, the Illinois legislature made a concerted

effort to further ensure that the public interest is well served with

respect to clean air issues. Just last week, we in the House passed

legislation that would require the Illinois EPA to submit any proposed revisions to the State implementation plan to the general assembly for public hearings 60 days prior to submission to the

USEPA. In my view, it is imperative that these open hearings are

held. The public must be permitted to comment on any proposed

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vironment, energy use, utility costs and rates, economic development, transportation fuel costs, and industrial competitiveness.

As legislators, we believe that it is not necessary to submit a

plan to USEPA that is more stringent than the proposed standards

and more costly to implement unless the Illinois EPA can demonstrate otherwise. Furthermore, last year the Illinois House

passed a resolution regarding the EPA’s review of the national ambient air quality standards for ozone and particulate matter. The

Illinois House Resolution 95 urged the USEPA to test the potential

health impacts and economic consequences on the State as it conducted its review of the existing standards.

This policy statement, which was forwarded to USEPA Administrator Browner, also urged the agency to identify any unfunded

mandates or other administrative burdens for State and local governments, agencies, citizens and consumers in non-attainment

areas. Since raising the existing standard would expand the number of ozone non-attainment areas, it seemed likely that Illinois

and its citizens would be significantly burdened with a massive unfunded mandate. Stricter standards would impose new mandates

on vehicle inspection maintenance programs, limit economic development, require the use of reformulated gasoline, and result in

other controversial emission controls in these non-attainment

areas.

That was last year. Now, under the newly proposed NAAQS regulations, our worst fears of a massive unfunded mandate have apparently been realized. Although the numbers have been disputed—they’re either higher or lower depending on who you consult—the estimated implementation costs for the proposed PM2.5 regulation ranges anywhere from $2 to $14 billion. These are

USEPA’s own figures from their regulatory impact analysis ES–14.

USEPA claims that approximately 60 percent of those costs would

be incurred by non-attainment areas east of the Mississippi River,

including the Chicago metropolitan area.

In their formal comments USEPA, the Illinois EPA stated that

the implementation costs of the proposed regulations will indeed

have a ‘‘significant economic impact,’’ thus triggering the Unfunded

Mandates Reform Act of 1995. Under the act, USEPA is required

to estimate the aggregate economic impact that the revised standards will have on State and local governments. The agency is also

required to complete and publish and in-depth analysis that provides: one, a qualitative and quantitative assessment of the anticipated costs and benefits of the mandate; two, analysis of Federal

financial assistance and other Federal resources available to State

and local governments; three, estimates of future compliance costs;

four, analysis of any disproportionate budgetary effects on any regions, States or localities; five, estimates of the effects on the national economy; six, reports of EPA’s prior consultation with elected

State and local officials; seven, summary of submitted comments

from the various levels of government; and eight, EPA’s evaluation

of those comments.

The USEPA must make adequate resources available and provide flexibility upon implementation of the proposed regulations. In

their formal comments, the Illinois EPA stated that, ‘‘It is essential

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plementation of NAAQS for PM2.5 and that it commit to providing

the States with the necessary funding.’’

Currently, it costs the State of Illinois $830,000 annually for

ozone and particulate matter monitoring in the non-attainment

areas. Our State’s EPA staff estimates further that the capital

costs for monitoring site equipment will cost the State an additional $500,000 over the 3-year phase-in period for the new standards. While the EPA has released its regulatory impact analysis,

its cost estimates are widely perceived to be unrealistically low.

Even if the EPA is lowballing its estimates of $2 to $14 billion, that

is still far too high for counties and cities that must meet their financial obligations with limited resources.

A recent American Petroleum Institute study estimated the cost

at $11 to $60 billion for ozone, and at least $25 billion for the PM

standard. This is an incredible amount of money—money that most

States, including Illinois, simply don’t have. The health goals behind the proposed standards cannot be reached without a properly

funded implementation strategy. These new standards will have a

highly negative impact on the people who reside in the city of Chicago proper and its outlying suburban communications if USEPA

does not provide adequate administrative and financial support.

The limited resources that are currently allocated for other environmental programs such as the Brownfield redevelopment, which

has been a major economic development and environmental policy

initiative of the administration of Chicago Mayor Richard M.

Daley; improvements in commuter rail lines; Superfund site remediation, and other conservation projects would be diverted away

from these major programs. There are far greater environmental

benefits for both city and suburban residents of the metropolitan

Chicago area by updating the rail system and providing efficient

public transportation than by setting a clean air standard that is

unattainable and which will drain precious financial resources. The

metropolitan Chicago area has an excellent and accessible public

transportation system which brings tens of thousands of commuters in and out of Chicago’s downtown area daily.

In conclusion, we need to continue focusing on the long-term objective, which is that clean air is an important aspect of good public

health and welfare. But if the USEPA is going to set tougher ozone

standards, then the Agency must work closely with the States and

specific non-attainment areas when amending implementation

plans to be as flexible as possible and to provide additional funding. We should be working together to set attainable goals. The

clean air standard should be set at a level that is scientifically reasonable and financially possible to achieve. Prior to finalizing the

new ozone and particulate matter standards, the USEPA must first

adhere to all aspects of the Unfunded Mandates Reform Act, specifically identify financial resources available to State and local

governments, and provide estimates of future compliance costs.

After all, money spent on attaining the new standards is likely

to be money diverted from other effective State and local programs.

It’s only reasonable to require that the USEPA fulfill its obligation

under the law, especially when billions of dollars are at stake. On

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behalf of the city and suburban residents of the Chicago metropolitan area and the State of Illinois, thank you for this opportunity

to present this testimony before the committee.

I’m happy to answer any questions. Thank you.

[The prepared statement of Mr. Schoenberg follows:]

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Mr. MCINTOSH. Thank you very much, Representative. Our next

witness hails from the district of our colleague, Jim Turner. I will

yield a moment for him to introduce her.

Mr. TURNER. Thank you very much, Mr. Chairman. It is a pleasure to welcome and to introduce to the committee, Mayor Frances

Monk from Port Neches, TX in my part of Texas. And I would say,

Mayor, as a former mayor of a small town, myself, it’s an honor to

have you here speaking out on the impact of the proposed EPA regulations on our smaller communities, where, as you know, we

struggle to balance budgets under very difficult circumstances. And

in our part of the State, we work very hard to secure our economic

base, to be sure we’ll continue to grow and be viable in the years

ahead.

I know you’ve worked with the Air Quality Advisory Committee

of the regional council of government that you’ve been active with.

And we welcome you here. And we look forward to your testimony.

Thank you, Mr. Chairman.

Mr. MCINTOSH. My pleasure. Thank you, Mr. Turner. And I second that welcoming. Mayor.

STATEMENT OF FRANCES MONK, MAYOR OF PORT NECHES,

TX

Ms. MONK. Thank you. I appreciate the opportunity to be here.

I speak to you not from the science, not from the health, not from

the cost-benefit analysis. My primary concern is that the setting of

sound public policy is a fundamental function of government. And

we’re dealing with a policy matter here. Some years before the

Clean Air Act amendment was implemented, industries in my region of Texas began to work together to reduce the harmful effects

of pollution dramatically. I direct your attention to the first chart

over here, which shows you the trend of ozone formation network

in our region, which shows you from 1972 to the present time, we

have made dramatic improvements in air quality.

These levels of progress have levelled off in the past few years.

Since 1985, in spite of new technology, shutting down old refinery

units, numerous control strategies which have been implemented,

we’ve seen very little improvement. Why are these current efforts

not moving us toward attainment? I submit, like many areas of the

country, Texas has a variety of conditions that contribute to air

pollution: dust storms in north Texas, the transportation problems

of Dallas, Fort Worth, Houston metropolitan area. But the Texas

Gulf Coast has a little different problem. Many of you know that

folks from all over the country go to our part of the country to get

to the sunshine, the water sports, escape from winter problems.

But those very assets in our environment contribute to the formation of ozone. We have so many beautiful trees, so much sunshine, and so many other factors, like swamps and swamplands

that contribute to the precursors of ozone formation, that all of our

efforts to lower our levels have had only very minor results. Science

doesn’t explain the meteorological impacts on ozone formation. Air

transport has not been figured into the formula when the air monitors show an exceedance.

Actually, ozone exceedances are a rarity. If you look at the data,

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ample, we show attainment of the current ozone standard 99.98

percent of the time. Now, I submit to you that that’s more pure

than Ivory soap, and I was comfortable bathing my babies with

that. If we look at the next chart, which shows the 1983 to 1995

chart, we see an almost flat line for ozone standard. Now, there are

two lines on this chart. The dotted line represents the current

standard.

The red line indicates the proposed new standard. Forty years in

public school classrooms made me feel that a picture is worth

many, many words. So I came armed with these charts to let you

see not emotional appeals, but what the data shows. Compare the

flat line with the long-term trend in Longview, TX, where you have

an area that’s not heavily industrialized.

Another comparison that you might—you see the flat line. Another comparison you might make is Phoenix, AZ, where the same

pattern is reflected. I would direct you to the other charts that are

in the pamphlet which you have before you, and tell you that all

of this information came from EPA data bases.

This is available to any one of you. All you have to do is ask for

it. If you are in a monitored region, EPA has this information, and

they’ll provide it for you. Before we set near impossibly unattainable standards, let’s get a better understanding of the true source

of the problem. How much does transport contribute? How much is

background level for a region? My region, for example, shows a

0.04—0.08 background level. This is before we start operating the

first business or industry.

And average background level doesn’t show a true picture, since

each region is unique. And with all of the Federal and State controls that have been imposed since 1972, the data do not indicate

similar progress toward achieving the proposed standard. If the

proposed new standards are adopted, hundreds more cities and

counties will be forced to develop implementation programs that

will affect small and large businesses as well as private lifestyles,

all of this with no certainty that their efforts will be successful. We

must ask ourselves if there is reasonable expectation that the proposed standards can be achieved.

Sound public policy requires standards which are both enforceable and attainable. If my small city had a traffic fatality problem,

our city council might solve it by reducing the speed limit in the

city to 5 miles an hour. But that would not be enforceable, nor

would it be attainable, and would probably result in all of us being

replaced at the next election.

We all support the goals of clean air and water. We can’t ignore

other critical concerns. While we pour millions of dollars into

minute improvements in air quality, wouldn’t it be better to work

with the tools that will enable us to succeed instead of just arbitrarily setting standards which may not do anything other than

provide economic hardship for our cities and counties and which do

not consider other contributing influences on public health. My own

asthma and that of my grandchildren is the result of milk and

household molds.

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Now, I don’t propose that abolishing milk would be sound public

policy. We are all in this struggle together. it’s not a partisan effort. And we need to seek common, reasonable solutions.

Thank you.

[The prepared statement of Ms. Monk follows:]

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Mr. MCINTOSH. Thank you very much, Mayor. I notice at the

back of your submitted written testimony you’ve got similar charts

for various areas of the country, and I’ll make sure that the members of the committee receive those.

Ms. MONK. Thank you. I believe that you will find that the areas

for the members of the committee as well as some of my fellow

panelists are included in those charts.

Mr. MCINTOSH. Thank you very much. Our next witness is from

the New York State Assembly. We appreciate you coming down,

representing the northeast region of the country. The Hon. Richard

Brodsky.

STATEMENT OF RICHARD BRODSKY, NEW YORK STATE

ASSEMBLYMAN

Mr. BRODSKY. Thank you, Mr. Chairman and members of the

panel. I’m Assemblyman Richard Brodsky of New York, chairman

of the New York State Assembly Committee on the Environment,

former chairman of the Committee on Oversight and Investigation.

And I share this committee’s continuing concern that the legislature act as the thorough check on process, and deal with agencies

of the Government in ways to ensure that they obey the law as the

law is written by the legislature.

I am here today to address the regulatory impact statement of

the EPA with respect to the proposed rulemaking. And my full

written testimony goes into this in greater detail. But I will highlight it for you. In developing the document, EPA has inadequately

considered the true health impacts and health benefits of the rulemaking. For example, EPA only considered hospital admissions as

the indicator of adverse health effects. Emergency department visits, asthma attacks, private physician visits, increased medication

use, lost work days and increased frequency of respiratory systems

were all not considered by EPA. Those benefits to the people of the

Nation and my State need to be considered.

EPA, by its own admission, was unable to monetize some of the

very critical health benefits of the proposed rules. These benefits

included reduced chronic respiratory damage, premature aging of

the lungs, reduced mortality and morbidity from lower fine particle

levels, reduced cancer and other health effects. Furthermore, the

EPA did not monetize the important benefits to my State with respect to reduced nitrogen deposition in sensitive estuaries, protection of the parks, forests, and ecosystems.

Sulfates and nitrates are often emitted in the form of fine particulate matter. And the RIA failed to quantify the benefits of reduced

acid rain deposition in the Adirondack Park, which is the largest

public park in the contiguous United States. Over 300 lakes and

ponds in that area are losing their ability to support aquatic life.

The economic effect of that with respect to tourism is considerable.

And the RIA had failed to consider that. It has also failed to consider the economic benefits of ozone and PM controls, which occur

from the reduced emissions of sulfur dioxide. Again, the New York

State acted in the early 1980’s to clean up its own house.

That has left us at some disadvantage at the cost of producing

electricity. And the ability of a more national standard with respect

to those emissions would enable New York to cease paying the ecoVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00191 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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nomic penalty for its advanced public health concerns. In conclusion, the failure of EPA to significantly quantify the benefits, monetary and otherwise, is of some deep significance.

Mr. Chairman, one of the interesting things that I’ve been able

to learn in the listening today is that there’s going to be a regional

dispute here. Because part of the problem is that the costs that

may be applied to cleaning up this problem are not necessarily

going to come from the same reasons that suffer from the effects

of these dangerous substances. And it seems to me particularly appropriate that a national forum and standard be set so that the

people of my State are not poisoned by people of other States. That

takes us back to the debate that has been had by other witnesses

today and that we have had within our own legislature.

There are essentially two questions that need to be addressed.

The first is, does this stuff hurt anybody? Is it toxic? Are people

being damaged by it? What do scientists and doctors, not necessarily informed laypeople, as you and I may be, say about that.

I have concluded that the evidence on that point is very, very

strong. This stuff is dangerous. You can measure that danger. And

people are being hurt by it. That is not necessarily the end of the

question even though the law, in refusing to permit cost-benefit at

this stage of the process, may indicate that it is the end of the debate.

The next step is this question of cost-benefit analysis. And it is

an absolutely fascinating area for public policy debate. We have

been asked to come here today to discuss the rationality of the costbenefit analysis placed before you and the American people. I have

tried to do that answer shown in substantial ways how it has not

adequately considered the benefits of this proposed rulemaking. I

listened with respect to my colleague, the Governor of Ohio. And

what I find interesting and somewhat disturbing is that in most

cases, the opponents of the rule attack the calculation of costs by

EPA as inadequate, but accept EPA’s calculation of the benefits

without challenge.

Now, if one is going to be skeptical about a Government institution, as the chairman is—and I have been in my chairmanship—

then we ought to be skeptical about both ends of the process. When

I hear skepticism on one side, I get concerned, as someone charged

with protecting the public health of my State. The fact of it is, the

benefits to significant numbers of people in my State have not been

considered adequately. And if they were, perhaps the opinions of

these distinguished colleagues in Government and members of this

panel might change.

But even if we rationalize the cost-benefit system, let me suggest

that it is a morally repugnant exercise. We have been asked to consider the value of a human life at $4.8 million. We have been

asked, according to EPA data, to consider the value of pain upon

deep inhalation as anywhere between $1.26 and $28.04. The pain

of a cough should be valued under our new system at anywhere between $1.26 and $13.84.

If the forum would permit—and I don’t mean to put the gentlemen at a disadvantage—I would say to the people of the State of

Ohio, exactly what is the life of a 72-year-old grandfather taking

care of a family in New York City worth in monetary terms? And

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should the Government of this Nation be involved in that? This is

Orwellian. This is a challenge to the notion that there is a value

in families that we cannot monetize. We are commoditizing the

people of this Nation under this process, and doing so in a way that

can only exacerbate the fundamental divisions that we’ve seen regionally, racially, and at class in our society.

The issue before the Congress and America is, is the stuff dangerous? And if it is, we ought to stop it. And we ought to stop it

in the most cost-effective way. But that is the second level of inquiry, not the first one. And I urge those who speak most effectively and outspokenly about the values of families to realize that

we are participating in a process that sets the values of families

in dollar terms and ways that are morally repugnant to me and,

I believe, the American people.

I appreciate, Mr. Chairman, the opportunity to offer this testimony. I would be glad to answer any questions.

[The prepared statement of Mr. Brodsky follows:]

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Mr. MCINTOSH. I appreciate you coming, Mr. Brodsky. We’ll get

to questions with the rest of the panel in just a moment. Our final

witness on this panel is State Senator Richard Russman, from New

Hampshire. My vice chairman apologizes for not being here to

greet you, but asked me to do so. Welcome to this panel. I appreciate you taking the time to come down here and testify. Senator

Russman.

STATEMENT OF RICHARD RUSSMAN, NEW HAMPSHIRE STATE

SENATOR

Mr. RUSSMAN. Thank you, Mr. Chairman, and members of the

committee. I was beginning to think that between the milk causing

asthma and the fertilizer causing particulate problems, we’d have

to shoot all the cows. But hopefully that won’t be necessary. My

name is Richard Russman. I’m a State Senator from New Hampshire. And I thank you for letting me come before you today.

Myself and New Hampshire enthusiastically support the rules on

ozone and particulate matter proposed by the EPA. And we believe

that they are following a law, which is the Clean Air Act statute

on health-based standards. We’re satisfied as a State. And we

think that the science that it’s based on is good science. I’ve had

the opportunity to talk with some of the—while I’m a Republican,

I’ve talked this over with the Democratic leadership before coming

down here. And they would share my endorsement of the standards

at the same time.

I do have to disagree with a recent argument that was recently

put forward by the National Conference of State Legislatures—and

I believe you got a letter from them—I am the immediate past

chairman for NCSL’s committee on the environment—saying that

EPA has not sought input or considered the role of the States. I

think since the proposal has come forward, the EPA has made diligent efforts to include all the affected parties and have been developing strategies to implement the rules when they become final. I

think EPA has worked through the Federal Advisory Committee

Act, and has established working groups on ozone, particulate matter, and regional ozone transport to provide advice to EPA and the

States which are charged with implementing the rules, as it should

be.

EPA has wisely expanded the membership of the working groups

and has extended the comment period and the final deadline for

these final rules. And I will see that the FACA membership list is

submitted to you for the record. It’s extensive. Input from working

groups and the scientific advisory committee has been extensive, as

have been the justifications put forward by the EPA. I believe that

this administration has worked to reform the regulatory process

and done a good job.

They have also made a strong case for the benefits of these rules,

which I respectfully would remind you are health-based only. The

costs can be and will be considered further in the implementation

stage. And that is not to say that there are those who have concerns about those. And they’re probably legitimate concerns. But

they will be addressed. Being from New Hampshire, I’m worried

about the continuing effects of ozone on our region. Agriculture and

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forestry are beginning to suffer—as much as 10 percent loss for

some crops.

This is bad for the American economy in terms of consumer

goods and tourism. These are quantifiable benefits that are not

fully accounted for in the rule. I would even go so far as to say that

I think these rules will be good for business. And I think they will

spur the economy. Historically, when the Clean Air Act was first

suggested, there was a hue and cry sent up. And if you look at the

record, our economy is doing better now than it’s ever been doing.

So, certainly there is some merit to having some of these rules

in place. More importantly, we can’t overlook the mortality and the

health impacts of continuing to expose our fellow Americans to

ozone and particulate matter. And I think we can all agree on that

particular point. It would be difficult to quantify the value of

healthy air in terms of what it means to various citizens that

breathe it. We can debate the implementation strategies. And I’m

sure we will. And I’m sure we’ll debate the best way to achieve the

attainment.

But the Clean Air Act is clear about the standard being healthbased. And it should be. The question that we had before us today

was, is EPA above the law. I don’t think that they are. And I think

that EPA is doing its best to uphold the law and to protect the

health of the American people. And Hew Hampshire would certainly urge the Congress to be supportive in their particular effort.

New Hampshire thanks you. And certainly, I’d be happy to answer

questions if I can.

[The prepared statement of Mr. Russman follows:]

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Mr. MCINTOSH. Thank you very much, Senator Russman. I understand that Mr. Waxman has another engagement. And so, I’ll

yield my place of questioning, if you want to take your 5 minutes,

and then I’ll go after you.

Mr. WAXMAN. Thank you very much, Mr. Chairman. I appreciate

this courtesy to me. Because I do have a conflict in my schedule.

And I thank all the witnesses for your testimony today. And I

wanted to direct my questions to Governor Voinovich. Governor,

this morning we heard from Dr. Munzer, who is a lung specialist,

and he told us, representing the American Lung Association, that

he deals with kids who have asthma attacks triggered by the levels

of ozone that are lower than our national standard.

We have overwhelming statements from all these scientific experts that there’s a connection between ozone and particulates and

asthma attacks. And, of course, an asthma attack is a pretty awful

thing for a child—for anybody—but for a child it can be life threatening. Many of them end up in the emergency rooms of the hospitals. Do you dispute that there is a connection between ozone and

particulates and asthma attacks?

Governor VOINOVICH. No. First of all, I think that the head of

our health department, Dr. Peter Somani, has looked at this and

reviewed it, along with our Environmental Protection Agency. And

Dr. Somani basically said that the proposed new standards will not

have any measurable impact on the health of the people in the

State of Ohio.

Mr. WAXMAN. Let me ask you——

Governor VOINOVICH. And even——

Mr. WAXMAN. Excuse me, Governor.

Governor VOINOVICH. And even EPA has said it will have little

or marginal impact on ozone.

Mr. WAXMAN. This is our chance. You’re not being fair to me.

You had your chance to testify. This is our chance to ask you questions.

Mr. MCINTOSH. But Henry, let him answer the question specifically.

Governor VOINOVICH. Let me answer the question.

Mr. WAXMAN. My specific question is do you doubt that there is

a connection? Leave the rule aside. Leave the cost aside. Do you

doubt that there is a connection between air pollution and asthma

attacks in kids?

Governor VOINOVICH. The fact of the matter is that I’m sure that

there is some impact. But the question is whether or not increasing

the ozone standard is going to have a measurable impact at all on

the question of asthma. And even the EPA has revised its predictions in terms of the impact on public health. As a matter of

fact, Congressman Waxman, 53 million Americans, they admit,

won’t even benefit from this because they’ll never be able to attain

the standards.

Mr. WAXMAN. Governor, 1,350 health professionals have written

a letter to the President saying it’s important that we go forward

with their new standards in order to protect the public. And 27 of

the Nation’s most distinguished air pollution health effects experts

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are urging President Clinton to go ahead with EPA’s proposal. And

I want to put into the record without any objection that we have

that statement so that the people reading this transcript will see

it.

[The information referred to follows:]

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Mr. WAXMAN. There are two issues: whether there’s a connection

between air pollution and asthma and heart disease and these

kinds of serious medical consequences.

Governor VOINOVICH. Risk.

Mr. WAXMAN. The second issue is what is a standard to protect

and prevent—protect public health and prevent some of that.

Governor VOINOVICH. Mm-hmm.

Mr. WAXMAN. And then the third issue is what costs are going

to be incurred and how to evaluate that. Now, just so I don’t look

like I’m a partisan, I’ve been involved in clean air for a long time.

And I remember Governor Celeste, the Democratic Governor of

Ohio, coming and testifying to us that if we control the pollutants

that cause acid rain, it’s going to be an extraordinary cost. In fact,

what the electric utilities were saying at the time, that acid rain

allowances would cost between $1,000 and $1,500. We went ahead

and adopted the law, and it ended up costing $100.

So what I’m concerned about is that we not trivialize what happens to kids with asthma. They end up going to emergency rooms.

Sometimes it’s life-threatening, because they can’t breathe. A lot of

kids with asthma live in the State of Ohio. And there’s a cost to

them if we don’t get a standard that will protect their health. Once

we’ve got a standard that will protect their health, then we can

talk about the reasonable timeframe and the cost. And we ought

to be more realistic sometimes on those cost estimates. And I want

to give you a chance to respond.

Governor VOINOVICH. My only comment is that there is disagreement among the experts in terms of the impact of particulate matter. And there’s a difference in terms of a new standard and its impact on public health. That’s something that’s going to be debated

by the experts. The man who headed up the science review committee for the Environmental Protection Agency when they did

this, George Wolff, indicated that it was his opinion and many others’ that what some of these other doctors have testified to is really—they disagree.

Mr. WAXMAN. But if we find—notwithstanding the disagreement—that the overwhelming evidence is for a standard that’s

going to be more protective of the health of people, and especially

kids with asthma, you’re not arguing that we shouldn’t try to prevent the asthma attacks and disease consequences from air pollution?

Governor VOINOVICH. I think we should. But I just talked to the

head of our Environmental Protection Agency yesterday—and

maybe, Mayor Monk, you may have some information to shed on

this—but he said that in spite of the fact that we have reduced

ozone dramatically in this country, asthmatic attacks are on the

rise in the Nation. And the issue is what is it that is causing the

increased asthma among the American public. So I think there are

some real differences of opinion here.

On the particulate matter, I think even the EPA has said, ‘‘We

need more information.’’ They had asked for another $26 million to

study the health impact of particulate matter.

Mr. WAXMAN. Well, Governor, I understand what you’re saying— that there are some people that have a difference of opinion. But

we’ve heard from a doctor this morning who has personal experiVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00239 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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ence in treating patients. And he has seen the consequences. And

he has looked at the science. And he’s reached a different conclusion. And I’m just reminded of all those years I had tobacco executives come in and tell us, ‘‘There’s really no connection between cigarette smoking and cancer or heart disease. There may be more of

a circumstance incidence of it. But we shouldn’t jump to conclusions. We should wait until the final scientific nail is pinned down.’’ At some point we got to believe the scientists and not argue that

the issue is always open.

Governor VOINOVICH. But you do agree that you need to look at

risks and benefits. You were there at the White House when the

President signed the amendments to the Safe Drinking Water Act.

And the things that we tried to do in that was eliminate mandates

that didn’t make sense in terms of the technology that was available. We paid attention to requiring people to do things that they

really didn’t need to do, and got into risk benefit. And I think that’s

what this is about. This is not about somebody being worried

about—I’m concerned as much about asthma as you are, and the

health of our people. On the other hand, I also have to look at the

impact that this is going to have generally on our people.

Mr. WAXMAN. Well, those impacts are awfully dangerous.

Governor VOINOVICH. Today, you said the acid rain provisions

didn’t hurt. Yes, they did hurt. We had 16,000 miners in Ohio. We

had 450 coal mines. Today we have 4,000 coal miners who are in

business in the State of Ohio.

Let’s look at our urban areas. We’ve been trying to do everything

that we can. And you’ve supported legislation to try and revitalize

our urban areas and to move people off of welfare and on to jobs.

When you’re in non-attainment in a place like Cleveland, OH

where we fought for years to bring ourselves into attainment, that

casts a pall over your economic development opportunities. It

doesn’t encourage people to stay in cities or to be attracted to cities.

And one of the things that we have to realize is—in my State, for

example—one of the greatest concerns that we have is urban

sprawl and the movement into the green areas. Part of the reason

why businesses are moving out and are usurping green area and

not using the infrastructure that’s in place, is because some of the

very things that we’ve done on the national level—we believe that

this is going to be harmful.

I mean, the President has got empowerment zones on one hand,

trying to help areas. You get in non-attainment in Cleveland,

Youngstown, Columbus, and the rest of our urban areas in our

State, that’s going to hurt jobs. And when those people are out of

work, they can’t afford health care.

Mr. WAXMAN. Governor——

Mr. MCINTOSH. The time——

Mr. WAXMAN. There are jobs that are created by this, as well.

But what you want to do, and what we all want to do, is set a

standard that’s really in protection of the public health, and not

eliminate the standards and say, if there are no decent standards,

we’re in compliance. We want a compliance with standards that are

protective of the public health, and then look at the most cost effective way to accomplish that, not to say in the first instance, we’re

not going to care about those standards, even though those standVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00240 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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ards may well prevent a lot of people from getting sick, which is

a real cost, as well.

Thank you very much, Mr. Chairman. I appreciate, Governor. We

do have a dispute, and we’ll continue to talk about it.

Mr. MCINTOSH. Thank you, Mr. Waxman.

Ms. GOLDING. Mr. Chairman, I apologize for interrupting. I just

wanted to let you know that I’m going to have to leave in a couple

minutes. And I just wanted to thank you for the opportunity to testify.

Mr. MCINTOSH. Thank you very much, Mayor. We may have

some additional questions for you, which I’ll ask the panel if we

can submit them in writing to you. I appreciate you coming all this

way to do that.

Ms. GOLDING. Thank you.

Mr. MCINTOSH. Using my 5 minutes, Governor, you should know

also that in the same panel we had an expert from the trauma doctors. And he was asked point blank, ‘‘Do you support these standards as a way of helping your patients who suffer from acute asthma?’’ And he said no, that, as you pointed out, we all want to help

asthmatics. But do these standards do the job? He thinks they are

inadequate and misdirected. Now, the Washington Post, in an article that come out yesterday, points out that the primary cause,

they now think, with asthma, does not have to do with ambient air

pollution, but has to do with indoor air, dust and mites and other

causes.

Mayor Monk pointed out that in her case it has to do with milk.

One of the things that, when we’re forced to ask the question, do

you want to help the people with asthma, we’ve got to respond and

say, of course. But are we really doing this in the rulemaking. The

experts are telling us, including, as you mentioned, Dr. Wolff, that

the proposed standard does not significantly help asthmatics, and

yet would impose tremendous costs.

One of the things I wanted to ask you about is that, in your opinion, do you believe that EPA has fully complied with the requirements to consult with State and local governments and to do the

economic and scientific analysis required under Federal law in

order to try to determine whether this standard really does provide

the benefits that it’s purported to and what the costs are?

Governor VOINOVICH. I think the only complaint that our people

have is—No. 1—that they didn’t have enough time to respond to

the 1,000 or—what is it?—1,600 pages of proposed regulations. And

we did appreciate the additional time. But we could have used

more time so that we could do a better job of responding to those

proposed regulations.

I think the other thing is that they have not made available

some of the information that they had, so that it could be reviewed

by other people, outside people. For example, it was just inadvertent that they found out that their projected health benefits

were not what they had originally projected. Somebody was reviewing the material and came back and said, ‘‘Hey, we blew it on this.

And it’s not as much as what we said it was going to be.’’

Mr. MCINTOSH. Would you recommend that Congress have EPA

start over and fully perform those analyses?

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Governor VOINOVICH. Well, I don’t know if I would recommend

that they would start over. But I think that they ought to look at

some of the criticisms that have been leveled, and perhaps remedy

those criticisms. I think, frankly, that Carol Browner and company

did the best that they could do under the circumstances in terms

of this issue. In other words, there are things that they haven’t—

they could have made it a lot better. More time, more sharing of

information, and that type of thing. So, I wouldn’t say start from

scratch. I would say, take what you’ve got, acknowledge——

Mr. MCINTOSH. Take the time to do it correctly?

Governor VOINOVICH. Acknowledge the areas where people have

legitimate criticisms, and build on that. But I don’t really think

that that will matter a lot. I think that Carol Browner has made

up her mind that she’s going to institute these new regulations. I

spent an hour and a half with her with a delegation from Ohio.

And there’s no question that she’s made up her mind. And I’d like

to make one other comment, if it’s all right with you.

Mr. MCINTOSH. Yes.

Governor VOINOVICH. In response to the folks from New York

and New Hampshire. Our industries in Ohio have spent more than

$5 billion on capital costs since 1972 to control the primary pollutants regulated by the Clean Air Act. Our public utilities have spent

$3.7 billion on air pollution controls through 1995. That’s more

than the expenditures of utilities in New York, New Hampshire,

New Jersey, Vermont, Massachusetts, Maryland, Maine, Delaware,

Connecticut, and Rhode Island. And I would contend, Mr. Chairman, that beyond the health issues that are here, is an economic

issue.

And that is that many of our States have come into attainment.

As a result of our coming into attainment, frankly we’re more competitive than other areas in the country where they are not in attainment. Because businesses don’t like to locate in areas where

there is non-attainment. In addition, you are talking about retail

wheeling one of these days. It certainly is a very, very live subject

in the States. And one of the things that also is behind this is that

many of the utilities in the northeastern part of this country are

frightened to death, that when we get into retail wheeling, because

of the fact that they’ve got some real problems in terms of costs,

they will not be as competitive as utilities that are in our part of

the country.

So there’s an economic issue that’s here, too. It’s the same thing

with the acid rain provisions of the Clean Air Act. I mean, the people that you’re pushing that were from the northeast and the western coal interests. So, there’s more to this than appears just on the

surface in terms of some of these debates that are going on today

in this country.

Mr. MCINTOSH. Thank you. I agree with you fully, that there’s

a hidden agenda at work here. Let me ask Representative

Schoenberg, is it correct that even though the Illinois House has

urged EPA to evaluate the economic and public health impacts of

its PM and ozone proposals and to identify unfunded mandates

that are a result of those proposals, EPA has not complied with the

requirements of the Unfunded Mandates Reform Act?

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Mr. SCHOENBERG. That seems to be the position that the State

is taking. I wish to add that the position of the State of Illinois and

the city of Chicago, which is the largest metropolitan region within

the State, are strikingly similar in this regard, and that this is an

issue in Illinois which actually crosses the partisan divide, where

we do have significant consensus on this matter.

Mr. MCINTOSH. Thank you. My time has expired. Mr. Sanders,

do you have questions?

Mr. SANDERS. Yes. Thank you very much, Mr. Chairman. For the

record, I would appreciate unanimous consent to place in the

record an article from the Cleveland Plain Dealer of March 2, 1997.

I know Governor Voinovich mentioned the support that he’s getting

from Ohio newspapers. There’s at least one editorial writer in the

Cleveland Plain Dealer who does not agree with you. And he

states, ‘‘Like many people opposed to the latest proposed clean air

regulations, Governor George V. Voinovich is busily spreading this

information about them.’’ So I’d like to put that into the record.

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Governor VOINOVICH. Is that—may I ask a question?

Mr. SANDERS. Yes.

Governor VOINOVICH. Was that an editorial from a paper or an

article that appeared in the paper?

Mr. SANDERS. It’s by a gentleman named Gene Dubel, I believe,

who is the associate editor of the Plain Dealer’s editorial pages.

Governor VOINOVICH. OK.

Mr. SANDERS. March 2nd. I would also like to place into the

record the non-monetized benefit categories. In other words, as, I

think Mr. Brodsky, was mentioning earlier, there are many aspects

of this problem that are not being calculated by the EPA. The

amount of physical damage that is being done to people. I would

like to place that in the record.

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Mr. SANDERS. Let me begin. I have a couple of questions for Mr.

Brodsky and Mr. Russman, and then I’d like to ask the Governor.

Mr. MCINTOSH. Mr. Sanders, if you could have the staff identify

the source of that for us, that would be helpful.

Mr. SANDERS. We sure will. Thank you. And this is to both the

assemblyman and the Senator. Governor Voinovich testified that it

would be unfair to force Ohio to meet the new standards. And he

indicates that there are dangers to the economy and jobs and so

forth. As folks from the northeast, whose people are suffering physical illness, who I’ve seen in the cases of New England, declines in

our lakes, acid rain impacting our forests, would you like the opportunity to respond to the Governor? Mr. Brodsky, do you want

to begin?

Mr. BRODSKY. Yes. I don’t dispute the Governor’s facts and figures with respect to the investment of Ohio utilities. But I did not

hear him say that Ohio was not a major transporting in of toxic

substances in my State. And if that is the case—and I think that’s

inarguable—that’s why we have an ozone transport committee— then the question remains—and this is why we have a Federal

Government—to whom do we turn for remedy?

To whom do the sick people of New York turn when the people

of Ohio and Illinois are prospering economically, perhaps, at the

cost of destructive health effects in my State? If the Governor’s testimony is that Ohio is not affecting the health of the people of my

State, then we have a factual dispute. If we don’t have a factual

dispute—and I don’t think we really do—then I don’t understand

under what equitable process New York can be asked to absorb the

health effects of his activity without seeking some remedy of the

Federal Government. And that’s why I think the standards made

a lot of sense.

Mr. SANDERS. Senator, before you begin, I should point out that,

of course, the Governor of the State of Vermont also supports these

new proposals. But I would like you to comment from the perspective of New Hampshire.

Mr. RUSSMAN. Well, our Governor has gone on record as being

in favor of them, as other people from New Hampshire have, including the Business and Industry Association, which is the largest

business trade group. Clearly, we’re also concerned when you talk

about deregulation that it’s only going to get worse. And we feel

that we need these standards now in order to make sure that it

doesn’t get worse. A lot of these old coal-fired plants and so on were

given exemptions over the years.

And we were told that they were going to be out of business and

closed up in 20 years, which would be now. And, obviously, they’re

gearing up to go even bigger once deregulation and free-wheeling

takes hold. So, we are very, very concerned. And certainly our area

is suffering. And it’s going to suffer economically even more if these

proposals aren’t implemented.

Mr. SANDERS. The Governor talks about problems that this proposed legislation would have on Ohio. What are we seeing in New

England, Mr. Russman, in terms of the problems that already exist

because we don’t have regulations that are being proposed?

Mr. RUSSMAN. Well, on a clear day you can’t see very far from

Mt. Washington. I can tell you that. And that doesn’t help our tourVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00247 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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ist industry, which is virtually our largest industry in New Hampshire. And we are faced with some forestry deprivation and degradation. And not to mention the health aspects of it, of our people.

We have to suffer. And we don’t like it.

Mr. SANDERS. Thank you. Now, Governor, if I might—you mentioned—I’m sure that you would agree that with a radically changing economy, there are a dozen different factors of why jobs disappear. Companies are moving to China because they can hire

workers at 20 cents an hour and so forth and so on. But let me

ask you this question, in your testimony, as I understand it, you

suggest that the proposed EPA clean air regulations will kill jobs

across Ohio—and I believe you used the word—devastate small

businesses.

You further argue that the regulations may cause a major Ford

Co. foundry to curtail production, as I understand it. I assume that

you have some evidence from the past to make these charges. What

evidence do you have the Ohio manufacturing plants have closed

down or laid off workers in response, specifically—now, we know

you’ve suffered job loss—but could you tell us maybe specifically or

provide for the record those plants that have been closed down and

laid off workers specifically as a result of EPA clean air rules?

Governor VOINOVICH. I think that what we can say is that the

businesses in Ohio have done a tremendous job in complying with

the current standards that are in existence and have spent billions

of dollars to clean up the air. For example, ozone has been reduced

overall 25 percent.

Mr. SANDERS. But that’s not answering the question, sir. You

talked about devastation, closing down companies, losing jobs. Can

you give us some specific information.

Governor VOINOVICH. I’ll just give you—we’re doing an analysis,

and I’m going to share that with the Congress. Businesses throughout the State where we’re really trying to go in there—for example,

this casting plant I’m talking about predicts that if the particulate

matter goes into effect, they would have to spend, I think, up to

the tune of about $45 million in order to comply with the new

standards. And they say that even if they did, they couldn’t achieve

the standards as they’re set for particulate matter. And, therefore,

the alternative is to cut back on the production of that facility: the

only alternative is to close it out.

Mr. SANDERS. Governor, if I may. The question that I asked is

if you could provide us with concrete, specific names of companies

that have been closed down because of EPA clean air rules.

Governor VOINOVICH. I can show you—I will submit to you the

list of coal mines in Ohio and the names of miners who are out of

work and have closed down because of the proposed standards. In

addition to that, I can submit to you evidence or information about

utility rates that have increased.

Mr. SANDERS. OK.

Governor VOINOVICH. May I finish? Because you’re talking about

the Northeast and so forth. First of all, I am very much aware—— Mr. SANDERS. Well, let me ask the chairman. Mr. Chairman, how

do we propose? Because if the Governor wants to respond, which

is OK with me, I would like the chance to respond to the Governor.

Mr. MCINTOSH. Sure. Let’s do it. Let’s go ahead.

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Governor VOINOVICH. I’d just like to say that we’re very much

aware of the problem of the ozone transport. And what we’re working on—my (Environmental) director is very much involved in that.

We have a difference of opinion. You folks feel that you get a whole

lot of stuff from Ohio and from the Midwest. And our feeling is that

it’s minimal and that it certainly isn’t your problem. For example,

in most of your States, you have no auto emission testing. For example, I talked with Senator Chafee. And they tried to do it in

Rhode Island. And they discontinued it.

I’m just saying that the people in our State have really done a

wonderful job of making sacrifices so that we can have clean air.

And we don’t believe that your problem is caused by Ohio, and

there are things that could be done more effectively in your part

of the country to deal with the problem that you have.

Mr. SANDERS. Governor Voinovich is chafing.

Mr. BRODSKY. I agree. Mr. Chairman.

Mr. SANDERS. Let me give a minute of my time.

Mr. BRODSKY. Very briefly, I appreciate the kind words of the

Governor. I think that’s a question of fact. I disagree. I think we

can establish that we have done all of these things. And the Federal Government tells us that we cannot come to attainment by

ourselves, that the reason we’re out of attainment is western downward States. The States of the distinguished chairman, your State

and others. If that is factually true—and that’s a dispute we ought

to have—then it strikes me that you have something more than a

moral responsibility, and the Congress certainly has a legal responsibility to level the playing field.

Mr. SANDERS. All right. I would just conclude, Mr. Chairman, by

saying that I did not hear from the Governor about the loss of manufacturing jobs as a result of EPA regulations. You mentioned coal

miner jobs. I appreciate that. I did not hear you specifically

mention——

Governor VOINOVICH. I think that specifically, because of the fact

that we’ve spent the money, that we have remained competitive.

Mr. SANDERS. Yes.

Governor VOINOVICH. I can’t say, for example, if when LTV expanded their production facilities in other parts of the country, that

that wasn’t done partly because of the costs that they would incur

in terms of meeting the ambient air standards. I can tell you a perfect example of the kind of thing that does happen, however. You

take Lorain, OH where the U.S.S. KOBE wanted to put in a new

blast furnace—$100 million. And the EPA told them they couldn’t

do it because they didn’t meet the new ambient air standard that

they calculated when U.S.S. KOBE was out of business.

Now, the irony of it is, that they grandfathered in an old blast

furnace that was polluting the air to beat the band. And as a result

of a lot of work on our part—and they’re paying a $500,000 fine—

we closed down an old blast furnace and put in a new blast furnace. But had they not been able to do that, they would have had

to shut down part of the productivity of that facility.

Mr. SANDERS. It’s an interesting dialog. I’d love to continue it.

But the chairman, I think, indicates otherwise.

Governor VOINOVICH. Yes.

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Mr. MCINTOSH. Let me take the time. I can also, at some point,

give you a personal example in Indiana. But let me now recognize

the chairman of the full committee, Chairman Burton.

Mr. BURTON. Well, first of all, Mr. Chairman, I want to thank

you for having this hearing. And I want to thank the distinguished

panel for being here. And I’ve also been an admirer of Governor

Voinovich. And we’re very happy to have him here, as well. Let me

just, before I yield to the chairman of the subcommittee, let me just

say that any information that you have, Governor, that would give

us statistical information or data regarding what you believe resulted in the loss of jobs because of these problems, we’d like to

have.

I’m going to check on Indiana and some of the other midwestern

States to find out what the result was. And we’ll try to give that

to the chairman for entry into the record and further study. And

with that, I’ll yield to my colleague, Mr. McIntosh.

Mr. MCINTOSH. Thank you very much, Chairman Burton. I appreciate you coming today. First, let me actually share a personal

example that I had in Indiana where I know a foundry was closed

down. I worked for one in Kendallville, when I was working my

way through college. As a result of the new clean air standards

that came into effect in the 1980’s, they had to shut down production, and over 60 people lost their jobs in my home town. We’ve

seen that throughout the Midwest, as the Governor has pointed

out, that the companies that have survived have become more competitive and been able to thrive. But now we’re going to see another

round of it if we change the standards.

I have another question for Governor Voinovich. I guess it gets

back to some of EPA’s decisions on this. I find it fascinating that

in your impression Carol Browner does not, at this point, have an

open mind about this, although the law requires that she consider

all of the comments before deciding whether to go final. But don’t

you find it troubling—and I find it outrageous—that EPA has certified that these standards will not have any significant impact on

small businesses. I guess what I’d do is address that to each of the

panel members here. Governor Voinovich, if you want to lead off.

Governor VOINOVICH. Well, I think that one of the things you’re

going to have to decide is whether or not the small business regulatory relief legislation that you passed is applicable. I think she’s

basically said it doesn’t apply to what she’s doing currently. And

I think that’s something that Congress is going to have to decide.

If she does pass these rules, you’re going to have to decide whether

or not you have the right to overrule them either under unfunded

mandates or under Don Nickles’ regulatory small business relief

legislation.

Mr. MCINTOSH. Well, the courts may, in which case we have uncertainty for an extended period of time, which many would argue

gives you an even worse environmental result because people don’t

know what rules they’re supposed to follow. But I agree with you.

It’s very clear that she’s not following that. And there’s a dispute

even in the administration. Any other comments from the panel on

that?

Mr. SCHOENBERG. In his comments, the commissioner for the environment, Henry Henderson, of the city of Chicago, did make refVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00250 Fmt 6633 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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erence to this. In the State of Illinois, we are especially faced with

a phenomena of wanting to do what we can to strengthen our environmental standards, our air quality and the quality of our public

health. At the same time, we do not wish to export businesses, particularly small businesses, outside the immediate Chicago area.

Specifically, Mayor Daley’s effort on Brownfields is a prime example of how small businesses would be significantly hurt if, in fact,

we were to proceed with the new standards. The inability to further redevelop the Brownfields as a result of the exporting of both

resources and jobs for economic development as well as transportation resources would have a significantly negative effect on small

business in the city of Chicago. And we believe since the city of

Chicago is the largest region of the State of Illinois, it would have

a detrimental effect to the entire State as well.

Mr. RUSSMAN. From New Hampshire’s point of view, we think

that, if anything, that these new standards will spur economic

growth. We think if the vast sums of money are even partly true,

that it’s going to cost to implement these. That money has got to

go somewhere. We assume that it’s going to go to jobs and additional industry and manufacturing type jobs and environmental

type safeguards that will be brought into it.

Mr. BRODSKY. Mr. Chairman, I thought I would answer this—— Mr. MCINTOSH. To the tune of a wealth transfer at that point.

Mr. BRODSKY. Well, on economics—it’s not a wealth transfer, it’s

a creation of jobs. Any creation of jobs is a wealth transfer. But the

economic activity that compliance will cause will be felt in terms

of things purchased and jobs created. Now, it may not be in the

same region, and it may not be dollar for dollar, but there is a

stimulative economic effect of environmental regulation, which

seems to me to be inarguable over history.

But the only point that I’d make very briefly is, I’m sure that

there are regulatory elements that any bureaucracy would fail to

adequately address in a rulemaking. And that’s why you have congressional committees to check. I would just urge that the same degree of concern be expressed by members of the non-monetized benefits. In other words, they’re hammering on only one side of the inadequacy of the EPA rulemaking troubles me, sir.

Mr. MCINTOSH. I’ll grant you that. And I agree we should get it

exactly right and look at both sides of that.

Mr. BRODSKY. Thank you.

Mr. MCINTOSH. I’m going to yield the rest of my time.

Governor VOINOVICH. Could I——

Mr. MCINTOSH. Governor Voinovich, if you have one additional

comment.

Governor VOINOVICH. One of the things that I was impressed

with—and I don’t know—has Commissioner Henderson testified before your committee—the health commissioner?

Mr. MCINTOSH. No.

Mr. KUCINICH. These are comments to the proposed—— Governor VOINOVICH. The proposed.

Mr. MCINTOSH. The proposed.

Governor VOINOVICH. But the fact of the matter is that—and this

is a quote from him—he’s talking about the measures that helped

clean up the air. And he says, ‘‘They have cost us dearly in terms

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of public health. Since these measures took effect the city experienced substantially inhibited growth of large commercial and industrial manufacturing facilities. In fact, many businesses have

even left the city for suburban areas that lie beyond the non-attainment area, where the regulatory requirements are far less burdensome. It would be utterly false to maintain this phenomenon has

resulted in anything less than serious and detrimental effects on

the public health of city residents and, in particular, on the economically disadvantaged and those who reside in the inner city.

‘‘This lack of growth has translated into an increase in job loss,

particularly for blue collar workers, which includes a loss of health

insurance coverage and other job-related benefits, an increase in

the number of abandoned, contaminated Brownfield sites, which

means an increase in the number of residents who are now exposed

to them, a loss of small business and other services, including

health care facilities to serve area neighborhoods, loss of personal

security, and a general deterioration of infrastructure in the urban

core.’’

I will do an analysis for Representative Sanders, of Ohio, to try

and see if we can’t calculate specifically the impact that the current

standards have had on the economy of Ohio in terms of current

jobs, and not only current jobs, but also if we can identify if businesses have chosen not to expand in the city because of these

standards and have gone to other Greenfield areas.

Mr. MCINTOSH. Great. I appreciate that. We will hold open the

record in order to make that analysis a part of the record from this

hearing. I ask unanimous consent to put the Commissioner’s testimony to the agency in the record as well.

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Mr. MCINTOSH. We’ve got about 6 or 7 minutes to vote. Do you

all have a few questions? Do you think we can proceed to those

now and then dismiss the panel? Or do you have extensive questions?

Mr. KUCINICH. I have a number of questions. Yes, Mr. Chairman.

Mr. MCINTOSH. OK. If I may ask the panel to stay with us for

a little bit longer. We’ll be gone probably about 15, 20 minutes and

then return. Why don’t we say we’ll reconvene in 20 minutes.

Mr. SCHOENBERG. Pardon me, Mr. Chairman. I may have to excuse myself early. I have to catch a plane back to our State capital

to vote, myself.

Mr. MCINTOSH. I appreciate that. Thank you very much, Mr.

Schoenberg. If there are any questions, we may send them to you.

Governor VOINOVICH. Mr. Chairman, I can’t come back in 20

minutes.

Mr. MCINTOSH. Do you want to ask any—we’ve got about 2 more

minutes and then we can leave.

Mr. KUCINICH. Thank you, Mr. Chairman. I do have some questions. And I—first of all, I’m going to submit for the record information that shows that there’s no relationship between strong environmental laws and weak economic growth. This is a study from

the California Senate Office of Research. It covers many different

States.

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Mr. KUCINICH. Also, I’m going to submit for the record that

Ohio’s job loss—the Governor has not been able to produce any information pursuant to Congressman Sanders’ question about the

job loss that’s occurred as a result of air quality rules. I do have

for the record details on the job loss in manufacturing that has occurred in Ohio recently due to NAFTA. This comes from the trade

adjustment.

Mr. MCINTOSH. Mr. Kucinich, we can put all of those in when we

return from the vote. So, why don’t we now recess and——

Mr. KUCINICH. And I have one question of the Governor, then.

Since the Governor raises the economic issue about the loss of jobs,

and has raised it in respect to Lorain and also Ford casting, what

evidence does he have to back up the charge that loss of jobs will

occur as a result of air quality when the loss of jobs that has occurred has been related specifically to NAFTA, which you, Governor, have supported?

Governor VOINOVICH. The issue here today is not to debate

NAFTA, Congressman Kucinich. The issue here today is——

Mr. KUCINICH. We’re debating job loss here.

Governor VOINOVICH. That’s debatable. I can show you statistics

that show that Ohio’s economy has benefited substantially from

international trade, and it’s been a great boom to our economy and

one of the reasons why we had our bond rating increased for the

first time in 17 years. But that’s another debate.

Mr. KUCINICH. We’ve lost jobs, Mr. Chairman, if I may. What evidence does the Governor have to show us that we have lost jobs

in manufacturing because of air quality standards and what evidence does he have to refute these statistics from NAFTA’s TAA office that we have, in fact, not lost jobs in Ohio and have, in fact,

gained jobs due to NAFTA? These aren’t my figures. These are official records. And I want to submit these for the record. And I’m

just asking the Governor to respond. Where is your proof?

[Note.—The report entitled, ‘‘Clean Air Act—Job Impact for

Ohio’’ can be found in subcommittee files.]

Mr. MCINTOSH. Mr. Kucinich, the Governor has indicated he will

give us a full analysis in writing. We will hold open the record in

order for him to do that. Did you have any other points you wanted

to make on this?

Governor VOINOVICH. I don’t have any question except that

there’s a difference of opinion on the impact that international

trade has had on Ohio. I think the implication is that if jobs have

been lost, it’s because of NAFTA and not because of problems with

ambient air standards. I said that I’d have to look into some specifics on that. I can say one thing. We’re going to do a very good

job, Mr. Chairman, of documenting the businesses in Ohio who currently are very concerned about ozone and particulate matter in

terms of whether they’re going to be able to expand or whether it’s

going to limit their productivity. And we’ll share all of that information with you.

Mr. MCINTOSH. I appreciate that greatly.

Mr. KUCINICH. Thank you, Mr. Chairman. Thank you. Thank

you, Governor. It’s good to see you again.

Mr. MCINTOSH. We’ll stand in recess until 5 minutes after 1, at

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which point, if the other members of the panel are able to stay,

we’ll finish up here and then move on to our final panel. I appreciate all of you coming. Thank you very much.

[Recess.]

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Mr. MCINTOSH. The subcommittee will come to order. If I could

ask the remaining participants in our second panel to bear with us.

The staff is checking—we believe Representative Kucinich may

have a couple additional questions for you, but until he comes back,

what I’d like to do is go ahead and call the third panel. We may

call you back for those questions after we’ve heard from our third

panel of witnesses.

Mr. BRODSKY. Mr. Chairman, as a matter of procedure?

Mr. MCINTOSH. Yes?

Mr. BRODSKY. The panel may go—is this a large panel?

Mr. MCINTOSH. No. It shouldn’t—my fondest hope is that we’ll be

completely finished by 2 o’clock, if that helps you. OK. If I could

call forward Professor Schlesinger as well as Mr. Bertelsen. Thank

you. If you could both please rise.

[Witnesses sworn.]

Mr. MCINTOSH. Thank you. Please let the record show that both

witnesses answered in the affirmative. Our first witness on this

panel is Professor William Schlesinger of Duke University. Professor, thank you for coming, and please share with us your testimony.

STATEMENTS OF WILLIAM SCHLESINGER, PROFESSOR, DUKE

UNIVERSITY; AND BRUCE BERTELSEN, EXECUTIVE DIRECTOR, MANUFACTURERS OF EMISSIONS CONTROLS ASSOCIATION

Mr. SCHLESINGER. I’m glad to be here. And thank you for the opportunity to comment on the regulatory impact statements. First,

I’m an environmental chemist—sometimes they’re now called

biogeochemists—on the faculty of Duke University. Over the last

25 years or so, my scientific research has focused on human impacts on the environment. In contrast to much of the earlier testimony dealing with health impacts, I think you could describe my

research as dealing with environmental health. I worry about the

health of our ecosystems, particularly the chemical quality of nature.

My remarks today will focus on an analysis of the benefits that

might be anticipated with the revisions to the standards for ozone

and particulates. While I feel that both the impact statements provide a nice quantitative analysis of the human health effects, I believe that the documents significantly understate the benefits of

tighter emission standards to natural ecosystems, what I would call

the ecology of the environment. And that’s the crux of my message:

significantly understating the benefits to the health of natural ecosystems.

They are left in the category of unquantified welfare benefits in

these documents. I think they’re significant. And I’d like to outline

a few of those for you. As you may know, the tighter standards for

ozone require reductions in the emission of NOx—nitric oxide,

which is also called NOx. And I think it is less well known that

emissions of NOx, in and of themselves, will have benefits to natural ecosystems. One of those benefits comes from the fact that

NOx is a precursor not just to ozone, but to acid rain. And

when——

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Mr. MCINTOSH. Professor Schlesinger. I don’t mean to interrupt

you, but for my benefit, can you also tell us how the ozone standard

affects the NOx emissions, to draw that link so we keep—— Mr. SCHLESINGER. OK. Most ozone in the lower atmosphere is

formed by a reaction of NOx with volatile hydrocarbons in the atmosphere in sunlight. And there’s an ample source of volatile hydrocarbons from vegetation over much of the Eastern United

States. We supplement that with some emissions from industry.

Therefore, the level of NOx becomes critical at determining the rate

of the reaction and the amount of the reaction that occurs in sunlight. I would be the first to say that there has always been a level

of volatile carbons and a level of NOx in the environment. And the

Sun’s been shining. So, there’s been some level of ozone in the natural environment. And that varies region to region, of course.

But what humans have done is we’ve essentially doubled globally

the emission of NOx. And in the United States it has more than

doubled, because we’re a major industrial power. And that has increased the rate and the amount of the chemical reaction producing

tropospheric ozone in a large portion of the United States. I’ll get

back to NOx and ozone in a minute, because it ties into the acid

rain issue as well. NOx is a precursor to acid rain. NOx is also,

when it’s deposited, a source of what I would say is ‘‘excess’’ nitrogen deposition in the environment.

That’s increasingly becoming a problem both on land and in the

waterways. And I want to elaborate on that. But first acid rain. I

was surprised to hear Governor Voinovich say that there was no

evidence of transport from Midwest to Northeast of substances that

might contribute to air quality and, in particular, acid rain quality.

It seems to me that there is ample scientific evidence that emissions of sulfur dioxide and NOx in the Midwest are transported to

the Northeast.

When NOx is mixed with rain drops, it forms acidity in that

rain—nitric acid acidity—and rains out on those systems. In the

last 25 years, the Hubbard Brook Experimental Forest in New

Hampshire has shown very significant losses of calcium from its

soils. And those losses of calcium and elements like calcium—losses

of things like potassium and magnesium are well known too—the

losses of those elements from soils are well known to cause reductions in forest growth.

And I think that there’s really good scientific evidence of the

linkage of regional and distance transport to deposition, to leaching

of substances from soils, and to reduction of forest growth. In many

areas, for instance, the loss of calcium from soils has been associated with an increasing toxicity level of aluminum that’s reduced

the growth of spruce and some of the trees that Mr. Sanders probably has in his district in Vermont. Beyond acid rain, NOx generates tropospheric ozone by the process I described a minute ago.

That is transported regionally. And it is, over the eastern United

States, well in excess of what would be the background level, let’s

say, in 1700, before humans had such dramatic impacts on the

landscape. I think the regulatory impact statements do a nice job

quantifying the benefits that would accrue to agricultural production by reducing those ozone levels—that crops will grow better

with tighter standards. They don’t discuss the same for forests.

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And I find it particularly important that as we increasingly look

to healthy forests to take up some of the carbon dioxide emitted

from fossil fuel combustion, that this will not occur if we are simultaneously poisoning those forests with ozone and acid rain. We

need to realize that if we’re going to count on temperate forests to

take up some carbon dioxide and to slow global warning, they’ve

got to be healthy forests.

Jumping ahead a little bit in my testimony, I’d like to touch on

this nitrogen deposition problem. Excess nitrogen—and by that I

mean excess over the normal background levels that would be in

rain—makes its way to rivers and ground waters and causes and

contributes to what we call the eutrophication of those waters,

which can be defined scientifically as nutrient enrichment. Often in

waterways this leads to blooms of algae, to the loss of bottom water

oxygen, and to the death of fish and shellfish. And as we are able

to control that deposition, the water quality in bays and waterways

should improve.

Some cases in point, atmospheric nitrogen accounts about 25 percent of the run-off nitrogen in New England right now. It’s deposited from the atmosphere and makes its way to rivers and into waterways. Direct deposition from the atmosphere accounts for about

12 percent of the nitrogen input to Chesapeake Bay. A recent study

that I’ve just seen in the last week says that it accounts for 67 percent of the nitrogen input to Tampa Bay.

So, controlling NOx in the atmosphere would be a direct way to

reduce these excessive levels of nitrogen input into natural waterways, improve their water quality, and restore the fish and shellfish production in some of these areas. Realizing my time is nearly

up, I’d just like to summarize it. I think all of these are examples—

the acid rain example, the ozone production example, the loss of

species and loss of water quality in bays and estuaries—of how regional air pollution by ozone and particulates is seen over large

portions of the United States, and that stronger provisions of the

Clean Air Act would certainly help ameliorate those conditions.

And my basic message is that I think that these benefits—the

benefits that would be seen through the revisions of the Clean Air

Act—significantly understate benefits to natural ecosystems upon

which we all ultimately depend. Thank you.

[The prepared statement of Mr. Schlesinger follows:]

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Mr. MCINTOSH. Thank you very much, Professor. I appreciate

that testimony. Our final witness on this panel and of the hearing

is Mr. Bertelsen. I appreciate you coming by today and testifying

on these proposed standards.

Mr. BERTELSEN. Thank you very much, Mr. Chairman, and good

afternoon. My name is Bruce Bertelsen and I am the executive director of the Manufacturers of Emission Controls Association.

MECA is pleased to participate in today’s hearing on EPA’s proposed revision to the National Ambient Air Quality Standards for

particulate and ozone. Forums like today’s hearing provide a meaningful opportunity for the sharing of ideas and views from a variety

of perspectives on a matter of considerable interest and importance.

By way of introduction, MECA was founded in 1976 and is a national association of companies probably best known for their manufacture of mobil source emission controls. Its members include

leading manufacturers of a variety of emission control equipment

for automobiles, trucks, buses, non-road vehicles and engines, as

well as catalytic controls for selected stationary sources. These

companies, collectively, have decades of experience and a well-established track record in developing and manufacturing highly advanced, cost-effective emission control technology.

MECA supports EPA’s efforts to revise the standards for ozone

and PM in order to protect the public health. We will leave to the

health experts where that level should be. But certainly the process

of looking at it with an eye toward protecting the public health is

appropriate. And without question complying with more stringent

standards for ozone and PM will pose challenges. But we’re optimistic that those challenges can be met, and that the goal of clean,

healthy air can be achieved.

Emission control technology along with pollution prevention and

market-based approaches such as emission trading are available to

help make implementation cost-effective. The task currently undertaken by EPA is to set the standards for PM and ozone at levels

that are protective of the public health. Congress provided in the

Clean Air Act that establishment of the appropriate levels of the

standards be kept separate from the process of developing and implementation strategy to attain those standards. And as required

by Congress, EPA is to set the levels of the ozone and PM standards that are protective of the public health without basing its decision on cost of complying with those standards.

The costs of compliance will be considered and addressed during

the second stage as part of the implementation process. And at that

time, the relative cost-effectiveness of various compliance approaches will be paramount. EPA did examine the cost/benefits of

its proposal in the agency’s RIA for both ozone and PM. And we

certainly share EPA’s view that it’s very difficult to precisely predict future costs of compliance.

But one fact above all in the history of clean air compliance is

that today’s estimates of future control are often too high, and that

the tomorrow’s actual cost-effectiveness of controls will be better

than today’s estimates. Air pollution control technology and overall

compliance costs typically decline largely because markets, users,

technology suppliers have proven to be better at realizing innovative cost reductions than initially thought. Indeed we have learned

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over the 27 years since the 1970 Clean Air Act Amendments were

passed that when faced with tough challenges, American ingenuity

and a can-do spirit can produce the technology and other compliance options to get the job done while sustaining strong economic

growth.

The enormous success of the U.S. motor vehicle program is certainly an excellent example. And looking to the future and the possible need for NAAQS implementation strategies, a large inventory

of existing and developing technologies exist to provide greater

emission reductions from both stationary and mobile sources. I

highlighted some of the technologies our companies are working on

in our testimony, and I won’t reiterate that here.

Before closing, I would like to make a few comments regarding

the potential impacts of revising the standards for PM and ozone

on small business. Small businesses play a critical role in the economic health and well-being of this Nation. And the potential impacts of tighter PM and ozone NAAQS on these companies is extremely important. Having said this, we believe that the interests

of small business over the years have been, are being, and will be

carefully considered before any emission control reduction requirement is established.

Second, the compliance strategies that likely will emerge if the

standards are tightened will focus primarily on large emitters,

which typically are not small businesses. And finally, there are

suppliers of emission controls. A good example of which are companies that manufacture VOC controls, which are typically smaller

companies.

In closing, I’d like to say that we appreciate the opportunity to

participate, and thank the subcommittee for its efforts to provide

a forum for dialog on this important issue. In MECA’s view, EPA

has taken the proper course by its efforts to establish ozone and

PM standards which are truly protective of the public health. And

if those standards are revised, the U.S. air pollution control industry stands ready to do our part to help the United States achieve

its clean air objectives cost-effectively. Thank you very much.

[The prepared statement of Mr. Bertelsen follows:]

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Mr. MCINTOSH. Thank you for your testimony. Before I proceed

with questions, let me ask unanimous consent to put into the

record testimony that was submitted by Governor Engler and Governor Sunquist, although they were not able to come today. If we

could include their written statements in the record.

[The information referred to follows:]

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Mr. MCINTOSH. Let me ask both of you, if I might, if you could

comment on the following conclusions of the White House Council

of Economic Advisors in their comments to EPA’s regulatory impact

analysis, which I’ll ask unanimous consent we put the entire document that was supplied to us by OMB into the record.

[The information referred to follows:]

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Mr. MCINTOSH. ‘‘EPA’s regulatory impact analysis underestimates the true cost of the ozone program by an order of magnitude.

The cost of full attainment could be up to $60 billion annually. The

cost of ozone could dwarf any expected benefits, as listed in EPA’s

regulatory impact analysis, and it would be necessary to spend

from $30,000 to $80,000 per ton and not EPA’s estimated $3,000

to $10,000.’’ If you all could comment on that.

Mr. SCHLESINGER. I’m more of an expert on benefits, I think. I

could not confirm or deny that they’ve underestimated the cost. I

would say with some confidence, as an environmental scientist,

that they have underestimated the benefits to natural ecosystem.

Mr. MCINTOSH. OK. Thank you. Mr. Bertelsen.

Mr. BERTELSEN. The cost is always an issue of considerable debate. I think I would tend to agree that as difficult as it is to quantify costs, it’s probably more difficult to quantify benefits. But

there’s a lot of healthy disagreement about relative cost. I guess I

can’t comment directly on that statement. The observation I can

provide, based on experience that we’ve seen over the years, is that

typically EPA’s estimates tend to be a little higher than what turn

out to be the actual compliance costs. But with regard to the discussion of those two bodies, I really have nothing further we could

add.

Mr. MCINTOSH. Let me ask a slightly different question. Mr.

Bertelsen, this really goes to your testimony, but EPA’s analysis indicates that in many cases the standards may be infeasible to

achieve the actual new standard, and they have not really identified controls and actual mechanisms that could be used to achieve

those standards. Are you comfortable saying that, given current

technology, that we would be able to meet these standards in each

of the counties that would be in non-attainment?

Mr. BERTELSEN. Well, I think the way I would answer that question—because at this point, we’re not sure what the standard

would be, and in order to—once the standards are set, it’s going to

involve a fairly comprehensive compliance strategy, which is going

to involve a lot of things, of which technology will play, we hope,

an important and positive role. But I do think that looking to the

future, there are a large number of technologies that exist and

technologies that are coming along that will help reduce emissions—I’ll speak to my area, which is in the area of motor vehicle

emissions.

And, indeed, right now, EPA has a number of initiatives underway in the motor vehicle area. Just to cite a couple of examples,

in the heavy duty area, both on-highway and off-highway, very

comprehensive programs that have been proposed or are about to

be proposed for both highway vehicles and non-road engines. And,

actually, both of those regulatory initiatives were developed with

the cooperation of the engine manufacturers and, I guess, California Resources Board, as well as the State of California. So there

are things that are on the horizon that will help reduce emissions.

We think there are——

Mr. MCINTOSH. Are you saying those would be sufficient to meet

the new standards?

Mr. BERTELSEN. No. I’m saying we’re moving in the direction of

reducing emissions. I can’t say precisely that—I’m not expert

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enough to speak to every strategy. So I couldn’t answer that question.

Mr. MCINTOSH. One of the things that we found troubling with

EPA’s analysis is that they couldn’t point to a combination of strategies and actual implementation steps that would lead to compliance with the lower standards. And so you’ve got a situation where

you impose tremendous costs and consequences in these communities. For example, they’re limited on their ability to build new infrastructure highways under the current law without any prospect

that you’ll actually meet the standard that the EPA is proposing.

Mr. BERTELSEN. Could I perhaps try to shed some light using

some prior experience that might be helpful? Typically what happens is, it’s more typical with an emission standard—but when a

regulatory requirement is established, it creates a benchmark

which stimulates a lot of interest to develop technologies. And often

solutions that we aren’t even aware of today or that we would

guess would be implemented are developed. And that’s kind of the,

I guess, the wonder and the magic of the Clean Air Act.

Looking back to 1970, which is frankly before my time, I don’t

think the folks at the time had any concept of the types of technologies and advances and solutions that would come up—that

would be developed. But what happened was the challenge was put

in place to develop—the challenge was there to clean up the air.

And suppliers and manufacturers and others responded to the challenge. So no, I can’t say today that I have the menu of options for

meeting the standard. But what I would say is that based on prior

history, I’m optimistic that there’s a lot of people out there that

work very hard to come up with cost-effective solutions.

Mr. MCINTOSH. I’ll yield back the remainder of my time. Mr.

Sanders, do you have any questions for this panel?

Mr. SANDERS. I do. Thank you very much, Mr. Chairman. Gentlemen, I think you know that in the political world, some of us—not

me, but always the other guys—are prone to exaggerations. And

we’ve heard today that cows will now be wearing diapers. Probably

there will be no more agriculture in America if these regulations

are passed. The Midwest will not have any more jobs. I’m exaggerating their exaggerations. But let me start off—Mr. Bertelsen,

in the past it seems to me that whenever EPA or probably in any

State, environmental regulations have been proposed, we usually

hear the same type of response: the world will come to an end, if

not today, at least next year, nobody will be able to work, and so

forth and so on.

And sometimes in these arguments history certainly does not

prove them out. In 1990, for example, the Clean Air Working

Group—and that was a pro-industry group, as I understand it—estimated the cost to industry would be $51 to $91 billion a year

when, in fact, compliance costs are only about $22 billion a year.

I mean, that’s a lot of money, but it is, very significantly, between

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The electric utilities—again, we’re talking about the 1990 period—estimated that the cost of the acid rain provisions would be

between $1,000 to $1,500 per ton of sulfur dioxide, when, in fact,

it ended up only costing $100 a ton. And the Petroleum Marketers

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Association of America estimated the cost of installing vapor recovery hoses at three times the actual cost.

Could you give me some more examples, perhaps, of when costs

were overstated or when technological advances rose to the challenge of stricter standards? In other words, I think one of the

points that you make is when there are standards there, lo and behold: new technology.

Mr. BERTELSEN. Yes.

Mr. SANDERS. New creative processes.

Mr. BERTELSEN. I think I can give you a couple of examples on

the mobile source side. Just by way of introduction, to try to explain why this happens, one of the reasons—the question could be

asked, why is it that industry and even in some cases, EPA, overestimates the cost of compliance. And to give you sort of a very

simple illustration, at least in my view, why that happens: when

you’re looking at a future requirement, you say, ‘‘Well, now how do

I get there? How can I get there today? And perhaps that means

I can take technology A, technology B, technology C, put them all

together, and use all three of them. Then I’m pretty confident that

I’m going to get there.’’

And I’ll give you an example of this. But, in reality, as time

moves on, perhaps technology A is optimized. Perhaps it turns out

you only need technology A and B. Perhaps technology D comes

along. And let me give you a couple of examples. When EPA—and

this would probably be back around 1988–1989—was looking at the

costs of complying with the tighter hydrocarbon standards in the

Tier 1 standards, and the fact that the useful life requirements

were being expanded, the estimate they used, if I recall correctly,

was around $500. And that was based on the concept that perhaps

you would have to replace the catalytic converter after 50,000

miles.

That was one possible strategy that would get you there. And

what we’ve seen, of course, is that the vehicles that have come out

in 1994 and afterwards and meet the standards, in fact, do not require replacement converters. So, that’s one where you can see a

cost savings. Another example—right now there is a lot of discussion about the negotiations between the Northeast States and the

auto manufacturers to adopt a national LEV program, which is a

voluntary program that EPA has supported, when that program is

really based on a set of California standards—LEV standards.

When those standards were first adopted by California in 1990,

the estimates of complying with those standards, by some accounts,

was over $1,500. I think California now estimates that the incremental cost increase in meeting those standards is somewhere

around $150. I’m sure the auto manufacturers would debate that

it’s not as low as $150. But I think everyone would agree that directionally it has come down.

Mr. SANDERS. So what you’re suggesting is that when the Government adopts standards, lo and behold, very often industry is capable of developing sophisticated technology which ends up being

a lot more cost-effective than otherwise had been thought?

Mr. BERTELSEN. Yes. What happens is that you, basically, by setting the standard, you create an incentive. And it’s on the part of

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the regulated industry, but also on the part of those who are developing technologies to come up with cost-effective solutions.

Mr. SANDERS. Right.

Mr. BERTELSEN. And really the solutions that win—I’ll use the

motor vehicle example again—if you have competing technologies

as strategies, the one that’s going to prevail is going to be one, the

one that gets the job done; two, is the most cost-effective; and

three, has the least impact on the driving public.

And those are kind of the triple challenges when you’re developing a technology that you try to address. And it’s, again, it’s the

marketplace at work.

Mr. SANDERS. Let me interrupt you. I would like to ask Dr.

Schlesinger a question. Doctor, earlier I introduced some of the

non-monetized benefit categories. And I think you touched on that

issue as well. The issue is more complicated. And we all understand that. Who in God’s name has the foresight to be able to anticipate all of the costs or all of the benefits. I don’t know that anybody does. And we do the best that we can, I suppose, in trying

to guess. But are you saying that the proposed standards will not

only benefit human health, but will also help prevent acid rain and

will help promote plant and animal diversity, which is an issue of

great importance to the State of Vermont?

Mr. SCHLESINGER. No question about it. Any reduction in NOx

will reduce the level of acid rain in regions downwind of emission,

including Vermont and New Hampshire. Any reduction in the

emission of NOx will reduce the deposition of nitrogen to natural

ecosystems. Very nice sets of experiments show that added nitrogen reduces the diversity, both on land, where there’s some nice

work showing that added nitrogen significantly reduces plant species diversity as well as in waters and estuaries, where it reduces

the diversity and economic potential of fish and fisheries. So I

think those are very solid although non-monetized benefits that

would be realized.

Mr. SANDERS. Thank you.

Mr. MCINTOSH. Thank you, Mr. Sanders. Seeing no other members of the committee—and I want to say thank you to our final

panel for your input. And also thank you to the members of the

second panel who waited around. Mr. Kucinich indicated to me

that he had no additional questions at this point.

Mr. SANDERS. Let me just thank you, Mr. Chairman. I think this

was a well-done hearing and I think we all gained something from

it.

Mr. MCINTOSH. Well, thank you. I appreciate it. I do want to sincerely thank you and your staff for helping to put it together. I

thank Mildred Webber and Larisa Dobriansky and our staff for the

good work that they’ve done. It is only the beginning of our hearing, because we’re now going to be in recess until Wednesday, April

23, at 10:30 a.m., in room 2247, where we will hear from some of

the representatives of the U.S. Government on these same issues.

Thank you very much.

[Whereupon, at 2:30 p.m., the subcommittee recessed, to reconvene at 10:30 a.m., Wednesday, April 23, 1997.]

[Additional information submitted for the hearing record follows:]

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(303)

EPA’S PARTICULATE MATTER AND OZONE

RULEMAKING: IS EPA ABOVE THE LAW?

WEDNESDAY, APRIL 23, 1997

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,

NATURAL RESOURCES, AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:35 a.m., in room

2247, Rayburn House Office Building, Hon. David M. McIntosh

(chairman of the subcommittee) presiding.

Present: Representatives McIntosh, Sununu, Snowbarger, Barr,

Sanders, Tierney, Kanjorski, and Kucinich.

Ex officio present: Representative Waxman.

Staff present: Mildred Webber, staff director; Todd Gaziano, chief

counsel; J. Keith Ausbrook and Larisa Dobriansky, senior counsels;

Karen Barnes, professional staff member; Cindi Stamm, clerk; Phil

Barnett, minority chief counsel; and Elizabeth Mundinger, minority

counsel.

Mr. MCINTOSH. The Subcommittee on National Economic

Growth, Natural Resources, and Regulatory Affairs will come to

order for a continuation of our hearing from April 16th.

Ms. Browner, thank you for joining us. Go ahead and have a

seat.

Ms. BROWNER. We thought we were going to be sworn in.

Mr. MCINTOSH. We can do that. Usually, we go through opening

statements and then swear you in; but we will start out that way,

yes.

[Witnesses sworn.]

Mr. MCINTOSH. Let the record show that the witness answered

in the affirmative.

And I understand, Ms. Browner, you have a commitment at

12:30; so we will do our best to make sure there is plenty of time

for your testimony and questioning to be able to try to accommodate you.

Ms. BROWNER. We will make available whatever time the committee needs. I am more than happy to stay later if that is helpful

to the committee.

Mr. MCINTOSH. Thank you.

By unanimous consent, each side will have 10 minutes of opening

remarks; and the subcommittee clerk, Cindi Stamm, will be keeping time and will let me know as to how much we have on each

side.

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I understand, Bernie, in addition, at the end of the 5 minutes,

first round of 5-minute questions, we will have a 15-minute question and answer period that you and I will allocate back and forth.

Mr. SANDERS. Right.

Mr. MCINTOSH. Let me begin now with my opening statement.

The purpose of today’s hearing is to question several Clinton administration witnesses on whether EPA has engaged in an illegal

rulemaking procedure to impose burdensome, new standards for

particulate matter and ozone.

Let me be clear: I do believe that EPA’s proposal is a regulatory

fraud, that there may be a terrible price to pay in terms of human

health if EPA does not start over and follow the law. EPA’s violations of regulatory law throw the entire rulemaking into question.

The confusion and the litigation that is surely to follow will undermine the considerable progress that has been made to date to clean

the air.

We have heard testimony from communities that are currently

working hard to clean the air we breathe under the current standards, and I understand that they may be forced to put their clean

air programs on hold because of years of uncertainty and litigation

over the new standards. And, in the end, the court will have no

choice but to throw out these rules because of the illegal procedures

that are being followed.

With great reluctance, I have concluded that in developing these

standards, EPA has violated various Federal laws and Executive

orders as well as administrative procedures. Among the problems

are as follows.

EPA has failed to follow the Regulatory Flexibility Act. The

Agency refused to fully evaluate the impact of its proposed rules

on small businesses and small entities, despite a finding by the

controlling legal authority, the Small Business Administration,

that EPA is required to do so.

EPA has violated the Unfunded Mandates Reform Act. Specifically, evidence shows that EPA refused to conduct a complete costbenefit analysis or to select the most cost-effective option among

the reasonable alternatives to achieve the objectives of the Clean

Air Act.

EPA continues to refuse to obtain, examine or release the data

of the underlying key studies on which the Agency is relying, even

though the studies were funded with taxpayer money.

And EPA appears to have collaborated with OMB to impose a

gag order on other agencies’ written comments in the official record

for the proposed rules.

What is the consequence of these actions? Well, these laws have

been enacted by Congress and signed by President Clinton to assure that certain things happen: First, that the proposed rules actually do maximize protection to health and the environment; and

that good science is publicly available for all to see. Second, when

there are several alternatives, we pick the best one. And, third,

that the rights of all Americans be heard and are protected in the

process.

When EPA fails to follow these procedural laws and the objectives are not met, the result is that the health of Americans is

made worse by the regulations.

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Now, what are the alternatives to this rulemaking? It is important to note that there are clearly better investments that can be

made to promote public health. Eight billion dollars could save

three to four times as many women from breast cancer by paying

for mammograms. Or we could pay for more asthma research and

pay for asthma medicine for all the Nation’s asthma sufferers—not

just a fraction of 1 percent of those asthma patients that the Agency says it will help with this ineffective and illegal rulemaking.

In sum, America cannot breathe easier until EPA has fully complied with the law. I do believe that EPA’s proposal is a regulatory

fraud and that there may be a terrible price to pay in terms of

human health if the Agency does not start over and follow the law.

EPA’s violations of regulatory law throw the entire rulemaking into

question, and the confusion and litigation that will surely follow

will undermine the considerable progress that has been made to

date to clean the air.

As I mentioned earlier, communities that are currently working

hard to clean the air we breathe under the current standards may

be forced to put these programs on hold or those who don’t want

to see them go forward will gain an upper hand in getting them

to delay efforts to put new programs into place because of the uncertainty and litigation over the new standards. The courts, in the

end, will have no choice but to throw out these new rules because

of the illegal procedures.

We must do better to clean the air and ensure that these regulations are above question so that we can truly go forward in protecting the environment for all Americans.

[The prepared statement of Hon. David M. McIntosh follows:]

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Mr. MCINTOSH. Mr. Sanders.

Mr. SANDERS. Mr. Chairman, thank you very much. I think this

is going to be an interesting hearing. You and I have one or two

just tiny, minor disagreements. Basically, I disagree with everything you said.

Mr. Chairman, it seems to me that there are three basic issues

that we have to examine today.

No. 1, if we upgrade the standards regarding ozone and particulate matter, we would prevent an estimated 15,000 premature

deaths a year and 250,000 respiratory problems in children each

year. I repeat—let’s be clear about this—15,000 deaths and 250,000

respiratory problems. Some of these are very painful, frightening

problems for the kids.

Mr. Chairman, the second question that we have to ask is a very

simple one, probably the heart and soul of this whole debate: Has

the EPA done good science in coming up with their conclusions?

This is a difficult issue for many of us because we are not scientists

or experts in particulate matter, ozone or respiratory problems. We

have to rely on experts.

So the very simple question we have to ask ourselves is whether

this research and these conclusions are reliable. Have they been

done by reputable scientists? Are they based on peer review study?

Or is this work simply an effort by irresponsible, ill-trained extremists who are trying to frighten us and, for some unknown reason,

are trying to make life difficult for various elements of American

industry?

That is the most important question. I hope Ms. Browner will address that issue.

Now my understanding is—this is my conclusion—is that these

new EPA proposed standards were based on some 5,000 studies by

some of our best scientists, that there was widespread public input

and that these studies have all been peer reviewed and published

in independent scientific journals.

Furthermore, my understanding is that the relevant scientific

studies have been reviewed extensively by a group of independent

scientific advisors called the Clean Air Scientific Advisory Committee, CASAC, and that CASAC’s members concluded that the

EPA had done ‘‘an adequate scientific basis for regulatory decisions.’’ In fact, my understanding is that Carol Browner recently

stated, ‘‘This has been the most extensive scientific review and

public outreach process ever conducted by EPA for public health

standards,’’ and that the EPA reviewed, again, many thousands of

peer review studies. It sounds to me like we are in to serious

science.

So the first and most important question is, is the EPA’s work

scientifically valid? And, to me, it seems it is. It seems they did

what they were asked to do.

Now, the third issue, Mr. Chairman, is really a very simple one,

very simple philosophical issue, and that is, if the EPA and the

thousands of scientific studies are correct and if 15,000 people are

dying unnecessarily each year and if 250,000 children are being

made ill each year unnecessarily, then clearly, as Americans, as

human beings and people with a soul, we have got to conclude that

this is unsatisfactory, it is unacceptable and it has to end.

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Mr. Chairman, if there was some terrorist organization in this

country killing 40 people every day for an entire year, the American people would be outraged, the U.S. Congress would be outraged, and I can assure you that action would be taken immediately to stop the slaughter. And if over 600 children a year were

being hurt by these terrorists, believe you me the Congress would

act immediately.

Mr. Chairman, I am not aware of where in our Constitution or

in our laws we allow innocent people to be killed or injured. I am

not aware that certain individuals who may happen to own companies are allowed to cause so much pain and so much suffering.

I think the last point that we wanted to touch on—I am sure Ms.

Browner will get into it—is what her charge is. We are all concerned about finding cost-effective solutions to these problems, but

she is mandated by the U.S. Congress to give us an objective analysis of public health problems, and I believe that that is what she

has done and done well.

Thank you, Mr. Chairman.

Mr. MCINTOSH. Thank you, Mr. Sanders.

I understand that on the majority side we have 61⁄2 minutes left.

Let me just briefly use 30 seconds of that to say I, too, agree that

we have to do everything possible to help people who are suffering

from asthma and other consequences of dirty air. My greatest fear

is that, by not following the proper procedures, that those efforts

will be put on hold and, in fact, could go backward in this country.

Let me now yield to our vice chairman, Mr. Sununu, for his opening statement.

Mr. SUNUNU. Thank you, Mr. Chairman. Certainly I want to take

the time to thank the panelists for being here with us today.

I share the concerns that I think all the members of this subcommittee share and that is for the quality of life and the quality

of health that people in America can enjoy. Certainly, I share the

concern of setting standards for air quality that will measurably

improve our health and quality of life.

In doing so, I think we would agree as a community that these

same standards need to meet at least two principal objectives.

First, they have to have the greatest positive impact only the

health of our most vulnerable citizens, primarily the old and the

young; second, I think these standards need to be based on sound

scientific principles and data, as was emphasized earlier.

The first of these objectives, protecting health, is one of a personal nature in that I have several family members who are afflicted with the kinds of respiratory problems, asthma, that we will

hear about quite a bit today.

Second, my experience as an engineer reinforces the critical importance of sound scientific support for any new regulation or rule

that could affect every aspect of our daily lives.

In particular, I believe that the basis for such sound science

should address several questions: First, is the data that we base

our conclusions on accessible by all, open to the public and open to

review and evaluation? Second, have we included all the available

and pertinent studies in the review process and for evaluation?

And, finally, have our elected and appointed officials listened to the

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valued advice of experts, rather than simply pursue a political or

predetermined agenda or solution?

In summary, I feel that in pursuing a sound scientific basis for

regulation, we need to be open, we need to be fair, and we need

to listen to those who understand the issues and the scientific data

better than we may. These attributes are essential to a process

that ultimately should benefit our families and communities across

the country.

I hope that the discussion today will address these important

issues and others as well, and I look forward to hearing from our

panelists.

Mr. MCINTOSH. Thank you very much, Mr. Sununu.

Mr. Sanders.

Mr. SANDERS. Mr. Kucinich.

How much time do we have left?

The CLERK. The minority has 6 minutes.

Mr. KUCINICH. I will just need about a minute.

I want to say that I am particularly intrigued in the debate over

clean air to hear some of the novel solutions which those who are

attacking the EPA have for improving the health of the people in

this country. For example, when confronted with the difficulty that

some people may have in breathing if we do not have stronger air

quality standards, one official in Ohio stated that perhaps what we

need to do is provide more air conditioners for people.

Now, that is a novel way of looking at this, and certainly we

have many creative people taking part in this debate.

We also had someone testify before this committee who suggested

that maybe the asthmatics might simply use a bronchial dilator an

extra time a day when they are having the worst air quality. That,

too, is a novel way of looking at this.

Certainly, there are ways that the public can become involved in

protecting their own health. We in Congress have a responsibility

to protect the public health through creating laws which will do so.

I noticed there has been some upside-down thinking throughout

this debate, for example, saying that bronchial dilators ought to replace air quality standards and air conditioners ought to be used

instead of laws to protect the air. And I contend, Mr. Chairman

and members of this panel, that what is plaguing this Nation right

now is not the junk science which so falsely has been labeled to refute the EPA’s position, but I think what we are facing here is an

attempt to junk the rights of the American people to clean air.

So I am going to be listening very carefully as a former asthmatic, by the way. I suffered from asthma as a child, and I have

a particular sensitivity to this issue. On behalf of many asthmatics,

I am going to be listening to this debate with great interest. Maybe

if the air standards don’t work, maybe what we can do is get air

conditioners and bronchodilators and pass them around the country

for everyone. Either way, it is going to be great for the economy.

Mr. MCINTOSH. Thank you, Mr. Kucinich.

Let me turn now to Congressman Vince Snowbarger.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

Real quickly, I appreciate the panelists being here today and

thank the chairman for the time.

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My concerns today are going to be really focused on the small

business issues, particularly the Regulatory Flexibility Act and the

Small Business Regulatory Enforcement Act, SBREFA.

My main concern is that I don’t feel that EPA has done what it

needs to to comply with those acts. I feel like they have tried to

circumvent both of the acts. In specific, EPA has failed to convene

small business advocacy rule panels pursuant to SBREFA and

failed to prepare initial regulatory flexibility analysis when published in a proposed rule. I am concerned that that is going to have

an impact on the 26,000 small businesses in my district that have

already worked very hard to comply with the 1990 Clean Air Act

amendments, and I think it is unfair they have not had an opportunity as provided by Congress to impact these decisions.

I would like to insert into the record, Mr. Chairman, two resolutions that were adopted by the Kansas Legislature with regard to

proposed standards: Senate Concurrent Resolution 1608, which

urges EPA to continue studying the need for the changes in acts

and to approve changes only after a cost-benefit analysis and risk

assessment; and Senate Concurrent Resolution 1609, which was responding to the legislature’s concerns about the ozone transport assessment group.

Additionally, I would like to insert the comments provided by the

Kansas Department of Health and Environment, including their

preliminary analysis on the impact on Kansas.

Mr. Chairman, I would ask unanimous consent that they be submitted for the record.

Mr. MCINTOSH. Seeing no objection, they will be made part of the

record.

Mr. SNOWBARGER. Thank you for the time.

Mr. MCINTOSH. Thank you.

[The information referred to follows:]

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Mr. MCINTOSH. Cindi, could you report how much time each side

has?

The CLERK. The majority, 1 minute 45 seconds; minority, 4 minutes.

Mr. SANDERS. Mr. Kanjorski.

Mr. KANJORSKI. Thank you very much, Mr. Chairman.

First of all, I would like to congratulate EPA in meeting the tight

deadlines and difficulty with which they have been dealt with on

this particular issue. But I do want to express some concerns, particularly as this relates to the Commonwealth of Pennsylvania.

It seems to me as we promulgate new rules and regulations of

this sort we should really separate them into areas, not only the

promulgation of the rule and regulation but the implementation of

the rules and regulations. And those of us that live on the eastern

seaboard or get the prevailing winds from the west or from the

south, as the Commonwealth of Pennsylvania does, we seem to be

in a no-win situation.

The air coming into Pennsylvania from the west and from the

south is already dirtier than the standards provided by these regulations. If we were to carry and just allow that standard to exist,

it means Pennsylvania, for all intents and purposes, has to close

down economic development over the future period of time. That is

unacceptable.

It seems to me that we have to look at where this air comes from

and hold those States and those regions of the country more responsible; and we should go to the source of the pollution, rather

than the result of where the pollution ends.

The Commonwealth and the people of the Commonwealth are

willing to share their burden for clean air, and we want clean air

and want to perform exactly what EPA is trained to perform with

these standards. But it is in the spirit of equity for the Commonwealth and its citizens and its potential thwarting of its economic

growth in the future that we really have to pay attention to.

We can’t revitalize our urban centers and take people off welfare

if we can’t create jobs. We basically have laid down a policy here

that will say the Commonwealth of Pennsylvania can’t grow any

further, it can’t provide a better quality of living economically for

its citizens because it just can’t get into the game of economic competition.

Yet as I look to my colleague, the chairman from Indiana, many

of his plants are sending up the pollutions and putting up higher

stacks so the air doesn’t land in Indiana or Ohio but lands, in fact,

in Pennsylvania. My friend from Ohio also has the same problem.

The air pollution caused there by the generating plants are flowing

directly into Pennsylvania and not into Ohio, as a result of precautions previously taken by the industries in those States and the

regulations that allowed for the increase of the size of the air stack

and other such circumventions of good public policy.

I would suggest that the EPA should undertake a cooperative effort, that the States and the regions come together and perhaps

empower the Ozone Transport Commission to address such challenges as equity and economic development, and that we really sit

down and say, maybe as a national policy, that EPA regulations

have negative impacts on certain regions or certain States. If that

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be the case, certain other implementations of Federal policy should

be put into place to augment the deleterious effects of the air

standard quality on the economic development of a particular

area—and particularly the Commonwealth of Pennsylvania.

Other than that, I want to support the administration and the

EPA in implementing clean air standards. It is something we have

to get to and we will. I think fighting about the scientific studies

perhaps stretches the imagination. We can go on indefinitely studying, but we all have to recognize we have a very bad condition in

air that should be corrected.

However, it is vitally important that a broad national policy

going beyond EPA and perhaps as to economic policy for the Government as to where we put our assets and how and what type of

industry we encourage in these various regions that are negatively

impacted by these new standards should be undertaken.

[The prepared statement of Hon. Paul E. Kanjorski follows:]

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Mr. MCINTOSH. Thank you, Mr. Kanjorski.

Let me confirm, Cindi, a minute and three-quarters on our side?

The CLERK. One minute left on the minority.

Mr. SANDERS. I would suggest unanimous consent for one additional minute on either side.

Mr. MCINTOSH. Sure. I don’t know whether Bob will take it; but

for the remaining time on our side, I recognize Representative Barr

from Georgia.

Mr. BARR. Thank you, Mr. Chairman. I do have a statement that

I will read in just a moment.

I am intrigued by the ranking member’s and the Administrator’s

great concern for the children and their ability to breathe easier.

It was a hearing that I recall us having 2 years ago on Waco. Apparently, the most vulnerable among us at that point, the several

dozen men, women and children, yes, dozens of children, who were

gassed to death by our administration were not quite worthy of this

great concern. I just would hope that this concern will be a continuing one and something that will apply to children everywhere

in our country in all circumstances, not just those that we can

speak glowingly in theory about.

Mr. Chairman, I appreciate your holding this hearing for the

purpose of examining the legal problems surrounding the way in

which the EPA has gone about its rulemaking with regard to particulate matter in the ozone. Because so much is at stake in these

proceedings, it is extremely important that EPA’s rulemaking conform with legal requirements. Unfortunately, as you have pointed

out, EPA has committed numerous errors in its enthusiasm to saddle State and local governments and small businesses with new

and costly undertakings.

Among the most serious infirmities is that explained in a petition

filed with EPA last month to disqualify Administrator Browner for

prejudgment of these important matters. In that petition, Administrator Browner is quoted repeatedly as having made up her mind

to move ahead with finalizing the rules before the rules are finalized.

The entire purpose of rulemaking, of course, is to engage in a

fact-finding and deliberative process that conforms with the law,

that will culminate in conclusions fairly reached and defensible in

a court of law. Prejudging the results of such a process, as the Administrator appears to have repeatedly done, defeats the very idea

of sound rulemaking.

While prejudging the rulemaking proceeding is never advisable,

it is especially troublesome in this matter. As pointed out, for example, by Senators Byrd, Glenn, Ford, Rockefeller and Robb in a

letter to the Administrator just last month, compliance with this

$8.5 billion rule will impose another extremely costly and complex

layer on top of existing regulations in this area. These five Senators all urged the EPA to reaffirm current standards, conduct additional monitoring of particulate matter and related air quality

issues and allow our States to complete action on the ambitious

clean air standards that are already in place.

Yet rather than heed these warnings, Administrator Browner

has charged ahead of her own Agency’s obligation to consider the

technical, scientific and legal issues inherent in these proceedings,

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and declared that she will ‘‘not be swayed’’ by any evidence that

is contrary to moving ahead to finalize the proposed rules.

Mr. Chairman, I do not think anyone, including, most importantly, any judge, could be swayed that the Administrator has not

already made up her mind on this matter. I agree with the petitioners who seek her recusal from this proceeding; and if the EPA

continues to engage in the same administrative proceedings, I believe we in the Congress are duty-bound to retrieve the authority

which we have entrusted to it.

Thank you, Mr. Chairman.

Mr. MCINTOSH. Representative Sanders, I believe, for the remainder of your time?

Mr. SANDERS. Mr. Waxman. I believe we have 2 minutes.

The CLERK. Two minutes, sir.

Mr. WAXMAN. Thank you very much, Mr. Chairman.

I think it is peculiar to hear a Member of Congress talk about

how the administrators will not be swayed by contrary evidence,

before he has heard the testimony which may sway his decision on

this issue.

We heard some important testimony at our last hearing; and

while I would like to do things like stop the proliferation of handguns that kill our children, the witnesses at the last hearing told

us we can do something about the impact on asthmatic kids from

ozone and particulate matters that are now called safe but are not

safe because so many kids end up in the emergency room of a hospital when an asthmatic attack is triggered.

There is clearly a consensus among health experts and in the

medical community about the problems from particulate matter

and ozone. We heard from Rick Russman, a Republican State Senator from New Hampshire, who said these standards would spur

economic growth. We heard from Assemblyman Richard Brodsky

from New York, who talked about how benefits are understated

and that if we are to monetize and quantify the health and welfare

ecological benefits, the case for lowering the ozone and PM standards would be virtually impossible to dispute.

Dr. William Schlesinger an environmental chemist from Duke,

told us there are tremendous environmental benefits, not just to

human health, but forest reduction and acid rain and protection of

our coastal estuaries; and Bruce Bertelsen, a representative of the

Manufacturers of Emissions Control Association, which are the

companies that actually make the pollution control equipment, indicated that when the strategies are developed by EPA that the

costs are overestimated and often the small businesses that manufacture these small business devices help spur our economy.

There are a lot of reasons for the rule. I think there are a lot

of things to consider against the rule. EPA ought to be open to all

views. That is your job.

The chairman designated this hearing as EPA above the law. I

haven’t heard any reason to believe you are; but let me remind you,

as you consider your rulemaking, look at the health effects, look at

the reasons for changing the standards, look at the impact it is

going to have on our society and give us your best judgment. And

we will see if all the people that are telling us you are wrong will

be pressing us to do anything about it.

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Thank you, Mr. Chairman, for this chance to make these remarks.

I would like to ask unanimous consent to put my full statement

in the record.

Mr. MCINTOSH. Seeing no objection, certainly we will include the

full remarks into the record.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. MCINTOSH. Thank you, Ms. Browner, for waiting. I wanted

to let you and the other witnesses know, who will be sworn in

later, we are not singling you out in any way. It is a standard policy in our committee and subcommittee to swear in all of our witnesses.

Our first witness on this panel is the Administrator of EPA, Mrs.

Carol Browner, who really needs no further introduction. Thank

you for coming. Your entire written testimony will also be included

in the record. Feel free to summarize it or extrapolate from there

if you feel like it.

STATEMENT OF CAROL BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY

MARY D. NICHOLS, ASSISTANT ADMINISTRATOR, AIR AND

RADIATION; AND JONATHAN CANNON, GENERAL COUNSEL

Ms. BROWNER. Thank you, Mr. Chairman and members of the

subcommittee, for inviting me here to discuss the Environmental

Protection Agency’s proposed revisions to the national ambient air

quality standards for particulate matter and ozone, better known

as soot and smog.

Joining me today is Mary Nichols, the assistant administrator at

EPA for air and radiation; and John Cannon, the general counsel

to the Environmental Protection Agency.

Mr. Chairman, the title of this hearing asks a straightforward

question, so let me begin my testimony with a straightforward answer: EPA is doing precisely what the law, the Clean Air Act, tells

us to do, and that is, protect the health of the American people

above all else. EPA respects the law; EPA is abiding by the law;

EPA is guided by the law.

As you have correctly pointed out, Mr. Chairman, there are a

multitude of Federal laws, Executive orders, administrative procedures, bureaucratic directives, that must be regarded in the process. Let me be clear. It is a good process. It ensures that in the

end we know exactly what we might be getting the country into

when we consider revising the air quality standards.

But as important as any process is, let us remember that process

is not an end unto itself; it is designed to take us somewhere.

When the day is done, it has to leave us with the best public policy

to protect the health of the American people. That is what the law,

the Clean Air Act, requires us to do.

All of the requirements, procedures, directives, that we must follow when we consider setting or revising air quality standards, all

of them must be viewed in light of the Clean Air Act’s mandate

that, first and foremost, we do what we can to protect every American from the adverse health effects of breathing polluted air.

Born in a spirit of bipartisanship under President Nixon, amended and strengthened under President Carter and President Bush,

the broad mandate of the Clean Air Act is simple: Protect the public health first, and do it with an adequate margin of safety based

on the latest, best, and most reliable scientific evidence.

The law sets forth a specific procedure for periodic review of the

air standards. It lays out a process for determining what the best

available science is. It requires EPA to obtain outside, independent

review by leading scientists from academia, research institutes,

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public health organizations, and industry. It obligates us to consider comments from anyone who wants to weigh in on proposed

revisions. And Congress wisely decided to require this review every

5 years to ensure that public health protections are, in fact, based

on the best available current science.

Finally, if the science warrants a revision in the standards, the

law then sets forth a reasonable and rational procedure for implementation and ensuring that that implementation is carried out in

the most common sense, cost-effective way over a very lengthy

phase-in period.

That said, Mr. Chairman, let me reiterate, the EPA has gone to

extraordinary lengths to adhere to these provisions of the law. In

fact, I think it is safe to say in this particular case, EPA has undertaken the most extensive scientific review and public outreach

process ever conducted for a public health standard.

Mr. Chairman, this is not, as you have stated, an irresponsible

rush to judgment; it is a multiyear, carefully managed process. Our

review of particulate matter has been conducted over the better

part of the past decade. It has been two decades since a thorough

review of the ozone standard was completed. We have considered

all of the latest, best scientific evidence and submitted it to an

independent review, some 250 studies on ozone and PM, all of it

published, all of it peer reviewed, all of it fully debated; literally,

peer review of peer review of peer review.

The overwhelming body of independently reviewed evidence has

told us that the current standards for smog and soot are not sufficient to protect the public’s health with an adequate margin of

safety. That is why, in accordance with the Clean Air Act, EPA has

proposed to tighten these standards.

Now, it is important to remember that the process has not been

fully played out. These are only proposed standards. No final decision has been made. We are still analyzing and evaluating the extensive public comment we received, thousands upon thousands of

letters, e-mails, phone calls, to a toll-free hot line.

But let me assure the committee that, at the end of the line,

there will be a decision to revise or not to revise. That is what the

Clean Air Act promised the American people every 5 years, and

that is what we will do.

Mr. Chairman, I deeply appreciate your specific concerns and

those of other members of this subcommittee and the Congress

about EPA’s compliance with a host of other laws and directives

and the process of reviewing the public health air standards. We

have worked very hard to address those concerns.

Specifically, we have taken significant measures to expand the

advisory role of small businesses and other small entities in the

process of setting and implementing any revised standard, if indeed

the decision is made to revise the standards, while respecting the

critical role State and local governments must play in ultimately

meeting the standards.

We have, as you know, Mr. Chairman, submitted these proposed

standards to an extensive and ongoing and often spirited interagency review process, and, for informational purposes, we have

carefully assessed the projected costs and benefits of these proposals.

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In fact, the Clean Air Act says that EPA cannot consider the cost

to industry of reducing their pollution of the public’s air in the

standard-setting stage of the process. The law says we have to go

to where the science takes us. We have to put the public health

first. We have to save consideration of cost-benefit analyses for the

implementation phase.

And on that note, Mr. Chairman, we take very seriously our responsibility to work with the States, local governments, businesses

large and small, to find the most common-sense, cost-effective ways

to implement any revisions to the air standards if in the end revisions are, in fact, adopted.

Mr. Chairman, one of the primary intentions of the Clean Air Act

is truth in Government. The act is designed specifically to prevent

us from ever getting to a point where the Government tells Americans their air is healthy to breathe when, in fact, it is not. That

is why the law puts the public health above all else.

Have we reached the point where, for the first time over the successful 26-year history of the Clean Air Act, Americans would elevate other concerns above their own health, the health of their children? That, Mr. Chairman, is for Congress to ultimately decide. In

the meantime, EPA will adhere to the law.

Thank you, Mr. Chairman. I am more than happy to answer any

questions.

[The prepared statement of Ms. Browner follows:]

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Mr. MCINTOSH. Thank you very much, Administrator Browner.

Now, I think all of us agree that we wanted to have the best public policy and the process should lead to that. But the process is

also designed to ensure that all participants and all Americans

have certain rights to have their views considered.

One of the key changes that Congress made last year in the regulatory process and in the Clean Air Act effectively was the Regulatory Flexibility Act and the Small Business Regulatory Enforcement and Fairness Act, sometimes referred to as SBREFA.

It is my understanding that in the Federal Register notice that

EPA published on December 13th, they indicate that they do not

believe the proposed air quality standards are subject to those requirements since the standards, in and of themselves, do not require small entities to comply with any rulemaking.

In other words, the Agency seems to argue that State regulations

implementing the quality standards might establish requirements

applicable to small entities, but the standard itself would not.

One of my colleagues, Mr. Snowbarger, pointed out to me the

other day this is somewhat like saying that although the IRS

issues regulations, and we are all required to file tax returns, we

are not really affected until we start making money. I think all of

us realize the absurdity of that type of logic.

Now, in a letter dated November 18, 1996, the Clinton administration Small Business Administration—and I would like to submit

the letter to the record—wrote to you, Jere Glover, who is the chief

counsel for advocacy, pointed out in this letter, on page 2, that

SBREFA does apply to this rulemaking.

How can you say that EPA could not conduct a regulatory flexibility analysis when your own administration’s Small Business Administration says you can and you must?

Ms. BROWNER. Obviously, within an administration, each individual agency and department has a responsibility to review the

laws, to review Executive orders, to review guidances, and make an

appropriate determination from their perspective.

There is an OMB process—and I know Ms. Sally Katzen will be

testifying later as to that process—where, appropriately, these kind

of issues are raised and discussed.

At the conclusion of that process, it was the judgment of the Office of Management and Budget to clear EPA’s proposed rule for

public comment, and that is where we now find ourselves in the

process, taking extensive public comment and analyzing that public

comment.

Mr. MCINTOSH. In spite of the serious risk that by not following

the legal advice of the controlling agency, the Small Business Administration, that if the rulemaking went forward without that impact analysis on small business and small towns, that it would be

subject to a challenge in court?

Ms. BROWNER. We don’t doubt that there will be lots of people,

some from industry and other places, who will no doubt challenge

whatever decision we ultimately make, whether that is a decision

to retain the current standards or to strengthen the current standards to provide additional public health protections. I don’t doubt

this will find itself in court, as do many of the decisions I make

on behalf of the American people and their health protection.

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Mr. MCINTOSH. By not following this new process, I am very worried that that will exacerbate that problem and further delay efforts to clean the air.

Now, one way EPA could ensure that the Small Business Regulatory Enforcement Act is not a problem would be to exempt small

entities from the implementing control measures in its standards.

Now, are you prepared to commit to that type of exemption?

Ms. BROWNER. If I might just step back for a moment, Mr. Chairman, this is obviously an important area. If I might explain to the

members of the committee, I know you are intimately familiar with

these statutes, but perhaps for the other Members, if I might just

explain what the various components of the law direct EPA to do,

perhaps that would be helpful.

Mr. MCINTOSH. Certainly. I didn’t hear an answer to my question.

Ms. BROWNER. I wanted to explain, and then people could perhaps understand why, as it is frequently the case when you deal

with complex issues, they don’t lend themselves to yes and no answers. I am more than happy to explain what the law says.

Mr. MCINTOSH. Go ahead and explain the law. But I would like

an answer. Go ahead with your explanation.

Ms. BROWNER. The Regulatory Flexibility Act, which has been on

the books, I think, since 1980, says that a review of options must

be undertaken by an agency in adopting a particular regulation unless no significant economic impact on a substantial number of

small entities occurs.

What we are doing and taking comment on right now and considering—and, again, we have not made a final decision—is whether

or not, under the public health provisions of the Clean Air Act, the

national ambient air quality standards for ozone and fine particles

should be changed. When that decision is ultimately made——

Mr. MCINTOSH. When the decisions are made——

Ms. BROWNER. We haven’t made any decisions.

Mr. MCINTOSH. No; in the past when EPA made similar decisions, didn’t they conduct a Regulatory Flexibility Act analysis?

Ms. BROWNER. Not within the prescriptions of the 1980 act, no.

There are analyses that are done.

Mr. MCINTOSH. My understanding is, they did, and they included

it in part of the rulemaking record.

Ms. BROWNER. No. If I might, please, explain what the Clean Air

Act says, I think it could be helpful.

Mr. MCINTOSH. Certainly.

Ms. BROWNER. Thank you. The Clean Air Act, since its original

passage, has required EPA to review six public health air standards every 5 years. That is the section of the act, section 109,

which we are now engaged in and we seek public comment on.

When a final decision is made, if that final decision is to change

the current standards to strengthen the public health protections,

there then will flow a very lengthy process whereby each State—

not EPA—each State will develop a plan as to how best to reduce

pollution in their State.

A final decision on whether or not to change the current public

health standards for soot and smog does not, in and of itself, reVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00393 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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quire any business, small or large, to take any step. That all comes

after individual States design individual programs.

That is why this section of the Clean Air Act, we believe, is not

subject to the requirements of the Regulatory Flexibility Act. We

cannot tell you today what any individual State will decide in

terms of industry or business.

Mr. MCINTOSH. I have to tell you, I find that extremely disingenuous, because in your own rulemaking you point out there will be

additional areas that will be put into nonattainment and that that

automatically requires them to meet standards that are already

put into place by EPA. So I think you know there will be businesses affected by that change in status in their communities.

Ms. BROWNER. They will have to plan. There is nothing in the

proposal that specifically requires any small business, any large industry, to change what they are doing today. The proposal, and

what we take public comment on, is where to protect the public’s

health.

Mr. MCINTOSH. As I explained earlier, there is nothing in the

IRS regulation that requires you to take action until you start

making money. But when you start making money, you know you

are going to be affected by it. The same thing with these regulations.

My time has expired, but let me just press you, because I do

think it is important: Are you prepared to make exemptions for

small business in those implementation regulations?

Ms. BROWNER. Mr. Chairman, the implementation is the responsibility of the States through an implementation plan. They will

make that decision.

Mr. MCINTOSH. Except you know that EPA issues regulations

that limit the States’ ability to adopt those plans.

Ms. BROWNER. We do not issue regulations. We will issue guidance. We are in discussions with States, with small businesses, if

the standards should be strengthened, as to what those guidances

would be, but we do not issue regulations. The individual States

decide.

Mr. MCINTOSH. At this point you are not prepared to grant an

exemption for small entities?

Ms. BROWNER. Mr. Chairman, if you don’t like——

Mr. MCINTOSH. The answer is yes or no?

Ms. BROWNER. No, it is not a yes or no answer because it is not

my authority, it is the Governor’s authority and if you don’t

like——

Mr. MCINTOSH. But you are going to issue the guidance. In that

guidance, will you give guidance to exempt small businesses and

small entities? I think it is clear you are not going to say yes, because you are not prepared to do that.

Ms. BROWNER. No, Mr. Chairman, in the guidance, we can examine all kinds of options in terms of where States may find the most

cost-effective ways of reducing pollution. But at the end of the

day—and this is extremely clear—it is the Governor who decides

in an individual State how best to reduce pollution. And if you

don’t like that, then the problems are with the Clean Air Act, not

with me.

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Mr. MCINTOSH. The Governors, and you know, in addition to the

regulations and guidance EPA issues, that EPA must sign off on

those State implementation plans, and if you adopt the policy that

you are not going to approve those State implementation plans, if

they exempt small entities, the States are not going to be able to

do that.

Ms. BROWNER. That is not our prerogative under the law. It is

not our prerogative under the law.

Mr. MCINTOSH. You are telling me that EPA has no sign-off authority for State implementation plans?

Ms. BROWNER. You just said if we adopt guidance saying we

won’t accept a plan, that doesn’t impose reduction requirements on

small businesses. That is not our prerogative.

Mr. MCINTOSH. No, no. It is your prerogative to sign off on those

State implementation plans.

Ms. BROWNER. The test that we are allowed to apply to a State

implementation plan is very simple: Does it, taken in its entirety,

achieve the pollution reductions necessary to protect the public’s

health? That is what it is.

Mr. MCINTOSH. At this point you are not willing to state that you

will grant exemptions for small businesses and small entities in applying that standard?

Ms. BROWNER. If a State makes that choice—and I think many

will make that choice—we will certainly sign off of it, if their plan

guarantees the public health protections that have been promised

at the end of this process, if it is our decision to change the current

standards.

Mr. MCINTOSH. So basically no, you are not willing to exempt

small entities?

Ms. BROWNER. No, Mr. Chairman, I didn’t say no, and I wanted

the record to reflect I didn’t say no. I said very clearly, if the State

brings us a plan, it is their choice to exempt small businesses, then

we will support that if their plan achieves a level of public health

protection.

Mr. MCINTOSH. My time has expired. I appreciate the committee

indulging me.

Mr. SANDERS. Mr. Chairman, I would appreciate it if we could

have as much time as you had.

Mr. MCINTOSH. Sure. Let’s keep going on the 5-minute. If you

need more time to pursue a line of questioning, we will be able to

grant it to you.

Mr. SANDERS. As they say in basketball, that was a long 5 minutes.

Ms. Browner, we have heard this morning use of the words

‘‘sham’’ and ‘‘fraud’’ to describe the process that you underwent.

Those are pretty strong words. But let me ask you a question: I

know Mr. McIntosh is concerned you follow the law, and so am I.

So my question is the following.

Based on the Clean Air Act today, if the scientific community

came to you and said, EPA Administrator, there are some 15,000

people in this country who are dying prematurely, there are some

250,000 people, mostly children, who are suffering from lung problems as a result of air pollution, and, in fact, if you did not act to

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protect the health of those people, would you be in violation of the

law?

Ms. BROWNER. The law has promised since its inception 27 years

ago that the public’s health be protected with an adequate margin

of safety based on best available science. That is what it has promised, and that is what we are seeking to do at this point.

Mr. SANDERS. Are you suggesting an affirmative to what I am

saying?

Ms. BROWNER. Yes.

Mr. SANDERS. In other words, if somebody comes to you and says

people are dying all over this country and children are getting sick,

and if you did nothing, you would be—as I understand it and read

the law, you would be derelict in your duties.

Ms. BROWNER. This is why we have made a proposal to the

American people; this is why we are taking comments from the

American people on whether or not the current standards for soot

and smog should be tightened.

Mr. SANDERS. Very importantly, again, understanding that we

have heard this morning the use of the word ‘‘fraud’’ and the use

of the word ‘‘sham,’’ and I am glad that we have great scientists

up here, I myself had trouble getting through biology in college, but

it is good we do know we have scientists that know a great deal

about ozone and respiratory problems on the committee.

But I would like to ask you, notwithstanding that, have you gotten good scientific advice? Did you pick up these guys in the basement of the EPA building? You sit in a corner and write out rules

in order to hurt American industry? Is that what you did?

Ms. BROWNER. No.

Mr. SANDERS. Nor in fact can you defend the scientific work that

went into your coming up with your regulations?

Ms. BROWNER. The process envisioned by the Clean Air Act is an

inclusive, broad, comprehensive process, and we have done more

than adhere to that.

This process has been ongoing in terms of an external scientific

peer review panel, the Clean Air Science Advisory Committee, for

the better part of 4 years. These are individuals, not EPA scientists; these are individuals from industry, from academic institutions, who have given of their time to review all of the relevant

published, peer-reviewed scientific analysis and then provide to us

their judgments on where they find the current best available

science to be.

Mr. SANDERS. So despite the words ‘‘fraud’’ and ‘‘sham,’’ am I correct in understanding that what you are telling us is, you have assembled some of the best scientific minds in the country who know

a great deal about this issue, maybe even more than some of us

in Congress, and that they have been supportive of your efforts to

improve air standards?

Ms. BROWNER. Yes, that is correct. Congressman Sanders, there

have never been, for any decision that I am aware of made by the

U.S. Government to protect the American people’s health, 250 peerreviewed published studies. That is what we have here, 250 peerreviewed, published in the leading scientific journals. This is not

one or two or three.

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This is not EPA scientists doing some work. These are the preeminent scientists in the country engaged in 10, 15, 20 years of scientific study and analysis that has been reviewed by other scientists. It is then published. That is then reviewed again.

Mr. SANDERS. What you are saying is that the work that you

have done is based on a broad consensus of the best scientific

minds in the country?

Ms. BROWNER. Yes.

Mr. SANDERS. OK. Ms. Browner, Mr. Kanjorski a few moments

ago raised an issue of concern, and being from the Northeast, I

share his concerns. My constituents in Vermont are breathing the

secondhand smoke of big industry in the Midwest, and this is not

a minor problem. In fact there is one plant in Ohio that emits more

nitrogen oxide, a precursor to ozone, than all of the utility plants

in New Jersey, and five times the annual emission of the District

of Columbia.

In fact, in 1995, as I understand it, the State of Ohio emitted

2,500 times the nitrogen oxide that my State of Vermont did, and

yet we are obliged, as the people in Pennsylvania are obliged, to

breathe that pollution. This is a serious problem. How do you propose that we address that problem?

Ms. BROWNER. We and the States recognize there are regional

transport issues that, in fact, pollution from one State may have

very real public health consequences in another State.

We have been working, as Mr. Kanjorski suggested, through a

process involving literally all of the States east of the Mississippi

to look at how best to provide a level of protection for all of the people and to look out where we need to get, from the States’ perspectives, the greatest amount of reductions to protect not just their

citizens but citizens in your State, Pennsylvania, New Hampshire,

Vermont, et cetera. There is a process for doing just that, and we

are engaged in it right now. It is the Ozone Transport Advisory

Group made up of representatives from individual States.

Mr. SANDERS. Let me just conclude my line of questioning by

saying I think there appears to be a bit of confusion as to what the

law states. My understanding—and correct me if I am wrong, Ms.

Browner—is your obligation, by law, is to protect the public health

of the American people and that the best scientific minds in America have concluded that there is a very serious health problem, and

that is how you have gone through it. Is that correct?

Ms. BROWNER. Right. That is why we have proposed and are taking comment on whether or not to change the current public health

standards, because the science, large amounts of it, show that far

too many people, particularly our most vulnerable—our seniors, our

children—are at risk under the current levels of pollution.

Mr. SANDERS. Second of all, in this particular stage in the process, we are not talking about implementation, so it would be incorrect to be talking about cows wearing diapers and the destruction

of all industry in the Midwest and so forth and so on. That is not

what we are talking about and not what you are obliged to talk

about at this particular point.

Ms. BROWNER. The Clean Air Act, I think very wisely, since its

inception has divided the public health considerations and process

from the implementation side. And I think equally important to reVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00397 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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member, the Clean Air Act very wisely invested in the States the

responsibility for deciding how, within their boundaries, to reduce

their air pollution.

Mr. SANDERS. With a great deal of flexibility?

Ms. BROWNER. With a great deal of flexibility.

Mr. SANDERS. Thank you very much, Mr. Chairman.

Mr. MCINTOSH. Thank you, Mr. Sanders.

Let me turn now to Mr. Snowbarger for 5 minutes of questioning.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

First of all, I find it very confusing, in answer to the chairman’s

question, that you don’t think you are required to file these analyses under the Regulatory Flexibility Act. I am reading from the

statute: When an agency promulgates a final rule, after being required by law to publish a general notice of proposed rulemaking,

the Agency shall prepare a final regulatory flexibility analysis. And

then it goes into what it needs to contain.

So I am a little confused about why you don’t think you need to

file those analyses.

Let me go to a different matter, though. In some of the information that has come to the committee from EPA, it is my understanding that you have indicated that, first of all, you don’t need

to comply with these because small business or small entities are

not affected by the act.

So kind of out of one side of your mouth, you are saying the

agency can’t perform the analysis contemplated by the act. Out of

the other side of your mouth, though, you are saying through a prepared draft of the regulatory impact analysis to generally inform

the public about the potential costs and benefits that may result

from its proposed revisions, and you look at the proposed drafts for

both particulate matter and for the ozone.

And the charts start talking about small businesses. They talk

about how they are going to be affected, and they talk about the

fact that small businesses might have an impact of up to 3 percent.

I think a lot of these questions have been raised by the Small

Business Advisory Committee through the letter that the chairman

introduced into the record.

If you can do an analysis on that basis, doesn’t it show that EPA

can, in fact, conduct a regulatory flexibility analysis as required by

law?

Ms. BROWNER. There are two different issues here—if I might

step back. Under the Small Business Regulatory Enforcement Act,

SBREFA, there is a provision that allows an agency to certify that

there is no significant economic impact on a substantial number of

small entities.

Mr. SNOWBARGER. And you made that certification.

Ms. BROWNER. We made that certification. We base that certification on the fact that we cannot, because it falls to the States to

write the implementation plans, tell anybody with absolute certainty what might be required of industry. Moreover, in adopting

a final public health standard, whatever that might be—and,

again, we have not made a final decision. There are no requirements placed on any industry, any small entity, any small business, per se.

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A regulatory impact analysis is required under an Executive

order signed by the President. The purpose of a regulatory impact

analysis is to evaluate broadly both potential benefits and potential

costs. We are—and as you make reference to, we have made public

a draft regulatory impact analysis; and we will finalize that as we

make a final decision on whether or not to tighten the public

health standards.

However, it is very important to understand that the Executive

order’s provisions requiring us to do an RIA, a Regulatory Impact

Analysis, does not trump, if you will, the Clean Air Act requirement that this be a decision based on public health and not cost

considerations. This whole issue of whether or not the Clean Air

Act should require cost to be taken into account in setting public

health standards has been debated in this body over the last 27

years.

Mr. SNOWBARGER. I can appreciate all the background information, but I also appreciate the fact I am losing my time and not getting an answer to my question.

You indicated, very early on, we ought to be taking a commonsense approach to all this; and, thus far, I am still looking for it,

the common sense, that is.

Let me go to something that seems inconsistent here. You indicated that you certified it didn’t affect small business—these proposed regulations didn’t affect small business. Why didn’t you certify the same thing when you were dealing with the sulfur dioxide

proposal in 1996? There was no certification that that did not have

an impact on small business.

Ms. BROWNER. Are you referring to an acts consideration?

Mr. SNOWBARGER. Yes. To me, it is a very analogous situation;

and yet you have taken totally opposite—— Ms. BROWNER. We didn’t propose to change the current standard

in that case. We have maintained the existing standard. There is

no proposal to change that standard put forward to the American

people.

Mr. SNOWBARGER. My understanding is that there was a proposal for change. It did not go into effect. But a reproposal—— Ms. BROWNER. No. We have not changed that standard. That is

a fact. The current standard has been in existence now since—for

an extended period of time. We did not make a proposal to change

that standard.

Mr. SNOWBARGER. My understanding, in 1996, there was a reproposal.

Ms. BROWNER. We are more than happy to look at the document,

but we published a notice that we would be maintaining——

Mr. SNOWBARGER. Let me followup on something if I could, Mr.

Chairman, real quickly; and I will end my questioning with this.

You stated something that is of a great deal of concern to me.

I thought I heard you say—and you can answer both questions at

once. I thought I heard you say that the Clean Air Act is not

trumped by SBREFA.

Ms. BROWNER. No, I didn’t say that. I said by the Executive order

requiring a Regulatory Impact Analysis.

Mr. SNOWBARGER. Then give me your legal analysis of which one

of the two statutes that I just talked about, the Clean Air Act or

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SBREFA or, for that matter, the Regulatory Flexibility Act, which

one of those has priority in the EPA.

Ms. BROWNER. The Regulatory Flexibility Act did envision there

could be, if you will, a conflict between two statutes and provides

for a determination as to whether or not there would be a significant impact on a substantial number of small entities; and we have

certified in the proposal that there is not because this is a public

health standard. It is not the implementation phase. It is in the

public health phase of the Clear Air Act which we have made this

proposal and now take public comment on.

Mr. SNOWBARGER. Mr. Chairman, my time is up; but I do have

some followup questions for a later time.

Ms. BROWNER. Mr. Chairman, if I might just clarify—and we are

more than happy to look at the document that the Member has.

In 1996—on May 22, 1996, we took a final action on sulfur dioxide. It was no revision of the standard. In 1994—in November

1994, there was a reproposal on three alternatives. Perhaps you

are referring to a 1994 action, not a 1996 action.

Mr. SNOWBARGER. Answer it for 1994 then.

Ms. BROWNER. We would be more than happy to look at that and

work with you.

Mr. SNOWBARGER. Why wasn’t there a certification similar—I

mean, we are going through a similar process, it seems, than we

were in 1994; and there wasn’t a certification about the small business at that point.

Mr. MCINTOSH. Maybe we can come back to this after the minority’s round of questioning; but I think what the question is going

to is the absence of a certification, which, in this case, was given,

that it would not apply. But, it is now Mr. Kucinich’s time.

Mr. KUCINICH. Thank you very much, Mr. Chairman and Mr.

Sanders.

I would like to go back to the Administrator’s last discussion

with Representative Sanders and, in particular, the science, which

seems to be—so much of the debate surrounds this issue of science.

Where are all these studies that have been done that support the

EPA’s proposal? I mean, do you have such studies?

Ms. BROWNER. The proposal that we take comment on is based

on 250 peer-reviewed, published scientific studies. We would be

more than happy to provide for the record—this is a bibliography

of each of those public peer-reviewed studies.

Mr. KUCINICH. Without objection, Mr. Chairman.

Mr. MCINTOSH. We will gladly put that into the record. Thank

you.

Ms. BROWNER. We are more than happy to give you all the studies, if that would be further helpful to you. There are boxes.

Mr. MCINTOSH. We may have some questions on that coming up,

yes.

Mr. KUCINICH. May I suggest that, since we are in debate over

the issue of the science, I am one Member who would like to see

some of these boxes so that we can keep this discussion focused on

facts and not conjecture. Peer review studies mean something to

me, and I would like to have a chance to see them.

Now there have been—of the objections that have been filed to

your proposed rules, have you had a similar body of information,

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peer review studies published or offered or proffered to the EPA

which would categorically dismiss this body of knowledge, the bibliography of which you are submitting for this record?

Ms. BROWNER. No, we have not had another 250 studies submitted suggesting otherwise, in terms of the public health impact.

Maybe I should explain the process a little bit. We have taken

public comment, as we do on any proposal. We are reviewing the

public comments. We have not completed the review of the public

comments. They are quite extensive. We take this process very,

very seriously.

It may be that in those comments there are some studies which

were completed after the panels concluded their review of existing

published science. Obviously, if those are peer-reviewed, published

studies, they are important and should be considered in reaching

a final judgment; and we would certainly do that.

At this point in time, we know of some, but not any large number. We are determining whether or not they were, in fact, subjected to rigorous scientific peer review, methodology, et cetera.

Mr. KUCINICH. Mr. Chairman, it is a remarkable moment if we

can definitively determine that 250 studies which have been presented in support of these proposed rules are, in fact, junk and

ought to be cast aside. Because, if that happens, that means that

we have thousands of scientists out there who are misinforming the

American people about this critical public policy; and if that is happening, certainly the American people have a right to know.

Ms. BROWNER. These are not scientists who work for EPA. These

are scientists who have been engaged in these kinds of studies for

the better part of their professional careers, in many instances,

many work for leading institutions and industry across the country.

You know, this discussion of, quote, junk science, with all due respect, I don’t know that it helps the American public engage in an

honest consideration of the proposals that we have put before

them. There was lots of opportunity while the scientific—Clean Air

Scientific Advisory Committee was meeting for anybody from industry or anywhere, academic institutions, to come forward and

say, hey, in those 250, guess what, those three are junk. They

weren’t really peer reviewed. They weren’t really published. It

didn’t happen.

All of these studies were considered, reconsidered and reconsidered; and they are the science—the best available current science

that forms the proposal we have made to the American people.

Mr. KUCINICH. On a personal note here, Mr. Chairman, I had the

opportunity to go to a pretty good university, Case Western Reserve in Cleveland; and all of us have different backgrounds. Mine

are in communication, science. I spent about a year working on a

master’s thesis, and my whole career depended on how the faculty

would judge that thesis. I suppose after the time that I spent, if

that was viewed as junk, I would feel pretty bad about it. Not only

that, but my career would have been in jeopardy.

Mr. MCINTOSH. If I might interject just very quickly, because I

don’t want to disparage the scientists who have worked in this

area, and I think there are some very good studies out there. But

even the best scientists will subject their underlying data to a peer

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review; and one of my colleagues, Mr. Sanders, during his time will

get into some of the problems we have with that.

So I agree. We have to use good science, but we also have to follow the process the scientists themselves do in examining that underlying data because you can find errors that were not intentional.

Mr. KUCINICH. The Chair is absolutely right. And as someone

who respects the process of scientific inquiry, we need to look at

that. What I would suggest, that these hearings, as meaningful as

they are, can have even more meaning if we have the opportunity

to question people about the underlying science so that we can

come to a conclusion as to whether or not the EPA’s rulemaking

is supported by science or driven by some ideological agenda.

I certainly am concerned that the stands that we take here are

supported by fact. And when the Administrator presents us with a

250-study bibliography reference, I say that is fine. Can you show

us and can you provide us with the extensive information, perhaps

a synopsis or a—or a reference which would enable us to have more

information so we can make better decisions? Can you do that?

With permission of the Chair.

Ms. BROWNER. Absolutely. We are more than happy to give you

the studies. That is the peer-reviewed, published studies that were

considered.

We might also—this is available, but we would make it available

to each of the Members directly, the preamble of the proposed rule,

which we take comment on, which speaks to the volume of the

science and the scientific process. That might be helpful.

Mr. KUCINICH. I am concluding. Thank you.

I wanted to say to the Chair that I am glad to hear you say that

we are not disparaging the scientists who have done this, that we

need to get to the underlying premises of their studies. That is very

good, Mr. Chairman; and I appreciate that.

Mr. MCINTOSH. What I would propose is we work with Mr.

Kucinich and all the Members; and if there are some particular

studies we want to take a closer look at, if you have boxes full,

rather than you send us a huge box and we look through and pick

out the ones that are there, we will try to identify ones for the

Agency that we would like to take a closer look at, not only the

whole study but the underlying data.

Mr. KUCINICH. I appreciate your willingness to do that, Mr.

Chairman. Thank you.

Mr. MCINTOSH. Let me turn now to the vice chairman of the subcommittee, Mr. Sununu.

Mr. SUNUNU. Thank you very much. And I appreciate the remarks that have been made, especially those to make clear that we

are not disparaging the work of any particular science, any scientist. In particular, I would emphasize that even the term junk

science has not been used by me. It has not been used by any members, even those here that are more critical of some of the processes

that may have been used, so I think that——

Mr. SANDERS. If the gentleman would yield briefly, the words

fraud and sham have been used.

Mr. SUNUNU. I am referring to the phrase junk science.

Ms. BROWNER. I will amend my remarks—fraud and abuse.

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Mr. SUNUNU. I just want to be clear it is not something that has

been used on this side.

You talked about 250, the studies, various peer review studies

that have been used. Of the 250, how many of those deal with the

specific health effects of PM2.5?

Ms. BROWNER. Of the 250 studies, 86 of the studies focus on particles. They focus on—— Mr. SUNUNU. How many focus on the new class, the PM2.5 class,

and the specific health effects of PM2.5?

Ms. BROWNER. I think the question—29 look at the fine particles.

There are 50-plus cities where fine particles—2.5-sized particles

are being measured; and there are health records—the American

Cancer Society has health records on individuals in those cities

which are now the subject of many of these studies.

Mr. SUNUNU. You are saying 29 studies use PM2.5 data and correlate PM2.5 data to health effects?

Ms. BROWNER. Use fine particle air quality data.

Mr. SUNUNU. Can you provide a list of which of the 29, as you

put it, used PM2.5?

Ms. BROWNER. Fine particle.

Mr. SUNUNU. Ten microns is fine, 20 microns is pretty fine to me,

but we are talking about the 2.5 micron class, is that correct?

Ms. BROWNER. Or less—or below.

Mr. SUNUNU. Or below. So I just want to clarify, those are the

250 that are dealing with those fine particles, 2.5 microns or less.

Twenty-nine, is that the correct number?

Ms. BROWN. Yes.

Mr. SUNUNU. Thank you.

You talked about the CASAC, the Clean Air Scientific Advisory

Committee, and their importance in recommending or helping you

to decide that these rules are necessary. How many are on that

committee?

Ms. BROWNER. There were two panels, one on ozone and one on

fine particles. There are 21 participants in the fine particle panel.

Mr. SUNUNU. And their feeling was unanimous that we ought to

impose a 2.5 standard?

Ms. BROWNER. Of the 21 members, 19 of that panel said that we

should establish—I can read you the quote: There is a consensus

that a new PM2.5 max be established with 19 of 21 panel members.

Mr. SUNUNU. And 19 of 21 thought an annual standard was appropriate as well.

Ms. BROWNER. And/or an annual standard, and we can break

that out for you in terms of where individuals were.

Mr. SUNUNU. On that basis, how many voted for the annual

standard that the EPA proposed?

Ms. BROWNER. Of the 21 members, 19 of 21 said you should do

something about 2.5; 11 of the 21 expressed an opinion about what

the concentration level of 2.5 should be in terms of an annual or

24-hour standard. Do you want me to keep going?

Mr. SUNUNU. No.

Ms. BROWNER. Not all of them expressed an opinion.

Mr. SUNUNU. Ten didn’t express an opinion, and how many were

supportive of EPA’s proposed standard?

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Ms. BROWNER. Six supported levels within the ranges recommended by EPA; five supported levels above that range.

Mr. SUNUNU. And how many didn’t support—you are saying 10

supported no range at all.

Ms. BROWNER. No. That is not an accurate reading with what

CASAC did; and, with all due respect, if maybe I could explain——

Mr. SUNUNU. Be clear.

Ms. BROWNER. What happened is there were 21 people who spent

the better part of 4 years looking at the science in public hearings

and other discussions. Of the 21, 19 said it is time to do something

about fine particles, 2.5, 19 of 21.

In the scientific community, this is a huge amount of consensus,

as I am sure you are well aware. Within those 19, some went on

to express a personal opinion about how much of 2.5 may or may

not be safe in terms of the public health and the premature deaths,

how to measure it.

Mr. SUNUNU. How many——

Ms. BROWNER. And the fact that 10 didn’t say anything doesn’t

mean they oppose. Remember, 19 said it is time to do something

about 2.5.

Mr. SUNUNU. How many voted for the EPA standard?

Ms. BROWNER. They were never asked to vote for a specific

standard.

Mr. SUNUNU. They were never asked to vote for a specific annual

standard?

Ms. BROWNER. That is not the way the process worked. It is not

a vote in the way the committee takes a vote.

Mr. SUNUNU. We are here to find out what the process is, and

that is important.

Let me ask one final question, and that relates to what Mr.

Kucinich raised. You will make the underlying data of the PM2.5

studies available to this committee.

Ms. BROWNER. I am more than—I think it would be helpful if we

could step back for a moment and discuss the scientific process.

Mr. SUNUNU. Because my time has expired, let me just ask one

clear, specific question.

I know Chairman Bliley of the Commerce Committee has requested the underlying data, there has also been a Freedom of Information Act filed for the underlying data, and I would just ask

that you, if you could, personally provide us with the underlying

data.

Ms. BROWNER. All of the data we have will be made available.

We have worked hard with the committees to make it available.

Mr. SUNUNU. But you have——

Ms. BROWNER. I am more than happy to explain the situation.

Mr. SUNUNU. Do you have any other underlying data?

Ms. BROWNER. There are on the order of 300,000 individual

health diaries and medical records, some of which are at the American Cancer Society, some of which are at Harvard. These are individuals who volunteer to be part of scientific studies. This is very

important to the scientific process. Information is kept about—including such things as their reproductive history, et cetera.

I am trying to explain this. It is not simple.

401

Mr. SUNUNU. I think that, absolutely, the rights of those individuals’ privacy can and should be respected; but I also would hope

that they will—are willing to—the finders are willing to provide

the underlying data to you and to this committee.

Ms. BROWNER. We do not have the personal health records either

from the American Cancer Society or from Harvard. The American

Cancer Society has a long-standing policy that a qualified scientist,

with a legitimate, scientific research agenda, can access those individual health diaries and medical records.

Harvard has indicated that they are willing, through an independent group, HEI, to have a similar process allowing a qualified

scientist with a legitimate scientific question to access those private—for which there are confidentiality agreements, medical diaries and medical records.

Mr. SUNUNU. Have all the underlying data then been provided

to HEI?

Ms. BROWNER. Harvard is in discussions with an independent

group, HEI, to have HEI facilitate a qualified scientist with a legitimate scientific——

Let me say something. The American Cancer Society has had

this in writing, a protocol about how you do it. To the best of our

knowledge, there has not been a request—and you can check with

the American Cancer Society. We don’t want to speak for them, absolutely.

Obviously, there has not been a request from anyone in the last

6 or 7 months to access their individual health diaries and medical

records. It is there—you can go, I think it is to Atlanta if you are

a scientist; and you can get this information.

Obviously, I think we all agree it’s important people be willing

to participate in scientific studies; and confidentiality, when it relates to people’s health records is important; but there is a process;

and it is one that is sanctioned by the scientific community at

large.

Mr. MCINTOSH. I appreciate the gentleman’s comment.

Mr. SUNUNU. Thank you very much, and I appreciate the minority for allowing me liberty with the time.

Mr. MCINTOSH. I appreciate that.

I will say that we will come back to this. Because it is my understanding that the chairman—the then chairman of the Clean Air

Scientific Advisory Committee was denied access to that underlying

data; and as a scientist, I think there are a series of problems.

Ms. BROWNER. Mr. Chairman, if I might respond to that statement.

Mr. MCINTOSH. Certainly. Is that inaccurate?

Ms. BROWNER. If Ms. Nichols might explain precisely, because I

think it is important.

Mr. MCINTOSH. Do you want me to come back to it?

Mr. SANDERS. No, continue. Into the mic, please.

Ms. NICHOLS. There was a letter sent by the Chair of the committee and another member of the committee to Harvard, specifically asking them to make their data more widely available. These

are the diaries, again, that the Administrator was speaking about.

And there was correspondence back on that.

402

A process was used at that point to have some independent review of the Harvard data. Based on that, the Clean Air Scientific

Advisory Committee voted to use the study in their final report.

That is, they didn’t have any further discussion on that issue. They

apparently were satisfied that their requests had been——

Mr. MCINTOSH. But the chairman was denied access to that underlying data.

Ms. NICHOLS. No, there is no record we have that he was denied

access to that.

Mr. MCINTOSH. We will come back to this. Because I do have an

example of a staff member in Congress being denied access to it,

and I understand that these were paid with taxpayer funds in part.

Ms. BROWNER. Well, I am more than happy to respond to that,

Mr. Chairman. That is fine. We can wait.

Mr. SANDERS. Go ahead. I think it is important.

Mr. MCINTOSH. Specifically, Ms. Browner, you were in front of

the Appropriations Subcommittee on this and told them it was to

be available, gave them a number; and they had a staff member

call; and they were denied access to it.

Ms. BROWNER. There is a process for a qualified scientist—these

are, again, individual personal health records with confidentiality

agreements on each and every one of them.

You know, the question—if I might step back very quickly. First

of all, EPA did not fund Harvard to collect the individual health

records. We did not pay for those individual health records to be

collected. I think that is one point that I think needs to be clarified.

Mr. MCINTOSH. They did have a process for studying that.

Ms. BROWNER. There were studies and analyses which were

funded in part by EPA. Every single study in the bibliography

which we present to you—every single study that shapes the proposal did not make a final decision—that shapes the proposal in

terms of public health protections we have made to the American

people, was peer reviewed, including the very study you, I think,

raised questions about. It was peer reviewed.

And Dr. Wolf—I think Dr. Lipman—I’m sorry, not Dr. Lipman,

Dr. Wolf, as the chairman of the panel, agreed at the end of the

day that that Harvard study should be properly included in the 250

studies that then shape their advice to EPA. So this is a subject

that has been, I think, considered, many, many times; and we are

more than happy——

Mr. MCINTOSH. Let’s move on.

But, since that time, EPA itself has had to make a correction

itself on some of its public statements about the effects—the magnitude of the effects of the problem; and there are serious questions

that have been raised about that study, in particular, because it is

being used to base certain assertions.

And I guess I think I agree—and strongly agree—with Representative Kucinich. We need to get to the bottom of it. And I

think in this case it means getting to some form of the underlying

data. If you strip out the personal information that are not related

to the conclusions being drawn, there needs to be some way in

which the agency obtains it and, frankly, at this point submits it

to Congress.

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Ms. BROWNER. We have encouraged Harvard in numerous letters—I think you are aware of the letters—— Mr. MCINTOSH. Are you willing to establish a policy that you

won’t give them further grants until they comply?

Ms. BROWNER. I think that would be up to Congress. Our grants

are competitively awarded. If you want to tell us not to provide—— Mr. MCINTOSH. You have got a lot of discretion—— Ms. BROWNER. No, I don’t. They are competitive. In fact, I don’t

even know who gets a grant from EPA. If you want to direct us

to never give Harvard another scientific research grant, that is

your choice.

Mr. MCINTOSH. And you would agree with us in that?

Ms. BROWNER. It would be your choice, Mr. Chairman.

Mr. MCINTOSH. But I don’t hear an objection.

Ms. BROWNER. I think Harvard does some of the most impressive

scientific work in the United States, and we have, I think, followed

appropriate scientific process, and we will continue to do so.

Mr. MCINTOSH. Let me continue. I believe it is Representative

Kanjorski who is next for 5 minutes.

Mr. KANJORSKI. Thank you very much, Mr. Chairman.

Ms. Browner, let me get some understanding of what is happening here. As I understand, the scientific data has indicated that

the particulates in the air in some areas of the country must be reduced in order to provide for a measure of health for children and

average Americans.

Now when that is arrived at, you talk about the fact that then

it is the responsibility of the individual States to come up with a

program, and you provide guidelines to those States. Do you also

have the authority for final approval of what those States will do?

Or are they able to go out, once they show they will comport with

reductions, they can do anything they will?

Ms. BROWNER. Our review focuses on one issue, and one issue

only, which is, does their plan achieve the reductions necessary to

meet the public health?

Mr. KANJORSKI. When you talk about the public health, is it

within their jurisdiction or the public health throughout the United

States?

Ms. BROWNER. Obviously—and I appreciate your concern on the

transport issues and what may be happening to the people in your

State and their health because of pollution in another State—we

have the ability—we do have the ability in reviewing an individual

State plan to take into account what its effects may be on another

State. That is a simplification; it is a more complicated process. We

have been involved in a process for a number of years now with

the States on this matter.

Mr. KANJORSKI. If I were the Governor of Indiana or the Governor of Ohio, I would just have all my smokestacks enlarged 200

feet, so the particulates would go higher into the atmosphere and

carry further over into Pennsylvania, and I would meet all my conditions, so I can continue encouraging industry to come into my

State, but the particulates in the State they land in would be materially negatively impacted.

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404

versely affected by another State, the Clean Air Act does provide

some authorities to us to address that situation. I want to be honest with you; it is a long, complicated process.

Mr. KANJORSKI. And I understand that. And what I am worried

about, and I am wondering whether or not we should be attacking

this problem rather than State by State, whether we should look

at a regional attack on this problem or even a national attack on

this problem.

The political ramifications of the chief executive of the State finding the cheapest, most effective way to solve the problem for his

State’s economy, as opposed to taking into consideration the national interest, or the national good, is overwhelming. And not to

put down the chairman’s State of Indiana—— Mr. MCINTOSH. I was going to say, I don’t think the EPA would

let them get away with simply extending the smokestack.

Mr. KANJORSKI. I mean, clearly we are aware in western Pennsylvania.

Interesting anomaly: You received a letter from one of my colleagues, Mr. Klink, that an auto industry was to locate in western

Pennsylvania because of the nonattainment status that potentially

that area would have. They decided to locate in another State, the

State of Ohio, which is interesting, since the State of Ohio is particular for coming into Pennsylvania and making us not attain the

State, they are getting our industry, and it seems to me grossly unfair for that to happen.

It is obviously not an easy decision, and, obviously, air isn’t

Pennsylvania air or Ohio air, it is American air, or the world, if we

will. And I am just wondering whether or not, looking at the States

and looking at the standards the way we are, we shouldn’t go back

and really look at the act and say, where does this particulate matter really occur in its worst conditions, and how could they be best

cleaned up as opposed to spreading sometimes the cost into areas

such as Pennsylvania?

There is very little we can do. Whatever we do expense-wise, we

don’t end up cleaning or making our area more an attainment area

because we are already a nonattainment area at our borders.

Ms. BROWNER. Certainly the transport issue is one of the most

difficult that we face as a country, and I think that all of you,

whether you be Democrats or Republicans, your Governors be

Democrats or Republicans, should be quite pleased that we have

every State east of the Mississippi, for all intents and purposes, engaged in a very complicated set of modeling and discussion about

how to deal with the transport issue.

There is recognition on the part of the vast majority of States

that it has to be viewed from a regional perspective, that you cannot simply hope to deal with it State by State.

If we conclude the current process by strengthening the public

health protections for soot and ozone, it will allow for some more

aggressive perhaps actions on transport; it will give you some additional mechanisms for addressing transport.

The other thing I think is very important to understand about

transport, and I think you have all but said this, but let me reiterate because it is so important: The transport problem is not a

problem of small business, it is by and large a problem of large

405

power plants and large industry, and it is by and large the lion’s

share of the problem when we look at current levels of pollution

and we look at what areas might not, should we decide to tighten

the public health standards, be able to immediately meet a tougher

public health standard.

Mr. KANJORSKI. Mr. Chairman, I don’t know if my time has expired. I wanted to ask a question.

Mr. MCINTOSH. We have been very lenient with the clock. Why

don’t you go ahead.

Mr. KANJORSKI. Ms. Browner, you mentioned all the standards

are set out for the public health, and I am not sure whether you

are defining public health as having a very limited way, physical

health. Sometimes the well-being, the economic well-being, that

people determine what their real health is, people who can’t get

jobs or can’t have a quality of life or quality of job as a result of

the limitations that may occur here, I think there is, in fact, an impact on public health.

What I would urge is that if we could find ways, if there need

to be adjustments in the law or even, above and beyond that, that

public policy in other areas of the Federal Government be adjusted

to take into consideration the negative impacts of the environmental standards that may be imposed, this could be very important, and that is to say that as clean jobs locate in other areas of

the United States, maybe a tax process be put into place to allow

more competitiveness for those clean jobs to be in impacted areas

such as the northeastern United States, so at least we can find an

even playing field for quality and quantity of jobs in these areas.

Ms. BROWNER. Certainly.

Mr. MCINTOSH. Thank you very much, Mr. Kanjorski.

Let me now turn to Mr. Barr for 5 minutes.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Chairman, this has indeed, contrary to my expectations,

been a very enlightening hearing. We discovered some new legal

authorities to add to those we have heard recently from others in

this administration. We now know that each agency decides for

itself whether or not it has to follow a Federal law. That was in

response to a question that the chairman asked.

We also now know that even though an institution conducts a

study funded by the taxpayers of this country, which forms the

basis for eventual rules and regulations to be implemented that

will cost those same taxpayers many billions of dollars, that the

taxpayers have no right and that the Government, or at least this

administration, will not fight for their right to see that evidence

and review that data. That certainly is disappointing; enlightening,

but certainly disappointing.

Some things that have not yet been said, Mr. Chairman, that I

think are important for the record also: That is, some of this material is contained in an article written by our distinguished colleague, Representative Tom Bliley, in a special section on environment printed in the Monday, April 21st edition of Roll Call, and

that it details the very serious problems because of the cost, for example, and the way these rules and standards are being implemented—attempted to be implemented, by EPA are wrong.

406

Mr. Chairman, you are not alone, as I suspect you know, in your

review of this procedure as being entirely inappropriate. As a matter of fact, OIRA, the Federal Department of Transportation, the

Small Business Administration, the President’s Council of Economic Advisors, the Department of Agriculture, the Office of

Science and Technology Policy, unlike the administrator before us

today, are willing to admit and understand the reality of the situation, and that is, what the EPA is proposing to do will have very

real consequences and very expensive consequences, and therefore

they, I dare say, and I suspect agree with you, Mr. Chairman, that

the process so far has not been one that is in the public interest

and ought to be followed—ought not to be followed.

Mr. Chairman, I have a copy of a court document here, before the

Environmental Protection Agency by the Washington Legal Foundation dated, I believe, March 12 of this year, a petition by that

foundation to disqualify Administrator Browner from further participation in the rulemaking proceeding, et cetera.

Attached to that is a letter that I referred to earlier raising very

serious concerns with the Administrator by Senators Glenn, Ford,

Byrd, Rockefeller, and Robb.

Ms. Browner, have you read this petition?

Ms. BROWNER. If you are referring to—it is not a petition filed

in a legal court, I think it is an administrative petition. If that is

what you are referring to, I am familiar with it, yes.

Mr. BARR. Have you read it?

Ms. BROWNER. I have read portions of it, yes.

Mr. BARR. OK. Then you should certainly be familiar with the

quotes that I would presume are not inaccurate about how you

trumpet that you will not be swayed by opposing views with regard

to EPA’s proposed provisions, et cetera. Are you familiar with their

quotes that they contain in this petition?

Ms. BROWNER. My review of the quotes has led me to conclude

that they are taken out of context, to say the least.

Mr. BARR. That is what I would expect you to say.

Ms. BROWNER. I would be more than happy to provide the

speeches from which they are taken.

Mr. BARR. I have seen them.

Ms. Browner, it appears to me from your public statements regarding these procedures that your mind is, in fact, closed to questions about the validity of the science.

There are other quotes, and I also presume that these are accurate, although you may maintain that all of your quotes are taken

out of context. I refer specifically to your comments before the Senate Environment and Public Works Committee in February, February 12 of this year, that indicate, I think very clearly, that you

have indeed made up your mind, and if you have, I don’t know why

you are afraid to say so.

On page 7 of the transcript, you are quoted as saying, ‘‘in a most

compelling way the science leads us to the new stronger standards;’’ on page 9, that, quote: ‘‘The best available evidence has determined that PM2.5 is damaging to human health;’’ on page 9

also, quote: ‘‘The best current peer-reviewed fully debated scientific

conclusions are that too many Americans are not being protected

by the current standards for these pollutants;’’ page 10, quote:

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‘‘Science now tells us that our air pollution standards are not adequate to protect our health.’’

It is very interesting to compare that to other statements by EPA

and by others in this administration, that great strides have been

made and that they are largely adequate.

On page 28, quote: ‘‘What the science now shows us is, far too

many people under current levels of pollution are experiencing aggravated asthma;’’ on page 30, quote: ‘‘Our requirement is to make

sure that if keeping any air quality standards the same is adequately protecting the public’s health, what we found in most instances is, yes, in two instances, PM2.5, and ozone, we found no.’’

I think that looking at all of these and the others that are contained in the petition indicate that your mind is made up and that

these procedures that purportedly are going on really have little

meaning in light of what EPA has already determined it wants to

do. But I certainly appreciate hearing from you, to have your

thoughts.

Ms. BROWNER. No. 1, my mind is not made up. I take the public

comment very seriously. I would suggest to you as evidence of that

the fact that, based on public comment, we have already made adjustments and analysis. We take it absolutely positively seriously,

as I have done in every single effort I have engaged in, in terms

of public health and environmental protections over the last 4

years.

We have concluded a comment period, and we are vigorously reviewing and understanding all of the comments we have received.

There is no final decision at this time. That will not happen until

later in the year. I do believe——

Mr. BARR. By when?

Ms. BROWNER. We have indicated in a court that we will make

a final decision in the case of fine particles no later than July 19th,

which is a Saturday, it has to be published, so that backs it up to

July 4th.

We have similarly indicated to the public, not in a court of law,

directly—well, we did actually do it directly too—that we would

conclude our review of ozone in the mid part of this year, and that

is what we have committed ourselves to doing.

A second point—so, No. 1, there is no final decision. That will be

forthcoming, and it will be in keeping with the public comment

process.

Mr. BARR. Maybe you could then just enlighten us: When you

said you would not be swayed, you will not be swayed by anything?

Ms. BROWNER. I was, in that particular instance, referring to

protecting our children. I believe that part of my job as the head

of the country’s environmental agency is to protect the most vulnerable among us, not the least of which are our children.

I might add, Congressman Barr, I do think—and maybe perhaps

here we have a disagreement, but I do believe that part of my job

as head of the EPA is to speak out to the American people.

Mr. BARR. Is it also to follow the laws of this land?

Ms. BROWNER. I have abided, absolutely, positively, by the laws

of this land.

Mr. BARR. According to your lawyers.

408

Mr. MCINTOSH. The time of the gentleman has expired. I can

yield you some more, but I want to give the Administrator a chance

to make a response.

Ms. BROWNER. The quote specifically says when it comes to protecting our children, I do believe that—— Mr. BARR. That is in your quote, but that is only the very first

part of it, isn’t it?

Ms. BROWNER. I will read it to you.

Mr. SANDERS. I would like for her to read it.

Ms. BROWNER. ‘‘When it comes to protecting our children, I will

not be swayed.’’ That is what I said, and I stand by that statement.

My job as the head of country’s environmental agency is to

protect—— Mr. BARR. Read the whole quote.

Ms. BROWNER. Mr. Barr, can I please have my moment?

Mr. BARR. Read the whole quote.

Ms. BROWNER. I will read the whole speech.

Mr. BARR. No; read the whole quote, because twice you repeat,

you trumpet, that you will not be swayed. Read the whole quote

there.

Ms. BROWNER. ‘‘If the science shows me’’—excuse me—‘‘if the

science shows that we have to do more to ensure that our kids are

safe from pollution, then that is precisely what we will do.’’ That

is what the law tells me to do, and I am abiding by the law.

Mr. SANDERS. Does the gentleman from Georgia have a problem

with that statement?

Mr. BARR. I want her to read the whole quote.

Would you like me to read the rest of it?

Ms. BROWNER. ‘‘And if someone wants to accuse me of doing too

much and acting too forcefully to protect the health and future of

our children, then so be it, I will not be swayed,’’ and I stand by

that statement. It is not a violation of any law.

Mr. BARR. I am sure you do.

Ms. BROWNER. If I may respond to the other allegations made

against me?

Mr. MCINTOSH. Ms. Browner, if I may ask one question, I think

we will clear this up. You are telling us today there are more options than that which has been proposed as the preferred option

which would allow you to protect children’s health?

Ms. BROWNER. As is always the case in a public notice and comment, we solicit opinions on a variety of points of view. We do, as

is frequently the case, tell the American people, in an effort to be

honest, where our current judgment finds us. That is all we have

done here. It does not in any way say we have made a final decision.

But, Mr. Chairman——

Mr. MCINTOSH. Let me make sure, because I think we can clear

this up in a way that will be satisfactory to you. You are telling

us today that your mind is open, that there are more than just the

alternative that has been proposed as the preferred alternative as

possible ways to protect the health of children, as regards to ambient air quality standards.

Ms. BROWNER. I am telling you two things. One, I have not made

a final decision. I think the notice and comment portion of any

409

rulemaking is absolutely essential, and I will thoroughly review

and understand that before I make a final decision.

In making a final decision, I believe the Clean Air Act public

health provisions do require me to take into account the health of

our children. I do believe that.

Mr. MCINTOSH. You have an open mind as to possible ways in

which that can be done.

Ms. BROWNER. I will, at the end of the day, set a public health

standard, as the Clean Air Act directs me to do, based on protecting all Americans, most particularly our children. I do not

today say to you with absolute certainty what that will be.

Mr. MCINTOSH. But I think it is pretty important, because Representative Barr has raised a legitimate question on the integrity

of the process, and I am troubled, if you can’t give me a yes or no

answer, do you have an open mind that there are more than one

alternative to achieving that result?

Ms. BROWNER. I haven’t made a final decision as to what the national ambient air quality standard should be for ozone or fine particles.

Mr. MCINTOSH. But you do or you don’t have an open mind?

Ms. BROWNER. I haven’t made a final decision. That decision ultimately will—I want to be honest with you; that decision, in my

opinion, the law directs me to make it based on protecting the

public’s health with a margin of safety, and that is what I will do.

This provision in the law is about the public’s health.

It is true, as is true in almost any rulemaking, that when we propose to the American people where we would set a standard, we

display what our current thinking is. It is a question of honesty on

our part. We displayed it.

In the case of ozone, we said our current thinking leads us to

point a way, but you tell us, should it be stricter? Should it be

0.07? Should it be 0.09? Should it be 0.12? All of that is displayed,

and comment is solicited on all of that.

Mr. MCINTOSH. I think that is very important. I think you are

absolutely right, you have to signal to the public which direction

you want to go to, what the preferred option is for the Agency,

based on your understanding of the data and information available,

and solicit comments. But also important to that is an open mind

that there may be multiple choices and alternatives to reach the

goal that is specified in the Clean Air Act.

Ms. BROWNER. We will go where the science takes us.

Mr. TIERNEY. Mr. Chairman, it is my turn to question.

Mr. MCINTOSH. Mr. Tierney, go ahead.

Mr. TIERNEY. I suspect what it may be is, with an open mind,

the Administrator may decide that there is or is not only one or

that there are two or there are three or whatever, and I think that

is the fair question to put here.

Ms. BROWNER. I don’t prejudge anything at this point. I take

public comment, and I review it thoroughly.

Mr. TIERNEY. I appreciate that, and the air is clear enough on

this side of the room, we heard distinctly what you had to say and

thank you for it.

Let me ask you something that may be basic, but I don’t pretend

to know all the science involved in this. Can you tell me a little

410

bit about the PM standards and what it is we are concerned about

and how it gets into the body systems or how it may be destructive

and at what levels it has different impacts on us?

Ms. BROWNER. There are all kinds of particles in the air of varying sizes. Today, our effort to reduce particles in the air has focused on something called PM10, that 10 is a measurement, it indicates a coarse-sized particle.

What the science now shows is that, in fact, the smaller particles, the finer particles, 2.5, have very real human health effects.

And I will just be very simple with you; it is a little graphic, but

I think it is the best way to understand this.

In the case of large particles, your body may be able to cough

them out, you may be able to blow them out and get rid of them.

In the case of the little tiny things, these are tiny, they go right

into your lungs, and they embed in your lungs, and what numerous

studies have shown is, when those fine particles, those little tiny

things—you can’t see them—reach a certain level in the air—there

is a certain amount of them in the air—people experience premature death and other respiratory illnesses, and that is what, for

example, the American Cancer Society’s health records are in part

about.

Mr. TIERNEY. Do these have a different effect on children than

adults, a child is liable to breathe in more or less?

Ms. BROWNER. Children are obviously always affected differently

by environmental—what is the word I want? Their bodies are different. They are growing, their lungs are still developing, they

breathe more air per pound of body weight than an adult, they

drink more water per body weight, et cetera, so obviously we do

have to—and I think appropriately—consider how something affects our children and not just how it might affect a man weighing

150, 160 pounds.

Mr. TIERNEY. Has the CASAC—the Clean Air Scientific Advisory

Committee—given to you its closure letters?

Ms. BROWNER. Yes, we have two closure letters, one on ozone

and one on fine particles. I think we have made those available to

committee. We would be more than happy to make them available

again.

Mr. TIERNEY. When this group of 21 individuals was selected to

be a part of this advisory committee, were their names made public?

Ms. BROWNER. Oh, yes, and they have conducted many public

hearings which were noticed in the Federal Register and people

could participate in.

Mr. TIERNEY. To your knowledge, was there ever any objection

to any one of these individuals serving in the capacity——

Ms. BROWNER. No.

Mr. TIERNEY. Nobody questioned their credentials or anything?

Ms. BROWNER. Not to my knowledge, no.

Mr. TIERNEY. I yield back my time. I have no questions.

Thank you, Administrator.

Mr. MCINTOSH. Thank you, Mr. Tierney. That is a nice break

from precedence.

Let’s turn now to the concluding phase of our questions for this

panel, which we had agreed to earlier would be 15 minutes of quesVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00414 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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tions on each side, controlled by me as the chairman and Mr. Sanders as the ranking minority member.

Let me first yield 4 minutes to Mr. Snowbarger. He indicated to

me he had some additional followup questions on the Regulatory

Flexibility Act.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

And, very frankly, I think these are short answers, because I am

really just trying to make sure that I understand what your position is on the legal position of EPA as it relates to SBREFA. The

first question: Do you consider the EPA is subject to SBREFA?

Ms. BROWNER. Absolutely.

Mr. SNOWBARGER. And you would agree that because SBREFA

provides for it, this rule will be subject to judicial review under

SBREFA?

Ms. BROWNER. The certification, yes, would be subject to judicial

review; yes, we would agree.

Mr. SNOWBARGER. You don’t agree the PM standard would be

subject to judicial review?

Ms. BROWNER. Yes, I’m sorry, we do.

Mr. SNOWBARGER. I thought you were qualifying your answer.

Ms. BROWNER. I think we may have some confusion. Can you restate the question? I want to make sure I answer the question I

thought you asked.

Mr. SNOWBARGER. Well, both in terms of the certification and in

terms of the PM standard—well, and the ozone standard as well,

that those rules would be subject to judicial review under SBREFA.

Ms. BROWNER. Under the Clean Air Act, both ozone and fine particles are subject to judicial review; we absolutely agree.

Mr. SNOWBARGER. But you don’t think small business has a particular special right that has been granted to it under SBREFA

that they could exercise here?

Ms. BROWNER. Our certification is reviewable under SBREFA, we

would agree.

Mr. SNOWBARGER. But not the standard.

Ms. BROWNER. The standard—you get the judicial review. The

standard is reviewable under the Clean Air Act. SBREFA doesn’t

require us to clean air standards, so what is reviewable is the certification and whether or not that was appropriately made.

Mr. SNOWBARGER. And whether or not you followed the appropriate procedures.

Ms. BROWNER. It is all judicially reviewable.

Mr. SNOWBARGER. My understanding is you have had some informal small business groups that have reviewed this process. Would

you agree, however, that those informal reviews do not meet the

requirements under SBREFA?

Ms. BROWNER. We have had conversations with both the Small

Business Administration and with small businesses.

Mr. SNOWBARGER. I understand. I think the question is fairly

simple. I mean, you have indicated you didn’t think SBREFA applied to this, and what you were doing with the small business

groups was doing something informal and not anything you were

required to do. Therefore, they must not have been in compliance

with SBREFA, is that correct?

412

Ms. BROWNER. We believe we have gone beyond the legal requirements of SBREFA in reaching out and working with the

Small Business Administration and the small business community.

Mr. SNOWBARGER. These do not constitute the small business

panels that are required by SBREFA?

Ms. BROWNER. We don’t agree they are required, but we are

working with small business.

Mr. SNOWBARGER. SBREFA requires small business panels if it

applies. You don’t think it applies, fine. There is no argument you

can make if a court says you should have done it, that you can go

back and say we did it? These do not comply with that requirement, SBREFA?

Ms. BROWNER. Obviously, you know, we have spent a good deal

of time reviewing all of the requirements to ensure this is a fair

process, not just within the letter of the law but within the intent

of the law; and we are certainly working with small businesses,

with the Small Business Administration, in terms of how—both the

process in terms of setting or proposing a standard and making a

final decision in terms of setting the standard and then, obviously,

in terms of implementation.

I might just add, you know, we would be more than happy to provide to the committee where we are using under SBREFA the

panel procedure in terms of bringing together I guess OMB, EPA

and SBA to discuss specific proposals. We would be more than

happy to provide that.

Mr. SNOWBARGER. I understand that. But the panels that you

brought together on April 18 and March 18 are not panels under

SBREFA?

Ms. BROWNER. We did not suggest that they were.

Mr. SNOWBARGER. Now, in your certification, this is what I understand the certification to be, you have certified that there will

be no significant additional impact on small business entities as a

result of your new proposed standards?

Ms. BROWNER. We have certified——

Mr. SNOWBARGER. That there would be no significant additional

impact on small business entities—— Ms. BROWNER. The difference we are having here is our understanding of the statute is it provides for a certification of no significant economic impact on a substantial number—— Mr. SNOWBARGER. Fine.

Ms. BROWNER [continuing]. Of small entities.

Mr. SNOWBARGER. OK. So you are certifying that there will be no

significant economic impact on a substantial number of small business entities as a result of the new proposed standards?

Ms. BROWNER. Subject to the requirements of the proposal. We

made the certification at the time of proposal. That is what the

law, SBREFA, allows for.

Mr. SNOWBARGER. I understand. I am trying to get a comfort

level that I can go home and tell small business they have now

been guaranteed there is no significant economic impact on them

based on your adoption of these standards.

Ms. BROWNER. Changing the public health standards, if that is,

in fact, where this process concludes, does not in and of itself, come

mid-July or any time thereafter, require a small business or a large

413

industry to do anything of a particular sort. States, led by their

Governor——

Mr. SNOWBARGER. There will be no significant economic impact.

Let me followup with one question, if I might, Mr. Chairman,

and ask for 30 seconds.

Mr. MCINTOSH. Sure, 30 seconds.

Mr. SNOWBARGER. You have filed for an extension of time, 60-day

extension of time, to comply with the court’s order, as I understand

it; and in that you have indicated, given the flexibility—given the

complexity—I have got flexibility on my mind—given the complexity of the scientific and technical issues and the importance of

the public health policy concerns at stake, any less time than the

60-day extension for public comment would deprive the public of an

opportunity to fully address all of the issues involved.

Now, I guess my question is, is there a compelling reason why

we cannot go back and get this right and make sure that we have

complied and not raise that as an issue and potentially jeopardize

the implementation of the standard if you think it is the appropriate one?

Ms. BROWNER. We are under a court order because prior administrations failed to follow the directions of the Clean Air Act to get

a 5-year review done on fine particles. We did go back to the court

and ask for some additional days. They declined to give us all of

the days we asked for.

But, again, this is not about 30 days or 60 days. This has been

the better part of a decade and, most specifically, the last 4 years.

What that judge’s order has required us to do at EPA is ask people

to work nights, weekends and holidays; and that is what we will

do.

The American people were promised something by the Congress.

It was a 5-year review. It hasn’t happened. We are going to deliver

on that promise of the Clean Air Act. That is what we told the

court, and that is what we tell the American people.

Mr. MCINTOSH. Cindi, how much time do I have remaining?

The CLERK. You have 9 minutes.

Mr. MCINTOSH. I was going to go and give you the 15 minutes.

Mr. SANDERS. It might be more interesting to go back and forth.

Mr. MCINTOSH. Let me take a couple of minutes to followup, and

then we will be able to do that so we can follow the line of questioning.

Now, Ms. Browner, you just mentioned the court has imposed a

deadline and that is the compelling reason to proceed without going

back and redoing a regulatory flexibility——

Ms. BROWNER. I didn’t say that. I didn’t say the court’s timeframe in any way has to do with the RFA. I didn’t say that. I said,

there is a court order, that we did ask for an extension of 60 days.

They granted 30 days. I explained what that means to us. I didn’t

say anything about the RFA. I didn’t say that.

Mr. MCINTOSH. His question was, is there a compelling reason

not to do regulatory flexibility——

Ms. BROWNER. Maybe we could ask the court recorder to read it

back. It was not about the RFA. If it was, I didn’t understand that;

and I am more than happy to reanswer it.

414

Mr. MCINTOSH. Why don’t we do that? We will treat it as a new

question.

Do you have a compelling reason not to do a Regulatory Flexibility Act analysis?

Ms. BROWNER. We are doing a Regulatory Impact Analysis. We

do not believe that we are required to do a Regulatory Flexibility

Act analysis because these are public health standards out of which

no specific actions are required by any small entity per se. Moreover, it is the States who will decide which industry, which business, reduces their pollution.

Mr. MCINTOSH. I am asking a different question. Is there a compelling reason not to do it out of your own discretion? Let me give

you a very compelling reason why you should consider doing it, and

that is the reason I am holding this hearing today.

I think we are going to do severe damage to our efforts to clean

the air by creating this legal uncertainty. We have talked about,

earlier, that SBA believes that the Agency is required to do the

Regulatory Flexibility Act analysis. You told us earlier you don’t

believe you are required to do that. That automatically tells me

there is legal uncertainty and there will be a lawsuit that will

delay this for a long time.

I think that has serious consequences. Frankly, it means we are

going to spend a lot of money for lawyers, rather than actually help

the children that you in your speech very eloquently pointed out,

we in Congress, and you in the Agency are trying to do. So my

question is different. It is not whether you are compelled to. Is

there any reason why, as a discretionary matter, you won’t do it?

Ms. BROWNER. How would I do it? Until a Governor decides within their State which industry should reduce their pollution of the

public’s air, how would I do that kind of analysis?

I don’t want to dictate to your Governor what he should do anymore than the Clean Air Act when it was passed by Congress told

EPA to. I can’t answer your question.

Mr. MCINTOSH. Let me propose one avenue how to do that.

Ms. BROWNER. That would be helpful.

Mr. MCINTOSH. One of the reasons—and Mr. Sanders questioned

my use of the word fraud, but one of the reasons I chose that

strong language is, while you certified there are no impacts on

small businesses in order to meet the requirement of the Small

Business Regulatory Flexibility Act, at the same time, you submitted documents for the public record that did a Regulatory Impact Analysis; and I will quote from it on pages ES 11 and ES 12.

Under the heading ‘‘Cost and Economic Impact Analysis,’’ there

is a statement that is a conclusion based on the analysis, ‘‘Therefore, these small establishments may experience potential significant impacts.’’ Now, you have gone through the effort on the Regulatory Impact

Analysis. Why not apply that to regulatory flexibility analysis?

Ms. BROWNER. What the Regulatory Flexibility Act was about

since its inception in 1980, and what EPA has used the Regulatory

Flexibility Act on numerous occasions to do is make adjustments

so any one-size-fits-all approach of a regulation doesn’t inadvertently or disproportionately affect small business. It is a great statute because it gives an agency the ability to say, you are right; if

415

we set a regulatory requirement, it may have a disproportionate

impact.

Mr. MCINTOSH. I understand. So the mandate is to choose—— Mr. TIERNEY. Can we hear the rest of the answer, please, Mr.

Chairman?

Mr. MCINTOSH. You said the mandate of the act—— Mr. TIERNEY. Can we hear what she said? She is answering your

question. We think it is informative. If you really want her to be

informative, we would like to hear the end of it.

Mr. MCINTOSH. If you want to grant me more time, I will grant

more time to repeat what the act says.

I know what the act says. I helped write the act, and I know

what it was intended to do. What it was intended to do was require

the Agency to deal with this analysis so it could indeed pick among

several options which would have the least impact on small entities.

Ms. BROWNER. But there are no options before us today in terms

of what a Governor might choose.

Mr. MCINTOSH. But there are options for different standards.

Ms. BROWNER. No.

Mr. MCINTOSH. You told us earlier you had not made a

decision—— Ms. BROWNER. There no options.

Mr. MCINTOSH [continuing]. Among several options for different

standards.

Ms. BROWNER. For a public health standard. I will just use—— Mr. MCINTOSH. A public health standard that in your own words

you say, therefore, these small establishments may experience potentially significant impact on the preferred standard that EPA has

given public notice on.

Ms. BROWNER. Or any other standard. The point is—— Mr. MCINTOSH. No, no, that is the problem. Without doing a Regulatory Impact Analysis—— Ms. BROWNER. We did a Regulatory Impact Analysis.

Mr. MCINTOSH. Without doing a regulatory flexibility analysis,

we don’t know whether the other standards would have less of an

impact?

Ms. BROWNER. Can I please have a moment?

Mr. MCINTOSH. I mean, do we? Without doing it—— Mr. SANDERS. Mr. Chairman, with all due respect, if she is being

asked a question, please let her respond?

Mr. MCINTOSH. I would like to have an answer, yes.

Ms. BROWNER. There are a variety of tools which are important

to making an informed decision. The Regulatory Flexibility Act—

as you pointed out, you are one of the authors of it—is extremely

important because it allows an agency, once a technology perhaps

is required to be used by certain industries, to make adjustments

for the small businesses within that requirement. We use it and

would be more than happy to give you a list of all the times we

have used that law to allow us to move beyond a one-size-fits-all

approach to air pollution and other types of pollution reductions.

The Clean Air Act is very clear in saying that the States develop

individual plans for reducing their pollution. I cannot tell you today

what any individual State will choose, nor would it be appropriate

416

for me to do that, to preordain for them what kind of choices they

may ultimately make.

However, in an effort to help inform discussion, which we think

is important, and it should be thorough and lively, we do do something which is called a Regulatory Impact Analysis under an Executive order signed by a President you served and then amended by

this President.

Mr. MCINTOSH. Let me ask you to conclude. All of that has been

established so far with the testimony. My time is limited. If folks

want to give me some additional time, I will gladly let you go and

explain all of those which the committee is well aware of.

Mr. SANDERS. It is your time. Do whatever you want.

Mr. MCINTOSH. Let me focus on a couple of other questions

which I think are important for the record.

Mr. SANDERS. I suggested before that I thought it might be more

useful for us to go back and forth. I don’t know how much time you

have used.

The CLERK. The chairman has 5 minutes left.

Mr. SANDERS. You have used 15, and I haven’t used any.

Mr. MCINTOSH. Let me proceed to let you use your time.

Mr. SANDERS. I will use 5 minutes and then go back to you.

Mr. MCINTOSH. Certainly.

Mr. SANDERS. Let me begin by thanking Mr. Barr for quoting

you, because, let me tell you very frankly, if you did not understand that your job is to stand up and protect the health of the

children of this country, you should not be where you are right

now. I applaud you for your statements.

Mr. McIntosh a few moments ago talked about lawsuits. Well,

nobody wants lawsuits. But it is no great secret I suspect we have

a few of them in the room right here, that the major polluters of

America will spend millions and millions of dollars trying to destroy environmental regulations to protect clean air. They will do

everything they can, and that has been the track record for the last

15 or 20 years.

So maybe if we don’t want lawsuits and we don’t want

contentiousness, maybe some of the major polluters in this country

might want to hold back on spending millions and millions of dollars in fighting every regulation that seems to be passed representing the health and welfare of the people of this country.

I think, in the midst of this very interesting discussion, some of

the most important points seem to be pushed aside. And the most

important point to my mind is that what we have heard today, and

I have not heard—I have not heard people disagree with this, is

that people who know a great deal about this issue are suggesting

that we can prevent the deaths prematurely of 15,000 Americans

and that we can prevent suffering and illness of 250,000 children.

Now, how much is that worth? How much is that worth? I would

suggest that, in a civilized country, it would be inexcusable for our

government not to move rapidly to end that terrible waste of life.

What kind of country are we where we say, yes, we know that

15,000 people are dying prematurely, that little children are becoming terribly sick, but we are not going to do anything about it?

If that is what this Government was about, that would be a terrible

shame; and I don’t think that is what we are about.

417

I wanted to tell Ms. Browner that despite what she heard today,

the vast majority of the American people want you and the administration to stand up and protect the health of the American people.

That is what they want. That is what every poll indicates. And

while we know that some of the polluters are spending huge

amounts of money trying to challenge virtually every environmental regulation we have, they are not operating on behalf of ordinary Americans, and that is not what the American people want.

Ms. Browner, last week we heard from Dr. Munzer, who was a

lung specialist and a former president of the American Lung Association. He testified that the negative health effects of emissions of

ozone and fine particulates are well established. They both cause

asthma attacks, and fine particulates also lead to a number of

cardiopulmonary problems and even premature death.

Would you care to comment on that?

Ms. BROWNER. Study after study finds that the results of certain

levels of air pollution are, in fact, premature death, aggravated

asthma, large numbers of respiratory illnesses. Asthma now represents the single largest cause of childhood hospitalization in the

United States. More children are admitted to the hospital because

of asthma than for any other reason.

While it may be that some would suggest a future where we keep

our children inside on the 4th of July because the air pollution is

too high, that is not what the Clean Air Act promised the American

people, and that is not what we will do in accordance with the law.

Mr. SANDERS. Ms. Browner, we have heard a lot of discussion

about costs, and that is an important issue. Nobody here wants to

see businesses suffer in any way that is unnecessary.

Last week we heard from Dr. Schlesinger, a biochemist from

Duke University, who told us that the proposed standards will provide additional environmental benefits—the reduction of acid rain

and the protection of plant and animal diversity.

I would like to put into the record, when we talk about economic

costs, I come from a very beautiful State. We have a strong tourist

industry. We would invite all of the Members to come up during

the fall to see the color of our leaves.

When you talk about economic impact, some of us don’t want to

see our trees being destroyed by acid rain. That is an economic

issue. That is an issue of environmental concern that we have. We

don’t want to see our timber industry and our maple sugar industry be impacted negatively by this pollution. We don’t want to see

the basic beauty of the State of Vermont or New England or the

Northeast being impacted. That is an economic issue I would like

to place into the record as well.

But I would like, Ms. Browner, to also comment on Bruce

Bertelsen, the executive director of the Manufacturers of Emissions

Control Association, who testified that the estimated cost of reaching proposed clean air standards are typically greatly overstated

because technological advances are not taken into account.

Is that something you would like to briefly comment on?

Ms. BROWNER. Yes, that is absolutely true. If you look at the 25-

year history of the Clean Air Act, what you see is a wonderful story

about American industry. They rise to the challenge each and every

time.

418

When we began the debate in this country about acid rain, some in industry projected costs of $1,000 per ton of emission reductions.

EPA itself predicted costs of $600 per ton. Today, on the Chicago

Board of Trade, you can buy a credit for less than $100.

Industry rises to the occasion over and over again; and the costs

of reducing pollution have been proven to be, through real-life experience, far less than anyone suspected or projected on the front

end. And the benefits to the health of the American people far

greater than anyone projected.

The Clean Air Act does not allow me to make a cost-benefit decision. This is a public health decision. There are other sections of

the law dealing with toxic chemicals in the air that are cost benefits. This is not.

Mr. SANDERS. The point you are making is throughout the process people have come up with grandiose estimates as to the cost;

and, in fact, as a result of the changes in technology, the costs end

up being a lot less.

Ms. BROWNER. The wonderful news is technology advances,

thanks to American industry.

Mr. SANDERS. Ms. Browner, last week, at our first hearing, we

heard some discussions from some panelists who suggested that, as

a result of these regulations, people in America would not be able

to use their lawn mowers, people would be prevented from burning

logs in their fireplace, people would be prevented from driving their

cars if they were the only passenger.

We also heard—coming from a dairy State, I thought it was pretty intriguing—that cows would be wearing diapers. We look forward to that.

Would you want to comment about these rather frightening and

onerous predictions?

Ms. BROWNER. There is nothing in the proposal which we are reviewing public comment on in terms of the public health standards

that will do any of that.

As I have said before, the Clean Air Act I think is quite smart

in giving individual Governors the authority to design individual

State plans for pollution reduction.

Mr. SANDERS. So you don’t think it is true the diaper industry

is really going to be moving forward rapidly by producing diapers

for cows? We shouldn’t all invest in the diaper industry?

Ms. BROWNER. We are not seeking support from the diaper industry.

Mr. SANDERS. I would ask the clerk how much time is left?

The CLERK. Seven and a half minutes.

Mr. SANDERS. Dennis, do you want to go?

Mr. KUCINICH. Yes, please.

Mr. MCINTOSH. That would be fine.

Mr. KUCINICH. Thank you very much. Would you explain to this

committee what you do to work with small business and industry

to come to compliance?

Ms. BROWNER. We have a number of programs across the Agency, not just within our office, to work with small businesses.

Most recently, we have created a small business compliance center where we say to small businesses, look, we understand these

rules may be difficult, whether it be air, water, waste. If you volunVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00422 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
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tarily come in, you work with us to solve a problem. If there is not

a pattern of behavior there, we will set aside the penalty; we will

set aside the enforcement action.

Our goal is to find how best to work with small businesses to

achieve compliance of environmental requirements.

Mr. KUCINICH. So you are not trying to shut business down?

Ms. BROWNER. No. We have had a number of very successful

projects with small businesses.

For example, we have been involved with small printers across

the country to design a blueprint of how better to manage their facilities for environmental purposes. We have worked with metal

finishers. There are any number of small business groups that we

have been working with quite successfully to find how best they

can facilitate, small business by small business, do their part to

protect the environment.

Mr. KUCINICH. Which small businesses have the greatest difficulty coming to compliance as a category, can you state?

Ms. BROWNER. It is hard to answer, because we have so many

different laws that we work to implement with small business—air,

water, waste being the primary ones. The challenges will vary from

small business to small business sector.

Mr. KUCINICH. Let’s shift for a moment to large business.

The Governor of Ohio, Governor Voinovich, testified before the

committee last week. I really didn’t get a chance to ask him a question. I felt like it was a buzzer shot, Mr. Chairman, near the end.

You are familiar with those.

Mr. MCINTOSH. We can probably send it to him to answer.

Mr. KUCINICH. The point he was making, though, I thought was

interesting. And he has said repeatedly that Ohio, and specifically

he mentioned Lorain, would not be an attractive place to continue

automobile production because the EPA and your rules and regulations would discourage it. And he has said that you are directly to

blame for the loss of jobs and the shutdown of manufacturing facilities and that, furthermore, the EPA will make industry defunct in

manufacturing dependent areas.

I think that is an accurate characterization of what he said. I am

asking you, how do you respond to that?

Because there are people in communities like mine who are worried about their jobs. When you have a high-ranking government

official who makes those kinds of statements, they ask to be answered by someone in authority. So what is your answer?

Ms. BROWNER. First of all, we would be more than happy to provide to you the facilities which we have worked to issue permits on,

automobile manufacturing facilities in States across the country

which we have worked to grant permits to so they can expand operation, develop new operations, whatever, in nonattainment areas.

It has not only been in attainment areas.

Second, what I would say most specifically is that your Governor

will make the decisions for your State in terms of how best to reduce their air pollution. That is the beauty of the Clean Air Act as

passed by Congress. It will be your Governor. It will not be the

EPA.

Mr. KUCINICH. But he is saying your regulations—in particular,

in the Cleveland area, we have the Ford casting plant. Ford is inVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00423 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
420

vesting $80 million total over the next 5 years to install equipment

necessary to comply with the current standards. He is saying, look,

what are you trying to do? Are you trying to shut this casting plant

down with these new regs? He is charging that you are.

Ms. BROWNER. No.

Mr. KUCINICH. What is the answer?

Ms. BROWNER. As far as I know, that facility has a permit. They

can operate.

Mr. KUCINICH. But what about the new regs here? Now not just

the Cleveland area but all across the country people are worried

about that. What do you say to them?

Ms. BROWNER. That each Governor will have on the order of 5

to 10 years to determine with the business and the individuals of

his or her State how best to reduce pollution, and there is no requirement that your Governor or any other Governor single out

any individual business or any individual business sector. There is

flexibility in terms of what they can do.

I will tell you this. I think this is important. If we were to conclude the process by adopting the standards we proposed for

ozone—we have not done that, and we have not made a final decision, but let’s say that were to happen—70 percent of the areas

that would not immediately meet a tighter public health standard

could do so through currently available technologies. No new technologies. Through currently available, on-the-book solutions.

Some of those include efforts that we have been engaged in with

individual States. Some of those, quite frankly, include efforts with

industry.

For example, the work we do with Detroit to develop an on-board

canister inside each car you buy next year, a little device you won’t

know is there, but every time you fill your car with gasoline there

will be less pollution in the air because of that cooperative work

between EPA and industry, less than $10 per car.

And I can give you any number of examples 70 percent of the

areas could meet, if that is where the process concludes, a tougher

public health standard for ozone through currently available technology.

Mr. KUCINICH. Thank you, Mr. Chairman. I am just about complete, so I can yield to my colleague.

I want to make this comment. I think what we need to establish

in these hearings is that clean air and jobs are not mutually exclusive, that clean air and the progress of small business, which I

think we all care about, is not mutually exclusive, that clean air

and American manufacturing, there is no mutual exclusivity there.

And if we can do that, I think we all can win in this process. We

can find a way to encourage small business, protect our basic manufacturing industries, protect the health of our people and have decent quality air standards at the same time.

I mean, that is the kind of challenge we have, which is a difficult

challenge, to be sure. It is one that brings us to this table and gets

us into very spirited debate. But that is what we are challenged to

try to do and to try to—actually, we have to have it both ways I

feel.

Thank you very much, Mr. Chairman. Thank you.

Mr. MCINTOSH. Thank you.

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Cindi, could you let us know how much time is on each side?

The CLERK. The majority has 5 minutes; the minority has 21⁄2.

Mr. MCINTOSH. OK. Let me switch gears slightly from the earlier

line of questions and ask you, Ms. Browner——

By the way, thank you. I know we have delayed past the expected time we were supposed to keep you, but I think it is important to get these out into the open.

Ms. BROWNER. We appreciate it.

Mr. MCINTOSH. Do you believe or is it the Agency’s position that

the regulatory impact analysis, not the regulatory flexibility analysis, meets the requirements of the Unfunded Mandates Reform

Act?

Ms. BROWNER. No, that is not our position. I am more than

happy to speak to our understanding of the Unfunded Mandates

Reform Act. We are in no way maintaining that the RIA would

meet the requirements of the Unfunded Mandates Reform Act.

Mr. MCINTOSH. If you could briefly, because I want to move on

to a couple of other questions, explain why the Agency didn’t do the

cost-benefit analysis required by that act?

Ms. BROWNER. The Unfunded Mandates Act conference report

does not require the preparation of any estimate or analysis if the

Agency is prohibited by law from considering the estimate or analysis in adopting the rule. This is not a cost-benefit section of the

Clean Air Act. It is a public health section of the Clean Air Act.

So we read the conference report to tell us that we are not required

to do that estimate, because the Clean Air Act tells us don’t take

into account the costs.

Now, just for the purposes of the Members’ understanding, we

did do that kind of analysis. I cannot use it in making the ultimate

decision, but we did do it, because we thought it was important to

informed discussion, and we did do it. But we are not maintaining

that meets the requirements of the Unfunded Mandates Act. Our

position is the Unfunded Mandates Act and the specific conference

report would direct us not to.

Mr. MCINTOSH. Which we disagree. I think unless it is explicitly

stated don’t do it, if it is silent and that has been interpreted not

to compel it, I think that is a different matter.

Ms. BROWNER. Well, the courts have routinely interpreted this

section 109 of the Clean Air Act as saying the statute and its legislative history make clear that economic considerations play no part

in the promulgation of standards. I mean, there is the lead industry, there is the American petroleum industry, there is——

Mr. MCINTOSH. That is a different standard than what the conference report was going to, where it is explicitly forbidden.

Ms. BROWNER. By law.

Mr. MCINTOSH. Let me yield a minute to Representative Barr.

Mr. BARR. I would ask to have the article to which I referred earlier by the distinguished chairman of the Commerce Committee,

Tom Bliley, appearing on page 3 of the April 21 edition of Roll Call

inserted into the record.

Mr. MCINTOSH. Seeing no objection, it will be done.

[The article referred to follows:]

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Mr. BARR. Ms. Browner, do you have a copy of the Washington

Legal Foundation petition to which I referred earlier?

Ms. BROWNER. Yes.

Mr. BARR. I would like you to turn to page 7, please; and I would

like to state at the beginning that your quote at the middle of the

page there I think, to which I have referred earlier and to which

I would ask you to give the full context of, is included in the Washington Legal Foundation petition.

They state on page 7, from the beginning there, as you can see

the first full sentence on that page, ‘‘For example, in her keynote

address to the Children’s Environmental Health Network Research

Conference held in Washington, DC, on February 21, 1997, Administrator Browner specifically discussed the merits of the proposals

for which EPA is seeking comment.’’ That is the context I believe

in which the quote that we referred to earlier was given.

‘‘She acknowledged that the quality of our air has greatly improved over the years but blasted industry for opposing the current

proposals.’’ I agree the term ‘‘blasted’’ may be editorializing somewhat. But, aside from that, it goes on to state that ‘‘all but suggesting that industry is indifferent to asthmatic children.’’

Ms. BROWNER. Excuse me, Congressman Barr, I am not sure

where you are reading from. I lost you in the document.

Mr. BARR. Let me give you the copy then. I thought you said you

had a copy?

Ms. BROWNER. I think I have it. What page?

Mr. BARR. Page 7.

Ms. BROWNER. You are reading from a news report of BNA?

Mr. BARR. No, I am reading from the petition of the Washington

Legal Foundation.

Ms. BROWNER. And they are quoting a BNA news report.

Mr. BARR. I think you know exactly what I am quoting from. I

am quoting from page 7. I stated page 7 earlier.

Mr. SANDERS. I don’t know what you are quoting from, and I

would like to know.

Mr. BARR. You don’t have to.

Mr. SANDERS. I sure do. I want to be informed. What are you

quoting from?

Mr. BARR. I am tired of her dilatory tactics. I stated very clearly

it was page 7, Mr. Chairman; and she acknowledged she had the

petition. That is what I am reading from. Since there is some question about it, I would move that the petition be inserted in the

record.

Mr. MCINTOSH. Certainly.

[The petition referred to follows:]

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Mr. BARR. All I am asking, Ms. Browner—and I think you know

what I am reading from—page 7, ‘‘She states unequivocally that it

was a fact that science tells us the standards (including the current

PM and ozone standards) are not adequate and we have to move

forward.’’ She then concludes with that following quote that I

quoted earlier.

Ms. BROWNER. I think they referred to it as a following flourish.

Mr. BARR. They referred to it as a following flourish.

I am not trying to avoid that. What I am trying to do is I am

stating that is editorializing as the other word is. I am not focusing

on the editorializing, and you know I am not. What I am asking

you is, is there anything in the quoted portions of your testimony

that they quote on page 7 that is inaccurate?

Ms. BROWNER. This is not testimony. They quote from a

speech—— Mr. BARR. Is there anything in the quoted portion of your speech,

which is your keynote address to the—I already stated that. I am

asking you, focus on this page, please. I am giving you the opportunity. You stated earlier it was out of context or something. Is

there anything in your quoted language here that is inaccurate?

Mr. TIERNEY. Mr. Chairman, then I recommend we put the

speech in the record and get the matter over with.

Mr. MCINTOSH. We will ask to provide the whole speech.

Ms. BROWNER. I would like to make two points.

I do not have the speech with me. As I am sure all of you can

appreciate, there are times when you deliver a speech which has

been written by your staff and perhaps by yourself where you say

additional things. I in no way can remember giving a lot of speeches, whether or not perhaps something beyond what was written

was said, or if something written in a speech was in fact not delivered.

Now, we can ask the organization if they have a transcript. I

think it was a speech before the National Children’s Health Effects

Foundation, and we will be more than happy to do that.

Mr. MCINTOSH. If you could do that and provide the transcript.

Ms. BROWNER. If they have it. I don’t know that they have it.

Mr. BARR. I have asked you a very simple question. You have the

language before you. Is there anything quoted here from that

speech that is inaccurate? If you don’t know, say you don’t know.

Mr. MCINTOSH. Not based on the speech, but based on the piece

of paper there.

Mr. BARR. Just what is in here. That is all I am asking.

Ms. BROWNER. I don’t have the speech in front of me.

Mr. BARR. You have the quotes here.

Ms. BROWNER. You are asking me to remember from one of any

number of speeches I give. I am more than happy to give you the

speech. There is nothing here; but in an effort to be responsive to

the questions I will be more than happy to give you the speech.

And we will contact the organization to see if they made a copy of

what I actually said.

Mr. MCINTOSH. I guess, Bob, are you asking essentially do you

stand by the way that quote—that they have reported you saying?

Ms. BROWNER. This was a speech generally about the health of

our children.

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Mr. BARR. As usual, the chairman very accurately synthesized

what I asked. The witness understands what I asked also.

Mr. MCINTOSH. Which is, do you stand by the statement that is

quoted there as coming from you?

Ms. BROWNER. I was giving a speech about the health of our children broadly. I stand by my statement as I made it here today

that, when it comes to protecting our children, I will not be swayed.

Mr. BARR. We know that. I am asking about the other language

here. Does it accurately reflect your views? Are they misquoting

you or taking you out of context?

Ms. BROWNER. It is accurate that if the science shows that we

have to do more to ensure that our kids are safe—if the science

shows us that we must do more to ensure our children are safe

from pollution, then that is what we will do.

Mr. BARR. That is not what it says.

Ms. BROWNER. That is what the quote says.

Mr. BARR. It is not. It says, she states unequivocally it was a

fact.

Thank you, Mr. Chairman.

Ms. BROWNER. With all due respect, Congressman Barr, that is

a quote not from me. It is not even in here presented as a quote

from me. It is presented as a quote from a reporter.

Mr. BARR. Are they actually quoting you? Now we are getting

somewhere.

Ms. BROWNER. I will give you the speech. I do not nor do I think

any of you pretend to understand why a reporter writes something

in one way or another way.

Mr. MCINTOSH. We are giving you an opportunity to comment on

that.

Ms. BROWNER. You want me to comment on BNA? I am more

than happy to. Is that what I am being asked to do?

Mr. MCINTOSH. Did they accurately reflect your views today, I

guess would be the useful thing for us to know?

Ms. BROWNER. It is true that the proposals we have made and

take public comment on for which we have not reached a final decision are an example of how EPA is considering our children’s

health first. That is true.

The second sentence says—it is true that the Clean Air Act

doesn’t allow me to simply conclude a 5-year review with a finding

that industry says they have already done everything they can do.

What it tells me to do is set a public health standard, and that is

what I will do.

Mr. BARR. Mr. Chairman, that is not responsive to my question,

but I give up.

Ms. BROWNER. I am more than happy to try again.

Mr. BARR. No, you are not being responsive. That is fine.

Ms. BROWNER. I will try again.

Mr. MCINTOSH. We are running out of time.

Bernie, I have one more question. Do I have another minute,

Cindi?

The CLERK. No sir.

Mr. MCINTOSH. Do you want to go next?

Mr. SANDERS. Whatever. If you want to continue this, we will go.

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Mr. MCINTOSH. I have got one other question, and that is, if Harvard or HEI and the American Cancer Society do produce the underlying data on those studies, will EPA agree to make them available to this committee in a form that redacts personal information,

such as names and information that is not related to the study——

Ms. BROWNER. Mr. Chairman, as you well personally know, I

have a long history of giving you everything I have that you ask

for; and I will do it again.

Mr. MCINTOSH. Thank you.

Ms. BROWNER. Everything I have is yours. We have given you I

think pages on this, and we are more than happy to give you any

other pages that will be helpful. Absolutely.

Mr. MCINTOSH. I will enlist your effort once again; and I know

you have written letters, go back and ask them to provide that to

the Agency; and we are going to take some independent steps to

do that as well.

Let me just, 30 seconds, conclude and say I agree with Bernie

that we do have to help people who suffer from respiratory diseases

and that all of us share the goal of clean air, and that one of the

concerns that I have—and, frankly, this hearing has exacerbated

that concern—is that we may end up not meeting that goal in a

timely manner by not fully going through these procedural requirements that would then preclude certain lawsuits.

I would urge the Agency to start immediately, particularly with

the Regulatory Flexibility Act and the Unfunded Mandate Act, to

do those analyses for the final rulemaking in a way that will comply with those standards set forth in those two statutes so that we

can protect people who suffer from those respiratory diseases.

Let me now turn it back to you, Bernie.

Mr. SANDERS. I hope that you will be quote-unquote liberal for

a moment in terms of the amount of time that we have and give

Mr. Tierney a chance.

Mr. MCINTOSH. I will. Don’t quote me on being liberal, though.

I will get into trouble.

Mr. SANDERS. Just within a limited context.

Mr. KUCINICH. Social.

Mr. TIERNEY. I am almost inclined to let you off the hook. You

have endured a lot. Let me ask a couple of questions.

I assume that you and all of the legal talent in your power have

made a pretty good determination that you have done all of the

procedural things you need to do; and you feel quite certain that,

whatever the challenge may be, you have done all you can do as

a very practical matter as well as a legal matter?

Ms. BROWNER. I believe we have complied with not only the letter of the law but also the spirit of the law in each and every instance.

Mr. TIERNEY. I have spent 20 years in small business and representing small businesses, and I think that this is—you know, to

my knowledge, small business is always willing to step up and participate in a public-private sort of relationship. All of the people I

represented basically fall into that category, whether it was my

term on the Chamber of Commerce or my representation of them

individually.

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It would seem to me at the next level, after you determine what

is the standard, at the next level would be the time to call upon

those people to work with you and with the local State Governors

to determine just what is the way of implementing whatever standard it is that gets determined. Is that a fairly simple proposition?

Ms. BROWNER. You got it. That is absolutely the way we would

handle this.

Mr. TIERNEY. The second part of that is you would engage small

businesses at that point in time—— Ms. BROWNER. Yes.

Mr. TIERNEY [continuing]. As would, hopefully, the local governments do that and take all of their concerns and ideas into consideration?

Ms. BROWNER. In fact, there is already a dialog about how we

might find the most common-sense, cost-effective solutions.

Mr. TIERNEY. Is that part of your subcommittee group that gets

together?

Ms. BROWNER. Yes, the Federal Advisory Group.

Mr. TIERNEY. That is ongoing—— Ms. BROWNER. With small business representatives.

Mr. TIERNEY. A large number of people?

Ms. BROWNER. You can’t get them in a room.

Mr. TIERNEY. You may not want to.

Ms. BROWNER. No, it is great. Very thorough.

Mr. TIERNEY. Let me focus on one last question I have.

I share a northeast residence with Mr. Sanders. We always have

that concern that just before things go out to sea, they stop by and

visit us. We have a great deal of tourism and other industries that

would really require as well as benefit from clean air. These same

committees that you now have that are dealing with small businesses, it is my understanding they are also dealing with the transference issue?

Ms. BROWNER. Yes, there is a committee looking at the transport

issue. That is correct.

Mr. TIERNEY. Can you tell me a little bit about what the committee’s charge is and what might result from their work so we might

have some comfort to know we are going to get this matter addressed and something is going to result from that?

Ms. BROWNER. Again, because the actual plans for pollution reduction largely fall to the Governors, what the State representatives are now doing is, one, coming to a better understanding of the

source of the problem. There is a lot of modeling that has been

going on to understand who really generates the lion’s share of the

problem, if you will, in terms of the transport issue.

Once that process is concluded, it is a complicated process. Then

they hope to turn toward control strategies. What are the actual

steps that would be taken in individual States by industries who

have certain levels of pollution to the public air? What are the

steps that would be taken to reduce the levels of pollution?

Mr. TIERNEY. Is it anticipated that when the EPA gives final approval or disapproval of any particular State’s proposal that how

they have addressed this transference issue will come into play as

to whether or not they get approved?

Ms. BROWNER. Yes.

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Mr. TIERNEY. It will have an effect as to whether or not they reduced it sufficiently in their own State but also how their plan

takes consideration for States like Vermont and Massachusetts for

the downwind?

Ms. BROWNER. That is a factor, yes.

Mr. TIERNEY. I thank you for your patience and the hard work

you are doing.

Ms. BROWNER. Thank you very much. If I might make—I thought

you were done.

Mr. SANDERS. Go ahead.

Ms. BROWNER. No, go ahead.

Mr. SANDERS. I would just at this point want to thank the chairman. I know, obviously, there are a few minor differences of opinion here; but I thought it was a productive and good hearing; and

I think you did a good job in producing it.

I would appreciate if we could leave the record open. I would like

to put in the record an article by Henry Waxman in the same issue

of Roll Call that Mr. Barr referred to.

Mr. MCINTOSH. Seeing no objection, gladly.

[The article referred to follows:]

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Mr. SANDERS. There are some statements from the State of

Vermont and other State officials I would like to include in the

record.

Mr. MCINTOSH. We will include those.

Mr. SANDERS. I wanted to thank Ms. Browner. You have been

here for a long time. Thank you very much, you and your staff. I

thank the staff of your committee as well and our staff.

Mr. MCINTOSH. Thank you Mr. Sanders, both you and your staff

have been a great help to us.

Ms. Browner, you wanted to say something?

Ms. BROWNER. I wanted to say my thanks to all the members of

the committee. This is not a small issue. It deserves vigorous discussion. I think we have rightfully engaged in that here today, and

I appreciate it.

I want to be very clear: We have not made a final decision. We

do not consider ourselves above the law. It is true that almost anything I decide will be subject to litigation. That is the nature of the

business I do on behalf of the American people. It is unfortunate.

There will be some in industry who, quite frankly, want to delay

their responsibilities to reduce their pollution. That has been true

previously; and, unfortunately, it will continue to be true in the future.

It is not all industry, by any means. So I don’t make my ultimate

decision in this or any decision based on whether or not I will find

myself in court. I will find myself in court, rest assured. It is the

nature of what I do.

I make my decision based on the science. I make my decision

based on the law. And I hope that these suggestions that somehow

or another I am acting in an illegal manner, that I have acted outside the confines of the law, have been addressed today.

I do believe as part of my job as the head of the country’s environmental Agency I have an obligation to speak out to the American people, to report to them on what the science shows us and

what the law requires me to do. That is all I have attempted to

do in giving any speech at any time in my tenure.

I don’t think anyone here attempts to or seeks to intimidate me

or in any way stop my obligation to do that. I do that within the

meaning of my job, Administrator of the Environmental Protection

Agency for the American people.

Thank you.

Mr. MCINTOSH. Thank you, Ms. Browner. We do share the goal

of reducing and eliminating unnecessary air pollution in our country and protecting the health of American citizens, but have some

very serious concerns that we are increasing the legal exposure

that could inadvertently—I am sure it was not intended—but set

back that goal.

Thank you very much for coming. I appreciate it.

[The letter referred to follows:]

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Mr. MCINTOSH. Let me call forward the final panel in this hearing. We have with us the Honorable Sally Katzen, who is the Administrator of the Office of Information and Regulatory Affairs; the

Honorable Jere Glover, who is the Chief Counsel for Advocacy of

the U.S. Small Business Administration; and remaining with us

will be the Honorable John Cannon, the General Counsel of the

Environmental Protection Agency. Thank you all for coming.

Let me say welcome to you. I understand you were at another

committee.

Ms. KATZEN. Another subcommittee of this committee.

Mr. MCINTOSH. Let me ask each of you to please rise; and, as I

explained earlier, don’t take this personally. It is our policy of our

committee and subcommittee to swear in each of our witnesses.

[Witnesses sworn.]

Mr. MCINTOSH. Please let the record show that each of the witnesses answered in the affirmative.

STATEMENT OF SALLY KATZEN, ADMINISTRATOR, OFFICE OF

INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET

Mr. MCINTOSH. Our first witness on this panel is someone whom

I have admired greatly in the effort to make sure that we use the

correct procedures. She has worked long before joining the administration in that effort in the legal community in writing regulations,

and I admire her efforts to continue the tradition of ensuring that

we do as good a job as possible in ensuring that we minimize the

costs and maximize the benefits to society of regulations that are

produced in our Government.

So let me now—Sally, I call on you to share with us your testimony. The entire written testimony will be put into the record.

Feel free to summarize it or expound on other points if you would

like.

Ms. KATZEN. Thank you very much, Mr. Chairman, particularly

for that gracious introduction.

Members of the subcommittee, it has been a long morning. Actually, it is now early afternoon.

You have asked us to appear today to discuss EPA’s proposals to

revise the ozone and particulate matter ambient air quality standards. As is painfully clear, these proposals have sparked an enormous amount of interest from a wide variety of affected groups. Indeed, in my experience as Administrator of OIRA, there has been

no other rulemaking proceeding that has attracted as much attention or interest.

I am also acutely aware of the questions that have been raised

about OMB’s review of these proposed rules under Executive Order

12866, from the logistics of how and when we conducted the review

to the substance of what we thought of the proposed rules and the

accompanying economic analyses that EPA prepared.

Your first panel this morning consisted of the testimony of the

Administrator of EPA, which I think is fully appropriate. Under

the Executive order, the Agency which has the statutory authority

bears the responsibility for developing the substantive regulatory

standards. OIRA’s role is to provide dispassionate, objective review

of the agency’s work in light of the Executive order. Among other

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things, our task is to ensure that the regulatory agency asks the

right questions, considers the relevant scientific and other data,

employs sounds analysis, and balances the competing concerns in

a reasonable, practical way.

Executive Order 12866 sets forth a number of principles generally applicable to regulatory decisionmaking. It was, however,

purposely qualified to apply, and I am quoting, to the extent permitted by law, close quote.

That qualification is particularly important for these proposals

for, as the EPA Administrator has testified, the Clean Air Act requires her to set primary air quality standards that ‘‘protect public

health with an adequate margin of safety.’’ These standards, therefore, are health-based; and the EPA Administrator is not to consider economic factors in determining the appropriate standard.

Nonetheless, the Executive order requires the agency to prepare

economic analyses for proposed and final rules and submit them to

OIRA for review, even if economic considerations cannot be a determining factor—or any factor—in formulating the proposal.

In accordance with Executive Order 12866, EPA prepared extensive cost-benefit analyses—over 3 inches of material—for these

standards. That step is important because, while the standards

themselves are health-based and may not reflect economic considerations, they are not, as you heard this morning, self-executing. Instead, after the standards are set, EPA must issue implementation

policies or regulations that provide for the achievement of these

standards by the States.

As a result of EPA’s preparing the economic analyses during the

standard-setting phase, those addressing implementation issues—

EPA, its advisory committees, State and local governments who are

responsible for implementing the standards, and all of those affected—would likely have the best information available as they do

their work.

Turning briefly to the specifics of OMB’s review of these proposed

standards, you have inquired about this in a series of letters. Before we received the proposed standards, OIRA’s staff attended a

number of meetings at which EPA explained in general terms the

methodology it was using in its analysis of these rules.

The proposed rules themselves arrived on November 4, 1996,

leaving us approximately 3 weeks available for review. During that

time, my staff worked intensively, late into the evenings and on

weekends. Because they were proposed rules, our task included assuring that the regulatory option preferred by the agency is fully

explained and that other appropriate regulatory options are set

forth with sufficient clarity to permit the public to provide meaningful comments during the public comment period.

We had the same objective with respect to the accompanying economic analyses, namely to ensure that the agency provides sufficient and accurate information on the estimates of benefits and

costs to permit the public to provide meaningful comment.

In your letter of invitation to this hearing, you asked that I address OMB’s position on EPA’s compliance with the Regulatory

Flexibility Act. My response, again, was included in written materials that I submitted to you.

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Simply stated, the regulatory agency has the front-line responsibility for complying with the act; and Congress has given the SBA

Chief Counsel for Advocacy the responsibility for monitoring agency

compliance with that act. OMB has no separate opinion on this

issue.

I would be happy to answer any questions that you have on these

or other matters, and I thank you again for the opportunity to appear before you again.

Mr. MCINTOSH. Thank you very much, Sally. I appreciate that.

We will indeed have some questions.

[The prepared statement of Ms. Katzen follows:]

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Mr. MCINTOSH. Let me turn now to our second witness on this

panel, Mr. Jere Glover, whose opinion on this has been discussed

greatly, so we will now hear from you on your testimony.

As I mentioned, your full remarks will be put into the record. If

you wanted to amplify any of the points discussed earlier as

well——

STATEMENT OF JERE GLOVER, CHIEF COUNSEL FOR

ADVOCACY, U.S. SMALL BUSINESS ADMINISTRATION

Mr. GLOVER. Thank you, Mr. Chairman. I would like to thank

you very much for having this hearing.

What I have found as chief counsel is, quite often, these hearings

have a tremendously salutary effect on agency compliance. Merely

the fact you are having the hearing and caring about small business and looking at this issue has a very good ripple effect throughout the Federal agencies. I think that is going to be particularly

true here, and I will share with you some comments and meetings

that I had with EPA just yesterday and some results of that.

Before I do that, let me first say that with me today is Kevin

Bromberg, the Assistant Chief Counsel for the Environment. He is

representing one of the hardest working, most dedicated groups of

employees in the Government; and I am pleased to be head of the

Office of Advocacy and work with these fine individuals.

As you may know, the Office of Advocacy is an independent office

charged with representing the views of small business before State,

Federal and even before Congress.

Several Presidents and a number of Congresses have attempted

to change the culture within the Federal Government and how it

treats small businesses. A number of pieces of legislation have been

passed trying to do that.

First, the legislation creating the Office of Advocacy some 20

years ago; shortly thereafter, the Regulatory Flexibility Act was

passed; the Equal Access to Justice Act has been passed; the American Paperwork Reduction Act has been passed and a couple of

years ago amended; and of course now, SBREFA.

By and large, those attempts to change the way the Government

deals with small business have not been as successful as any of us

would like them to be. Hopefully, the SBREFA legislation will be

more successful.

I think that sometimes I look at chief counsel and I feel like Rodney Dangerfield, that I just don’t get any respect, and I often compare the previous activities of the office as the age-old question of

if a tree falls in a forest and there is no there to hear it, does it

make a sound? Sometimes I find myself thinking, well, gee, is that

the case?

Well, with SBREFA, I think we are going to see some changes;

and I think we already are beginning to see small business and

even the Office of Advocacy getting some more respect.

In this regard, let me just say we have done a lot of outreach on

SBREFA. We have had training sessions with Government officials.

We had over 600 Government officials attend Office-of-Advocacysponsored training sessions, and over 200 trade association executives have done that. So we have been making sure that the word

gets out.

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And I think perhaps that we have been working with industry

very closely to make sure they understand this new law, and it

really is going to change the way the Federal Government deals

with small business.

The judicial review provisions that are now in the Regulatory

Flexibility Act are there and are going to be used, hopefully not

very often. Hopefully, we will get some clear law very soon; but we

will see.

Turning specifically to EPA, reviewing the annual reports that

have been filed by the previous chief counsels and the ones that I

filed, EPA has generally done a good job of complying with the Regulatory Flexibility Act. However, of course, EPA varies from office

to office and from regulation to regulation.

Yesterday, I attended the first panel meeting for the off-the-road

diesel regulations. Let me tell you, that proves that the panel process can work, an agency can do a good job. Not only have they

looked at the implications of the industry, they paid special attention to small business. They have gone out of their way to look at

the competitive issues. They have done an extremely good job of

considering what they were proposing to do, how they were doing

it, looking at alternatives, looking at ways they could make it better for small business. I was genuinely pleased that the process

worked so well.

Given the general history of Mary Nichols and the Air Office and

their willingness to work with us and work closely on developing

regulations, I was obviously shocked when I saw the certification

in this particular case that indicated that they did not believe that

the regulation would have a significant impact on a substantial

number of small businesses.

We obviously, when we heard that was going on during the regulatory process, alerted them that we were concerned about that,

that we disagreed with them. You have before you our letter where

we spelled out in some detail our reasons as to why we believed

that was the case.

We will concede that this is an issue that reasonable people can

disagree on. However, I would tell you that the Office of Advocacy

feels strongly that it is our position that a regulatory flexibility

analysis should have been done in this matter, and certification

was not appropriate.

Having said that, I did meet yesterday with Mary Nichols; and

we had a very good conversation about some things. One of the

things I wanted to explain was how we have not been successful

in the past in getting EPA to have the States understand what has

been going on in the regulatory environment in Washington. Not

only has the President but this Congress has done a number of

things that I think changed the way the Government treats small

business in a regulatory environment. That message hasn’t gotten

through to the States.

We met with EPA and with OSHA, and OSHA did agree to meet

with their State representatives and their State counterparts and

encourage them to move toward more sensible enforcement activities for small business. EPA has now agreed that they will do likewise when they bring in their State counterparts, State officials,

that they are going to have us sit down with those people, explain

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to them how their rules, regulations and enforcement policies could

be unfair to small business and how they need to take small business into consideration.

I think that is one of the things that is going to flow from this.

I think another thing that is going to need to be done is any implementation regulations that are going to flow from this have got

to make sure that we educate the Governors. We have recognized

that that is one of the places we hear the most complaints from,

is that State and local officials just don’t know or care about small

business.

While we have been able to make small businesses’ view heard

here in Washington, we have not been able to do that with some

of the others. That is why, when we say it is going to be on the

Governors, it increases our burden of educating the Governors as

to how these regulations should be impacted and how they should

be proposed to help small business.

I would be happy to answer any questions. I want to sincerely

thank you for having this hearing. It has already had a good effect.

Mr. MCINTOSH. Thank you. We will explore further this notion

that it is all going to fall to the Governors.

[The prepared statement of Mr. Glover follows:]

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Mr. MCINTOSH. Mr. Cannon, I understand you do not have prepared remarks, but would you like to make a comment at this

point?

STATEMENT OF JOHN CANNON, GENERAL COUNSEL, U.S.

ENVIRONMENTAL PROTECTION AGENCY

Mr. CANNON. Mr. Chairman, I don’t have prepared remarks; and

I am prepared to answer questions on the legal issues that have

been raised today. I am sure it will be the subject of further discussion.

Mr. MCINTOSH. Thank you. Thank you for sticking around.

Let me now turn over the Chair to my vice chairman, Mr.

Sununu, who will proceed with questions. If I could ask you to reserve my 5 minutes for an appropriate period, I will be back shortly.

Mr. SUNUNU [presiding]. So noted.

At this time, the Chair would recognize Mr. Snowbarger for 5

minutes for questions.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

Excuse me while I flip to the testimony, because I want to make

sure I get this quoted right.

I know the chairman has a line of questions that he wants to

pursue with you, Ms. Katzen; but I just can’t pass this one up.

Thus, given these factors, OMB’s position on EPA’s compliance

with the Regulatory Flexibility Act in these rulemakings is as stated by EPA and SBA. OMB has no separate opinion on this issue.

The way I have used these kinds of statements in the past is,

when somebody talks to me about a particular issue, I say, well,

I have some of my friends that feel this way about it, and I have

some of my friends that feel that way about it, and I agree with

my friends.

Where do you stand? SBA and EPA are taking a different stance

on this issue, and you have agreed with both of them—or you are

not agreeing with either one of them. I don’t understand.

Ms. KATZEN. Thank you. I don’t have an opinion on this.

It is an interpretation of the Reg-Flex Act; and, as the chairman

knows, there are a huge number of responsibilities that are put in

the Office of Information and Regulatory Affairs for implementation and guidance and analysis of a variety of different statutes.

Reg-Flex is not one of them. It is one that we have supported. It

is one that we worked with within the administration to have the

President support judicial review of Reg-Flex, which was a very important piece of SBREFA.

And I work closely with SBA. We had a memorandum of understanding that Mr. Glover and I entered into 3 or 4 years ago in

which I would refer to his office regulations that come to our office

for review where there are issues that we think may be of interest

to him under the Regulatory Flexibility Act, and we refer those to

him.

So I think I agree with my friends, mostly because I haven’t done

the kind of analysis that I would do if I were asked to, which I

have not been in this case—to take a position.

Mr. SNOWBARGER. Again, I think when the chairman returns, he

has some followup questions to that. I will let it go at this point.

479

Mr. Glover, I would like to focus on—it didn’t come from your

testimony but came from the letter that I believe you sent to EPA

back last fall concerning your—well, about your concerns about

compliance with SBREFA. It is my understanding that EPA has relied on two particular cases to say that these requirements don’t

apply to them in this particular rulemaking setting—the Mid-Tex

case and United Distribution case.

It was my understanding you disagree with that legal interpretation. Could you explain for the committee a little more detail why?

Mr. GLOVER. Yes, I can. I think the issue that this rule will not

have a significant impact on a substantial number of small businesses, what we are seeing is several things.

One, we are seeing that those cases were fairly narrow; and they

were involving a situation where the businesses involved were unregulated. There was no regulation at all on those industries, on

those businesses. The small businesses were outside of the scope of

the agency’s abilities to regulate them. I think they were fairly narrowly drawn.

I think those cases were also in the context of there was no judicial review of the Regulatory Flexibility Act at all until SBREFA

was passed. I think that distinction is there.

I think there are also some other regulations that are automatically triggered, so there will be an automatic trigger that goes into

place. We talked about that in my letter at some place. I did include a copy of that letter attached to my testimony rather than

simply reiterate what we had said there.

I think we also have some precedent where we had seen some

previous actions of EPA where they had gone ahead and done RegFlex analysis in similar situations. So we felt the Regulatory Flexibility Act—the first impression is this regulation will have a significant impact on a substantial number of small businesses. It is

just going to happen, folks. Let’s not kid ourselves. It is going to

happen.

Now, is it a direct impact or is there somebody else involved? We

can argue about that. But to say it won’t have any impact I think

is simply—it will have an impact. It may be that someone else—

there is a third party that intervenes, that forces that to happen,

but it is going to have an impact.

So those were the arguments we laid out. Our position hasn’t

changed since we wrote that letter back in November.

Mr. SNOWBARGER. Understanding that the whole purpose behind

the Reg-Flex Act and SBREFA specifically was to allow small businesses to have a greater impact on the decisionmaking process

sooner and understanding that the White House, through its small

business conferences and things of that nature, has also expressed

some concern about this, how do we now find that in a sort of a

battle of interpretations between two agencies we are not protecting the small business?

Mr. Glover or Ms. Katzen, either one?

Mr. GLOVER. I don’t have veto power over agency action; and,

quite frankly, I don’t seek that. If you offered to me, I would run

away from it.

480

But I do think that we will have our voices heard. I think there

will be a challenge in this matter; and I think, ultimately, we will

have clear law in a year or two as to exactly what is meant here.

Mr. SNOWBARGER. It seems pretty disappointing that you have to

have your say by going to court, I guess.

Mr. GLOVER. Thank you for the opportunity to also have our say

here today.

Ms. KATZEN. Part of my answer to that would be to step back

from the legal requirements—— Mr. SNOWBARGER. By the way, we have had an awful lot of stepping back today.

Ms. KATZEN. OK, let me step forward to the policy implications

of this. This is why I think in this particular instance I see merit

in SBA’s argument; and I also see merit in EPA’s analysis of this,

to the extent we are talking about a health-based standard.

We are asking the question of not whether the period of time for

compliance should be extended, whether a separate requirement

should be imposed, whether reporting requirements can be tailored.

We are talking about what the science tell us about the health base

that you need to satisfy the statute? And, on that basis, given the

intent of the statute, is there something that the small business

community—as a small business community—can contribute in a

meaningful way?

I raise that as a question without a predetermined outcome.

On the other hand, when it comes to the implementation, I believe the Regulatory Flexibility Act is absolutely clear; and EPA

has brought small business in to consult on a variety of ways. The

first OSHA panel was the tuberculosis panel, and that was very

salutary in tailoring the rule.

Mr. SNOWBARGER. I understand that. The question we have been

trying to raise today is that there are some of us that feel that

there has been a wrong decision made in terms of the procedure,

that there were some hoops that were supposed to be jumped

through—and Mr. Glover agrees with those hoops. They weren’t

jumped through.

And now, all of a sudden, the action of the Agency and its procedure has created a cause of action in court, a reason to go to court,

that goes beyond the health standard. It foes to the process of determining what that health standard should be. That is what concerns me.

Mr. SUNUNU. The gentleman’s time has expired.

I would like to recognize Mr. Kucinich for 5 minutes. We can pick

up that line of questioning if we have time reserved at the end.

Mr. KUCINICH. Thank you very much, Mr. Chairman, and to Mr.

Glover.

I am looking here at the conclusion of your letter of November

18, 1996, wherein you recommend that the EPA convene an informal group of small business representatives to obtain comments on

the rule.

I am also looking at your testimony prepared today on page 8,

April 23rd. It says the EPA did agree, however, voluntarily, to conduct a SBREFA-like panel process. It held two meetings with small

entities, the results of which we are advised EPA will submit for

the record.

481

Is EPA trying to involve small business or are they not?

Mr. GLOVER. I think they clearly are, and of the various offices

of EPA the Air Office has always been a little bit better than some

of the other parts in doing that. We have had discussions early

with them. They made changes we suggested.

Now, on the big issues, we have not come to any meeting of the

minds with that. They have been responsive in having panels, but

we did recommend people for those panels. They brought small

business in. They convened them. So, yes, they are being responsive to small business in a general way.

The question is, legally, technically, are they complying with

SBREFA? To that, my answer is no. But, otherwise, are they going

out and doing what they said they would do and what we asked

them to do? They certainly are.

Mr. KUCINICH. So they are technically not complying, but they

are meeting with business entities?

Mr. GLOVER. That is correct.

The problem that we have with the small business is the earlier

small businesses, the agencies, start considering small business,

the more likelihood they are going to fashion a reasonable recommendation, a reasonable regulation, that is going to be fair to

small businesses. The whole idea behind the panel process is to get

us involved in that process very early on. We have certainly had

EPA agree to do something like this, and they brought small business in.

What the ultimate outcome will be after the regulation was proposed, what happens in the final regulation, this will be a factor

they will consider; and I appreciate very much EPA being willing

to have these panels and bring small businesses in; and I appreciate their willingness to listen to what they are saying.

Mr. KUCINICH. Your job, in effect, if I may, is to make sure small

business gets a hearing, is that correct?

Mr. GLOVER. That is part of my job. Other parts of my job is to

report to Congress on the Regulatory Flexibility Act and the Agency’s compliance with the act. There are a variety of other things we

do—outreach to small businesses. We do a variety of different

things.

Mr. KUCINICH. If small business is not getting a hearing, it is

your responsibility to see they do get one. You are saying in your

testimony here that you are trying to discharge your responsibility,

and what you are saying is they have had some meetings already.

Are you responsible for that?

Mr. GLOVER. Yes, sir.

Mr. KUCINICH. Thank you.

I also want to ask a question of Ms. Katzen. On page 2 of your

testimony, you speak of the Executive order which requires agencies to prepare economic analyses for proposed and final rules and

then submit them. The information that you have been presented

by the EPA, are you satisfied that it fulfills that requirement?

Ms. KATZEN. We received with the proposals draft regulatory impact analyses, which contained extensive cost-benefit analyses. As

I have indicated in my response to the chairman, we have had a

lot of discussions with EPA as to whether additional work would

482

be productive; and they have agreed to do additional work at the

final rule stage.

Mr. KUCINICH. Fine. And could I ask you then, when you are

speaking of cost-benefit analysis, the documents that you have

been presented with, do they speak of the benefits of public health,

for example, the benefits that people may have from not having a

pulmonary problem exacerbated by air pollution, the benefits

asthmatics may have from not having a climate that is rife with

air pollution? Are those health benefits quantified?

Ms. KATZEN. Yes, some of the health benefits can be quantified

and indeed are monetized. Some are not monetized but are quantified. Some are discussed in qualitative terms as well. Our Executive order provides that an agency should quantify to the extent

possible and otherwise provide a qualitative description, and that

it all be included in the analysis.

Mr. KUCINICH. Are you familiar with the results when the monetized benefits—I will be concluding here. When the monetized benefits are compared to the costs, are the benefits based on the information that you have received? Is it more beneficial in terms of

money to the public or is it more costly?

Ms. KATZEN. The combined particulate matter-ozone standards,

taken together, show benefits that justify the costs. On a

disaggregated basis, the benefits are appreciably greater for the

particulate matter—the fine particle—standards, than they are for

the ozone standard, where the benefits and costs are each estimated in a range and they do overlap.

Mr. KUCINICH. I think it would be interesting, Mr. Chairman, to

have that kind of information presented for our record. That is one

of the reasons I am sitting here, is to try to find out what the cost

benefits are, if, in fact—and I think there should be some economic

analysis that attends to the health benefits.

Thank you.

Mr. SUNUNU. Thank you, Mr. Kucinich.

Mr. McIntosh, you are recognized for 5 minutes.

Mr. MCINTOSH. Thank you, Mr. Chairman. It feels good, doesn’t

it, John?

Let me ask a question of Mr. Cannon, and that is a question I

addressed earlier to the Administrator but didn’t get a very good

answer.

How can you reconcile the two statements—the certification that

there are no significant impacts, only small entities, and then the

regulatory impact analysis statement on page E–12 that says there

are significant impacts on small businesses of the preferred option

that EPA is proposing?

Mr. CANNON. I think those statements are reconcilable in light

of the different purposes of those two documents.

Regulatory impact analysis is designed to, and in fact does, engage in a hypothetical review of what overall costs and benefits resulting from a particular action like the NAAQS might be. It

makes certain assumptions about implementation efforts by the

States under the Clean Air Act, and our understanding is that that

is what the Executive order requires of us and expects of us.

483

On the other hand, the Regulatory Flexibility Act, and particularly the regulatory flexibility analysis provisions, are focused on

requirements applicable to small entities.

The purpose of the regulatory flexibility requirement—— Mr. MCINTOSH. Isn’t there a superseding requirement that both

statements be truthful?

Mr. CANNON. I think both statements are truthful, Mr. Chairman.

Mr. MCINTOSH. Even though they contradict each other?

Mr. CANNON. They are addressing different points under different authorities. But I think those two different authorities—— Mr. MCINTOSH. This reminds me of a statement that Richard

Nixon once made when I was a little kid, and I was horrified by

it, but it was something along the lines: You may think you know

what I said when you heard me say something, but I am not sure

you understand what I said is not actually what I meant. It is a

bizarre contortion to say that two things that are opposite conclusions are both true.

Mr. CANNON. I don’t think that is bizarre at all. It happens in

the law all the time, as you know.

Mr. MCINTOSH. I don’t buy into that.

Mr. CANNON. Under the Regulatory Flexibility Act, as the courts

have made clear in the Mid-Tex and in the United Distribution

Co.s decisions, the certification of no significant impact on a substantial number of small entities is a certification that goes to impacts on small entities subject to the requirements of the rule.

That is perfectly consistent with the purpose of the regulatory

flexibility analysis, which is to look at those requirements, to identify them, things like recordkeeping, compliance obligations, and so

forth, and to tailor them to meet the particular needs and requirements of small businesses, so that disproportionate impacts from

those requirements on small businesses can be avoided.

Mr. MCINTOSH. Mr. Glover, do you agree that has been sufficiently reconciled?

Mr. GLOVER. No, sir.

Mr. MCINTOSH. I don’t either.

The question I have now, actually for you, Sally: We talked about

the role of OIRA a lot in the last Congress, and I sponsored a bill

that would have given that Agency a lot greater powers under statutory terms to coordinate the review of regulations.

One of the things you said at that point was, you are justifiably

proud of the open rulemaking process and the increased accessibility for the public, increased cooperation and coordination among

the Federal agencies, between Congress and the executive branch

and the Federal Government, State, local and tribal governments,

businesses and individuals, and good processes produce good decisions.

I am deeply troubled by this particular process where EPA, the

agency issuing the regulation, and the SBA, the agency that has

authority to interpret SBREFA, have diametrically opposing conclusions about whether the Agency has followed the law in this

area.

You tell me OIRA takes no position on that. You don’t have any

preference at all between those two legal authorities. Do you disVerDate 11-MAY-2000 14:44 Jul 15, 2002 Jkt 099010 PO 00000 Frm 00487 Fmt 6601 Sfmt 6602 W:\DISC\43516 pfrm09 PsN: 43516
484

agree with my statement that the fact that that is not resolved increases the chance of litigation after the fact and once the rule is

promulgated?

Ms. KATZEN. Starting at the end of the question, it will probably

be another allegation in the complaint of one of the petitions for

review of the resulting rule and thus be part of the litigation which

will inevitably occur no matter what is decided and no matter what

processes are followed.

Mr. MCINTOSH. But as a lawyer, would you advise your client,

hypothetical client, if you could remove complaints, items in a complaint, to do so?

Ms. KATZEN. That is generally sound advice that I would give.

One of the roles that I perform, however, is not to be a legal advisor. I heard earlier some reference to who should resolve this issue,

and I say strongly, it is not me.

There is within the Justice Department, the Office of Legal

Counsel, to whom questions of interpretation of law are uniformly

forwarded when there is a conflict within the administration.

Talking about regulatory policy, attempted—— Mr. MCINTOSH. Did you all seek an interpretation on this question?

Ms. KATZEN. No.

Mr. MCINTOSH. Was there any discussion of that option?

Ms. KATZEN. No.

Mr. MCINTOSH. Has OIRA ever returned a regulatory proposal or

any of the items that it reviews because, in their opinion, the Agency had failed to meet the legal standards required in proposing the

rule?

Ms. KATZEN. The issue of whether we have returned a regulation

under Executive Order 12866—and I think there have been maybe

six or seven instances in our tenure—we view as the sign of a failure, the sign of an impasse, where we cannot have the Agency accommodate, be persuaded by, the suggestions that have been made

that would improve or enhance the regulatory process.

As I quickly here review in my mind what I remember to be the

specific instances for those returns, those were on policy grounds

rather than legal grounds, although the legal grounds may well

have been a factor.

With respect to Regulatory Flexibility Act itself, our function is

to review a proposed rule to see if there is, for example, a certification which was present here. The question of whether that certification was appropriate is something that I would have referred

to Jere Glover as consistent with our memorandum of understanding of referrals of such matters.

Mr. MCINTOSH. So my concern is, when Jere Glover reports back

to you no, it is not correct in this situation, why did you clear the

rule?

Ms. KATZEN. Actually, there has been a lot of reference to his letter of November 18th. There is also a letter of November 27, and

the record would be more complete by adding this letter to the

record as well. It is a letter to Senator Bond, signed by Jere Glover

and Mary Nichols jointly, which says that without having to resolve the legal question, there is a process in place for getting the

necessary input, the appropriate input, from small businesses. On

485

that basis, both of these agencies were prepared to go ahead, and

therefore there was no reason for me to have to resolve the dispute.

In addition, there was at that point a court-ordered deadline of

November 29th that had to be met for the issuance of the rule.

With this additional information from Mary Nichols and Jere Glover, I felt that the issue had been sufficiently handled for purposes

of our concluding review in the face of a court-ordered deadline.

Mr. MCINTOSH. My time has expired. Let me just express disappointment that OIRA doesn’t independently make those conclusions, and, furthermore, when they have a signal from the controlling legal authority, as the vice-president coined that phrase, that

there is a problem, then I think you need to undertake an independent assessment about the impact of that legal dispute on the

ultimate viability of the regulation.

Mr. SUNUNU. Why don’t I turn the Chair back over to Mr.

McIntosh at this time.

Mr. MCINTOSH [presiding]. Fine. Thank you, Mr. Sununu, for

serving very well as chairman. It is a pleasure having you as my

vice chairman.

Let me turn now to Mr. Sanders.

Mr. SANDERS. Mr. Kucinich, do you want to go?

Mr. KUCINICH. If I may. Thank you, Mr. Sanders. Thank you,

Mr. Chairman. I want to ask Ms. Katzen a question here, and I

want to make sure I understand this.

If you have a disagreement within the administration, you go to

Judiciary; right?

Ms. KATZEN. If there is a disagreement about an interpretation

of law, the ultimate arbiter of legal interpretations would be the

Office of Legal Counsel at the Department of Justice.

Mr. KUCINICH. If there is a disagreement within the administration, that is who you go to; right?

Ms. KATZEN. Yes.

Mr. KUCINICH. Mr. Glover, if there is a disagreement within the

administration, who do you go to?

Mr. GLOVER. That certainly is an option, to go to the Office of

Legal Counsel. We did not choose to do so in this case. We do not

have to do so.

Mr. KUCINICH. Now, I want to understand your status here, because I am new to Congress and you can help me in getting a definition here.

Are you part of the administration itself? Are you a member of

the administration in the same way Ms. Browner is?

Mr. GLOVER. Yes, I am.

Mr. KUCINICH. What is your status in the administration?

Mr. GLOVER. The Office of Advocacy was created 20 years ago to

be an independent voice for small business within the administration. We work with the Federal agencies, we work with the White

House, to help make sure that small business’s views are being

considered.

Mr. KUCINICH. Do you report to the Administrator of Small Business?

Mr. GLOVER. I do not.

Mr. KUCINICH. So you are independent?

Mr. GLOVER. Yes, sir.

486

Mr. KUCINICH. Your independent status and the status as a

member of the administration at the same time, does that put you

in any kind of a conflict with serving the administration?

Mr. GLOVER. It does from time to time, yes, sir.

Mr. KUCINICH. And what about your—do you find yourself ever

in conflict with a group like the National Federation of Independent Business?

Mr. GLOVER. Yes, sir, on several occasions.

Mr. KUCINICH. Do you have any disagreements with them on the

Clean Air Act right now?

Mr. GLOVER. I am not sure. The proposals, amendments to the

Clean Air Act?

Mr. KUCINICH. The clean air proposals that we have right now.

Do you find yourself in agreement with the National Federation of

Independent Business, or do you tend to agree with Ms. Browner?

Mr. GLOVER. I don’t have a position on the Clean Air Act amendments that are currently pending.

Mr. KUCINICH. But you do talk to small business since you are

their advocate. What I was interested in, since you are the advocate for small business, can you say that the position of the National Federation of Independent Business, which is the principal

spokesperson group for small business in this country, that that is

the position that you are here to advocate as the advocate of small

business?

Mr. GLOVER. No, sir. No organization sets policy for the Office of

Advocacy. I set that alone, and I will not follow—just because one

organization thinks that is what is right for small business, that

is not controlling over what I do. I do that based on my own independent analysis and my staff’s analysis.

Mr. KUCINICH. You are saying you are really not here as a voice

of business or a voice of the administration?

Mr. GLOVER. That is correct.

Mr. KUCINICH. So then who are you a voice of?

Mr. GLOVER. I am a voice of the Chief Office of Advocacy at the

Small Business Administration.

Mr. KUCINICH. Thank you.

Mr. MCINTOSH. Let me turn to Mr. Sununu for questions.

Mr. SUNUNU. Mr. Cannon, earlier this morning Mr. Kucinich

talked about the importance of disclosure, public disclosure, for

families who are going to be affected potentially by these regulations, businesses, obviously our role in the Congress, the importance of disclosure of the underlying data and the science, that

rulemaking is based on.

Could you provide a description of what the position of the EPA

is on your legal right to the underlying data that was put together

and created under programs that have received public assistance?

Mr. CANNON. We have rights regarding for data which our assistance moneys are used to produce. As the Administrator testified

this morning, none of the assistance agreements that we had relating to these studies involved the production or generation of data.

Mr. SUNUNU. You don’t think any of the funding that you provided related to any of the studies that have been cited give you

legal right to any of the underlying data?

487

Mr. CANNON. We do not have a legal right in the form of a

possessory right to any of the underlying data. Now, there are additional provisions of our assistance regulations that provide access

by EPA to—I don’t know why that light went on.

Mr. SUNUNU. That was no 5 minutes. That wasn’t 5 minutes. I

think there is a little problem with the timer. Please continue.

Mr. CANNON. There are additional provisions which provide access by EPA to records pertinent to assistance agreements that we

enter into.

Mr. SUNUNU. The studies that have been cited were provided for

under contract with the EPA. There was funding. Most, if not all,

of the funding for the studies came from the EPA. But you don’t

feel that you, the Congress, or the public for that matter, has a

right to fair and open review and evaluation of that underlying

data?

Mr. CANNON. We don’t have a right to that data because we

didn’t fund the collection of that data.

If you will let me complete my statement, there is another provision that arguably allows access to data if it is manipulated in

studies that we fund, if that data constitutes a record pertinent to

the award and the Agency decides access to that data necessary.

Mr. SUNUNU. For the record, I would emphasize that the Code

of Federal Regulations states the Federal Government has an unrestricted right to use any data or information generated using assistance funds. I think there are many, amongst the public, in Government, and certainly here in Congress, that feel that it is not

just a right for exposure and re-evaluation of continued analysis,

but it is also part of the scientific process.

I yield the balance of my questioning time to the chairman.

Mr. MCINTOSH. Cindi, how much time is left?

The CLERK. One minute.

Mr. MCINTOSH. I have two lines of questions. Let me try to get

one of them in, and then I will recognize Bernie.

Mr. Glover, is it possible for EPA to correct the legal defects in

the rulemaking process so that they will have met the requirements of SBREFA?

Mr. GLOVER. I suspect it is. We are at the beginning phase of the

implementation of SBREFA, and I think that if they were to withdraw their certification and do a final regulatory analysis, the court

would look at that as perhaps good faith attempts to comply with

the law. I think there might well be something there. But I don’t

have a formal legal opinion on that. We have not looked at it in

depth.

Mr. MCINTOSH. If I understand, you want to give some thought

to that question, because it could have significant repercussions,

and perhaps in a reasonable period of time, could you give us your

answer on whether they need to repropose in order to do that or

not?

Similarly, Sally, and if I may ask you to join with me in making

an assumption that you may not agree with, although maybe you

do, but if there is a flaw under the Unfunded Mandates Act and

the Agency’s interpretation that that law does not conclude is incorrect, which I agree, the Agency should narrowly construe that

conference report comment to have explicit statutory requirement

488

not to perform cost-benefit analysis rather than a matter of interpretation. But I understand there is a difference of opinion there

on that law.

But assuming that my interpretation is correct, is there a way

that the Agency can correct the record on the two rulemakings in

order to avoid a legal challenge? I don’t want to preclude you from

commenting on the legal conclusion either.

Ms. KATZEN. The conference report says unless otherwise prohibited by law, and the law in this area is really quite clear, it was

originally EPA’s interpretation to which deference is owed under

Chevron that costs may not be considered.

That has been affirmed by the original court and has come up

in a number of other cases, all of which have now made the law

quite clear that a cost may not be considered. I read that to be unless otherwise prohibited, because they may not consider costs.

So I cannot join you in your assumption that they have incorrectly construed the unfunded mandates law in this respect, and I

actually included that statement in our second year report. We file

an annual report with the Congress on Agency compliance with the

Unfunded Mandates Act, and I cited their statements with approval in our annual filing.

Having said that, there are various provisions of the unfunded

mandates report. One of them is to certify that you have taken the

least burdensome, least cost—or most cost-effective approach to the

regulatory objective.

I am not sure, given that the law does not permit her to make

a finding considering costs, how she would be able to make such

a certification, other than as a—by the way, OIRA, our economic

analysis, has established to my satisfaction that I satisfy the standards. So it really is a conundrum here that cannot be easily parsed.

Mr. MCINTOSH. Let me say, I think that would satisfy me, if she

would make that conclusion, and OIRA would be subject to part of

the record to back that up. I think in the absence, we just disagree

on the legal interpretation of this.

But I think in the absence of an express statement in the Unfunded Mandates Act and an express statement in the Clean Air

Act, that these types of effects cannot be considered. I do think the

law mandates that be done as the rule goes forward when there are

multiple options being considered.

But my time has expired. I acknowledge you have expressed a

different one.

Ms. KATZEN. I do.

Mr. MCINTOSH. I only have one more series of questions, and

Bernie has expressed a desire to wrap things up.

Let me offer you now a chance to do that, and then I will go

through my last questions.

Mr. SANDERS. I will not be very long. I just wanted to ask Mr.

Cannon a few questions, if I might.

Mr. Cannon, is it your understanding that throughout history,

including before the passage of SBREFA, that the EPA has held a

view that clean air standards apply to States, not private industry,

and therefore clean air standards do not substantially impact a significant number of small businesses? Is that correct?

489

Mr. CANNON. We have always held the view, because the courts

have directed us to hold the view, that the terms by which a State

complies or comes into compliance with the ambient air quality

standards are to be set by the State, not by EPA, and that actually

was recently dramatized to us in a case that we unfortunately lost

in the DC circuit, where the court again cited to prior authority,

saying that under the Clean Air Act, and particularly under section

110 which provides for the State implementation plans, the States

are to determine their requirements and control measures that are

applicable rather than EPA.

Mr. SANDERS. OK. And there has been a lot of discussion today

about small business and the impact of these regulations on small

business. My question is, do you feel that small business concerns

have been disregarded, as some have suggested, during the development of these proposed standards?

Mr. CANNON. No, I don’t believe so.

Mr. SANDERS. Why?

Mr. CANNON. As Mr. Glover has outlined, we have undertaken a

process to reach out to small businesses, to hear their concerns,

and we have done a regulatory impact analysis, as has been pointed out, that has included some hypothetical analyses of potential

costs to small businesses among others that might flow ultimately

from the implementation of the ambient air quality standards that

have been proposed, assuming we go forward with those.

What we haven’t done is the regulatory flexibility analysis, which

in our view relates to the tailoring of requirements that would be

specifically applicable to small entities. Since there are no such requirements implicated in the ambient air quality standards, our

view is that we don’t have the ability to fulfill the purpose or requirements of the regulatory flexibility analysis in this case and

therefore have chosen not to carry it out.

Mr. SANDERS. Let me ask a similar question with regard to State

and local governments. Some have suggested they have not had the

opportunity to give input and express their concerns. Would you

comment on that?

Mr. CANNON. I think we have made efforts to reach out to State

governments, certainly in this rulemaking and also to representatives of local governments as well, the National Association of

Counties and others.

Ms. KATZEN. If I may comment on that for one moment, please?

Mr. SANDERS. Yes.

Ms. KATZEN. One of the questions that had been raised when the

proposals were promulgated was the extent to which we would be

able to afford people an opportunity to be heard during the public

comment period. At that point, the White House specifically determined to encourage a very extensive outreach effort through my office. I therefore had one meeting very early on with State and local

representatives, another with members of industry, the Air Standards Quality Coalition, and another with public health and environmental groups. I promised each of them that our meeting would

be the first of many meetings. I have since had at least one session

with other members of industry, and I have had one this week with

another group.

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Mr. SANDERS. You are suggesting, in fact, the EPA has reached

out and tried to involve all sections of the communities?

Ms. KATZEN. That is correct. OMB has participated in that effort

as well, so that the public will have multiple forums in which to

speak.

Mr. SANDERS. Let me get back to Mr. Cannon, if I might. Anybody else, feel free to jump in.

There has been some discussion earlier—Ms. Browner was

here—about some suggestions that the EPA has prejudged the outcome of the final ruling, you have already made your decision. Do

you want to comment on that?

Mr. CANNON. I have taken a look at the Washington Legal Foundation’s petition in light of what I understand the legal standards

to be, and I will tell you that it is my own view that, properly understood and taken in context, the comments that are attributed to

her there do not come close to the line requiring her to be disqualified.

Mr. SANDERS. OK. Again, one of the issues that has been maybe

not fully understood or disagreed upon by the Members up here is

what the law is about. Will you—will the EPA consider anything

other than public health considerations in making your final decision on the proposal, and is that approach consistent with what the

law states?

Mr. CANNON. Our understanding is, we are confined to public

health considerations in making a decision on these standards.

Mr. SANDERS. So in terms of this part of the process, to do otherwise would be, in fact, in violation of the law; is that correct?

Mr. CANNON. That is our understanding of the law.

Mr. SANDERS. Thank you.

Mr. Chairman, that is the extent of my questions. Thank you.

Mr. MCINTOSH. Thank you, Mr. Sanders.

For my final set of questions, I want to switch subjects slightly

here and address a topic with Ms. Katzen that is of great concern

to me, and that is whether OIRA participated in an effort encouraged by EPA or others to stifle other agencies’ comments in the official rulemaking record.

I wanted to submit for the record, my and my colleagues, a copy

of the Senate Congressional Record dated March 20, 1997, where

Senator Byrd says he understands that some Federal agencies had

also planned on submitting comments to EPA as part of the public

comment period. However, the Oil Daily, a trade publication, reported these agencies were prevented from doing so. They reported

that, ‘‘According to a leaked memo, the agencies were muzzled by

OMB.’’

The article further quotes from the memo as instructing agencies

that, ‘‘Based upon reports from a meeting this morning, Federal

agencies will not, I repeat, will not be transmitting comments on

the EPA proposals.’’

[The information referred to follows:]

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Mr. MCINTOSH. My question is, at any time—and I think this

was alleged to have occurred near the end of the comment period—

did you instruct representatives of various Federal agencies not to

file any more written comments in the rulemaking record?

Ms. KATZEN. No, I did not. The rumors of my ability to ‘‘muzzle’’

the agencies are, to quote or paraphrase Mark Twain, very greatly

exaggerated.

It is an interesting article in Oil Daily. I don’t ordinarily subscribe to it, so I haven’t read it and I can’t comment on the general

accuracy of its assertions. I had read——

Mr. MCINTOSH. I can give you a copy of that.

Ms. KATZEN. That is quite all right, because I had read Senator

Byrd’s comments on this. I think it is important to understand

what it is that was decided by whom and for what reason. To do

this, I would like to go back to the proposal stage when we had a

3-week review period.

While my staff worked nights and days and weekends and whatever, and EPA’s staff was beyond being extended any further, a lot

of the agencies who came to the table came with insufficient information and, they believed, insufficient opportunity to contribute to

the process. As a result, we made a commitment the day we

cleared the proposal to have an expanded, extensive interagency

process for review of the final packages whenever they should arrive and that we would not wait until they arrived at OMB, but

that we would start and meet early and often.

So I convened an interagency process that brought everybody

who had any interest to the table. I even notified some agencies

who had not heard about this, and I said: Are you sure you don’t

want to be there? I want everybody who has an interest or even

who thinks they have an interest to come to the table.

We have a two-tier interagency process. We have a technical staff

level that is meeting generally once or twice a week, and we have

a policy level that meets once a week. What we have been doing

is going through the data requests, the kinds of information we

need, and teeing up the kinds of issues we anticipate will be in the

forefront of our interagency process when the final package is delivered.

As a result this, we are getting advance briefings from EPA.

Sometimes it is as simple as the docket of comments. You heard

from Administrator Browner the large number of comments that

had been filed. EPA has prepared and are distributing a docket to

all the agencies weekly so, for example, the Department of Energy

might notice a comment from the American Petroleum Institute

and be interested in that; the Department of Transportation might

be interested in some of their constituents’ comments; the Department of Interior might be interested in some of their constituents’

comments. So the agencies could select the comments they want to

read, and those comments would be made available. They were also

being briefed on the status of the decisionmaking process.

Mr. MCINTOSH. Those were both at the technical level and at the

policy level?

Ms. KATZEN. Yes.

Mr. MCINTOSH. OK.

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Ms. KATZEN. And at a meeting in early March—and the comment

period was to end March 12th—a question was raised by one of the

agencies, and I am paraphrasing here: Gosh, we have this extensive process in which we are going to get information, we are going

to have questions, and we are going to get more information.

Should we be filing formal comments?

And there was a discussion among all of the people at the table.

There was no decision by fiat or edict or any other command and

control decisionmaking. The agencies were basically saying that, if

we are going to have our input in this process, why would we file

formal comments on the record with a position if, over the next several months, we are going to learn and evaluate things and maybe

change our positions? And it was decided within the group as a

consensus——

Mr. MCINTOSH. Was this the policy or technical level?

Ms. KATZEN. This was the policy level. It was decided at that

group that it was probably more effective, more efficient, for agencies to contribute through the interagency process than through

formal proceedings on the record.

And you will recall from your tenure in the executive branch, it

is unusual for lots of different agencies to file formal comments.

They have their say in other ways.

In this instance, it was the consensus of those assembled, and at

the end someone said: So no one is going to file? And at that point

it was also clear that no one there could stop anyone else from filing if they wanted to.

So it was clarified, I thought to everyone’s understanding, those

who wanted to file could, those who didn’t want to didn’t have to.

Mr. MCINTOSH. That was the answer given to that question at

the end?

Ms. KATZEN. Right.

Mr. MCINTOSH. That no one is going to file. Did somebody say,

‘‘That is right,’’ or, ‘‘Yes, we have agreed to that’’?

Ms. KATZEN. You have gone to a degree of detail of the conversation. This was a policy level meeting. There were approximately 20

people around the table. People were standing up and leaving, so

I am not going to time, I am not going to file.

One of the things is interesting: I will tell you there are agencies

who are supportive of EPA. There is indeed even a department that

believes that EPA has not been sufficiently aggressive and should

have proposed much more stringent standards. I do not know if

that department has filed formal comments. That department does

come to our weekly meeting.

There are other departments who are very supportive of the approach that EPA is taking. I do not know if they have filed comments. In fact, at this point I can’t tell you if any Federal agency

has filed comments in the public proceeding. I have never instructed an agency that it is not allowed to file in the formal public

process.

Mr. MCINTOSH. Did any of the agencies participating in that particular meeting subsequently file written comments in the rulemaking record?

Ms. KATZEN. I don’t know the answer to that.

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Mr. MCINTOSH. Could you find that out and let us know by next

week? It is not difficult to determine.

Maybe you know, Mr. Cannon.

Mr. CANNON. I don’t.

Mr. MCINTOSH. Do you have a list of who attended at that meeting?

Ms. KATZEN. Apparently some did file comments. Agriculture,

who was present at that meeting, and Defense——

Mr. MCINTOSH. OK.

Ms. KATZEN [continuing]. Who was present at that meeting. So

that some apparently did file.

Mr. MCINTOSH. Did file. And could you provide for the committee

a list of all the agencies that participated in that meeting?

Ms. KATZEN. Yes.

Mr. MCINTOSH. Do you or anybody on your staff keep notes, or

is there an official transcript of those?

Ms. KATZEN. No. People do keep notes. People do take notes,

whether they keep the notes or for what purpose they use the

notes. But as you see around the table, people have pens and they

are making notes. There is no official transcript; there is no official

note-taking. And to the best of my knowledge, in a meeting such

as that, with comments such as that that were being made by the

different agencies, what Senator Byrd was saying was a memo

from some departments, and I don’t know which it was, which said

we are not allowed to do this. I personally find it very difficult to

believe that anyone interpreted the comments that way, but apparently someone did. That is not unusual when you have got 20 people sitting around a table having a discussion such as we had.

But what I wanted to give you clearly is the fact that there is

no orchestrated campaign, there is no authority to gag or muscle

the agencies, and that our attempt is to get the most from them.

Our attempt is to get their comments. Our attempt is to bring

them to the table.

Mr. MCINTOSH. Let me explore that for a minute.

Mr. SANDERS. I just wanted to jump in, if I could ask the clerk

how we are doing in terms of time?

The CLERK. Time is up.

Mr. MCINTOSH. May I ask unanimous consent to pursue this,

Bernie?

Mr. SANDERS. How much longer do you think you will be?

Mr. MCINTOSH. I hope I can wrap it up in 5 minutes. I hope not

much longer.

At that meeting, or previously or subsequently to it, was there

an explanation to the agencies of the different legal effects of reviewing and participating in an interagency discussion that is not

part of the written record in the rulemaking versus submitting

comments in writing that would be part of the rulemaking?

Ms. KATZEN. Yes.

Mr. MCINTOSH. Which are the only comments that the Administrator is legally required to take into account in making her decisions and the only comments that the courts can consider when

they review that rulemaking?

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Ms. KATZEN. The question is a yes to the statement, was there

an a discussion of it. Our discussion of it is different from your

statement, and so I would want to comment on that as well.

Mr. MCINTOSH. OK.

Ms. KATZEN. I believe that I was one of several people, I think

there was someone from Justice at one point, and there may have

been someone from EPA—who stressed if there are facts upon

which a decision is to be based, they must be in the record; those

facts must be included in the record. So if someone had scientific

data, if someone has information that would be a factual predicate

for a finding or conclusion, it must be included in the record. It

cannot come in through an interagency process.

For that reason, at the technical staff we reminded agencies that

if you are putting in data, get it in the public record. And EPA—— Mr. MCINTOSH. That was at a later meeting?

Ms. KATZEN. It was, I believe, at an earlier meeting, at that

meeting, and at a later meeting as well, because the questions

would come up from time to time about the process. Each of the

agencies wanted to participate in this process, and each of them

thought it was desirable. They wanted to make sure, however, that

they were complying with the law, and for that reason there was

an exploration of these issues.

The qualification I would add is that policy considerations, as

you know, do not necessarily have to be in the record to inform the

judgment. Factual information does.

Mr. MCINTOSH. As I said, I am very concerned about this. We

could launch a big investigation, but would you give us a list of

who participated and any notes that you have available or your

staff, so that we could get a flavor for that meeting?

Ms. KATZEN. I will tell you, I don’t take notes. I chair the meeting, so I am sitting there listening most of the time.

Mr. MCINTOSH. I could ask you, would you ask all the participants to give you their notes, but what I would ask is, if you have

any available to you or your staff has any notes, if you don’t mind,

any people in the White House.

One other question in this area, and that is, were there any discussions prior to that meeting with other officials in the White

House or the Vice President’s Office about the desire to express to

the agencies this issue of whether to put comments into the rulemaking? I am trying to characterize it in a neutral way.

Ms. KATZEN. The conversations that I remember having were at

the interagency review of the proposed rules stage, so this would

have been in mid-November or late November—were very clear

that the agencies had to have a forum, had to have the information, had to have the opportunity, and they were looking to me to

establish that for them.

Other than that conversation, I can’t recall anyone in either the

Vice President’s Office or in even the Chief of Staff’s Office that

had any discussion about whether or not agencies were to file comments in the formal record.

I can understand how you are concerned about this, because the

rumors and the language that is used is, I think, disturbing. But

is not true. And for that reason, I would hope by this long discourse

to allay some of your concerns.

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Mr. MCINTOSH. I appreciate you going into this with me. Real

quickly, were there any discussions with Council of Economic Advisors? I knew they had some concerns about this regulation.

Ms. KATZEN. They did have concerns about the regulations. They

had certain materials that they had generated, I think a lot of

which has been submitted to you.

Indeed, you have seen many of the comments that have been

generated by all of the Federal agencies and other White House offices on this rule. These were included when we produced our 3,900

pages of material in response to your request.

I don’t recall any specific conversation with CEA on the issue of

whether they should be on the record or part of the interagency

process. I don’t know that CEA has ever filed comments on the

record. They have always participated in the interagency process.

So I don’t know that the issue would have come up.

Mr. MCINTOSH. OK. Good. Let me ask you if you could get us

that list, and if you have any further recollections about this issue,

go ahead and elaborate on them at that time to us.

I have no further questions. Everybody else seems to have left.

Mr. Barr, we sort of implied to Bernie we were going to wrap up

with my questioning. Do you have any questions, and could we submit them in writing?

Mr. BARR. Sure. Certainly. Whatever the chairman pleases.

Mr. MCINTOSH. I think in trying to make sure we maintain this

good working relationship with the minority, we will do that, because this is a dicey issue where we have very fundamental differences on substance. But if we can keep our process going well,

it will work to everybody’s advantage.

Let me say thank you to each of the participants on this panel

for coming today, for waiting around as we finish this up. I appreciate it. We will be continuing to look into this issue. Thank you.

The hearing is adjourned. The committee stands adjourned.

[Whereupon, at 2:30 PM, the subcommittee was adjourned.]

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