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WASHINGTON - Senators Jim Jeffords (I-VT) and Joe Lieberman (D-CT) yesterday asked the Bush Administration to halt a rulemaking to loosen critical Clean Air Act pollution controls that they said was made without adequate risk analysis or opportunity for public comment. In a letter to Administrator John Graham of the Office of Information and Regulatory Affairs (OIRA), the Senators expressed their concern that the rules, which would exempt 50% of companies covered by Clean Air Act requirements to install better pollution control equipment, could have a negative environmental impact and should be sent back to the Environmental Protection Agency for further review and input. The Senators said that failing to do so would contradict not only the binding principles of regulatory review but also the commitment to timely, transparent and rigorous reviews that Graham made in his confirmation hearing last year. The full text of the letter is below. October 17, 2002 Dr. John Graham
Administrator
Office of Information and Regulatory Affairs
Eisenhower Executive Office Building
Room 262
Washington, D.C. 20503 Dear Dr. Graham: Thank you for meeting with Senator Lieberman's staff on September 24, 2002 regarding the New Source Review rulemaking that is currently before you for review. We appreciate you making the time to discuss your evaluation of the rulemaking. In the wake of the meeting, we remain concerned that the final rule that has been submitted for your review is being finalized without adequate public comment or risk analysis. Specifically, while we are aware that the Environmental Protection Agency ("EPA") has claimed that the rule package is based on a 1996 proposal, it has been changed in such significant ways that no public comment has ever been received on the rule as it now stands. Moreover, EPA has unequivocally testified before Congress that it has not conducted a quantitative analysis of the health and environmental effects of these rule changes, despite the fact that EPA admitted in Congressional testimony that "50 percent fewer plants would actually go through NSR" if the rules were changed. For OIRA to approve the finalization of this rule package without additional public input or risk analysis would contradict not only the binding principles of regulatory review found in Executive Order 12,866, but also the commitment to "regulatory reviews that are timely, transparent, and rigorous" you made during your confirmation hearing before the Governmental Affairs Committee just over a year ago. As a consequence, we believe that you must remand the rule to EPA to remedy these deficiencies. We also wish to further elucidate a few points that staff addressed in the September 24 meeting. Specifically, by this letter, we are submitting for your consideration: (1) the grounds for our concerns about the lack of public comment on this package of rules, (2) the flaws inherent in the Regulatory Impact Analysis used to justify EPA's finding that no further public health and environmental analysis is needed; (3) the recent findings of the National Research Council regarding the use of cohort studies to derive benefits estimates for mortality from air pollution; and (4) our concerns about the quality of the emissions data that will be used to establish the revised emissions baselines pursuant to the August 13 proposal. In addition, we call your attention to the September 26, 2002 letter that we sent with Senators Clinton, Edwards and Kennedy regarding the new scientific studies regarding the health effects of air pollution. 1. Need for further public comment. In the September 24 meeting, you acknowledged that any regulation should be subject to full public notice and comment before it became final, and stated that you could remand a rule to an Agency if sufficient public comment was not elicited. This statement is consistent with the writings of your Harvard Group on Risk Management Reform, which stated that "[b]ecause of the indeterminacy of knowledge, and the need to respect non-scientific values such as equity," it is essential that increased oversight of risk assessment be "a means of opening up the value components of technical analyses to more effective public review and control, not . . . a means of delegating political choices to unreviewable experts." Unfortunately, it is clear that EPA hopes to finalize the package of rules that it submitted to you on August 13 without any further notice and opportunity for public comment. EPA's justification for this position appears to be that the August 13 package is a logical outgrowth of a proposed rulemaking from 1996, as revised by a notice of data availability in 1998. Because it appears from EPA's public statements that the current package has been significantly changed from the earlier proposal, however, the August 13 package should be remanded to the Agency simply as a matter of good policy, and perhaps as a matter of administrative law. In particular, the August 13 package differs from the earlier proposals in the following ways: - Unlike the 1998 notice of data availability, the August 13 package does not contain any mechanism for a facility's emission cap under a Plantwide Applicability Limits to decrease over time.
- The August 13 package significantly changes the 1996 and 1998 approach to calculating emissions increases. In particular, it would: (1) eliminate the requirement that a source that uses an "actual-to-future-actual" emissions increase calculation commit to an enforceable restriction on future emissions, a condition that was contained in the 1998 notice of data availability; (2) preserve the "demand growth exclusion," despite the 1996 finding that it was inappropriate for competitive markets; and (3) eliminate the requirement for submission of records that track and report post-modification emissions, thereby shielding post-modification emissions from public scrutiny.
- The August 13 package eliminates the environmentally beneficial provisions in the 1996 proposal that would allow federal land managers to have an increased role in the permitting of sources of emissions that would affect the air quality in national parks and wilderness areas.
Finally, even if you do not agree that the changes from the 1996 and 1998 documents are too extensive to allow the finalization of the rule as a matter of law, good public policy dictates that EPA elicit additional public input on the proposal because of the length of time since the EPA last received meaningful comment. Since EPA last received comments over five years ago, the scientific community's understanding of the health impacts of air pollutants has significantly evolved, as indicated by the range of new, peer-reviewed studies we have submitted with our colleagues in our September 26 letter. Moreover, the earlier comments predate the major enforcement actions that the United States initiated against a number of large emitters based on the historic New Source Review regulations. These lawsuits have resulted in reductions of hundreds of thousands of tons in criteria pollutant emissions. No public comment, however, has ever been received on the benefits of the lawsuits. We are aware that EPA claims that the general comments it received regarding the EPA's review of the effectiveness of the New Source Review program provide more recent public input. Those comments, however, did not address any of the specific details of the provisions in the August 13 package. Thus, given the significant developments since 1998, we believe you should remand the rule to EPA to provide further opportunity for public comment. 2. Flaws in the 1996 Regulatory Impact Analysis. We are extremely concerned about the EPA's steadfast refusal to conduct any analysis of the public health or environmental impacts of the August 13 proposal. EPA has received numerous requests to conduct such analyses before finalizing any regulations, including entreaties from ourselves and our colleagues during two separate hearings as well as a letter to Administrator Whitman from 44 Senators. Despite these requests, EPA has insisted that the draft Regulatory Impact Analysis ("draft RIA") that accompanied the 1996 proposed rule is sufficient to support EPA's claim that the August 13 package will have no negative effects on public health and the environment. The draft RIA, from which we have attached the relevant page for your review, is grossly deficient. First, the draft RIA clearly asserts that "[t]his rulemaking would exempt from major NSR about half of the sources that would otherwise be subject to major source permitting requirements . . . ." EPA, in Congressional testimony, has since confirmed that this estimate would still stand for the August 13 package. The draft RIA, however, offers no analytical justification for concluding that the exemption of 50 percent of major sources from the NSR program would not be environmentally harmful. In fact, the text of the draft RIA only offers the statement that the changes in air quality "are expected to be insignificant." And the only support for this conclusory statement is contained in a footnote that states – with no analytical basis – that other proposed programs will offset the expected emissions increases from the 1996 proposed changes to the New Source Review program. In no way should this cursory review pass for the assessment of the public health and environmental costs of the regulation that is required by Executive Order 12,866. Furthermore, the draft RIA points out only one environmentally beneficial provision of the 1996 proposal – the provision that would allow federal land managers to have an increased role in the permitting of sources of emissions. As we noted above, that provision has been dropped from the August 13 package, meaning that the only piece of the 1996 proposal that tipped the scale in favor of the environment has now been eliminated. Thus, there can be no logical grounds on which the draft RIA from 1996 could be sufficient to serve as the detailed risk analysis that you have exhaustively advocated throughout your career and that Executive Order 12,866 requires. 3. Recent NAS report on estimating the health benefits of air pollution regulations. As staff discussed with you on September 24, the National Research Council ("NRC") has recently released a report entitled "Estimating the Public Health Benefits of Proposed Air Pollution Regulations." The report included the following discussion: For the analysis of mortality, EPA used cohort studies (epidemiological studies that evaluate health effects in a specific population over a period of years) to derive benefits estimates in each analysis reviewed by the committee. The committee agrees with that approach. Compared with the time-series studies (epidemiological studies that provide estimates of health effects dues to recent exposure), cohort studies give a more complete assessment because they include long-term, cumulative effects of air pollution.
We will not append the full report as you indicated on September 24 that you had it in your possession. We bring this finding to your attention because it is our understanding that you have used time-series studies to evaluate the health benefits of several recent air pollution regulations. The NRC has now clearly stated that such time-series studies are not the most accurate basis for evaluating the benefits of air pollution regulations. Once EPA provides you with a credible estimate of the emissions increases expected due to the August 13 package, we hope that you will heed the recommendations of the NRC and use cohort studies to evaluate the health impacts of the package. 4. Quality of Emissions Data. We are also concerned about the quality of the emissions data on which some of the August 13 package would be implemented. As the attached report from the General Accounting Office reveals, the emissions data collected by EPA contain, at times, "widespread inaccuracies." Moreover, the GAO observed EPA's conclusion that 46 percent of the emissions factors used to calculate this data are "below average" or "poor." We ask that you consider the GAO's findings when you evaluate the August 13 proposal. In particular, please keep in mind how these findings might affect EPA's ability to ensure that emissions do not increase for entities using Plantwide Applicability Limits, which require precise measurements of a plant's emissions. Thank you for taking these comments under consideration as you evaluate the August 13 package of revisions to the New Source Review program. Because the paucity of analysis regarding these regulations violates the spirit of both Executive Order 12,866 and your testimony before the Senate Governmental Affairs Committee during the confirmation process, it is our belief that you must remand the package to EPA for further analysis and opportunity for public comment. We would appreciate knowing your position on the points raised in this letter prior to any action on the August 13 package by your office. Sincerely, James Jeffords
Chairman
Environment and Public Works Committee Joseph I. Lieberman
Chairman
Clean Air, Wetlands and Climate Change Subcommittee
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