<DOC> [108th Congress House Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:89352.wais] ELEVATION OF THE ENVIRONMENTAL PROTECTION AGENCY TO DEPARTMENT LEVEL STATUS: H.R. 37 AND H.R. 2138 ======================================================================= HEARINGS before the SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY AFFAIRS of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED EIGHTH CONGRESS FIRST SESSION ON H.R. 37 TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO CABINET-LEVEL STATUS AND REDESIGNATE SUCH AGENCY AS THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ON H.R. 2138 TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO CABINET-LEVEL STATUS AND REDESIGNATE SUCH AGENCY AS THE DEPARTMENT OF ENVIRONMENTAL PROTECTION __________ JUNE 6 AND SEPTEMBER 9, 2003 __________ Serial No. 108-50 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform ______ 89-352 U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2003 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON GOVERNMENT REFORM TOM DAVIS, Virginia, Chairman DAN BURTON, Indiana HENRY A. WAXMAN, California CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland DOUG OSE, California DENNIS J. KUCINICH, Ohio RON LEWIS, Kentucky DANNY K. DAVIS, Illinois JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri CHRIS CANNON, Utah DIANE E. WATSON, California ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California JOHN SULLIVAN, Oklahoma C.A. ``DUTCH'' RUPPERSBERGER, NATHAN DEAL, Georgia Maryland CANDICE S. MILLER, Michigan ELEANOR HOLMES NORTON, District of TIM MURPHY, Pennsylvania Columbia MICHAEL R. TURNER, Ohio JIM COOPER, Tennessee JOHN R. CARTER, Texas ------ WILLIAM J. JANKLOW, South Dakota BERNARD SANDERS, Vermont MARSHA BLACKBURN, Tennessee (Independent) Peter Sirh, Staff Director Melissa Wojciak, Deputy Staff Director Rob Borden, Parliamentarian Teresa Austin, Chief Clerk Philip M. Schiliro, Minority Staff Director Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs DOUG OSE, California, Chairman WILLIAM J. JANKLOW, South Dakota JOHN F. TIERNEY, Massachusetts CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania CHRIS CANNON, Utah DENNIS J. KUCINICH, Ohio JOHN SULLIVAN, Oklahoma CHRIS VAN HOLLEN, Maryland NATHAN DEAL, Georgia JIM COOPER, Tennessee CANDICE S. MILLER, Michigan Ex Officio TOM DAVIS, Virginia HENRY A. WAXMAN, California Dan Skopec, Staff Director Barbara Kahlow, Deputy Staff Director Danielle Hallcom, Professional Staff Member Alexandra Teitz, Minority Counsel C O N T E N T S ---------- Page Hearing held on: June 6, 2003................................................. 1 September 9, 2003............................................ 169 Text of H.R. 37.................................................. 21 Text of H.R. 2138................................................ 27 Statement of: Chisum, State Representative Warren, Texas House of Representatives; Howard Roitman, director of environmental programs, Colorado Department of Public Health and Environment; Dr. Ron Hammerschmidt, director, Division of Environment, Kansas Department of Health and Environment; E. Donald Elliott, former EPA General Counsel and current partner, Willkie, Farr & Gallagher LLP; Dr. A. Alan Moghissi, president, Institute for Regulatory Science; and Gary S. Guzy, former EPA General Counsel and current partner, Foley Hoag LLP.................................... 218 Connaughton, James L., chairman, Council on Environmental Quality; and Marianne L. Horinko, Acting Administrator, Environmental Protection Agency............................ 187 Portney, Paul R., president, Resources for the Future; George M. Gray, acting director, Center for Risk Analysis, Harvard University; Steven F. Hayward, F.K. Weyerhaeuser fellow, American Enterprise Institute for Public Policy Research; Wesley P. Warren, senior fellow for environmental economics, Natural Resources Defense Council; and Rena I. Steinzor, esq., professor, University of Maryland, and board member, Center for Progressive Regulation............ 64 Letters, statements, etc., submitted for the record by: Boehlert, Hon. Sherwood, a Representative in Congress from the State of New York, prepared statement of............... 62 Chisum, State Representative Warren, Texas House of Representatives, prepared statement of..................... 220 Connaughton, James L., chairman, Council on Environmental Quality, prepared statement of............................. 190 Elliott, E. Donald, former EPA General Counsel and current partner, Willkie, Farr & Gallagher LLP, prepared statement of......................................................... 246 Guzy, Gary S., former EPA General Counsel and current partner, Foley Hoag LLP, prepared statement of............. 239 Gray, George M., acting director, Center for Risk Analysis, Harvard University: Information concerning agency estimates of benefits and costs of major rules................................... 115 Prepared statement of.................................... 74 Hammerschmidt, Dr. Ron, director, Division of Environment, Kansas Department of Health and Environment, prepared statement of............................................... 231 Hayward, Steven F., F.K. Weyerhaeuser fellow, American Enterprise Institute for Public Policy Research, prepared statement of............................................... 78 Horinko, Marianne L., Acting Administrator, Environmental Protection Agency, prepared statement of................... 195 Moghissi, Dr. A. Alan, president, Institute for Regulatory Science, prepared statement of............................. 255 Ose, Hon. Doug, a Representative in Congress from the State of California: Prepared statement of................................... 4, 172 Prepared statement of Ms. Mazurek........................ 6 Portney, Paul R., president, Resources for the Future, prepared statement of...................................... 67 Roitman, Howard, director of environmental programs, Colorado Department of Public Health and Environment, prepared statement of............................................... 225 Steinzor, Rena I., esq., professor, University of Maryland, and board member, Center for Progressive Regulation, prepared statement of...................................... 98 Tierney, Hon. John F., a Representative in Congress from the State of Massachusetts, prepared statement of.............. 184 Warren, Wesley P., senior fellow for environmental economics, Natural Resources Defense Council, prepared statement of... 83 ELEVATION OF THE ENVIRONMENTAL PROTECTION AGENCY TO DEPARTMENT LEVEL STATUS: H.R. 37 AND H.R. 2138 ---------- FRIDAY, JUNE 6, 2003 House of Representatives, Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m., in room 2154, Rayburn House Office Building, Hon. Doug Ose (chairman of the subcommittee) presiding. Present: Representatives Ose and Davis (ex officio). Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Danielle Hallcom, professional staff member; Melanie Tory, jr. professional staff member; Yier Shi, press secretary; Alexandra Teitz, minority counsel; and Cecelia Morton, minority office manager. Mr. Ose. Good morning. Welcome to this morning's Energy Policy, Natural Resources and Regulatory Affairs Subcommittee hearing. Today we welcome the full committee chairman. Good morning. As this Nation faces a new generation of environmental challenges, the issue of the elevation of the Environmental Protection Agency [EPA], is more important than ever. The United States is one of the few industrial nations that does not place environmental protection in a Cabinet-level position. I believe that environmental protection is as important as other Cabinet functions and is critical to the health and well- being of this Nation's environment and its people. Since its creation in 1970, EPA has grown from a small agency to one with about 18,000 employees and a budget of $7.7 billion. Over the last 30 years, 11 major environmental laws expanded EPA's jurisdiction and delegated most implementation activities to the States. EPA now faces new environmental challenges originating from nonpoint sources that are difficult to regulate. To meet these future challenges, many experts have stated that EPA needs to be reformed. During the last Congress, this subcommittee held three hearings addressing EPA elevation bills introduced by Congressman Sherwood Boehlert and former Congressman Steve Horn. Several experts, industry representatives, EPA and other administration and State officials testified to the merits of the elevation and current organizational problems at EPA that hinder effective environmental protection. Today's hearing will examine two new EPA elevation bills referred to this subcommittee. H.R. 37, introduced by Congressman Sherwood Boehlert, is identical to H.R. 2438, as introduced in the 107th Congress. H.R. 37 would restrict itself to elevating EPA to department-level status. Based on the expert testimony from our previous three hearings, I introduced H.R. 2138 on May 15, 2003. My bill would make significant organizational and institutional changes to EPA. It reorganizes EPA into three Under Secretaries, the first being for Policy, Planning, and Innovation; the second for Science and Information; and the third for Compliance, Implementation, and Enforcement. The Under Secretary for Policy, Planning, and Innovation would have authority over all program offices, regulations, and policy development. The Under Secretary for Implementation, Compliance, and Enforcement would supervise the regional offices. Responding to the overwhelming criticism over the lack of sound science at EPA, my bill creates an Under Secretary for Science and Information. This section mirrors legislative language from H.R. 64, known as the Strengthening Science at the EPA Act, introduced by Congressman Vernon Ehlers, which passed the House in the last Congress. Finally, my bill creates an independent Bureau of Environmental Statistics to collect, analyze, and report on environmental and human health conditions. We have a chart on the right for everyone to take a look at. Currently, each EPA regional office, program office, and division reports directly to EPA's Administrator and Deputy Administrator as reflected on the chart on the left. The subcommittee heard testimony during the last Congress that this stovepipe organization results in EPA's inability to effectively address cross-media environmental protection. I believe that EPA's structure, as it currently exists, lacks adequate oversight and coordination of its offices to ensure that science, policy and implementation are integrated throughout EPA. The subcommittee also heard testimony during the last Congress that EPA lacks scientific leadership, critical science for decisionmaking, intra-agency dissemination of information, and coordinated efforts between the Office of Research and Development and the program offices. The lack of coordination between the Water and Air program offices that resulted in the MTBE contamination of our groundwater, particularly in California, must never happen again. I believe all science at EPA needs to be consolidated into a centralized division headed by strong leadership that will advance environmental protection by conducting peer-reviewed scientific studies of the highest caliber. One of the most serious deficiencies at EPA is the unavailability of reliable and measurable environmental outcome data, such as cleaner water and fewer illnesses. Several other departments have their own statistical agencies to provide independent and reliable data for decisionmaking and analysis. By creating a Bureau of Environmental Statistics, we can ensure that the policies EPA advances are actually cleaning the environment and protecting the health of our citizens. EPA, as it exists today, does not have the institutional ability to meet the environmental challenges of the 21st century. By reorganizing the EPA and providing the statistical tools to understand our changing environment, we have the opportunity to create an executive department that does a better job of protecting the environment than it currently does as an independent Federal agency. I look forward to the testimony of our distinguished panel here today. I am sorry to report that we have heard from one of our witnesses, Janice Mazurek, Director for Innovation and the Environment at the Progressive Policy Institute, that she will be unable to participate today due to an unexpected situation. I ask unanimous consent that her full written statement be included in the record. Hearing no objection, so ordered. Our panel of witnesses with us today includes Dr. Paul Portney, president of Resources for the Future; Dr. George Gray, acting director, Center for Risk Analysis at Harvard School of Public Health; Dr. Steven Hayward, F.K. Weyerhaeuser fellow at the American Enterprise Institute; Wesley Warren, senior fellow for environmental economics at the Natural Resources Defense Council; and Rena Steinzor, professor, University of Maryland School of Law, and board member for the Center for Progressive Regulation. Thank you all for coming. [The prepared statement of Hon. Doug Ose and the texts of H.R. 37 and H.R. 2138 follow:] [GRAPHIC] [TIFF OMITTED] T9352.009 [GRAPHIC] [TIFF OMITTED] T9352.010 [GRAPHIC] [TIFF OMITTED] T9352.001 [GRAPHIC] [TIFF OMITTED] T9352.002 [GRAPHIC] [TIFF OMITTED] T9352.003 [GRAPHIC] [TIFF OMITTED] T9352.004 [GRAPHIC] [TIFF OMITTED] T9352.005 [GRAPHIC] [TIFF OMITTED] T9352.006 [GRAPHIC] [TIFF OMITTED] T9352.007 [GRAPHIC] [TIFF OMITTED] T9352.008 [GRAPHIC] [TIFF OMITTED] T9352.231 [GRAPHIC] [TIFF OMITTED] T9352.232 [GRAPHIC] [TIFF OMITTED] T9352.233 [GRAPHIC] [TIFF OMITTED] T9352.234 [GRAPHIC] [TIFF OMITTED] T9352.235 [GRAPHIC] [TIFF OMITTED] T9352.236 [GRAPHIC] [TIFF OMITTED] T9352.237 [GRAPHIC] [TIFF OMITTED] T9352.015 [GRAPHIC] [TIFF OMITTED] T9352.016 [GRAPHIC] [TIFF OMITTED] T9352.017 [GRAPHIC] [TIFF OMITTED] T9352.018 [GRAPHIC] [TIFF OMITTED] T9352.019 [GRAPHIC] [TIFF OMITTED] T9352.020 [GRAPHIC] [TIFF OMITTED] T9352.021 [GRAPHIC] [TIFF OMITTED] T9352.022 [GRAPHIC] [TIFF OMITTED] T9352.023 [GRAPHIC] [TIFF OMITTED] T9352.024 [GRAPHIC] [TIFF OMITTED] T9352.025 [GRAPHIC] [TIFF OMITTED] T9352.026 [GRAPHIC] [TIFF OMITTED] T9352.027 [GRAPHIC] [TIFF OMITTED] T9352.028 [GRAPHIC] [TIFF OMITTED] T9352.029 [GRAPHIC] [TIFF OMITTED] T9352.030 [GRAPHIC] [TIFF OMITTED] T9352.031 [GRAPHIC] [TIFF OMITTED] T9352.032 [GRAPHIC] [TIFF OMITTED] T9352.033 [GRAPHIC] [TIFF OMITTED] T9352.034 [GRAPHIC] [TIFF OMITTED] T9352.035 [GRAPHIC] [TIFF OMITTED] T9352.036 [GRAPHIC] [TIFF OMITTED] T9352.037 [GRAPHIC] [TIFF OMITTED] T9352.038 [GRAPHIC] [TIFF OMITTED] T9352.039 [GRAPHIC] [TIFF OMITTED] T9352.040 [GRAPHIC] [TIFF OMITTED] T9352.041 [GRAPHIC] [TIFF OMITTED] T9352.042 [GRAPHIC] [TIFF OMITTED] T9352.043 [GRAPHIC] [TIFF OMITTED] T9352.044 [GRAPHIC] [TIFF OMITTED] T9352.045 [GRAPHIC] [TIFF OMITTED] T9352.046 [GRAPHIC] [TIFF OMITTED] T9352.047 [GRAPHIC] [TIFF OMITTED] T9352.048 [GRAPHIC] [TIFF OMITTED] T9352.049 [GRAPHIC] [TIFF OMITTED] T9352.050 [GRAPHIC] [TIFF OMITTED] T9352.051 [GRAPHIC] [TIFF OMITTED] T9352.052 [GRAPHIC] [TIFF OMITTED] T9352.053 [GRAPHIC] [TIFF OMITTED] T9352.054 Mr. Ose. I would like to recognize our distinguished chairman for the purposes of an opening statement. Mr. Tom Davis of Virginia. Well, thank you very much, Chairman Ose, for holding the hearing today on the EPA and whether it would function better if elevated to a department level. I think this hearing is going to provide an opportunity to explore in an open-minded and bipartisan way whether the time has come to make drastic changes in the organization and mission of the EPA. Mr. Chairman, over the years you have done important work chairing this subcommittee, and your work in the 107th Congress on this issue created a strong legislative history and record of effective congressional oversight on these matters. In the 30 years since it was created, EPA has supervised and implemented the cleanup of urban industrial waste sites, fought for the protection of our forests, streams, and rivers, and educated the Nation about the importance of cleaner air in our suburban communities. In that period of time, the Agency has grown from around 4,000 employees to 18,000 employees. The EPA has offices located literally all over the Nation. It is charged with enforcing many diverse and sometimes even contradictory interests as it seeks to improve and sustain the Nation's environment. It is possible the elevation would better equip the Agency to meet and face these challenges. If that were the case, then we ought to be open to all feasible options. I look forward to the testimony from our experts today. I appreciate your subcommittee taking the time to consider this important legislation. I would just say, as chairman of the full committee, we take this effort seriously. Thank you. Mr. Ose. Thank you, Mr. Chairman. I would like to ask unanimous consent that the statement of Sherwood Boehlert be entered into the record. Hearing no objection, that will take place. [The prepared statement of Hon. Sherwood Boehlert follows:] [GRAPHIC] [TIFF OMITTED] T9352.055 [GRAPHIC] [TIFF OMITTED] T9352.056 Mr. Ose. In this committee, we always swear our witnesses in. So, if you would all rise, please. [Witnesses sworn.] Mr. Ose. Let the record show that the witnesses answered in the affirmative. We have received your statements. They are going to be entered into the record in total. We have read them. I actually read them. I am sure Chairman Davis did, too. To the extent that we can, we would like to move through the statements expeditiously. We are going to give each of you 5 minutes to summarize. You don't have to use all of the 5 minutes, but hit your high points, if you would. I will go left to right here. We will start with Dr. Portney. Dr. Portney is the president for Resources for the Future. We welcome you to our committee. You are recognized for 5 minutes. STATEMENTS OF PAUL R. PORTNEY, PRESIDENT, RESOURCES FOR THE FUTURE; GEORGE M. GRAY, ACTING DIRECTOR, CENTER FOR RISK ANALYSIS, HARVARD UNIVERSITY; STEVEN F. HAYWARD, F.K. WEYERHAEUSER FELLOW, AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH; WESLEY P. WARREN, SENIOR FELLOW FOR ENVIRONMENTAL ECONOMICS, NATURAL RESOURCES DEFENSE COUNCIL; AND RENA I. STEINZOR, ESQ., PROFESSOR, UNIVERSITY OF MARYLAND, AND BOARD MEMBER, CENTER FOR PROGRESSIVE REGULATION Dr. Portney. Thank you very much, Mr. Chairman and Congressman Davis. I am pleased to be here, and I appreciate the opportunity to testify. The one thing I will say by way of introduction is that, while I am president of Resources for the Future, a think tank here in Washington that specializes in energy and environmental issues, I want to make clear that the comments today that you'll hear from me are my own and do not represent the views of RFF. I will cut directly to the chase, taking you at your admonition, and say that I am strongly supportive of the elevation of EPA to Cabinet status and even more enthusiastic about the creation of a Bureau of Environmental Statistics within the Environmental Protection Agency. I have long believed that elevation of EPA to Cabinet status has been a good idea. It was a good idea when former President George Bush put it forward, it was a good idea when former President Bill Clinton put it forward, and it remains a good idea today. Several brief observations about the consequence of making EPA a Cabinet department, if I can. My view is that having EPA become a Cabinet department is largely symbolic, but as I said in my prepared remarks, sometimes symbols matter. I believe that having an EPA administrator who would be a Secretary of Environmental Protection would facilitate international negotiations on environmental issues, and it would be a strong signal to the rest of the world that we take environmental protection as seriously as we take the provinces of the other Cabinet departments. With respect to the reorganization that is proposed in H.R. 2138, I can see a number of advantages to those proposed changes, though I am more agnostic on those changes than I am on the issue of elevation to Cabinet status itself. As somebody who has studied environmental regulation for 31 years--it pains me to cite that figure, I have to confess--I am now of the belief that if the Administrator of EPA, whoever he or she may be, wants to make use of good science and good economic analysis in regulation, then that analysis will be forthcoming. If the Administrator of EPA is not a strong client for strong science and economic analysis in regulation, then there won't be a market for it and that kind of information will not be forthcoming. In the legislation, you talk about the organizational structure of EPA as being an obstacle to cross-media tradeoffs, to experimentation along the lines of things like Project XL, etc. I agree with you that the organization of EPA can be an impediment to these kinds of things, although I have to be honest and say that I think it is the statutory framework under which we regulate in the environment--with a clean air statute that makes no connection to solid waste or water pollution, and a water pollution statute that does the same--that is the bigger obstacle to cross-media regulation or experimentation. Turning quickly to the Bureau of Environmental Statistics, I think it is badly needed, and I have felt that way for a long time. In a Nation where we spend, according to EPA's estimates, on the vicinity of $150 billion each year on environmental regulation, I think the Members of Congress, other parts of the administration and, most of all, the American public deserve an annual reporting on the progress that we are making in cleaning up the environment. Currently, we have fragmented, periodic efforts to report to the public. One of my fellow co-panelists here today, Steve Hayward, has participated in such an effort for 8 or 9 years, for which he is to be congratulated. The Heinz Center recently issued a State of the Nation's Ecosystems Report which I think is an excellent summary of some of the environmental progress that we are making. The Council on Environmental Quality in its annual report, in the past at least, has contained voluminous information on ambient environmental protection. I am aware of that because for 2 painful years that I spent at CEQ I was responsible for pulling all of that information together. Nevertheless, there is no comprehensive annual estimate that comes from the Federal Government, as I think this information should come, on environmental conditions and trends. I think that the independence of the Director of the Bureau of Environmental Statistics is absolutely essential. I think that person should have the same kind of protection that the head of the Bureau of Labor Statistics has within the Labor Department and the head of the Bureau of Economic Analysis has within the Commerce Department. And, finally, let me say that, in thinking about the kinds of information that the Bureau of Environmental Statistics would provide, I would urge that we envision that this be done somewhat cautiously, beginning with the presentation of information on trends in environmental quality, air quality, water quality, land contamination, etc.; broadening them to contain information and data on emissions, levels of waste generated, etc.; possibly then expanding to include information on compliance and enforcement. I mention this having read the article that I am sure you have seen in today's Washington Post about compliance and noncompliance with the Clean Water Act. And then, finally, in a perfect world, the Bureau of Environmental Statistics could present evidence on health and economic indicators that are related to the environment. I mention those last not because those are not important--indeed, we need to know about asthma and other things--but, rather, because the link between environmental quality and a variety of health end points is the subject of considerable debate. I would rather see the BES present environmental quality data first and then gradually build itself up to presenting this other data. Thank you so much for having me here today, and I will be happy to answer any questions that you have. Mr. Ose. Thank you. [The prepared statement of Mr. Portney follows:] [GRAPHIC] [TIFF OMITTED] T9352.057 [GRAPHIC] [TIFF OMITTED] T9352.058 [GRAPHIC] [TIFF OMITTED] T9352.059 [GRAPHIC] [TIFF OMITTED] T9352.060 [GRAPHIC] [TIFF OMITTED] T9352.061 Mr. Ose. Our next witness is Dr. George Gray. He is with the Harvard Center for Risk Analysis at the Harvard School of Public Health. Dr. Gray, you are recognized for 5 minutes. Thank you for coming. Dr. Gray. Thank you, Chairman Ose, Mr. Davis. It is a pleasure to be here. A similar sort of introduction to Dr. Portney: These remarks are mine alone and shouldn't be attributed to the Harvard Center for Risk Analysis or the Harvard School of Public Health. They are also informed by my almost 15 years working as a scientist, a risk analyst, and a public health professional. I am here to support the idea of elevating the Environmental Protection Agency to departmental status. I think that EPA's mission is important to the citizens of our country, and raising it to the highest level will recognize the priority that we give to human health and our natural resources. But, like many others, I do believe that this transition is an opportunity to evaluate the ways in which this new department acts to achieve these goals, and for this reason I support many of the provisions of H.R. 2138. And, I want to touch very quickly on two of those. Touching on this notion of restructuring EPA, I think the development of a Bureau of Environmental Statistics has a variety of very positive attributes. First, I think it is very important that we have concrete evidence of the effective efforts to address environmental problems. Another thing that I think is important that we may often overlook is that it is a communication device for the new department, and I want to touch on that especially. I think it will help to identify and prioritize emerging challenges. And the last thing that I want to spend a little bit of time on is the fact that we do have to be, I think, a little bit humble about what we can actually learn from a Bureau of Environmental Statistics. Turning to the communication aspects. There is a problem in this country in that an awful lot of people don't understand, don't appreciate the progress that we have made in the environment over the last 30 years. In a 2002 survey that was conducted by Wirthlin Worldwide for the Foundation for Clean Air Progress, they asked 1,000 American adults: Do you believe that the Nation's air has gotten better or worse in the last 10 years? And, over two thirds of them said the air has gotten worse. That is wrong, and that is a problem. Because how can we expect the public to support environmental measures, some of which are going to be inconvenient or possibly expensive for them--things that address tailpipe emissions could increase the price of cars, it could increase the price of fuel--if they don't think they are getting anything for these efforts? I think that a well-respected and trusted national Bureau of Environmental Statistics can help build support for the Department of Environmental Protection and its efforts and can also provide this important information and context for citizens. However, I do think we have to be humble about what we could learn with this Bureau. Many of EPA's rules and regulations focus on reductions in risk to human health, yet it is extremely unlikely that any effort to gather statistical information on public health will identify changes that you can associate with a specific regulation. The risks that the EPA addresses in general are just too small. I don't think you could find an epidemiologist or a public health statistician who believes that we could detect any change in health status in a town, for example, that reduces arsenic in its drinking water to meet the new EPA standard. It is important to be aware of the information that this new Bureau can and cannot provide to help guide decisionmaking. The EPA uses the tools of risk assessment and management to inform their important decisions. The way that this approach is intended to work, science is done on one side, we bring the best information we can to bear on problems, and then policies are then formulated. These policies include information that goes well beyond science. They include economics, they include engineering, they include social sciences, and a lot of other things that are important. There is a perception today, I will tell you, in the scientific community that right now policy in EPA influences their science, and that influence undermines the credibility of both EPA's science and EPA's decisions. So I think that the proposal in H.R. 2138 to restructure the Department by function would go a long way to improving both the perception and the reality of the credibility of EPA's science and decisions. In closing, I think elevating EPA to departmental status is a positive thing to do; and while we are doing that, I do welcome attention to improving the information that is available for confronting current and future environmental challenges with sound science and with environmental statistics. I think careful consideration of opportunities for restructuring is also warranted to build confidence in the science and the decisions that guide our efforts in environmental protection. So I want to thank you and applaud you for your efforts looking forward to equip our country with the tools we need to ensure wise environmental protection in the future, and I would be happy to answer any questions. Mr. Ose. Thank you, Dr. Gray. [The prepared statement of Dr. Gray follows:] [GRAPHIC] [TIFF OMITTED] T9352.062 [GRAPHIC] [TIFF OMITTED] T9352.063 Mr. Ose. Our next witness is Dr. Steven Hayward, who is the resident scholar at the American Enterprise Institute for Public Policy Research. I want to thank you for coming, Dr. Hayward. You are recognized for 5 minutes. Dr. Hayward. Thank you, Mr. Chairman. I guess I will depart from my written testimony a little bit and add to it, if I can, by noting a little bit of history. President Nixon originally intended the EPA to be a Cabinet-level department of environment and natural resources. He intended it as a sweeping reorganization of the entire executive branch, and it didn't happen for reasons unrelated to the merits of the idea of having the environment as a Cabinet- level agency. So, instead, the EPA was created as an administrative organization at the same time we created a lot of things like the Consumer Product Safety Commission and OSHA; and I think it is increasingly clear today, for reasons that have already been alluded to, that the EPA is much more like the Department of Health and Human Services in terms of its public importance than it is like the Consumer Product Safety Commission. I mean, one reason I think it is a good idea to elevate the EPA to Cabinet rank is that it will help in a broad sense to educate the public better about environmental issues in much the same way that the reorganization of the Department of Homeland Security focuses the public mind better on the issues that Department is intended to address--because it could have been kept the way it was, with Tom Ridge in the White House trying to coordinate different agencies--and the way the Council of Environmental Quality now tries to coordinate between all the government agencies that work on the environment. So the point is it is long overdue to put the EPA on a higher plane. We are going to sound a bit like a broken record so far, because I think the heart of this bill to me is the proposed Bureau of Environmental Statistics. I spend most of my time trying to research environmental data and find out what's going on and what we know and more importantly perhaps what we do not know. The EPA does an excellent job of monitoring air quality, and the data they produce and the annual report they produce is superb. They do a less good job, as we learned from the Post story today, on water quality. And, the problem of identifying good data and water quality is immense. But that is the kind of problem that the Bureau of Environmental Statistics can begin to get its hands around, rather than right now having those data be generated by individual regulatory programs that don't fit together in any kind of intelligible whole. I first learned this idea from Paul. I have to give him full credit for it and return the kindness he gave to me. If you go back to the very first report of the President's Council on Environmental Quality in 1972, they said this: The use of a limited number of environmental indices by aggregating and summarizing available data could illustrate major trends and highlight the existence of significant environmental conditions. It could also provide the Congress and the American people measures of the success of Federal, State, local, and private environmental protection activities. An analogy might be drawn with the economic area, where the Consumer Price Index, the Wholesale Price Index, and unemployment rates provide a useful indication of economic trends. Well, here we are 31 years later, and we are still not doing all that; and I think the time has come. Thank you. Mr. Ose. Thank you, Dr. Hayward. [The prepared statement of Dr. Hayward follows:] [GRAPHIC] [TIFF OMITTED] T9352.064 [GRAPHIC] [TIFF OMITTED] T9352.065 [GRAPHIC] [TIFF OMITTED] T9352.066 Mr. Ose. Our next witness is Wesley Warren. He is the senior fellow for environment economics at the Natural Resources Defense Council. We are very grateful for you appearing, and you are recognized for 5 minutes. Mr. Warren. Thank you. I would like to express my appreciation both to the chairman of the subcommittee and the full committee for giving this such attention today. The Natural Resources Defense Council does support legislation to elevate EPA to Cabinet status. We believe that this would put the Agency on par with other Departments and would also send an international signal about the importance of environmental issues generally. However, we do not support this objective to such an extent that we would accept changes in the Agency's authorities or structure that would actually hamper its ability to get its job done. Therefore, we urge the committee, if it takes up this issue, to pass a clean bill, free of any other types of provisions. Repeatedly, attempts to add other issues to this legislation have derailed these legislative proposals, and we think it would just end up, because of the controversy, being a one-way ticket to nowhere. Accordingly, we have endorsed H.R. 37, which is legislation that would be a simple and direct elevation. But we do oppose H.R. 2138 which we believe, for reasons that I will discuss in greater detail, do not meet this description. I believe when people look at the issue of elevating EPA to a Cabinet agency, there are two great temptations. One is to change the authorities of the Agency, and the other is to reorganize its structure. This is something that H.R. 2138 does in both cases. And, I believe in fact that it is very well intended, that it is looking at important issues, like how do we encourage cross-media work at the Agency, and how can we improve the quality and quantity of good environmental information, both of which are objectives that we also share support for. However, we would not like to see those objectives pursued in a way where we might actually create more bureaucracy and as a result more litigation and gridlock. And so, again, whatever the merit of those issues might be at a separate time and place, we strongly urge their exclusion from this legislation. If I can take a couple of moments to detail what our main concerns are--I won't go into all of them, which are in my testimony--I would say I believe the most troubling is the statutory mission statement that is included in the bill that would create a vague new standard hinging on the concept of unreasonable risk. We believe that unreasonable risk is only one standard that could be considered in terms of environmental protection, but it is by no means the one, that is used most generally in statutes; and that the mission of the Agency should be, plain and simple, to administer the statutes that Congress has already passed or may pass in the future. Second of all, in respect to the reorganization, I would like to point out a couple of issues that we also consider troubling. But I believe that the main point on reorganization is this: That, by and large, the Agency already has the authority it needs to accomplish the purposes of providing better information and doing cross-media work if it has the will and resources to do so. I, too, read the article in the Post today. Part of the headline is: Agency Says It Must Do a Better Job of Monitoring. Yet the Bush administration budget for this year actually would cut compliance monitoring and civil enforcement activities at the Environmental Protection Agency by nearly 100 positions, at the same time that the State of California in this article says what it needs more than anything else to provide more and better monitoring statistics is money. So we believe that merely bringing together information functions into a single place in the Agency and relabeling it doesn't necessarily mean that the Agency is going to be able to provide this job; and we would urge the committee to first look at ways in which they could make those current authorities and resources fit more closely the needs of the Agency. Finally, I would like to say that, if the committee decides what it would like to do is to try to improve the operation of the Agency by changing authorities or structure, then in fact we would have many suggestions of actions that could be taken that would improve environmental protection in this country. I have listed some of those suggestions in my testimony. I recommend them for consideration of the committee. But I would just conclude by saying that I believe that any of those proposals might also be controversial and that the end result might be derailing our common objective of elevating EPA to a Cabinet-level agency, which should be the purpose of the legislation. Mr. Ose. Thank you, Mr. Warren. [The prepared statement of Mr. Warren follows:] [GRAPHIC] [TIFF OMITTED] T9352.067 [GRAPHIC] [TIFF OMITTED] T9352.068 [GRAPHIC] [TIFF OMITTED] T9352.069 [GRAPHIC] [TIFF OMITTED] T9352.070 [GRAPHIC] [TIFF OMITTED] T9352.071 [GRAPHIC] [TIFF OMITTED] T9352.072 [GRAPHIC] [TIFF OMITTED] T9352.073 [GRAPHIC] [TIFF OMITTED] T9352.074 [GRAPHIC] [TIFF OMITTED] T9352.075 [GRAPHIC] [TIFF OMITTED] T9352.076 [GRAPHIC] [TIFF OMITTED] T9352.077 [GRAPHIC] [TIFF OMITTED] T9352.078 [GRAPHIC] [TIFF OMITTED] T9352.079 Mr. Ose. Our final witness is Rena Steinzor, who is a professor at the University of Maryland School of Law and a Board Member at the Center for Progressive Regulation. Thank you for joining us this morning. You are recognized for 5 minutes. Ms. Steinzor. Thank you, Mr. Chairman, for the opportunity to appear before you today. My comments do represent the views of the Center for Progressive Regulation, also a think tank doing much of its work in Washington. As the chairman explained at the outset, you have two very distinct pieces of legislation before you today. CPR would like to make five points about these legislative proposals and their potential impact on environmental protection. Point one, elevation is far less therapy than this gravely patient really needs. There is a broad-based consensus among the Agency's major constituencies that it should be elevated to Cabinet status, and CPR agrees with that view. However, at this juncture, elevation has the flavor of fiddling while Rome burns. Opponents have laid siege to the Agency which just lost Governor Whitman. A range of deregulatory initiatives imposed by the White House have undercut its daily work more drastically than at any point in the last 15 years. A ceremony in the Rose Garden celebrating its Cabinet status would convey a profoundly misleading impression about its stability and effectiveness. Beginning with broken promises at Kyoto, this administration has pursued a series of initiatives designed to roll back protections established by Presidents on a bipartisan basis over three decades. Among the most troubling are those that undermine the work of the President's father who led Congress to pass the 1990 Clean Air Act amendments, among the most comprehensive environmental initiatives ever to be enacted in this country. Meanwhile, the political appointee in charge of the Office of Water has launched an expensive and time-consuming initiative to eliminate Federal controls on pollution for 50 to 60 percent of streams and 20 percent of wetlands. Unless and until the States pick up the slack left by EPA and the Army Corps of Engineers' abrupt departure from the field, these vast and irreplaceable natural resources could be polluted, drained, or filled in by industrial dischargers, real estate developers, and sewage treatment plants. Point two, clean bill, or proverbial Christmas tree? Many of the EPA's critics, especially on the business side of the spectrum, have grown extremely frustrated by their inability to persuade Congress to undertake radical surgery on its core authorizing statutes. Efforts to impose similarly radical changes in the form of generic across-the-board regulatory reform have also failed. You will face a great deal of pressure to load the Cabinet bill up with yet another series of reform measures. This approach is likely to, and without a doubt should, doom passage. The only democratic and sufficiently transparent way to accomplish such reform is to undertake the difficult debates that are necessary to determine how much and how fast we will protect our air, our water, and our land, as well as the condition of the environmental legacy we will leave to our children. Point three, this bill represents an unreasonable risk of undermining democracy. Perhaps as a reflection of the pressure to reform EPA through Cabinet elevation legislation rather than the normal legislative process, H.R. 2138 would define EPA's mission as protecting the public from unreasonable environmental risks. This standard is borrowed from the Toxic Substances Control Act, the least effective and least protective of all the statutes that EPA administers. There are more details in my testimony about the impact of the Fifth Circuit's decision in Corrosion Proof Fittings versus EPA, which has basically crippled the Agency's effort to deal with asbestos which continues to plague the health of many Americans. Point four, reorganizing into more bureaucracy and less enforcement. The reorganization plan fragments EPA's core regulatory missions and creates a new layer of bureaucracy that will further congeal proactive efforts to enforce the law. The draining task of implementing this plan will cost EPA at least 2 years of progress on other aspects of its mission as positions in policymaking jurisdiction are shuffled and turf wars are fought. Point five, environmental statistics and the States. Interestingly, I did not read today's front page Washington Post story as supporting the idea that we don't have enough data to decide what to do. In fact, what that story said was that one-quarter of major dischargers of pollution into the Nation's surface waters are routinely violating the Clean Water Act. We have data; we just are not doing anything about it. I appreciate the opportunity to testify. Mr. Ose. Thank you, Ms. Steinzor. [The prepared statement of Ms. Steinzor follows:] [GRAPHIC] [TIFF OMITTED] T9352.080 [GRAPHIC] [TIFF OMITTED] T9352.081 [GRAPHIC] [TIFF OMITTED] T9352.082 [GRAPHIC] [TIFF OMITTED] T9352.083 [GRAPHIC] [TIFF OMITTED] T9352.084 [GRAPHIC] [TIFF OMITTED] T9352.085 [GRAPHIC] [TIFF OMITTED] T9352.086 Mr. Ose. All right. We are going to go to questions now. The way this works is that I have a number of questions that I need to get through here, and we will go left to right and right to left and left to right and right to left. If someone has something they want to offer, we have plenty of time. I am sure my colleagues up here will give me plenty of time to go to everybody. So we will just go forward. I do appreciate everybody's succinctness in summarizing their testimony. In the last Congress this subcommittee heard testimony regarding problems with EPA's operations, its science, its effectiveness of its regulations, its impact on the regulated community, its regional offices, its program offices, its lack of cross-media research, etc. The sum and substance of that was that many believe that, after 30 years of seeking piecemeal improvements, EPA needs to be reformed. Dr. Portney, we will start with you. Should Congress make reforms to EPA's organizational structure? And, is it appropriate to do it concurrent with the elevation to Cabinet- level status? Dr. Portney. Mr. Chairman, I think that there are respects in which EPA's operation can certainly be improved. I guess I would answer your question this way: If the reorganization that this legislation proposes becomes the overwhelming impediment to elevating EPA to Cabinet status and to creating a Bureau of Environmental Statistics, then I would be inclined to say that I would be happy to move a cleaner bill that incorporates the Bureau of Environmental Statistics and not run the risk of compromising what you have proposed, elevation and the creation of a Bureau that I think is overwhelmingly in the best interest of the public. Mr. Ose. So your de minimus standard is, at least, the Bureau of Environmental Statistics? Dr. Portney. To me, that is the most important part of the legislation that you have introduced. Yes, sir. Mr. Ose. OK. Dr. Gray, the same question. Dr. Gray. I really see a change like this as an opportunity, and I think that this may be the time to take the opportunity to try to address many of the pathologies of decisionmaking in EPA that have been identified by this committee in the past. I don't think we should waste it. And, it would be important--I share Dr. Portney's view that the Bureau of Environmental Statistics is extremely important to us, and I think that elevation is extremely important, but I think we should be very careful not to waste an opportunity, because it would be very difficult to do this under other circumstances. Don't waste the opportunity to address many of the problems that you've identified. Mr. Ose. So you would prefer to make structual changes as opposed to de minimus changes providing for at least the Bureau of Environmental Statistics? Dr. Gray. I think that would be my preference, yes. Mr. Ose. OK. Dr. Hayward. Dr. Hayward. Well, I don't have much expertise in administrative organization. But as I look at your two organizational charts over there, the one in the poster, if that really reflects the way EPA works, sort of reminds me about that politically incorrect joke about a certain kind of firing squad; and it can't strike me that is a good way to continue. It strikes me that the one that's up on the screen, which is the proposed reorganization, almost surely looks more like other departments are organized in the Cabinet. So, I mean, there is always going to be a lot of bureaucracy in government with that big an agency doing this many things. So it just seems to me it has to be much more sensible on the face of it to reorganize it the way your bill proposes. Mr. Ose. Mr. Warren, another bite at the apple. Mr. Warren. Thank you. I appreciate that. This is a very serious issue for the Agency, and I believe that your bill is actually a very thoughtful proposal in this field. But I think it is an issue that no one has actually solved this Rubik's Cube on yet. People recognize stovepiping as a problem at the Agency, yet I think that merely creating three Under Secretaries doesn't solve that problem. You have fewer pipes, yet in some ways they are thicker. The Policy and Planning Under Secretary would oversee the other Assistant Secretaries, but Science and Enforcement and Compliance aren't really integrated into the policy and planning function. And so, in some ways it might reinforce the separation of those activities from being fully integrated. Instead, I believe that, on that issue, Congress has already passed legislation that could serve this purpose, which is the Government Performance and Results Act: that, among other things, requires the Agency to produce a strategic plan, which they are in the process of revising; and that properly charges the head of the Agency with serving the integrating function, which I think is where the responsibility should reside. Mr. Ose. Professor Steinzor. Ms. Steinzor. It is common wisdom among public management experts that any comprehensive reorganization means that agencies are deflected from their core work for a period of time. We are estimating 2 years. I think that is probably conservative. CPR questions whether this agency can afford that kind of deflection when you see the erosion in the past of its routine bread and butter activities in enforcing the Clean Water Act and also when you consider its crucial role in counterterrorism. EPA was the one that responded to anthrax, that estimated the health risk at the World Trade Center. EPA is the only agency with authority to ask the chemical plants to make themselves more secure and prevent accidents. That industrial sector is unregulated at this moment in terms of those issues, and we feel that those imperatives are sufficiently urgent that a clean bill is the way to go on this. Mr. Ose. Thank you. When President Nixon created EPA in 1970, he stated his reasons for doing so, but he did not provide a mission statement, and since that time EPA has developed its own mission statement. My question is, should a mission statement be included in a bill establishing a new department. Professor Steinzor, your input on that? Ms. Steinzor. I'm a little puzzled about the bill's intent, because I understand your wish to provide a mission statement, and yet the bill has a savings clause that says it is not intended to affect any of the existing statutes. If your mission statement says that the Agency's mission is unreasonable risk, which is a standard under the Toxic Substances Control Act, and yet you have a savings clause that says this legislation does not affect the Clean Water and Clean Air Act, we will end up in massive arguing, including in court, about which one is the right interpretation. There is a broad constituency that would fight very hard against the idea that unreasonable risk should be the statutory standard across the board. So I am not sure how the legislation would ultimately be interpreted, but I can promise you full employment for all the law students in my class if it passes, unfortunately. Mr. Ose. All right. Mr. Warren. Mr. Warren. Well, I think there are two different issues. One is, does the Agency need a statutory mission statement; and second is whether the mission statement included in H.R. 2138 is the correct one. H.R. 37 does not have a statutory mission statement. We believe that is the way to go. We believe that is the way to go because, as I said in my oral comments, the mission of the Agency is to administer the statutes that Congress has passed and given EPA the responsibility to administer. One of the statutes, again, is the Government Performance Results Act, which requires a strategic plan; and in that strategic plan the Agency has already included a mission statement. The mission is to protect human health and the environment. Therefore, we believe that the Agency already has come up with the necessary means to address the issue of what the mission should be. In respect to the second question about whether you have correctly stated the mission, as I said in my oral comments, no, we don't believe that should be the stated mission. Mr. Ose. Thank you. Dr. Hayward. Dr. Hayward. I don't have too much to say about this, except that it strikes me as entirely appropriate for Congress to state some congressional intent about what the mission of a Cabinet-level agency is going to be. It may not matter as much in this case, although, again, if you go back to the very beginning, lots of things about the environment and the mission of the EPA was left undefined. And although Nixon had some general intent, ultimately, he punted and said, I am going to leave it to the first administrator to decide what the scope is and how they are going to go about their mission. And, there was actually some talk of a time, because there was this big Presidential commission on population issues, that maybe the EPA will be a lead agency for confronting population issues, which has always been on the global scale a large environmental theme. In the 30 years on, we sort of settled onto the EPA administering particular statutes for--you know, toxic substance has been mentioned, air quality, and so forth. And so, these kinds of larger issues of what should the mission, broadly speaking, of the Agency be have fallen away as a practical matter. But it seems to me entirely appropriate for you to weigh in on what you think its general direction should be. Mr. Ose. Dr. Gray. Dr. Gray. Well, as a scientist, I don't feel that I am particularly well-equipped to comment on the dance between the executive and the legislative branch. But what I can say very briefly is that I really like this mission statement as an aspiration for and a way to guide the thinking and the decisions of the Environmental Protection Agency. And, I guess that's where I'd leave it. I don't know if it's the right thing to do, but if you do it, I like this one. Mr. Ose. Dr. Portney. Dr. Portney. Three quick points in response. First of all, I know when you took testimony on comparable legislation in previous years you heard from one of my colleagues, Terry Davies, who is I think one of the wisest students of environmental protection in the country. He would just, frankly, kill me if I didn't use this opportunity to say that he has always been a champion of the notion that there ought to be an organic statute empowering the EPA. So I will say that, to the extent this mission statement question is a manifestation of congressional belief in having some kind of organic statute empowering EPA, I am supportive of that. Second, I always support the idea of Congress pointing out to the Environmental Protection Agency, that while there are any number of risks it is absolutely essential that the Agency regulate, there ought to be some notion of de minimus risk; and pointing out to the Agency that they can't control every single thing that appears in every single media isn't harmful, even though I don't see something like that trumping the individual statutes under which EPA regulates. And, finally, at the risk of sounding like a stuck record, I want to respond the way I did to your first question and say that if this question of having a mission statement or the language of unreasonable risk in the bill imperils elevating EPA to statutory or to Cabinet status or stands in the way of creating the Bureau of Environmental Statistics, I would throw it overboard. Mr. Ose. You have come to a conclusion as to what your objective is, haven't you? Dr. Portney. Man on a mission. Mr. Ose. Thank you. EPA, as you see the chart to my left, is currently structured in a manner that many refer to as a stovepipe approach. That is that many Assistant Administrators and various divisions of EPA each report independently to the Administrator without other oversight. During our hearings in the previous Congress, witnesses discussed how to improve the organization of EPA. We are going to start, Dr. Portney, with you. What are your views regarding H.R. 2138's reorganization of the Department into three Under Secretaries? Does this structure improve or not improve the Secretary's ability to manage the Department? Dr. Portney. I think that the structure that you propose would improve the Secretary's ability to manage the Department. There is no question in my mind about that. The types of problems that you have cited, though--the inability to make these cross-media tradeoffs, etc.--I think are probably due more to the fragmented statutory arrangement under which EPA regulates now than to the way the Agency is currently organized administratively. But I am supportive of the proposed reorganization and I hope in the future we will be able to take on the individual statutes to allow EPA to make these kinds of cross-media tradeoffs. Mr. Ose. One of my concerns is that we only pick a fight we might be able to win. Dr. Gray, any comment on that, on the questions I asked? Dr. Gray. Just one quick comment. Again, as I look at this primarily from a scientific point of view, we have to remember that science is a credibility that underlies all of EPA's decisions. My interest is in having those decisions be as credible as possible. I think this structure would help increase the credibility of EPA by making that clear distinction between policy and science. It would allow their science to get the recognition for its quality that it deserves, policy decisions to be made explicitly by policymakers, not hidden in the science. Mr. Ose. Dr. Hayward. Dr. Hayward. Nothing. Mr. Ose. Mr. Warren. Mr. Warren. I would like to focus on one aspect of that, since I discussed some of the points generally before, which is, I think everyone's common concern is that the Agency have the best science possible and that the science be used in the most effective way possible. And, I believe my concern about the organization into the three Under Secretaries is: that, again, the Under Secretary responsible for science and information is set apart from the Under Secretary for policy and planning; that you in some ways might unintentionally reinforce the balkanization of those functions within the Agency; and that now you will have even more powerful players responsible for activities that are not fully integrated. And, that whatever we do I think we at least do not want to make worse the bureaucratic tendency not to make science a function that the entire agency is concerned about at all times. Mr. Ose. Professor Steinzor. Ms. Steinzor. I won't repeat my points from before about reorganizing costing time and energy when we can't afford it. I will say, though, that I think that Terry Davies' proposals that Dr. Portney mentioned had to do with rewriting all the statutes to accomplish cross-media integrated regulation; and that would be a major, momentous task, as Terry Davies has acknowledged every time I have discussed it with him. I think it would be a very interesting debate, but it is not something that can be done simply by shuffling bureaucratic seats. In fact, as I understand your bill, the Assistant Secretaries could still be air, water, solid waste. They would be determined by the administrator. So we would still have unintegrated media-specific regulation. But I could be wrong about that. That is how I read it. Mr. Ose. That is one of the points of the hearing, is to try and get this input. So, thank you. The next question I have is in regard to the IG's report of November 2002, which examined the use of science in 16 post- 1994 rules. The Inspector General reported that program offices or their contractors developed virtually all the technical support documents that made the scientific case for the 16 rules included in the study, with little input from the Office of Research and Development. Currently, program offices and not the Office of Research and Development do the scientific work in support of regulatory actions. The most widely criticized aspect of EPA seems to be the quality of its science. Both sides of the political spectrum, or maybe all sides of the political spectrum, claim that EPA does not use what is referred to as sound science. We are going to start with Professor Steinzor, and we will move to my left. Would you support the relocation of science from the program offices and the centralization of the science at the new department under a Secretary of Science and Information? And then, part of that question is, if you could define from your perspective what sound science is, that would be helpful. Ms. Steinzor. Well, I have actually written on that subject; and perhaps I could submit the article about science at the EPA for the record. Mr. Ose. Hearing no objection, we will allow that. Ms. Steinzor. I actually would share Mr. Warren's concerns about putting it in a separate organization. But I would also say, in a nutshell, that the problem of science at EPA is not that it is junk but that it is overly influenced by regulated industries. And, I would refer you to a GAO report that came out in 2001 that showed that when it was doing crucial peer review EPA was not ensuring that panels were balanced for bias, wasn't even asking panelists if they had conflicts of interest, such as working for companies that sell the chemicals that were being reviewed. And, that those kinds of problems, as I said in my written testimony, are much more urgent. Before we can make science sound, we have to make it clean. I guess that is what I would suggest. Mr. Ose. Mr. Warren? Do you want me to repeat the question? Mr. Warren. No, I think I remember it. But it raises many different issues at once. So I will do what I can to pick out what I think are the most important, which is that there should be fewer, more important, responsibilities and sound science at the Agency. Sound science is using the best available information according to generally accepted scientific protocols in a way that is transparent and can pass the test of an independent review. But I believe that often the claim of sound science is just used by critics of the Agency to dispute outcomes that they don't like when the underlying science may, in fact, be perfectly sound. So I think that we want to try to avoid making this issue just a political football within this legislative debate. Once again, I think I would say that I think it has been more a problem on the part of the Agency of having inadequate resources. You sort of get what you pay for. If you want more, better science, then you really have to sort of put money into it, and not use it, as an excuse not to take action until we know more, and then not really try to do what is necessary to find out more about the environment. I think that one of the essential points here, and this will be my final point, has to do with conflicts of interest and managing peer review processes at the Agency. In respect to the legislation, I have certain concerns about that for the Bureau of Environmental Statistics, that it creates a peer review process that in some ways, actually ironically while we are elevating the EPA on one hand to a Cabinet department, would subordinate the Agency to review by other Cabinet departments in ways in which they are not subject to review by the Department of Environmental Protection. So I believe that there are other ways to address issues of ensuring quality science and that those should be our top priorities. Mr. Ose. In terms of the centralization of the science at the new department as opposed to leaving them in a program or in the regional offices? Mr. Warren. If I can briefly address that issue, I would like to say again, this is a part of the Rubik's Cube that no one has quite figured out the solution to. Science is not one thing. The Agency needs to do several different kinds of scientific activities. One of those is to broadly look at the state of the environment and emerging environmental issues that people may have not thought about before, and a separate science office may properly do that. Several of those activities are to make sure that regulatory actions are directly supported by good science, and you may not want to separate that from the program office because you may actually worsen stovepiping. Last but not least, I would say that there is a role for the Agency to support work outside of the department, that not all of the work should be done in house, that in many ways, supporting the work of independent researchers can be much more fruitful in the long run. Mr. Ose. Dr. Hayward, same questions: Do you support the relocation of science from the program offices and the centralization of science at the new department under an Under Secretary, and what do you think constitutes sound science? Dr. Hayward. I don't really have a firm opinion on the first question, the narrow administrative question. The broader question that drives all of this is what is sound science. I have a very hard time answering that question in a meaningful way. It is a motherhood-and-apple-pie concept. No one is for unsound science. The difficulty arises when you have perfectly scrupulous and unbiased scientists who disagree and/or who produce results with large ranges of uncertainty, and that characterizes a lot of our science and environmental matters. So at the end of the day, it is not so much the soundness of the science that is in question, although it can be sometimes, as it is how we judge the risk threshold we decide to apply with the information we have, given the uncertainties we have. Dr. Gray knows a whole lot more about this than I do, so I am going to punt to him here in a minute. But ultimately, sound science gets subsumed in the political decisions about which particular risks we are going to go after and what threshold of risk we find reasonable or unreasonable, to bring up that term again. Just to conclude in one sentence, I don't think this is a problem that can or should be sorted out in legislation necessarily. Mr. Ose. All right. Dr. Gray. Dr. Gray. I think the first thing that I want to say is that it is important to recognize that EPA in fact does and uses good, sound science. They use peer-reviewed work, they publish work. They do and use good science. The question isn't the science, it is the interpretation of the science. This is exactly what Dr. Hayward was getting at. The interpretation is what is important. I think that is where peer review is necessary and it is one of the places that we don't look very often. In terms of structure, again as a scientist, I don't have strong opinions about how we think about the way to organize things, but my concern is that as long as the science is embedded in the program offices, there is a perception, if not the reality, that the scientists are used, are interpreting that science to get the right answer, the answer that will advance the policy of that program office. For that reason, I think that making a clean distinction between the scientific work, the scientific interpretation, and the policies in the program offices is something that will increase the credibility of EPA science and their decision. Mr. Ose. In terms of the person making the interpretation of the science, are you suggesting that we need to provide the maximum insulation, if you will, for that person's scientific credibility? Dr. Gray. Well, the way in which this sort of risk assessment and management process has been envisioned for many, many years is that it is very important to bring the best available scientific information to a problem, consider that information along with all of the other things that we want to take into consideration in coming to a decision. There is a perception, and you can see it, in fact, in, for example, EPA guidelines that influence the way in which the Agency and outside groups interpret data, how they are supposed to use scientific information to inform decisions, that there are policy choices, policy assumptions all through that have a very strong influence on what ends up coming out. They are not science; and in that way, they are contaminating the science with the policy decisions. The more we can make those two things separate to make distinct the scientific choice and the policy choice, I think the better, the more you would enhance the credibility of EPA's decisions. Mr. Ose. Thank you. Dr. Portney, we know that you would trade everything for the establishment of the Bureau of Environmental Statistics. Would you still care to offer some comments on this question? Dr. Portney. Not everything. I would still keep my stepchildren. I want the record to reflect that. Two things here. First of all, we all know what the definition of sound science is. It is that body of studies that supports what it is you want the Agency to do, and the body of science that supports what you want the Agency not to do gets deemed unsound science. I mean that is de facto; I think that is the way this debate has evolved. Congressman Ose, I really think there is a tradeoff in centralizing science at the EPA. I certainly can see some advantages, because I think as you look across the program offices even within the EPA, not to mention the way science gets conducted between the EPA and other Federal agencies, you see certain inconsistencies with respect to high to low-dose extrapolation, etc. EPA has worked very hard to try to centralize this through the risk assessment guidelines that the Agency establishes, but I think you could probably improve on some of the inconsistencies through some kind of centralization of science. The other side of that tradeoff, though, is the following: as the science gets pushed up to or out of the program offices, you run the risk of the science becoming irrelevant to or not directly connected to the regulatory problems that the program offices have to deal with. Briefly, I can give you one analogy. The same issue has been debated within the Occupational Safety and Health Administration, and there was concern that by virtue of having the research done within OSHA, somehow the quality of the science wasn't very good and it was being driven by the answers that OSHA wanted the scientists to find. So a separate agency was created, the National Institute of Occupational Safety and Health. I presume that the quality of the science done at NIOSH is better than the quality of the science that was done within OSHA, but the complaint is that the regulators at OSHA feel that NIOSH funds basic research and doesn't produce scientific research that helps the OSHA regulators actually deal with the problems that you and other Members of Congress have directed them to deal with. So you can improve science on the one hand, but sometimes it is at the risk of making the science relevant to the individual regulatory decisions that the Agency has to make. Mr. Ose. Is it your point that before NIOSH was established, there were problems in separating the science from the policy? Dr. Portney. That is my understanding, and that the idea of creating NIOSH was to professionalize and elevate the quality of the science that was conducted. Mr. Ose. And, even in its establishment and existence, there remain problems? Dr. Portney. What I have heard in the past from people at OSHA is that NIOSH has become a research agency whose mission has become somewhat divorced from the day-to-day problems that OSHA has to regulate, and that some of the science funding drifted in the direction of basic science, rather than more applied issues that were germane to the individual regulatory problems that the Agency had. Mr. Ose. Dr. Gray, on page 2 of your written testimony you state that the change in the department's structure will require further tweaking to ensure that science policy does not influence the conduct and interpretation of scientific information. You touched on that a moment ago. Do you have a specific solution in mind relative to the further tweaking that you reference in your statement? Dr. Gray. I think something that I would like to suggest, because this does exactly address the notion that I was speaking to a moment ago about the separation of policy and science. There are some very nice guidelines, draft guidelines for policy analysis, that address many of these issues separating the science from the policy, and those are in some draft guidance from the Office of Management and Budget that came out in February. I would recommend that you look closely at those as guidance for doing analysis which supports EPA regulations while keeping the policy attributes as distinct from those as possible. Mr. Ose. Are you asking that they be made a part of the record? Dr. Gray. Yes, please. Mr. Ose. Hearing no objection, we will do that. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T9352.103 [GRAPHIC] [TIFF OMITTED] T9352.104 [GRAPHIC] [TIFF OMITTED] T9352.105 [GRAPHIC] [TIFF OMITTED] T9352.106 [GRAPHIC] [TIFF OMITTED] T9352.107 [GRAPHIC] [TIFF OMITTED] T9352.108 [GRAPHIC] [TIFF OMITTED] T9352.109 [GRAPHIC] [TIFF OMITTED] T9352.110 [GRAPHIC] [TIFF OMITTED] T9352.111 [GRAPHIC] [TIFF OMITTED] T9352.112 [GRAPHIC] [TIFF OMITTED] T9352.113 [GRAPHIC] [TIFF OMITTED] T9352.114 [GRAPHIC] [TIFF OMITTED] T9352.115 [GRAPHIC] [TIFF OMITTED] T9352.116 Mr. Ose. Professor Steinzor, on page 4 of your written testimony, you have four suggestions for reforming science at EPA, including removing peer review panelists with ties to regulatory outcomes, prohibiting research contracts limiting adverse results and requiring full disclosure of all data, science, and techniques submitted by industry and, fourth, requiring more balanced peer review. Do you have legislative language implementing these four suggestions? Ms. Steinzor. I don't have legislative language. CPR believes these issues are very important to pursue, but again, would do it outside the context of the Cabinet-elevation bill. Mr. Ose. Could we send you a followup question in writing to get some feedback on that? Ms. Steinzor. Certainly. I would be delighted by that opportunity. Mr. Ose. All right. I appreciate that. Now, relative to these four suggestions by Professor Steinzor, do any of the other members of this panel have suggestions, observations? I don't know if you have seen her testimony or not. Dr. Gray, have you had a chance to look at it? Dr. Gray. I haven't. All I would suggest is that peer review is important. We want to encourage peer review and we want it to be credible, and I think that anything that increases the level of disclosure in that peer review is very important. I think we have to make sure that we keep peer review focused on expertise, but within that world, I think more disclosure of potential conflicts of interest and other sorts of things is very important. Mr. Ose. Let's examine that for a minute. With respect to my business career, I had everybody telling me that I should have done something differently and they could have done it better. Let's examine for a moment what the purpose of peer review is and how you get it. The EPA's Inspector General in November 2002 noted that critical science supporting their rules was often not peer reviewed by an independent body, and that caused some uncertainty relative to the quality of the science supporting a rule. Now, tell me how the peer review thing works. Dr. Portney, how does peer review work in this process, from your perspective? What is your experience with it? Dr. Portney. Well, I have had both favorable and unfavorable experiences with peer review in the sense that I have done research which has been turned down when I have sent it to a peer-reviewed and refereed journal, but I think that process is very, very important. The way it works is, you conduct a body of research, whether it is toxicological or legal or economic or whatever. You try to do this to the highest standards, collect the data according to the best protocols, analyze it in as sophisticated a way as possible, you write up the research and you send it to the best journals in one's respected profession. The editor of the journal then typically selects one or two or three reviewers, generally reviewers whose identity is not known to the person who has written up the research, and they decide whether or not that research merits publication. They send referees' reports to the editor of the journal, and ultimately the journal editor makes a decision as to whether or not it is publishable. And,I think that this process, while certainly having all kinds of problems, as any process does involving human beings, I think it is absolutely essential, and to the greatest extent possible, the EPA or any other regulatory agency ought to try to rely upon as great an extent possible research which has been through this review and vetting process and has passed. Ms. Steinzor. Mr. Chairman. Mr. Ose. You are actually exactly where I was going to, Professor, so I appreciate your raising your hand. I do want to ask a question, because this same EPA Inspector General report noted that 276 of 496 critical documents supporting the rules that were put forward were either not peer reviewed or their peer review status was indeterminable that is we were unable to determine whether or not it was done. Now, I want to come back to you because it is your original point we are talking about, one of those four, if you will. How do we deal with this peer review requirement under the parameters you have described? Ms. Steinzor. There are two different kinds of peer review I think that are at issue, and one is what Dr. Portney was just talking about, peer review by professional journals. EPA has its own process for peer review which is done by the Science Advisory Board, and it was the operations of that board that were criticized by the GAO for compiling peer review panels that the members never asked to disclose what their affiliations were. So one answer is to clean up the SAB and have it do peer review in a more balanced, less biased, with full disclosure, more transparent way. The problem with relying on peer-reviewed journals is that many of the questions that EPA is dealing with have to do with the effects of exposure to certain kinds of chemicals. And, unlike the pharmaceutical industry, there is not as lively a publication market for those kinds of studies, and they are often done by the companies who manufactured the chemical, which is the party that is most interested in what the results of the study would be. I have no question about that. The problem is that if the study itself has not been peer reviewed by publication and an independent journal and, instead, arrives at EPA to be peer reviewed, it needs to go to the Science Advisory Board, and it also needs to be accompanied by all the underlying data or no one can tell what is going on. And, that is the recommendation that I am making. Now, Dr. Gray said we need to focus on expertise, and I agree with him. We certainly can have incompetent scientists doing peer review. The problem is that if you say expertise in a specific chemical, the only people that have very well- developed expertise in a very specific chemical are the people that make it, and you can't have people peer reviewing themselves. Mr. Ose. How do we deal with that? Ms. Steinzor. I think it is very important to balance these panels for bias and to look long and hard for people who are independent in the academic community. They do exist. And to balance, I mean not to have people on who have a direct financial stake in the outcome of whatever the regulatory decision is. A company that makes chemical---- Mr. Ose. I think you just said that the people who know the most about a chemical are probably those who put forward the request for a peer review of their product. In other words, the people who manufacture---- Ms. Steinzor. They do the studies. Mr. Ose. They do the studies, and they are probably the most knowledgeable about the product in terms of its scientific impact? Ms. Steinzor. Well, that's right, but should we have somebody who has done a study for a company that stands to benefit financially look over his own study and decide if its adequate? Mr. Ose. I am trying to figure out if we are looking for quality peer reviewers, if you will, if the best are with industry, how do we get an appropriate peer review panel? This argument is circular. Ms. Steinzor. Well, there are independent academic scientists. I actually think it is fairly well established that if you have a financial stake in the outcome of a decision, you are not allowed to be a peer reviewer. The problem with EPA's SAB was that there was no disclosure, so you couldn't tell if somebody had a financial stake. But what I am suggesting is, if you have people like that serving, you also need people who are expert in the area of the effects that are being investigated, who are not affiliated with industry; otherwise, you end up having a perception that the fox is guarding the chicken coop. Mr. Ose. So the current rules or statutes preclude someone with a direct financial interest from participating in the peer review, even though there is no means of investigating whether that is the case or enforcing it? Ms. Steinzor. Well, there are means of investigating and there are means of enforcing it. It can be waived on occasion by the Agency. It has been. But the problem was that EPA's practice was never to ask. Mr. Ose. I see. Ms. Steinzor. So there are tools, but the Agency wasn't implementing them. Mr. Ose. The other panelists--I would like your input on this issue; it is kind of like the chicken or the egg, speaking of the fox and the henhouse--Dr. Portney, Dr. Gray, Mr. Warren? Dr. Portney. Sure. If I could briefly, I understand what Rena Steinzor is saying, and I think I agree with her. As a former member of EPA's Executive Committee of the Science Advisory Board, I do think in the past the Science Advisory Board has had people on peer review panels who have not made clear, or the SAB has not asked them to make clear, what their ties may be, whether or not they are a scientist employed by a pharmaceutical company or a chemical company or a research scientist, most of whose research has been supported by a company. I mean, I can't see any reason why you wouldn't require people to make clear the sources of their support. But I think you are absolutely right. As Professor Steinzor points out, in some cases, the people who know the most about and are the best, the most technically versed in research about a particular substance, are often the people who derive their livelihoods from studying that; and I wouldn't want to see them excluded from a peer review panel. I think they ought to have the right to participate, so long as they disclose their backgrounds, where the research support comes from, etc. I also agree with Rena that there are people out there who have no ties, financial or otherwise, to the production process, etc., in question who can be found to sit on these panels and every effort should be made to include them. Mr. Ose. Mr. Warren. Mr. Warren. Well, NRDC does support the type of reforms that Ms. Steinzor has been describing. There are two important objectives. One is you want balanced expertise, and two you also want transparency and as little conflict of interest as possible. So in many ways this goes to the heart of the issue of what the Agency really needs to be focusing on to ensure sound science. It requires an extra effort for the Agency to beat the bushes, as it were, to get people who don't have a direct interest or a conflict of interest where the review is concerned. But we need much better disclosure to ensure the transparency where participants in the panel may have conflicts of interest. Mr. Ose. Dr. Hayward, any input? Dr. Gray. Dr. Gray. I would just say very briefly that this can be done. I serve on a variety of national advisory committees at the National Institute of Environmental Health Sciences for the Food and Drug Administration, where this is done routinely. Disclosure is done, things are vetted, and people know where people are coming from; and it can be done and it is done. Mr. Ose. Let me examine that for a minute. In terms of the disclosure that you undergo as a participant in these bodies, give us some sense of what it is you put on the table. Dr. Gray. Well, for example, serving on the National Advisory Environmental Health Sciences Council, which advises the National Institute of Environmental Health Sciences, I disclose everything from my sources of income, my wife's sources of income, investments that we have, sources of funding for my research, in complete detail. So I think almost anything that one could imagine could give a clue as to someone having a potential conflict of interest is examined by, in this case, the Department of Health and Human Services to determine whether--and there are times, potentially, where one could be asked not to comment on specific issues because it is inappropriate. Mr. Ose. Has that ever happened? Dr. Gray. Not to me. And, I am sure that it has happened on this council. An event doesn't come to mind, but I am sure that it has happened. Mr. Ose. OK. If you put information on the table of that nature and someone challenges it, is it a requirement for disclosure, or is it a disqualifier for participation? I want to be clear on this. In other words, if you just disclose it, does that meet the requirement, or does it actually serve as a disqualifier for participation? Dr. Gray. No. There is a specific individual within the department that then reviews this information, and for a particular meeting that is coming up and a particular topic that is going to be discussed, that person makes a judgment about whether it is appropriate for me, for example, to speak on this or not because of a conflict of interest. Mr. Ose. OK. Dr. Gray. So a judgment is made. It is not just disclosure, but a judgment is also made. Mr. Ose. All right. Let's go on to the next question here. EPA does not have a mechanism, an adequate mechanism, for systematically collecting and analyzing current environmental and human health data. H.R. 2138 provides for a Bureau of Environmental Statistics modeled after the Bureau of Labor Statistics and the Energy Information Agency. H.R. 2138 provides that the Bureau shall collect environmental quality and related public health and economic information, including data on ambient conditions and trends and distribution of environmental conditions and related public health conditions across populations. Dr. Portney, I believe you proposed this concept in 1988, and I am frankly hopeful that with this bill it will finally become a reality. I am going to allow you another opportunity to say that you support the Bureau of Environmental Statistics within the new department, so the first question is, do you support that; and the second question is, does the EPA currently collect valid statistical data on the quality of the environment, including health outcomes such as morbidity and mortality data? Dr. Portney. Well, I am relatively indifferent on the creation of a bureau! I have made it abundantly clear that I support that. With respect to the provision of data on health outcomes, I will just echo something I said earlier and I will do it briefly. The farther a Bureau of Environmental Statistics has to get from providing data on ambient environmental quality or emissions from sources, the more difficult its job becomes. Let me give you an example. Some people have suggested that there is a link between ambient air pollution and the apparently increasing incidence of asthma. I think asthma is a very serious public health problem. It is hard for me to understand how it can be linked to deterioration in air quality, though, because as Steve Hayward and other people have pointed out, air quality has improved in every metropolitan area around the United States consistently over a 30-year period with respect to every air pollutant. So if asthma is getting worse at the same time air pollution is getting better, either it is linked to an air pollutant for which we don't currently collect data, or something else--lice, fungus, etc.--is causing the increase in asthma. The point I am trying to make is that if the Bureau of Environmental Statistics had to present evidence, collect and disseminate evidence on the incidence of asthma, that would create the presumption that somehow that is an environmentally mediated disease, and in fact, I think there is reasonable doubt about whether or not that is the case. In other words, it is not like smoking and lung cancer or some other disease where there is a one-to-one link. So as long as we are talking about ambient air quality, water quality, land contamination, drinking water quality, etc., then I think it is a no-brainer for the Bureau of Environmental Statistics. It gets more challenging the farther away we move into the health and economic area. Mr. Ose. Are you suggesting that the Bureau would serve to facilitate the cross-media analysis of environmental concerns? Dr. Portney. Well, to some extent, I guess. I think that its mission ought to be to report to you, the Members of Congress, people in the administration and in the general public the kind of progress we are making on environmental quality; thus, a Bureau of Environmental Statistics. We have a National Center for Health Statistics that presents evidence on trends in respiratory disease, cardiovascular illness, etc. I don't want to see the BES verge too far from the principal reason for creating it, for fear, to some extent, that we would undermine support for it. Mr. Ose. OK. Professor Steinzor. Ms. Steinzor. Mr. Chairman, I want to respond to this point that air quality is getting better and, therefore, asthma must be due to other causes by saying that, first of all, we live in an area that is severe nonattainment for ozone, and there is not any question that the Baltimore and Washington metropolitan areas are not going to make attainment by 2005. So while there may have been a broad trend toward improvement, it is very clear that many metropolitan areas in the country--Houston, Los Angeles, Atlanta, etc.--are not going to make attainment of levels necessary to protect health by 2005; and when the new fine particulate matter standards come into effect, they will fall even further behind. So a broad trend does not make a safe, health-based level, and our cities are in very serious trouble, and are going to be back in front of you very shortly, begging for yet another extension. I think this would be the fifth one for the area that we live in. So perhaps I am a little sensitive on this as the mother of an asthmatic child, but I think we need to be careful; and this is an illustration of how the Bureau of Environmental Statistics, to get to your original point, needs to be constructed and implemented and handled very, very carefully. Mr. Ose. All right. Mr. Warren, any input? Mr. Warren. Well, I believe that the objective is definitely desirable. I think we all want more, better environmental information. Representing an environmental organization, I believe that will support in the long term our claims that environmental protections on the books have been worthwhile and that more environmental help is necessary. I believe that the Agency already has the authorities to fulfill the sort of charge that you described, that it is, by and large, a resource issue, that you can only do so much, that you can only do what you have the resources for, and that merely moving these functions around into one place in the Agency and calling it a ``bureau,'' I don't think by itself, will ensure that the information is better. Mr. Ose. Dr. Hayward. Dr. Hayward. Well, I can't help but weigh in a little bit here on the question that is engaged at the ends of the table on pollution and asthma. You represent part of Solano County, I think? Mr. Ose. I come from a severe nonattainment area also. Dr. Hayward. Which is what, Sacramento? Mr. Ose. Yes. Dr. Hayward. Yes. I lived there for 6 years. I looked at California counties very closely between the air quality status and their asthma rates, and I found an interesting thing. Right now, the highest asthma rate in California is Fresno County, and it also has right now the highest exceedences of the new ozone standards, actually even more than the South Coast's, which is a remarkable record of improvement. The next two highest rates of asthma in California are Marin County and Solano County, both of which have had zero exceedences of the ozone, the new ozone standard for the last 3 years, and then it jumps around as you go on down. San Bernardino and Riverside Counties, which are the next worst places, are sort of in the middle on their asthma rates. I mean, any statistician would tell you that an air pollution/asthma correlation will not pass the statistical significance test. Now, we can argue about this for a long time, and I think we will. But this illustrates the difficulty that Paul, I think, is trying to bring up between correlating environmental conditions and health standards. This falls into that large area we referred to earlier of great uncertainties and the science of this, the sound science of all of this. I just wanted to add one other little clarification. You know, the way we regulate air in cities, we have dozens of monitors in the large areas. If a single monitor is out of compliance, the whole metropolitan area is deemed to be out of compliance with the Clean Air Act. That makes perfect sense from a regulatory point of view because downwind areas may be getting their pollution from the upwind areas. In other words, in San Diego, it turns out there has only been one monitor out of compliance with the ozone standard in the last 3 years, out in the eastern part of the county, where less than 1 percent of the population lives. I don't know what the monitors look like for Washington and Baltimore, but in San Diego, 99 percent of the population is not exposed to ozone that exceeds the standard. So it is a mistake in my mind to say, therefore, the entire population of San Diego is at risk of asthma because that area is found out of compliance with the Clean Air Act. Mr. Ose. Your point is the quality of the information or the quality of the monitoring could stand improvement? Dr. Hayward. Well, no, the quality of how we interpret and understand how localized problems are. Mr. Ose. Would a Bureau of Environmental Statistics help or hinder improving the quality? Dr. Hayward. I think it would help. I don't think it solves any of our difficulties of the links, as Paul has tried to say, I don't think this solves any of our difficulties with the link between pollution and health effects that we currently argue about. Mr. Ose. That is a different question. Dr. Hayward. Right. Mr. Ose. Dr. Gray. Dr. Gray. To answer the first part of your question, EPA does gather some very good and very useful data in some areas, and that is very important for us. One of the problems that I tried to illustrate in my testimony is that in many ways, people don't know about those data, and it may well be that is why most Americans think the air today is less clean than it was 10 years ago when all of the data that have been collected suggest the opposite is true. I think that having an independent group, that perhaps is seen as not having some of the same conflicts of interest as EPA might have in these statistics, might increase their acceptance and increase people's willingness to understand their knowledge about the state of the environment. I do want to comment on this issue that has come up about health effects and whether those are appropriate for a Bureau of Environmental Statistics. A very large fraction of EPA's regulations are expressly based on the notion that they are going to decrease risk to human health: Particulate standards will reduce mortality and morbidity; the ozone standard will reduce rates of disease. If we don't monitor those diseases, how will we know if the progress is being made? Just simple changes in the indicator chemicals doesn't take us to the point that, in fact, justifies that entire rule. I think it is important that a Bureau of Environmental Statistics does include not just measuring parts per million of something here and there, but tries to get at these notions of health effects so we can understand whether these rules are having the effects that they intended. That said, it is a very difficult thing to do. And in fact, I said in my testimony, for example, meeting the arsenic standard is something that probably would never be detected in a town. The fact that those risks are so small is also useful information for people to know that we are looking at risks that we are not going to be able to find in our public health statistics. That is information that should be in the national debate about the kinds of programs that we are undertaking. Mr. Ose. Is the Bureau of Environmental Statistics an appropriate place to collect that information? Dr. Gray. I think it is a very good idea because of its independence and, I think, because of its peer review function, the idea that people are checking on the techniques, the tools, and the models that are being used. Mr. Ose. OK. Mr. Warren, I was perplexed by something on page 7 of your testimony. You were talking about your concerns about the Bureau's confidentiality provisions on any statistics they gather, and I think the direct quote is ``Such confidentiality provisions may, in fact, bar the distribution of valuable information that the public receives presently under current law.'' Could you explain that? I don't know if you have it with you or not, but have you identified in the proposed legislation itself, the specific language that you believe is the source of that debarment, or disbarment? Mr. Warren. I can give you an example of it. We are in the process of reviewing the details of it. I have to say that issues like this, and the scrutiny that would require to go through all of the provisions of the legislation is again one of the reasons we would prefer at this point to just have a simple elevation. Issues like this should be dealt with at another time and place. But in this particular case, one of our concerns was provisions of the Clean Air Act that required the disclosure of certain kinds of emission data. So we are currently looking at whether the general confidentiality statement could be construed as conflicting with that provision of the Clean Air Act. We understand you have a savings clause in the back, so there would have to be some interpretation of how that savings clause would be reconciled with those provisions. But as you know, any subsequent legislation always takes precedence over prior legislation, all other things being considered, and I think it follows into one of those areas of concerns that has been expressed before about unintended consequences and perhaps litigation quagmires. Mr. Ose. Well, as we are sitting here, I am just reviewing the confidentiality provisions, and I understand the issue as it relates to the Homeland Security Act of 2003 in terms of information put forward pursuant to that particular legislation, but there are caveats here prohibiting the director, in some cases, from disclosing any personally identifiable or corporately identifiable data collected by the Bureau, but also giving the director the opportunity to take action to collect such data from any department or any other Federal agency. I am trying to find the specific language in here that your concern stems from. Mr. Warren. Well, of course, collecting the information from other agencies is really not the question. The question here is under what circumstances, what kinds of information might be disseminated to the public, and whether the general statement of confidentiality in this legislation would be seen as being in conflict with that provision of the Clean Air Act that distributes information to the public on emissions data. And, I would like to make it clear that in our testimony, we raised this as a concern as opposed to an objection and sort of said, I think your language should be double-checked, which we are in the process of doing. So I want to be fair. I want to say that perhaps we will do further research and say that this is not a concern. But on the other hand, I think it does raise a suite of issues in terms of additional scrutiny that these types of provisions need to be given where they may conflict with a range of statutes. Mr. Ose. Why don't we send you a question in writing asking you to specify the language in the bill, the proposed legislation that generates your concern on this confidentiality issue? Mr. Warren. We would be glad to respond to that. Mr. Ose. We are going to go to the next question. H.R. 2138 provides that the Bureau's director shall not be required to obtain internal departmental approval on the collection, analysis, dissemination, or publication of its data. What we are trying to do is insulate the director from the vagaries of political trends. What we want is the data as it is scientifically delivered. Now, we will start in middle here today. Dr. Hayward, do you support an independent director of the Bureau of Environmental Statistics? If so, why? If not, why not? And, does the language in H.R. 2138 provide adequate protections to the integrity of the proposed Bureau's efforts? Dr. Hayward. Well, I am not a lawyer or an expert on statutory construction, so I don't have an opinion on the second half of that question. But as to the first half, the reason I like the idea is that, as I look around at data sources in government, it strikes me that the Bureau of Labor Statistics which, by the way, took some time--when it was forged, I think in the 1930's--to establish its credibility, to filling out some of the methodological problems on data gathering and interpretation; and even, still, today there is debate about some of their findings. But the Bureau of Labor Statistics and I think an equally or maybe better model is the Energy Information Administration, whose data I think is universally respected across the political spectrum. It has been independent from political pressures to a very large degree, so I think those are good models to emulate. Mr. Ose. Mr. Warren, any input on this? We will add the caveat, if we set up the Bureau of Environmental Statistics. Mr. Warren. Well, that is an important caveat, because otherwise I would be compelled to say that I don't think in terms of the criticisms of EPA in the past that their head science officials, in fact, have had their credibility or integrity challenged in terms of how they operate. So while I believe that we all believe that science should operate according to sound principles and not be subject to undue influence of some sort, I don't actually think that has been even the basis of the criticisms of the Agency science. So I have to counterbalance the stated desire to ensure the independence of the head of the Bureau of Environmental Statistics with the concern of the isolation of that office from being policy relevant. We would certainly want to make sure that to the extent sound environmental information is collected and generated, that it was properly integrated into the rest of the organization, and there would be tension between their independence and that integration. Mr. Ose. Dr. Gray, any input on this? Dr. Gray. I just think that independence increases credibility and the credibility of these data are going to be important to their use in evaluating our environmental progress. Mr. Ose. All right. Professor Steinzor. Ms. Steinzor. I would only urge you to consider that the States are responsible for generating a lot of this data, and have, in the past, resisted vigorously EPA's efforts to get them to cough more of it up, largely because they feel very stretched in terms of resources. And, to give just another example, I don't know if you, when you are here, live in Maryland, but we have a State agency that went from $232 million budget in fiscal year 2001 to $164 million in fiscal year 2004, a 30 percent cut. And, I would be very surprised if that wasn't happening all over the country. So they will scream, and that will be a problem without Federal help. Mr. Ose. OK. Let me go to Dr. Portney first. Dr. Portney. Go ahead. Dr. Hayward. Something that just occurred to me: The EPA probably in the next couple of weeks is going to come out with a report on the state of the environment that they have been putting together for probably a year and a half now. They probably haven't done one since 1989. I haven't seen any advanced peeks, I am going to see one next week, but what I hear from those involved is that it has suffered from the usual interagency squabbling because they are trying to do things that are covered under the Department of Interior, the Department of Agriculture and the Forest Service purview and so forth. So the likelihood is that it is going to reflect some of the usual clashes and compromises and concessions for an interagency process to try and do this and, therefore, it will be of limited value, I think. That, to me, is an argument in the obverse for doing it the way you propose to do it. Mr. Ose. Dr. Portney. Dr. Portney. I am strongly supportive of the language that you have written into the bill that would protect the independence of the director, and let me give you an example. Coming down here to testify today, I was in a cab, the driver of which had on one of these talk radio shows that said that in new information released yesterday by the Bureau of Labor Statistics, the unemployment rate has risen to 6.1 percent. Then they had a call-in, and the people who called in argued about why it had gone up to 6.1 percent. Is it administration policies? Is it overall economic deterioration around the world? No one said that the unemployment rate is not really 6.1 percent, that the Bush administration is lying. Everybody understands that given the way that we measure unemployment, that 6.1 percent is an honest measure, given the procedures that we have established for that. I think it is really important that an independent Bureau of Environmental Statistics be able to say that air quality in Baltimore has deteriorated or improved with respect to this pollutant, and have the nature of the policy debate center around whether or not it makes sense to spend money to further improve air quality or prevent deterioration when, in fact, I think we spend too much time arguing about whether or not air quality really is as we have stated it or we have discussed today: Well, is it because the monitors are located where they are, or is it because there are only two monitors in this metropolitan area? I really think elevating EPA to Cabinet status, as you have proposed, and incorporating in that a Bureau of Environmental Statistics will force us to confront these issues and get the public focused on the kinds of questions that we ought to be focused on. Mr. Ose. There is a related question here. Dr. Hayward, you just talked about a report coming out on the status or the condition of the environment, the last having been issued in 1989. There is a requirement in the legislation that the Bureau's director submit an annual report to Congress and the Secretary, as well as the public. Would this be useful? Does it help the process? Does it introduce accountability, both to the Department or the Bureau? Is it too much? Is it too little? Dr. Hayward. Oh, boy. A whole basket of questions there. I mean, I think it is helpful in that it would help move forward public understanding of environmental issues beyond, as I put it, environmentalism by anecdote and policy by headline. That is a general thought. Mr. Ose. Mr. Warren. Mr. Warren. I don't disagree with that really. Mr. Ose. OK. Dr. Gray. Dr. Gray. I don't have a comment, other than it would be helpful, and I think that annual helps us track things a lot better than every 12 years or 13 years. Mr. Ose. Professor Steinzor. Ms. Steinzor. I agree with that and think that environmental indicators are a very important tool. But if they are to achieve the status that Dr. Portney just described, which I also agree with everything he said, they need to be done very honestly and be comprehensive. Mr. Ose. Dr. Portney. Dr. Portney. I agree with what I said earlier. Ms. Steinzor. He agrees with himself. Mr. Ose. All right. During the subcommittee's prior hearings, witnesses testified that EPA's program offices occasionally operate as fiefdoms that impede innovation and efficient regulations, that do make national policy and that do conduct science without coordination of scientific data. The program offices also reflect the piecemeal organization of environmental statutes. H.R. 2138 locates program offices under the supervision of the Under Secretary for Policy, Planning and Innovation. The bill's goal is to have a central regulatory and policy office that works with the program offices under the direction of an Under Secretary. Professor Steinzor, do you support the centralization of policy under the Under Secretary for Policy, Planning and Innovation as proposed under H.R. 2138, and would that centralization facilitate some cross-media rulemaking? Ms. Steinzor. I don't support it, because it would separate the people who write the regulations from those who implement and enforce them. And while I think that cross-media integration would be a useful goal, it is not clear to me that separating things out by function would make any difference in that area. Mr. Ose. OK. Mr. Warren. Mr. Warren. I think my concern in this case is that this particular Under Secretary really acts as the super-Under Secretary by consolidating all of the policy and planning functions under that secretary. My perception is that Under Secretary would have much more authority within the Agency as a whole than the other two; and that, in effect, what you have done is, whereas now, you have several Assistant Secretaries reporting to the deputy administrator and then the administrator, you have replaced the deputy administrator with this Under Sectretary, and then left out science and enforcement; and that those two Under Sectretaries now operate all outside of the other policy review and planning process that is being channeled up to the secretary. And I would just have to ask the question, why aren't science and information and monitoring and enforcement somehow being given a status where they are much more integral to the policy and planning process? Mr. Ose. Dr. Hayward. Dr. Gray, any input on this? I will repeat the question if you want me to. Dr. Gray. That is OK. I do think that this sort of a structure helps ensure the credibility of the scientific decisions that are made. I do think that it is important not to repeat the mistakes of the past and have these be stovepipes. As Steve said, we don't want just three bigger, thicker stovepipes. I think we want to make sure that they are surrounded by perhaps a screen rather than steel, so that there is communication back and forth between enforcement and science and the policy offices. Mr. Ose. Dr. Portney. Dr. Portney. I do think that the administrative arrangement that you have proposed would facilitate a little bit more awareness that solving an air pollution problem can sometimes create a water pollution or a solid waste problem. So I understand the administrative advantages of the decisions that you have made in the proposed legislation. Ultimately though, I think, Chairman Ose, the real problem comes as a result of the fact that the Clean Air Act tells EPA's Office of Air and Radiation to solve air pollution problems and doesn't tell it what to do if in the process of solving an air pollution problem you create a solid waste problem that is even greater. So I think this gets---- Mr. Ose. Or a water problem. Dr. Portney. Exactly. Exactly right. So you get us part of the way there. To get all the way there, I think Congress may have to look at all of the statutes together and decide how can we give the Agency the power to avoid creating a bigger problem in the process of solving a smaller one. Mr. Ose. I think the poster child for my concern here in terms of this cross-media issue is the efforts we made in California, for instance, to have cleaner air emissions for MTBE and the consequence to water pollution from leaking tanks where the MTBE just drops right to the water table. I am trying to figure out how it is we prevent a similar situation from arising with some other well-meaning scientific advancement. What this really boils down to is, and Mr. Warren led me to this thought in the first place--what is to prevent the Under Secretary for Policy, Planning and Innovation maintaining the focus on air, water, land, in the context of their everyday deliberations anyway? Professor Steinzor, any input on that? Ms. Steinzor. Well, I think you are right, there is nothing that would prevent it, and it may just be that there is no way to accomplish this other than going through the statutes and deciding how to integrate all of them. Mr. Ose. Because those statutes---- Ms. Steinzor. The Clean Air Act, the Clean Water Act. Mr. Ose. We are not even trying to do anything with them. What did he call it, a savings clause? Ms. Steinzor. Savings clause. I guess what I am saying is, I think that is the unavoidable problem, that if you don't change them, there is an irresistible temptation to set up offices that have to accomplish rulemakings under deadlines because the Agency has been very slow. May I address MTBE? Mr. Ose. Certainly. If you have any thoughts as to what we can do about that, I would welcome them. Ms. Steinzor. Well, the President of CPR is writing a book on MTBE, so he would welcome, if you asked a question about it, to provide you with information. I think he would say, if he was sitting here--and this is Thomas McGarity, who is a professor of law at the University of Texas--that in fact, California EPA did not say do MTBE; it was the industry that chose that additive, and that the problem was that the tanks were leaking, and that is a failure in compliance with earlier regulation. I mean, it is not that we would at all disagree that it is a terrible problem, but it was not the regulator's choice to pick MTBE. That was done by the industry because it was a cheaper substance, and the leaking tanks is what got it into the water. I am painfully familiar from my days in private practice with the underground storage tank regulation. They are quite extensive and those things were supposed to have been pulled and replaced 15 years ago. Mr. Ose. Anybody else? Dr. Gray. Dr. Gray. I just wanted to ask if perhaps this notion of the Under Sectretary looking broadly across the media in the different environmental areas is, in fact, contained in the goal of the department as laid out in the legislation, which simply says that the department should be guided by the goal of improving overall environmental quality. There is an exhortation, there is an aspiration here to make this overall, to look broadly--and perhaps something a little more concrete would help there as a place to start--to make that something that can be used to measure or to check how that particular office is working. Mr. Ose. OK. Mr. Warren. If I could just add, I think it is a very serious issue, in fact, how you encourage that cross-media work and that integration. And, I think that the solution, for better or worse, is that it needs to be done from the top down; that really it has to be the responsibility of the secretary and the deputy secretary to take on those actions, which are necessary to make sure that it is done across the Agency, not only air, water and land, but science and enforcement and monitoring all together; and that they have the ability to do that, in fact, I believe through again such tools as the Government Performance Results Act, which forces them to do a strategic plan. And, if you look at the current strategic plan in terms of how it has done its goals, the goals are not simply done by traditional media, and within each goal, you will see different media working together. I am not endorsing their current strategic plan; what I am pointing to is the fact that does present a means for them, and that simply another layer of bureaucracy, as opposed to having the deputy secretary and secretary being charged with that directly, I don't think necessarily ensures the result. Mr. Ose. OK. In developing this legislation, we received a lot of input. Some of the groups have put forward the thought that the regulations promulgated by EPA should be subjected to a cost-benefit analysis. My question would be, should such a requirement be included as part of an EPA elevation bill, should EPA be required to prioritize not only its proposed activities, but also the regulations it wishes to promulgate? I think that is part and parcel of the question, in particular that Professor Steinzor and Mr. Warren hinted at, as to whether or not this provision should be included in this elevation bill. So we will deal with that accordingly. Mr. Warren, we are going to go to you first. Should EPA be required to do a cost-benefit analysis of all of its regulations? Should such a requirement be included in the EPA elevation bill? Should EPA be required to prioritize its activities and the regulations it might wish to promulgate, and should those activities be included in the elevation bill? Mr. Warren. When you say ``those activities,'' do you mean the first three activities or the prioritization exercise alone? Mr. Ose. Separate the two. There are actually two things. There is a cost-benefit analysis and then prioritization. Should the cost-benefit analysis be included in the elevation bill? Should the prioritization requirement be included in the elevation bill? Mr. Warren. OK. Well, our answer would be no and no. In respect to cost-benefit analysis, the Agency is already required under an Executive order to do a cost-benefit analysis for major rules. Therefore, it doesn't seem necessary to have an additional requirement in that respect. Cost-benefit can, if done right, provide useful information to policymakers. But it should not become the overriding statutory decisionmaking criteria. Those should remain as they are in the statutes where they exist now. In respect to the prioritizing exercise, I believe that it is desirable for the Agency to have a good process by which it sets priorities and by which Congress then can review them and pass judgment on them. But I think that you would just be opening a tremendous Pandora's box to ever get people to agree on what the right priority-setting process or priorities would be. And, I think that it would really have the effect of dooming the legislation. Mr. Ose. Professor Steinzor. Ms. Steinzor. Our answer would be no and no as well. First of all, I would like to offer, we have done comprehensive analyses in several different forms of the type of cost-benefit analysis that is being done now by the agencies under pressure from the Office of Management and Budget. And, I would be delighted to provide that. I think that much of that methodology and underlying information illustrates that the kind of cost-benefit analysis we are doing now is unsound cost- benefit analysis. Furthermore, there are statutes such as the Clean Air Act, as affirmed in a Supreme Court decision that was unanimous and authored by Justice Scalia relatively recently, that upheld the specific decision in the Clean Air Act not to allow costs to be considered in the formulating of health-based standards as an initial matter. And so, to enact something like that as part of Cabinet elevation, once again, would have the effect of repealing that statutory provision, and is only appropriate if you were engaged in a debate about whether it was desirable in that context. Mr. Ose. OK. Dr. Hayward. Dr. Hayward. I think I will pass on this one, too. Mr. Ose. Dr. Gray. Dr. Gray. I think in an ideal world the answer to your questions would be yes and yes. It would be very good to know what sorts of benefits we were getting for the resources that we are putting into complying with specific rules and regulations. That would be ideal. And, lots of folks have told us that is a useful part of the decisionmaking process. Priority setting would be great. Given the fact that the Executive order already requires benefit-cost analysis of major rules, and the fact that it is my understanding that this sort of provision has really held up previous elevation bills, it seems to me that would be something that would potentially lose a lot of the advantages that are there. I do think that a Bureau of Environmental Statistics will help us with priority setting. It is something that, inadvertent or in an indirect way, will be very valuable for priority setting. Benefit-cost analysis is being done in the Agency. I think more of it will be done. Making it an explicit requirement of this bill I am afraid will just stop the bill. Mr. Ose. Dr. Portney. Dr. Portney. I am in the same place that George Gray is. I think that it is inconceivable to me that you wouldn't want a regulatory agency to ask the question, What is the good that this regulation will do and how does that compare to the costs that it will impose on the economy? So I think that agencies should have to do benefit-cost analysis. But I also agree with Wes and several of the other panelists who pointed out that they are required to do so under a Presidential Executive order and under the Unfunded Mandates law of several years ago. I don't see any reason to risk all the advantages that I think this bill offers in terms of Cabinet department, Bureau of Environmental Statistics by putting that in there. And, I feel the same way on prioritization. Yes, it should. I don't think this bill ought to become the vehicle to require the EPA to do that. Mr. Ose. All right. My last question here has to do with the public's access to data at EPA. What changes, if any, should the Department make in its implementation of the Data Quality Act? And, should an EPA elevation bill contain a provision to ensure data quality and the public's access to that data? And, if so, what language do you recommend? I am going to start with Dr. Portney on this. Dr. Portney. I am going to have to pass on this one. I know that this Data Quality Act has become a very controversial issue. What I don't know is whether or not this government, or any government, would use it to frustrate the ability of a regulatory agency to issue regulations, or whether it is a constructive step in the direction of making sure that the public can see the data base upon which regulations are based. So I'm afraid I don't have a very good response to you there. Mr. Ose. Professor Steinzor. Ms. Steinzor. Well, Mr. Chairman, CPR has been in the forefront of questioning how we should properly interpret the Data Quality Act. No one can be against quality data. But it seems to us that the act has been stretched way out of shape by the Center for Regulatory Effectiveness, whose founder claims to have authored the act. Yesterday we became aware that a letter had been circulated here that accused us of violating the Data Quality Act when we expressed an opinion about how it was being used by the Center for Regulatory Effectiveness, which leaves me with the impression that the Data Quality Act is bigger than the first amendment in Mr. Tozzi's mind. And, I find that kind of troubling. I think we should be able to have a robust debate, as we did with all the panelists who were sitting here. It has been a very stimulating discussion. And, having fears that we have violated the Data Quality Act as interpreted by Mr. Tozzi, and therefore our views should be discounted. So I would urge you to be very, very cautious about feeding this idea that anyone who disagrees with you is violating the Data Quality Act. I would just urge you to focus on your other very worthwhile goals. Mr. Ose. Dr. Hayward. Dr. Hayward. I am pretty much where Paul is. I haven't spent a lot of time yet figuring out how the Data Quality Act was going to unfold. I was going to wait for some more time to pass and things to settle out a bit. In general, I find that EPA, at least on their Web site, breaks down a lot of their data, like their air quality data especially, superbly. It is voluminous and extremely useful. You do occasionally get into these debates about the confidentiality of raw data that goes into some of their epidemiological research. This has come up in the context of the new ozone and particulate standards. And, I am not sure what the answer is there, because that opens up a can of worms on all kinds of legitimate concerns about privacy of the people being surveyed and so forth. And, I don't know what the solution to that is. But I think it is the kind of thing that a Bureau of Environmental Statistics would have to wrestle with very seriously and figure out some kind of way to make both sides happy. Mr. Ose. Mr. Warren. Mr. Warren. Well, I believe that you can support quality data and yet not support the Data Quality Act. I believe that piece of legislation still has the potential in fact to be a source of great mischief. And by that, I mean that self- interested opponents of environmental protection may see the act as an opportunity to just constantly challenge any piece of information that the Agency has at its disposal to prevent it from being used in a decision or to prevent it from being disseminated to the public. And, I think that would be a perversion of the intention to ensure quality data. Having said that, as you know, this was adopted as an appropriations rider. The administration has carried the interpretation far beyond the literal reading of it. Our organization objected to it both in terms of the content also the process. This is the type of proposal that should have gone through the authorizing committees. We should have had a free and open public debate. Congress should have had a chance to consider all of the implications before enacting it. And now we are struggling to live with the consequences. I have to say that I think your legislation has been much more careful about avoiding the interjection of those kinds of pernicious concepts into place that might actually undermine the objective of quality data. Mr. Ose. Dr. Gray. Dr. Gray. Nothing. Mr. Ose. All right. Well, I have no further questions. I do want to offer a couple comments. I think everybody's interested in improving the quality of our environment. That is pretty basic. It is not even partisan. One thing I do want to examine in future hearings is one of you, I think Professor Steinzor or Mr. Warren, I think one of your testimonies talked about the difference in how an adult human is affected by environmental influences, as opposed to a child. Mr. Warren. Yes. Mr. Ose. And, I think I want to examine that a little bit more, because I am curious about what role, if any, this legislation might have in facilitating a far more comprehensive look at that. I do want to thank you all for coming today. This has been highly educational for me. This is not an easy issue, because we have all sorts of different influences pulling on us in different directions. We are going to try and work our way through it. Our objective remains to get an Agency that can prevent situations such as like MTBE, regardless of the source, from leaky tanks or otherwise, from recurring time after time after time. We want a cleaner environment for ourselves, our children, and our grandchildren. It is an appropriate time for us to look at this. I appreciate you all taking the time to come down and testify and help us in our efforts. This hearing is adjourned. [Whereupon, at 12:12 p.m., the subcommittee was adjourned.] [Additional information submitted for the hearing record follows:] [GRAPHIC] [TIFF OMITTED] T9352.087 [GRAPHIC] [TIFF OMITTED] T9352.088 [GRAPHIC] [TIFF OMITTED] T9352.089 [GRAPHIC] [TIFF OMITTED] T9352.090 [GRAPHIC] [TIFF OMITTED] T9352.091 [GRAPHIC] [TIFF OMITTED] T9352.092 [GRAPHIC] [TIFF OMITTED] T9352.093 [GRAPHIC] [TIFF OMITTED] T9352.094 [GRAPHIC] [TIFF OMITTED] T9352.095 [GRAPHIC] [TIFF OMITTED] T9352.096 [GRAPHIC] [TIFF OMITTED] T9352.097 [GRAPHIC] [TIFF OMITTED] T9352.098 [GRAPHIC] [TIFF OMITTED] T9352.099 [GRAPHIC] [TIFF OMITTED] T9352.100 [GRAPHIC] [TIFF OMITTED] T9352.101 [GRAPHIC] [TIFF OMITTED] T9352.102 [GRAPHIC] [TIFF OMITTED] T9352.117 [GRAPHIC] [TIFF OMITTED] T9352.118 [GRAPHIC] [TIFF OMITTED] T9352.119 [GRAPHIC] [TIFF OMITTED] T9352.230 [GRAPHIC] [TIFF OMITTED] T9352.120 ELEVATION OF THE EPA TO DEPARTMENT LEVEL STATUS: FEDERAL AND STATE VIEWS ---------- TUESDAY, SEPTEMBER 9, 2003 House of Representatives, Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 2 p.m., in room 2154, Rayburn House Office Building, Hon. Doug Ose (chairman of the subcommittee) presiding. Present: Representatives Ose, Shays, Cannon, Tierney, Kucinich, and Waxman [ex officio]. Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Danielle Hallcom, professional staff member; Melanie Tory, junior professional staff member; Anthony Grossi, legislative clerk; Yier Shi, press secretary; Phil Barnett, minority chief counsel; Alexandra Teitz and Krista Boyd, minority counsels; and Jean Gosa, minority assistant clerk. Mr. Ose. Good afternoon and welcome, everybody, to today's hearing on the Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs. Today the subcommittee will hold its fifth hearing on the topic of elevating the Environmental Protection Agency to Cabinet-level status. President Nixon created EPA in 1970 and since that time, Congress has passed several landmark environmental laws such as the Clean Water Act, Clean Air Act, Safe Drinking Water Act. Each time, EPA's jurisdiction has increased significantly but its structure remains the same as originally envisioned. As Congress considers elevating EPA to the Cabinet, we should also consider whether an organizational structure created in 1970 is best suited for a new department charged with one of the government's most important roles, protecting the health of our Nation's citizens and environment. During the last Congress, this subcommittee held three hearings addressing EPA elevation bills introduced by former Congressman Steve Horn and Congressman Sherwood Boehlert. Experts and public officials testified to the merits of elevation and current organizational problems at EPA that hinder effective environmental protection. On June 6, 2003, this subcommittee heard testimony from think tank and academic experts regarding the merits of the two EPA elevation bills before the current Congress. The first bill, H.R. 37, was introduced by our colleague, Congressman Sherwood Boehlert, and is identical to 2438, as introduced in the 107th Congress. H.R. 37 elevates EPA to department-level status but makes no reforms in its structure. I believe that EPA's structure as it currently exists lacks adequate oversight and coordination within offices to ensure that science, policy and implementation are integrated throughout EPA. I also believe that science at EPA must be improved. Based on the expert testimony from our previous hearings in the last Congress, I introduced H.R. 2138 on May 15. Currently, each EPA regional office, program office and division reports directly to the EPA's Administrator and Deputy Administrator. And the chart on the left over here is the diagram that reflects that. My bill would make important organizational and institutional changes to EPA in order to eliminate the stovepipe structure reflected in that chart. It reorganizes EPA into three Under Secretaries: first, Policy, Planning and Innovation; the second, Science and Information; and the third, Compliance, Implementation and Enforcement. The Under Secretary for Policy Planning and Innovation would have authority over all program offices, regulations and policy development. The Under Secretary for Implementation, Compliance, and Enforcement would supervise the regional offices, assist States in coordinating with program offices, and head EPA's enforcement effort and that is reflected on that second chart on the right. My bill responds to the overwhelming feedback about the lack of sound science at EPA by creating an Under Secretary for Science and Information. This section mirrors legislative language from H.R. 64, the Strengthening Science at the EPA Act, introduced by Congressman Vernon Ehlers, which passed the House in the 107th Congress. Witnesses at June's hearing supported this provision, stating that EPA's science should be consolidated into one centralized division. At a minimum, this organization will advance environmental protection by conducting peer-reviewed scientific studies of the highest caliber and provide a level of separation between regulators and scientists. Finally, at June's hearing, witnesses testified that EPA needs an independent statistical agency to report on meaningful environmental and human health performance indicators. My bill creates an independent Bureau of Environmental Statistics modeled after the successful Energy Information Administration to collect, analyze, and report on environmental and human health conditions. Under the leadership of former administrator Whitman, EPA published a draft State of the Environment Report in an effort to move toward outcome measurements. While EPA's report is a step in the right direction, only a statutorily required, peer reviewed, and independent Bureau of Environmental Statistics will move EPA toward the goal of implementing meaningful outcome measurements. It is important to note my intention that EPA elevation will not alter any of the Agency's jurisdiction nor will it address any substantive or nonsubstantive environmental laws that guide EPA's action. This is a structural discussion only. Instead, my bill will elevate the Agency to a Department and provide the Department of Environmental Protection with the structure and tools to most effectively address the environmental challenges of the 21st century. I am, of course, open to improvements to this bill to meet this goal, and I hope that Congress does not pass up this opportunity to make important reforms. I look forward to the testimony of our distinguished witnesses here today. They include Marianne Horinko, who is the Acting Administrator of the EPA; Mr. James Connaughton, chairman of the Council on Environmental Quality. Our second panel has State Representative Warren Chisum from the Texas House of Representatives; Mr. Howard Roitman, director of environmental programs from Colorado; Dr. Ron Hammerschmidt, director, Division of Environment, Kansas Department of Health and Environment; E. Donald Elliott, former EPA General Counsel and partner at the law firm of Wilkie, Farr & Gallagher; Dr. Alan Moghissi is president of the Institute for Regulatory Science; and Mr. Gary Guzy, former EPA General Counsel and partner at the law firm of Foley Hoag, LLP. [The prepared statement of Hon. Doug Ose follows:] [GRAPHIC] [TIFF OMITTED] T9352.121 [GRAPHIC] [TIFF OMITTED] T9352.122 [GRAPHIC] [TIFF OMITTED] T9352.178 [GRAPHIC] [TIFF OMITTED] T9352.179 [GRAPHIC] [TIFF OMITTED] T9352.180 [GRAPHIC] [TIFF OMITTED] T9352.181 [GRAPHIC] [TIFF OMITTED] T9352.182 [GRAPHIC] [TIFF OMITTED] T9352.183 [GRAPHIC] [TIFF OMITTED] T9352.184 [GRAPHIC] [TIFF OMITTED] T9352.185 Mr. Ose. I would like now to recognize my good friend and colleague, Mr. Tierney, for the purpose of an opening statement. Mr. Tierney. Thank you, Mr. Chairman, and just to share with the two witnesses here, the big words on that is ``small opening.'' I am glad we didn't have to sit through the big opening. Thank you, Mr. Chairman, for conducting this hearing on an issue of great importance, I think, elevating the EPA to Cabinet-level status. I strongly support making it a permanent member of the President's Cabinet, but I couch that--as I say, we should do it in a manner that does not diminish the integrity of the Agency or its purpose. EPA's purpose is to protect the environment we live in, protect our land, our water, and our air. If Congress acts to change the status of the Agency, it should be acting to elevate the importance of environmental protection as a key policy of the U.S. Government. Making EPA a Cabinet-level department is an important goal that should not be jeopardized through controversial provisions. We should not use an EPA elevation bill as a vehicle to weaken our enforcement laws while--environmental laws or their enforcement. I am concerned, however, that the chairman's bill contains some provisions that may warrant further discussion, certainly that some may see as controversial, and I mentioned that to the chairman before. In considering any change to the EPA, it is important to look at the work that EPA is doing under the current administration. Several reports have surfaced this summer regarding EPA's lack of enforcement of our clean air and water laws. And just in the last few weeks EPA has taken a number of very troubling actions. For example, EPA finalized a rule that weakens the Clean Air Act by allowing thousands of old power plants to make upgrades to their power plants without installing pollution controls. These power plants and factories will be allowed to continue polluting the air without being held responsible for the damage they are causing to our health and to our environment. It was reported last week that EPA is relaxing restrictions on selling land contaminated with PCBs, the toxin that is known to have serious health consequences in children. Additionally, the EPA Inspector General recently issued a report stating that EPA was pressured by the White House to be less than candid about New York's air quality after the attacks on the World Trade Center. That caused understandable concerns to those brave first responders and emergency workers who risked their health to participate in weeks of grueling rescue and recovery efforts at Ground Zero. It is not enough to talk about protecting our health and our environment. The actions of EPA and Congress must reflect a true commitment to the environment. Elevating the EPA should not be a vehicle for measures that would serve to weaken the laws that protect our health and environment nor that would redirect time and resources away from EPA's core missions. I'm also a little bit concerned that the administration appears to have reversed its position on the EPA elevation bill and I look forward to hearing the administration witnesses explain this shift in position. Elevation of EPA should not be a divisive issue, but rather an issue that sends a clear and strong message that the protection of our national and global environment and our health is of the utmost importance. I look forward to hearing from you and our witnesses today. Thank you, Mr. Chairman, for this hearing. Mr. Ose. I thank the gentleman. [The prepared statement of Hon. John F. Tierney follows:] [GRAPHIC] [TIFF OMITTED] T9352.123 [GRAPHIC] [TIFF OMITTED] T9352.124 [GRAPHIC] [TIFF OMITTED] T9352.125 Mr. Ose. As many of you know that have appeared before this committee, we routinely swear in our witnesses. I want to make sure I welcome them. We have two panels today. Our first panel, we are joined by representatives of the administration. We have Chairman James Connaughton from the Council on Environmental Quality. And we have the Acting Administrator for the Environmental Protection Agency, Ms. Marianne Horinko. And I welcome you both. And in line with our tradition here, if you would please rise. [Witnesses sworn.] Mr. Ose. Let the record show that the witnesses answered in the affirmative. And with that, we are pleased to welcome back to our forum Mr. James Connaughton, chairman of the Council on Environmental Quality. Mr. Connaughton, you are recognized for 5 minutes. STATEMENTS OF JAMES L. CONNAUGHTON, CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY; AND MARIANNE L. HORINKO, ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY Mr. Connaughton. Thank you, Mr. Chairman, Mr. Tierney, and other members of the subcommittee. I am pleased to be here again before the subcommittee to discuss the Bush administration's support for elevating the U.S. Environmental Protection Agency to a Cabinet department. I am very pleased to share this panel with my good friend and colleague, Acting EPA Administrator Marianne Horinko. In its short history, the U.S. Environmental Protection Agency has a long record of accomplishments. It is because of these accomplishments environmental quality in the United States has vastly improved. Improved air quality is one of our Nation's greatest environmental successes. Air pollutants have been reduced by almost one-third since 1970, even as the Nation's gross domestic product has increased 160 percent, energy consumption increased 45 percent, and population increased 38 percent. The Nation's water is cleaner. Today 192 million people are served by modern sewage treatment facilities. In the last decade alone, we provided safe drinking water to another 54 million Americans. And the Nation's land is better protected. We are more able to provide benefit and refuge to our communities and support thriving ecosystems. In 2002 and again this year, Representative Sherwood Boehlert of New York offered legislation to elevate EPA to a Cabinet department. I would like to take a minute to acknowledge and again thank Representative Boehlert for his continued leadership and ongoing support for elevating EPA to a Cabinet department. At the same time, I want to thank you, Representative Ose, Mr. Chairman, for your leadership and your desire to advance this important priority of the Bush administration and to do so in a way that meets the fundamental goal, the structural elements necessary to raise an agency up to a Cabinet department. When I testified before this committee on the subject last summer, I emphasized that the Bush administration would work closely with the committee to advance EPA Cabinet legislation in order to make official what is already a reality in the Bush administration. Let me again highlight why EPA should be elevated to a Cabinet department and why we should do it now. EPA carries out the work of a Cabinet department. EPA started out by overseeing four major environmental statutes. Today EPA implements 15 major statutes and numerous others, as well as a full complement of grant programs, voluntary initiatives, technical assistance and educational programs, as well as citizen outreach throughout the Nation. EPA also advances the mission of a Cabinet department. As we move forward in tackling our environmental goals for the 21st century, EPA is reaching out to develop new approaches that promote stewardship that spur innovation, that instill sound science in its decisions, that advance federalism through greater involvement of State and local government and, as important, ensure compliance. EPA plays a vital role in homeland security. EPA has the lead role in environmental monitoring, decontamination, and long-term site cleanup. Their expertise in offsite monitoring, contamination surveys, working with health officials working to establish safe cleanup levels, conducting protective cleanup actions and communicating technical information to its citizens is essential for Federal response to an act of terrorism that involves the release of biological, chemical, or radioactive material. EPA works with Federal partners in every phase, from the initial crisis to the final cleanup. EPA also produces initiatives of national significance that one expects of a Cabinet department. EPA designed and is advancing the President's Clear Skies Initiative that will cut the Nation's power plant emissions of sulfur dioxide, nitrogen oxide, and mercury by 70 percent. This initiative, along with EPA's new comprehensive regulations and programs to cut emissions from diesel engines, will enable hundreds of counties across the country to meet the newest and most stringent national air quality standards for ozone particulate matter that the Bush administration is implementing. EPA's influence and accomplishments now extend beyond our borders. Many nations turn to EPA for technical expertise and guidance in safeguarding the health of their own citizens and the sustainable use and enjoyment of their natural resources. For these reasons, the Bush administration strongly supports elevating EPA to a Cabinet department. And we support efforts to accomplish this objective in a straightforward manner that focuses on the organizational structure of a new Cabinet department. Acting Administrator Horinko will outline some comments and recommendations for changes to certain elements of the legislation, but I wish to emphasize that overall, we believe it is important to build an organization better equipped to meet the increasingly complex environmental challenges facing the Nation and the world and an organization that will ultimately better protect the public health and environment. We look forward to continuing dialog with the committee on how best to accomplish this mutual objective. Thank you for the opportunity to testify today and I look forward to answering any questions you may have. Mr. Ose. The Chair thanks the chairman who did it in 4 minutes and 58 seconds. Very good. [The prepared statement of Mr. Connaughton follows:] [GRAPHIC] [TIFF OMITTED] T9352.126 [GRAPHIC] [TIFF OMITTED] T9352.127 [GRAPHIC] [TIFF OMITTED] T9352.128 Mr. Ose. The Chair is pleased to recognize the Acting Administrator for the Environmental Protection Agency who has joined us I believe for the first time today. Ms. Horinko, you are welcome here. Ms. Horinko. Mr. Chairman, thank you. Good afternoon. I am very pleased to appear before the subcommittee as Acting Administrator on so important an issue to the Agency, the elevation of EPA to a Cabinet department. And I am also pleased to have the opportunity to appear here today with Jim. I plan to give a brief oral statement and submit my longer testimony for the record. Since its creation by President Richard Nixon more than 30 years ago, EPA has worked diligently to fulfill its mission to protect human health and safeguard the natural environment. To that end, EPA has changed and adapted to address the challenges associated with new environmental laws as they were passed by Congress. EPA's role is defined as well by increased public awareness and the expectation that our health and environment will be protected. That strategy has led to the need for an emphasis on the use of sound science as well as dependence on the public trust. Today EPA faces more challenges than ever before to protect human health and the environment, and as a means to help the Agency face these challenges, the time has come to establish EPA as a permanent member of the President's Cabinet. Elevating EPA to Cabinet status is not a new idea. There are more than a dozen bills introduced in Congress to elevate EPA to Cabinet status since 1988. Former President Bush was the first President to support Cabinet status for EPA, a decision then followed by President Clinton and current President George W. Bush. I want to thank Chairman Ose and other Members of Congress, including Chairman Sherwood Boehlert, for introducing legislation to elevate EPA to Cabinet status and for their continued support of the Agency. I would like to touch briefly on some of the issues addressed by H.R. 2138, the Department of Environmental Protection Act. The principal goal of the bill to elevate EPA to Cabinet status and promote greater performance and efficiency at the Agency is certainly a goal that we share. I am concerned, however, that the consensus developing for elevation of EPA could be fractured by contentious debate over the details of a statutory EPA restructuring plan. The bill's goal to improve the use and application of science at EPA is a sound one with the creation of an Under Secretary of Science and the consolidation of science activities under one office, changes that merit further discussion. We do believe, however, that the information management function should be separated from the science organizational structure, as mandated by the Clinger-Cohen Act. The creation of a Bureau of Environmental Statistics [BES] could promote the importance of accurate, thorough, environmental monitoring and reporting and could provide the Agency with better data. However, an EPA BES should be consistent with the structure and authority of other Federal statistical bureaus. Also, as to the relationship between EPA and its regions, I agree that it is important to have close coordination and communication throughout the Agency. While the regional offices need to implement national goals and policies, they also need sufficient flexibility to implement their goals to reflect particular regional and local conditions. I would urge Congress to allow the executive branch sufficient flexibility to allow the new Department to manage the enforcement and regional office functions as effectively and efficiently as possible. Finally, we support Cabinet elevation legislation that is free of provisions that would make significant policy changes to the Agency and its programs. We look forward to working with you and other Members of Congress as legislative deliberations over the elevation of EPA to Cabinet status continue in the 108th Congress. That concludes my oral statement, Mr. Chairman, and I would be pleased to answer any questions that you or the committee members may have. Mr. Ose. I thank the gentlelady and appreciate her brevity. [The prepared statement of Ms. Horinko follows:] [GRAPHIC] [TIFF OMITTED] T9352.129 [GRAPHIC] [TIFF OMITTED] T9352.130 [GRAPHIC] [TIFF OMITTED] T9352.131 [GRAPHIC] [TIFF OMITTED] T9352.132 [GRAPHIC] [TIFF OMITTED] T9352.133 [GRAPHIC] [TIFF OMITTED] T9352.134 [GRAPHIC] [TIFF OMITTED] T9352.135 [GRAPHIC] [TIFF OMITTED] T9352.136 Mr. Ose. I want to make sure I understand something before we start. It is my understanding that President George Herbert Walker Bush, President Clinton, and President George W. Bush all consider from a practical standpoint or operating standpoint that EPA is part of their Cabinet already; is that accurate? Ms. Horinko. That is indeed accurate. Mr. Ose. So you are attending the Cabinet meetings as Acting Administrator anyway. Ms. Horinko. And in fact have the privilege of sitting at the table with the other Cabinet members. Mr. Ose. At the table. In reality you are there now. Ms. Horinko. [Nods affirmatively.] Mr. Ose. The second question I have--and I appreciate both of your responses--I have been very careful in drafting this legislation to keep any change from a policy standpoint out. This is strictly a management structure kind of thing. Have I succeeded in that, Mr. Connaughton? Mr. Connaughton. You have succeeded on focusing on structural elements. We have comments and questions related to those elements. Mr. Ose. But on the policy side. Mr. Connaughton. We were pleased to see in your bill this year, Mr. Chairman, a strong effort to stay focused on the structure elements, which, as I indicated in my oral comments, when you elevate from an agency to a department, you do bring in the opportunity to make sure that you got some of the key pieces structurally in place so it can function as a department on par with the other agencies. And I would note that most other agencies do have a policy apparatus. The Department of Transportation is one example I would give, Department of the Interior is another, and your legislation has reflected that. And different agencies, depending on their mission, do put a strong prominence on the science function. So those are the elements that we think have particularly well captured equivalency with other Cabinet departments. Mr. Ose. But you don't see anything in terms of any amendments to the Clean Water Act, Clean Air Act, within the legislation as drafted? Ms. Horinko, do you agree with that? Ms. Horinko. I agree. Mr. Ose. I want to make sure we get that on the record. Section 7 of my bill outlines the duties of the Department's Presidentially appointed and Senate-confirmed officers. One of the more criticized functions of EPA is the quality of its science. Both sides of the political spectrum claim, and I have heard all the claims, that EPA does not use the best science in support of its regulations. There is a section of my bill, section 7(c), that establishes an Under Secretary for Science and Information for the purpose of co-locating scientific activities at EPA and to remove the regulatory science efforts from the program offices. Now, Mr. Connaughton, in your testimony you state that the administration supports efforts to improve the organizational structure of a new Cabinet department. Is it the administration's position that Congress should institute organizational reforms concurrent with Cabinet elevation? Mr. Connaughton. Structural reforms are necessary to elevate something to a Cabinet. So the answer to that is yes. Mr. Ose. Because that is the template that is used in every other Cabinet department? Mr. Connaughton. Correct. Mr. Ose. Now in making those organizational changes to, in effect, evolve an agency to a department, would the administration generally support centralizing and professionalizing the science under EPA under a strong leader such as an Under Secretary for Science and Information? Mr. Connaughton. Yes, we would. Mr. Ose. Ms. Horinko, I do want to thank you for suggesting in your written testimony that the Department include a CIO. I missed that, so I appreciate your suggestion. Other than that modification, do you support an Under Secretary for Science within the new Department? Ms. Horinko. Yes, I do. Mr. Ose. Do you think that centralizing the science at EPA can foster cross-media scientific analysis? Ms. Horinko. Yes. I think it will improve our coordination. Mr. Ose. Section 7(c) of my bill removes scientific activities from the program offices in order to minimize the disparate decisions as it relates to scientific studies and conclusions. Do you agree that scientific studies and conclusions should be independent from policy? Ms. Horinko. Yes, I do. Mr. Ose. I want to dwell a little bit on the Bureau of Environmental Statistics because I happen to think this is probably one of the more important factors of the bill. Section 8 of my bill establishes such a bureau, which is similar to the highly respected Bureau of Labor Statistics, the BLS, in the Labor Department, and the Energy Information Administration, EIA in the Energy Department. And I will say that having just weathered and continuing to, if you will, enjoy California energy markets, I have a great familiarity with the EIA. Mr. Connaughton, many other Federal agencies and departments have valuable independent statistical agencies. Does the administration generally support the concept of the Bureau of Environmental Statistics within a Department of Environmental Protection? Mr. Connaughton. We do generally. We have some specific comments that relate to that in terms of how that is executed to bring it in line with some of the other statistical agencies. And then I would want to underscore the fact that numerous other departments, in addition to the several that have statistical agencies, also have statistical functions within them that we rely on across the government for environmental information. So there are elements of your bill that ensure a close coordination among those different fact- gathering bodies that is of particular interest to talk through further. My office and the White House relies on the statistical work of all of those agencies as we collectively use that information in our understanding of policy decisions. So the short answer is yes, and then we have some specific issues that we are happy to work with you on. My time has expired. Mr. Tierney. Mr. Tierney. Thank you. I am happy to proceed if you are flowing and want to go on that. The chairman's bill, as I look at it, would significantly reorganize the proposed department with the purported aim of increasing communication across the EPA. And obviously, it would seem to me it would take time and resources currently needed for the EPA's core mission on that. Do you see any problems with the organizational changes proposed in the chairman's bill? And will the addition of three new Under Sectretaries either solve those problems of information sharing or the stovepiping that has existed and how? Ms. Horinko. I think that on the whole, that having the new Under Sectretaries will improve coordination and help us to have more program integration. We have some minor suggestions in terms of making the bill a little bit less prescriptive, giving us a little more flexibility to manage inside those three boxes of the Under Secretaries. But on the whole, I think the creation of these Under Secretaries will improve cross- program coordination, break down the stovepipes and give us a little more program integration, all things that we do need at EPA. Mr. Tierney. I would be interested in you sharing with the rest of the committee what your recommendations are, because as I see the bill now, I have some of those questions myself. I think the intention is there, but I would like to see how that works out. Do you think in its reorganization, if you don't provide additional resources at the same time, is it not going to make it harder for the EPA to issue or implement enforced environmental protections? Ms. Horinko. Simply reorganizing the Agency into a department I don't believe would be a huge resource issue. We may want to talk to you about creation of the new Bureau of Environmental Statistics and it is simply too early to say whether that will require some additional resources. We will need to proceed very slowly in a step-wise fashion. You don't build something like that overnight. Perhaps benchmark what other agencies have done as they have created their statistical bureaus and also work very closely with our appropriators to make sure that we do this in a measured way. Mr. Connaughton. I would also note that the bill actually, thankfully from our perspective, does not designate the Assistant Secretaryships and the other components. It is our expectation that all of that stays in place at EPA. We have the Office of Water, Office of Air. As we move forward, the legislation provides flexibility in the future, but I think the resource issue is important. We think that the structural changes proposed are modest, even as we are able to keep intact the essential programs and the essential operating entities that you have referred to. Mr. Tierney. I recall that when Governor Whitman was testifying here, she indicated that a budget increase would actually help the EPA address the problem of viewing things across the various media such as air pollution and water quality. So I am not real clear how this bill would address this problem and I'm not clear why it can't be addressed outside of a reorganization on that issue. Mr. Connaughton. That is where the policy function becomes so important. Typically the policy offices in Cabinet departments are not that large. They do require some infusion of resources, but they are not that large. But by having a high-level political appointee overseeing the work of the different departments, it allows for that cross-media functionality to occur and it allows for somebody who is not the Administrator, who has to function, you know, across the entire scope and operation of the Agency, allows someone one or two steps down to be able to fulfill that function on a day-to- day basis. Not only does it bring efficiency but it helps us identify the opportunities for, you know, the air program, for example, to provide real deliverables when it comes to protection of water. Mr. Tierney. Outside of this legislation, why can't we address the issue of working across various media, what we would do if we didn't have this legislation to improve that situation? Ms. Horinko. There are things we are doing now to try and improve cross-media coordination. And there are a large number of administrative things. We have cross-program task forces. We have the Innovations Action Council. We try to put together teams to break down the barriers, to break down the stovepipes. Those are cultural things that we can do and are doing at EPA. But perhaps it is time to start exploring some structural things as well. And the opportunity that is provided by Cabinet elevation provides an opportunity to have a full and fair public exchange such as this on what type of changes should be considered at the Agency. Mr. Connaughton. The change proposed is very modest and yet would be meaningful. Mr. Tierney. I will stop here. Mr. Ose. I believe the gentleman from Ohio was in first. Gentleman from Ohio for 5 minutes. Mr. Kucinich. I thank the Chair. To Ms. Horinko, I have long supported a Cabinet-level status for the EPA and I hope that Congress can work to pass a clean bill to accomplish this goal. I am very concerned that the EPA is failing, however, in its current responsibilities. Congress expects agencies to follow the law that it passes, not change it. Yet with the signing of the recent new source review rule, EPA gutted a critical portion of the Clean Air Act in a definition of modification to stationary sources. The new rule provides an enormous exception for replacement activities costing less than 20 percent of the process unit placement. This new trigger, 20 percent is very high, seemingly arbitrary, and contrary to the current modification definition in the statute which states any physical change. So what I would like you to tell us is where in the statute is a 20 percent exemption to this broad definition. Ms. Horinko. Congressman, I am pleased to take on the NSR issue because it has been so miscast in public reports, in some public reports as a rule that would gut the Clean Air Act, and it does nothing of the sort. In fact, that rule doesn't affect any of the substantive safeguards of the Clean Air Act. And those safeguards have been incredibly successful and will continue to be incredibly successful in ratcheting down emissions of criteria pollutants. The acid rain program created by the 1990 amendments to the Clean Air Act, the No<INF><greek-e></INF> SIP Call that we are currently implementing, the ozone and PM regulations that Chairman Connaughton alluded to, those regulations will continue to inexorably ratchet down emissions on regulated facilities of all types. In fact lost in the noise of the NSR rule was the fact that we signed some 14 other maximum achievable control technology rules, further imposing emissions controls on these facilities. Mr. Kucinich. I think it is interesting the EPA has never been challenged for routine maintenance exemption and that is because the exemption was read narrowly by the EPA and the courts affirmed a narrow exemption. For example, on August 7, the Justice Department won a landmark victory against the Ohio Edison Co. And as a result of this single decision, thousands of tons of emissions will be reduced, which improves the health and environment of the people I represent in Ohio. However, under the NSR rule signed by you, all but one of the illegal actions committed by Ohio Edison would be permitted. Now, when the court decided this landmark case, it said if a rule exempted the pollution increasing projects proven in the case, which this new rule does, the rule would ``vitiate the very language,'' and they were talking about the Clean Air Act itself. The court confirms that a broad exemption would gut the statute. So I just wanted to point that out in response to what you said. And on a related issue I find it even more problematic that a comprehensive analysis was lacking in the NSR rules. And I wonder how many plants were analyzed in Ohio to determine if they would pollute more, and by how much. Ms. Horinko. Congressman, I would recommend your reading our regulatory impact analysis that we prepared in the final NSR rule. I read it myself. It is a lucid explanation of the justification for the rule, the impacts. It is a thorough analysis of the rule. Mr. Kucinich. Were zero plants analyzed or did you run a sophisticated modeling program? Ms. Horinko. I will followup with you as to the number of specific plants that were analyzed, where, and in what State and what location. But I'm confident, based on the best available information we've got, that any impact of this rule from an environmental standpoint will be very modest and it will be countervailed by the inexorable ratcheting down of emissions required by the substantive safeguards of the Clean Air Act. It will increase reliability and predictability and efficiency for operators so that they can plan around our Nation's energy supply. On balance, I think this is the right thing to do. Mr. Kucinich. I'm just going to suggest to you that if you didn't analyze any plants--let's assume that for the minute that Congress does expect agencies to act on sound science--and not only did the new source review changes originate with the industries regulated by the new source review, but a recent GAO report concluded that industry anecdotes which the EPA relied upon when creating the December rule that--you know, the EPA assumed what the industry said, that production would not increase, and the GAO found that this was not an accurate assumption because future levels of production could increase and emissions could increase and health risks could increase. I want to suggest to you that Congress expects agencies to act on the basis of science. But once again in this August rule, the EPA is relying on industry anecdotes for the second NSR rule. And I would like a specific answer, if you could communicate that to us in writing, to me or this committee, so I can tell my constituents in Ohio what's going to happen to air quality as a result of this rule. I thank the Chair. Would the gentlelady--she indicated a willingness to communicate this information. Ms. Horinko. Yes, I do. Mr. Ose. I understood her to say that she would communicate with you post-hearing in writing; is that accurate? Ms. Horinko. Yes, it is. Mr. Ose. Gentleman from Utah. Mr. Cannon. Thank you, Mr. Chairman. And I thank you for holding this hearing. You know that I am deeply concerned about this issue. I apologize to you and the panel for being late today and also the fact that I'm going to have to leave, and I hope I can get back for the next panel. Ms. Horinko I want you to--in the last two flights I have had out to Utah, I have been sitting next to my Governor, Mike Leavitt, who is prepping like crazy to relieve you of the spotlight. I'm not sure whether you like that or not, but he is working on it. Ms. Horinko. Please do cheer him on, Congressman. Mr. Cannon. This is a hard thing. I don't want to sound like that I am not a great supporter of my Governor, but by cheering him on, that would suggest that I support the departure. I think he will do a good job on the interior but I don't wish this job on any human being. So I told him that very directly. So he has support and a lot of help going in. But I'm deeply concerned about how we deal with science, especially at EPA. We had some awful problems historically, and I have read a little position paper on where you all are. I get the sense that you support the idea of an Under Secretary for Science. Could you address that, Mr. Connaughton? I am not sure if I am clear on your position. Mr. Connaughton. We do support that position and we actually look forward, as we analyze the legislation and look forward to that specific issue, the opportunity to bring under one Under Secretary the variety of science programs that exist in EPA at different locations. And so to bring some order to the overall scientific enterprise at the Agency would be helpful. To have someone at the level of Under Secretary co- equal with other Under Secretaries also then will enhance the opportunity of the science function of the EPA to intersect with the policy operation of EPA and the administrative side of EPA in a much more coherent way, all without changing the underlying statutory mission, the underlying directives from Congress as to the various programs, but again create that opportunity for a much, much better coordination function with the right level of political appointee that we can attract into that kind of a position. Mr. Cannon. Thank you. Ms. Horinko. Ms. Horinko. I completely agree with what Jim said, and I want to note that while we certainly support any legislative efforts to strengthen science, including establishment of an Under Sectretary, I do want to acknowledge, however, that science can't be completely walled off from the program offices. We want to make sure there is good coordination and integration so that the best available science that is elucidated by this part of the Agency is then reflected in proper regulation, implementation, and decisions in the field. So we look forward to working this out with the subcommittee in our future discussions because the devil really is in the details here, but I think the concept is a good one. Mr. Cannon. If we did not do legislation to elevate EPA to Cabinet level, would it make sense still to reorganize it and create the new Under Secretary for Science and the related aspects of this legislation? Ms. Horinko. We could certainly think about it. It would be hard as a practical matter. As an administrative agency we technically don't have an Under Sectretary. Mr. Cannon. It would have to be a different title. Ms. Horinko. It would have to be some new title or structure or function, and I would have to sit down and talk to you about how we could do that. And I am not sure how we could do that other than as we currently have, which is an Assistant Administrator who reports directly to the Administrator, who Governor Whitman elevated by naming our Assistant Administrator for Research and Development as her Chief Science Advisor last year. We have taken some good administrative steps as well as some substantive steps to strengthen peer review, risk assessment, modeling policy and grants policy. I think we are doing many things administratively. But Cabinet elevation would give us more opportunity to think about restructuring. Mr. Cannon. Do you need legislation to add or change the titles or duties of an Assistant Administrator? Mr. Connaughton. The current statutory authority provides flexibility as to what the Assistant Administrators are called in their overall function, although those are pretty well established after time. What it does not allow for is some of the hierarchical structures that a Cabinet department would otherwise command in terms of how those offices relate to each other. And that is where the good work that EPA has done with advancing their science program with creating the post of a science advisor has helped. The science advisor is still an Assistant Secretary or the Assistant Administrator level. Mr. Cannon. Just before my time expires, let me point out that we have established a Science Caucus in Congress. We intend to work with you or oversee or relate closely with what you do there. In addition there, I sit on the Judiciary Committee where I am the chairman of the Commercial and Administrative Law Subcommittee, a very important component of our jurisdiction. And my focus is going to be on how we use science, and I expect to work with you on these issues in the future. Mr. Ose. Thank the gentleman. Mr. Connaughton, my earlier questions, you were generally supportive of the concept of a Bureau of Environmental Statistics. You had some input. Is your input embedded in your testimony? Mr. Connaughton. It is embedded in Ms. Horinko's testimony. Mr. Ose. So we will be able to pick that up. Ms. Horinko, as proposed in section 8 of my bill, do you support the creation of a Bureau of Environmental Statistics? Ms. Horinko. We do indeed support the creation of such a bureau with some clarifications--modifications to enhance the ability to share information among sister agencies, to help make that bureau essentially function the way bureaus such as the EIA and BLS function, to enhance confidentiality of information that is collected, and better define its mission consistent with these other agencies, and also just simply to streamline operations and reduce duplication. So some minor modifications, but we do indeed support the concept as outlined in your bill. Mr. Ose. So the privacy or the respect for the privacy of the information is an issue that you are trying to address with your testimony citing CIPSEA. Ms. Horinko. Yes. Mr. Ose. In talking about protecting individually and corporately identifiable data within CIPSEA, which provisions are you specifically referring to as being appropriate to embed in my legislation? Ms. Horinko. There are several specific things in CIPSEA that would enhance your legislation. First, we all think the definitions of statistical agencies and statistical activities would really help to clarify the mission of the Bureau of Environmental Statistics and bring it on a level par with the other statistical agencies in the Federal Government. Mr. Ose. Do these other statistical agencies in the Federal Government, do they have such definitions in their authorizing language? Ms. Horinko. I believe that they do. Mr. Ose. There is a template we can go to. Ms. Horinko. Absolutely. And that is what we are attempting to do is move to that template. Mr. Ose. Why is this additional confidentiality template language important? Ms. Horinko. It's important for two reasons. First of all, without the CIPSEA protections, we can't share information from other Federal agencies because they are prohibited from doing so unless we are also covered by CIPSEA. So this would really have to improve coordination, cooperation, prevent duplication of effort. The second thing is we are very concerned about protecting information that is submitted by survey recipients, businesses, individuals, information that should be kept private. The new BES should be able to aggregate data, roll it up and tell us what it means to the country. But we want to protect donor information and CIPSEA allows us to protect donor information. Mr. Ose. And apparently there is a reciprocity requirement in terms of other agencies or departments giving you information. If you don't have that same reciprocity, they are prohibited from giving it you. Is that statute or regulation? Ms. Horinko. I believe it is the CIPSEA law itself. Mr. Ose. You simply can't do it. You can, but you wouldn't look good in stripes. Ms. Horinko. That's right. Mr. Ose. When EPA published its draft State of the Environment report this past June, sections of the report were revised after the administration reviewed its content. Now the highly respected EIA, the Energy Information Administration, does not require the EIA's administrator to even seek approval from the Department of Energy or the White House in creating or publishing EIA's reports. And that is one of its great values to Congress. I suppose this question is for both of you, Mr. Connaughton and Ms. Horinko, do you support the same political independence for the BES? Mr. Connaughton. We do support the political independence of BES and they need to put that in context because it is the statistical function of the agency that is important. If the bureau's mission is so broadly defined as to get into policy analysis and other similar types of analytical exercises that crosses the line back into the policy and program domain, that is subject to statutory oversight and other kinds of internal policymaking oversight and that would create an issue. We don't encounter that with the Bureau of Labor Statistics nor do we encounter it with the Energy Information Administration, because they have narrowly defined statistical development missions. Mr. Ose. As crafted, with the caveat having to do with CIPSEA, would the BES as envisioned in this legislation enjoy that same sort of defined rule? Ms. Horinko. Yes, I think so, Mr. Chairman. Because adopting those definitions of statistical agencies and statistical activities defines an appropriate role for the BES on the same par as the BLS and EIA. So having that appropriate role well defined, as it is in CIPSEA, then provides the assurances that function, the statistical function, should enjoy that independence. Mr. Ose. Gentleman from Massachusetts. Mr. Tierney. Thank you. You touched on an area that has me very, very concerned. Arguably this is one of the most secretive administrations that we've ever experienced and their track record is just horrendous: the fact the GAO had to sue just to try to get information about their energy policy and how it was comprised and then was strong-armed into dismissing the suit; the fact the Congress's request for information has been largely ignored; the public and the public's request has been ignored. Getting into this area concerns me to no end that this is going to be a method from keeping information from the public that we are entitled to. In your testimony you address the need to keep certain information collected by the Bureau of Environmental Statistics confidential. Currently the EPA carries out entire programs such as the toxic release inventory that rely on providing public information in lieu of establishing control requirements. The Clean Air Act specifically prohibits the EPA and provides that it cannot withhold from the public any information that constitutes emissions data regardless of whether the entity considers that information to be confidential business information. So I am asking you, having looked at this language in the bill, does the administration believe that language would in fact limit the release of any information that the EPA otherwise has the authority to collect? Ms. Horinko. I don't believe this bill in any way limits the release of any information that we would otherwise collect. Our current policy now is to release information unless it is protected by FOIA or by specific confidentiality provisions such as confidential business information. This bill does not affect that in any way. Mr. Tierney. My concern is that if EPA should decide to consolidate certain information collected in the bureau, whether or not this language seems to prohibit it from releasing that information, even if it's data that was on plant emission of air pollution. Ms. Horinko. We certainly don't read the bill that way. Mr. Tierney. Would you take a look at section 8(h)(2) in the bill? Later write me a little note, in the context of what I just said to you; and when you read that, whether or not you might have the same concerns or the public might have the same concerns where you try to consolidate information from other sources by putting it in that context, you might then be able to avoid responsibility under other acts of actually disclosing information particularly with respect to air emissions. Ms. Horinko. We will take a careful look at that. That is certainly not our intent. Mr. Tierney. Would the administration support an addition of explicit language protecting the release of all the data that EPA would otherwise have the authority to collect and release? Ms. Horinko. We would certainly support something along the lines of this bill that does not affect any of the other information protections that are afforded to EPA or obligations. Mr. Tierney. Will you work with us for language on that? Ms. Horinko. I think our intent is the same. Mr. Tierney. Mr. Connaughton, when you testified before the subcommittee last Congress, you indicated that any mission statement of the EPA should be flexible enough to allow for the evolution of the Department's work and focus. The inclusion of a mission statement to protect the public from what this bill says is unreasonable environmental risk seems to me very narrow and seems to overemphasize setting priorities on risk assessment rather than on a broader view of the Nation's environmental health. Let me give you some examples of that. I mean right now, the purpose of the Clean Air Act is to protect and enhance the quality of the Nation's air resources. The mission of the Clean Water Act says the national goal that the discharge of pollutants into the navigable waters would be eliminated by 1985. But I want to note that neither of them seems to qualify the degree to which the Agency is to move on that, and this idea of unreasonable risk seems to me to be vague, ambiguous, and focuses it more on trying to determine what the cost/ benefit is. And I want to know if you share that ambiguity, because I don't want this to become an idea of caused basis stuff as opposed to going out and aggressively taking affirmative action to clean up our environment, which those other acts seem to indicate that the EPA should do. Your general comments on that and how you feel about this law and whether or not it does limit that. Mr. Connaughton. First and foremost, EPA went through a mission exercise this past couple of years and simplified their mission statement to the straightforward one of the mission being to protect the human health and environment. Reasonable risk is inherent in any risk management activity whether it is at EPA or the FDA or even in the land management side of things at the Department of Interior. Anybody engaged in the risk assessment/risk management exercise, there is the question of reasonableness which has to do with scientific knowledge and information, has to do with cost and benefits, has to do with technological feasibility. So in terms of the use of the word ``unreasonable'' risk or to assure that risks are reasonable, that doesn't run counter to how professionals in this area deal with those issues. So I don't see anything insidious in the expression. But to the extent that the committees will work out language surrounding a very high-level mission statement, we are happy to work with you on that. But I don't see anything insidious in the expression per se. Mr. Tierney. May not be the expression. I have faith in my colleague here, but the administration in their environmental record I don't, and how they might use as something we see as something that is not that serious and move it in the other direction. That I have a great feel, given their track record, and I probably would be a lot happier if that language was just eliminated and we stick with the very simple goal that you said the Department has gone through and worked on, rather than to give them license to move down that path, because unfortunately with this group, words are for and often used as an escape hatch. Mr. Connaughton. I would strongly disagree with you given the track record. This EPA under the Bush administration has done and will do more to protect our air, bring air pollution down, do more to protect water and bring water pollution down and to pursue some very innovative programs, including the brownfields program which is of such great benefit to States like Massachusetts, to really clean up the land. So I would flat out disagree with you on that point. Mr. Tierney. But I have to part with the question and say when are they going to start? And what they have done so far in terms of their policy pronouncements are exactly opposite of what you are saying. And that's why I think they are generally perceived and understood to be probably the worst administration on the environmental protection we have seen. Mr. Ose. Gentleman from Utah. Mr. Cannon. Nothing. Mr. Ose. Gentleman from California. Mr. Waxman. Thank you, Mr. Chairman. The Bush administration is asking Congress to elevate EPA to a Cabinet- level department, yet the administration's main environmental initiative has been a comprehensive campaign to weaken EPA and environmental protection. This administration has undermined EPA's authority and its credibility. For example, just a few weeks ago, you signed a rule gutting the new source review requirements. This rule allows increased emissions from power plants, one of the largest sources of air pollution in the United States today. You claimed, however, that this rule, ``will not affect emissions.'' That was reported by the Washington Post. Do you stand by that statement? Ms. Horinko. I do stand by that statement, Congressman. This rule is not a rule that is about the environment. This rule is about planning and process. The environmental safeguards of the Clean Air Act, the Acid Rain Program, all of our maximum standards, those safeguards remain in place and ratchet down from these facilities. Mr. Waxman. I don't think your argument is credible. The new source review requirements only apply if a source increases emissions, yet polluters need this exemption. That's because they are increasing their emissions. Second, the acid rain provisions only cap one pollutant, sulfur dioxide, and they only apply to power plants. They don't limit other pollutants from power plants such as nitrogen oxides and mercury, and they don't limit pollution from the other 16,000 facilities covered by your rule. Third, we would get dramatic emissions reductions if EPA enforced the new source review provisions rather than gutting them. Just last April EPA trumpeted a $1.2 billion NSR settlement as the, ``largest Clean Air Act settlement with a utility in the history of EPA,'' eliminating over 200,000 tons of air pollution per year. Yet the legal rationale for the NSR rule imperils the ongoing NSR enforcement cases, and you have said you are unlikely to bring any new enforcement actions based on the old rule. If the new rule caused EPA to lose even one ongoing enforcement case, it would affect emissions. But if the rule stands, it may largely derail the 5-year NSR enforcement effort. This would dramatically increase emissions compared to what we could have otherwise achieved. Ms. Horinko, wouldn't it be more straightforward for the administration to admit that this rule allows increased emissions compared to enforcing existing law? Why not have an honest debate about whether we should weaken environmental protections to save industry money? Ms. Horinko. Congressman, a few things in response to that. First of all, years worth of litigation resulted from the initiation of the New Source Review enforcement program, and after 8 some years of litigation, the first decision that we got in the Ohio Edison case in August hasn't even reached the damages phase. So we've yet to see any environmental improvement after years of litigation in that case. And even that case where prior legal theory was upheld, the judge said case-by-case enforcement policy is not the way to establish the law of the land. There should be some type of regulation that's uniform. Second, we did conduct a regulatory impact analysis that's contained in the final rule. I recommend it for your reading. It is a very lucid and very compelling rationale for this rule, and we will be pleased to sit down with you to discuss any of the specifics. We will continue to monitor the implementation of this rule to make sure that it is done in a way that is environmentally neutral or even improves environmental protection. Mr. Waxman. Well, I hear what you're saying, but I don't think it's very persuasive, and I don't think you seem to have persuaded many others. I have here, Mr. Chairman, about 60 editorials from around the country all decrying this new rule, and I'll read just a few of the headlines. Miami Herald says, ``EPA in retreat. U.S. going soft on the Clean Air Act.'' Pittsburg Post Gazette says, ``Dirty air, dirty politics.'' Tennesseean says, ``The skies are murkier with `clean air' rule.'' Omaha World Herald says, ``Ignoring the evidence: Another black eye for Bush's record on the environment.'' Denver Post says, ``Politics of pollution.'' The Buffalo News says, ``Air pollution: The day the President sold the skies.'' I've been discussing the NSR rule, but it's only the most recent and most egregious example of this administration's ongoing attack on environmental protection. This record calls into question the administration's purpose in supporting this EPA elevation bill. Thank you, Mr. Chairman. Mr. Ose. I thank the gentleman. Mr. Connaughton, the Under Secretary for Policy Planning and Innovation Section, which is Section 7(d), outlines the duties for that person; and during this subcommittee's prior hearings witnesses testified that EPA's program offices frequently do not coordinate their efforts. They conduct their own regulatory science and in some cases impede environmental innovation. In other cases, program offices have occasionally obstructed the efforts of other offices within the Agency. In general, Mr. Connaughton, does the administration agree with the concept of a centralized policy division such as the Under Secretary for Policy, Planning and Innovation? Mr. Connaughton. The short answer is yes. The more detailed answer that fills that out is we have had very good experience. The two examples I gave, the Department of Interior, Department of Transportation--with an Under Secretary level type function for policy that enables that horizontal coordination that's so important as we get into the next century of multimedia and more complex solutions that are needed. So a lot of the think tank work and other work that's contributed to where we are today toward the recommendation for such a function I think is underscored by the success of the policy operations of these other departments. Taking that horizontal view, it doesn't diminish the programmatic power and authority of the individual Assistant Administrators or just the secretaries if elevation occurs. It won't diminish that but will enable somebody who's responsible for looking for opportunities in one program office and how they can link together with opportunities in another program office, and that's where the next generation of solutions resides. Mr. Ose. And that would be the case regardless of who's in the White House or otherwise? Mr. Connaughton. That's correct. Mr. Ose. Now, Ms. Horinko, does the EPA support an Under Secretary for Policy, Planning and Innovation as proposed in this section of the bill? Ms. Horinko. Yes, we do, and I couldn't have put it more eloquently than Mr. Connaughton. Mr. Ose. Thank you both for your testimony on that. We have heard concerns from many groups regarding the lack of coordination between the office of enforcement and the program offices. Recently some States--and we do have some folks who will testify in the second panel--have expressed frustration over the issue of blending at publicly owned wastewater treatment plans. Without getting into the details and merits of the issue, regardless of which side you're on, the bottom line seems to be that the EPA's enforcement office has been enforcing one set of standards while EPA's Office of Water has been issuing another. The result is that States and owners of wastewater treatment plants are receiving inconsistent treatment from different EPA offices. One of the objectives of this legislation is to coordinate the policy. Does this legislation assure us or is this legislation a step in the right direction toward making the reality in the field that enforcement and policy offices work more closely together? Ms. Horinko. This legislation is certainly a step in the right direction. I'm not sure that any Cabinet department or agency could assure that all 20,000 employees are all on the same page at any one time, but I think it will help with that important coordination function so that the enforcement in the program offices is more closely aligned. Mr. Ose. I have to come back to this blending issue which is very important in California. It's a huge opportunity for some of my attorney friends in California. Are you saying that we can at least take a positive step toward addressing, if you will, what might be conflicting input that a local agency receives by coordinating this policy issue? That's my objective, and I want to see if you read it the same way. Ms. Horinko. I do read it the same way. Let me add, though, on blending that we are moving now even administratively to try and solve this very important issue. We've heard from municipal operators of POTWs. We've heard from States. We've heard from regulatory agencies at the local level, environmental advocacy groups. A number of folks have requested clarification on this issue. So we are actually planning to publish for comment a draft policy on this issue that will ensure that---- Mr. Ose. The policy thing is not what I'm after. I'm after the consistent application of whatever the policy is. I'm trying to keep this discussion to structure. Ms. Horinko. Well, as a practical matter, this structure will help facilitate that kind of coordination between the program and the enforcement offices. Mr. Ose. All right. Thank you. The gentleman from Utah. Mr. Cannon. Let me just followup on this discussion a little bit. What I understand you're saying is that, under Section 7(e) of the bill, the Under Secretary for Implementation, Compliance and Enforcement, that position will have a tendency to make consistent the rulings in the various States, the various regions so that both the States and the people being regulated have the ability to be more--they will be able to predict better what they need to do to comply. Ms. Horinko. Yes. We do have some slight modifications to make to give us a little more flexibility in terms of how we manage our programs, but in general, integrating the program office operations with the enforcement office will, I think, improve our ability to have consistent application and interpretation of the laws. Mr. Connaughton. And I would note the most important feature is actually the prevention of those kinds of inconsistencies. Because you end up with, again, a few people at the horizontal view who will be better able to anticipate some of these inconsistencies that invariably will happen, whether it's region to region or between the enforcement office and the program office as they are evolving their programs. So it is that group at the top that will--again, I think will have a better preventive function to head some of those uncertainties off. Mr. Cannon. Thank you very much. Mr. Chairman, before I yield back, I note that the gentleman from California has departed. Unfortunately, I had wanted to know if the New York Times had opined on this issue of the roll of EPA under this administration, not to suggest that the media has any bias at all or that the media has any consistency or integrity on this issue. With that, I yield back the balance of my time. Mr. Ose. The Chair thanks the gentleman. Mr. Connaughton and Ms. Horinko, we want to thank you for appearing before the subcommittee today and testifying on this particular legislation. We appreciate you taking the time. We may have some questions so we may submit them to you. We'd ask for a timely response. Ms. Horinko. Will do. Mr. Ose. The record stays open for 10 days for submittal questions and the like. We thank you both. Have a great day. Ms. Horinko. Thank you very much. Mr. Ose. If we could get the second panel to gather at the witness table, we'll take a very short recess here while they do that. [Recess.] Mr. Ose. OK. We're going to reconvene here. I want to thank the witnesses for gathering at the table quickly and expeditiously. I'm told three of you have planes to catch here. OK, four. What time is your plane? Mr. Chisum. 5:45. Mr. Roitman. 6 o'clock. Mr. Hammerschmidt. 6:30. Mr. Guzy. 6:30 also. Mr. Ose. Oh, Lord. Mr. Elliott, Dr. Guzy, I appreciate you offering to stay. We're going to ask you for a little bit of your indulgence here. We're going to go across left to right to Dr. Hammerschmidt, and then we're going to jump to Mr. Guzy, and we'll come back to Mr. Elliott and Dr. Moghissi. Now, I want to welcome to our witness table our second panel. The first is State Representative Warren Chisum with the Texas House of Representatives. Welcome. We have Howard Roitman, director of environmental programs for the Colorado Department of Public Health and Environment. Welcome. We have Dr. Ron Hammerschmidt, who is the director, Division of Environment for the Kansas Department of Health and Environment. Welcome, Doctor. We have E. Donald Elliott, former EPA General Counsel and current partner at Willkie, Farr & Gallagher LLP. Welcome. We have with us Dr. A. Alan Moghissi, who is president of the Institute for Regulatory Science. Doctor, welcome. And we also are joined by Gary Guzy, who is the former EPA General Counsel and current partner at Foley Hoag LLP. Welcome. Now, as is our practice, if you'd all rise, we'll swear you in. [Witnesses sworn.] Mr. Ose. Let the record show the witnesses answered in the affirmative. Our first witness on the second panel is the Honorable Warren Chisum with the Texas House of Representatives. Sir, we have your testimony, as we have everybody else's. We have read it. Our practice here is to recognize you each for 5 minutes to summarize. We look forward to your testimony. STATEMENTS OF STATE REPRESENTATIVE WARREN CHISUM, TEXAS HOUSE OF REPRESENTATIVES; HOWARD ROITMAN, DIRECTOR OF ENVIRONMENTAL PROGRAMS, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; DR. RON HAMMERSCHMIDT, DIRECTOR, DIVISION OF ENVIRONMENT, KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT; E. DONALD ELLIOTT, FORMER EPA GENERAL COUNSEL AND CURRENT PARTNER, WILLKIE, FARR & GALLAGHER LLP; DR. A. ALAN MOGHISSI, PRESIDENT, INSTITUTE FOR REGULATORY SCIENCE; AND GARY S. GUZY, FORMER EPA GENERAL COUNSEL AND CURRENT PARTNER, FOLEY HOAG LLP Mr. Chisum. Thank you, Mr. Chairman. Having served 16 years listening to the testimony, I assure you I'll be brief and be within your 5 minutes. In my legislative career, I served as chairman of the ALEC committee, the NCSL vice chairman of their environmental committee as well as the energy council. I am currently the chair of the Southern Legislative Conference Energy Committee and Environmental Committee. Likewise, being in Texas, we work along the border on various environmental issues across borderlines in an effort to bring us into compliance with the Clean Air Act. To be very upfront about it, I think making EPA a Cabinet- level position probably has a lot of credibility. I think it would put us on an equal footing with some other countries and give more credit to the fact that surely we make the environment a very high priority here in the United States. On the issue that I particularly liked about the bill, on using peer-reviewed science in order to make policy and compiling that with statistical data I think that is a great way to make regulation. We try to do that in the State of Texas, but actually most environmental policies in the States nowadays are complying with Federal law, not actually trying to create State laws that do anything other than comply. We appreciate what EPA does in pursuing our bad actors. When we find bad actors, we can be sure that the Department of Justice applies the enforcement, and many, many times that helps us in the State of Texas as we pursue our goal to have a cleaner and better environment. We also, being an agricultural production State, think that it's imperative that we give special emphasis on making sure that we are able to produce our food and fiber from our farmers. We think that they can be good stewards of the land, and with the knowledge that they can receive from science, they can do a good job. Likewise, we think it's essential that we not give up our food production, as we have oil production, to the foreign countries. Finally, Mr. Chairman, I would like to relate to you an incident where we were trying to come up with a State implementation plan [SIP] in order to comply with the Clean Air Act, and everything we tried we came up, we were still short, and so we borrowed from California what was known as the Carl Morio program, where the State of Texas taxed its citizens $800 million in order to create an innovative program whereby we could go out and retrofit on-road and off-road diesel engines, thereby bringing our regulation into compliance with the State of Texas. This would not have worked had the regional director not had the ability to have flexibility in order to allow our SIP program to be approved, provided that we spend this kind of money on new, innovative programs. So some flexibility at the regional level is essential. I think that the States can work with EPA regional offices and can come up with better ideas to protect the environment, and I would encourage you to make sure in your program that you make sure that States have the ability to work with the regional offices and not have all policy made here in Washington, DC. With that, Mr. Chairman, I'll yield the rest of my time. Mr. Ose. I thank the gentleman. His word is good. [The prepared statement of Mr. Chisum follows:] [GRAPHIC] [TIFF OMITTED] T9352.137 [GRAPHIC] [TIFF OMITTED] T9352.138 [GRAPHIC] [TIFF OMITTED] T9352.139 Mr. Ose. Our next witness is Howard Roitman. Sir, you're recognized for 5 minutes. Thank you for joining us. Mr. Roitman. Good afternoon, Mr. Chairman and distinguished members. Thank you for the opportunity to testify on H.R. 37 and H.R. 2138 on EPA elevation to Cabinet status. We conceptually support H.R. 2138 because it makes tangible steps toward bringing our environmental laws into the 21st century through the reorganization of EPA to strengthen science and to provide more consistent policy direction and implementation across the Agency. Current laws were designed to resolve discrete problems with air, land and water. This single media approach has been effective in achieving environmental improvements but has resulted in a fragmented patchwork of regulatory requirements that makes it more difficult to address cross-media environmental challenges. So today we are at a crossroad. You have the opportunity to provide direction for environmental programs to move in the future. If we open one door, we continue a single media command and control approach that often discourages innovation and efficiency. This path will continue to require technology-based controls without considering their cross-media impacts. To illustrate our point, if the air program requires a company to install a control device such as a wet gas scrubber, it typically considers the percentage of air emissions reduction. We don't consider the hazardous waste generated that must be managed, the system that must be built to treat the wastewater, the increased energy consumption which increases air emissions, the increased water usage or any other increase in natural resources consumed. Instead, the program simply considers the scrubber can control 99 percent of the sulfur dioxide emissions out of a stack. In the alternative, the company could use a catalyst additive that once spent or used is purchased by a cement manufacturer which uses it as product in place of mining additional limestone, thus avoiding an environmental impact. The catalyst does not generate wastewater, nor does it use as much energy or water. The catalyst will control 95 percent of the stack emissions. We call this approach the environmental balance sheet in making environmental decisions where we consider the full environmental costs and benefits of all the options. This approach is discouraged and at times not allowed under the current system due to significant institutional policy and regulatory barriers. The current path drives companies' environmental staff to be paper pushers instead of environmental problem solvers. Companies spend an inordinate amount of time and resources providing information. In our experience, the environmental professional in this country is one of the most underutilized resources in our companies. This person can be a profit center for the company, driving ideas for greater efficiencies, reduced costs and better environmental benefit if given the tools and flexibility to do so. So what is the alternative? It would require agencies to make environmental decisions considering the environmental balance sheet. This approach allows companies to select the most efficient approach such as preventing pollution, engineering the use of toxics out of products and designing products that have no waste stream. To pursue this direction requires better information to use when making decisions. This is why the creation of a Bureau of Environmental Statistics is important. Agencies will be required to continually assess, using data and science, the greatest environmental issues that need to be addressed and whether the current programs are successful. This will not only encourage but make essential to success innovative approaches. It will also ensure that we have identified the real problem, the causes behind it and allow us to evaluate the alternatives. This path has several benefits. First, it will require EPA to consider the full impact of its decisions. It will encourage innovative programs and ideas to be embraced by the Agency. It will garner even more significant environmental benefits; and, finally, it will encourage companies to search for the most efficient approach to reducing environmental impacts. Colorado is currently implementing this approach, but it isn't easy. One of the barriers that we have to ensure against is different approaches and interpretations taken by different offices of EPA. In the past, we have found differences among the program offices, between regions and headquarters, and among regions. What we are looking for is a Federal system that requires cross-media approaches and encourages and integrates innovations across the board. The goals of the system would be to collect better data and use it to make environmental decisions. Thank you for your time and attention. I would appreciate the opportunity to supplement this testimony. I'll be pleased to take any questions you may have. Mr. Ose. I thank the gentleman. [The prepared statement of Mr. Roitman follows:] [GRAPHIC] [TIFF OMITTED] T9352.140 [GRAPHIC] [TIFF OMITTED] T9352.141 [GRAPHIC] [TIFF OMITTED] T9352.142 [GRAPHIC] [TIFF OMITTED] T9352.143 Mr. Ose. Our next witness is Dr. Ronald Hammerschmidt. He is the director of the Division of Environment for the Kansas Department of Health and Environment. Sir, welcome. You're recognized for 5 minutes. Mr. Hammerschmidt. Thank you, Mr. Chairman. I am glad to be here today to speak on the two proposals under consideration. My professional experience is that of both laboratory chemist and environmental professional, and I have spent time in both the laboratory and office in policymaking in my 23 years with the Department. We like many other agencies have a love-hate relationship with EPA. We work together. We depend on EPA to provide us with a significant source of funding, and we always receive direction on our programs, either in the form of guidance, regulation or sometimes under the guise of partnership. Many of our programs are joint programs such as that to protect the safe drinking water in the State. There are even times when State programs may have even actually progressed beyond those of EPA; and as is the case in Kansas, we've been in the regulatory business for confined animal feeding operations for a long time and feel that EPA is finally catching up to us. We have many frustrations in dealing with EPA. They include slow decisionmaking, a lack of understanding of State programs and their challenges, rigid approaches to problem solving and inconsistent guidance between regions. For me personally, one of the bigger frustrations is the amount of time it takes for EPA to deal with Kansas's multiple water quality regulations. The net result of this has been numerous lawsuits have been filed against us and Region VII which don't make us any better in protecting water quality but do take a significant amount of time. There are decisionmaking processes within EPA that we can cite that we have experienced with multiple interpretations of the same guidance among various regions. Something that we may enforce in Region VII may not necessarily be even accepted in Region VIII or enforced in Region VIII. In addition, regional managers must routinely confer with EPA headquarters, and they may or may not receive a response or authority to move ahead on an issue. States have a need for scientific support for our decisionmaking processes. We are often asked by our State legislators and policymakers, what's the scientific and technical basis for what you're trying to do? We need both science, data and information. Unfortunately, there are cases when this is lacking. The creation of an independent structure charged with science and information is an excellent proposal. We need quality science in all aspects of environmental protection. Although I avoid the use of the word ``good'' science, we do need rigorous peer-reviewed science, and we also need to convert a great deal of that statistical data into information that our citizens can understand and that we can use. I see the creation of a Bureau of Environmental Statistics as a very, very positive step. In addition, the administrators, managers and staff of EPA--and I'm speaking specifically to those in policy, planning and innovation--should also be charged to be knowledgeable with understanding the programs they're writing regulations for. If one is writing a regulation for public water supplies, one should have information both on a scientific and technical basis but also direct experience in what it takes to run those particular programs. It would be helpful if that EPA person in headquarters writing the regulations had actually ever been to a drinking water plant and seen how it worked. An important function of this level of the Department, and that of the implementation, compliance and enforcement structure, is to bring consistency and equivalency to decisions in the Agency. These decisions are extremely important to States. They're also important to those that we regulate. We, like the batter in the major leagues, are looking for consistency in how to predict what the rules are. It would be nice to know what the strike zone is which sometimes moves on both us and the regulated community. In addition, the last point I'd like to make before I close is, as a State program director, I'm very interested in maintaining the ability to go to the top. I think it's important for us to be able to influence decisionmaking within the Department, and I actually see this as an important role for the Under Secretary for Implementation, Compliance and Enforcement, should be to be and act as a State's advocate within the structure at U.S. EPA or the Department of Environmental Protection. In conclusion, I want to say that we are supportive of elevation to Cabinet status, but we think many of the ideas that you've put in H.R. 2138 are a very positive approach to bring better science and more consistent decisionmaking to EPA. With that, I thank you. Mr. Ose. I thank you, Dr. Hammerschmidt. [The prepared statement of Mr. Hammerschmidt follows:] [GRAPHIC] [TIFF OMITTED] T9352.144 [GRAPHIC] [TIFF OMITTED] T9352.145 [GRAPHIC] [TIFF OMITTED] T9352.146 [GRAPHIC] [TIFF OMITTED] T9352.147 [GRAPHIC] [TIFF OMITTED] T9352.148 Mr. Ose. Now, as we discussed, we're going to go all the way over to Mr. Guzy who joins us. He is here. He has previously served two decades in practicing environmental law. He had the privilege of serving as the EPA General Counsel during the prior administration. He has practiced in the private sector, and he's represented EPA during his tenure at the Department of Justice. Sir, you're welcome. You have 5 minutes. Mr. Guzy. Thank you, Mr. Chairman, Mr. Tierney and members of the committee for today's invitation. I commend the chairman for his continued leadership in addressing this very important issue. Former Administrator Reilly described EPA as ``uniquely the environmental overseer, watchdog and point of reference regarding the status, needs and problems of ecology and environmental health in America,'' surely a Cabinet-level role. I urge the committee to seize the current opportunity once and for all to elevate the Agency, but this will only happen if the implementing legislation is straightforward and unencumbered by limitations on EPA's authority. H.R. 37, introduced by Congressman Boehlert, meets this test. H.R. 2138, in my view, unfortunately does not. The history of efforts to elevate EPA could not be clearer. Time and again these efforts have stalled because an unencumbered approach became laden by controversial concerns. Please let's not make the same mistake again. EPA's charter must remain fluid and nimble to respond to a future that is impossible to predict. When I first came to EPA in 1994, its Web sites received approximately 100,000 hits per year, and today they receive over 125 million hits per month. What a change in just a few years. H.R. 2138's mission statement, limited to some vague notion of unreasonable risk, is unfortunately value laden, potentially too rigid, at odds in spirit with individual statutes and certainly will be controversial. Would the new Department even be able to pursue under this standard some of the very areas of focus now recommended by NAPA, the National Academy of Public Administration, such as addressing climate change and nonpoint source pollution, their top priorities? If Congress wants to change the standards for protecting our air, our water or our land, it should have that debate in the context of the individual legislation and not under the guise of changing the Agency's name. On science, I urge you to be cautious when you hear sound science as a justification for change. In the late 1990's, during my tenure at the Agency, the poster child for bad science repeatedly cited by Congress and industry was EPA's association of elevated fine particles and premature deaths. These criticisms at the time ignored the extensive peer review that had occurred both outside and inside the Agency, and since then these criticisms have been discredited by an independent review body, by ample newly developed peer-reviewed science and even through the crucible of litigation all the way to the Supreme Court, where EPA received a unanimous victory. Too often claims of flaws in EPA science have been used by advocates to bolster mere policy disagreements, and some scientific uncertainty is inevitable as a fact of regulatory life. Other proposed changes to EPA's structure, while well intentioned, may suffer from unintended consequences. Does placing regulatory development under the Under Secretary for Policy while having all regional permitting activity supervised by the Under Secretary for Implementation mean that EPA will lose touch with the real-world consequences of its regulatory actions? Does the Chief Financial Officer have the competence to address regulatory costs? Can the Bureau of Environmental Statistics' mission of transparency be squared with an approach that withholds from the public any corporately identifiable data? My point is not that H.R. 2138 does or does not have it right. It is that these issues are complex and deserve careful analysis. H.R. 2138 raises important issues about how EPA's operations can be improved. I agree with the need to take additional steps to integrate science into agency resource and regulatory decisionmaking, with strengthened independent statistical data and with the need to enhance EPA's ability to move toward creative multimedia approaches, but I recommend you join truly straightforward Cabinet elevation with the creation of a high-level commission to report back here on proposed changes to enhance the new Department's effectiveness. Now, we'd be remiss if we didn't root this discussion in the context in which it's currently occurring. I am very concerned, as I believe the American people increasingly are, that Cabinet elevation will be seen as nothing more than window dressing if we continue down the road the administration has been taking on the environment. The administration claims to want to empower States to carry out environmental protection, yet it undercuts them when their interests do not neatly align with its own. Within the last few weeks EPA compelled States to adopt its controversial new source review changes. The Solicitor General filed a brief in the Supreme Court opposing important tools that California uses to protect citizens from its unique air quality problems. The administration claims to support sound science, yet EPA removed a comprehensive discussion of global climate change from its efforts to assess the state of the environment. It continues to ignore the findings made by the National Academy of Sciences at the administration's own request that climate change impacts are human-induced and real. It has issued gag orders on perchlorate. It has not allowed EPA staff to conduct studies of mercury emissions. It has revoked the requirements for science-based plans to accomplish watershed planning through total maximum daily loads. These are just a few examples of an approach that seemingly at every turn belittles environmental and public health protections. Achieving the historic step of elevating EPA to Cabinet status, however worthy, cannot and will not obscure this troubling record; and I urge you to address these real problems as well. Thank you most kindly for the opportunity to testify. I'd appreciate having my full statement placed into the record, and I'd be pleased to answer any of the committee's questions. Mr. Ose. Thank you, Mr. Guzy. [The prepared statement of Mr. Guzy follows:] [GRAPHIC] [TIFF OMITTED] T9352.149 [GRAPHIC] [TIFF OMITTED] T9352.150 [GRAPHIC] [TIFF OMITTED] T9352.151 [GRAPHIC] [TIFF OMITTED] T9352.152 [GRAPHIC] [TIFF OMITTED] T9352.153 Mr. Ose. Mr. Elliott, thank you for your patience. You're recognized for 5 minutes. Mr. Elliott. Thank you, Mr. Chairman. I agree with my colleagues that it's important to elevate EPA to Cabinet status. I do disagree with my good friend Gary Guzy. I support the chairman's bill primarily because of its provisions to upgrade the role of science at EPA and make other important organizational improvements. After 20 years of study of the Agency as an academic, I am convinced that the single most important thing we could do to improve the Agency is to create a high-level advocate for science at the highest reaches of the Agency. I can't improve on the report by a distinguished committee of the National Academy of Sciences in 2000 which said, ``Just as the advice of the Agency's legal counsel is relied upon by the Administrator to determine whether a proposal is legal, an appropriately qualified and empowered science official is needed to attest to the Administrator and the Nation that proposed action is scientific.'' As I reflect upon my own experiences at EPA as General Counsel, I believe that scientific considerations were, unfortunately, conspicuous by their absence from the high-level dialog at the Agency. This situation has gotten worse rather than better in subsequent administrations. I respectfully disagree with my friends such as Gary Guzy who think that any kind of changes in Cabinet status legislation will make it unenactable. I think that is a demonstrably mistaken theory that has been really discredited by history. We've had a number of simple elevation bills in the past but they have not been enacted essentially for political reasons. I hope that this time, for a variety of reasons, it will be possible to elevate EPA to Cabinet status. I think the true test is the one that Jim Connaughton articulated, and that is that Cabinet status legislation should be limited to truly organizational or structural issues such as creating an Under Secretary for Science, but there's plenty of room to do that, and it would be an important reform. The problem in my experience is the triumph of politics at EPA. It's not that EPA lacks scientific information but rather there is a reality or a perception that decisions are based on politics rather than on science. This is a bipartisan disease. We can have abuses and ignoring of science either of the right or of the left. Adam Smith, the great political philosopher and founder of economics, once wrote, ``Science is the great antidote to the poison of enthusiasm and superstition.'' He should have written that it is a bipartisan antidote, and science is an antidote for the superstitions and enthusiasms of either the right or the left. In my view, the problem is that we don't have a high-level advocate for science at the top councils of the Agency, and I hope that the committee and the Congress and the Nation will seize this historic opportunity to strengthen the voice of science at EPA. I thank the committee; and Congressman Shays in particular from my home State of Connecticut. It is a pleasure to be testifying in front of you as well. Thank you very much, and I'd ask that my written statement be made part of the record. Mr. Ose. Without objection. The Chair thanks the gentleman. [The prepared statement of Mr. Elliott follows:] [GRAPHIC] [TIFF OMITTED] T9352.154 [GRAPHIC] [TIFF OMITTED] T9352.155 [GRAPHIC] [TIFF OMITTED] T9352.156 [GRAPHIC] [TIFF OMITTED] T9352.157 [GRAPHIC] [TIFF OMITTED] T9352.158 [GRAPHIC] [TIFF OMITTED] T9352.159 [GRAPHIC] [TIFF OMITTED] T9352.160 Mr. Ose. Dr. Moghissi, welcome. Thank you for your patience. You're recognized for 5 minutes. Mr. Moghissi. It appears to me that the three former EPA people have been lumped together and, as usual, we all don't agree. My perspective is as a former principal---- Mr. Ose. Dr. Moghissi, if you could just take the throat of the mic, the little extender, and straighten it. The mic is like this. Take it and go like that. There you go. Mr. Moghissi. Here we go. Mr. Ose. We need an attorney for some useful purpose. We welcome you, Dr. Moghissi. Mr. Moghissi. I won't tell my joke on attorneys. I'll leave it for a later date. My perspective is as a charter member of the Environmental Protection Agency, as a former principal science adviser for radiation hazardous materials, as an academic administrator--I was assistant vice president of University of Maryland and associate vice president at Temple University and as a professor at various universities. I'm a scientist. I'm not a lawyer. I'm not a politician. Let me briefly say what led to the decision to support the bill under consideration. We at the Institute for Regulatory Science are dedicated to the idea of best available science, and my statement includes details of what constitutes best available science, and I would appreciate if it's made part of the record. Mr. Ose. Without objection. Mr. Moghissi. My frustration started when I arrived in Washington as a principal science adviser in 1977, worked in the various work groups and recognized how the regulations were written. I was extremely frustrated at that time when I talked about regulatory science, it was considered a joke, these are contradictory terms. Now, we are in the process--we have two studies in progress. The reason I'm bringing them up is because my conclusions are derived from those two studies. One, the study of science at the EPA--with all due fairness to my friend on this side on the EPA's science. There's a large consensus within the scientific community that the EPA's scientific--the scientific foundation of EPA's regulations is largely poor. I have come to the conclusion, as my friend on the right side has come, that the inclusion of politics--I call it ideology--is responsible for the poor science. I believe, like he does, that the EPA scientists, my former colleagues, are outstanding like other scientists are, but I believe the management has done some damage to it. The second study deals with the objective of environmental laws. Our preliminary study indicates that the objective overwhelmingly is the protection of the human health, and the human welfare is secondary to it. The reason we worry about ecology is because ecology can produce products that aren't fit for human consumption. Now, if I may be permitted, I have some of my friends who heard that I'm supporting the bill--they have contacted me and tell me how could I do that? It is simple. In my judgment, if the EPA is forced to rely upon independent peer review--and the operative word is independent--then the cost of the operation of the EPA, even with the addition of the Under Secretary of Science, even with the addition of the Bureau of Environmental Statistics, will be reduced rather than increased. I would be happy to elaborate why I believe that. Second, I would appreciate it if a sentence in my testimony--the written testimony is slightly modified. The section, ``What is best available science,'' the first sentence under ``Science versus non-scientific objectives,'' it should read, ``There is ample evidence indicating that the intrusion of nonscientific objectives would jeopardize the objectivity and consequently the acceptability of scientific information.'' Let me go now and suggest--I will use my all diplomatic skills and suggest that the H.R. 37 should not be considered. What is the point? The EPA, as the Administrator already said, is already a member of the Cabinet. She participated in all the Cabinet meetings. So why would anybody want to change it? Passing a law with all the changes that need to be done simply to change the name of an agency that is a Cabinet member already to another Cabinet member? I don't see why maybe scientists are not smart enough to know the reason for something like that. Now, I'm strongly recommending that the word environment in the bill be defined--and I have a definition. ``Environment means humans, other living things and environmental media.'' Environmental media are already defined. Because of the study, as I described, it would meet the objective of the bill. Second, I'm recommending that the Peer Review Team be renamed to Peer Review Oversight Team and will be given the responsibility to oversee the peer review activities of the Department of Environmental Protection by appointing specific panels. And I would be happy to elaborate on that. Thank you very much, sir. Mr. Ose. Thank you, Dr. Moghissi. [The prepared statement of Mr. Moghissi follows:] [GRAPHIC] [TIFF OMITTED] T9352.161 [GRAPHIC] [TIFF OMITTED] T9352.162 [GRAPHIC] [TIFF OMITTED] T9352.163 [GRAPHIC] [TIFF OMITTED] T9352.164 [GRAPHIC] [TIFF OMITTED] T9352.165 [GRAPHIC] [TIFF OMITTED] T9352.166 [GRAPHIC] [TIFF OMITTED] T9352.167 [GRAPHIC] [TIFF OMITTED] T9352.168 [GRAPHIC] [TIFF OMITTED] T9352.169 [GRAPHIC] [TIFF OMITTED] T9352.170 [GRAPHIC] [TIFF OMITTED] T9352.171 [GRAPHIC] [TIFF OMITTED] T9352.172 [GRAPHIC] [TIFF OMITTED] T9352.173 [GRAPHIC] [TIFF OMITTED] T9352.174 [GRAPHIC] [TIFF OMITTED] T9352.175 [GRAPHIC] [TIFF OMITTED] T9352.176 [GRAPHIC] [TIFF OMITTED] T9352.177 Mr. Ose. Now, this is our fifth hearing on this concept of elevation of the EPA. In our June 6th hearing, this committee heard testimony regarding problems with EPA's operations and science, with the effectiveness of its regulations and its impact on the regulated community, with problems States have with EPA's regional and program offices, with the lack of cross-media research, in addition to a number of other issues. The sum and substance of that was that many of our witnesses believe that, after 30 years of what they describe as seeking piecemeal improvements, EPA needs to be reformed structurally. I'm going to go from my left to my right here. Mr. Chisum, should Congress make improvements to EPA's organizational structure concurrent with its elevation? Mr. Chisum. Absolutely. I think that Congress could instruct EPA or the new Cabinet-level position to work more---- Mr. Ose. Move that microphone closer to you, if you would, please, because we bought a whole bunch of new mics. So everybody gets one. Mr. Chisum. Absolutely, Mr. Chairman. I believe that the EPA could work closer with the States on new innovative programs in a way to comply with the EPA's mandated policies, and I think that could be written into the legislation and be a great assistance to the State in meeting the requirements under EPA. Mr. Ose. Mr. Roitman. Mr. Roitman. I think there's no question that there are structural improvements that could address a lot of the concerns that you raised and that we also echo. I think the challenge is going to be how to best integrate those goals across whatever organizational structure Congress ends up enacting, because--say, with the regions, which is where we have our most direct impact, it's important that they have-- they're coordinated across the functional areas that you've addressed here so that, whatever the structure is, I think it's going to be important to have ways into the process from the policy and innovation part, from the science part as well as from the implementation part. Mr. Ose. Dr. Hammerschmidt, should Congress make improvements to EPA's organizational structure concurrent with elevation? Mr. Hammerschmidt. As usual, I find myself in agreement with my neighbor, Mr. Roitman. The short answer is yes, and I think we need to focus from our concern as States on science and the ability for us to work across all portions of the Agency. Mr. Ose. Mr. Elliott. Mr. Elliott. Yes, I would agree that's a very appropriate role for Congress. I'd go even farther. If you think about it, there are very few other ways that the culture of an existing agency like EPA can be changed to become more scientific other than types of organizational reforms you're talking about. So I think it's crucial that the Congress assume that responsibility; and when you study the field, there are very, very few other things that can be done to change the culture of an agency other than the type of organizational changes you're talking about. So I think it's very important. Obviously, the challenge is not to micromanage, but I think the bill has struck a good balance, giving the Agency flexibility for the future, but in a few areas where there is a broad consensus, bipartisan consensus of the need for improvement, I think the Congress is doing an excellent job of sending a signal, and I think it will improve matters for the future. Mr. Ose. Dr. Moghissi. Mr. Moghissi. Yes, I agree with the statement of my friend, Mr. Elliott, here. Yes, the bill does provide a reasonable balance. As a member of the work groups, I saw what was going on in these work groups. Changing the culture by letting the scientists be scientists and take the science and draw conclusions from it--that culture--would be extremely important. Mr. Ose. Mr. Guzy. Mr. Guzy. I agree that it essentially is Congress's prerogative and role to make those changes should it desire to do so. I have two kinds of concerns about doing that in this instance, as I tried to outline in my testimony. First, there are just the practical concerns of whether or not in so doing the various competing proposals engender controversy that takes us off course of ever reaching elevation of EPA to Cabinet status. Because that's the goal I think we all agree on. Then, second, the substance of any of those proposed changes, are they in fact potentially counterproductive? What I would recommend instead is that with straightforward Cabinet elevation that you create and charge and give a timeframe for the consideration of changes by an independent high-level body or commission as well as by the Agency and that they report back here and then Congress have the opportunity to take that information into account in order to come up with the appropriate changes after the Agency is already operating as a department. Mr. Ose. Thank you all. The gentleman from Connecticut. Mr. Shays. I thank the gentlemen for being here. I missed the testimony from the first panel, and I regret that. I just really have a comment in general that--probably not so enlightened, but I'd like your response to it. If Mr. Ose can get this bill passed, he deserves to be President, because---- Mr. Ose. Just a minute now. Wait a minute. I'm trying to go home. Mr. Shays. Bottom line is, though, it is such a logical thing to do and yet it seems so difficult. I have the view that the administration has worked hard to convince people that the environmental community is mad at it and wants the environmental community to be mad at it, because there's no other logic for me to understand why they have done some of what they've done. I agree with this administration on a whole host of issues, but when it comes to enforcement of environmental law, I can't even explain why we have taken some of the positions we've taken. So my only conclusion is that they have wanted the environmental community to be mad and express that they're mad so that our so-called base is pleased with it. Tell me, what tells you that--first, all of you support this legislation, is that correct? I mean, in general, you want to see a Department of Environmental Protection. Correct? So, nodding of heads, there's a basic agreement. What tells you that this administration is inclined to support this legislation? Mr. Elliott. Mr. Elliott. Well, one thing that tells me that is that the two administration witnesses, Jim Connaughton and Marianne Horinko, said that the administration supported this, as the administration's representatives. I think there was an important breakthrough in the sense that they both said that the administration specifically supported the idea of an Under Secretary for Science. They were both very articulate in explaining how that would improve the functioning of the Agency. And I must say I was very pleased to hear it, having been a long-time advocate of that position. So I don't believe that any of these provisions are killer amendments or unreasonable or will increase the political vulnerability of this bill at all. I think they're very, very modest and have been really needed for a long time. I mean, Gary Guzy's idea of a high-level body making recommendations, that's what the National Academy of Science did in the year 2000. Mr. Shays. So if we could get this legislation passed without other things being added like risk assessment and so on, then you think that we would have a shot? Mr. Elliott. Yes, I do. I've been a long-time advocate of a concept of unreasonable risk, but I do believe that's the one provision that goes over the line and could be cited as having a substantive rather than organizational component. But I really disagree very strongly, as I've indicated in my testimony, with the idea that what has prevented EPA Cabinet status from being enacted in the past are the substantive provisions of the bill. I think that's a canard, and I think it's just demonstrably false. What has happened is that, politically, neither party has wanted the other party to get credit for EPA Cabinet status. Now that we have a situation of Republican control of both the House and the Senate and the administration, I think we have a historic opportunity to get this done. I don't think we should be greedy. I don't think we should have substantive provisions, but as long as we're talking truly organizational structure on a bipartisan basis, I think it's a unique opportunity. The other side of that coin is I think it's a unique opportunity to make some long-needed reforms, and that opportunity should not be missed. Mr. Shays. Is it Mr. Guzy? Mr. Guzy. Yes. Mr. Shays. Mr. Guzy, or Attorney Guzy, from what I understand of your position, that the camel's head under the tent, you'll see a lot more--you want to keep the bill as clean as possible. Mr. Guzy. Well, that's correct. In addition--or to amplify on that, if I may, Mr. Shays, I very much agree with Mr. Elliott's comments that by far and away the greatest concern that I have in H.R. 2138 is the mission statement itself, because I do believe that moves beyond purely structural changes to the Agency to potentially addressing some very significant substantive issues. But there is a way in which the substance--I'm sorry, the structure itself can have an impact on the Agency's ability to carry out its mission, and I have an independent degree of concern about--aside from whatever anyone--whatever someone else may add down the road--whether this bill has it just right. I'd just point out that Administrator Whitman testified when she was last here that ``my concern with establishing a Deputy Administrator for Science is that science should be incorporated throughout the Agency. It should be part of every one of the Assistant Administrators' jobs. I don't want anyone thinking the Deputy Administrator for Science will take care of that.'' There's a way in which isolating or creating a new stovepipe for science can potentially isolate it and remove it from the responsibilities of other parts of the Agency. There's a way in which taking the science function away from the program offices could in fact have regulatory development even have a harder time in achieving a sound scientific basis. Mr. Shays. I can't imagine if you could achieve a Department of Environmental Protection that you would oppose the bill based on that. Mr. Guzy. I'm sorry. Mr. Shays. Based on having a separate Under Secretary for Science? Mr. Guzy. I believe that there should be the enhancement-- the further enhancement of science at the agency for---- Mr. Shays. That is not what I asked. In other words, if this bill--disregarding the mission statement, which needs to be changed a bit, in spite of the former Director of EPA-- Administrator of EPA saying we didn't need a separate Under Secretary, you would not oppose this legislation if it could go through the House and Senate pretty much this way without the mission statement or you would? What would you do? Mr. Guzy. And there are a few other issues that I think are worth talking about as well. But if your suggestion is a structural change that is designed to enhance science as part of this legislation and that's it, then--and that would be the ultimate result of the legislation--of the legislative process, then it's likely something I would support. Mr. Shays. Thank you. Thank you all very much. Mr. Ose. Thank you, Mr. Chairman. Thank the gentleman. Mr. Elliott, on pages 2 and 5 of your written statement, you point out that most legislation creating new departments properly addresses similar organizational structural issues; in other words, the debate on one pretty is much the same for the next one after that, so on and so forth. You state that H.R. 2138 is truly structural and therefore in your words a clean bill without extraneous measures, which I appreciate your definition. Does the fact that H.R. 2138 proposes the elevation of an already existing agency alter your conclusion as to whether or not this is a clean bill? Mr. Elliott. No, not at all. I think the fact that it is an existing agency is really all the more reason that these types of organizational issues ought to be addressed. First of all, we have a 30-year track record here, so I think it's entirely appropriate for the Congress at the time of EPA Cabinet elevation to be reacting to the agency's record and culture and history and trying to make a mid-course correction. And I would cite, for example, the Food and Drug Modernization Act, which was passed almost unanimously by both House and Senate a few years ago, as an example of similar structural changes being made to an existing agency. So I really think there is a good record of Congress successfully changing the culture of agencies through legislation. Second, I think it's important to bear in mind, as Jim Connaughton referred to briefly, that the Under Secretary level, which is where you're doing most of the work organizationally, doesn't exist today at EPA as an agency. And so in EPA Cabinet status elevation, we have an opportunity to address what cross-program functions ought to be addressed at the Under Secretary level. That's an issue that doesn't really arise under the existing organizational structure because you don't have that position. There were some problems with the idea with a Deputy for Science at EPA because of the conflict between two deputies, and that was vented in the past. With elevation, the Under Secretary level, I think, is the appropriate place to have not only an Under Secretary for Science, but also some of the other cross-program integration functions. Mr. Ose. And one of the things that I have had the pleasure of hearing is the claims from all directions in the political spectrum that EPA does not use or properly use sound science. This gets to the establishment of an Under Secretary for Science and Innovation as detailed in section 7 of my bill. Mr. Chisum, do you support the centralization of science at the new Department and an Under Secretary for Science and Innovation? Mr. Chisum. Yes, I do, Mr. Chairman, and science combined with statistical data will be the best way to make policy. Mr. Ose. Dr. Hammerschmidt, what's your position on it? Do you support the centralization of science? Mr. Hammerschmidt. Yes, I do. I have commented that that is one of the better aspects of the bill, one I am quite enthusiastic about. In addition, I think a personal concern I have within EPA now is we need to do a better job of educating EPA staff who are not scientists in scientific concepts and that could also be an important function of this particular part of the organization. Mr. Ose. Mr. Roitman, one of the major irritations I have is this cross-media analysis which I don't know of a more timely example than our struggle with MTBE in California. We are worried about the air and now we've got water, but there was no cross-media analysis that satisfactorily analyzed that. Would an Under Secretary for Science and Innovation promote the cross-media studies that you advocate throughout your written testimony? Mr. Chisum. I believe it would, Mr. Chairman, because as you well know when we talked about MTBE it was mandated and it seemed to be the best alternative for it, but now that we've looked at it a little closer we find out we can do other things in order to reach clean air. So I think it would help. Mr. Ose. Mr. Roitman, do you agree with that? Mr. Roitman. Yes, I do. Having an Under Secretary for Science would very much promote our ability to be smart about cross-media impacts of decisions that are being made. What we need is good science and good data so that we're looking at the full picture when we're making decisions, and I think this would very much help that. Mr. Ose. I apologize for being very direct on these questions and not asking everybody their collective wisdom. I'm just out of time here and I see my red light. Mr. Elliott, on page 2 of your testimony, you note support to Congressman Ehler's approach to elevating science in H.R. 64 and for the approach laid out in H.R. 2138, which is my bill. Why do you believe that an Under Secretary for Science and Innovation is the right way to elevate science at EPA? Mr. Elliott. I think you need to change the culture of the agency so that science is heard on all issues. Science needs a representative at the highest levels in the policy debates at the agency. When I was at the agency a decade ago, there were only three people in the agency that really had a mandate across all the areas of the agency. They were the Administrator, the Deputy Administrator and the General Counsel. There was a strong norm that scientists should not speak unless spoken to, that the Office of Research and Development would not interfere with proposals that were being advanced by another AA ship. So I think the concept of turf had grown up rather strongly. I had one incident where the scientists had been in a room at a briefing for the Deputy Administrator. They didn't say anything or object and then came up to me in the hall afterwards and said, ``Don, how could you let this happen. You know this is unscientific.'' When the scientists are coming to the General Counsel saying you ought to do something to stop this, we have a structural problem at the Agency. We need somebody like the General Counsel but a General Counsel for Science who can be an advocate for a scientific point of view. I think an Under Secretary for Science and Innovation is the best way to do that. I think we have a structural problem at the Agency and we need a structural solution to counterbalance the other forces. We have a strong high level advocate for policy or politics at the Agency, a strong high level advocate for law, and we need to balance those forces with a strong high level advocate for science. Mr. Ose. Dr. Moghissi, on page 3 of your written statement you make several suggestions that you break out into two groups to improve the scientific credibility of EPA, including removing scientific deliberations from the program offices. Would you please explain that a little bit further or elucidate us? Mr. Moghissi. For the sake of simplicity, I'm going to invent a new compound called dimethyl chicken wire. The dimethyl chicken wire comes on the market and the department is asked to evaluate what the risks are, what the limitations are to be placed on it and so forth. The science side of the EPA would decide: one, it is a carcinogen, is it a reproductive toxin, is it neuro toxic material, what else is there, whatever toxicity is there. It determines those response functions; would determine what the potential risk may be accurate, with the appropriate arrow bars; and that information would go to the program offices. They may have scientists. But the peer review--the independent peer review science is not provided by the program offices. The program offices are qualified to say what is an acceptable risk, what is the economics, what is this and that, and they come to a conclusion to an appropriate regulation. That is the only way in my judgment the ideologically processed science which, as of now or has been at least in my time, was prevalent at the EPA will disappear. Mr. Ose. Under the scenario you have drawn with the dimethyl chicken wire, you're suggesting that the lack of access to the independent peer review is perhaps a significant negative in current process? Mr. Moghissi. Yes, sir. Mr. Ose. You apparently feel very strongly that an independent peer review is an integral part of what we ought to be doing? Mr. Moghissi. Yes, sir. Mr. Ose. Now do you support the statutory mandate for peer review? Mr. Moghissi. Yes, I do. Mr. Ose. During the subcommittee's prior hearings during a discussion on the functions of the Under Secretary of Policy, Planning and Innovation, some of our witnesses testified that most of our environmental laws delegate implementation and compliance efforts to the States. Now some of you have firsthand experience with that. As a result of that delegation, the States play an enormous role in the success of EPA's environmental pollution control and prevention. On top of that States have their own environmental laws and regulations and yet at previous hearings witnesses testified that regional offices inconsistently interpret EPA's regulations, their nonbinding guidance and our laws. States, as many of you testified, require both flexibility and predictability to address environmental challenges. Now H.R. 2138, which is my bill, provides oversight of the regional offices and consolidates the implementation, compliance and enforcement functions under a single Under Secretary. Mr. Roitman, Representative Chisum in particular, and then I want to come to Dr. Hammerschmidt, do you support the consolidation of this implementation, compliance and enforcement under a single Under Secretary? Mr. Chisum. Mr. Secretary, I would support that. However, the delegation of implementation of EPA rules and regulations needs to stay with States that have agreements with the Federal Government in order to do that because we're the one who can best identify the bad actors and innovative programs that could meet the compliance with EPA rules. Mr. Ose. From your position as a member of the State of Texas Legislature does H.R. 2138 incorporate such flexibility? Mr. Chisum. I believe it does. Mr. Ose. Do you support the consolidation of the implementation, compliance and enforcement? Mr. Roitman. I think it's important that we have consistent program implementation among the regions across the country, and that is based on a lot of years of experience in talking with my colleagues across the country in the implementation of these programs. There does need to be flexibility. There is no question that there are different issues in Colorado than there are in Delaware, for example. But I think you can have consistent approaches while still maintaining flexibility. The only other comment I would like to make is that I think we do need to make sure that the prominence of innovation, as you have addressed in the bill also is integrated into the program implementation because really the places where we need to innovate are in the States and in the regional offices who are dealing with the public and dealing with the regulated community all the time. Mr. Ose. Does H.R. 2138 incorporate sufficient flexibility on that standpoint? Mr. Roitman. I believe it can. Mr. Ose. You believe it can or it does? Mr. Roitman. I believe the way it is written allows sufficient flexibility. Mr. Ose. So if we send you a question, you could expand on that? Mr. Roitman. Yes. Mr. Ose. Thank you. Dr. Hammerschmidt, same question, from your perspective in Kansas do you support H.R. 2138's consolidation of implementation, compliance and enforcement? Mr. Hammerschmidt. Yes. This is part of H.R. 2138 that I thought the most about and have actually early on had questions about, but I think it does work. What we are looking for as States is a spectrum of solutions. Just tell us what the boundaries of that particular universe is so that we can make the State level decisions and I think the bill does create that ability. It's going to have to be charged to that Under Secretary to make it happen. And bureaucracies are often in the business of implementing what laws are passed by Congress and State legislatures, and I think it is going to be very incumbent upon the administration to make it happen with their appointees. Mr. Ose. Regardless of the administration it seems implicit in your remarks that the Under Secretary for Science says OK, here's the science bounds, parameter x, opposite of x. You have to be between these poles here and then the Under Secretary for Implementation and Compliance and Enforcement works with the States for solutions between those poles, is that the way you see it? Mr. Hammerschmidt. That's the way I see it. And if I can maybe preempt Governor Leavitt on the en Libra process which western Governors and Governor Leavitt have developed, they make it a very explicit statement that science is for facts and process is for making those boundaries. Mr. Ose. Mr. Roitman, has your State experienced challenges working with regional offices and, if so, do you have suggestions as to how to improve that tradition of interaction between the State and the Federal EPA? Mr. Roitman. I think so much relies on the individuals with whom you are dealing with at any particular time. I think right now we enjoy a very good relationship with our regional administrator and his senior management team. Where you tend to run into challenges are farther down in the organization, where I think it was Ms. Horinko who talked about the 20,000 employees at EPA and not everyone necessarily marching to the exact same drummer. And it is true in any organization and true in mine as well. I'm not sure that there's a structural change that would really improve that, although I very much like the idea of championing both good science and innovation at the senior levels. I think that can only help. Mr. Ose. I am very sensitive to everybody's time. That's one of the reasons we started exactly at 2, and I know what the baggage requirement is at the airport and with what the traffic is. Does the gentleman from Connecticut have further questions? I am going to go ahead and wrap this up with the caveat that we have additional questions we are going to submit to you in writing. We would appreciate timely responses. The record will stay open for 10 days, and that way everyone can make their planes and get home. I want to thank each of the witnesses today on the second panel for their testimony. This is our fifth hearing on the subject of EPA elevation. Frankly, most people support elevating EPA to the Cabinet, where environmental protection for this country and the rest of the world belongs. We have had three consistent themes emerge from these five hearings and it's very interesting how this has happened. First, EPA's organizational structure must be modified away from the structure first created in the 1970's, which is not addressing adequately the cross-media issue that we confront in most regulatory climates today. Second, the regulatory science conducted at EPA must be a priority within the new department. The science must be of its highest quality, must be respected by other scientists and must be independent of the EPA regulators or policymakers. And finally, EPA deserves to have the benefit of a Bureau of Environmental Statistics, much as the Department of Labor has with the Bureau of Labor Statistics and the Department of Energy has with the Energy Information Agency. A statistical agency is not a novel idea. We're not recreating the wheel. We are just not creating a novel idea, and that's not news to anybody. I do look forward to working with the witnesses individually, both on this panel and on our previous one and my colleagues and the administration to create a strong Department of Environmental Protection. We're on the road here, gentlemen, and I do appreciate your participation in this. We will work through these issues as best we can and hopefully come up with a product that we can all be proud of. I appreciate you all taking the time today. This hearing is adjourned. 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