<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
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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:]
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Mr. Ose. I would like to recognize our distinguished
chairman for the purposes of an opening statement.
Mr. Tom Davis of Virginia. Well, thank you very much,
Chairman Ose, for holding the hearing today on the EPA and
whether it would function better if elevated to a department
level. I think this hearing is going to provide an opportunity
to explore in an open-minded and bipartisan way whether the
time has come to make drastic changes in the organization and
mission of the EPA.
Mr. Chairman, over the years you have done important work
chairing this subcommittee, and your work in the 107th Congress
on this issue created a strong legislative history and record
of effective congressional oversight on these matters.
In the 30 years since it was created, EPA has supervised
and implemented the cleanup of urban industrial waste sites,
fought for the protection of our forests, streams, and rivers,
and educated the Nation about the importance of cleaner air in
our suburban communities. In that period of time, the Agency
has grown from around 4,000 employees to 18,000 employees. The
EPA has offices located literally all over the Nation. It is
charged with enforcing many diverse and sometimes even
contradictory interests as it seeks to improve and sustain the
Nation's environment. It is possible the elevation would better
equip the Agency to meet and face these challenges. If that
were the case, then we ought to be open to all feasible
options.
I look forward to the testimony from our experts today. I
appreciate your subcommittee taking the time to consider this
important legislation. I would just say, as chairman of the
full committee, we take this effort seriously. Thank you.
Mr. Ose. Thank you, Mr. Chairman.
I would like to ask unanimous consent that the statement of
Sherwood Boehlert be entered into the record. Hearing no
objection, that will take place.
[The prepared statement of Hon. Sherwood Boehlert follows:]
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Mr. Ose. In this committee, we always swear our witnesses
in. So, if you would all rise, please.
[Witnesses sworn.]
Mr. Ose. Let the record show that the witnesses answered in
the affirmative.
We have received your statements. They are going to be
entered into the record in total. We have read them. I actually
read them. I am sure Chairman Davis did, too. To the extent
that we can, we would like to move through the statements
expeditiously. We are going to give each of you 5 minutes to
summarize. You don't have to use all of the 5 minutes, but hit
your high points, if you would.
I will go left to right here. We will start with Dr.
Portney. Dr. Portney is the president for Resources for the
Future.
We welcome you to our committee. You are recognized for 5
minutes.
STATEMENTS OF PAUL R. PORTNEY, PRESIDENT, RESOURCES FOR THE
FUTURE; GEORGE M. GRAY, ACTING DIRECTOR, CENTER FOR RISK
ANALYSIS, HARVARD UNIVERSITY; STEVEN F. HAYWARD, F.K.
WEYERHAEUSER FELLOW, AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC
POLICY RESEARCH; WESLEY P. WARREN, SENIOR FELLOW FOR
ENVIRONMENTAL ECONOMICS, NATURAL RESOURCES DEFENSE COUNCIL; AND
RENA I. STEINZOR, ESQ., PROFESSOR, UNIVERSITY OF MARYLAND, AND
BOARD MEMBER, CENTER FOR PROGRESSIVE REGULATION
Dr. Portney. Thank you very much, Mr. Chairman and
Congressman Davis. I am pleased to be here, and I appreciate
the opportunity to testify.
The one thing I will say by way of introduction is that,
while I am president of Resources for the Future, a think tank
here in Washington that specializes in energy and environmental
issues, I want to make clear that the comments today that
you'll hear from me are my own and do not represent the views
of RFF.
I will cut directly to the chase, taking you at your
admonition, and say that I am strongly supportive of the
elevation of EPA to Cabinet status and even more enthusiastic
about the creation of a Bureau of Environmental Statistics
within the Environmental Protection Agency. I have long
believed that elevation of EPA to Cabinet status has been a
good idea. It was a good idea when former President George Bush
put it forward, it was a good idea when former President Bill
Clinton put it forward, and it remains a good idea today.
Several brief observations about the consequence of making
EPA a Cabinet department, if I can. My view is that having EPA
become a Cabinet department is largely symbolic, but as I said
in my prepared remarks, sometimes symbols matter. I believe
that having an EPA administrator who would be a Secretary of
Environmental Protection would facilitate international
negotiations on environmental issues, and it would be a strong
signal to the rest of the world that we take environmental
protection as seriously as we take the provinces of the other
Cabinet departments.
With respect to the reorganization that is proposed in H.R.
2138, I can see a number of advantages to those proposed
changes, 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:]
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Mr. Ose. Our next witness is Dr. George Gray. He is with
the Harvard Center for Risk Analysis at the Harvard School of
Public Health.
Dr. Gray, you are recognized for 5 minutes. Thank you for
coming.
Dr. Gray. Thank you, Chairman Ose, Mr. Davis. It is a
pleasure to be here.
A similar sort of introduction to Dr. Portney: These
remarks are mine alone and shouldn't be attributed to the
Harvard Center for Risk Analysis or the Harvard School of
Public Health. They are also informed by my almost 15 years
working as a scientist, a risk analyst, and a public health
professional.
I am here to support the idea of elevating the
Environmental Protection Agency to departmental status. I think
that EPA's mission is important to the citizens of our country,
and raising it to the highest level will recognize the priority
that we give to human health and our natural resources. But,
like many others, I do believe that this transition is an
opportunity to evaluate the ways in which this new department
acts to achieve these goals, and for this reason I support many
of the provisions of H.R. 2138. And, I want to touch very
quickly on two of those.
Touching on this notion of restructuring EPA, I think the
development of a Bureau of Environmental Statistics has a
variety of very positive attributes. First, I think it is very
important that we have concrete evidence of the effective
efforts to address environmental problems.
Another thing that I think is important that we may often
overlook is that it is a communication device for the new
department, and I want to touch on that especially. I think it
will help to identify and prioritize emerging challenges.
And the last thing that I want to spend a little bit of
time on is the fact that we do have to be, I think, a little
bit humble about what we can actually learn from a Bureau of
Environmental Statistics.
Turning to the communication aspects. There is a problem in
this country in that an awful lot of people don't understand,
don't appreciate the progress that we have made in the
environment over the last 30 years. In a 2002 survey that was
conducted by Wirthlin Worldwide for the Foundation for Clean
Air Progress, they asked 1,000 American adults: Do you believe
that the Nation's air has gotten better or worse in the last 10
years? And, over two thirds of them said the air has gotten
worse. That is wrong, and that is a problem. Because how can we
expect the public to support environmental measures, some of
which are going to be inconvenient or possibly expensive for
them--things that address tailpipe emissions could increase the
price of cars, it could increase the price of fuel--if they
don't think they are getting anything for these efforts?
I think that a well-respected and trusted national Bureau
of Environmental Statistics can help build support for the
Department of Environmental Protection and its efforts and can
also provide this important information and context for
citizens.
However, I do think we have to be humble about what we
could learn with this Bureau. Many of EPA's rules and
regulations focus on reductions in risk to human health, yet it
is extremely unlikely that any effort to gather statistical
information on public health will identify changes that you can
associate with a specific regulation. The risks that the EPA
addresses in general are just too small. I don't think you
could find an epidemiologist or a public health statistician
who believes that we could detect any change in health status
in a town, for example, that reduces arsenic in its drinking
water to meet the new EPA standard. It is important to be aware
of the information that this new Bureau can and cannot provide
to help guide decisionmaking.
The EPA uses the tools of risk assessment and management to
inform their important decisions. The way that this approach is
intended to work, science is done on one side, we bring the
best information we can to bear on problems, and then policies
are then formulated. These policies include information that
goes well beyond science. They include economics, they include
engineering, they include social sciences, and a lot of other
things that are important.
There is a perception today, I will tell you, in the
scientific community that right now policy in EPA influences
their science, and that influence undermines the credibility of
both EPA's science and EPA's decisions. So I think that the
proposal in H.R. 2138 to restructure the Department by function
would go a long way to improving both the perception and the
reality of the credibility of EPA's science and decisions.
In closing, I think elevating EPA to departmental status is
a positive thing to do; and while we are doing that, I do
welcome attention to improving the information that is
available for confronting current and future environmental
challenges with sound science and with environmental
statistics. I think careful consideration of opportunities for
restructuring is also warranted to build confidence in the
science and the decisions that guide our efforts in
environmental protection.
So I want to thank you and applaud you for your efforts
looking forward to equip our country with the tools we need to
ensure wise environmental protection in the future, and I would
be happy to answer any questions.
Mr. Ose. Thank you, Dr. Gray.
[The prepared statement of Dr. Gray follows:]
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Mr. Ose. Our next witness is Dr. Steven Hayward, who is the
resident scholar at the American Enterprise Institute for
Public Policy Research.
I want to thank you for coming, Dr. Hayward. You are
recognized for 5 minutes.
Dr. Hayward. Thank you, Mr. Chairman.
I guess I will depart from my written testimony a little
bit and add to it, if I can, by noting a little bit of history.
President Nixon originally intended the EPA to be a
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:]
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Mr. Ose. Our next witness is Wesley Warren. He is the
senior fellow for environment economics at the Natural
Resources Defense Council.
We are very grateful for you appearing, and you are
recognized for 5 minutes.
Mr. Warren. Thank you. I would like to express my
appreciation both to the chairman of the subcommittee and the
full committee for giving this such attention today.
The Natural Resources Defense Council does support
legislation to elevate EPA to Cabinet status. We believe that
this would put the Agency on par with other Departments and
would also send an international signal about the importance of
environmental issues generally.
However, we do not support this objective to such an extent
that we would accept changes in the Agency's authorities or
structure that would actually hamper its ability to get its job
done. Therefore, we urge the committee, if it takes up this
issue, to pass a clean bill, free of any other types of
provisions.
Repeatedly, attempts to add other issues to this
legislation have derailed these legislative proposals, and we
think it would just end up, because of the controversy, being a
one-way ticket to nowhere.
Accordingly, we have endorsed H.R. 37, which is legislation
that would be a simple and direct elevation. But we do oppose
H.R. 2138 which we believe, for reasons that I will discuss in
greater detail, do not meet this description.
I believe when people look at the issue of elevating EPA to
a Cabinet agency, there are two great temptations. One is to
change the authorities of the Agency, and the other is to
reorganize its structure. This is something that H.R. 2138 does
in both cases. And, I believe in fact that it is very well
intended, that it is looking at important issues, like how do
we encourage cross-media work at the Agency, and how can we
improve the quality and quantity of good environmental
information, both of which are objectives that we also share
support for.
However, we would not like to see those objectives pursued
in a way where we might actually create more bureaucracy and as
a result more litigation and gridlock. And so, again, whatever
the merit of those issues might be at a separate time and
place, we strongly urge their exclusion from this legislation.
If I can take a couple of moments to detail what our main
concerns are--I won't go into all of them, which are in my
testimony--I would say I believe the most troubling is the
statutory mission statement that is included in the bill that
would create a vague new standard hinging on the concept of
unreasonable risk. We believe that unreasonable risk is only
one standard that could be considered in terms of environmental
protection, but it is by no means the one, that is used most
generally in statutes; and that the mission of the Agency
should be, plain and simple, to administer the statutes that
Congress has already passed or may pass in the future.
Second of all, in respect to the reorganization, I would
like to point out a couple of issues that we also consider
troubling. But I believe that the main point on reorganization
is this: That, by and large, the Agency already has the
authority it needs to accomplish the purposes of providing
better information and doing cross-media work if it has the
will and resources to do so.
I, too, read the article in the Post today. Part of the
headline is: Agency Says It Must Do a Better Job of Monitoring.
Yet the Bush administration budget for this year actually would
cut compliance monitoring and civil enforcement activities at
the Environmental Protection Agency by nearly 100 positions, at
the same time that the State of California in this article says
what it needs more than anything else to provide more and
better monitoring statistics is money.
So we believe that merely bringing together information
functions into a single place in the Agency and relabeling it
doesn't necessarily mean that the Agency is going to be able to
provide this job; and we would urge the committee to first look
at ways in which they could make those current authorities and
resources fit more closely the needs of the Agency.
Finally, I would like to say that, if the committee decides
what it would like to do is to try to improve the operation of
the Agency by changing authorities or structure, then in fact
we would have many suggestions of actions that could be taken
that would improve environmental protection in this country. I
have listed some of those suggestions in my testimony. I
recommend them for consideration of the committee.
But I would just conclude by saying that I believe that any
of those proposals might also be controversial and that the end
result might be derailing our common objective of elevating EPA
to a Cabinet-level agency, which should be the purpose of the
legislation.
Mr. Ose. Thank you, Mr. Warren.
[The prepared statement of Mr. Warren follows:]
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Mr. Ose. Our final witness is Rena Steinzor, who is a
professor at the University of Maryland School of Law and a
Board Member at the Center for Progressive Regulation.
Thank you for joining us this morning. You are recognized
for 5 minutes.
Ms. Steinzor. Thank you, Mr. Chairman, for the opportunity
to appear before you today. My comments do represent the views
of the Center for Progressive Regulation, also a think tank
doing much of its work in Washington.
As the chairman explained at the outset, you have two very
distinct pieces of legislation before you today. CPR would like
to make five points about these legislative proposals and their
potential impact on environmental protection.
Point one, elevation is far less therapy than this gravely
patient really needs. There is a broad-based consensus among
the Agency's major constituencies that it should be elevated to
Cabinet status, and CPR agrees with that view. However, at this
juncture, elevation has the flavor of fiddling while Rome
burns. Opponents have laid siege to the Agency which just lost
Governor Whitman. A range of deregulatory initiatives imposed
by the White House have undercut its daily work more
drastically than at any point in the last 15 years. A ceremony
in the Rose Garden celebrating its Cabinet status would convey
a profoundly misleading impression about its stability and
effectiveness.
Beginning with broken promises at Kyoto, this
administration has pursued a series of initiatives designed to
roll back protections established by Presidents on a bipartisan
basis over three decades. Among the most troubling are those
that undermine the work of the President's father who led
Congress to pass the 1990 Clean Air Act amendments, among the
most comprehensive environmental initiatives ever to be enacted
in this country.
Meanwhile, the political appointee in charge of the Office
of Water has launched an expensive and time-consuming
initiative to eliminate Federal controls on pollution for 50 to
60 percent of streams and 20 percent of wetlands. Unless and
until the States pick up the slack left by EPA and the Army
Corps of Engineers' abrupt departure from the field, these vast
and irreplaceable natural resources could be polluted, drained,
or filled in by industrial dischargers, real estate developers,
and sewage treatment plants.
Point two, clean bill, or proverbial Christmas tree? Many
of the EPA's critics, especially on the business side of the
spectrum, have grown extremely frustrated by their inability to
persuade Congress to undertake radical surgery on its core
authorizing statutes. Efforts to impose similarly radical
changes in the form of generic across-the-board regulatory
reform have also failed. You will face a great deal of pressure
to load the Cabinet bill up with yet another series of reform
measures. This approach is likely to, and without a doubt
should, doom passage. The only democratic and sufficiently
transparent way to accomplish such reform is to undertake the
difficult debates that are necessary to determine how much and
how fast we will protect our air, our water, and our land, as
well as the condition of the environmental legacy we will leave
to our children.
Point three, this bill represents an unreasonable risk of
undermining democracy. Perhaps as a reflection of the pressure
to reform EPA through Cabinet elevation legislation rather than
the normal legislative process, H.R. 2138 would define EPA's
mission as protecting the public from unreasonable
environmental risks. This standard is borrowed from the Toxic
Substances Control Act, the least effective and least
protective of all the statutes that EPA administers.
There are more details in my testimony about the impact of
the Fifth Circuit's decision in Corrosion Proof Fittings versus
EPA, which has basically crippled the Agency's effort to deal
with asbestos which continues to plague the health of many
Americans.
Point four, reorganizing into more bureaucracy and less
enforcement. The reorganization plan fragments EPA's core
regulatory missions and creates a new layer of bureaucracy that
will further congeal proactive efforts to enforce the law. The
draining task of implementing this plan will cost EPA at least
2 years of progress on other aspects of its mission as
positions in policymaking jurisdiction are shuffled and turf
wars are fought.
Point five, environmental statistics and the States.
Interestingly, I did not read today's front page Washington
Post story as supporting the idea that we don't have enough
data to decide what to do. In fact, what that story said was
that one-quarter of major dischargers of pollution into the
Nation's surface waters are routinely violating the Clean Water
Act. We have data; we just are not doing anything about it.
I appreciate the opportunity to testify.
Mr. Ose. Thank you, Ms. Steinzor.
[The prepared statement of Ms. Steinzor follows:]
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Mr. Ose. All right. We are going to go to questions now.
The way this works is that I have a number of questions that I
need to get through here, and we will go left to right and
right to left and left to right and right to left. If someone
has something they want to offer, we have plenty of time. I am
sure my colleagues up here will give me plenty of time to go to
everybody. So we will just go forward. I do appreciate
everybody's succinctness in summarizing their testimony.
In the last Congress this subcommittee heard testimony
regarding problems with EPA's operations, its science, its
effectiveness of its regulations, its impact on the regulated
community, its regional offices, its program offices, its lack
of cross-media research, etc. The sum and substance of that was
that many believe that, after 30 years of seeking piecemeal
improvements, EPA needs to be reformed.
Dr. Portney, we will start with you. Should Congress make
reforms to EPA's organizational structure? And, is it
appropriate to do it concurrent with the elevation to Cabinet-
level status?
Dr. Portney. Mr. Chairman, I think that there are respects
in which EPA's operation can certainly be improved.
I guess I would answer your question this way: If the
reorganization that this legislation proposes becomes the
overwhelming impediment to elevating EPA to Cabinet status and
to creating a Bureau of Environmental Statistics, then I would
be inclined to say that I would be happy to move a cleaner bill
that incorporates the Bureau of Environmental Statistics and
not run the risk of compromising what you have proposed,
elevation and the creation of a Bureau that I think is
overwhelmingly in the best interest of the public.
Mr. Ose. So your de minimus standard is, at least, the
Bureau of Environmental Statistics?
Dr. Portney. To me, that is the most important part of the
legislation that you have introduced. Yes, sir.
Mr. Ose. OK. Dr. Gray, the same question.
Dr. Gray. I really see a change like this as an
opportunity, and I think that this may be the time to take the
opportunity to try to address many of the pathologies of
decisionmaking in EPA that have been identified by this
committee in the past. I don't think we should waste it.
And, it would be important--I share Dr. Portney's view that
the Bureau of Environmental Statistics is extremely important
to us, and I think that elevation is extremely important, but I
think we should be very careful not to waste an opportunity,
because it would be very difficult to do this under other
circumstances. Don't waste the opportunity to address many of
the problems that you've identified.
Mr. Ose. So you would prefer to make structual changes as
opposed to de minimus changes providing for at least the Bureau
of Environmental Statistics?
Dr. Gray. I think that would be my preference, yes.
Mr. Ose. OK. Dr. Hayward.
Dr. Hayward. Well, I don't have much expertise in
administrative organization. But as I look at your two
organizational charts over there, the one in the poster, if
that really reflects the way 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.
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Mr. Ose. Professor Steinzor, on page 4 of your written
testimony, you have four suggestions for reforming science at
EPA, including removing peer review panelists with ties to
regulatory outcomes, prohibiting research contracts limiting
adverse results and requiring full disclosure of all data,
science, and techniques submitted by industry and, fourth,
requiring more balanced peer review.
Do you have legislative language implementing these four
suggestions?
Ms. Steinzor. I don't have legislative language. CPR
believes these issues are very important to pursue, but again,
would do it outside the context of the Cabinet-elevation bill.
Mr. Ose. Could we send you a followup question in writing
to get some feedback on that?
Ms. Steinzor. Certainly. I would be delighted by that
opportunity.
Mr. Ose. All right. I appreciate that.
Now, relative to these four suggestions by Professor
Steinzor, do any of the other members of this panel have
suggestions, observations? I don't know if you have seen her
testimony or not.
Dr. Gray, have you had a chance to look at it?
Dr. Gray. I haven't. All I would suggest is that peer
review is important. We want to encourage peer review and we
want it to be credible, and I think that anything that
increases the level of disclosure in that peer review is very
important. I think we have to make sure that we keep peer
review focused on expertise, but within that world, I think
more disclosure of potential conflicts of interest and other
sorts of things is very important.
Mr. Ose. Let's examine that for a minute. With respect to
my business career, I had everybody telling me that I should
have done something differently and they could have done it
better. Let's examine for a moment what the purpose of peer
review is and how you get it.
The EPA's Inspector General in November 2002 noted that
critical science supporting their rules was often not peer
reviewed by an independent body, and that caused some
uncertainty relative to the quality of the science supporting a
rule.
Now, tell me how the peer review thing works.
Dr. Portney, how does peer review work in this process,
from your perspective? What is your experience with it?
Dr. Portney. Well, I have had both favorable and
unfavorable experiences with peer review in the sense that I
have done research which has been turned down when I have sent
it to a 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:]
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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:]
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Mr. Ose. I would like now to recognize my good friend and
colleague, Mr. Tierney, for the purpose of an opening
statement.
Mr. Tierney. Thank you, Mr. Chairman, and just to share
with the two witnesses here, the big words on that is ``small
opening.'' I am glad we didn't have to sit through the big
opening.
Thank you, Mr. Chairman, for conducting this hearing on an
issue of great importance, I think, elevating the EPA to
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:]
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Mr. Ose. As many of you know that have appeared before this
committee, we routinely swear in our witnesses. I want to make
sure I welcome them. We have two panels today. Our first panel,
we are joined by representatives of the administration. We have
Chairman James Connaughton from the Council on Environmental
Quality. And we have the Acting Administrator for the
Environmental Protection Agency, Ms. Marianne Horinko. And I
welcome you both. And in line with our tradition here, if you
would please rise.
[Witnesses sworn.]
Mr. Ose. Let the record show that the witnesses answered in
the affirmative. And with that, we are pleased to welcome back
to our forum Mr. James Connaughton, chairman of the Council on
Environmental Quality. Mr. Connaughton, you are recognized for
5 minutes.
STATEMENTS OF JAMES L. CONNAUGHTON, CHAIRMAN, COUNCIL ON
ENVIRONMENTAL QUALITY; AND MARIANNE L. HORINKO, ACTING
ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY
Mr. Connaughton. Thank you, Mr. Chairman, Mr. Tierney, and
other members of the subcommittee. I am pleased to be here
again before the subcommittee to discuss the Bush
administration's support for elevating the U.S. Environmental
Protection Agency to a Cabinet department. I am very pleased to
share this panel with my good friend and colleague, Acting EPA
Administrator Marianne Horinko.
In its short history, the U.S. Environmental Protection
Agency has a long record of accomplishments. It is because of
these accomplishments environmental quality in the United
States has vastly improved.
Improved air quality is one of our Nation's greatest
environmental successes. Air pollutants have been reduced by
almost 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:]
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Mr. Ose. The Chair is pleased to recognize the Acting
Administrator for the Environmental Protection Agency who has
joined us I believe for the first time today. Ms. Horinko, you
are welcome here.
Ms. Horinko. Mr. Chairman, thank you. Good afternoon. I am
very pleased to appear before the subcommittee as Acting
Administrator on so important an issue to the Agency, the
elevation of EPA to a Cabinet department. And I am also pleased
to have the opportunity to appear here today with Jim. I plan
to give a brief oral statement and submit my longer testimony
for the record.
Since its creation by President Richard Nixon more than 30
years ago, EPA has worked diligently to fulfill its mission to
protect human health and safeguard the natural environment. To
that end, EPA has changed and adapted to address the challenges
associated with new environmental laws as they were passed by
Congress. EPA's role is defined as well by increased public
awareness and the expectation that our health and environment
will be protected. That strategy has led to the need for an
emphasis on the use of sound science as well as dependence on
the public trust.
Today EPA faces more challenges than ever before to protect
human health and the environment, and as a means to help the
Agency face these challenges, the time has come to establish
EPA as a permanent member of the President's Cabinet. Elevating
EPA to Cabinet status is not a new idea. There are more than a
dozen bills introduced in Congress to elevate EPA to Cabinet
status since 1988. Former President Bush was the first
President to support Cabinet status for EPA, a decision then
followed by President Clinton and current President George W.
Bush.
I want to thank Chairman Ose and other Members of Congress,
including Chairman Sherwood Boehlert, for introducing
legislation to elevate EPA to Cabinet status and for their
continued support of the Agency.
I would like to touch briefly on some of the issues
addressed by H.R. 2138, the Department of Environmental
Protection Act. The principal goal of the bill to elevate EPA
to Cabinet status and promote greater performance and
efficiency at the Agency is certainly a goal that we share. I
am concerned, however, that the consensus developing for
elevation of EPA could be fractured by contentious debate over
the details of a statutory EPA restructuring plan.
The bill's goal to improve the use and application of
science at EPA is a sound one with the creation of an Under
Secretary of Science and the consolidation of science
activities under one office, changes that merit further
discussion. We do believe, however, that the information
management function should be separated from the science
organizational structure, as mandated by the 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:]
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Mr. Ose. I want to make sure I understand something before
we start. It is my understanding that President George Herbert
Walker Bush, President Clinton, and President George W. Bush
all consider from a practical standpoint or operating
standpoint that EPA is part of their Cabinet already; is that
accurate?
Ms. Horinko. That is indeed accurate.
Mr. Ose. So you are attending the Cabinet meetings as
Acting Administrator anyway.
Ms. Horinko. And in fact have the privilege of sitting at
the table with the other Cabinet members.
Mr. Ose. At the table. In reality you are there now.
Ms. Horinko. [Nods affirmatively.]
Mr. Ose. The second question I have--and I appreciate both
of your responses--I have been very careful in drafting this
legislation to keep any change from a policy standpoint out.
This is strictly a management structure kind of thing. Have I
succeeded in that, Mr. Connaughton?
Mr. Connaughton. You have succeeded on focusing on
structural elements. We have comments and questions related to
those elements.
Mr. Ose. But on the policy side.
Mr. Connaughton. We were pleased to see in your bill this
year, Mr. Chairman, a strong effort to stay focused on the
structure elements, which, as I indicated in my oral comments,
when you elevate from an agency to a department, you do bring
in the opportunity to make sure that you got some of the key
pieces structurally in place so it can function as a department
on par with the other agencies. And I would note that most
other agencies do have a policy apparatus. The Department of
Transportation is one example I would give, Department of the
Interior is another, and your legislation has reflected that.
And different agencies, depending on their mission, do put a
strong prominence on the science function. So those are the
elements that we think have particularly well captured
equivalency with other Cabinet departments.
Mr. Ose. But you don't see anything in terms of any
amendments to the Clean Water Act, Clean Air Act, within the
legislation as drafted? Ms. Horinko, do you agree with that?
Ms. Horinko. I agree.
Mr. Ose. I want to make sure we get that on the record.
Section 7 of my bill outlines the duties of the Department's
Presidentially appointed and Senate-confirmed officers. One of
the more criticized functions of EPA is the quality of its
science. Both sides of the political spectrum claim, and I have
heard all the claims, that EPA does not use the best science in
support of its regulations. There is a section of my bill,
section 7(c), that establishes an Under Secretary for Science
and Information for the purpose of co-locating scientific
activities at EPA and to remove the regulatory science efforts
from the program offices.
Now, Mr. Connaughton, in your testimony you state that the
administration supports efforts to improve the organizational
structure of a new Cabinet department. Is it the
administration's position that Congress should institute
organizational reforms concurrent with Cabinet elevation?
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:]
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Mr. Ose. Our next witness is Howard Roitman.
Sir, you're recognized for 5 minutes. Thank you for joining
us.
Mr. Roitman. Good afternoon, Mr. Chairman and distinguished
members. Thank you for the opportunity to testify on H.R. 37
and H.R. 2138 on EPA elevation to Cabinet status.
We conceptually support H.R. 2138 because it makes tangible
steps toward bringing our environmental laws into the 21st
century through the reorganization of EPA to strengthen science
and to provide more consistent policy direction and
implementation across the Agency.
Current laws were designed to resolve discrete problems
with air, land and water. This single media approach has been
effective in achieving environmental improvements but has
resulted in a fragmented patchwork of regulatory requirements
that makes it more difficult to address cross-media
environmental challenges.
So today we are at a crossroad. You have the opportunity to
provide direction for environmental programs to move in the
future. If we open one door, we continue a single media command
and control approach that often discourages innovation and
efficiency. This path will continue to require technology-based
controls without considering their cross-media impacts.
To illustrate our point, if the air program requires a
company to install a control device such as a wet gas scrubber,
it typically considers the percentage of air emissions
reduction. We don't consider the hazardous waste generated that
must be managed, the system that must be built to treat the
wastewater, the increased energy consumption which increases
air emissions, the increased water usage or any other increase
in natural resources consumed. Instead, the program simply
considers the scrubber can control 99 percent of the sulfur
dioxide emissions out of a stack.
In the alternative, the company could use a catalyst
additive that once spent or used is purchased by a cement
manufacturer which uses it as product in place of mining
additional limestone, thus avoiding an environmental impact.
The catalyst does not generate wastewater, nor does it use as
much energy or water. The catalyst will control 95 percent of
the stack emissions.
We call this approach the environmental balance sheet in
making environmental decisions where we consider the full
environmental costs and benefits of all the options. This
approach is discouraged and at times not allowed under the
current system due to significant institutional policy and
regulatory barriers.
The current path drives companies' environmental staff to
be paper pushers instead of environmental problem solvers.
Companies spend an inordinate amount of time and resources
providing information.
In our experience, the environmental professional in this
country is one of the most underutilized resources in our
companies. This person can be a profit center for the company,
driving ideas for greater efficiencies, reduced costs and
better environmental benefit if given the tools and flexibility
to do so.
So what is the alternative? It would require agencies to
make environmental decisions considering the environmental
balance sheet. This approach allows companies to select the
most efficient approach such as preventing pollution,
engineering the use of toxics out of products and designing
products that have no waste stream. To pursue this direction
requires better information to use when making decisions. This
is why the creation of a Bureau of Environmental Statistics is
important.
Agencies will be required to continually assess, using data
and science, the greatest environmental issues that need to be
addressed and whether the current programs are successful. This
will not only encourage but make essential to success
innovative approaches. It will also ensure that we have
identified the real problem, the causes behind it and allow us
to evaluate the alternatives.
This path has several benefits. First, it will require EPA
to consider the full impact of its decisions. It will encourage
innovative programs and ideas to be embraced by the Agency. It
will garner even more significant environmental benefits; and,
finally, it will encourage companies to search for the most
efficient approach to reducing environmental impacts.
Colorado is currently implementing this approach, but it
isn't easy. One of the barriers that we have to ensure against
is different approaches and interpretations taken by different
offices of EPA. In the past, we have found differences among
the program offices, between regions and headquarters, and
among regions. What we are looking for is a Federal system that
requires cross-media approaches and encourages and integrates
innovations across the board. The goals of the system would be
to collect better data and use it to make environmental
decisions.
Thank you for your time and attention. I would appreciate
the opportunity to supplement this testimony. I'll be pleased
to take any questions you may have.
Mr. Ose. I thank the gentleman.
[The prepared statement of Mr. Roitman follows:]
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Mr. Ose. Our next witness is Dr. Ronald Hammerschmidt. He
is the director of the Division of Environment for the Kansas
Department of Health and Environment.
Sir, welcome. You're recognized for 5 minutes.
Mr. Hammerschmidt. Thank you, Mr. Chairman. I am glad to be
here today to speak on the two proposals under consideration.
My professional experience is that of both laboratory
chemist and environmental professional, and I have spent time
in both the laboratory and office in policymaking in my 23
years with the Department.
We like many other agencies have a love-hate relationship
with EPA. We work together. We depend on EPA to provide us with
a significant source of funding, and we always receive
direction on our programs, either in the form of guidance,
regulation or sometimes under the guise of partnership. Many of
our programs are joint programs such as that to protect the
safe drinking water in the State. There are even times when
State programs may have even actually progressed beyond those
of EPA; and as is the case in Kansas, we've been in the
regulatory business for confined animal feeding operations for
a long time and feel that EPA is finally catching up to us.
We have many frustrations in dealing with EPA. They include
slow decisionmaking, a lack of understanding of State programs
and their challenges, rigid approaches to problem solving and
inconsistent guidance between regions.
For me personally, one of the bigger frustrations is the
amount of time it takes for EPA to deal with Kansas's multiple
water quality regulations. The net result of this has been
numerous lawsuits have been filed against us and Region VII
which don't make us any better in protecting water quality but
do take a significant amount of time.
There are decisionmaking processes within EPA that we can
cite that we have experienced with multiple interpretations of
the same guidance among various regions. Something that we may
enforce in Region VII may not necessarily be even accepted in
Region VIII or enforced in Region VIII.
In addition, regional managers must routinely confer with
EPA headquarters, and they may or may not receive a response or
authority to move ahead on an issue.
States have a need for scientific support for our
decisionmaking processes. We are often asked by our State
legislators and policymakers, what's the scientific and
technical basis for what you're trying to do? We need both
science, data and information. Unfortunately, there are cases
when this is lacking.
The creation of an independent structure charged with
science and information is an excellent proposal. We need
quality science in all aspects of environmental protection.
Although I avoid the use of the word ``good'' science, we do
need rigorous peer-reviewed science, and we also need to
convert a great deal of that statistical data into information
that our citizens can understand and that we can use. I see the
creation of a Bureau of Environmental Statistics as a very,
very positive step.
In addition, the administrators, managers and staff of
EPA--and 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:]
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Mr. Ose. Now, as we discussed, we're going to go all the
way over to Mr. Guzy who joins us. He is here. He has
previously served two decades in practicing environmental law.
He had the privilege of serving as the EPA General Counsel
during the prior administration. He has practiced in the
private sector, and he's represented EPA during his tenure at
the Department of Justice.
Sir, you're welcome. You have 5 minutes.
Mr. Guzy. Thank you, Mr. Chairman, Mr. Tierney and members
of the committee for today's invitation. I commend the chairman
for his continued leadership in addressing this very important
issue.
Former Administrator Reilly described EPA as ``uniquely the
environmental overseer, watchdog and point of reference
regarding the status, needs and problems of ecology and
environmental health in America,'' surely a Cabinet-level role.
I urge the committee to seize the current opportunity once
and for all to elevate the Agency, but this will only happen if
the implementing legislation is straightforward and
unencumbered by limitations on EPA's authority.
H.R. 37, introduced by Congressman Boehlert, meets this
test. H.R. 2138, in my view, unfortunately does not.
The history of efforts to elevate EPA could not be clearer.
Time and again these efforts have stalled because an
unencumbered approach became laden by controversial concerns.
Please let's not make the same mistake again.
EPA's charter must remain fluid and nimble to respond to a
future that is impossible to predict. When I first came to EPA
in 1994, its Web sites received approximately 100,000 hits per
year, and today they receive over 125 million hits per month.
What a change in just a few years.
H.R. 2138's mission statement, limited to some vague notion
of unreasonable risk, is unfortunately value laden, potentially
too rigid, at odds in spirit with individual statutes and
certainly will be controversial.
Would the new Department even be able to pursue under this
standard some of the very areas of focus now recommended by
NAPA, the National Academy of Public Administration, such as
addressing climate change and nonpoint source pollution, their
top priorities? If Congress wants to change the standards for
protecting our air, our water or our land, it should have that
debate in the context of the individual legislation and not
under the guise of changing the Agency's name.
On science, I urge you to be cautious when you hear sound
science as a justification for change. In the late 1990's,
during my tenure at the Agency, the poster child for bad
science repeatedly cited by Congress and industry was EPA's
association of elevated fine particles and premature deaths.
These criticisms at the time ignored the extensive peer review
that had occurred both outside and inside the Agency, and since
then these criticisms have been discredited by an independent
review body, by ample newly developed peer-reviewed science and
even through the crucible of litigation all the way to the
Supreme Court, where EPA received a unanimous victory.
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:]
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Mr. Ose. Mr. Elliott, thank you for your patience. You're
recognized for 5 minutes.
Mr. Elliott. Thank you, Mr. Chairman.
I agree with my colleagues that it's important to elevate
EPA to Cabinet status. I do disagree with my good friend Gary
Guzy. I support the chairman's bill primarily because of its
provisions to upgrade the role of science at EPA and make other
important organizational improvements.
After 20 years of study of the Agency as an academic, I am
convinced that the single most important thing we could do to
improve the Agency is to create a high-level advocate for
science at the highest reaches of the Agency. I can't improve
on the report by a distinguished committee of the National
Academy of Sciences in 2000 which said, ``Just as the advice of
the Agency's legal counsel is relied upon by the Administrator
to determine whether a proposal is legal, an appropriately
qualified and empowered science official is needed to attest to
the Administrator and the Nation that proposed action is
scientific.''
As I reflect upon my own experiences at EPA as General
Counsel, I believe that scientific considerations were,
unfortunately, conspicuous by their absence from the high-level
dialog at the Agency. This situation has gotten worse rather
than better in subsequent administrations.
I respectfully disagree with my friends such as Gary Guzy
who think that any kind of changes in Cabinet status
legislation will make it unenactable. I think that is a
demonstrably mistaken theory that has been really discredited
by history. We've had a number of simple elevation bills in the
past but they have not been enacted essentially for political
reasons. I hope that this time, for a variety of reasons, it
will be possible to elevate EPA to Cabinet status. I think the
true test is the one that Jim Connaughton articulated, and that
is that Cabinet status legislation should be limited to truly
organizational or structural issues such as creating an Under
Secretary for Science, but there's plenty of room to do that,
and it would be an important reform.
The problem in my experience is the triumph of politics at
EPA. It's not that EPA lacks scientific information but rather
there is a reality or a perception that decisions are based on
politics rather than on science. This is a bipartisan disease.
We can have abuses and ignoring of science either of the right
or of the left.
Adam Smith, the great political philosopher and founder of
economics, once wrote, ``Science is the great antidote to the
poison of enthusiasm and superstition.'' He should have written
that it is a bipartisan antidote, and science is an antidote
for the superstitions and enthusiasms of either the right or
the left.
In my view, the problem is that we don't have a high-level
advocate for science at the top councils of the Agency, and I
hope that the committee and the Congress and the Nation will
seize this historic opportunity to strengthen the voice of
science at EPA.
I thank the committee; and Congressman Shays in particular
from my home State of Connecticut. It is a pleasure to be
testifying in front of you as well.
Thank you very much, and I'd ask that my written statement
be made part of the record.
Mr. Ose. Without objection. The Chair thanks the gentleman.
[The prepared statement of Mr. Elliott follows:]
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Mr. Ose. Dr. Moghissi, welcome. Thank you for your
patience. You're recognized for 5 minutes.
Mr. Moghissi. It appears to me that the three former EPA
people have been lumped together and, as usual, we all don't
agree.
My perspective is as a former principal----
Mr. Ose. Dr. Moghissi, if you could just take the throat of
the mic, the little extender, and straighten it. The mic is
like this. Take it and go like that. There you go.
Mr. Moghissi. Here we go.
Mr. Ose. We need an attorney for some useful purpose. We
welcome you, Dr. Moghissi.
Mr. Moghissi. I won't tell my joke on attorneys. I'll leave
it for a later date.
My perspective is as a charter member of the Environmental
Protection Agency, as a former principal science adviser for
radiation hazardous materials, as an academic administrator--I
was assistant vice president of University of Maryland and
associate vice president at Temple University and as a
professor at various universities. I'm a scientist. I'm not a
lawyer. I'm not a politician.
Let me briefly say what led to the decision to support the
bill under consideration. We at the Institute for Regulatory
Science are dedicated to the idea of best available science,
and my statement includes details of what constitutes best
available science, and I would appreciate if it's made part of
the record.
Mr. Ose. Without objection.
Mr. Moghissi. My frustration started when I arrived in
Washington as a principal science adviser in 1977, worked in
the various work groups and recognized how the regulations were
written. I was extremely frustrated at that time when I talked
about regulatory science, it was considered a joke, these are
contradictory terms.
Now, we are in the process--we have two studies in
progress. The reason I'm bringing them up is because my
conclusions are derived from those two studies. One, the study
of science at the EPA--with all due fairness to my friend on
this side on the EPA's science. There's a large consensus
within the scientific community that the EPA's scientific--the
scientific foundation of EPA's regulations is largely poor.
I have come to the conclusion, as my friend on the right
side has come, that the inclusion of politics--I call it
ideology--is responsible for the poor science. I believe, like
he does, that the EPA scientists, my former colleagues, are
outstanding like other scientists are, but I believe the
management has done some damage to it.
The second study deals with the objective of environmental
laws. Our preliminary study indicates that the objective
overwhelmingly is the protection of the human health, and the
human welfare is secondary to it. The reason we worry about
ecology is because ecology can produce products that aren't fit
for human consumption.
Now, if I may be permitted, I have some of my friends who
heard that I'm supporting the bill--they have contacted me and
tell me how could I do that? It is simple. In my judgment, if
the EPA is forced to rely upon independent peer review--and the
operative word is independent--then the cost of the operation
of the EPA, even with the addition of the Under Secretary of
Science, even with the addition of the Bureau of Environmental
Statistics, will be reduced rather than increased. I would be
happy to elaborate why I believe that.
Second, I would appreciate it if a sentence in my
testimony--the written testimony is slightly modified. The
section, ``What is best available science,'' the first sentence
under ``Science versus non-scientific objectives,'' it should
read, ``There is ample evidence indicating that the intrusion
of nonscientific objectives would jeopardize the objectivity
and consequently the acceptability of scientific information.''
Let me go now and suggest--I will use my all diplomatic
skills and suggest that the H.R. 37 should not be considered.
What is the point? The EPA, as the Administrator already said,
is already a member of the Cabinet. She participated in all the
Cabinet meetings. So why would anybody want to change it?
Passing a law with all the changes that need to be done simply
to change the name of an agency that is a Cabinet member
already to another Cabinet member? I don't see why maybe
scientists are not smart enough to know the reason for
something like that.
Now, I'm strongly recommending that the word environment in
the bill be defined--and I have a definition. ``Environment
means humans, other living things and environmental media.''
Environmental media are already defined. Because of the study,
as I described, it would meet the objective of the bill.
Second, I'm recommending that the Peer Review Team be
renamed to Peer Review Oversight Team and will be given the
responsibility to oversee the peer review activities of the
Department of Environmental Protection by appointing specific
panels. And I would be happy to elaborate on that.
Thank you very much, sir.
Mr. Ose. Thank you, Dr. Moghissi.
[The prepared statement of Mr. Moghissi follows:]
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Mr. Ose. Now, this is our fifth hearing on this concept of
elevation of the EPA. In our June 6th hearing, this committee
heard testimony regarding problems with EPA's operations and
science, with the effectiveness of its regulations and its
impact on the regulated community, with problems States have
with EPA's regional and program offices, with the lack of
cross-media research, in addition to a number of other issues.
The sum and substance of that was that many of our witnesses
believe that, after 30 years of what they describe as seeking
piecemeal improvements, EPA needs to be reformed structurally.
I'm going to go from my left to my right here. Mr. Chisum,
should Congress make improvements to EPA's organizational
structure concurrent with its elevation?
Mr. Chisum. Absolutely. I think that Congress could
instruct EPA or the new Cabinet-level position to work more----
Mr. Ose. Move that microphone closer to you, if you would,
please, because we bought a whole bunch of new mics. So
everybody gets one.
Mr. Chisum. Absolutely, Mr. Chairman.
I believe that the EPA could work closer with the States on
new innovative programs in a way to comply with the EPA's
mandated policies, and I think that could be written into the
legislation and be a great assistance to the State in meeting
the requirements under EPA.
Mr. Ose. Mr. Roitman.
Mr. Roitman. I think there's no question that there are
structural improvements that could address a lot of the
concerns that you raised and that we also echo. I think the
challenge is going to be how to best integrate those goals
across whatever organizational structure Congress ends up
enacting, because--say, with the regions, which is where we
have our most direct impact, it's important that they have--
they're coordinated across the functional areas that you've
addressed here so that, whatever the structure is, I think it's
going to be important to have ways into the process from the
policy and innovation part, from the science part as well as
from the implementation part.
Mr. Ose. Dr. Hammerschmidt, should Congress make
improvements to EPA's organizational structure concurrent with
elevation?
Mr. Hammerschmidt. As usual, I find myself in agreement
with my neighbor, Mr. Roitman. The short answer is yes, and I
think we need to focus from our concern as States on science
and the ability for us to work across all portions of the
Agency.
Mr. Ose. Mr. Elliott.
Mr. Elliott. Yes, I would agree that's a very appropriate
role for Congress.
I'd go even farther. If you think about it, there are very
few other ways that the culture of an existing agency like EPA
can be changed to become more scientific other than types of
organizational reforms you're talking about. So I think it's
crucial that the Congress assume that responsibility; and when
you study the field, there are very, very few other things that
can be done to change the culture of an agency other than the
type of organizational changes you're talking about. So I think
it's very important.
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.
[Whereupon, at 4:20 p.m., the subcommittee was adjourned.]
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