[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



  EPA'S PARTICULATE MATTER AND OZONE RULEMAKING: IS EPA ABOVE THE LAW?

=======================================================================

                                HEARINGS

                               before the

               SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
               NATURAL RESOURCES, AND REGULATORY AFFAIRS

                                 of the

                        COMMITTEE ON GOVERNMENT
                          REFORM AND OVERSIGHT
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                         APRIL 16 AND 23, 1997

                               __________

                           Serial No. 105-37

                               __________

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


43-516              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
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              COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois          TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland       ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico            EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida         GARY A. CONDIT, California
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEPHEN HORN, California             THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida                ELEANOR HOLMES NORTON, Washington, 
THOMAS M. DAVIS, Virginia                DC
DAVID M. McINTOSH, Indiana           CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana              TIM HOLDEN, Pennsylvania \1\
JOE SCARBOROUGH, Florida             ELIJAH E. CUMMINGS, Maryland
JOHN B. SHADEGG, Arizona             DENNIS J. KUCINICH, Ohio
STEVEN C. LaTOURETTE, Ohio           ROD R. BLAGOJEVICH, Illinois
MARSHALL ``MARK'' SANFORD, South     DANNY K. DAVIS, Illinois
    Carolina                         JOHN F. TIERNEY, Massachusetts
JOHN E. SUNUNU, New Hampshire        JIM TURNER, Texas
PETE SESSIONS, Texas                 THOMAS H. ALLEN, Maine
MICHAEL PAPPAS, New Jersey           HAROLD E. FORD, Tennessee \2\
VINCE SNOWBARGER, Kansas                         ------
BOB BARR, Georgia                    BERNARD SANDERS, Vermont 
ROB PORTMAN, Ohio                        (Independent)

----------
\1\ Resigned from committee on April 17, 1997.
\2\ Assigned to committee on April 17, 1997.
                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                       Judith McCoy, Chief Clerk
                 Phil Schiliro, Minority Staff Director

   Subcommittee on National Economic Growth, Natural Resources, and 
                           Regulatory Affairs

                   DAVID MCINTOSH, Indiana, Chairman
JOHN E. SUNUNU,                      BERNARD SANDERS, Vermont
J. DENNIS HASTERT, Illinois          JOHN F. TIERNEY, Massachusetts
JOE SCARBOROUGH, Florida             JIM TURNER, Texas
JOHN B. SHADEGG, Arizona             PAUL E. KANJORSKI, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           GARY A. CONDIT, California
VINCE SNOWBARGER, Kansas             DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    CHAKA FATTAH, Pennsylvania
------ ------

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
                     Mildred Webber, Staff Director
                Karen Barnes, Professional Staff Member
                           Cindi Stamm, Clerk
                  Phil Barnett, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    April 16, 1997...............................................     1
    April 23, 1997...............................................   303
Statement of:
    Brodsky, Richard, New York State Assemblyman.................   187
    Browner, Carol, Administrator, U.S. Environmental Protection 
      Agency, accompanied by Mary D. Nichols, Assistant 
      Administrator, Air and Radiation; and Jonathan Cannon, 
      general counsel............................................   357
    Cannon, John, general counsel, U.S. Environmental Protection 
      Agency.....................................................   478
    Congress, Fred, president, Congress Enterprises..............    71
    Glover, Jere, Chief Counsel for Advocacy, U.S. Small Business 
      Administration.............................................   462
    Golding, Susan, mayor of San Diego, CA.......................   113
    Grande, Christopher, M.D., executive director, International 
      Trauma Anesthesiology and Critical Care Society............    62
    Katzen, Sally, Administrator, Office of Information and 
      Regulatory Affairs, Office of Management and Budget........   454
    Kline, Faith, school teacher, fourth grade, Philadelphia, PA.    51
    Monk, Frances, mayor of Port Neches, TX......................   139
    Munzer, Alfred, past president, American Lung Association....    73
    Russman, Richard, New Hampshire State Senator................   195
    Schlesinger, William, professor, Duke University; and Bruce 
      Bertelsen, executive director, Manufacturers of Emissions 
      Controls Association.......................................   274
    Schoenberg, Jeffrey, Illinois State Representative...........   128
    Voinovich, George, Governor of Ohio..........................   102
    Wade, Mike, almond farmer, Atwater, CA.......................    53
Letters, statements, etc., submitted for the record by:
    Barr, Hon. Bob, a Representative in Congress from the State 
      of Georgia:
        Petition.................................................   424
        Roll Call article of April 21, 1997......................   422
    Bertelsen, Bruce, executive director, Manufacturers of 
      Emissions Controls Association, prepared statement of......   284
    Brodsky, Richard, New York State Assemblyman, prepared 
      statement of...............................................   190
    Browner, Carol, Administrator, U.S. Environmental Protection 
      Agency, prepared statement of..............................   360
    Condit, Hon. Gary A., a Representative in Congress from the 
      State of California, prepared statement of.................    46
    Glover, Jere, Chief Counsel for Advocacy, U.S. Small Business 
      Administration, prepared statement of......................   465
    Golding, Susan, mayor of San Diego, CA, prepared statement of   116
    Grande, Christopher, M.D., executive director, International 
      Trauma Anesthesiology and Critical Care Society, prepared 
      statement of...............................................    66
    Kanjorski, Hon. Paul E., a Representative in Congress from 
      the State of Pennsylvania, prepared statement of...........   349
    Katzen, Sally, Administrator, Office of Information and 
      Regulatory Affairs, Office of Management and Budget, 
      prepared statement of......................................   457
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, study from the California Senate Office 
      of Research................................................   261
    McIntosh, Hon. David M., a Representative in Congress from 
      the State of Indiana:
        Article entitled, ``New Attack on Asthma: Doctors Now 
          Recommend Early Aggressive Treatment''.................    88
        Commissioner Henry Henderson's testimony.................   249
        Letter dated January 31, 1997 from Ms. Browner...........   453
        OMB supplied documents...................................   296
        Prepared statement of....................................   306
        Prepared statement of Dr. George Wolff...................     3
        Senate Congressional Record dated March 20, 1997.........   491
        Testimony of Governor Engler and Governor Sunquist.......   288
    Monk, Frances, mayor of Port Neches, TX, prepared statement 
      of.........................................................   142
    Munzer, Alfred, past president, American Lung Association, 
      prepared statement of......................................    75
    Russman, Richard, New Hampshire State Senator, prepared 
      statement of...............................................   197
    Sanders, Hon. Bernard, a Representative in Congress from the 
      State of Vermont:
        April 21, 1997, article in Roll Call by Henry A. Waxman..   451
        March 2, 1997, article from the Cleveland Plain Dealer...   240
        Non-monetized benefit categories.........................   242
    Schlesinger, William, professor, Duke University, prepared 
      statement of...............................................   277
    Schoenberg, Jeffrey, Illinois State Representative, prepared 
      statement of...............................................   132
    Snowbarger, Hon. Vince, a Representative in Congress from the 
      State of Kansas, comments provided by the Kansas Department 
      of Health and Environment..................................   312
    Sununu, Hon. John E., a Representative in Congress from the 
      State of New Hampshire, prepared statement of..............    41
    Voinovich, George, Governor of Ohio:
        Information concerning impact that international trade 
          has had on Ohio........................................   265
        Prepared statement of....................................   106
    Wade, Mike, almond farmer, Atwater, CA, prepared statement of    55
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California:
        Excerpt from CASAC's closure letters.....................    98
        Information concerning experts urging President Clinton 
          to go with EPA's proposal..............................   204
        Prepared statements of................................. 49, 355

 
  EPA'S PARTICULATE MATTER AND OZONE RULEMAKING: IS EPA ABOVE THE LAW?

                              ----------                              


                       WEDNESDAY, APRIL 16, 1997

                  House of Representatives,
 Subcommittee on National Economic Growth, Natural 
                 Resources, and Regulatory Affairs,
              Committee on Government Reform and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:45 a.m., in 
room 2154, Rayburn House Office Building, Hon. David McIntosh 
(chairman of the subcommittee) presiding.
    Present: Representatives McIntosh, Sununu, Scarborough, 
Snowbarger, Sanders, Tierney, Turner, Condit, and Kucinich.
    Ex officio present: Representatives Burton and Waxman.
    Staff present: Mildred Webber, staff director; Todd 
Gaziano, chief counsel; J. Keith Ausbrook and Larisa 
Dobriansky, senior counsels; Karen Barnes, professional staff 
member; Cindi Stamm, clerk; Phil Schiliro, minority staff 
director; Phil Barnett, minority chief counsel; Elizabeth 
Mundinger, minority counsel; and Ellen Rayner, minority chief 
clerk.
    Mr. McIntosh. The House Subcommittee on National Economic 
Growth, Natural Resources, and Regulatory Affairs will come to 
order. After consulting with Mr. Sanders, each side will have 
10 minutes of opening remarks that they can allocate however 
they wish, and then we'll proceed to our first panel of 
witnesses. On our side, I believe I'm the only Member with 
opening remarks, and so I'll proceed.
    The purpose of today's hearing is to determine whether EPA 
has engaged in an illegal rulemaking procedure to impose 
burdensome new standards for particulate matter and ozone. We 
also will hear from a variety of witnesses on what such an 
illegal rulemaking means for America. Let me be clear. A great 
deal has been reported on EPA's proposal that indicates that it 
is, in fact, an illegal rulemaking and that there may be a 
terrible price to pay in terms of human health if the Agency 
does not begin over and follow the law.
    Despite the grave implications of its proposals, EPA's 
rulemaking has several problems. It has violated the Regulatory 
Flexibility Act. The Agency refused to fully evaluate the 
impact of its proposed rules on small businesses, as required 
by the Regulatory Flexibility Act, despite an authoritative 
finding by the controlling legal authority at the Small 
Business Administration, that EPA is required to do so.
    EPA has violated the Unfunded Mandates Act. They refuse to 
fully evaluate the impact of its proposed rules on small 
businesses, as required by that act. The Agency also refused to 
adequately involve State and local officials in the development 
of new standards. Specifically, EPA refused to conduct a 
complete cost-benefit analysis or to select the most cost-
effective option among all the reasonable alternatives that 
achieve the objectives of the Clean Air Act.
    EPA has refused to validate the key studies on which the 
Agency is relying, by having the underlying data released for 
independent review. EPA appears to have collaborated with OMB 
to impose a gag order on other agencies' written concerns on 
the proposed rules. And EPA has refused to allow an adequate 
opportunity for public comment on its proposed rules or to 
allow an adequate opportunity for regulatory review under 
President Clinton's regulatory review Executive order. Not only 
has EPA refused to complete these required analyses, but the 
Agency has also ignored the scientific findings of its own 
Clean Air Act scientific advisory committee.
    While the Agency maintains that its standards must be 
health-based, EPA's own scientific experts, such as Dr. George 
Wolff, who testified before the Small Business Committee, have 
said that there is no scientific proof that the proposed rules 
will, indeed, improve public health. I ask unanimous consent 
that Dr. Wolff 's testimony be put into the record.
    [The prepared statement of Dr. Wolff follows:]

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    Mr. McIntosh. In contrast to the experts' warning that the 
proposed rules provide no benefit, there is strong reason to 
conclude that they will be harmful to effects to clean the air 
and the efforts to protect Americans' health. The end result 
will be the loss of hundreds of thousands of jobs and the 
degradation of human health--the exact opposite of EPA's stated 
objective.
    What are these alternatives to the illegal rulemaking? 
There are clearly better investments that can be made to 
promote public health. Eight billion dollars could save 3 to 4 
times as many women from breast cancer by paying for 
mammograms. And indeed, what we're seeing is that communities 
who are making progress today under the current standards will 
not know what they need to do to comply with the new standards. 
I'm deeply concerned that the proposed standards would work 
against the considerable progress that has been made to date, 
because of either the uncertainty that's created or because of 
years of litigation that may result in an invalidation of these 
procedurally flawed rules.
    Frankly, hundreds of new communities will be thrown out of 
compliance with the Clean Air Act. According to EPA, there are 
600 additional counties that will be in non-attainment, and 
many others that may be because of the lack of monitoring data. 
That would more than triple the number of areas where State and 
local officials will have to impose very onerous new control 
measures, even though there is no proof that the new standards 
can ever be met.
    The greatest burdens will fall on small businesses and 
communities that may be forced to require such measures as 
mandated car pooling and centralized emission inspections for 
family cars. And the rules may force new restrictions on the 
use of boats, lawn mowers, fireplaces, and even outdoor 
barbecues. New road construction projects may be delayed in 
these counties or halted altogether. Farming practices may be 
restricted. And urban sprawl would indeed increase.
    Well, let's look at some of these alternatives with what we 
could do with money that would be spent on this rulemaking. As 
I mentioned earlier, $8 billion could save 3 to 4 times as many 
women from breast cancer by paying for mammograms. Or we could 
pay for asthma research and the asthma medicine for all of the 
Nation's asthma sufferers, not just a fraction of one kind of 
asthma patients that EPA says may be helped by these 
ineffective rules.
    Our goal is to ensure that the process is not only lawful, 
but that it provides the best and most effective protection for 
public health and the environment. Let me explain what I mean 
by using the following hypothetical. Suppose your child were to 
become seriously ill, wouldn't you, as a parent, want the best 
possible understanding of the cause before your child undergoes 
surgery or treatment? You would want your doctor to perform all 
of the necessary tests for a sound diagnosis to determine the 
least intrusive procedure for curing your child.
    Before agreeing to surgery or radical treatment, you'd want 
to explore all other medical options and consider the risks and 
potential side effects of each one of them. We all know that 
the careless prescription of medicines without screening for 
allergies and drug interactions can indeed harm or even kill a 
patient instead of curing them. The care of our nation's public 
health requires nothing less then the same type of care needed 
to take care of our children.
    In sum, America cannot breathe easily until EPA has fully 
complied with the law. Only then can EPA determine how our 
scarce resources can be put to the greatest social good. EPA's 
proposed standards for particulate matter and ozone represent 
an irresponsible and, frankly, potentially illegal rush to 
judgment, which may undermine our Nation's efforts to clean the 
air. As Mayor Daley has stated, standards do not improve public 
health, clean air does.
    Thank you very much. Mr. Sanders, do you have an opening 
statement?
    Mr. Sanders. I do. And thank you very much, Mr. Chairman. 
Let me just begin by thanking you for holding this important 
hearing and also for making accommodations for Dr. Munzer to be 
on the first panel. As you know, this is, in fact, a 
controversial hearing, although not a partisan one. And I end 
up disagreeing with many of the assertions that you just made. 
But we'll discuss those later.
    I, for one, am, in fact, very pleased that the EPA has 
proposed stricter standards for ozone and fine particulates. 
Too many Americans, many of them young children in Vermont and, 
more importantly, in urban areas throughout this country, are 
suffering from asthma and other respiratory conditions caused 
or exacerbated by these pollutants. In fact, studies have shown 
that ozone levels typically below the current standard were 
linked to 29 percent of all respiratory hospital admissions.
    Ozone at levels below the current standard are causing 
asthma attacks and exacerbating allergies. Ozone at levels 
below the current standard are linked to measurable declines in 
lung function in children. Ozone at levels below the current 
standards cause inflammation of the upper airways of normal, 
healthy children. Healthy, exercising adults exposed to ozone 
at or below the current Federal standard experience 5 to 15 
percent decrease in lung function. And sensitive individuals 
suffered a debilitating 40 to 50 percent loss. Non-smoking men 
and women living in areas with relatively high levels of ozone 
and other air pollutants had approximately one-half to three-
quarters the lung function damage of a one-pack-a-day smoker.
    That is serious business. Similarly, studies of particulate 
matter show particulate air pollution is linked to hospital 
admissions for pneumonia, chronic obstructive pulmonary 
disease, heart attacks, angina and heart failure. In a study of 
1,850 school children, when particulate pollution was 
increased, all children suffered symptoms, even when the 
pollution was substantially below the current national danger 
standard.
    The average life span shortening resulting from exposure to 
particulates is in the order of 2 years. This is strong 
evidence that the time to act is now. Environmental degradation 
is becoming increasingly linked with health problems, like 
asthma, which are on the rise. When we know there is a link 
with a particular pollutant, we should use this knowledge to 
establish sound public policy. We have the chance here to 
prevent an estimated 15,000 deaths.
    We can give our children the chance to play outside on 
sunny days with fewer asthma attacks. And I think we should 
seize this opportunity. We have the obligation to protect the 
interests of the health of the American people, and especially 
our children.
    I have read that some critics feel that we need to do more 
research before setting these standards. More research is 
always a good idea. But it looks like we have enough at this 
time to set the proposed standards.
    The Clean Air Scientific Advisory Committee, otherwise 
known as CASAC, an independent review panel representing 
different parts of the scientific community, has reviewed 
thousands of studies over a 3-year period and overwhelmingly 
supports the standards proposed by the EPA. And I have no 
reason to believe anyone is concerned that the studies relied 
on were faulty. Let me quote from the closure letter from that 
panel:
    ``It was the consensus of the panel members that the 
criteria document provides an adequate review of the available 
scientific data and relevant studies of ozone. The document is 
quite comprehensive and will provide an adequate scientific 
basis for regulatory decisions on ozone based on available 
information.'' Further quote, ``It was the consensus of the 
panel that the ranges of concentrations and allowable 
exceedances proposed by the agency were appropriate.''
    Similarly, on particulate matter, the CASAC panel wrote, 
``With the incorporation of our suggested changes, the revised 
criteria document will be very comprehensive and will provide 
an adequate scientific basis for regulatory decisions on 
particulate matter.'' And I quote again, ``There were also 
concerns that a new PM2.5 NAAQS be established, with 19 panel 
members endorsing the concept of a 24-hour and/or an annual 
PM2.5 NAAQS.''
    Now, others may have different opinions, especially special 
interests, who may have to clean up their act. However, under 
the Clean Air Act, the EPA must set the standard based on the 
best scientific evidence available. And that is what it has 
done. And Mr. Chairman, I think that is an appropriate action.
    I represent the State of Vermont. So let me take a moment 
to address some regional issues. The problem with air pollution 
is that it just doesn't stay in one place. It is not just a 
California issue or a Vermont issue. And in the case of ozone 
and fine particulates, Vermont, the Northeast, and our neighbor 
to the north, Canada, are breathing the second-hand smoke of 
the coal-burning power plants in the Midwest. In fact, there is 
one plant in Ohio that emits more NOx, a precursor to ozone, 
than all of the utility plants in New Jersey and five times the 
annual emission of the District of Columbia. And those NOx ride 
on westerly winds to the Northeast. And we in the Northeast 
breathe that pollution and have trouble attaining the current 
standards.
    It is about time this issue was addressed. And these 
standards will improve air quality in both places--in the 
Midwest and the Northeast. Furthermore, as pointed out by the 
director of the air pollution control division of Vermont's 
Agency of Natural Resources, ``These upwind reductions from 
large, fully controlled coal-fired power plants would be very 
cost-efficient on a per-ton basis and would reduce the burden 
of more costly per ton controls on Vermont sources.''
    Mr. Chairman, thank you again for holding this important 
hearing and thank you for working with the minority to ensure 
that witnesses with differing points of view could testify and 
present a full and fair picture of the issues. I look forward 
to working together with you on future hearings on the clean 
air standards and other issues.
    Mr. Condit. Mr. Chairman?
    Mr. McIntosh. Yes.
    Mr. Condit. Mr. Chairman, can you yield some time to me so 
I can make a quick statement?
    Mr. McIntosh. I would be happy to. Mr. Condit, I also 
didn't realize that our vice chairman, Mr. Sununu, had one. 
Could I hear from him, and then we'll go back to you? Mr. 
Waxman, do you have an opening statement as well?
    Mr. Condit. Well, I think we'll have time for both of 
those.
    Mr. McIntosh. Mr. Sununu.
    Mr. Sununu. Thank you, Mr. Chairman. And Mr. Condit, I will 
try to be brief. I'd like to thank all of you who are taking 
the time today to offer your testimony and share your thoughts 
with this subcommittee. In particular, I want to welcome my 
friend, Senator Rick Russman, who will appear in our next 
panel. And he continues to do an excellent job representing the 
19th Senate District in my home State of New Hampshire.
    I'm proud to note that New Hampshire possesses a strong 
history of support for high standards in environmental 
protection and resource management. Through the implementation 
of practices based on sound science and common sense, and 
through inclusive planning such as that which we used to 
develop our 10-year forest plan, New Hampshire has actively 
protected the value of our natural heritage and maintained an 
extremely high quality of life. On a national scale, the United 
States has been successful, as well, reaping the benefits of 
the Clean Air Act as States, cities and towns continue to 
improve the quality of the air we breathe.
    Still, however, concerns remain. In the Northeast, for 
example, as was mentioned by Congressman Sanders, we continue 
to deal with the issue of pollution transport. To that end, I'm 
hopeful that the work of the regional ozone transport 
assessment group will help us move toward a long-term solution 
to this serious problem. But the issue before us today is not 
whether we share the goal of protecting public health.
    Clearly, we all do share that goal. Our objective is to 
ensure that the process we use to establish such regulatory 
guidelines utilize the best available science to determine the 
most appropriate standards and implement them at the lowest 
cost to society. And equally important, we must ensure that 
this process reflects the true intent of laws such as the Clean 
Air Act signed by President Bush and the Small Business 
Regulatory Enforcement Fairness Act passed during this last 
session of Congress.
    And the specific case of the EPA's proposed particulate 
standards--I would hope that these hearings address the 
question of whether adequate scientific evidence exists to 
support the restrictions being proposed. Given that the Clean 
Air Scientific Advisory Committee in its final report noted, 
``There was no consensus on the level, average time, or form of 
a particulate standard,'' it's clear that some significant 
questions do exist. Moreover, the President, recognizing the 
lack of hard and firm data, has himself called for greater 
spending on research and monitoring activity.
    Clearly, our focus should be on the need for accurate 
monitoring in order to fairly assess the potential costs and 
benefits of any new rule. With regard to the ozone standards, I 
hope we can begin to get a clear picture of the actual 
anticipated benefits in real terms rather than just in broad, 
sweeping statements. These hearings are an important step 
toward understanding whether we're properly addressing the very 
concerns raised throughout the regulatory review process.
    It's encouraging that Administrator Browner has reacted 
appropriately to concerns that have been raised by extending 
and delaying the review and comment period. I look forward to 
the testimony today and hope that it will shed some light on 
the process and science that EPA has used to develop these 
standards. Our responsibility is to look at them in a fair and 
critical light to ensure that they'll provide us with real and 
measurable benefits to all of our citizens without imposing an 
undue or unreasonable burden.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. John E. Sununu follows:]

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    Mr. McIntosh. Thank you, Mr. Sununu. Mr. Condit, by the 
way, let me thank you for helping to arrange for one of our 
witnesses to come. And Mr. Sanders, thank you and your staff 
for the cooperation they've given us in preparing for the 
hearing.
    Mr. Condit. Thank you, Mr. Chairman. What I would like to 
do is submit a statement for the record. And the reason I'm 
taking some time here is I do want to make an introduction of 
the witness that has come from my district and is a constituent 
of mine. Because we've got a couple other hearings going on, 
I'm going to have to step out just for a few minutes. But I'd 
like to take the opportunity to introduce Mike Wade, from my 
district. Mike is an almond farmer from Atwater, CA, where he 
farms about 70 acres of almonds. He is also the executive 
director of the Merced County Farm Bureau. And in that 
capacity, Mike has worked for many years with other interests 
in the San Joaquin Valley on research regarding PM10 standards.
    Mike has become an expert on that issue. Today I look 
forward to his testimony and I appreciate very much the fact 
that he's come all the way from California to be with us. And I 
appreciate you allowing him to be here today, Mr. Chairman.
    So, with that, I have a statement to submit. I'm going to 
excuse myself for a few minutes and I'll be back.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Gary A. Condit follows:]

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    Mr. McIntosh. Thank you, Mr. Condit. We'll put the full 
statement in the record. Mr. Waxman, did you----
    Mr. Waxman. Mr. Chairman, I want to thank you for holding 
this hearing. And I also want to thank you for including some 
of our suggested witnesses in the hearing so that we could have 
a balanced presentation on all the different perspectives. The 
Clean Air Act has been a great success. It is responsible for 
remarkable progress in cleaning up the air in the last 25 
years. Major air pollutants have decreased nationally by 30 
percent. But at the same time, our domestic product nearly 
doubled and our population increased by 28 percent.
    Incredibly, the Clean Air Act has achieved all this at a 
cost far lower than anyone had predicted. In 1990, for example, 
industry predicted the law would cost about $91 billion a year. 
In fact, that actual cost of the act is only 25 percent of 
industry's projections.
    Despite the repeated errors in these type of economic 
projections, there are some who would like the Clean Air Act to 
set standards based on costs. And I believe this hearing will 
highlight the dangers of such a scheme. The EPA has prepared a 
regulatory impact statement, or what's called an RIA, which 
analyses the costs and benefits of revising the ozone and 
particulate matter proposals. This analysis is the state-of-
the-art. It was developed over a period of 2 years, and it's 
one of the best RIAs ever produced by any agency. Despite the 
efforts put into this RIA, it has shortcomings. There are some 
who would argue that the costs are underestimated. Others would 
say that they're overestimated. On the other hand, the EPA 
admits that many benefits are simply not quantified. Estimat- 
ing benefits and costs is an imprecise and easily manipulated 
task. If we were to set air quality standards based on these 
cost projec- tions, standards would be no better than 
arbitrary, and we could no longer expect them to protect the 
public's health. Arguing over costs and benefits would throw 
our clean air efforts into gridlock.
    Fortunately, we don't have to face that problem. We have a 
ra- tional approach in this law, which has made the Clean Air 
Act so effective. Air quality standards are health-based. They 
are set at a level which protects the public health. However, 
recent studies inform us that the existing standards need to be 
modernized, be- cause they are not adequately protecting the 
public health. Many studies indicate that tens of thousands of 
people are dying and hundreds of thousands more are suffering 
from illnesses caused by commonly found levels of air pollution 
that are currently mis- labeled as safe.
    We need the EPA to set a health-based standard that is 
going to protect the public health. And then we can talk about 
the costs and the timeframe to achieve those standards. That's 
a very dif- ferent approach and one that's been very 
successful, than one that has been talked about where we set 
the standards based on these cost-benefit projections, which 
are so inadequate and which would lead to standards that would 
not accomplish the goal of adequately protecting the public 
health.
    I thank you for your cooperation in scheduling the 
witnesses and this hearing. And I look forward to the testimony 
of the witnesses today.
    [The prepared statement of Hon. Henry A. Waxman follows:]

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    Mr. McIntosh. Thank you very much, Mr. Waxman. If any other 
members of the committee would like to submit a statement for 
the record, I'd be glad to take it. Let me now ask each of the 
members of the first panel to please rise and raise your right 
hand.
    [Witnesses sworn.]
    Mr. McIntosh. Thank you. Let the record reflect that each 
of the witnesses answered in the affirmative. By the way, just 
so you don't think that this is a special proceeding, this is 
something that we've had as our full committee policy in the 3 
years that I've served in Congress, that we ask each of our 
witnesses to be sworn in.
    Our first witness today is Mrs. Faith Kline, who is a 
schoolteacher in the fourth grade. Mrs. Kline, if you could 
share with us your testimony.

    STATEMENT OF FAITH KLINE, SCHOOL TEACHER, FOURTH GRADE, 
                        PHILADELPHIA, PA

    Ms. Kline. Good morning. My name is Faith Kline. I teach 
fourth graders in the school district of Philadelphia. Many of 
my students, and I, have severe asthma triggered by tobacco 
smoke, extremes in weather changes, pollen and stress.
    All of my 33 students are African-American. My school's 
poverty rate is 86 percent. The 80-year-old building should be 
repainted, but there's no money for that. When it rains, one 
wall of my room floods and old paint and plaster fall from the 
ceilings and the walls. Sometimes the cement yard where I pick 
my children up in the morning hasn't been cleaned. It's 
littered with old needles, empty crack vials, broken glass, and 
used condoms.
    We don't have any playground equipment. When they stay 
after school to read, my children leave by 3:45 p.m., because 
at 4 o'clock the drug dealers are on the corner.
    Two weeks ago, an 11-year-old girl was shot six blocks from 
my school. The aunt of one of my students was raped last week 
on her way home from work. Last summer I called a former 
student, her grandmom told me Neenee was sleeping by the fan 
because she couldn't get enough air. I asked about the air 
conditioner and she replied, ``I can't afford an air 
conditioner. And even if I could, I couldn't afford the 
electric bill.''
    You talk about stress? If your asthma is triggered by 
stress, and this is your life, no wonder you can't breathe. The 
American Lung Association cites studies and reports that at 
camp, it's harder for kids to breathe and they use more 
medication depending on pollution levels. My daughter has 
asthma. When she's at camp, Kristin runs around more. She rides 
horses, swims in a chlorinated pool, and sleeps in a cabin on a 
20-year-old mattress. The cabin is in the woods. She shares it 
with 11 other girls. And at camp, Kristin uses more asthma 
medication than she does at home.
    But Kristin has attended summer camp for 7 years. She keeps 
going back. I keep spending a lot of money to send her there. 
Obviously, the benefits of summer camp outweigh the asthma 
problems. And clearly these studies have not controlled for 
intervening variables like physical activity, animal dander, 
molds and pollens.
    EPA has indicated tightening the standard would produce an 
increased public health protection. Their own literature says, 
``Repeated exposure to ozone pollution for several months may 
cause permanent lung damage.'' ALA's literature states, ``Many 
Americans appear to be at risk from ozone pollution. And in lab 
animals, exposures to ozone may promote the development of some 
cancers.''
    Equally true, then, are these statements. Ozone pollution 
may not cause permanent lung damage. Many Americans do not 
appear to be at risk from ozone pollution. And lab animals may 
not develop cancer when exposed to ozone.
    When they observed the same cumulus cloud, one of my 
students thought it looked like a brontosaurus. Another one 
said it was Michael Jordan going for the three-point. And 
another argued it was his mom in the morning with curlers in 
her hair. Appearances are subjective. ``May'' and ``appear'' 
are not words that validate policy change.
    The Clean Air Trust wrote that in a national survey most 
people wanted air pollution standards strict enough to protect 
human health and asthmatic children. Passion, though, should 
not be used as a vehicle to support policy change.
    Who would say that air pollution standards should not 
protect human health? Would any of us say that we don't want to 
protect asthmatic children? The question should have been: 
Would you be willing to have new air quality standards set that 
may protect human health more than the current standards, but 
also may cause a change of your lifestyle? That question 
doesn't attempt to exploit emotions. It states facts, and the 
data it yields could be considered valid.
    Last week my students and I discussed how clean the air 
should be. Initially, everybody believed they had a right to 
cleaner air. I explained that as a result of forcing some 
groups to work harder to make air cleaner--one--you may not be 
able to use your lawn mowers often, or you have to go out and 
by a new greener one. Two--you may not be able to burn logs in 
your fireplace. And three--you may have to have a certain 
number of people in the car when you use it. One child said, 
``Our lawn mower works just fine. We don't want to buy a new 
one. And my mom likes the fireplace in the winter.''
    Another said, ``We can't ride more than two in the car. 
It's just my mom and me. And we need the car.'' Finally, 
Rashaan summed it up by saying, ``Ms. Kline, cleaner air might 
be good. But we shouldn't have to give up so much to get it. 
They don't have the right to take away our rights. That's just 
not fair.'' And silently I agreed with him.
    Our ambition should be critical evaluation and responsible 
problem-solving, so that we don't take leaps, then find 
ourselves on slippery slopes because of our commitment to 
misinformation.
    I urge everyone to base decisions on facts, on sound, 
logical thinking, and not emotional responses. Equity for all 
in democratic society requires fair policies, strict but 
attainable goals, a level playing field, and commitment to 
responsible citizenship. Thank you.
    Mr. McIntosh. Thank you, Ms. Kline. Obviously, your 
students are very wise. Let me now proceed with our second 
witness that Mr. Condit has already introduced to us. Mr. Wade 
is an almond farmer from central California. Thank you for 
coming and sharing your testimony with us.

       STATEMENT OF MIKE WADE, ALMOND FARMER, ATWATER, CA

    Mr. Wade. Thank you, Mr. Chairman and committee members. My 
name is Mike Wade, and I'm a partner in an almond farmer 
operation in Atwater, in California's San Joaquin Valley. Our 
farm is approximately 70 acres, smaller than the State average, 
435, but typical of the farms in our area.
    Regulations governing agricultural operations aren't new in 
California. In 1989, rules were proposed by air pollution 
control officers in the San Joaquin Valley, which were intended 
to reduce the levels of PM10 in the valley. They included 
requiring every tractor that is tilling a field to carry a huge 
water tank to spray the soil, to prevent dust from drifting.
    They also required that we would be spraying water on large 
storage piles of seed and fertilizer to prevent wind-blown 
dust, and limiting the amount of manure a cow could drop on the 
ground in a given day. Bear in mind, these were all seriously 
considered for PM10 control measures. Tractors would have to 
have been fitted with a water system which would haul and 
disperse water around tillage equipment. The inconvenience of 
continually filling the system throughout the day would slow 
field operations and increase soil compaction due to the heavy 
weight.
    It was suggested that the surface of storage piles be 
sprayed with water to prevent dust from blowing. The problem 
with this solution is that water will ruin stored seed by 
increasing mold and mildew growth, and water on dry fertilizer 
will cause it to stick together and make it impossible to 
spread evenly in a field. And, finally, cows would have been 
prevented from standing in more than 2 inches of manure, 
meaning the amount they could drop on the ground in a given day 
would be limited.
    It was suggested--and I am not making this up--that the 
cows wear some type of device--a diaper, I suppose--to capture 
the manure so the farmer could collect it and dispose of it 
elsewhere. The proposed PM2.5 standard could have an equally 
dramatic effect on farm operations such as the burning of tree 
prunings and grain stubble. The issue of agricultural burning 
is important to farmers. Burning crop residue such as orchard 
prunings or grain stubble is an alternative which currently has 
few viable options. Some of the hard choices we'll have to make 
are going to be between a moderate amount of open burning and 
the use of certain chemical pesticides, or whether we want to 
begin sending agricultural crop residue to landfill sights.
    These early PM10 regulations were based on wrong 
assumptions regarding the volume of contributions of 
particulate matter from suspect crops. The only basis for 
considering how to control sources was groundless supposition 
on the part of air pollution control officers within the San 
Joaquin Valley. It was suggested that all vehicles leaving a 
dairy or feed lot would be required to be cleaned prior to 
departing the property.
    Power washers and mechanical shaking equipment were some of 
the ideas which surfaced without considering, at the time 
California's drought or the effect of mechanically shaking an 
entire truck. Water is at a premium in California, and shaking 
a truck would increase maintenance and eventually destroy the 
vehicle. If our industry is forced to undertake control 
measures like those proposed last time, it could very well lead 
to other adverse consequences. Let's say we could completely 
eliminate particulate pollution from sources such as 
agricultural burning by completely doing away with it.
    It would still not solve all of our problems. Burning is an 
effective way to control certain pests and diseases without the 
use of chemical pesticides. These tradeoffs have not been 
adequately addressed. The proposed rules were developed without 
adequate science to even know whether the control activities 
would have had any positive benefit to air quality or health 
effects. It's the old case of ready, fire, aim. And it was that 
same time of that misguided rulemaking which led to the $24 
million California Regional PM10 study. And as we approach the 
mid-point in the study, we still don't know enough about PM2.5 
to make choices any better than those which were made in 1989 
for PM10.
    The data we need to fully understand the consequences of 
the proposed PM2.5 regulation is lacking. It's just premature 
to move ahead before we fully understand the problem and try to 
develop meaningful solutions. We're going to be implementing 
measures that will have the end result of putting people out of 
business. This will force buyers of agricultural products to 
look to sources in other countries which don't have the 
burdensome regulations we have in the United States.
    Produce buyers will begin filling their orders with 
products purchased from countries that don't have the 
safeguards consumers rely on here at home. We need to maintain 
the highest standards possible. But at the same time, our 
regulations shouldn't result in overburdening our farmers to 
the point where they're not competitive and the public health 
is put at risk from imported food grown or packaged in 
substandard conditions. Although farmers in California will 
face definite challenges from this regulation, I believe 
farmers who can only grow one crop per year, such as grain 
crops in the Midwest, will be particularly hard hit.
    In my opinion, more farms than not will be adversely 
affected by this regulation. And in conclusion, it doesn't seem 
to me that it's rational decisionmaking when we don't know 
whether the efforts we've put forth are even going to have the 
desired benefit we're seeking. There are too many questions and 
too many problems still to be solved for me to agree that the 
supposed health benefits are worth the effort. Not until we 
know more about minute particulate pollution and how to 
effectively control it can we tell the American public that the 
high cost of this regulation is even worth it. Thank you for 
the opportunity today.
    [The prepared statement of Mr. Wade follows:]

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    Mr. McIntosh. Thank you very much, Mr. Wade, for sharing 
that testimony. I'll be looking forward to asking you more 
questions about these cow diapers.
    Our next witness is Mr. Christopher Grande. Mr. Grande is 
with us today. He's the executive director of the International 
Trauma Anesthesiology and Critical Care Society. And I 
appreciate you coming, Dr. Grande.

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

    Dr. Grande. Thank you, Mr. McIntosh. Good morning. I'm Dr. 
Christopher Grande. I'm a practicing physician from Baltimore. 
I'm a board-certified anesthesiologist and an intensive care 
specialist in trauma injury. I've authored and edited numerous 
medical textbooks and have about 30 articles published in 
professional journals. I'm also executive director of the 
International Trauma Anesthesia and Critical Care Society, or 
ITACCS, for short. ITACCS is a 10-year-old professional 
association of more than 1,000 trauma specialists and emergency 
room physicians, nurses, and related professionals.
    I also hold a masters degree in public health from the 
Johns Hopkins University School of Public Health.
    I'd like to thank the committee and Chairman McIntosh for 
inviting me to provide ITACCS' view on the proposed ozone and 
particulate matter standards. Before I specifically address the 
standards, though, I'd like to give the committee some 
important background information.
    Every day I'm in the hospital emergency room, I see 
patients and problems vying for critical resources. From acute 
asthma patients to traumatic injuries--these are all competing 
public health priorities, all competing for limited available 
public health resources.
    The focus of ITACCS is traumatic injury, often accidental 
in nature, such as that caused by motor vehicles, on the job, 
or household accidents. Injury is the leading cause of death 
for those under the age of 45 and is the fourth leading cause 
of death overall in the United States--about 150,000 deaths per 
year.
    Trauma cuts across all of society. The injured person is 
not someone else. The injured patient is you, your child, your 
spouse, your parent. The average age of the injury victim is 
20. Death from injury is the leading cause of life lost in the 
United States. More than twice the number of years of life lost 
as the next leading cause, cancer, and three times that of 
heart disease. According to 1990 statistics from the Center for 
Disease Control and Prevention, traumatic injury was 
responsible for approximately 3.7 million years of potential 
life lost.
    In contrast, cancer was responsible for 1.8 million years 
of life lost. And heart disease was responsible for 1.3 years 
of potential life lost. What does this tell us? I think it was 
summed up approximately 10 years ago by the National Academy of 
Science that, ``Trauma is the leading critical public health 
crisis in the United States today.'' And that statement is 
perhaps even more true 10 years later. How is this relevant to 
the debate over the ozone and particulate matter standards? It 
can be put simply in three words: public health priorities. The 
fact is that society has limited resources that it can spend on 
public health. As such, public policy dictates that such 
resources be spent so as to achieve the biggest bang for the 
buck. ITACCS is not convinced, nor should the public be, that 
the proposed ozone and particulate matter standards are a smart 
way to spend our limited resources.
    But I want to make clear that we are not singling out only 
the proposed ozone and particulate air quality standards. The 
proposed standards are merely the latest example in what we see 
as a disturbing trend over the last two decades where scarce 
public health resources are diverted from more clearly 
demonstrated beneficial uses. As the makers of our laws and 
ultimate allocators of our public health resources, Congress 
should take the lead in rationally allocating our limited 
resources. But how would Congress know what is a priority and 
what is not?
    The process behind the proposed ozone and particulate 
matter air quality standards has not been helpful. First, the 
proposed rules do not provide a ranking or comparison between 
the estimated health effects attributed to ozone and PM and 
those of other public health needs. One of the health end 
points associated with the proposed rules is asthma. No doubt 
asthma is a serious issue. And public health resources should 
be directed at asthma.
    But a recent study published in the February 1997 issue of 
American Journal of Respiratory and Critical Care Medicine has 
placed air pollution-induced asthma in perspective. In a type 
of study--perhaps the same one Ms. Kline referred to earlier--
that has been characterized as the most reliable study of the 
potential health effects of ambient ozone, that is, ``A Study 
of Children Attending Asthma Camp,'' air pollution was 
associated with a 40 percent increase in asthma exacerbation in 
children.
    It sounds bad, but what does this really mean? According to 
the study authors, this increase in asthma exacerbation equates 
to one extra use of an inhaler among one in seven severe 
asthmatics on the worst pollution day. An important health 
problem? Possibly. But before we commit our scarce resources, 
wouldn't it be useful to know exactly where this health effect 
ranks among other public health priorities?
    Second, the proposed rules do not provide an accurate 
estimate of what their associated opportunity costs are. For 
example, if a community is forced to spend its resources 
implementing the ozone and particulate matter standards, what 
other public health needs will the community sacrifice? A new 
trauma center? Training for its paramedics? A new ambulance?
    Filling these other public health needs can produce results 
that cut across many public health problems. For example, 
ambulances and trauma centers can benefit everyone, from 
asthmatics to heart attack and trauma victims. It would seem 
good public policy, therefore, to develop and rely on an 
analysis of opportunity costs. Third, the true uncertainties 
associated with the proposed ozone and particulate matter air 
quality standards have not been fully presented. For example, 
it has been estimated and widely reported that chronic exposure 
to fine particulate matter causes 20,000 deaths per year.
    In fact, this estimate is based on very uncertain 
epidemiology. It was acknowledged recently by the EPA and 
reported in major newspapers, such as the Washington Post, that 
the simple error of using an arithmetic mean as opposed to an 
arithmetic median reduced the estimated mortality from fine 
particulate matter by 5,000 deaths. It could very well be that 
chronic exposure to fine particulate matter in fact causes no 
deaths. On this point, it is greatly troubling that the data 
underlying this estimate has yet to be made publicly available.
    Given the major confounding factors for mortality appear to 
be omitted from these analyses--factors like lack of exercise, 
poor diet and prior health history--weak epidemiological 
associations could easily vanish with more thorough analysis.
    In stark contrast to what has been hypothesized about 
particulate matter and mortality, we know that about 150,000 
people die every year from injury. These are real deaths, not 
those calculated through debatable assumptions and statistics.
    One year ago, the television show, Dateline NBC, featured 
the story of Robert Meier. In April 1995, Mr. Meier was driving 
home through rural Oklahoma, heading home for Easter. Just 
before 4 p.m. that afternoon, Mr. Meier's van careened off the 
highway, slamming into a guard rail. His van rolled over five 
times before plummeting into a ravine. Within minutes, rescue 
personnel were on the scene. The ambulance took Mr. Meier to 
Shawnee Regional Hospital. But the doctor on duty determined 
that Mr. Meier had serious internal injuries and needed to be 
transferred to another hospital better-equipped to treat them.
    But as Mr. Meier bled profusely from a ruptured aorta, no 
other hospital in the area would accept him, because critical 
resources were not available. It was not until half past 
midnight, 8 hours after his accident, that a surgeon was found 
to operate on Mr. Meier. But this delay cost Mr. Meier his 
life. Mr. Meier was fully covered by health insurance. He had 
done his part. But because of a lack of crucial resources, the 
system failed.
    Stories like this are common. But they should not be, nor 
do they have to be. Proven solutions are available now, but 
must compete for attention and funding. More than 25 studies 
indicate that between 20,000 and 25,000 Americans who die each 
year from injury could be saved if regional trauma systems were 
in place across the Nation, ensuring prompt access to a 
qualified trauma center.
    In 1973, Congress enacted the Emergency Medical Services 
Act to help States improve their trauma systems. But lack of 
Federal support made this an unfundable mandate that States 
could not afford to implement on their own. And as a result, 
significant deficiencies exist in trauma systems across the 
country, like the one that resulted in Mr. Meier's death. But 
how would Congress know this when currently there is no 
mechanism to identify, compare and prioritize public health 
needs? The ozone and particulate matter proposals, in their 
present formats, are a prime example of this defect of how we 
do public health in America.
    I understand that a bill was introduced in the last 
Congress which would have required the comparative ranking of 
health risks. This would be helpful for prioritizing our public 
health needs. I urge Congress to continue along this track. 
Stimulated by this latest raid on our scarce public health 
resources, ITACCS is establishing a new forum to facilitate 
public debate on the allocation of public health resources.
    The mission of the National Forum for Public Health 
Priorities will be to provide policymakers with information 
necessary to prioritize public health needs. Those who wish to 
commit the public's limited resources should be required to 
justify such proposed commitments against all other competing 
needs. And as a major allocator of public health resources, 
Congress must ensure that public health is not shortchanged by 
unproductive expenditures.
    Thank you for your attention. I'd be happy to answer any 
questions you may have.
    [The prepared statement of Dr. Grande follows:]

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    Mr. McIntosh. Thank you very much, Dr. Grande. I appreciate 
your testimony and look forward to a chance to talk with you 
more.
    Our fourth witness on this panel is Mr. Fred Congress, who 
is founder and president of Congress Enterprises. Mr. Congress, 
thank you for coming to testify today.

  STATEMENT OF FRED CONGRESS, PRESIDENT, CONGRESS ENTERPRISES

    Mr. Congress. Thank you, Mr. Chairman, for allowing me to 
come. Good morning, ladies and gentlemen. My name is Fred 
Congress, and I'm from Gary, IN. I'm the founder and owner of 
Congress Enterprises, Inc., a company I started back in 1953. 
Today, Congress Enterprises is the sole source of employment 
for three generations of my immediate family. My four children 
and three grandchildren assist me in running this business.
    We're basically two-dimensional in terms of our business. 
We supply home heating oil, diesel fuel, gas on a wholesale and 
retail basis. Also, we have expertise on the structure 
demolition business. In essence, we have a coming and going 
business tailored for Gary. The fuel industry was created by a 
great need generated by the thriving and bustling business 
climate of Gary back in the 1950's and 1960's. The demolition 
business was created by the demise of much of the great growth 
of Gary and the continuation of clearing and renovating idle 
neighborhoods and industrial zones.
    When the fuel business was thriving, Gary had over 32,000 
workers in its steel mills, with the majority of the people 
that were working in the mills living in the city limits of 
Gary. Today, the mills only provide jobs for 7,000 workers. And 
only 1,600 of those workers live in Gary. Gary once had a 
population of 200,000 people. By 1980, it dropped down to 
157,000 people. And today we have approximately 105,000 
inhabitants.
    In reflecting back on my fuel business, I point to 1973 as 
a benchmark in reference to the peak of my business. It was 
here that the great oil embargo went into effect and taxes, 
inflation and stringent regulations on the environment raised 
costs and retail price to the point of causing dramatic havoc 
on the steel, auto and fuel industries. My fuel oil business 
today is only one-twentieth of what it was in 1973.
    The demand for steel lost out to foreign competition and 
shrinking American auto sales. Jobs went, as well as good 
citizens. Schools became vacant. Neighborhoods began to decay 
with unemployment and welfare skyrocketing along with crime and 
despair. I consider it a rare exception and a slight miracle 
that my family--that means my children and grandchildren--have 
remained as one. Many families cannot make that claim. Much of 
this, along with the great blessings of God, is due to the fact 
that we are business owners.
    We, through entrepreneurship, have made our own future. 
However, it has not been easy and without challenges. Today, 
the challenges seem to be at their greatest. The Clean Air Act 
is effective, even though it came with economic restraints. I 
feel that it was necessary, as I reflect back on the days when 
the sun went down in Gary at 2 p.m., due to the air pollution 
caused chiefly by the steel mills. The air quality is much 
better. We all admit. The only regret is maybe more preparation 
and study could have achieved the same results without the 
economic ruin.
    The Clean Air Act partnered with the rising costs of 
business, opportunistic foreign competition, taxes after taxes, 
has put Gary and its remaining inhabitants on the endangered 
list as a community. Please don't take me wrong. The Clean Air 
Act, along with other environmental efforts, have made this 
country move in the right direction in regards to environment. 
There have been many new businesses resulting from this. If 
only those who lost the plant jobs could have gone directly 
into environmental jobs, then we wouldn't have all of the 
results we see today.
    There were costs to be paid. And much of that was not 
equitable to the common family. The EPA is now proposing a more 
stringent ozone standard, and want to establish a new PM 
standard for particulate matter emissions, at or below 2.5 
microns. Both of my businesses are conscious of environmental 
regulations. And we will be directly affected. The fuel oil 
distribution, and even the demolition, which involves heavy 
equipment, are sensitive to the applicable laws.
    My family is thankful for the capitalistic system that has 
allowed us to work together for over 44 years. We have made it 
despite extreme challenges created by economic change caused by 
regulation and policy that has not been business-friendly. Big 
business, little business--it's all the same, as the business 
world is one big circle. What affects one segment will 
eventually have an effect on the other.
    If I were to die today, I would not have a clue as to if my 
family would continue with the business as more and more 
regulations are poured on them. This worries me extremely. For 
the sake of my children, grandchildren and the beautiful babies 
and generations to come, I plead for us to move on new 
regulations in a prudent manner. Again, in the past, perhaps we 
could have made the great strides in environmental cleanup and 
air quality without as much pain. Some very good people and 
families have been torn apart right before my eyes.
    Let us make the recent past the last unnecessary struggle 
to make the world safe and great. The environment and economics 
can work together. By doing so, we can create stronger 
regulations and maintain a strong economy simultaneously.
    Finally, we remaining Garyites still have hope for the 
future. Let policy and regulation be friendly to us and the 
many other wonderful communities. We, the Congress family, have 
much fear about the proposed regulations that will make the 
current Clean Air Act a start of a longlasting struggle rather 
than a ``bite the bullet'' approach which has been successful 
and lasting in its goal. May the casualties end at long last. 
Please, EPA, take it--meaning, policing the environment--in a 
more prudent manner, and let us all win. Thank you, sir.
    Mr. McIntosh. Thank you very much, Mr. Congress. And 
welcome to a fellow Hoosier. Let me now introduce our final 
witness on this panel, Dr. Alfred Munzer, who is the past 
president of the American Lung Association. Welcome, and thank 
you for coming today.

   STATEMENT OF ALFRED MUNZER, PAST PRESIDENT, AMERICAN LUNG 
                          ASSOCIATION

    Dr. Munzer. Mr. Chairman, thank you for including me in 
this early panel so I could tend to my patients this afternoon. 
I am Alfred Munzer, a physician specializing in diseases of the 
lung and past president of the American Lung Association. I am 
also director of Pulmonary and Critical Care Medicine at 
Washington Adventist Hospital in Takoma Park, MD.
    My testimony includes disclosure of funds received by the 
American Lung Association from the Federal Government as 
required. I am delighted to be here today, specifically because 
I care deeply about children like the ones Faith Kline talked 
about earlier. Because children in the inner cities will bear a 
disproportionate burden of the health effects of air pollution. 
The Clean Air Act represents an act of genius for limited 
government. It sets out a broad vision of clean air for us, for 
generations to come. And it sets standards that we have arrived 
at through a broad national consensus.
    The Environmental Protection Agency recently completed the 
most comprehensive review of medical research on ozone and 
particulate matter. For both pollutants, the Agency correctly 
concluded that the current standards are inadequate and must be 
tightened. The American Lung Association agrees with this 
conclusion. We strongly support EPA's effort to set standards 
that will be more protective of public health. Administrator 
Browner is to be commended for her leadership and efforts to 
tighten the ozone and particulate matter standards. EPA 
analyzed the peer-reviewed literature and appropriately 
determined that science supports strengthening the current 
particulate matter standard by the addition of a fine particle 
standard: the so-called PM2.5 standard for particles less than 
2.5 microns in diameter. The American Lung Association believes 
that science supports EPA's proposal to set a standard for fine 
particles. We believe, however, that the level should be 
significantly tighter than those proposed by the EPA.
    The American Lung Association's report, ``Gambling With 
Public Health 2,'' shows how many more Americans will be 
protected by the American Lung Association-recommended fine 
particle standard. The ALA recommends that the EPA adopt a 
daily fine particle standard of no more than 18 micrograms per 
cubic meter, rather than EPA's proposed level of 50 micrograms 
per cubic meter. ALA also recommends that EPA adopt a yearly 
average fine particle standard of 10 micrograms per cubic meter 
rather than EPA's proposed level of 15.
    Our report underscores the need for a more protective air 
quality standard. Similarly, several studies published over the 
last 5 years have linked ozone exposure at relatively low 
levels with an increase in hospital admissions for respiratory 
causes, including asthma, chronic obstructive lung disease, and 
pneumonia. As a result of our review of these studies, the 
American Lung Association recommended a standard of 0.070 parts 
per million. And one exceedance per year is consistent with the 
bottom of the range included in EPA's ozone standard in the 
staff paper.
    In our view, this level provides the most public health 
protection with a margin of safety as required by the Clean Air 
Act. According to an American Lung Association report, 
``Gambling With Public Health,'' released in September 1996, an 
estimated 11.7 million children, 7.7 million elderly, 2.8 
million people with asthma and 3.2 million people with chronic 
obstructive lung disease live in counties that would exceed the 
ALA's proposed standard but would be unprotected by the 
proposed EPA staff standard.
    As a physician, I see the health effects of air pollution 
in my patients every day. Air pollution hurts the lung. For my 
patients with serious lung disease, for children, whose lung 
defense mechanisms are not yet fully developed, and for the 
elderly, whose lungs may no longer be able to withstand the 
constant assault of poisonous air, the law and science require 
EPA to move forward with new standards.
    Many ask about the health effects of air pollution. For 
some of my patients, and for otherwise healthy adults as well, 
commonly measured levels of ozone and particulate pollution 
cause coughing, wheezing, and discomfort when breathing. For my 
patients with asthma, chronic bronchitis and other lung 
diseases, particles can cause more serious breathing 
difficulty. They may end up in my office, the emergency room, 
or be admitted to the hospital.
    Finally, elevated particle levels are linked to premature 
death. Fine particles are especially insidious, because the 
body cannot defend itself against these particles. They really 
behave like air. Large airborne particles are prevented from 
being deeply inhaled by the nose and upper airways. But fine 
particles are small enough to avoid the body's line of defense 
and are inhaled deeply into the lungs. That's where the most 
serious damage occurs. People with cardiovascular disease or 
lung diseases like asthma are especially vulnerable.
    The health effects of air pollution is not an abstract 
concept for my patients. It has a daily impact on their lives. 
Elevated air pollution levels can leave people struggling to 
breathe. Many may question the science and argue that tighter 
standards are unnecessary, and argue that EPA's estimates are 
wrong. The rhetoric is wrong and foolish. The economists' 
estimates are arbitrary. The suffering that my patients 
experience due to unhealthy air is real.
    Finally, I hope that the foes of the new standards, those 
who argue that tighter standards are not worth the costs, will 
listen to these vulnerable populations to understand what the 
real price of air pollution is and the impact it has on 
people's lives. Thank you.
    [The prepared statement of Dr. Munzer follows:]

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    Mr. McIntosh. Thank you very much, Dr. Munzer. We'll now 
proceed with questions to each panel in blocks of 5 minutes of 
time per Member. And if we've got time--one of the witnesses on 
our second panel is on a tight schedule. I'm going to try to 
get that second panel started as close to 11 as possible.
    I've got a couple of questions that I'd like to ask. The 
first one is for Ms. Kline. I understand that you attended one 
of EPA's workshops on the PM ozone issue that was held in 
Philadelphia last year. Could you describe it, the way in which 
the workshop was conducted? And do you think it was a fair 
presentation of the subject matter at that workshop?
    Ms. Kline. It was a public meeting that was held in July 
1996. And at that meeting I was basically a spectator. And I 
became a little upset by lunch time because I watched what I 
thought was happening--what appeared to me was happening was 
that folks were coming up to the front to make comment, and 
they were being--we were being told that their attitudes and 
their testimony represented public--the idea of what the public 
was thinking. It represented the mind-set of the public.
    And, in fact, they spoke only to one side of the question. 
And it wasn't an accurate--in my mind it was not an accurate 
example of what the whole public, the broad spectrum, which is 
what EPA had initially said they were looking for. It wasn't. 
It did not represent the broad spectrum of public comment.
    Mr. McIntosh. Did you feel that it addressed the best 
possible ways to benefit people who have asthma? And I guess, 
what do you think we as a Congress should do to benefit people 
who do suffer from asthma?
    Ms. Kline. I felt that there were--and, again, that's why I 
mentioned the emotional responses. There were people that were 
being wheeled up in wheelchairs, and people that were using 
medication while they were speaking. And, to me, it appeared to 
be contrived. And it felt upsetting to me. And I feel that 
Congress really needs to, as Dr. Grande said, look at some 
other issues that are out there that really impact.
    For instance, my children. I'm not convinced that it's 
ozone that hurts my children. I'm real concerned about that 
wall that's dripping plaster into my room everyday. You talk 
about stuff that we breathe. This school. This is every day, 
all day long for some of my children. And me, too. And I think 
that we need to look at some other things besides just this. 
And I'm not convinced that the science is there. I'm really 
not.
    Mr. McIntosh. Thank you. And if I might introduce into the 
record an article that was in the Washington Post yesterday, 
actually, titled ``New Attack on Asthma: Doctors Now Recommend 
Early Aggressive Treatment.'' In the article it discusses how, 
coincidentally, we've seen an improvement in air quality 
because of the Clean Air Act, we've seen at the same time an 
increase in asthma suffering. They feel perhaps the greatest 
cause is not ambient ozone or particulate matter, but causes in 
indoor air, dirty air, with mites and other things.
    Ms. Kline. Right.
    Mr. McIntosh. I wanted to check with you, Dr. Munzer--do 
you disagree with the basic premise of that article, that 
perhaps the best thing we could do for asthma sufferers would 
be to find ways to have cleaner indoor air?
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    Dr. Munzer. I haven't read the article, there. I have it 
sitting and waiting. Because I'm sure I'm going to get comments 
from my patients about it, as invariably happens when there's 
something in the newspaper. But we have not said that air 
pollution, as such, has caused asthma. There are many different 
causes for asthma. And a lot more research is needed to find 
out exactly what those causes are. One of the causes that we do 
know about, for example, is maternal smoking. That has 
definitely been implicated as being a causal factor in the 
development of asthma. But there is no question whatsoever that 
both indoor pollution and outdoor pollution can aggravate and 
bring on attacks of asthma in people who have the condition.
    Mr. McIntosh. I want to get to Dr. Grande's point in a 
second. Just looking at the subset of the population that are 
asthma sufferers, couldn't we do a lot more with $6 to $8 
billion by spending it on research to detail those causes and 
perhaps even paying for the medicine that they need to 
alleviate the symptoms at this point?
    Dr. Munzer. I think we need a lot more money invested in 
finding out what the causes of asthma are. And I think we need 
to do both. We also need to tackle the problem of air 
pollution, which doesn't only affect people with asthma, but 
healthy populations. And it also affects people with chronic 
obstructive lung disease. And in many cases we found out--for 
example, especially in the case of particulates--that the 
people who are most likely to die from the effects of 
particulate pollution are people with heart disease.
    Mr. McIntosh. And so there are other collateral causes in 
addition to the particulates? Is that what I understand you're 
saying?
    Dr. Munzer. It appears that particulate pollution is maybe 
the straw that breaks that camel's back, when you have a person 
whose system is compromised by heart disease.
    Mr. McIntosh. Again, getting back to this question of how 
we, as a society, would spend $6 to $8 billion, I'm very 
skeptical that the best use of those resources is one that 
provides very limited benefit. I mean, EPA's own estimate is 
less than 1 percent of the population with asthma would benefit 
from it. Whereas you might be able to directly benefit the 
entire population. Or, perhaps, as you're pointing out, benefit 
other people--people who suffer from heart disease and other 
things by spending it on research in that area.
    Dr. Munzer. But asthma is a very common disease. It affects 
from 5 to 10 percent of the population. It's also a disease 
that's on the increase. In the last 10 years, we've seen a 48 
percent increase in the incidence of asthma. So, yes, it is 
very important that we find the underlying cause, that we try 
to find a cure for asthma. But it is also very important that 
we help people who have asthma today to breathe better.
    Mr. McIntosh. Thank you. I'll have some more questions. My 
time is up. Mr. Sanders.
    Mr. Sanders. Thank you very much, Mr. Chairman. Let me 
begin by directing some questions--Dr. Grande? Is that how you 
pronounce your name?
    Dr. Grande. Yes, sir.
    Mr. Sanders. And maybe to Ms. Kline, as well. Because both 
of you raised an interesting point. Ms. Kline described for us 
the horrendous working conditions--or educational circumstances 
that her kids are forced to operate under--a school system 
clearly inadequate. And Dr. Grande appropriately pointed out 
that we are underfunding many other areas of health care, which 
I certainly agree with. He talked about trauma, cancer 
research, heart disease, and so forth and so on.
    What I find a little bit incongruous, though--and let me 
start with you, Dr. Grande--is while you're here in a sense 
saying, ``We have limited resources. Why are we doing this 
rather than that?'' And I'm wondering, would you give that 
testimony, perhaps--and please--before the Armed Forces 
Committee, which is proposing to spend $1.5 billion each for 20 
B-2 bombers that many people think we don't need. Would you 
give that same testimony in terms of those committees dealing 
with corporate welfare, where we're providing $125 billion a 
year in tax breaks and subsidies to large corporations?
    In other words, what you're saying is we have limited 
priorities. I agree. But I find it strange that you're arguing 
against clean air rather than against excessive military 
spending and tax breaks for the wealthy. Would you want to 
comment on that?
    Dr. Grande. Sure. I just want to clarify my position. I'm 
not arguing against clean air. I'm arguing against the 
decisionmaking process where you're allocating public funding 
to clean air without doing a thorough review of competing 
priorities for those fundings. Now, your question about the B-2 
bombers--if it was placed in the same context, my answer would 
be yes. I would give the same testimony.
    Mr. Sanders. OK.
    Dr. Grande. I think it would be fairly naive of me to 
assume that we're playing some type of zero sum game here, that 
money that doesn't go to clean air now is going to go to 
trauma. I don't think that that's true. And I'm not here 
talking about trauma or about clean air. I'm talking about 
public health priorities. And I haven't seen anything nor am I 
convinced that there's any correct thinking in that regard yet.
    Mr. Sanders. I'm just suggesting that in a certain way we 
are talking about zero sum. We have a budget, and we make 
decisions. And the Congress will vote to spend $100 billion a 
year defending Europe and Asia against a non-existent enemy or 
we will put the money into trauma care, research for cancer, 
research for heart disease. Those are decisions that we make. 
And I just find it interesting that what you're saying is, 
you're deciding priorities between cleaning up our air and 
trauma. And I would suggest that we should broaden that debate 
over our national priorities.
    Let me ask Dr. Munzer a question, if I might. Dr. Munzer, 
how widespread of a problem is asthma in the United States 
today? And does ozone trigger asthma attacks? Is there any 
scientific dispute over whether ozone triggers asthma attacks?
    Dr. Munzer. Asthma affects about 5 to 10 percent of the 
U.S. population. And over the last 10 years, there has been an 
approximately 48 percent increase in incidence of asthma. There 
is no question but that ozone pollution does trigger asthma 
attacks.
    Mr. Sanders. OK. Some have argued that revising the ozone 
standard is not that important from a public health perspective 
because of the relatively small amount of hospital admissions 
attributable to asthma. Is the number of hospital admissions 
the best indicator for the magnitude of the public health 
threat that ozone presents?
    Dr. Munzer. Emergency room admissions really only represent 
the tip of the iceberg when it comes to the cost of asthma. 
Most patients who develop acute asthma attacks do not end up in 
emergency rooms. But that is the most measurable thing we have 
available. And that's why we cited the study about emergency 
room visits. But we should understand that that really only 
represents the tip of the iceberg when we're talking about the 
health effects of ozone on people with asthma.
    Mr. Sanders. OK. I will pass at this point.
    Mr. McIntosh. Thank you, Mr. Sanders. Mr. Waxman.
    Mr. Waxman. Thank you very much, Mr. Chairman. Dr. Munzer, 
you just made a very clear and unequivocal statement, and I 
want to underscore it. You're the only scientist on this panel 
that deals with asthma and lung problems, and you're the only 
physician that deals with patients with those kinds of 
problems. Are you saying unequivocally that ozone and 
particulates in the air cause an increased problem with those 
who have asthma?
    Dr. Munzer. Ozone is a very powerful irritant to the 
respiratory tract. We've known that. And ozone causes, as part 
of its response, a narrowing or spasm of the air passages, 
inflammation of the air passages, which translates into the 
very basic mechanisms of asthma. So, yes. There is no question 
whatsoever that ozone causes asthma attacks and that it also 
interferes with the lungs' defense mechanisms against other 
affecting agents such as bacteria and viruses, because it 
interferes with the function of the alveolar macrophage, the 
scavenger cells that keep our lungs clear.
    Mr. Waxman. Mr. Chairman, the time should be started from 
the beginning. Now, does particulate air pollution trigger 
asthma attacks?
    Dr. Munzer. Particulate air pollution has many of the same 
effects that ozone does. There are only so many ways in which 
the lung can react. When the lung is injured it reacts by 
developing spasm and inflammation of the air passages. And 
that's what we mean by asthma. And there are many offending 
agents that can cause that.
    Mr. Waxman. Are these asthma attacks triggered by ozone and 
particulate air pollution at levels below the current 
standards?
    Dr. Munzer. The medical literature now is unequivocal about 
the fact that the current standards are no longer protective 
for people with asthma, and that, indeed, asthma attacks occur 
at levels below the current standard.
    Mr. Waxman. I was surprised by Ms. Kline's statement. She 
said that she's not convinced that ozone is hurting her child 
with asthma. She's more concerned about plaster in the 
building. Yet Dr. Munzer told us that the scientific literature 
is clear on this subject. Do you still doubt the science of it?
    Ms. Kline. What I meant was that I don't have a question 
about whether or not ozone is bad for your lungs. My question 
is whether it's worse than some of the other triggers and some 
of the other problems that my children have. It's not that 
ozone is a good thing. It's that ozone is not as important, 
perhaps, as some of the--and I'm not even saying that I know 
that. I'm just saying----
    Mr. Waxman. Yes. You don't doubt, then, that ozone and 
particulate pollution can trigger asthma attacks?
    Ms. Kline. I believe that it can.
    Mr. Waxman. OK. Now, does anybody on the panel disagree 
with that?
    Dr. Grande. Well, I just wanted to respond to one of your 
comments. I----
    Mr. Waxman. No. I'm asking you the question. Do you 
disagree with the statement that air pollution can trigger 
asthma attacks?
    Dr. Grande. I believe that air pollution can trigger asthma 
attacks. I also agree that the data that I've reviewed--and 
spoken to other experts--that addressing different components 
of that argument are equivocal.
    Mr. Waxman. Yes. Dr. Munzer, do you have any comment on the 
science of this?
    Dr. Munzer. I think the science has been reviewed by both 
the Environmental Protection Agency, its panel of outside 
scientists, it has been reviewed by scientists in the American 
Thoracic Society, the medical section of the American Lung 
Association. And I believe that there is a very broad consensus 
on this issue, as broad a consensus as you will find among 
scientists, that air pollution, ozone, fine particulates do 
trigger asthma attacks.
    Mr. Waxman. There's a statement from the American Lung 
Association of a study that said emergency room visits for 
asthma occurred 28 percent more frequently when ozone parts 
were about 60 parts per billion, a level about one-half the 
current standard. When they were below 60 parts per billion, 
the researchers concluded that ozone adversely affects 
asthmatics well below the current U.S. standard.
    What does it mean if a kid has an asthma attack? I don't 
have asthma. I don't have a child that has asthma. But I do 
know people who have had it. It means that they can't catch 
their breath. If we're talking about increased emergency room 
visits, those are the ones who show up at the emergency rooms. 
I know kids who have asthma attacks that never show up at 
emergency.
    Dr. Munzer. Asthma is really a form of suffocation. It's 
like breathing through a very fine straw. It's extremely 
painful. It's not something to be minimized as a health effect. 
It's a very serious, very painful condition. It can come on 
very quickly. And it can, unfortunately, at times, be fatal. 
And, in fact, the death rate from asthma has also gone up very 
markedly in the last 10 years.
    Mr. Waxman. Dr. Munzer, the problem of asthma attacks 
triggered by air pollution, are they common or uncommon?
    Dr. Munzer. Asthma is a very common condition. And, 
unfortunately, air pollution is still a very common problem in 
many areas of the country. And so I believe that air pollution 
is really a major factor in precipitating asthma attacks.
    Mr. Waxman. We're talking about asthma, but air pollution 
also affects people with heart disease and other ailments, as 
well.
    Dr. Munzer. Air pollution certainly has an effect on people 
with chronic bronchitis and emphysema. It has an effect on 
children, whose lungs are not yet fully developed and who 
really need their defenses against bacteria and viruses, and 
can't have them interfered with. And that's why they develop 
deep chest infections when they're exposed to air pollution. 
And the same thing is true for the elderly. Their defense 
mechanisms are on the wane. And they, also, are particularly 
vulnerable to the effects of air pollution.
    Mr. Waxman. Now, Ms. Kline talked about her experience with 
her child. Would a parent know if a child's asthma attack is 
being triggered by ozone levels that are maybe too high?
    Dr. Munzer. I think that would be very difficult for an 
individual parent to know. I think that's precisely where 
Government comes in. We, as individuals, cannot measure levels 
of ozone in the atmosphere. But, certainly----
    Mr. Waxman. Let me interrupt you, because I see the yellow 
light. And before my time is over--the chairman suggested maybe 
we ought to take money and spend it on research on asthma and 
not on air pollution control. Maybe we ought to spend it on 
medications for people with asthma and not air pollution 
control. But that doesn't make any sense to me if we already 
know that air pollution is such an enormous problem that we 
have to go buy medicines to treat people. If we can avoid the 
problem and prevent some of these asthma attacks by reducing 
air pollution that we breathe and have such a devastating 
impact on people with asthma. What's your comment about that?
    Dr. Munzer. Well, it's been suggested that people with 
asthma who are exposed to pollution could just take more 
medication. But these medications do have very serious side 
effects. There have been several articles in the last few years 
of mortality attributable to the excessive use of 
bronchodilators. So there is a real price to pay. And, 
certainly, prevention remains the best medicine.
    Mr. McIntosh. Thank you, doctor. I have some additional 
questions on that. We're going to flip back and forth. Let me 
ask Dr. Munzer a question. What I was, in fact, indicating was 
there's an evidence put forward in the Washington Post article 
and other places that the greater cause of asthma does not come 
from ambient air pollution but other causes. Ms. Kline 
mentioned natural causes--camp, also causes in the home, dust 
and mites--and if we were going to allocate $8 billion of 
social resources to benefit the total universe of asthma 
sufferers, which I understand the American Lung Association 
indicates is about 13 million.
    The lower range of that 5 to 10 percent you mentioned, that 
you could benefit all of those people by providing some 
assistance to them in either determining ways they could be 
cured from asthma or providing the medicines they need to treat 
asthma that is not caused by air pollution, and that, rather 
than picking out--I guess the EPA's number 15,000 individuals, 
which is less then 1 percent of that entire universe--then why 
wouldn't we want to benefit a greater number of people, 
perhaps, and imposing significantly less trauma to society as 
Mr. Congress was mentioning?
    Dr. Munzer. The American Lung Association, certainly, for a 
long time, has favored more research dollars for asthma. I 
think we do need to know the causes for asthma. And we have to 
invest more in asthma as a disease. We have also very strongly 
supported access of health care to people so that they can 
treat their asthma properly. Asthma medications are extremely 
expensive. One of those little metered dose inhalers costs 
about $60. And some patients take three or four of them.
    Mr. McIntosh. Three or four inhalers over what timeframe?
    Dr. Munzer. Over a month. Three or four at a time. And they 
last about a month.
    Mr. McIntosh. Yes.
    Dr. Munzer. So, we have an immediate cost that is extremely 
high. Plus some of these medications now turn out to have long-
term side effects. There is no question, therefore, that in 
addition to treating asthma, in addition to doing research in 
asthma, we also need to try to prevent individual asthma 
attacks. And one very important strategy in that battle is to 
control air pollution. Air pollution is a major factor, not 
just in a very small number of people with asthma, but in many 
people with asthma.
    Mr. McIntosh. Now, one of the things that I've heard from 
other farmers--and Mr. Wade, you might want to address this--is 
that it would be virtually impossible for most agricultural 
sectors in the United States to comply with the proposed EPA 
standard and still be able to till the ground. You mentioned 
problems that you face in your particular sector of disposing 
of waste, storage of fertilizer and other chemicals. Do you 
have any estimates of the magnitude in the agriculture sector 
of that proposed change?
    Mr. Wade. Well, to begin with, the PM2.5 problem isn't a 
measured problem, at least in agriculture. It's a problem 
that's calculated based on PM10 measurements. And it's 
extrapolated from that data. So the $24 million study that I 
alluded to in my comments that's being conducted at Crocker 
Nuclear Lab at UC Davis is looking at not only PM10, but PM2.5. 
And what we're finding is it's a much smaller issue for 
agriculture. It's more of an urban issue. But it's one that's 
going to be pervasive and one that is nationwide. So I believe 
that everybody will be affected by it. But we are unsure of the 
extent of it at this point.
    Mr. McIntosh. Now, one hypothetical solution to making sure 
that there wouldn't be these PM2.5 particles in the air would 
be to eliminate agriculture production, because then you 
wouldn't have that result from the disking in the spring or in 
the fall during dry periods. Would that be worth the tradeoff?
    Mr. Wade. Well, it depends on what consumers want to pay 
for a food supply and what they want in terms of food safety, 
whether or not we want an agriculture industry in the United 
States.
    Mr. McIntosh. And could you explain why EPA's proposal 
without finishing the study on PM2.5 would cause problems 
legally?
    Mr. Wade. At one time the best science we had said that the 
earth was flat. And what we're trying to do is determine best 
what the sources of PM10 and PM2.5 are. And until that data is 
available, it's going to be impossible to develop a control 
measure or a solution that's going to be equitable for the 
public and equitable for business in the country. When I'm 
making decisions on my farm, when I need to determine whether 
or not I have an insect pest that we have to take care of, we 
don't go out and arbitrarily spray because there might be a 
problem.
    We check it out. We put pheromone traps out to determine 
what the problem is. And we solve that particular problem. 
We're not doing that in this case. We've got a supposition that 
there might be a problem. And we've got a blanket solution 
without determining whether or not it's going to be helpful.
    Mr. McIntosh. Thank you, Mr. Wade. Mr. Kucinich, do you 
have any questions for the panel?
    Mr. Kucinich. Yes. I do. Thank you very much.
    Mr. Waxman. Would the gentleman just yield for a unanimous 
consent request?
    Mr. Kucinich. Yes.
    Mr. Waxman. I want to put in the record an excerpt from 
CASAC's closure letters on the fine particulate matter 
standard. And it says, ``With the incorporation of our 
suggested changes the revised criteria document will be very 
comprehensive and will provide an adequate scientific basis for 
regulatory decisions on particulate matter based on available 
information. There was also consensus that a new PM2.5 NAAQS be 
established with 19 panel members endorsing the concept of a 
24-hour and/or an annual PM2.5 NAAQS.'' Thank you.
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    Mr. Kucinich. Thank you very much, Mr. Chairman and members 
of the panel. I have a question for--is it Mrs. Kline? Ms. 
Kline.
    Ms. Kline. Yes.
    Mr. Kucinich. OK. Mrs. Kline, first of all I want to say 
that you're to be commended for working with the children in 
the fourth grade. I think teaching is very important, 
particularly in the inner city. As someone who grew up in the 
inner city, I know how influential teachers can be. And, also, 
as someone who grew up in the inner city, and with all of the 
economic problems that come from growing up in a big family in 
the inner city, I was surprised to see from your testimony that 
your students, even though the poverty rate is 86 percent, have 
fireplaces and lawns. Because in my neighborhood, we didn't 
have fireplaces and we didn't have lawns. And some of us didn't 
even have cars. And I wonder how those choices were brought 
before the children. Because in some poor neighborhoods they 
don't have those kinds of choices.
    Ms. Kline. That's right. And in my neighborhood, 86 percent 
is good. There are neighborhoods in Philadelphia that are 99 
percent poverty level. My neighborhood is a neighborhood that 
used to be, in its day, a rather well-to-do neighborhood, so 
that some of the homes in the neighborhood are quite lovely. 
But the value of them is not there any more. Some of them have 
three stories. Some of them have five bedrooms. But the value 
of the home is not there. Now, currently, we're in the midst of 
a unit on ecology. So, my students have studied a lot about 
different biosystems of the world. And they know something 
about pollution. And they know something about how to solve 
problems.
    Mr. Kucinich. Do your children ever complain about 
pollution?
    Ms. Kline. No. They really don't. Because this is their 
life. So they don't really know that there's anything to----
    Mr. Kucinich. Did you ever discuss with them the 
differences that can occur in some places where children live 
in environments which are polluted?
    Ms. Kline. Yes. Well, we've discussed things like the 
deforestation of the rain forest. And we've discussed some 
different--and they've taken trips out of the city. And they 
see what other children have in their schools. And when I asked 
last year for the children to bring in just trash that they 
find in the neighborhood--because we were going to make a 
sculpture out of it--I had wine bottles brought in and beer 
cans brought in. And, so, that's the neighborhood.
    Mr. Kucinich. OK. I have a question for Dr. Grande. You're 
the executive director of this ITACCS. Is that a full-time 
position, doctor?
    Dr. Grande. No. It's not. It's a volunteer position.
    Mr. Kucinich. How often do you meet? How often does your 
association meet?
    Dr. Grande. Well, around the world--we're an international 
association--I would say at least on average one to two times 
per month somewhere in the world.
    Mr. Kucinich. But, I mean, how often have you met in the 
United States? When is the last time you had a meeting in the 
United States?
    Dr. Grande. About 2 weeks ago. And we have one about 4 
weeks from now in Baltimore.
    Mr. Kucinich. And when you meet with this voluntary 
position that you have, did you have kind of a roundtable 
discussion among all your peers? Is your testimony 
representing--is it the product of discussions among all your 
peers?
    Dr. Grande. Well, the way the society works is we have over 
1,000 members. It's governed by a board of directors, which is 
duly elected. I was elected as executive director. Decisions 
are taken at board level. We're advised by committees or 
subcommittees, much like you are. And the consensus on this 
issue is one that has been developed, I think, over the last 9 
months or so.
    Mr. Kucinich. And when you say the consensus was developed, 
who was involved? You have 1,000 members. How many people made 
the decision about your testimony?
    Dr. Grande. The board of directors and our advisors that we 
have deemed appropriate in terms of media advice, political 
advice, much, I suppose, like the American Lung Association.
    Mr. Kucinich. So, what's the address of your organization?
    Dr. Grande. The address is P.O. Box 4826, Baltimore, MD 
21210.
    Mr. Kucinich. OK. And can you tell me if the job that you 
have--do you see air pollution as a traumatic injury at any 
time?
    Dr. Grande. It can be described that way. Yes.
    Mr. Kucinich. And if it is described as a traumatic injury, 
would you say that a reduction in air pollution could reduce 
traumatic injuries?
    Dr. Grande. I wouldn't make that statement.
    Mr. Kucinich. Could a reduction in air pollution reduce 
traumatic injuries to the lungs, the incidents?
    Dr. Grande. Well, I think the evidence that Dr. Munzer 
brought out is that we know that air pollution is a risk factor 
for not only developing the acute exacerbation of asthma. How 
important it ranks as another issue, we don't know. I think he 
stated that.
    Mr. Kucinich. So, do you support his testimony, then, with 
respect to the problems associated with air pollution and the 
impact on the lungs? Do you agree with his----
    Dr. Grande. Not completely. No.
    Mr. Kucinich. What do you disagree with?
    Dr. Grande. Well, I've discussed this issue, as I've had to 
in my role, to try to consolidate the testimony which was 
presented here today. And I've spoken with experts in allergy 
and immunology who are investigating specifically the issue of 
particulate matter particularly with a view toward the 
differences as the chairperson brought out between external and 
internal PM. And the thinking now that I've heard is that ozone 
is not an issue, and that particulate matter, nobody really 
knows where it is, and that if it's anywhere, it's probably 
particulate matter is an issue within the interior rather than 
the external area. And these proposed regulations, I 
understand, do not impact that differential.
    Mr. Kucinich. But as far as you're concerned, if it does 
get that bad, the victims, if you could call it that, could use 
an inhaler one extra time on the worst day and that would help 
them? Is that right?
    Dr. Grande. Well, no. I disagree. And I want to come back 
to what some----
    Mr. Kucinich. That's in your testimony.
    Dr. Grande. What?
    Mr. Kucinich. Your testimony is, ``According to the study 
authors, this increase in asthma exacerbation equates to one 
extra use of an inhaler among one in seven severe asthmatics on 
the worst pollution day. An important health problem? Possibly. 
But before we commit our scarce resources, wouldn't it be 
useful to know exactly where this health effect ranks among 
other public health priorities.''
    You're citing something. Do you believe this or don't you?
    Dr. Grande. I believe that that's what those authors said 
in their statement. And I used it as an example to bring up the 
equivocalness of this entire discussion.
    Mr. Kucinich. And would you prescribe an extra inhalation 
of a bronchodilator as a way of solving air pollution as 
opposed to lower particulate levels and lower ozone levels?
    Dr. Grande. Well, I think that Dr. Munzer addressed that. I 
think that patients that have inhalers know--ought to know it's 
a logical thing. If you have asthma and you're having 
difficulty breathing, and you have a methodose inhaler handy, 
use it. That's not a big issue. I take care of trauma patients. 
And as opposed to the distinction made previously, I take care 
of acute emergency asthma patients seen in the emergency 
department and in the critical care department.
    If I have two patients coming through the door--an acute 
asthma patient, pediatric, and an acute pediatric trauma 
patient--I can say almost 100 percent I can reverse that 
asthmatic situation. I can't say that in the case of the trauma 
case, even though the resources exist which would allow me to 
do that if I had it.
    Mr. Kucinich. One final question. If you were convinced 
that improved standards for PM as well as for ozone could 
reduce the number of emergency room visits by children and 
others with chronic obstructive pulmonary disease or asthma, 
would you then support those standards?
    Dr. Grande. No. I think that they have to be presented 
within the context of other priorities, and there has to be 
some rational decisionmaking by those who are elected to make 
those decisions in terms of how those moneys should be spent.
    Mr. McIntosh. Thank you very much. I will not ask any more 
questions now, but ask the panel if perhaps we could send you 
some in writing and you could provide additional answers to 
those, so that we could move on to the next panel. Mr. Sanders, 
a couple more very brief questions.
    Mr. Sanders. Yes. I didn't want Mr. Wade to feel left out 
and ignored here. So I have a question for you. Mr. Wade, it is 
my understanding that it is a coal-burning plant in Ohio that 
emits more NOx--that's nitrogen oxide, a precursor to ozone--
than all of the utility plants in New Jersey and five times the 
annual emission of the District of Columbia. And those NOx ride 
on westerly winds to the Northeast, where folks in New York and 
Vermont and Massachusetts breathe that stuff.
    Now, do you think it is fair to the families in New England 
or New York who have to spend money on medical bills or have to 
take care of sick kids, that the Federal Government not deal 
with that and that that coal plant continue to pollute?
    Mr. Wade. I have to refer to comments by Secretary Browner 
in her testimony when she used words like ``may'' and ``might'' 
that cause a problem from PM10 and ozone pollutants. Until we 
know that they do and they will, I don't think we can 
effectively say that this regulation is going to be helpful.
    Mr. Sanders. So you think that, at this particular point, 
we should ignore that problem?
    Mr. Wade. No. I don't believe we should ignore it at all. I 
think we should study it, and I think we should know what to do 
before we act.
    Mr. Sanders. I see. OK. Thank you.
    Mr. McIntosh. Thank you very much. Let me say thank you to 
all the members of the panel. I believe greatly on input from 
citizens of different backgrounds and experiences. Your 
contribution today has been very good. I think the admonition 
to use caution before we act, and make sure we know the problem 
we're addressing, and using our resources in the best possible 
manner, is a very good one. I will take that to my colleagues 
in Congress. Thank you all for participating today. We will be 
sending some additional questions.
    Let me now call forward our second panel, which are several 
officials of government outside of the Federal Government. One 
of the goals that we've had in Congress--at least as long as 
I've been here--is to make sure that we are mindful of elective 
officials and their duties in the State and local governments. 
I appreciate each of you coming here today from various regions 
of the country as well as representing different levels of 
Government and different parties in the political system, to 
participate in this hearing and to give us your input.
    As I mentioned for the first panel, it is the policy of the 
full committee to ask all of the witnesses before our 
subcommittee to be sworn in, in order to make sure their 
testimony is under oath. And, so, with all due respect, I would 
ask each of you if you could please rise and join in taking 
that oath.
    [Witnesses sworn.]
    Mr. McIntosh. Thank you very much. Let the record show that 
each of the witnesses answered in the affirmative. Our first 
witness today is a leader from the Midwest, somebody that I've 
been honored to work with when I was at the Council on 
Regulatory Issues, the Hon. George Voinovich, Governor of Ohio. 
Thank you very much. I understand fully how busy your schedule 
is. I appreciate your willingness to come and share with us 
your views on these proposed standards. Governor Voinovich.

        STATEMENT OF GEORGE VOINOVICH, GOVERNOR OF OHIO

    Governor Voinovich. Thank you, Mr. Chairman, Congressman 
Sanders and members of the subcommittee. Thank you for the 
opportunity to provide comment on the Environmental Protection 
Agency's proposed changes in the national ambient air quality 
standards for ozone and particulate matter. I'm here today as 
the former mayor of the city of Cleveland and Governor of Ohio. 
I care deeply about our environment. I was the lead sponsor of 
the legislation that created the Ohio Environmental Protection 
Agency back when I served in the legislature, and fought to end 
the drilling for gas and oil in Lake Erie.
    And I strongly support Federal, State and local programs to 
protect the environment and the health of our citizens. And I'm 
very proud. Over the last 20 years Ohio has made significant 
strides in cleaning our air. Ozone has dropped by 25 percent 
overall, and by as much as 50 percent in our urban areas 
Columbus, Youngstown, Canton, Cleveland, Akron, Toledo and 
Dayton have been brought into attainment. Cincinnati is the 
only area in the State not in attainment. And we're just that 
close to attainment.
    However, the proposed standards threaten to undo all the 
hard work and sacrifice made by our constituents to bring their 
communities into attainment. Right now, only 4 of our 88 
counties are not in attainment for ozone. And two for 
particulate matter. If these new rules go into effect, over 
half of Ohio counties will be in non-attainment.
    I oppose these proposed standards for several reasons. 
First, according to the EPA's own estimates, the cost for 
implementing the proposed standard for ozone exceeds the 
benefits. EPA acknowledges that benefits from tightening the 
ozone standard may be as low as zero. And the President's own 
Council of Economic Advisors predicted that the benefits would 
be small while the cost of reaching full attainment could total 
$60 billion.
    Second, the costs of the proposed standard have been vastly 
underestimated. Although EPA estimates the annual compliance 
cost for the ozone standard would be $600 million nationwide, 
we project the annual capital expenditures for Ohio utilities 
alone will exceed $730 million. These costs are estimated to 
boost utility rates more than 17 percent in some areas, with an 
average increase of about 7 percent.
    Third, the projected benefits of the proposed ozone 
standard appear minimal. My own health director reports that 
Ohio doctors will see no perceptible decrease in hospital 
visits as a result of these proposals. And as the subcommittee 
is no doubt aware, EPA recently has backed off even their own 
modest benefit projections. EPA now admits that the current 
standards are providing greater health protection than 
originally thought. I respectfully urge the subcommittee to 
request that EPA provide an updated analysis taking into 
account new cost and benefit data.
    Fourth, with regard to particulate matter, there is no 
reliable monitoring data and no established monitoring 
methodology. As a result, EPA can only guess which areas will 
be non-attainment under the new standards. So, Federal 
estimates of compliance costs are highly questionable.
    And finally, scientists do not fully understand the links 
between particulate matter and health effects. More information 
is simply necessary. And I think that the President agrees with 
that. Because, as you know, in his budget he has asked for a 
37-percent increase for research into the potential links 
between PM exposures and health effects. And I think in that 
budget message, in the presentation, it said, ``To reduce the 
great uncertainty about PM's health effects, EPA will continue 
its effort to identify the mechanisms by which particles affect 
human health.''
    This is clearly a case of putting the cart before the 
horse. I find it hard to believe that anyone in public service 
has the luxury of throwing billions of dollars at a problem 
without knowing if it is hitting the right target. Yet that is 
exactly what EPA is proposing to do. I say, show me the 
science. Without a significant public health benefit, one must 
ask, why are we going to impose these job-killing rules. Small 
businesses and manufacturing jobs in Ohio and across the Nation 
will be devastated.
    America's competitiveness in the global marketplace 
undoubtedly will suffer from this unnecessary burden as our 
trading partners benefit from our lack of judgment. A Ford 
motor facility in Ohio had the following real world example of 
the impact the proposed standards for particulates will have. 
And I think, Congressman Kucinich, that this facility is in 
your district.
    The Cleveland Casting Plant currently controls more than 95 
percent of the particulate sources. Controls on the remaining 
stacks would produce very little if any additional reduction. 
Therefore, should additional reductions be required, there may 
be no choice but to curtail production from current levels.
    Another company in northeast Ohio wants desperately to 
expand, not just to meet the exploding demand that they have 
for their product, but also to take care of their current 
customers. They employ 61 employees at the moment. At the 
present time they do not know whether they ought to go forward 
and expand the way they'd like to.
    In other words, these proposals are creating a catch-22 for 
this company. If they do not expand, they risk losing customers 
and market share. However, if they do expand and new standards 
are implemented, they risk being out of compliance. EPA's 
proposals, literally--I think this is important today--are 
checkmaking job creation in this country. As a former mayor, 
I'm concerned also about the impact of these proposals on these 
vulnerable communities. And you'll be hearing from 
Representative Schoenberg, who I'm sure will speak eloquently 
to the impact that it's going to have on the city of Chicago.
    I would also like to say that I worked with this committee 
several years ago in terms of dealing with unfunded Federal 
mandates. Certainly, these proposed rules are a very, very 
large unfunded mandate. And, also, in my opinion, the way the 
EPA contemplates adopting the rules violates SBREFA, which is 
another thing that Congress has done to try and get some sense 
in some of these initiatives in the environmental area.
    I'd like to conclude and point out that almost every major 
newspaper in Ohio has editorialized against these proposals. 
And ordinarily, our newspapers in the State are great advocates 
for a clean and healthy environment. Our largest newspaper, the 
Cleveland Plain Dealer, said it best. ``To oppose the EPA's new 
rules is not, as some supporters suggest, to favor air 
pollution, asthma attacks, or premature death. To oppose these 
rules is to favor solutions to
identifiable problems, expenditures that produce the predicted 
results, science that stands up to scrutiny, and rulemakers who 
respect the difference and laws that expect them to do that.''
    Thank you for this opportunity to appear before your 
committee.
    [The prepared statement of Governor Voinovich follows:]

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    Mr. McIntosh. Thank you very much, Governor. I look forward 
to talking with you more on this. A great quote from your 
newspaper in Cleveland. Our next witness has traveled to us 
from--she's the mayor of San Diego, and traveled here from the 
West Coast to be with us. I truly appreciate that. Let me now 
introduce Mayor Susan Golding.

       STATEMENT OF SUSAN GOLDING, MAYOR OF SAN DIEGO, CA

    Ms. Golding. Thank you, sir. Mr. Chairman and members of 
the committee, I appreciate the opportunity to appear before 
you today and speak about the EPA's proposed standards for 
ozone and fine particulate matter. As the mayor of one of the 
largest cities in the country, I'm very much aware and take 
very seriously the responsibility of protecting the public 
health. And I strongly believe we have made tremendous progress 
in cleaning our air, and that we should continue our efforts to 
make the air cleaner.
    I'm aware of my responsibility in that regard, just as I 
believe the EPA honestly believes they will improve the health 
of every San Diegan, if the air standards on these two issues 
are made more stringent. All cities should have cleaner air. 
However, simply ordering us to clean our air to meet unproven 
standards without clear implementation plans is not in the best 
interest of my city, my citizens or any city in this country.
    As a basis for my comments, let me give you a little 
background on my region. We're the sixth largest city in the 
country, with a population of 1.2 million residents. Our county 
has approximately 2.2 million residents. Our air quality is 
monitored and regulated by our local air pollution control 
board. Unlike most States, California places the responsibility 
for achieving attainment standards in the hands of individual 
counties, who then design programs to fit those unique needs.
    There is flexibility in doing this, and we find it's far 
more effective in actually accomplishing goals. Let me assure 
you we are committed to cleaner air for all our citizens. Our 
air pollution control board, on which I served as chair, and 
served for at least 8 years, has been a leader in pursuing 
programs which have steadily improved our air quality over the 
last 10 years. As you know, California is known as an 
environmentally sensitive State, and we have very strict 
standards ourselves.
    In San Diego, the number of days we exceeded the Federal 
air quality standards dropped from 39 in 1990 to only 2 in 
1996. And I should note for the record that those 2 days were 
directly attributable to wind conditions we call ``Santa Anas'' 
which transport air from Los Angeles to San Diego. We already 
have rigorous control programs in place and they are, in fact, 
working. We have a compliance division comprising 30 staff 
members--this is for this region only--who actively followup on 
citizens' complaints, and who perform regular site visitations. 
These efforts have produced very measurable, significant and 
favorable results.
    Yet as good as we have become, our air pollution control 
board estimates that if the EPA's new proposed standards become 
law, our county could be out of compliance for ozone more than 
40 times the first year, and that we might never reach full 
attainment. Because of the stricter standards we already have 
in California, and the types of programs we have implemented to 
meet those standards, I remain skeptical when the EPA says that 
by simply further regulating our already highly regulated 
stationary industries, we can, in fact, attain these new 
levels, unless, of course, we attain them by putting them out 
of business.
    It just isn't always so. According to the San Diego Air 
Pollution Control District's annual report, ozone producing 
emissions from businesses account for less than 15 percent of 
our region's air quality problems. San Diego's aggressive 20 
year air quality program has already reduced emissions from 
stationary sources through the application of strict emission 
controls. The emission reduction well is pretty dry. Any 
further minimal reductions from stationary sources can only 
come from drilling the well deeper into smaller businesses or 
industries with small emissions, such as biotech, electronics 
or agriculture.
    I think it is prudent then to ask, what is the cost? The 
question we would have to ask ourselves as elected officials 
is, how do we make up this difference? If we're down to 15 
percent on traditional sources, where do we turn for further 
reductions, and what do those further reductions cost, and what 
is the net benefit or effect? What other priorities would have 
to be compromised? Would we have to stop sweeping our streets 
for fear of raising airborne dust?
    Would we have to take actions against our citizens as were 
contemplated in the district north of us--outlawing fireplaces 
and barbecues as has been suggested in some areas? Would there 
be a loss of jobs because of costlier equipment mandates which 
could result in lost health care benefits and financial 
stability for our citizens. Now, those certainly would be the 
extremes, but I have to tell you that I agree with much of the 
Governor's comments. It is only rational to pursue scientific 
standards. But we need to know what the benefits of these new 
standards are and the levels of protection these new standards 
would bring.
    We don't really know at this point, and that's what makes 
me skeptical. One analysis in the Wall Street Journal said 
these proposals could cost more than $10 billion annually. And 
the Council of Economic Advisors estimates that the true cost 
of full attainment could be upwards of $60 billion. I realize 
that the EPA has stated that air quality standards are supposed 
to be based solely on their effect on the public's health and 
welfare and costs are not supposed to be considered in setting 
them.
    That simply isn't realistic. Costs are considered in 
everything we do. I do think shouldn't the EPA have to show 
that a true benefit will occur? That, to me, is only logical. 
Major changes should not be recommended without considering the 
costs, because then you are not considering one, whether they 
can be attained, and two, whether they can be enforced.
    The EPA analysis has failed to clearly demonstrate any 
quantifiable health benefit associated with the proposed ozone 
revisions. And the creation of a new PM2.5 particulate matter 
standard is being challenged by a number of segments of the 
scientific community as well as--at least at the level it is--
as well as the EPA's own scientific advisory committee and 
other agencies in the Clinton administration for using 
questionable tools during the research. And those have already 
been indicated through other testimony here today.
    This debate, by the way, reminded me of a situation that we 
have in San Diego. Mr. Chairman, if you'll allow me very 
briefly to tell you that the Clean Water Act, which I also was 
a supporter of, required San Diego to go to secondary sewage 
clean up. It would have cost us $5 to $10 billion to do that. 
And cost was not a consideration. A single set of standards was 
adopted without taking any of the local differences into 
consideration. After being ordered to comply, sued, agreeing to 
a consent decree, refused permission to even apply for a 
waiver, and then having it granted, we eventually emerged 
victorious after numerous years and cost to the public. And the 
reason was science was on our side.
    So all I'm asking is that when the EPA does this, it bases 
the new standards and the levels of those standards on real 
science, not on a guess.
    Thank you, sir.
    [The prepared statement of Ms. Golding follows:]

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    Mr. McIntosh. Thank you very much. And your record of 
environmental accomplishment is very impressive, I know, in San 
Diego. I appreciate your comments. Our third witness in this 
panel is a member of the Illinois House of Representatives. I 
noticed he is also chairman of the General Services and 
Equivalent Government Oversight Committee for that legislative 
body.
    Mr. Schoenberg. Yes, sir.
    Mr. McIntosh. Welcome. I appreciate you coming and sharing 
your testimony--Representative Jeffrey Schoenberg from 
Illinois.

 STATEMENT OF JEFFREY SCHOENBERG, ILLINOIS STATE REPRESENTATIVE

    Mr. Schoenberg. Thank you, Mr. Chairman and members of the 
subcommittee, for this opportunity to appear before you today 
to discuss the changes in the proposed ozone standards.
    My name is Jeffrey Schoenberg and I am a State 
representative from the 59th District in Illinois. As the 
chairman indicated, I am currently chairman of the Illinois 
House Appropriations Committee for General Services and 
Government Oversight. I'm the vice chairman of the Human 
Services Committee. I sit on the Financial Institutions 
Committee. And I'm also a member of the Illinois Economic and 
Fiscal Commission, which is the State's bipartisan revenue 
forecasting agency.
    My district is in the metropolitan Chicago area, 
specifically in suburban Cook County, just outside the city, 
and includes all or portions of Glencoe, Winnetka, Kenilworth, 
Wilmette, Evanston, Skokie, Glenview and Northfield. My 
legislative district also falls within one of the two ozone 
non-attainment areas in the State.
    As stated earlier, one of the primary goals of the Clean 
Air Act Amendments of 1990 is to protect human health and the 
environment by providing safer, cleaner air for Americans. 
There is certainly no argument as to the desirability of this 
goal. I'm hopeful that, in the long run, the air quality 
standards proposed by the USEPA with respect to ozone and 
particulate matter can be achieved.
    In an era when Government resources are already being 
strained to the limits, I am fearful, however, that these new 
standards are doomed to failure unless there is both adequate 
funding and new strategies for implementation of these 
standards. The economic consequences of the proposed rules, as 
Governor Voinovich and Mayor Golding pointed out earlier, will 
preclude any health gains and will result in differences for 
the people of my area and others and the entire metropolitan 
Chicago area unless there is effective cooperation between 
USEPA and the affected governmental entities.
    Just several days ago, the Illinois legislature made a 
concerted effort to further ensure that the public interest is 
well served with respect to clean air issues. Just last week, 
we in the House passed legislation that would require the 
Illinois EPA to submit any proposed revisions to the State 
implementation plan to the general assembly for public hearings 
60 days prior to submission to the USEPA. In my view, it is 
imperative that these open hearings are held. The public must 
be permitted to comment on any proposed changes to Illinois' 
clean air standards and their impact on the environment, energy 
use, utility costs and rates, economic development, 
transportation fuel costs, and industrial competitiveness.
    As legislators, we believe that it is not necessary to 
submit a plan to USEPA that is more stringent than the proposed 
standards and more costly to implement unless the Illinois EPA 
can demonstrate otherwise. Furthermore, last year the Illinois 
House passed a resolution regarding the EPA's review of the 
national ambient air quality standards for ozone and 
particulate matter. The Illinois House Resolution 95 urged the 
USEPA to test the potential health impacts and economic 
consequences on the State as it conducted its review of the 
existing standards.
    This policy statement, which was forwarded to USEPA 
Administrator Browner, also urged the agency to identify any 
unfunded mandates or other administrative burdens for State and 
local governments, agencies, citizens and consumers in non-
attainment areas. Since raising the existing standard would 
expand the number of ozone non-attainment areas, it seemed 
likely that Illinois and its citizens would be significantly 
burdened with a massive unfunded mandate. Stricter standards 
would impose new mandates on vehicle inspection maintenance 
programs, limit economic development, require the use of 
reformulated gasoline, and result in other controversial 
emission controls in these non-attainment areas.
    That was last year. Now, under the newly proposed NAAQS 
regulations, our worst fears of a massive unfunded mandate have 
apparently been realized. Although the numbers have been 
disputed--they're either higher or lower depending on who you 
consult--the estimated implementation costs for the proposed 
PM2.5 regulation ranges anywhere from $2 to $14 billion. These 
are USEPA's own figures from their regulatory impact analysis 
ES-14. USEPA claims that approximately 60 percent of those 
costs would be incurred by non-attainment areas east of the 
Mississippi River, including the Chicago metropolitan area.
    In their formal comments USEPA, the Illinois EPA stated 
that the implementation costs of the proposed regulations will 
indeed have a ``significant economic impact,'' thus triggering 
the Unfunded Mandates Reform Act of 1995. Under the act, USEPA 
is required to estimate the aggregate economic impact that the 
revised standards will have on State and local governments. The 
agency is also required to complete and publish and in-depth 
analysis that provides: one, a qualitative and quantitative 
assessment of the anticipated costs and benefits of the 
mandate; two, analysis of Federal financial assistance and 
other Federal resources available to State and local 
governments; three, estimates of future compliance costs; four, 
analysis of any disproportionate budgetary effects on any 
regions, States or localities; five, estimates of the effects 
on the national economy; six, reports of EPA's prior 
consultation with elected State and local officials; seven, 
summary of submitted comments from the various levels of 
government; and eight, EPA's evaluation of those comments.
    The USEPA must make adequate resources available and 
provide flexibility upon implementation of the proposed 
regulations. In their formal comments, the Illinois EPA stated 
that, ``It is essential that USEPA recognize the significant 
costs associated with the implementation of NAAQS for PM2.5 and 
that it commit to providing the States with the necessary 
funding.''
    Currently, it costs the State of Illinois $830,000 annually 
for ozone and particulate matter monitoring in the non-
attainment areas. Our State's EPA staff estimates further that 
the capital costs for monitoring site equipment will cost the 
State an additional $500,000 over the 3-year phase-in period 
for the new standards. While the EPA has released its 
regulatory impact analysis, its cost estimates are widely 
perceived to be unrealistically low. Even if the EPA is 
lowballing its estimates of $2 to $14 billion, that is still 
far too high for counties and cities that must meet their 
financial obligations with limited resources.
    A recent American Petroleum Institute study estimated the 
cost at $11 to $60 billion for ozone, and at least $25 billion 
for the PM standard. This is an incredible amount of money--
money that most States, including Illinois, simply don't have. 
The health goals behind the proposed standards cannot be 
reached without a properly funded implementation strategy. 
These new standards will have a highly negative impact on the 
people who reside in the city of Chicago proper and its 
outlying suburban communications if USEPA does not provide 
adequate administrative and financial support.
    The limited resources that are currently allocated for 
other environmental programs such as the Brownfield 
redevelopment, which has been a major economic development and 
environmental policy initiative of the administration of 
Chicago Mayor Richard M. Daley; improvements in commuter rail 
lines; Superfund site remediation, and other conservation 
projects would be diverted away from these major programs. 
There are far greater environmental benefits for both city and 
suburban residents of the metropolitan Chicago area by updating 
the rail system and providing efficient public transportation 
than by setting a clean air standard that is unattainable and 
which will drain precious financial resources. The metropolitan 
Chicago area has an excellent and accessible public 
transportation system which brings tens of thousands of 
commuters in and out of Chicago's downtown area daily.
    In conclusion, we need to continue focusing on the long-
term objective, which is that clean air is an important aspect 
of good public health and welfare. But if the USEPA is going to 
set tougher ozone standards, then the Agency must work closely 
with the States and specific non-attainment areas when amending 
implementation plans to be as flexible as possible and to 
provide additional funding. We should be working together to 
set attainable goals. The clean air standard should be set at a 
level that is scientifically reasonable and financially 
possible to achieve. Prior to finalizing the new ozone and 
particulate matter standards, the USEPA must first adhere to 
all aspects of the Unfunded Mandates Reform Act, specifically 
identify financial resources available to State and local 
governments, and provide estimates of future compliance costs.
    After all, money spent on attaining the new standards is 
likely to be money diverted from other effective State and 
local programs. It's only reasonable to require that the USEPA 
fulfill its obligation under the law, especially when billions 
of dollars are at stake. On
behalf of the city and suburban residents of the Chicago 
metropolitan area and the State of Illinois, thank you for this 
opportunity to present this testimony before the committee.
    I'm happy to answer any questions. Thank you.
    [The prepared statement of Mr. Schoenberg follows:]

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    Mr. McIntosh. Thank you very much, Representative. Our next 
witness hails from the district of our colleague, Jim Turner. I 
will yield a moment for him to introduce her.
    Mr. Turner. Thank you very much, Mr. Chairman. It is a 
pleasure to welcome and to introduce to the committee, Mayor 
Frances Monk from Port Neches, TX in my part of Texas. And I 
would say, Mayor, as a former mayor of a small town, myself, 
it's an honor to have you here speaking out on the impact of 
the proposed EPA regulations on our smaller communities, where, 
as you know, we struggle to balance budgets under very 
difficult circumstances. And in our part of the State, we work 
very hard to secure our economic base, to be sure we'll 
continue to grow and be viable in the years ahead.
    I know you've worked with the Air Quality Advisory 
Committee of the regional council of government that you've 
been active with. And we welcome you here. And we look forward 
to your testimony. Thank you, Mr. Chairman.
    Mr. McIntosh. My pleasure. Thank you, Mr. Turner. And I 
second that welcoming. Mayor.

      STATEMENT OF FRANCES MONK, MAYOR OF PORT NECHES, TX

    Ms. Monk. Thank you. I appreciate the opportunity to be 
here. I speak to you not from the science, not from the health, 
not from the cost-benefit analysis. My primary concern is that 
the setting of sound public policy is a fundamental function of 
government. And we're dealing with a policy matter here. Some 
years before the Clean Air Act amendment was implemented, 
industries in my region of Texas began to work together to 
reduce the harmful effects of pollution dramatically. I direct 
your attention to the first chart over here, which shows you 
the trend of ozone formation network in our region, which shows 
you from 1972 to the present time, we have made dramatic 
improvements in air quality.
    These levels of progress have levelled off in the past few 
years. Since 1985, in spite of new technology, shutting down 
old refinery units, numerous control strategies which have been 
implemented, we've seen very little improvement. Why are these 
current efforts not moving us toward attainment? I submit, like 
many areas of the country, Texas has a variety of conditions 
that contribute to air pollution: dust storms in north Texas, 
the transportation problems of Dallas, Fort Worth, Houston 
metropolitan area. But the Texas Gulf Coast has a little 
different problem. Many of you know that folks from all over 
the country go to our part of the country to get to the 
sunshine, the water sports, escape from winter problems.
    But those very assets in our environment contribute to the 
formation of ozone. We have so many beautiful trees, so much 
sunshine, and so many other factors, like swamps and swamplands 
that contribute to the precursors of ozone formation, that all 
of our efforts to lower our levels have had only very minor 
results. Science doesn't explain the meteorological impacts on 
ozone formation. Air transport has not been figured into the 
formula when the air monitors show an exceedance.
    Actually, ozone exceedances are a rarity. If you look at 
the data, you find that they're not a common occurrence. In my 
area, for example, we show attainment of the current ozone 
standard 99.98 percent of the time. Now, I submit to you that 
that's more pure than Ivory soap, and I was comfortable bathing 
my babies with that. If we look at the next chart, which shows 
the 1983 to 1995 chart, we see an almost flat line for ozone 
standard. Now, there are two lines on this chart. The dotted 
line represents the current standard.
    The red line indicates the proposed new standard. Forty 
years in public school classrooms made me feel that a picture 
is worth many, many words. So I came armed with these charts to 
let you see not emotional appeals, but what the data shows. 
Compare the flat line with the long-term trend in Longview, TX, 
where you have an area that's not heavily industrialized.
    Another comparison that you might--you see the flat line. 
Another comparison you might make is Phoenix, AZ, where the 
same pattern is reflected. I would direct you to the other 
charts that are in the pamphlet which you have before you, and 
tell you that all of this information came from EPA data bases.
    This is available to any one of you. All you have to do is 
ask for it. If you are in a monitored region, EPA has this 
information, and they'll provide it for you. Before we set near 
impossibly unattainable standards, let's get a better 
understanding of the true source of the problem. How much does 
transport contribute? How much is background level for a 
region? My region, for example, shows a 0.04--0.08 background 
level. This is before we start operating the first business or 
industry.
    And average background level doesn't show a true picture, 
since each region is unique. And with all of the Federal and 
State controls that have been imposed since 1972, the data do 
not indicate similar progress toward achieving the proposed 
standard. If the proposed new standards are adopted, hundreds 
more cities and counties will be forced to develop 
implementation programs that will affect small and large 
businesses as well as private lifestyles, all of this with no 
certainty that their efforts will be successful. We must ask 
ourselves if there is reasonable expectation that the proposed 
standards can be achieved.
    Sound public policy requires standards which are both 
enforceable and attainable. If my small city had a traffic 
fatality problem, our city council might solve it by reducing 
the speed limit in the city to 5 miles an hour. But that would 
not be enforceable, nor would it be attainable, and would 
probably result in all of us being replaced at the next 
election.
    We all support the goals of clean air and water. We can't 
ignore other critical concerns. While we pour millions of 
dollars into minute improvements in air quality, wouldn't it be 
better to work with the tools that will enable us to succeed 
instead of just arbitrarily setting standards which may not do 
anything other than provide economic hardship for our cities 
and counties and which do not consider other contributing 
influences on public health. My own asthma and that of my 
grandchildren is the result of milk and household molds.
    Now, I don't propose that abolishing milk would be sound 
public policy. We are all in this struggle together. it's not a 
partisan effort. And we need to seek common, reasonable 
solutions.
    Thank you.
    [The prepared statement of Ms. Monk follows:]

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    Mr. McIntosh. Thank you very much, Mayor. I notice at the 
back of your submitted written testimony you've got similar 
charts for various areas of the country, and I'll make sure 
that the members of the committee receive those.
    Ms. Monk. Thank you. I believe that you will find that the 
areas for the members of the committee as well as some of my 
fellow panelists are included in those charts.
    Mr. McIntosh. Thank you very much. Our next witness is from 
the New York State Assembly. We appreciate you coming down, 
representing the northeast region of the country. The Hon. 
Richard Brodsky.

    STATEMENT OF RICHARD BRODSKY, NEW YORK STATE ASSEMBLYMAN

    Mr. Brodsky. Thank you, Mr. Chairman and members of the 
panel. I'm Assemblyman Richard Brodsky of New York, chairman of 
the New York State Assembly Committee on the Environment, 
former chairman of the Committee on Oversight and 
Investigation. And I share this committee's continuing concern 
that the legislature act as the thorough check on process, and 
deal with agencies of the Government in ways to ensure that 
they obey the law as the law is written by the legislature.
    I am here today to address the regulatory impact statement 
of the EPA with respect to the proposed rulemaking. And my full 
written testimony goes into this in greater detail. But I will 
highlight it for you. In developing the document, EPA has 
inadequately considered the true health impacts and health 
benefits of the rulemaking. For example, EPA only considered 
hospital admissions as the indicator of adverse health effects. 
Emergency department visits, asthma attacks, private physician 
visits, increased medication use, lost work days and increased 
frequency of respiratory systems were all not considered by 
EPA. Those benefits to the people of the Nation and my State 
need to be considered.
    EPA, by its own admission, was unable to monetize some of 
the very critical health benefits of the proposed rules. These 
benefits included reduced chronic respiratory damage, premature 
aging of the lungs, reduced mortality and morbidity from lower 
fine particle levels, reduced cancer and other health effects. 
Furthermore, the EPA did not monetize the important benefits to 
my State with respect to reduced nitrogen deposition in 
sensitive estuaries, protection of the parks, forests, and 
ecosystems.
    Sulfates and nitrates are often emitted in the form of fine 
particulate matter. And the RIA failed to quantify the benefits 
of reduced acid rain deposition in the Adirondack Park, which 
is the largest public park in the contiguous United States. 
Over 300 lakes and ponds in that area are losing their ability 
to support aquatic life. The economic effect of that with 
respect to tourism is considerable. And the RIA had failed to 
consider that. It has also failed to consider the economic 
benefits of ozone and PM controls, which occur from the reduced 
emissions of sulfur dioxide. Again, the New York State acted in 
the early 1980's to clean up its own house.
    That has left us at some disadvantage at the cost of 
producing electricity. And the ability of a more national 
standard with respect to those emissions would enable New York 
to cease paying the economic penalty for its advanced public 
health concerns. In conclusion, the failure of EPA to 
significantly quantify the benefits, monetary and otherwise, is 
of some deep significance.
    Mr. Chairman, one of the interesting things that I've been 
able to learn in the listening today is that there's going to 
be a regional dispute here. Because part of the problem is that 
the costs that may be applied to cleaning up this problem are 
not necessarily going to come from the same reasons that suffer 
from the effects of these dangerous substances. And it seems to 
me particularly appropriate that a national forum and standard 
be set so that the people of my State are not poisoned by 
people of other States. That takes us back to the debate that 
has been had by other witnesses today and that we have had 
within our own legislature.
    There are essentially two questions that need to be 
addressed. The first is, does this stuff hurt anybody? Is it 
toxic? Are people being damaged by it? What do scientists and 
doctors, not necessarily informed laypeople, as you and I may 
be, say about that. I have concluded that the evidence on that 
point is very, very strong. This stuff is dangerous. You can 
measure that danger. And people are being hurt by it. That is 
not necessarily the end of the question even though the law, in 
refusing to permit cost-benefit at this stage of the process, 
may indicate that it is the end of the debate.
    The next step is this question of cost-benefit analysis. 
And it is an absolutely fascinating area for public policy 
debate. We have been asked to come here today to discuss the 
rationality of the cost-benefit analysis placed before you and 
the American people. I have tried to do that answer shown in 
substantial ways how it has not adequately considered the 
benefits of this proposed rulemaking. I listened with respect 
to my colleague, the Governor of Ohio. And what I find 
interesting and somewhat disturbing is that in most cases, the 
opponents of the rule attack the calculation of costs by EPA as 
inadequate, but accept EPA's calculation of the benefits 
without challenge.
    Now, if one is going to be skeptical about a Government 
institution, as the chairman is--and I have been in my 
chairmanship--then we ought to be skeptical about both ends of 
the process. When I hear skepticism on one side, I get 
concerned, as someone charged with protecting the public health 
of my State. The fact of it is, the benefits to significant 
numbers of people in my State have not been considered 
adequately. And if they were, perhaps the opinions of these 
distinguished colleagues in Government and members of this 
panel might change.
    But even if we rationalize the cost-benefit system, let me 
suggest that it is a morally repugnant exercise. We have been 
asked to consider the value of a human life at $4.8 million. We 
have been asked, according to EPA data, to consider the value 
of pain upon deep inhalation as anywhere between $1.26 and 
$28.04. The pain of a cough should be valued under our new 
system at anywhere between $1.26 and $13.84.
    If the forum would permit--and I don't mean to put the 
gentlemen at a disadvantage--I would say to the people of the 
State of Ohio, exactly what is the life of a 72-year-old 
grandfather taking care of a family in New York City worth in 
monetary terms? And should the Government of this Nation be 
involved in that? This is Orwellian. This is a challenge to the 
notion that there is a value in families that we cannot 
monetize. We are commoditizing the people of this Nation under 
this process, and doing so in a way that can only exacerbate 
the fundamental divisions that we've seen regionally, racially, 
and at class in our society.
    The issue before the Congress and America is, is the stuff 
dangerous? And if it is, we ought to stop it. And we ought to 
stop it in the most cost-effective way. But that is the second 
level of inquiry, not the first one. And I urge those who speak 
most effectively and outspokenly about the values of families 
to realize that we are participating in a process that sets the 
values of families in dollar terms and ways that are morally 
repugnant to me and, I believe, the American people.
    I appreciate, Mr. Chairman, the opportunity to offer this 
testimony. I would be glad to answer any questions.
    [The prepared statement of Mr. Brodsky follows:]

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    Mr. McIntosh. I appreciate you coming, Mr. Brodsky. We'll 
get to questions with the rest of the panel in just a moment. 
Our final witness on this panel is State Senator Richard 
Russman, from New Hampshire. My vice chairman apologizes for 
not being here to greet you, but asked me to do so. Welcome to 
this panel. I appreciate you taking the time to come down here 
and testify. Senator Russman.

   STATEMENT OF RICHARD RUSSMAN, NEW HAMPSHIRE STATE SENATOR

    Mr. Russman. Thank you, Mr. Chairman, and members of the 
committee. I was beginning to think that between the milk 
causing asthma and the fertilizer causing particulate problems, 
we'd have to shoot all the cows. But hopefully that won't be 
necessary. My name is Richard Russman. I'm a State Senator from 
New Hampshire. And I thank you for letting me come before you 
today.
    Myself and New Hampshire enthusiastically support the rules 
on ozone and particulate matter proposed by the EPA. And we 
believe that they are following a law, which is the Clean Air 
Act statute on health-based standards. We're satisfied as a 
State. And we think that the science that it's based on is good 
science. I've had the opportunity to talk with some of the--
while I'm a Republican, I've talked this over with the 
Democratic leadership before coming down here. And they would 
share my endorsement of the standards at the same time.
    I do have to disagree with a recent argument that was 
recently put forward by the National Conference of State 
Legislatures--and I believe you got a letter from them--I am 
the immediate past chairman for NCSL's committee on the 
environment--saying that EPA has not sought input or considered 
the role of the States. I think since the proposal has come 
forward, the EPA has made diligent efforts to include all the 
affected parties and have been developing strategies to 
implement the rules when they become final. I think EPA has 
worked through the Federal Advisory Committee Act, and has 
established working groups on ozone, particulate matter, and 
regional ozone transport to provide advice to EPA and the 
States which are charged with implementing the rules, as it 
should be.
    EPA has wisely expanded the membership of the working 
groups and has extended the comment period and the final 
deadline for these final rules. And I will see that the FACA 
membership list is submitted to you for the record. It's 
extensive. Input from working groups and the scientific 
advisory committee has been extensive, as have been the 
justifications put forward by the EPA. I believe that this 
administration has worked to reform the regulatory process and 
done a good job.
    They have also made a strong case for the benefits of these 
rules, which I respectfully would remind you are health-based 
only. The costs can be and will be considered further in the 
implementation stage. And that is not to say that there are 
those who have concerns about those. And they're probably 
legitimate concerns. But they will be addressed. Being from New 
Hampshire, I'm worried about the continuing effects of ozone on 
our region. Agriculture and forestry are beginning to suffer--
as much as 10 percent loss for some crops.
    This is bad for the American economy in terms of consumer 
goods and tourism. These are quantifiable benefits that are not 
fully accounted for in the rule. I would even go so far as to 
say that I think these rules will be good for business. And I 
think they will spur the economy. Historically, when the Clean 
Air Act was first suggested, there was a hue and cry sent up. 
And if you look at the record, our economy is doing better now 
than it's ever been doing.
    So, certainly there is some merit to having some of these 
rules in place. More importantly, we can't overlook the 
mortality and the health impacts of continuing to expose our 
fellow Americans to ozone and particulate matter. And I think 
we can all agree on that particular point. It would be 
difficult to quantify the value of healthy air in terms of what 
it means to various citizens that breathe it. We can debate the 
implementation strategies. And I'm sure we will. And I'm sure 
we'll debate the best way to achieve the attainment.
    But the Clean Air Act is clear about the standard being 
health-based. And it should be. The question that we had before 
us today was, is EPA above the law. I don't think that they 
are. And I think that EPA is doing its best to uphold the law 
and to protect the health of the American people. And Hew 
Hampshire would certainly urge the Congress to be supportive in 
their particular effort. New Hampshire thanks you. And 
certainly, I'd be happy to answer questions if I can.
    [The prepared statement of Mr. Russman follows:]

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    Mr. McIntosh. Thank you very much, Senator Russman. I 
understand that Mr. Waxman has another engagement. And so, I'll 
yield my place of questioning, if you want to take your 5 
minutes, and then I'll go after you.
    Mr. Waxman. Thank you very much, Mr. Chairman. I appreciate 
this courtesy to me. Because I do have a conflict in my 
schedule. And I thank all the witnesses for your testimony 
today. And I wanted to direct my questions to Governor 
Voinovich. Governor, this morning we heard from Dr. Munzer, who 
is a lung specialist, and he told us, representing the American 
Lung Association, that he deals with kids who have asthma 
attacks triggered by the levels of ozone that are lower than 
our national standard.
    We have overwhelming statements from all these scientific 
experts that there's a connection between ozone and 
particulates and asthma attacks. And, of course, an asthma 
attack is a pretty awful thing for a child--for anybody--but 
for a child it can be life threatening. Many of them end up in 
the emergency rooms of the hospitals. Do you dispute that there 
is a connection between ozone and particulates and asthma 
attacks?
    Governor Voinovich. No. First of all, I think that the head 
of our health department, Dr. Peter Somani, has looked at this 
and reviewed it, along with our Environmental Protection 
Agency. And Dr. Somani basically said that the proposed new 
standards will not have any measurable impact on the health of 
the people in the State of Ohio.
    Mr. Waxman. Let me ask you----
    Governor Voinovich. And even----
    Mr. Waxman. Excuse me, Governor.
    Governor Voinovich. And even EPA has said it will have 
little or marginal impact on ozone.
    Mr. Waxman. This is our chance. You're not being fair to 
me. You had your chance to testify. This is our chance to ask 
you questions.
    Mr. McIntosh. But Henry, let him answer the question 
specifically.
    Governor Voinovich. Let me answer the question.
    Mr. Waxman. My specific question is do you doubt that there 
is a connection? Leave the rule aside. Leave the cost aside. Do 
you doubt that there is a connection between air pollution and 
asthma attacks in kids?
    Governor Voinovich. The fact of the matter is that I'm sure 
that there is some impact. But the question is whether or not 
increasing the ozone standard is going to have a measurable 
impact at all on the question of asthma. And even the EPA has 
revised its predictions in terms of the impact on public 
health. As a matter of fact, Congressman Waxman, 53 million 
Americans, they admit, won't even benefit from this because 
they'll never be able to attain the standards.
    Mr. Waxman. Governor, 1,350 health professionals have 
written a letter to the President saying it's important that we 
go forward with their new standards in order to protect the 
public. And 27 of the Nation's most distinguished air pollution 
health effects experts
 are urging President Clinton to go ahead with EPA's proposal. 
And I want to put into the record without any objection that we 
have that statement so that the people reading this transcript 
will see it.
    [The information referred to follows:]

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    Mr. Waxman. There are two issues: whether there's a 
connection between air pollution and asthma and heart disease 
and these kinds of serious medical consequences.
    Governor Voinovich. Risk.
    Mr. Waxman. The second issue is what is a standard to 
protect and prevent--protect public health and prevent some of 
that.
    Governor Voinovich. Mm-hmm.
    Mr. Waxman. And then the third issue is what costs are 
going to be incurred and how to evaluate that. Now, just so I 
don't look like I'm a partisan, I've been involved in clean air 
for a long time. And I remember Governor Celeste, the 
Democratic Governor of Ohio, coming and testifying to us that 
if we control the pollutants that cause acid rain, it's going 
to be an extraordinary cost. In fact, what the electric 
utilities were saying at the time, that acid rain allowances 
would cost between $1,000 and $1,500. We went ahead and adopted 
the law, and it ended up costing $100.
    So what I'm concerned about is that we not trivialize what 
happens to kids with asthma. They end up going to emergency 
rooms. Sometimes it's life-threatening, because they can't 
breathe. A lot of kids with asthma live in the State of Ohio. 
And there's a cost to them if we don't get a standard that will 
protect their health. Once we've got a standard that will 
protect their health, then we can talk about the reasonable 
timeframe and the cost. And we ought to be more realistic 
sometimes on those cost estimates. And I want to give you a 
chance to respond.
    Governor Voinovich. My only comment is that there is 
disagreement among the experts in terms of the impact of 
particulate matter. And there's a difference in terms of a new 
standard and its impact on public health. That's something 
that's going to be debated by the experts. The man who headed 
up the science review committee for the Environmental 
Protection Agency when they did this, George Wolff, indicated 
that it was his opinion and many others' that what some of 
these other doctors have testified to is really--they disagree.
    Mr. Waxman. But if we find--notwithstanding the 
disagreement--that the overwhelming evidence is for a standard 
that's going to be more protective of the health of people, and 
especially kids with asthma, you're not arguing that we 
shouldn't try to prevent the asthma attacks and disease 
consequences from air pollution?
    Governor Voinovich. I think we should. But I just talked to 
the head of our Environmental Protection Agency yesterday--and 
maybe, Mayor Monk, you may have some information to shed on 
this--but he said that in spite of the fact that we have 
reduced ozone dramatically in this country, asthmatic attacks 
are on the rise in the Nation. And the issue is what is it that 
is causing the increased asthma among the American public. So I 
think there are some real differences of opinion here.
    On the particulate matter, I think even the EPA has said, 
``We need more information.'' They had asked for another $26 
million to study the health impact of particulate matter.
    Mr. Waxman. Well, Governor, I understand what you're 
saying--that there are some people that have a difference of 
opinion. But we've heard from a doctor this morning who has 
personal experience in treating patients. And he has seen the 
consequences. And he has looked at the science. And he's 
reached a different conclusion. And I'm just reminded of all 
those years I had tobacco executives come in and tell us, 
``There's really no connection between cigarette smoking and 
cancer or heart disease. There may be more of a circumstance 
incidence of it. But we shouldn't jump to conclusions. We 
should wait until the final scientific nail is pinned down.'' 
At some point we got to believe the scientists and not argue 
that the issue is always open.
    Governor Voinovich. But you do agree that you need to look 
at risks and benefits. You were there at the White House when 
the President signed the amendments to the Safe Drinking Water 
Act. And the things that we tried to do in that was eliminate 
mandates that didn't make sense in terms of the technology that 
was available. We paid attention to requiring people to do 
things that they really didn't need to do, and got into risk 
benefit. And I think that's what this is about. This is not 
about somebody being worried about--I'm concerned as much about 
asthma as you are, and the health of our people. On the other 
hand, I also have to look at the impact that this is going to 
have generally on our people.
    Mr. Waxman. Well, those impacts are awfully dangerous.
    Governor Voinovich. Today, you said the acid rain 
provisions didn't hurt. Yes, they did hurt. We had 16,000 
miners in Ohio. We had 450 coal mines. Today we have 4,000 coal 
miners who are in business in the State of Ohio.
    Let's look at our urban areas. We've been trying to do 
everything that we can. And you've supported legislation to try 
and revitalize our urban areas and to move people off of 
welfare and on to jobs.
    When you're in non-attainment in a place like Cleveland, OH 
where we fought for years to bring ourselves into attainment, 
that casts a pall over your economic development opportunities. 
It doesn't encourage people to stay in cities or to be 
attracted to cities. And one of the things that we have to 
realize is--in my State, for example--one of the greatest 
concerns that we have is urban sprawl and the movement into the 
green areas. Part of the reason why businesses are moving out 
and are usurping green area and not using the infrastructure 
that's in place, is because some of the very things that we've 
done on the national level--we believe that this is going to be 
harmful.
    I mean, the President has got empowerment zones on one 
hand, trying to help areas. You get in non-attainment in 
Cleveland, Youngstown, Columbus, and the rest of our urban 
areas in our State, that's going to hurt jobs. And when those 
people are out of work, they can't afford health care.
    Mr. Waxman. Governor----
    Mr. McIntosh. The time----
    Mr. Waxman. There are jobs that are created by this, as 
well. But what you want to do, and what we all want to do, is 
set a standard that's really in protection of the public 
health, and not eliminate the standards and say, if there are 
no decent standards, we're in compliance. We want a compliance 
with standards that are protective of the public health, and 
then look at the most cost effective way to accomplish that, 
not to say in the first instance, we're not going to care about 
those standards, even though those standards may well prevent a 
lot of people from getting sick, which is a real cost, as well.
    Thank you very much, Mr. Chairman. I appreciate, Governor. 
We do have a dispute, and we'll continue to talk about it.
    Mr. McIntosh. Thank you, Mr. Waxman.
    Ms. Golding. Mr. Chairman, I apologize for interrupting. I 
just wanted to let you know that I'm going to have to leave in 
a couple minutes. And I just wanted to thank you for the 
opportunity to testify.
    Mr. McIntosh. Thank you very much, Mayor. We may have some 
additional questions for you, which I'll ask the panel if we 
can submit them in writing to you. I appreciate you coming all 
this way to do that.
    Ms. Golding. Thank you.
    Mr. McIntosh. Using my 5 minutes, Governor, you should know 
also that in the same panel we had an expert from the trauma 
doctors. And he was asked point blank, ``Do you support these 
standards as a way of helping your patients who suffer from 
acute asthma?'' And he said no, that, as you pointed out, we 
all want to help asthmatics. But do these standards do the job? 
He thinks they are inadequate and misdirected. Now, the 
Washington Post, in an article that come out yesterday, points 
out that the primary cause, they now think, with asthma, does 
not have to do with ambient air pollution, but has to do with 
indoor air, dust and mites and other causes.
    Mayor Monk pointed out that in her case it has to do with 
milk. One of the things that, when we're forced to ask the 
question, do you want to help the people with asthma, we've got 
to respond and say, of course. But are we really doing this in 
the rulemaking. The experts are telling us, including, as you 
mentioned, Dr. Wolff, that the proposed standard does not 
significantly help asthmatics, and yet would impose tremendous 
costs.
    One of the things I wanted to ask you about is that, in 
your opinion, do you believe that EPA has fully complied with 
the requirements to consult with State and local governments 
and to do the economic and scientific analysis required under 
Federal law in order to try to determine whether this standard 
really does provide the benefits that it's purported to and 
what the costs are?
    Governor Voinovich. I think the only complaint that our 
people have is--No. 1--that they didn't have enough time to 
respond to the 1,000 or--what is it?--1,600 pages of proposed 
regulations. And we did appreciate the additional time. But we 
could have used more time so that we could do a better job of 
responding to those proposed regulations.
    I think the other thing is that they have not made 
available some of the information that they had, so that it 
could be reviewed by other people, outside people. For example, 
it was just inadvertent that they found out that their 
projected health benefits were not what they had originally 
projected. Somebody was reviewing the material and came back 
and said, ``Hey, we blew it on this. And it's not as much as 
what we said it was going to be.''
    Mr. McIntosh. Would you recommend that Congress have EPA 
start over and fully perform those analyses?
    Governor Voinovich. Well, I don't know if I would recommend 
that they would start over. But I think that they ought to look 
at some of the criticisms that have been leveled, and perhaps 
remedy those criticisms. I think, frankly, that Carol Browner 
and company did the best that they could do under the 
circumstances in terms of this issue. In other words, there are 
things that they haven't--they could have made it a lot better. 
More time, more sharing of information, and that type of thing. 
So, I wouldn't say start from scratch. I would say, take what 
you've got, acknowledge----
    Mr. McIntosh. Take the time to do it correctly?
    Governor Voinovich. Acknowledge the areas where people have 
legitimate criticisms, and build on that. But I don't really 
think that that will matter a lot. I think that Carol Browner 
has made up her mind that she's going to institute these new 
regulations. I spent an hour and a half with her with a 
delegation from Ohio. And there's no question that she's made 
up her mind. And I'd like to make one other comment, if it's 
all right with you.
    Mr. McIntosh. Yes.
    Governor Voinovich. In response to the folks from New York 
and New Hampshire. Our industries in Ohio have spent more than 
$5 billion on capital costs since 1972 to control the primary 
pollutants regulated by the Clean Air Act. Our public utilities 
have spent $3.7 billion on air pollution controls through 1995. 
That's more than the expenditures of utilities in New York, New 
Hampshire, New Jersey, Vermont, Massachusetts, Maryland, Maine, 
Delaware, Connecticut, and Rhode Island. And I would contend, 
Mr. Chairman, that beyond the health issues that are here, is 
an economic issue.
    And that is that many of our States have come into 
attainment. As a result of our coming into attainment, frankly 
we're more competitive than other areas in the country where 
they are not in attainment. Because businesses don't like to 
locate in areas where there is non-attainment. In addition, you 
are talking about retail wheeling one of these days. It 
certainly is a very, very live subject in the States. And one 
of the things that also is behind this is that many of the 
utilities in the northeastern part of this country are 
frightened to death, that when we get into retail wheeling, 
because of the fact that they've got some real problems in 
terms of costs, they will not be as competitive as utilities 
that are in our part of the country.
    So there's an economic issue that's here, too. It's the 
same thing with the acid rain provisions of the Clean Air Act. 
I mean, the people that you're pushing that were from the 
northeast and the western coal interests. So, there's more to 
this than appears just on the surface in terms of some of these 
debates that are going on today in this country.
    Mr. McIntosh. Thank you. I agree with you fully, that 
there's a hidden agenda at work here. Let me ask Representative 
Schoenberg, is it correct that even though the Illinois House 
has urged EPA to evaluate the economic and public health 
impacts of its PM and ozone proposals and to identify unfunded 
mandates that are a result of those proposals, EPA has not 
complied with the requirements of the Unfunded Mandates Reform 
Act?
    Mr. Schoenberg. That seems to be the position that the 
State is taking. I wish to add that the position of the State 
of Illinois and the city of Chicago, which is the largest 
metropolitan region within the State, are strikingly similar in 
this regard, and that this is an issue in Illinois which 
actually crosses the partisan divide, where we do have 
significant consensus on this matter.
    Mr. McIntosh. Thank you. My time has expired. Mr. Sanders, 
do you have questions?
    Mr. Sanders. Yes. Thank you very much, Mr. Chairman. For 
the record, I would appreciate unanimous consent to place in 
the record an article from the Cleveland Plain Dealer of March 
2, 1997. I know Governor Voinovich mentioned the support that 
he's getting from Ohio newspapers. There's at least one 
editorial writer in the Cleveland Plain Dealer who does not 
agree with you. And he states, ``Like many people opposed to 
the latest proposed clean air regulations, Governor George V. 
Voinovich is busily spreading this information about them.'' So 
I'd like to put that into the record.
    [The article referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T3516.182
    
    Governor Voinovich. Is that--may I ask a question?
    Mr. Sanders. Yes.
    Governor Voinovich. Was that an editorial from a paper or 
an article that appeared in the paper?
    Mr. Sanders. It's by a gentleman named Gene Dubel, I 
believe, who is the associate editor of the Plain Dealer's 
editorial pages.
    Governor Voinovich. OK.
    Mr. Sanders. March 2nd. I would also like to place into the 
record the non-monetized benefit categories. In other words, 
as, I think Mr. Brodsky, was mentioning earlier, there are many 
aspects of this problem that are not being calculated by the 
EPA. The amount of physical damage that is being done to 
people. I would like to place that in the record.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T3516.183
    
    Mr. Sanders. Let me begin. I have a couple of questions for 
Mr. Brodsky and Mr. Russman, and then I'd like to ask the 
Governor.
    Mr. McIntosh. Mr. Sanders, if you could have the staff 
identify the source of that for us, that would be helpful.
    Mr. Sanders. We sure will. Thank you. And this is to both 
the assemblyman and the Senator. Governor Voinovich testified 
that it would be unfair to force Ohio to meet the new 
standards. And he indicates that there are dangers to the 
economy and jobs and so forth. As folks from the northeast, 
whose people are suffering physical illness, who I've seen in 
the cases of New England, declines in our lakes, acid rain 
impacting our forests, would you like the opportunity to 
respond to the Governor? Mr. Brodsky, do you want to begin?
    Mr. Brodsky. Yes. I don't dispute the Governor's facts and 
figures with respect to the investment of Ohio utilities. But I 
did not hear him say that Ohio was not a major transporting in 
of toxic substances in my State. And if that is the case--and I 
think that's inarguable--that's why we have an ozone transport 
committee--then the question remains--and this is why we have a 
Federal Government--to whom do we turn for remedy?
    To whom do the sick people of New York turn when the people 
of Ohio and Illinois are prospering economically, perhaps, at 
the cost of destructive health effects in my State? If the 
Governor's testimony is that Ohio is not affecting the health 
of the people of my State, then we have a factual dispute. If 
we don't have a factual dispute--and I don't think we really 
do--then I don't understand under what equitable process New 
York can be asked to absorb the health effects of his activity 
without seeking some remedy of the Federal Government. And 
that's why I think the standards made a lot of sense.
    Mr. Sanders. Senator, before you begin, I should point out 
that, of course, the Governor of the State of Vermont also 
supports these new proposals. But I would like you to comment 
from the perspective of New Hampshire.
    Mr. Russman. Well, our Governor has gone on record as being 
in favor of them, as other people from New Hampshire have, 
including the Business and Industry Association, which is the 
largest business trade group. Clearly, we're also concerned 
when you talk about deregulation that it's only going to get 
worse. And we feel that we need these standards now in order to 
make sure that it doesn't get worse. A lot of these old coal-
fired plants and so on were given exemptions over the years.
    And we were told that they were going to be out of business 
and closed up in 20 years, which would be now. And, obviously, 
they're gearing up to go even bigger once deregulation and 
free-wheeling takes hold. So, we are very, very concerned. And 
certainly our area is suffering. And it's going to suffer 
economically even more if these proposals aren't implemented.
    Mr. Sanders. The Governor talks about problems that this 
proposed legislation would have on Ohio. What are we seeing in 
New England, Mr. Russman, in terms of the problems that already 
exist because we don't have regulations that are being 
proposed?
    Mr. Russman. Well, on a clear day you can't see very far 
from Mt. Washington. I can tell you that. And that doesn't help 
our tourist industry, which is virtually our largest industry 
in New Hampshire. And we are faced with some forestry 
deprivation and degradation. And not to mention the health 
aspects of it, of our people. We have to suffer. And we don't 
like it.
    Mr. Sanders. Thank you. Now, Governor, if I might--you 
mentioned--I'm sure that you would agree that with a radically 
changing economy, there are a dozen different factors of why 
jobs disappear. Companies are moving to China because they can 
hire workers at 20 cents an hour and so forth and so on. But 
let me ask you this question, in your testimony, as I 
understand it, you suggest that the proposed EPA clean air 
regulations will kill jobs across Ohio--and I believe you used 
the word--devastate small businesses.
    You further argue that the regulations may cause a major 
Ford Co. foundry to curtail production, as I understand it. I 
assume that you have some evidence from the past to make these 
charges. What evidence do you have the Ohio manufacturing 
plants have closed down or laid off workers in response, 
specifically--now, we know you've suffered job loss--but could 
you tell us maybe specifically or provide for the record those 
plants that have been closed down and laid off workers 
specifically as a result of EPA clean air rules?
    Governor Voinovich. I think that what we can say is that 
the businesses in Ohio have done a tremendous job in complying 
with the current standards that are in existence and have spent 
billions of dollars to clean up the air. For example, ozone has 
been reduced overall 25 percent.
    Mr. Sanders. But that's not answering the question, sir. 
You talked about devastation, closing down companies, losing 
jobs. Can you give us some specific information.
    Governor Voinovich. I'll just give you--we're doing an 
analysis, and I'm going to share that with the Congress. 
Businesses throughout the State where we're really trying to go 
in there--for example, this casting plant I'm talking about 
predicts that if the particulate matter goes into effect, they 
would have to spend, I think, up to the tune of about $45 
million in order to comply with the new standards. And they say 
that even if they did, they couldn't achieve the standards as 
they're set for particulate matter. And, therefore, the 
alternative is to cut back on the production of that facility: 
the only alternative is to close it out.
    Mr. Sanders. Governor, if I may. The question that I asked 
is if you could provide us with concrete, specific names of 
companies that have been closed down because of EPA clean air 
rules.
    Governor Voinovich. I can show you--I will submit to you 
the list of coal mines in Ohio and the names of miners who are 
out of work and have closed down because of the proposed 
standards. In addition to that, I can submit to you evidence or 
information about utility rates that have increased.
    Mr. Sanders. OK.
    Governor Voinovich. May I finish? Because you're talking 
about the Northeast and so forth. First of all, I am very much 
aware----
    Mr. Sanders. Well, let me ask the chairman. Mr. Chairman, 
how do we propose? Because if the Governor wants to respond, 
which is OK with me, I would like the chance to respond to the 
Governor.
    Mr. McIntosh. Sure. Let's do it. Let's go ahead.
    Governor Voinovich. I'd just like to say that we're very 
much aware of the problem of the ozone transport. And what 
we're working on--my (Environmental) director is very much 
involved in that. We have a difference of opinion. You folks 
feel that you get a whole lot of stuff from Ohio and from the 
Midwest. And our feeling is that it's minimal and that it 
certainly isn't your problem. For example, in most of your 
States, you have no auto emission testing. For example, I 
talked with Senator Chafee. And they tried to do it in Rhode 
Island. And they discontinued it.
    I'm just saying that the people in our State have really 
done a wonderful job of making sacrifices so that we can have 
clean air. And we don't believe that your problem is caused by 
Ohio, and there are things that could be done more effectively 
in your part of the country to deal with the problem that you 
have.
    Mr. Sanders. Governor Voinovich is chafing.
    Mr. Brodsky. I agree. Mr. Chairman.
    Mr. Sanders. Let me give a minute of my time.
    Mr. Brodsky. Very briefly, I appreciate the kind words of 
the Governor. I think that's a question of fact. I disagree. I 
think we can establish that we have done all of these things. 
And the Federal Government tells us that we cannot come to 
attainment by ourselves, that the reason we're out of 
attainment is western downward States. The States of the 
distinguished chairman, your State and others. If that is 
factually true--and that's a dispute we ought to have--then it 
strikes me that you have something more than a moral 
responsibility, and the Congress certainly has a legal 
responsibility to level the playing field.
    Mr. Sanders. All right. I would just conclude, Mr. 
Chairman, by saying that I did not hear from the Governor about 
the loss of manufacturing jobs as a result of EPA regulations. 
You mentioned coal miner jobs. I appreciate that. I did not 
hear you specifically mention----
    Governor Voinovich. I think that specifically, because of 
the fact that we've spent the money, that we have remained 
competitive.
    Mr. Sanders. Yes.
    Governor Voinovich. I can't say, for example, if when LTV 
expanded their production facilities in other parts of the 
country, that that wasn't done partly because of the costs that 
they would incur in terms of meeting the ambient air standards. 
I can tell you a perfect example of the kind of thing that does 
happen, however. You take Lorain, OH where the U.S.S. KOBE 
wanted to put in a new blast furnace--$100 million. And the EPA 
told them they couldn't do it because they didn't meet the new 
ambient air standard that they calculated when U.S.S. KOBE was 
out of business.
    Now, the irony of it is, that they grandfathered in an old 
blast furnace that was polluting the air to beat the band. And 
as a result of a lot of work on our part--and they're paying a 
$500,000 fine--we closed down an old blast furnace and put in a 
new blast furnace. But had they not been able to do that, they 
would have had to shut down part of the productivity of that 
facility.
    Mr. Sanders. It's an interesting dialog. I'd love to 
continue it. But the chairman, I think, indicates otherwise.
    Governor Voinovich. Yes.
    Mr. McIntosh. Let me take the time. I can also, at some 
point, give you a personal example in Indiana. But let me now 
recognize the chairman of the full committee, Chairman Burton.
    Mr. Burton. Well, first of all, Mr. Chairman, I want to 
thank you for having this hearing. And I want to thank the 
distinguished panel for being here. And I've also been an 
admirer of Governor Voinovich. And we're very happy to have him 
here, as well. Let me just, before I yield to the chairman of 
the subcommittee, let me just say that any information that you 
have, Governor, that would give us statistical information or 
data regarding what you believe resulted in the loss of jobs 
because of these problems, we'd like to have.
    I'm going to check on Indiana and some of the other 
midwestern States to find out what the result was. And we'll 
try to give that to the chairman for entry into the record and 
further study. And with that, I'll yield to my colleague, Mr. 
McIntosh.
    Mr. McIntosh. Thank you very much, Chairman Burton. I 
appreciate you coming today. First, let me actually share a 
personal example that I had in Indiana where I know a foundry 
was closed down. I worked for one in Kendallville, when I was 
working my way through college. As a result of the new clean 
air standards that came into effect in the 1980's, they had to 
shut down production, and over 60 people lost their jobs in my 
home town. We've seen that throughout the Midwest, as the 
Governor has pointed out, that the companies that have survived 
have become more competitive and been able to thrive. But now 
we're going to see another round of it if we change the 
standards.
    I have another question for Governor Voinovich. I guess it 
gets back to some of EPA's decisions on this. I find it 
fascinating that in your impression Carol Browner does not, at 
this point, have an open mind about this, although the law 
requires that she consider all of the comments before deciding 
whether to go final. But don't you find it troubling--and I 
find it outrageous--that EPA has certified that these standards 
will not have any significant impact on small businesses. I 
guess what I'd do is address that to each of the panel members 
here. Governor Voinovich, if you want to lead off.
    Governor Voinovich. Well, I think that one of the things 
you're going to have to decide is whether or not the small 
business regulatory relief legislation that you passed is 
applicable. I think she's basically said it doesn't apply to 
what she's doing currently. And I think that's something that 
Congress is going to have to decide. If she does pass these 
rules, you're going to have to decide whether or not you have 
the right to overrule them either under unfunded mandates or 
under Don Nickles' regulatory small business relief 
legislation.
    Mr. McIntosh. Well, the courts may, in which case we have 
uncertainty for an extended period of time, which many would 
argue gives you an even worse environmental result because 
people don't know what rules they're supposed to follow. But I 
agree with you. It's very clear that she's not following that. 
And there's a dispute even in the administration. Any other 
comments from the panel on that?
    Mr. Schoenberg. In his comments, the commissioner for the 
environment, Henry Henderson, of the city of Chicago, did make 
reference to this. In the State of Illinois, we are especially 
faced with a phenomena of wanting to do what we can to 
strengthen our environmental standards, our air quality and the 
quality of our public health. At the same time, we do not wish 
to export businesses, particularly small businesses, outside 
the immediate Chicago area. Specifically, Mayor Daley's effort 
on Brownfields is a prime example of how small businesses would 
be significantly hurt if, in fact, we were to proceed with the 
new standards. The inability to further redevelop the 
Brownfields as a result of the exporting of both resources and 
jobs for economic development as well as transportation 
resources would have a significantly negative effect on small 
business in the city of Chicago. And we believe since the city 
of Chicago is the largest region of the State of Illinois, it 
would have a detrimental effect to the entire State as well.
    Mr. Russman. From New Hampshire's point of view, we think 
that, if anything, that these new standards will spur economic 
growth. We think if the vast sums of money are even partly 
true, that it's going to cost to implement these. That money 
has got to go somewhere. We assume that it's going to go to 
jobs and additional industry and manufacturing type jobs and 
environmental type safeguards that will be brought into it.
    Mr. Brodsky. Mr. Chairman, I thought I would answer this--
--
    Mr. McIntosh. To the tune of a wealth transfer at that 
point.
    Mr. Brodsky. Well, on economics--it's not a wealth 
transfer, it's a creation of jobs. Any creation of jobs is a 
wealth transfer. But the economic activity that compliance will 
cause will be felt in terms of things purchased and jobs 
created. Now, it may not be in the same region, and it may not 
be dollar for dollar, but there is a stimulative economic 
effect of environmental regulation, which seems to me to be 
inarguable over history.
    But the only point that I'd make very briefly is, I'm sure 
that there are regulatory elements that any bureaucracy would 
fail to adequately address in a rulemaking. And that's why you 
have congressional committees to check. I would just urge that 
the same degree of concern be expressed by members of the non-
monetized benefits. In other words, they're hammering on only 
one side of the inadequacy of the EPA rulemaking troubles me, 
sir.
    Mr. McIntosh. I'll grant you that. And I agree we should 
get it exactly right and look at both sides of that.
    Mr. Brodsky. Thank you.
    Mr. McIntosh. I'm going to yield the rest of my time.
    Governor Voinovich. Could I----
    Mr. McIntosh. Governor Voinovich, if you have one 
additional comment.
    Governor Voinovich. One of the things that I was impressed 
with--and I don't know--has Commissioner Henderson testified 
before your committee--the health commissioner?
    Mr. McIntosh. No.
    Mr. Kucinich. These are comments to the proposed----
    Governor Voinovich. The proposed.
    Mr. McIntosh. The proposed.
    Governor Voinovich. But the fact of the matter is that--and 
this is a quote from him--he's talking about the measures that 
helped clean up the air. And he says, ``They have cost us 
dearly in terms of public health. Since these measures took 
effect the city experienced substantially inhibited growth of 
large commercial and industrial manufacturing facilities. In 
fact, many businesses have even left the city for suburban 
areas that lie beyond the non-attainment area, where the 
regulatory requirements are far less burdensome. It would be 
utterly false to maintain this phenomenon has resulted in 
anything less than serious and detrimental effects on the 
public health of city residents and, in particular, on the 
economically disadvantaged and those who reside in the inner 
city.
    ``This lack of growth has translated into an increase in 
job loss, particularly for blue collar workers, which includes 
a loss of health insurance coverage and other job-related 
benefits, an increase in the number of abandoned, contaminated 
Brownfield sites, which means an increase in the number of 
residents who are now exposed to them, a loss of small business 
and other services, including health care facilities to serve 
area neighborhoods, loss of personal security, and a general 
deterioration of infrastructure in the urban core.''
    I will do an analysis for Representative Sanders, of Ohio, 
to try and see if we can't calculate specifically the impact 
that the current standards have had on the economy of Ohio in 
terms of current jobs, and not only current jobs, but also if 
we can identify if businesses have chosen not to expand in the 
city because of these standards and have gone to other 
Greenfield areas.
    Mr. McIntosh. Great. I appreciate that. We will hold open 
the record in order to make that analysis a part of the record 
from this hearing. I ask unanimous consent to put the 
Commissioner's testimony to the agency in the record as well.
    [The information referred to follows:]

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    Mr. McIntosh. We've got about 6 or 7 minutes to vote. Do 
you all have a few questions? Do you think we can proceed to 
those now and then dismiss the panel? Or do you have extensive 
questions?
    Mr. Kucinich. I have a number of questions. Yes, Mr. 
Chairman.
    Mr. McIntosh. OK. If I may ask the panel to stay with us 
for a little bit longer. We'll be gone probably about 15, 20 
minutes and then return. Why don't we say we'll reconvene in 20 
minutes.
    Mr. Schoenberg. Pardon me, Mr. Chairman. I may have to 
excuse myself early. I have to catch a plane back to our State 
capital to vote, myself.
    Mr. McIntosh. I appreciate that. Thank you very much, Mr. 
Schoenberg. If there are any questions, we may send them to 
you.
    Governor Voinovich. Mr. Chairman, I can't come back in 20 
minutes.
    Mr. McIntosh. Do you want to ask any--we've got about 2 
more minutes and then we can leave.
    Mr. Kucinich. Thank you, Mr. Chairman. I do have some 
questions. And I--first of all, I'm going to submit for the 
record information that shows that there's no relationship 
between strong environmental laws and weak economic growth. 
This is a study from the California Senate Office of Research. 
It covers many different States.
    [The information referred to follows:]

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    Mr. Kucinich. Also, I'm going to submit for the record that 
Ohio's job loss--the Governor has not been able to produce any 
information pursuant to Congressman Sanders' question about the 
job loss that's occurred as a result of air quality rules. I do 
have for the record details on the job loss in manufacturing 
that has occurred in Ohio recently due to NAFTA. This comes 
from the trade adjustment.
    Mr. McIntosh. Mr. Kucinich, we can put all of those in when 
we return from the vote. So, why don't we now recess and----
    Mr. Kucinich. And I have one question of the Governor, 
then. Since the Governor raises the economic issue about the 
loss of jobs, and has raised it in respect to Lorain and also 
Ford casting, what evidence does he have to back up the charge 
that loss of jobs will occur as a result of air quality when 
the loss of jobs that has occurred has been related 
specifically to NAFTA, which you, Governor, have supported?
    Governor Voinovich. The issue here today is not to debate 
NAFTA, Congressman Kucinich. The issue here today is----
    Mr. Kucinich. We're debating job loss here.
    Governor Voinovich. That's debatable. I can show you 
statistics that show that Ohio's economy has benefited 
substantially from international trade, and it's been a great 
boom to our economy and one of the reasons why we had our bond 
rating increased for the first time in 17 years. But that's 
another debate.
    Mr. Kucinich. We've lost jobs, Mr. Chairman, if I may. What 
evidence does the Governor have to show us that we have lost 
jobs in manufacturing because of air quality standards and what 
evidence does he have to refute these statistics from NAFTA's 
TAA office that we have, in fact, not lost jobs in Ohio and 
have, in fact, gained jobs due to NAFTA? These aren't my 
figures. These are official records. And I want to submit these 
for the record. And I'm just asking the Governor to respond. 
Where is your proof?
    [Note.--The report entitled, ``Clean Air Act--Job Impact 
for Ohio'' can be found in subcommittee files.]
    Mr. McIntosh. Mr. Kucinich, the Governor has indicated he 
will give us a full analysis in writing. We will hold open the 
record in order for him to do that. Did you have any other 
points you wanted to make on this?
    Governor Voinovich. I don't have any question except that 
there's a difference of opinion on the impact that 
international trade has had on Ohio. I think the implication is 
that if jobs have been lost, it's because of NAFTA and not 
because of problems with ambient air standards. I said that I'd 
have to look into some specifics on that. I can say one thing. 
We're going to do a very good job, Mr. Chairman, of documenting 
the businesses in Ohio who currently are very concerned about 
ozone and particulate matter in terms of whether they're going 
to be able to expand or whether it's going to limit their 
productivity. And we'll share all of that information with you.
    Mr. McIntosh. I appreciate that greatly.
    Mr. Kucinich. Thank you, Mr. Chairman. Thank you. Thank 
you, Governor. It's good to see you again.
    Mr. McIntosh. We'll stand in recess until 5 minutes after 
1, at
which point, if the other members of the panel are able to 
stay, we'll finish up here and then move on to our final panel. 
I appreciate all of you coming. Thank you very much.
    [Recess.]
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    Mr. McIntosh. The subcommittee will come to order. If I 
could ask the remaining participants in our second panel to 
bear with us. The staff is checking--we believe Representative 
Kucinich may have a couple additional questions for you, but 
until he comes back, what I'd like to do is go ahead and call 
the third panel. We may call you back for those questions after 
we've heard from our third panel of witnesses.
    Mr. Brodsky. Mr. Chairman, as a matter of procedure?
    Mr. McIntosh. Yes?
    Mr. Brodsky. The panel may go--is this a large panel?
    Mr. McIntosh. No. It shouldn't--my fondest hope is that 
we'll be completely finished by 2 o'clock, if that helps you. 
OK. If I could call forward Professor Schlesinger as well as 
Mr. Bertelsen. Thank you. If you could both please rise.
    [Witnesses sworn.]
    Mr. McIntosh. Thank you. Please let the record show that 
both witnesses answered in the affirmative. Our first witness 
on this panel is Professor William Schlesinger of Duke 
University. Professor, thank you for coming, and please share 
with us your testimony.

STATEMENTS OF WILLIAM SCHLESINGER, PROFESSOR, DUKE UNIVERSITY; 
   AND BRUCE BERTELSEN, EXECUTIVE DIRECTOR, MANUFACTURERS OF 
                 EMISSIONS CONTROLS ASSOCIATION

    Mr. Schlesinger. I'm glad to be here. And thank you for the 
opportunity to comment on the regulatory impact statements. 
First, I'm an environmental chemist--sometimes they're now 
called biogeochemists--on the faculty of Duke University. Over 
the last 25 years or so, my scientific research has focused on 
human impacts on the environment. In contrast to much of the 
earlier testimony dealing with health impacts, I think you 
could describe my research as dealing with environmental 
health. I worry about the health of our ecosystems, 
particularly the chemical quality of nature.
    My remarks today will focus on an analysis of the benefits 
that might be anticipated with the revisions to the standards 
for ozone and particulates. While I feel that both the impact 
statements provide a nice quantitative analysis of the human 
health effects, I believe that the documents significantly 
understate the benefits of tighter emission standards to 
natural ecosystems, what I would call the ecology of the 
environment. And that's the crux of my message: significantly 
understating the benefits to the health of natural ecosystems.
    They are left in the category of unquantified welfare 
benefits in these documents. I think they're significant. And 
I'd like to outline a few of those for you. As you may know, 
the tighter standards for ozone require reductions in the 
emission of NOx--nitric oxide, which is also called NOx. And I 
think it is less well known that emissions of NOx, in and of 
themselves, will have benefits to natural ecosystems. One of 
those benefits comes from the fact that NOx is a precursor not 
just to ozone, but to acid rain. And when----
    Mr. McIntosh. Professor Schlesinger. I don't mean to 
interrupt you, but for my benefit, can you also tell us how the 
ozone standard affects the NOx emissions, to draw that link so 
we keep----
    Mr. Schlesinger. OK. Most ozone in the lower atmosphere is 
formed by a reaction of NOx with volatile hydrocarbons in the 
atmosphere in sunlight. And there's an ample source of volatile 
hydrocarbons from vegetation over much of the Eastern United 
States. We supplement that with some emissions from industry. 
Therefore, the level of NOx becomes critical at determining the 
rate of the reaction and the amount of the reaction that occurs 
in sunlight. I would be the first to say that there has always 
been a level of volatile carbons and a level of NOx in the 
environment. And the Sun's been shining. So, there's been some 
level of ozone in the natural environment. And that varies 
region to region, of course.
    But what humans have done is we've essentially doubled 
globally the emission of NOx. And in the United States it has 
more than doubled, because we're a major industrial power. And 
that has increased the rate and the amount of the chemical 
reaction producing tropospheric ozone in a large portion of the 
United States. I'll get back to NOx and ozone in a minute, 
because it ties into the acid rain issue as well. NOx is a 
precursor to acid rain. NOx is also, when it's deposited, a 
source of what I would say is ``excess'' nitrogen deposition in 
the environment.
    That's increasingly becoming a problem both on land and in 
the waterways. And I want to elaborate on that. But first acid 
rain. I was surprised to hear Governor Voinovich say that there 
was no evidence of transport from Midwest to Northeast of 
substances that might contribute to air quality and, in 
particular, acid rain quality. It seems to me that there is 
ample scientific evidence that emissions of sulfur dioxide and 
NOx in the Midwest are transported to the Northeast.
    When NOx is mixed with rain drops, it forms acidity in that 
rain--nitric acid acidity--and rains out on those systems. In 
the last 25 years, the Hubbard Brook Experimental Forest in New 
Hampshire has shown very significant losses of calcium from its 
soils. And those losses of calcium and elements like calcium--
losses of things like potassium and magnesium are well known 
too--the losses of those elements from soils are well known to 
cause reductions in forest growth.
    And I think that there's really good scientific evidence of 
the linkage of regional and distance transport to deposition, 
to leaching of substances from soils, and to reduction of 
forest growth. In many areas, for instance, the loss of calcium 
from soils has been associated with an increasing toxicity 
level of aluminum that's reduced the growth of spruce and some 
of the trees that Mr. Sanders probably has in his district in 
Vermont. Beyond acid rain, NOx generates tropospheric ozone by 
the process I described a minute ago.
    That is transported regionally. And it is, over the eastern 
United States, well in excess of what would be the background 
level, let's say, in 1700, before humans had such dramatic 
impacts on the landscape. I think the regulatory impact 
statements do a nice job quantifying the benefits that would 
accrue to agricultural production by reducing those ozone 
levels--that crops will grow better with tighter standards. 
They don't discuss the same for forests.
    And I find it particularly important that as we 
increasingly look to healthy forests to take up some of the 
carbon dioxide emitted from fossil fuel combustion, that this 
will not occur if we are simultaneously poisoning those forests 
with ozone and acid rain. We need to realize that if we're 
going to count on temperate forests to take up some carbon 
dioxide and to slow global warning, they've got to be healthy 
forests.
    Jumping ahead a little bit in my testimony, I'd like to 
touch on this nitrogen deposition problem. Excess nitrogen--and 
by that I mean excess over the normal background levels that 
would be in rain--makes its way to rivers and ground waters and 
causes and contributes to what we call the eutrophication of 
those waters, which can be defined scientifically as nutrient 
enrichment. Often in waterways this leads to blooms of algae, 
to the loss of bottom water oxygen, and to the death of fish 
and shellfish. And as we are able to control that deposition, 
the water quality in bays and waterways should improve.
    Some cases in point, atmospheric nitrogen accounts about 25 
percent of the run-off nitrogen in New England right now. It's 
deposited from the atmosphere and makes its way to rivers and 
into waterways. Direct deposition from the atmosphere accounts 
for about 12 percent of the nitrogen input to Chesapeake Bay. A 
recent study that I've just seen in the last week says that it 
accounts for 67 percent of the nitrogen input to Tampa Bay.
    So, controlling NOx in the atmosphere would be a direct way 
to reduce these excessive levels of nitrogen input into natural 
waterways, improve their water quality, and restore the fish 
and shellfish production in some of these areas. Realizing my 
time is nearly up, I'd just like to summarize it. I think all 
of these are examples--the acid rain example, the ozone 
production example, the loss of species and loss of water 
quality in bays and estuaries--of how regional air pollution by 
ozone and particulates is seen over large portions of the 
United States, and that stronger provisions of the Clean Air 
Act would certainly help ameliorate those conditions.
    And my basic message is that I think that these benefits--
the benefits that would be seen through the revisions of the 
Clean Air Act--significantly understate benefits to natural 
ecosystems upon which we all ultimately depend. Thank you.
    [The prepared statement of Mr. Schlesinger follows:]

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    Mr. McIntosh. Thank you very much, Professor. I appreciate 
that testimony. Our final witness on this panel and of the 
hearing is Mr. Bertelsen. I appreciate you coming by today and 
testifying on these proposed standards.
    Mr. Bertelsen. Thank you very much, Mr. Chairman, and good 
afternoon. My name is Bruce Bertelsen and I am the executive 
director of the Manufacturers of Emission Controls Association. 
MECA is pleased to participate in today's hearing on EPA's 
proposed revision to the National Ambient Air Quality Standards 
for particulate and ozone. Forums like today's hearing provide 
a meaningful opportunity for the sharing of ideas and views 
from a variety of perspectives on a matter of considerable 
interest and importance.
    By way of introduction, MECA was founded in 1976 and is a 
national association of companies probably best known for their 
manufacture of mobil source emission controls. Its members 
include leading manufacturers of a variety of emission control 
equipment for automobiles, trucks, buses, non-road vehicles and 
engines, as well as catalytic controls for selected stationary 
sources. These companies, collectively, have decades of 
experience and a well-established track record in developing 
and manufacturing highly advanced, cost-effective emission 
control technology.
    MECA supports EPA's efforts to revise the standards for 
ozone and PM in order to protect the public health. We will 
leave to the health experts where that level should be. But 
certainly the process of looking at it with an eye toward 
protecting the public health is appropriate. And without 
question complying with more stringent standards for ozone and 
PM will pose challenges. But we're optimistic that those 
challenges can be met, and that the goal of clean, healthy air 
can be achieved.
    Emission control technology along with pollution prevention 
and market-based approaches such as emission trading are 
available to help make implementation cost-effective. The task 
currently undertaken by EPA is to set the standards for PM and 
ozone at levels that are protective of the public health. 
Congress provided in the Clean Air Act that establishment of 
the appropriate levels of the standards be kept separate from 
the process of developing and implementation strategy to attain 
those standards. And as required by Congress, EPA is to set the 
levels of the ozone and PM standards that are protective of the 
public health without basing its decision on cost of complying 
with those standards.
    The costs of compliance will be considered and addressed 
during the second stage as part of the implementation process. 
And at that time, the relative cost-effectiveness of various 
compliance approaches will be paramount. EPA did examine the 
cost/benefits of its proposal in the agency's RIA for both 
ozone and PM. And we certainly share EPA's view that it's very 
difficult to precisely predict future costs of compliance.
    But one fact above all in the history of clean air 
compliance is that today's estimates of future control are 
often too high, and that the tomorrow's actual cost-
effectiveness of controls will be better than today's 
estimates. Air pollution control technology and overall 
compliance costs typically decline largely because markets, 
users, technology suppliers have proven to be better at 
realizing innovative cost reductions than initially thought. 
Indeed we have learned over the 27 years since the 1970 Clean 
Air Act Amendments were passed that when faced with tough 
challenges, American ingenuity and a can-do spirit can produce 
the technology and other compliance options to get the job done 
while sustaining strong economic growth.
    The enormous success of the U.S. motor vehicle program is 
certainly an excellent example. And looking to the future and 
the possible need for NAAQS implementation strategies, a large 
inventory of existing and developing technologies exist to 
provide greater emission reductions from both stationary and 
mobile sources. I highlighted some of the technologies our 
companies are working on in our testimony, and I won't 
reiterate that here.
    Before closing, I would like to make a few comments 
regarding the potential impacts of revising the standards for 
PM and ozone on small business. Small businesses play a 
critical role in the economic health and well-being of this 
Nation. And the potential impacts of tighter PM and ozone NAAQS 
on these companies is extremely important. Having said this, we 
believe that the interests of small business over the years 
have been, are being, and will be carefully considered before 
any emission control reduction requirement is established.
    Second, the compliance strategies that likely will emerge 
if the standards are tightened will focus primarily on large 
emitters, which typically are not small businesses. And 
finally, there are suppliers of emission controls. A good 
example of which are companies that manufacture VOC controls, 
which are typically smaller companies.
    In closing, I'd like to say that we appreciate the 
opportunity to participate, and thank the subcommittee for its 
efforts to provide a forum for dialog on this important issue. 
In MECA's view, EPA has taken the proper course by its efforts 
to establish ozone and PM standards which are truly protective 
of the public health. And if those standards are revised, the 
U.S. air pollution control industry stands ready to do our part 
to help the United States achieve its clean air objectives 
cost-effectively. Thank you very much.
    [The prepared statement of Mr. Bertelsen follows:]

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    Mr. McIntosh. Thank you for your testimony. Before I 
proceed with questions, let me ask unanimous consent to put 
into the record testimony that was submitted by Governor Engler 
and Governor Sunquist, although they were not able to come 
today. If we could include their written statements in the 
record.
    [The information referred to follows:]

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    Mr. McIntosh. Let me ask both of you, if I might, if you 
could comment on the following conclusions of the White House 
Council of Economic Advisors in their comments to EPA's 
regulatory impact analysis, which I'll ask unanimous consent we 
put the entire document that was supplied to us by OMB into the 
record.
    [The information referred to follows:]

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    Mr. McIntosh. ``EPA's regulatory impact analysis 
underestimates the true cost of the ozone program by an order 
of magnitude. The cost of full attainment could be up to $60 
billion annually. The cost of ozone could dwarf any expected 
benefits, as listed in EPA's regulatory impact analysis, and it 
would be necessary to spend from $30,000 to $80,000 per ton and 
not EPA's estimated $3,000 to $10,000.'' If you all could 
comment on that.
    Mr. Schlesinger. I'm more of an expert on benefits, I 
think. I could not confirm or deny that they've underestimated 
the cost. I would say with some confidence, as an environmental 
scientist, that they have underestimated the benefits to 
natural ecosystem.
    Mr. McIntosh. OK. Thank you. Mr. Bertelsen.
    Mr. Bertelsen. The cost is always an issue of considerable 
debate. I think I would tend to agree that as difficult as it 
is to quantify costs, it's probably more difficult to quantify 
benefits. But there's a lot of healthy disagreement about 
relative cost. I guess I can't comment directly on that 
statement. The observation I can provide, based on experience 
that we've seen over the years, is that typically EPA's 
estimates tend to be a little higher than what turn out to be 
the actual compliance costs. But with regard to the discussion 
of those two bodies, I really have nothing further we could 
add.
    Mr. McIntosh. Let me ask a slightly different question. Mr. 
Bertelsen, this really goes to your testimony, but EPA's 
analysis indicates that in many cases the standards may be 
infeasible to achieve the actual new standard, and they have 
not really identified controls and actual mechanisms that could 
be used to achieve those standards. Are you comfortable saying 
that, given current technology, that we would be able to meet 
these standards in each of the counties that would be in non-
attainment?
    Mr. Bertelsen. Well, I think the way I would answer that 
question--because at this point, we're not sure what the 
standard would be, and in order to--once the standards are set, 
it's going to involve a fairly comprehensive compliance 
strategy, which is going to involve a lot of things, of which 
technology will play, we hope, an important and positive role. 
But I do think that looking to the future, there are a large 
number of technologies that exist and technologies that are 
coming along that will help reduce emissions--I'll speak to my 
area, which is in the area of motor vehicle emissions.
    And, indeed, right now, EPA has a number of initiatives 
underway in the motor vehicle area. Just to cite a couple of 
examples, in the heavy duty area, both on-highway and off-
highway, very comprehensive programs that have been proposed or 
are about to be proposed for both highway vehicles and non-road 
engines. And, actually, both of those regulatory initiatives 
were developed with the cooperation of the engine manufacturers 
and, I guess, California Resources Board, as well as the State 
of California. So there are things that are on the horizon that 
will help reduce emissions. We think there are----
    Mr. McIntosh. Are you saying those would be sufficient to 
meet the new standards?
    Mr. Bertelsen. No. I'm saying we're moving in the direction 
of reducing emissions. I can't say precisely that--I'm not 
expert enough to speak to every strategy. So I couldn't answer 
that question.
    Mr. McIntosh. One of the things that we found troubling 
with EPA's analysis is that they couldn't point to a 
combination of strategies and actual implementation steps that 
would lead to compliance with the lower standards. And so 
you've got a situation where you impose tremendous costs and 
consequences in these communities. For example, they're limited 
on their ability to build new infrastructure highways under the 
current law without any prospect that you'll actually meet the 
standard that the EPA is proposing.
    Mr. Bertelsen. Could I perhaps try to shed some light using 
some prior experience that might be helpful? Typically what 
happens is, it's more typical with an emission standard--but 
when a regulatory requirement is established, it creates a 
benchmark which stimulates a lot of interest to develop 
technologies. And often solutions that we aren't even aware of 
today or that we would guess would be implemented are 
developed. And that's kind of the, I guess, the wonder and the 
magic of the Clean Air Act.
    Looking back to 1970, which is frankly before my time, I 
don't think the folks at the time had any concept of the types 
of technologies and advances and solutions that would come up--
that would be developed. But what happened was the challenge 
was put in place to develop--the challenge was there to clean 
up the air. And suppliers and manufacturers and others 
responded to the challenge. So no, I can't say today that I 
have the menu of options for meeting the standard. But what I 
would say is that based on prior history, I'm optimistic that 
there's a lot of people out there that work very hard to come 
up with cost-effective solutions.
    Mr. McIntosh. I'll yield back the remainder of my time. Mr. 
Sanders, do you have any questions for this panel?
    Mr. Sanders. I do. Thank you very much, Mr. Chairman. 
Gentlemen, I think you know that in the political world, some 
of us--not me, but always the other guys--are prone to 
exaggerations. And we've heard today that cows will now be 
wearing diapers. Probably there will be no more agriculture in 
America if these regulations are passed. The Midwest will not 
have any more jobs. I'm exaggerating their exaggerations. But 
let me start off--Mr. Bertelsen, in the past it seems to me 
that whenever EPA or probably in any State, environmental 
regulations have been proposed, we usually hear the same type 
of response: the world will come to an end, if not today, at 
least next year, nobody will be able to work, and so forth and 
so on.
    And sometimes in these arguments history certainly does not 
prove them out. In 1990, for example, the Clean Air Working 
Group--and that was a pro-industry group, as I understand it--
estimated the cost to industry would be $51 to $91 billion a 
year when, in fact, compliance costs are only about $22 billion 
a year. I mean, that's a lot of money, but it is, very 
significantly, between 57 and 75 lower than the estimate.
    The electric utilities--again, we're talking about the 1990 
period--estimated that the cost of the acid rain provisions 
would be between $1,000 to $1,500 per ton of sulfur dioxide, 
when, in fact, it ended up only costing $100 a ton. And the 
Petroleum Marketers Association of America estimated the cost 
of installing vapor recovery hoses at three times the actual 
cost.
    Could you give me some more examples, perhaps, of when 
costs were overstated or when technological advances rose to 
the challenge of stricter standards? In other words, I think 
one of the points that you make is when there are standards 
there, lo and behold: new technology.
    Mr. Bertelsen. Yes.
    Mr. Sanders. New creative processes.
    Mr. Bertelsen. I think I can give you a couple of examples 
on the mobile source side. Just by way of introduction, to try 
to explain why this happens, one of the reasons--the question 
could be asked, why is it that industry and even in some cases, 
EPA, overestimates the cost of compliance. And to give you sort 
of a very simple illustration, at least in my view, why that 
happens: when you're looking at a future requirement, you say, 
``Well, now how do I get there? How can I get there today? And 
perhaps that means I can take technology A, technology B, 
technology C, put them all together, and use all three of them. 
Then I'm pretty confident that I'm going to get there.''
    And I'll give you an example of this. But, in reality, as 
time moves on, perhaps technology A is optimized. Perhaps it 
turns out you only need technology A and B. Perhaps technology 
D comes along. And let me give you a couple of examples. When 
EPA--and this would probably be back around 1988-1989--was 
looking at the costs of complying with the tighter hydrocarbon 
standards in the Tier 1 standards, and the fact that the useful 
life requirements were being expanded, the estimate they used, 
if I recall correctly, was around $500. And that was based on 
the concept that perhaps you would have to replace the 
catalytic converter after 50,000 miles.
    That was one possible strategy that would get you there. 
And what we've seen, of course, is that the vehicles that have 
come out in 1994 and afterwards and meet the standards, in 
fact, do not require replacement converters. So, that's one 
where you can see a cost savings. Another example--right now 
there is a lot of discussion about the negotiations between the 
Northeast States and the auto manufacturers to adopt a national 
LEV program, which is a voluntary program that EPA has 
supported, when that program is really based on a set of 
California standards--LEV standards.
    When those standards were first adopted by California in 
1990, the estimates of complying with those standards, by some 
accounts, was over $1,500. I think California now estimates 
that the incremental cost increase in meeting those standards 
is somewhere around $150. I'm sure the auto manufacturers would 
debate that it's not as low as $150. But I think everyone would 
agree that directionally it has come down.
    Mr. Sanders. So what you're suggesting is that when the 
Government adopts standards, lo and behold, very often industry 
is capable of developing sophisticated technology which ends up 
being a lot more cost-effective than otherwise had been 
thought?
    Mr. Bertelsen. Yes. What happens is that you, basically, by 
setting the standard, you create an incentive. And it's on the 
part of the regulated industry, but also on the part of those 
who are developing technologies to come up with cost-effective 
solutions.
    Mr. Sanders. Right.
    Mr. Bertelsen. And really the solutions that win--I'll use 
the motor vehicle example again--if you have competing 
technologies as strategies, the one that's going to prevail is 
going to be one, the one that gets the job done; two, is the 
most cost-effective; and three, has the least impact on the 
driving public.
    And those are kind of the triple challenges when you're 
developing a technology that you try to address. And it's, 
again, it's the marketplace at work.
    Mr. Sanders. Let me interrupt you. I would like to ask Dr. 
Schlesinger a question. Doctor, earlier I introduced some of 
the non-monetized benefit categories. And I think you touched 
on that issue as well. The issue is more complicated. And we 
all understand that. Who in God's name has the foresight to be 
able to anticipate all of the costs or all of the benefits. I 
don't know that anybody does. And we do the best that we can, I 
suppose, in trying to guess. But are you saying that the 
proposed standards will not only benefit human health, but will 
also help prevent acid rain and will help promote plant and 
animal diversity, which is an issue of great importance to the 
State of Vermont?
    Mr. Schlesinger. No question about it. Any reduction in NOx 
will reduce the level of acid rain in regions downwind of 
emission, including Vermont and New Hampshire. Any reduction in 
the emission of NOx will reduce the deposition of nitrogen to 
natural ecosystems. Very nice sets of experiments show that 
added nitrogen reduces the diversity, both on land, where 
there's some nice work showing that added nitrogen 
significantly reduces plant species diversity as well as in 
waters and estuaries, where it reduces the diversity and 
economic potential of fish and fisheries. So I think those are 
very solid although non-monetized benefits that would be 
realized.
    Mr. Sanders. Thank you.
    Mr. McIntosh. Thank you, Mr. Sanders. Seeing no other 
members of the committee--and I want to say thank you to our 
final panel for your input. And also thank you to the members 
of the second panel who waited around. Mr. Kucinich indicated 
to me that he had no additional questions at this point.
    Mr. Sanders. Let me just thank you, Mr. Chairman. I think 
this was a well-done hearing and I think we all gained 
something from it.
    Mr. McIntosh. Well, thank you. I appreciate it. I do want 
to sincerely thank you and your staff for helping to put it 
together. I thank Mildred Webber and Larisa Dobriansky and our 
staff for the good work that they've done. It is only the 
beginning of our hearing, because we're now going to be in 
recess until Wednesday, April 23, at 10:30 a.m., in room 2247, 
where we will hear from some of the representatives of the U.S. 
Government on these same issues. Thank you very much.
    [Whereupon, at 2:30 p.m., the subcommittee recessed, to 
reconvene at 10:30 a.m., Wednesday, April 23, 1997.]
    [Additional information submitted for the hearing record 
follows:]

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  EPA'S PARTICULATE MATTER AND OZONE RULEMAKING: IS EPA ABOVE THE LAW?

                              ----------                              


                       WEDNESDAY, APRIL 23, 1997

                  House of Representatives,
 Subcommittee on National Economic Growth, Natural 
                 Resources, and Regulatory Affairs,
              Committee on Government Reform and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:35 a.m., in 
room 2247, Rayburn House Office Building, Hon. David M. 
McIntosh (chairman of the subcommittee) presiding.
    Present: Representatives McIntosh, Sununu, Snowbarger, 
Barr, Sanders, Tierney, Kanjorski, and Kucinich.
    Ex officio present: Representative Waxman.
    Staff present: Mildred Webber, staff director; Todd 
Gaziano, chief counsel; J. Keith Ausbrook and Larisa 
Dobriansky, senior counsels; Karen Barnes, professional staff 
member; Cindi Stamm, clerk; Phil Barnett, minority chief 
counsel; and Elizabeth Mundinger, minority counsel.
    Mr. McIntosh. The Subcommittee on National Economic Growth, 
Natural Resources, and Regulatory Affairs will come to order 
for a continuation of our hearing from April 16th.
    Ms. Browner, thank you for joining us. Go ahead and have a 
seat.
    Ms. Browner. We thought we were going to be sworn in.
    Mr. McIntosh. We can do that. Usually, we go through 
opening statements and then swear you in; but we will start out 
that way, yes.
    [Witnesses sworn.]
    Mr. McIntosh. Let the record show that the witness answered 
in the affirmative.
    And I understand, Ms. Browner, you have a commitment at 
12:30; so we will do our best to make sure there is plenty of 
time for your testimony and questioning to be able to try to 
accommodate you.
    Ms. Browner. We will make available whatever time the 
committee needs. I am more than happy to stay later if that is 
helpful to the committee.
    Mr. McIntosh. Thank you.
    By unanimous consent, each side will have 10 minutes of 
opening remarks; and the subcommittee clerk, Cindi Stamm, will 
be keeping time and will let me know as to how much we have on 
each side.
    I understand, Bernie, in addition, at the end of the 5 
minutes, first round of 5-minute questions, we will have a 15-
minute question and answer period that you and I will allocate 
back and forth.
    Mr. Sanders. Right.
    Mr. McIntosh. Let me begin now with my opening statement.
    The purpose of today's hearing is to question several 
Clinton administration witnesses on whether EPA has engaged in 
an illegal rulemaking procedure to impose burdensome, new 
standards for particulate matter and ozone.
    Let me be clear: I do believe that EPA's proposal is a 
regulatory fraud, that there may be a terrible price to pay in 
terms of human health if EPA does not start over and follow the 
law. EPA's violations of regulatory law throw the entire 
rulemaking into question. The confusion and the litigation that 
is surely to follow will undermine the considerable progress 
that has been made to date to clean the air.
    We have heard testimony from communities that are currently 
working hard to clean the air we breathe under the current 
standards, and I understand that they may be forced to put 
their clean air programs on hold because of years of 
uncertainty and litigation over the new standards. And, in the 
end, the court will have no choice but to throw out these rules 
because of the illegal procedures that are being followed.
    With great reluctance, I have concluded that in developing 
these standards, EPA has violated various Federal laws and 
Executive orders as well as administrative procedures. Among 
the problems are as follows.
    EPA has failed to follow the Regulatory Flexibility Act. 
The Agency refused to fully evaluate the impact of its proposed 
rules on small businesses and small entities, despite a finding 
by the controlling legal authority, the Small Business 
Administration, that EPA is required to do so.
    EPA has violated the Unfunded Mandates Reform Act. 
Specifically, evidence shows that EPA refused to conduct a 
complete cost-benefit analysis or to select the most cost-
effective option among the reasonable alternatives to achieve 
the objectives of the Clean Air Act.
    EPA continues to refuse to obtain, examine or release the 
data of the underlying key studies on which the Agency is 
relying, even though the studies were funded with taxpayer 
money.
    And EPA appears to have collaborated with OMB to impose a 
gag order on other agencies' written comments in the official 
record for the proposed rules.
    What is the consequence of these actions? Well, these laws 
have been enacted by Congress and signed by President Clinton 
to assure that certain things happen: First, that the proposed 
rules actually do maximize protection to health and the 
environment; and that good science is publicly available for 
all to see. Second, when there are several alternatives, we 
pick the best one. And, third, that the rights of all Americans 
be heard and are protected in the process.
    When EPA fails to follow these procedural laws and the 
objectives are not met, the result is that the health of 
Americans is made worse by the regulations.
    Now, what are the alternatives to this rulemaking? It is 
important to note that there are clearly better investments 
that can be made to promote public health. Eight billion 
dollars could save three to four times as many women from 
breast cancer by paying for mammograms. Or we could pay for 
more asthma research and pay for asthma medicine for all the 
Nation's asthma sufferers--not just a fraction of 1 percent of 
those asthma patients that the Agency says it will help with 
this ineffective and illegal rulemaking.
    In sum, America cannot breathe easier until EPA has fully 
complied with the law. I do believe that EPA's proposal is a 
regulatory fraud and that there may be a terrible price to pay 
in terms of human health if the Agency does not start over and 
follow the law. EPA's violations of regulatory law throw the 
entire rulemaking into question, and the confusion and 
litigation that will surely follow will undermine the 
considerable progress that has been made to date to clean the 
air.
    As I mentioned earlier, communities that are currently 
working hard to clean the air we breathe under the current 
standards may be forced to put these programs on hold or those 
who don't want to see them go forward will gain an upper hand 
in getting them to delay efforts to put new programs into place 
because of the uncertainty and litigation over the new 
standards. The courts, in the end, will have no choice but to 
throw out these new rules because of the illegal procedures.
    We must do better to clean the air and ensure that these 
regulations are above question so that we can truly go forward 
in protecting the environment for all Americans.
    [The prepared statement of Hon. David M. McIntosh follows:]

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    Mr. McIntosh. Mr. Sanders.
    Mr. Sanders. Mr. Chairman, thank you very much. I think 
this is going to be an interesting hearing. You and I have one 
or two just tiny, minor disagreements. Basically, I disagree 
with everything you said.
    Mr. Chairman, it seems to me that there are three basic 
issues that we have to examine today.
    No. 1, if we upgrade the standards regarding ozone and 
particulate matter, we would prevent an estimated 15,000 
premature deaths a year and 250,000 respiratory problems in 
children each year. I repeat--let's be clear about this--15,000 
deaths and 250,000 respiratory problems. Some of these are very 
painful, frightening problems for the kids.
    Mr. Chairman, the second question that we have to ask is a 
very simple one, probably the heart and soul of this whole 
debate: Has the EPA done good science in coming up with their 
conclusions? This is a difficult issue for many of us because 
we are not scientists or experts in particulate matter, ozone 
or respiratory problems. We have to rely on experts.
    So the very simple question we have to ask ourselves is 
whether this research and these conclusions are reliable. Have 
they been done by reputable scientists? Are they based on peer 
review study? Or is this work simply an effort by 
irresponsible, ill-trained extremists who are trying to 
frighten us and, for some unknown reason, are trying to make 
life difficult for various elements of American industry?
    That is the most important question. I hope Ms. Browner 
will address that issue.
    Now my understanding is--this is my conclusion--is that 
these new EPA proposed standards were based on some 5,000 
studies by some of our best scientists, that there was 
widespread public input and that these studies have all been 
peer reviewed and published in independent scientific journals.
    Furthermore, my understanding is that the relevant 
scientific studies have been reviewed extensively by a group of 
independent scientific advisors called the Clean Air Scientific 
Advisory Committee, CASAC, and that CASAC's members concluded 
that the EPA had done ``an adequate scientific basis for 
regulatory decisions.'' In fact, my understanding is that Carol 
Browner recently stated, ``This has been the most extensive 
scientific review and public outreach process ever conducted by 
EPA for public health standards,'' and that the EPA reviewed, 
again, many thousands of peer review studies. It sounds to me 
like we are in to serious science.
    So the first and most important question is, is the EPA's 
work scientifically valid? And, to me, it seems it is. It seems 
they did what they were asked to do.
    Now, the third issue, Mr. Chairman, is really a very simple 
one, very simple philosophical issue, and that is, if the EPA 
and the thousands of scientific studies are correct and if 
15,000 people are dying unnecessarily each year and if 250,000 
children are being made ill each year unnecessarily, then 
clearly, as Americans, as human beings and people with a soul, 
we have got to conclude that this is unsatisfactory, it is 
unacceptable and it has to end.
    Mr. Chairman, if there was some terrorist organization in 
this country killing 40 people every day for an entire year, 
the American people would be outraged, the U.S. Congress would 
be outraged, and I can assure you that action would be taken 
immediately to stop the slaughter. And if over 600 children a 
year were being hurt by these terrorists, believe you me the 
Congress would act immediately.
    Mr. Chairman, I am not aware of where in our Constitution 
or in our laws we allow innocent people to be killed or 
injured. I am not aware that certain individuals who may happen 
to own companies are allowed to cause so much pain and so much 
suffering.
    I think the last point that we wanted to touch on--I am 
sure Ms. Browner will get into it--is what her charge is. We 
are all concerned about finding cost-effective solutions to 
these problems, but she is mandated by the U.S. Congress to 
give us an objective analysis of public health problems, and I 
believe that that is what she has done and done well.
    Thank you, Mr. Chairman.
    Mr. McIntosh. Thank you, Mr. Sanders.
    I understand that on the majority side we have 6\1/2\ 
minutes left. Let me just briefly use 30 seconds of that to say 
I, too, agree that we have to do everything possible to help 
people who are suffering from asthma and other consequences of 
dirty air. My greatest fear is that, by not following the 
proper procedures, that those efforts will be put on hold and, 
in fact, could go backward in this country.
    Let me now yield to our vice chairman, Mr. Sununu, for his 
opening statement.
    Mr. Sununu. Thank you, Mr. Chairman. Certainly I want to 
take the time to thank the panelists for being here with us 
today.
    I share the concerns that I think all the members of this 
subcommittee share and that is for the quality of life and the 
quality of health that people in America can enjoy. Certainly, 
I share the concern of setting standards for air quality that 
will measurably improve our health and quality of life.
    In doing so, I think we would agree as a community that 
these same standards need to meet at least two principal 
objectives. First, they have to have the greatest positive 
impact only the health of our most vulnerable citizens, 
primarily the old and the young; second, I think these 
standards need to be based on sound scientific principles and 
data, as was emphasized earlier.
    The first of these objectives, protecting health, is one of 
a personal nature in that I have several family members who are 
afflicted with the kinds of respiratory problems, asthma, that 
we will hear about quite a bit today.
    Second, my experience as an engineer reinforces the 
critical importance of sound scientific support for any new 
regulation or rule that could affect every aspect of our daily 
lives.
    In particular, I believe that the basis for such sound 
science should address several questions: First, is the data 
that we base our conclusions on accessible by all, open to the 
public and open to review and evaluation? Second, have we 
included all the available and pertinent studies in the review 
process and for evaluation? And, finally, have our elected and 
appointed officials listened to the valued advice of experts, 
rather than simply pursue a political or predetermined agenda 
or solution?
    In summary, I feel that in pursuing a sound scientific 
basis for regulation, we need to be open, we need to be fair, 
and we need to listen to those who understand the issues and 
the scientific data better than we may. These attributes are 
essential to a process that ultimately should benefit our 
families and communities across the country.
    I hope that the discussion today will address these 
important issues and others as well, and I look forward to 
hearing from our panelists.
    Mr. McIntosh. Thank you very much, Mr. Sununu.
    Mr. Sanders.
    Mr. Sanders. Mr. Kucinich.
    How much time do we have left?
    The Clerk. The minority has 6 minutes.
    Mr. Kucinich. I will just need about a minute.
    I want to say that I am particularly intrigued in the 
debate over clean air to hear some of the novel solutions which 
those who are attacking the EPA have for improving the health 
of the people in this country. For example, when confronted 
with the difficulty that some people may have in breathing if 
we do not have stronger air quality standards, one official in 
Ohio stated that perhaps what we need to do is provide more air 
conditioners for people.
    Now, that is a novel way of looking at this, and certainly 
we have many creative people taking part in this debate.
    We also had someone testify before this committee who 
suggested that maybe the asthmatics might simply use a 
bronchial dilator an extra time a day when they are having the 
worst air quality. That, too, is a novel way of looking at 
this.
    Certainly, there are ways that the public can become 
involved in protecting their own health. We in Congress have a 
responsibility to protect the public health through creating 
laws which will do so.
    I noticed there has been some upside-down thinking 
throughout this debate, for example, saying that bronchial 
dilators ought to replace air quality standards and air 
conditioners ought to be used instead of laws to protect the 
air. And I contend, Mr. Chairman and members of this panel, 
that what is plaguing this Nation right now is not the junk 
science which so falsely has been labeled to refute the EPA's 
position, but I think what we are facing here is an attempt to 
junk the rights of the American people to clean air.
    So I am going to be listening very carefully as a former 
asthmatic, by the way. I suffered from asthma as a child, and I 
have a particular sensitivity to this issue. On behalf of many 
asthmatics, I am going to be listening to this debate with 
great interest. Maybe if the air standards don't work, maybe 
what we can do is get air conditioners and bronchodilators and 
pass them around the country for everyone. Either way, it is 
going to be great for the economy.
    Mr. McIntosh. Thank you, Mr. Kucinich.
    Let me turn now to Congressman Vince Snowbarger.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    Real quickly, I appreciate the panelists being here today 
and thank the chairman for the time.
    My concerns today are going to be really focused on the 
small business issues, particularly the Regulatory Flexibility 
Act and the Small Business Regulatory Enforcement Act, SBREFA.
    My main concern is that I don't feel that EPA has done what 
it needs to to comply with those acts. I feel like they have 
tried to circumvent both of the acts. In specific, EPA has 
failed to convene small business advocacy rule panels pursuant 
to SBREFA and failed to prepare initial regulatory flexibility 
analysis when published in a proposed rule. I am concerned that 
that is going to have an impact on the 26,000 small businesses 
in my district that have already worked very hard to comply 
with the 1990 Clean Air Act amendments, and I think it is 
unfair they have not had an opportunity as provided by Congress 
to impact these decisions.
    I would like to insert into the record, Mr. Chairman, two 
resolutions that were adopted by the Kansas Legislature with 
regard to proposed standards: Senate Concurrent Resolution 
1608, which urges EPA to continue studying the need for the 
changes in acts and to approve changes only after a cost-
benefit analysis and risk assessment; and Senate Concurrent 
Resolution 1609, which was responding to the legislature's 
concerns about the ozone transport assessment group.
    Additionally, I would like to insert the comments provided 
by the Kansas Department of Health and Environment, including 
their preliminary analysis on the impact on Kansas.
    Mr. Chairman, I would ask unanimous consent that they be 
submitted for the record.
    Mr. McIntosh. Seeing no objection, they will be made part 
of the record.
    Mr. Snowbarger. Thank you for the time.
    Mr. McIntosh. Thank you.
    [The information referred to follows:]

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    Mr. McIntosh. Cindi, could you report how much time each 
side has?
    The Clerk. The majority, 1 minute 45 seconds; minority, 4 
minutes.
    Mr. Sanders. Mr. Kanjorski.
    Mr. Kanjorski. Thank you very much, Mr. Chairman.
    First of all, I would like to congratulate EPA in meeting 
the tight deadlines and difficulty with which they have been 
dealt with on this particular issue. But I do want to express 
some concerns, particularly as this relates to the Commonwealth 
of Pennsylvania.
    It seems to me as we promulgate new rules and regulations 
of this sort we should really separate them into areas, not 
only the promulgation of the rule and regulation but the 
implementation of the rules and regulations. And those of us 
that live on the eastern seaboard or get the prevailing winds 
from the west or from the south, as the Commonwealth of 
Pennsylvania does, we seem to be in a no-win situation.
    The air coming into Pennsylvania from the west and from the 
south is already dirtier than the standards provided by these 
regulations. If we were to carry and just allow that standard 
to exist, it means Pennsylvania, for all intents and purposes, 
has to close down economic development over the future period 
of time. That is unacceptable.
    It seems to me that we have to look at where this air comes 
from and hold those States and those regions of the country 
more responsible; and we should go to the source of the 
pollution, rather than the result of where the pollution ends.
    The Commonwealth and the people of the Commonwealth are 
willing to share their burden for clean air, and we want clean 
air and want to perform exactly what EPA is trained to perform 
with these standards. But it is in the spirit of equity for the 
Commonwealth and its citizens and its potential thwarting of 
its economic growth in the future that we really have to pay 
attention to.
    We can't revitalize our urban centers and take people off 
welfare if we can't create jobs. We basically have laid down a 
policy here that will say the Commonwealth of Pennsylvania 
can't grow any further, it can't provide a better quality of 
living economically for its citizens because it just can't get 
into the game of economic competition.
    Yet as I look to my colleague, the chairman from Indiana, 
many of his plants are sending up the pollutions and putting up 
higher stacks so the air doesn't land in Indiana or Ohio but 
lands, in fact, in Pennsylvania. My friend from Ohio also has 
the same problem. The air pollution caused there by the 
generating plants are flowing directly into Pennsylvania and 
not into Ohio, as a result of precautions previously taken by 
the industries in those States and the regulations that allowed 
for the increase of the size of the air stack and other such 
circumventions of good public policy.
    I would suggest that the EPA should undertake a cooperative 
effort, that the States and the regions come together and 
perhaps empower the Ozone Transport Commission to address such 
challenges as equity and economic development, and that we 
really sit down and say, maybe as a national policy, that EPA 
regulations have negative impacts on certain regions or certain 
States. If that be the case, certain other implementations of 
Federal policy should be put into place to augment the 
deleterious effects of the air standard quality on the economic 
development of a particular area--and particularly the 
Commonwealth of Pennsylvania.
    Other than that, I want to support the administration and 
the EPA in implementing clean air standards. It is something we 
have to get to and we will. I think fighting about the 
scientific studies perhaps stretches the imagination. We can go 
on indefinitely studying, but we all have to recognize we have 
a very bad condition in air that should be corrected.
    However, it is vitally important that a broad national 
policy going beyond EPA and perhaps as to economic policy for 
the Government as to where we put our assets and how and what 
type of industry we encourage in these various regions that are 
negatively impacted by these new standards should be 
undertaken.
    [The prepared statement of Hon. Paul E. Kanjorski follows:]

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    Mr. McIntosh. Thank you, Mr. Kanjorski.
    Let me confirm, Cindi, a minute and three-quarters on our 
side?
    The Clerk. One minute left on the minority.
    Mr. Sanders. I would suggest unanimous consent for one 
additional minute on either side.
    Mr. McIntosh. Sure. I don't know whether Bob will take it; 
but for the remaining time on our side, I recognize 
Representative Barr from Georgia.
    Mr. Barr. Thank you, Mr. Chairman. I do have a statement 
that I will read in just a moment.
    I am intrigued by the ranking member's and the 
Administrator's great concern for the children and their 
ability to breathe easier. It was a hearing that I recall us 
having 2 years ago on Waco. Apparently, the most vulnerable 
among us at that point, the several dozen men, women and 
children, yes, dozens of children, who were gassed to death by 
our administration were not quite worthy of this great concern. 
I just would hope that this concern will be a continuing one 
and something that will apply to children everywhere in our 
country in all circumstances, not just those that we can speak 
glowingly in theory about.
    Mr. Chairman, I appreciate your holding this hearing for 
the purpose of examining the legal problems surrounding the way 
in which the EPA has gone about its rulemaking with regard to 
particulate matter in the ozone. Because so much is at stake in 
these proceedings, it is extremely important that EPA's 
rulemaking conform with legal requirements. Unfortunately, as 
you have pointed out, EPA has committed numerous errors in its 
enthusiasm to saddle State and local governments and small 
businesses with new and costly undertakings.
    Among the most serious infirmities is that explained in a 
petition filed with EPA last month to disqualify Administrator 
Browner for prejudgment of these important matters. In that 
petition, Administrator Browner is quoted repeatedly as having 
made up her mind to move ahead with finalizing the rules before 
the rules are finalized.
    The entire purpose of rulemaking, of course, is to engage 
in a fact-finding and deliberative process that conforms with 
the law, that will culminate in conclusions fairly reached and 
defensible in a court of law. Prejudging the results of such a 
process, as the Administrator appears to have repeatedly done, 
defeats the very idea of sound rulemaking.
    While prejudging the rulemaking proceeding is never 
advisable, it is especially troublesome in this matter. As 
pointed out, for example, by Senators Byrd, Glenn, Ford, 
Rockefeller and Robb in a letter to the Administrator just last 
month, compliance with this $8.5 billion rule will impose 
another extremely costly and complex layer on top of existing 
regulations in this area. These five Senators all urged the EPA 
to reaffirm current standards, conduct additional monitoring of 
particulate matter and related air quality issues and allow our 
States to complete action on the ambitious clean air standards 
that are already in place.
    Yet rather than heed these warnings, Administrator Browner 
has charged ahead of her own Agency's obligation to consider 
the technical, scientific and legal issues inherent in these 
proceedings, and declared that she will ``not be swayed'' by 
any evidence that is contrary to moving ahead to finalize the 
proposed rules.
    Mr. Chairman, I do not think anyone, including, most 
importantly, any judge, could be swayed that the Administrator 
has not already made up her mind on this matter. I agree with 
the petitioners who seek her recusal from this proceeding; and 
if the EPA continues to engage in the same administrative 
proceedings, I believe we in the Congress are duty-bound to 
retrieve the authority which we have entrusted to it.
    Thank you, Mr. Chairman.
    Mr. McIntosh. Representative Sanders, I believe, for the 
remainder of your time?
    Mr. Sanders. Mr. Waxman. I believe we have 2 minutes.
    The Clerk. Two minutes, sir.
    Mr. Waxman. Thank you very much, Mr. Chairman.
    I think it is peculiar to hear a Member of Congress talk 
about how the administrators will not be swayed by contrary 
evidence, before he has heard the testimony which may sway his 
decision on this issue.
    We heard some important testimony at our last hearing; and 
while I would like to do things like stop the proliferation of 
handguns that kill our children, the witnesses at the last 
hearing told us we can do something about the impact on 
asthmatic kids from ozone and particulate matters that are now 
called safe but are not safe because so many kids end up in the 
emergency room of a hospital when an asthmatic attack is 
triggered.
    There is clearly a consensus among health experts and in 
the medical community about the problems from particulate 
matter and ozone. We heard from Rick Russman, a Republican 
State Senator from New Hampshire, who said these standards 
would spur economic growth. We heard from Assemblyman Richard 
Brodsky from New York, who talked about how benefits are 
understated and that if we are to monetize and quantify the 
health and welfare ecological benefits, the case for lowering 
the ozone and PM standards would be virtually impossible to 
dispute.
    Dr. William Schlesinger an environmental chemist from Duke, 
told us there are tremendous environmental benefits, not just 
to human health, but forest reduction and acid rain and 
protection of our coastal estuaries; and Bruce Bertelsen, a 
representative of the Manufacturers of Emissions Control 
Association, which are the companies that actually make the 
pollution control equipment, indicated that when the strategies 
are developed by EPA that the costs are overestimated and often 
the small businesses that manufacture these small business 
devices help spur our economy.
    There are a lot of reasons for the rule. I think there are 
a lot of things to consider against the rule. EPA ought to be 
open to all views. That is your job.
    The chairman designated this hearing as EPA above the law. 
I haven't heard any reason to believe you are; but let me 
remind you, as you consider your rulemaking, look at the health 
effects, look at the reasons for changing the standards, look 
at the impact it is going to have on our society and give us 
your best judgment. And we will see if all the people that are 
telling us you are wrong will be pressing us to do anything 
about it.
    Thank you, Mr. Chairman, for this chance to make these 
remarks.
    I would like to ask unanimous consent to put my full 
statement in the record.
    Mr. McIntosh. Seeing no objection, certainly we will 
include the full remarks into the record.
    [The prepared statement of Hon. Henry A. Waxman follows:]

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    Mr. McIntosh. Thank you, Ms. Browner, for waiting. I wanted 
to let you and the other witnesses know, who will be sworn in 
later, we are not singling you out in any way. It is a standard 
policy in our committee and subcommittee to swear in all of our 
witnesses.
    Our first witness on this panel is the Administrator of 
EPA, Mrs. Carol Browner, who really needs no further 
introduction. Thank you for coming. Your entire written 
testimony will also be included in the record. Feel free to 
summarize it or extrapolate from there if you feel like it.

 STATEMENT OF CAROL BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL 
 PROTECTION AGENCY, ACCOMPANIED BY MARY D. NICHOLS, ASSISTANT 
ADMINISTRATOR, AIR AND RADIATION; AND JONATHAN CANNON, GENERAL 
                            COUNSEL

    Ms. Browner. Thank you, Mr. Chairman and members of the 
subcommittee, for inviting me here to discuss the Environmental 
Protection Agency's proposed revisions to the national ambient 
air quality standards for particulate matter and ozone, better 
known as soot and smog.
    Joining me today is Mary Nichols, the assistant 
administrator at EPA for air and radiation; and John Cannon, 
the general counsel to the Environmental Protection Agency.
    Mr. Chairman, the title of this hearing asks a 
straightforward question, so let me begin my testimony with a 
straightforward answer: EPA is doing precisely what the law, 
the Clean Air Act, tells us to do, and that is, protect the 
health of the American people above all else. EPA respects the 
law; EPA is abiding by the law; EPA is guided by the law.
    As you have correctly pointed out, Mr. Chairman, there are 
a multitude of Federal laws, Executive orders, administrative 
procedures, bureaucratic directives, that must be regarded in 
the process. Let me be clear. It is a good process. It ensures 
that in the end we know exactly what we might be getting the 
country into when we consider revising the air quality 
standards.
    But as important as any process is, let us remember that 
process is not an end unto itself; it is designed to take us 
somewhere. When the day is done, it has to leave us with the 
best public policy to protect the health of the American 
people. That is what the law, the Clean Air Act, requires us to 
do.
    All of the requirements, procedures, directives, that we 
must follow when we consider setting or revising air quality 
standards, all of them must be viewed in light of the Clean Air 
Act's mandate that, first and foremost, we do what we can to 
protect every American from the adverse health effects of 
breathing polluted air.
    Born in a spirit of bipartisanship under President Nixon, 
amended and strengthened under President Carter and President 
Bush, the broad mandate of the Clean Air Act is simple: Protect 
the public health first, and do it with an adequate margin of 
safety based on the latest, best, and most reliable scientific 
evidence.
    The law sets forth a specific procedure for periodic review 
of the air standards. It lays out a process for determining 
what the best available science is. It requires EPA to obtain 
outside, independent review by leading scientists from 
academia, research institutes, public health organizations, and 
industry. It obligates us to consider comments from anyone who 
wants to weigh in on proposed revisions. And Congress wisely 
decided to require this review every 5 years to ensure that 
public health protections are, in fact, based on the best 
available current science.
    Finally, if the science warrants a revision in the 
standards, the law then sets forth a reasonable and rational 
procedure for implementation and ensuring that that 
implementation is carried out in the most common sense, cost-
effective way over a very lengthy phase-in period.
    That said, Mr. Chairman, let me reiterate, the EPA has gone 
to extraordinary lengths to adhere to these provisions of the 
law. In fact, I think it is safe to say in this particular 
case, EPA has undertaken the most extensive scientific review 
and public outreach process ever conducted for a public health 
standard.
    Mr. Chairman, this is not, as you have stated, an 
irresponsible rush to judgment; it is a multiyear, carefully 
managed process. Our review of particulate matter has been 
conducted over the better part of the past decade. It has been 
two decades since a thorough review of the ozone standard was 
completed. We have considered all of the latest, best 
scientific evidence and submitted it to an independent review, 
some 250 studies on ozone and PM, all of it published, all of 
it peer reviewed, all of it fully debated; literally, peer 
review of peer review of peer review.
    The overwhelming body of independently reviewed evidence 
has told us that the current standards for smog and soot are 
not sufficient to protect the public's health with an adequate 
margin of safety. That is why, in accordance with the Clean Air 
Act, EPA has proposed to tighten these standards.
    Now, it is important to remember that the process has not 
been fully played out. These are only proposed standards. No 
final decision has been made. We are still analyzing and 
evaluating the extensive public comment we received, thousands 
upon thousands of letters, e-mails, phone calls, to a toll-free 
hot line.
    But let me assure the committee that, at the end of the 
line, there will be a decision to revise or not to revise. That 
is what the Clean Air Act promised the American people every 5 
years, and that is what we will do.
    Mr. Chairman, I deeply appreciate your specific concerns 
and those of other members of this subcommittee and the 
Congress about EPA's compliance with a host of other laws and 
directives and the process of reviewing the public health air 
standards. We have worked very hard to address those concerns.
    Specifically, we have taken significant measures to expand 
the advisory role of small businesses and other small entities 
in the process of setting and implementing any revised 
standard, if indeed the decision is made to revise the 
standards, while respecting the critical role State and local 
governments must play in ultimately meeting the standards.
    We have, as you know, Mr. Chairman, submitted these 
proposed standards to an extensive and ongoing and often 
spirited interagency review process, and, for informational 
purposes, we have carefully assessed the projected costs and 
benefits of these proposals.
    In fact, the Clean Air Act says that EPA cannot consider 
the cost to industry of reducing their pollution of the 
public's air in the standard-setting stage of the process. The 
law says we have to go to where the science takes us. We have 
to put the public health first. We have to save consideration 
of cost-benefit analyses for the implementation phase.
    And on that note, Mr. Chairman, we take very seriously our 
responsibility to work with the States, local governments, 
businesses large and small, to find the most common-sense, 
cost-effective ways to implement any revisions to the air 
standards if in the end revisions are, in fact, adopted.
    Mr. Chairman, one of the primary intentions of the Clean 
Air Act is truth in Government. The act is designed 
specifically to prevent us from ever getting to a point where 
the Government tells Americans their air is healthy to breathe 
when, in fact, it is not. That is why the law puts the public 
health above all else.
    Have we reached the point where, for the first time over 
the successful 26-year history of the Clean Air Act, Americans 
would elevate other concerns above their own health, the health 
of their children? That, Mr. Chairman, is for Congress to 
ultimately decide. In the meantime, EPA will adhere to the law.
    Thank you, Mr. Chairman. I am more than happy to answer any 
questions.
    [The prepared statement of Ms. Browner follows:]

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    Mr. McIntosh. Thank you very much, Administrator Browner.
    Now, I think all of us agree that we wanted to have the 
best public policy and the process should lead to that. But the 
process is also designed to ensure that all participants and 
all Americans have certain rights to have their views 
considered.
    One of the key changes that Congress made last year in the 
regulatory process and in the Clean Air Act effectively was the 
Regulatory Flexibility Act and the Small Business Regulatory 
Enforcement and Fairness Act, sometimes referred to as SBREFA.
    It is my understanding that in the Federal Register notice 
that EPA published on December 13th, they indicate that they do 
not believe the proposed air quality standards are subject to 
those requirements since the standards, in and of themselves, 
do not require small entities to comply with any rulemaking.
    In other words, the Agency seems to argue that State 
regulations implementing the quality standards might establish 
requirements applicable to small entities, but the standard 
itself would not.
    One of my colleagues, Mr. Snowbarger, pointed out to me the 
other day this is somewhat like saying that although the IRS 
issues regulations, and we are all required to file tax 
returns, we are not really affected until we start making 
money. I think all of us realize the absurdity of that type of 
logic.
    Now, in a letter dated November 18, 1996, the Clinton 
administration Small Business Administration--and I would like 
to submit the letter to the record--wrote to you, Jere Glover, 
who is the chief counsel for advocacy, pointed out in this 
letter, on page 2, that SBREFA does apply to this rulemaking.
    How can you say that EPA could not conduct a regulatory 
flexibility analysis when your own administration's Small 
Business Administration says you can and you must?
    Ms. Browner. Obviously, within an administration, each 
individual agency and department has a responsibility to review 
the laws, to review Executive orders, to review guidances, and 
make an appropriate determination from their perspective.
    There is an OMB process--and I know Ms. Sally Katzen will 
be testifying later as to that process--where, appropriately, 
these kind of issues are raised and discussed.
    At the conclusion of that process, it was the judgment of 
the Office of Management and Budget to clear EPA's proposed 
rule for public comment, and that is where we now find 
ourselves in the process, taking extensive public comment and 
analyzing that public comment.
    Mr. McIntosh. In spite of the serious risk that by not 
following the legal advice of the controlling agency, the Small 
Business Administration, that if the rulemaking went forward 
without that impact analysis on small business and small towns, 
that it would be subject to a challenge in court?
    Ms. Browner. We don't doubt that there will be lots of 
people, some from industry and other places, who will no doubt 
challenge whatever decision we ultimately make, whether that is 
a decision to retain the current standards or to strengthen the 
current standards to provide additional public health 
protections. I don't doubt this will find itself in court, as 
do many of the decisions I make on behalf of the American 
people and their health protection.
    Mr. McIntosh. By not following this new process, I am very 
worried that that will exacerbate that problem and further 
delay efforts to clean the air.
    Now, one way EPA could ensure that the Small Business 
Regulatory Enforcement Act is not a problem would be to exempt 
small entities from the implementing control measures in its 
standards. Now, are you prepared to commit to that type of 
exemption?
    Ms. Browner. If I might just step back for a moment, Mr. 
Chairman, this is obviously an important area. If I might 
explain to the members of the committee, I know you are 
intimately familiar with these statutes, but perhaps for the 
other Members, if I might just explain what the various 
components of the law direct EPA to do, perhaps that would be 
helpful.
    Mr. McIntosh. Certainly. I didn't hear an answer to my 
question.
    Ms. Browner. I wanted to explain, and then people could 
perhaps understand why, as it is frequently the case when you 
deal with complex issues, they don't lend themselves to yes and 
no answers. I am more than happy to explain what the law says.
    Mr. McIntosh. Go ahead and explain the law. But I would 
like an answer. Go ahead with your explanation.
    Ms. Browner. The Regulatory Flexibility Act, which has been 
on the books, I think, since 1980, says that a review of 
options must be undertaken by an agency in adopting a 
particular regulation unless no significant economic impact on 
a substantial number of small entities occurs.
    What we are doing and taking comment on right now and 
considering--and, again, we have not made a final decision--is 
whether or not, under the public health provisions of the Clean 
Air Act, the national ambient air quality standards for ozone 
and fine particles should be changed. When that decision is 
ultimately made----
    Mr. McIntosh. When the decisions are made----
    Ms. Browner. We haven't made any decisions.
    Mr. McIntosh. No; in the past when EPA made similar 
decisions, didn't they conduct a Regulatory Flexibility Act 
analysis?
    Ms. Browner. Not within the prescriptions of the 1980 act, 
no. There are analyses that are done.
    Mr. McIntosh. My understanding is, they did, and they 
included it in part of the rulemaking record.
    Ms. Browner. No. If I might, please, explain what the Clean 
Air Act says, I think it could be helpful.
    Mr. McIntosh. Certainly.
    Ms. Browner. Thank you. The Clean Air Act, since its 
original passage, has required EPA to review six public health 
air standards every 5 years. That is the section of the act, 
section 109, which we are now engaged in and we seek public 
comment on.
    When a final decision is made, if that final decision is to 
change the current standards to strengthen the public health 
protections, there then will flow a very lengthy process 
whereby each State--not EPA--each State will develop a plan as 
to how best to reduce pollution in their State.
    A final decision on whether or not to change the current 
public health standards for soot and smog does not, in and of 
itself, require any business, small or large, to take any step. 
That all comes after individual States design individual 
programs.
    That is why this section of the Clean Air Act, we believe, 
is not subject to the requirements of the Regulatory 
Flexibility Act. We cannot tell you today what any individual 
State will decide in terms of industry or business.
    Mr. McIntosh. I have to tell you, I find that extremely 
disingenuous, because in your own rulemaking you point out 
there will be additional areas that will be put into 
nonattainment and that that automatically requires them to meet 
standards that are already put into place by EPA. So I think 
you know there will be businesses affected by that change in 
status in their communities.
    Ms. Browner. They will have to plan. There is nothing in 
the proposal that specifically requires any small business, any 
large industry, to change what they are doing today. The 
proposal, and what we take public comment on, is where to 
protect the public's health.
    Mr. McIntosh. As I explained earlier, there is nothing in 
the IRS regulation that requires you to take action until you 
start making money. But when you start making money, you know 
you are going to be affected by it. The same thing with these 
regulations.
    My time has expired, but let me just press you, because I 
do think it is important: Are you prepared to make exemptions 
for small business in those implementation regulations?
    Ms. Browner. Mr. Chairman, the implementation is the 
responsibility of the States through an implementation plan. 
They will make that decision.
    Mr. McIntosh. Except you know that EPA issues regulations 
that limit the States' ability to adopt those plans.
    Ms. Browner. We do not issue regulations. We will issue 
guidance. We are in discussions with States, with small 
businesses, if the standards should be strengthened, as to what 
those guidances would be, but we do not issue regulations. The 
individual States decide.
    Mr. McIntosh. At this point you are not prepared to grant 
an exemption for small entities?
    Ms. Browner. Mr. Chairman, if you don't like----
    Mr. McIntosh. The answer is yes or no?
    Ms. Browner. No, it is not a yes or no answer because it is 
not my authority, it is the Governor's authority and if you 
don't like----
    Mr. McIntosh. But you are going to issue the guidance. In 
that guidance, will you give guidance to exempt small 
businesses and small entities? I think it is clear you are not 
going to say yes, because you are not prepared to do that.
    Ms. Browner. No, Mr. Chairman, in the guidance, we can 
examine all kinds of options in terms of where States may find 
the most cost-effective ways of reducing pollution. But at the 
end of the day--and this is extremely clear--it is the Governor 
who decides in an individual State how best to reduce 
pollution. And if you don't like that, then the problems are 
with the Clean Air Act, not with me.
    Mr. McIntosh. The Governors, and you know, in addition to 
the regulations and guidance EPA issues, that EPA must sign off 
on those State implementation plans, and if you adopt the 
policy that you are not going to approve those State 
implementation plans, if they exempt small entities, the States 
are not going to be able to do that.
    Ms. Browner. That is not our prerogative under the law. It 
is not our prerogative under the law.
    Mr. McIntosh. You are telling me that EPA has no sign-off 
authority for State implementation plans?
    Ms. Browner. You just said if we adopt guidance saying we 
won't accept a plan, that doesn't impose reduction requirements 
on small businesses. That is not our prerogative.
    Mr. McIntosh. No, no. It is your prerogative to sign off on 
those State implementation plans.
    Ms. Browner. The test that we are allowed to apply to a 
State implementation plan is very simple: Does it, taken in its 
entirety, achieve the pollution reductions necessary to protect 
the public's health? That is what it is.
    Mr. McIntosh. At this point you are not willing to state 
that you will grant exemptions for small businesses and small 
entities in applying that standard?
    Ms. Browner. If a State makes that choice--and I think many 
will make that choice--we will certainly sign off of it, if 
their plan guarantees the public health protections that have 
been promised at the end of this process, if it is our decision 
to change the current standards.
    Mr. McIntosh. So basically no, you are not willing to 
exempt small entities?
    Ms. Browner. No, Mr. Chairman, I didn't say no, and I 
wanted the record to reflect I didn't say no. I said very 
clearly, if the State brings us a plan, it is their choice to 
exempt small businesses, then we will support that if their 
plan achieves a level of public health protection.
    Mr. McIntosh. My time has expired. I appreciate the 
committee indulging me.
    Mr. Sanders. Mr. Chairman, I would appreciate it if we 
could have as much time as you had.
    Mr. McIntosh. Sure. Let's keep going on the 5-minute. If 
you need more time to pursue a line of questioning, we will be 
able to grant it to you.
    Mr. Sanders. As they say in basketball, that was a long 5 
minutes.
    Ms. Browner, we have heard this morning use of the words 
``sham'' and ``fraud'' to describe the process that you 
underwent. Those are pretty strong words. But let me ask you a 
question: I know Mr. McIntosh is concerned you follow the law, 
and so am I. So my question is the following.
    Based on the Clean Air Act today, if the scientific 
community came to you and said, EPA Administrator, there are 
some 15,000 people in this country who are dying prematurely, 
there are some 250,000 people, mostly children, who are 
suffering from lung problems as a result of air pollution, and, 
in fact, if you did not act to protect the health of those 
people, would you be in violation of the law?
    Ms. Browner. The law has promised since its inception 27 
years ago that the public's health be protected with an 
adequate margin of safety based on best available science. That 
is what it has promised, and that is what we are seeking to do 
at this point.
    Mr. Sanders. Are you suggesting an affirmative to what I am 
saying?
    Ms. Browner. Yes.
    Mr. Sanders. In other words, if somebody comes to you and 
says people are dying all over this country and children are 
getting sick, and if you did nothing, you would be--as I 
understand it and read the law, you would be derelict in your 
duties.
    Ms. Browner. This is why we have made a proposal to the 
American people; this is why we are taking comments from the 
American people on whether or not the current standards for 
soot and smog should be tightened.
    Mr. Sanders. Very importantly, again, understanding that we 
have heard this morning the use of the word ``fraud'' and the 
use of the word ``sham,'' and I am glad that we have great 
scientists up here, I myself had trouble getting through 
biology in college, but it is good we do know we have 
scientists that know a great deal about ozone and respiratory 
problems on the committee.
    But I would like to ask you, notwithstanding that, have you 
gotten good scientific advice? Did you pick up these guys in 
the basement of the EPA building? You sit in a corner and write 
out rules in order to hurt American industry? Is that what you 
did?
    Ms. Browner. No.
    Mr. Sanders. Nor in fact can you defend the scientific work 
that went into your coming up with your regulations?
    Ms. Browner. The process envisioned by the Clean Air Act is 
an inclusive, broad, comprehensive process, and we have done 
more than adhere to that.
    This process has been ongoing in terms of an external 
scientific peer review panel, the Clean Air Science Advisory 
Committee, for the better part of 4 years. These are 
individuals, not EPA scientists; these are individuals from 
industry, from academic institutions, who have given of their 
time to review all of the relevant published, peer-reviewed 
scientific analysis and then provide to us their judgments on 
where they find the current best available science to be.
    Mr. Sanders. So despite the words ``fraud'' and ``sham,'' 
am I correct in understanding that what you are telling us is, 
you have assembled some of the best scientific minds in the 
country who know a great deal about this issue, maybe even more 
than some of us in Congress, and that they have been supportive 
of your efforts to improve air standards?
    Ms. Browner. Yes, that is correct. Congressman Sanders, 
there have never been, for any decision that I am aware of made 
by the U.S. Government to protect the American people's health, 
250 peer-reviewed published studies. That is what we have here, 
250 peer-reviewed, published in the leading scientific 
journals. This is not one or two or three.
    This is not EPA scientists doing some work. These are the 
preeminent scientists in the country engaged in 10, 15, 20 
years of scientific study and analysis that has been reviewed 
by other scientists. It is then published. That is then 
reviewed again.
    Mr. Sanders. What you are saying is that the work that you 
have done is based on a broad consensus of the best scientific 
minds in the country?
    Ms. Browner. Yes.
    Mr. Sanders. OK. Ms. Browner, Mr. Kanjorski a few moments 
ago raised an issue of concern, and being from the Northeast, I 
share his concerns. My constituents in Vermont are breathing 
the secondhand smoke of big industry in the Midwest, and this 
is not a minor problem. In fact there is one plant in Ohio that 
emits more nitrogen oxide, a precursor to ozone, than all of 
the utility plants in New Jersey, and five times the annual 
emission of the District of Columbia.
    In fact, in 1995, as I understand it, the State of Ohio 
emitted 2,500 times the nitrogen oxide that my State of Vermont 
did, and yet we are obliged, as the people in Pennsylvania are 
obliged, to breathe that pollution. This is a serious problem. 
How do you propose that we address that problem?
    Ms. Browner. We and the States recognize there are regional 
transport issues that, in fact, pollution from one State may 
have very real public health consequences in another State.
    We have been working, as Mr. Kanjorski suggested, through a 
process involving literally all of the States east of the 
Mississippi to look at how best to provide a level of 
protection for all of the people and to look out where we need 
to get, from the States' perspectives, the greatest amount of 
reductions to protect not just their citizens but citizens in 
your State, Pennsylvania, New Hampshire, Vermont, et cetera. 
There is a process for doing just that, and we are engaged in 
it right now. It is the Ozone Transport Advisory Group made up 
of representatives from individual States.
    Mr. Sanders. Let me just conclude my line of questioning by 
saying I think there appears to be a bit of confusion as to 
what the law states. My understanding--and correct me if I am 
wrong, Ms. Browner--is your obligation, by law, is to protect 
the public health of the American people and that the best 
scientific minds in America have concluded that there is a very 
serious health problem, and that is how you have gone through 
it. Is that correct?
    Ms. Browner. Right. That is why we have proposed and are 
taking comment on whether or not to change the current public 
health standards, because the science, large amounts of it, 
show that far too many people, particularly our most 
vulnerable--our seniors, our children--are at risk under the 
current levels of pollution.
    Mr. Sanders. Second of all, in this particular stage in the 
process, we are not talking about implementation, so it would 
be incorrect to be talking about cows wearing diapers and the 
destruction of all industry in the Midwest and so forth and so 
on. That is not what we are talking about and not what you are 
obliged to talk about at this particular point.
    Ms. Browner. The Clean Air Act, I think very wisely, since 
its inception has divided the public health considerations and 
process from the implementation side. And I think equally 
important to remember, the Clean Air Act very wisely invested 
in the States the responsibility for deciding how, within their 
boundaries, to reduce their air pollution.
    Mr. Sanders. With a great deal of flexibility?
    Ms. Browner. With a great deal of flexibility.
    Mr. Sanders. Thank you very much, Mr. Chairman.
    Mr. McIntosh. Thank you, Mr. Sanders.
    Let me turn now to Mr. Snowbarger for 5 minutes of 
questioning.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    First of all, I find it very confusing, in answer to the 
chairman's question, that you don't think you are required to 
file these analyses under the Regulatory Flexibility Act. I am 
reading from the statute: When an agency promulgates a final 
rule, after being required by law to publish a general notice 
of proposed rulemaking, the Agency shall prepare a final 
regulatory flexibility analysis. And then it goes into what it 
needs to contain.
    So I am a little confused about why you don't think you 
need to file those analyses.
    Let me go to a different matter, though. In some of the 
information that has come to the committee from EPA, it is my 
understanding that you have indicated that, first of all, you 
don't need to comply with these because small business or small 
entities are not affected by the act.
    So kind of out of one side of your mouth, you are saying 
the agency can't perform the analysis contemplated by the act. 
Out of the other side of your mouth, though, you are saying 
through a prepared draft of the regulatory impact analysis to 
generally inform the public about the potential costs and 
benefits that may result from its proposed revisions, and you 
look at the proposed drafts for both particulate matter and for 
the ozone.
    And the charts start talking about small businesses. They 
talk about how they are going to be affected, and they talk 
about the fact that small businesses might have an impact of up 
to 3 percent.
    I think a lot of these questions have been raised by the 
Small Business Advisory Committee through the letter that the 
chairman introduced into the record.
    If you can do an analysis on that basis, doesn't it show 
that EPA can, in fact, conduct a regulatory flexibility 
analysis as required by law?
    Ms. Browner. There are two different issues here--if I 
might step back. Under the Small Business Regulatory 
Enforcement Act, SBREFA, there is a provision that allows an 
agency to certify that there is no significant economic impact 
on a substantial number of small entities.
    Mr. Snowbarger. And you made that certification.
    Ms. Browner. We made that certification. We base that 
certification on the fact that we cannot, because it falls to 
the States to write the implementation plans, tell anybody with 
absolute certainty what might be required of industry. 
Moreover, in adopting a final public health standard, whatever 
that might be--and, again, we have not made a final decision. 
There are no requirements placed on any industry, any small 
entity, any small business, per se.
    A regulatory impact analysis is required under an Executive 
order signed by the President. The purpose of a regulatory 
impact analysis is to evaluate broadly both potential benefits 
and potential costs. We are--and as you make reference to, we 
have made public a draft regulatory impact analysis; and we 
will finalize that as we make a final decision on whether or 
not to tighten the public health standards.
    However, it is very important to understand that the 
Executive order's provisions requiring us to do an RIA, a 
Regulatory Impact Analysis, does not trump, if you will, the 
Clean Air Act requirement that this be a decision based on 
public health and not cost considerations. This whole issue of 
whether or not the Clean Air Act should require cost to be 
taken into account in setting public health standards has been 
debated in this body over the last 27 years.
    Mr. Snowbarger. I can appreciate all the background 
information, but I also appreciate the fact I am losing my time 
and not getting an answer to my question.
    You indicated, very early on, we ought to be taking a 
common-sense approach to all this; and, thus far, I am still 
looking for it, the common sense, that is.
    Let me go to something that seems inconsistent here. You 
indicated that you certified it didn't affect small business--
these proposed regulations didn't affect small business. Why 
didn't you certify the same thing when you were dealing with 
the sulfur dioxide proposal in 1996? There was no certification 
that that did not have an impact on small business.
    Ms. Browner. Are you referring to an acts consideration?
    Mr. Snowbarger. Yes. To me, it is a very analogous 
situation; and yet you have taken totally opposite----
    Ms. Browner. We didn't propose to change the current 
standard in that case. We have maintained the existing 
standard. There is no proposal to change that standard put 
forward to the American people.
    Mr. Snowbarger. My understanding is that there was a 
proposal for change. It did not go into effect. But a 
reproposal----
    Ms. Browner. No. We have not changed that standard. That is 
a fact. The current standard has been in existence now since--
for an extended period of time. We did not make a proposal to 
change that standard.
    Mr. Snowbarger. My understanding, in 1996, there was a 
reproposal.
    Ms. Browner. We are more than happy to look at the 
document, but we published a notice that we would be 
maintaining----
    Mr. Snowbarger. Let me followup on something if I could, 
Mr. Chairman, real quickly; and I will end my questioning with 
this.
    You stated something that is of a great deal of concern to 
me. I thought I heard you say--and you can answer both 
questions at once. I thought I heard you say that the Clean Air 
Act is not trumped by SBREFA.
    Ms. Browner. No, I didn't say that. I said by the Executive 
order requiring a Regulatory Impact Analysis.
    Mr. Snowbarger. Then give me your legal analysis of which 
one of the two statutes that I just talked about, the Clean Air 
Act or SBREFA or, for that matter, the Regulatory Flexibility 
Act, which one of those has priority in the EPA.
    Ms. Browner. The Regulatory Flexibility Act did envision 
there could be, if you will, a conflict between two statutes 
and provides for a determination as to whether or not there 
would be a significant impact on a substantial number of small 
entities; and we have certified in the proposal that there is 
not because this is a public health standard. It is not the 
implementation phase. It is in the public health phase of the 
Clear Air Act which we have made this proposal and now take 
public comment on.
    Mr. Snowbarger. Mr. Chairman, my time is up; but I do have 
some followup questions for a later time.
    Ms. Browner. Mr. Chairman, if I might just clarify--and we 
are more than happy to look at the document that the Member 
has.
    In 1996--on May 22, 1996, we took a final action on sulfur 
dioxide. It was no revision of the standard. In 1994--in 
November 1994, there was a reproposal on three alternatives. 
Perhaps you are referring to a 1994 action, not a 1996 action.
    Mr. Snowbarger. Answer it for 1994 then.
    Ms. Browner. We would be more than happy to look at that 
and work with you.
    Mr. Snowbarger. Why wasn't there a certification similar--I 
mean, we are going through a similar process, it seems, than we 
were in 1994; and there wasn't a certification about the small 
business at that point.
    Mr. McIntosh. Maybe we can come back to this after the 
minority's round of questioning; but I think what the question 
is going to is the absence of a certification, which, in this 
case, was given, that it would not apply. But, it is now Mr. 
Kucinich's time.
    Mr. Kucinich. Thank you very much, Mr. Chairman and Mr. 
Sanders.
    I would like to go back to the Administrator's last 
discussion with Representative Sanders and, in particular, the 
science, which seems to be--so much of the debate surrounds 
this issue of science. Where are all these studies that have 
been done that support the EPA's proposal? I mean, do you have 
such studies?
    Ms. Browner. The proposal that we take comment on is based 
on 250 peer-reviewed, published scientific studies. We would be 
more than happy to provide for the record--this is a 
bibliography of each of those public peer-reviewed studies.
    Mr. Kucinich. Without objection, Mr. Chairman.
    Mr. McIntosh. We will gladly put that into the record. 
Thank you.
    Ms. Browner. We are more than happy to give you all the 
studies, if that would be further helpful to you. There are 
boxes.
    Mr. McIntosh. We may have some questions on that coming up, 
yes.
    Mr. Kucinich. May I suggest that, since we are in debate 
over the issue of the science, I am one Member who would like 
to see some of these boxes so that we can keep this discussion 
focused on facts and not conjecture. Peer review studies mean 
something to me, and I would like to have a chance to see them.
    Now there have been--of the objections that have been filed 
to your proposed rules, have you had a similar body of 
information, peer review studies published or offered or 
proffered to the EPA which would categorically dismiss this 
body of knowledge, the bibliography of which you are submitting 
for this record?
    Ms. Browner. No, we have not had another 250 studies 
submitted suggesting otherwise, in terms of the public health 
impact.
    Maybe I should explain the process a little bit. We have 
taken public comment, as we do on any proposal. We are 
reviewing the public comments. We have not completed the review 
of the public comments. They are quite extensive. We take this 
process very, very seriously.
    It may be that in those comments there are some studies 
which were completed after the panels concluded their review of 
existing published science. Obviously, if those are peer-
reviewed, published studies, they are important and should be 
considered in reaching a final judgment; and we would certainly 
do that.
    At this point in time, we know of some, but not any large 
number. We are determining whether or not they were, in fact, 
subjected to rigorous scientific peer review, methodology, et 
cetera.
    Mr. Kucinich. Mr. Chairman, it is a remarkable moment if we 
can definitively determine that 250 studies which have been 
presented in support of these proposed rules are, in fact, junk 
and ought to be cast aside. Because, if that happens, that 
means that we have thousands of scientists out there who are 
misinforming the American people about this critical public 
policy; and if that is happening, certainly the American people 
have a right to know.
    Ms. Browner. These are not scientists who work for EPA. 
These are scientists who have been engaged in these kinds of 
studies for the better part of their professional careers, in 
many instances, many work for leading institutions and industry 
across the country.
    You know, this discussion of, quote, junk science, with all 
due respect, I don't know that it helps the American public 
engage in an honest consideration of the proposals that we have 
put before them. There was lots of opportunity while the 
scientific--Clean Air Scientific Advisory Committee was meeting 
for anybody from industry or anywhere, academic institutions, 
to come forward and say, hey, in those 250, guess what, those 
three are junk. They weren't really peer reviewed. They weren't 
really published. It didn't happen.
    All of these studies were considered, reconsidered and 
reconsidered; and they are the science--the best available 
current science that forms the proposal we have made to the 
American people.
    Mr. Kucinich. On a personal note here, Mr. Chairman, I had 
the opportunity to go to a pretty good university, Case Western 
Reserve in Cleveland; and all of us have different backgrounds. 
Mine are in communication, science. I spent about a year 
working on a master's thesis, and my whole career depended on 
how the faculty would judge that thesis. I suppose after the 
time that I spent, if that was viewed as junk, I would feel 
pretty bad about it. Not only that, but my career would have 
been in jeopardy.
    Mr. McIntosh. If I might interject just very quickly, 
because I don't want to disparage the scientists who have 
worked in this area, and I think there are some very good 
studies out there. But even the best scientists will subject 
their underlying data to a peer review; and one of my 
colleagues, Mr. Sanders, during his time will get into some of 
the problems we have with that.
    So I agree. We have to use good science, but we also have 
to follow the process the scientists themselves do in examining 
that underlying data because you can find errors that were not 
intentional.
    Mr. Kucinich. The Chair is absolutely right. And as someone 
who respects the process of scientific inquiry, we need to look 
at that. What I would suggest, that these hearings, as 
meaningful as they are, can have even more meaning if we have 
the opportunity to question people about the underlying science 
so that we can come to a conclusion as to whether or not the 
EPA's rulemaking is supported by science or driven by some 
ideological agenda.
    I certainly am concerned that the stands that we take here 
are supported by fact. And when the Administrator presents us 
with a 250-study bibliography reference, I say that is fine. 
Can you show us and can you provide us with the extensive 
information, perhaps a synopsis or a--or a reference which 
would enable us to have more information so we can make better 
decisions? Can you do that? With permission of the Chair.
    Ms. Browner. Absolutely. We are more than happy to give you 
the studies. That is the peer-reviewed, published studies that 
were considered.
    We might also--this is available, but we would make it 
available to each of the Members directly, the preamble of the 
proposed rule, which we take comment on, which speaks to the 
volume of the science and the scientific process. That might be 
helpful.
    Mr. Kucinich. I am concluding. Thank you.
    I wanted to say to the Chair that I am glad to hear you say 
that we are not disparaging the scientists who have done this, 
that we need to get to the underlying premises of their 
studies. That is very good, Mr. Chairman; and I appreciate 
that.
    Mr. McIntosh. What I would propose is we work with Mr. 
Kucinich and all the Members; and if there are some particular 
studies we want to take a closer look at, if you have boxes 
full, rather than you send us a huge box and we look through 
and pick out the ones that are there, we will try to identify 
ones for the Agency that we would like to take a closer look 
at, not only the whole study but the underlying data.
    Mr. Kucinich. I appreciate your willingness to do that, Mr. 
Chairman. Thank you.
    Mr. McIntosh. Let me turn now to the vice chairman of the 
subcommittee, Mr. Sununu.
    Mr. Sununu. Thank you very much. And I appreciate the 
remarks that have been made, especially those to make clear 
that we are not disparaging the work of any particular science, 
any scientist. In particular, I would emphasize that even the 
term junk science has not been used by me. It has not been used 
by any members, even those here that are more critical of some 
of the processes that may have been used, so I think that----
    Mr. Sanders. If the gentleman would yield briefly, the 
words fraud and sham have been used.
    Mr. Sununu. I am referring to the phrase junk science.
    Ms. Browner. I will amend my remarks--fraud and abuse.
    Mr. Sununu. I just want to be clear it is not something 
that has been used on this side.
    You talked about 250, the studies, various peer review 
studies that have been used. Of the 250, how many of those deal 
with the specific health effects of PM2.5?
    Ms. Browner. Of the 250 studies, 86 of the studies focus on 
particles. They focus on----
    Mr. Sununu. How many focus on the new class, the PM2.5 
class, and the specific health effects of PM2.5?
    Ms. Browner. I think the question--29 look at the fine 
particles. There are 50-plus cities where fine particles--2.5-
sized particles are being measured; and there are health 
records--the American Cancer Society has health records on 
individuals in those cities which are now the subject of many 
of these studies.
    Mr. Sununu. You are saying 29 studies use PM2.5 data and 
correlate PM2.5 data to health effects?
    Ms. Browner. Use fine particle air quality data.
    Mr. Sununu. Can you provide a list of which of the 29, as 
you put it, used PM2.5?
    Ms. Browner. Fine particle.
    Mr. Sununu. Ten microns is fine, 20 microns is pretty fine 
to me, but we are talking about the 2.5 micron class, is that 
correct?
    Ms. Browner. Or less--or below.
    Mr. Sununu. Or below. So I just want to clarify, those are 
the 250 that are dealing with those fine particles, 2.5 microns 
or less. Twenty-nine, is that the correct number?
    Ms. Brown. Yes.
    Mr. Sununu. Thank you.
    You talked about the CASAC, the Clean Air Scientific 
Advisory Committee, and their importance in recommending or 
helping you to decide that these rules are necessary. How many 
are on that committee?
    Ms. Browner. There were two panels, one on ozone and one on 
fine particles. There are 21 participants in the fine particle 
panel.
    Mr. Sununu. And their feeling was unanimous that we ought 
to impose a 2.5 standard?
    Ms. Browner. Of the 21 members, 19 of that panel said that 
we should establish--I can read you the quote: There is a 
consensus that a new PM2.5 max be established with 19 of 21 
panel members.
    Mr. Sununu. And 19 of 21 thought an annual standard was 
appropriate as well.
    Ms. Browner. And/or an annual standard, and we can break 
that out for you in terms of where individuals were.
    Mr. Sununu. On that basis, how many voted for the annual 
standard that the EPA proposed?
    Ms. Browner. Of the 21 members, 19 of 21 said you should do 
something about 2.5; 11 of the 21 expressed an opinion about 
what the concentration level of 2.5 should be in terms of an 
annual or 24-hour standard. Do you want me to keep going?
    Mr. Sununu. No.
    Ms. Browner. Not all of them expressed an opinion.
    Mr. Sununu. Ten didn't express an opinion, and how many 
were supportive of EPA's proposed standard?
    Ms. Browner. Six supported levels within the ranges 
recommended by EPA; five supported levels above that range.
    Mr. Sununu. And how many didn't support--you are saying 10 
supported no range at all.
    Ms. Browner. No. That is not an accurate reading with what 
CASAC did; and, with all due respect, if maybe I could 
explain----
    Mr. Sununu. Be clear.
    Ms. Browner. What happened is there were 21 people who 
spent the better part of 4 years looking at the science in 
public hearings and other discussions. Of the 21, 19 said it is 
time to do something about fine particles, 2.5, 19 of 21.
    In the scientific community, this is a huge amount of 
consensus, as I am sure you are well aware. Within those 19, 
some went on to express a personal opinion about how much of 
2.5 may or may not be safe in terms of the public health and 
the premature deaths, how to measure it.
    Mr. Sununu. How many----
    Ms. Browner. And the fact that 10 didn't say anything 
doesn't mean they oppose. Remember, 19 said it is time to do 
something about 2.5.
    Mr. Sununu. How many voted for the EPA standard?
    Ms. Browner. They were never asked to vote for a specific 
standard.
    Mr. Sununu. They were never asked to vote for a specific 
annual standard?
    Ms. Browner. That is not the way the process worked. It is 
not a vote in the way the committee takes a vote.
    Mr. Sununu. We are here to find out what the process is, 
and that is important.
    Let me ask one final question, and that relates to what Mr. 
Kucinich raised. You will make the underlying data of the PM2.5 
studies available to this committee.
    Ms. Browner. I am more than--I think it would be helpful if 
we could step back for a moment and discuss the scientific 
process.
    Mr. Sununu. Because my time has expired, let me just ask 
one clear, specific question.
    I know Chairman Bliley of the Commerce Committee has 
requested the underlying data, there has also been a Freedom of 
Information Act filed for the underlying data, and I would just 
ask that you, if you could, personally provide us with the 
underlying data.
    Ms. Browner. All of the data we have will be made 
available. We have worked hard with the committees to make it 
available.
    Mr. Sununu. But you have----
    Ms. Browner. I am more than happy to explain the situation.
    Mr. Sununu. Do you have any other underlying data?
    Ms. Browner. There are on the order of 300,000 individual 
health diaries and medical records, some of which are at the 
American Cancer Society, some of which are at Harvard. These 
are individuals who volunteer to be part of scientific studies. 
This is very important to the scientific process. Information 
is kept about--including such things as their reproductive 
history, et cetera.
    I am trying to explain this. It is not simple.
    Mr. Sununu. I think that, absolutely, the rights of those 
individuals' privacy can and should be respected; but I also 
would hope that they will--are willing to--the finders are 
willing to provide the underlying data to you and to this 
committee.
    Ms. Browner. We do not have the personal health records 
either from the American Cancer Society or from Harvard. The 
American Cancer Society has a long-standing policy that a 
qualified scientist, with a legitimate, scientific research 
agenda, can access those individual health diaries and medical 
records.
    Harvard has indicated that they are willing, through an 
independent group, HEI, to have a similar process allowing a 
qualified scientist with a legitimate scientific question to 
access those private--for which there are confidentiality 
agreements, medical diaries and medical records.
    Mr. Sununu. Have all the underlying data then been provided 
to HEI?
    Ms. Browner. Harvard is in discussions with an independent 
group, HEI, to have HEI facilitate a qualified scientist with a 
legitimate scientific----
    Let me say something. The American Cancer Society has had 
this in writing, a protocol about how you do it. To the best of 
our knowledge, there has not been a request--and you can check 
with the American Cancer Society. We don't want to speak for 
them, absolutely.
    Obviously, there has not been a request from anyone in the 
last 6 or 7 months to access their individual health diaries 
and medical records. It is there--you can go, I think it is to 
Atlanta if you are a scientist; and you can get this 
information.
    Obviously, I think we all agree it's important people be 
willing to participate in scientific studies; and 
confidentiality, when it relates to people's health records is 
important; but there is a process; and it is one that is 
sanctioned by the scientific community at large.
    Mr. McIntosh. I appreciate the gentleman's comment.
    Mr. Sununu. Thank you very much, and I appreciate the 
minority for allowing me liberty with the time.
    Mr. McIntosh. I appreciate that.
    I will say that we will come back to this. Because it is my 
understanding that the chairman--the then chairman of the Clean 
Air Scientific Advisory Committee was denied access to that 
underlying data; and as a scientist, I think there are a series 
of problems.
    Ms. Browner. Mr. Chairman, if I might respond to that 
statement.
    Mr. McIntosh. Certainly. Is that inaccurate?
    Ms. Browner. If Ms. Nichols might explain precisely, 
because I think it is important.
    Mr. McIntosh. Do you want me to come back to it?
    Mr. Sanders. No, continue. Into the mic, please.
    Ms. Nichols. There was a letter sent by the Chair of the 
committee and another member of the committee to Harvard, 
specifically asking them to make their data more widely 
available. These are the diaries, again, that the Administrator 
was speaking about. And there was correspondence back on that.
    A process was used at that point to have some independent 
review of the Harvard data. Based on that, the Clean Air 
Scientific Advisory Committee voted to use the study in their 
final report. That is, they didn't have any further discussion 
on that issue. They apparently were satisfied that their 
requests had been----
    Mr. McIntosh. But the chairman was denied access to that 
underlying data.
    Ms. Nichols. No, there is no record we have that he was 
denied access to that.
    Mr. McIntosh. We will come back to this. Because I do have 
an example of a staff member in Congress being denied access to 
it, and I understand that these were paid with taxpayer funds 
in part.
    Ms. Browner. Well, I am more than happy to respond to that, 
Mr. Chairman. That is fine. We can wait.
    Mr. Sanders. Go ahead. I think it is important.
    Mr. McIntosh. Specifically, Ms. Browner, you were in front 
of the Appropriations Subcommittee on this and told them it was 
to be available, gave them a number; and they had a staff 
member call; and they were denied access to it.
    Ms. Browner. There is a process for a qualified scientist--
these are, again, individual personal health records with 
confidentiality agreements on each and every one of them.
    You know, the question--if I might step back very quickly. 
First of all, EPA did not fund Harvard to collect the 
individual health records. We did not pay for those individual 
health records to be collected. I think that is one point that 
I think needs to be clarified.
    Mr. McIntosh. They did have a process for studying that.
    Ms. Browner. There were studies and analyses which were 
funded in part by EPA. Every single study in the bibliography 
which we present to you--every single study that shapes the 
proposal did not make a final decision--that shapes the 
proposal in terms of public health protections we have made to 
the American people, was peer reviewed, including the very 
study you, I think, raised questions about. It was peer 
reviewed.
    And Dr. Wolf--I think Dr. Lipman--I'm sorry, not Dr. 
Lipman, Dr. Wolf, as the chairman of the panel, agreed at the 
end of the day that that Harvard study should be properly 
included in the 250 studies that then shape their advice to 
EPA. So this is a subject that has been, I think, considered, 
many, many times; and we are more than happy----
    Mr. McIntosh. Let's move on.
    But, since that time, EPA itself has had to make a 
correction itself on some of its public statements about the 
effects--the magnitude of the effects of the problem; and there 
are serious questions that have been raised about that study, 
in particular, because it is being used to base certain 
assertions.
    And I guess I think I agree--and strongly agree--with 
Representative Kucinich. We need to get to the bottom of it. 
And I think in this case it means getting to some form of the 
underlying data. If you strip out the personal information that 
are not related to the conclusions being drawn, there needs to 
be some way in which the agency obtains it and, frankly, at 
this point submits it to Congress.
    Ms. Browner. We have encouraged Harvard in numerous 
letters--I think you are aware of the letters----
    Mr. McIntosh. Are you willing to establish a policy that 
you won't give them further grants until they comply?
    Ms. Browner. I think that would be up to Congress. Our 
grants are competitively awarded. If you want to tell us not to 
provide----
    Mr. McIntosh. You have got a lot of discretion----
    Ms. Browner. No, I don't. They are competitive. In fact, I 
don't even know who gets a grant from EPA. If you want to 
direct us to never give Harvard another scientific research 
grant, that is your choice.
    Mr. McIntosh. And you would agree with us in that?
    Ms. Browner. It would be your choice, Mr. Chairman.
    Mr. McIntosh. But I don't hear an objection.
    Ms. Browner. I think Harvard does some of the most 
impressive scientific work in the United States, and we have, I 
think, followed appropriate scientific process, and we will 
continue to do so.
    Mr. McIntosh. Let me continue. I believe it is 
Representative Kanjorski who is next for 5 minutes.
    Mr. Kanjorski. Thank you very much, Mr. Chairman.
    Ms. Browner, let me get some understanding of what is 
happening here. As I understand, the scientific data has 
indicated that the particulates in the air in some areas of the 
country must be reduced in order to provide for a measure of 
health for children and average Americans.
    Now when that is arrived at, you talk about the fact that 
then it is the responsibility of the individual States to come 
up with a program, and you provide guidelines to those States. 
Do you also have the authority for final approval of what those 
States will do? Or are they able to go out, once they show they 
will comport with reductions, they can do anything they will?
    Ms. Browner. Our review focuses on one issue, and one issue 
only, which is, does their plan achieve the reductions 
necessary to meet the public health?
    Mr. Kanjorski. When you talk about the public health, is it 
within their jurisdiction or the public health throughout the 
United States?
    Ms. Browner. Obviously--and I appreciate your concern on 
the transport issues and what may be happening to the people in 
your State and their health because of pollution in another 
State--we have the ability--we do have the ability in reviewing 
an individual State plan to take into account what its effects 
may be on another State. That is a simplification; it is a more 
complicated process. We have been involved in a process for a 
number of years now with the States on this matter.
    Mr. Kanjorski. If I were the Governor of Indiana or the 
Governor of Ohio, I would just have all my smokestacks enlarged 
200 feet, so the particulates would go higher into the 
atmosphere and carry further over into Pennsylvania, and I 
would meet all my conditions, so I can continue encouraging 
industry to come into my State, but the particulates in the 
State they land in would be materially negatively impacted.
    Ms. Browner. If we can demonstrate that one State is being 
adversely affected, the health of the people in the State is 
being adversely affected by another State, the Clean Air Act 
does provide some authorities to us to address that situation. 
I want to be honest with you; it is a long, complicated 
process.
    Mr. Kanjorski. And I understand that. And what I am worried 
about, and I am wondering whether or not we should be attacking 
this problem rather than State by State, whether we should look 
at a regional attack on this problem or even a national attack 
on this problem.
    The political ramifications of the chief executive of the 
State finding the cheapest, most effective way to solve the 
problem for his State's economy, as opposed to taking into 
consideration the national interest, or the national good, is 
overwhelming. And not to put down the chairman's State of 
Indiana----
    Mr. McIntosh. I was going to say, I don't think the EPA 
would let them get away with simply extending the smokestack.
    Mr. Kanjorski. I mean, clearly we are aware in western 
Pennsylvania.
    Interesting anomaly: You received a letter from one of my 
colleagues, Mr. Klink, that an auto industry was to locate in 
western Pennsylvania because of the nonattainment status that 
potentially that area would have. They decided to locate in 
another State, the State of Ohio, which is interesting, since 
the State of Ohio is particular for coming into Pennsylvania 
and making us not attain the State, they are getting our 
industry, and it seems to me grossly unfair for that to happen.
    It is obviously not an easy decision, and, obviously, air 
isn't Pennsylvania air or Ohio air, it is American air, or the 
world, if we will. And I am just wondering whether or not, 
looking at the States and looking at the standards the way we 
are, we shouldn't go back and really look at the act and say, 
where does this particulate matter really occur in its worst 
conditions, and how could they be best cleaned up as opposed to 
spreading sometimes the cost into areas such as Pennsylvania?
    There is very little we can do. Whatever we do expense-
wise, we don't end up cleaning or making our area more an 
attainment area because we are already a nonattainment area at 
our borders.
    Ms. Browner. Certainly the transport issue is one of the 
most difficult that we face as a country, and I think that all 
of you, whether you be Democrats or Republicans, your Governors 
be Democrats or Republicans, should be quite pleased that we 
have every State east of the Mississippi, for all intents and 
purposes, engaged in a very complicated set of modeling and 
discussion about how to deal with the transport issue.
    There is recognition on the part of the vast majority of 
States that it has to be viewed from a regional perspective, 
that you cannot simply hope to deal with it State by State.
    If we conclude the current process by strengthening the 
public health protections for soot and ozone, it will allow for 
some more aggressive perhaps actions on transport; it will give 
you some additional mechanisms for addressing transport.
    The other thing I think is very important to understand 
about transport, and I think you have all but said this, but 
let me reiterate because it is so important: The transport 
problem is not a problem of small business, it is by and large 
a problem of large power plants and large industry, and it is 
by and large the lion's share of the problem when we look at 
current levels of pollution and we look at what areas might 
not, should we decide to tighten the public health standards, 
be able to immediately meet a tougher public health standard.
    Mr. Kanjorski. Mr. Chairman, I don't know if my time has 
expired. I wanted to ask a question.
    Mr. McIntosh. We have been very lenient with the clock. Why 
don't you go ahead.
    Mr. Kanjorski. Ms. Browner, you mentioned all the standards 
are set out for the public health, and I am not sure whether 
you are defining public health as having a very limited way, 
physical health. Sometimes the well-being, the economic well-
being, that people determine what their real health is, people 
who can't get jobs or can't have a quality of life or quality 
of job as a result of the limitations that may occur here, I 
think there is, in fact, an impact on public health.
    What I would urge is that if we could find ways, if there 
need to be adjustments in the law or even, above and beyond 
that, that public policy in other areas of the Federal 
Government be adjusted to take into consideration the negative 
impacts of the environmental standards that may be imposed, 
this could be very important, and that is to say that as clean 
jobs locate in other areas of the United States, maybe a tax 
process be put into place to allow more competitiveness for 
those clean jobs to be in impacted areas such as the 
northeastern United States, so at least we can find an even 
playing field for quality and quantity of jobs in these areas.
    Ms. Browner. Certainly.
    Mr. McIntosh. Thank you very much, Mr. Kanjorski.
    Let me now turn to Mr. Barr for 5 minutes.
    Mr. Barr. Thank you, Mr. Chairman.
    Mr. Chairman, this has indeed, contrary to my expectations, 
been a very enlightening hearing. We discovered some new legal 
authorities to add to those we have heard recently from others 
in this administration. We now know that each agency decides 
for itself whether or not it has to follow a Federal law. That 
was in response to a question that the chairman asked.
    We also now know that even though an institution conducts a 
study funded by the taxpayers of this country, which forms the 
basis for eventual rules and regulations to be implemented that 
will cost those same taxpayers many billions of dollars, that 
the taxpayers have no right and that the Government, or at 
least this administration, will not fight for their right to 
see that evidence and review that data. That certainly is 
disappointing; enlightening, but certainly disappointing.
    Some things that have not yet been said, Mr. Chairman, that 
I think are important for the record also: That is, some of 
this material is contained in an article written by our 
distinguished colleague, Representative Tom Bliley, in a 
special section on environment printed in the Monday, April 
21st edition of Roll Call, and that it details the very serious 
problems because of the cost, for example, and the way these 
rules and standards are being implemented--attempted to be 
implemented, by EPA are wrong.
    Mr. Chairman, you are not alone, as I suspect you know, in 
your review of this procedure as being entirely inappropriate. 
As a matter of fact, OIRA, the Federal Department of 
Transportation, the Small Business Administration, the 
President's Council of Economic Advisors, the Department of 
Agriculture, the Office of Science and Technology Policy, 
unlike the administrator before us today, are willing to admit 
and understand the reality of the situation, and that is, what 
the EPA is proposing to do will have very real consequences and 
very expensive consequences, and therefore they, I dare say, 
and I suspect agree with you, Mr. Chairman, that the process so 
far has not been one that is in the public interest and ought 
to be followed--ought not to be followed.
    Mr. Chairman, I have a copy of a court document here, 
before the Environmental Protection Agency by the Washington 
Legal Foundation dated, I believe, March 12 of this year, a 
petition by that foundation to disqualify Administrator Browner 
from further participation in the rulemaking proceeding, et 
cetera.
    Attached to that is a letter that I referred to earlier 
raising very serious concerns with the Administrator by 
Senators Glenn, Ford, Byrd, Rockefeller, and Robb.
    Ms. Browner, have you read this petition?
    Ms. Browner. If you are referring to--it is not a petition 
filed in a legal court, I think it is an administrative 
petition. If that is what you are referring to, I am familiar 
with it, yes.
    Mr. Barr. Have you read it?
    Ms. Browner. I have read portions of it, yes.
    Mr. Barr. OK. Then you should certainly be familiar with 
the quotes that I would presume are not inaccurate about how 
you trumpet that you will not be swayed by opposing views with 
regard to EPA's proposed provisions, et cetera. Are you 
familiar with their quotes that they contain in this petition?
    Ms. Browner. My review of the quotes has led me to conclude 
that they are taken out of context, to say the least.
    Mr. Barr. That is what I would expect you to say.
    Ms. Browner. I would be more than happy to provide the 
speeches from which they are taken.
    Mr. Barr. I have seen them.
    Ms. Browner, it appears to me from your public statements 
regarding these procedures that your mind is, in fact, closed 
to questions about the validity of the science.
    There are other quotes, and I also presume that these are 
accurate, although you may maintain that all of your quotes are 
taken out of context. I refer specifically to your comments 
before the Senate Environment and Public Works Committee in 
February, February 12 of this year, that indicate, I think very 
clearly, that you have indeed made up your mind, and if you 
have, I don't know why you are afraid to say so.
    On page 7 of the transcript, you are quoted as saying, ``in 
a most compelling way the science leads us to the new stronger 
standards;'' on page 9, that, quote: ``The best available 
evidence has determined that PM2.5 is damaging to human 
health;'' on page 9 also, quote: ``The best current peer-
reviewed fully debated scientific conclusions are that too many 
Americans are not being protected by the current standards for 
these pollutants;'' page 10, quote: ``Science now tells us that 
our air pollution standards are not adequate to protect our 
health.''
    It is very interesting to compare that to other statements 
by EPA and by others in this administration, that great strides 
have been made and that they are largely adequate.
    On page 28, quote: ``What the science now shows us is, far 
too many people under current levels of pollution are 
experiencing aggravated asthma;'' on page 30, quote: ``Our 
requirement is to make sure that if keeping any air quality 
standards the same is adequately protecting the public's 
health, what we found in most instances is, yes, in two 
instances, PM2.5, and ozone, we found no.''
    I think that looking at all of these and the others that 
are contained in the petition indicate that your mind is made 
up and that these procedures that purportedly are going on 
really have little meaning in light of what EPA has already 
determined it wants to do. But I certainly appreciate hearing 
from you, to have your thoughts.
    Ms. Browner. No. 1, my mind is not made up. I take the 
public comment very seriously. I would suggest to you as 
evidence of that the fact that, based on public comment, we 
have already made adjustments and analysis. We take it 
absolutely positively seriously, as I have done in every single 
effort I have engaged in, in terms of public health and 
environmental protections over the last 4 years.
    We have concluded a comment period, and we are vigorously 
reviewing and understanding all of the comments we have 
received. There is no final decision at this time. That will 
not happen until later in the year. I do believe----
    Mr. Barr. By when?
    Ms. Browner. We have indicated in a court that we will make 
a final decision in the case of fine particles no later than 
July 19th, which is a Saturday, it has to be published, so that 
backs it up to July 4th.
    We have similarly indicated to the public, not in a court 
of law, directly--well, we did actually do it directly too--
that we would conclude our review of ozone in the mid part of 
this year, and that is what we have committed ourselves to 
doing.
    A second point--so, No. 1, there is no final decision. That 
will be forthcoming, and it will be in keeping with the public 
comment process.
    Mr. Barr. Maybe you could then just enlighten us: When you 
said you would not be swayed, you will not be swayed by 
anything?
    Ms. Browner. I was, in that particular instance, referring 
to protecting our children. I believe that part of my job as 
the head of the country's environmental agency is to protect 
the most vulnerable among us, not the least of which are our 
children.
    I might add, Congressman Barr, I do think--and maybe 
perhaps here we have a disagreement, but I do believe that part 
of my job as head of the EPA is to speak out to the American 
people.
    Mr. Barr. Is it also to follow the laws of this land?
    Ms. Browner. I have abided, absolutely, positively, by the 
laws of this land.
    Mr. Barr. According to your lawyers.
    Mr. McIntosh. The time of the gentleman has expired. I can 
yield you some more, but I want to give the Administrator a 
chance to make a response.
    Ms. Browner. The quote specifically says when it comes to 
protecting our children, I do believe that----
    Mr. Barr. That is in your quote, but that is only the very 
first part of it, isn't it?
    Ms. Browner. I will read it to you.
    Mr. Sanders. I would like for her to read it.
    Ms. Browner. ``When it comes to protecting our children, I 
will not be swayed.'' That is what I said, and I stand by that 
statement. My job as the head of country's environmental agency 
is to protect----
    Mr. Barr. Read the whole quote.
    Ms. Browner. Mr. Barr, can I please have my moment?
    Mr. Barr. Read the whole quote.
    Ms. Browner. I will read the whole speech.
    Mr. Barr. No; read the whole quote, because twice you 
repeat, you trumpet, that you will not be swayed. Read the 
whole quote there.
    Ms. Browner. ``If the science shows me''--excuse me--``if 
the science shows that we have to do more to ensure that our 
kids are safe from pollution, then that is precisely what we 
will do.'' That is what the law tells me to do, and I am 
abiding by the law.
    Mr. Sanders. Does the gentleman from Georgia have a problem 
with that statement?
    Mr. Barr. I want her to read the whole quote.
    Would you like me to read the rest of it?
    Ms. Browner. ``And if someone wants to accuse me of doing 
too much and acting too forcefully to protect the health and 
future of our children, then so be it, I will not be swayed,'' 
and I stand by that statement. It is not a violation of any 
law.
    Mr. Barr. I am sure you do.
    Ms. Browner. If I may respond to the other allegations made 
against me?
    Mr. McIntosh. Ms. Browner, if I may ask one question, I 
think we will clear this up. You are telling us today there are 
more options than that which has been proposed as the preferred 
option which would allow you to protect children's health?
    Ms. Browner. As is always the case in a public notice and 
comment, we solicit opinions on a variety of points of view. We 
do, as is frequently the case, tell the American people, in an 
effort to be honest, where our current judgment finds us. That 
is all we have done here. It does not in any way say we have 
made a final decision.
    But, Mr. Chairman----
    Mr. McIntosh. Let me make sure, because I think we can 
clear this up in a way that will be satisfactory to you. You 
are telling us today that your mind is open, that there are 
more than just the alternative that has been proposed as the 
preferred alternative as possible ways to protect the health of 
children, as regards to ambient air quality standards.
    Ms. Browner. I am telling you two things. One, I have not 
made a final decision. I think the notice and comment portion 
of any rulemaking is absolutely essential, and I will 
thoroughly review and understand that before I make a final 
decision.
    In making a final decision, I believe the Clean Air Act 
public health provisions do require me to take into account the 
health of our children. I do believe that.
    Mr. McIntosh. You have an open mind as to possible ways in 
which that can be done.
    Ms. Browner. I will, at the end of the day, set a public 
health standard, as the Clean Air Act directs me to do, based 
on protecting all Americans, most particularly our children. I 
do not today say to you with absolute certainty what that will 
be.
    Mr. McIntosh. But I think it is pretty important, because 
Representative Barr has raised a legitimate question on the 
integrity of the process, and I am troubled, if you can't give 
me a yes or no answer, do you have an open mind that there are 
more than one alternative to achieving that result?
    Ms. Browner. I haven't made a final decision as to what the 
national ambient air quality standard should be for ozone or 
fine particles.
    Mr. McIntosh. But you do or you don't have an open mind?
    Ms. Browner. I haven't made a final decision. That decision 
ultimately will--I want to be honest with you; that decision, 
in my opinion, the law directs me to make it based on 
protecting the public's health with a margin of safety, and 
that is what I will do. This provision in the law is about the 
public's health.
    It is true, as is true in almost any rulemaking, that when 
we propose to the American people where we would set a 
standard, we display what our current thinking is. It is a 
question of honesty on our part. We displayed it.
    In the case of ozone, we said our current thinking leads us 
to point a way, but you tell us, should it be stricter? Should 
it be 0.07? Should it be 0.09? Should it be 0.12? All of that 
is displayed, and comment is solicited on all of that.
    Mr. McIntosh. I think that is very important. I think you 
are absolutely right, you have to signal to the public which 
direction you want to go to, what the preferred option is for 
the Agency, based on your understanding of the data and 
information available, and solicit comments. But also important 
to that is an open mind that there may be multiple choices and 
alternatives to reach the goal that is specified in the Clean 
Air Act.
    Ms. Browner. We will go where the science takes us.
    Mr. Tierney. Mr. Chairman, it is my turn to question.
    Mr. McIntosh. Mr. Tierney, go ahead.
    Mr. Tierney. I suspect what it may be is, with an open 
mind, the Administrator may decide that there is or is not only 
one or that there are two or there are three or whatever, and I 
think that is the fair question to put here.
    Ms. Browner. I don't prejudge anything at this point. I 
take public comment, and I review it thoroughly.
    Mr. Tierney. I appreciate that, and the air is clear enough 
on this side of the room, we heard distinctly what you had to 
say and thank you for it.
    Let me ask you something that may be basic, but I don't 
pretend to know all the science involved in this. Can you tell 
me a little bit about the PM standards and what it is we are 
concerned about and how it gets into the body systems or how it 
may be destructive and at what levels it has different impacts 
on us?
    Ms. Browner. There are all kinds of particles in the air of 
varying sizes. Today, our effort to reduce particles in the air 
has focused on something called PM10, that 10 is a measurement, 
it indicates a coarse-sized particle.
    What the science now shows is that, in fact, the smaller 
particles, the finer particles, 2.5, have very real human 
health effects. And I will just be very simple with you; it is 
a little graphic, but I think it is the best way to understand 
this.
    In the case of large particles, your body may be able to 
cough them out, you may be able to blow them out and get rid of 
them. In the case of the little tiny things, these are tiny, 
they go right into your lungs, and they embed in your lungs, 
and what numerous studies have shown is, when those fine 
particles, those little tiny things--you can't see them--reach 
a certain level in the air--there is a certain amount of them 
in the air--people experience premature death and other 
respiratory illnesses, and that is what, for example, the 
American Cancer Society's health records are in part about.
    Mr. Tierney. Do these have a different effect on children 
than adults, a child is liable to breathe in more or less?
    Ms. Browner. Children are obviously always affected 
differently by environmental--what is the word I want? Their 
bodies are different. They are growing, their lungs are still 
developing, they breathe more air per pound of body weight than 
an adult, they drink more water per body weight, et cetera, so 
obviously we do have to--and I think appropriately--consider 
how something affects our children and not just how it might 
affect a man weighing 150, 160 pounds.
    Mr. Tierney. Has the CASAC--the Clean Air Scientific 
Advisory Committee--given to you its closure letters?
    Ms. Browner. Yes, we have two closure letters, one on ozone 
and one on fine particles. I think we have made those available 
to committee. We would be more than happy to make them 
available again.
    Mr. Tierney. When this group of 21 individuals was selected 
to be a part of this advisory committee, were their names made 
public?
    Ms. Browner. Oh, yes, and they have conducted many public 
hearings which were noticed in the Federal Register and people 
could participate in.
    Mr. Tierney. To your knowledge, was there ever any 
objection to any one of these individuals serving in the 
capacity----
    Ms. Browner. No.
    Mr. Tierney. Nobody questioned their credentials or 
anything?
    Ms. Browner. Not to my knowledge, no.
    Mr. Tierney. I yield back my time. I have no questions.
    Thank you, Administrator.
    Mr. McIntosh. Thank you, Mr. Tierney. That is a nice break 
from precedence.
    Let's turn now to the concluding phase of our questions for 
this panel, which we had agreed to earlier would be 15 minutes 
of questions on each side, controlled by me as the chairman and 
Mr. Sanders as the ranking minority member.
    Let me first yield 4 minutes to Mr. Snowbarger. He 
indicated to me he had some additional followup questions on 
the Regulatory Flexibility Act.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    And, very frankly, I think these are short answers, because 
I am really just trying to make sure that I understand what 
your position is on the legal position of EPA as it relates to 
SBREFA. The first question: Do you consider the EPA is subject 
to SBREFA?
    Ms. Browner. Absolutely.
    Mr. Snowbarger. And you would agree that because SBREFA 
provides for it, this rule will be subject to judicial review 
under SBREFA?
    Ms. Browner. The certification, yes, would be subject to 
judicial review; yes, we would agree.
    Mr. Snowbarger. You don't agree the PM standard would be 
subject to judicial review?
    Ms. Browner. Yes, I'm sorry, we do.
    Mr. Snowbarger. I thought you were qualifying your answer.
    Ms. Browner. I think we may have some confusion. Can you 
restate the question? I want to make sure I answer the question 
I thought you asked.
    Mr. Snowbarger. Well, both in terms of the certification 
and in terms of the PM standard--well, and the ozone standard 
as well, that those rules would be subject to judicial review 
under SBREFA.
    Ms. Browner. Under the Clean Air Act, both ozone and fine 
particles are subject to judicial review; we absolutely agree.
    Mr. Snowbarger. But you don't think small business has a 
particular special right that has been granted to it under 
SBREFA that they could exercise here?
    Ms. Browner. Our certification is reviewable under SBREFA, 
we would agree.
    Mr. Snowbarger. But not the standard.
    Ms. Browner. The standard--you get the judicial review. The 
standard is reviewable under the Clean Air Act. SBREFA doesn't 
require us to clean air standards, so what is reviewable is the 
certification and whether or not that was appropriately made.
    Mr. Snowbarger. And whether or not you followed the 
appropriate procedures.
    Ms. Browner. It is all judicially reviewable.
    Mr. Snowbarger. My understanding is you have had some 
informal small business groups that have reviewed this process. 
Would you agree, however, that those informal reviews do not 
meet the requirements under SBREFA?
    Ms. Browner. We have had conversations with both the Small 
Business Administration and with small businesses.
    Mr. Snowbarger. I understand. I think the question is 
fairly simple. I mean, you have indicated you didn't think 
SBREFA applied to this, and what you were doing with the small 
business groups was doing something informal and not anything 
you were required to do. Therefore, they must not have been in 
compliance with SBREFA, is that correct?
    Ms. Browner. We believe we have gone beyond the legal 
requirements of SBREFA in reaching out and working with the 
Small Business Administration and the small business community.
    Mr. Snowbarger. These do not constitute the small business 
panels that are required by SBREFA?
    Ms. Browner. We don't agree they are required, but we are 
working with small business.
    Mr. Snowbarger. SBREFA requires small business panels if it 
applies. You don't think it applies, fine. There is no argument 
you can make if a court says you should have done it, that you 
can go back and say we did it? These do not comply with that 
requirement, SBREFA?
    Ms. Browner. Obviously, you know, we have spent a good deal 
of time reviewing all of the requirements to ensure this is a 
fair process, not just within the letter of the law but within 
the intent of the law; and we are certainly working with small 
businesses, with the Small Business Administration, in terms of 
how--both the process in terms of setting or proposing a 
standard and making a final decision in terms of setting the 
standard and then, obviously, in terms of implementation.
    I might just add, you know, we would be more than happy to 
provide to the committee where we are using under SBREFA the 
panel procedure in terms of bringing together I guess OMB, EPA 
and SBA to discuss specific proposals. We would be more than 
happy to provide that.
    Mr. Snowbarger. I understand that. But the panels that you 
brought together on April 18 and March 18 are not panels under 
SBREFA?
    Ms. Browner. We did not suggest that they were.
    Mr. Snowbarger. Now, in your certification, this is what I 
understand the certification to be, you have certified that 
there will be no significant additional impact on small 
business entities as a result of your new proposed standards?
    Ms. Browner. We have certified----
    Mr. Snowbarger. That there would be no significant 
additional impact on small business entities----
    Ms. Browner. The difference we are having here is our 
understanding of the statute is it provides for a certification 
of no significant economic impact on a substantial number----
    Mr. Snowbarger. Fine.
    Ms. Browner [continuing]. Of small entities.
    Mr. Snowbarger. OK. So you are certifying that there will 
be no significant economic impact on a substantial number of 
small business entities as a result of the new proposed 
standards?
    Ms. Browner. Subject to the requirements of the proposal. 
We made the certification at the time of proposal. That is what 
the law, SBREFA, allows for.
    Mr. Snowbarger. I understand. I am trying to get a comfort 
level that I can go home and tell small business they have now 
been guaranteed there is no significant economic impact on them 
based on your adoption of these standards.
    Ms. Browner. Changing the public health standards, if that 
is, in fact, where this process concludes, does not in and of 
itself, come mid-July or any time thereafter, require a small 
business or a large industry to do anything of a particular 
sort. States, led by their Governor----
    Mr. Snowbarger. There will be no significant economic 
impact.
    Let me followup with one question, if I might, Mr. 
Chairman, and ask for 30 seconds.
    Mr. McIntosh. Sure, 30 seconds.
    Mr. Snowbarger. You have filed for an extension of time, 
60-day extension of time, to comply with the court's order, as 
I understand it; and in that you have indicated, given the 
flexibility--given the complexity--I have got flexibility on my 
mind--given the complexity of the scientific and technical 
issues and the importance of the public health policy concerns 
at stake, any less time than the 60-day extension for public 
comment would deprive the public of an opportunity to fully 
address all of the issues involved.
    Now, I guess my question is, is there a compelling reason 
why we cannot go back and get this right and make sure that we 
have complied and not raise that as an issue and potentially 
jeopardize the implementation of the standard if you think it 
is the appropriate one?
    Ms. Browner. We are under a court order because prior 
administrations failed to follow the directions of the Clean 
Air Act to get a 5-year review done on fine particles. We did 
go back to the court and ask for some additional days. They 
declined to give us all of the days we asked for.
    But, again, this is not about 30 days or 60 days. This has 
been the better part of a decade and, most specifically, the 
last 4 years. What that judge's order has required us to do at 
EPA is ask people to work nights, weekends and holidays; and 
that is what we will do.
    The American people were promised something by the 
Congress. It was a 5-year review. It hasn't happened. We are 
going to deliver on that promise of the Clean Air Act. That is 
what we told the court, and that is what we tell the American 
people.
    Mr. McIntosh. Cindi, how much time do I have remaining?
    The Clerk. You have 9 minutes.
    Mr. McIntosh. I was going to go and give you the 15 
minutes.
    Mr. Sanders. It might be more interesting to go back and 
forth.
    Mr. McIntosh. Let me take a couple of minutes to followup, 
and then we will be able to do that so we can follow the line 
of questioning.
    Now, Ms. Browner, you just mentioned the court has imposed 
a deadline and that is the compelling reason to proceed without 
going back and redoing a regulatory flexibility----
    Ms. Browner. I didn't say that. I didn't say the court's 
timeframe in any way has to do with the RFA. I didn't say that. 
I said, there is a court order, that we did ask for an 
extension of 60 days. They granted 30 days. I explained what 
that means to us. I didn't say anything about the RFA. I didn't 
say that.
    Mr. McIntosh. His question was, is there a compelling 
reason not to do regulatory flexibility----
    Ms. Browner. Maybe we could ask the court recorder to read 
it back. It was not about the RFA. If it was, I didn't 
understand that; and I am more than happy to reanswer it.
    Mr. McIntosh. Why don't we do that? We will treat it as a 
new question.
    Do you have a compelling reason not to do a Regulatory 
Flexibility Act analysis?
    Ms. Browner. We are doing a Regulatory Impact Analysis. We 
do not believe that we are required to do a Regulatory 
Flexibility Act analysis because these are public health 
standards out of which no specific actions are required by any 
small entity per se. Moreover, it is the States who will decide 
which industry, which business, reduces their pollution.
    Mr. McIntosh. I am asking a different question. Is there a 
compelling reason not to do it out of your own discretion? Let 
me give you a very compelling reason why you should consider 
doing it, and that is the reason I am holding this hearing 
today.
    I think we are going to do severe damage to our efforts to 
clean the air by creating this legal uncertainty. We have 
talked about, earlier, that SBA believes that the Agency is 
required to do the Regulatory Flexibility Act analysis. You 
told us earlier you don't believe you are required to do that. 
That automatically tells me there is legal uncertainty and 
there will be a lawsuit that will delay this for a long time.
    I think that has serious consequences. Frankly, it means we 
are going to spend a lot of money for lawyers, rather than 
actually help the children that you in your speech very 
eloquently pointed out, we in Congress, and you in the Agency 
are trying to do. So my question is different. It is not 
whether you are compelled to. Is there any reason why, as a 
discretionary matter, you won't do it?
    Ms. Browner. How would I do it? Until a Governor decides 
within their State which industry should reduce their pollution 
of the public's air, how would I do that kind of analysis?
    I don't want to dictate to your Governor what he should do 
anymore than the Clean Air Act when it was passed by Congress 
told EPA to. I can't answer your question.
    Mr. McIntosh. Let me propose one avenue how to do that.
    Ms. Browner. That would be helpful.
    Mr. McIntosh. One of the reasons--and Mr. Sanders 
questioned my use of the word fraud, but one of the reasons I 
chose that strong language is, while you certified there are no 
impacts on small businesses in order to meet the requirement of 
the Small Business Regulatory Flexibility Act, at the same 
time, you submitted documents for the public record that did a 
Regulatory Impact Analysis; and I will quote from it on pages 
ES 11 and ES 12.
    Under the heading ``Cost and Economic Impact Analysis,'' 
there is a statement that is a conclusion based on the 
analysis, ``Therefore, these small establishments may 
experience potential significant impacts.''
    Now, you have gone through the effort on the Regulatory 
Impact Analysis. Why not apply that to regulatory flexibility 
analysis?
    Ms. Browner. What the Regulatory Flexibility Act was about 
since its inception in 1980, and what EPA has used the 
Regulatory Flexibility Act on numerous occasions to do is make 
adjustments so any one-size-fits-all approach of a regulation 
doesn't inadvertently or disproportionately affect small 
business. It is a great statute because it gives an agency the 
ability to say, you are right; if we set a regulatory 
requirement, it may have a disproportionate impact.
    Mr. McIntosh. I understand. So the mandate is to choose----
    Mr. Tierney. Can we hear the rest of the answer, please, 
Mr. Chairman?
    Mr. McIntosh. You said the mandate of the act----
    Mr. Tierney. Can we hear what she said? She is answering 
your question. We think it is informative. If you really want 
her to be informative, we would like to hear the end of it.
    Mr. McIntosh. If you want to grant me more time, I will 
grant more time to repeat what the act says.
    I know what the act says. I helped write the act, and I 
know what it was intended to do. What it was intended to do was 
require the Agency to deal with this analysis so it could 
indeed pick among several options which would have the least 
impact on small entities.
    Ms. Browner. But there are no options before us today in 
terms of what a Governor might choose.
    Mr. McIntosh. But there are options for different 
standards.
    Ms. Browner. No.
    Mr. McIntosh. You told us earlier you had not made a 
decision----
    Ms. Browner. There no options.
    Mr. McIntosh [continuing]. Among several options for 
different standards.
    Ms. Browner. For a public health standard. I will just 
use----
    Mr. McIntosh. A public health standard that in your own 
words you say, therefore, these small establishments may 
experience potentially significant impact on the preferred 
standard that EPA has given public notice on.
    Ms. Browner. Or any other standard. The point is----
    Mr. McIntosh. No, no, that is the problem. Without doing a 
Regulatory Impact Analysis----
    Ms. Browner. We did a Regulatory Impact Analysis.
    Mr. McIntosh. Without doing a regulatory flexibility 
analysis, we don't know whether the other standards would have 
less of an impact?
    Ms. Browner. Can I please have a moment?
    Mr. McIntosh. I mean, do we? Without doing it----
    Mr. Sanders. Mr. Chairman, with all due respect, if she is 
being asked a question, please let her respond?
    Mr. McIntosh. I would like to have an answer, yes.
    Ms. Browner. There are a variety of tools which are 
important to making an informed decision. The Regulatory 
Flexibility Act--as you pointed out, you are one of the authors 
of it--is extremely important because it allows an agency, once 
a technology perhaps is required to be used by certain 
industries, to make adjustments for the small businesses within 
that requirement. We use it and would be more than happy to 
give you a list of all the times we have used that law to allow 
us to move beyond a one-size-fits-all approach to air pollution 
and other types of pollution reductions.
    The Clean Air Act is very clear in saying that the States 
develop individual plans for reducing their pollution. I cannot 
tell you today what any individual State will choose, nor would 
it be appropriate for me to do that, to preordain for them what 
kind of choices they may ultimately make.
    However, in an effort to help inform discussion, which we 
think is important, and it should be thorough and lively, we do 
do something which is called a Regulatory Impact Analysis under 
an Executive order signed by a President you served and then 
amended by this President.
    Mr. McIntosh. Let me ask you to conclude. All of that has 
been established so far with the testimony. My time is limited. 
If folks want to give me some additional time, I will gladly 
let you go and explain all of those which the committee is well 
aware of.
    Mr. Sanders. It is your time. Do whatever you want.
    Mr. McIntosh. Let me focus on a couple of other questions 
which I think are important for the record.
    Mr. Sanders. I suggested before that I thought it might be 
more useful for us to go back and forth. I don't know how much 
time you have used.
    The Clerk. The chairman has 5 minutes left.
    Mr. Sanders. You have used 15, and I haven't used any.
    Mr. McIntosh. Let me proceed to let you use your time.
    Mr. Sanders. I will use 5 minutes and then go back to you.
    Mr. McIntosh. Certainly.
    Mr. Sanders. Let me begin by thanking Mr. Barr for quoting 
you, because, let me tell you very frankly, if you did not 
understand that your job is to stand up and protect the health 
of the children of this country, you should not be where you 
are right now. I applaud you for your statements.
    Mr. McIntosh a few moments ago talked about lawsuits. Well, 
nobody wants lawsuits. But it is no great secret I suspect we 
have a few of them in the room right here, that the major 
polluters of America will spend millions and millions of 
dollars trying to destroy environmental regulations to protect 
clean air. They will do everything they can, and that has been 
the track record for the last 15 or 20 years.
    So maybe if we don't want lawsuits and we don't want 
contentiousness, maybe some of the major polluters in this 
country might want to hold back on spending millions and 
millions of dollars in fighting every regulation that seems to 
be passed representing the health and welfare of the people of 
this country.
    I think, in the midst of this very interesting discussion, 
some of the most important points seem to be pushed aside. And 
the most important point to my mind is that what we have heard 
today, and I have not heard--I have not heard people disagree 
with this, is that people who know a great deal about this 
issue are suggesting that we can prevent the deaths prematurely 
of 15,000 Americans and that we can prevent suffering and 
illness of 250,000 children.
    Now, how much is that worth? How much is that worth? I 
would suggest that, in a civilized country, it would be 
inexcusable for our government not to move rapidly to end that 
terrible waste of life.
    What kind of country are we where we say, yes, we know that 
15,000 people are dying prematurely, that little children are 
becoming terribly sick, but we are not going to do anything 
about it? If that is what this Government was about, that would 
be a terrible shame; and I don't think that is what we are 
about.
    I wanted to tell Ms. Browner that despite what she heard 
today, the vast majority of the American people want you and 
the administration to stand up and protect the health of the 
American people. That is what they want. That is what every 
poll indicates. And while we know that some of the polluters 
are spending huge amounts of money trying to challenge 
virtually every environmental regulation we have, they are not 
operating on behalf of ordinary Americans, and that is not what 
the American people want.
    Ms. Browner, last week we heard from Dr. Munzer, who was a 
lung specialist and a former president of the American Lung 
Association. He testified that the negative health effects of 
emissions of ozone and fine particulates are well established. 
They both cause asthma attacks, and fine particulates also lead 
to a number of cardiopulmonary problems and even premature 
death.
    Would you care to comment on that?
    Ms. Browner. Study after study finds that the results of 
certain levels of air pollution are, in fact, premature death, 
aggravated asthma, large numbers of respiratory illnesses. 
Asthma now represents the single largest cause of childhood 
hospitalization in the United States. More children are 
admitted to the hospital because of asthma than for any other 
reason.
    While it may be that some would suggest a future where we 
keep our children inside on the 4th of July because the air 
pollution is too high, that is not what the Clean Air Act 
promised the American people, and that is not what we will do 
in accordance with the law.
    Mr. Sanders. Ms. Browner, we have heard a lot of discussion 
about costs, and that is an important issue. Nobody here wants 
to see businesses suffer in any way that is unnecessary.
    Last week we heard from Dr. Schlesinger, a biochemist from 
Duke University, who told us that the proposed standards will 
provide additional environmental benefits--the reduction of 
acid rain and the protection of plant and animal diversity.
    I would like to put into the record, when we talk about 
economic costs, I come from a very beautiful State. We have a 
strong tourist industry. We would invite all of the Members to 
come up during the fall to see the color of our leaves.
    When you talk about economic impact, some of us don't want 
to see our trees being destroyed by acid rain. That is an 
economic issue. That is an issue of environmental concern that 
we have. We don't want to see our timber industry and our maple 
sugar industry be impacted negatively by this pollution. We 
don't want to see the basic beauty of the State of Vermont or 
New England or the Northeast being impacted. That is an 
economic issue I would like to place into the record as well.
    But I would like, Ms. Browner, to also comment on Bruce 
Bertelsen, the executive director of the Manufacturers of 
Emissions Control Association, who testified that the estimated 
cost of reaching proposed clean air standards are typically 
greatly overstated because technological advances are not taken 
into account.
    Is that something you would like to briefly comment on?
    Ms. Browner. Yes, that is absolutely true. If you look at 
the 25-year history of the Clean Air Act, what you see is a 
wonderful story about American industry. They rise to the 
challenge each and every time.
    When we began the debate in this country about acid rain, 
some in industry projected costs of $1,000 per ton of emission 
reductions. EPA itself predicted costs of $600 per ton. Today, 
on the Chicago Board of Trade, you can buy a credit for less 
than $100.
    Industry rises to the occasion over and over again; and the 
costs of reducing pollution have been proven to be, through 
real-life experience, far less than anyone suspected or 
projected on the front end. And the benefits to the health of 
the American people far greater than anyone projected.
    The Clean Air Act does not allow me to make a cost-benefit 
decision. This is a public health decision. There are other 
sections of the law dealing with toxic chemicals in the air 
that are cost benefits. This is not.
    Mr. Sanders. The point you are making is throughout the 
process people have come up with grandiose estimates as to the 
cost; and, in fact, as a result of the changes in technology, 
the costs end up being a lot less.
    Ms. Browner. The wonderful news is technology advances, 
thanks to American industry.
    Mr. Sanders. Ms. Browner, last week, at our first hearing, 
we heard some discussions from some panelists who suggested 
that, as a result of these regulations, people in America would 
not be able to use their lawn mowers, people would be prevented 
from burning logs in their fireplace, people would be prevented 
from driving their cars if they were the only passenger.
    We also heard--coming from a dairy State, I thought it was 
pretty intriguing--that cows would be wearing diapers. We look 
forward to that.
    Would you want to comment about these rather frightening 
and onerous predictions?
    Ms. Browner. There is nothing in the proposal which we are 
reviewing public comment on in terms of the public health 
standards that will do any of that.
    As I have said before, the Clean Air Act I think is quite 
smart in giving individual Governors the authority to design 
individual State plans for pollution reduction.
    Mr. Sanders. So you don't think it is true the diaper 
industry is really going to be moving forward rapidly by 
producing diapers for cows? We shouldn't all invest in the 
diaper industry?
    Ms. Browner. We are not seeking support from the diaper 
industry.
    Mr. Sanders. I would ask the clerk how much time is left?
    The Clerk. Seven and a half minutes.
    Mr. Sanders. Dennis, do you want to go?
    Mr. Kucinich. Yes, please.
    Mr. McIntosh. That would be fine.
    Mr. Kucinich. Thank you very much. Would you explain to 
this committee what you do to work with small business and 
industry to come to compliance?
    Ms. Browner. We have a number of programs across the 
Agency, not just within our office, to work with small 
businesses.
    Most recently, we have created a small business compliance 
center where we say to small businesses, look, we understand 
these rules may be difficult, whether it be air, water, waste. 
If you voluntarily come in, you work with us to solve a 
problem. If there is not a pattern of behavior there, we will 
set aside the penalty; we will set aside the enforcement 
action.
    Our goal is to find how best to work with small businesses 
to achieve compliance of environmental requirements.
    Mr. Kucinich. So you are not trying to shut business down?
    Ms. Browner. No. We have had a number of very successful 
projects with small businesses.
    For example, we have been involved with small printers 
across the country to design a blueprint of how better to 
manage their facilities for environmental purposes. We have 
worked with metal finishers. There are any number of small 
business groups that we have been working with quite 
successfully to find how best they can facilitate, small 
business by small business, do their part to protect the 
environment.
    Mr. Kucinich. Which small businesses have the greatest 
difficulty coming to compliance as a category, can you state?
    Ms. Browner. It is hard to answer, because we have so many 
different laws that we work to implement with small business--
air, water, waste being the primary ones. The challenges will 
vary from small business to small business sector.
    Mr. Kucinich. Let's shift for a moment to large business.
    The Governor of Ohio, Governor Voinovich, testified before 
the committee last week. I really didn't get a chance to ask 
him a question. I felt like it was a buzzer shot, Mr. Chairman, 
near the end. You are familiar with those.
    Mr. McIntosh. We can probably send it to him to answer.
    Mr. Kucinich. The point he was making, though, I thought 
was interesting. And he has said repeatedly that Ohio, and 
specifically he mentioned Lorain, would not be an attractive 
place to continue automobile production because the EPA and 
your rules and regulations would discourage it. And he has said 
that you are directly to blame for the loss of jobs and the 
shutdown of manufacturing facilities and that, furthermore, the 
EPA will make industry defunct in manufacturing dependent 
areas.
    I think that is an accurate characterization of what he 
said. I am asking you, how do you respond to that?
    Because there are people in communities like mine who are 
worried about their jobs. When you have a high-ranking 
government official who makes those kinds of statements, they 
ask to be answered by someone in authority. So what is your 
answer?
    Ms. Browner. First of all, we would be more than happy to 
provide to you the facilities which we have worked to issue 
permits on, automobile manufacturing facilities in States 
across the country which we have worked to grant permits to so 
they can expand operation, develop new operations, whatever, in 
nonattainment areas. It has not only been in attainment areas.
    Second, what I would say most specifically is that your 
Governor will make the decisions for your State in terms of how 
best to reduce their air pollution. That is the beauty of the 
Clean Air Act as passed by Congress. It will be your Governor. 
It will not be the EPA.
    Mr. Kucinich. But he is saying your regulations--in 
particular, in the Cleveland area, we have the Ford casting 
plant. Ford is investing $80 million total over the next 5 
years to install equipment necessary to comply with the current 
standards. He is saying, look, what are you trying to do? Are 
you trying to shut this casting plant down with these new regs? 
He is charging that you are.
    Ms. Browner. No.
    Mr. Kucinich. What is the answer?
    Ms. Browner. As far as I know, that facility has a permit. 
They can operate.
    Mr. Kucinich. But what about the new regs here? Now not 
just the Cleveland area but all across the country people are 
worried about that. What do you say to them?
    Ms. Browner. That each Governor will have on the order of 5 
to 10 years to determine with the business and the individuals 
of his or her State how best to reduce pollution, and there is 
no requirement that your Governor or any other Governor single 
out any individual business or any individual business sector. 
There is flexibility in terms of what they can do.
    I will tell you this. I think this is important. If we were 
to conclude the process by adopting the standards we proposed 
for ozone--we have not done that, and we have not made a final 
decision, but let's say that were to happen--70 percent of the 
areas that would not immediately meet a tighter public health 
standard could do so through currently available technologies. 
No new technologies. Through currently available, on-the-book 
solutions.
    Some of those include efforts that we have been engaged in 
with individual States. Some of those, quite frankly, include 
efforts with industry.
    For example, the work we do with Detroit to develop an on-
board canister inside each car you buy next year, a little 
device you won't know is there, but every time you fill your 
car with gasoline there will be less pollution in the air 
because of that cooperative work between EPA and industry, less 
than $10 per car.
    And I can give you any number of examples 70 percent of the 
areas could meet, if that is where the process concludes, a 
tougher public health standard for ozone through currently 
available technology.
    Mr. Kucinich. Thank you, Mr. Chairman. I am just about 
complete, so I can yield to my colleague.
    I want to make this comment. I think what we need to 
establish in these hearings is that clean air and jobs are not 
mutually exclusive, that clean air and the progress of small 
business, which I think we all care about, is not mutually 
exclusive, that clean air and American manufacturing, there is 
no mutual exclusivity there. And if we can do that, I think we 
all can win in this process. We can find a way to encourage 
small business, protect our basic manufacturing industries, 
protect the health of our people and have decent quality air 
standards at the same time.
    I mean, that is the kind of challenge we have, which is a 
difficult challenge, to be sure. It is one that brings us to 
this table and gets us into very spirited debate. But that is 
what we are challenged to try to do and to try to--actually, we 
have to have it both ways I feel.
    Thank you very much, Mr. Chairman. Thank you.
    Mr. McIntosh. Thank you.
    Cindi, could you let us know how much time is on each side?
    The Clerk. The majority has 5 minutes; the minority has 
2\1/2\.
    Mr. McIntosh. OK. Let me switch gears slightly from the 
earlier line of questions and ask you, Ms. Browner----
    By the way, thank you. I know we have delayed past the 
expected time we were supposed to keep you, but I think it is 
important to get these out into the open.
    Ms. Browner. We appreciate it.
    Mr. McIntosh. Do you believe or is it the Agency's position 
that the regulatory impact analysis, not the regulatory 
flexibility analysis, meets the requirements of the Unfunded 
Mandates Reform Act?
    Ms. Browner. No, that is not our position. I am more than 
happy to speak to our understanding of the Unfunded Mandates 
Reform Act. We are in no way maintaining that the RIA would 
meet the requirements of the Unfunded Mandates Reform Act.
    Mr. McIntosh. If you could briefly, because I want to move 
on to a couple of other questions, explain why the Agency 
didn't do the cost-benefit analysis required by that act?
    Ms. Browner. The Unfunded Mandates Act conference report 
does not require the preparation of any estimate or analysis if 
the Agency is prohibited by law from considering the estimate 
or analysis in adopting the rule. This is not a cost-benefit 
section of the Clean Air Act. It is a public health section of 
the Clean Air Act. So we read the conference report to tell us 
that we are not required to do that estimate, because the Clean 
Air Act tells us don't take into account the costs.
    Now, just for the purposes of the Members' understanding, 
we did do that kind of analysis. I cannot use it in making the 
ultimate decision, but we did do it, because we thought it was 
important to informed discussion, and we did do it. But we are 
not maintaining that meets the requirements of the Unfunded 
Mandates Act. Our position is the Unfunded Mandates Act and the 
specific conference report would direct us not to.
    Mr. McIntosh. Which we disagree. I think unless it is 
explicitly stated don't do it, if it is silent and that has 
been interpreted not to compel it, I think that is a different 
matter.
    Ms. Browner. Well, the courts have routinely interpreted 
this section 109 of the Clean Air Act as saying the statute and 
its legislative history make clear that economic considerations 
play no part in the promulgation of standards. I mean, there is 
the lead industry, there is the American petroleum industry, 
there is----
    Mr. McIntosh. That is a different standard than what the 
conference report was going to, where it is explicitly 
forbidden.
    Ms. Browner. By law.
    Mr. McIntosh. Let me yield a minute to Representative Barr.
    Mr. Barr. I would ask to have the article to which I 
referred earlier by the distinguished chairman of the Commerce 
Committee, Tom Bliley, appearing on page 3 of the April 21 
edition of Roll Call inserted into the record.
    Mr. McIntosh. Seeing no objection, it will be done.
    [The article referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T3516.298
    
    Mr. Barr. Ms. Browner, do you have a copy of the Washington 
Legal Foundation petition to which I referred earlier?
    Ms. Browner. Yes.
    Mr. Barr. I would like you to turn to page 7, please; and I 
would like to state at the beginning that your quote at the 
middle of the page there I think, to which I have referred 
earlier and to which I would ask you to give the full context 
of, is included in the Washington Legal Foundation petition.
    They state on page 7, from the beginning there, as you can 
see the first full sentence on that page, ``For example, in her 
keynote address to the Children's Environmental Health Network 
Research Conference held in Washington, DC, on February 21, 
1997, Administrator Browner specifically discussed the merits 
of the proposals for which EPA is seeking comment.'' That is 
the context I believe in which the quote that we referred to 
earlier was given.
    ``She acknowledged that the quality of our air has greatly 
improved over the years but blasted industry for opposing the 
current proposals.'' I agree the term ``blasted'' may be 
editorializing somewhat. But, aside from that, it goes on to 
state that ``all but suggesting that industry is indifferent to 
asthmatic children.''
    Ms. Browner. Excuse me, Congressman Barr, I am not sure 
where you are reading from. I lost you in the document.
    Mr. Barr. Let me give you the copy then. I thought you said 
you had a copy?
    Ms. Browner. I think I have it. What page?
    Mr. Barr. Page 7.
    Ms. Browner. You are reading from a news report of BNA?
    Mr. Barr. No, I am reading from the petition of the 
Washington Legal Foundation.
    Ms. Browner. And they are quoting a BNA news report.
    Mr. Barr. I think you know exactly what I am quoting from. 
I am quoting from page 7. I stated page 7 earlier.
    Mr. Sanders. I don't know what you are quoting from, and I 
would like to know.
    Mr. Barr. You don't have to.
    Mr. Sanders. I sure do. I want to be informed. What are you 
quoting from?
    Mr. Barr. I am tired of her dilatory tactics. I stated very 
clearly it was page 7, Mr. Chairman; and she acknowledged she 
had the petition. That is what I am reading from. Since there 
is some question about it, I would move that the petition be 
inserted in the record.
    Mr. McIntosh. Certainly.
    [The petition referred to follows:]

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    Mr. Barr. All I am asking, Ms. Browner--and I think you 
know what I am reading from--page 7, ``She states unequivocally 
that it was a fact that science tells us the standards 
(including the current PM and ozone standards) are not adequate 
and we have to move forward.'' She then concludes with that 
following quote that I quoted earlier.
    Ms. Browner. I think they referred to it as a following 
flourish.
    Mr. Barr. They referred to it as a following flourish.
    I am not trying to avoid that. What I am trying to do is I 
am stating that is editorializing as the other word is. I am 
not focusing on the editorializing, and you know I am not. What 
I am asking you is, is there anything in the quoted portions of 
your testimony that they quote on page 7 that is inaccurate?
    Ms. Browner. This is not testimony. They quote from a 
speech----
    Mr. Barr. Is there anything in the quoted portion of your 
speech, which is your keynote address to the--I already stated 
that. I am asking you, focus on this page, please. I am giving 
you the opportunity. You stated earlier it was out of context 
or something. Is there anything in your quoted language here 
that is inaccurate?
    Mr. Tierney. Mr. Chairman, then I recommend we put the 
speech in the record and get the matter over with.
    Mr. McIntosh. We will ask to provide the whole speech.
    Ms. Browner. I would like to make two points.
    I do not have the speech with me. As I am sure all of you 
can appreciate, there are times when you deliver a speech which 
has been written by your staff and perhaps by yourself where 
you say additional things. I in no way can remember giving a 
lot of speeches, whether or not perhaps something beyond what 
was written was said, or if something written in a speech was 
in fact not delivered.
    Now, we can ask the organization if they have a transcript. 
I think it was a speech before the National Children's Health 
Effects Foundation, and we will be more than happy to do that.
    Mr. McIntosh. If you could do that and provide the 
transcript.
    Ms. Browner. If they have it. I don't know that they have 
it.
    Mr. Barr. I have asked you a very simple question. You have 
the language before you. Is there anything quoted here from 
that speech that is inaccurate? If you don't know, say you 
don't know.
    Mr. McIntosh. Not based on the speech, but based on the 
piece of paper there.
    Mr. Barr. Just what is in here. That is all I am asking.
    Ms. Browner. I don't have the speech in front of me.
    Mr. Barr. You have the quotes here.
    Ms. Browner. You are asking me to remember from one of any 
number of speeches I give. I am more than happy to give you the 
speech. There is nothing here; but in an effort to be 
responsive to the questions I will be more than happy to give 
you the speech. And we will contact the organization to see if 
they made a copy of what I actually said.
    Mr. McIntosh. I guess, Bob, are you asking essentially do 
you stand by the way that quote--that they have reported you 
saying?
    Ms. Browner. This was a speech generally about the health 
of our children.
    Mr. Barr. As usual, the chairman very accurately 
synthesized what I asked. The witness understands what I asked 
also.
    Mr. McIntosh. Which is, do you stand by the statement that 
is quoted there as coming from you?
    Ms. Browner. I was giving a speech about the health of our 
children broadly. I stand by my statement as I made it here 
today that, when it comes to protecting our children, I will 
not be swayed.
    Mr. Barr. We know that. I am asking about the other 
language here. Does it accurately reflect your views? Are they 
misquoting you or taking you out of context?
    Ms. Browner. It is accurate that if the science shows that 
we have to do more to ensure that our kids are safe--if the 
science shows us that we must do more to ensure our children 
are safe from pollution, then that is what we will do.
    Mr. Barr. That is not what it says.
    Ms. Browner. That is what the quote says.
    Mr. Barr. It is not. It says, she states unequivocally it 
was a fact.
    Thank you, Mr. Chairman.
    Ms. Browner. With all due respect, Congressman Barr, that 
is a quote not from me. It is not even in here presented as a 
quote from me. It is presented as a quote from a reporter.
    Mr. Barr. Are they actually quoting you? Now we are getting 
somewhere.
    Ms. Browner. I will give you the speech. I do not nor do I 
think any of you pretend to understand why a reporter writes 
something in one way or another way.
    Mr. McIntosh. We are giving you an opportunity to comment 
on that.
    Ms. Browner. You want me to comment on BNA? I am more than 
happy to. Is that what I am being asked to do?
    Mr. McIntosh. Did they accurately reflect your views today, 
I guess would be the useful thing for us to know?
    Ms. Browner. It is true that the proposals we have made and 
take public comment on for which we have not reached a final 
decision are an example of how EPA is considering our 
children's health first. That is true.
    The second sentence says--it is true that the Clean Air Act 
doesn't allow me to simply conclude a 5-year review with a 
finding that industry says they have already done everything 
they can do. What it tells me to do is set a public health 
standard, and that is what I will do.
    Mr. Barr. Mr. Chairman, that is not responsive to my 
question, but I give up.
    Ms. Browner. I am more than happy to try again.
    Mr. Barr. No, you are not being responsive. That is fine.
    Ms. Browner. I will try again.
    Mr. McIntosh. We are running out of time.
    Bernie, I have one more question. Do I have another minute, 
Cindi?
    The Clerk. No sir.
    Mr. McIntosh. Do you want to go next?
    Mr. Sanders. Whatever. If you want to continue this, we 
will go.
    Mr. McIntosh. I have got one other question, and that is, 
if Harvard or HEI and the American Cancer Society do produce 
the underlying data on those studies, will EPA agree to make 
them available to this committee in a form that redacts 
personal information, such as names and information that is not 
related to the study----
    Ms. Browner. Mr. Chairman, as you well personally know, I 
have a long history of giving you everything I have that you 
ask for; and I will do it again.
    Mr. McIntosh. Thank you.
    Ms. Browner. Everything I have is yours. We have given you 
I think pages on this, and we are more than happy to give you 
any other pages that will be helpful. Absolutely.
    Mr. McIntosh. I will enlist your effort once again; and I 
know you have written letters, go back and ask them to provide 
that to the Agency; and we are going to take some independent 
steps to do that as well.
    Let me just, 30 seconds, conclude and say I agree with 
Bernie that we do have to help people who suffer from 
respiratory diseases and that all of us share the goal of clean 
air, and that one of the concerns that I have--and, frankly, 
this hearing has exacerbated that concern--is that we may end 
up not meeting that goal in a timely manner by not fully going 
through these procedural requirements that would then preclude 
certain lawsuits.
    I would urge the Agency to start immediately, particularly 
with the Regulatory Flexibility Act and the Unfunded Mandate 
Act, to do those analyses for the final rulemaking in a way 
that will comply with those standards set forth in those two 
statutes so that we can protect people who suffer from those 
respiratory diseases.
    Let me now turn it back to you, Bernie.
    Mr. Sanders. I hope that you will be quote-unquote liberal 
for a moment in terms of the amount of time that we have and 
give Mr. Tierney a chance.
    Mr. McIntosh. I will. Don't quote me on being liberal, 
though. I will get into trouble.
    Mr. Sanders. Just within a limited context.
    Mr. Kucinich. Social.
    Mr. Tierney. I am almost inclined to let you off the hook. 
You have endured a lot. Let me ask a couple of questions.
    I assume that you and all of the legal talent in your power 
have made a pretty good determination that you have done all of 
the procedural things you need to do; and you feel quite 
certain that, whatever the challenge may be, you have done all 
you can do as a very practical matter as well as a legal 
matter?
    Ms. Browner. I believe we have complied with not only the 
letter of the law but also the spirit of the law in each and 
every instance.
    Mr. Tierney. I have spent 20 years in small business and 
representing small businesses, and I think that this is--you 
know, to my knowledge, small business is always willing to step 
up and participate in a public-private sort of relationship. 
All of the people I represented basically fall into that 
category, whether it was my term on the Chamber of Commerce or 
my representation of them individually.
    It would seem to me at the next level, after you determine 
what is the standard, at the next level would be the time to 
call upon those people to work with you and with the local 
State Governors to determine just what is the way of 
implementing whatever standard it is that gets determined. Is 
that a fairly simple proposition?
    Ms. Browner. You got it. That is absolutely the way we 
would handle this.
    Mr. Tierney. The second part of that is you would engage 
small businesses at that point in time----
    Ms. Browner. Yes.
    Mr. Tierney [continuing]. As would, hopefully, the local 
governments do that and take all of their concerns and ideas 
into consideration?
    Ms. Browner. In fact, there is already a dialog about how 
we might find the most common-sense, cost-effective solutions.
    Mr. Tierney. Is that part of your subcommittee group that 
gets together?
    Ms. Browner. Yes, the Federal Advisory Group.
    Mr. Tierney. That is ongoing----
    Ms. Browner. With small business representatives.
    Mr. Tierney. A large number of people?
    Ms. Browner. You can't get them in a room.
    Mr. Tierney. You may not want to.
    Ms. Browner. No, it is great. Very thorough.
    Mr. Tierney. Let me focus on one last question I have.
    I share a northeast residence with Mr. Sanders. We always 
have that concern that just before things go out to sea, they 
stop by and visit us. We have a great deal of tourism and other 
industries that would really require as well as benefit from 
clean air. These same committees that you now have that are 
dealing with small businesses, it is my understanding they are 
also dealing with the transference issue?
    Ms. Browner. Yes, there is a committee looking at the 
transport issue. That is correct.
    Mr. Tierney. Can you tell me a little bit about what the 
committee's charge is and what might result from their work so 
we might have some comfort to know we are going to get this 
matter addressed and something is going to result from that?
    Ms. Browner. Again, because the actual plans for pollution 
reduction largely fall to the Governors, what the State 
representatives are now doing is, one, coming to a better 
understanding of the source of the problem. There is a lot of 
modeling that has been going on to understand who really 
generates the lion's share of the problem, if you will, in 
terms of the transport issue.
    Once that process is concluded, it is a complicated 
process. Then they hope to turn toward control strategies. What 
are the actual steps that would be taken in individual States 
by industries who have certain levels of pollution to the 
public air? What are the steps that would be taken to reduce 
the levels of pollution?
    Mr. Tierney. Is it anticipated that when the EPA gives 
final approval or disapproval of any particular State's 
proposal that how they have addressed this transference issue 
will come into play as to whether or not they get approved?
    Ms. Browner. Yes.
    Mr. Tierney. It will have an effect as to whether or not 
they reduced it sufficiently in their own State but also how 
their plan takes consideration for States like Vermont and 
Massachusetts for the downwind?
    Ms. Browner. That is a factor, yes.
    Mr. Tierney. I thank you for your patience and the hard 
work you are doing.
    Ms. Browner. Thank you very much. If I might make--I 
thought you were done.
    Mr. Sanders. Go ahead.
    Ms. Browner. No, go ahead.
    Mr. Sanders. I would just at this point want to thank the 
chairman. I know, obviously, there are a few minor differences 
of opinion here; but I thought it was a productive and good 
hearing; and I think you did a good job in producing it.
    I would appreciate if we could leave the record open. I 
would like to put in the record an article by Henry Waxman in 
the same issue of Roll Call that Mr. Barr referred to.
    Mr. McIntosh. Seeing no objection, gladly.
    [The article referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T3516.321
    
    Mr. Sanders. There are some statements from the State of 
Vermont and other State officials I would like to include in 
the record.
    Mr. McIntosh. We will include those.
    Mr. Sanders. I wanted to thank Ms. Browner. You have been 
here for a long time. Thank you very much, you and your staff. 
I thank the staff of your committee as well and our staff.
    Mr. McIntosh. Thank you Mr. Sanders, both you and your 
staff have been a great help to us.
    Ms. Browner, you wanted to say something?
    Ms. Browner. I wanted to say my thanks to all the members 
of the committee. This is not a small issue. It deserves 
vigorous discussion. I think we have rightfully engaged in that 
here today, and I appreciate it.
    I want to be very clear: We have not made a final decision. 
We do not consider ourselves above the law. It is true that 
almost anything I decide will be subject to litigation. That is 
the nature of the business I do on behalf of the American 
people. It is unfortunate.
    There will be some in industry who, quite frankly, want to 
delay their responsibilities to reduce their pollution. That 
has been true previously; and, unfortunately, it will continue 
to be true in the future.
    It is not all industry, by any means. So I don't make my 
ultimate decision in this or any decision based on whether or 
not I will find myself in court. I will find myself in court, 
rest assured. It is the nature of what I do.
    I make my decision based on the science. I make my decision 
based on the law. And I hope that these suggestions that 
somehow or another I am acting in an illegal manner, that I 
have acted outside the confines of the law, have been addressed 
today.
    I do believe as part of my job as the head of the country's 
environmental Agency I have an obligation to speak out to the 
American people, to report to them on what the science shows us 
and what the law requires me to do. That is all I have 
attempted to do in giving any speech at any time in my tenure.
    I don't think anyone here attempts to or seeks to 
intimidate me or in any way stop my obligation to do that. I do 
that within the meaning of my job, Administrator of the 
Environmental Protection Agency for the American people.
    Thank you.
    Mr. McIntosh. Thank you, Ms. Browner. We do share the goal 
of reducing and eliminating unnecessary air pollution in our 
country and protecting the health of American citizens, but 
have some very serious concerns that we are increasing the 
legal exposure that could inadvertently--I am sure it was not 
intended--but set back that goal.
    Thank you very much for coming. I appreciate it.
    [The letter referred to follows:]

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    Mr. McIntosh. Let me call forward the final panel in this 
hearing. We have with us the Honorable Sally Katzen, who is the 
Administrator of the Office of Information and Regulatory 
Affairs; the Honorable Jere Glover, who is the Chief Counsel 
for Advocacy of the U.S. Small Business Administration; and 
remaining with us will be the Honorable John Cannon, the 
General Counsel of the Environmental Protection Agency. Thank 
you all for coming.
    Let me say welcome to you. I understand you were at another 
committee.
    Ms. Katzen. Another subcommittee of this committee.
    Mr. McIntosh. Let me ask each of you to please rise; and, 
as I explained earlier, don't take this personally. It is our 
policy of our committee and subcommittee to swear in each of 
our witnesses.
    [Witnesses sworn.]
    Mr. McIntosh. Please let the record show that each of the 
witnesses answered in the affirmative.

STATEMENT OF SALLY KATZEN, ADMINISTRATOR, OFFICE OF INFORMATION 
    AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET

    Mr. McIntosh. Our first witness on this panel is someone 
whom I have admired greatly in the effort to make sure that we 
use the correct procedures. She has worked long before joining 
the administration in that effort in the legal community in 
writing regulations, and I admire her efforts to continue the 
tradition of ensuring that we do as good a job as possible in 
ensuring that we minimize the costs and maximize the benefits 
to society of regulations that are produced in our Government.
    So let me now--Sally, I call on you to share with us your 
testimony. The entire written testimony will be put into the 
record. Feel free to summarize it or expound on other points if 
you would like.
    Ms. Katzen. Thank you very much, Mr. Chairman, particularly 
for that gracious introduction.
    Members of the subcommittee, it has been a long morning. 
Actually, it is now early afternoon.
    You have asked us to appear today to discuss EPA's 
proposals to revise the ozone and particulate matter ambient 
air quality standards. As is painfully clear, these proposals 
have sparked an enormous amount of interest from a wide variety 
of affected groups. Indeed, in my experience as Administrator 
of OIRA, there has been no other rulemaking proceeding that has 
attracted as much attention or interest.
    I am also acutely aware of the questions that have been 
raised about OMB's review of these proposed rules under 
Executive Order 12866, from the logistics of how and when we 
conducted the review to the substance of what we thought of the 
proposed rules and the accompanying economic analyses that EPA 
prepared.
    Your first panel this morning consisted of the testimony of 
the Administrator of EPA, which I think is fully appropriate. 
Under the Executive order, the Agency which has the statutory 
authority bears the responsibility for developing the 
substantive regulatory standards. OIRA's role is to provide 
dispassionate, objective review of the agency's work in light 
of the Executive order. Among other things, our task is to 
ensure that the regulatory agency asks the right questions, 
considers the relevant scientific and other data, employs 
sounds analysis, and balances the competing concerns in a 
reasonable, practical way.
    Executive Order 12866 sets forth a number of principles 
generally applicable to regulatory decisionmaking. It was, 
however, purposely qualified to apply, and I am quoting, to the 
extent permitted by law, close quote.
    That qualification is particularly important for these 
proposals for, as the EPA Administrator has testified, the 
Clean Air Act requires her to set primary air quality standards 
that ``protect public health with an adequate margin of 
safety.'' These standards, therefore, are health-based; and the 
EPA Administrator is not to consider economic factors in 
determining the appropriate standard.
    Nonetheless, the Executive order requires the agency to 
prepare economic analyses for proposed and final rules and 
submit them to OIRA for review, even if economic considerations 
cannot be a determining factor--or any factor--in formulating 
the proposal.
    In accordance with Executive Order 12866, EPA prepared 
extensive cost-benefit analyses--over 3 inches of material--for 
these standards. That step is important because, while the 
standards themselves are health-based and may not reflect 
economic considerations, they are not, as you heard this 
morning, self-executing. Instead, after the standards are set, 
EPA must issue implementation policies or regulations that 
provide for the achievement of these standards by the States.
    As a result of EPA's preparing the economic analyses during 
the standard-setting phase, those addressing implementation 
issues--EPA, its advisory committees, State and local 
governments who are responsible for implementing the standards, 
and all of those affected--would likely have the best 
information available as they do their work.
    Turning briefly to the specifics of OMB's review of these 
proposed standards, you have inquired about this in a series of 
letters. Before we received the proposed standards, OIRA's 
staff attended a number of meetings at which EPA explained in 
general terms the methodology it was using in its analysis of 
these rules.
    The proposed rules themselves arrived on November 4, 1996, 
leaving us approximately 3 weeks available for review. During 
that time, my staff worked intensively, late into the evenings 
and on weekends. Because they were proposed rules, our task 
included assuring that the regulatory option preferred by the 
agency is fully explained and that other appropriate regulatory 
options are set forth with sufficient clarity to permit the 
public to provide meaningful comments during the public comment 
period.
    We had the same objective with respect to the accompanying 
economic analyses, namely to ensure that the agency provides 
sufficient and accurate information on the estimates of 
benefits and costs to permit the public to provide meaningful 
comment.
    In your letter of invitation to this hearing, you asked 
that I address OMB's position on EPA's compliance with the 
Regulatory Flexibility Act. My response, again, was included in 
written materials that I submitted to you.
    Simply stated, the regulatory agency has the front-line 
responsibility for complying with the act; and Congress has 
given the SBA Chief Counsel for Advocacy the responsibility for 
monitoring agency compliance with that act. OMB has no separate 
opinion on this issue.
    I would be happy to answer any questions that you have on 
these or other matters, and I thank you again for the 
opportunity to appear before you again.
    Mr. McIntosh. Thank you very much, Sally. I appreciate 
that. We will indeed have some questions.
    [The prepared statement of Ms. Katzen follows:]

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    Mr. McIntosh. Let me turn now to our second witness on this 
panel, Mr. Jere Glover, whose opinion on this has been 
discussed greatly, so we will now hear from you on your 
testimony.
    As I mentioned, your full remarks will be put into the 
record. If you wanted to amplify any of the points discussed 
earlier as well----

  STATEMENT OF JERE GLOVER, CHIEF COUNSEL FOR ADVOCACY, U.S. 
                 SMALL BUSINESS ADMINISTRATION

    Mr. Glover. Thank you, Mr. Chairman. I would like to thank 
you very much for having this hearing.
    What I have found as chief counsel is, quite often, these 
hearings have a tremendously salutary effect on agency 
compliance. Merely the fact you are having the hearing and 
caring about small business and looking at this issue has a 
very good ripple effect throughout the Federal agencies. I 
think that is going to be particularly true here, and I will 
share with you some comments and meetings that I had with EPA 
just yesterday and some results of that.
    Before I do that, let me first say that with me today is 
Kevin Bromberg, the Assistant Chief Counsel for the 
Environment. He is representing one of the hardest working, 
most dedicated groups of employees in the Government; and I am 
pleased to be head of the Office of Advocacy and work with 
these fine individuals.
    As you may know, the Office of Advocacy is an independent 
office charged with representing the views of small business 
before State, Federal and even before Congress.
    Several Presidents and a number of Congresses have 
attempted to change the culture within the Federal Government 
and how it treats small businesses. A number of pieces of 
legislation have been passed trying to do that.
    First, the legislation creating the Office of Advocacy some 
20 years ago; shortly thereafter, the Regulatory Flexibility 
Act was passed; the Equal Access to Justice Act has been 
passed; the American Paperwork Reduction Act has been passed 
and a couple of years ago amended; and of course now, SBREFA.
    By and large, those attempts to change the way the 
Government deals with small business have not been as 
successful as any of us would like them to be. Hopefully, the 
SBREFA legislation will be more successful.
    I think that sometimes I look at chief counsel and I feel 
like Rodney Dangerfield, that I just don't get any respect, and 
I often compare the previous activities of the office as the 
age-old question of if a tree falls in a forest and there is no 
there to hear it, does it make a sound? Sometimes I find myself 
thinking, well, gee, is that the case?
    Well, with SBREFA, I think we are going to see some 
changes; and I think we already are beginning to see small 
business and even the Office of Advocacy getting some more 
respect.
    In this regard, let me just say we have done a lot of 
outreach on SBREFA. We have had training sessions with 
Government officials. We had over 600 Government officials 
attend Office-of-Advocacy-sponsored training sessions, and over 
200 trade association executives have done that. So we have 
been making sure that the word gets out.
    And I think perhaps that we have been working with industry 
very closely to make sure they understand this new law, and it 
really is going to change the way the Federal Government deals 
with small business.
    The judicial review provisions that are now in the 
Regulatory Flexibility Act are there and are going to be used, 
hopefully not very often. Hopefully, we will get some clear law 
very soon; but we will see.
    Turning specifically to EPA, reviewing the annual reports 
that have been filed by the previous chief counsels and the 
ones that I filed, EPA has generally done a good job of 
complying with the Regulatory Flexibility Act. However, of 
course, EPA varies from office to office and from regulation to 
regulation.
    Yesterday, I attended the first panel meeting for the off-
the-road diesel regulations. Let me tell you, that proves that 
the panel process can work, an agency can do a good job. Not 
only have they looked at the implications of the industry, they 
paid special attention to small business. They have gone out of 
their way to look at the competitive issues. They have done an 
extremely good job of considering what they were proposing to 
do, how they were doing it, looking at alternatives, looking at 
ways they could make it better for small business. I was 
genuinely pleased that the process worked so well.
    Given the general history of Mary Nichols and the Air 
Office and their willingness to work with us and work closely 
on developing regulations, I was obviously shocked when I saw 
the certification in this particular case that indicated that 
they did not believe that the regulation would have a 
significant impact on a substantial number of small businesses.
    We obviously, when we heard that was going on during the 
regulatory process, alerted them that we were concerned about 
that, that we disagreed with them. You have before you our 
letter where we spelled out in some detail our reasons as to 
why we believed that was the case.
    We will concede that this is an issue that reasonable 
people can disagree on. However, I would tell you that the 
Office of Advocacy feels strongly that it is our position that 
a regulatory flexibility analysis should have been done in this 
matter, and certification was not appropriate.
    Having said that, I did meet yesterday with Mary Nichols; 
and we had a very good conversation about some things. One of 
the things I wanted to explain was how we have not been 
successful in the past in getting EPA to have the States 
understand what has been going on in the regulatory environment 
in Washington. Not only has the President but this Congress has 
done a number of things that I think changed the way the 
Government treats small business in a regulatory environment. 
That message hasn't gotten through to the States.
    We met with EPA and with OSHA, and OSHA did agree to meet 
with their State representatives and their State counterparts 
and encourage them to move toward more sensible enforcement 
activities for small business. EPA has now agreed that they 
will do likewise when they bring in their State counterparts, 
State officials, that they are going to have us sit down with 
those people, explain to them how their rules, regulations and 
enforcement policies could be unfair to small business and how 
they need to take small business into consideration.
    I think that is one of the things that is going to flow 
from this.
    I think another thing that is going to need to be done is 
any implementation regulations that are going to flow from this 
have got to make sure that we educate the Governors. We have 
recognized that that is one of the places we hear the most 
complaints from, is that State and local officials just don't 
know or care about small business.
    While we have been able to make small businesses' view 
heard here in Washington, we have not been able to do that with 
some of the others. That is why, when we say it is going to be 
on the Governors, it increases our burden of educating the 
Governors as to how these regulations should be impacted and 
how they should be proposed to help small business.
    I would be happy to answer any questions. I want to 
sincerely thank you for having this hearing. It has already had 
a good effect.
    Mr. McIntosh. Thank you. We will explore further this 
notion that it is all going to fall to the Governors.
    [The prepared statement of Mr. Glover follows:]

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    Mr. McIntosh. Mr. Cannon, I understand you do not have 
prepared remarks, but would you like to make a comment at this 
point?

 STATEMENT OF JOHN CANNON, GENERAL COUNSEL, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Cannon. Mr. Chairman, I don't have prepared remarks; 
and I am prepared to answer questions on the legal issues that 
have been raised today. I am sure it will be the subject of 
further discussion.
    Mr. McIntosh. Thank you. Thank you for sticking around.
    Let me now turn over the Chair to my vice chairman, Mr. 
Sununu, who will proceed with questions. If I could ask you to 
reserve my 5 minutes for an appropriate period, I will be back 
shortly.
    Mr. Sununu [presiding]. So noted.
    At this time, the Chair would recognize Mr. Snowbarger for 
5 minutes for questions.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    Excuse me while I flip to the testimony, because I want to 
make sure I get this quoted right.
    I know the chairman has a line of questions that he wants 
to pursue with you, Ms. Katzen; but I just can't pass this one 
up. Thus, given these factors, OMB's position on EPA's 
compliance with the Regulatory Flexibility Act in these 
rulemakings is as stated by EPA and SBA. OMB has no separate 
opinion on this issue.
    The way I have used these kinds of statements in the past 
is, when somebody talks to me about a particular issue, I say, 
well, I have some of my friends that feel this way about it, 
and I have some of my friends that feel that way about it, and 
I agree with my friends.
    Where do you stand? SBA and EPA are taking a different 
stance on this issue, and you have agreed with both of them--or 
you are not agreeing with either one of them. I don't 
understand.
    Ms. Katzen. Thank you. I don't have an opinion on this.
    It is an interpretation of the Reg-Flex Act; and, as the 
chairman knows, there are a huge number of responsibilities 
that are put in the Office of Information and Regulatory 
Affairs for implementation and guidance and analysis of a 
variety of different statutes. Reg-Flex is not one of them. It 
is one that we have supported. It is one that we worked with 
within the administration to have the President support 
judicial review of Reg-Flex, which was a very important piece 
of SBREFA.
    And I work closely with SBA. We had a memorandum of 
understanding that Mr. Glover and I entered into 3 or 4 years 
ago in which I would refer to his office regulations that come 
to our office for review where there are issues that we think 
may be of interest to him under the Regulatory Flexibility Act, 
and we refer those to him.
    So I think I agree with my friends, mostly because I 
haven't done the kind of analysis that I would do if I were 
asked to, which I have not been in this case--to take a 
position.
    Mr. Snowbarger. Again, I think when the chairman returns, 
he has some followup questions to that. I will let it go at 
this point.
    Mr. Glover, I would like to focus on--it didn't come from 
your testimony but came from the letter that I believe you sent 
to EPA back last fall concerning your--well, about your 
concerns about compliance with SBREFA. It is my understanding 
that EPA has relied on two particular cases to say that these 
requirements don't apply to them in this particular rulemaking 
setting--the Mid-Tex case and United Distribution case.
    It was my understanding you disagree with that legal 
interpretation. Could you explain for the committee a little 
more detail why?
    Mr. Glover. Yes, I can. I think the issue that this rule 
will not have a significant impact on a substantial number of 
small businesses, what we are seeing is several things.
    One, we are seeing that those cases were fairly narrow; and 
they were involving a situation where the businesses involved 
were unregulated. There was no regulation at all on those 
industries, on those businesses. The small businesses were 
outside of the scope of the agency's abilities to regulate 
them. I think they were fairly narrowly drawn.
    I think those cases were also in the context of there was 
no judicial review of the Regulatory Flexibility Act at all 
until SBREFA was passed. I think that distinction is there.
    I think there are also some other regulations that are 
automatically triggered, so there will be an automatic trigger 
that goes into place. We talked about that in my letter at some 
place. I did include a copy of that letter attached to my 
testimony rather than simply reiterate what we had said there.
    I think we also have some precedent where we had seen some 
previous actions of EPA where they had gone ahead and done Reg-
Flex analysis in similar situations. So we felt the Regulatory 
Flexibility Act--the first impression is this regulation will 
have a significant impact on a substantial number of small 
businesses. It is just going to happen, folks. Let's not kid 
ourselves. It is going to happen.
    Now, is it a direct impact or is there somebody else 
involved? We can argue about that. But to say it won't have any 
impact I think is simply--it will have an impact. It may be 
that someone else--there is a third party that intervenes, that 
forces that to happen, but it is going to have an impact.
    So those were the arguments we laid out. Our position 
hasn't changed since we wrote that letter back in November.
    Mr. Snowbarger. Understanding that the whole purpose behind 
the Reg-Flex Act and SBREFA specifically was to allow small 
businesses to have a greater impact on the decisionmaking 
process sooner and understanding that the White House, through 
its small business conferences and things of that nature, has 
also expressed some concern about this, how do we now find that 
in a sort of a battle of interpretations between two agencies 
we are not protecting the small business?
    Mr. Glover or Ms. Katzen, either one?
    Mr. Glover. I don't have veto power over agency action; 
and, quite frankly, I don't seek that. If you offered to me, I 
would run away from it.
    But I do think that we will have our voices heard. I think 
there will be a challenge in this matter; and I think, 
ultimately, we will have clear law in a year or two as to 
exactly what is meant here.
    Mr. Snowbarger. It seems pretty disappointing that you have 
to have your say by going to court, I guess.
    Mr. Glover. Thank you for the opportunity to also have our 
say here today.
    Ms. Katzen. Part of my answer to that would be to step back 
from the legal requirements----
    Mr. Snowbarger. By the way, we have had an awful lot of 
stepping back today.
    Ms. Katzen. OK, let me step forward to the policy 
implications of this. This is why I think in this particular 
instance I see merit in SBA's argument; and I also see merit in 
EPA's analysis of this, to the extent we are talking about a 
health-based standard.
    We are asking the question of not whether the period of 
time for compliance should be extended, whether a separate 
requirement should be imposed, whether reporting requirements 
can be tailored. We are talking about what the science tell us 
about the health base that you need to satisfy the statute? 
And, on that basis, given the intent of the statute, is there 
something that the small business community--as a small 
business community--can contribute in a meaningful way?
    I raise that as a question without a predetermined outcome.
    On the other hand, when it comes to the implementation, I 
believe the Regulatory Flexibility Act is absolutely clear; and 
EPA has brought small business in to consult on a variety of 
ways. The first OSHA panel was the tuberculosis panel, and that 
was very salutary in tailoring the rule.
    Mr. Snowbarger. I understand that. The question we have 
been trying to raise today is that there are some of us that 
feel that there has been a wrong decision made in terms of the 
procedure, that there were some hoops that were supposed to be 
jumped through--and Mr. Glover agrees with those hoops. They 
weren't jumped through.
    And now, all of a sudden, the action of the Agency and its 
procedure has created a cause of action in court, a reason to 
go to court, that goes beyond the health standard. It foes to 
the process of determining what that health standard should be. 
That is what concerns me.
    Mr. Sununu. The gentleman's time has expired.
    I would like to recognize Mr. Kucinich for 5 minutes. We 
can pick up that line of questioning if we have time reserved 
at the end.
    Mr. Kucinich. Thank you very much, Mr. Chairman, and to Mr. 
Glover.
    I am looking here at the conclusion of your letter of 
November 18, 1996, wherein you recommend that the EPA convene 
an informal group of small business representatives to obtain 
comments on the rule.
    I am also looking at your testimony prepared today on page 
8, April 23rd. It says the EPA did agree, however, voluntarily, 
to conduct a SBREFA-like panel process. It held two meetings 
with small entities, the results of which we are advised EPA 
will submit for the record.
    Is EPA trying to involve small business or are they not?
    Mr. Glover. I think they clearly are, and of the various 
offices of EPA the Air Office has always been a little bit 
better than some of the other parts in doing that. We have had 
discussions early with them. They made changes we suggested.
    Now, on the big issues, we have not come to any meeting of 
the minds with that. They have been responsive in having 
panels, but we did recommend people for those panels. They 
brought small business in. They convened them. So, yes, they 
are being responsive to small business in a general way.
    The question is, legally, technically, are they complying 
with SBREFA? To that, my answer is no. But, otherwise, are they 
going out and doing what they said they would do and what we 
asked them to do? They certainly are.
    Mr. Kucinich. So they are technically not complying, but 
they are meeting with business entities?
    Mr. Glover. That is correct.
    The problem that we have with the small business is the 
earlier small businesses, the agencies, start considering small 
business, the more likelihood they are going to fashion a 
reasonable recommendation, a reasonable regulation, that is 
going to be fair to small businesses. The whole idea behind the 
panel process is to get us involved in that process very early 
on. We have certainly had EPA agree to do something like this, 
and they brought small business in.
    What the ultimate outcome will be after the regulation was 
proposed, what happens in the final regulation, this will be a 
factor they will consider; and I appreciate very much EPA being 
willing to have these panels and bring small businesses in; and 
I appreciate their willingness to listen to what they are 
saying.
    Mr. Kucinich. Your job, in effect, if I may, is to make 
sure small business gets a hearing, is that correct?
    Mr. Glover. That is part of my job. Other parts of my job 
is to report to Congress on the Regulatory Flexibility Act and 
the Agency's compliance with the act. There are a variety of 
other things we do--outreach to small businesses. We do a 
variety of different things.
    Mr. Kucinich. If small business is not getting a hearing, 
it is your responsibility to see they do get one. You are 
saying in your testimony here that you are trying to discharge 
your responsibility, and what you are saying is they have had 
some meetings already. Are you responsible for that?
    Mr. Glover. Yes, sir.
    Mr. Kucinich. Thank you.
    I also want to ask a question of Ms. Katzen. On page 2 of 
your testimony, you speak of the Executive order which requires 
agencies to prepare economic analyses for proposed and final 
rules and then submit them. The information that you have been 
presented by the EPA, are you satisfied that it fulfills that 
requirement?
    Ms. Katzen. We received with the proposals draft regulatory 
impact analyses, which contained extensive cost-benefit 
analyses. As I have indicated in my response to the chairman, 
we have had a lot of discussions with EPA as to whether 
additional work would be productive; and they have agreed to do 
additional work at the final rule stage.
    Mr. Kucinich. Fine. And could I ask you then, when you are 
speaking of cost-benefit analysis, the documents that you have 
been presented with, do they speak of the benefits of public 
health, for example, the benefits that people may have from not 
having a pulmonary problem exacerbated by air pollution, the 
benefits asthmatics may have from not having a climate that is 
rife with air pollution? Are those health benefits quantified?
    Ms. Katzen. Yes, some of the health benefits can be 
quantified and indeed are monetized. Some are not monetized but 
are quantified. Some are discussed in qualitative terms as 
well. Our Executive order provides that an agency should 
quantify to the extent possible and otherwise provide a 
qualitative description, and that it all be included in the 
analysis.
    Mr. Kucinich. Are you familiar with the results when the 
monetized benefits--I will be concluding here. When the 
monetized benefits are compared to the costs, are the benefits 
based on the information that you have received? Is it more 
beneficial in terms of money to the public or is it more 
costly?
    Ms. Katzen. The combined particulate matter-ozone 
standards, taken together, show benefits that justify the 
costs. On a disaggregated basis, the benefits are appreciably 
greater for the particulate matter--the fine particle--
standards, than they are for the ozone standard, where the 
benefits and costs are each estimated in a range and they do 
overlap.
    Mr. Kucinich. I think it would be interesting, Mr. 
Chairman, to have that kind of information presented for our 
record. That is one of the reasons I am sitting here, is to try 
to find out what the cost benefits are, if, in fact--and I 
think there should be some economic analysis that attends to 
the health benefits.
    Thank you.
    Mr. Sununu. Thank you, Mr. Kucinich.
    Mr. McIntosh, you are recognized for 5 minutes.
    Mr. McIntosh. Thank you, Mr. Chairman. It feels good, 
doesn't it, John?
    Let me ask a question of Mr. Cannon, and that is a question 
I addressed earlier to the Administrator but didn't get a very 
good answer.
    How can you reconcile the two statements--the certification 
that there are no significant impacts, only small entities, and 
then the regulatory impact analysis statement on page E-12 that 
says there are significant impacts on small businesses of the 
preferred option that EPA is proposing?
    Mr. Cannon. I think those statements are reconcilable in 
light of the different purposes of those two documents.
    Regulatory impact analysis is designed to, and in fact 
does, engage in a hypothetical review of what overall costs and 
benefits resulting from a particular action like the NAAQS 
might be. It makes certain assumptions about implementation 
efforts by the States under the Clean Air Act, and our 
understanding is that that is what the Executive order requires 
of us and expects of us.
    On the other hand, the Regulatory Flexibility Act, and 
particularly the regulatory flexibility analysis provisions, 
are focused on requirements applicable to small entities.
    The purpose of the regulatory flexibility requirement----
    Mr. McIntosh. Isn't there a superseding requirement that 
both statements be truthful?
    Mr. Cannon. I think both statements are truthful, Mr. 
Chairman.
    Mr. McIntosh. Even though they contradict each other?
    Mr. Cannon. They are addressing different points under 
different authorities. But I think those two different 
authorities----
    Mr. McIntosh. This reminds me of a statement that Richard 
Nixon once made when I was a little kid, and I was horrified by 
it, but it was something along the lines: You may think you 
know what I said when you heard me say something, but I am not 
sure you understand what I said is not actually what I meant. 
It is a bizarre contortion to say that two things that are 
opposite conclusions are both true.
    Mr. Cannon. I don't think that is bizarre at all. It 
happens in the law all the time, as you know.
    Mr. McIntosh. I don't buy into that.
    Mr. Cannon. Under the Regulatory Flexibility Act, as the 
courts have made clear in the Mid-Tex and in the United 
Distribution Co.s decisions, the certification of no 
significant impact on a substantial number of small entities is 
a certification that goes to impacts on small entities subject 
to the requirements of the rule.
    That is perfectly consistent with the purpose of the 
regulatory flexibility analysis, which is to look at those 
requirements, to identify them, things like recordkeeping, 
compliance obligations, and so forth, and to tailor them to 
meet the particular needs and requirements of small businesses, 
so that disproportionate impacts from those requirements on 
small businesses can be avoided.
    Mr. McIntosh. Mr. Glover, do you agree that has been 
sufficiently reconciled?
    Mr. Glover. No, sir.
    Mr. McIntosh. I don't either.
    The question I have now, actually for you, Sally: We talked 
about the role of OIRA a lot in the last Congress, and I 
sponsored a bill that would have given that Agency a lot 
greater powers under statutory terms to coordinate the review 
of regulations.
    One of the things you said at that point was, you are 
justifiably proud of the open rulemaking process and the 
increased accessibility for the public, increased cooperation 
and coordination among the Federal agencies, between Congress 
and the executive branch and the Federal Government, State, 
local and tribal governments, businesses and individuals, and 
good processes produce good decisions.
    I am deeply troubled by this particular process where EPA, 
the agency issuing the regulation, and the SBA, the agency that 
has authority to interpret SBREFA, have diametrically opposing 
conclusions about whether the Agency has followed the law in 
this area.
    You tell me OIRA takes no position on that. You don't have 
any preference at all between those two legal authorities. Do 
you disagree with my statement that the fact that that is not 
resolved increases the chance of litigation after the fact and 
once the rule is promulgated?
    Ms. Katzen. Starting at the end of the question, it will 
probably be another allegation in the complaint of one of the 
petitions for review of the resulting rule and thus be part of 
the litigation which will inevitably occur no matter what is 
decided and no matter what processes are followed.
    Mr. McIntosh. But as a lawyer, would you advise your 
client, hypothetical client, if you could remove complaints, 
items in a complaint, to do so?
    Ms. Katzen. That is generally sound advice that I would 
give. One of the roles that I perform, however, is not to be a 
legal advisor. I heard earlier some reference to who should 
resolve this issue, and I say strongly, it is not me.
    There is within the Justice Department, the Office of Legal 
Counsel, to whom questions of interpretation of law are 
uniformly forwarded when there is a conflict within the 
administration.
    Talking about regulatory policy, attempted----
    Mr. McIntosh. Did you all seek an interpretation on this 
question?
    Ms. Katzen. No.
    Mr. McIntosh. Was there any discussion of that option?
    Ms. Katzen. No.
    Mr. McIntosh. Has OIRA ever returned a regulatory proposal 
or any of the items that it reviews because, in their opinion, 
the Agency had failed to meet the legal standards required in 
proposing the rule?
    Ms. Katzen. The issue of whether we have returned a 
regulation under Executive Order 12866--and I think there have 
been maybe six or seven instances in our tenure--we view as the 
sign of a failure, the sign of an impasse, where we cannot have 
the Agency accommodate, be persuaded by, the suggestions that 
have been made that would improve or enhance the regulatory 
process.
    As I quickly here review in my mind what I remember to be 
the specific instances for those returns, those were on policy 
grounds rather than legal grounds, although the legal grounds 
may well have been a factor.
    With respect to Regulatory Flexibility Act itself, our 
function is to review a proposed rule to see if there is, for 
example, a certification which was present here. The question 
of whether that certification was appropriate is something that 
I would have referred to Jere Glover as consistent with our 
memorandum of understanding of referrals of such matters.
    Mr. McIntosh. So my concern is, when Jere Glover reports 
back to you no, it is not correct in this situation, why did 
you clear the rule?
    Ms. Katzen. Actually, there has been a lot of reference to 
his letter of November 18th. There is also a letter of November 
27, and the record would be more complete by adding this letter 
to the record as well. It is a letter to Senator Bond, signed 
by Jere Glover and Mary Nichols jointly, which says that 
without having to resolve the legal question, there is a 
process in place for getting the necessary input, the 
appropriate input, from small businesses. On that basis, both 
of these agencies were prepared to go ahead, and therefore 
there was no reason for me to have to resolve the dispute.
    In addition, there was at that point a court-ordered 
deadline of November 29th that had to be met for the issuance 
of the rule. With this additional information from Mary Nichols 
and Jere Glover, I felt that the issue had been sufficiently 
handled for purposes of our concluding review in the face of a 
court-ordered deadline.
    Mr. McIntosh. My time has expired. Let me just express 
disappointment that OIRA doesn't independently make those 
conclusions, and, furthermore, when they have a signal from the 
controlling legal authority, as the vice-president coined that 
phrase, that there is a problem, then I think you need to 
undertake an independent assessment about the impact of that 
legal dispute on the ultimate viability of the regulation.
    Mr. Sununu. Why don't I turn the Chair back over to Mr. 
McIntosh at this time.
    Mr. McIntosh [presiding]. Fine. Thank you, Mr. Sununu, for 
serving very well as chairman. It is a pleasure having you as 
my vice chairman.
    Let me turn now to Mr. Sanders.
    Mr. Sanders. Mr. Kucinich, do you want to go?
    Mr. Kucinich. If I may. Thank you, Mr. Sanders. Thank you, 
Mr. Chairman. I want to ask Ms. Katzen a question here, and I 
want to make sure I understand this.
    If you have a disagreement within the administration, you 
go to Judiciary; right?
    Ms. Katzen. If there is a disagreement about an 
interpretation of law, the ultimate arbiter of legal 
interpretations would be the Office of Legal Counsel at the 
Department of Justice.
    Mr. Kucinich. If there is a disagreement within the 
administration, that is who you go to; right?
    Ms. Katzen. Yes.
    Mr. Kucinich. Mr. Glover, if there is a disagreement within 
the administration, who do you go to?
    Mr. Glover. That certainly is an option, to go to the 
Office of Legal Counsel. We did not choose to do so in this 
case. We do not have to do so.
    Mr. Kucinich. Now, I want to understand your status here, 
because I am new to Congress and you can help me in getting a 
definition here.
    Are you part of the administration itself? Are you a member 
of the administration in the same way Ms. Browner is?
    Mr. Glover. Yes, I am.
    Mr. Kucinich. What is your status in the administration?
    Mr. Glover. The Office of Advocacy was created 20 years ago 
to be an independent voice for small business within the 
administration. We work with the Federal agencies, we work with 
the White House, to help make sure that small business's views 
are being considered.
    Mr. Kucinich. Do you report to the Administrator of Small 
Business?
    Mr. Glover. I do not.
    Mr. Kucinich. So you are independent?
    Mr. Glover. Yes, sir.
    Mr. Kucinich. Your independent status and the status as a 
member of the administration at the same time, does that put 
you in any kind of a conflict with serving the administration?
    Mr. Glover. It does from time to time, yes, sir.
    Mr. Kucinich. And what about your--do you find yourself 
ever in conflict with a group like the National Federation of 
Independent Business?
    Mr. Glover. Yes, sir, on several occasions.
    Mr. Kucinich. Do you have any disagreements with them on 
the Clean Air Act right now?
    Mr. Glover. I am not sure. The proposals, amendments to the 
Clean Air Act?
    Mr. Kucinich. The clean air proposals that we have right 
now. Do you find yourself in agreement with the National 
Federation of Independent Business, or do you tend to agree 
with Ms. Browner?
    Mr. Glover. I don't have a position on the Clean Air Act 
amendments that are currently pending.
    Mr. Kucinich. But you do talk to small business since you 
are their advocate. What I was interested in, since you are the 
advocate for small business, can you say that the position of 
the National Federation of Independent Business, which is the 
principal spokesperson group for small business in this 
country, that that is the position that you are here to 
advocate as the advocate of small business?
    Mr. Glover. No, sir. No organization sets policy for the 
Office of Advocacy. I set that alone, and I will not follow--
just because one organization thinks that is what is right for 
small business, that is not controlling over what I do. I do 
that based on my own independent analysis and my staff's 
analysis.
    Mr. Kucinich. You are saying you are really not here as a 
voice of business or a voice of the administration?
    Mr. Glover. That is correct.
    Mr. Kucinich. So then who are you a voice of?
    Mr. Glover. I am a voice of the Chief Office of Advocacy at 
the Small Business Administration.
    Mr. Kucinich. Thank you.
    Mr. McIntosh. Let me turn to Mr. Sununu for questions.
    Mr. Sununu. Mr. Cannon, earlier this morning Mr. Kucinich 
talked about the importance of disclosure, public disclosure, 
for families who are going to be affected potentially by these 
regulations, businesses, obviously our role in the Congress, 
the importance of disclosure of the underlying data and the 
science, that rulemaking is based on.
    Could you provide a description of what the position of the 
EPA is on your legal right to the underlying data that was put 
together and created under programs that have received public 
assistance?
    Mr. Cannon. We have rights regarding for data which our 
assistance moneys are used to produce. As the Administrator 
testified this morning, none of the assistance agreements that 
we had relating to these studies involved the production or 
generation of data.
    Mr. Sununu. You don't think any of the funding that you 
provided related to any of the studies that have been cited 
give you legal right to any of the underlying data?
    Mr. Cannon. We do not have a legal right in the form of a 
possessory right to any of the underlying data. Now, there are 
additional provisions of our assistance regulations that 
provide access by EPA to--I don't know why that light went on.
    Mr. Sununu. That was no 5 minutes. That wasn't 5 minutes. I 
think there is a little problem with the timer. Please 
continue.
    Mr. Cannon. There are additional provisions which provide 
access by EPA to records pertinent to assistance agreements 
that we enter into.
    Mr. Sununu. The studies that have been cited were provided 
for under contract with the EPA. There was funding. Most, if 
not all, of the funding for the studies came from the EPA. But 
you don't feel that you, the Congress, or the public for that 
matter, has a right to fair and open review and evaluation of 
that underlying data?
    Mr. Cannon. We don't have a right to that data because we 
didn't fund the collection of that data.
    If you will let me complete my statement, there is another 
provision that arguably allows access to data if it is 
manipulated in studies that we fund, if that data constitutes a 
record pertinent to the award and the Agency decides access to 
that data necessary.
    Mr. Sununu. For the record, I would emphasize that the Code 
of Federal Regulations states the Federal Government has an 
unrestricted right to use any data or information generated 
using assistance funds. I think there are many, amongst the 
public, in Government, and certainly here in Congress, that 
feel that it is not just a right for exposure and re-evaluation 
of continued analysis, but it is also part of the scientific 
process.
    I yield the balance of my questioning time to the chairman.
    Mr. McIntosh. Cindi, how much time is left?
    The Clerk. One minute.
    Mr. McIntosh. I have two lines of questions. Let me try to 
get one of them in, and then I will recognize Bernie.
    Mr. Glover, is it possible for EPA to correct the legal 
defects in the rulemaking process so that they will have met 
the requirements of SBREFA?
    Mr. Glover. I suspect it is. We are at the beginning phase 
of the implementation of SBREFA, and I think that if they were 
to withdraw their certification and do a final regulatory 
analysis, the court would look at that as perhaps good faith 
attempts to comply with the law. I think there might well be 
something there. But I don't have a formal legal opinion on 
that. We have not looked at it in depth.
    Mr. McIntosh. If I understand, you want to give some 
thought to that question, because it could have significant 
repercussions, and perhaps in a reasonable period of time, 
could you give us your answer on whether they need to repropose 
in order to do that or not?
    Similarly, Sally, and if I may ask you to join with me in 
making an assumption that you may not agree with, although 
maybe you do, but if there is a flaw under the Unfunded 
Mandates Act and the Agency's interpretation that that law does 
not conclude is incorrect, which I agree, the Agency should 
narrowly construe that conference report comment to have 
explicit statutory requirement not to perform cost-benefit 
analysis rather than a matter of interpretation. But I 
understand there is a difference of opinion there on that law.
    But assuming that my interpretation is correct, is there a 
way that the Agency can correct the record on the two 
rulemakings in order to avoid a legal challenge? I don't want 
to preclude you from commenting on the legal conclusion either.
    Ms. Katzen. The conference report says unless otherwise 
prohibited by law, and the law in this area is really quite 
clear, it was originally EPA's interpretation to which 
deference is owed under Chevron that costs may not be 
considered.
    That has been affirmed by the original court and has come 
up in a number of other cases, all of which have now made the 
law quite clear that a cost may not be considered. I read that 
to be unless otherwise prohibited, because they may not 
consider costs.
    So I cannot join you in your assumption that they have 
incorrectly construed the unfunded mandates law in this 
respect, and I actually included that statement in our second 
year report. We file an annual report with the Congress on 
Agency compliance with the Unfunded Mandates Act, and I cited 
their statements with approval in our annual filing.
    Having said that, there are various provisions of the 
unfunded mandates report. One of them is to certify that you 
have taken the least burdensome, least cost--or most cost-
effective approach to the regulatory objective.
    I am not sure, given that the law does not permit her to 
make a finding considering costs, how she would be able to make 
such a certification, other than as a--by the way, OIRA, our 
economic analysis, has established to my satisfaction that I 
satisfy the standards. So it really is a conundrum here that 
cannot be easily parsed.
    Mr. McIntosh. Let me say, I think that would satisfy me, if 
she would make that conclusion, and OIRA would be subject to 
part of the record to back that up. I think in the absence, we 
just disagree on the legal interpretation of this.
    But I think in the absence of an express statement in the 
Unfunded Mandates Act and an express statement in the Clean Air 
Act, that these types of effects cannot be considered. I do 
think the law mandates that be done as the rule goes forward 
when there are multiple options being considered.
    But my time has expired. I acknowledge you have expressed a 
different one.
    Ms. Katzen. I do.
    Mr. McIntosh. I only have one more series of questions, and 
Bernie has expressed a desire to wrap things up.
    Let me offer you now a chance to do that, and then I will 
go through my last questions.
    Mr. Sanders. I will not be very long. I just wanted to ask 
Mr. Cannon a few questions, if I might.
    Mr. Cannon, is it your understanding that throughout 
history, including before the passage of SBREFA, that the EPA 
has held a view that clean air standards apply to States, not 
private industry, and therefore clean air standards do not 
substantially impact a significant number of small businesses? 
Is that correct?
    Mr. Cannon. We have always held the view, because the 
courts have directed us to hold the view, that the terms by 
which a State complies or comes into compliance with the 
ambient air quality standards are to be set by the State, not 
by EPA, and that actually was recently dramatized to us in a 
case that we unfortunately lost in the DC circuit, where the 
court again cited to prior authority, saying that under the 
Clean Air Act, and particularly under section 110 which 
provides for the State implementation plans, the States are to 
determine their requirements and control measures that are 
applicable rather than EPA.
    Mr. Sanders. OK. And there has been a lot of discussion 
today about small business and the impact of these regulations 
on small business. My question is, do you feel that small 
business concerns have been disregarded, as some have 
suggested, during the development of these proposed standards?
    Mr. Cannon. No, I don't believe so.
    Mr. Sanders. Why?
    Mr. Cannon. As Mr. Glover has outlined, we have undertaken 
a process to reach out to small businesses, to hear their 
concerns, and we have done a regulatory impact analysis, as has 
been pointed out, that has included some hypothetical analyses 
of potential costs to small businesses among others that might 
flow ultimately from the implementation of the ambient air 
quality standards that have been proposed, assuming we go 
forward with those.
    What we haven't done is the regulatory flexibility 
analysis, which in our view relates to the tailoring of 
requirements that would be specifically applicable to small 
entities. Since there are no such requirements implicated in 
the ambient air quality standards, our view is that we don't 
have the ability to fulfill the purpose or requirements of the 
regulatory flexibility analysis in this case and therefore have 
chosen not to carry it out.
    Mr. Sanders. Let me ask a similar question with regard to 
State and local governments. Some have suggested they have not 
had the opportunity to give input and express their concerns. 
Would you comment on that?
    Mr. Cannon. I think we have made efforts to reach out to 
State governments, certainly in this rulemaking and also to 
representatives of local governments as well, the National 
Association of Counties and others.
    Ms. Katzen. If I may comment on that for one moment, 
please?
    Mr. Sanders. Yes.
    Ms. Katzen. One of the questions that had been raised when 
the proposals were promulgated was the extent to which we would 
be able to afford people an opportunity to be heard during the 
public comment period. At that point, the White House 
specifically determined to encourage a very extensive outreach 
effort through my office. I therefore had one meeting very 
early on with State and local representatives, another with 
members of industry, the Air Standards Quality Coalition, and 
another with public health and environmental groups. I promised 
each of them that our meeting would be the first of many 
meetings. I have since had at least one session with other 
members of industry, and I have had one this week with another 
group.
    Mr. Sanders. You are suggesting, in fact, the EPA has 
reached out and tried to involve all sections of the 
communities?
    Ms. Katzen. That is correct. OMB has participated in that 
effort as well, so that the public will have multiple forums in 
which to speak.
    Mr. Sanders. Let me get back to Mr. Cannon, if I might. 
Anybody else, feel free to jump in.
    There has been some discussion earlier--Ms. Browner was 
here--about some suggestions that the EPA has prejudged the 
outcome of the final ruling, you have already made your 
decision. Do you want to comment on that?
    Mr. Cannon. I have taken a look at the Washington Legal 
Foundation's petition in light of what I understand the legal 
standards to be, and I will tell you that it is my own view 
that, properly understood and taken in context, the comments 
that are attributed to her there do not come close to the line 
requiring her to be disqualified.
    Mr. Sanders. OK. Again, one of the issues that has been 
maybe not fully understood or disagreed upon by the Members up 
here is what the law is about. Will you--will the EPA consider 
anything other than public health considerations in making your 
final decision on the proposal, and is that approach consistent 
with what the law states?
    Mr. Cannon. Our understanding is, we are confined to public 
health considerations in making a decision on these standards.
    Mr. Sanders. So in terms of this part of the process, to do 
otherwise would be, in fact, in violation of the law; is that 
correct?
    Mr. Cannon. That is our understanding of the law.
    Mr. Sanders. Thank you.
    Mr. Chairman, that is the extent of my questions. Thank 
you.
    Mr. McIntosh. Thank you, Mr. Sanders.
    For my final set of questions, I want to switch subjects 
slightly here and address a topic with Ms. Katzen that is of 
great concern to me, and that is whether OIRA participated in 
an effort encouraged by EPA or others to stifle other agencies' 
comments in the official rulemaking record.
    I wanted to submit for the record, my and my colleagues, a 
copy of the Senate Congressional Record dated March 20, 1997, 
where Senator Byrd says he understands that some Federal 
agencies had also planned on submitting comments to EPA as part 
of the public comment period. However, the Oil Daily, a trade 
publication, reported these agencies were prevented from doing 
so. They reported that, ``According to a leaked memo, the 
agencies were muzzled by OMB.''
    The article further quotes from the memo as instructing 
agencies that, ``Based upon reports from a meeting this 
morning, Federal agencies will not, I repeat, will not be 
transmitting comments on the EPA proposals.''
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T3516.341
    
    [GRAPHIC] [TIFF OMITTED] T3516.342
    
    [GRAPHIC] [TIFF OMITTED] T3516.343
    
    [GRAPHIC] [TIFF OMITTED] T3516.344
    
    Mr. McIntosh. My question is, at any time--and I think this 
was alleged to have occurred near the end of the comment 
period--did you instruct representatives of various Federal 
agencies not to file any more written comments in the 
rulemaking record?
    Ms. Katzen. No, I did not. The rumors of my ability to 
``muzzle'' the agencies are, to quote or paraphrase Mark Twain, 
very greatly exaggerated.
    It is an interesting article in Oil Daily. I don't 
ordinarily subscribe to it, so I haven't read it and I can't 
comment on the general accuracy of its assertions. I had read--
--
    Mr. McIntosh. I can give you a copy of that.
    Ms. Katzen. That is quite all right, because I had read 
Senator Byrd's comments on this. I think it is important to 
understand what it is that was decided by whom and for what 
reason. To do this, I would like to go back to the proposal 
stage when we had a 3-week review period.
    While my staff worked nights and days and weekends and 
whatever, and EPA's staff was beyond being extended any 
further, a lot of the agencies who came to the table came with 
insufficient information and, they believed, insufficient 
opportunity to contribute to the process. As a result, we made 
a commitment the day we cleared the proposal to have an 
expanded, extensive interagency process for review of the final 
packages whenever they should arrive and that we would not wait 
until they arrived at OMB, but that we would start and meet 
early and often.
    So I convened an interagency process that brought everybody 
who had any interest to the table. I even notified some 
agencies who had not heard about this, and I said: Are you sure 
you don't want to be there? I want everybody who has an 
interest or even who thinks they have an interest to come to 
the table.
    We have a two-tier interagency process. We have a technical 
staff level that is meeting generally once or twice a week, and 
we have a policy level that meets once a week. What we have 
been doing is going through the data requests, the kinds of 
information we need, and teeing up the kinds of issues we 
anticipate will be in the forefront of our interagency process 
when the final package is delivered.
    As a result this, we are getting advance briefings from 
EPA. Sometimes it is as simple as the docket of comments. You 
heard from Administrator Browner the large number of comments 
that had been filed. EPA has prepared and are distributing a 
docket to all the agencies weekly so, for example, the 
Department of Energy might notice a comment from the American 
Petroleum Institute and be interested in that; the Department 
of Transportation might be interested in some of their 
constituents' comments; the Department of Interior might be 
interested in some of their constituents' comments. So the 
agencies could select the comments they want to read, and those 
comments would be made available. They were also being briefed 
on the status of the decisionmaking process.
    Mr. McIntosh. Those were both at the technical level and at 
the policy level?
    Ms. Katzen. Yes.
    Mr. McIntosh. OK.
    Ms. Katzen. And at a meeting in early March--and the 
comment period was to end March 12th--a question was raised by 
one of the agencies, and I am paraphrasing here: Gosh, we have 
this extensive process in which we are going to get 
information, we are going to have questions, and we are going 
to get more information. Should we be filing formal comments?
    And there was a discussion among all of the people at the 
table. There was no decision by fiat or edict or any other 
command and control decisionmaking. The agencies were basically 
saying that, if we are going to have our input in this process, 
why would we file formal comments on the record with a position 
if, over the next several months, we are going to learn and 
evaluate things and maybe change our positions? And it was 
decided within the group as a consensus----
    Mr. McIntosh. Was this the policy or technical level?
    Ms. Katzen. This was the policy level. It was decided at 
that group that it was probably more effective, more efficient, 
for agencies to contribute through the interagency process than 
through formal proceedings on the record.
    And you will recall from your tenure in the executive 
branch, it is unusual for lots of different agencies to file 
formal comments. They have their say in other ways.
    In this instance, it was the consensus of those assembled, 
and at the end someone said: So no one is going to file? And at 
that point it was also clear that no one there could stop 
anyone else from filing if they wanted to.
    So it was clarified, I thought to everyone's understanding, 
those who wanted to file could, those who didn't want to didn't 
have to.
    Mr. McIntosh. That was the answer given to that question at 
the end?
    Ms. Katzen. Right.
    Mr. McIntosh. That no one is going to file. Did somebody 
say, ``That is right,'' or, ``Yes, we have agreed to that''?
    Ms. Katzen. You have gone to a degree of detail of the 
conversation. This was a policy level meeting. There were 
approximately 20 people around the table. People were standing 
up and leaving, so I am not going to time, I am not going to 
file.
    One of the things is interesting: I will tell you there are 
agencies who are supportive of EPA. There is indeed even a 
department that believes that EPA has not been sufficiently 
aggressive and should have proposed much more stringent 
standards. I do not know if that department has filed formal 
comments. That department does come to our weekly meeting.
    There are other departments who are very supportive of the 
approach that EPA is taking. I do not know if they have filed 
comments. In fact, at this point I can't tell you if any 
Federal agency has filed comments in the public proceeding. I 
have never instructed an agency that it is not allowed to file 
in the formal public process.
    Mr. McIntosh. Did any of the agencies participating in that 
particular meeting subsequently file written comments in the 
rulemaking record?
    Ms. Katzen. I don't know the answer to that.
    Mr. McIntosh. Could you find that out and let us know by 
next week? It is not difficult to determine.
    Maybe you know, Mr. Cannon.
    Mr. Cannon. I don't.
    Mr. McIntosh. Do you have a list of who attended at that 
meeting?
    Ms. Katzen. Apparently some did file comments. Agriculture, 
who was present at that meeting, and Defense----
    Mr. McIntosh. OK.
    Ms. Katzen [continuing]. Who was present at that meeting. 
So that some apparently did file.
    Mr. McIntosh. Did file. And could you provide for the 
committee a list of all the agencies that participated in that 
meeting?
    Ms. Katzen. Yes.
    Mr. McIntosh. Do you or anybody on your staff keep notes, 
or is there an official transcript of those?
    Ms. Katzen. No. People do keep notes. People do take notes, 
whether they keep the notes or for what purpose they use the 
notes. But as you see around the table, people have pens and 
they are making notes. There is no official transcript; there 
is no official note-taking. And to the best of my knowledge, in 
a meeting such as that, with comments such as that that were 
being made by the different agencies, what Senator Byrd was 
saying was a memo from some departments, and I don't know which 
it was, which said we are not allowed to do this. I personally 
find it very difficult to believe that anyone interpreted the 
comments that way, but apparently someone did. That is not 
unusual when you have got 20 people sitting around a table 
having a discussion such as we had.
    But what I wanted to give you clearly is the fact that 
there is no orchestrated campaign, there is no authority to gag 
or muscle the agencies, and that our attempt is to get the most 
from them. Our attempt is to get their comments. Our attempt is 
to bring them to the table.
    Mr. McIntosh. Let me explore that for a minute.
    Mr. Sanders. I just wanted to jump in, if I could ask the 
clerk how we are doing in terms of time?
    The Clerk. Time is up.
    Mr. McIntosh. May I ask unanimous consent to pursue this, 
Bernie?
    Mr. Sanders. How much longer do you think you will be?
    Mr. McIntosh. I hope I can wrap it up in 5 minutes. I hope 
not much longer.
    At that meeting, or previously or subsequently to it, was 
there an explanation to the agencies of the different legal 
effects of reviewing and participating in an interagency 
discussion that is not part of the written record in the 
rulemaking versus submitting comments in writing that would be 
part of the rulemaking?
    Ms. Katzen. Yes.
    Mr. McIntosh. Which are the only comments that the 
Administrator is legally required to take into account in 
making her decisions and the only comments that the courts can 
consider when they review that rulemaking?
    Ms. Katzen. The question is a yes to the statement, was 
there an a discussion of it. Our discussion of it is different 
from your statement, and so I would want to comment on that as 
well.
    Mr. McIntosh. OK.
    Ms. Katzen. I believe that I was one of several people, I 
think there was someone from Justice at one point, and there 
may have been someone from EPA--who stressed if there are facts 
upon which a decision is to be based, they must be in the 
record; those facts must be included in the record. So if 
someone had scientific data, if someone has information that 
would be a factual predicate for a finding or conclusion, it 
must be included in the record. It cannot come in through an 
interagency process.
    For that reason, at the technical staff we reminded 
agencies that if you are putting in data, get it in the public 
record. And EPA----
    Mr. McIntosh. That was at a later meeting?
    Ms. Katzen. It was, I believe, at an earlier meeting, at 
that meeting, and at a later meeting as well, because the 
questions would come up from time to time about the process. 
Each of the agencies wanted to participate in this process, and 
each of them thought it was desirable. They wanted to make 
sure, however, that they were complying with the law, and for 
that reason there was an exploration of these issues.
    The qualification I would add is that policy 
considerations, as you know, do not necessarily have to be in 
the record to inform the judgment. Factual information does.
    Mr. McIntosh. As I said, I am very concerned about this. We 
could launch a big investigation, but would you give us a list 
of who participated and any notes that you have available or 
your staff, so that we could get a flavor for that meeting?
    Ms. Katzen. I will tell you, I don't take notes. I chair 
the meeting, so I am sitting there listening most of the time.
    Mr. McIntosh. I could ask you, would you ask all the 
participants to give you their notes, but what I would ask is, 
if you have any available to you or your staff has any notes, 
if you don't mind, any people in the White House.
    One other question in this area, and that is, were there 
any discussions prior to that meeting with other officials in 
the White House or the Vice President's Office about the desire 
to express to the agencies this issue of whether to put 
comments into the rulemaking? I am trying to characterize it in 
a neutral way.
    Ms. Katzen. The conversations that I remember having were 
at the interagency review of the proposed rules stage, so this 
would have been in mid-November or late November--were very 
clear that the agencies had to have a forum, had to have the 
information, had to have the opportunity, and they were looking 
to me to establish that for them.
    Other than that conversation, I can't recall anyone in 
either the Vice President's Office or in even the Chief of 
Staff's Office that had any discussion about whether or not 
agencies were to file comments in the formal record.
    I can understand how you are concerned about this, because 
the rumors and the language that is used is, I think, 
disturbing. But is not true. And for that reason, I would hope 
by this long discourse to allay some of your concerns.
    Mr. McIntosh. I appreciate you going into this with me. 
Real quickly, were there any discussions with Council of 
Economic Advisors? I knew they had some concerns about this 
regulation.
    Ms. Katzen. They did have concerns about the regulations. 
They had certain materials that they had generated, I think a 
lot of which has been submitted to you.
    Indeed, you have seen many of the comments that have been 
generated by all of the Federal agencies and other White House 
offices on this rule. These were included when we produced our 
3,900 pages of material in response to your request.
    I don't recall any specific conversation with CEA on the 
issue of whether they should be on the record or part of the 
interagency process. I don't know that CEA has ever filed 
comments on the record. They have always participated in the 
interagency process. So I don't know that the issue would have 
come up.
    Mr. McIntosh. OK. Good. Let me ask you if you could get us 
that list, and if you have any further recollections about this 
issue, go ahead and elaborate on them at that time to us.
    I have no further questions. Everybody else seems to have 
left.
    Mr. Barr, we sort of implied to Bernie we were going to 
wrap up with my questioning. Do you have any questions, and 
could we submit them in writing?
    Mr. Barr. Sure. Certainly. Whatever the chairman pleases.
    Mr. McIntosh. I think in trying to make sure we maintain 
this good working relationship with the minority, we will do 
that, because this is a dicey issue where we have very 
fundamental differences on substance. But if we can keep our 
process going well, it will work to everybody's advantage.
    Let me say thank you to each of the participants on this 
panel for coming today, for waiting around as we finish this 
up. I appreciate it. We will be continuing to look into this 
issue. Thank you.
    The hearing is adjourned. The committee stands adjourned.
    [Whereupon, at 2:30 PM, the subcommittee was adjourned.]

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