[Senate Hearing 110-1261]
[From the U.S. Government Publishing Office]





                                                       S. Hrg. 110-1261
 
                    OVERSIGHT HEARING ON SCIENCE AND
                   ENVIRONMENTAL REGULATORY DECISIONS

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

                                HEARING

                               BEFORE THE

                SUBCOMMITTEE ON PUBLIC SECTOR SOLUTIONS
                   TO GLOBAL WARMING, OVERSIGHT, AND
                      CHILDREN'S HEALTH PROTECTION

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 7, 2008

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
  
  
  
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director
                              ----------                              

 Subcommittee on Public Sector Solutions to Global Warming, Oversight, 
                    and Childrens Health Protection

                  BARBARA BOXER, New Jersey, Chairman

JOSEPH LIEBERMAN, Connecticut        LAMAR ALEXANDER, Tennessee
THOMAS R. CARPER, Delaware           LARRY CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             CHRISTOPHER S. BOND, Missouri
SHELDON WHITEHOUSE, Rhode Island     JOHN BARRASSO, Wyoming
                                     JAMES M. INHOFE, Oklahoma, (ex 
                                     officio)
                                     
                            
                                     
                                                                  
                                    
                                     
                                     
                                     
                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 7, 2008
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Alexander, Hon. Lamar, U.S. Senator from the State of Tennessee..     3
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     5
Inhofe, James M., U.S. Senator from the State of Oklahoma........     7
Baucus, Hon. Max, U.S. Senator from the State of Montana.........   145

                               WITNESSES

Gray, Hon. George, Assistant Administrator for the Office of 
  Research and Development, U.S. Environmental Protection Agency.    10
    Prepared statement...........................................    12
Grifo, Francesca, Ph.D., Senior Scientist, Director, Scientific 
  Integrity Program, Union of Concerned Scientists...............    40
    Prepared statement...........................................    42
Responses to additional questions from:
    Senator Boxer................................................    70
    Senator Inhofe...............................................    72
Gilman, Paul, Ph.D., Chief Sustainability Officer, Covanta Energy    83
Michaels, David, Ph.D., MPH, Research Professor and Associate 
  Chairman, Department of Environmental and Occupational Health, 
  The George Washington University...............................    84
Responses to additional questions from:
    Senator Boxer................................................    87
    Senator Whitehouse...........................................    89
Thurston, George D., SC.D., Professor of Environmental Medicine, 
  New York University School of Medicine, Nelson Institute of 
  Environmental Medicine.........................................    93
    Prepared statement...........................................    95
Responses to additional questions from Senator Boxer.............   100
Response to an additional question from Senator Inhofe...........   102
Roger O. McClellan, Advisor, Toxicology and Human Health Risk 
  Analysis, Albuquerque, New Mexico..............................   103
    Prepared statement...........................................   105
    Responses to additional questions from Senator Inhofe........   117
Rhomberg, Lorenz R., Ph.D., Principal, Gradient Corporation......   119
    Prepared statement...........................................   121
Balbus, John M., M.D., MPH, Chief Health Scientist, Environmental 
  Defense Fund...................................................   130
    Prepared statement...........................................   133

                          ADDITIONAL MATERIAL

Statements:
    American Lung Association....................................   161
    American Chemistry Council...................................   167


  OVERSIGHT HEARING ON SCIENCE AND ENVIRONMENTAL REGULATORY DECISIONS

                              ----------                              


                         WEDNESDAY, MAY 7, 2008

                               U.S. Senate,
         Committee on Environment and Public Works,
Subcommittee on Public Sector Solutions to Global Warming, 
                Oversight, and Childrens Health Protection,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:30 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the full committee) presiding.
    Present: Senators Boxer, Inhofe, Baucus, Klobuchar, 
Whitehouse, Alexander

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. The Committee will come to order.
    Today we will discuss the scientific integrity of the 
decision of the U.S. Environmental Protection Agency under the 
Bush administration. EPA was created by President Nixon to be 
an independent agency designed to protect our families, our 
children and our natural environment from harm.
    Unfortunately, what we will hear today is that the Bush 
administration is discarding the best available science and 
instead, is seeking the advice of special interests who would 
benefit from weaker environmental standards.
    A clear pattern has emerged at EPA. When it comes to who 
wins and who loses, time and time again, the polluting special 
interests come out on top at the expense of the health of the 
American people. They are forcing politics into the entire 
scientific process from the very beginning of the EPA's 
supposedly independent system for assessing health and 
environmental risks. We know this because the GAO report is 
clear. The GAO system has told us that the EPA is 
institutionalizing a system where scientists are thrown to the 
back of the room and special interests are invited to the 
table. That is during a process that is supposed to be pristine 
and is supposed to only consider what the impact is to the 
health of our people.
    EPA has a special Children's Health Advisory Committee, 
because we all know that children are particularly vulnerable 
to the toxic effects of pollution. This important advice has 
been repeatedly ignored. Yesterday at our hearing on 
perchlorate and TCE, we put a number of documents into the 
record showing the deep concern of this Children's Health 
Advisory Committee. For example, the agency refused to follow 
that committee's proposal to better protect children from smog 
pollution, toxic fine soot pollution, lead contamination in the 
air, and again, as I mentioned, perchlorate contamination of 
tap water, all of which are especially dangerous to children.
    We must carefully scrutinize this unfortunate pattern, 
because it is dangerous, it has dangerous implications for 
children and families, and it must not be allowed to continue.
    Let me recount just a few more examples of this 
Administration's rejection of scientific advice. There were 
early signs of a willingness to put politics before public 
health. Soon after the President took office, he suspended the 
Clinton drinking water standard for arsenic, which was 
supported by strong evidence from the National Academy of 
Sciences. We also learned early on that White House officials 
were deleting and editing scientific material in EPA reports on 
global warming.
    More recently, on the eve of a hearing in this Committee on 
the public health threats posed by global warming, the White 
House deleted page after page of scientific findings from 
testimony that was about to be delivered to us by the head of 
the CDC. And they have still refused to provide the documents 
related to this incident as requested by this Committee.
    EPA Administrator Johnson also recently ignored his own 
technical staff's advice to grant California a waiver under the 
Clean Air Act to regulate global warming pollution from 
vehicles. This would affect, is affecting up to 19 states. This 
advice was based on scientific information about the health and 
environmental threats posed by global warming. But in its 
place, the Administration echoed requests from the automobile 
industry in its final decision document.
    We also see this problem in EPA's clean air program. After 
30 years of closely working with its independent clean air 
scientific advisors, in the last few years EPA has repeatedly 
ignored its Clean Air Science Advisory Committee. For example, 
over 80 million people live in areas with unhealthy levels of 
toxic soot pollution, which can damage the heart and lungs and 
cause premature death.
    Instead, the EPA Administrator ignored the scientific 
recommendations from the Clean Air Science Advisory Committee, 
CASAC, and left that standard unchanged. The scientific 
advisors found that ``there is clear and convincing evidence 
that significant adverse human health effects occur'' under the 
standard. Imagine: they set a standard and the scientists said 
there is clear and convincing evidence significant adverse 
human health effects occurred. What is the point of the EPA?
    EPA's recent action on ozone or smog was similar. Over 90 
million people live in areas with unhealthy levels of smog 
pollution, which damages the lungs and can lead to premature 
death. Again, EPA ignored its scientific advisors' unanimous 
recommendation to set the level as low as 60 but no higher than 
70 parts per billion of ozone. EPA set the standard at 75 parts 
per billion, again ignoring the scientists.
    The Government Accountability Office testified before this 
Committee last week, and I reference this early, that EPA's new 
policy for developing the risk assessments used to set levels 
safe to people--let me repeat that. The GAO testified before 
this Committee last week on EPA's new policy for developing the 
risk assessments used to set safe levels of exposure to toxic 
chemicals. GAO found that the policy increases delays, 
undercuts EPA's scientific credibility by keeping interagency 
comments secret--this is a new thing. Not only are they doing 
harm, but they are keeping the meetings where they make these 
decisions secret. And it gives the White House and polluting 
agencies like DOD a privileged seat at the table, by extension, 
DOD contractors have a seat at the table, when scientific 
decisions are being made about toxic chemicals.
    In the last few days, a senior EPA appointee, Mary Gade, 
told the Chicago Tribune she was forced to resign for 
aggressively pursuing the cleanup of a dioxin-contaminated site 
in Michigan. My colleague Senator Whitehouse, who I will give 
the gavel to shortly, has taken the lead in getting to the 
bottom of that issue. I look forward to his remarks.
    The Bush administration is failing to meet its mandate to 
protect public health as an independent, science-driven 
institution. The American people are paying the price with 
their health. This is an unacceptable pattern, and it must be 
reversed.
    And since I went 7 minutes, Senator Alexander, I will give 
you 7 minutes. I am now going to turn the gavel over to Senator 
Whitehouse.

          OPENING STATEMENT OF HON. LAMAR ALEXANDER, 
            U.S. SENATOR FROM THE STATE OF TENNESSEE

    Senator Alexander. Thank you, Madam Chairman. I don't think 
I will go 7 minutes, but I thank you for your courtesy.
    I look forward to the testimony today and to discussing how 
science informs public policy. I think maybe that is the most 
important thing I could say in my 7 minutes, is that scientists 
are to inform public policy under our system, not to make 
public policy. The Chairman mentioned someone rejecting staff's 
advice. I reject my staff's advice every day. I think I know 
more about some things than they do. And I was elected by the 
people. I imagine the Chairman and Senator Whitehouse do the 
same.
    So I think one of the most important things for us to do 
here today is discuss what is the role of science in making 
public policy. One definition of that, by Professor Jonathan 
Adler of Case Western Reserve University of Law, he wrote in an 
article called Evaluating Sciences, ``Policy differences are 
generally not the result of a dearth of scientific information 
or a lack of independent analysis. Rather, they are usually 
rooted in disagreements about fundamental values.''
    So if it is simply a matter of appointed officials or 
Senators listening to their science advisors and saying, I am 
taking other considerations into account and I am coming to a 
different conclusion than you might if you were elected or if 
you were appointed, that is one thing. Another thing might be 
to look at the advice of science advisors and see if it is made 
public enough, whether all of us can see what a scientific 
advisor might have said and then see the reasons why the 
policymaker might have come to a different conclusion. That 
might help us, in a democracy, to understand and make sure that 
science is informing the making of public policy.
    It is always interesting to me how much President Lincoln 
contributed to our society. I am reminded of a new thing every 
day. It was in 1863 that under the Lincoln presidency, the 
National Academy of Sciences was founded. They are independent, 
they have resources from the Federal Government. Their job was 
to advise us. They don't make the policy, they advise us. I 
worked with Senator Bingaman and many others on our America 
COMPETES Act, we asked for their advice. Then we made the 
decision.
    Thinking about mercury, I think as the Administrator knows, 
I have been very strong on clean air. I come from an area where 
we have the most polluted national park, the Great Smokies in 
Knoxville, near my home town, which is at the top of the asthma 
list. So I want mercury and nitrogen and sulfur cleaned.
    But let's take mercury. The question comes, do we have the 
ability, is it technologically possible to take 70 percent of 
the mercury out of the air of coal-fired power plants? Or 
should it be 90? The Administration decided 70. I think it 
ought to be 90. Should it be a cap and trade program? The 
Administration decided yes. I decided no, because the mercury, 
in my view, goes up from the power plants and comes down 
nearby.
    Do I think that is an example of corruption in the EPA? No. 
I think the Administrator came to a different conclusion than I 
did based upon the available scientific technology. So I think 
it is perfectly fine for us to have a spirited argument about 
whether the mercury standard ought to be 70 or 90, or whether 
there ought to be a cap and trade or not. But I don't think 
that is any occasion to accuse the Administration and the EPA 
Director of some corrupt attitude or listening to improper 
people. That happens not just on the right, but sometimes on 
the left.
    I remember how shocked I was when Camilla Benbo, the dean 
of the Peabody School of Vanderbilt, one of the most 
distinguished colleges of education and one of the most 
distinguished deans, had her nomination by the President held 
up because she had written an article one time about how gifted 
girls learn differently than gifted boys. That was the science, 
but some people didn't want to hear it, so they weren't even 
going to confirm her and let her be on the National Scientific 
Board.
    Or many of us believe that we should be doing, with $4 
gasoline, we should give Virginia the opportunity to drill 
offshore. Science has shown that there may be more seepage from 
the ocean floor than there is from drilling for oil and gas 
offshore. But one Senator may say, I don't want to see that or 
I don't want that to happen, another Senator may say, I do want 
it to happen. That doesn't mean either of us has a bad 
motivation, it means we simply have a different point of view.
    Or the same with nuclear power. Science shows that it is 
clean power in terms of the four pollutants, and it produces 70 
percent of our clean energy at a time when we are concerned 
about global warming. But many policymakers and elected 
officials look at all the facts and they take into other 
accounts. Science gives them this amount of information, but 
they say, but then there is proliferation and then there is the 
question of waste, and then there is the question of safety. 
And weighing all that, they come to a different conclusion.
    So my hope today is to listen, listen very carefully. If 
there are examples where scientific advice is being mis-
represented, I think that is unfortunate in a democratic 
society and we ought to do our best to change that and put the 
spotlight on it. But at the same time, I think we ought to make 
sure that we keep in mind the role of the scientist and the 
role of the policymakers. We don't elect the scientists to make 
the decision. We established the National Academies and we 
appoint scientific advisory committees. And let me be specific 
about the EPA's scientific advisory committee. Section 109 of 
the Clean Air Act directs the Administrator to appoint these 
committees, such as the ones who recommended the rules on 
ozone. And their role, it says, is advisory. So it is the job 
of the Administrator to take all things into account.
    The EPA Administrator establishes the National Ambient Air 
Quality Standard based upon his or her judgment. Could be bad 
judgment, could be good judgment. But the science is there to 
inform the judgment, not to make the judgment.
    Finally, Section 109 of the Clean Air Act directs the 
Administrator to establish the National Primary Ambient Air 
Quality ``in the judgment of the Administrator.'' So I might 
quarrel with the Administrator about the mercury standard, but 
I am not going to accuse the Administrator of bad judgment, or 
different judgment, but if he ignores the scientists, that is 
his job. It is his job to consider it and his job to tell us 
about it if we ask about it, if we want to know why he chose to 
override judgments of scientists working with him.
    Another thing I will be listening for, and I would be 
interested to know, is who are the scientists?
    Senator Boxer. You have gone over.
    Senator Alexander. Then I will wind down. Who are the 
scientists? A lot of Senators think we are scientists, but we 
are not really. So there are scientists and there are 
scientists.
    Madam Chairman, thank you for your courtesy on the ozone 
standard. We can talk about that more. I saw what the 
scientific community said and I want the air cleaner in east 
Tennessee. I also heard from the county judges who want to make 
sure that we can bring the auto plants, too.
    So weighing the scientific recommendation with the requests 
of locally elected officials who are weighing that I think is a 
proper judgment. I welcome the hearing, and I look forward to 
it, and I thank the Chairman for her courtesy in giving me so 
much time.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. If I could follow my distinguished 
colleague from Tennessee's thoughts for a moment, I think there 
are important distinctions between the policymaking function of 
an administrative agency and the science development function 
of a regulatory agency. Both potentially lend themselves to 
abuse. And if it should turn out that in the policymaking 
function, the application of the policy judgment seems over and 
over and over and over to the point of inevitability to come 
down on the side of industry and never on the side of 
environment and public health, it raises a significant question 
about whether that policymaking function is being done 
legitimately, honorably, with integrity and on the merits, or 
whether somebody has managed to get a thumb onto the scale of 
the administrative process.
    But I don't think that is so much the concern that we are 
addressing today. The concern we are trying to address here 
today is the question of whether the foundation of fact upon 
which those policy determinations get made is being itself 
polluted within the Environmental Protection Agency. Clearly, 
if one's intention is to put a thumb on the scales in favor of 
industry and in favor of polluters, rather than in favor of the 
environment and in favor of public health protection, it is a 
little bit hard to come out and do that directly. It is much 
easier if you can get into the science itself and pollute the 
very basis of the discussion, so that you give yourself cover 
down the road.
    The question I think we face today is whether the Bush 
Environmental Protection Agency, under its current 
Administrator, Stephen Johnson, is fulfilling, in either 
dimension, really, its core long-standing mission to protect 
our environment and our health, without regard to politics or 
special interests and without fear or favor. The increasing 
weight of the evidence suggests that it is not.
    We heard just recently of the forced resignation of Mary 
Gade as EPA's regional administrator for the Great Lakes 
Region, saying that Administrator Johnson's top lieutenants 
stripped her of her powers and told her to quit or be fired 
because of her aggressive pursuit of Dow Chemical in connection 
with dioxin contamination in waters near Lake Michigan. We 
don't know yet what the full story is on this, and I am going 
to withhold judgment, but certainly that is an alarming signal 
that we have seen. And it smacks of similar activities we have 
seen recently in the Department of Justice. I am on the 
Judiciary Committee, and certainly there are similarities 
between the eight U.S. Attorneys fired by the White House who 
by all accounts were well-regarded and experienced in their 
fields, just as Ms. Gade appears to be well-regarded and 
experienced in her field. They had received strong performance 
evaluations in positions that by all accounts are ordinarily 
given extremely wide latitude. Certainly they were when I was a 
U.S. Attorney. And Ms. Gade similarly has received strong 
performance evaluations, evidently, and was operating in a 
position where she has wide latitude. And suddenly, poof, a 
forced resignation in the context of a dispute with a major 
industry participant.
    Chairman Boxer has recently held hearings that have 
indicated considerable concern about the pollution of the 
science at the EPA. The recent report from the Union of 
Concerned Scientists, we will hear from today, and countless 
previous cases raise the same concern, and that is that the 
Environmental Protection Agency has been co-opted by the 
Administration to serve special interests and has twisted the 
science in order to achieve the results that they wish to 
achieve.
    Under fire like this, I think the EPA needs true leadership 
that will address the criticisms head-on and will give EPA 
employees and all Americans confidence that the important 
mission of this agency is being accomplished. We don't appear 
to have that right now. In fact, Administrator Johnson has not 
even deigned to appear before us today. It is not the first 
time he has declined the opportunity to testify and the last 
few times that he did appear, he has been significantly less 
than forthcoming. His answers have been evasive and 
unresponsive, as those of Dr. Gonzales. I have seen him 
repeating answers that sounded, frankly, lawyer-crafted to 
contain more strategy than truth. I suppose that were he here 
today, we could expect no different. Nevertheless, it would 
have been nice if he had showed up.
    We have heard very, very serious criticisms leveled at his 
agency. EPA scientists, according to the Union of Concerned 
Scientists, just last month, faced both suppression and 
distortion of scientific findings underlying the EPA's 
decision. Suppression and distortion, to the detriment of both 
science in general and the health of our Nation. Yesterday, we 
heard testimony from Richard Wiles about unprecedented levels 
of industry influence in every scientific panel and committee 
at the NIH and the EPA, an overall corruption of science that 
we have seen in this Administration. And Dr. Goldman just a few 
days earlier, last week, testified that the IRIS interagency 
process provides a back door through which industry groups can 
exert pressure to modify EPA's conclusions or to subject the 
process to endless delays that undermines the public's trust in 
the EPA. And this is all just in the last week or two.
    Against that fire, and against what I think is legitimate 
public concern, Mr. Johnson has responded by deriding his 
critics as yammering critics. I noticed that in Mr. Gray's 
testimony, we will talk a little bit more further, he doesn't 
even mention these concerns. It is all just hunky-dory over at 
EPA, everybody is just doing a lovely job.
    Madam Chair, I hope that this hearing will give us a 
clearer sense of exactly what is going on at EPA. I will close 
by saying that I come from a public service family. My father 
and grandfather were foreign service officers. I have seen 
first-hand in their lives the importance of people stepping 
into public service and taking on the duty of integrity, of 
honesty, and of doing your job on the merits, rather than 
allowing yourself to be co-opted by special interests. It is a 
core value, and I think it is a core value that EPA at present 
needs to convince the American public that it still holds.
    Thank you. Senator Inhofe.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Well, for an opposing view, let me get on 
the record in saying that I don't believe that you or 
Administrator Johnson or any of the rest of them are co-opts by 
special interests. I think it is perfectly understandable since 
it is a science hearing today that Administrator Johnson would 
send a scientists. So that doesn't bother me a bit.
    But I do think that one of our primarily responsibilities 
in this Committee is to ensure that regulatory decisions are 
based on sound science. That is something I have believed is 
important for a long, long period of time. Too often the 
environmental policy decisions that are made by EPA and other 
science-based agencies are driven by political or personal 
agendas. I think we all know that. You see these in the types 
of research that gets done and the types of grants that get 
awarded.
    It is my hope that this hearing will help shed some light 
on how science is used by policymakers and that we can arrive 
at some concrete suggestions for making the process better. I 
believe that there are some success stories that need to be 
discussed today, generally speaking. Addressing lead exposure 
is one of the great American success stories, according to the 
data from the CDC and others, the immediate concentration of 
lead in the blood of children 5 years old and under has 
declined by 89 percent between 1976 and 1980.
    Now, this is particularly of interest to me, Madam 
Chairman, because my area of Tar Creek, and you remember, when 
I became Chairman, I said, one thing we are going to do is what 
we failed to do before and had not been able to do for 30 
years, is cleanup the most devastating Superfund sites. We had 
the highest level in the Nation of blood lead level in our kids 
in Northern Oklahoma.
    Another example is EPA's recent changes to the Integrated 
Risk Information System. These changes allow the public to be 
involved in the risk assessment process sooner. Now, 
environmental groups, scientists and the regulated community 
can provide data, research and comments on risk assessments 
before they are finalized. Additionally, there is now a 
concerted outreach effort to members of the scientific 
community and more rigorous peer review. I understand that 
there are those in this Committee who believe that this is 
somehow stifling the EPA scientists. But I don't understand how 
someone can stand up and say they support the public right to 
know, the scientific community participation and transparency 
when an agency makes regulatory decisions, but not support 
those very same principles when it comes to risk assessment.
    More science means better decisions and more defensible 
decisions. Today's hearing will also address case studies of 
the importance of science in regulatory decisionmaking with a 
focus on clean air issues and children's health. However, in 
the rush to try to dissect these individual cases and lay blame 
on whether science was adhered to properly or not, the bigger 
picture message gets lost. Our air is cleaner than it ever has 
been before. This is something that people don't understand. 
Since the Clean Air Amendments passed, it is. It is a real 
success story. Our air is actually cleaner, and nobody talks 
about that. The levels of the six criteria pollutants are 
continuing to decline. Air toxics monitoring is expanding and 
reductions of benzene, acid rain and haze are contributing to 
significant improvements in air quality and environmental 
health.
    However, despite these improvements in the last 2 years, 
EPA has significantly strengthened or proposed to strengthen 
three of the five criteria pollutants, all driven by citizens' 
suits and court-ordered deadlines. And they have once again 
been attacked by stakeholders on both sides for doing so.
    Reduction levels are now being debated so intensely and at 
such marginal levels, one must stop and consider if there ever 
will be a level requisite to protect the public health with an 
adequate margin of safety that will satisfy the critics. 
Instead, we are left with a brand new web of economic burdens 
that we are passing on to the States, many of which are just 
now beginning to make real improvements from the previous 
strengthening. What we have are more environmental regulations 
hindering environmental progress.
    And I am pleased to recognize Dr. McClellan, the Past Chair 
of the Clean Air Science Advisory Committee, who has detailed 
the many flaws and questionable approaches taken in 
justification of the recent final ozone rule, as well as the 
2006 PM rule and others. I look forward to his comments on how 
the science panel often no longer offers its judgment on the 
scientific integrity of the process, but its policy opinions. 
So I thank you for holding this hearing today and look forward 
to our witnesses and certainly beginning with Dr. Gray.
    [The prepared statement of Senator Inhofe follows:]

           Statement of Hon. James M. Inhofe , U.S. Senator 
                       from the State of Oklahoma

    Good morning. Today's hearing will focus on science and how 
it is used in environmental regulatory decisions. I have always 
believed that one of the primary responsibilities of this 
committee is to ensure that regulatory decisions are based on 
sound science. Too often the environmental policy decisions 
made by EPA and other science-based agencies are driven by 
political or personal agendas. You see this in types of 
research that gets funded or the types of grants that get 
awarded. It is my hope that this hearing will help shed some 
light on how science is used by policymakers and that we can 
arrive at some concrete suggestions for making the process 
better.
    I believe that there are some success stories that need to 
be discussed here today. Generally speaking, addressing lead 
exposure is one of the great American success stories. 
According to data from the CDC and others, the median 
concentration of lead in the blood of children 5 years old and 
under has declined 89 percent since the period of 1976-1980, to 
1.6 micrograms per deciliter in 2003-2004. Another example is 
EPA's recent changes to the Integrated Risk Information System. 
These changes allow the public to be involved in the risk 
assessment process sooner. Now, environmental groups, 
scientists, and the regulated community can provide data, 
research, and comments on risk assessments before they are 
finalized. Additionally, there is now a concerted outreach 
effort to members of the scientific community and more rigorous 
peer review. I understand that there are those on this 
committee who believe this is somehow stifling EPA scientists 
or putting politics into the scientific process. But I don't 
understand how someone can stand up and say they support public 
right-to-know, scientific community participation, and 
transparency when the Agency makes regulatory decisions but not 
support those very same principles when it comes to risk 
assessment. More science means better decisions--more 
defensible decisions.
    Today's hearing will also address case studies of the 
importance of science in regulatory decisionmaking, with a 
focus on clean air issues and children's health. However, in 
the rush to try and dissect these individual cases and lay 
blame on whether science was adhered to properly or not, the 
bigger picture message gets lost. Our air is cleaner than it 
ever has been before; the levels of the six criteria pollutants 
are continuing to decline, air toxics monitoring is expanding 
and reductions in benzene, acid rain, and haze are contributing 
to significant improvements in air quality and environmental 
health. However, despite these improvements, in the last 2 
years, EPA has significantly strengthened or proposed to 
strengthen 3 of the 6 criteria pollutants, all driven by 
citizen suits and court ordered deadlines, and the agency once 
again has been attacked by stakeholders on both sides for doing 
so. Reduction levels are now being debated so intensely and at 
such marginal levels that one must stop and consider if there 
ever will be a level requisite to protect the public health 
with an adequate margin of safety that will satisfy the 
critics. Instead, we are left with a brand new web of economic 
burdens that we are passing on to the states, many of which are 
just now beginning to make real improvements from the previous 
strengthening. What we have are more environmental regulations 
hindering environmental progress.
    I am pleased to recognize Dr. McClellan, a past Chair of 
the Clean Air Science Advisory Committee, who has detailed the 
many flaws and questionable approaches taken in justification 
of the recent final ozone rule, as well as the 2006 PM rule and 
others. I look forward to his comments on how the science panel 
often no longer offers its judgment of the scientific integrity 
of the process, but its policy opinions.
    Thank you, Madam Chairman, and I look forward to hearing 
from our witnesses this morning.
    Senator Whitehouse. [Presiding] Dr. Gray, we are ready to 
hear your testimony. We have your written testimony. We would 
ask that you confine your oral remarks to 7 minutes, so that we 
all have a chance to have a discussion at the conclusion of 
them. Because you are the solitary witness on this panel, I 
will give you 7 minutes. Future witnesses in panel form will 
get 5 minutes each.
    Please proceed.

STATEMENT OF HON. GEORGE GRAY, ASSISTANT ADMINISTRATOR FOR THE 
    OFFICE OF RESEARCH AND DEVELOPMENT, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Gray. Good morning. I thank you for the invitation to 
appear before you today. My name is Dr. George Gray. I am the 
Assistant Administrator for the Office of Research and 
Development with the Environmental Protection Agency. I also 
serve as the agency's science advisor.
    I do want to thank you for the opportunity to discuss 
science, science policy and decisionmaking at the EPA, as well 
as our ongoing efforts to increase and strengthen the 
scientific integrity of all of the decisions made at the 
agency.
    As the Assistant Administrator for the Office of Research 
and Development, the EPA's key scientific body, I cannot 
emphasize enough what a privilege it is to work with so many 
world-class scientists. Overall, more than 20 percent of our 
scientists' and grantees' publications are considered highly 
cited. Over 30 percent of them are published in high impact 
journals. Our scientists are active in many prestigious 
scientific organizations, where they hold positions of 
importance, including the presidency of organizations like the 
American Public Health Association, the Ecological Society of 
America, the Society of Toxicology and the Society for Risk 
Analysis, to name just a few. EPA's scientists are contributing 
to every part of environmental science.
    In recent years, we have developed cutting edge, award-
winning tools and strategies to protect public health, to test 
chemical effects and interactions and to develop ground-
breaking reports on many issues, including the effects of 
climate change. So research that is conducted by our scientists 
and grantees provides scientific and technical information to 
support EPA's mission to protect human health and the 
environment.
    During the past several years, EPA has taken a number of 
steps to maintain a program of sound scientific research to 
inform agency decisions without allowing regulatory objectives 
to guide or to distort our scientific findings or analyses. 
These steps include open, transparent and peer-reviewed 
research planing, competitively awarded extramural grants, 
independent and external peer review of our scientific studies, 
publications and analyses, and rigorous evaluations of EPA's 
research laboratories and centers. Science informs and provides 
a basis for EPA's regulatory decisions.
    At the same time, it is very important to recognize that 
what often appears to be a purely scientific question or an 
assessment generally involves both science and science policy 
considerations. Similar to other Federal agencies that are 
required to produce both scientific assessments and make 
regulatory decisions, EPA views the relationship between 
science, science policy and decisionmaking as a continuum. To 
start, science is conducted by individuals or teams working in 
our laboratories, out in the field or in academic institutions 
across the Country. Their work is reviewed by subject matter 
experts in accordance with EPA's highly regarded peer review 
process and our information quality guidelines. These 
scientists are encouraged to publish and otherwise communicate 
their findings. Our scientists and grantees publish hundreds 
and hundreds of studies every year.
    Science policy is also an integral aspect of the science to 
decisionmaking continuum. Because the scientific method 
encourages critical thinking and frankly, professional 
disagreement, it does not often lend itself to a bright line 
that decisionmakers can use as a reference point. By their very 
nature, scientific studies involve varying degrees of 
uncertainty. So there is rarely a best answer that we can use 
in decisionmaking.
    Therefore, we rely on science policy processes when we 
synthesize and assess a range of scientific opinions and data 
points. These science policy decisions may involve filling in 
knowledge gaps with default assumptions, using weight of the 
evidence approaches to make scientific inferences or choices. 
The science policy work draws on expert insights from multiple 
scientific disciplines and is further strengthened by agency, 
interagency and public review.
    Decisionmaking is the third aspect of the continuum. 
Science informs and guides our regulatory decisions, but it 
cannot be the only factor in formulating national policy. 
Technical feasibility, local autonomy versus Federal control, 
justice, equity and implementation costs are among the 
considerations that need to be factored into EPA's decisions 
when that is appropriate under the statutes. These other 
considerations also affect our quality of life and well-being.
    To ensure that we have made good choices to achieve our 
mission, we use scientific and technical means to monitor the 
effectiveness of agency decisions, and we update those 
decisions as appropriate.
    In conclusion, EPA has a proud history of producing science 
that has informed decisions to protect human health and the 
environment. We are committed to using the best available 
science and to constantly evaluating our science policy choices 
to achieve our strategic goals and fulfill our mission. From 
the lab bench to the Administrator's desk, we follow a science 
to decisionmaking continuum, in common with other Federal 
agencies that rely on both science and science policy 
considerations in decisionmaking.
    Thank you to the members of the Committee for this 
opportunity to describe EPA's critical scientific work. I look 
forward to answering any questions that you may have.
    [The prepared statement of Mr. Gray follows:]
    
   
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    
    Senator Whitehouse. Thank you, Dr. Gray.
    If what you say in your testimony is true, why is it that 
889 scientists answered the Union of Concerned Scientists' 
study and said that they had personally experienced at least 
one incident of political interference in their work during the 
past 5 years? Eight hundred and eighty-nine is not a fluke. 
That is a lot of people.
    Mr. Gray. I think the first thing we have to do here is be 
careful about those numbers. You are right, that is a large 
number of responses. But we have to recall that this report 
provides useful information, it is based on individual opinions 
and anecdotes that really are not a statistically appropriate 
view of EPA, as is acknowledged in that report.
    But I will say that even that number of responses----
    Senator Whitehouse. Setting aside the statistics, or 
percentages or any conclusions you might draw, just the raw 
data point of 889 scientists who work for your organization who 
say that their work has been interfered with politically----
    Mr. Gray. I will say that 889 is a number that is 
unacceptable to me as the head of the agency's Science and 
Technology Office and as the agency's science advisor.
    Senator Whitehouse. Why is it that your testimony doesn't 
reference this in any way? And it is not just the Union of 
Concerned Scientists. We had, in the last two hearings, 
enormous criticism about the way in which the science has been 
manipulated at EPA and the way in which folks like OMB have 
been stuffed into scientific calculations. Even from the very 
get-go in the IRIS process of deciding what chemicals to even 
look at. And then they get the last bite at the apple before it 
comes out.
    It strikes me that these are fairly serious people who are 
raising this challenge. It is a very frequent and commonly made 
challenge. We are hearing it over and over and over again from 
different quarters. There appears to be significant support for 
these concerns, when you actually look behind them and look at 
the data, look at what happened and look at the process.
    And yet you act as if none of this was going on. And the 
Administrator says there is nothing to this but yammering 
critics. Is that really the EPA's position about the public 
concern about the integrity of its science, there is nothing 
going on here but yammering critics?
    Mr. Gray. It is important to recognize that this agency 
relies upon the best available science in making its decisions. 
In making those decisions, it is important to recognize also 
that science does not give us a single or precise answer. We 
take scientific information, we combine it with our science 
policy judgments and choices and that leads ultimately to a 
decision. What is very important to me and something we are 
working very hard on that will address some of these concerns 
is that we are very transparent in the way that we do things. 
We want people to understand how it is that we arrive at a 
decision, what are the choices that we have made, so that we 
can have scientific input. We have a very rigorous peer review 
process that looks at the way in which we have used our 
science. We will have scientific input about the choices, about 
the data, about the information that we have used that can 
ultimately lead to strong decisions by this agency.
    Senator Whitehouse. How are the secret meetings we have 
just heard about this week with OMB, with your science 
advisors, how does that jive with your claim that this is done 
transparently? What could be less transparent than a secret 
meeting with OMB?
    Mr. Gray. Transparency is key to the way that we do our 
assessments. It has always been the case that discussions that 
we have within our agency about science and science policy and 
that we have with the rest of the Federal family about science 
and science policy are kept deliberative to help encourage a 
free and frank exchange when those scientists are discussing 
things.
    But the important thing to remember is at the end, in that 
IRIS process----
    Senator Whitehouse. Is it your----
    Mr. Gray [continuing].--strong peer review that says that 
that assessment must pass. There is not room for monkey 
business, there is not room for shenanigans when the outside, 
independent scientists are reviewing our work.
    Senator Whitehouse. Is it your testimony that the input 
from OMB in these secret meetings is limited to purely 
scientific discussion? And if so, could you compare for me the 
qualifications of, say, chemists within OMB with the chemists 
involved in making scientific conclusions for EPA?
    Mr. Gray. As I discussed in my testimony, the development 
of scientific information in EPA, and IRIS assessments are a 
very clear example of this, include not only scientific 
considerations but science policy considerations. Those are 
some of the discussions that happen within our agency. Those 
are discussions that happen with the other agencies and they 
are part of moving the scientific process forward.
    But at the end, again, the decisions we make are 
transparently described and reviewed by independent, outside 
scientists.
    Senator Whitehouse. My time has expired, so I will yield to 
the Senator from Tennessee. But I do want to put into the 
record, we just heard the other day from the GAO, which said 
that the OMB interagency reviews lack transparency. 
Transparency is especially important, because agencies 
providing input include those that may be affected by the 
assessments should they lead to regulatory or other actions.
    So you seem to have a bit of a disagreement with other 
parts of Government.
    Senator Alexander.
    Senator Alexander. Thank you. Thank you, Mr. Chairman.
    Mr. Gray, how many scientists work at the EPA or are 
employed by the EPA?
    Mr. Gray. We have scientists not only in my office----
    Senator Alexander. The number.
    Mr. Gray. It is estimated to be somewhere right around 
7,000 scientists.
    Senator Alexander. Around 7,000. All right. Let's take an 
example. The recent ozone decision that was made, how many of 
these scientists would be formally involved in that 
decisionmaking process, roughly?
    Mr. Gray. Throughout the agency, multiple tens, up to a 
hundred or even more. In fact, if we look at the scientific 
work that forms the basis of our assessments, it could be even 
larger.
    Senator Alexander. So maybe 100 or 200 out of several 
thousand?
    Mr. Gray. Correct.
    Senator Alexander. And the scientific advisory committee, 
according to law, made a recommendation to the Administrator 
which was only advisory, is that correct, about ozone?
    Mr. Gray. Yes, that is what is required under the Clean Air 
Act.
    Senator Alexander. And there might be a couple of hundred 
scientists, roughly speaking, involved in that. The 
recommendation was that the ozone standard should go down to 
between .06 and .07, is that right?
    Mr. Gray. That is correct.
    Senator Alexander. And the Administrator decided that it 
ought to be a little higher than that .075?
    Mr. Gray. That is correct.
    Senator Alexander. Do you think it is possible that those 
couple hundred scientists would say that that decision 
represented political interference in their scientific 
conclusion?
    Mr. Gray. I think that there may be scientists who would 
disagree with the choice.
    Senator Alexander. Well, but if asked the question, that 
was a political appointee making a decision that was different 
than the scientific board, do you think a scientist, one of 
those 200, might have answered that question to say yes, my 
recommendation was interfered with by a political decision?
    Mr. Gray. I suppose that could happen.
    Senator Alexander. I would think so. So what you are saying 
is that maybe 6,800 or 7,000 scientists who work for EPA were 
not a part of that process, that maybe a couple of hundred 
were. And that all of them, if they agreed with the 
recommendation of the scientific board, could say that some 
non-science person made a decision which represented political 
interference, and if they hadn't interfered, in my view, then 
you would have accepted no standard greater than 0.07.
    What conclusions led the Administrator, what factors caused 
him not to accept the recommendation of the scientific advisory 
board?
    Mr. Gray. I can't speak for all of the things that the 
Administrator considered. He knows that he has the 
decisionmaking authority and what is required.
    Senator Alexander. So you don't know?
    Mr. Gray. I know that he takes very seriously the advice 
that he gets from our various advisory committees.
    Senator Alexander. I know. But you don't know why he 
didn't?
    Mr. Gray. It had to do with how he weighed the science and 
he ultimately----
    Senator Alexander. But you don't know why, what the factors 
were. Well, I know what some of the factors were, because I had 
a lot of people in Tennessee saying to me, a lot of county 
mayors saying, we don't want it changed at all, because we 
won't get auto jobs in our State because they can't meet the 
Clean Air standards, that is much too aggressive. So might he 
have considered the effect of a more severe rule on the economy 
of an area? Might that have been a factor?
    Mr. Gray. No, he would not have done that. By law he is not 
allowed to consider costs.
    Senator Alexander. What could be another factor?
    Mr. Gray. The big factor is, going back to the testimony I 
gave, science, there are many different types and kinds of 
science that come together. In the case of ozone, we have 
clinical studies where people have been exposed to ozone, we 
have epidemiological studies----
    Senator Alexander. I have about 1 minute left. Let me ask 
my last minute of questions having to do with the question of 
transparency. Are the recommendations of the scientific 
advisory committee concerning the ozone decision public?
    Mr. Gray. Yes, they are.
    Senator Alexander. Did the Administrator, in your judgment, 
State publicly why he disagreed with or why he came to a 
different conclusion than the scientific advisory committee?
    Mr. Gray. There is actually a requirement that the 
Administrator explain the reasons for a different choice than 
the committee, and he did that.
    Senator Alexander. So we know what the science advisory 
committee recommended and why? I assume they stated their 
reasons?
    Mr. Gray. That is correct.
    Senator Alexander. And we know why the policymaker made his 
decision and why, and he has a requirement that you say he 
followed in doing that. That sounds to me like what Senators do 
every day. We take advice, we don't always publicize what our 
staff tells us, I don't think any of us does that very often. 
But then we say publicly what we are for and why we made the 
decision and then we argue about it, because we might have come 
to a different conclusion.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Boxer.
    Senator Boxer. I want to show you a series of charts that 
indicate what we have been seeing in the press lately and why 
we wanted to hold this hearing. So we will have to move through 
these quickly. White House meddling hobbles the EPA. EPA 
ignored law by using rules on mercury. The court says, EPA 
drops ball on dangerous chemicals to children. EPA bans staff 
from discussing issue of perchlorate. Bush fights science again 
and we all lose. Ozone rules weakened at Bush's behest. EPA's 
chief ignores his advisors again. Bush appointees, not 
scientists, will have the first say on air quality. As toxic 
clouds roll by, EPA weakens regulation for chemical storage.
    This hearing is extremely important and I couldn't disagree 
with Senator Alexander more. Now, I respect him very much. But 
the fact is, if you just read the Supreme Court case that dates 
back to an argument that was decided in 2002, 2001, February 
2001, written by Justice Scalia, it is supposed to act, 
Senator, the way we act, yes, we listen to science, we listen 
to the politics, here it is, written by Justice Scalia, and it 
talks about the Clean Air Act. The text interpreted in 
statutory and historical context and with appreciation for its 
importance to the Clean Air Act as a whole, unambiguously bars 
cost considerations from the National Air Ambient setting 
process. And thus ends the matter for us as well as the EPA.
    EPA cannot consider cost in setting Clean Air Act health 
standards. Period, end of quote. They are not to allow politics 
into this. That is up to you and me. And we could argue and 
listen to the special interests. They are not supposed to. What 
is happening now, and it is a disgrace, and it is dangerous for 
our people, is that politics is front and center of the EPA, 
and what they have been doing, starting with the risk 
assessment process, the GAO, who knows what they are talking 
about, they have no axe to grind, GAO clearly states that the 
scientists are not being listened to and the special interests 
are invited in and everything is kept secret. And this is the 
problem.
    I want to pick up where Senator Whitehouse left off. The 
GAO has clearly told us what has happened. I have to say, Mr. 
Gray, and I mean, I think you are a very nice man, and this is 
not a personal attack, but what do you mean when you say it is 
transparent over there? What is your definition of transparent?
    Mr. Gray. My definition of transparent is that we lay out 
for the consideration of everyone the scientific and other 
bases of our decisions.
    Senator Boxer. Do you support keeping all the records 
secret from these meetings where GAO says, OMB considers 
agency's comments on IRIS assessments to be internal, executive 
branch documents that may not be made public. Given the 
importance of IRIS assessments, it is essential that input from 
all parties be made part of the public record. Do you agree 
with GAO and disagree with OMB? Where do you stand?
    Mr. Gray. It has always been--]
    Senator Boxer. Do you agree with them?
    Mr. Gray. I disagree with GAO. It has always been our 
process that discussions within our agency and other agencies 
are kept deliberative.
    Senator Boxer. OK, you disagree with GAO and you therefore 
agree with OMB, who says that these documents have to be kept 
secret from Senator Alexander's constituents, from Senator 
Inhofe's constituents, from mine, from Sheldon's, from Senator 
Klobuchar? I really need to know, again, you agree with keeping 
it secret. And yet on the other hand, you say you are for 
transparency. How can you possibly say both things? That 
doesn't make sense to me.
    Mr. Gray. Because at the end of the process, we are very 
transparent about what we have done in that assessment, about 
what science decisions have been made, what science policy 
decisions have been made. And those have been reviewed by 
independent, external scientists.
    Senator Boxer. Now, let me just say this. You have lost all 
credibility with me. I still like you. But you have lost all 
credibility. Let me read you, how you can sit there and say on 
the one hand, I am for transparency and then say you agree with 
OMB to keep these meetings secret is an outrage. Honestly, be 
honest, say you don't agree with transparency. But don't sit 
here and say you believe in transparency. Own up to it. Listen 
to what the GAO says, and I ask unanimous consent, Mr. 
Chairman, to put this in the record.
    Senator Whitehouse. Without objection.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. A lack of transparency at the OMB 
interagency review process reduces the credibility of EPA's 
IRIS assessments. Because the agency's comments and the changes 
EPA makes in response are treated as internal executive branch 
documents not subject to release outside the executive branch, 
the OMB interagency reviews occur in what amounts to a black 
box. A black box. And we all know what a black box is. That is 
top secret, sir. Thank you.
    Senator Whitehouse. Senator Inhofe.
    Senator Inhofe. Thank you.
    Mr. Chairman, I have two documents, each with three pages, 
I want to ask unanimous consent that they be made a part of the 
record.
    Senator Whitehouse. Without objection.
    [The referenced material was not received at time of 
print.]
    Senator Inhofe. The first is from the Center for Consumer 
Freedom. It is an analysis of the Union of Concerned 
Scientists, I will only read a couple of sentences here. ``UCS 
embraces and environmental agenda, the office stands at odds 
with their rigorous scientific analysis it claims to employ. A 
radical green wolf in sheep's clothing, UCS tries to 
distinguish itself from the Greenpeace of the world by 
convincing the media that its recommendations reflect a 
consensus.'' That is one document.
    The other one is, we had put together a list of 12 specific 
items from the Clinton administration on politicized science. 
This is all documented and it is all footnoted and I ask that 
both of these be made a part of the record.
    Senator Whitehouse. They will be, without objection.
    Senator Inhofe. All right. Dr. Gray, you used the words, I 
think, single, precise answer. Why is it so important to focus 
on uncertainty? Is there usually a single answer? It is often 
demanded of you, I want a single, precise answer. What is the 
difficulty in that?
    Mr. Gray. That is really an important question, Senator, 
and it is a major source of confusion for a lot of people. The 
reality is that scientific assessments, particularly those that 
are done at EPA, rarely do point to a single best or right 
answer. There are usually a range of plausible answers, all of 
which are scientifically defensible and could be chosen.
    So this is where the science policy considerations come 
into play. That is why transparency and accurate 
characterization of that uncertainty is so important.
    Senator Inhofe. Transparency of the uncertainty?
    Mr. Gray. And transparency of the way in which the data are 
being used, and specific choices that the agency has made.
    Senator Inhofe. Have you experienced any resistance within 
the EPA as it focused on these important issues? In other 
words, uncertainty in analysis, transparency, and if so, what 
are the reasons?
    Mr. Gray. I would say that yes, in some instances there has 
been reluctance on the part of some of the agency to 
acknowledge its debt of uncertainty that is present in many of 
our assessments and the key role that many of our science 
policy considerations really do play. I think there are a 
couple of reasons for this. The agency has had an approach in 
the past of providing that single answer, a point estimate, 
often an upper bound estimate. There are concerns at the agency 
about, how do I defend things if I actually acknowledge that 
the science is uncertain.
    And yet it is really important to recognize, and we have 
been hearing from the outside scientific community that for the 
credibility of our assessments, we have to do this. We are 
working to advance the way in which we do our assessments, to 
be more transparent, to characterize uncertainty. It is 
something that is very important for the credibility of this 
organization.
    Senator Inhofe. How has the ORD's science improved the 
management of air quality in the United States?
    Mr. Gray. I think there have been a number of ways. As we 
have already discussed, our science helps to support the 
decisions that are made about ambient air quality standards, 
and we have been important contributors to the scientific base 
that has led to the recent tightening of the particulate matter 
standard, the tightening of the ozone standard and the proposed 
tightening of the lead standard, for example.
    But we are also out there trying to actually put that 
science to work. We have efforts underway to better measure 
ozone, for example, across the Country, to feed that into 
things like the air quality index that you can find on the back 
of USA Today that tells you whether the ozone levels should be 
a concern, depending on what you plan to do that day, where you 
live and what your health status is.
    So I think the agency has provided improved air quality all 
the way from the scientific bench all the way up into the kinds 
of things that you see in USA Today.
    Senator Inhofe. That is good. In my opening statement, Dr. 
Gray, I mentioned sound science. This has always been something 
that I have been a stickler for. I recall during the previous 
Administration, the Clean Air Science Advisory Board, at one 
time I think the board was 21 scientists at that time. Then 19 
of them disagreed with the conclusion that the Administration 
came up with. So I have always really been concerned about 
that. Could you, in this remaining 30 seconds, explain the EPA 
science policy, the infrastructure of the science policy?
    Mr. Gray. Science policy really arises when we are taking 
tens, hundreds, even thousands of individual acts of science 
that have been done, we gather that best available science 
together and we have to use it to inform a decision. When we do 
that, science policy choices that are developed within the 
agency help to guide choices that are made, data that is used, 
assumptions that are invoked. This is done in a process through 
the agency, through our science policy council. It is 
externally peer-reviewed. It is a way to have a consistent 
science policy approach in the agency.
    Senator Inhofe. And transparency.
    Mr. Gray. Transparency is very important.
    Senator Inhofe. Thank you, Dr. Gray.
    Senator Whitehouse. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Senator Whitehouse, 
Mr. Gray. I come from Minnesota, a State where we believe in 
science. We brought the world everything from the pacemaker to 
the post-it note, we are the home of the Mayo Clinic and other 
places. In my year and a half here, I have been concerned with 
things that come to my attention. One was when Dr. Julie 
Gerberding, from the Centers for Disease Control, testified 
before this Committee and it turned out later that her 
testimony had been edited while the fires were raging in 
California, parts were taken out about how climate change can 
lead to more fires on the west coast. Everything she said, the 
White House responded by saying, well, it was edited because it 
wasn't consistent with some things that the Union of Concerned 
Scientists said. And in fact, we were able to show everything 
she said had been in their report.
    Then I hear about the decision involving Mary Gade. We are 
shocked at the forced resignation of Mary Gade, the head of 
EPA's Midwest region, which includes Minnesota. She had been 
fighting Dow Chemical, as Senator Whitehouse pointed out, to 
force them to clean up the dioxide contamination in Michigan. 
She invoked her emergency authority to order Dow to clean up 
three hot spots last summer when dioxide levels 50 times the 
Michigan standard were found.
    So my first question is about that. I understand the 
decisions didn't come from your office, it was the Office of 
Research and Development. But what seems to me a clear case 
here, where policy was driven by politics, what protections do 
we need at the EPA to make sure that dedicated officials aren't 
forced out trying to do their jobs?
    Mr. Gray. In this case, as you said, this is something that 
I have no direct knowledge of, this situation in Region 5. In 
fact, because it is an internal agency personnel matter, it is 
something that I cannot comment on.
    Senator Klobuchar. But I am asking just in general, then, 
if you don't want to comment on this specific case, which I 
think is a very troubling case for the Country, but in general, 
what kind of protections are in place, I know we are going to 
hear from Dr. Francesca Grifo from the Union of Concerned 
Scientists about some potential ideas, whistleblower 
protections for scientists, elevating EPA to the Cabinet level, 
establishing an Inspector General. What do you think would be 
the most important to re-establish the credibility of the 
agency?
    Mr. Gray. I actually think the credibility of this agency 
is enhanced through our use of the best available science and 
the way that we do our work. I will say that it is very 
important to us, for example, in the Office of Research and 
Development, which I can speak to directly, we have no 
restrictions on things that our scientists can do in 
interacting with the press or the public or in ways in which 
they can publish their work. We believe that getting the best 
science out into the scientific community is the way to advance 
our knowledge and advance our mission.
    Senator Klobuchar. But then we were just talking about the 
fact that it is not transparent, that GAO has begged you and 
pushed you to try to make this information transparent. I don't 
understand how we are going to know that we have the best 
science when we don't know what is coming in your door.
    Mr. Gray. The scientific information that we put out is 
transparently described. We have a risk characterization 
handbook that was first issued in 2000 that has 11 principles 
of transparency that we are working our best to adhere to.
    Senator Klobuchar. But then why can't see publicly the 
information that is coming to you?
    Mr. Gray. You can see----
    Senator Klobuchar. The comments that were----
    Mr. Gray [continuing].--the information that we have used, 
the choices that we have made, and you can see what the 
independent scientists have said about our use of science----
    Senator Klobuchar. I just don't think that is true from 
what we have heard in other hearings about the information 
coming. But specifically you just said that you are making 
decisions based on the best available science. Then could you 
explain EPA's decision to ignore the unanimous recommendation 
of its own Clean Air Scientific Advisory Committee? Why would 
you do that if you are listening to science and setting a 
weaker standard for ozone than recommended?
    Mr. Gray. The Administrator certainly did not ignore the 
advice of the Clean Air Science Advisory Committee. In fact, he 
values their input, the input from our other advisory 
committees, from other agencies, from the public, very highly. 
That is the basis of his ultimate decision. In fact, in the 
case of ozone, he agreed with them that we needed to tighten 
that standard. He made a different choice, based on his view of 
the science, of what the appropriate level would be.
    Senator Klobuchar. But isn't it true that we have 1,700 
peer-reviewed studies and the unanimous recommendation of your 
23 science advisors to the EPA? That sounds like something he 
would want to listen to.
    Mr. Gray. Again, all of those studies are exactly why there 
is no single right answer that comes out of that scientific 
process, why the data that are available have to be weighed, 
they have to be analyzed and they have to be considered in 
their entirety. We get advice to help us through that, but 
ultimately that decision is the Administrator's decision.
    Senator Klobuchar. Again, 1,700 peer-reviewed studies and 
unanimous recommendations of 23 science advisors, it seems to 
me that that would be certainty. To also add to that, I would 
think, if you have a choice and you have all these scientists, 
wouldn't you want to go with a standard that is a more cautious 
standard that would protect human health?
    Mr. Gray. The Administrator has particular guidelines under 
the Clean Air Act for the decision that he makes, that it has 
to be requisite to protect public health, with an adequate 
margin of safety being neither higher nor lower than necessary. 
In his judgment, that is the level that he set.
    Senator Klobuchar. Thank you.
    Senator Whitehouse. I am going to ask a few more questions 
of the witness, probably for about 4 minutes, then I will offer 
anybody else the chance to follow on, if they choose, in the 
second round. I just wanted to followup on what you have said, 
Mr. Gray. You indicated that the ozone decision was made by the 
Administrator, based on how he weighed the science and not 
because of any economic or other considerations, political 
considerations, which you admit would be illegal. It sounds 
like the Clean Air Science Advisory Committee was unanimous, 
recommending a range of .06 to .07, the Children's Health 
Protection Advisory Committee recommendation was unanimous, 
recommending a range of .06. What other science did you look to 
to find a different recommendation of .075? You said that he 
has his own view of the science, but his own view of the 
science as informed by what? And why won't he come here? Why 
has he been unwilling to explain to us his own decisionmaking 
if it is legitimate?
    Mr. Gray. I will start with the first part of your question 
first. This is actually a very good example of the way in which 
uncertainty and science plays an important role in decisions. 
There is a particular study----
    Senator Whitehouse. You are telling me, you have two 
unanimous, you are telling me and you expect me to believe that 
two unanimous decisions by panels that EPA chose creates 
scientific uncertainty in the mind of EPA?
    Mr. Gray. They certainly do. Many of them put a lot of 
weight on this particular Adams study, and the finding in one 
of their chamber studies that people exercising moderately for 
6 hours and exposed to ozone had responses. The author of that 
paper himself commented to the agency that he thought that was 
an incorrect interpretation of his own work. There is clearly 
not scientific agreement about how to interpret science. That 
is my point. The Administrator interpreted the science----
    Senator Whitehouse. Is there scientific agreement by the 
people that you chose to be the experts, unanimously supported 
this decision, there is no indication of what science to the 
contrary the Administrator relied on, none, he made a different 
decision and he won't come before us and explain it. And 
frankly, I can't see a legitimate explanation for that chain of 
events. This is not some alien group that came out from strange 
places to make this stuff up. This is the best scientists in 
the Country chosen by you, and you ignore their recommendation.
    Mr. Gray. We certainly never ignored the advice of our 
advisory committees, but I will tell you that the preamble to 
the ozone rule----
    Senator Whitehouse. Well, they recommend .06 and .07 and 
you do .075, I don't know how you could have ignored it much 
more than that.
    Mr. Gray. I think that if you read the preamble to the 
ozone rule, you will see exactly what reasoning went into our 
decision.
    Senator Whitehouse. We can't see what reasoning went into 
that decision, because we can't get the Administrator to come 
here and explain it. And I strongly suspect it is because there 
were considerations other than science that dictated, because 
nobody can show me where the science is that would indicate 
that number. And frankly, uncertainty is a lousy explanation 
for what you have said, because it would just as easily justify 
a number that is five points lower than the low range, or .055, 
as it would justify a number that is five points higher than 
the high range. In fact, because your job is to protect people, 
you would think that would be the way you would err.
    My time is expired.
    Senator Alexander. Mr. Gray, this is a very interesting 
discussion. Exactly what did the science advisory committee 
recommend on ozone? My colleagues seem to say that they were 
certain. So exactly what was their precise, certain 
recommendation? What was the level they recommended?
    Mr. Gray. To my recollection, the board that was just up 
reflected their recommendation that it would be somewhere in a 
range between 0.06 and 0.07.
    Senator Alexander. Oh, but I thought they were certain 
about it. Do you mean they disagreed between, did they not 
recommend .61?
    Mr. Gray. They recommended a range.
    Senator Alexander. Did they recommend .062? Did they 
recommend .063 and .064 and they couldn't agree on .065 or .066 
or .067? So they disagreed between .06 and .07.
    Senator Whitehouse. Thank you.
    Senator Alexander. And what did the Administrator choose?
    Mr. Gray. The Administrator set the annual standard at 
.075.
    Senator Alexander. So actually, the scientists who are 
being cited here disagreed among themselves more than the 
Administrator disagreed with them? Am I correct about that? The 
.005, they had a whole one range of disagreement and he had a 
half. So we are saying over here that these scientists have a 
certain agreement and they can't even agree between .06 and 
.07, he goes to .075. So in my opinion, they disagreed more 
among themselves than he disagreed with them. Now, who has the 
judgment under the law to make the decision about ozone, based 
on an adequate margin of safety requisite to protect public 
health?
    Mr. Gray. That responsibility is the Administrator of EPA.
    Senator Alexander. Is that exclusively his decision?
    Mr. Gray. That is correct.
    Senator Alexander. Is the scientific advisory committee, 
which couldn't agree among itself about what to do, are they 
purely advisory in their capacity?
    Mr. Gray. They are advisory. We take their advice very, 
very seriously.
    Senator Alexander. But they are advisory in their capacity. 
Are their recommendations public?
    Mr. Gray. Yes, they are.
    Senator Alexander. So any of us can read their 
recommendations, is that correct?
    Mr. Gray. That is correct.
    Senator Alexander. And did you not say earlier that the 
Administrator, who has the exclusive authority to make this 
decision and whose decision was closer to the top range of this 
committee than the top range was to the low range of the 
committee, did he State in his opinions why he made his 
decision at .075?
    Mr. Gray. Yes, he is required by law to do that.
    Senator Alexander. He is required by law to do that?
    Mr. Gray. Yes.
    Senator Alexander. So the only area, it seems to me, of 
objection here is that there was an interagency review of this 
decision. Was there such a review?
    Mr. Gray. Yes, under an executive order dating back to 
1993, there is interagency review.
    Senator Alexander. And that information, what went on there 
isn't public? Is that correct?
    Mr. Gray. That is correct.
    Senator Alexander. We had a Republican conference the other 
day, all the Republican Senators talking about climate change. 
The Democrats do the same. Actually we do that about every 
lunch. They are not public. Now, they are not our decisions. 
And when we go out and talk, these are internal discussions. 
And I assume that an internal discussion in the executive 
branch would be like an internal discussion among our offices, 
among our Senators. And I don't think we are going to haul a 
camera into the Democratic Policy Committee meeting, or in the 
Republican Policy Committee meeting.
    So you are saying that the scientists' recommendations are 
public; the Administrator's recommendation is public, we can 
read it; and he has the exclusive authority to make the 
decision. And the way I read it, he disagreed more with the top 
range of the scientists' group than the bottom range of the 
scientists' group did. Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Boxer.
    Senator Boxer. Comparing EPA to us doesn't even make any 
sense whatsoever.
    Senator Alexander. I compared the interagency----
    Senator Boxer. If I might say, they, according to Justice 
Scalia, cannot consider all these other things that we can 
consider. And again, we put it in the record, you are not 
allowed to, you have to go protect the health of the people, 
No. 1.
    Now, you sir, your continuous claim that there is 
transparency at the EPA in setting protective health standards 
for dangerous pollutants is ludicrous. Why do I say that? The 
GAO approved it, they said the OMB's secret policy that you 
embrace here today, which is shocking from someone at the 
Environmental Protection Agency, is the equivalent of putting 
the information into a black box. That is not me saying it, 
that is not the Chairman saying it, it is the GAO saying it 
after a very, I think, very important review.
    Two, your stated view that costs and other factors should 
be considered flies in the face again of the Supreme Court 
decision. So this is Alice in Wonderland. The facts are the 
facts are the facts. There is no transparency on ozone. My 
understanding, and my staff can correct me if I am wrong, they 
didn't follow the science. They went over the level that any 
scientist recommended. Outrageous on its face.
    Now, do you know why Administrator Johnson could not be 
here today?
    Mr. Gray. I don't know. I know that he has been out of work 
and I think he is back.
    Senator Boxer. He is back, but he couldn't come up here 
today?
    Mr. Gray. Correct.
    Senator Boxer. Do you know why he will not give us any date 
to explain his ozone decision, the decision that we have all 
asked you about today? Do you know why he couldn't give us any 
date?
    Mr. Gray. I don't know that. I could get that information 
for you.
    Senator Boxer. Good. Thank you. There are serious charges 
that the White House interfered with setting the standard. We 
want the head of the EPA up here to explain it. Do you know why 
we have yet to receive any e-mails that were promised to me and 
this Committee? We were supposed to get these e-mails that went 
back and forth between the White House and the EPA regarding 
the California waiver? We were promised that we would get those 
e-mails in February. Do you know why we have yet to receive 
those e-mails?
    Mr. Gray. I don't know.
    Senator Boxer. Will you please find out why? Will you 
please go back and ask the question and would you please send 
me a letter as to why we cannot get these?
    Mr. Gray. I can do that.
    [The referenced document was not received at time of 
print.]
    Senator Boxer. Because you want to talk about transparency, 
I will tell you, many States in the Union are very angry at 
what this Administration did. And for the first time, never 
granting a waiver to California, which impacts 19 other States, 
so we can begin cleaning up our air and doing what the Supreme 
Court said we have to do under the Clean Air Act, which is 
fight global warming. And I have to tell you, what is going on 
at this Administration is so dangerous, it is not a game. We 
have had a stall for seven and a half years about doing 
anything on global warming. We have had a change that is now 
trying to be institutionalized where you shut the scientists 
back in a room. And there is no transparency here. We don't 
know what is going on in those secret meetings, I say to my 
friend from Tennessee, because they are in a black box.
    So it is very, very troubling and I want to thank Senator 
Whitehouse for his leadership.
    Senator Whitehouse. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Senator Whitehouse.
    Sir, I just wanted to followup a little bit on a hearing we 
had just yesterday on perchlorate. And in your testimony, you 
State that in order to meet our statutory requirements, we 
often cannot wait for independent scientific findings to 
converge on a solution. This would cause long delays in 
environmental decisionmaking.
    How would you say this statement fits in with the hearing 
we held yesterday to examine why the EPA has still not issued a 
standard for perchlorate decades after we became aware that it 
was a toxic chemical with developmental impacts on pregnant 
women and children?
    Mr. Gray. Thank you. First, I need to make a response to 
Senator Boxer. I want to make clear that under the Clean Air 
Act, there are no consideration of cost that go into the 
setting of a National Ambient Air Quality standard, and the 
Administrator is very clear about that, when that decision is 
made.
    To your point, perchlorate is something that we take very 
seriously. We are moving and I know that you had testimony 
yesterday from the Assistant Administrator for the Office of 
Water that we are moving to have a decision on perchlorate by 
the end of this year. I will tell you that we in the Office of 
Research and Development are working very hard to make sure 
that the Office of Water is able to meet their requirement 
under the Safe Drinking Water Act that says we must use the 
best available science. And we are looking at the best 
available science to clean----
    Senator Klobuchar. How long has it been since we knew that 
this was a risk?
    Mr. Gray. We are using things like physiologically based 
pharmacokinetic models to allow us to look at the potential 
susceptibility of different life stages, including infants and 
children. That is something that is very important to the 
Office of Water ultimately making a sound scientific decision.
    Senator Klobuchar. The statements that you have made in 
your testimony about how we cannot wait for independent 
scientific findings to converge on a solution, because it would 
cause long delays in environmental decisionmaking. How does 
this fit also with the reluctance of the EPA to support 
concrete action on greenhouse gas emissions, so that they had 
to have courts push them into it? To me, that statement isn't 
completely with odds in terms of how the EPA has been handling 
greenhouse gas emissions.
    Mr. Gray. The point of that statement is that scientific 
information rarely in fact, I will say never converges on a 
single point, a single answer. What we do as an agency is do 
our assessments with the best science we have available to us 
at the time to help inform the various decisions we have to 
make. We try to reflect the uncertainty in that to make sure 
that people know what we know and what we don't know, where 
more research will help us to understand----
    Senator Klobuchar. Do you think some of the best science 
available comes from the Annapolis Center? I notice you were on 
their board.
    Mr. Gray. I was on their board many years ago, yes, I was.
    Senator Klobuchar. From 1995 to 2000. They just gave an 
award to Senator Inhofe. I think they have argued that, they 
have argued against the idea that global warming is a result of 
burning fossil fuels. Is that something that goes into your 
thinking?
    Mr. Gray. I certainly haven't been part of that 
organization, as you said, for the last 8 years. I don't know 
what informs their decisions.
    Senator Klobuchar. My concern here is not to bring up 
something that you may not consider relevant, but when you have 
a situation where we are basically, things are in a black box 
and we can't get to the bottom of what is going on with the 
EPA's decisionmaking and they are making decisions that are 
contrary to scientific recommendations on ozone, the courts are 
having to push them into act, you have to look at where is the 
head coming from, where is the mind set coming from. And so you 
have to look at the outside forces, because we cannot figure 
out, when your own scientists are telling you to move on this 
and Congress is trying to push as hard as we can with the 
resources we have to move on this, why you haven't. Thank you.
    Senator Whitehouse. I thank the witness for his testimony.
    Senator Boxer. Mr. Chairman, I would like to put two things 
in the record, if I might.
    First of all, I have to do this, as a privilege of the 
Chairman of the Committee. When Mr. Gray says that, when it 
comes to clean air, only science, sir, I would have to call 
this, I am not saying you are a liar, I am not saying that, but 
I am saying that statement is a big lie. Why do I say that? 
Because the last two things that you did, ozone, which Senator 
Alexander has gone over, and soot, the fine particulate matter, 
and I would put in the record the fact that your scientific 
ozone review panel said, it is the Committee's consensus, 
scientific opinion, that your decision to set the primary ozone 
standard above the range fails to satisfy the explicit 
stipulations of the Clean Air that you ensure an adequate 
margin of safety for all individuals, including sensitive 
populations, that is from your scientists, and that is on ozone 
and fine particulate matter.
    Here is what your scientists said. ``There is clear and 
convincing scientific evidence that significant adverse human 
health effects occur at the retained standard which does not 
provide an adequate margin of safety requisite to protect the 
public health.'' And that is when you didn't go to 13 or 14 
micrograms, you kept it at 15.
    Now, these are two specific examples. And for you to sit 
here and say that you follow the law. Listen, you have lost 
every lawsuit, I count 11 major lawsuits where the most 
conservative courts have found that you are not protecting the 
public health. So I am putting these documents into the record. 
And the other thing I am putting into the record is the 
dictionary definition of transparency, which says, literally 
understood or characterized by visibility or accessibility of 
information, especially concerning business practices. So I 
think that your testimony here today, you have tried to defend 
the indefensible. And you have failed as far as this Senator is 
concerned.
    Senator Whitehouse. Without objection, the documents will 
be made a matter of record.
    [The referenced material was not received at time of 
print.]
    Senator Whitehouse. Senator Alexander.
    Senator Alexander. Thank you, Mr. Chairman.
    Then I would like to add something to the record in pursuit 
of transparency. I would like to ask consent to put into the 
record the recommendations of the scientific committee, the 
Clean Air Science Advisory Committee that recommended the ozone 
standard of .060 to .070. Then I would like to put into the 
record the response of the Administrator of the EPA, who has 
explained his readings, which under the law, he has the sole 
judgment to make, based on criteria in allowing an adequate 
margin of safety that are requisite to protect public health.
    And I would like to suggest to the Senator from California 
that if she wants to change that, she should change the law. 
Because the law says that Section 109 of the Clean Air Act 
gives him the exclusive decisionmaking, and he agreed with the 
top range of his scientific advisors, more than the bottom 
range of the scientific advisors agreed with the top range.
    Senator Whitehouse. Those documents will also be made a 
matter of record.
    [The referenced material was not received at time of 
print.]
    Senator Klobuchar. And Senator Whitehouse, I just want to 
put into the record as well a list of organizations that 
supported the range of .06 to .07, and in fact supported the 
.06 number, that would be the American Academy of Pediatrics, 
the American Association of Cardiovascular and Pulmonary 
Rehabilitation, the American College of Crest Physicians, the 
American College of Preventative Medicine, the American College 
of Occupational and Environmental Medicine, the American Heart 
Association, the American Lung Association, the American 
Medical Association, the American Nurses Association, the 
American Public Health Association, the American Thoracic 
Society, the Asthma and Allergy Foundation of America, the 
National Association for Medical Direction of Respiratory Care, 
the National Association of City and County Health Officials, 
the Physicians for Social Responsibility and Trust for 
America's Health.
    Senator Whitehouse. That also will be made a matter of 
record, without objection.
    [The referenced material follows:]
    [GRAPHIC] [TIFF OMITTED] T5532.051
    
    Senator Whitehouse. We appreciate the testimony of Mr. 
Gray, and he is excused.
    Would the next panel please come forward?
    I want to thank this distinguished panel for being here 
today. The manner in which we proceed will be right across the 
panel, beginning with Dr. Grifo. We will allow 5 minutes each 
for your oral testimony, so it may be necessary for you to 
summarize what you have submitted in writing in order to fall 
within that timeframe. If you hear a noise like that, it means 
that your time is up and I would appreciate it if you would 
wrap it up.
    Dr. Grifo, please.

    STATEMENT OF FRANCESCA GRIFO, PH.D., SENIOR SCIENTIST, 
  DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED 
                           SCIENTISTS

    Ms. Grifo. Good morning. My name, as you said, is Francesca 
Grifo, and I am a senior scientist and the Director of the 
Scientific Integrity Program at the Union of Concerned 
Scientists, a leading science-based non-profit working for a 
healthy environment and a safer world.
    Thank you, Senator Whitehouse, Senator Boxer and Senator 
Alexander, and members of the Subcommittee, for the opportunity 
to speak this morning about the problem of political 
interference in the work of Federal scientists. I thank the 
Committee for your oversight and I strongly urge you to keep 
the pressure on. The next 8 months promises to be filled with 
additional abuses of science that, while last-minute in their 
implementation, are sure to be long-lasting in their 
consequences.
    While I am sure we can all agree that the Environmental 
Protection Agency has a skilled and dedicated work force, our 
research, based on survey responses from 1,586 scientists, 
combined with essays from 850 of these scientists, forces us to 
conclude that this is an agency in crisis. Hundreds of EPA 
scientists reported interference on issues ranging from mercury 
pollution to climate change.
    You might note that no rank and file EPA scientist is 
speaking today, despite significant efforts by the Committee. 
Unfortunately, 612 EPA scientists responded that they fear 
retaliation for openly expressing concerns about their agency's 
mission-driven work, work that is compromised by the influence 
of political appointees at EPA or other agencies, as well as 
non-governmental interests.
    This influence takes the following forms: scientists told 
to exclude or alter technical information or to provide 
incomplete, inaccurate or misleading information; selective or 
incomplete use of data; edits that change the meaning of 
scientific findings; disappearance or unusual delay in the 
release of scientific information; statements by EPA officials 
that misrepresent scientists' findings; and suppression of 
scientists' ability to speak freely to other scientists, the 
news media and the public.
    Eight hundred and eighty-nine scientists personally 
reported experiencing, or reported personally experiencing one 
of these events in the last 5 years. Of these, 234 reported 
experiencing 6 or more such incidents. Because of such 
interference, EPA has failed, for example, to sufficiently 
tighten standards for key air pollutants, such as ozone, soot 
and mercury, resulting in millions of Americans breathing 
unhealthy air, and has also compromised the quality and 
quantity of publicly available toxicological information, 
leaving families in the dark about what chemical dangers are in 
their neighborhoods.
    By suppressing, distorting and manipulating science, the 
White House has consistently attempted to subvert the 12 pieces 
of legislation that authorize the Environmental Protection 
Agency to protect human health and the environment, and in so 
doing, has made an end run around the legislative branch. 
Furthermore, by creating systemic changes in the way the EPA 
creates and utilizes scientific information, the Administration 
has reduced the capacity of the executive branch to meet 
complex environmental and public health challenges.
    For example, just 2 weeks ago, we learned that agencies who 
would be liable for costly cleanups are now given expanded over 
EPA's scientific assessments of chemical toxicity. Scientific 
advisory committees, which used to have critical roles at the 
beginning of their quality assessments, now have a reduced role 
much later in the rulemaking process.
    Fortunately, this is not a problem without a solution. A 
suite of reforms are detailed in our report, Interference At 
The EPA. But here are a few, selected few. Last year, both the 
House and Senate overwhelming approved bipartisan legislation 
to strengthen whistleblower protections for Federal employees. 
It is crucial that the final version of the whistleblower bill 
now being negotiated by the two chambers contain specific 
protections for scientists who expose efforts to suppress or 
alter Federal research, similar to those protections in the 
House-passed version of the bill.
    To ensure the work of Federal scientists will not be 
subject to political manipulation, the EPA should increase 
openness in the decisionmaking process to expose manipulation. 
Specifically, the expanded reach of the Office of Management 
and Budget must be pushed back. If research results in their 
application to the creation of public protections are made 
public before they drop into the black hole, as GAO has put it, 
of OMB, attempts to distort science to support political goals 
will be exposed.
    EPA should adopt media, communication and scientific 
publication policies across the whole agency that ensure 
taxpayer-funded scientific research is accessible to Congress 
and the public and the media and so on. The GAO has more work 
to do. There are many changes that have become embedded in the 
agency that if not exposed will continue to harm scientific 
integrity.
    Finally, there is one action that can and must happen 
immediately. Administrator Johnson should send a clear message 
to all political appointees that he will not tolerate attempts 
to alter or suppress Federal research. Just as William 
Ruckelshaus did shortly after appearing before this Committee 
25 years ago in 1983, Administrator Johnson should pledge to 
operate EPA in a fishbowl. The original memo, still in the 
history section of EPA's website, should be moved to its home 
page. This memo sets a standard for an agency so open that it 
earned the trust of the American people.
    Thank you.
    [The prepared statement of Ms. Grifo follows:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    
    Senator Whitehouse. Thank you very much.
    I would like to just take a moment before we go to Dr. 
Gilman. I have been asked to add to the record, the growing 
record of this hearing, an article from the Washington Post 
that discusses the Center for Consumer Freedom, which was just 
used as a source by Ranking Member Inhofe, which indicates that 
the Center for Consumer Freedom was founded about 10 years ago 
with tobacco company money, Philip Morris, USA, Inc., pledge 
about $600,000, most of the feed money for this group in 1995. 
Its founder has declined to give specifics about who funds the 
Center for Consumer Freedom now.
    The Citizens for Responsibility and Ethics in Washington 
has challenged the Center for Consumer Freedom on grounds that 
its founder has used the Center to funnel money to himself and 
his company, a violation of Federal tax law that bars companies 
or individuals from running a non-profit for their private 
benefit. And the Citizens for Responsibility and Ethics in 
Washington has also challenged the group's 501(c)(3) status on 
grounds that it was established solely to promote the causes of 
restaurants and food producers, not consumers. Its activities, 
the organization said, are ``not remotely charitable.'' So 
without objection, that will be made a matter of record as 
well.
    [The referenced material follows:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    Senator Whitehouse. Dr. Gilman.

            STATEMENT OF PAUL GILMAN, PH.D., CHIEF 
             SUSTAINABILITY OFFICER, COVANTA ENERGY

    Mr. Gilman. Thank you, Mr. Chair, thank you, members of the 
Committee, for the opportunity to be here.
    I am going to start by adding to our list of headlines in 
order to make a point, this one from a journal called Pest 
Control: ``EPA has become too politicized in its actions, too 
eager to pursue narrow political goals and too willing to 
ignore congressional intent.'' One from Resources for the 
Future: ``EPA also should reinstitute and strengthen the 
internal scientific review process to ensure transparency, 
accountability for scientific uncertainty and improve its 
analytical base for its political decisions.''
    One from USA Today, ``At least a dozen former EPA officials 
who played roles in setting pesticide policy now work as 
industry consultants. The EPA has become the farm team for the 
pesticide lobby,'' it quotes an observer as saying. One from 
the Chattanooga Free Press, ``In a scathing opinion the court 
stated the EPA publicly committed a conclusion before research 
had begun adjusted scientific procedure and scientific norms to 
validate the agency's public conclusion.'' One from the Orlando 
Sentinel, ``Science is as politicized in America as it was in 
the Soviet Union and Nazi Germany, and EPA is a prime 
example.''
    One from Portland Press Herald, ``For years the Federal 
Government has known power plants produce mercury. It knows how 
technology could be used to reduce that pollution, but the 
EPA's efforts to regulate toxic metal has been slowed by 
industry lobbyists and all of their allies in Congress.''
    I want to make the point that these headlines all came 
prior to the current Administration and pertain to the previous 
Administration. I make that point simply because science is the 
battleground today, science supporting the policy decisions at 
the EPA. It is where the things are being fought out that 
really are about the economics, the predispositions of our 
different constituent groups that speak to you in the Congress 
and people at the EPA.
    I don't say it to say who is more guilty in the process of 
using science either correctly or incorrectly, only to make the 
point that science is the battleground today, and that is why 
this hearing is so important. In my statement I say the keys to 
making sure the process of using the science and the process of 
making policy with the science rests on the very things you 
have already touched on: a quality control process for that 
science; transparency for the science as the Chair has stated; 
and a very aggressive peer-review process.
    I would only note that on a number of those fronts, the 
agency has come quite a long way. In the area of peer review, 
which has long been a sore point, Dr. Genny Matanowski said in 
a 2002 hearing before the Science Committee that really, the 
agency sort of reached a peak in terms of the practice of peer 
review. At that same time, of the 859 scientific products of 
the agency, it sent 750 to review and 91 percent of those were 
by outside reviewers. I had, while at EPA, the opportunity to 
testify on peer review. I testified alongside folks from the 
Corps of Engineers. At the time, they were trying to see if 
they could submit a single study in a given year to outside 
external review.
    So that is to say that the fundamentals of good science and 
good science policy have been growing at the agency through 
time. They continue to need to be emphasized. I welcome the 
Committee's effort to do that here today and I am happy to take 
any questions you have.
    Senator Whitehouse. Thank you, Dr. Gilman.
    Dr. Michaels.

STATEMENT OF DAVID MICHAELS, PH.D., MPH, RESEARCH PROFESSOR AND 
      ASSOCIATE CHAIRMAN, DEPARTMENT OF ENVIRONMENTAL AND 
     OCCUPATIONAL HEALTH, THE GEORGE WASHINGTON UNIVERSITY

    Mr. Michaels. Good morning. My name is David Michaels. I am 
Associate Chairman of the Department of Environment and 
Occupational Health at the George Washington University School 
of Public Health.
    Previously, I served as Assistant Secretary of Energy for 
Environment, Safety and Health, responsible for protecting the 
health of workers, communities and environments around the 
Nation's nuclear weapons complex. I am also the author of 
``Doubt is their Product: How Industry's Assault on Science 
Threatens Your Health,'' which has just been published this 
week by Oxford University Press, in which I detail how industry 
and the Bush administration manufacture scientific uncertainty 
in order to prevent regulation. In fact, I discuss the Center 
for Consumer Freedom and the Annapolis Center, and the tobacco 
industry's foundation of all that that we are discussing today.
    I would like to take a moment out of my prepared testimony 
to note that my testimony about the Bush administration does 
not apply to Dr. Paul Gilman, who as Assistant EPA 
Administrator for Research and Development defended the 
integrity of EPA's science and scientists from some of the 
efforts I will be describing today. I am honored to be on the 
panel with him.
    There are three major components of the Administration's 
anti-science agenda. The first is the widespread practice of 
ignoring the advice of scientific experts. Environmental issues 
are very complex and the Government needs the wisdom and advice 
of the Nation's best scientists. For decades, the advisory 
system has provided this wisdom. The Bush administration has 
rejected this approach by the stacking advisory panels, by 
dropping renowned scientists and replacing them with scientists 
whose job it is to defend polluters or just by simply ignoring 
the advice of these august panels.
    One of our most important sources for scientific advice is 
CASAC, which, as we have discussed, consists of preeminent 
scientists appointed by the Administrator of EPA. In a series 
of decisions without historical precedent, the Administrator 
has ignored CASAC's advice on lead and pollution. Not 
considered and rejected, but the evidence is ignored. Senators, 
I want to be very clear that I am not talking about what might 
be called academic disputes among scientists. In epidemiology, 
we remind our students that statistics are people with the 
tears washed off. Exposure to air pollutants kills thousands of 
Americans every year. EPA regulations are literally life or 
death decisions.
    The second anti-science component of the Bush 
administration's regulatory philosophy is its predilection to 
manufacture uncertainty: manipulating, distorting or hiding 
scientific evidence because this evidence is the most important 
driver of public policy decisions around environmental health. 
Books have been written about the lengths to which the 
Administration has gone to deny the scientific evidence or 
confuse the public about global warming. As late as June 2006, 
President Bush was still denying the significant role of human 
activity in global climate change. The scientific evidence is 
now so powerful and the popular acceptance of this evidence is 
so widespread, that it is no longer credible to manufacture 
uncertainty about the causes of global warming.
    So now the White House has moved on to manufacture 
uncertainty about the public health impacts of severe climate 
change. This is a strategic retreat with the same objective: 
delay steps to reduce our use of fossil fuels. Call it Climate 
Change Manufactured Uncertainty 2.0.
    Christie Todd Whitman, the first head of the EPA under 
President Bush, once said ``The absence of certainty is not an 
excuse to do nothing.'' But for this Administration, right now, 
it is.
    A basic tenet of public health is that decisions must be 
made on the basis of the best available evidence. We can't 
afford to wait until scientific certainty is reached, because 
in many cases, it cannot and will not be reached.
    The third component is what I call institutionalizing 
uncertainty. Since coming to power in 2001, this Administration 
has attempted to radically alter the way scientific information 
is produced, communicated, analyzed, synthesized and acted upon 
by Federal agencies. I have no doubt that the objective of 
these measures is to limit the ability of future 
administrations to protect the public health and environment.
    Last week you heard testimony on the EPA's IRIS program. I 
won't go into all the details, but I think your 
characterization of OMB as a black box is too generous. I think 
black hole may be a better phrase for it. IRIS assessments go 
in there and they do not go out.
    The Administration now is proposing a policy that gives 
agencies like the Department of Defense, who clearly oppose 
more protective standards, the opportunity to challenge EPA 
science in secrecy. We would never permit a process that would 
allow the EPA, in secret, to delay military activities needed 
to protect our Nation. How can we permit a system in which the 
Pentagon, in secret, has the ability to block EPA efforts to 
protect human health and the environment?
    This is only the most recent example of several unfortunate 
efforts by the White House to institutionalize uncertainty that 
I go that through in the book and on our website, http://
www.defendingscience.org/.
    Thanks to our regulatory agencies, we have made great 
progress in reducing toxic exposures and protecting our health. 
But we must not stop. Much remains to be done. In the not too 
distant future, I am hopeful that our political leadership 
responsible or protecting the public health and environment 
will be committed to the independent scientific evaluation of 
the risks posed by air pollutants and toxic chemicals. When 
this happens, we will surely view the activities of the current 
Administration with the same dismay and outrage with which we 
now look back on the deceits of the tobacco industry. But by 
then, the price already paid in preventable illness and 
premature deaths, in destroyed habitats and extinct species, 
will have been enormous.
    Thank you for inviting me to testify today.
    
    
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    Senator Whitehouse. Thank you, Dr. Michaels. We are glad 
you could be with us.
    Dr. Thurston.

     STATEMENT OF GEORGE D. THURSTON, SC.D., PROFESSOR OF 
ENVIRONMENTAL MEDICINE, NEW YORK UNIVERSITY SCHOOL OF MEDICINE, 
           NELSON INSTITUTE OF ENVIRONMENTAL MEDICINE

    Mr. Thurston. I am George Thurston, a tenured professor of 
environmental medicine at the NYU School of Medicine. At NYU I 
conduct the health effects research that we are discussing here 
today.
    Despite progress since the Clean Air Act was enacted by 
you, the Congress, Americans are still suffering from the 
adverse health effects of air pollution. The adverse health 
consequences of breathing air pollution are severe and well-
documented in the published medical and scientific literature.
    Over the past few decades, medical researchers examining 
air pollution and public health, including myself, have shown 
that ambient air pollution is associated with a host of serious 
human health effects, including asthma attacks, heart attacks, 
hospital admissions, adverse birth outcomes and premature 
death.
    The Clean Air Act provides a clear process for the U.S. EPA 
to establish air quality standards. The EPA must set the 
primary or health base standard NAAQS at a level requisite to 
protect public health with an adequate margin of safety. 
Unfortunately, the EPA has failed to follow the latest 
scientific knowledge and to thereby establish a NAAQS, a 
National Air Quality Standard, for ozone or particulate matter, 
that meets this congressional requirement.
    In particular, the EPA Administrator has failed to heed the 
expressed recommendation of his scientific advisors, CASAC, and 
the solid recommendation of the mainstream medical and public 
health community as required by the Clean Air Act. Now, Senator 
Alexander in his comments seems to dismiss this process as just 
between a committee that is set up by the EPA Administrator and 
his staff, so they had a little disagreement. But actually, 
this is all stipulated that the Administrator must listen to 
CASAC by the Congress.
    So when the Administrator ignores CASAC, he is not just 
ignoring some committee, he is ignoring the Congress. He is 
ignoring the law of the land, the Clean Air Act. It is all 
stipulated right there what he has to do and he hasn't done it. 
My testimony today focuses primarily on the argument the 
Administrator made for questioning and rejecting the latest 
scientific knowledge, and those words are in the law, in the 
most recent case of ozone.
    In rejecting CASAC's advice to adopt an ozone standard 
within the range of 60 to 70 ppb, the Administrator argued that 
uncertainty over the research prevented him from following the 
guidance of CASAC. Indeed, from promulgating a standard in the 
Federal Register the Administrator referred to uncertainty or 
uncertainties more than 150 times, 172 by my count.
    In the face of a strong scientific consensus, it is just 
untenable to cite uncertainty as a rationale for failing to 
promulgate a tighter standard. There are two basic problems 
with the Administration's uncertainty argument for choosing a 
standard less stringent than recommended by CASAC. First, in 
the face of uncertainty, the Clean Air Act stipulates that the 
Administrator must choose a more stringent standard to ensure a 
margin of safety.
    Also, EPA's uncertainty claims failed to address 
uncertainties that favor a more protective standard. For 
instance, controlled human exposure studies typically use 
healthy young adults as test subjects. This creates uncertainty 
about what the results would be on more vulnerable populations, 
such as infants, children or people with severe respiratory 
disease, such as asthma, simply because we cannot and should 
not use them as test subjects in experiments. But the fact is, 
we know that if we were to do such experiments, they would have 
effects at much lower levels than the subjects we use.
    Second, the Administration has apparently confused 
scientific uncertainty regarding the sizes of the pollution 
health effects or confidence intervals, the confidence 
intervals around the health estimates. In other words, when a 
scientist talks about uncertainty of effect, they are saying, 
well, it could be this big or it could be this big, it is in 
this range. But the Administrator is confusing uncertainty with 
doubt. There is no doubt that there are adverse health effects 
occurring below 75 ppb, or .075 ppm. There just isn't.
    There is uncertainty about the size of those effects. The 
Administrator plays up this uncertainty, uncertainty, 
uncertainty. But I think that is a mis-use or a 
misunderstanding of the word uncertainty.
    As a result of the Administrator's intransigence, CASAC has 
in recent years undertaken an unprecedented number of letters 
to the EPA objecting to the Administrator's actions that did 
not reflect their advice. So what are the impacts? We have the 
present annual air PM 2.5 standard, and the newly adopted 8-
hour average ozone standard that failed to fully protect the 
public from the increased risk of asthma attack, heart attack, 
stroke, lung cancer and premature death. Since they failed to 
protect the public from pollution at levels demonstrated to 
cause harm, they certainly failed to provide a margin of safety 
as unequivocally required by the Clean Air Act.
    Overall, it is vital that the Administrator give proper 
deference to CASAC's advice in the air quality standard setting 
process and thereby apply sound science, which Senator Inhofe 
and I apparently agree on, that we need to apply sound science, 
and that is defined by the law as CASAC. Only in this manner 
can Congress' intent of the Clean Air Act be fulfilled and the 
health of the public be protected.
    Thank you.
    [The prepared statement of Mr. Thurston follows:]
    
    
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    Senator Whitehouse. Thank you, Dr. Thurston.
    Dr. McClellan.

STATEMENT OF ROGER O. MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN 
         HEALTH RISK ANALYSIS, ALBUQUERQUE, NEW MEXICO

    Mr. McClellan. Good morning, Chairman, members of the 
Committee. Thank you for the invitation to present my views on 
the use of science in environmental regulatory decisionmaking.
    I am going to focus on two issues that have received 
considerable attention this morning, the PM standard and the 
ozone standard. I do ask that my comments be entered into the 
record as though read in their entirety.
    The testimony I offer today draws on my experience serving 
on more than 60 major scientific advisory committees for 8 
agencies going back to President Johnson and including every 
President from then up to the present time. This includes 
service on many EPA scientific advisory committees from the 
origin of the agency to the present time, including chairing 
CASAC.
    I want to preface my remarks today by emphasizing a fact 
that is frequently ignored. Scientists understand science. 
However, scientists also have personal opinions, including how 
low is low enough in setting standards.
    Let's talk first about the PM standard. I served on that 
panel. And as required by law, the Administrator put forth a 
proposal. And in that proposal, he you suggested a 24-hour 
averaging time standards in the range of 25 to 65 micrograms 
per cubic meter, and an annual standard in the range of 12 to 
15 micrograms per cubic meter.
    The CASAC particulate matter panel recommended a 24 hour 
standard in the range of 30 to 35 and an annual standard be set 
at 13 to 14 micrograms per cubic meter. I disagreed with the 
majority and offered on dissenting view. I took strong 
exception to the view that the science would support a 14 
microgram per cubic meter standard and not support a 15 
microgram per cubic meter standard.
    Ultimately, Administrator Johnson issued a final rule. He 
made a drastic reduction in the 24 hour averaging time standard 
from 65 to 35 micrograms per cubic meter and he retained the 
annual standard at 15 micrograms per cubic meter. In my 
opinion, he made a reasonable policy choice from among an array 
of acceptable science-based options. I was disappointed that 
some chose to characterize his decision as being a political 
decision. I think he did follow the science.
    Let me turn to the issue of the ozone standard. And again, 
there was considerable debate and contentiousness. Throughout 
the review, there was debate over the numerical level of the 
revised standard. In my opinion, much of that debate was 
premature and it focused on the desire of various parties to 
lower the standard even before the review of the science was 
complete. This resulted in a blurring of the boundary between 
the role of science and judgment in setting the standard. We 
have already heard reference to the specific numbers and the 
ultimate setting of the standard at 0.075 ppm. I think that was 
a reasonable policy decision from among an array of acceptable 
science-based options.
    In my opinion, the CASAC ozone panel moved from the science 
arena into the policy arena in advocating an upper bright line 
value of 0.070 ppm for the primary standard. That value 
represented the personal judgment of the ozone panel members, 
not just their interpretation of the science. As we have 
already heard, the Administrator has the exclusive 
responsibility and authority for setting the standards.
    The law purposefully calls for a Clean Air Scientific 
Advisory Committee, and I underscore advisory. It does not call 
for a clean air standard setting committee. I commend to 
everyone a reading of the opinion of Supreme Court Justice 
Breyer, when he concurred with the majority in saying that 
economics should not be considered in setting the standard. But 
he also gave some very good advice in terms of a common-sense 
approach to deciding what risks are acceptable in the world in 
which we live and for deciding how low is low enough in setting 
the standards.
    I think that the ozone panel was offering their collective 
opinion as to the level of the standard and they went beyond 
simply offering a scientific opinion. I think that it is 
humbling for scientists to acknowledge the distinction between 
science and personal policy preferences. But in fact, we as 
scientists must do that and accept the fact that at some point 
the science stops and then a policy decision must be made 
informed by that science.
    Thank you for the opportunity to testify before your 
committee. I look forward to your questions.
    [The prepared statement of Mr. McClellan follows:]
  
    
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    Senator Whitehouse. Thank you, Dr. McClellan.
    Dr. Rhomberg.

            STATEMENT OF LORENZ R. RHOMBERG, PH.D., 
                PRINCIPAL, GRADIENT CORPORATION

    Mr. Rhomberg. Thank you for the opportunity to address the 
Committee. I am Dr. Lorenz Rhomberg, a Principal at Gradient 
Corporation, an environmental consulting firm based in 
Cambridge, Massachusetts.
    I have been asked to address the use of science in the 
development of guidance for conducting risk assessments for 
children's exposures. In 2003, EPA came out with its draft 
supplemental guidance for assessing susceptibility from early 
life exposures to carcinogens and made that draft available for 
public comment. I was commissioned by a trade association to 
evaluate the scientific basis of the EPA's drafts and to make 
oral public comments at the SAB meeting in May 2003 at which 
that draft was reviewed. My comments were supportive of the EPA 
draft on some items, but also noted that what appeared to be 
technically inappropriate formulas that were used in some cases 
for calculating the observed differences in sensitivity between 
young animals and adults in chemical bioassay experience.
    I suggested alternative approaches to this calculation. In 
the end, when the final revised document was published by EPA, 
my suggestions had been essentially applied, resulting, in my 
view, in a sounder scientific basis for the EPA policy 
decisions that resulted. But in that process, my comments, like 
those of the other public commenters, was not simply urging 
what the policy ought to be in the end, what the standard 
should be or what the final decision should be. Instead, it was 
a technical comment on how the available scientific information 
should be interpreted and brought to bear. My comments, as 
others, pulled out the scientific evidence to support those 
points so they could be debated.
    But even with that scientific debate that occurred, there 
was no single best or correct scientific answer to the 
questions at hand that emerged in that debate, and no single 
answer was recommended by the SAB, because it couldn't be. The 
SAB members and later the EPA policy formulators that drew on 
those recommendations had to arrive at a policy about relative 
sensitivity assumptions to be applied to other chemicals, not 
the ones that were being examined in the SAB meeting. That 
policy had to be supported as well as possible by scientific 
understanding of the data at hand. That is, a policy guided by 
science but not, because it is rarely possible to do so, 
identified by science.
    In the end, it is the collective judgment of knowledgeable 
and appropriately trained people, the whole span of the 
mainstream opinion of the field as a whole, that is what 
science has to say on a subject, and not the opinion of any 
individual scientist, no matter how well qualified that 
scientist may be, whether they are an EPA staff member or they 
are an EPA manager or a political appointee or an external 
scientist. What science has to say is not something that any 
one person dictates, it is what the science field as a whole 
thinks.
    I would like to offer some general thoughts on the use of 
science in setting environmental standards. Many of our 
environmental laws are cast using the implicit presumption that 
there is a clear scientific answer to the key questions and 
that any competent scientist acting forthrightly and in good 
faith will look at the evidence and come to essentially the 
same conclusion.
    In this setting, the agency scientists' evaluation serve as 
a surrogate for the opinions of the scientific world as a 
whole, presuming that any competent scientific investigation 
would yield a definitive answer that would be just about the 
same. Under this view, the science advisory board or other high 
level peer review is mostly to provide due process and 
oversight to ensure that the investigations and findings are 
indeed made competently and in good faith.
    The difficulty with this view is that scientific answers to 
key questions are really not that clear, and different 
interpretations with very different risks of management 
consequences can be made. We always have to face the 
incompleteness and uncertainty in data, even contradictions 
among the data that we have to evaluate.
    But the debate about these things is an inherent part of 
how science operates. It is not just a reflection of the 
failure of the science, we don't have the right things on the 
table or the motivation of the participants. It is the method 
of science to try to pick apart arguments, to separate what you 
think about things from the motivations and the status and the 
position of the person who is propounding them. In short, 
debate about science, its studies, their interpretations, their 
bearing on the risk assessment questions, is not evidence that 
the science is being manipulated. That is the science. That is 
the science happening. If you want science-based regulation, 
then we want that debate to occur.
    The question then is how do we structure that debate to be 
helpful to the risk assessment policy process. There are two 
questions. One is, how to ensure that the debate focuses on 
legitimate scientific issues and not specious arguments, and 
the other is how to make decisions in the face of that. In my 
view, the way to do this is to have a very transparent debate, 
put things out on the table, including a separate step where 
the science is evaluated and there is a scientific advisory 
board review of the science that doesn't look at what the SAB 
thinks is the right standard to apply here, but rather has that 
assessment of the full body of opinion of science as a whole, 
with its alternatives and uncertainties in there, being put on 
the table. And then a second step where we decide to do that, 
justifying the choices that we make in view of those questions.
    By putting these things on the table, the uncertainties in 
the first place and the justifications for decisions in the 
second place, so that they can be seen and criticized by 
others, it will be then hard to manipulate this process, 
because any manipulation would be evident.
    Thank you.
    [The prepared statement of Mr. Rhomberg follows:]
    
    
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    Senator Whitehouse. Thank you, Dr. Rhomberg.
    Our final witness, Dr. John Balbus.

STATEMENT OF JOHN M. BALBUS, M.D., MPH, CHIEF HEALTH SCIENTIST, 
                   ENVIRONMENTAL DEFENSE FUND

    Dr. Balbus. Thank you very much for inviting me to provide 
testimony and bat cleanup for these very loaded bases we have 
this morning.
    My name is John Balbus. I am the Chief Health Scientist for 
the Environmental Defense Fund. EDF is a non-partisan, science-
based, environmental non-profit organization that partners with 
Government, industry and communities to find practical 
solutions to environmental problems. I am a physician and 
public health professional, a member of the board on 
environmental studies and toxicology at the National Research 
Council and a current member of NRC committees on risk 
assessment and nanotechnology. Since 2004, I have also been a 
member of EPA's Children's Health Protection Advisory 
Committee.
    Prior to joining EDF, I was a faculty member at The George 
Washington University Schools of Medicine and Public Health, 
where I founded the Center for Risk Science and Public Health 
and co-founded the Mid-Atlantic Center for Children's Health 
and the Environment, one of 10 pediatric environmental health 
specialty units in the United States.
    So my testimony this morning comes from the perspective of 
a children's environmental health advocate and member of EPA's 
Federal advisory committee on children's health protection. I 
am going to provide examples of what I consider repeated 
failures of the agency to use scientific evidence of children's 
risks from environmental agents to craft standards and 
procedures that adequately protect children.
    The recognition of children's unique susceptibilities have 
led to the development of special protection for children's 
environmental health. President Clinton signed Executive Order 
13045 in 1997 and as part of its implementation, Administrator 
Browner chartered the Children's Health Protection Advisory 
Committee in 1998. The CHPAC provides advice to EPA on science 
and policy issues that affect children, providing 
recommendations directly to the Administrator in the form of 
consensus letters. One of its more unique features is that this 
consensus is achieved among technical and policy experts from 
all sectors, including representatives of a variety of 
industries.
    In my written testimony, I describe how EPA decisions on 
ozone and fine particulate matter standards discounted the 
expert advice regarding the State of the science from the EPA's 
advisory committees, the CASAC and the CHPAC. I also describe 
the lack of the scientific rigor and the justifications 
provided for such, and how the resulting standards failed to 
provide adequate protections for children.
    In the interest of time, we have heard a lot about that, I 
won't go into more detail in these two examples.
    The CHPAC has been urging the EPA since its inception to 
improve the understanding and management of chemical exposures 
in children. The Committee wrote a letter to the Administrator 
recommending that the agency begin to gather the needed data to 
determine whether exposures to these chemicals are harming 
America's children, starting with prioritization of the 
inventory of chemicals in commerce under the Toxic Substances 
Control Act, or TSCA.
    While the agency has begun to analyze data collected 
through the high production volume chemical challenge program 
and the inventory update rule to provide understanding of risks 
posed by existing chemicals on the market, these data are very 
limited in their ability to assess children's risks, and the 
use and interpretation of these data by the agency to date has 
been highly questionable. I provide more details on this in my 
written testimony.
    Another area, starting with a pilot project in 2000, the 
voluntary Children's Chemical Evaluation Program's stated goal 
is to ensure that there are adequately publicly available data 
to assess risks from chemicals known to be of concern for 
children. Eight years now after the pilot program's initiation, 
of the 23 chemicals nominated for the pilot, not a very large 
number, because there was clear demonstration of children's 
exposure to these 23, 3 were never sponsored by industry, 5 
never had data submitted by the industry, 3 had data but no 
decision on data needs has yet been made by the EPA and roughly 
half, 12, have completed the first tier of the program 8 years 
in.
    A mandatory review of the pilot took place in the fall of 
2006 with a summary of the mostly critical comments published 
in March 2007. Since then, now over a year later, there is 
still no indication of EPA's plans to revise, resume or replace 
this program. CHPAC's comments on the weaknesses of this 
program have not been addressed formally by the EPA. It lies 
fallow.
    Finally, exposures to cancer-causing chemicals during 
childhood may sow the seeds for the development of cancer later 
on in life. A growing body of scientific evidence documenting 
this window of greater susceptibility in children led EPA 
scientists to recommend adjustments in the way risk assessments 
are performed for cancer-causing chemicals that account for 
this enhanced potency during this time.
    But a subsequent EPA document providing more specific 
guidance on just how to conduct cancer risk assessments has 
ensured that vanishingly few cancer-causing chemicals will ever 
meet the criteria to be treated as more potent in children. By 
using the narrowest possible definition of one particular 
mechanism of causing cancer, the agency has in fact strayed 
from usual risk assessment practices and backed off from 
providing greater protection for children in accordance with 
their greater susceptibility.
    Taken as individual phenomena, none of these examples might 
stand out as remarkable. They could be considered just the 
process of science. But when considered as a whole, a picture 
emerges of an agency whose senior leadership has repeatedly 
chosen to stray from the clear and science-based 
recommendations of expert advisory panels, public health 
organizations--we heard the list that wrote on the air 
standards--and in some cases, even its own career staff 
scientists in order to make policies and decisions that fall 
short of adequately protecting children as well as the general 
public.
    In some cases these policies and decisions are justified on 
the basis of arguments that run counter to established 
scientific principles and the judgments of the most prominent 
experts in the Country. In other cases, these policies are made 
really with little justification whatsoever.
    I applaud this Committee for its effort to shine a light on 
the science within EPA and greater transparency in agency 
decisionmaking. Greater adherence to the recommendations of the 
agency's scientific experts will help bolster public trust in 
the agency and lead to greater protection of children's health.
    Thank you very much.
    [The prepared statement of Dr. Balbus follows:]
    
    
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    Senator Whitehouse. Thank you, Dr. Balbus.
    I am pleased to announce that we have been joined by 
Senator Baucus of Montana, the chairman of the Senate Finance 
Committee. I would invite him to make a statement, if he would 
like.

STATEMENT OF HON. MAX BAUCUS, A UNITED STATES SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. I thank the Chairman.
    I would like to add my voice to urging the EPA to return 
much more to science-based decision, and away from decisions 
which, in my judgment, are based more on politics. I would like 
to begin with a quote from the President's father. President 
George Herbert Walker Bush said in 1990, that ``Science, like 
any field of endeavor, relies on freedom of inquiry. And one of 
the hallmarks of that freedom is objectivity. Now more than 
ever,'' the President continued, ``on issues ranging from 
climate to AIDS research to genetic engineering to food 
additives, the Government relies on the impartial perspective 
of science for guidance.''
    All those of us who are public servants have recognized 
this principle, that the science behind our environmental 
decisions must be objective, impartial and free of politics. 
Sadly, this principle has been abandoned, in my judgment, by 
the current Administration and the corrupted results are real. 
They have real effects, they are hurtful, they are harmful and 
sometimes tragic.
    Unfortunately, in my home State of Montana I see this, 
especially in the town of Libby. In Libby, Montana, people have 
been living with the consequences of 70 years of asbestos 
contamination, most of it caused by W.R. Grace. It is a small 
town, over 200 people have died from asbestos-related diseases 
there. In the early part of the current Administration, the 
scientists at EPA and the Agency for Toxic Substance and 
Disease Registry determined that a public health emergency 
should be declared in Libby, so that greater resources and 
expanded authorities could be brought to bear.
    In other words, the effect of that would be the removal of 
asbestos-contaminated foam insulation in Libby homes as well as 
attending to asbestos contamination in other parts of the 
Country. The EPA said no, they put that science aside, made the 
political judgment to not declare a public health emergency. 
That is a decision that greatly benefited W.R. Grace, but to 
the detriment of the people of Libby, Montana.
    In Libby, EPA management has even drug its heels for 6 
years in one of the most basic aspects of any of its Superfund 
clean-up, that is, determining the level of toxicity, what is 
the toxicity of a contaminant. Because without this 
information, EPA cannot tell the people of Libby whether or not 
their homes are clean, what is the level of toxicity. They 
wouldn't make that determination.
    In response to pressure from me and others, EPA management 
relented and agreed to conduct the necessary toxicity 
assessments in Libby, which will ultimately lead to a science-
based position, not one based on politics. I am not hopeful, 
though, that the current Administration will follow the science 
enough and do the right thing enough, not when recent guidance 
issued by EPA enables secrets, influenced by OMB and other 
agencies, as well as the industries they advocate for, on 
purely scientific assessments of the toxicity of chemicals. Nor 
of the new phrases, such as science policy, that are used to 
disguise, in my judgment, old, corrupt practices that ignore 
science and put politics before public health.
    I feel strongly we need to find a way to get EPA to turn 
much more to the principles of objective and impartial science, 
science-based decisionmaking. Because that, after all, is the 
common denominator, it is the common language, it is basic 
science upon which we all can then make subsequent decisions. 
We must first know the science. We can then make other 
decisions. But at least we need to know the science and the 
science cannot be corrupted.
    So Mr. Chairman, I join you in finding ways we can help 
accomplish that objective, because I think it is so important. 
It also gets to the question of American credibility of 
decisions made by their public servants in Washington, DC, 
whether elected or whether appointed. Thank you.
    Senator Whitehouse. Thank you, Senator Baucus.
    Let me start with a good, solid Rhode Island question for 
Dr. Thurston. We have significant senior population in Rhode 
Island. You indicated in your testimony that using young, 
healthy adults for testing for the ozone standard may not fully 
take in the consequences on various populations that may be 
more vulnerable. You mentioned infants and children and people 
with respiratory illness. Would the elderly also qualify as a 
like more vulnerable population?
    Mr. Thurston. Well, certainly yes, that is what studies 
have shown. Let me just mention, as a born and bred Rhode 
Islander myself, I want to thank you for your service on this 
Committee and showing such an interest in the environment and 
the health of Rhode Islanders, where I have family members.
    Certainly, saying, older adults, I prefer older adults, 
actually, to seniors. I am getting too close to the category.
    Senator Whitehouse. They get younger all the time.
    [Laughter.]
    Mr. Thurston. I am glad to hear that. But older adults are 
far more susceptible to environmental insults, because many 
times they have pre-existing disease. And when you have a pre-
existing disease, that makes you more vulnerable to some other 
insult, like an environmental insult, exacerbating your disease 
situation and therefore, you are much more likely to suffer 
major consequences, from an exposure to things like air 
pollution.
    Senator Whitehouse. Because what we see far too often in 
Rhode Island is, on a summer day, a notice broadcast over the 
radio that it is not safe for infants and young children or 
older Americans to go out of doors because the ozone 
contamination in the air is so high.
    I come from a State that is on the Atlantic Ocean. We get 
fresh air blowing off the cool Atlantic all summer long. If we 
have this problem in Rhode Island, I can only imagine what it 
is like in other States that don't have that kind of advantage 
from the point of view of our environment. It strikes me that 
it is important to remember that as we are discussing those 
sort of abstract numbers and these scientific determinations 
and these process questions, that when Administrator Johnson is 
done saying that 0.075 is OK, despite the fact that not a 
single member of either of his panels was willing to go to that 
number, that has real consequences for real people, and it 
means that they have to stay indoors trapped by that decision, 
they can't go outside. And it means that if they do, they faced 
increased risks of the kind of medical problems that you have 
described.
    Let me also ask Dr. Balbus, you said that individually 
versus taken as a whole, there are conclusions that one can 
draw from the sort of repeated instances that you have 
chronicled under this EPA leadership. Could you, do you have 
any either sense or calculation as to, on those occasions, when 
EPA strays from what its own science indicates is the proper 
answer, is it easily balanced or do they tend to veer more 
toward protection of the environment and public health or more 
toward industry? Are there any patterns or trends that you have 
established in the occasions when EPA departs from the range 
supported by its own scientific evidence?
    Dr. Balbus. In each of the examples that I provide in the 
testimony, these were examples where existing standards or 
procedures were being strengthened in order to afford greater 
protection of public health. In each of these examples, the 
decision that was made was always in the direction to not go as 
far.
    Senator Whitehouse. Always.
    Dr. Balbus. In the examples that I provided and in the 
examples that I am aware of. I am not aware of an example----
    Senator Whitehouse. You are not aware of a single example?
    Dr. Balbus. I am not aware of an example where the 
Administrators have chosen to err on the side of greater public 
health protection when any of their science advisory panels 
have advised, in the last, since I have been with EDF for the 
last 7 years.
    Senator Whitehouse. Dr. Gilman, under Administrator 
Johnson's tenure, are you aware of any times when he has 
departed or used the uncertainty principle to depart from 
scientific recommendations in the direction of greater 
environmental or public health?
    Mr. Gilman. I am not as great a student of Administrator 
Johnson's tenure. I can speak to one, actually, one that the 
representative of the Environmental Defense stated was the most 
significant public health measure taken since we took lead out 
of gasoline, which is of course the Diesel Rule that was 
further promulgated under this Administration. I don't think 
there are too many people who would argue with that 
characterization.
    Senator Whitehouse. My time has expired. Senator Alexander?
    Senator Alexander. Thank you, Mr. Chairman, and thank you 
for the hearing. Let me thank the witnesses for what they have 
said.
    Let me see if I can derive a constructive suggestion for 
what to do about this black hole that has been talked about 
today. Dr. Gilman, Dr. Michaels paid you a nice compliment. 
What was your job with the EPA? When were you there?
    Mr. Gilman. Actually, I was going to say at the start of my 
testimony, I can't understand anyone who would ever take the 
job that Dr. George Gray had. That was the job I had while I 
was at the EPA. I was both the Assistant Administrator for the 
Office of Research and Development and the Science Advisor.
    Senator Alexander. Is it your understanding of the law that 
the science advisory committee, such as the one that made the 
ozone recommendation are purely advisory?
    Mr. Gilman. The CASAC is actually a statutorily established 
committee. And there are burdens placed on the Administrator in 
terms of receiving that information. I haven't read the statute 
as closely, I think probably George had it up on the internet 
during the first part of the testimony.
    Senator Alexander. Well, let me read you Section 109 of the 
Clean Air Act. The air quality standards, ``In the judgment of 
the Administrator, based on such criteria in allowing an 
adequate margin of safety that are requisite to protect public 
health.'' So has it been the practice at the EPA for the 
Administrator under that provision of law to make the final 
decision about ambient air standards?
    Mr. Gilman. Yes.
    Senator Alexander. And as I mentioned earlier, and I won't 
ask you about this, I will just make my own observation, in 
this case, the advisory committee recommended a range of .06 to 
.07, the Administrator chose .075. So the way I look at it, the 
Administrator disagreed with them less than they disagreed 
among themselves in terms of the range. In other words, they 
didn't recommend to the Administrator, and I am making this 
observation myself, that he would pick .065 or .063 or .067. He 
went above that. And then he published, under the law, the 
recommendations of the science advisory committee are public, 
and we have asked that they be a part of this record.
    Then the Administrator made his decision. He is obligated 
to explain why he made his decision, apparently, and I have 
asked for that to be made part of the record.
    But the problem seems to be this black hole, this 
interagency review. When did interagency reviews of EPA 
decisions begin, do you know?
    Mr. Gilman. They probably have happened in ad hoc basis 
through time. Obviously somewhat in the past informal, now 
being proposed much more formally. During my tenure at the 
agency, we tried to make it a practice of informing other 
agencies that we were about to begin an assessment of a 
particular compound, to alert them to the fact that we were 
going to be doing that work, and invited them to participate in 
the process that was in place for getting their views and any 
information they might want to share.
    Senator Alexander. The interagency review occurred during 
the Clinton administration?
    Mr. Gilman. I can't speak to whether it happened on an ad 
hoc basis or a more formal basis. But in my experience, and I 
actually served at OMB for a period of time, the interagency 
process happened sometimes in a very informal way, it happened 
sometimes at the very end of the process. I wouldn't be 
surprised at all if there were occasions when there was an 
interagency review.
    Senator Alexander. My understanding is that it did. This is 
my last question. The way I look at this, if the advisory 
committee is advisory and if the Administrator has a judgment 
to make and he makes it based on the criteria, the court can 
decide whether he was within the criteria, some of us might 
have made a different decision, I might have frankly, on ozone, 
made a different decision than the Administrator did. But I 
think he was within his right to do it.
    And if his recommendation is public and if the scientific 
recommendation is public, that is a lot of transparency. It 
seems to me the so-called black hole is the issue here. And 
could you suggest to us, I mean, I can think of a lot of 
reasons why discussions of our staff, executive sessions of 
this Committee, members of the President's staff, the 
decisionmaking, those things aren't public. They are part of 
the process.
    But can you suggest to us ways that the interagency review 
could be improved so it would build confidence in the process 
that science is being respected in the decision that is being 
made about public health?
    Mr. Gilman. Yes. I would agree with you that there are 
times when those kinds of deliberations should be private. But 
I do think in this case, frankly, it would serve the best 
interests of the OMB, the best interests of the EPA and best 
interests of the process, the results, the credibility of that, 
if indeed we returned to what was the practice before the most 
recent policy, which is that the various Federal agencies 
should actively participate in the public process, the very 
public process all the way from the nominating of compounds 
into the IRIS system, all the way through the process of taking 
in information, putting it through peer review, responding to 
the peer review. The peer review process provides an 
opportunity for other Federal agencies, other entities, 
interested parties, to participate, add their comments and the 
like.
    I do think that was the process that provided both the 
opportunity to be heard and the transparency that improves 
credibility.
    Senator Alexander. Thank you, Dr. Gilman. Thanks to the 
other witnesses. Please excuse me.
    Senator Whitehouse. I understand that Senator Alexander has 
other commitments. We will continue with Senator Boxer.
    Senator Boxer. Yes, Senator, before you leave, I just want 
to tell you that you seem to be, well, going back to the--to 
the whole point of whether or not the Administrator acted in a 
lawful manner. What I want to put in the record, and I hope you 
will read it, is the ten times that this Administrator has been 
just overruled by the courts. And some of the most conservative 
courts, Janice Rogers Brown was one of those justices.
    And I am just going to quickly tell you what they are. And 
how you could say he was within the scope on some of these 
things, when he was clearly outside the scope, you know, people 
might not like it, Dr. McClellan was annoyed, but too bad, you 
weren't on that particular advisory board and you were 
overruled. So that is life.
    The fact is, here is when they were overturned: 
Massachusetts v. EPA. Supreme Court rejected EPA's argument 
that greenhouse gases are not air pollutants. In New York v. 
EPA, EPA's interpretation that substantial plant modifications 
did not come within the scope of physical change would make 
sense only in a Humpty-Dumpty world. This is the court 
speaking.
    Another one, EPA rules seeking to reverse controls on 
mercury from power plants was unlawful on its face. Another 
one, this is all the Bush administration, not, Mr. Gilman, 
going back. D.C. Circuit chastising EPA for taking an unlawful 
approach to emission standards. EPA's efforts to exempt whole 
categories of toxic pollutants from regulations violated its 
clear statutory obligation under the law. Portions of EPA's 
smog rule unlawfully evaded the plain language of the Clean Air 
Act.
    If EPA disagrees with the Clean Air Act, it should take its 
concerns to Congress. In the meantime, it must obey the Clean 
Air Act. And this one, NRDC, EPA incinerator rules violated the 
clear and unambiguous language of the statute. Another one, 
EPA's attempt to create a low-risk subcategory of manufacturing 
facilities exempted from the Clean Air Act was an unlawful 
attempt to sidestep what Congress prohibited.
    So the point I want to make, before you left, and I am so 
sorry I kept you here, is that all of this is a pattern. We 
already know there is a lawsuit filed against the small 
particulate matter. I believe that will be another slam dunk 
for the people fighting on the side of science and health. And 
there is going to be a lawsuit filed on ozone, because you went 
outside.
    So when Justice Scalia clearly states unambiguously that 
the California Clean Air Act says that you cannot put in any 
other implications, cost or anything else, that is the end of 
it. But yet this Administration keeps doing it time and time 
again. They are losing battle after battle. The people are 
wining this battle. And I don't understand why this Committee 
can't be united in saying that this is wrong. I don't think you 
can defend the indefensible. I know that you and I have great 
respect for each other, but I don't see how you can he acted 
within what the scientists recommended when the scientists had 
a range, then he went outside the range.
    And this whole uncertainty, uncertainty, which one of you 
was talking about the tobacco companies? Yes. Dr. Michaels 
reminded us, the tobacco companies, well, we really don't know 
that smoking causes cancer, we really can't prove it, and years 
and years of that stuff. And it goes on. Just watch for this 
word uncertainty, how many times the witnesses who here are 
connected with some of these organizations use it. It is the 
new buzz word, uncertainty. And I don't think that we were born 
yesterday and we get it.
    But I want to say to Dr. Gilman, thank you for bringing up 
all those headlines from years past. Good for you. Because this 
is a battle that is not part of it. Let's put up these 
headlines on more time. This is what we are facing here. And I 
don't care who does it. I don't care if it is a Democratic 
President, a Republican President, an Independent President. If 
they are going to hurt my people and my kids in my State can't 
breathe, too bad for them, you are wrong. And that is it. And I 
am going to fight.
    And here you go. White House meddling hobbles EPA, EPA's 
staff are discussing the issue. Look at this. This is sick. And 
then you have all these decisions by the court which just are 
unequivocal. One after the other after the other after the 
other. So it is really a time for us to act, and that is why we 
are so proud that Senator Whitehouse actually recommended this 
hearing, and that is why he is chairing it.
    I wanted to say to Dr. McClellan, you said that you were 
very angry at this ozone deal. And you put a statement into the 
record at the time stating your point of view at what the level 
ought to be. And you base it----
    Mr. McClellan. Excuse me, Senator. I did not, enter into 
the record a recommendation as to a numerical standard. That is 
a misstatement that the record should show clearly is a 
misstatement.
    Senator Boxer. OK, is this really, because, I think this is 
in your statement, isn't it from your statement? OK, this is 
what you had in your statement: ``I submitted my personal 
comments to the ozone docket, and I also joined with nine of my 
scientific colleagues in submitting a document called Critical 
Considerations in Evaluating Scientific Evidence of Health 
Effects of Ambient Ozone to the docket.'' You are saying you 
did not do that?
    Mr. McClellan. Absolutely, that is the document, I think it 
is a seminal piece of----
    Senator Boxer. OK.
    Mr. McClellan [continuing].--scientific review. But if you 
will carefully read that document, if your staff will read it, 
you will not find a specific recommendation as to the numerical 
standard.
    Senator Boxer. OK.
    Mr. McClellan. I stand by my statement.
    Senator Boxer. Fine. Fine.
    Mr. McClellan. Science alone cannot set the standard.
    Senator Boxer. Sir, sir, I am not asking your opinion. You 
gave your opinion. I am trying to read this to you from your 
own words that you submitted this document into the record, 
which is fine. And by the way, it was your total right.
    Now, who funded that study?
    Mr. McClellan. The Rochester report, which was prepared by 
myself and nine colleagues, was funded by the American 
Petroleum Institute.
    Senator Boxer. Thank you. I wanted to get at that. Special 
interests funded the study. Let's get it straight here. When I 
hear from witnesses, Mr. Chairman, I want to know where they 
are coming from. Thank you.
    Mr. McClellan. That is why we made a special effort to make 
certain the report clearly states who sponsored the review and 
the independence of the scientists in preparing the report.
    Senator Whitehouse. Senator Alexander, did you want to put 
something into the record?
    Senator Alexander. Thank you, Mr. Chairman. I will be glad 
to read the cases that Chairman Boxer offered of the number of 
times that the Supreme Court has overruled the EPA during the 
Bush decision, if she will read the number of times the Supreme 
Court and other courts have overruled the Clinton EPA 
Administration. I would ask unanimous consent to put into the 
record a list of those cases where the courts have overruled 
decisions by the Administrator of the EPA during the 8 years of 
the Clinton administration.
    Senator Whitehouse. We ordinarily close the record of the 
hearing within a week after the hearing. So the sooner you can 
get it in.
    Senator Alexander. We will summarize it and we will do it 
properly.
    Senator Whitehouse. You have unanimous consent.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. And let me say, I fully support that. You 
know, this is the point I made to Dr. Gilman, this is a battle 
that rises above politics. This is about the health of our 
people. I don't care who does the wrong thing. They better 
protect the health of the people. I don't care who they are. 
And I will fight against them if they are in my own party or in 
anything else, if they don't.
    Senator Whitehouse. If I could ask just a few more 
questions. Let me start with Dr. Grifo. You have looked into 
this fairly considerably. A number of witnesses have mentioned 
the concern about the black box. When you have OMB with the 
ability to have secret meetings in the science stage of the EPA 
determination, and inject its point of view, what safeguards 
are you aware of in the process that, in the absence of any 
transparency, that would restrict the OMB input to what might 
be called pure and legitimate science, as opposed to put it 
bluntly, shilling for special interests that might have access 
to the White House, of which OMB is a part.
    What prevents this from being a back door through which a 
political interest can get to the White House, the White House 
can give OMB instructions, and the instructions can meet with 
EPA, and because it is all secret, nobody ever knows that there 
is in fact the rankest kind of political influence, direct 
monied political influence, being brought to bear. What are the 
structural protections that prevent that from happening?
    Ms. Grifo. There is not much, nothing that I am aware of. I 
think what is really important here is this issue of those 
documents as they go into OMB are considered pre-decisional. I 
think the problem with that is it means that those of us on the 
outside wanting to see them, wanting to understand them, can't 
access them through the Freedom of Information Act. They are 
off limits to us.
    And I think we have seen instances where they are clearly 
pre-decisional for a very, very long time. They do not move at 
an adequate pace through the system. And I think today, we have 
talked about numerous examples of this. I think what we would 
like to see is a more consistent effort to put those documents 
out there, because I think we have all said, sunshine is the 
best disinfectant. If the documents are out, we can look at 
them when they go in, we can look at them when they come out, 
and we can know what happened.
    But right now, your Committee has had trouble accessing 
these documents. Other committees have had trouble accessing. 
And those of us that are limited to the powers of FOIA have had 
trouble accessing these documents.
    Senator Whitehouse. Dr. Michaels, as you have looked at 
some of the institutional forces that have been brought to bear 
to twist the science on various issues, particularly in the 
research for your book, but in whatever forum, there are sort 
of the legendary ones, like the American Tobacco Institute and 
the American Lead Institute, which I had the great pleasure and 
privilege of actually putting out of business.
    Have you ever come across this Annapolis Center to which 
Mr. Gray belonged for those five or 6 years? And in the scheme 
of things between truly solid, legitimate scientific 
institutions and phony fronts for industry advocacy, where 
along the spectrum would you place that outfit?
    Mr. Michaels. Senator Whitehouse, thank you for asking that 
question. I am glad I brought my book along, because in fact, I 
address that very question here. The Annapolis Center was 
started by a vice president of the National Association of 
Manufacturers for, among other purposes, fighting the EPA's 
clean air standards. There is documentation from the Wall 
Street Journal some time in the 1990's on that.
    It is heavily funded by ExxonMobil, from whom it received 
about $700,000 between 1998 and 2005; and by large coal-burning 
utilities like the Southern Company Corporation, which gave it 
more than $300,000. It produced a series of reports which just 
say, frankly, there is too much uncertainty, we can't move 
forward. That is their mantra. We see it again and again, there 
is no science there. This is tobacco's strategy of saying, 
``there is too much uncertainty, we can't move forward,'' and 
applying it to pollution.
    Unfortunately, what we are seeing now is that there is a 
whole industry, the product defense industry, which is made up 
of for-profit corporations that are run by scientists or 
consultants and some of these supposed think tanks that defend 
every product when they are facing regulation. It is ludicrous; 
the indoor tanning association is out there questioning the 
science around ultraviolet radiation and skin cancer. You can 
always find someone who appears to be a scientist to say, there 
are questions.
    Then we hear the phrase, sound science, when there are 
attacks on this regulation, but really what it is is something 
that sounds like science. They pull this stuff out to slow down 
the regulators. And unfortunately in this Administration, it 
works.
    Senator Whitehouse. With respect to another similar 
organization that Dr. Gray was also associated with, the 
Foundation for Research on Economics and the Environment, did 
that one come up in your----
    Mr. Michaels. I haven't seen that one, but there are lots 
of these organizations. It sounds reasonable on the face, the 
clean water program is set up by some of the polluters who are 
responsible for putting perchlorates in our aquifers.
    Senator Whitehouse. It is their purpose to sound reasonable 
on their face, otherwise they wouldn't be effective at 
misleading the public, correct?
    Mr. Michaels. That is correct.
    Senator Whitehouse. All right. You mentioned also that 
people have been cleared out of various positions on advisory 
and scientific boards. I assume one of the people you are 
referring to is Deborah Rice?
    Mr. Michaels. Yes.
    Senator Whitehouse. I found it interesting that the 
putative basis for removing her from her position, talk about 
Orwellian, not only did they remove her from her position, they 
went back and scrubbed the record of anything she had ever 
said. They sort of tried to disappear her as a person, a novel 
administrative procedure, from my perspective anyway. The 
reason was an asserted conflict of interest. And the conflict 
of interest was, the asserted one, was that she had stated her 
professional view on a particular issue on behalf of the State 
of Maine in a regulatory proceeding.
    I guess I would ask you if you think having an opinion, a 
scientific opinion, is what is ordinarily understood in the 
scientific community as a conflict of interest. Because in the 
legal and political communities that I am familiar with, you 
are supposed to have opinions all day long, you can cite for 
the things you believe in based on facts. A conflict of 
interest is when you have an association with industry, a 
financial link, a true sort of conflict of interest as opposed 
to just a conflict of opinion.
    And what is your evaluation of Ms. Rice's situation? And I 
ask this for a particular reason because as we were preparing 
for this hearing, we have a number of people, scientists either 
at EPA or on EPA panels, who said to us, I would love to come 
forward and testify, Godspeed with what you are doing, this is 
really important, the place is not what it appears and what it 
should be, but I don't dare come forward now, because I fear 
retaliation and her name was invoked as the, I don't want to be 
the next Deborah Rice.
    Mr. Michaels. You are absolutely right, it is truly 
Orwellian. In the view of the scientific community, scientists 
are supposed to have opinions. Our job is not just to produce 
science, but to synthesize, to integrate the scientific studies 
and come out with some judgments. She was on this committee 
because she was able to do that, and Dr. Rice is a very well-
known and respected toxicologist working for the State of 
Maine.
    The people we are particularly concerned about are people 
with financial conflicts of interest, because we know from 
study after study that, in fact, a financial relationship can 
clouds someone's judgment. And the most tragic example probably 
is Vioxx. We know now that Vioxx greatly increases the risk of 
heart attacks. Somewhere in excess of 80,000 heart attacks 
among Americans were caused by Vioxx. If you go back and look 
at the studies that were done five, 8 years ago, we can see 
that the evidence was there from the very beginning that Vioxx 
increases the risk of heart attacks.
    But numerous scientists paid for by the manufacturer of 
this drug couldn't see it. They said, when they looked at the 
evidence, well, there is some other reason for these heart 
attacks, it is the other drug people are taking, it can't 
really be true that Vioxx was cuasing the heart attacks. We are 
paying the price now with many deaths as a result.
    The answer is to make sure that people on these advisory 
committees have opinions and are good scientists, but have no 
financial conflict of interest. In fact, the International 
Agency for Research on Cancer, which is the World Health 
Organization's branch that classifies carcinogens, introduced a 
very successful policy about 3 years ago that if you have any 
financial relationship to the issue under question, you can't 
serve on one of their panels. You can be an esteemed 
representative to testify, as Dr. McClellan might have been at 
their meetings, but you can't be part of their deliberations, 
because that financial conflict of interest clouds your 
judgment. We should be doing that here at EPA as well.
    Senator Whitehouse. My time has expired. Senator Boxer?
    Senator Boxer. I just want to again thank you so much, Mr. 
Chairman, for your work. This is important work. And what 
saddens me is to see the Environmental Protection Agency become 
a shadow of its former self and have people who I think should 
know better say, oh, it is fine. It is not fine. And I guess 
each of us sees our job through our own experience and how 
things impacted us.
    I remember myself, as a much, much younger person, learning 
about the Pinto, Ford Pinto, and learning about that case. And 
learning that the maker of that automobile actually knew 
exactly what was wrong. And in the discovery part of the lost 
case, we all learned that they put a number to the problem of 
this engine problem and they said, you know what, it is cheaper 
for us to simply, rather than change it, have these lawsuits, X 
number of people will die, but it will be cheaper for us. It is 
a disgrace. It is a sin, in my view, to have that attitude.
    And I believe that attitude prevails inside the 
Environmental Protection Agency. I do. I believe that our 
children's health is expendable to these folks in there who are 
working at the behest of the special interests. I believe it. 
Just as I believe the tobacco companies knew what they were 
doing and made this whole uncertainty, uncertainty, 
uncertainty. No, they knew.
    And this committee has a job to do. It is not always 
pleasant. But it is very important to blow the whistle when we 
see these things happening. And we see people who are in there, 
trying to fight the good fight get kicked out for no other 
reason that they will not be cowed, they will not come to heel 
and carry out a political agenda for the special interests. We 
have seen it time and time and time and time again.
    Mr. Johnson refuses to come up here. I know it is 
unpleasant for him. And let me say to him through this day, it 
is unpleasant for me. I don't like having to argue with him. 
Because I think it is an argument that never should have to 
take place. We are supposed to be doing what is right for the 
people. That is why we are here. And I think as we do what is 
right for the people, via the environment by the way, I think 
we help business, Mr. Chairman. Because if our workers get 
sick, they can't go to work. And the cost of health care on a 
lot of our businesses is skyrocketing.
    We are going to take up some bills next week, I am very 
excited about them, really, to protect the quality of the air 
around ports. We have ships coming into port that are filthy, 
using bunker fuel, coming into your ports, coming into my 
ports, getting people very, very, very sick for no reason when 
there is an alternative that would barely add pennies to a pair 
of NIke shoes, if that.
    So this hearing, to me, is really the heart of why I got 
into public life in the first place. And I just want to commend 
you, and I do have just a couple of quick questions for our 
wonderful panel. I would say, Dr. Thurston, you mentioned that 
the American Lung Association, the American Medical 
Association, the American Academy of Pediatrics, the American 
Public Health Association and many other medical associations 
led a ``consensus in the scientific community'' that EPA should 
follow CASAC's recommendations on the ozone standard. Please 
tell us why you believe the science is strong supporting the 
need for this stronger standard, and what the health effects 
are that CASAC and the experts are so worried about.
    Mr. Thurston. Well, there are just hundreds of studies that 
have been done since the first time that I testified before 
this Committee, which is 1996, that demonstrate effects below 
the level that the Administrator is trying to set the standard. 
So many of those are epidemiological studies that show these 
effects. And I gather there is a bit of an argument about the 
controlled exposure studies and trying to point to those and 
saying, well, maybe they're definitive or not.
    But as I mention in my testimony, that these controlled 
exposure studies don't always show all of the effects. In 1984, 
we at NYU and researchers at Harvard did a study where we 
followed children in western New Jersey. We demonstrated that 
as one function decrements, decreasing their ability to inhale 
and exhale air, at levels well below the 100 ppb 1 hour 
standard. At that time, a 100 ppb ozone level. At that time, 
the standard was 120 for a 1-hour. And they had done controlled 
exposure studies that failed to demonstrate lung function 
decrements at 120, below 120. So they said, well, basically 
your epidemiology study must be wrong, because you must have a 
confounder you haven't considered or something, because we have 
these controlled exposure study.
    But we said, well, but the reality is, these kids are 
exercising and they are also exposed, not just to 1 hour, but 
to multiple hours. So then they went back and they re-did the 
controlled exposures studies where they had people exercise and 
expose them to 8 hours. And in fact, what they found, they 
confirmed our epidemiology that there were effects well below 
what the controlled exposures studies showed us. And the 
epidemiology was right, but the standard was lowered as a 
result.
    And we have pretty much the same situation today that we 
are seeing in the epidemiology, which is real people, getting 
real exposures in the real world. There are just many studies 
below the standard that the Administrator is proposing that 
show just these kinds of effects. And we are seeing severe 
effects of hospital admissions and now the studies clearly show 
what I said in 1996, which was that there are mortality effects 
of ozone. The EPA is somewhat still in denial about this. They 
actually did a risk analysis, they considered a case where 
there are no mortality effects of ozone, and they pointed to 
those, and those are the EPRIA. Then that is considered by OMB 
in doing the standard.
    And that is a ridiculous case. Because we know, and now the 
National Academy of Sciences has finally confirmed something we 
scientists have known for a decade, that there are mortality 
effects of ozone. And yet, they considered this ridiculous case 
of no mortality effects from ozone exposures and I think that 
that may influence, I know that economics can't be considered, 
but OMB does consider this and the RIA. And that should not 
really be in the RIA, but that case apparently is.
    So I think the epidemiology speaks strongly for the fact 
that what the Administrator has set as a standard is not the 
appropriate one.
    Senator Boxer. Right. And I would predict right here and 
now a lawsuit on this. And the people will win it, very 
clearly. All you have to do is look at what Justice Scalia 
wrote.
    Last question is to Dr. Balbus, and thank you for being 
here. Could you describe in a little greater detail your 
concern with EPA's management of the children's chemical 
evaluation program?
    Dr. Balbus. This relates to our discussion of science, 
because this is a premier means of getting detailed scientific 
evidence on the effects of chemicals on children. The intent of 
this was to look at chemicals that were found in children's 
bodies through bio-monitoring or well-known to be in products 
to which children are exposed. So already a select group of 
chemicals of higher risk for children or greater concern for 
children. And then to get much more detailed toxicity 
information than we usually get for chemicals on this subset 
out of a concern for protecting children.
    Environmental Defense Fund was involved in the development 
of this program from the start, and its structure. They were 
highly critical of the way it was structured, which was a 
multi-tiered system that would not start out with a full set of 
data, but would start out with a partial set of data and use 
that to make a decision to go further.
    So this pilot study started in 2000. I was part of the 
original peer review expert panel, consultation panel that 
looked at the submissions from industry. There were issues that 
I don't have time to go into with regard to the voluntary 
nature of it and the way that the actual documents were 
developed or written. But we worked through those.
    The major issue with this program is just its incredibly 
slow pace and the fact that it seems to have been completely 
abandoned. There was an evaluation that was supposed to happen 
a couple of years ago. The evaluation process, after a delay, 
got started, and there has been no feedback to the Children's 
Health Protection Advisory Committee or to the public that I 
know of as to the current status of the program.
    Senator Boxer. So not much is happening, is what you are 
saying. It has sort of been a slow walk.
    Dr. Balbus. It has been a slow walk that has ground to a 
halt.
    Senator Boxer. OK, a slow walk ground to a halt. Now, I 
said it was my last question, but I found one other. And the 
Chairman said I could do this.
    The EPA's chemical assessment management program, there is 
a North American Competitive Council which recommendations 
actions for this program. Do you know about that?
    Dr. Balbus. I am well aware of this, yes.
    Senator Boxer. I just wanted to say for the record who is 
making these recommendations, who is on this North American 
Competitive Council regarding EPA's Chemical Assessment 
Management Program. They are, among others, Chevron, General 
Electric, General Motors and Lockheed Martin. Now, the last 
time I checked, their mission, their first mission was not 
protecting the health of our kids and of our citizens. They 
have other missions. Fine. Fine. But a mission shouldn't be 
confused with protecting our people. I wonder if you agree with 
that.
    Dr. Balbus. I have to confess, I don't know exactly what 
their role is. So I can't really address exactly what it is 
that they are contributing to the ChAMP.
    Senator Boxer. Well, we know that they recommend actions 
for the EPA's Chemical Assessment Management Program. It is 
concerning to me because, again, our role is to balance 
everything. We find out what the scientists say, we find out 
what the economists say, we do all this. EPA has a different 
function, thank God, underscored by the Supreme Court. I say 
that because otherwise, what would we do? We would never do the 
right thing when it comes to protecting health, because there 
is always a special interest that is going to say, I am going 
to lose X jobs.
    By the way, I think this whole issue of environment versus 
economics is wrong on its face. I can point to my own State of 
38 million people now, Senator, 38 million in my State, and I 
think it must be nice to be able to know everyone in your State 
like you can.
    [Laughter.]
    Senator Boxer. But 38 million people, a huge economy, I 
don't know, fifth or sixth largest GDP in the world, moving 
forward, the best per capita energy use of any State, a job 
creator, the home of the Silicon Valley and the computers and 
the biotech and tours and agriculture and you name it, it is 
there, entertainment, you know all that, it is all there, 
fishing, recreation. Now I sound like the chamber of commerce.
    The point I am making is that we have to do all that 
economic expansion while keeping our people healthy. And we are 
certainly not perfect, I know I stayed on that, we are not 
perfect here in this Country, but the one thing that Senator 
Whitehouse and I and others on this Committee want to make sure 
of is that the EPA wakes up in the morning thinking about how 
they can protect the health and safety of the people of this 
Nation, particularly the most vulnerable. Because the good news 
is when you protect these kids and by the way, gentlemen and 
lady, and I know the doctors know this, if they are medical 
doctors, but if you are not, if you have never seen a child 
suffering from asthma or gasping for breath, before you 
criticize a tough standard, go see it, OK? Go see it. That is 
what the EPA is supposed to do.
    And yes, Senator Alexander is right, you are going to put 
everything into the mix at the end of the day, but the EPA, 
when they deal with these pollutants in the air, by law, they 
must only consider the health of the people.
    So I just want to say, we are in trouble here at this EPA. 
There are whistleblowers hurting because of this EPA. I want to 
send another message to the workers over there, change is 
coming. Change is coming. Do not give up, do not worry, change 
is coming. You are going to be able to do your work, you are 
going to be able to be proud once again, and that time is 
coming soon. I thank you very much.
    Senator Whitehouse. Thank you. Let me take this occasion to 
thank all the witnesses for their time and trouble in coming 
here. It has been a pleasure for me to hear from all of you. I 
want to express my particular gratitude to Chairman Boxer for 
allowing me to go forward with this hearing, to chair this 
hearing. She has been an example to me as a new Senator, 
watching her lead this Committee, her passion, her desire to 
get it right, her energy, it is just phenomenal. We have seen 
it again in this hearing, where I have been in the unaccustomed 
position of actually having to hit the gavel hammer for my 
Chairperson.
    Senator Boxer. You did it well, but don't do it too much. I 
am worried here.
    [Laughter.]
    Senator Whitehouse. I think we learned a lot today. I just 
have an awful lot of alarm bells that are ringing right now. 
From the substantive aspect, for instance, an ozone standard, 
which means a lot to my State, that appears to have, at least 
as of today, no visible means of support, certainly no visible 
means of support from within the scientific community EPA 
itself relied on for expert judgment. If you take that to 
something that is writ larger and you look at I think all of 
the occasions when EPA has departed from its own scientific 
advice, it is always, infallibly on the side of the industry.
    I think, Dr. GIlman, you made a good point by raising the 
diesel emissions. That was a good step that EPA took. I don't 
think they departed from their scientific standards in doing 
so. I think when they have departed from their internal 
scientific standards, it has always been toward industry, at 
least it certainly appears that way. I would love to have the 
record corrected if that is not the case.
    On a more systemic basis, what I see is an EPA that has 
systemically and deliberately exposed itself to political 
influence in ways that are new. One is the question of the 
stacked scientific panels. I would note that in contrast to Dr. 
Rice, who was thrown off for having expressed an opinion 
contrary to where, I guess, EPA wanted to go, we have Robert 
Shatner, who is an employee of ExxonMobil, who served on the 
expert panel to assess the carcinogenicity of ethyl oxide, 
which is a chemical manufactured by ExxonMobil; James Cloneg, 
who served on the ethyl oxide panel after receiving research 
support from Dow Agro, a manufacturer of ethyl oxide, and the 
American Chemistry Council; Dale Sickles, who sits on the EPA 
acrylamide panel that has received research funding from 
American Cyanamid, the manufacturer of acrylamide, and Cytec, a 
marketer of acrylamide.
    So it doesn't seem that there is a particularly high 
standard for conflict of interest for people who, there seem to 
be different standards for conflict of interest depending on 
where the EPA administration seems to want to go.
    And then this whole OMB arrangement is a directly 
fabricated vector to bring political influence into EPA 
determinations. If that was what you wanted to do, you couldn't 
come up with a better strategy.
    And finally, I think the lack of candor that we have seen 
from the EPA witnesses here, I have to applaud Dr. Gray for his 
ability to say what I found to be preposterous things with a 
completely straight face throughout. It is a skill but it is 
not what I look for from people who we entrust with substantial 
public responsibilities that affect the health of Americans 
across this Country and affect our children.
    So to me this has been a very useful hearing. I have been a 
witness, it is a lot of trouble to come here, it takes a lot of 
time out of your day, you only get a few minutes to say your 
piece. But it has been very helpful, and I appreciate it very, 
very much.
    So unless there is anything further, the record of this 
hearing will stay open for another week, if anybody would like 
to propose anything to be supplemented. And we will stand 
adjourned.
    [Whereupon, at 1:20 p.m., the committee was adjourned.]
    
    
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