[Congressional Record Volume 142, Number 137 (Saturday, September 28, 1996)]
[Extensions of Remarks]
[Pages E1804-E1806]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PROBLEMS WITH EPA'S IMPLEMENTATION OF CLEAN AIR ACT SECTION 183(e)

                                 ______
                                 

                          HON. GARY A. CONDIT

                             of california

                    in the house of representatives

                       Friday, September 27, 1996

  Mr. CONDIT. Mr. Speaker, as part of the 1990 Clean Air Act 
Amendments, Congress mandated that EPA examine the Volatile Organic 
Compounds [VOC's] emissions from various consumer and commercial 
products for the sole purpose of determining which of these VOC 
emissions contribute to ozone levels which violate the national ambient 
air quality standard for ozone. After this determination was made, EPA 
was to list those categories of consumer or commercial products that 
the Administrator determined, based on the study, accounted for at 
least 80 percent of the VOC emissions, on a reactivity-adjusted basis, 
from consumer or commercial products in areas that violate the ozone 
standard. At that time, the Administrator was to divided the list into 
4 groups establishing priorities for regulation based on the criteria 
established in this law. Every 2 years after promulgating such list, 
the Administrator is to regulate one group of categories until all 4 
groups are regulated.
  EPA has recently proposed a rule under Clean Air Act Section 183(e), 
the law I just described, that would limit the VOC content of paints 
and coatings. In doing so, EPA has violated not only the letter and 
intent of this law, but also the intent of the Small Business 
Regulatory Enforcement Fairness Act [SBREFA], an act that we 
overwhelmingly passed to protect small businesses from draconian rules 
such as the one EPA is now proposing. I have been made aware that the 
overwhelmingly negative impact of this rule will fall predominately on 
the shoulders of small paint manufacturers, those who are the least 
able to bear this burden, the very result we passed SBREFA to avoid.
  Clean Air Act Section 183(e) directs EPA to follow certain steps in 
regulating the emissions of VOC's from consumer and commercial 
products. The act directs EPA to report to Congress after studying the 
reactive adjusted basis of emissions of various VOC chemicals from 
consumer and commercial products. This Report to Congress was supposed 
to determine the potential extent to which VOC emissions from paints 
and coatings, and other consumer and commercial products contribute to 
the exceedance of the ozone standard.
  Clean Air Act Section 183(e) sets forth the specific criteria that 
EPA ``shall'' use in conducting this Report to Congress. These criteria 
are, in effect, a mini risk assessment/cost benefit mandate. Section 
183(e) sets forth the specific criteria that EPA shall use in 
conducting this study: The uses, benefits and commercial demand of 
consumer and commercial products; the health or safety functions (if 
any) served by such consumer and commercial products; those consumer 
and commercial products which emit highly reactive VOC's into the 
ambient air; those consumer and commercial products which are subject 
to the most cost-effective controls; and the availability of 
alternatives (if any) to such consumer and commercial products which 
are of comparable costs, considering health, safety, and environmental 
impacts. It is important to note that the use of ``shall'' by Congress 
means that EPA has no discretion in altering, ignoring, or adding to 
this list.
  After the completion of this study, EPA is to prioritize the 
regulation of consumer and commercial products, based on this study. 
``Upon submission of the final report * * * the Administrator shall 
list those categories of consumer or commercial products that the 
Administrator determines, based on the study, that account for at least 
80 percent of the VOC emissions,

[[Page E1805]]

on a reactivity-adjusted basis, from consumer or commercial products in 
areas that violate the NAAQS for ozone.''
  Clearly, this law is intended to make EPA examine the underlying 
science and economic impact of reducing VOC's in consumer and 
commercial products, and then, if reductions would lower the potential 
to violate the NAAQS for ozone, EPA could exercise its judgment in 
comparing these VOC attributes in promulgating the appropriate 
regulations.
  On March 15, 1995, EPA filed with Congress its Clean Air Act Section 
183(e) Report. This report to Congress is the predicate that will 
attempt to justify for EPA the hundreds of consumer and commercial 
products subject to the regulations it will issue during the next eight 
years. In this report, EPA states that it did not perform the 
reactivity analysis, although admitting that such an analysis is 
required by law.
  Congress wanted to have the benefit of EPA's scientific and economic 
analysis for each consumer and commercial products, so we would know 
the extent of these VOC's contributions and to ensure that EPA issued 
regulations that met our objectives as stated in the law. In its 1995 
report, EPA has failed to provide this information to Congress. In 
addition, EPA has yet to provide us with this required information. 
What are they waiting for? Why do they persist in putting out a rule 
that they say meets the requirements of Section 183(e) of the Clean Air 
Act while keeping from Congress the information that we demanded they 
produce that scientifically and economically justify these far reaching 
rules?
  Instead of focusing on reactive VOC's in products, this report 
focuses on industries. Instead of focusing on reactivity, this report 
focuses on volume. Instead of focusing on VOC emissions, it focuses on 
VOC content. Instead of a detailed study of the uses, benefits, and 
commercial demand of paint and coatings, the health or safety functions 
(if any) served by such coatings, the most cost-effective controls on 
and availability of alternatives (if any) to such coatings which are 
of comparable costs considering health, safety, and environmental 
impacts, EPA wrote a nonpeer-reviewed document that purposefully 
ignores information required by law and, with an apparent prejudice, 
comes to the presumptive conclusion that VOC's from these industries 
contribute to ozone without any factual predicate, instead of 
determining their potential to contribute to ozone levels which violate 
EPA's ozone standard--the standard mandated by Congress. The fact that 
EPA has failed to perform its duties is a critical error in our 
nation's attempt to solve the ozone puzzle.

  On June 25, 1996, EPA published an incomplete notice of proposed 
rulemaking purportedly announcing the draft VOC in paint and coatings 
rule. This draft, in addition to its other defects, changes the 
definition of small business because without it, EPA would not have as 
much control over this industry as it wanted. So, instead of crafting a 
rule that adheres to established law and regulation, EPA changes the 
definition to have as much command and control over an industry that it 
wants, not what Congress mandated. EPA has disregarded our will as 
clearly stated in the Clean Air Act as well as SBREFA--a law that we 
overwhelmingly passed and that EPA avoided by publishing this proposed 
rule three days prior to it going into effect.
  An examination of the statements made by Members of this Body at the 
time this law was being considered highlights EPA's lack of 
understanding of Clean Air Act section 183(e). During the House of 
Representatives consideration of this law, Congressman Luken from Ohio 
made some specific statements regarding reactivity:

       It is expected that the study will provide a much needed 
     data base and a better understanding of the relative net 
     environmental impacts of these products. This will provide a 
     sound basis for regulation * * * I am particularly pleased 
     that the language now emphasizes the importance of 
     photochemical reactivity as a key criterion to be used by the 
     Administrator in determining the categories of emissions to 
     be listed. It is commendable that we are recognizing the 
     fundamentals of atmospheric chemistry in this area by 
     requiring that emissions be considered on a reactivity 
     adjusted basis before being considered for regulation. The 
     term reactivity adjusted basis requires a focus of regulatory 
     controls on the more reactive VOCs by relating the amount of 
     urban ozone formed to the weight of the VOC emitted to the 
     ambient air, thereby achieving the most cost effective 
     control measures. I am pleased that we have provided the 
     Administrator very specific factors for determining the 
     criteria for selecting product categories which are to be 
     subject to control.

  ``The Report of the House Committee on Energy and Commerce on H.R. 
3030,'' H.R. Rep. No. 490, 101st Cong., 2d Sess., pt 1(1990) states 
that ``the Administrator is required to propose regulations reducing 
[VOC] emissions from consumer and commercial products * * * that may 
reasonably be anticipated to contribute to ozone levels that violate 
the NAAQS.'' In other words, in ozone nonattainment areas.
  It is unquestionably clear from this legislative history that: (1) 
Any rule was to focus solely on nonattainment areas; (2) the study that 
EPA was to produce was to analyze whether any rule was necessary, as 
well as analyze the role of consumer and commercial product VOC's at 
levels that cause the exceedance of the ozone standard; (3) the 
reactivity test intended by Congress was based upon what happens 
scientifically at the NAAQS for ozone; (4) that the reactivity study 
occur PRIOR to any regulation being issued; and (5) that reactivity was 
key to any rulemaking.
  Given the above, we are confused by EPA's insistence on regulating 
VOC's from consumer and commercial products before the required study 
is performed. Their insistence to do this in the face of no apparent 
evidence finds no support in the law nor in the legislative history. 
Furthermore, EPA has purposefully blinded themselves from the fact that 
small paint companies in attainment areas would be the hardest hit by 
this rule--again, a result that finds no support in the law nor in the 
legislative history.
  EPA's position is further muddied by regulatory preamble language 
calling for further analysis, after this rule goes into effect, and 
after many small paint companies are fatally harmed, so they could 
adopt future regulations that are even more stringent, is another 
action that finds no support in the law nor in the legislative history.

       Following proposal of this rule the EPA plans to 
     participate in a joint study with the architectural coatings 
     industry. This study will focus on the feasibility of 
     adopting more stringent VOC requirements in the future. 
     Issues to be investigated include the cost and economic 
     impact of different levels of VOC requirements, reactivity 
     considerations associated with changing coating formulations, 
     and evaluation of physical characteristics and performance 
     characteristics of coasting with VOC contents lower than the 
     proposed levels.

We are dismayed by EPA's blatant and now admitted disregard for the 
law. If a study considering reactivity can be conducted after the rule 
is promulgated, why can it not be done BEFORE the rule is issues, as 
commanded by law?
  It is our understanding that recent scientific evidence, specifically 
the findings of this Nation's leading atmospheric scientists, many of 
whom participated in a 1991 National Academy of Science study entitled 
``Rethinking the Ozone Problem in Urban and Regional Air Pollution,'' 
have found that the VOC's that come from evaporative man-made sources 
can be examined and compared based on their reactivity and that an 
evaporative VOC emission elimination strategy will not result in those 
ozone laden regions of the country coming into attainment with EPA's 
ozone standard. Many leading scientists' have found that individual VOC 
reactivities can be very accurately predicted with sophisticated 
modeling techniques heretofore not utilized by EPA. Most interestingly, 
these researchers concluded that a regulatory scheme based on 
considerations of reactivity is more effective at reducing VOC 
emissions and is cheaper to implement than mass-based controls. It 
would appear that ignorance of this information would result in the 
squandering of valuable resources. Why, then, is EPA insisting that an 
expensive and scientifically dubious regulatory scheme be undertaken?

  The Clean Air Act's section 183(e) has instructed EPA to compile and 
present to Congress a study detailing VOC emissions from consumer and 
commercial products and to use this study as the foundation for 
embarking on a course of VOC regulation. EPA is further directed by the 
law to employ reactivity, the characteristic property of individual 
VOC's relating to their propensity to contribute to ozone 
nonattainment, when choosing those products or product categories 
worthy of regulation. In its notice of regulation published March 23, 
1995 in the Federal Register, however, EPA confirms our suspicion that 
it is shirking its legal responsibility to incorporate reactivity into 
its regulatory scheme for VOC's. In that notice announcing EPA's intent 
to regulate on the basis of mass VOC emissions, EPA admits considering 
reactivity to only a limited extent, expressing concern with 
reactivity's empirical limitations and uncertainties. EPA cannot hide 
behind a veil of uncertainty on the reactivity issue. Specifically:
  Clean Air Act section 183(e) states that EPA must do a study of VOC's 
emitted from consumer and commercial products to ``determine their 
potential to contribute to ozone levels which violate the national 
ambient air quality standards for ozone.'' The standard stated in the 
law for the reactivity test.
  EPA's report states that, ``Because of the uncertainties, 
inconsistencies, and lack of reactivity data on individual compounds, 
the EPA concluded that a rigorous determination of the potential of 
consumer and commercial products to contribute to ozone nonattainment 
is not possible at this time.''

[[Page E1806]]

  The Report to Congress does not provide the scientific information 
Congress asked for in order to determine which VOC's from paints and 
coatings contribute to the exceedance of the ozone standard as 
established by EPA.
  EPA did not rank consumer and commercial products on a reactivity-
adjusted basis. EPA has not even created a peer-reviewed reactivity 
adjusted scale.
  EPA added three new criterion, volatility of VOC's, volume of VOC 
emissions, and regulatory efficiency and program considerations. This 
later criterion will allow EPA to ``exercise discretion in adjusting 
the product category rankings * * * to achieve an equitable and 
practical regulatory program.'' EPA views this amendment to the Clean 
Air Act as at least as equal to those Congress set in Clean Air Act 
Sec. 183(e).
  We are also concerned with EPA's apparent indifference to the 
disparate impact this rule will have on industry, particularly small 
business. EPA's calculation of the proposed rule's economic cost does 
not consider the human terms--lost jobs or lost small, family-owned 
businesses, an issue that directly mandated to be considered under 
Clean Air Act Section 309. We are deeply concerned that the negative 
impact of compliance costs will fall hardest upon lower-income wage 
earners employed in the coating industry; many minority earners and 
low-income whites would lose their jobs in the fallout, while not 
reaching the goal of ozone attainment. EPA must be aware of this 
reality if it is to regulate an entire industry. EPA's granting of a 
longer compliance timetable is nothing more than a longer stay on death 
row for many of these companies--the result of business closure is the 
same.
  The compliance costs of reformulating or reoutfitting operations is 
staggering. The South Coast Air Quality Management District in 
California has been regulating consumer and commercial product VOC 
levels for several years; it is their expert assessment that the 
economic impact of controls for a desired reduction of VOC emissions of 
the approximately 18 percent EPA's regulation of VOC's in paints, is 
over $1.5 billion based upon their experienced determination that paint 
and coating VOC control costs are $16,400 per ton.
  EPA, in various letters to fellow Members of Congress, estimates the 
cost at $40 million. How can EPA be two orders of magnitude lower than 
experienced regulators? More importantly, how does EPA think it can 
pass a rule by ignoring basic scientific principles, by possessing 
insufficient legal authority, and having the rule cost so much money? 
Why are you insisting on reducing VOC levels in paint beyond that 
considered by the statute (assuming such reductions would reduce the 
potential to contribute to ozone levels which violate the ozone 
standard)?
  We strongly urge EPA to take a long look at the core legal and 
economic issues, including the effect of this regulation on coating 
used as an intermediary in various manufacturing processes, as well as 
the peripheral details surrounding its desire to regulate consumer and 
commercial products. In no way can EPA exact such a great price from 
the American public when its science is wrong and its legal authority 
so tenuous.
  What is also clear is that EPA has mishandled our specific charge to 
them regarding Clean Air Act section 183(e). We urge you to stop any 
and all regulatory action on this issue until a proper, peer reviewed 
analysis is conducted pursuant to Clean Air Act section 183(e). 
Vigilance and oversight is needed to ensure that the paint industry, 
especially small paint companies, do not pay the harsh price of demise 
for EPA's lack of understanding.

                          ____________________