The chairman of a Senate subcommittee with oversight of the U.S. Environmental Protection Agency touted the Trump administration's proposed scientific transparency rule, claiming the policy would strengthen the science behind regulations. But a former employee with more than a decade of experience inside the EPA's Office of Air and Radiation said the agency's proposed "Strengthening Transparency in Regulatory Science" rule is linked to recent efforts to weaken major air pollution regulations.
Members of the Senate Superfund, Waste Management, and Oversight Subcommittee on Oct. 3 heard testimony from expert witnesses on both sides of the proposal, which has garnered more than half a million public comments. The rule has been panned by many scientists, academics, environmental groups and others as potentially excluding public health studies from consideration for regulatory actions. Industry advocates, however, have accused the EPA of routinely failing to disclose underlying data for studies.
Modeled after a House bill championed for years by U.S. Rep. Lamar Smith, R-Texas, the legislation would prohibit the EPA from proposing or finalizing new regulations unless it discloses all scientific and technical information underpinning the rule. Smith's bill passed the House in 2017, but a companion bill sponsored by U.S. Sen. Mike Rounds, R-S.D., chairman of the Superfund committee, remains stuck in the Senate.
Former EPA Administrator Scott Pruitt unveiled the Trump administration's version of the measure as a proposed rulemaking in April 2018. Declaring that the use of "secret science" at the EPA was coming to an end, Pruitt insisted that the changes are needed to ensure that the science used to develop regulations, including any data or models used within a scientific study, can be independently verified and replicated. Acting EPA Administrator Andrew Wheeler reportedly has pledged to move the rulemaking forward.
"The essential work at EPA should always have as its basis protecting human health and the environment," Rounds said at the Oct. 3 hearing. "However, in the past, I have been concerned that the broad discretion and lack of transparency at the EPA have led the agency to seek out the science that supports a predetermined policy outcome rather than rely on the best available science before coming to conclusions."
The panel of expert witnesses appearing at the hearing included Edward Calabrese, a toxicology professor at the University of Massachusetts who supports the proposed rule. Calabrese, who has published hundreds of scholarly articles on how humans react to hazardous pollutants, said his research on carcinogens has led him to conclude that the EPA is using a faulty risk model for cancer-causing substances when it develops regulations. "The EPA transparency proposal is crucial to enhance public health and should have been adopted 20 or more years ago," Calabrese said. "With regard to risk assessment, 'data transparency' should require the EPA to routinely receive and openly evaluate for accuracy any information that could significantly alter the key scientific assumptions underlying and dictating regulatory policy and practices."
But Rush Holt, CEO of the American Association for the Advancement of Science, contended that the proposed rule is opposed by many scientists who believe it would exclude valid and important scientific findings from the regulatory process. "Whatever the ulterior purpose may or may not be, the effect of the rule would be a significant reduction in good, relevant science that could be used by EPA," Holt said. "This change would likely result in harm to people and their environment."
Air pollution implications
The EPA's scientific transparency proposal is directly related to the agency's plan to revisit an Obama-era mercury rule, according to John Bachmann, who spent 12 years as the associate director for science policy and new programs in the EPA's Office of Air Quality Planning and Standards. That office is housed within the EPA's Office of Air and Radiation, which develops policy related to electric utilities and power generation. Bachmann, who retired in 2007, was responsible for overseeing regulations aimed at smog-forming ozone pollution commonly known as the National Ambient Air Quality Standards. Bachmann also was part of an EPA policy team that developed new federal restrictions on fine particles.
Many of the studies the agency used to justify tightening National Ambient Air Quality Standards and regulating fine particles would have been excluded under the EPA's proposed rule, Bachmann said in an Oct. 3 interview. Bachmann specifically cited Harvard University's landmark Six Cities study, which established a causal relationship between exposure to fine particles and mortality risk. Published in 1994, the study has been used by the EPA for years to calculate the monetized benefits of reducing fine particle emissions.
Bachmann, who also helped write the legislation that listed mercury as a hazardous pollutant under Section 112 of the Clean Air Act, said the proposed rule could severely limit the consideration of co-benefits in cost-benefit analyses. The co-benefits issue also is central to the EPA's reconsideration of the Obama administration's "appropriate and necessary finding" for the 2012 Mercury and Air Toxics Standards, or MATS, rule. A February report by the White House Office of Management and Budget estimated that the roughly $9.6 billion annualized cost of the MATS rule is more than offset by the annualized benefits ranging from $33 billion to $90 billion. Most of the rule's monetized co-benefits come from a reduction in fine particles. "They're cutting at this thing every possible way," Bachmann said. "One way to get rid of (co-benefits) is to make a transparency rule that takes them off the table."
The Trump administration believes, however, that revisiting the MATS rule is necessary because the regulation was an "egregious example of the Obama administration's indifference toward required cost-benefit analysis," an EPA spokesman said in an email. Without accounting for co-benefits, the rule would have yielded only about $4 million in benefits directly related to mercury pollution, the spokesman added.
Members of the EPA's Science Advisory Board, or SAB, voted unanimously on May 31 to review the agency's proposed rule. But Chris Zarba, the former head of the office that coordinates the work of the SAB and the EPA's Clean Air Science Advisory Committee, said how the review will play out remains unclear.
Zarba, who retired as deputy director of the EPA's National Center for Environmental Research in February 2018, noted that roughly 70% of the SAB's membership has been forced to leave since Pruitt enacted a policy banning recipients of EPA grant money from serving on the board. That new policy, which also cut the board's six-year terms in half, does not prevent recipients of industry grant money from serving on the SAB or the Clean Air Science Advisory Committee. Zarba said the EPA's Office of Research and Development likely will take at least six months to send an impact assessment of the proposed transparency rule for to SAB for review. SAB then could take another year and a half to fully review the materials and produce a final report, he said in an Oct. 3 interview.
"There will be lots and lots of public input on it, so at a minimum, you're talking 18 months," Zarba said. "That also means 100% of the SAB will be people that Scott Pruitt or Andrew Wheeler have picked, and that's if everything goes at warp speed." However, the agency could still finalize the rule before the SAB finishes its review, Zarba acknowledged.