Henry Waxman

Mr. WAXMAN

Mr. WAXMAN. If I can reclaim my time, Mr. Chairman, just to tell the gentleman, I don't disagree with you, if you want to look at that issue on a cost-benefit analysis. But why take the whole Clean Air Act, which by the way was adopted by a vote of 401 people in the House voted aye, 25 voted no? There was an initiative by President Bush and signed by him. Why take that whole law and toss it out because you have a supermandate in this risk bill? Mr. Chairman, I do not want to see this bill override, and destroy, the progress this Nation is finally making, after decades of inaction, to protect the American people from cancer-causing air pollution. This savings amendment would allow that progress to continue. From 1970 to 1990, the Nation conducted a full-scale experiment in the use of risk assessment to regulate toxic chemicals. During those years, the Clean Air Act directed EPA to use risk assessment to control air pollutants that can cause cancer, birth defects, neurotoxicity, and respiratory disease. More than 2.5 billion pounds of toxic chemicals were released into America's air every year, according to industry's own right-to-know records from the late 1980's. By 1990 everyone--industry, environmentalists, the States, and EPA-- was united in agreement that this experiment had failed. Over a 20-year period EPA was paralyzed in endless debates over risk assessments and cost-benefit analyses for cancer risks. In all this time, EPA managed to set standards for only seven toxic air pollutants. In 1990, Congress replaced the failed risk-based approach with a technology-based system that even many industries agree is proving to be practical, effective, and affordable. In the 4 years since 1990, EPA has achieved many times what was accomplished in the prior 20 years. Since 1990, EPA has taken steps that will eliminate more than 1 billion pounds of toxic emissions annually from nearly a dozen types of industrial emitters, including chemical plants and steel industry coke ovens. H.R. 1022 would erase this breakthrough in a single stroke: It would re-institute the paralysis that reigned from 1970 to 1990. The 1990 Clean Air Act amendments establish a practical, affordable technology-based approach to controlling air toxics sources. The law lists 189 toxic air pollutants, establishes a clear footing for technology-based standards, and sets a detailed schedule for action. This approach is bringing clear results. Since 1990, EPA has set standards for nearly a dozen major industries, reducing toxic emissions by more than 1 billion pounds per year. EPA has also proposed standards for municipal waste incinerators and medical waste incinerators that will reduce emissions of dioxin--one of the most toxic chemicals known--by more than 99 percent. The standards will also cut thousands of tons of mercury, lead, cadmium, and other highly toxic pollutants. The reason so much progress has been made so fast is that the act establishes a simple, workable criterion for standards: all major facilities of a given type must upgrade their pollution controls at least to the quality that has been achieved by the better-controlled facilities already in operation. Risk assessment still plays a role. It is used to add or remove chemicals or sources from the lists that require regulatory control. It will also be used, at the turn of the century, to see if high risks remain after the technology-based [[Page H2365]] first step. If so, the act calls for further progress through risk-based control measures. H.R. 1022 would return us to 20 years of risk-based paralysis. The bill's risk assessment and cost-benefit decisionmaking criteria would supersede the 1990 Clean Air Act's technology-based approach. These requirements are even more onerous than those that failed before 1990. Under these criteria, lives of the most exposed and most vulnerable Americans may not be worth saving. EPA would protect the most exposed or most vulnerable Americans only if the extra lives saved--compared to the next weaker standard--justify the extra cost to industry. What's worse, Americans' right to protection from cancer-causing air pollution could depend on what region they lived in or what company they lived next to. These daunting requirements would effectively hogtie the future efforts to continue reducing toxic air pollutants. The data simply are not available to perform risk assessments for 189 different toxic emission sources emitted in innumerable combinations from hundreds of different kinds of facilities. In short, unless we pass this savings clause, both the industries that release toxic air pollutants and the Americans who still breathe them would be condemned again to the 1970-1990 situation of paralysis by analysis.

Mr. WAXMAN

Mr. WAXMAN. Absolutely.

Mr. WAXMAN. I yield to the gentleman from California.

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I worked on the clean air law for 10 years before it was adopted in 1990, and let me tell all my colleagues that this bill that is before us today would supersede the clean air law, and it would supersede it in terms of the health base standards. That is exactly what is intended, and what would happen when it says that this bill will supersede the rulemaking under any other existing law. This legislation would take laws like clean air, clean water, safe drinking water and supersede them, take the guts out of the bill, of the laws, that are in there to protect the public health, and they take away the flexibility on the parts of the States to make them work. They do not add a streamlining or cost-benefit analysis that we never had before. They put in so many roadblocks that the laws just will not work.

Mr. WAXMAN. Mr. Chairman, will the gentleman yield to me?

Mr. WAXMAN. I thank the gentleman for yielding. Mr. Chairman, I do want to clarify for my friend from Pennsylvania [Mr. Walker], the way the Clean Air Act works. The Clean Air Act has health-based standards so that people can breathe the air and know that their health is not going to be damaged. Then we have to figure out the strategies to achieve that. This bill would take the health-based standards and weaken it because they would have a cost-benefit analysis of what the health standards are. Otherwise, in the Clean Air Act we have technology standards on toxic air pollutants, and those technology standards are important. If you want to go through the risk assessment, you can go on for years and years and years. We ought to at least use the best technology we have to reduce the pollutants that cause cancer, birth defects, and environmental damage. I did want to clarify that for the gentleman.

Mr. WAXMAN. Mr. Chairman, will the gentleman yield?

Mr. WAXMAN. I thank the gentleman for yielding. Mr. Chairman, the issue is not whether you are going to look at a cost-benefit analysis or risk assessment or supersede all existing laws.

Mr. WAXMAN. If the gentleman would yield further, I would like to finish my statement on this issue because we do cost-benefit analysis when we develop the strategies to achieve health standards. But what this bill would do is to supersede the Clean Air Act completely and not even have health standards that would be required to be met. I think that is offensive because it weakens the exact purpose of the law, which is to protect the public health from pollutions.

Mr. WAXMAN. The gentleman is incorrect.

Mr. WAXMAN. I do not disagree with that statement at all, but what this bill says is, ``You have to, no matter what, take the least cost- effective way to achieve the result.'' That sounds fine except when we get into the reality that some States would like to have flexibility. I asked Governor Wilson from my State when he testified before our committee would he favor a bill that would repeal the clean air standards as ambient standards based on health, and he said, ``Absolutely not.''

Mr. WAXMAN. I think so.

Mr. WAXMAN. This bill is one of the most poorly drafted, thought through pieces of legislation I have ever seen. It is being rushed through this House without due consideration. We had a hearing for a day or two, a markup that went on for 10 hours. We had to do it with 1 day for only one purpose, because it is in the Contract for America. This bill is going to pass because a lot of Members figure, well, they will vote for it and the Senate will clean it up or the President will veto it. But it is an irresponsible piece of legislation. It supersedes existing law. If we wanted to supersede laws, the gentleman made reference to tobacco, there is nothing that is a greater risk than tobacco. When we look at the actual causes of death, according to the Centers for Disease Control, tobacco is No. 1. Then you get poor diet or exercise, alcohol, infectious agents, pollutants, and toxics way down there. They should have superseded the laws that prevent agencies doing anything to protect kids from tobacco. Tobacco companies are pushing their products on these kids. People who breathe in secondhand smoke suffer a health risk. But they did not supersede that. They superseded the laws that are on the books to protect public health like the Clean Air Act, the drinking water law, and the others. I think that the American people ought to know really what is involved here. This is a pretty cynical bill. It is not well thought out and certainly does not do what it is claimed to do.

Mr. WAXMAN. Mr. Chairman, will the gentlewoman yield?

Mr. WAXMAN. I yield to the gentleman from California.

Mr. WAXMAN. If that were true, if I can reclaim my time, we would not be arguing about it, but that is not the way I read the law because the way I read the law that is being proposed is it will subject existing laws to a whole new analysis to redo them again, and not only that, the elevation of the least cost-effective way to achieve the results would mean that other factors could not be taken into consideration. Let me give my colleagues an example of what that would mean: Carol Agency, testified before our committee, and she said that, if this were the law, she would have to put an inspection and maintenance program on automobiles all over the country. Why? Because that is a very cost- effective way to reduce pollutants from cars. But it is not the best political way to do it. The better way would be to have new cars to reduce pollutants by being made to pollute less. That means that the auto industry would bear the cost rather than the individual consumers having to spend a lot of money to get their cars inspected, to have the changes in the way the cars work, to achieve those standards for many years thereafter.

Mr. WAXMAN. I yield to the gentleman from Idaho.

Mr. WAXMAN. I do not think anyone disagrees with the idea of doing a cost-benefit analysis, a risk assessment, trying to get the information that will help us make the right decision when we adopt regulations to enforce the laws, but there were some laws that were designed to protect the public health, and to say to protect the public health is really not going to be the objective any longer because this bill is going to supersede it, and we are going to look at whether the standard ought to be subject to some kind of analysis, which would mean it is a weakened standard, and then the strategy to develop that standard is also weakened as well, what we have is a mush. What we have is a rejection of laws that have been on the books since 1970; in the case of the Clean Air Act, signed by President Nixon, with a great deal of pride by Members of the Congress on both sides of the aisle, that we would try to protect the public health from pollutants that injure, and to a great extent millions of people now live in areas where they can breathe safer air because of all this work.

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, I oppose this legislation for three reasons: it is a fraud, it is a rollback of 25 years of environmental progress, and it is just plain stupid. Let me explain what I mean. The proponents of this bill say that it is designed to improve the regulatory process. They say that all it does is inject common sense in the form of risk assessment, and cost-benefit analysis into rule-making process. This is a fraud. This bill is not about improving rulemaking, it is not about risk assessment or cost-benefit analysis. These are tools used now, wisely. They are very helpful in deciding what regulations are appropriate, but what they in fact do is create in this bill so many procedural hurdles to regulations that Federal agencies will simply be unable to protect the public health and the environment any more. Mr. Chairman, let me show the Members what I mean. I have a chart, and this chart illustrates the rulemaking maze created by H.R. 1022 and other components of the so-called Contract With America. The legislation adds so many review requirements that it will be virtually impossible for any agency to issue new rules. Agencies have to perform risk assessments, cost benefit analyses, cost effectiveness analyses, flexibility analyses, comparative risk analyses, to name only a few of the new requirements. The Environmental Protection Agency has told us that to comply with these new requirements they will need 1,000 new employees. The Food and Drug Administration has told us that issuing even simple rules, like standards to improve the detection of breast cancer during mammographies, could be delayed up to 2 years. Is this common sense? I doubt it. If an agency ever gets through this maze, it is then open to judicial review. H.R. 1022 makes the agency's risk assessments, cost-benefit analyses, all the other activities, subject to a court action, a lawyer's dream. Any industry that does not like the regulation that comes out of that maze can go into court and challenge the regulation, tie it up for years. These two charts that I have up now illustrate 60 new grounds for challenging agency actions; let me repeat that, 60 new grounds to go into court. That is laying it out for the lawyers to be able to tie up regulations that some big industry polluter does not like. For instance, a regulation can be challenged on the basis that the risk assessment did not sufficiently discuss laboratory data, or did not adequately discuss comparative physiology or pharmacokinetics. This is a fraud on the American people. The Members supporting this legislation are telling us they want to improve and streamline the rulemaking process. The truth, which they know but are not willing to tell the American people, is just the opposite. This legislation adds so many new procedural requirements it would allow any industry that opposes a new regulation matter how essential that regulation may be. Mr. Chairman, this legislation is a rollback of 25 years of health and environmental progress: the Clean Air Act, the Clean Water Act, the safe drinking water laws, the Toxic Substances Act. All of these laws have been successful. The air is cleaner in so many parts of our country. You can swim in areas which in fact in the past have been too polluted to even stick your toe in, and the drinking water is going to be improved and has been improved throughout the country. However, the laws that are now being proposed this week would supersede all of the laws that I have mentioned and many others with a new set of requirements to roll back those standards. I urge my colleagues to oppose this legislation. It is a rollback of important legislation that protects the health and the environment, and it just is not common sense.

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, will the gentleman yield?

Mr. WAXMAN. Mr. Chairman, I offer an amendment.

Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume. (Mr. WAXMAN asked and was given permission to revise and extend his remarks.)

Mr. WAXMAN. Mr. Chairman, the bill before us, H.R. 450, has an incredibly broad scope. I think most Members think that this legislation just freezes the issuance of final regulations. It does not. It also covers notices of inquiry, advance notice of proposed rulemaking, and, ``any other action taken in the course of the process of rulemaking.'' The purpose of my amendment is to narrow the scope, to cover just the issuance of final and proposed rules. The amendment is necessary to save Federal resources. The Federal Government has thousands of employees working on regulations. The effect of H.R. 450 would be to idle those employees. Without the amendment the taxpayers would be paying them to sit there and do nothing. The broad scope of H.R. 450 is not only wasteful; it is counterproductive. The administration is trying to improve its regulations by meeting with affected industries, responding to comments, and developing innovative market-based approaches. These activities, which I would think everyone would support, would simply be halted in their tracks. We are being very schizophrenic in our approach to regulations in this Congress. H.R. 9, which the House will consider next week, imposes so many new review requirements on agencies that the Environmental Protection Agency, for example, says it would be forced to hire an additional 1,000 employees in order to comply. But in today's legislation, we are doing just the opposite. We are telling EPA and all the other regulatory agencies to idle the people they have now on their employment rolls, stopping them from doing any work in preparation or consideration of regulations. My amendment would limit the scope of H.R. 450 to put a moratorium on the issuance of the regulations, but allow during this moratorium period the agency people to meet with the interest groups so they can evaluate whether the regulations are needed or necessary to accomplish the goals set out in the statutes, or to solicit public comments. They ought to get the public input so that the regulations that they may well propose will be the most thoughtful; to hold public meetings so people, industry people and ordinary citizens, will have a chance to give their views. The bill as it is now drafted would stop all of those activities from going forward. It makes no sense. We ought to just put a moratorium, if we are going to have one at all, on the final issuance of regulations, so that all the bad effects that we are hearing warnings about will not take place. Mr. Chairman, I reserve the balance of my time.

Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume. Let me give examples of what we are talking about in the breadth, the scope of this legislation. There are Federal agencies appropriately working on important regulations. They are evaluating them. They would be stopped from even evaluating these proposals. The Department of Transportation is looking at a regulation to protect drivers from head injuries. The Food and Drug Administration is looking at a regulation to protect children from iron poisoning from accidental ingestion of iron supplements, which is the leading cause of poisoning death in young children. The Department of Justice is looking at a regulation to make parole more difficult for sex offenders. They are also looking at a regulation requiring drug testing of parolees, and regulation to require wealthy criminals to pay incarceration fees. The Environmental Protection Agency is looking at approval of state implementation plans under the Clean Air Act. They would not be able to evaluate these plans, to get comments on these plans. The EPA and HUD are looking at regulation to protect children from lead poisoning. The Department of Energy is looking at regulations to promote energy efficiencies. These are regulations that people should want. Every Member should want these regulations. They are important for the health and well-being and security of the American people. We want those regulations to be done wisely. To be done wisely, they ought to be able to get public comment. They ought to be able to evaluate the views of different organizations. They ought to be able to think through what they are doing so regulations will be sensible. This proposal that we have, this moratorium, is just not sensible when it stops these kinds of activities from taking place. I do not know what sneak attacks the gentleman from Indiana is talking about, but I do know that the Competitiveness Council, under Vice President Dan Qualye, acted in a superlegal way, extralegal way, when they tried to meet in secret with industry officials to try to then impose their will on their own Republican appointees in these agencies that were entrusted to develop the regulations pursuant to the laws passed by Congress and signed by the President of the United States, who at that time was President Bush and prior to him President Reagan. This bill is a ham-handed, heavy-handed, one-size-fits-all approach on regulations. Whether they are good or bad, stop them, and not only stop the regulations from going forward but stop honest employed public employees from even thinking through what makes sense. Have them sit there and do nothing. That to me is a big waste of taxpayers' funds. So I would urge support of this amendment to narrow the scope. Mr. Chairman, I yield such time as she may consume to the gentlewoman from Illinois [Mrs. Collins]. (Mrs. COLLINS of Illinois asked and was given permission to revise and extend her remarks.)

Mr. WAXMAN. Next week we are going to consider H.R. 9. That bill would require the agencies to go through a tremendous number of steps before any regulation would come into a proposed form. They would have to do analysis of cost-benefit. They would have to do analysis of risk assessment. Under the unfunded mandates bill we are going to ask them to evaluate not only the cost impact on State and local governments, but to look at what the impact will be on America's standing in international trade. These are analyses which are appropriate because we ought to get all the information that is valid before we have regulations that may have unintended consequences. But one of the results of H.R. 9 is going to be that we are going to have to hire more Government employees to do all of those analyses. The gentleman wants to fire them now and then rehire them next year. That seems to me nonsensical.