[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
UNDERMINING MERCURY PROTECTIONS: EPA ENDANGERS HUMAN HEALTH AND THE
ENVIRONMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MAY 21, 2019
__________
Serial No. 116-36
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
govinfo.gov/committee/house-energy
energycommerce.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
40-548 PDF WASHINGTON : 2020
COMMITTEE ON ENERGY AND COMMERCE
FRANK PALLONE, Jr., New Jersey
Chairman
BOBBY L. RUSH, Illinois GREG WALDEN, Oregon
ANNA G. ESHOO, California Ranking Member
ELIOT L. ENGEL, New York FRED UPTON, Michigan
DIANA DeGETTE, Colorado JOHN SHIMKUS, Illinois
MIKE DOYLE, Pennsylvania MICHAEL C. BURGESS, Texas
JAN SCHAKOWSKY, Illinois STEVE SCALISE, Louisiana
G. K. BUTTERFIELD, North Carolina ROBERT E. LATTA, Ohio
DORIS O. MATSUI, California CATHY McMORRIS RODGERS, Washington
KATHY CASTOR, Florida BRETT GUTHRIE, Kentucky
JOHN P. SARBANES, Maryland PETE OLSON, Texas
JERRY McNERNEY, California DAVID B. McKINLEY, West Virginia
PETER WELCH, Vermont ADAM KINZINGER, Illinois
BEN RAY LUJAN, New Mexico H. MORGAN GRIFFITH, Virginia
PAUL TONKO, New York GUS M. BILIRAKIS, Florida
YVETTE D. CLARKE, New York, Vice BILL JOHNSON, Ohio
Chair BILLY LONG, Missouri
DAVID LOEBSACK, Iowa LARRY BUCSHON, Indiana
KURT SCHRADER, Oregon BILL FLORES, Texas
JOSEPH P. KENNEDY III, SUSAN W. BROOKS, Indiana
Massachusetts MARKWAYNE MULLIN, Oklahoma
TONY CARDENAS, California RICHARD HUDSON, North Carolina
RAUL RUIZ, California TIM WALBERG, Michigan
SCOTT H. PETERS, California EARL L. ``BUDDY'' CARTER, Georgia
DEBBIE DINGELL, Michigan JEFF DUNCAN, South Carolina
MARC A. VEASEY, Texas GREG GIANFORTE, Montana
ANN M. KUSTER, New Hampshire
ROBIN L. KELLY, Illinois
NANETTE DIAZ BARRAGAN, California
A. DONALD McEACHIN, Virginia
LISA BLUNT ROCHESTER, Delaware
DARREN SOTO, Florida
TOM O'HALLERAN, Arizona
------
Professional Staff
JEFFREY C. CARROLL, Staff Director
TIFFANY GUARASCIO, Deputy Staff Director
MIKE BLOOMQUIST, Minority Staff Director
Subcommittee on Oversight and Investigations
DIANA DeGETTE, Colorado
Chair
JAN SCHAKOWSKY, Illinois BRETT GUTHRIE, Kentucky
JOSEPH P. KENNEDY III, Ranking Member
Massachusetts, Vice Chair MICHAEL C. BURGESS, Texas
RAUL RUIZ, California DAVID B. McKINLEY, West Virginia
ANN M. KUSTER, New Hampshire H. MORGAN GRIFFITH, Virginia
KATHY CASTOR, Florida SUSAN W. BROOKS, Indiana
JOHN P. SARBANES, Maryland MARKWAYNE MULLIN, Oklahoma
PAUL TONKO, New York JEFF DUNCAN, South Carolina
YVETTE D. CLARKE, New York GREG WALDEN, Oregon (ex officio)
SCOTT H. PETERS, California
FRANK PALLONE, Jr., New Jersey (ex
officio)
C O N T E N T S
----------
Page
Hon. Diana DeGette, a Representative in Congress from the State
of Colorado, opening statement................................. 2
Prepared statement........................................... 3
Hon. Brett Guthrie, a Representative in Congress from the
Commonwealth of Kentucky, opening statement.................... 5
Prepared statement........................................... 6
Hon. Joseph P. Kennedy III, a Representative in Congress from the
Commonwealth of Massachusetts, opening statement............... 7
Prepared statement........................................... 9
Hon. Greg Walden, a Representative in Congress from the State of
Oregon, opening statement...................................... 10
Prepared statement........................................... 12
Witnesses
Janet McCabe, Former Acting Assistant Administrator, Office of
Air and Radiation, Environmental Protection Agency............. 14
Prepared statement........................................... 17
Answers to submitted questions............................... 186
Heather McTeer Toney, National Field Director, Moms Clean Air
Force.......................................................... 26
Prepared statement........................................... 28
Michael A. Livermore, Associate Professor of Law, University of
Virginia....................................................... 43
Prepared statement........................................... 45
Answers to submitted questions............................... 188
Noelle Eckley Selin, Ph.D., Associate Professor and Director,
Technology and Policy Program, Massachusetts Institute of
Technology..................................................... 55
Prepared statement........................................... 57
Answers to submitted questions............................... 193
Philip J. Landrigan, M.D., Director, Global Public Health
Program, Schiller Institute for Integrated Science and Society,
Boston College................................................. 69
Prepared statement........................................... 71
Adam R. F. Gustafson, Partner, Boyden Gray & Associates, PLLC.... 79
Prepared statement........................................... 81
Answers to submitted questions............................... 196
Submitted Material
Memorandum, committee minority staff, submitted by Mr. Guthrie... 130
Report by NERA Economic Consulting, ``Estimating Employment
Impacts of Regulation: A Review of EPA's Methods for Its Air
Rules,'' by Anne E. Smith, et al., February 2013, \1\ submitted
by Mr. Guthrie
Article of May 31, 2016, ``EPA's Particulate Matter Co-Benefits:
A Case of Ever-Declining Credibility,'' by Scott J. Bloomberg,
Daily Environment Report, Bloomberg BNA, submitted by Mr.
Guthrie........................................................ 143
Report by Anne E. Smith, NERA Economic Consulting, ``Technical
Comments on the Regulatory Impact Analysis Supporting EPA's
Proposed Rule for Utility MACT and Revised NSPS (76 FR
24976),'' August 3, 2011, \2\ submitted by Mr. Guthrie
----------
\1\ The report has been retained in committee files and also is
available at https://docs.house.gov/meetings/IF/IF02/20190521/109556/
HHRG-116-IF02-20190521-SD004.pdf.
\2\ The report has been retained in committee files and also is
available at https://docs.house.gov/meetings/IF/IF02/20190521/109556/
HHRG-116-IF02-20190521-SD006.pdf.
Article, ``Inconsistencies in Risk Analyses for Ambient Air
Pollutant Regulations,'' by Anne E. Smith, Risk Analysis, Vol.
36, No. 9, 2016, submitted by Mr. Guthrie...................... 146
Report by NERA Economic Consulting, ``An Economic Impact Analysis
of EPA's Mercury and Air Toxics Standards Rule,'' by Anne E.
Smith, et al., March 1, 2012, submitted by Mr. Guthrie......... 154
Proposed Rule, ``National Emission Standards for Hazardous Air
Pollutants: Coal- and Oil-Fired Electric Utility Steam
Generating Units--Reconsideration of Supplemental Finding and
Residual Risk and Technology Review,'' Environmental Protection
Agency, 40 CFR Part 63, in the Federal Register, Vol. 84, No.
26, Thursday, February 7, 2019, \3\ submitted by Mr. Guthrie
Comments of April 17, 2019, from the Environmental Law & Policy
Center, et al., to Environmental Protection Agency, Docket No.
EPA-HQ-OAR-2018-0794, submitted by Ms. DeGette................. 163
Fact Sheet, ``How Mercury Poisoning Works,'' Moms Clean Air
Force, September 2018, submitted by Ms. DeGette................ 173
Letter of May 10, 2019, from Ms. Castor, et al., to Andrew
Wheeler, Administrator, Environmental Protection Agency,
submitted by Ms. DeGette....................................... 175
Letter of March 26, 2019, from Edison Electric Institute, et al.,
to William L. Wehrum, Assistant Administrator, Office of Air
and Radiation, Environmental Protection Agency, submitted by
Mr. Soto....................................................... 179
Letter of September 5, 2017, from Mr. Soto to Scott Pruitt,
Administrator, Environmental Protection Agency, submitted by
Mr. Soto....................................................... 183
Letter of January 30, 2018, from Barry N. Breen, Principal Deputy
Assistant Administrator, Office of Land and Emergency
Management, Environmental Protection Agency, to Mr. Soto,
submitted by Mr. Soto.......................................... 184
----------
\3\ The proposed rule has been retained in committee files and also is
available at https://docs.house.gov/meetings/IF/IF02/20190521/109556/
HHRG-116-IF02-20190521-SD009.pdf.
UNDERMINING MERCURY PROTECTIONS: EPA ENDANGERS HUMAN HEALTH AND THE
ENVIRONMENT
----------
TUESDAY, MAY 21, 2019
House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
room 2322, Rayburn House Office Building, Hon. Diana DeGette
(chair of the subcommittee) presiding.
Members present: Representatives DeGette, Kennedy, Ruiz,
Kuster, Sarbanes, Tonko, Clarke, Peters, Guthrie (subcommittee
ranking member), Burgess, McKinley, Griffith, Brooks, Mullin,
Duncan, and Walden (ex officio).
Also present: Representative Soto.
Staff present: Kevin Barstow, Chief Oversight Counsel;
Jeffrey C. Carroll, Staff Director; Waverly Gordon, Deputy
Chief Counsel; Judy Harvey, Counsel; Chris Knauer, Oversight
Staff Director; Brendan Larkin, Policy Coordinator; Jourdan
Lewis, Policy Analyst; Jon Monger, Counsel; Alivia Roberts,
Press Assistant; Tim Robinson, Chief Counsel; Nikki Roy, Policy
Coordinator; Jen Barblan, Minority Chief Counsel, Oversight and
Investigations; Mike Bloomquist, Minority Staff Director; S. K.
Bowen, Minority Press Assistant; Jordan Davis, Minority Senior
Advisor; Brittany Havens, Minority Professional Staff Member,
Oversight and Investigations; Peter Kielty, Minority General
Counsel; Ryan Long, Minority Deputy Staff Director; Brannon
Rains, Minority Staff Assistant; and Natalie Sohn, Minority
Counsel, Oversight and Investigations.
Ms. DeGette. The Subcommittee on Oversight and
Investigations will now come to order.
Today, the Subcommittee on Oversight and Investigations is
holding a hearing entitled ``Undermining Mercury Protections:
EPA Endangers Human Health and the Environment.''
The purpose of today's hearing is to examine the
Environmental Protection Agency's recent proposal that says
limiting mercury and other toxics from coal- and oil-fired
power plants is not, quote, ``appropriate and necessary'' under
the Clean Air Act.
The Chair will now recognize herself for purposes of an
opening statement.
OPENING STATEMENT OF HON. DIANA DeGETTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Today, we take a look at the Trump administration's ill-
conceived and, to me, frankly, mind-boggling effort to
undermine the U.S. Environmental Protection Agency's rule that
limits mercury emissions from our Nation's coal power plants.
Mercury is one of the most toxic substances on the planet,
and it's one that causes real harm to the brain, heart, and
other essential body systems. Despite the dangers that toxic
metals can cause, for years there were no Federal regulations
limiting how much mercury that our coal-fired power plants
could emit into the atmosphere each year.
Let me be clear about something. When the EPA fails to
enact clean air protections, it's our communities, it's our
families and our environment that all pay the price. And when
an administration like today's administration tries to unravel
the protections that we have gotten, it puts all of us at risk.
In 2012, to address this issue and better protect the
public from the threat posed by mercury emissions, the Obama
administration determined that it was, quote, ``appropriate and
necessary'' under the Clean Air Act to limit how much mercury
coal power plants could emit each year. The Obama
administration finalized these new standards in a new rule
enacted that year known as the Mercury and Air Toxic Standards,
or MATS. In justifying its decision to enact these new limits,
the Obama administration estimated, while it would cost
industry more than $9 billion to comply with the new rule, the
new standards would generate $4 million to $6 million direct
health benefits and as much as $90 billion in additional health
benefits each year by reducing people's exposure to the toxic
metal.
Now, the industry chose to challenge the standards in
court, but they were left in place during the court challenge.
The industry eventually moved forward and invested billions of
dollars in new technology and pollution controls to comply with
these standards. And the investments the companies made led to
a significant drop in the amount of mercury and other harmful
pollutants being emitted from the coal power plants across the
country today. And that is why the Obama administration's so-
called mercury rule has been hailed by advocates as such a
success. But now, as I said earlier, the rule is under attack
as the Trump administration is trying to not only undo this new
mercury rule but also to undermine the theory that it is
``appropriate and necessary'' for the Agency to enact such
rules in the first place.
If the EPA was here today, I am sure that they would tell
this panel that we have nothing to worry about, that mercury
standards will remain in effect regardless of their actions,
and the only reason they are taking a look at this rule now is
because they are required to do so by the Supreme Court. But,
of course, the EPA didn't come today, and so I'll just say what
my perspective is. I don't think that would be true.
The Supreme Court never told the Trump administration to
revisit this rule. And the Supreme Court never told the EPA to
enact a new policy that would ignore billions of dollars in
health benefits going forward. The Trump administration is
acting purely on its own initiative. Why? I don't know. What's
clear is the Trump administration is doing more than simply
revising the mercury rule. It's trying to set the EPA on an
entirely new course going forward, one that requires the Agency
to ignore the real health benefits that our Nation's
environmental policies often provide to the public.
I want to thank our witnesses for coming today. We have
experts who will explain how the administration's new mercury
proposal contradicts the, quote, ``relevant guidance and
decades of practice by administrations of both political
parties.'' They'll explain how it ignores the very real benefit
that comes from regulating the hazardous pollutants coming from
our Nation's power plants and how the Trump administration is
conveniently ignoring some key realities and important new
information when arguing that the cost of these proposals
greatly outweighs the benefits.
For example, according to recent studies, the annual direct
benefit of regulating mercury could be in the billions, not the
millions as originally estimated. And the total implementation
cost for countries to come into compliance was actually much
lower than was predicted.
But what's the most puzzling is the timing, because in
arguing the cost versus benefit of the mercury rule, the EPA
seems to have forgotten the rule has been in place for years
already. The industry has already complied. And if you undo the
rule now, it would put the public's health at risk and also the
companies' ability to recover the money they invested to
comply. That's why some of the people who want to keep this
rule in place is the power industry itself. So, if undoing the
rule would be bad for public health, bad for the environment,
and bad for industry itself, who does it help? And why is the
EPA pushing this? That's what I'm trying to understand.
Now, I just want to close briefly by saying that I'm
continually frustrated and surprised by the administration's
refusal to send witnesses to Congress. And the EPA's refusal to
show up today is just another example of the efforts to block
Congress from performing its oversight functions. And so we are
going to have to move forward, but it would be really helpful
if we had the agencies here to help us.
[The prepared statement of Ms. DeGette follows:]
Prepared Statement of Hon. Diana DeGette
Today, we take a look at the Trump administration's ill-
conceived and--quite frankly--mindboggling efforts to undermine
the U.S. Environmental Protection Agency's (EPA) rule that
limits mercury emissions from our Nation's coal power plants.
Mercury is one of the most toxic substances on the planet--
and it's one that can cause real harm to the brain, heart and
other essential bodily systems.
Despite the dangers that this toxic metal can cause, for
years there had been no Federal regulations limiting how much
mercury that our coal-fired power plants could emit into the
atmosphere each year.
Let me be clear about something: When the EPA fails to
enact clean air protections, it is our communities, and our
families, and our environment that pay the price. And when an
administration--like the one we have today--tries to unravel
the protections that we already have, it puts all of us at
risk.
In 2012, to better protect the public from the threat posed
by mercury emissions, the Obama administration determined that
it was ``appropriate and necessary'' under the Clean Air Act
for the EPA to limit how much mercury coal power plants could
emit each year.
The Obama administration finalized these new standards in a
new rule it enacted that year known as the Mercury and Air
Toxics Standards, or ``MATS.''
In justifying its decision to enact these new limits, the
Obama administration estimated that while it would cost the
industry more than $9 billion to comply with the new rule, the
new standards would generate $4 to $6 million in direct health
benefits, and as much as $90 billion in additional health
benefits every year by reducing people's exposure to the toxic
metal.
While the industry chose to challenge the new standards in
court, they were upheld as the EPA, at the time, argued--again
and again--that it was ``appropriate and necessary'' for the
Agency to limit mercury pollution from power plants.
With the courts siding with the administration, the
industry eventually moved forward and invested billions of
dollars in new technology and pollution controls to comply with
the new standards.
The investments these companies made have led to a
significant drop in the amount of mercury and other harmful
pollutants being admitted from coal-powered plants across the
country today.
And it's why the Obama administration's so-called mercury
rule has been hailed as such a success.
But now that rule is under attack, as the Trump
administration--which has shown a determination to roll back
many our Nation's environmental protections--is trying to not
only undo the mercury rule, but also undermine the theory that
it is ``appropriate and necessary'' for the Agency to enact
such rules in the first place.
If the EPA were here today, I'm sure they would tell this
panel that we have nothing to worry about. That the mercury
standards will remain in effect regardless of their actions,
and the only reason they are taking a look at this rule now is
because they are required to do so by the Supreme Court.
But that wouldn't be entirely true. The Supreme Court never
told the Trump administration to revisit this rule. And, the
Supreme Court never told the EPA to enact a new policy that
would ignore billions of dollars in public health benefits
going forward. The Trump administration is acting purely on its
own accord, we know that. But what we don't know is: why?
What is clear is: the Trump administration is doing more
than simply revisiting this rule. It's attempting to set the
EPA on an entirely new course going forward--one that requires
the Agency to ignore the real health benefits that our Nation's
environmental policies often provide the public.
We have experts here today who will explain how the Trump
administration's new mercury proposal contradicts ``the
relevant guidance and decades of practice by administration of
both political parties.''
They will explain how it ignores the very real benefit that
comes from regulating the hazardous pollutants coming from our
Nation's power plants. And how the Trump administration is
conveniently ignoring some key realities and important new
information when arguing that the cost of these proposals
greatly outweigh the benefits.
For example, according to recent studies, the annual direct
benefit of regulating mercury could be in be in the billions--
not millions, as originally estimated. And that the total
implementation cost for these companies to come into compliance
was actually much lower than originally predicted.
But what makes this proposal most puzzling is the timing.
You see, in arguing the cost vs. benefit of the mercury
rule, the EPA seems to have forgotten that this is a rule
that's been in place for years now.
The industry has already spent the billions of dollars it
took to come into compliance with this rule.
And by undoing this rule now, the administration would
actually not only be putting the public's health at risk but it
would also be putting the companies' ability to recover the
money they invested to comply with these new standards at risk,
as well.
That's why, among those who support keeping this important
rule in place is the coal power industry itself.
So, if undoing this rule would be bad for public health,
bad for the environment, and bad for the industry itself, who
does it help? And why is the EPA pushing so hard to get this
done?
That's what we are seeking to understand.
Unfortunately, the EPA is, in effect, pleading the fifth in
this case by refusing to send a witness to testify here today.
I wish I could say I was shocked, but this is just the
latest in a series of actions that this agency has taken to
withhold information from this committee, including information
that Administrator Wheeler had personally committed to
providing when he was here to testify in April.
If the EPA wants to continue to ignore this committee as we
perform our oversight responsibilities, that's its choice. It's
not a wise choice, but it is a choice they have seemed to make.
It will not deter or slow our efforts to get to the truth. And
it won't stop us from doing the work that we have set out to
do. It only strengthens our resolve. And we will continue to
take whatever actions we believe are necessary to safeguard the
health of our environment and the health of the American
people.
Thank you, and I yield.
Ms. DeGette. And, with that, I'm pleased to yield 5 minutes
to the ranking member, Mr. Guthrie.
OPENING STATEMENT OF HON. BRETT GUTHRIE, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF KENTUCKY
Mr. Guthrie. Thank you, Chair DeGette. And thank you for
holding this important hearing.
The Mercury Air Toxic Standards, MATS, was created to
regulate mercury levels, and I think it's important to today's
conversation to discuss where mercury comes from and how we in
the United States are primarily exposed to it.
Mercury can be released through human activity, such as
burning materials which contain mercury. It is also released
into the atmosphere naturally through events, such as volcanic
eruptions, forest fires, and normal breakdown of minerals and
rock and soil. Mercury levels in certain areas can vary
depending not only on how much mercury is released locally, but
what can also come from regional, national, even international
sources due to wind and weather patterns.
Once released into the atmosphere, mercury will eventually
deposit into bodies of water or onto land, where it will also
ultimately be transported into water. In the water,
microorganisms can change the mercury into methyl mercury, and
the methyl mercury will accumulate up the food chain into fish
and shellfish.
While exposure to mercury takes several forms, nearly all
human exposure to methyl mercury in the United States occurs
through fish and shellfish consumption. The regulation we are
discussing today, MATS, was intended to help reduce the amount
of mercury created from human activity, specifically mercury
emitted from coal- and oil-fired electric utility steam plants
generating units, or EGUs.
The creation of MATS dates back to 1990 Clean Air Act
amendments where the Environmental Protection Agency was
required to conduct studies on coal- and oil-fired EGUs to form
the EPA's decision where it was ``appropriate and necessary''
to regulate EGUs under section 112 of the Clean Air Act. After
conducting multiple studies in 2000, the Clinton administration
found that it was ``appropriate and necessary'' to regulate
coal- and oil-fired EGUs under the Clean Air Act section 112
and added EGUs to the Act's 112(c) list of source categories
that must be regulated.
MATS has had a lengthy and complex history across multiple
administrations involving studies, proposed rules, final rules,
cases before the DC circuit, and a case before the Supreme
Court in 2015 where the Supreme Court told EPA they had to
consider costs when determining whether this regulation was
"appropriate and necessary," which EPA had not previously done.
Most recently, in December, the EPA issued a proposed
rulemaking to the National Emissions Standards for Hazardous
Air Pollution, or NESHAP, for EGUs. In the rule, EPA makes four
proposals: to determine that it is not ``appropriate and
necessary'' to regulate hazardous air pollutant emissions from
coal- and oil-fired EGUs planned under section 112 of the Clean
Air Act; to keep coal- and oil-fired EGUs as a source category
on the Clean Air Act section 112(c) list of sources that must
be regulated under 112(d) of the Act, thereby keeping the
emission standards and other requirements of the MATS rule in
place for coal- and oil-fired power plants; three, to solicit
on whether the Agency has the authority and/or obligation to
delist EGUs from section 112(c) of the Act and rescind the
NESHAP for coal- and oil-fired EGUs; and, four, to propose the
results of the residual risk and technology review of NESHAP
for coal- and oil-fired EGUs.
This proposed rule does not remove the standard. It only
proposes to remove the ``appropriate and necessary'' finding
that almost entirely justified the cost of MATS regulation by
the cobenefits of regulating particulate matter on which, by
Congress' design, is regulated under a different section of the
Act. Today's conversation examines a lot of very complex
questions and I believe have potential significance beyond
MATS. For example, was the ``appropriate and necessary''
finding that justified MATS sound? Was the regulation made
under the right section of the Act? And how should a regulatory
body weigh coal benefits in crafting future regulations, et
cetera? All of these questions are important, and I hope we can
have a thorough and honest discussion to inform future
rulemaking.
I thank our witnesses for being here today. While it is
unfortunate the EPA cannot be here today to testify as well, I
hope the Chair schedules a second hearing soon so the Agency's
perspective can be heard on these important issues.
Thank you, and I yield back.
[The prepared statement of Mr. Guthrie follows:]
Prepared Statement of Hon. Brett Guthrie
Thank you, Chair DeGette, for holding this important
hearing.
The Mercury and Air Toxics Standards (MATS) was created to
regulate mercury levels, and I think it's important to today's
conversation to discuss where mercury comes from and how we, in
the United States, are primarily exposed to it.
Mercury can be released through human activity, such as
burning materials which contain mercury. It is also released
into the atmosphere naturally, through events such as volcanic
eruptions, forest fires, or the normal breakdown of minerals in
rocks and soil. Mercury levels in certain areas can vary
depending not only on how much mercury is released locally, but
can also come from regional, national, and even international
sources due to wind and weather patterns.
Once released into the atmosphere, mercury will eventually
deposit into bodies of water or onto land--where it also will
ultimately be transported into water. In the water,
microorganisms can change the mercury into methylmercury, and
the methylmercury will accumulate up the food chain into fish
and shellfish. While exposure to mercury takes several forms,
nearly all human exposure to methylmercury in the United States
occurs through fish and shellfish consumption.
The regulation we are discussing here today--MATS--was
intended to help reduce the amount of mercury created from
human activity, specifically mercury emitted from coal- and
oil-fired electric utility steam generating units, or ``EGUs.''
The creation of MATS dates back to the 1990 Clean Air Act
amendments where the Environmental Protection Agency (EPA) was
required to conduct studies on coal- and oil-fired EGUs to
inform the EPA's decision whether it was ``appropriate and
necessary'' to regulate EGUs under section 112 of the Clean Air
Act. After conducting multiple studies, in 2000 the Clinton
administration found that it was ``appropriate and necessary''
to regulate coal- and oil-fired EGUs under the Clean Air Act
section 112 and added EGUs to the Act's 112(c) list of source
categories that must be regulated.
MATS has had a lengthy and complex history, across multiple
administrations involving studies, proposed rules, final rules,
cases before the DC circuit, and a case before the Supreme
Court in 2015 where the Supreme Court told EPA they had to
consider cost when determining whether this regulation was
``appropriate and necessary,'' which EPA had not previously
done.
Most recently, in December, the EPA issued a proposed rule
relating to the National Emission Standards for Hazardous Air
Pollutants, or NESHAP, for EGUs. In the rule, EPA makes four
proposals:
(1) to determine that it is not ``appropriate and
necessary'' to regulate Hazardous Air Pollutant emissions from
coal- and oil-fired EGUs plans under section 112 of the CAA;
(2) to keep coal- and oil-fired EGUs as a source category
on the Clean Air Act Section 112(c) list of sources that must
be regulated under section 112(d) of the Act, thereby keeping
the emission standards and other requirements of the MATS rule
in place for coal- and oil-fired power plants;
(3) to solicit comment on whether the Agency has the
authority and/or obligation to delist EGUs from section 112(c)
of the Act and rescind the NESHAP for coal- and oil-fired EGUs;
and
(4) to propose the results of the residual risk and
technology review of the NESHAP for coal- and oil-fired EGUs.
Contrary to what my colleagues on the other side of the
aisle might think, this proposed rule does not remove the
standard, it only proposes to remove the ``appropriate and
necessary'' finding that almost entirely justified the cost of
the MATS regulation by the cobenefits of regulating particulate
matter, which by Congress' design, is regulated under a
different section of the Act.
Today's conversation examines a lot of very complex policy
questions that I believe have potential significances beyond
MATS. For example--was the ``appropriate and necessary''
finding that justified MATS sound, was this regulation made
under the right section of the Act, how should a regulatory
body weigh cobenefits in crafting future regulations, etc. All
of these questions are important, and I hope that we can have a
thorough and honest discussion to inform future rule making.
I thank our witnesses for being here today. While it is
unfortunate that EPA could not be here today to testify as
well, I hope the Chair schedules a second hearing soon to hear
the Agency's perspective on these important issues.
Ms. DeGette. I thank the ranking member.
I'm now pleased to recognize the vice chair of the
Oversight Subcommittee, Mr. Kennedy, for 5 minutes for purposes
of an opening statement.
OPENING STATEMENT OF HON. JOSEPH P. KENNEDY III, A
REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF
MASSACHUSETTS
Mr. Kennedy. Thank you, Madam Chair.
Over the past 2 1A\1/2\ years, the Trump administration has
upheld its promise time and again to roll back critical
environmental protections. Nearly every day, families and
communities are at greater risk of losing access to clean air
and clean water at the expense of political convenience.
Since 2012, the EPA has written a success story for public
health and the environment through its implementation of
mercury and toxic air standards, MATS.
One analysis by the EPA calculated the reduction level from
86 percent of mercury emissions from 2010 to 2017. Yet despite
that success, EPA is now proposing to reverse its own findings
and perhaps the entire MATS regulatory structure.
Mercury can be highly toxic to infants, children, and
adults, including severe consequences to the heart, kidney, and
immune system functions. Prenatal exposure can cause severe
neurological damage that lasts a lifetime.
Over the years, the EPA has taken steps to limit emissions
of mercury from industrial sources like waste incinerators and
cement and brick production. In 2012, after extensive
consultation with the power sector and other stakeholders, EPA
finalized standards under the Clean Air Act to reduce emissions
of mercury and other toxic air pollutants from coal-fired power
plants.
The final rule was quickly challenged in Federal court by
the coal industry, which argued that the EPA made a flawed
determination that it was, quote, ``appropriate and necessary''
to limit mercury emissions from power plants. The case made its
way all the way to the Supreme Court, which held that the EPA
should have considered costs when making its determination.
In response to the Supreme Court's ruling in 2016, the EPA
issued a supplemental finding which determined that the
consideration of costs confirmed its prior determination that
the regulation of mercury emissions was still, quote,
``appropriate and necessary.''
Throughout these legal challenges, the electric generating
industry pursued regulatory compliance, spending billions of
dollars on technologies to limit mercury and other toxic
emissions, contributing to a nearly 90 percent decrease in
mercury emissions in the past decade. According to a July 2018
letter from the electric industry to EPA, all covered power
plants had implemented the regulation and were operating
pollution controls. Unfortunately, this past December, despite
all the success in reductions of mercury emissions, Trump EPA
issued its stunning reversal by proposing it is no longer,
quote, ``appropriate and necessary,'' unquote, to limit mercury
emissions from power plants under the Clean Air Act. The EPA
reached this conclusion by redoing the Agency's cost-benefit
analysis. In this new calculation, the Agency disregarded the
health and other benefits of reducing pollutants not directly
targeted to MATS, also known as cobenefits.
With those benefits out of the picture, EPA determined the
cost of the rule greatly outweighed its benefits. The Trump EPA
and its supporters claim that this new approach is reasonable
and perhaps even legally required. But the former head of the
EPA's Air and Radiation Office, who helped finalize this rule
during the Obama administration, is here today and will say
just the opposite. By doing what they are doing, the Trump EPA
is, quote, ``choosing to paint itself into this corner,'' end
quote.
The Trump EPA argues that its policy approach is rational
because the pollutant reductions it ignores for purposes of the
MATS rule are regulated under a different provision under the
Clean Air Act. But, as you will hear today from one expert on
cost-benefit analysis, the Trump EPA approach is, quote,
``irrational,'' end quote, and further will result in a, quote,
``biased and misleading estimate of costs and benefits.''
Beyond its wrong-headed and unjustified approach to the
cost-benefit analysis, the Trump EPA's proposed determination
relies on an out-of-date record from 2011. We now know that the
cost of the MATS rule are lower and the direct benefits of
mercury and toxic air reductions are much higher than indicated
in the 2011 record. The Trump EPA conveniently disregards this
information.
Administrator Wheeler is now working to justify this
decision by claiming that the EPA is required to act by the
Supreme Court. However, in truth, the EPA, in a prior
administration, already responded to the Supreme Court's
concerns.
The new proposal is opposed by parents, by doctors, by
nurses, by Tribes, by faith leaders, and even by the regulated
industry itself. Unfortunately, the EPA declined an invitation
to attend this hearing to offer a much-needed explanation of
its decision.
For an agency under this administration that has
demonstrated time and again that it is not serious about its
mission, this dangerous and misleading proposal to undermine
mercury and toxic air protections is a new low and
unnecessarily creates risks to both public health and the
environment.
Thank you, Madam Chair, for holding this important hearing,
and I yield back.
[The prepared statement of Mr. Kennedy follows:]
Prepared Statement of Hon. Joseph P. Kennedy III
Thank you, Madame Chair.
Over the last 2 1A\1/2\ years, the Trump administration has
upheld its promise time and again to roll back critical
environmental protections. Nearly every day, families and
communities are at greater risk of losing access to clean air
and clean water at the expense of political convenience.
Since 2012, the EPA has written a success story for public
health and the environment through its implementation of
mercury and toxic air standards (MATS). One analysis by the EPA
estimated a reduction level of 86 percent of mercury emissions
from 2010 to 2017.Despite the success, the EPA is now proposing
to reverse its own findings and perhaps the entire MATS
regulatory structure.
Mercury can be highly toxic to infants, children, and
adults, including severe consequences to heart, kidney, and
immune system functions. Prenatal exposure can cause severe
neurological damage that lasts a lifetime.
Over the years, the EPA has taken steps to limit emissions
of mercury from industrial sources like waste incinerators and
cement and brick production.
In 2012, after extensive consultation with the power sector
and other stakeholders, EPA finalized standards under the Clean
Air Act to reduce emissions of mercury and other toxic air
pollutants from coal-fired power plants.
The final rule was quickly challenged in Federal court by
the coal industry, which argued that EPA made a flawed
determination that it was ``appropriate and necessary'' to
limit mercury emissions from power plants. The case made its
way to the Supreme Court, which held that the EPA should have
considered cost when making its determination.
In response to the Supreme Court's ruling, in 2016 the EPA
issued a supplemental finding which determined that the
consideration of cost confirmed its prior determination that
the regulation of mercury emissions was still ``appropriate and
necessary.''
Throughout the legal challenges, the electric generating
industry pursued regulatory compliance, spending billions of
dollars on technologies to limit mercury and other toxic
emissions, contributing to a nearly 90 percent decrease in
mercury emissions in the past decade. According to a July 2018
letter from the electric industry to the EPA, all covered
plants had implemented the regulation and were operating
pollution controls.
Unfortunately, this past December, despite all the
successes and reductions of mercury emissions, the Trump EPA
issued a stunning reversal by proposing it is no longer
``appropriate and necessary'' to limit mercury emissions from
power plants under the Clean Air Act.
EPA reached this conclusion by redoing the Agency's cost-
benefit analysis. In its new calculation, the Agency
disregarded the health and other benefits from reducing
pollutants not directly targeted by MATS, also known as
``cobenefits.'' With those benefits out of the picture, the EPA
determined costs of the rule greatly outweighed its benefits.
The Trump EPA and its supporters claim this new approach is
reasonable, and perhaps even legally required. But the former
head of EPA's air and radiation office, who helped finalize
this rule during the Obama administration, is here today and
will say just the opposite: By doing what they are doing, the
Trump EPA is ``choosing to paint itself into this corner.''
The Trump EPA argues that its policy approach is rational
because the pollutant reductions it ignores for purposes of the
MATS rule are regulated under a different provision of the
Clean Air Act. But as you will hear today from one expert on
cost-benefit analysis, the Trump EPA approach is [quote]
``irrational,'' and further, will result in a ``biased and
misleading estimate of costs and benefits.''
Beyond its wrong-headed and unjustified approach to the
cost-benefit analysis, the Trump EPA's proposed determination
relies on an out-of-date record from 2011. We now know that the
costs of the MATS rule are lower, and the direct benefits from
mercury and air toxic reductions are much higher than indicated
in the 2011 record.
The Trump EPA conveniently disregards this information.
Administrator Wheeler is now working to justify this
decision by claiming the EPA is required to act by the Supreme
Court. However, in truth, the EPA in the prior administration
already responded to the Supreme Court's concerns.
The new proposal is opposed by parents, doctors, nurses,
tribes, faith leaders, and even the regulated industry itself.
Unfortunately, the EPA declined an invitation to attend
this hearing to offer much need explanation on its decision.
For an agency under this administration that has
demonstrated time and time again that it's not serious about
its mission, this dangerous and misleading proposal to
undermine mercury and air toxics protections is a new low and
unnecessarily creates new risks to both public health and the
environment.
Thank you, I yield.
Ms. DeGette. I thank the gentleman.
The Chair now recognizes the ranking member of the full
committee, Mr. Walden, for 5 minutes for the purposes of an
opening statement.
OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. Walden. Good morning, Madam Chair, and thanks for
holding this important hearing.
Mercury poisoning poses a serious risk to all children and
to all adults, especially pregnant women and infants. The
mercury levels in certain areas depend on how much mercury is
not only released locally but also how much is released across
the globe. The amount of mercury that travels across the globe
is not insignificant. Some research suggests that about one-
fifth of the mercury that enters the Willamette River in Oregon
comes from abroad, and oftentimes from China.
So let's be clear, though. In the recent proposal, the EPA
is not changing the emission standards and other requirements
of the MATS rule for coal- and oil-fired power plants. Indeed,
the EPA explicitly says that their proposal is to keep power
plants on the Clean Air Act section 112(c) source list and not
to change the existing emission standards promulgated in 2012.
The decision to keep the existing emission standards in place
for power plants makes sense, especially given that the
industry has already complied with the MATS rule. The initial
compliance date was over 4 years ago.
Power plants reduced mercury emissions by about 86 percent
and reduced emissions of total hazardous air pollutants by 96
percent since 2010. These reductions have come at a large cost
to the industry and to consumers.
In their comments to the proposed rule, the U.S. Chamber of
Commerce said the power sector spent about $18 billion on
compliance controls thus far.
So not only is it logical for the EPA to keep the existing
emission standards in place for power plants, but also, under a
2008 DC circuit court case, the EPA cannot change the existing
emission standards unless they go through the extremely
rigorous delisting process under section 112(c)(9) of Clean Air
Act.
Given this precedent and how difficult it is to delist a
source category from the section 112(c)(1) list of the Clean
Air Act, I have questions for the witnesses today about the
likelihood of this risk, especially since industry is already
in compliance with the standards.
Now, when the Obama administration first promulgated the
MATS rule, they did not consider the cost to regulation, as
you've already heard. The Supreme Court in Michigan v. EPA
clearly said that was wrong, stating that the EPA must consider
cost when determining whether it was ``appropriate and
necessary'' to regulate power plants for HAPS.
In response, the Obama administration issued a 2016
supplemental finding putting forth two cost approaches, a cost
reasonableness test and a cost-benefit analysis to determine it
was ``appropriate and necessary'' to move forward.
The EPA heavily relied on the cobenefit of reductions in
particulate matter 2.5 in its cost-benefit analysis, with more
than 99 percent of the benefits being cobenefits. The Obama
administration's interpretation of how to consider cost is open
to argument.
Immediately after the 2016 supplemental finding was issued,
it was challenged in court. This litigation is ongoing, and the
DC circuit is currently holding the case in abeyance.
The Trump administration's proposed rule revises the EPA's
approach to the decision in Michigan v. EPA and, in the EPA's
own words, and I quote, ``corrects flaws in the EPA's prior
2016 response to Michigan,'' close quote.
The EPA calls into question the previous administration's
heavy reliance on cobenefits to justify its ``appropriate and
necessary'' finding.
As Chief Justice John Roberts highlighted through his
questioning during oral argument in Michigan, it is
questionable whether a pollutant that already has its own
regulatory framework under the Clean Air Act, such as PM2.5,
should be so heavily relied on as a cobenefit to justify a
regulation of another type of pollutant. The EPA proposes
instead to directly compare the cost of compliance with MATS
with the benefits specifically associated with reducing
emissions of HAP.
The Clean Air Act is silent on whether or not the EPA
should consider cobenefits in the rulemaking process. I remind
my colleague, this body has the ability to change the law and
statutorily determine whether and how cobenefits should be
considered. But I've seen no bills introduced to do that to
date.
If Congress remains silent, as we have since 1990, then I
strongly suspect that this issue ultimately will be determined
by the Supreme Court.
I want to thank our witnesses for being here today. It's my
understanding that the majority did invite the EPA to testify
today. And, unfortunately, the EPA declined that invitation,
explaining they had a conflict and offered to come at a later
date. I'm disappointed the EPA is not here today. They should
be to explain the proposal and the reasons they have issued
this proposed rule. So I hope we have a second hearing where
they can attend.
I would point out there have been other hearings where the
majority has not invited the administration to present
testimony, made a decision to do that when we've asked them to.
So it kind of goes both ways. But in this case, the EPA ought
to be here. I'm with you, Madam Chair, and we'll work with you
to make sure they show up next time.
And, with that, I yield back.
[The prepared statement of Mr. Walden follows:]
Prepared Statement of Hon. Greg Walden
Thank you, Chair DeGette, for holding this important
hearing.
Mercury poisoning poses a serious risk to all children and
adults--especially pregnant women and infants. The mercury
levels in certain areas depend on how much mercury is not only
released locally, but also how much is released across the
globe. The amount of mercury that travels across the globe is
not insignificant--some research suggests that about one-fifth
of the mercury entering the Willamette River in Oregon comes
from abroad--oftentimes from China.
Let's be clear though--in their recent proposal, the EPA is
not changing the emission standards and other requirements of
the MATS rule for coal- and oil-fired power plants. Indeed, the
EPA explicitly says that their proposal is to keep power plants
on the Clean Air Act section 112(c) source list and not to
change the existing emissions standards promulgated in 2012.
The decision to keep the existing emission standards in
place for power plants makes sense, especially given that
industry has already complied with the MATS rule. The initial
compliance date was over 4 years ago. Power plants have reduced
mercury emissions by about 86 percent and reduced emissions of
total Hazardous Air Pollutants (HAPs) by 96 percent since 2010.
These reductions have come at a large cost to industry,
however. In their comments to the proposed rule, the U.S.
Chamber of Commerce said the power sector has spent about $18
billion on compliance controls thus far.
Not only is it logical for the EPA to keep the existing
emission standards in place for power plants, but also, under a
2008 DC Circuit case, the EPA cannot change the existing
emission standards unless they go through the extremely
rigorous delisting process under section 112(c)(9) of the Clean
Air Act. Given this precedent and how difficult it is to delist
a source category from the section 112(c)(1) list of the Clean
Air Act, I have questions for the witnesses today about the
likelihood of this risk, especially since industry is already
in compliance with the standards.
When the Obama administration first promulgated the MATS
rule, they did not consider the cost of the regulation. The
Supreme Court, in Michigan v. EPA, clearly said that was wrong,
stating that the EPA must consider cost when determining
whether it was ``appropriate and necessary'' to regulate power
plants for HAPs. In response, the Obama administration issued a
2016 Supplemental Finding putting forth two cost approaches--a
cost reasonableness test and a cost-benefit analysis--to
determine it was ``appropriate and necessary'' to move forward.
The EPA heavily relied on the cobenefit of reductions in
particulate matter 2.5 in its cost benefit analysis, with more
than 99 percent of the benefits being cobenefits.
The Obama administration's interpretation of how to
consider costs is open to argument. Immediately after the 2016
Supplemental Finding was issued, it was challenged in court.
This litigation is ongoing, and the DC Circuit is currently
holding the case in abeyance.
The Trump administration's proposed rule revises the EPA's
approach to the decision in Michigan v. EPA, and in the EPA's
own words ``corrects flaws in the EPA's prior 2016 response to
Michigan.'' The EPA calls into question the previous
administration's heavy reliance on cobenefits to justify its
``appropriate and necessary'' finding. As Chief Justice John
Roberts highlighted through his questioning during oral
argument in Michigan, it is questionable whether a pollutant
that already has its own regulatory framework under the CAA--
such as PM 2.5--should be so heavily relied on as a cobenefit
to justify a regulation for another type of pollutant. The EPA
proposes instead to directly compare the cost of compliance
with MATS with the benefits specifically associated with
reducing emissions of HAP.
The Clean Air Act is silent on whether, or how, the EPA
should consider cobenefits in the rulemaking process. I remind
my colleagues that this body has the ability to change the law
and statutorily determine whether and how cobenefits should be
considered. I've seen no bills introduced to date on this
point. If Congress remains silent--as we have since 1990--then
I strongly suspect that this issue will ultimately be
determined by the Supreme Court.
I want to thank the witnesses for being here today. It is
my understanding that the majority invited the EPA to testify
today and the EPA declined the invitation, explaining that they
had a conflict and offering to come at a later date. I'm
disappointed that the EPA is not here today to explain the
proposal and the reasons they have issued this proposed rule. I
hope the Chair schedules a second hearing with the EPA soon.
Ms. DeGette. The gentleman yields back.
I now ask unanimous consent that the Members' written
opening statements be made part of the record.
Without objection, so ordered.
I now want to introduce the panel of witnesses for today's
hearing: Ms. Janet McCabe, who is the former Acting
Administrator, the Office of Air and Radiation, U.S. EPA; Ms.
Heather McTeer Toney, who is the national field director for
Moms Clean Air Force; Mr. Michael Livermore, associate
professor of law at the University of Virginia; Dr. Noelle
Eckley Selin, Ph.D., associate professor at MIT, director of
the MIT Technology and Policy Program; Dr. Philip Landrigan,
M.D., M.Sc., director of Global Public Health Program and
Global Pollution Observatory at the Schiller Institute for
Integrated Science and Society, Boston College; and Mr. Adam
R.F. Gustafson, partner of Boyden Gray & Associates PLLC.
Thank you all for appearing before the subcommittee today.
And I know you're aware that the committee is holding an
investigative hearing. And when we do so, we take testimony
under oath.
Does anyone have an objection to testifying today under
oath?
Seeing no objections, let the record reflect the witnesses
have responded no.
The Chair then advises you, under the rules of the House
and the rules of the committee, you're entitled to be
accompanied by counsel.
Do any of you wish to be accompanied by counsel today?
Let the record reflect the witnesses responded no.
So, please, if you would, please, rise and raise your right
hand so you may be sworn in.
[Witnesses sworn.]
Ms. DeGette. Let the record reflect the witnesses have
responded affirmatively, and they've been seated.
You are now under oath and subject to the penalties set
forth in title 18, section 1001, of the United States Code.
Now the Chair will recognize witnesses for 5-minute opening
statements. In front of you, you've got a microphone and a
series of lights. The light turns yellow when you have a minute
left and red to indicate your time has come to an end.
And so, Ms. McCabe, you're first. And I'm pleased to
recognize you now for 5 minutes.
STATEMENTS OF JANET McCABE, FORMER ACTING ASSISTANT
ADMINISTRATOR, OFFICE OF AIR AND RADIATION, ENVIRONMENTAL
PROTECTION AGENCY; HEATHER McTEER TONEY, NATIONAL FIELD
DIRECTOR, MOMS CLEAN AIR FORCE; MICHAEL A. LIVERMORE, ASSOCIATE
PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA; NOELLE ECKLEY SELIN,
PH.D., ASSOCIATE PROFESSOR AND DIRECTOR, TECHNOLOGY AND POLICY
PROGRAM, MASSACHUSETTS INSTITUTE OF TECHNOLOGY; PHILIP J.
LANDRIGAN, M.D., DIRECTOR, GLOBAL PUBLIC HEALTH PROGRAM,
SCHILLER INSTITUTE FOR INTEGRATED SCIENCE AND SOCIETY, BOSTON
COLLEGE; AND ADAM R. F. GUSTAFSON, PARTNER, BOYDEN GRAY &
ASSOCIATES PLLC
STATEMENT OF JANET McCABE
Ms. McCabe. Thank you, Chair DeGette, and members of the
subcommittee. I appreciate being here today and note that I'm
here in my personal capacity, not representing Indiana
University.
EPA's proposal to withdraw the ``appropriate and
necessary'' finding that underpins the MATS rule is of grave
concern for three reasons. First, it provides the legal
predicate for the eventual withdrawal of a rule that protects
the most vulnerable among us from exposure to mercury and other
harmful pollutants. It takes a radical new approach to
consideration of health benefits that has implications far
beyond this rule. And it injects regulatory uncertainty into a
program the industry has already complied with and does not
want to be reopened.
Mercury is extremely harmful to human health, especially
babies and pregnant women and their unborn children. Prior to
MATS, fossil-fired power plants were the single largest
industrial emitter of mercury.
In 1990, Congress adopted a technology-based approach to
addressing emissions of air toxic from stationary sources.
Because coal-fired power plants were already regulated through
other programs, such as the acid rain program, Congress
required EPA to evaluate whether it was ``appropriate and
necessary'' to develop a rule for them.
The EPA made that finding in 2000 but in 2005 reversed it,
instead issuing a national mercury cap-and-trade program. The
DC circuit overturned that rule, leaving the Obama
administration to address this ongoing regulatory obligation.
EPA issued MATS and a new finding in 2011. EPA used the
best information available and followed longstanding OMB
guidance to project the cost and benefits of the rule. That
meant considering the full range of health benefits, including
reductions of all harmful air pollutants, monetized or not.
As is often the case, the technologies EPA expected
utilities would use to control mercury would also reduce other
harmful air pollutants, such as fine particles. The health
effects of these pollutants are significant, and these
reductions were not already required by other programs.
The DC circuit fully upheld MATS. The Supreme Court agreed,
except that it held that EPA should have considered cost as
part of the ``appropriate and necessary'' finding itself. So
the EPA issued a supplemental finding in 2016 looking at cost
and benefits in several ways and again concluding that MATS was
"appropriate and necessary."
In the meantime, the industry implemented the rule and is
now in compliance. Although EEI and others urged EPA not to
change the ``appropriate and necessary'' finding or the
provisions of MATS, EPA issued its proposed withdrawal earlier
this year.
EPA now proposes to conclude that the costs outweigh the
benefits, looking at the very same information it considered in
2011 and 2015 but using a radically different approach to how
it considers benefits. And while EPA presents this almost as if
it has no choice, the Agency is choosing to paint itself into
this corner.
First, despite saying that it is not proposing to rescind
MATS, a rescission of the finding would create the legal
predicate for the Agency to do so or for outside parties to
petition EPA to do so and sue them if they don't. EPA indeed
seeks comment on this very question, and we're seeing public
statements that indicate people believe that this is the first
step to repeal of MATS.
Second, EPA proposes to reverse itself on the strength of a
single highly significant policy change, that it's
inappropriate to consider fully the health and benefits
associated with any pollution reductions other than the air
toxic specifically targeted by the rule. This approach ignores
decades-old OMB guidance and years of agency practice that
value both direct and indirect benefits. It also ignores cause-
and-effect realties and favors industry costs over public
health benefits.
The EPA's approach distorts cost-benefit analysis in ways
that reasonable businesses would not do. Savvy businesses try
to achieve multiple benefits when installing new equipment. One
pollution control technology often accomplishes multiple
purposes and helps with compliance beyond the specific rule
that drives the initial investment.
EPA is basing this revised analysis on a record that is
demonstrably out of date. There's now information showing both
that costs have been lower and benefits will be higher. If EPA
is going to proactively reopen this rule and dramatically
change its methodology, to willfully ignore the facts on the
ground turns this into an academic exercise. Rulemaking under
the Clean Air Act is not academic. These programs affect health
and quality of life for millions of people.
The proposal also unnecessarily creates uncertainty for
utilities who have already complied. If EPA reverses the
finding, it will kick the legal legs out from under the
standards themselves. And if the requirements go away, it may
complicate rate recovery, or utilities may decide to operate
their controls less, which would mean a return to higher
mercury and other toxics in our communities.
If EPA finalizes this rule, we can reasonably expect to see
this approach to devaluing health benefits in every EPA
proposal.
This program has been a success. Mercury emissions from
coal plants have gone down, and mercury levels in water and
fish have decreased. This program is in the rearview mirror for
utilities, and contrary to EPA's mission to protect public
health and the environment, it should not be finalized.
And I apologize for going over.
Thank you.
[The prepared statement of Ms. McCabe follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you so much.
The Chair now recognizes Ms. McTeer Toney for 5 minutes.
STATEMENT OF HEATHER McTEER TONEY
Ms. McTeer Toney. Chairwoman DeGette, Ranking Member
Guthrie, and members of the subcommittee, thank you for the
opportunity to testify about the U.S. Environmental Protection
Agency's mercury and air toxic standards.
My name is Heather McTeer Toney. I serve as the national
field director of Moms Clean Air Force. We're a community of
over 1 million moms and dads united against air pollution and
climate change for the sake of our children's health.
I'm here today to explain why the EPA's proposed rule is
completely unacceptable and should be withdrawn. In March of
this year, one of our member moms, Nikki Katrice White,
traveled with us to DC to participate in an EPA hearing on the
MATS proposal.
Nikki is a healthcare worker, a native of Camden, South
Carolina, where she lives and raises her two children. And as a
Black mother living in the shadow of the local coal-fired power
plant, Nikki is acutely aware of the need for strong air
pollution controls. She sat before the EPA hearing panel and
shared how her family was grateful for the sustainable income
yet, at the same time, blissfully unsuspecting of the dangers
that come with living alongside coal-fired power plants.
She shared how they didn't think twice when her mother gave
birth to her only son, and he was stillborn. They didn't give
it a second thought when her mother and sister developed
fibroids, because everybody believes that they're common among
African-American women. And it didn't even dawn on her when her
own children started to have respiratory issues when there was
no family history or significant risk factors.
In her words, ``We didn't link any of that to the fact that
my mother's job was powered by May Plant, a coal-fired power
plant just off the Wateree River. We lived by it, and we were
exposed to these chemicals. But what we do know is that MATS is
one of the several pollution standards that have helped clean
up the environment in my community.''
Ms. White's words were not just spoken on behalf of her and
her two children but on behalf of the millions of kids across
this country that live under a cloud of air pollution and
dangerous brain-damaging toxins that inhibit their lives and
limit their potential.
When the Agency proposed in February of 2019 to change key
elements of the mercury and air toxic standards, claiming that,
as a result of the extremely limiting accounting of the cost
and benefits rules, the rule is not ``appropriate and
necessary,'' our mothers found that disingenuous and dangerous.
The criteria of ``appropriate and necessary'' is a legal
yardstick under the Clean Air Act, and removing this status
undermines the legal foundation of the rule, leaving it
vulnerable to legal challenge.
Furthermore, while EPA has continuously claimed that it's
leaving the current standard for mercury emission in place,
they are taking steps consistent with changing and/or altering
the rule altogether. Not only does the proposal directly attack
the underlying justification of MATS, but EPA specifically
solicits comments on whether, if it were to finalize its
proposed conclusion, it then had the authority or the
obligation to rescind the MATS rule altogether. This is an
insult to the intelligence of mothers everywhere.
I previously served as Regional Administrator for the EPA
Southeast Region under President Obama and EPA Administrator
Gina McCarthy. My region covered eight States, six Tribes, and
over a quarter of the Nation's population. My job was to not
only assist communities and industry to implement MATS but also
to explain the importance of these protective measures,
especially in vulnerable communities and communities of color.
I also am a former mayor, having served my hometown of
Greenville, Mississippi, for two terms. And I'm the mother of
three, one of whom has joined me today. Mothers know that coal-
burning power plants are the largest source of human-caused
mercury emissions in the U.S., and mercury is harmful to the
developing brain.
In 2005, researchers estimated that between 316,000 and
637,000 newborns were born each year in the U.S. with elevated
mercury levels in their blood, levels associated with the loss
of IQ. The resulting loss of intelligence and lost productivity
was calculated to cost $8.7 billion in 2000 dollars.
Everything we know about these pollutants show that
controlling them is not just appropriate but vital. It's deeply
problematic and a direct threat to our children's health that
EPA now proposes to decide otherwise. Moms Clean Air Force,
together with a diverse set of allies and partners, collected
more than 350,000 comments in opposition to this proposal that
were submitted to the docket.
So what should be done to the current rule? Nothing. If
they choose to do anything at all, EPA must strengthen our
Nation's limits on mercury and toxic pollution from coal-fired
power plants.
I shared earlier that I have three children, and my
greatest role is being a mother. My youngest son is 2 1A\1/2\.
And when he plays with blocks, he likes to stack them into tall
towers. He has sense enough to know that, if you pull the
bottom block out, the rest of the tower will fall. If at 2
1A\1/2\ he has the good common sense to understand that
foundations matter, why does this administration and agency not
understand that pulling the base from a protective rule can
make the rest of it crumble? Why they would ever consider
weakening a rule that protects babies' brains is senseless, and
this must be called out for what it is. It is a direct threat
to our children's health, and we will not take these threats
kindly.
Thank you.
[The prepared statement of Ms. McTeer Toney follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you very much.
The Chair now recognizes Mr. Livermore for 5 minutes for an
opening statement.
STATEMENT OF MICHAEL A. LIVERMORE
Mr. Livermore. Madam Chair, Ranking Member Guthrie, members
of the committee, thank you for the opportunity to testify
today. My testimony will focus on the treatment of cost and
benefits in EPA's current proposal.
The use of cost-benefit analysis to evaluate environmental
regulation has a long history in the United States and has been
embraced by administrations of both political parties. Cost-
benefit analysis creates a formal process for a simple idea:
Agencies ought to do their best to anticipate and evaluate the
consequences of their decisions and seek out rules that provide
large benefits at low cost. Over time, approaches for counting
cost and benefits have become standardized. Guidance documents,
such as OMB's Circular A4, which was published during the
George W. Bush administration, described best practices for how
agencies should do this.
A value of these best practices is maintaining consistency
between agency decisions. One major critique leveled against
the practice of cost-benefit analysis is that it's vulnerable
to manipulation by agencies that want to provide ad hoc
rationalization for policy choices that are based on political
expediency.
Well-established best practices reduce this threat because
they create a clear standard that can be used to hold agencies
accountable. If an agency departs from established methods,
that raises a red flag, alerting the public and oversight
officials to the possibility of manipulation. The larger the
departure from established practices, the stronger the reason
that the agency has to give for its departure.
In EPA's current proposal, the Agency does, in fact, depart
from established methods of conducting cost-benefit analysis,
raising that red flag that the Agency is more interested in
providing cover for a decision than in truly understanding the
consequences of its actions.
EPA's earlier analysis of the MATS rule, which was
undertaken under the Obama administration, projected $9.6
billion per year in compliance costs and between $37 billion
and $90 billion per year in quantified benefits in addition to
substantial unquantified health and environmental benefits.
Contradicting the relevant guidance and decades of practice
by administrations of both political parties, the current
proposal functionally ignores the largest class of benefits
associated with the MATS rule. And this is life savings--let's
just be clear about what these benefits are--they're life
savings for many thousand Americans. The result is a biased and
misleading estimate that creates the false impression that the
MATS rules were not justified in cost-benefit terms.
The grounds that the EPA provides for functionally ignoring
these benefits is that they are indirect cobenefits that result
from exposure to particulate matter--or a reduction in exposure
to particulate matter. These particulate matter benefits occur
as a result of the pollution-control technologies that are used
by firms to comply with the MATS rule. The A4 Circular, which
again was adopted during the Bush administration, and EPA's own
peer-reviewed guidance on conducting cost-benefit analysis
direct the Agency to analyze both direct and indirect cost and
benefits. Since President Reagan, EPA has counted cobenefits in
many regulatory contexts, including many other Clean Air rules.
The Agency fails to provide any adequate reason for this
extraordinary and abnormal treatment of cobenefits. Nothing in
either the relevant case law or the statute require the Agency
to functionally ignore tens of billions of dollars of
regulatory benefits.
If finalized and adopted, the proposal would not only
undermine a socially desirable environmental policy; it would
create a dangerous precedent of agencies departing from
established methods when it is politically convenient to do so,
which would open the door in the future to flagrant
manipulation of cost-benefit analysis. Such a trend would
result in inefficient regulation because we're no longer
adequately doing the analysis and would further erode public
confidence in government.
I am happy to answer any followup questions that you may
have.
[The prepared statement of Mr. Livermore follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you so much.
Dr. Selin, you are now recognized for 5 minutes.
STATEMENT OF NOELLE ECKLEY SELIN
Dr. Selin. Thank you, Chair DeGette, Ranking Member Guthrie
for this opportunity to speak.
I would like to share some of the latest developments and
scientific understanding of where mercury comes from, how it
travels in the environment, and how it ultimately affects human
health.
Mercury is emitted to the air by human activities, such as
burning coal, a major source of mercury pollution. Once it's in
the air, mercury undergoes chemical changes and can deposit
both nearby and far away from sources, depending on its
chemical form. After depositing to water bodies, mercury can be
converted to methyl mercury, which is a potent neurotoxin. This
form of mercury accumulates up food chains, and people in the
United States are exposed to methyl mercury primarily by eating
fish and shellfish.
Scientific knowledge about mercury has advanced
significantly since the mercury and air toxic standards were
developed. My own research has focused on understanding and
quantifying the effects of reductions in mercury emissions.
That requires understanding where mercury is emitted, where it
travels, where it's deposited and in what quantities, and how
that mercury could affect human health.
One such analysis we did is particularly relevant to the
MATS standard. In a paper published in early 2016 in the peer-
reviewed journal Proceedings of the National Academy of
Sciences, we quantified the direct mercury-related benefits to
the U.S. of domestic and international mercury reductions. We
calculated the expected changes in exposure to methyl mercury
and quantified the expected impacts from the MATS standard
compared to the impacts that would occur without the standard.
Our best estimate is that the monetized mercury-related
benefits of MATS will amount to $3.7 billion per year. The
original regulatory impact analysis EPA performed for the MATS
rule in 2011 quantified only a subset of those benefits and
valued that subset at approximately $4 million to $6 million, a
thousand times less.
Our estimates are larger for two key reasons. First, we
looked at the entire U.S. population while EPA considered only
people who consumed fish they catch for themselves in fresh
water. Recent work has shown that more than 80 percent of
methyl mercury exposure to the U.S. population comes from
saltwater fish, most of which is from the commercial market.
Second, we included both the impacts of mercury on reduced
IQ in newborns as well as cardiovascular impacts for all
adults, while EPA looked solely at the reduction of IQ. An EPA-
convened expert panel concluded in 2011 that scientific
evidence from mercury's cardiovascular effects was strong
enough to include those effects in estimating benefits of
regulations.
Because of these two factors, our 2016 estimates are a more
comprehensive assessment of the benefits of MATS than EPA's in
2011. Yet the latest science indicates that even our work may
be an underestimate for several reasons. First, we now know
that mercury can have other health impacts in addition to those
we assessed. Methyl mercury can have neurobehavioral effects
beyond IQ declines as well as impacts on the immune system and
reproductive system. These effects are harder to quantify in
dollar terms, but scientific evidence that they're occurring
continues to grow. Including these impacts would obviously
increase the cost of mercury emissions and the benefits of
reducing them.
Second, our main estimates also do not take into account
how long mercury lasts in the environment. Mercury is an
element. So it doesn't go away. Mercury that we emit today
circulates in the environment for decades and even centuries.
This mercury can accumulate in the soil and below the surface
in the ocean and return to the atmosphere. It then deposits
again, converts to methyl mercury, and affects the health of
future fish consumers as well. We estimated that taking into
account these impacts would make our estimates about 30 percent
larger.
Third, our aggregate numbers for the entire U.S. population
obscure the fact that the burdens of mercury pollution can fall
disproportionately on some sensitive populations. These include
those living near large emission sources such as coal-fired
power plants and those for whom eating freshwater fish is
important for subsistence, recreational, or cultural reasons,
including Native Americans.
Finally, our estimates only address the direct benefits of
mercury reductions. The benefits of the role for reducing air
pollution from particulate matter are substantial as well. And
these were also quantified by EPA. For regulatory analysis to
be accurate, it's important to take into account all potential
consequences of regulations, intended or not, both positive and
negative.
In summary, the number of studies on mercury has been
increasing during the nearly two decades I have been working on
mercury science. And the best available science now indicates
that the impacts of mercury are far larger than previously
estimated. EPA needs to take into account the latest science on
mercury as it makes its decisions.
Thank you.
[The prepared statement of Dr. Selin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you very much, Doctor.
The Chair is now pleased to recognize Dr. Landrigan for 5
minutes.
STATEMENT OF PHILIP J. LANDRIGAN
Dr. Landrigan. Thank you, Madam Chair, Ranking Member
Guthrie, for having invited me to testify before you.
I come before you today as a pediatrician to talk about the
impacts that mercury and particulate air pollution have on
children. And when I say ``children,'' I mean unborn children
in the womb, infants, and children as they're growing up across
the span of childhood.
And in my mind, the strongest reason for having a strong
MATS rule is to protect the health of children and then to
protect the health of future generations.
So why the focus on children? Children are exquisitely
vulnerable to hazards in the environment. I chaired a committee
at the National Academy of Sciences that looked at this issue
for 5 years, from 1988 to 1993. And we identified a series of
reasons why children are more vulnerable than adults to toxic
chemicals in the environment.
First, the children are more heavily exposed. They breathe
4 times as much air per day per pound of body weight as an
adult, and therefore they will take much more proportionately
of any foreign material into their body that's in the air.
Secondly, they're biologically more vulnerable. A child's
brain throughout the 9 months of pregnancy and on across
childhood is rapidly--the cells in their brain are dividing,
multiplying, and migrating according to precisely defined
sequences. By the time a child is born, there are approximately
a billion cells in the brain, 3 billion precisely engineered
connections between and among those cells. If any toxic
chemical gets into the body of a child during those complex,
tightly choreographed processes of early development, things
can go badly wrong, especially any chemical that directly
damages the nervous system.
And this is the case for methyl mercury. We heard about
methyl mercury. A major source are emissions from coal-fired
power plants that go through the atmosphere and get into fish,
and then people consumer the fish.
And if a pregnant mom consumes high levels of methyl
mercury during pregnancy, we know from tragic experience 50
years ago in Japan that the impacts can be devastating. In a
place called Minamata, Japan, there was an epidemic of terrible
neurological disease in newborn infants in which babies were
born with small heads, blind, deaf, profoundly retarded, and
spastic.
Just as research on lead has shown us that gross obvious
clinically detectable poisoning is only the tip of the iceberg,
so too for mercury. We now know that even down to the lowest
levels of mercury that are measurable, that mercury can damage
the developing brain of an unborn child and infant and a child
to produce a whole range of abnormal effects. We've heard about
reduced IQ, also a shortened attention span, also behavioral
problems.
There are two points I really want to emphasize in regard
to the neurological damage that mercury causes to children.
Number one, this damage occurs down to the lowest measurable
levels. There is no safe threshold. Standards that regulate the
level of mercury in air are important, but they're no guarantee
of safety. Damage occurs at levels of exposure below those
artificial standards.
And the second important point is that this damage is
permanent. It's irreversible. It's not treatable by any known
medical treatment. And therefore, the only rational approach to
dealing with it is to prevent it.
With that as background, I urge you to take the steps that
are necessary to protect the underpinnings, the legal
underpinnings, of the MATS rule to protect our children today
and future generations.
The MATS rule has been a tremendous success. It's reduced
levels of mercury in the environment by more than 85 percent,
which means that a generation of children born in the past 10
or 15 years is being exposed to much lower levels of mercury
than their predecessors. The situation here is very analogous
to what happened back in the 1970s when EPA took lead out of
gasoline. At that time, we were putting 100,000 tons of lead
into gasoline each year in this country. The average blood lead
level in our children was close to 20 micrograms. Starting in
1975, EPA directed that lead be taken out of gasoline in a
phased process. Over the next decade, blood levels in American
children declined by more than 90 percent. Acute lead poisoning
virtually has gone away in this country. Every child born since
1980 has five more IQ points than children born before that
time because of the reduction in lead.
I recall that, back in 1982, then-EPA Administrator Anne
Gorsuch tried to put lead back into gasoline. Congress rebuffed
her, and the lives of American children were saved. Their
health and their brains were preserved into the future.
I urge you to do the same today. Thank you.
[The prepared statement of Dr. Landrigan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you very much.
The Chair is now pleased to recognize Mr. Gustafson for 5
minutes.
STATEMENT OF ADAM R. F. GUSTAFSON
Mr. Gustafson. Thank you, Chair DeGette, for inviting me to
speak about EPA's proposed reconsideration of the mercury rule
supplemental findings.
The EPA's proposal represents an important course
correction in the Agency's accounting of the costs and benefits
of environmental regulation. EPA is correct that it should not
give equal weight to incidental reductions of pollutants like
particulate matter that could not legally be regulated under
the same statutory regime as mercury. The 2012 mercury rule is
one in a series of expensive rules that EPA cost-justified on
the basis of cobenefits from incidental reductions of PM, even
though PM is not the object of those regulations and is already
regulated under different provisions of the Clean Air Act that
govern criteria pollutants.
Out of $37 billion to $90 billion in projected annual
benefits, more than 99 percent came from the mercury rule's
projected PM effects. PM reductions are the gift that
regulators keep regifting. In the last administration, most of
the benefits of Federal regulation came from PM-related
cobenefits. In Michigan v. EPA, the Supreme Court agreed with
the rule's challengers that EPA had to consider costs in
determining whether the rule was appropriate. The Supreme Court
did not decide whether EPA could rely on cobenefits. But that
question was lurking in the background.
At oral argument, Chief Justice Roberts noted, quote,
``It's a good thing if your regulation also benefits in other
ways. But when it's such a disproportion, you begin to wonder
whether it's an illegitimate way of avoiding the quite
different limitations on EPA that apply in the criteria
program,'' end quote.
EPA is now in litigation over the Obama administration's
supplemental finding, which relies on PM cobenefits to justify
the mercury rule. When the Trump administration took office,
EPA had to decide whether to defend that finding or redo it.
Today, I want to explain why EPA's proposed revision is
required by statute and also why it is necessary to rationalize
EPA's cost-benefit analysis.
First, the Obama EPA's use of PM cobenefits to justify the
mercury rule violates an express prohibition on regulating PM
and other criteria pollutants under section 112, the statute
that governs mercury and other hazardous air pollutants, or
HAPS.
If you want to know what pollutants really motivated the
mercury rule, consider that 95 percent of its PM cobenefits but
none of the direct benefits came from controls on acid gas
emissions. By justifying a HAP rule on the basis of PM
cobenefits, the Agency sidestepped the prohibition on
regulating PM under section 112.
This is not just a technicality. Congress intended criteria
pollutants to be regulated under an entirely different
framework that put States, not EPA, in the driver's seat. After
EPA sets a National Ambient Air Quality Standard, it's the
States that get to decide how to implement it. By using PM
cobenefits to justify the rule, the Obama EPA substituted its
judgment for the State's judgment about the best way to
regulate PM.
Even if the Clean Air Act had nothing to say about it,
EPA's new proposal would be necessary to correct its arbitrary
accounting of PM cobenefits. The EPA's air quality standard
already requires States to reduce PM concentrations to the
level that EPA deems, quote, ``requisite to protect the public
health with an adequate margin of safety.'' Yet the Obama EPA
counted PM cobenefits both above and below the levels of the PM
standard. The benefits of attaining the PM standard were
accounted for when EPA set that standard in the first place.
Treating those reductions as cobenefits of the MATS rule
amounts to double counting.
Belts and suspenders each keep one's pants up. But wearing
both at the same time does not yield twice the benefit. As for
incidental PM reductions in areas that have already attained
the PM standard, the Obama EPA unreasonably treated them as
equally beneficial to reductions above the standard. That makes
no sense.
Less than a year after the mercury rule, EPA set a PM
standard of 12 micrograms because that level was somewhat below
the concentration shown by certain key studies to cause adverse
health effects. Reducing PM below that level cannot possibly
yield the same degree of health benefits as reductions in
noncompliant areas.
In conclusion, EPA's proposed reconsideration of the
mercury rule's cost-benefit analysis is necessary to give
effect to the Supreme Court's instruction in Michigan v. EPA
and to the cooperative federalism framework that Congress
established in the Clean Air Act. Following this approach in
future rulemakings would avoid reporting an illusory or
duplicative benefits and would help to rationalize EPA's air
quality regulation.
I welcome your questions.
[The prepared statement of Mr. Gustafson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. DeGette. Thank you so much, Mr. Gustafson.
The Chair now recognizes herself for 5 minutes for
questioning.
Ms. McCabe, the MATS rule is the first time the EPA has
successfully protected the public from mercury release from
power plants. And at Congress' direction, the EPA studied this
issue in the 1990s, and then it took steps to develop the
mercury standards for power plants as far back as 2000. Is that
correct?
Ms. McCabe. Yes.
Ms. DeGette. And, Ms. McTeer Toney, I understand that the
EPA's current mercury and air toxic standards, which were
finalized in 2012, now provide critical public health
protections for fence-line communities near power plants, which
are often low-wealth communities. Is that right?
Ms. McTeer Toney. Yes, ma'am.
Ms. DeGette. And I will say, I was just telling Mr.
Guthrie, we have one of these communities right in my
congressional district, Swansea-Elyria and Globeville, where we
actually had to go in and remove mercury from the yards of the
homes there.
Dr. Landrigan, I want to ask you: We know that mercury
emissions can carry enormous public health consequences, as you
talked about children and pregnant women. And I think that what
you said is that these babies that are born after being exposed
can suffer IQ and motor skills impairments that will really
last a lifetime. They don't go away. Is that right?
Dr. Landrigan. That is correct, ma'am.
Ms. DeGette. And back to you, Ms. McCabe.
As of today, the industry has actually spent billions of
dollars to come into compliance with these rules and, in fact,
that the power industry, what we heard is that they support
keeping the rule in place. Is that also correct?
Ms. McCabe. Yes. That's my understanding.
Ms. DeGette. OK. Dr. Selin, a recent study--thank you for
your excellent analysis. I thought it was terrific. And recent
studies have suggested the direct benefits of protecting
against mercury may be actually much higher than the ones
quantified by the EPA. And, in fact, you found that the direct
monetized benefits of mercury protection might be 3.7 billion
more per year. And I think you said that's many more times than
the EPA found in 2011. Is that right?
Dr. Selin. That's correct.
Ms. DeGette. And that's the direct benefits.
Dr. Selin. Yes.
Ms. DeGette. OK. Now, Mr. Livermore, you said in your
testimony that the Obama EPA's finding was extremely well
justified in cost-benefit terms. Is that right?
Mr. Livermore. Absolutely.
Ms. DeGette. And you also said, regarding the Trump EPA's
proposal and methodology, it's, quote, "contradicting the
relevant guidance and decades of practice by both political
parties" and results in, quote, "a biased and misleading
estimate" of cost and benefit.
Could you please elaborate on that?
Mr. Livermore. Well, you know, the purpose of cost-benefit
analysis is to understand the consequences of an agency
decision. And by excluding a large category of consequences,
it's just functionally inconsistent with that goal. It's just
kind of turning a blind eye to an enormous category of
consequences. Here we're talking about thousands of lives being
saved. They have quantified benefits of, you know, many
billions of dollars. Tens of billions of dollars.
So, if the goal of cost-benefit analysis is to get a clear
picture of what the consequences of a decision are, blocking
off a big chunk of the picture is just not how you do that.
Ms. DeGette. OK. Now, Ms. McTeer Toney, can you--you really
talked about the EPA and how they're the ones to blame for
this.
Can you elaborate on that a little bit more?
Ms. McTeer Toney. So the fact that the EPA is
reconsidering--or weakening this proposal is unnecessary. They
use the term ``appropriate and unnecessary'' in terms of
challenging the Michigan decision when the reality is there's
no need for them to do so. The decision was currently in the
hands of the Court. And the Obama administration did respond.
But it was the Trump administration's EPA that decided to
put that into abeyance and not defend it. And so, as a result,
there's a decision that's being made that's completely and
totally unnecessary.
The second part of that is that they are taking actions
right now that would weaken the rule. They say they're not
trying to do it, but at the same time, they're holding
hearings, they're requesting comments, and doing things that,
in the scope of practice at EPA, one would do if you're going
to actually reconsider or move and change it.
Ms. DeGette. So, if their intent was actually strengthen
the rule, what would they do instead of what they're doing now?
Ms. McTeer Toney. They would have allowed it to proceed to
the court system. I believe the Obama-era supplemental decision
would have been upheld. We don't know that because the Court
hasn't made that decision. And then they would have looked into
the communities and looked at working in States to determine
what things they need to do to make the rule stronger.
Ms. DeGette. Thank you very much. I thank all of the
witnesses, and I'd now like to recognize the ranking member for
5 minutes for purposes of questioning.
Mr. Guthrie. Thank you very much, and I thank all of the
witnesses for being here, and Mr. Gustafson, I want to ask you
a couple questions, focus on the way that Congress constructed
the Clean Air Act, and obviously, Congress has the ability to
change it if need be. And so it's my understanding that the
Clean Air Act is designed to regulate hazardous air pollutants,
such as mercury, and criteria pollutants, such as particulate
matter, under different sections of the Clean Air Act.
In your testimony, you state the Obama administration's
2016 Supplemental Fact Finding, which EPA is now reconsidering,
violates section 112's prohibition or regulating criteria
pollutants and it violates the statute's instruction to
determine appropriateness of HAP regulation for coal-fired
plants only after imposition of the requirements of this
chapter.
Can you explain what you mean by this and, based on your
understanding of the Clean Air Act, what section of the act
would be a more appropriate section to regulate criteria
pollutants?
Mr. Gustafson. Thank you, Ranking Member Guthrie. Yes,
that's exactly right, the Clean Air Act does address all of the
pollutants that have been discussed today, but the act does so
under different provisions.
Particulate matter is one of the criteria pollutants that
is regulated under sections 108, 109, and 110 of the Clean Air
Act. The EPA identifies the criteria pollutants under 108; they
set a standard under 109; and the States implement that
standard with State implementation plans under section 110.
That is why, under section 112, which governs mercury and other
hazardous air pollutants, EPA is not permitted to regulate
criteria pollutants like particulate matter.
In addition, as you mentioned, section 112 also requires
EPA, before regulating hazardous air pollutants from coal-fired
power plants, to first determine whether, in light of all of
the other Clean Air Act regulation governing those sources,
further regulation is "appropriate and necessary."
So the EPA is already required to accept as a baseline the
existence of other regulation--the other regulation of PM--
including the National Ambient Air Quality Standard. And the
problem with the mercury rule adopted under the past
administration was that it treated cobenefits, that is,
reductions of particulate matter, as equivalent to reductions
on pollutants that the Agency is allowed to regulate under
section 112.
Mr. Guthrie. So the question isn't that these don't need to
be regulated; of course, it's how they're regulated in
accordance with the way Congress instructed the EPA. So
Congress could change that instruction if we so----
Mr. Gustafson. That's exactly right, and indeed, if the
standard is not stringent enough, then EPA could set a new
particulate matter standard. They did that last in 2013, not a
year after the mercury rule was promulgated.
Mr. Guthrie. OK. Thanks. And your testimony further states
that, because the States are principally responsible for
implementing, the EPA's treatment of PM reductions as
cobenefits of its HAP regulation violates the cooperative
federalism framework. You talked about the federalism
framework.
Can you elaborate on how this violates the cooperative
federalism framework that was intended by Congress?
Mr. Gustafson. Certainly. So, under section 110 of the
Clean Air Act, States get to implement the standards for
criteria pollutants like particulate matter. That means that
they develop--the States develop an implementation plan. They
get to decide what they think is the best way of addressing
those pollutants given the circumstances on the ground within
those States.
And, by the way, criteria pollutants, like particulate
matter, come from a variety of sources. It's not only power
plants that produce these pollutants. So States have a menu of
options for reducing particulate matter. They can do that by
imposing limits on power plants, but they can also do that by
regulating other sources, including motor vehicles that produce
PM.
So, basically, by treating cobenefits as the justification
for this rule, the Obama administration usurped the State's
prerogative to decide the best way to regulate criteria.
Mr. Guthrie. Similar question. So cobenefits are the major
reason for this cost-benefit analysis, like 99 percent. So does
this mean that utilities that are located in an area that is
already in attainment, again, that there is--that is to mean
the EPA deems safe standard--is being forced to achieve levels
that--are the utilities in safe attained areas being forced to
achieve levels below the standard?
Mr. Gustafson. Yes, that's correct. The 2016 supplemental
finding makes clear that the Agency's defending claimed PM
cobenefits both above and below the National Ambient Air
Quality Standard.
Mr. Guthrie. Thank you. My time's expired. I do have some--
for the record, offers--I submitted a list. I could read the
list or can I----
Ms. DeGette. You don't need to read it.
Mr. Guthrie. So the seven items that I submitted the list
to the Chair would be accepted in the record?
Ms. DeGette. Yes. I just would point out, four of the five
articles on your list--on the ranking member's list were
written by the same person, Anne Smith, and I understand that
she's a consultant for industry, but I will admit all of the
items on the list without objection.
[The information appears at the conclusion of the
hearing.\1\]
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\1\ Two NERA Economic Consulting reports and a Federal Register
entry submitted by Mr. Guthrie have been retained in committee files
and also are available at https://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=109556.
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Mr. Guthrie. OK. Thank you.
Ms. DeGette. The Chair's now pleased to recognize the vice
chair of the Oversight Subcommittee, Mr. Kennedy, for 5
minutes.
Mr. Kennedy. Thank you, Madam Chair. And apologies for
being a little late at coming back.
According to the EPA's website, quote, "the mission of the
EPA is to protect human health and the environment," end quote.
That seems pretty straightforward, and yet here we are.
EPA's enforcement is declining, as we saw a few months ago
in the subcommittee, and the EPA is failing to protect human
health and the environment. Yet here we see EPA wasting
enormous resources and energy in their effort to question
whether it is ``appropriate and necessary'' to regulate
mercury.
Ms. McTeer Toney, you said in your testimony that you--as
you take EPA to task for diversion of resources and you write,
quote: "Rather than revisiting these life-saving standards, EPA
should be strengthening them to reduce hazardous air pollutants
further from these sources, to better protect the health of
children, families, and communities living near these
facilities and downwind from them."
So, ma'am, do you consider EPA's current mercury proposal
consistent with the mission statement, again, "to protect human
health and the environment"?
Ms. McTeer Toney. Yes, I do, but may I elaborate just
about----
Mr. Kennedy. Please.
Ms. McTeer Toney. I think it's important also to note that
how this works together is something that additionally helps
communities to realize these benefits. It was mentioned before
that the States have the opportunity to regulate through their
own SIP, but they work together interchangeably. So the way
that the States realize these benefits that help these
communities is they are dependent upon the standards that are
set by the Federal Government; that's how they make their
decisions.
When we weaken and change those standards, it then weakens
the States' abilities to make those decisions through their SIP
programs, which in turn cost the State money, which in turn
costs the people their health benefits.
So it all works together, and that's why it's so important
for us to realize and why moms are so concerned is because we
know this will hit us in our communities quicker than anywhere
else.
Mr. Kennedy. And so, Ms. McCabe, if you really wanted to
protect human health and the environment in particular with
regard to mercury and air toxics, what actions should the
Agency be taking now?
Ms. McCabe. Well, they wouldn't go forward with this
proposal, that's for sure. They would look at other rules
that--and other sources that are emitting pollution, whether
it's toxic pollution or other pollution, in our communities and
work to strengthen those rules.
It would help the States rather than--what they're doing
now is pushing the responsibility onto the States and yet
taking away the very programs that will help States meet their
standards, like MATS, like the Clean Car Program.
States cannot regulate motor vehicles. The Clean Air Act
requires that EPA do that. So they're saying that they're
helping the States, but they're really not.
Mr. Kennedy. And so, building off that, EPA seems to want
to have it both ways, just as you indicated, so it wants to
tell the public that they're trying to keep the mercury rule in
its place but at the same time taking actions that would seem
to undermine the very rule's foundation. True?
Ms. McCabe. True.
Mr. Kennedy. So EPA's attempt to undermine important toxic
pollutant protections, unfortunately, as I think you had
indicated, is not new. Back in the 1980s, there was an attempt
by the EPA that was thankfully unsuccessful to roll back
standards relating to keeping lead out of gasoline.
Dr. Landrigan, can you tell us more about the previous
effort and what that teaches us about how we need to respond
today with regards to the mercury protections?
Dr. Landrigan. Well, the effort to take lead out of
gasoline began in the early 1970s when pediatricians and
various studies recognized that lead could cause damage to the
brains of children at levels that were well below--standards
that were well below the levels that were then considered to be
safe.
And, in fact, the cycle has repeated itself several times
since. As more and more sophisticated research has come along,
we found harm at levels of exposure lower and lower and lower
until, today, the official statement of the Centers for Disease
Control on lead and mercury is that no level of exposure is
safe.
So, acting on that information, EPA mandated that lead be
taken out of gasoline beginning in 1975. And as I mentioned in
my testimony, that led to a 90 percent reduction in blood lead
levels in American children, a 5-point gain in the IQ of every
child born since 1980, and an estimated economic benefit to
this country of $200 billion in each annual class of children
born since 1980, which is an aggregate benefit of close to 8
trillion, if my math is correct.
In 1982, in the Reagan administration, then-EPA
Administrator Anne Gorsuch made a brief, ultimately
unsuccessful attempt to put lead back into gasoline, reportedly
acting at the request of a single refinery in New Mexico, but
that was beaten back. And American children today enjoy blood
levels less than 2 micrograms as opposed to the levels of close
to 20 micrograms, which were the case 30 years ago.
Mr. Kennedy. Thank you, sir.
I yield back.
Ms. DeGette. The Chair now recognizes Mr. Walden for 5
minutes.
Mr. Walden. Thank you, Madam Chair, and, again, thanks to
the witnesses. As you can tell, we've got a couple hearings
going on simultaneously, so we have to bounce back and forth.
Mr. Gustafson, in your testimony, you discuss concerns that
both Chief Justice John Roberts and now Justice Kavanaugh raise
regarding the heavy reliance on cobenefits to justify the MATS
rule. Now, if a court is asked to decide whether such heavy
reliance can be given to cobenefits to justify the mercury
rule, what do you think is the likely outcome?
Mr. Gustafson. Thank you for the question. I think there's
a high likelihood that other Justices on the Supreme Court
would share the skepticism that Chief Justice Roberts expressed
in oral argument in the Michigan case about EPA's undue
reliance on really disproportionate PM cobenefits to justify
the mercury rule. So I think courts should be skeptical of that
methodology.
Mr. Walden. So, in your testimony, you laid out how the
reliance in the 2016 supplemental finding on cobenefits
involves three distinct statutory defects. As one of the
defects, you note that section 112 of the Clean Air Act
expressly prohibits the EPA from adding an air pollutant which
is listed under section 108, such as particulate matter, to the
section 112 list. Now, if the EPA tried to directly regulate
particulate matter under section 112, what do you think would
be the likely outcome?
Mr. Gustafson. That action would be clearly unlawful and
would be rejected by a court.
Mr. Walden. All right. Thank you.
Ms. McCabe, in Michigan v. EPA, the Supreme Court ruled
that the Agency must consider costs when determining whether or
not it's ``appropriate and necessary'' to regulate power plants
for hazardous air pollutants. The day after this ruling, June
30, 2015, the EPA issued a broad post saying, and I quote:
"From the moment we learned of this decision, we were committed
to ensuring that standards remain in place to protect the
public from toxic emissions from coal- and oil-fired electric
utilities," close quote.
Now, given the statement, what did the EPA believe was the
purpose of the Supreme Court's decision in ruling that the EPA
must consider cost when making the ``appropriate and
necessary'' termination?
Ms. McCabe. Yes. So, to clarify, the EPA did consider cost
in the rulemaking. We did it in conjunction with the rule
itself, not with the ``appropriate and necessary'' finding, and
we had reasonable belief to think that that was not required.
The DC circuit agreed. The Supreme Court disagreed, told us to
use appropriate methods, left it to the EPA's discretion on how
to do that cost analysis.
So we were confident, because the cost and benefit analysis
had already been done, that the rule was well justified and
ought to remain in place, and we're committed to moving forward
to respond to the Court's direction to do that analysis in the
context of the ``appropriate and necessary'' findings.
Mr. Walden. So, in your written statement today, you state
that, and I quote: "Another significant flaw in EPA's approach
is the fact that it is basing its revised analysis on a record
that is demonstrably out of date," close quote.
Yet, in the 2016 supplemental finding, EPA responded to the
commenters asking for updated cost estimates by stating that it
was not, and I quote, "consistent with the statute," close
quote, for the EPA to try to estimate the actual costs incurred
through compliance with the final CAA section 112(d) standards,
close quote.
If it was not consistent with the statute to use an updated
cost estimate in 2016, why do you criticize the EPA's use of
the original numbers today?
Ms. McCabe. Well, these are very different circumstances.
EPA was responding to a direct direction from the Supreme Court
in that particular rulemaking. What the EPA is doing now is
initiating sua sponte, on its own initiative, an inquiry and a
change of approach. And in the meantime, a lot has happened in
the world.
It can be determined how much the rule actually cost and it
is expected to cost. And, as we've heard today, there's a lot
more information and study about the benefits of mercury
reduction.
Mr. Walden. So--thank you. In the blog post I referenced
earlier in my questioning, the one that was issued the day
after the Supreme Court ruled in Michigan v. EPA, the EPA
stated the majority of the power plants are already in
compliance or well on their way to compliance.
Given that this statement was made a year before the 2016
supplemental finding, didn't the Agency have updated cost
information at that time too?
Ms. McCabe. Well, no, we didn't.
Mr. Walden. You did not?
Ms. McCabe. We did not. We did take comment on a proposed
supplemental finding and looked at that information and
actually made some adjustments in the final supplemental
finding in response to that information.
Mr. Walden. All right. My time's expired. Thank you, ma'am.
Ms. DeGette. Thank you so much. The Chair now recognizes
the gentleman from New York, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Chairwoman DeGette and Ranking Member
Guthrie for holding this hearing. I thank you for the
partnership that you've had with the Environment Subcommittee,
and together I believe we've been able to conduct oversight of
EPA's efforts to undermine MATS and rollback of other Clean Air
Act protections, which I think is a very important mission for
us to pursue.
Mr. Livermore, the Trump EPA's current proposal is that it
is no longer ``appropriate and necessary'' to regulate mercury
while at the same time EPA is trying to convince the public
that it is keeping the mercury rule in place. So was the Obama
EPA using cost-benefit methodology correctly by counting the
roughly $90 billion in cobenefits that came along with
regulating mercury?
Mr. Livermore. Yes, absolutely, it was correct in the
matter of economics and policy and also of all guidance that's
relevant to the question.
Mr. Tonko. And now it seems that the Trump administration,
by finding that it is no longer ``appropriate and necessary''
to regulate mercury, considers only the roughly $6 million
figure in benefits from mercury reductions, not the roughly 90
million--billion, excuse me, in cobenefits that came from
reducing particulate matter.
Mr. Livermore, you disagree with this approach and say that
it results in, and I quote, "a biased and misleading estimate
of cost and benefits." However, it seems that EPA is suggesting
that they are legally required to take their current approach.
So do you believe the Trump EPA is legally required to exclude
cobenefits in looking at the mercury rule?
Mr. Livermore. Absolutely not. There are, again, decades of
practice under various statutory provisions, some of which look
very familiar to the one in question, the Agency's accounting
for indirect benefits, including administrations--the Reagan
and Bush--rulemakings under Reagan and Bush administrations.
Again, there's decades of practice.
If Congress had wanted to make a change to make it clear
that indirect benefits shouldn't be counted, plenty of time to
do that. At no point was that done. Michigan v. EPA, if
anything, stands for the proposition of agencies should be
looking more expansively at cost and benefits and not less so.
Mr. Tonko. And, in fact, you state in your testimony that
in light of years of agency practice, agencies should consider
indirect costs and benefits when making regulatory decisions
and that, again, quote, "departing from this well-established
norm requires a very good reason."
So did the Trump EPA provide, quote, "a very good reason"
for functionally dismissing cobenefits here from the
calculation?
Mr. Livermore. No, there isn't--it was a make wait reason
at best. It doesn't distinguish other contexts where it counted
indirect benefits. It doesn't limit the decision to this
particular context. It's not clear when it's going to be
applied in other contexts, and so the decisionmaking--the
reason provided by the Agency was very weak.
Mr. Tonko. And you say that, if the current EPA mercury
proposal is finalized and adopted, it would be, and I quote,
"opening the door to the flagrant manipulation of cost-benefit
analysis."
Mr. Livermore, can you elaborate on the risks of the Trump
administration's new approach to future rulemaking?
Mr. Livermore. Yes. So indirect benefits can be an
important class of benefits, and so, if the decision in this
case were applied across the board, it would just lead to gross
inefficiencies in our environmental protection system. Almost
more dangerously is that the Agency could kind of pick and
choose--or any agency, for that matter--when it wanted to look
at indirect benefits or not, or which indirect benefits it
wanted to look at or indirect costs, for that matter. And if
that's the case, then the entire purpose of cost-benefit
analysis goes out the window, because agencies can just provide
post-hoc rationalizations for decisions that are arrived on
political grounds.
Mr. Tonko. Well, I thank you for your answers. The Trump
EPA's misguided approach ignores billions of dollars in
benefits that come from avoided premature deaths, heart
attacks, asthma attacks, and more.
Revising the cost-benefit calculation is not simply an
academic exercise. What we have here are peoples' lives and
health being at stake, and is it double counting to consider
outside benefits?
Mr. Livermore. No. There's various claims about double
counting that none of them--none of them stand up. A question
that's come up is counting benefits below the NAAQS. So the
National Ambient Air Quality Standards are set across the
country, they're set according to a cost-blind standard.
They're not set, and the EPA's never said that they are set, at
a zero-risk standard, and so the idea that there are no
benefits below the NAAQS is just nonscientific, and it's not--
the Agency has never said it, and so it's entirely appropriate
for the Agency to count those benefits.
So the short answer is no, there's no double counting this
rule. And actually the Agency is very fastidious about avoiding
double counting, and it hasn't done so in this case.
Mr. Tonko. I very much appreciate your answers, and, again,
this is about protecting the peoples' health and our
environment.
So, with that, Madam Chair, I yield back.
Ms. DeGette. Thank the gentleman.
The Chair now recognizes the gentleman from West Virginia,
Mr. McKinley, for 5 minutes.
Mr. McKinley. Thank you, Ms. Chairman.
To make sure that we understand, I don't think there's a
person on this panel that I hear or in Congress that wants to
see the mercury levels increase or cause problems. I think what
we're trying to do is, what's the best way to reduce our
exposure? And from what I can understand, using some of the
information from the EPA, primarily we're getting our exposure
to mercury by eating fish and shellfish.
Water is not necessarily a source of that, because we can
capture that through the testing, and our municipal water
systems will test for that. So I'm interested if it's the fish,
if it's the ingestion of fish that we're getting. I did some
study on this.
We saw on the Atlantic Coast, the Atlantic tuna, actually,
the content or the exposure there to mercury has dropped
precipitously, but yet on the West Coast, the mercury levels in
the Pacific fish are increasing dramatically.
So we see something that's kind of--maybe it's relative to
the fact that we've reduced by 86 percent the amount of mercury
that we're admitting from our coal-fired power plants because
we understand the wind patterns, how that works, and I think
from your--Dr. Selin, some of your testimony talked about it.
Once it gets in the atmosphere, it can stay for thousands of
miles, and it may be coming--we have coming from the Pacific
rim, we have a chart that, unfortunately, I can't--it's not--I
can't blow it up any more, but it simply shows that the big
culprits in providing the mercury emissions into the atmosphere
and primarily emitting into the water are coming from China and
India, and we have a marked decrease. As a matter of fact, in
one of the other reports we have here that was in 2016 says,
from the EPA, that 83 percent--83 percent--of the mercury
that's contaminating in the United States is coming from
foreign sources. Eighty-three percent.
So, if we're really focusing here, not politics as we see
some people chatting here, if we're really talking about how
we're going to reduce our mercury levels in this country, I
think we need to take into a global perspective of what we're
going to do about this, because these other nations are
continuing to emit mercury levels at very high levels.
So I want to go back to this cost-benefit ratio. If that
premise is correct--and I'm not going to get caught up in
whether or not the--whether it's ``appropriate and necessary''
and whether cobenefits--I think one of the things we should do,
and maybe Gustafson, for you to respond would be, in cost-
benefits, assuming even with the cobenefits, should we be
considering the costs that would be incurred in foreign nations
to reduce their mercury emissions?
And, right now, it's my understanding the costs are only to
the American power plants that would be imposed, but the
benefits would be derived by all. Since 83 percent is coming
from someplace else, are we taking into consideration the costs
that would be incurred in foreign nations to reduce so that we
have a true cost-benefit ratio? Mr. Gustafson?
Mr. Gustafson. You're exactly right that much of the
mercury deposited in the United States comes from other
countries, including China, and there's nothing that the
Environmental Protection Agency can do to control pollution
from China. That limits the effectiveness of any mercury
control within the United States.
I would point out, though, that the premise of much of my
fellow panelists' comments is that this mercury standard would
go away if EPA were to finalize this proposed reconsideration
of the fact finding. That's not true.
Under binding precedent in the DC circuit, a case called
New Jersey v. EPA, the EPA would have to go through a delisting
process in order to withdraw these sources from the mercury
control. That's not likely to happen. So I don't think the
risks that have been talked about here today are really
relevant.
Mr. McKinley. OK. Just in closing, just a second, do you
think that we should include the costs incurred by other
nations? It would be fair to include in the cost-benefit ratio,
or should it just be the cost here in America but the benefits
from all sources including PMs?
Mr. Gustafson. That's a complicated question, and I'm not
sure I'm prepared to give you an adequate response to it right
now. I could follow up in written comments, but I think the
EPA's primary responsibility is to address the Nation's air
quality. That's what the Clean Air Act gives us jurisdiction
for, and it's limited in its ability to do that by pollution
from----
Ms. DeGette. The gentleman's time has expired.
The Chair now recognizes the gentlelady from New Hampshire,
Ms. Kuster.
Ms. Kuster. Thank you very much, Madam Chair.
And thank you to all of you for being with us. I apologize
that many of us have a hearing going on at the exact same time
on prescription drug pricing.
So I just want to focus in with Ms. McCabe about the
current rule's cost-benefit assessment. Does it account for all
of the known human health effects of mercury? And, in
particular, it's my understanding that, since the rule was
signed, there had been a whole series of papers published about
health effects, since the risk assessment upon which the rule
was based was done back in 2010 and much of these health
effects were not known at that time. So could you bring us up
to date on that?
Ms. McCabe. Sure, yes. When EPA does a cost-benefit
analysis, as it does for any major rule, it uses the best
information that it has available, and we have a notice and
comment process that allows everybody to bring to the Agency
all the information that they have. And then the Agency makes
the best decision looking at the full range of health benefits
and recognizing that some of them we can monetize. We have
studies that have helped us put a dollar figure on different
health effects, but we also know there are many health effects
that we cannot monetize. The work has not been done, or it's
just extremely difficult to do that.
Ms. Kuster. Are you aware of any new papers in the last
decade that might shed light on this?
Ms. McCabe. For sure, and we've heard about some of them
today. So every minute people are doing work on this and there
is more information coming forward. So, right now, today we
have better information about the costs of reducing mercury,
the cost, say, to human health, than we did in 2010,
absolutely.
Ms. Kuster. And is some of that information included? My
understanding is that there are close to 500,000 comments
recently. Is some of that included in that that we could
review?
Ms. McCabe. I believe so, that people who have been
commenting on this proposal have brought forward all of this
information.
Ms. Kuster. This new data? And did the current rules' cost-
benefit assessment account for the full extent of the U.S.
population exposed to mercury through fish consumption?
Specifically, it's my understanding it was a relatively narrow
assessment of freshwater fish, but not any assessment of
saltwater fish consumption?
Ms. McCabe. Yes. That's a good question. We felt at the
time that the information we had where we could attach a dollar
figure was limited to certain kinds of people who consume fish
caught nearby in their communities, and that's what we
monetized.
And since then, there has been research to assign, you
know, explain the benefits on a much wider prospective, in
fact, the population across the country.
Ms. Kuster. Madam Chair, I'd like to ask the committee
staff if we could follow up and get that into the record on
additional information.
In continuing this line of questioning, I'll go to--Mr.
Livermore? Yes, thank you very much.
It's my understanding that OMB has instructed agencies to
consider cobenefits in rulemaking and that cobenefits have been
used in the development of regulations for decades.
Do you believe it was appropriate and legally justified for
the Obama EPA to consider cobenefits in deciding to regulate
mercury and other air toxics emissions? And if you could
comment, did the EPA engage in double counting by counting
reductions in particulate matter, which is regulated under a
different provision of the Clean Air Act?
Mr. Livermore. So it was absolutely appropriate for the
Agency to consider cobenefits. It was consistent with the
relevant guidance, with EPA's own peer-reviewed guidance, with
OMB guidance which was published during the George W. Bush
administration, and decades of practice of administrations of
both political parties. So it was very consistent with all of
that and normal practice to consider cobenefits.
Just to note, it's not like the Agency--cobenefits just
mean that when the Agency regulates something that is targeted
at, there's a kind of necessary and automatic other benefit
that occurs. It's not the Agency's, you know--it has no choice,
essentially, but to generate these benefits.
And then your second question was whether the Agency
engaged in double counting, and the answer is just no. What
double counting means is like when you get a benefit out of
some rulemaking and then you also count it for some other
rulemaking, something like that. There's actually lots of
different ways that double counting could emerge. The Agency
has guidance documents about how to avoid double counting,
actually.
And in the mass rulemaking, every decision the Agency made
was entirely consistent with its guidance to avoid double
counting.
Ms. Kuster. Thank you very much.
I yield back.
Ms. DeGette. Thank you.
The Chair now recognizes the gentlelady from New York, Ms.
Clarke, for 5 minutes.
Ms. Clarke. I thank you very much, Madam Chair.
And I thank our panel of experts for appearing before us
today.
I wanted to clear something up in response to Mr.
McKinley's line of questioning.
Dr. Selin, can you please explain the distribution of
mercury for us? Isn't it true that mercury emissions are
distributed both regionally and globally?
Dr. Selin. Yes, that's absolutely correct. Mercury in the
United States comes from both domestic and international
sources, and the deposition of mercury to the United States is
impacted by both of those sources. We've actually done some
research that is directly relevant to the previous question
looking at the benefits of domestic versus international
controls on mercury, and we found that, per every ton of
mercury emissions, the benefits to the U.S. are in order of
magnitude higher from the MAT standard than from international
emissions. That really underlines the importance of mercury
reductions, not only for domestic benefits in the U.S. but also
for regions in the U.S. that are particularly affected.
Ms. Clarke. Very well. I thank you for that clarification.
EPA is claiming that its proposal responds to a 2015 Supreme
Court decision, Michigan v. EPA, that requires the Agency to
consider costs before deciding whether to regulate mercury and
air toxins from power plants, but EPA already responded to the
Supreme Court ruling in 2016 when it issued its supplemental
finding, and now the mercury standards that took so long to put
in place have been fully implemented. Mercury and toxic air
emissions are down substantially, and the American people are
reaping the benefits.
So I want to put all of this in perspective and ask, Ms.
McCabe, is there any court ruling that requires EPA to reopen
the ``appropriate and necessary'' finding at this time?
Ms. McCabe. There is not. They're doing this totally on
their own.
Ms. Clarke. EPA asserts that its action to reopen the
finding and compare only the so-called direct benefits of the
rule to cost is, quote, "reasonable and may be the only
permissible approach," end quote, here.
Mr. Livermore, as someone who understands cost-benefit
analysis and its interaction with the Clean Air Act, do you
agree that the EPA's hands are tied here, as it claims?
Mr. Livermore. Absolutely not. In fact, in Michigan v. EPA,
the Court explicitly said that it was not ruling on the
question of cobenefits. If you've noted, a couple of folks have
mentioned Justice Roberts' discussion at oral argument. If
you're grasping for comments during oral argument, that's not
the law; the law's what's in the case. The case explicitly does
not address this question.
Ms. Clarke. And in your testimony, you state that the EPA's
proposal provides no adequate explanation for its extraordinary
and abnormal treatment of cobenefits. Can you explain why you
believe EPA's new approach is such a departure from the norm?
Mr. Livermore. Absolutely. So, again, in OBM guidance that
had been around for decades that were adopted by the George W.
Bush administration, the--not just EPA but every agency is
instructed to account for both direct and indirect costs and
benefits.
The Agency has its own peer-reviewed guidance on this
question where it states that indirect benefits should be
counted and direct costs and benefits, and decades of practice
from administrations of both political parties.
Ms. Clarke. Very well.
And, Ms. McCabe, I'm worried that it is the administration
that is making standards legally vulnerable. EPA seems to
acknowledge this by taking comments on whether to move the MAT
standards altogether.
Ms. McCabe, does this suggest to you that the EPA
understands that it is leaving the standard legally vulnerable
if it goes forward with this proposal?
Ms. McCabe. I think they do understand that, and there's
been a lot of discussion today about why on Earth are they
doing this if they really mean it that they don't mean to undo
the standards. If they want to change a policy about cost-
benefit analysis, they could do it in any rule or a separate
policy, but they're specifically doing it in the MATS rule. And
so I think if people think that EPA is not going to be asked
now to move forward to vacate the rule if they rescind the
``appropriate and necessary'' finding, they are mistaken. The
request will come immediately.
Ms. Clarke. Ms. McTeer Toney, turning to you, what message
does it send that EPA is voluntarily taking action to undermine
these critically important public health protections?
Ms. McTeer Toney. It makes the statement that the health of
our children is not as important to them as the cost to
industry.
Ms. Clarke. Yes, the EPA is voluntarily reopening this
finding, and its action could risk all the progress that's been
made in getting dangerous toxins from power plants out of the
air.
Why the EPA is spending time to fix something that doesn't
need to be fixed is beyond comprehension.
I yield back, Madam Chair.
Ms. DeGette. Thank you, gentlelady.
The Chair now recognizes the gentleman from Virginia, Mr.
Griffith, for 5 minutes.
Mr. Griffith. Thank you very much, Madam Chair. I
appreciate it.
Mr. Gustafson, my understanding is that the rules that are
being looked at by the EPA currently were actually in the DC
circuit being reviewed when the administrations changed. Is
that accurate?
Mr. Gustafson. That's correct. The case is still pending
right now, Murray Coal v. EPA.
Mr. Griffith. So am I correct that the EPA would either
have to defend the Obama administration position on the costs
or take a look at it? Is that correct?
Mr. Gustafson. That's exactly right.
Mr. Griffith. So is it some shock that the Trump
administration might want to look at some regulations or the
impacts of regulations brought about in a prior administration?
Mr. Gustafson. I don't think it's a shock at all. It's
perfectly normal for an incoming administration to request that
challenges to pending rules be held in abeyance while the
Agency can reexamine those rules. That's exactly what happened
here, and when an agency determines that its prior action is
not defensible, it is perfectly within the rights of the
agency, and it's only responsible for the agency to stop
defending it and instead to improve what they see as
unjustifiable action. That's what happened here.
Mr. Griffith. It's interesting because the Court did say
that the costs had not been reviewed. It's interesting when you
take a look at costs, it would appear to me, at least, that the
costs and the benefits that are looked at--we're looking at the
cobenefits and the particulate matter and all of that, but many
areas, including my district, we had four facilities shut down;
two were reopened as natural gas. But four coal facilities were
shut down, two of those never to be reopened.
The cost to the community was huge as well. Loss of jobs,
loss of big incomes, loss of taxes, et cetera, et cetera.
Wouldn't it only be reasonable if you're going to consider
cobenefits when you're doing the benefit analysis to consider
the cocosts or the colosses in a community as well?
Mr. Gustafson. That's exactly right, and I think regulatory
economists would agree that it's only a good practice when
you're considering cobenefits to also consider corresponding
cocosts. That was not done in this case. The past
administration looked at cobenefits, but it only looked at
direct costs. It didn't consider what higher electricity prices
and plant closures could do economywide, and I think there are
a lot of important costs that were neglected there. I would
point out, though, that the cost-benefit methodologies that
have been discussed today pertain to what agencies do in the
regulatory impact analysis. That's not changing here.
EPA has said it's not proposing to alter the way it reports
benefits to OIRA. It's only changing--deciding what it will do
for the ``appropriate and necessary'' determination in the
context of this statute.
Mr. Griffith. OK. And so it's not like the whole rule is
going away. It's just an interpretation on how you do the
analysis. Is that correct?
Mr. Gustafson. That's right. This rule is not going away.
The Agency isn't able to take it away under binding circuit
case law, New Jersey v. EPA, and I'm not aware of anyone who
intends to petition EPA for delisting. That's what would be
required.
Mr. Griffith. Now, my team over here has got a map, and
it's a little dated, I will admit. It's from 2006, but I've
always thought it was interesting when we talk about mercury--
we care about families, and we care about families across all
matters. Does anybody know if this number--if this has changed?
So what you're seeing is all the red area is where foreign
mercury is predominantly the cause of mercury in the United
States. You do see issues in the east, particularly in my
region of central Appalachia and some of the other areas, where
that shifts, but does anybody know if that has changed, or are
we still getting a tremendous amount of our mercury from
overseas sources? Yes, ma'am?
Dr. Selin. I can answer that. We definitely do see these
two patterns of domestic mercury deposition and international
mercury deposition happening in the U.S., and you're quite
correct that a lot of the deposition that we see to the United
States from U.S. sources happens in the east. That's where many
of the major sources are, and that's where many of the
populations are impacted from those sources.
We have seen mercury emissions go down quite a bit as a
result of this rule, so we have seen declines in depositions.
Mr. Griffith. I think we're all glad about that, but we
want to make sure that the cost measures are accurate. One last
thing: Where should I be looking to get my fish from? Because I
eat a lot of fish, and I understand there's a lot of mercury in
it. Are you the--who can answer the fish question?
Ms. McTeer Toney. Well, I can help you out with part of
that, because that's one of the things that we do at Moms Clean
Air Force, is we make sure that we provide our mothers with
this information, and so I think you ask a very interesting
question, because certainly mothers that are in the United
States of America, we rely on the U.S. Environmental Protection
Agency to ensure the regulation here in the U.S. is correct,
and we've been doing so. And we try to make it really clear so
that our moms know, when you get pregnant and you go to the
doctor and they tell you, ``Don't eat the tuna'' or ``You're
not supposed to eat as much fish,'' why that happens.
And so for our Native American moms and moms of color and
people who live close to these water bodies, they need to
understand that, when they're living right next to that
facility, where the fish comes from and how it impacts the
child's brain. So that was a really good depiction of what's
happening in the east, where it's very localized to people, and
I really hope that that type of information can be shared so
that our Nation can understand why it's so important for us to
be a part of global conversations. Unfortunately, we've pulled
out of those at this time, but I hope----
Ms. DeGette. The gentleman's time has expired.
Mr. Griffith. I yield back.
Ms. DeGette. Ms. Toney, we'd love to have a copy of that
for our committee so we can look at it. Thank you.
The Chair now recognizes the gentleman from California, Mr.
Peters, for 5 minutes.
Mr. Peters. Thank you, Madam Chair.
Thank you to the witnesses. I'd like to spend a few minutes
talking about the effectiveness of the mercury and air toxic
standards. It just seems to me from what we've heard that, by
any measure, that the Obama era rule has worked. The Trump
era's--the Trump's EPA 2018 proposal shows that--the proposal
itself shows that mercury emissions from power plants has
decreased by 86 percent from 2010 to 2017 and that total air
toxics emissions have been cut by 96 percent during that same
period.
Dr. Selin, how has this decline in mercury emissions
affected human health and the environment, and what would you
think about putting these standards at risk?
Dr. Selin. Well, yes, as you say, there have been a lot of
declines in mercury--mercury emissions--as a result of this
rule. We've also seen declines, for example, in fish in the
Atlantic that are occurring at the same time, and we would
expect that this has substantial benefits to human health and
the environment in the United States, and any effort to roll
back this rule would then increase mercury emissions which
would threaten those declines.
Mr. Peters. With respect to my colleague's chart, Mr.
Griffith's chart, it showed the percent of mercury that came
from other places but didn't show the amount of mercury that
was being deposited. Would you acknowledge that that's the
case?
Dr. Selin. That's true.
Mr. Peters. OK, and so the fact that a large percentage of
mercury in the west may come from foreign sources doesn't
reflect the fact that a large--that maybe a lot less is being
deposited. In fact, that we can do a lot for our country,
particularly in the east, by reining in the sources, as the
Obama rule did.
Dr. Landrigan, you say in your testimony that the mercury
and air toxic standards, quote, "prevent brain injuries,
protect children's lungs, and save lives." If we're to lose the
protections we have in place now, can you give us--I mean,
you've touched on this a little bit before, but can you give us
a general sense of what would happen to children in that
instance?
Dr. Landrigan. Well, yes, sir, thank you for that question.
Mercury damages the human brain, and the human brain is most
vulnerable to mercury in the earlier stages of development,
during the 9 months of pregnancy, in infancy, and childhood.
So, if mercury emissions were to increase because of the
cascade of actions that's being initiated through the removal
of--the proposed removal of this provision, the result would be
more brain damage in children, lowered IQ, behavioral problems,
problems that last a lifetime that cannot be treated medically.
Mr. Peters. Thank you. I want to just observe that in the
testimony of Ms. McTeer Toney, a former EPA official, now
national field director for the Moms Clean Air Force, who are
represented here in the audience, she cites, quote, "broad
opposition to this proposal not only from parents, children,
and grandparents but also from doctors, nurses, faith leaders,
anglers, conservationists, and more. Even the regulated
industry itself opposes this proposal."
I wanted to ask, Ms. McCabe, if public health officials
don't want this rule to go away, environmental groups don't
want this rule to go away, many States say they don't want the
rule to go away, even the regulatory industry does not want the
rule to go, who is EPA trying to help with this proposal?
Ms. McCabe. Yes, it's a good question, and I don't--I can't
speak for EPA. I don't know, but I can think of two reasons why
they would do this. One is that this administration has made
very clear that they will do anything they can to help the coal
industry, and this rule is sort of top of the list, even
though, as you acknowledge, it's been implemented and the
utilities are ready to move on.
The other reason for doing this is to use it as sort of a
flagship to inaugurate this new way of looking at benefits, at
devaluing the full range of benefits. And I would offer the
analogy of quitting smoking. If you quit smoking to reduce your
chances of getting lung cancer, you are also having all kinds
of other health benefits to you and the people around you----
Mr. Peters. And it doesn't affect your jurisdictional power
to quit smoking----
Ms. McCabe. They come along for the ride, but they're real.
Mr. Peters. Can I just say to conclude that we talk a lot
about a number of pollutants in here, but we talk about heavy
metals like lead and mercury. Those are the absolute worst
things for children. They cause lasting, permanent damage, and
we ought not to mess around with those here, and I oppose this
awful action by the EPA.
And I yield back.
Ms. DeGette. The gentleman yields back.
The Chair now recognizes the gentleman from Maryland, Mr.
Sarbanes, for 5 minutes.
Mr. Sarbanes. Thank you, Madam Chair.
Thank you all for being here.
Mr. Livermore, a moment ago something was said that I
wanted to follow up on regarding the cost considerations. Did
the EPA consider cocosts when it was finalizing these standards
in 2012? Because the suggestion was made that it did not.
Mr. Livermore. It did.
Mr. Sarbanes. It did, and is it considering them now?
Mr. Livermore. It's not revisiting it, so it's a cost
estimate, so, essentially, yes.
Mr. Sarbanes. OK. Let me get more into the benefits and
cost discussion because that's obviously central here to the
differing views we have on this matter, and we got to get those
numbers right.
Dr. Selin, in your testimony, you state that "the assertion
by EPA that the MAT standards result in $4-6 million in
mercury-related benefits to the U.S. is out of date and
incorrect" and "the best available scientific information
suggests that the mercury-related benefits that can be
quantified are orders of magnitude more than that"--in fact,
"in the billions of dollars." Your study estimates $3.7 billion
in annual benefits just from the mercury reductions alone.
Why is that number so different from the $4 million to $6
million that's relied on by the EPA?
Dr. Selin. Yes, the EPA's estimate is really only a partial
analysis of the benefits of the MAT standard, and our estimates
are larger for two basic reasons, one of which is the EPA's
estimate only looked at people who consume fish they catch for
themselves in freshwater, and we looked at the whole U.S.
population. And the second is we included both impacts on
reduced IQ as well as cardiovascular impacts of reduced heart
attacks. EPA only looked at the reduction of IQ in newborns.
Mr. Sarbanes. So you're taking a very broad perspective,
which I think is the prudent one to do. I also know that now
that the MATS has been implemented for several years, we have
some sense of how much it costs industry to comply. And so, Mr.
Livermore, I'm going to come to you on this. According to 2015
analysis, costs of compliance with the mercury standards were
about $7 billion less than the EPA estimate in 2011 because
we've had a lot of technological improvements. We see this
across many industries, and actually, in many regulatory
environments where initially people resist it, they anticipate
the costs will be overwhelming and too burdensome, and then
technology kind of keeps the model changing over time.
So that's the technologies kicking in, reduced prices of
natural gas and so forth, and in your testimony, you say that
the EPA's treatment of cost is "irrational" because "it fails
to acknowledge the overestimation of regulatory costs
associated with the 2012 MATS Rule." So, in your view, how
should the Agency consider costs now that the rule has been
complied with?
Mr. Livermore. If the Agency actually wanted to look at
what the costs and benefits of the rule going forward were,
then--exactly--it would take into account both the fact that
costs were lower than they were anticipated and the reality
that most of the costs have already been incurred, and it does
neither of those.
Mr. Sarbanes. I mean, I think what we see going on here by
the administration is they're really just kind of picking and
choosing. They're not concerned about apples to apples or
oranges to oranges either by category or temporally or anything
else. They find the number that works for the argument that
they're making or the policy change over here. Then they'll
grab that, and then they'll grab something else to advance
their position, even if those things don't rationally--are not
rationally compatible.
So they're clinging to these numbers that are hand-picked
out of 2011 analysis. Without too much elaboration, their
proposal states that, even if it considered new information,
quote, "the outcome of the Agency's proposed finding here would
likely stay the same."
Ms. McCabe, it seems implausible that the Agency can reach
this conclusion without even considering this new information.
Can the Agency in your view put at risk up to 11,000 lives a
year based only on its guess here that the new information,
quote, likely wouldn't make a difference?
Ms. McCabe. Well, that caught my eye too when I read the
proposal. It doesn't seem like the way you should do
rulemaking, to anticipate what people will tell you and then
decide. So better would be to see what people bring forward and
thoughtfully consider that. And as we've seen, there is
significant new information that should factor into that
decision and seems like it would lead to a different outcome
than what they presumed in the proposal.
Mr. Sarbanes. Thank you for that.
And when the health of the American people is at stake, we
ought to pay attention to science. We ought to come up with
standards that make sense. We ought to rationally align those.
I don't see that happening here with the Trump administration's
proposal.
With that, I yield back. Thank you.
Ms. DeGette. The Chair now recognizes the gentlelady from
Indiana, Mrs. Brooks, for 5 minutes.
Mrs. Brooks. Thank you, Madam Chairwoman, and I apologize
because I've been going--coming back and forth from the Health
hearing.
And so I want to welcome you, Ms. McCabe. Glad to have a
Hoosier on the panel.
And, with that, I'm going to yield my time to our ranking
member, Mr. Guthrie.
Mr. Guthrie. Thank you. I thank my friend for yielding.
I know that there is a drug pricing hearing going on just
downstairs from us, a couple of levels down. So I want to
finish with some testimony from Mr. Gustafson. In your
testimony, you note that EPA's 2016 supplemental finding
adopted a cost reasonableness methodology as its preferred
approach to making an ``appropriate and necessary'' finding.
Under this approach, the EPA concluded that the cost of
MATS is reasonable because compliance costs are well within the
range of historical variability and that the power sector is
able to comply with the rules requirements while maintaining
its ability to perform its primary and unique function, which
is the generation, transmission, and distribution of reliable
electricity at reasonable costs to consumers.
So my question is, having said that, do you believe that
the cost reasonableness test was an appropriate response at the
Supreme Court's decision in Michigan v. EPA? Why or why not?
Mr. Gustafson. Absolutely not. The Court in Michigan v. EPA
made very clear that a rule is not reasonable, much less
appropriate, if its costs outweigh the benefits by a
substantial degree, and so, in order to do that analysis, you
would need to know what are the costs and the benefits.
The cost reasonableness approach does not look at whether
the costs are justified by the benefits. It only asks whether
this will be destructive to the industry.
Mr. Guthrie. OK. Why do you think the former administration
chose this as their preferred approach?
Mr. Gustafson. I think they chose it because they realized
the vulnerability of their cost-benefit estimate, and they
wanted to buttress their finding with an argument that doesn't
require a court to look behind and see what are the relative
costs and benefits.
Mr. Guthrie. OK, and so why, in your opinion, did the
former administration include both a preferred approach and an
alternative approach in their 2016 supplemental finding?
Mr. Gustafson. Well, I think it was a belt-and-suspenders
approach to the litigation. I think they realized that, if the
Court were only looking at their cost-benefit analysis under
the secondary approach, that cost-benefit analysis was
vulnerable to the judicial determination that it's unreasonable
to look at particulate matter cobenefits as equal to the direct
benefits of mercury reduction. And so I think they needed both
to try to make it as strong as they could. I think neither of
them is an adequate approach.
Mr. Guthrie. So this next question kind of gets into where
you--in what you said for some of your answers this morning,
but in your written testimony, you note that "by ceasing to
rely on particulate matter cobenefits to justify hazardous air
pollution regulation, EPA's new proposal takes an important
step toward rationalizing future air quality regulation without
actually altering the mercury standard itself."
So can you explain what you mean that this "proposal takes
an important step toward rationalizing future air quality
regulation"? And, likewise, do you think the changes to the
``appropriate and necessary'' finding will have an impact on
future regulation?
Mr. Gustafson. I hope so, in answer to the last question. I
think that if EPA--first of all, I would agree with the
panelists who have pointed out that the Agency should be
consistent in its cost-benefit approach. I think if the Agency
is consistent about what it's proposing here, that it would not
include criteria pollutants, like particulate matter and ozone,
in cost-benefit analyses, at least, under the ``appropriate and
necessary'' determination of section 112 in the future. That
would be an improvement on the status quo.
I think, more broadly, it would be appropriate for the
Agency to consider how it does cost-benefit analysis even for
regulatory impact analyses. Although, I would point out that
that is different from what the Agency is proposing here. So
circular A4 applies to that. It does not apply to what the
Agency is doing here.
Mr. Guthrie. So you made the point several times this
morning that dropping the ``appropriate and necessary''
standard, making changes to the ``appropriate and necessary''
standing, won't have impact on the standard; the standard will
still stand and have to go through a delisting process. And so,
in your opinion, that dropping the ``appropriate and
necessary''--obviously, the standard could be challenged in
court as well. So you're saying it has--it could be delisted or
could be challenged in court. So you're saying that it won't
have any impact on the standard, in your opinion?
Mr. Gustafson. I don't think it'll have any impact on the
mercury standard to the court--the DC circuit, which is the
court that hears all the Clean Air Act rules of nationwide
application and which would be the court reviewing this
decision, has made clear that, in order to get rid of the
standard, you would have to delist the source.
It's not sufficient just to say that it's no longer
"necessary and appropriate." That delisting process is set out
in statute, and it's a very high bar that I would be surprised
if it could be met.
Mr. Guthrie. Not being an attorney, if it's necessary to be
``appropriate and necessary'' for the standard and that goes
away, it seems like that would still be a requirement it needed
to be, but I understand your----
Mr. Gustafson. I share your instincts on that point, but
the DC circuit in this New Jersey v. EPA case basically said
that, because the statute includes a delisting provision, it
sets out clear standards by which a source can be delisted,
therefore the Agency does not have jurisdiction to withdraw the
rule for other reasons.
Ms. DeGette. The gentlelady's time is expired.
The Chair now recognizes the gentleman from California, Mr.
Ruiz, for 5 minutes.
Mr. Ruiz. Thank you, Chairwoman.
Mercury is clearly a dangerous toxin, and exposure to it
can have permanent neurological effects for, particularly,
small children. In EPA's own regulatory impact on analysis for
MATS, EPA noted that exposure to mercury can cause a host of
public health harms.
Dr. Landrigan, your work has highlighted the importance of
controlling toxic pollutants like lead and mercury in our
environment and the impacts that these pollutants can have,
especially on children.
So what should the public know about the harmful effects of
mercury, particularly on children? And then why this rule is so
important in protecting them.
Dr. Landrigan. Thank you, Mr. Ruiz.
So what the public should understand about mercury is that
different segments of the population have different
sensitivity, and the two groups in the population who are most
sensitive are, first, the pregnant women, not for the health of
the woman herself but for the health of her unborn child and,
secondly, small children, toddlers, and kids in general. And
the reason that those segments of the population are so
vulnerable is that it is during those periods of life, the 9
months of pregnancy and first years after birth, that the human
brain is going through this extraordinarily complex development
that is necessary to produce----
Mr. Ruiz. And so what can happen to their development if
they are exposed?
Dr. Landrigan. So, yes, if a toxin like mercury gets into
the developing brain through the mother or into the child, it
can damage the brain. The consequences are reduced IQ,
shortened attention span, behavioral problems. These problems
last lifelong, and there is no medical treatment for them.
Mr. Ruiz. Thank you.
Dr. Landrigan. The international approach is prevention.
Mr. Ruiz. Thank you.
EPA's 2018 proposal claims that benefits of mercury
reduction would be between 4 and 6 million dollars per year
based on results of 2011 analysis. However, Dr. Selin, your
2016 paper in the Proceedings of the National Academies of
Scientists show that the projected lifetime benefits of mercury
reductions would be $147 billion through 2050, or an annualized
benefit of $3.7 billion per year. That is a much larger number
than what EPA has said. Can you briefly describe how you were
able to determine these impacts?
Dr. Selin. Sure.
What we were able to do was actually take into account a
larger population of people affected. So we had an analysis
that took into account not only people who were eating
freshwater fish but also marine fish, which is the majority of
exposure to the U.S. population.
Mr. Ruiz. So you had more subjects to have more accurate
statistical analysis, and you also compared a group exposed and
a group not exposed?
Dr. Selin. So what we did was we projected the impacts of
the standards, and we can compare that to what would happen
without the standards. So in addition to just looking at a
broader population, we also considered all adults and
cardiovascular impacts, so heart attacks, which is also an
impact of mercury.
Mr. Ruiz. Well, $3.7 billion per year, that is much larger
than the 4 and 6 million per year.
Dr. Selin's study does not appear to be an outlier. In
fact, for example, a study from 2017 in the Journal of
Environmental Health calculated the economic cost of methyl
mercury exposure in the U.S. to be $4.8 billion per year. And
yet EPA continues to rely on the outdated 2011 estimates to
justify their proposal.
Dr. Landrigan, while the MATS standards control for mercury
and air toxic emissions, they also have important additional
benefits of controlling particulate matter emissions. EPA
estimates that the MATS rule would prevent up to 11,000
premature deaths, 4,700 heart attacks, and 130,000 asthma
attacks annually beginning in 2016, and yet EPA seems to be
ignoring these benefits in their new proposal.
Dr. Landrigan, do you agree that the reductions in
particular matter, pollution, that directly result from
compliance with MATS is important for a public health
perspective?
Dr. Landrigan. Yes, I do. Air pollution causes disease
across the lifespan. Air pollution exposure in a pregnant
mother results in increased risk of small prenates babies. In
children, it produces asthma or pneumonia. In adults, heart
disease, stroke, lung cancer, chronic obstructive lung disease.
Mr. Ruiz. Thank you.
Ms. McCabe, was it appropriate for the Obama EPA to
consider these benefits in its cost analysis even though
particulate matter is regulated under a different provision of
the Clean Air Act than the one that addresses mercury and other
air toxins?
Ms. McCabe. It was absolutely correct. It followed decades
of standard peer-reviewed agency practice to consider
cobenefits.
And I will just note that, in the MATS rule, EPA was not
regulating particulate matter. It was regulating toxics. And
the technologies that utilities were expected to use to control
mercury necessarily also control other air pollutants.
Mr. Ruiz. Thank you.
Given what we have heard here today about the harm mercury
can cause, it still boggles my mind why anyone would go out of
their way to undermine these standards.
I yield back my time.
Ms. DeGette. I thank the gentleman.
The Chair now recognizes the ever-patient Mr. Soto for 5
minutes. And welcome to the subcommittee, as always.
Mr. Soto. Thank you, Madam Chair.
I want to take a few minutes to talk about industry
compliance with the mercury and air toxic standards. And just
as a first listing to everybody here in the committee meeting,
it is dumbfounding why we would be rolling back standards to
protect children and the general public from mercury and air
toxic poisoning when industry isn't even asking for it. I mean,
it is absolutely an absurd kowtowing to an industry that isn't
even requesting to be kowtowed to. I don't even know where to
begin.
But I will begin by talking about--Administrator Wheeler
testified before this committee and acknowledged last month
that the industry is largely in compliance with these standards
because the power industry has made significant investments in
the rule and has urged EPA not to undermine it. So at least we
have reasonable actors in the private sector.
On March 26 of this year, a collection of associations that
represent the power industry wrote in an EPA letter, quote,
"Given this investment and industry's full implementation of
MATS, regulatory and business certainty regarding regulations
under the Clean Air Act section 112 is critical. We urge the
EPA leaving the underlying MATS rule in place and effective."
This was by both our rural electric co-ops, by LIUNA, IBEW, and
other unions.
Ms. McCabe, are you familiar with this letter? And what is
your reaction?
Ms. McCabe. Yes, I am. And I totally get it. I have spent
my whole life in State and Federal environmental agencies. And
the thing that industry wants most is certainty. They want to
know what the rules are and that they will stay in place.
And what this is doing is injecting uncertainty,
potentially years. Because if they finalize this proposal, it
will be litigated. People will come forward and try to start
the process to roll the rule back, which will create more
uncertainty. And they have made these investments. They are
either already getting ready rate recovery on it or they're
seeking rate recovery on it. And this just complicates
everything for them.
Mr. Soto. So the administration's proposal, is in fact,
injecting more uncertainty at a time when we had standards
working that were better protection for the public. Thank you.
Mr. Livermore, do you agree?
Mr. Livermore. Yes. Absolutely. All this rule does is
create uncertainty. It is possible that the rule will be
upheld. That is--if the Agency moves forward with the
``appropriate and necessary'' determination, that is the
opinion of some folks. Frankly, I hope that that's correct. But
we don't know that in advance, and we are putting the lives of
thousands of Americans and neurological development of our
children on the line on that supposition.
Mr. Soto. And this includes the proposal by EPA to revoke
the precursor findings from MATS?
Mr. Livermore. Yes. That is a direct consequence of that.
Mr. Soto. And, Mr. Livermore, how can we be certain that
EPA's proposal will not undermine the existing mercury rule?
Mr. Livermore. We can't be certain.
Mr. Soto. Is EPA voluntarily exposing itself to some legal
risk here?
Mr. Livermore. Absolutely.
Mr. Soto. Is the Federal Government at risk of rolling
these back?
Mr. Livermore. No question that there is going to be risk
involved. It is very likely to get litigated. Anyone who thinks
they have a crystal ball and can make perfect predictions about
what the DC circuit is going to do is diluting themselves.
Mr. Soto. And in your testimony, you bring up the Peabody
Coal issue. And what does that mean for industry and public
health?
Mr. Livermore. I am sorry?
Mr. Soto. Ms. McCabe.
Ms. McCabe. Yes, I think that is me.
So that is just an example of how industry is presuming
that the rule is going to go away. This was in a proceeding at
the Indiana Utility Regulatory Commission. And a Peabody entity
commented that the industry was overestimating its future costs
of MATS compliance because it said this proposal is likely to
lead to the withdrawal or the rolling back of MATS. So that is
how they are thinking about this.
Mr. Soto. Well, I can tell you these standards and the
overall lax of enforcement of coal ash, one of the biggest
producers, is affecting my district and my family's native
island of Puerto Rico. We recently sent letters over the last
term about the Penuelas Valley landfill in Puerto Rico. And
while we are trying to transition away from coal, more and more
of that toxic coal ash is remaining in Puerto Rico. And just
recently, my district--unfortunately, we had an attempt to
import some of that coal ash into Osceola County, Florida.
And so I would like to hear--first, I would like to
introduce letters to the EPA that I sent regarding these two
issues and would also want to hear from you, Ms. McCabe. Does
this put my community and the communities in Puerto Rico at
risk if we continue to burn coal and have these ashes
accumulate?
Ms. McCabe. Well, we know, certainly, from years of
experience and study that coal-fired power plants pollute the
environment in many ways through air pollution of many
different kinds of pollutants, through water pollution, and
through the creation of waste like coal ash. So the
continuation of these facilities creates those risks in those
communities.
Mr. Soto. Ms. McTeer Toney, I represent a community that
has a large community of color, and we also have, in Puerto
Rico, an island of predominantly Hispanics.
Is this often the case, that communities of color bear the
brunt of coal ash?
Ms. McTeer Toney. Unfortunately, yes. Front-line and fence-
line communities are oftentimes communities of color. These are
communities that are located directly adjacent to, right next
to, coal-fired power plants and are the communities that hit
the impact the most and the earliest.
Mr. Soto. I have the letters for potential submission.
Ms. DeGette. I thank the gentleman.
The Chair now recognizes the ranking member for a few final
comments.
Mr. Guthrie. Just a closing statement.
When I did my opening statement, I said I hope we can have
an intelligent discussion on what the issues are and how we
regulate and how Congress designed the Clean Air Act, the 1990
amendments. And, you know, we have the cobenefits being 99
percent of the cost. So maybe we need to fix that. That is
something Congress needs to look at. I think we have had that.
The one group missing today is EPA. And EPA--it is
Congress'--it's our responsibility, both sides of the aisle, to
have investigation oversight. And it would have been helpful
had the EPA been here today. And they have said they were going
to make themselves available. And we hope that happens, because
I think it is important for the Members to have the opportunity
to talk to the EPA and the decisionmaking around this.
And so it is my commitment to work with--if we have another
date that we can make this work, as the ranking member, to work
to get the EPA here to testify before this committee, because
that is our responsibility under the Constitution for
oversight, and we need to exercise that.
So thank you.
Ms. DeGette. I thank the ranking member for those comments.
And, unfortunately, today's hearing is not the first hearing in
this subcommittee that we have had trouble getting the
administration to appear. So anything that your side could do
to help us, because it really does help complete the record of
these hearings.
Having said that, I want to thank all of the witnesses for
appearing today. This was an excellent panel, an excellent
discussion.
I would like to insert the following documents with
unanimous consent into the record. They have all been cleared
by the minority. The slides that Ms. McTeer Toney gave us about
how mercury poisoning works; a letter to Administrator Wheeler
dated May 10, 2019, by a bunch of members of this subcommittee
and the full committee; a letter dated April 17, 2019, from the
Environmental Law and Policy Center to the EPA; a letter by a
coalition of groups dated March 26, 2019, that Mr. Soto asked
for submission to the record; and a letter dated September 5,
2017, from Mr. Soto to Administrator Pruitt.
I would asked unanimous consent those all be entered into
the record. So ordered.
Mr. Soto. Madam Chair, there's actually a third letter,
which is the response.
Ms. DeGette. OK. I ask unanimous consent for the third
letter, which is the response from the EPA. And that is
inserted too.
[The information appears at the conclusion of the hearing.]
Ms. DeGette. I want to remind Members that, pursuant to
committee rules, that everyone has 10 business days to submit
additional questions for the record to be answered by witnesses
that have appeared before the subcommittee. And I would like to
ask all the witnesses, if you do get those questions, please
respond promptly.
And with that, the subcommittee is adjourned.
[Whereupon, at 12:13 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
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