Needless to say, rulemaking and regulatory review issues are not simple ones. And they are certainly not just matters of academic interest. There is no easy formula for making what may be life and death decisions. And there can be no politically correct answer for each question faced by an agency decision-maker. But what there can be what there must be is an open and publicly accountable process so that the President, the Congress, the Courts, and the American public can read off the same page and be confident that each agency's rulemaking record truly reflects the steps taken by the agency in making its rulemaking decisions. This is exactly what I thought we had agreed upon in good faith last fall. I hope that today's hearing can be our first step to assuring that Federal agency decision-making can indeed be publicly accountable. Chairman GLENN. Senator Kohl? OPENING STATEMENT SENATOR KOHL Senator KOHL. Thank you very much, Mr. Chairman. We are pleased to be here this morning to examine an issue which does not always get much attention, but which is nevertheless relevant to every person in our country, namely how Federal rules are made and implemented. As our Chairman knows, this is not a new issue. In fact, this problem has been the subject of intense debate for many years and is not likely to be resolved at this hearing or at any time in the near future. Nevertheless, Congress has a clear and a continuing responsibility to oversee the rulemaking process through which the nation's laws are carried out, and that is why we are here today. As we know, the specific purpose of this morning's hearings is for the Committee to examine the role that the President's Council on Competitiveness plays in the development of Federal rules and regulations. Recent press reports suggest that the Council chaired by Vice President Quayle is playing an increasingly greater role in the regulatory process, and so we are disappointed that the Council declined to send a representative to this hearing today. Nobody would disagree that a fair hearing requires that all sides be heard. And to the extent that most, if not all, of the witnesses here this morning will be critical of the Council's role in regulatory activities, the hearing will not be balanced, and that is unfortunate. Nevertheless, I commend the Chairman for making every effort to encourage the Council's participation, and I sincerely wonder why the Council would not want to be represented at this hearing since their side of the story deserves to be heard. Let me also say that in my mind there are no simple answers about who is right and who is wrong in the arena of Federal rulemaking. Critics blast the administration and the Quayle Council for unfairly gutting regulations which are opposed by business and thwarting the will of Congress. And the business community complains that the administration has not done enough to reduce burdensome regulations that add to their costs and reduce both profits and jobs. Clearly, both sides are partly right and partly wrong. It is my hope that this hearing will shed some light on this situation, and that further efforts by this Committee with the cooperation of the administration will help lead to a more fair accommodation of the complex issues surrounding the Federal regulatory process. It is critical that the business community, labor, environmentalists and government work together rather than at cross purposes toward improving our economy and our quality of life. I look forward to the testimony this morning, and again I thank the Chairman for convening this hearing. Chairman GLENN. Senator Lieberman? Thank you, Mr. Kohl. OPENING STATEMENT OF SENATOR LIEBERMAN Senator LIEBERMAN. Thank you, Mr. Chairman, for your leadership in these matters which are critically important to our country. I look forward to this hearing today. Mr. Chairman, several months ago a senior executive of a large manufacturing firm based in Connecticut told me about a visit that he had with the Council on Competitiveness. This firm is very concerned about the ability or inability of U.S. firms to be competitive in the global economy, and apparently wanted to discuss with the Council on Competitiveness the need for the Federal Government to play a larger supporting role on international competitiveness issues. The response it got from the Council on Competitiveness was illuminating and shows, I think, that the sign on the door over there may not truly reflect what is going on inside the offices. The Connecticut business executive was told that the Council on Competitiveness does not focus does not work-on questions related to the international competitiveness of American companies. He was told that they are right now focusing on reviewing-some might say pursuing EPA's environmental regulations, particularly pursuant to the Clean Air Act. Well, unfortunately Mr. Chairman, I think that anecdote sums up and points to this administration's failure to address two critical national needs. One is the genuine need to restore America's competitive position in the world economy. A lot of that has to do with putting the American government behind American business when it attempts to trade, and when it tries to invest in break through technologies that will be the dominant industries of the future. We are hardly doing any of that. Second is the need for strong laws and regulations to protect the public health and the environment of America and American people. Mr. Chairman, because of my membership on the Environment and Public Works Committee and my involvement, through that membership, in the reauthorization of the Clean Air Act, I would ask the indulgence of the Chair and the Committee to take a few extra moments this morning to outline a couple of case studies which show why I think we all have reason to have grave concerns about the role the Council on Competitiveness, the so-called Council on Competitiveness, is playing. And I think the need to address these problems is becoming increasingly important because EPA itself, with regard to the Clean Air Act, has recently indicated that the White House and the Council are going to be actively involved in regulations on acid rain, vehicle inspection and maintenance, and standards for air toxics. Mr. Chairman, evidence put before the Environment Committee during its consideration of the Clean Air Act showed that each of those acid rain, vehicular pollution, and air toxics are causing literally thousands of premature deaths in our country every year. So this is a life and death matter. When the Environment and Public Works Committee reported the Clean Air Act about two years ago now, most observers were shocked by the sheer size of the legislation, the volume of it, the weight of it. One reason I want to suggest that one reason for the size of that bill was that for a decade EPA simply had refused to implement provisions of the 1977 reauthorization of the Clean Air Act, claiming that the law provided discretion not to act. As a result, when our Committee rewrote the Clean Air Act last year, it spelled out EPA's obligations under the act in as much detail as possible. Yet obviously it is never possible for a legislative body to anticipate and spell out all of the details of a complicated law. I can tell you, however, Mr. Chairman, that the majority of members of the Environment Committee of both parties felt comfortable that the EPA, under Administrator Reilly and Assistant Administrator Rosenberg, would approach environmental protection under the Clean Air Act in an aggressive, advocacy-oriented way, certainly a different way from the previous administration. Many of us felt that those with the responsibility for implementing the law would carry out their obligations with a sincere desire to adhere to congressional intent. Now let me take some time to discuss the Council on Competitiveness' role in just two of the regulations enacted under the Clean Air Act. One very important regulation concerns a permit program. That program is the cornerstone of the effort to regulate chemical plants, oil refineries, and other stationary sources of air pollution. The permit actually spells out a plant's that is a factory's obligation under the Clean Air Act, and it is a critical element in the evidentiary basis in the case for an enforcement action against violators of the Clean Air Act. When EPA's permit rule was finally issued, more than 100 changes were included. Now according to a report issued by Congressman Henry Waxman earlier this year, which I have reviewed and concur in, many of those changes resulted from comments on EPA's original proposal, which was forwarded to the EPA as part of the Council on Competitiveness' and the Vice President's regulatory review process. As Congressman Waxman pointed out, none of the changes, none of the changes, proposed by the Vice President strengthened the permit program. Almost all of them would weaken it, and many are in clear conflict with the terms of the law changes that were set forth in a memorandum to EPA's Assistant Administrator Rosenberg from David McIntosh, Deputy Director of the Council, who attached a marked-up version of the EPA permit rule. Mr. McIntosh indicates in his memo that he is incorporating changes from the White House Counsel's Office, the Office of Policy Development, and OIRA. Mr. Chairman, I do not know David McIntosh. And since the Council refused to appear at this hearing at your request, I am not able to find out about anything more about Mr. McIntosh or about how his purported authority to determine that changes in EPA's permit rule were needed. I also do not know anything about the Office of Policy Development or its authority. What I do know, however, is that Mr. McIntosh is not an employee of the United States Environmental Protection Agency, which is the agency that Congress has delegated improving our economy and our quality of lif Chairman GLENN. Senator Lieberman? OPENING STATEMENT OF SEN Air Act. I know 1 States Senate. ent and Public for the Clean r Reilly is ac was not e press re1 vrite re spon de substanu and scientific judgmen But I think we have got to begin and whether it should be granted to rules are really being written by individuals I was told that tencies who may have no expertise in the subject ly pursuant this story, there is some potentially good news. EPA's man, I thi General Counsel apparently has had enough, and in a memo concluded that it was highly unlikely that a court uine ne uphold a permit rule as changed by the Council on CompetiWho Council's permit rule, according to the EPA General Counsel, veness, the Vice President's office. That some of the provisions of its great credit, has announced that it is now going back to the illegal and in violation of Congress' clear intent. So EPA, to the th Mr. Chairman, very briefly, I would like to discuss one other EPA rule which concerns lead acid batteries. I happen to have devoted a fair amount of time over the last couple of years to legislation aimed at eliminating lead from our environment because it is in America today. In November of 1989, EPA issued a proposed the most pervasive and preventive childhood environmental disease would have prohibited the incineration of lead batteries. In doing rule on separating recyclable materials from incinerators that so, EPA stated, "Lead is a metal of particular concern in the solid waste stream because of its relatively high levels in incinerators, which has a serious potential health and environmental effects. Studies by EPA have shown that lead acid batteries are the primary source of lead in garbage. In 1986, lead acid batteries produced 65 percent of the lead in garbage." In short, Mr. Chairman, in one step, EPA proposed to take action which could have dramatically reduced the release of lead from incinerators, which are a major source of airborne lead, and in that sense a major threat to the health of our children. Yet, unbelievably, and I really do say unbelievably, the Council on Competitiveess in December of 1990 in a press release announced that it was killing EPA's I *pos re Sp ergy when workers are servicing, repairing, or and equipment. ilures were responsible for the deaths of 92 ob since 1973. We have directly investigated Ve estimate an additional 1 million lessrecognized industry practice, at least in consensus standard issued in 1982. The for a lockout standard in 1979. Not 'ecade, but when OSHA did move a hly critical of OSHA's attempts to ry consensus standard into a regproposal was finally issued as a he Senate Labor Committee in well, I wonder w.. respiratory illness as a was protecting them when i g record was certified and OSHA forwarded its final dard was pending before given copies of OSHA's ? not. With access to 1989, Newport News of which bothered alleged new data of OSHA's draft revision of the ngout requiremaintenance rule under the Clean Air Act? I w childhood advocates who have been work people, and particularly our children, from C the Council was protecting the American people fro ests when it killed EPA's airborne lead regulations? B review of the record of the Council, to put it mildly, Mr industry I don't agree with the Vice President's statement. I think contact with the reality of what this Council has done. And forward to asking our witnesses today how they feel abou analysis. Thank you, Mr. Chairman. activities 1 so you elast Chairman GLENN. Thank you very much. Senator Kohl very rectly pointed out this is not a balanced hearing. We usually and have a balanced hearing. We tried to have this one be a ba anced hearing. It did not wind up that way, but it was not because Iwe did not try. So we will go ahead. And if the administration deIcides at a later date that they wish to come in and testify on this, we will probably have another hearing and give them their day to be heard here. Our witnesses today are: Dr. Frank Mirer, Director of Health and Safety, United Auto Workers; David Doniger, senior attorney, Natural Resources Defense Council; Harold Bruff, professor of law, University of Texas at Austin; Katherine Meyer, of counsel Harmon, Curran, Gallagher and Spielberg here in Washington, S if you all would come to the table, we would appreciate it. Dr. Mirer, I had you first on my list here. If you will lead off, we would appreciate it. TESTIMONY OF DR. FRANK MIRER,1 DIRECTOR OF HEALTH AND SAFETY, UNITED AUTO WORKERS Dr. MIRER. Thank you very much, Mr. Chairman. I have submit ted my full statement to the Committee. 1 The prepared statement of Dr. Mirer appears on page 94. |