Undermining Mercury Protections: EPA Endangers Human Health and the Environment

Undermining Mercury Protections: EPA Endangers Human Health and the Environment



mercury is extremely better okay mercury is extremely harmful to human health especially babies and pregnant women and their unborn children prior to Matt's 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 toxics 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 long-standing 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 unnecessary finding itself so the EPA issued a supplemental finding in 2016 looking at costs 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 AEI 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 APA indeed seeks comment on this very question and we're seeing public statements that indicate people believe that this is the first step to the repeal of Matt's 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 of benefits associated with any pollution reductions other than the air toxic specifically targeted by the rule this approach it ignores decades old OMB guidance and years of agency practice that valued both direct and indirect benefits it also ignores cause-and-effect realities 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 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 toxic sand 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 I apologize for going over thank you thank you so much chair now recognizes Ms McTeer Tony for five minutes chairwoman to get ranking member go three and members of the subcommittee thank you for the opportunity to testify about the US Environmental Protection Agency's mercury and air toxic standards my name is Heather McTeer Tony 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 Nicki Catrice white traveled with us in DC to participate in the EPA hearing on the man's proposal Nicki's a health care 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 Nicki is acutely aware of the need for strong air pollution controls she sat before the EPA hearing Canole 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 watery River we lived by it and we were exposed to these chemicals but what we do know is that mass is one of the several pollution standards that have helped clean up the environment in my community miss 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 the 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 costs 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're taking steps consistent with changing and/or altering the rule altogether not only does the proposed proposal directly attack the underlying justification of Mads but EPA specifically solicits comments on whether if it were to finalize his proposed conclusion it then had the authority or the obligation to rescind the Matt's 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 an 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 tooth but 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 US and mercury is harmful to the developing brain in 2005 researchers estimated that between three hundred and sixteen thousand and six hundred and thirty seven thousand newborns were born each year in the US 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 eight point seven billion dollars and two thousand dollars everything we know about these pollutants show that controlling them is not just appropriate but vital it's deeply problematic problematic and a direct threat to our children's health that pa now proposes to decide otherwise mom's clean air force together with a diverse set of allies and partners collected more than 350,000 comments in opposition to this proposal that was 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 asher earlier that i have three children and my greatest role is being a mother my youngest son is two and a half 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 two-and-a-half 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 could make the rest of it crumble why they would ever consider weakening a rule that protects baby's 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 chair now recognizes mr. Livermore for five minutes for an opening statement 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 costs 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 administration's 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 costs over time approaches for counting costs and benefits have become standardized guidance dockets guidance documents such as OMB circular a4 which was published during the George W Bush administration describe best practices for how agencies should do this a value of these best practices is maintaining consistency between agency decisions one major critique level two 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 mess 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 agencies is more interested in providing cover for a decision than in truly understanding the consequences of its actions EPA's earlier analysis of the mass role which was undertaken under the Obama administration projected nine point six billion dollars per year in compliance costs and between 37 billion and 90 billion dollars per year in quantified benefits in addition to substantial unquantified health and environmental benefits contradicting the relevant guidance and decades of practice by administration's 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 be clear about what these benefits are their life savings for many thousand Americans the result is a biased and misleading estimate that creates the false impression that the mats rule were not justified in cost-benefit terms the grounds that the EPA provides for functionally ignoring these benefits is that they are indirect co-benefits that result from exposure to particulate matter or a reduction in exposure to particulate matter these particular matter benefits occur as a result of the pollution control technologies that are used by firms to comply with the mats rule the a for 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 costs and benefits since President Reagan EPA has counted co-benefits in many regulatory context including many other clean air rules the agency fails to provide any adequate reading for any adequate reason for this extraordinary and abnormal treatment of co-benefits 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'm happy to answer any follow-up questions that you may have thank you so much dr. Celine you're now recognized for five minutes Thank You chair to get ranking mayor Hobart 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 alternately 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 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 math 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 math 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 dollars per year the original regulatory impact analysis EPA performed for the maths role in 2011 quantified only a subset of those benefits and valued that subset at approximately four to six million dollars a thousand times less our estimates are larger for two key reasons first we looked at the entire US population while EPA considered only people who consumed fish they catched for themselves in fresh water recent work has shown that more than 80% of methyl mercury exposure to the US 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 looks solely at the reduction of IQ an EPA can be an expert panel concluded in 2011 that scientific evidence for 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 maths 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 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 we increase the cost of mercury emissions and the benefits of producing 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 returned 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% larger third our aggregate numbers for the entire US 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 rule 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've 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 thank you very much dr. chairs now pleased to recognize dr. Lander Gunn for five minutes 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 match rule is to protect the health of children and thence to protect the health of future generation 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 five 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 firstly children are more heavily exposed they breathe four 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 nine months of pregnancy and on across childhood is rapidly the cells in the brain are dividing multiplying and migrating according to precisely defined sequences by the time a child is born they're approximately a billion cells in the brain with three 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 any especially any chemical that directly damages the nervous system this is the case for methyl mercury we've heard about methyl mercury major source our emissions from coal-fired power plants that go through the atmosphere get into fish and then people consume 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 place called Minamata Japan there was an epidemic of terrible neurological disease in newborn infants and which babies were born with small heads blind deaf profoundly retarded and spastic just as research on a lead has shown us that gross obvious clinically detectable poisoning is only the tip of the iceberg so – 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 an 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 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 and air are important but they're no guarantee of safety damage occurs at levels of exposure below below those 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 would that is background I urge you to take the steps that are necessary to protect the underpinnings the legal underpinnings of the match rule to protect our children today and future generations the the match rule has been a tremendous success it's reduced levels of mercury in the environment by more than eighty-five percent which means that a generation of children born in the past ten or fifteen 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 letter of gasoline at that time we were putting a hundred thousand tons of lead into gasoline each year in this country the average blood level and our children was close to 20 micrograms in starting in 1975 EPA directed that led be taken out of gasoline in a phased process over the next decade blood lead 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 recalled it back in 1982 then EPA Administrator and Gorsuch tried to put LED back into gasoline Congress rebuffed her and the lives of American children were saved their health and their brains were preserved into the future are you sure to do the same today thank you thank you very much there's now pleased to recognize mr. Gustav to them for five minutes Thank You Jared again for inviting me to speak about EPA's proposed reconsideration of the mercury rule supplemental plane please move your microphone closer as well thank you pardon me 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 costs justified on the basis of CO benefits from incidental reductions of PM even though p.m. 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 to 90 billion dollars in projected annual benefits more than 99% came from the mercury rules for projected PM effects PM reductions are the gift that regulators keep regifter in the last administration most of the benefits of federal regulation came from PM related co benefits in Michigan V EPA the Supreme Court agreed with the rules 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 Co benefits 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 p.m. Co benefits to justify the mercury rule when the Trump administration took office EPA 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 co-benefits to justify the mercury rule violates an express prohibition on regulating p.m. 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% of its PM co-benefits but none of the direct benefits came from controls on acid gas emissions by justifying a half rule on the basis of PM co-benefits the agency sidestepped the prohibition on regulating p.m. under section 112 this is not just a technicality Congress intended criteria pollutants to be regulated under an entirely different framework that puts States not EPA in the driver's seat after EPA sets a national ambient air quality standard it's the states they get to decide how to implement it by using PM co-benefits 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 co-benefits 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 co-benefits 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 co-benefits of the mats rule amounts to double counting belts and suspenders each keep one's pants up 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 non-compliant areas in conclusion EPA's proposed reconsideration of the mercury rules 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 and future rule makings would avoid reporting illusory or duplicative benefits and would help to rationalize EPA's air quality regulation I welcome your questions thank you so much mr. Gustafson the chair now recognizes herself for five minutes for questioning Ms McCabe the mats rule is the first time the EPA has successfully protected the public from mercury released from power plants and at Congress's 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 2008 air Tony 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 yes ma'am and not you know I will say I was just telling mr. Guthrie we have one of these communities right in my congressional district Swansea Illyria and global where we actually to go in and remove mercury from the yards of the homes there dr. Lander Gunn I am going to ask you we know that mercury emissions can carry enormous enormous public health consequences you talked about children and pregnant women and I think that what you said is that these babe that are born after being exposed can suffer IQ and motor skills that impairments that will really last a lifetime they don't go away is that right that is correct them and back to you Ms McCabe because 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 yeah that's my understanding okay dr. Selene recent study I'd say thank you for your excellent analysis I thought it was terrific and recent studies have suggested the direct benefits of protecting against mercury but maybe actually be 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 that's many more times than the EPA found in 2011 is that right that's correct and and that's the direct benefits yes okay now mr. Livermore you said in your testimony that the Obama EPA is finding was extremely well justified in cost-benefit terms and is that right absolutely and you also said regarding the Trump EPA's proposal in 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 well you know the 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 one it's just kind of turning a blind eye to a enormous category of consequences here we're talking about thousands of lives being saved that 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 clearer picture of what the consequences of a decision are blocking off a big chunk of the picture is just not how you do that okay now now I'm mr. carretoni can you use 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 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 in the the Obama administration did respond but it was the trumpet 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 so if their intent was actually to strengthen the rule what would they do instead of what they're doing now they would have allowed it to proceed to the court system I believe the Obama 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 and working in States to determine what things they need to do to make the rules stronger thank you very much I thank all of the witnesses and I now would like to recognize the ranking member for five minutes for purposes of questions thank you very much and I think all 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 Clean Air Act is designed to regulate hazardous air pollutants such as mercury and criteria pollutants such as particularly 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 reconsider violate section 112 s prohibition on regulating criteria pollutants and it violates the statutes instruction to determine appropriate nests of hap regulation for coal fire plants only after imposition of the requirements of this chapter can you explain what you mean by this and so please explain what you mean by this and based on your understanding the Clean Air Act what section of the Act would be more appropriate section to regulate criteria pollutants 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 they 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 EPA sets the identifies the criteria pollutants under 108 they set a standard under 109 and the state's 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 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 including the the other regulation of p.m. including the National ambient air quality standard and the problem with the mercury rule adopted under the past administration was that it treated co-benefits that is reductions of particulate matter as equivalent to reductions of pollutants that the agency is allowed to regulate under Section 112 so the question isn't that these don't need to be regulated the question is how they're regulated in the coordinates with awake Congress instructed EPA so Congress could change that instruction if we so that's exactly wrong 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 thanks and your testimony further states that because the states are prints are responsible for implementing the EPA's treatment of p.m. reductions as Cove as co-benefits of its hap regulation violates the cooperative federal and federalism of frameworks you talked about the federalism framework can you elaborate on how this violates a cooperative federalism framework that was intended by Congress 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 that a menu of options for reducing particulate matter they can do that by by imposing limits on power plants but they can also do that by regulating other sources including motor vehicles that produce PM so basically the by treating co-benefits as the justification for this rule the Obama administration usurped the state's prerogative to decide the best way to regulate criteria so the question so so co-benefits are the the major reason for this room of cost-benefit analysis they 99 percent so what 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's deemed safe standard is being forced to achieve levels that are they are the utilities and safe contained areas been fortunate sea levels below the standard yes that's correct the 2016 supplement finding makes clear that the agency's defending claimed p.m. Co benefits both above and below the national ambient air quality standard thank you ahman times expired I do have some for the record offers I submitted a list I can read the list yes I I just would point out four of the five articles on your list on the ranking members list were written by the same person and Smith I understand it she's a consultant for industry but I will admit that all of the all of the items on the list without objection okay Thank You chair is now pleased to recognize the vice chair of the oversight subcommittee mr. Kennedy for five minutes thank you madam chair and apologies for coming back according to EPA's website quote the mission of the EPA is to protect the human health and the environment thank well that seems pretty straightforward and yet here we are EPA's enforcement is declining as we saw a few months ago within the subcommittee at 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 mr. tonin you said in your testimony that you as you take EPA to task for this division of version of resources and you right vote 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 the facilities and downwind from them so ma'am do you consider ApS current mercury proposal consistent with his mission statement again to protect human health and the environment yes I do but may I elaborate just a button please 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 sips but they work together interchangeably so the way that the state to 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 state's abilities to make those decisions through their step through their sit 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 and so Miss McKay BPA really wanted to protect human health and the environment in particular with regard to mercury and air toxics what would actions what actions should the agency be taking now 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 what they're doing now is pushing the responsibility onto the states and yet and 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 it's it's they're they're saying that they're helping the states but they're really not and so building off that EPA seems to want to have it both ways just as you indicated so and once to tell the public that they're trying to keep mercury rule in its place but at the same time taking actions that would seem to undermine the very rules foundation true so EPA's attempt to undermine important toxic pollutant protections unfortunately as I think you would indicate it is not new back in the 1980s there was an attempt by the EPA that was thankfully unsuccessful to rollback standards relating to keeping lead out of gasoline doctor eyes are going can you tell us more about the previous effort and what that teaches is about how we need to respond today with regards to the mercury protections well the the effort to take that 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 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 led be taken out of gasoline beginning in 1975 and as I mentioned on my testimony that led to a 90% reduction in blood lead levels in American children a five-point gain and the IQ of every child born since 1980 and an estimated economic benefit to this country of 200 billion dollars 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 and 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 two micrograms as opposed to the levels of close to 20 micrograms which were the case 30 years ago thank you sir I yield back turned out recognizes mr. Walden for five minutes thank you madam chair and again thanks to the witnesses which 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 Kavanagh raised regarding the heavy reliance on coke benefits to justify the mats rule now if a court is asked to decide whether such heavy reliance can be given to co-benefits to justify the mercury rule what do you think is the likely outcome thank you for the question I think there's a high likelihood that other justices on the Supreme Court would share this kepta sysm that Chief Justice Roberts expressed in oral argument in the Michigan case about EPA's undue reliance on a really disproportionate PM co-benefits to justify the mercury rule so I I think courts should these skepticism of skeptical of that methodology so in your testimony you you laid out how the reliance in the 2016 supplemental finding on co-benefits involves three distinct statutory defects is 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 that action would be clearly unlawful and would be rejected by a court all right thank you miss McCabe in Michigan versus EPA the Supreme Court ruled that the agency must consider cost when determining whether or not it's appropriate and necessary to regulate power plants for hazardous air pollutants the day after this ruling June 30th 2015 the EPA issued a blog 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 this 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 determination yes so to clarify the EPA did consider cost and the rulemaking we did it in conjunction with the rule itself not with the appropriate and necessary finding and we had a reasonable belief to think that that was not required the Supreme 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 we were confident because the the cost and benefit analysis had already been done that the rule was well justified and and ought to remain in place and were committed to moving forward to respond to the courts direction to do that analysis in the context of the appropriate and necessary finer 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's 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 AP EPA's use of the original numbers today well these are very different circumstances EPA was responding to a direct direction from the Supreme Court in that particular rulemaking what the EPA do 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 the the we we it is now it can be determined how much the rule actually cost and is expected to cost and as we've heard today there's a lot more information and study about the cabana mercury reduction thank you if the blogpost I referenced earlier my questioning the one that was issued the day after Supreme Court ruled in Michigan V EPA the EPA stated the majority the power plants are are ready in compliance are 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 well no we didn't 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 my time is expired Thank You Ben thank you so much chair now recognizes from New York mr. Tonko for five minutes Thank You chairwoman to get and rancor 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 ninety billion dollars in Co benefits that came along with regulating mercury yes absolutely it was correct as a matter of kind of economics and policy and also of all guidance that's relevant to the question 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 six million dollar figure in benefits from mercury reductions and after roughly 90 million a billion excuse me in co-benefits they 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 however it seems that EPA is suggesting that they are legally required to take their their current approach so do you believe the Trump EPA is legally required to exclude coke benefits in looking at the mercury rule absolutely not there are decades of practice under various statutory provisions some of which look very similar to the one in question of agencies accounting for indirect benefits including administrations the Reagan and Bush rulemakings under the Reagan and Bush administration's 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 a plenty of time to do that no point was that done Michigan v EPA if anything stands for the proposition to agencies should be looking more expansively at cost and benefits and not less so and in fact the 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 truck EPA provide it quote a very good reason for functionally dismissing co-benefits here from the calculation now their reason was a make weight reason at best it doesn't distinguish other contexts where it counted indirect benefits it doesn't limit the the decision to this particular contest it's not clear when it's going to be applied in other context and so the decision-making the reason provided by the agency was was was very weak 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 yes so so indirect benefits can be important class of benefits and so if the decision in this case were applied across the board it would just lead to grossing efficiencies 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 that wanted to look 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 well I thank you for your answers to 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 people's lives and and health being at stake and is is it double counting to consider outside benefits no there's various claims about double counting that none of them know them stand up a question has come up is counting benefits below the knacks so the national ambient air quality standards set are set across the country they're set according to a cost blind standard they are not set and APA has never said that they are set at a zero risk standard and so the idea that there are no benefits below the knacks is just non-scientific and it's not that the agency has never said it and so it's entirely appropriate for the agency to count those benefits so so the short answer is no there's no double counting this rule may actually the agency is very fastidious about avoiding double counting and so and it hasn't done so in this case well I very much appreciate your answers and again this is about protecting the people's health and our environment so with that madam chair I yield back thank the gentleman sure now recognizes the gentleman from West Virginia mr. McKinley for five minutes Thank You mr. chairman I think make sure that we understand I don't think there's a person on this panel I hear on that 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 and 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 they actually the content or the exposure there to mercury is dot raised 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 interesting maybe it's maybe it's a relators we're like relative to the fact that we've reduced by 86 percent the amount of mercury that we're emitting from our coal-fired power plants because we understand the wooden patterns how that works and I think from your doctor so you're some your testimony talked about it once it gets the atmosphere 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 anymore but it simply shows that the the big culprits in providing the mercury emissions into the into the atmosphere primarily emitting into the water they're 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 the 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 but I want to go back so I want to go back to this cost-benefit ratio so if that premise is correct and I'm not going to get caught up in whether or not that the whether it's appropriate and necessary and and whether co-benefits I think one of the things we should do and maybe Gustafson for you to respond would be should in cost benefits assuming even with the co-benefits should we be considering the cost that would be incurred in foreign nations to reduce their mercury emissions and right now it's my understanding the costs are only two American power plants that would be imposed but the benefits will be derived by all so it says 83% is coming from someplace else are we taking into consideration the costs that would be incurred in foreign nations to reduce so that we had that cost meant a true cost-benefit ratio mr. s often they write that much of the mercury deposited in the United States comes from other countries including China then 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 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 just in closing I'd just second do you think that we should include the cost incurred by other nations would be feared including the cost-benefit ratio or should it just be the costs here in America but the benefits from all sources including pm's 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 give us the jurisdiction for and it's limited and its ability to do that pollution gentleman's time is expired chair now recognizes the gentlelady from New Hampshire miss Custer thank you very much madam chair and thank you to all of you for being with us and 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 miss McCabe about the current rules 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 is base 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 yeah 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 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 and are you aware of any new papers in the last decade that might shed light on this 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 the cost safety to human health than we did in 2010 and with some of that information included my understanding is there are close to 500 thousand comments recently is some of that included in that that we could review I believe so that that people who have been comment on this proposal have brought forward all this information this new data and do the current rules cost-benefit assessment account for the full extent of the US population exposed to mercury whew 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 yes that's that's a good question we felt at the time that that the information we had where we could attach a dollar figure was limited to certain kinds of people who consumed 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 perspective in fact the population across the country madam chair I'd like to ask the committee staff if we could follow up and get that into the record on additional information and continuing this line of questioning I'll go to mr. yes thank you very much it's my understanding that OMB has instructed agencies to consider coal benefits in rulemaking and that co-benefits 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 co-benefits in deciding to regulate mercury and other air toxics admissions 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 so it was absolutely appropriate for the agency to consider co-benefits it was consistent with 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 a practice of administration's of both political parties so it was very consistent with all of that and and normal practice to consider co-benefits the just no it's not like the agency co-benefits just mean that when the agency regulates something that is targeted at there is a kind of a necessary and automatic other benefit that occurs it's not the agency's you know it has no choice essentially what to generate these benefits and then your second question was whether the agency engaged in double counting and the answer is just know what double counting means is like when you when you when you get a benefit of some out of some rulemaking and and then you also count it for some other rulemaking something like that there's actually lots of different ways that double counting could could emerge the agency has guidance documents about how to avoid double counting actually and the in what the in the mass rulemaking every decision agency made was entirely consistent with its guidance to avoid double counting thank you very much and I yield back thank you turnout recognizes the gentlelady from New York mrs. Clark for five minutes I thank you very much madam chair and I think our panel of experts for appearing before us today I wanted to clear something up that a response to mr. McKinley's line of questioning dr. Celine can you please explain the distribution of mercury for us isn't it true that mercury emissions are distributed both regionally and globally 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 US are an order of magnitude higher from the math standard than from international emissions that really underlines the importance of mercury reductions not only for domestic benefits in the US but also for regions in the u.s. that are particularly effective very well I thank you for that clarification EPA B's 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 plants but EPA already responded to the Supreme Court ruling and 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 there is not they're doing this totally on their own APA asserts that it's 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 and 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 absolutely not in fact in Michigan V EPA the court explicitly said that it was not ruling on the question of co-benefits if you've noted a couple of folks have mentioned Justice Roberts discussion and/or argument if you're grasping for comments during oral argument that's not the law the laws what's in the case the case explicitly does not address this question and in your testimony you think that the EPA's proposal provides no adequate explanation for its extraordinary and abnormal treatment of co-benefits can you explain why you believe EPA's new approach is such a departure from the norm yes absolutely so again in OMB guidance that have been around for decades that were adopted by the George W Bush administration the eight not just EPA but every agency is instructed to account for both direct and direct indirect costs and benefits the agency has its own peer reviewed guidance on this question where it states that indirect benefits should be counted indirect costs and benefits and decades of practice from administration's of both political parties very well and Ms McCabe I'm worried 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 McKay does this suggesting you that the EPA understands that it is leaving this standard legally vulnerable if it goes for it with this proposal 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 can do it in any rule or a separate policy but there they're specifically doing it in the mats rule so I I think if if 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 very well come immediately miss McTeer Tony turning to you what message does it send that EPA is voluntarily taking action to undermine these critically important public health protections makes the statement that the health of our children is not as important to them as the cost to industry yes the EPA is voluntarily reopening this finding and it's action could risk all the progress that's been made in getting dangerous toxins from power plants out of the air ye PA is spending time to fix something that doesn't need to be fixed is beyond comprehension I yield back man with you Thank You gentlelady turned out very nice as the gentleman from Virginia mr. Griffith for five minutes thank you very much madam chair appreciate it mr. Gustafson my understanding is is that the the rules that are being looked at by the EPA currently we're actually in the DC circuit being reviewed when the administration's changed is that accurate that's correct the case is still pending right now Murray Colver CCPA so 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 that's exactly right so is it some shock that the Trump administration might want to look at some regulations or the the impacts of regulations brought about prior administration I don't think it's a shock at all it's perfectly normal for an incoming administration to request that challenges depending rules be held in abeyance while the agency can re-examine 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 you know it's interesting because the Court did did say the costs had not been reviewed it's interesting when you take a look at cost it would appear to me at least that the costs and the benefits that are looked at we're looking at the co-benefits 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 for coal facilities were shut down two of those never to be reopened the cost of the community was huge as well loss of jobs loss of big incomes loss of taxes etc etc it wouldn't it only be reasonable if you're gonna consider co-benefits so we're doing the benefit analysis to consider the the co costs or the co losses in a community as well oh that's exactly right and I think regulatory economists would agree that it's only good practice when you're considering co-benefits to also consider corresponding co costs that was not done in this case the the past administration looked at Co benefits but it only looked at direct costs it didn't consider what higher electricity prices and plant closures could do economy-wide 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 awara but it's only changing deciding what it will do for the appropriate and necessary determination in the context of this statute okay so the it's not like the whole rule is going away it's just an interpretation on how you do the analysis is that correct that's right this 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 a D listing that's what would be required now my team over here's got a map and it's a little dated I will admit it's from like 2006 but you know I've always thought it was interesting we talk about mercury we care about families and we care about families across all matters but 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 many do see issues in the East particularly in in my region of central Appalachian some of the other areas where that 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 I can answer that we definitely do see these two patterns of domestic mercury deposition and international mercury deposition happening in the US and and you're quite correct that a lot of the deposition that we see to the United States from US 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 role uh-huh so we have seen declines in depth 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 first question well I can I can help you out with with part of that because that's one of the things that we do at Mom's Clean Air Force is really make sure that we provide our mothers with this information and so I think you you asked a very interesting question because certainly mothers that are in the United States of America we rely on the US 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 far 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 pulled out of those at this time mr. deepen we'd love to have a copy of that for our committee so we can look at it Thank You chair now recognizes gentleman from California mr. Peters for five minutes thank you madam chair thank you 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 eras Trump EPA's 2018 proposal shows that the proposal itself shows that mercury emissions from power plants have decreased by 86 percent from 2010 to 2017 and that total air toxics emissions have been cut by 96% during that same period dr. Celine how has this decline in mercury emissions affected human health and the environment and what would you think about putting these standards at risk yes as you say there have been a lot of declines in mercury as mercury emissions as a result of this role we've also seen declines for example in in fish in the Atlantic that are occurring at the same time and we would expect that that this has substantial benefits to human health and the environment in the United States and the efforts – any effort to roll back this rule would then increase mercury emissions which would would threaten those declines with respect to mr. my colleagues chart mr. Griffiths chart which showed the percent of mercury that came from other places but in showed the amount of mercury that was being deposited would you acknowledge that that's that's the case that's true okay 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 may be a lot less is being deposited and 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 saves lives if we were to lose the protections we have in place now can you give us a touch on this a little bit before but couldn't give us a general sense of the of what would happen to children in that in that instance well yes sir thank you for that question mercury damages the human brain and the human brain is most vulnerable to mercury in the earliest stages of development during the nine 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 this 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 thank you I want to just observe that in the testimony of ms McTeer Tony 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 of this proposal from not only from parents children and grandparents but also from doctors nurses faith leaders anglers conservationists and more even the regulatory industry itself opposes this proposal I want to ask miss 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 world to go away even the regulatory industry does not want the rule today who is EPA trying to help with the proposal yeah that's a good question and I 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 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 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 it doesn't affect it doesn't affect your jurisdictional power to quit smoking that you got an other gift come along for the ride so can I just say when you say just conclude that we talk a lot about a number of pollutants in here but we talked 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 this awful action by the EPA and yield back gentleman yields back sure now recognizes the gentleman from Maryland mr. sarbanes for five minutes 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 Co cost when it was finalizing these standards in 2012 because the suggestion was made that it did not it did it did and is it considering them now it's not revisiting its mean its cost estimate so essentially yes okay let me get more into the benefits and cost discussion because that's that's obviously central here to the to the differing views we have on this matter and we got to get those numbers right so doctors ceiling celine sorry in your testimony you state that the assertion by epa that the mat standard result in four to six million dollars in mercury related benefits 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 or orders of magnitude more than that in fact in the billions of dollars your study estimates 3.7 billion dollars in annual benefits just from the mercury reductions alone why is that number so different from the four to six million dollars that's relied on by the epa yes the EPA's estimate is really only a partial analysis of the benefits of the math standard and our estimates are larger for two basic reasons one of which is that the EPA's estimate only looked at people who consumed fish they catch for themselves in fresh water and we looked at the whole US population and the second is we included both impacts on reduced IQ as well as cardiovascular impacts so reduced heart attacks epi only looked at the reduction of IQ in newborns so you're taking a very broad perspective which i think is the prudent one to do I also know that now that the Matz has been implemented for several years we have some sense of how much it costs industry to comply and so dr. Livermore mr. Loomer I'm going to come to you in this according to 2015 analysis cost of compliance with the mercury standards we're about seven billion dollars less than the EPA estimated 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 cost will be overwhelming and too burdensome and then technology kind of keeps it keeps the model changing over time so that's that's the technologies kicking and reducing reduced prices of natural gas and so forth and in your testimony you state the EPA's treatment of costs is irrational because it fails to acknowledge the overestimation regulatory costs associated with 2012 Matt's rule so in your view how should the how should the agency consider cost now that the rule has been complied with well if the agency actually wanted to look at what the costs and benefits of the rule going forward were then that would exactly 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 this I mean I think what we see going on here my 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 a number that works for the argument that they're making or the policy change over here and then they'll they'll grab that and then they'll grab something else to to advance their position even if those things don't rationally are not rationally compatible so they're clinging you these numbers that are hand picked out of 2011 analysis without too much elaboration or proposal states that if even if it considered new information quote the outcome of the agency's burfoot proposed finding here would likely stay the same miss McCabe it seems implausible that the agency can reach this conclusion without even considering this new information can the agency and 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 like the way you should do rulemaking to anticipate what 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 would that should factor into that decision and seems like it would lead to a different outcome than what they presumed in the proposal thank you for that and when the health and American people is at stake we ought to pay attention to science we ought to come up with Stan that makes sense we ought to rationally align those I don't see that happening here with the Trump administration's proposal without I yield back thank you recognize this gentlelady from Indiana mr. Burke's for five minutes thank you madam chairwoman and I apologize because I've been going coming back and forth from the health hearing I'm so wanna welcome you miss Kim okay glad to have a Hoosier on the panel and with that I'm going to yield my time to our ranking member 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 levels down so I want to finish with some testimony that from God mr. Gustafson in your testimony you note that EPA's 2016 supplemental finding adopted a cost reasonable and reasonable on this mythology as its preferred approach to making an appropriate 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 cost to consumers so my questions having said that do you believe that the cost reasonableness test was a appropriate response to the Supreme Court's decision in Michigan V EPA why why not 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 agree 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 okay what do you think the former administration chose this as their preferred approach 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 one of the relative costs and benefits okay so in why in your opinion did the former administration include both a preferred approach and an alternative approach in their 2016 supplemental finding well I think I was a belt-and-suspenders approach to the litigation I think they realized that if if the court we're 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 co-benefits 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 okay so this next question kind of gets into where you what you said for quite a some of your answers this morning but and your read testimony you note that by ceasing to rely on for by ceasing to rely on particulate matter co-benefits 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 that changes the changes to the appropriate necessary finding will have an impact on future regulation I hope so an answer to the last question I think that if EPA first of all would agree with the panelists who have pointed out that 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 in 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 on the status quo I think more broadly would be appropriate for the agency to consider how it does cost-benefit analysis even regulatory impact analyses although I would point out that that is different from what the agency is proposing here so circular 8a for applies to that it doesn't not apply to what the agency is doing here so you've made the point several times this morning that that dropping the appropriate and necessary standard making changes to the appropriate necessary standing won't have impact on the standard the standard will still stand and have to go through a deed listing process and so in your opinion that dropping the appropriate necessary I mean obviously the standard could be challenged in court as well so you're saying it has you could be delisted or could be challenge of course you're saying that won't have any impact on the standard in your opinion I don't think it'll have any impact on the mercury standard to the court the DC Circuit which is the court that here's all Clean Air Act rules of machination wide application and which would be the court reviewing this decision has made clear that in order to do 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 very high bar that i would be surprised if it could be met well not me an attorney if it's if it's necessary to be appropriate necessary for the standard and that goes away it seems like that would still be a requirement that needed to be but understand your 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 does not have jurisdiction to withdraw the rule for other reasons generally these times expired Turner recognizes the gentleman from California mr. Maurice for five minutes Thank You chairwoman mercury is clearly a dangerous toxin and exposure to it can have permanent neurological effects for particular small children in EPA's own regulatory impact 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 Thank You mr. release 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 firstly 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's during those periods of life the nine months of pregnancy in the first years after birth that the human brain is going through this extraordinarily complex development that is necessary to produce and so what can happen to their development if they're toast 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 Thank You approaches prevention thank you EPA's 2018 proposal claims that benefits of mercury reduction would be between four and six million dollars per year based on results of a 2011 analysis however dr. Celine's you your 2016 paper and the Proceedings of the National Academies of Sciences show that the projected lifetime benefits of mercury reductions would be 147 billion dollars through 2050 or an annualized benefit of 3.7 billion dollars per year that is much larger number than what EPA has said can you briefly describe how you were able to determine these impacts sure what we were able to do was actually take into account a larger population of people affected so we had 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 US population so you had more subjects to have more accurate statistical analysis and you also compared a group exposed and a group not exposed so what we did was we projected the 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 can considered all adults and cardiovascular impacts so heart attacks which is also an endpoint of our case well 3.7 billion dollars per year that's much larger than the 4 and 6 million per year dr. saline 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 four point eight billion dollars per year and yet EPA continues to rely on the outdated 2011 estimates to justify their proposal dr. Landrigan while the mat standards control for mercury and air toxic emissions they also have important additional benefits of controlling particular matter emissions EPA estimates that the mats rule would prevent up to 11,000 premature deaths 4700 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. lang dragon do you agree that the reductions in particular matter pollution that directly result from compliance with mats is important for a public health perspective yes I do air pollution causes disease across the lifespan air pollution exposure and a pregnant mother results in an increased risk of small for Nate's babies in children it produces asthma and pneumonia in adults heart disease stroke lung cancer chronic obstructive lung disease Thank You Ms McCabe was it appropriate for the Obama EPA to consider these benefits in its cost analysis even though particularly is regulated under a different provision of the Clean Air Act than the one that addresses mercury and other air toxins absolutely correct it followed decades of standard peer-reviewed agency practice to consider co-benefits and and i'll just note that in the mats rule EPA was not regulating particulate matter it was regulating toxic s– and the technologies that utilities were expected to use to control mercury necessarily also control other air pollutants thank you given what we've 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 thank the gentleman the chair now recognizes the ever patient mr. Soto for five minutes and welcome to the subcommittee as always thank you madam chair I want to take a few minutes to talk about industry compliance with the mercury and air toxic standards just as a first listening to everybody here in the committee meeting it's 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's absolutely in a serb cow telling to an industry that isn't even requesting to be count out to I don't even know where to begin but I'll 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 hazards 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 industries full implementation of Matt's regulatory and business certainty regarding regulations under the Clean Air Act section 112 is critical we urge the EPA leaving the underlying match rule in place and effective this was by both our Rural Electric co-ops by LIUNA ibw and other unions miss McCabe are you familiar with this letter and what's your reaction yes I am and I totally get it I've 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're either already gating rate recovery on it or they're seeking rate recovery on it and this just complicates everything for them so the administration 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 yes absolutely the all this rule does is create uncertainty it's it's it is possible that the rule will be upheld that's if the agency moves forward with the appropriate necessary determination that's the opinion of some folks I frankly I hope that that's correct but we don't know that in advance and we're putting the lives of thousands of Americans and the neurological development of our children on the line on that sub position and this includes the proposal by EPA to revoke the precursor findings formats that's a direct consequence of that and mr. Livermore how could we be certain that EPA's proposal not undermine the existing mercury rule we can't be certain is EPA voluntarily exposing itself to some legal risk here a permanent risk of rolling these back no question that there's going to be risk involved it's very likely to get litigated anyone who thinks that they have a crystal ball can make perfect predictions about what the DC Circuit is going to do is deluding themselves and in your testimony you bring up the Peabody Coal issue and what does that mean for industry in public health miss McCabe so that's 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 the industry was overestimating its future costs of Matt's compliance because it said this proposal is likely to lead to the withdrawal or the rolling back of math so so it that how they're thinking about this well I could tell you these standards and the overall lacks 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 Pena Ellis Valley landfill in Puerto Rico and while we're 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'd like to hear first I'd like to introduce letters to the EPA that I sent regarding these two issues and would also want to hear from you miss McCabe does this put my community in the communities in Puerto Rico at risk if we continue to burn coal and have these ashes accumulate well we 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 wastes like coal ash so the continuation of these facilities creates those those risks in those communities miss McTeer Tony I represent a community that has a large community of color and we also have in Puerto Rico an island and predominately Hispanics is this often the case that community color bear the brunt of coal ash unfortunately yes front line and fence line communities are oftentimes communities of color these are communities that are loaded located directly adjacent to right next to coal-fired power plants and are the communities that hit the impact the most and the earliest I have the letters for potential submission now recognizes the ranking member for a few final comments when I did my opening statement I said are we gonna have a 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 with a particular we have the co-benefits being 99% of the so maybe we need to fix that that's something Congress or 90 needs to look at and do important I think we've had that the one group missing today is is EPA and EPA is Congress's 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're going to make themselves available and we hope that happens because I think it's important for the members to have the opportunity to talk to the EPA and the decision making around this and so it's my commitment to work with if we have another date that we can make this work as the ranking member to work to work to get the EPA here to testify before this committee because that's it's our responsibility under the Constitution for oversight and we need to exercise that so thank you I think the ranking member for those comments and unfortunately today's hearing is not the first hearing that we've had in this subcommittee that we've had trouble getting the administration to appear so anything that your side can do to help us because it really 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'd like to insert the following documents with unanimous consent into the record they've all been cleared by the minority the slides that Miss mcteer's Tony gave us about how mercury poisoning works a letter to administrator wheeler dated May 10th 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 5th 2017 from mr. Soto to administrator Pruitt I'd ask unanimous consent those I'll be entered into the record so order madam sure there's actually a third letter okay the response okay ask unanimous consent for the third letter which is the response from the APA and that's inserted 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'd like to ask all the witnesses if you do get those questions please respond promptly and with that the subcommittee is adjourned thank you

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