"The complexity and sweeping nature of National Ambient Air Quality Standards require they be based on sound scientific data and a robust decision making process," the Senators write in the letter. "We're concerned that this rule is based on incomplete science and a truncated process and may be imposing unnecessary new and additional burdens on states and localities."
Earlier this week, Vitter and Sen. Jeff Sessions (R-Ala.) requested EPA review the science behind this economically significant new rule tightening the national ambient air quality standards for fine particulate matter (PM2.5) and to hold off on implementation and enforcement until completion of an EPA OIG review.
A copy of today's letter is below.
February 8, 2013
The Honorable Lisa P. Jackson
Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20004
Dear Administrator Jackson:
The complexity and sweeping nature of National Ambient Air Quality Standards (NAAQS) require they be based on sound scientific data and a robust decision making process. In regard to the recently promulgated NAAQS for Particulate Matter (PM NAAQS), finalized December 14, 2012, we are concerned that this rule is based on incomplete science and a truncated process and may be imposing unnecessary new and additional burdens on states and localities.
In touting the finalized PM NAAQS, EPA emphasized that the benefits of the rule would far outweigh the costs. In the final rule's preamble, however, EPA admits, "Important uncertainties remain in the qualitative and quantitative characterizations of health effects attributable to [PM]."  Furthermore, the Agency's Regulatory Impact Analysis (RIA), which was done in support of the PM NAAQS, cites at least 13 different recent rules that relate to PM, all of which are subject to the same uncertainties. We interpret this situation as one where the benefit claims used in the PM NAAQS final rule, subject as they are to the significant uncertainties that EPA recognizes, in actuality result in EPA adopting a rule that will deliver very few benefits.
In addition, the PM NAAQS rule is likely to impose significant costs which EPA failed to acknowledge or account for in the Agency's RIA. According to the Agency, the RIA is prepared to provide the public with estimates of the costs and benefits of the standard and is utilized to fulfill the requirements of Executive Orders 12866 and 13563 as well as OMB Circular A-4.
Interestingly, EPA chose to produce a remarkably conservative cost estimate using the lowest possible cost assumptions, employing the range of recently promulgated and overlapping PM rules as tools to reduce rather than compound costs. Ultimately, they ignored the management costs the new PM standards will impose on states because the Agency did not want to make any assumptions regarding the actions that states would choose to take in response to the new standards. The management costs states are facing may now be further complicated by two recent court decisions which require EPA to redo implementation rules for the 1997 PM NAAQS.
While a conservative approach is taken in regard to cost, EPA takes a liberal approach in making assumptions regarding benefits. For example, EPA's benefits analysis is premised on the assumption that "all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality." The only support provided for this assumption is scientific research finding that too much uncertainty exists regarding the variability of PM to reach any reliable conclusions.
EPA also claims the PM NAAQS rule will not impact 99 percent of U.S. counties and parishes. It is difficult to understand how EPA can make this claim when, at the same time, the rule requires substantial changes to the monitoring protocols for PM. These changes will likely force more areas into nonattainment. In its analysis and public statements regarding the new PM NAAQS, EPA refused to acknowledge that these changes will effectively make the new standard significantly more stringent and result in a broader range of new cost and implementation issues.
We would all like to see a robust economic recovery during the next few years and, as President Obama noted as recently as January 14, "[W]e are poised for a good year." A "good year" includes increased economic and manufacturing activity not experienced during our recent economic struggles. The artificially low cost estimates used by EPA rely on this period of reduced economic and manufacturing activity. As attainment designations will be based on monitoring data from 2011 through 2013, a "good year" will almost certainly trigger an increase in the number of areas designated nonattainment under the new standard. It is well known that nonattainment designations increase energy prices, reduce productivity, and drive manufacturing from nonattainment areas, thus depressing economic growth.
Based on our concerns, we ask for specific responses to the following questions by February 22, 2013:
1. In a declaration submitted to the DC Court of Appeals on January 12, 2012, EPA Assistant Administrator McCarthy stated that the complexity of the PM NAAQS substance and process would require "approximately one year" after a proposal is issued to review and respond to all of the comments on the proposed rule and prepare a final rule. However, the PM NAAQS rule was finalized less than 6 months after the first comments on the proposal were sought through publication of the proposed rule on June 26, 2012. Seeing that EPA received almost 230,000 comments on the proposed rule, what aspects of the PM NAAQS process became less complicated after Assistant Administrator McCarthy's statement so that EPA required less than half the amount of time she stated would be required to finalize the rule?
2. EPA's cost estimates are based on the notion that 99 percent of counties are already in compliance with the new PM standards. If the economy recovers and counties attract more manufacturing and industrial operations, is it possible that additional counties will be in nonattainment under the new PM NAAQS standard?
3. In its cost estimates, EPA excluded the costs states and localities will incur from the new NAAQS. These include costs for designing and implementing control strategies as well as for financial incentives offered to keep existing businesses in the newly designated nonattainment area and attract new businesses to these areas. EPA declined to consider these costs because of uncertainties. Based on existing data, could EPA develop a range of likely costs to state and local governments? How long would it take EPA to consult with states and localities affected by the new standards and gather the information necessary to estimate these costs with reasonable confidence?
4. EPA claimed that the PM NAAQS rule will deliver significant health benefits, but the RIA for the rule states that mortality estimates "omit the uncertainty in air quality estimates, baseline incidence rates, populations exposed, chemical composition, transferability of the effect estimate to diverse locations, and additional uncertainty around the mean estimates expressed by the experts." Why did EPA not include these uncertainties in the press statements surrounding the rule?
5. The RIA for the final PM NAAQS mentions the thirteen (13) other rulemakings that claim PM benefits but makes no mention of the cumulative costs of these regulations. Did EPA conduct a cumulative cost analysis in order to determine if implementing all 13 rules simultaneously results in cumulative costs or redundant regulation as required by Executive Order 13563? If not conducted, why not?
6. The final rule includes significant changes to the modeling used to predict costs and benefits of the PM NAAQS rule. Why has EPA refused to submit the changes in methodology used by the final rule to public comment before finalizing the rule? Would the one year time-frame predicted by Assistant Administrator McCarthy allow for such comments?
7. It appears that recent court decisions regarding the 1997 PM NAAQS may restrict the flexibility that EPA and states will have as they seek to implement the new PM NAAQS, How and to what extent do the recent court decisions change the likely cost of the new PM NAAQS?
Thank you for your prompt attention to this matter. If you have any questions please contact the Committee on Environment and Public Works at (202) 224-6176.