Senate bill on EPA advisory process needs work, panel says

By Whitney Forman-Cook

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WASHINGTON, May 20, 2015 - Several witnesses told a Senate Environment and Public Works subcommittee that a Republican sponsored bill designed to improve transparency and accountability in the EPA's scientific advisory process would actually add new bureaucratic inefficiencies and present ethical dilemmas.

“Enactment of this proposed legislation will waste taxpayer dollars and will further divert the focus away from the critical need of ensuring that scientific panels advising the EPA deliver qualified, timely and effective scientific advice,” Terry Yosie, president and CEO of the World Environment Center, told the panel at an oversight hearing on Wednesday.

The bill Yosie is referencing - the Science Advisory Board Reform Act of 2015 (S 543) - is sponsored by Senate Environment and Public Works Committee members John Boozman, R-Ark., Jim Inhofe, R-Okla., and Joe Manchin, D-W.Va. and was introduced in February. Boozman spoke on behalf of the bill during the hearing, praising its attempt to include a more diverse body of advisers - namely more representative of states - on EPA's Science Advisory Board (SAB).

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The SAB - an expert peer review panel - is controlled by EPA. The agency relies on the panel to give it sound scientific advice on its regulatory proposals and, when congressional committees ask for scientific and technical information, the panel is required by law to answer their requests.

In 2013, two such requests were made to SAB, asking for a review of EPA's Water Body Connectivity Report - relating to the controversial proposed rule defining the Waters of the U.S.  - and for answers regarding the potential impacts of hydraulic fracturing, or fracking, on drinking water sources. These requests were acknowledged, and in part addressed, by EPA and SAB staff, but were largely left unanswered, in what Republicans say is a political move on part of the Obama administration.

“Rather than allowing the science to drive the regulations, the EPA is carrying out the administration's political agenda through regulations with questionable science supporting them,” Sen. Mike Rounds, R-S.D., chairman of the Superfund, Waste Management and Regulatory Subcommittee, said in his opening statement.

Rounds and other panel Republicans argued that SAB is being held hostage by the EPA, or worse, functions as an extension of the agency, allowing EPA to make the science “fit into their pre-planned agenda.”

Roger McClellan, who spent 20 years as a member of SAB's executive committee, suggested that the make-up of the advisory panel decides the tenor of the group's policy recommendations. For instance, SAB has seven standing committees with a total of 115 members, but a mere 15 members, he testified, are affiliated with commercial firms or state agencies, while the remaining 100 members are from academia. “Individuals employed or funded by the private sector are just as interested in the quality of scientific information and seeing it used properly as academics,” McClellan argued, and have an important on-the-ground understanding to contribute to the advisory process.

McClellan praised a provision in S 543 that would require 10 percent of SAB to be representatives of state, local and tribal governments. That would “strengthen the independent role of the SAB,” said McClellan, a consultant on toxicology and human health risk analysis.

The other witnesses on the panel staunchly disagreed. The quota provision “would place the affiliation of potential (SAB) members ahead of their scientific qualifications… undermin(ing) the integrity of the SAB and the original intent of Congress to enlist the advice of (qualified) scientists,” said Scott Faber, the senior vice president for the Environmental Working Group.

Yosie recalled a similar piece of legislation from 1982 that would have required SAB appointments to “be based on representation of specific interests rather than scientific merit.” Then-President Ronald Reagan vetoed the bill, arguing, Yosie said, that the “requirement runs counter to the basic premise of modern scientific thought as an objective undertaking.”

There are other problems with the bill, the panelists agreed, starting with a provision that would allow unlimited time for public comments during SAB reviews. Yosie said the requirement would create a “perverse incentive” by “driving scientific panels away from their focus on the underlying science” toward “a role of referee among competing interest groups.” 

Other provisions would mandate SAB hold “public information-gathering sessions” for every scientific review it conducts and provide written responses to each of the public comments it receives. These provisions “would create an endless cycle of meetings and comments that would ultimately impede and delay the Board's ability to provide the (EPA) administrator with its scientific and technical advice,” Faber said.

Supporters of the bill got some support from a Government Accountability Office (GAO) report, requested by the committee and released today, that faulted EPA for how it deals with congressional committees' information requests and suggested its advisory process needed change.

EPA's procedures for processing congressional requests from SAB were not compliant with the Environmental Research, Development, and Demonstration Act of 1978, as they are “incomplete” in assigning roles to the EPA administrator and SAB staff on how congressional requests should be handled, the GAO report found.

What's more, EPA has no written policy for how it chooses which questions the SAB takes on, which is a requisite of federal standards of internal control, GAO director Alfredo Gomez testified. Committee Republicans contended that this was a possible opening for the agency to deny SAB advice for political reasons.

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