June 12, 2018 Liz Borkowski 0Comment

I wrote previously about a terrible proposed rule from EPA that would sharply restrict the studies the agency can use when regulating. Basically, under the guise of improving transparency, the rule would prevent EPA from basing regulations on studies whose data sets aren’t made publicly available — even though it would be logistically and ethically problematic to do this for many of the studies that underpin regulations of a wide range of pollutants. (The proposal makes some gestures towards protecting privacy and confidentiality, but given the lack of specifics I’m not reassured.) Since then, we’ve seen pushback from scientists and members of Congress, and EPA acknowledgment that they should allow more public input for this rule.

The original Federal Register notice about the rule allowed only 30 days for public comment — nowhere near enough time for the many stakeholders to weigh in on a rule that would lead to major alterations in how the agency functions, and in how confident we can feel breathing the air and drinking the water in our communities. The agency received thousands of comments, many of them emphasizing the need to extend the comment period and hold public hearings. On May 25th, five days before the comment period was scheduled to close, a new Federal Register notice announced that EPA was extending the comment period to August 16, and had scheduled a public hearing for July 17 in Washington, DC. While this is still too limited a process for such a major rule, it’s a definite improvement, and suggests that EPA heeded the public outcry. 

Shortly after EPA announced the comment period extension, the agency’s Science Advisory Board met to consider a number of issues, including EPA’s Spring and Fall 2017 regulatory agenda items. Prior to the meeting, the SAB regulatory agenda working group noted that the EPA “transparency” rule hadn’t been identified as a major action in either of the 2017 reg agendas; in fact, SAB members learned about it from the Federal Register and news reports. A memo from the SAB working group recommends that the action merits further SAB review, and states: “The proposed rule deals with issues of scientific practice and proposes constraints that the agency may apply to the use of scientific studies in particular contexts. As such, this rule deals with a myriad of scientific issues for which the Agency should seek expert advice from the Science Advisory Board.”

At the SAB meeting, the full board voted on whether to recommend that SAB review the “transparency” rule. I was one of several public commenters who encouraged the SAB to review this proposed rule, and the board ultimately voted to do so. Genna Reed has more details about the meeting at the Union of Concerned Scientists Blog; her post includes a discussion of how the SAB’s composition has changed after Administrator Scott Pruitt slashed the number of academic scientists serving on advisory committees and tripled the number of industry and consulting-firm representatives, and how those changes might affect SAB’s review of this rule.  

A week after the SAB meeting, a bipartisan group of more than 100 members of Congress, led by Representative Diana DeGette, wrote to Pruitt urging him to withdraw this rule. After noting that the proposed rule “is a solution in search of a problem” and is inconsistent with the agency’s obligations to ground its actions on scientific evidence, the letter concludes:

We support transparency and scientific integrity. However, the proposed rule will limit transparency and undermine the scientific integrity of EPA’s rulemaking process. Given its numerous flaws and the lack of an underlying rationale, we urge you to withdraw the proposed rule.

Pushback from scientists and Congress haven’t convinced EPA to withdraw this horribly flawed proposal, so comments from stakeholders remain important. Members of the public can register here to comment at the July 17 hearing. Written comments will be accepted through August 16 at Regulations.gov, which has already tallied more than 150,000 responses; resources are available to those drafting comments.

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