NEWS

By Brian Dabbs

EPA staff comments on extensive burdens linked to a controversial House-passed bill never made it to the Congressional Budget Office.

That’s because personnel in the Environmental Protection Agency’s leadership circle quashed the comments, choosing instead to say there would be no burden whatsoever if the bill became law, current EPA officials and an email obtained by Bloomberg BNA say.

The legislation (H.R.1430), which passed the House March 29 with only three Democrats in support, would require all research used in agency actions to be made public. The staff comments decried the bill, arguing it would cost the agency at least $250 million a year while threatening agency know-how and jeopardizing personal and confidential business information. Those current officials, along with a former career official, said they have never witnessed such a dramatic contradiction between staff-crafted comments and the official evaluation passed onto the budget office.

‘Complete Disregard’

“This is a complete disregard,” said an agency official who helped write the comments. But “it’s consistent with everything else we’ve seen. Basically all the actions of our organization are being curtailed from every direction. This is just another piece of that, and it doesn’t take a big step to connect those dots.”

An email obtained by Bloomberg BNA illustrated the inner-workings.

“The administrator’s office decided not to send our responses forward,” the email said. "[The Office of Congressional and Intergovernmental Relations] fought for the points we made, but [the administrator’s office] ultimately decided to send a response back to [the Congressional Budget Office (CBO)] that said no cost, no comment.” Bloomberg BNA is not publishing the email to safeguard the identities of those involved.

The bill would force the EPA, in moving forward with actions such as regulations, risk assessments and others, to only use data that is publicly available online and reproducible. Critics say it would require a costly database. Some studies also shouldn’t be reproduced because they may harm humans, those critics add.

Research used in EPA rulemaking is often shielded from the public. The comments tout the Open Government Initiative, which the EPA finalized a plan for in December, as the right way to achieve the transparency goals of the bill.

But agency leadership staunchly backs the legislation, according to transition team spokesman John Konkus.

Konkus declined to speak to the staff comments, saying internal deliberations shape a final assessment that “helps ensure EPA is responsive to the president and the American people.” The CBO relies on agencies to understand consequences of legislation. Budget law also directs agencies to provide the material to the budget office in order to boil down a budget assessment, often referred to as a “score.”

Deliberations Typical

Stan Meiburg, the career employee who took on the role as acting deputy administrator under Administrator Gina McCarthy, said the scenario marks a departure from typical agency discussions over CBO comments.

“I don’t recall cases where comments are just discarded,” Meiburg told Bloomberg BNA. “There’s typically a lot of dialogue, a lot of conversation and discarding would not be done unadvisedly or lightly.”

“There would be burden and if that was really blown off, that’s not a good thing,” he said.

Administrator Scott Pruitt, who landed at the EPA in February after a lengthy, bitter nomination process, vows to change agency culture. A new EPA will restore primacy of the states in environmental protection and base actions on sound science, rather than ideological convictions, he says.

As Oklahoma attorney general, Pruitt sued the EPA over a wide range of actions, including the Clean Power Plan and the Clean Water Rule. Critics say he’s bent on defanging agency authority while providing industry free reign to pollute.

Staff Complaints

The bill, authored by House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas), says the agency should only spend $1 million a year on the new protocol, derived from appropriations otherwise approved.

But the staff comments say the legislation, known by the acronym the HONEST Act, would cost at least 250 times that.

“In addition to spending dollars and staff time on requesting and getting data from study authors, creating [information technology] infrastructure and a data management system to manage, store, and archive large volumes of data, and making the data available in a format that is useful and accessible to the public, EPA would also have to spend dollars and staff time combing through these extensive datasets to find and redact Personally Identifiable Information and Confidential Business Information,” the comments say. The bill directs the EPA to disclose that redacted information after a requester signs a confidentiality agreement.

The fear over compromised personal and business information would deter industry and academics from working with the agency, the comments say. That would all but eliminate EPA access in many cases to the highest-quality research, they add.

EPA, CBO Communication

The CBO estimate for the bill, published the same day the measure passed the House, says the agency could spend anywhere from a few million to more than $100 million annually on the new rules, but based on assurances from the agency the $1 million annual spending is a safe bet.

“EPA officials have explained to CBO that the agency would implement H.R. 1430 with minimal funding and generally would not disseminate information for the scientific studies that it uses to support covered actions,” the estimate says. “That approach to implementing the legislation would significantly reduce the number of studies that the agency relies on when issuing or proposing covered actions for the first few years following enactment of the legislation.”

That assurance, however, suggests EPA leadership discussed the consequences of the legislation with the CBO. The EPA official who helped craft the comments said lower-level staff is in the dark about how and when that information was communicated, in light of the apparent “no cost, no comment” response.

Konkus declined to comment on that communication, and a CBO spokeswoman didn’t respond to a Bloomberg BNA request for comment.

Future of the Bill

Sen. John Barrasso (R-Wyo.), the chairman of the Senate Environment and Public Works (EPW) Committee, which has jurisdiction over the bill, sponsored a previous iteration of the bill in the last Congress.

A spokesman for Barrasso, Mike Danylak, declined to comment on whether the committee aims to advance the measure in the foreseeable future. Danylak, however, indicated support. “The EPA’s science should be open and transparent and the Senate Environment and Public Works Committee will continue to work to achieve these goals,” he told Bloomberg BNA.

Meanwhile, Kristina Baum, a spokeswoman for Smith, said her boss supports interaction between the EPA and the CBO, while also rejecting the concerns raised in the EPA staff comments.

“It is not accurate to say that there will be large amounts of studies that the EPA cannot use as the societal incentive is for researchers to make the science available for the benefit of its use for the good of the public,” she told Bloomberg BNA. The staff comments also pointed out the academic and industry drive to publicize research but indicated that incentive may be outweighed by concerns over compromised personal and business information.

But Barrasso’s counterpart on the EPW Committee, ranking member Tom Carper (D-Del.), hinted at opposition.

“Any efforts to suddenly limit the data the EPA uses to keep Americans safe is nonsensical and, frankly, irresponsible,” Carper told Bloomberg BNA in a statement.

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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