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Statement of Joan Claybrook,
President, Public Citizen,
On the Office of Management and Budget
2001 Report to Congress on the Costs and Benefits of Regulations
and Unfunded Mandates on State, Local and Tribal Entities

United States House of Representatives
Committee on Government Reform
Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs
Washington, D.C.
March 12, 2002

****** EXCERPT ******

Arsenic in Drinking Water

The recent controversy caused by the Bush Administration’s "re-evaluation" of the standards for arsenic in drinking water was a "public relations disaster"1 that had nothing to do with science and everything to do with special interest politics.2 The drama began when the EPA decided to reevaluate the standards for arsenic in drinking water. The old standard of 50 parts per billion (ppb) was set in 1975 and was based on a Public Health Service standard originally established in 1942.3 Studies cited by the EPA link long-term exposure to arsenic in drinking water to "cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate."4 Other effects of ingesting arsenic include "cardiovascular, pulmonary, immunological, neurological, and endocrine (e.g., diabetes) effects."5

Given the age of the arsenic standards, the severity of the effects of arsenic exposure, and the feasibility of implementing more stringent drinking water standards,6 EPA set out to establish a safer standard for drinking water in the United States. The EPA initially proposed a standard of 5 ppb for arsenic, and requested comments on standards of 3 ppb, 10 ppb and 20 ppb. After evaluating over 6,500 pages of comments from 1,100 commentators, on January 22, 2001, the Clinton Administration’s EPA published final arsenic standards that set the standard at 10 ppb, a level that the EPA found "maximizes health risk reduction benefits at a cost that is justified by the benefits."7

Shortly thereafter, the standard was put on hold following an order from the President's Chief of Staff, Andrew Card, that was certainly not science-based and may have been unlawful.8 In announcing that the Bush Administration would withdraw the Clinton Administration's arsenic standard, EPA Administrator Christine Whitman said "[w]hen the federal government imposes costs on communities, especially small communities, we should be sure the facts support imposing the federal standard."9 At about the same time, she said on the television show Good Morning America that since "there's no scientific study that definitively says that 10 is the magic number, what we have to do is ensure we've taken into account all the newest studies."10 At that time, Administrator Whitman did not allude to any desire on the part of any of the agency's scientists or scientific advisors to revisit the arsenic standard.

The enormous public outcry that resulted from EPA's decision to suspend the effective date of the arsenic standard forced the agency to reconsider its cavalier approach toward drinking water regulation. In April, Administrator Whitman announced that the EPA would look at new science and data available since the original (1999) arsenic study by the National Academy of Sciences, and requested review of all the new and existing material by three expert panels: the "National Academy of Sciences looked at risk, the National Drinking Water Advisory Council examined costs to water systems throughout the nation and EPA’s Science Advisory Board assessed benefits."11 After the second panel declined to abandon the conclusions of the first report and in fact reached conclusions supporting an even more stringent standard,12 on October 31, 2001, EPA reluctantly allowed the standard proposed by the Clinton Administration to go into effect.13 In embracing the original EPA determination, Whitman stated that the additional study and consultation "reinforced the basis for the decision . . . and we are reassured by all of the data that significant reductions are necessary. As required by the Safe Drinking Water Act, a standard of 10 ppb protects public health based on the best available science and ensures that the cost of the standard is achievable."14

Despite EPA’s intensive examination (and re-examination) of the arsenic standard, the Mercatus Center nevertheless nominated the arsenic standard for "review or rescission." Mercatus asserts that "based on EPA’s own analysis, benefits do not justify costs at standards of either 5 or 10 ppb", and proposes that EPA should "set a standard such that benefits justify costs.15 Apparently, OIRA agrees with Mercatus’ analysis despite Administrator Whitman’s statements to the contrary, since OIRA included the arsenic standard on its "hit list" of 23 "high priority regulatory review issues" nearly two months after EPA promulgated the final regulation.16 OIRA fails to include any rationale to support this determination, as indeed it cannot given the number of studies and scientific experts supporting the arsenic standard. The only explanation is that OIRA is placing the interests of industry ahead of public safety and health, and in doing so, disregarding its proper role in the regulatory process.

————————————————————

1 "Even Minute Levels of Arsenic Could Cause Cancer, Study Says Health Report Finds the Substance in Drinking Water Is More Dangerous Than Earlier Thought," Los Angeles Times, Deborah Schoch, September 15, 2001.
2 Testimony of Thomas O. McGarity, Senate Committee on Governmental Affairs hearing on Public Health and Natural Resources: A Review of Implementation of Our Environmental Laws, March 7, 2002.hearing on , March 7, 2002 [hereinafter, McGarity Testimony].
3 EPA web site http://www.epa.gov/safewater/ars/ars_rule_factsheet.html, visited on March 7, 2002 [hereinafter EPA Arsenic Factsheet].
4 Id.
5 Id.
6 See McGarity Testimony. McGarity noted that many other countries have drinking water standards that are more stringent than 50 ppb.
7 EPA Arsenic Factsheet.
8 On January 20, 2001, White House Chief of Staff, Andrew Card, wrote a memorandum to the heads and acting heads of all Executive Branch agencies to communicate to them President Bush's "plan for managing the Federal regulatory process at the outset of his Administration." Memorandum for the Heads and Acting Heads of Executive Departments and Agencies from Andrew H. Card, Jr., dated January 20, 2001, 66 Fed. Reg. 7702 (2001) [hereinafter cited as Card memo]. Subject to some limited exceptions for emergencies and urgent situations relating to public health and safety, the memorandum asked the agency heads to "withdraw" any regulation that had been sent to the Office of the Federal Register, but had not been published in the Federal Register. The regulation was not to be published in the Federal Register "unless and until a department or agency head appointed by the President after noon on January 20, 2001, reviews and approves the regulatory action." Id. With respect to final regulations that had been published in the Federal Register but had not taken effect, the agency heads were asked to "temporarily postpone the effective date of the regulations for 60 days." Id. EPA's 60 day delay of the effective date of the arsenic rule was accomplished "[i]n accordance with the memorandum of January 20, 2001, from the Assistant to the President and Chief of Staff, entitled 'Regulatory Review Plan.'" U.S. Environmental Protection Agency, National Primary Drinking Water Regulations; Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring: Delay of Effective Date, 66 Fed. Reg. 16134 (2001). An executive order requiring an agency to postpone the effective date of a final rule that has been published in the Federal Register is probably unlawful under the Administrative Procedure Act. See Testimony of Thomas O. McGarity before the Subcommittee on Energy, Policy, Natural Resources and Regulatory Affairs of the House Committee on Government Reform, March 27, 2001.
9 March 20 speech, reported in Chicago Tribune, 3/21/01.
10 Good Morning America (NBC Television broadcast, March 27, 2001).
11 EPA website, http://www.epa.gov/sgi-bin/epaprintonly.cgi, visited March 6, 2002 [hereinafter EPA Website].
12 Subcommittee to Update the 1999 Arsenic in Drinking Water Report, National Research Council, National Academy of Sciences, Arsenic in Drinking Water: 2001 Update 40 (2001).
13 EPA, National Primary Drinking Water Regulations; Arsenic and Clarification to Compliance and New Source Contaminants Monitoring, 66 Fed. Reg. 6975, 7003 (2001).
14 EPA Website.
15 OMB 2001 Report to Congress.
16 Id.

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