2040AD22 EPA TMDL - Revision to the Water Quality Planning 7/13/00 Mr. OSE. Mr. Whitenton. Mr. WHITENTON. Mr. Chairman and members of the subcommittee, on behalf of the National Association of Manufacturers, our 14,000 member companies, large, medium-sized, and small, and the 18 million people who make things in America, I want to thank you for this opportunity to testify before you today. At the outset, it's important to remind everyone that the men and women working in the manufacturing sector share basic American environmental health and safety values and want them applied in their workplaces, their homes, and their communities. Manufacturers certainly do not oppose health, safety and environmental rules that are founded in sound science and developed in a deliberative and public process that is as cost effective as possible. However, a number of rules that were hurried through the promulgation process in the final days of this last administration suffered from a serious deficiency in these essential qualities of responsible rulemaking. As a result, some recently finalized rules could require huge expenditures even for modest, let alone any genuine, protection of human health, the environment, and worker safety. This hearing properly focuses on unfair or inadequate agency rulemaking that technically met the requirements, if not the spirit, of the APA as they were rushed to the Federal Register before the end of the last administration. Examples of rushed rules that have large impacts on manufacturers include the EPA's TMDL rule, arsenic rule, TRI lead rule and diesel sulfur reduction rule, OSHA's ergonomics rule, and the Department of Agriculture's roadless areas rule. Other witnesses at this hearing are scheduled to discuss specifically the diesel sulfur reduction rule and the USDA roadless rule. With respect to the other rules I mentioned, NAM supports Administrator Whitman's recent decision to reconsider the arsenic rule and asks Congress to require the EPA to reconsider the TMDL rule and the lead TRI rule. The NAM applauds Congress for its wise and courageous decision to use the Congressional Review Act to disapprove the flawed ergonomics rule. However, Congress must look at the root of the problem. The EPA and OSHA could not have abused the public trust if they had not had such a broad delegation of authority from Congress. Since the World War II era, Congress has established and increased the power of non-independent Federal agencies. Initially, Congress provided strong checks on the new agencies through the one-House veto. In fact, by the early 1980's, there were more than 200 statutory provisions that contained one-House or even onecommittee vetoes of regulations. With the 1983 Supreme Court decision in INS versus Chadha, however, the one-house veto regulation was declared unconstitutional. The court ruled that Congress cannot overrule an executive branch decision except by passage of legislation and presentment or presentation of that legislation to the President. In other words, except by passing a law. In the mid-1990's, Congress passed the Congressional Review Act, which is simply a procedural framework for focusing and expe diting congressional review and, if necessary, rejecting an agency's rule. It is founded on the Chadha principle that Congress can only change an agency rule with a law. On a personal note, I was privileged to serve with Senator Don Nickles when he devised and introduced, along with Senator Harry Reid, the Congressional Review Act legislation in 1995, and I also had the pleasure of working with the staff of this subcommittee the following year, and House Judiciary Committee, during the informal conference on that measure following its amendment and passage by the House in 1996. In the aftermath of the Chadha decision, the CRA has given Congress another tool to oversee the implementation of its legislative delegations to the agencies. It certainly is not the only tool. The TMDL rule, for example, is outside the window of CRA review by this Congress. And, we hope it will be dealt with in other legislation. Congress has not only every legal right to critically review agency rulemaking, but it also has a duty to do so. This is particularly true today because there are too many statutes on the books that give agencies very broad statutory authority to meet very general goals. For example, the EPA has authority under the Clean Air Act to, "protect public health with an adequate margin of safety." In this connection, the NAM was very disappointed in last month's Supreme Court decision in Whitman v. ATA in which the court declined to agree with the D.C. Circuit Court which had found that EPA had interpreted the broad authorities in the Clean Air Act in a way that created an unconstitutional delegation of legislative power to the executive. Unfortunately, it seems that Congress is going to have to actively address its past broad grants of authority without judicial help, and we hope that Congress will be much more careful in the future when it is granting authority to the Federal agencies. In the meantime, we urge Congress in general to follow the example that has been set by this subcommittee of conducting frequent and meaningful oversight over the agencies. Thank you. I would be pleased to answer any questions you might have. Mr. OSE. Thank you Mr. Whitenton. National Association NAM of Manufacturers Testimony of Marshall E. Whitenton Vice President, Resources, Environment and Regulation on behalf of the National Association of Manufacturers before the Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, Committee on Government Reform on "A Rush to Regulate - the Congressional Review Act and Recent Federal Regulations" March 27, 2001 1331 Pennsylvania Avenue, NW Washington, DC 20004-1790 |