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EPA Defends ‘Secret Science’ Rule to House Democrats

Nov. 13, 2019, 6:47 PM

An EPA official defended the agency’s proposed “secret science” rule, but declined to answer questions about the basis for the rule, which has drawn criticism from environmental groups and other agency watchers.

Jennifer Orme-Zavaleta, principal deputy assistant administrator for science at the Environmental Protection Agency, told Democrats on the House Science, Space, and Technology Committee that she had to defer questions about statutory authority to other agency officials.

Orme-Zavaleta, a career employee with a doctorate in wildlife science and public health, was asked about a report that the EPA based its authority for the rule on a 1966 statute.

The EPA’s April 2018 proposal, also known as the “secret science” rule, would bar the EPA from using scientific research that isn’t or can’t be made public, marking a change from the EPA’s decades-old approach to using science in rulemaking. Under a proposed tiered approach, the EPA would use different strategies for handling individuals’ data based on varying disclosure risks.

Democrats grilled her about a leaked draft of the EPA’s Strengthening Transparency in Regulatory Science proposal (RIN:2080-AA14), in which the agency said its authority for issuing the rule stems from the Federal Housekeeping Statute, which authorizes heads of federal agencies to issue regulations on their internal governance and operations.

Criticism of Basis for Science Rule

Critics have said the proposal is a bid to sideline the science that the EPA uses in regulations, because the agency wouldn’t be able to rely on epidemiological studies that often rely on private medical information.

In the leaked draft, first reported by the New York Times, the EPA referenced language from the housekeeping statute that says the head of an executive department “may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.”

Several Democrats said they didn’t understand how that language gives the EPA the authority to issue the proposal.

Orme-Zavaleta said those questions are beyond her area of expertise, and offered to provide fuller answers later.

She also said that draft isn’t the most current version of the proposal, which was submitted to the Office of Management and Budget for review on Nov. 8. She neither confirmed nor denied that the language about the housekeeping statute is included in the latest version.

Rep. Frank Lucas (R-Okla.), the panel’s ranking member, said the hearing was “about attacking the EPA under the current administration,” and questioned why Congress was scrutinizing the proposal when it’s still being finalized.

No Retroactivity, EPA Says

The EPA is working on a supplemental proposal, to be appended to the original “secret science” proposal and set to be released in early 2020, in response to some 600,000 comments the agency has received about the plan, Orme-Zavaleta said.

She said the rule wouldn’t be applied retroactively.

But Rep. Sean Casten (D-Ill.), said that many EPA regulations must be reviewed periodically, and the secret science rule could be used to pare back protections in the future.

“Look, this is painful,” Casten said. “We are sitting at a moment when none of this assault on science happens if people in your shoes stand up. If you stand up, we’ve got your back. But please stand up.”

Orme-Zavaleta told Rep. Conor Lamb (D-Pa.) that she wasn’t aware of whether the EPA has conducted a cost-benefit study of the proposal.

Rep. Suzanne Bonamici (D-Ore.) said she would send a letter to the National Academy of Sciences, asking the organization to work with the EPA in reviewing the proposed rule.

The EPA sent several tweets as the hearing was taking place to support the proposal.

“To say politically appointed agency administrator’s would have wide-ranging discretion over which studies to accept/reject is completely false,” the agency said in one tweet.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com