6 the Clean Air Act, Congress and the courts have consistently recognized the public's right to notice and an opportunity to comment before the level of allowable emissions was increased in ways that are potentially environmentally significant. See, e.q., Section 307 (d); Buckeye Power v. EPA, 481 F.2d 162, 170-71 (6th Cir. 1973). Moreover, EPA has interpreted the permitting provisions of the Clean Water Act, which are generally similar to those under the Clean Air Act, as requiring public notice and an opportunity to participate in modifications as well as initial issuance." For all of these reasons, we conclude that without additional safeguards appropriate to the circumstances, the "minor permits amendment" provisions in proposed Sec. 70.7(f), if interpreted to allow changes to the emissions allowable under a permit based merely upon 7 days notice to the permitting authority, are unlikely to be upheld in court. require notice and hearing before revocation of UDAG agreement). 6 In a ruling issued under the Clean Water Act, this Office has previously concluded that the phrase "opportunity for public hearing" applies to modifications even when the statute explicitly applies that requirement only to actions that "issue a permit." See Costle v. Pacific Legal Foundation, 445 U.S 198, 209 n. 9 (1980). In its opinion in the same matter, the Supreme Court concluded that on the particular facts presented, the Agency had adequately met its statutory obligation to provide an opportunity for public hearing on a permit modification that extended the permit's expiration date. Id. at 213-216. The Court's willingness to read the hearing requirement as applying to modifications when the statute applied it only to "permit issuance" strongly points toward the conclusion that the courts would apply the requirement to modifications when a natural reading of the text would support such a reading. This conclusion is consistent with the general presumption in the law that appropriate procedures for public participation apply to modifications as well as to initial issuance of a permit. See, e.g., 4 STEIN et al., ADMINISTRATIVE LAW Sec.41.06. Similarly, constitutional due process analysis turns on the nature of the interests affected, not on whether initial issuance or subsequent modification is involved. See, e.g., Matthews v. Eldridge, 424 U.S. 319 (1976). Mr. WAXMAN. Unfortunately, this is not the only case where EPA has allowed itself to be pushed into the issuance of rules that don't comply with the law. The Wepco rule, for example, establishes a series of relaxations in the air pollution control requirements that apply to electric utilities, and in that case the White House dictated that EPA adopt the positions urged by the Department of Energy on behalf of the Edison Electric Institute. EPA lawyers have termed the legal arguments in support of these provisions "hogwash and garbage" in documents that the subcommittee has made public. The agency staff, including many who had worked on the issue for years, was ignored, and the rule was issued through an unprecedented process where the steps of formal EPA staff approval were simply eliminated. Do you want to comment on that, Mr. Reilly? Mr. REILLY. The comment period on that has closed, Mr. Chairman. We received very extensive comment on it. We are now considering the final decision, and we will have that out, again, I think, within the near future. Mr. WAXMAN. I wasn't asking you to comment on the rule; I'm asking you to comment on this process where the Wepco position of EPA was written by the Department of Energy after the Edison Electric Institute requested them to tell you to adopt that regulation. EPA then was beaten into submission evidently, because they decided to accept what the Department of Energy, the Council on Competitiveness, all working at the behest of Edison Electric Institute, insisted be the position, and that is just completely contrary to the usual process by which we expect EPA to adopt its own regulations. Staff approval was simply eliminated, which is the usual way these regulations are adopted. Mr. REILLY. Let me just say, Mr. Chairman, that on that, as on other issues, we have worked carefully and cooperatively with other agencies of the government, and we take full responsibility for the obligations we have under the Clean Air Act, and I think we have and will continue to meet them. Mr. Rosenberg would like to follow up with a comment on that as well. Mr. WAXMAN. Mr. Rosenberg. Mr. ROSENBERG. Mr. Chairman, as I testified once before, wethe administration had proposed certain rules relating to new source review for the utilities that were going to be impacted by the acid rain title, essentially the existing sources that would have to meet the requirements under title IV, and the Congress wrestled with that and specifically advised EPA in the conference report to resolve the issue, having not resolved it itself. We resolved that issue in the proposal consistent with the administration's policy that we had articulated to the Congress. Mr. WAXMAN. Mr. Rosenberg, let me interrupt you, because I guess the key point, Mr. Reilly, I want to make with you is, you say you want to work cooperatively. But when EPA issues a proposal and then is told to adopt another one that your staff says is hogwash, how is this working cooperatively when your agency is just being run over? Mr. REILLY. I think we have had a relatively consistent position on that for some time and have been faithful to it. We obviously solicit a number of comments, people don't always take staff advice, and I'm sure you don't either. We, I am confident, will issue a final Wepco rule that we will be able to stand behind, and it, of course, like everything else we issue, will be subject to court attack. Mr. WAXMAN. If my staff or the ethics committee of the House of Representatives tells me that the process under which I am proceeding is illegal, I'm certainly going to take note of it. Mr. REILLY. I have got to say, Mr. Chairman, I think there is no question of any ethical challenge to anything that we have done on the Wepco rule. I have never heard of such a challenge within my agency to that, and I'm not aware of it. Mr. WAXMAN. Can you cite any other regulation ever issued by EPA where the staff was ignored, where the full process, I believe― Mr. REILLY. The staff was fully engaged in the development of this rule. We have a number of processes for issuing rules. Mr. WAXMAN. The usual process is a steering committee review, what they call a red border review, by EPA staff people, who then go through and check, and double check, and evaluate the proposal. All that was put aside. The Department of Energy— Mr. REILLY. No. I have got to take exception to that. A large amount of the processes of our making our minds up within the agency have to do with generating sufficient information to support an opinion by senior officials. In this case, we had had fairly extensive experience with that matter, came to some conclusions that caused us to want to expedite the process, did so there is nothing unlawful or inappropriate about that-and took full care to obtain staff opinion and public comment on what we proposed. Mr. WAXMAN. Well, I appreciate your statement, but Mr. REILLY. We did commit to a full steering committee review for promulgation, Mr. Chairman. Mr. WAXMAN. I want to insert in the record the May 17, 1991, EPA memo indicating that the normal rulemaking steps of steering committee review and red border review would be dispensed with for this rulemaking, and I must say that this is an unprecedented activity and it seems to me simply, the EPA ignored the views of its staff quite flagrantly. [The memo follows:] U.S. ENVIRONMENTAL PROTECTION AGENCY, SUBJECT: Draft Notice of Proposed Rulemaking to Resolve the "WEPCO" Issues Attached for your information is a draft notice of proposed rulemaking to resolve the "WEPCO" issues related to the preconstruction permitting review for electric utility steam generating units under the requirements of Parts C and D, and Section 111 of the Clean Air Act. The Deputy Administrator has authorized expedited processing of this rulemaking in order to meet the commitment made by the Administrator to Michael Boskin, Council of Economic Advisers. Therefore, this rulemkaing will not undergo work group closure, Steering Committee review or Red Border review. This authorization was discussed and confirmed at the Steering Com mittee meeting of April 17, 1991. However, this information copy is being distributed to your office. Please make your management and other interested staff (e.g., NSR update work group members) aware of this package. It is our understanding that the Administration expects this proposal action will be completed by June 1, 1991. Questions concerning the proposed notice may be directed to Chebryll Edwards of my staff at (FTS) 629-2343. ATTACHMENT Addresses: NSR Contacts, Regions I to X; Rich Biondi (EN-341); Scott Throwe (EN-341); Karen Schapiro (LE-134A); Ron McCallum (A-101); Tricia Pitton (PM221); John Schakenbach (ANR-445); Rachel Hopps (ANR-445); Larry Montgomery (ANR-445); Stan Durkee (H8105); Dwight Hlustick (RD-680); Doug Bell (MD-13); and Eric Ginsberg (MD-15). Mr. REILLY. Well, we have done this for a number of rules, including the early reductions rule and some others that you have not taken exception to, and I think in some cases that it has had to do with trying to expedite a process that, as you recognize, is a complicated, demanding process that requires us to meet difficult deadlines which we are doing a very good job of meeting. Mr. Waxman. I don't believe-and tell me if I'm wrong—that there has ever been a rule, that has been adopted, that has skipped both steps of the steering committee review and the red border review. Mr. ROSENBERG. That is not true. We have done that for a number of rules in trying to meet the statutory deadlines when the deadlines were set, including our own implementation deadlines. We did that with the early reductions rule; we did that with the Navajo-Grand Canyon rule. We have alternative procedures to meet the deadlines, and, as Mr. Reilly said, we have put out for public comment, we have received no comment from this committee or anyone else that the internal deadlines we are trying to meet in the implementation plan are incorrect, and sometimes in the beginning phases, since we began in January and there were deadlines in March, April, May, June, et cetera, we had to expedite our processes to be able to meet those timetables. I think that we will have less and less of that as we get into later timetables, but that was driven not because we were seeking special consideration for any person or any entity but because we were trying to meet the deadlines that you have called us to task to meet. Mr. WAXMAN. I'm going to move on to other members. Mr. HOLLOWAY. No, Mr. Chairman. I'll pass until the next round. Mr. Sikorski. Mr. SIKORSKI. Thank you, Mr. Chairman. Mr. Reilly, Mr. Rosenberg, and gentlemen, I too embrace the gratitude and praise that has been spread on you here this morning. You are in a difficult situation, and let me see if I can make it more so. On the incinerator issue, they are a major source of toxic emissions. They are the largest single source of lead emissions, and we know that lead performs no positive thing for the human body. It is odorless, colorless, tasteless, and deadly. It maims and cripples the body, but it really works terrible damage on the mind, and the younger you are, the more dangerous it is. One in two African American kids in America and one in four white kids in America are threatened by toxic lead poisoning. Incinerators are also a large source of mercury emissions, a terrible neurotoxin which maims and kills as well. But despite the health risks, the administration is doing essentially nothing to control incinerator emissions of lead and mercury. Mr. Reilly, the major source of lead emissions from incinerators is lead batteries. When you try to incinerate a battery, you don't destroy the lead, you just vaporize it, so some of that lead may be captured in the pollution control equipment, where it becomes part of the incinerator's ash, and then that is bad because the ash can be blown out during transport or at the landfill, or lead-contaminated ash can leach into ground water, and a lot of the lead will simply escape into the air, which is even worse: now people can breathe it directly. Your agency recognized that it makes absolutely no sense to try to burn a lead battery. That is why you proposed banning incineration of lead batteries in 1989. That was a very fine proposal. Unfortunately, it didn't survive the review at the White House, at the so-called Council on Competitiveness, did it? The Vice President overruled you. Mr. REILLY. Mr. Sikorski, as you suggested, most lead acid batteries are, in fact, being recycled. I forget what the number is, but I think it is over 80 percent at this time, so it is a problem that is substantially, I think, being addressed. Mr. SIKORSKI. Burning lead batteries produces 60 percent of the lead in the atmosphere now, and minimizing it, especially when you had a very fine proposal up-you tried twice to get it through. You issued a statement at the time and testified here that all six agencies-EPA; I think Interior; including the Office of Management and Budget, which usually is the graveyard for these things; and the President's Council on Economic Advisers-all supported your action. Then it went up, and the White House so-called Council on Competitiveness squashed it like a bug. Mr. REILLY. Mr. Sikorski, I am informed by counsel that we are in litigation in this, and I'm not going to get much further into it, other than to say that the statute establishes new requirements for applying maximum achievable control technology to both air toxics and municipal waste combustors. We determined that the initial critical MACT decisions should be made in the context of a broad industry, one that includes a large number of sources and chemicals so we can understand the potential ramifications of our interpretation of the MACT requirements. We are working to do that. There will be some delay that is occasioned by our being careful and having the full set of information on this. We will take, as a priority, the issuance of the hazardous organic rule for chemical manufacturers and set the precedence in that which will be the basis for the municipal waste combustor rule. Mr. SIKORSKI. Mr. Reilly, you have moved over to mercury, I'm still on lead here, just so everyone understands what is going on, and I know it is not a pleasant story to unravel here, but the EPA |