Risk Analysis and Cost-Benefit Analysis of Environmental Regulations

Congressional research reportDec 2, 1994

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Risk Analysis and Cost-Benefit

Analysis of Environmental

Regulations

Linda-Jo Schierow

Analyst in Environmental Policy

Environment and Natural Resources Policy Division

A

December 2, 1994

Risk Analysis and Cost-BenefitAnalysis

of Enviromental Regulations

SUMMARY

Concerns about the national economy, environment, public health, and the

quality of EPA's regulatory process have led Congress to consider proposals to

require EPA analyses of risks, costs, and benefits of proposed regulations.

Proponents of analysis want the results used to design more efficient regulations

and to prioritize environmental problems for Federal attention. Risk analysis

summarizes available scientific information about hazardous activities,

chemicals, or technologies and the effects they may have on exposed animals or

people under various conditions, for example, with or without regulation. Risk

and economic analyses can be qualitative or, if information is sufficient,

quantitative, but economists can only quantify economic benefits of environmental regulations if scientists can quantitatively estimate risks to health and

the environment.

Economic analysis and risk analysis of many management options already

are required by executive order and statute; EPA has conducted such analyses

for 20 years. The quality of its analyses and the influence of the results on

management decisions have been both praised and criticized.

Some

environmental statutes prevent EPA from using analytic results in developing

regulations.

Prospects are high that the 104th Congress will consider legislative

proposals to promote EPA risk and economic analyses. Five general questions

are at issue: 1) How valuable is the information provided by risk analysis for

policymakers? 2) Is risk analysis a scientific basis for environmental decisions?

3) Should risk analysis be used to quantify environmental and health benefits?

4) Should priorities be based on relative risks? and 5) Given that EPA already

analyzes risks, costs, and benefits, would additional requirements for analysis

improve risk management? People generally agree that risk analysis is valuable

for summarizing scientific information, but disagree about its scientific

objectivity and information value for environmental policyrnakers, because risk

is only one aspect of environmental problems. Also, the quality of information

provided by risk analysis depends heavily on the quality of available data, which

varies, so that the results of risk analysis almost always are debatable.

Some general legislative approaches include: 1)authorizing or requiring

EPA to analyze regulations, 2) authorizing or requiring EPA to consider costs

and/or risks in making regulatory decisions, 3) requiringto Congress on

the results of regulatory analyses, 4) authorizing fundinp for analysis, 5)

requiring research and development of analytic methods, the database, or

guidelines for risk assessment, 6) establishing guidelines for risk assessment or

presentation of results, and 7) requiring peer review. An appended comparison

of analytic requirements in key legislative proposals and executive orders finds

President Clinton's order to be most comprehensive.

CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

RISK ANALYSIS AT EPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Origin of Environmental Risk Analysis . . . . . . . . . . . . . . . . . . . . 5

Influence of Federal Guidelines on EPA Risk Analysis . . . . . . . . 5

State of the Art of Risk Analysis: EPA . . . . . . . . . . . . . . . . . . . . 8

RISK MANAGEMENT AT EPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Comparative Risk Analysis at EPA . . . . . . . . . . . . . . . . . . . . . . 10

Economic Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Influence of Environmental Statutes . . . . . . . . . . . . . . 14

Statutes Requiring Analysis of Federal Regulations . . . . . . 22

President Reagan's Executive Orders (Now Revoked) . . . . . 23

EPA's Response to the Reagan Orders . . . . . . . . . . . . . . . . 24

Regulatory Planning and Review in the Clinton

Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ISSUES IN EhVIRONMENTAL RISK MANAGEMENT . . . . . . . . .

How Valuable Is the Information Provided? . . . . . . . . . . . . . . . .

Is I t a Scientific Basis for Environmental Decisions? . . . . . . . . .

Should It Be Used to Quantify Environmental and Health

Benefits? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Should Priorities Be Based on Relative Risks? . . . . . . . . . . . . .

Would Additional Analysis Improve Risk Management? . . . . . . .

THE INFORMATION VALUE OF RISK ANALYSIS . . . . . . . . . . . .

Key Factors Determining the Quality of Information Provided .

Quality of the Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Risk Assessment Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

LEGISLATIVE ACTMTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

LEGISLATION IN THE 103RD CONGRESS . . . . . . . . . . . . . . . . . . 53

OUTLOOK FOR THE 104TH CONGRESS . . . . . . . . . . . . . . . . . . . . 54

SELECTED REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

APPENDIX . REQUIREMENTS FOR ANALYSIS OF RISKS. COSTS.

AND BENEFITS IN SENATE-PASSED BILLS OF THE 103RD

COKGRESS: A COMPARISON WITH REQUIREMENTS IN

EXECUTIVE ORDERS OF PRESIDENTS REAGAN AND CLINTON

. . A2

Risk Analysis and Cost-Benefit Analysis of

Environmental Regulations

INTRODUCTION

Many Governors, Mayors, Members of Congress, and others are concerned

about the high cost of compliance with environmental regulations. In

particular, some believe EPA has promulgated requirements that achieve small

increments in environmental quality or human health protection without

adequately considering the economic costs of those decisions. They argue that

the resources consumed in promulgating, enforcing, and complying with such

regulations could better protect public health and the environment if they were

more commensurate with the risks potentially avoided by regulation and were

directed to controlling environmental hazards posing greater risks. Therefore,

many support legislation requiring risk analysis of environmental problems and

economic analysis of EPA regulations. EPA supporters argue that EPA has

analyzed risks, costs, and benefits for major regulations and most other

significant decisions for more than a decade. However, many of the Agency's

decisions are driven by specific statutory mandates, discussed below, that may

limit EPA's regulatory flexibility or its ability to consider cost when developing

regulations. Other risk management decisions are driven by ambiguous

legislative language which EPA cautiously interprets for various reasons,

including uncertainty about health risks and lawsuits from environmental

groups. Congress establishes priorities for EPA's regulatory activities when it

mandates deadlines for issuance of regulations in environmental legislation and

authorizes or appropriates funds for specific programs. According to some

sources, EPA has little discretionary authority to choose targets for regulations

based on risks.'

Various legislative proposals in the 103rd Congress addressed the issue of

how EPA should manage risks. Some would have required EPA to conduct

formal economic analyses of existing and proposed environmental regulations

and forego regulation when costs exceed auantifiable benefits. Others would

have had EPA evaluate regulations and their alternatives based on the

magnitude of risk potentially controlled by each option. Still others would have

required EPA analysis of the relative magnitude of risks addressed by its

regulations. More modest proposals would have established an office of

environmental risk within EPA or mandated research to improve the quality of

risk analysis or communication of the results. Prospects are high that the 104th

Congress will continue to debate these proposals.

'

For example, DanBeardsley, former EPAofficid with the Office of International Activities,

a s quoted in: Roberts, L. "Countingon Science a t EPA.' Science,v. 249, August 10, 1990. p. 618.

This report describes and analyzes the issues and legislative options related

to risk analysis and risk management at EPA and considers the potential impact

of proposed legislation on EPA's rule-making process and final regulations. The

report begins by defining some key terms used in the discussion and by

providing: background information on EPA's historical use of risk and economic

analyses; provisions of existing law that authorize, mandate, or constrain the

use of the results of risk analysis and economic analysis by EPA; and various

studies of EPA's risk analysis and economic analysis policies and practices. The

second major section of the report summarizes and analyzes proposals, issues,

and legislative options. The report concludes with a brief summary of the

legislative activities in the 103rd Congress and a list of selected references. (For

more information about specific proposed legislation, see CRS Issue Brief IB

94036, The Role of Risk Analysis and Risk Management in Environmental

Protection and the CRS Report Comparison of Environmental Risk Provisions

in the 103rd Congress, 94-716 ENR.)

The Environment and Natural Resources Policy Division of CRS conducted

an advanced workshop on cost-benefit-risk analysis ofproposed EPA regulations

on July 19, 1993. Guest speakers who presented five perspectives were: John

Graham, Professor and Director, Harvard Center for Risk Analysis, Harvard

School of Public Health; James D. Wilson, Regulatory Issues Director: Monsanto

Company, and President, Society for Risk Analysis; Erik Olson, Senior Attorney,

Natural Resources Defense Council, and former EPA employee; Adam Finkel,

Fellow, Center for Risk Management, Resources for the Future; and Richard D.

Morgenstern, Director, Office of Policy Analysis, Office of Policy, Planning, and

Evaluation, U.S. EPA. The purpose of the workshop was to examine areas of

agreement and disagreement among panelists regarding the advantages and

disadvantages of increased use of cost-benefit-risk analysis of EPA regulations.

Drs. Graham and Wilson spoke in favor of, and Mr. Olson spoke against, an

increased role for cost-benefit-risk analysis at EPA. Dr. Finkel provided

arguments both for and against an increased role for cost-benefit-risk analysis

at EPA. Dr. Morgenstern discussed the legal, fiscal, and practical considerations

that affect EPA's use of cost-benefit-risk analysis. The speakers' presentations,

answers to follow-up questions, and participation in an open discussion with the

moderator and audience provided valuable information that is referenced

throughout the analytic section of the report.

BACKGROUND

DEFINITIONS

Experts in risk analysis disagree about how "risk and related terms should

be defined. For the purpose of this discussion, however, the following

definitions have been adopted. "Environmental risk is defined as the

probability of occurrence of a particular adverse effect on human health or the

environment as a result of exposure to an environmental hazard; an

"environmental hazard may be a hazardous chemical in the environment, a

natural hazard, or a hazardous technology (for example, a dam).

"Environmental risk

assessment refers to any

f o r m a l or i n f o r m a l

scientific procedure used

to produce a quantitative

estimate of environmental

risk. For example, risk

assessment is often used

to estimate the expected

rate of illness or death in

a human population exposed to a hazardous

chemical based on the

number of experimental

animals affected b y

various doses of the

chemical as measured in

risk analysis"is defined more

laboratory e ~ ~ e r i m e n t s ."Environmental

~

broadly to include any quantitative or qualitative scientific description of an

environmental hazard, the potential adverse effects of exposure, the risks of

these effects, events and conditions that may lead to or modify adverse effects,

populations or environments that influence or experience adverse effects, and

uncertainties with regard t o any of these factor^.^ Generally, risk analyses are

based on scientists' evaluations of results of scientific research, extrapolations

of these results to predict the type and to estimate the extent of effects in

exposed populations, and judgments about the number and characteristics of

persons exposed to hazards at various levels. The final step in risk analysis is

"risk characterization,"which summarizes scientific judgments about the

existence and overall magnitude (that is, the incidence) of adverse effects given

specified levels of exposure to a hazard.

"Riskmanagement"is the process of deciding what should be done about

a hazard, the population exposed, or adverse effects: implementing the decision,

and evaluating the results. Decision makers may consider social, political,

economic, legal, ethical, and engineering information as well as scientific risk

estimates in choosing among available risk management options. Comparative

risk analysis and economic analyses use the results of environmental risk

assessments but are risk management activities, conducted to inform decisions

about management options. Risk management decisions often require value

Laboratory studies of toxicity a r e supervised and interpreted by toxicologists.

Epidemiologists, who also contribute data for risk assessment, study the health of human

populations who have been exposed, usually accidentally or occupationally, to a hazard.

3

Others might use these terms differently. The important point is that i t is necessary to

distinguish between an analysis that focuses exclusively on the numbers associated with a hazard

and a broader analysis t h a t also considers such qualitative features as the dread a hazard inspires

or the irreversibility of harm. A similar distinction is drawn between "economic analysis'' and

"cost-benefit-risk assessment" below.

judgments on such questions as "What level of risk is acceptable?" and 'What

level of expenditure is reasonable?" Another aspect of risk management is "risk

communication"which includes any information exchange about a hazard or

risk.

A "comparativerisk analysis" evaluates a number of environmental

hazards relative to one another and assigns to each a priority, based on one or

more characteristics of the individual hazards. Often ranks are based on the

relative magnitude of risk, which presupposes that a quantitative environmental

risk assessment has been conducted for each hazard. A comparative risk

analysis may group hazards, for example, as "high," "medium,"or "low" risks, or

arrange them in rank order. Alternatively, hazards may be evaluated based on

the amount of risk that may he avoided using available technologies and

resources. This is often referred to as ranking according to "riskreduction

opportunities."

"Economicanalysis"refers to any systematic procedure to evaluate real

or anticipated resource expenditures and losses (costs) relative to real or

anticipated gains (benefits).

"Cost-benefit-risk assessment is the

quantification and monetary valuation of the expenditures, gains, and losses.

and the calculation of net benefits to society associated with the adoption of a

particular regulation (or alternative management strategy) to address an

environmental hazard. Quantitative environmental risk analysis (that is, risk

assessment) is a necessary prerequisite to the conduct of cost-benefit-risk

assessment of environmental regulations, because the "benefits"are the risks

avoided (that is, the adverse effects on human health or the environment. or

risks of such effects, that the regulation is meant to address.) Risk assessment

may be used to estimate the number of people or animals likely to be harmed by

exposure to the hazard under each regulatory strategy, including a "do-nothlngdifferent" strategy that reflects the current policy, or regulation. or laissez faire.

Benefits may be expressed in such terms as numbers of lives saved or illnesses

or species extinctions avoided. Risk that is expected to remain after a new

regulation is implemented may be subtracted from the risk under current

conditions to estimate risk reduction opportunities -- that is, the "expected

benefit -- of each regulatory alternative. If benefits are translated into

monetary terms to allow cost-benefit-risk assessment, various techniques may

be used to calculate the dollar values of health effects; these values may be

derived from studies of how- much people are willing to pay to avoid exposure

to a hazard or particular adverse effect, or based on savings of direct costs, such

as health care expenditures, salary loss for the duration of an illness, or the

years of work lost to premature death. The intent is to estimate the gross

monetary value of benefits to society, rather than to individuals. "Netbenefit

is the expected monetary benefit less the cost of implementing the regulation.

RISK ANALYSIS AT EPA

Origin of Environmental Risk AnaIysis

Most of the major environmental protection statutes have provisions that

require, or have been interpreted by EPA to require, decisions about the amount

of pollution or potentially polluting activity that is considered to be "safe." To

inform such decisions, EPA began soon after it was formed in 1970 to systematically collect and analyze data to describe and evaluate environmental conditions

and trends. EPA's earliest efforts to evaluate environmental data, however,

were frustrated by the difficulty of defining "good environmental quality;

scientists could not agree on a definition. They readily agreed, however, that

the environment should not be hazardous to human health or ecosystems.

Therefore, EPA began to focus efforts on defining risks.

Procedures for analyzing hazards and measuring risks existed prior to 1970,

but had been developed for purposes other than environmental protection (for

example, to determine life insurance rates or the likelihood of flooding) and had

not been widely applied to more complex environmental hazards. Because EPA

urgently needed suitable tools to carry out its mission. it supported the

development of the newly consolidated field of riskanalysis and helped to found

the Society for Risk Analysis,4 The Agency was among the first to apply the

methods of risk analysis to problems in environmental protection. EPA

developed new procedures and adapted methods from such disciplines as sanitary

and industrial engineering, psychology, economics, sociology, statistics, and

operations research. By the mid 1970s, EPA was conducting risk analyses to

support some of its decisions.

Influence of Federal Guidelines on EPA Risk Analysis

Other Federal agencies with responsibilities for protecting human health

and safety, such as the Food and Drug Administration (FDA) and the

Occupational Safety and Health Administration (OSHA), also were conducting

risk analyses by the mid 1970s. Each agency independently developed analytic

procedures suitable for its mission, authority, and budget; published results of

risk assessments; and: designed risk management activities with reference to

scientists' risk estimates. However, because agencies often shared jurisdiction

over an industry or chemical and sometimes came to different conclusions about

the level of risk associated with chemicals or industries, as well as the level of

risk that should be regulated (a risk management decision), some independent

investigators and industry scientists were of the opinion that certain Federal

scientific risk assessments were of poor scientific quality. They criticized the

*

The Society for Risk Analysis is an international organization of professionals with a strong

interest in risk analysis. The membership is multidisciplinary including toxicolo&ts,

epidemiologists, statisticians, chemists, physicists, politicaI scientists, economists, psychologists,

journalists, sociologists, policy analysts, public affairs speciaiists, and educators. Researchers,

practitioners, and users of risk analysis attend the annual meeting LO present papers and learn

about the latest risk research.

Federal Government for allowing inconsistent analyses of risks.5 Often

criticisms targeted EPA which tended to produce higher risk estimates and to

regulate more stringently.

These criticisms of Federal risk analyses focussed on the diverse choices

made by different agencies to cope with inherent uncertainties of risk analysis

that arise from missing or ambiguous information on hazards and gaps in

current scientific theory. Although generally characterized as a scientific

activity, risk analysis is not, and probably can never be, entirely objective or

fact-based. Risk analysis was developed to evaluate what is known about things

that cannot be known with certainty. Thus, risk analysis produces an estimate,

never an exact prediction, of the magnitude and severity of risk. (Weather

forecasts* for example, are risk estimates.) Environmental risk analysis is

especialIy beset by many uncertainties, because data usually are sparse, and

scientific theories explaining hazards, exposures, and effects often have not been

established. To conduct a risk analysis under these conditions, requires choices

among plausible alternative assumptions and competing theories to bridge the

gaps. Because these choices cannot be based on science alone, they are subject

to challenge. For example, if data are availabIe for two animal species, which

data should an analyst use or how should data be combined to estimate risk to

a third species? The National Academy of Sciences (NAS) identified 50 choices

beyond the realm of science (so-called "inference choices") that affect risk

a n a l y ~ e s .For

~ an excellent, though somewhat dated, discussion of inference

choices in the context of cancer risk analysis, see chapter two inMahing Cancer

Policy by Mark Rushef~ky.~

In 1977, the EPA: OSHA, the Consumer Product Safety Commission

(CPSC), and FDA responded to the criticisms of risk analyses by establishing an

Interagency Regulatory Liaison Group (IRLG) to coordinate procedures for

analyzing cancer risks.' The Food Safety and Quality Service of the U.S.

Department ofAgriculture (USDA)joined the IRLG soon thereafter. The IRLG

proposed in 1979 a general "cancer policy" to coordinate risk analysis and risk

management across agencies to the extent permitted by statute. According to

the NAS: this was "the first evidence that all the [Flederal regulatory agencies

agreed on the inference options applicable to the identification of carcinogenic

hazards and measurement of risks".'

Environmentalists also criticized EPA's risk assessments, but their complaint was t h a t EPA

used risk assessment to justify less rigorous enforcement of environmental statutes.

National Academy of Sciences. Risk Assessment i n the Federal Gouernment: Managing the

Process. Washington, D.C., National Academy Press. 1983. pp. 29-33.

Rushefsky, Mark E. Making Cancer Policy. NewYork, State University of New YorkPress,

1986, p. 37-54.

'The IRLG was disbanded i n 1981

However, the IRLG policy was controversial. Some scientists and industrial

and environmental groups accused the Carter Administration of allowing policy

prescriptions to influence scientificjudgments. In response, Congress authorized

a study by the NAS on institutional arrangements that might improve the

agencies' use of risk analysis.I0

The NAS published the results of the study in a 1983 landmark report,

Risk Assessment in the Federal Gouernment: Managing the Process, also known

as "The Red Book." It described the risk analysis policies and practices of all

Federal agencies and concluded that no change in institutional structure was

necessary or desirable to improve risk assessments. In addition, the Academy

provided a general framework for cancer risk assessment that still is used today;

recommended that agencies separate risk assessment from riskmanagement; and

suggested development of uniform general risk assessment guidelines for the

Federal Government.

In 1985, the NAS framework was adopted by the White House Office of

Science and Technology Policy (OSTP), which included scientists from the

regulatory agencies, the National Institutes of Health, and other Federal

agencies. Although the OSTP decision was not binding on the agencies' risk

analysis practices, it provided a consistent basis for developing agency

guidelines.

The Reagan and Bush Administrations convened numerous interagency

meetings, conducted studies, and issued guidance in the hope that uniform

policies and procedures might be established to guide risk analysis and

management in the Federal Government. However, no formal guidelines

materialized. In August 1994, an interagency work group for the Clinton

Administration released Draft Principles for Risk Assessment, Management, and

Communication to serve as a "general policy framework" for implementing

regulatory policy.

Many argue that interagency guidelines cannot, or should not, be

established, because the different missions and objectives of Federal agencies

require them to adopt different approaches to analyzing and managing risks.

Others claim that such guidelines are undesirable because they might freeze

development of risk analysis a t an immature stage, when its procedures are still

rapidly evolving. Still others favor adoption of formal guidance because it would

make the decision-making process more transparent to outside observers and,

they argue, reduce the influence of politics on scientific judgments made during

risk analyses.

In response to criticisms and calls for consistent risk analyses, EPA became

in 1977 the first Federal agency to propose interim guidelines for its cancer risk

The study was authorized i n the Act making appropriations for Agriculture, Rural

Development, and Related Agencies programs for the fiscal year ending September 30, 1981 (P.

L. 96-528). The study was carried out by the National Research Council with support from the

Food and Drug Administration.

assessments. In 1986, it was the first agency to establish final guidelines for

analyzingrisks of cancer and other health effects, all of which were based on the

1983 NAS framework (51 Federal Register 33992-34054, Sept. 24, 1986). In

addition to cancer risks, the 1986 guidelines for analysis addressed: the risk

that a chemical will cause mutations affecting future generations or damage to

human development (developmental risks); human exposure to individual

chemicals; and human health risks of chemical mixtures. The Agency revised

its guidelines for developmental risks in 1991 and for exposure in 1992 (56

Federal Register 63798-63826, Dec. 5, 1991; 57 Federal Register 22888-22938,

May 29, 1992).

In recent years, EPA has continued to be "the main player in developing

and revising risk assessment guidelines ... [Olnly EPA has completed scientific

reviews of some of its guidelines and formally modified them in response to new

scientific information," according to the Congressional Office of Technology

Assessment." EPA's cancer risk assessment guidelines currently are being

revised. In addition, guidelines currently are being developed for analyzing

neurotoxicity and reproductive risks and for exposure measurements. The

Agency has proposed a rough framework for ecological risk analysis based on

recommendations of the NAS."

State of the Art of Risk Analysis: EPA

Concerns about the scientific quality of risk analyses by Federal agencies

have generated numerous studies: often at the request of Congress. A 1987

Office of Technology Assessment comprehensive study of agency policies for

animal carcinogenicity studies and for identifying: assessing, and regulating

carcinogens concluded:

Both risk assessment and risk management incorporate policy choices

and reflect the values of the risk assessors and managers. Some

agencies have attempted to establish separate staffs for the two tasks,

but this separation does not eliminate the need to make policy choices

about the assumptions used in risk assessments.

The values and policy preferences of decision-makers, risk assessors,

and representatives of industry, labor unions, environmental

organizations, and public interest groups often differ. Scientists

disagree about the nature of scientific evidence. These differences

"

U.S. Congress Office o f Technologv Assessment. Researching Health Risks. Washington,

U.S. G o d . Print. Off. 1993, p. 120.

l2 U.S. EPA, Risk Assessment Forum. Framework forEcologica1 RiskAssessment.EPAi630/a921001. Washington, U.S. Environmental Protection Agency, February 1992. 41 p.

U.S. EPA, Risk Assessment Forum. Report on the Ecological Risk Assessment Guidelines

Stmtegic Planning Workshop. EPA!630/F-92!002. Washington, U.S. Environmental Protection

Agency, February 1992. 57 p.

U.S. EPA, Risk Assessment Forum. Drafi Ecological Risk Assessment: Issue Papers.

EPAi630fR-941004A. September 1993. 544 p.

explain some of the past controversies over the regulation of specific

carcinogenic chemicals and the development of agency policies.

... Adoption of general guidelines cannot resolve these specific

disputes.13

Responding to a mandate in the Clean Air Act Amendments of 1990, the

NAS National Research Council assessed the current state of EPArisk analyses.

The 1994 NAS report Science and Judgment in Risk Assessment concluded:

e

EPA should generally retain its conservative approach to risk

assessment (in which the Agency makes judgments that err, if

necessary, on the side of public safety) in the initial phase of setting

standards, but EPA should more clearly state its principles.

e

EPA should develop and use an iterative approach to risk assessment,

beginning with relatively inexpensive screening techniques and moving

on to more resource-intensive levels of data gathering, model

construction, and model application as each situation warrants. At

each level, risk should be reevaluated to produce a more precise

estimate. Iteration should cease when no further refinement of the

risk estimate is needed to inform risk managers.

e

EPA should work to continually improve the models and data used in

risk assessments and develop a standard procedure for deviating from

its conservative approach to risk assessment when warranted by

scientific considerations.

e

In its reports to decisionmakers and the public, EPA should present

information about the sources and magnitudes of uncertainty as well

as point estimates of risk.

e

"Risk assessment is a set of tools: not an end in itself. The limited

resources available should be spent to generate information that helps

risk managers to choose the best possible course of action among the

available options" (p. E-14).

The Clean Air Act Amendments of 1990 also established a Risk Assessment

and Management Commission to consider the NAS report, methods for

measuring and describing risks of chronic human health effects from exposure

to hazardous substances, methods to reflect uncertainties, and risk management

policy issues. The Commission also was directed to comment on the possibility

of developing a consistent risk assessment methodology, or standard of

acceptable risk, among various Federal programs.

l3U.S. Congress. Office of Technology Assessment. Identifying a n d Regulating Carcinogens:

Background Paper. OTA-BP-H-42. Washington, U.S. Govt. Print. Off., November 1987. p. 6.

Members of this Commission have been appointed and the first meeting was

held May 16, 1994.14 At this meeting it was agreed that the Commission would

address the contentious issues surrounding proposed legislation requiring risk

analysis and Executive Order 12866 on regulatory review (discussed below). The

Commission is about two years behind the schedule set by Congress, and hopes

to issue its final report in March 1996.

RISK MANAGEMENT AT EPA

The 103rd Congress debated whether EPA has adequately considered risks

and costs when exercising its discretionary authority. Specifically, some

questioned whether EPA has targeted its resources to address hazards posing

the largest environmental risks and whether EPA regulations to reduce risks are

worth the cost of compliance and implementation. The 104th Congress is

expected to continue debating these issues. This section of the report

summarizes EPA's use of risk comparisons and cost-benefit-risk analysis in

regulatory decisions.

Comparative Risk Analysis at EPA

In the mid 1980s, the EPA Administrator commissioned a special task force

to compare the risks associated with major environmental problems that

remained to be controlled, given the level of Federal risk management that

existed a t the time. The purpose was to help the Administrator determine

where available EPA resources could be applied to greatest effect." Senior

EPA career managers and technical experts assigned to the task force ranked 31

environmental problems in a 1987 report Unfinished Business: A Comparative

Assessment of Enuironmental Problems.

EPA scientists based their ranking on available data, but reported that data

gaps and uncertainty about risks plagued their efforts. Ranks did not take into

account the feasibility of controlling risks, the economic benefits of activities

posing risks, the limits of EPA's statutory authority, or the distribution of risks

and benefits geographically, over time, or among people. Problems were ranked

based on relative risks within four categories: human cancer risks: other risks

to human health, ecological effects, and human welfare (including such effects

as visibility impairment and damage to building materials). Scientists grouped

environmental problems within categories as relatively high, moderate, or low

risks.

l4 The ten members of the Commission are: Barbara Bankoff (appointed by President Bush),

Peter Y. Chiu and Alan Craig Kessler (appointed by President Clinton), David P. Rall and Korman

Anderson (appointed by the Majority Leader of the Senate), Gilbert Omenn and Joshua Lederberg

a p p ~ n t e dby ~ n 9zp e a x ~ rof t h e Hou:e . Y ~ r y n : n\Yeidor :i?poinrcri by rhc .Mtnur.ry Lcddcr '1

the House . .Jni.. Doul: ;iono!nrcd hv rhc .2l!!lor:ro Lcauer b i i h c Stcare . and Uernsrd Goidate:n

(appoint&by the President of the National ~ c a i e m yof Sciences)

..

l5 U.S. E P 4 Office of Policy Analysis. Unfinished Business: A Comparative Assessment of

Environmental Problems. Washington, U.S. Environmental Protection Agency, February 1987.

p. xiii.

The exercise revealed that no environmental problem ranked relatively high

or relatively low in all four categories of risk. Problems ranked relatively high

or moderate in three or more categories included: criteria air pollutants (that

is, lead, sulfur dioxide, nitrogen oxides, particulates, carbon monoxide, and

tropospheric ozone), stratospheric ozone depletion, pesticide residues on food,

and other pesticide risks. Other relatively high risks to human health included:

hazardous air pollutants, indoor air pollution, indoor radon, pesticide

application, exposure to hazardous substances in consumer products, and worker

exposures to chemicals. Additional problems posing high risks to ecologs; or

human welfare included: global warming; surface water pollution; physical

alteration of wetlands, estuaries: and other aquatic habitats; and mining wastes.

Interpretation of these results requires caution. For example, the low

relative risk of hazardous waste sites (as indicated by data available in 1987)

was due, in part, to the existence of regulations and availability of funds to treat

the problem. Problems such as indoor air pollution were characterized as

relatively risky, at least in part, because they were not regulated by any Federal

agency.

EPA scientists next compared the relative risk of each problem with its

budget allocation and the results of national polls of public concerns. The public

reported: high concern about chemical waste disposal, water pollution, chemical

plant accidents, and air pollution; moderate concern about oil spills, worker

exposure, pesticides, and drinking water; and low concern about indoor air

pollution, consumer products, radiation (other than nuclear power), and global

warming.

EPA concluded that its budget correlated better with the priorities of the

public than with the scientists' evaluations of residual risks. However, there are

several reasons why this conclusion may be suspect. First, EPA did not ask the

public to rank environmental hazards: and it did not use the results of scientific

studies of how people rank hazards based on risk. (The results of one such

study are shown in the figure titled "How People Evaluate Hazards.")16

Rather, EPA staff compiled public responses to questions asked in national

opinion polls in 1985 and 1986 about 19 environmental problems which roughly

coincided with the 31 hazards ranked by EPA scientists. Thus, the scientists'

rankings were assigned after hours of careful deliberation, while the public was

simply responding to a few questions in an opinion poll. In addition, the

scientists and public responded to different questions. Scientists addressed the

question, "Of the environmental hazards that are recognized, which pose the

highest risks and remain to be controlled?" The public was asked, "Which of

l6 Scientists, engineers, and other experts in the evaluation of hazards tend to use and

interpret the term ''risk in a narrow actuarial sense (e.g., as average, annual mortality rates for

a population), whereas nonexperts may employ or interpret any of several common meanings of

the term, depending on the context. Often, the public interprets "risk" in a very personal way,

depending on whether they or their families are exposed. In scientific studies that asked the

public to estimate the annual mortality rate for hazards, public and scientific hazard rankings are

more similar. For example, see Fischhoff, B., S. Watson, and C. Hope. "Defining Risk." Policy

Sciences, v. 17, n. 2, (1984). p. 123-139.

these 9 problems are most serious?" or in some cases, "How serious is the

problem of [chemical waste disposal, for example]?" Finally, the public responses

were compiled and interpreted by EPA staff.

EPA's Science Advisory Board (SAB), an advisory group of independent

scientists, reviewed EPA's efforts in its 1990 report Reducing Risk: Setting

Priorities and Strategies. SAB praised EPA for considering "the long-term public

policy importance of understanding relative risks," but criticized the accuracy

and methods of ranking and the omission of important environmental problems.

It devised its own method and ranked a different, though overlapping. set of

environmental issues. The results were largely consistent with those of the EPA

scientists, but the SAB expressed more concern about ecological risks because

of "the vital links between human life and natural ecosystems." The SAB

identified the following hazards that remained to be controlled as the highest

human health risks: ambient air pollutants (both toxic and criteria),

occupational chemical exposures, indoor air (including radon), and pollutants in

drinking water. Relatively high-risk problems affecting ecology and human

welfare included: habitat alteration, loss of biological diversity, stratospheric

ozone depletion, and global climate change.

Congress appears to support EPA's efforts to rank and compare

environmental risks, but to question whether the Agency uses relative risks in

the preparation of its budget proposals. Recently, the National Academy of

Public Administration (NAPA) initiated a study mandated by a provision in

EPA's FY 1994 appropriations legislation (Public Law 103-124). NAF'A is "to

address whether the Agency's resources are being directed to the most pressing

environmental hazards, the Agency's statutory mandates in the context of

relative risk to human health and the environment, and the effectiveness of the

Agency's organizational structure," (S. Rept. 103-137, p. 110). Congress urged

NAF'A to work with the Risk Assessment and Management Commission

(established under the Clean Air Act Amendments of 1990 and discussed above)

and NAS. NAPA hopes to report study results prior to February 1995.

Econolnic Analysis

EPA began analyzing the costs of proposed regulations in the early 1970s.

Benefit analysis began a bit later because it is more difficult to describe

systematically the progress a proposed or existing regulation will achieve toward

goals such as "fishable, swimmable waters" or safe drinking water. At first: the

results of EPA's cost-benefit analyses often compared costs expressed in dollars

with benefits described qualitatively. Gradually, however, quantitative measures

of benefits replaced qualitative descriptions. Recently, the consistent measure

of the benefits of an environmental regulation became the risks avoided,

expressed as, for example, numbers of lives saved or critical ecosystems

protected. To permit mathematical calculations of "net benefits" or a benefitcost ratio, analysts use various methods to translate the measures of avoided

risk into dollars."

Statutory directives, executive orders, and judicial decisions encouraged this

development of methods for expressing and comparing the costs and benefits of

environmental regulations, but legal mandates also sometimes discourage EPA's

use of economic analysis when developing regulations. The following sections

describe some key provisions of Federal faw and how they might influence EPA

actions.

The Influence of Environmental Statutes

Many of EPA's regulatory decisions are driven by specific statutory

mandates concerning the degree of protection to be achieved, the actions to be

taken, and the criteria to be considered. These mandates vary in specificity,

sometimes granting EPA broad discretionary power, and other times little or no

power, to consider the economic impacts of its decisions. Some authorize or

even require consideration of economic factors, but others do not. A few have

provisions that arguably inhibit EPA's ability to consider costs. No statutory

provision requires an analysis of net benefits as part of the rulemaking process

(although requirements in some statutes to weigh costs and benefits may imply

a net benefit analysisj. Selected relevant provisions of some key environmental

statutes are described below and are summarized in Table 1.

Section 109 of the Clean Air Act ( C M , 42 U.S.C. 7401-7626)mandates the

establishment of national primary ambient air quality standards for

l7 As defined above, "net benefit'' is the value of the benefit less the cost, that is, the

difference of costs subtracted from benefits. The benefit-cost ratio is the quotient of benefits

divided by costs.

Table 1.

Statutory Authority for Considering Risks, Technological Capacity. and

Costs in Developing Regulations

Authorized considerations*

Degree of Protection

§ 109 (national

primary ambient air

quality standards)

Risk

Protect public health with an

adequate margin of safety

3 112(d)

Risk, techi~oiogy,and cost

"The maximum degree of reduction

in emissions ... achievable" taking

into account costs and any non-air

quality health and environmental

impacts and energy requirements;

may consider health threshold with

respect to pollutants for which it has

been established, "with an ample

margin of safety"

Risk (human health);

risk and cost (environmental

protection)

Provide a n ample margin of safety to

protect the public health or to

prevent, taking into consideration

costs, energy, safety and other

relevant factors, a n adverse

environmental effect

3 202 (emission

standards for new

motor vehicles)

Risk, technology, and cost

Standards which reflect the greatest

degree of emission reduction achievable through technologg. available,

taking into consideration cost,

energy, and safety factors; technology

must not present a n unreasonable

risk to health, welfare, or safety

Clean Water Act

3 307 (effluent

limitations for

industrial discharges

of toxic pollutants)

Risk, technology, and cost

Defined by applying best available

technology, economically achievable,

"which will result in reasonable

further progress toward the national

goal of eliminating the discharge of

ail pollutants," and to "provide an

ample margin of safety'' taking into

consideration "the toxicity of the

pollutant, its persistence,

degradability, the usual or potential

presence of the affected organisms in

any waters, the importance of the

affected organisms and the nature

and extent of the effect of the toxic

pollutant 012 such organisms, and the

extent to which effective control is

being or may be achieved under

other regulatory authority.''

-

Statute

Clean Air Act

(emission standards

for hazardous air

pollutants from

stationary sources)

§ 112(11

(emission standards

for residual risks of

hazardous air

pollutants from

stationary sources)

.~..

Table 1.

Statutory Authority for Considering Risks, Technological Capacity, and

Costs in Developing Regulations

Statute

Authorized Considerations*

Degree of Proteciion

Safe Dnhking Water

Act $ 1412ib)(4)

Risk, technology, and cost

Set water quality goal such that "no

known or anticipated adverse effects

on the health of persons occur and

which allows an adequate margin of

safety;" set the enforceable standard

as ciose to health-based goal "as is

feasible," given the best technology

availabie (taking costs into

consideration)

Resource

Conservation and

Recovery Act

§ 3004ia)

~isk"

"That necessary to protect human

health and the environment"

$ 408 (pesticide

residues in

unprocessed food)

Risk and cost

To the extent necessary to protect

the public health, giving appropriate

consideration to the necessity for the

production of an adequate,

wholesome and economical food

supply

8 409

(noncarcinogenic

pesticide residues that

are concentrated in

foods)

Risk

Assure that "the proposed use ... will

be safe;" "reasonahie certainty in the

minds of competent scientists that

the additive is not harmful to man or

animai;" "the proposed usages of such

additives are in amounts accepted ...

a s safe"

5 409 (carcinogenic

pesticide residues that

are concentrated in

processed food)

Risk

No residue permitted if the pesticide

is found to induce cancer when

ingested by man or animal

Federal Insecticide,

Fungicide, and

Rodenticide Act

5 3(b)i5) and § 2ibhl

Risk and cost

"Without unreasonable adverse

effects on the environment;"

"unreasonable adverse effects on the

environment" is defined as "any

unreasonable risk to man or the

environment, taking into account the

economic, social, and environmental

costs and benefits of the use of any

pesticide"

Federal Food, Drug

and Cosmetic Act

l8 The Act neither encourages nor excludes consideration of costs.

Table 1.

Statutory Authority for Considering Risks, Technological Capacity, and

Costs in Developing Regulations

Authorized considerations'

Degree of Protection

B 4 (to require testing)

Risk and cost

"Prevent unreasonable risk of injuryto health or the environment"

9 6 (to regulate)

Risk and cost

"To protect adequately against such

(unreasonable) risk using the least

burdensome requirement;" "it is in

the public interest;" "shall consider ...

a comparison of the estimated costs

of complying ... and the relative

efficiency ... to protect against such

risk of injury"

Comprehensive

Envhwnmental

Response,

Compensation, and

Liability Act 5 121

Risk, technology, and cost

"At a niinimum which assures

protection of human health and the

environment;" a t least attains any

promulgated standard, requirement,

criteria, or limitation under a

Federal law or State environmental

or facility siting law that is more

stringent; "at leasc attains Maximum

Contaminant Lewl Goals estahlished

under the Safe Drinking Water Act

and water quality criteria established

under section 304 or 303 of the Clean

Water Act, where such goals or

criteria are relevant and appropriate

under the circumstances of the

release or threatened release;"

However, remedial action may

achieve a lesser standard if

compliance is technically

impracticable from a n engineering

perspective, compliance would result

in greater risk, the State has not

consistently applied its standard,

Federal funds are inadequate, or

other conditions are niet

Statute

Toxic Substances

Control Act

* These are apparently authorized considerations, given the paraphrazed or quoted statutory language

under the heading "Degree of Protection". Other interpretations of the cited statutory provisions are

possible and may have legal precedence.

pollutants from numerous or diffuse sources whose emissions may cause or

contribute to air pollution that may "reasonably be anticipated to endanger

public health or welfare" I§ 108(a)(l)]. Under this provision, EPA is required

to set standards such that their attainment and maintenance "are requisite to

protect the public health in the judgment of the Administrator, based on air

quality criteria and allowing an adequate margin of safety. Air quality criteria

are compilations of information reflecting the latest scientific knowledge

relevant to the assessment of risks to public health or welfare posed by the

presence of criteria pollutants in the ambient air I§

108(a)(2)1. This statutory

provision only authorizes consideration of environmental and human health

risks.

In contrast, the CAA § 112(d) requires EPA to consider risks, available

technologies, and costs in promulgating regulations to control emissions of 188

hazardous air pollutants from major industrial source^.'^ It directs EPA to

require source facilities to apply the "maximum achievable control technology,"

taking into account costs and other factors. However, subsection (0 of this

section also requires EPA to evaluate and report to Congress on the need for

health-based standards for these hazardous air pollutants. If Congress fails to

act on the basis of EPA's report, EPA is required, if necessary, to promulgate

technological standards for industries that provide an ample margin of safety to

protect public health and reduce the lifetime excess cancer risks for the most

exposed individual to less than one in a million. (This provision will take effect

after 2001.) This latter provision does not permit EPA to consider the cost of

regulation because the statute defines the level of protection EPA standards

must afford."

Subsection (0 also requires prevention of adverse

environmental effects "with an ample margin of safety" but allows consideration

of costs, energy, safety and other relevant factors.

The CAA § 202 requires EPA to establish emission standards for new motor

vehicles which reflect the greatest degree of emission reduction achievable

through available technology that does not itself pose an unreasonable risk to

health, welfare, or safety. These emission standards are set after consideration

of cost, energy, and safety factors.

Finally, section 312 of the Clean Air Act requires EPA to conduct

comprehensive analyses of the impact of the Act on the public health, economy,

and environment of the United States and to report to Congress every two years

l9 Prior to enactment of the Clean Air Act Amendments of 1990, $112 was widely known as

the "cost-blind" statutory provision that required EPA to base decisions on risk alone, t h a t is,

without regard to cost. However, the extremely slow pace a t which EPA established risk-based

regulations led Congress to amend the law.

The statute requires provision of "an ample rnargm of safety to protect public health in

accordance with this section (as i n effect before the date of enactment of the Clean Air Act

Amendments of 1990)." The reference to the Act prior to amendment indicates that Congress

intended a strict interpretation of this language. The Court of Appeals for the District of

Columbia Circuit decided in 1987 that section 112 of the Act required EPA to determine what is

"safe" based "solely upon the risk to health," and that EPA "could not under any circumstances

consider cost and technological feasibility a t this stage of the analysis" under the Act (Natural

Resources Defense Council v. EPA, 824F.2d at 1164-1165). However, the Court stated t h a t costs

and technolog.lca1feasibility could be considered in promulgating an emissions standard below the

"safe" level to provide a n "ample margin'' and to "take into account the inherent limitations of risk

assessment and the limited scientific knowledge of t h e effects of exposure to carcinogens a t various

levels."

on the results. It requires consideration of the costs, benefits, and other effects

associated with compliance. Specific instructions are given for assessment of

costs and benefits of regulations.

Section 307 of the Clean Water Act (33 U.S.C. 1251 et seq.) requires EPA

to set emuent limitations for discharges of toxic pollutants to surface waters

achievable by applying the best available technology that is economically

achievable and "will result in reasonable further progress toward the national

goal of eliminating the discharge of all pollutants" [§ 301(b)(2)(A).] In addition,

the Act requires effluent standards to provide an ample margin of safety, taking

into account "the toxicity of the pollutant, its persistence, degradability, the

usual or potential presence of the affected organisms in any waters, the

importance of the affected organisms and the nature and extent of the effect of

the toxic pollutant on such organisms, and the extent to which effective control

is being or may be achieved under other regulatory authority." The Act does not

instruct the Agency in how it should balance these considerations relative to one

another.

The Safe Drinking Water Act does not directly delineate how EPA is to

balance risks and costs in setting drinking water standards, but rather has

several provisions that, when taken together, inform the Agency on this matter.

The Act requires EPA to set drinking water quality goals at levels believed to

be safe: and directs the Agency to issue regulations that will reduce levels of

contaminants to as close to the goals as is "feasible". In 1986, Congress revised

the definition of "feasible" to mean feasible with the use of the "best available

technology" that the EPA Administrator determines is available (taking costs

into consideration). The law previously used the term 'best generally available

technology.' Since 1986, the Administrator has been authorized to adopt

regulations that may be achieved by use of technologies that are available,

although they may not be as widely available or appropriate for controlling

water quality in small-scale systems as technologies.that are generally available.

The legislative history states that the Administrator's determination of

what technologies are available (taking costs into account) in setting drinking

water standards should be based on what may reasonably be afforded by large

metropolitan or regional public water system^.^' EPA considers systems

serving 50,000 persons or more to be large systems. Only five percent of all

public water systems are this large; consequently some smaller public water

systems may experience financial hardship meeting regulations. Although

legislative history is not necessarily binding on the Agency: EPA has relied an

it for guidance in determining congressional intent.

The Resource Conservation and Recovery Act (42 U.S.C. 6901-6991i) aims

to assure that hazardous waste management practices "are conducted in a

manner which protects human health and the environment" (§ 6902.) It further

U.S. Senate. Committee on Environment and Public Works. A Legislatiue History ofthe

Sufi Drinking Water Act. 97th Cong. 2d. Sess. Serial No. 97-9. Feb. 1982. p. 550.

See also 132 Cong. Rec. S6287 (daily ed. May 21, 1986).

states that it is the national policy of the United States "that, wherever feasible,

the generation of hazardous waste is to be reduced or eliminated as

expeditiously as possible. Waste that is nevertheless generated should be

treated, stored, or disposed of so as to minimize the present and future threat

to human health and the environment" (5 6902.) The Act requires EPA to

establish standards "as may be necessary to protect human health and the

environment" (5 6922 - 6924.) The Act does not specify that consideration of

costs is permitted, required, or prohibited.

The Federal Food, Drug. and Cosmetic Act, as amended, (FFDCA,21 U.S.C.

301-394) contains a t least two different requirements for evaluating risks and

benefits of standards for pesticide residues on food, depending on whether a food

is a raw agricultural commodity (e.g., fresh fruit) or a processed food (e.g.,jelly)

and whether the pesticide has been shown to produce cancer in people or

animals. For raw agricultural commodities, section 346a (better known as

section 408 of the Act) allows EPA to consider the risks and benefits of pesticide

use in setting standards for pesticide residues "to the extent necessary to protect

the public health." This section applies equally to carcinogenic and noncarcinogenic pesticides.

In contrast, section 348 (section 409 of the Act), which regulates food

additives, treats carcinogens and non-carcinogens differently. Pesticide residues

on raw foods that concentrate during processing (for example, canning, drying,

or freezing) are treated as food additives. The Act requires EPA to regulate all

food additives to assure that "the proposed use ... will be safe." According to the

legislative history, "the test which should determine whether or not a particular

additive may be used ... should be that of reasonable certainty in the minds of

competent scientists that the additive is not harmful to man or animal" (S. Rept.

2422, 85th Cong., 2nd Sess., Aug. 18, 1958, p. 2-3.) The Senate Committee

report also stated that the use of food additives "may benefit our people and our

economy when the proposed usages of such additives are in amounts accepted

... as safe." This seems to indicate that Congress expects EPA to weigh risks of

additives against the benefits they provide when the Agency considers whether

a particular pesticide use is "safe" or "not harmful". EPA has interpreted the

legislative history to allow risk-benefit balancing (53 Federal Register 41106,

October 19, 1988.

However, the "Delaney clause" in the same section of the Act prohibits any

use of a food additive (including pesticides residues that concentrate during

processing) that is shown to be carcinogenic, regardless of the level of risk posed.

This interpretation of Delaney as a zero-risk provision for carcinogens that

concentrate in processed food was recently supported by the U.S. Court of

Appeals for the Ninth Circuit (Les et al. vs. Reilly, July 8, 1992.)

The Federal Insecticide: Fungicide, and Rodenticide Act (7 U.S.C. 136 136y) directs EPA to limit the sale or use of pesticides "to the extent necessary

to prevent unreasonable adverse effects on the environment." The statute

further defines this to mean "any unreasonable risk to man or the environment,

taking into account the economic, social, and environmental costs and benefits

of the use of any pesticide."

The Toxic Substances Control Act, as amended, (15 U.S.C. 2601-2671)

mandates the screening of new and existing chemicals in commerce to determine

whether their production, distribution, use, or disposal might pose an

unreasonable risk of injury to health or the environment. To that end, EPA is

authorized to require companies manufacturing such chemicals to provide data

on the chemical's characteristics and use. If the Administrator determines that

a chemical poses a "significant risk of serious or widespread harm to human

beings from cancer, gene mutations, or birth defects," the Act requires EPA to

promulgate regulations to prevent or reduce "to a sufficient extent such risks or

publish in the Federal Register a finding that such risk is not unreasonable."

The Act requires EPA in promulgating a regulation to consider and publish a

statement concerning the potential health and environmental effects of the

chemical, the magnitude of exposure to the chemical, the benefits of the

chemical for various uses and the availability of substitutes, and "the reasonably

ascertainable economic consequences of the regulation, after consideration of the

effect on the national economy, small business, technological innovation, the

environment, and public health. The Act directs the Administrator to regulate

"to protect adequately against such risk using the least burdensome

requirement," but to regulate only if it is in the public interest. In determining

whether regulation is in the public interest, EPA is directed to consider all

relevant aspects of the risk, a comparison of the estimated costs of compliance

and the relative efficiency in protecting against risk.

The Comprehensive Emergency Response, Compensation,and Liability Act,

as amended, (CERCLA, 42 U.S.C. 9601-9675 and 26 U.S.C. 4611, 4612, 4661,

4662, 4681. and 4682) requires choice of cost-effective remedial actions for

contaminated sites, but also requires that the degree of cleanup "at a minimum

assures protection of human health and the environment." In effect, CERCLA's

standard of risk protection varies from site to site, because for cleanup purposes,

the numerical standards, criteria, and goals of all other applicable Federal and

State environmental statutes are applied to the conditions at the site. The

statute specifically states that where remedial action is taken to protect

groundwater, it must a t least attain the water quality goals established under

the Safe Drinking Water Act, a level of protection greater than is provided by

the national primary drinking water standards. CERCLA also specifically

requires attainment of the water quality criteria developed by EPA for surface

water under the authority of the Clean Water Act; water quality criteria are set

a t a level that is expected to protect human health and aquatic plant and animal

species.

In summary,

" . each environmental statute approaches the problem of

controlling risk from a different vantage point and authorizes consideration of

different factors by EPA. Some statutes authorize several different approaches

for controlling different kinds of risk. One statute, CERCLA, incorporates all

of the other statutory approaches to risk, a t least in effect. These diverse

statutes, however, seem to conform to a few general rules: they generally allow

A

consideration of the costs of regulation a t some stage of risk management, either

explicitly or by reference to feasible, practical, or available technology (the

Delaney clause is an exception to this rule); they tend to exclude costs from

consideration in the development of scientific documents (e.g., water quality

criteria,) safety goals (e.g., safe drinking water goals,) or health-based standards

of ambient environmental quality (e.g., primary air quality standards,) all of

which clearly are meant to be protective of health and the environment; and

they require consideration of costs when EPA directly regulates commerce, that

is, the production, distribution, and use of commercial products.

Statutes Requiring Analysis of Federal Regulations

Three Acts of Congress, the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),

the Paperwork Reduction Act, as amended, (44 U.S.C. 3501 et seq.) and the

National Environmental Policy Act (42 U.S.C. 4321-4347) impose additional

requirements on Federal agencies for analysis of proposed and existing

regulations. The Regulatory Flexibility Act requires agencies to review proposed

regulations to describe the impact of proposed rules on: or certify that they will

not have a significant economic impact on a substantial number of, small

entities which include small businesses, small governmental jurisdictions, and

small not-for-profit organizations. It also requires consideration of possible

alternatives to the regulatory proposal that will accomplish the objectives while

minimizing the impact on small entities. Agencies are required to project

reporting, recordkeeping, and other compliance requirements of proposed

regulations. EPA's Small Business Ombudsman provides guidelines for analysis

of economic impacts on small businesses. The Paperwork Reduction Act, as

amended, requires agencies to assess the paperwork and reportingburden placed

on the Agency and industry by proposed regulations. In addition, the National

Environmental Policy Act (NEPA) requires agencies (other than EPA) to

prepare an environmental impact statement for each major regulation [15

U.S.C. 793(c)(l); 33 U.S.C. 1371fc)l. The Code of Federal Regulations defines

a major regulation under NEPA as a regulation that individually or together

with other regulations, may have a major impact on the human environment (40

CFR 5 1505,18.) "Impact"is defined as synonymous with "effects"which may be

ecological, aesthetic, historic, cultural, economic, social, or health, whether

direct, indirect, long-term, short-term, or cumulative (40 CFR 3 1508.8.) The

regulations further state, "Major reinforces but does not have a meaning

independent of significantly." "Significantly,"in turn, is defined with reference

to the geographic and social context (for example, an impact is significant to

society as a whole if it affects all humans or the Nation, while a local impact

may be significant for a smaller project), and the severity of impact ("intensity").

Because they are statutory, provisions of these Acts supersede the

provisions of all executive orders, discussed below, but they generally

complement, rather than contradict, the provisions of the executive orders issued

by President Reagan and President Clinton. The statutes do not preempt

provisions of other statutes authorizing regulatory activity, however.

President Reagan's Executive Orders (Now Reuoked)

Federal agencies also have conducted economic analyses in response to

directives from the Chief Executive. To the extent permitted by enabling

statutes, the President's Office of Management and Budget IOMB) has required

all regulatory agencies to conduct increasingly detailed and quantitative analyses

of costs and benefits ever since "Quality of Life" reviews were required under

President Nixon. Prior to 1981, EPA's quantitative analyses of regulations

aimed at pollution control (as opposed to control ofcommerce in toxic chemicals)

emphasized costs and "aff0rdabilit~".2~

After February 1981, however, when

President Reagan issued Executive Order 12291 (revoked in 1993) requiring

agencies to perform Regulatory Impact analysis (RIA), cost-benefit analysis was

required for all proposed and final "major" rules (46 Federal Register 13193, Feb.

19, 1981.) The executive orders defined "major rules" to mean any regulation

likely to have an effect on the national economy of $100 million or more. Rules

with a smaller economic impact were also "major" if they were likely to result in:

a major increase in costs or prices for consumers, individual industries, Federal,

State, or local government, or geographic regions; or a significant adverse effect

on competition, employment, investment, productivity, innovation, or the ability

of US.-based enterprises to compete with foreign-based enterprises in domestic

or export markets. Proposed legislation in the 103rd Congress and the House

Republican's 1994 Contract with America would codify this executive order.

The Reagan order reflected that Administration's commitment to provide

"regulatory relief," by providing that "to the extent permitted by law,"

"regulatory action shall not be undertaken unless the potential benefits to

society from the regulation outweigh the potential costs." The order required

selection of regulatory objectives to maximize net benefits and of the least cost

option for attaining objectives, unless existing laws prevented this approach.

In general. under the Reagan and Bush Administrations, an RIA required an

evaluation of all potential costs and benefits that would accompany

implementation of a rule, including effects that could not be quantified in

monetary terms. Agencies were required to compare the costs and benefits of

the proposed rule to the alternative of no regulation as well as to other

approaches that could achieve the same objective at lower costs. OMB

guidelines for agencies explicitly required analysis of all major alternatives to

the proposed r ~ l e . 2 ~

A requirement for risk analysis was not explicit in President Reagan's 1981

order but implied by the mandate to assess net benefits of environmental and

health and safety regulations. Most benefits of such regulations are the risks

avoided due to Federal action. In January 1985, a second executive order made

22 Fraas, Arthur. The Role of Economic Analysis in Shaping Environmental Policy. Law and

Contemporary Problems, Assessing the Environmental Protection Agency After Twenty Years:

Law. Politics, and Economics. Durham, N.C., Duke University Press, 1991, p. 118.

23 U.S. Office of Management and Budget, Executive Office of the President.

Regulatoly Impact Analysis Guidance. Washington, U.S. Govt. Print. Off., 1981.

Interim

the requirement for risk analysis (to the extent permitted by law) explicit.

President Reagan's Executive Order 12498 (now revoked) on the Regulatory

Planning Process (50 Federal Register 1036) required agencies to adopt

principles contained in an August 11,1983 report by the President's Task Force

for Regulatory Relief. One principle states that "regulations that seek to reduce

health or safety risks should be based upon scientific risk assessment

procedures, and should address risks that are real and significant rather than

hypothetical or remote."

EPA's Response to the Reagan Orders

EPA published its interpretation of the first Reagan Administration

executive order in a 1983 report Guidelines for Performing Regulatory Impact

AnaEysis.2"hese

Guidelines describe how the Reagan Administration expected

the directives applicable to all Federal regulatory agencies to be applied in

analyses of environmental regulations controlling individual pollutants or

particular waste stream^.^ The introduction to the Guidelines summarizes the

requirements for Regulatory Impact Analysis (RL4) as follows:

Benefits and costs should be quantified and monetized in the RIA to

the extent possible. The RIA should discuss fully benefits and costs

that cannot be quantified and should assess their importance relative

to those that are quantified or monetized. When many benefits cannot

easily be monetized, or when law requires a specific regulatory

objective, cost-effectiveness analysis may be used to evaluate

regulatory alternative^.^^

It further states that "[tlhe goal of regulatory impact analysis is to develop and

organize information on benefits, costs, and economic impacts so as to clarify

trade-offs among alternative regulatory options." The Guidelines clearly indicate

'*

U.S. EPA, Office of Policy Analysis. Guidelines for Performing Regulatory Impact Analysis.

EPA-230-01-84-003. (December 1983).

''

The introduction to the Guidelines notes that "[tlhey are not readily applicable to

re~.:lsrion~

for :ei-.eric tr.fornia:!ot: ~ a r I - e r : n gresrl:~g

,

a n d procccur; 1.u.c~ in rht.;c ;irujr:ons.

nromani

off~ccsshould ,,onrjcr L P X s OFicc o!'P~.irv., k'lanni:i-~.

"

", and Evs.iiarivn and O3IU ::I rhe

early stages about procedures, extent of detail, and degree of quantification appropriate for the

.

RU."

''

The cost-effectivenessof a regulation is generally defined as the annual cost divided by a

measure of progress toward the objective. There is no single definition of the "most cost-effective

regulation", but an alternative usually is selected in one of three ways: 1) by choosing the most

efficient (least cost) way of achieving the objective; 2) by choosing the alternative that maximizes

benefits for a particular cost; or 3) by comparing the relationship between costs and benefits for

increasingly stringent regulatory alternatives, and then choosing the regulation that, relative tn

more and less stringent regulations, provides a significant increase in benefits for a reasonable

increase in costs. (This method does not point to a single best choice but can identify regulations

that obtain relatively tiny increments of protection for human health or the environment at

relatively high costs) (U.S. EPA. Guidelines, p. M14.)

that compliance with Executive Order 12291 required risk analysis to quantify

health effects.

The Guidelines permitted RIAs t o vary in level of detail provided, extent to

which costs and benefits were quantified, and level of precision of the

information assessed. Variation also was allowed to accommodate the nature

and quantity of data, available analytic techniques, resource or time constraints,

or the difficulty of analyzing some environmental problems or regulatory

approaches.

In quantifying potential health effects, EPA's Guidelines specified that

chemical substances should be evaluated individually based on a weight-ofevidence scientific evaluation. In addition, the guidelines required discussion of

particularly sensitive populations, the duration, reversibility, and nature of

adverse effects and whether effects resulted from single or repeated exposures

to the substance. They required estimation of the risk reduction that would be

achieved by a rule, expressed as, for example, numbers of lives saved or illnesses

prevented. To permit mathematical calculations of "netbenefits," the Guidelines

directed analysts to estimate the monetary value of the quantified health

benefits based on studies of willingness to pay to avoid illness or cost savings

such as health care costs or lost earning^.'^ The monetary value of lives saved

by a regulation was required to be estimated statistically for populations?8

The Reagan Administration also required some economic analysis for

regulations that were not major rules, and all rules were sent to OMB for

review. EPA Guidelines state, "sufficient analysis must be performed to

demonstrate that the rule meets the objectives of the Executive Order. At a

minimum, this should include costs and economic impact (distributional effects)

analyses" (p. 343.1 However, OMB routinely waived review of certain categories

of rules, such as certain rules granting pesticide tolerance exemptions; OMB did

not usually require cost-benefit analysis for regulations that revoked

requirements (or otherwise "dereg~~lated")?~

Between 1981 and 1992, EPA issued 1,594 proposed rules and 1,686 final

rules, including 92 major proposed rules (5.9 5%) and 60 major final rules (3.6

%).30Formal cost-benefit analyses were prepared for approximately 80 percent

27 As defined above, "net benefit" is the value of the benefit less the cost, that is, the

difference of costs subtracted from benefits. The benefit-cost ratio is the quotient of benefits

divided by costs.

A more detailed discussion of these guidelines may be found in CRS Report 89-161 ENR,

Health Benefits ofAir Pollution Control, in the chapter by Morris A. (Bud) Ward, p. 295-378.

''U.S. EPA. Guidelines. p. 3 (footnote)

30 Luken, Ralph A,, and Arthur G.Fraas. The U.S. Regulatory Analysis Framework: A

Review. Oxford Review of Economic Policy v. 9, n. 4, 1993. p. 100.

U.S. Office of Management and Budget, Executive OEce of the President. Regulatory

Progranl of the U.S. Government. Washington, U.S. Govt. Print. Off., various years.

of the major final rules. The number of cost-benefit analyses prepared for final

non-major and all proposed rules is unknown. Several final major rules without

comprehensive cost-benefit analyses had court-imposeddeadlines for publication

(which may have allowed too little time for a comprehensive analysis), and some

other rules without analyses were withdrawn or returned to EPA by OMB for

further analysis.31

The quality of EPA's cost-benefit analyses for final, major rules was

inconsistent according to reviews by EPA's Office of Policy, Planning and

Evaluation, by Arthur Fraas, a career official in OMB, and by Morris A. (Bud)

Ward, Executive Director of the Environmental Health Center, National Safety

Council.32 According to EPA, incomplete analyses in most cases were due to

the inadequacy or unavailability of the necessary scientific andlor economic data.

In other cases, reviewers have hypothesized that analysis may have suffered due

to time constraints imposed by statutory and judicial deadlines, lack of resources

to hire additional analysts, and the difficulty of quantifying such benefits as safe

drinking water or clean air and of determining their worth in monetary

terms.33 Moreover, in February 1994 testimony before the Subcommittee on

Environment, Energy, and Natural Resources of the House Committee on

Government Operations, EPA's Assistant Administrator for Prevention,

Pesticides and Toxic Substances testified that EPA has routinely adjusted the

amount of analysis to the relative importance of the potential impact of a

rule.34

Despite the uneven quality of EPA's cost-benefit analyses, the Agency's

study concluded that "EPA's benefit-cost analyses have resulted in several cases

of increased net benefits to society from environmental regulations" and

"analyses yielded a return on investment of 1,000 to

Between February

1981 and February 1986, EPA's investment (estimated cost of preparing a

formal analysis) for a major rule ranged from $210,000 to $2,380,000 and

31 Fraas. The Role of Economic Analysis in Shaping Environmental Policy. p. 118.

32 Ward, Morris A. "Evaluating Health Benefits in Clean Air Act Regulatory Impact

Analyses." In: Blodgett, John (ed.1 Health Benefits ofAirPolEution Control: A Discussion, p. 295378, Washington, U.S. Congress~onalResearch Service, 89-161 ENR, February 27, 1989. 378 p.

Fraas. The Role of Economic Analysis in Shaping Environmental Policy. p. 118.

U.S. EPA, Economic Studies Branch, Office of Policy Analysis. EPA's Use of Benefit-Cost

Analysis 1981-1986. August 1987.

3%raas. The Role of Economic Analysis in Shaping Environmental Policy. p. 120.

U.S. Office of Management and Budget, Executive Office of the President. Report on

Executive Order No. 12866. May 1, 1994. p. 34, 46.

34 Goldman, Lynn Statement before the Subcommittee on Environment, Energy and

Natural Resources and the Subcommittee on Legislation and National Security Committee on

Government Operations, House of Representatives. February 1, 1994.

'' U.S. EPA. EPA's Use of Benefit-Cost Analysis 1981-1986. p. 1and 2.

averaged $675,000.36 There are no figures available for more recent years or

for the preparation of less comprehensive analyses for rules that were not

"major" rules.

In many cases, EPA performed cost-benefit analyses but statutory

provisions limited their use. According to EPA, it "was able to consider the full

implications of its benefit-cost analyses when setting only 6 of the 15 regulations

studied between 1981 and 1986.37

Regulatory Planning and Review in the CZinton Administration

Executive Order 12866. On September 30, 1993, President Clinton signed

Executive Order 12866 on Regulatory Planning and Review (58 Federal Register

51735, Oct. 4,1993) which revoked and replaced the two Reagan Administration

executive orders, Executive Order 12291 requiring RIAs and Executive Order

12498 establishing the regulatory planning process. OMB issued guidance on

implementing President Clinton's order October 12, 1993.

On October 26, 1993, President Clinton issued Executive Order 12875,

Enhancing the Intergovernmental Partnership, which supplements but does not

supersede the requirements contained in Executive Order 12866.

The Reagan and Clinton orders are similar in many ways, but several

differences exist that are likely to affect regulatory decisions where the agencies

have discretionary authority to consider cost-benefit and risk analyses. Table

2 compares some key provisions relating to cost-benefit and risk analyses in the

executive orders issued by Presidents Reagan and Clinton.

The expressed purpose of President Clinton's executive order is to improve

the development process for Federal regulations, making it more visible to the

public and more efficient and ensuring the primacy of agencies in making

decisions and the integrity and legitimacy of oversight. In remarks prior to the

signing of Executive Order 12866 on September 30. 1993. the President

highlighted unprecedented provisions that, he said, open the regulatory process

to public scrutiny while limiting involvement by the President and Vice

President in the regulatory process. He directed all Federal agencies to confer

with OMB and the public during the early stages of deliberations about whether

and how to regulate, to record the basis for regulatory decisions, and to make

the records available to the public. Another stated goal of the Clinton

Administration is to expedite regulatory action. The early involvement of OMB

and others in regulatorgiplanning is intended to serve this purpose. In contrast,

President Reagan's orders were intended to improve the quality but also to

reduce the number of regulations, and he sought to ensure Presidential

oversight of the regulatory process.

36 bid. p. 6-5.

37 bid. p. 2.

Table 2.

Key provisions of President Reagan's Executive Orders 12291 and 12498,

now revoked, and President Clinton's Exeeutive Orders 12866 and 12875

Now Revoked Executive Orders

12291 and 12498

Executive Orders 12866

and 12875

Whether to regulate

Only when the potential benefits to

society exceed the potential costs to

society, to the extent permitted by law

Only when required by law, necessary

to interpret the law, or necessary due

to compelling public need; only upon a

reasoned determination that the

benefits justify costs; and only if i t

would not create a mandate upon a

State, local, or tribal government,

unless funds are provided by the

Federal Government to pay direct costs

incurred by that government or the

agency provides to OMB a description

oE 1) the extent of prior consultation

with that government; 2) the nature of

that government's concerns, 3) m i t t e n

communications submitted by such

government, and 4) the agency's

position supporting the need to issue

the regulation

Which regulations to

analyze

"Major" rules designated by the agency

or OMB, both existing and proposed

(See Table 3.)38

"Significant rules," existing and

proposed (See Table 3.)

How priorities are to

be established

Maximize aggregate net benefits to

society, taking into account t h e

condition of the particular industries

affected, the condition of t h e national

economy, and other regulatory actions

contemplated; target risks that are

real and significant rather than

hypothetical or remote

After consideration of degree and

nature of risk

How to choose a

regulatory objective

To extent permitted by law, to

maximize net benefits

To implement law; to address

significant problems, including the

failure of private markets or public

institutions; or to address compelling

public need such a s material failures of

private markets to protect or improve

the health and safety of the public, the

environment, or the well-being of

Americans

Decision Point

-

3S All rules were analyzed and sent to OMB, but only to determine whether they are likely to result in an

annual effect on the economy of $100 million or more.

Decision Point

Now Revoked Executive Orders

12291 a n d 12498

Executive Orders 12866

a n d 12875

Which regulatory

approach to choose

To the extent permitted by law, the

alternative with the least net cost;

address ends rather than means3'

To extent permitted by law, maximize

net benefits; minimize burden for

society (including individuals, businesses of differing sizes, and other entities

(including small communities and

governmental entities), taking into

account the costs of cumulative regulations; and designed in the most costeffective manner. Requires consideration of incentives for innovation,

consistency, predictability, enforcement

and compliance costs, flexibility, distributive impacts, and equity. Requires

specification of performance objectives.

What to analyze,

generally

Potential benefits, costs, and net

benefits, including effects that cannot

be quantified in monetary terms, of

the proposed regulation relative to the

alternative of no regulation;

alternative approaches that could

substantially achieve the same

objective a t lower cost4'

All costs and benefits (including

quantitative and qualitative) of the

proposed regulation and alternatives,

including the alternative of no regulation and alternatives that do not

regulate directly (e.g., by providing

economic incentives or information);

explore use of regulatory negotiation

and other consensual processes

What to analyze,

specifically

Costs to consuniers, individual

industries, Federal, State, or local

government agencies, or geographic

regions; effects on competition,

employment, investment, productivity,

innovation, or on the ability of U.S..

based enterprises to compete with

foreign-based enterprises in domestic

or export markets; and who is likely to

receive the benefits and bear the costs

Effects on the efficient functioning of

the economy and private markets (productivity, employment, and competitiveness); health and safety; the

natural environment; implementation

and compliance costs; costs of cumulative regulations; effects on State,

local, and tribal governments, including

availability of resources to carry out

mandates; and discrinlination or bias

39 Additional criteria are specified in guidelines provided by OMB (Circular Number A-94, October 29, 1992,

and the Regulatory Program of the U.S. Government for April 1 1991 to March 31, 1992, Appendix V) and EPA

(cited above),but these are not included in Table 1. OMB staff have indicated that their guidelines are not expected

to change as a result of the Clinton order, and EPA has not issued guidance since it reprinted its 1983 Guidelines

with revised appendices in 1991. With regard to choice of a regulatory approach, OMB guidelines state that: entry

into private markets should be regulated only where necessary to protect health or safety or to manage public

resources efficiently; uniform quality standards for private goods or services should not be prescribed except where

products are needlessly unsafe or product variations are wasteful, and voluntary private standards have failed to

correct the problem; qualifications for receiving government licenses should be the minimum necessary; encourage

unrestricted exchange of rights or obligations created by regulation; and the terms or conditions of Federal grants,

contracts, or financial assistance should be limited to the minimum necessary to achieve the purposesfor which the

funds were authorized and appropriated.

According to page 5 of EPA's 1983 Guidelines, the benefits and costs of proposed regulations and important

alternatives were to be compared to the benefits and costs i n the absence of regulation, referred to as the "baseline".

In addition, the Guidelines required consideration of alternatives to Federal regulation such as "negotiated voluntary

actions, and market, judicial, or State or local regulatory mechanisms" and "market-oriented regulatory

alternatives."

Now Revoked Executive Orders

12291 and 12498

Decision Point

il

Executive Orders 12866

and 12875

Comparative risk

analysis

No prolision

Requires agencies to include in their

annual Regulatory Plan comparisons of

the magnitude of the risk addressed by

each regulatory activity to other risks

within the amncv's iurisdiction

Basls for analysis

Adequate information; scientific risk

assessment procedures

Best reasonably obtainable scientific,

technical, economic, and other

information

Should not preempt State laws or

regulations except to guarantee rights

of nat~onalc~tizensh~p

or to avold

s~gtuficantburdens on Interstate

commerce41

Develop a process to permit meaningful

and timely input by State, local, and

tribal governments in the development

of regulatory proposals containing

significant unfunded mandates; in all

cases, seek views of State, local, and

tribal officials; assess effects on State,

local, and tribal governments; minimize

burdens on State, local, and tribal

governmentsl harmonize Federal

regulations with State, local, and tribal

functions; streamline process for

waiver application by State, local, or

tribal governments, attempt to increase

opportunities for use of flexible policy

approaches in jurisdictions of

applicants where appropriate, render a

decision to applicants within 120 days,

and notify applicant and explain

decisions to deny such applications in

writing; OMB to consult with State,

local, and tribal government

representatives quarterly

Regulations should be substantially

supported by the full record, with full

consideration to public comments

Seek stakeholder views before

publishing a Notice of Proposed Rule

Making periodically consult with

representatives of businesses,

noneovernmental oreanizations. and

the public

How to treat State,

local, and tribal

governments

How to treat the

prlvate sector

!

-

-

President Reagan's Executive Order 12612 on Federalism Considerations in Policy Formulation and

Implementation is still in effect. In general, it aims to "restore the division of governmental responsibilities between

the national government and the States that was intended by the Framers of the Constitution and to ensure that

the principles of federalism established by the Framers guide the Executive departments and agencies in the

formulation and implementation of policies" (52 Federal Register 41685, Oct. 26,1987). Section 6(c)(3)of the order

required agencies preparing Federalism Assessments for policies "[ildentify the extent to which the policy imposes

additional costs or burdens on the States, including the likely source of funding for the States and the ability of the

States to fulrdl the purposes of the policy."

I

The order of the Clinton Administration drrects Federal agencies to promulgate regulations

onlv when necessarv due to "com~eliine

" oublic n e e d and after a reasoned determination that the

benefits justify costs, or when required by law. The Reagan order, as menzioned above, permitted

regulation only when benefits exceeded costs, unless thls approach was prevented by law.

L

The Clinton order directs agencies to conduct cost-benefit analysis for all

"significant regulatory actions." The definition of "significant regulatory action"

appears to be more inclusive than the "major rule" definition of Executive Order

12291, indicating that more regulations may be subject to cost-benefit and risk

analysis under the Clinton order. (However, OMB will not review rules that are

not found to be significant and may not require cost assessments for such rules,

as discussed below.) The Clinton Administration also defines advanced notices

of proposed rulemaking as regulatory actions; such notices were not defined as

rules under the Reagan Administration. The two categories of regulations are

compared in Table 3.

President Clinton directs each agency to determine the significance of

proposed regulatory activities initially, but authorizes OMB to designate

additional rules as significant (within ten days of receiving the agency's list of

planned regulatory actions). OMB also is permitted to waive review of an

agency's significant regulatory actions. Under the two previous Administrations

OMB had similar authority. that is, to designate rules as major and to waive

review of particular major rules.

President Clinton requires each agency to "consider the degree and nature

of the risks poacd % vzrivcs substances or activities within its jurisdiction" in

setting priorities. I n contrast, President Reagan required agencies to maximize

net economic benefits in setting priorities.

The executive orders of Presidents Reagan and Clinton direct agencies to

use different criteria in choosing regulatory objectives. Under the Reagan

orders, agencies were required to pursue regulatory objectives that would

"maximize net benefits", that is, achieve the greatest possible economic gain for

society, to the extent permitted by law. Under the Clinton order, agencies will

select regulatory objectives that address significant problems or compelling

public need. Economic impacts are not considered in the choice of objectives

(although prior to promulgating a regulation, agencies must determine that

benefits justify costs: unless the regulation is required by law).

Having determined the targets of regulations, the Reagan Administration

directed agencies to choose the regulatory alternative with the "least net cost".

The Clinton Administration established three criteria for choosing a regulatory

approach: maximize net benefits, minimize the overall regulatory burden for

various segments of society, and design the most cost-effective regulation or

alternative to achieve the objective. The philosophy of the Clinton order

emphasizes the importance of net benefits. It states:

Further, in choosing among alternative regulatory approaches,

agencies should select those approaches that maximize net

CRS-32

Table 3. Characteristicsof "MajorRules"and "SigniiXcantRegulatory Actions"

Sectors of the

or lo& government agencies, or

geographic regions; or significant

adverse effects on competition,

employment, investment,

May adversely affect the

environment or public health or

May alter the budgetaiy impact of

May raise novel legal or policy

issues arising out of legal

mandates, the President's

benefits (including potential economic, environmental, public health

and safety, and other advantages; distributive impacts; and equity),

unless a statute requires another regulatory approach [section l(a)l.

*'

OMB has notified agencies that regulatory actions containing an unfunded mandate should

be submitted for review under Executive Order 12866. Since OMB only reviews significant

regulatory actions, presumably the presence of an unfunded mandate qualifies a rule as

significant.

43 Effects on the environment, public health or safety, actions of other agencies, budget, or

novel legal or policy issues may be considered in a cost-benefit-risk analysis conducted in accord

with E.O. 12291, but these effects alone are not sufficient to trigger the requirement to conduct

an analysis.

Both the Clinton order and Guidelines for the Reagan orders require

consideration of alternatives to Federal regulation such as those that rely on

negotiation or economic incentives.

The Reagan orders required analysis of potential benefits, costs, and net

benefits of the proposed regulation and alternatives that cost less. Costs,

benefits, and net benefits for each alternative were compared to those for the

alternative of no regulation. The Clinton order similarly requires analysis of all

costs and benefits of the proposed regulation and alternatives, including the

alternative of no regulation. It also requires analysis of net benefits (in order

to choose an approach that maximizes net benefits) and cost-effectiveness of

regulatory alternatives. Thus, the Clinton order appears to have a more

comprehensive set of analytic requirements.

More specifically, the Reagan orders required analysts to focus on

economic, adverse impacts of regulations (that is, costs) for consumers,

individual industries, Federal, State, and local governments, and geographic

regions. The orders required measurement of effects on competition,

employment, investment, productivity, innovation, and international

competitiveness. They also required consideration of the distribution of costs

and benefits, that is, who pays and who gains. The Clinton order also requires

analysis of the costs of enforcement and compliance to governments, regulated

entities, and the public; impacts on innovation; and consideration of who pays

and who gains. In addition, the Clinton Administration specifically requires

analysis of benefits to the environment and public health and safety. The

consistency, predictability, and flexibility of regulations must also be considered.

Finally, the Clinton order explicitly requires consideration of whether the

impacts are fair.

The Clinton order directs agencies to prepare and submit to OMB an

annual Regulatory Plan, in which they identify their planned significant

regulatory activities, including a description of how each action will reduce risks.

Agencies must compare the magnitude of the risk addressed by each activity to

the magnitudes of other risks within the jurisdiction of the agency. The Reagan

Administration also required agencies to submit information about regulatory

actions underway or planned, hut no requirement existed to compare risks

addressed by regulations. Instead, the Reagan order focused agency attention

on regulatory action to revise or rescind existing rules.

President Clinton's Executive Order 12866 established a Regulatory

Working Group to serve as a forum for interagency discussions. Topics to be

addressed include comparative risk assessment, innovative regulatory

techniques, and streamlined approaches for small businesses and other entities

to facilitate their compliance with regulations. Interagency groups also were

established under previous Administrations, often to promote coordination of

regulatory activity and harmonization of risk assessment practices.

The executive orders of Presidents Reagan and Clinton require analysis to

be based on scientific information. In addition, the Clinton Administration

requires agencies to use the "best reasonably obtainable scientific information."

President Reagan required analysis "based on adequate information" and risk

assessment.

The Reagan orders prohibited Federal agencies from preempting State laws

or regulations except to protect civil rights or interstate commerce. Under the

Clinton order: OMB is required to meet four times per year with representatives

of State, local, and tribal governments to identify planned and existing

regulatory activities with potentially significant impacts. Several meetings

already have taken place. Representatives of businesses, nongovernmental

organizations, and the public also must be consulted about the significance of

planned regulatory actions. OMB and the Small Business Administration

sponsored two meetings in 1994. The Clinton order requires Federal agencies

to develop a process to permit meaningful and timely input by State, local, and

tribal governments in the development of regulatory proposals containing

significant unfunded mandates. It prohibits the promulgation of regulations

that would create a mandate upon a State, local, or tribal government, unless

funds are provided by the Federal Government to pay direct costs incurred by

that government or the agency provides to OMB a description of: 1)the extent

of prior consultation with that government; 2) the nature of that government's

concerns, 3) written communications submitted by such government, and 4) the

agency's position supporting the need to issue the regulation. The order also

directs Federal agencies: to review and streamline processes for waiver

applications by State, local, or tribal governments, to attempt to increase

opportunities for use of flexible policy approaches in jurisdictions of applicants

where appropriate; and to render decisions to applicants within 120 days,

notifying and explaining decisions to deny such applications in writing.

EPA's Implementation ofExecutive Order 12866. An interagency analytical

work group is developing principles of analysis for use by all agencies and OMB

under Executive Order 12866. This group will decide such technical issues as

the rate that future costs and benefits will be discounted to estimate their

present value." Technical principles also were developed under the Reagan

executive orders. Agencies also are developing implementation guidelines. The

final draft of EPA's guidelines is expected to be completed by late 1994,

according to EPA's Regulatory Management Division. These internal EPA

guidelines will be reviewed by EPA's Science Advisory Board (SAB) and revised,

if necessary. The final report may be released in mid-1995.

Since guidelines are still being developed, it is probably premature to draw

conclusions about the effect of President Clinton's order. However, an OMB

report on agencies' implementation of the order in the first 6 months after

publication of the executive order indicates that OMB completed reviews for 42

significant EPA rules, including 21 proposed and 21 final significant rules. For

comparison, between 1981 and 1992, EPA issued 60 major final rules and 92

44 The discount rate was 10% under President Reagan and 7%under President Bush. A 10%

discount rate means that the present value of an asset or loss to be realized one year in the future

is 90% of its future value.

major proposed rules. However, because these figures are not truly comparable

they should be interpreted with caution. More comparable figures were not

available from OMB or EPA.

OMB issued guidance for agencies April 5: 1994, on how to develop the

regulatory plan. Draft regulatory plans are due at OMB June 1each year and

a unified plan for the Federal Government will be issued each fall with the semiannual regulatory agenda (the list of regulations agencies expect to issue in the

next 6 months.) The Clinton Administration issued its first regulatory agenda

on November 14, 1994 (59 Federal Register 57003).45

EPA submitted its first plan for review of existing significant regulations

on December 29, 1993. The plan describes a broad, bottom-up process by which

Agency managers and the Administrator will receive nominations for regulations

that should be reviewed and outlines the procedure the Agency will follow to

designate significant regulations for the final list to be included in the annual

Regulatory Plan. According to EPA's plan, EPA program offices will be more

directly involved in planning with less intercession by the EPA Office of Policy,

Planning and Evaluation than occurred during previous Administrations.

In a separate September 30, 1993 memorandum to heads of departments

and agencies on agency rulemaking procedures, President Clinton directed

agencies to examine their internal review procedures for regulations to

determine whether and how they might be improved and streamlined. All

agencies were required to report the review results to the President. EPA

announced June 15, 1994 that it had developed a rule-making process which

places regulations in one of three tiers based on the political sensitivity of the

rule and the number of media-specific program offices and statutes that would

be affected by the rule.46 The Tier 1 rules are most politically sensitive or

controversial and affect major stakeholders and several differentprograms in the

Agency. Tier 1rules require the most complex and detailed analysis and review

processes. According to Assistant Administrator for Policy, Planning, and

Evaluation David Gardiner, Tier 3 rules are not necessarily unimportant or

inexpensive, but they are less complicated to address and need less review by

senior Agency officials. The new process is meant to focus EPAresources where

they are most needed, to produce better Tier 1and Tier 2 rules with a stronger

basis in science, and to expedite the development of rules in Tier 3. Of the 352

regulations EPA will be working on through 1995, the Agency designated 27

Tier 1 rules, 158 Tier 2 rules, and 167 Tier 3 rules.

45

The Government did not publish a unified plan in 1993.

46 Bureau of National Affairs. Daily Environment Reporter, no. 118, June 22, 1994, p. AA-1.

For the complete text of EPA's Action DeuelopmatProcess: Regulatory and Policy Deuelopment.

Guidelines for Implementation, see Section E.

ANALYSIS

ISSUES IN ENVIRONMENTAL RISK MANAGEMENT

According to panelists in the 1993 CRS workshop on cost-benefit-risk

analysis, several developments have spurred congressional interest in the

potential utility of environmental risk analysis for informing risk management

decisions, including: complaints about inflexible, unprioritized, and "unfunded

Federal mandates" imposed on State and local governments, the growing cost of

compliance with environmental requirements to regulated industries, the need

to reduce the budget deficit while reauthorizing several of the major

environmental statutes, and consideration of proposals to elevate EPA to

departmental (that is, cabinet) status amidst allegations of inefficient and

ineffective EPA programs. Such developments led many to conclude that

Federal managers respons~blefor environmental protection were not doing

enough to control costs and should be held accountable; they should be required

to use risk analysis and economic analysis to demonstrate that proposed

regulations will efficiently reduce serious risks to human health or the

environment.

These proponents of risk analysis suggested that it could serve risk

management in two general ways: 1) as a basis for comparing and ranking

environmental hazards, permitting assignment of priorities for regulatory action,

and 2) as a basis for evaluating the effectiveness of specific regulations in

reducing risks relative to the costs of compliance and implementation. Debates

about these general approaches and more specific legislative proposals promoting

risk analysis revolved around five general issues: 1) How valuable is the

information provided by risk analysis for policymakers? 2) Is risk analysis a

scientific basis for environmental decisions? 3) Should risk analysis be used to

be based

quantify environmental and health benefits? 4) Should EPA

on relative risks and risk reduction opportunities? and 5) Given that EPA

already does risk analysis and economic analysis, would additional requirements

for analysis improve risk management?

How Valuable Is the Information Provided?

Most people seem to agree that risk analysis is a potentially valuable tool

for summarizing scientific information about the potential human health effects

of exposure to an environmental hazard.47 EPA Administrator Browner and

Dr. Lynn Goldman, Assistant Administrator for Pollution Prevention, Pesticides

and Toxic Substances, have testified repeatedly that they believe risk analysis

is a useful tool. Former Administrator Reilly and EPA's Science Advisory Board

(SAB), a group of independent scientists appointed by the Administrator who

review the scientific bases for EPA's decisions, also have praised risk analysis.

47 The information summarized in risk analysis generally is obtained from animal

experiments, studies of the effects on humans who have been exposed to hazards, short-term tests

on bacteria or living tissues of people or animals, and knowledge and theories about the structure

and behavior of chemicals.

The National Academy of Sciences, U.S. General Accounting Office, several State

and local government associations, regulated industries, and many academics

support the use of risk analysis by Federal agencies.

The apparently widespread agreement regarding the value of risk analysis

breaks down, however, when questions arise about how risk analysis should be

used and how much influence it should have on Federal regulatory decisions.

Opinions range along a continuum. At one end is the belief that risk analysis

and economic analysis should be conducted to inform every regulatory decision;

EPA should first regulate hazards found to pose the greatest risks, and the

reduction in risk due to the regulation should be large enough to justify the cost

of implementation and compliance. At the other end of the continuum is the

view that EPA should regulate all environmental hazards posing risks

unacceptable to the public, unless those responsible for creating the risk (or

those profiting from it) demonstrate that it is insignificant or justified, for

example, by the benefits provided and a lack of safer alternatives. In this view,

chemical releases to the environment are presumed to be unacceptable and

should be eliminated and the "polluter should pay" for compliance as well as for

toxicity testing and risk analyses, regardless of cost.

Other opinions about the value of risk analysis fall between these two

extremes. For example, Presidents Reagan and Bush required, and President

Clinton requires analysis of risks and costs for Federal regulations likely to have

a "major" or "significant" effect, respectively, on the Nation. The Clinton

Administration's requirements govern the current level of risk analysis at EPA.

State and local governments and regulated industries generally support a

greater role for risk and economic analyses in EPA's risk management decisions

to control compliance costs. In contrast, environmentalists and environmental

justice activists generally oppose legislation promoting EPA analysis of risks,

costs, and benefits, because they fear increased attention to risks will reduce

consideration of other important information, for example: about pollution

prevention opportunities or potential ecological or aesthetic impacts of

management options. These groups prefer the current level of attention to risk,

or less.

The CRS workshop panelists generally agreed that decisionmakers need

better information about risks, costs, and other aspects of regulatory decisions,

including consequences of regulatory options that are not quantifiable, and

thought that risk analysis might provide some of that needed information: if it

is appropriately adapted to decisionmakers' needs. For example, they noted that

risk analysis is useful for such analytic purposes as clarifying trade-offs (that is,

choices among mutually exclusive options each of which has both good and bad

potential consequences.)

The CRS workshop panelists disagreed about whether risk analysis as

currently practiced should be promoted through legislation. Disagreements stem

in part from the fact that the information value of risk analysis is highly

variable, depending on factors discussed in detail in a later major section of this

report.

Is It a Scientific Basis for Environmental Decisions?

Some promote risk analysis because they believe it is an objective scientific

basis for environmental policies and management. In their opinion: risk analysis

should be used to inform Federal agencies, Congress, and the public, in the hope

that it will lead to rational decisions and environmental protection strategies,

and replace what these observers regard as a piecemeal environmental policy

that developed in response to real and imagined crises. They favor legislation

mandating risk analysis by EPA and reports to Congress.

Opponents of such legislation argue that a mandate for risk analysis will

not improve environmental decisions, because it is neither pure science nor

entirely objective and, they assert, it is easily manipulated for political or venal

purposes. The CRS workshop panelists agreed that the results of risk analyses

are always debateable, and therefore, reliance on the results of risk analyses in

regulating perpetuates debates over how to regulate. In addition, they noted

that when risk is managed by comparing risk estimates for different problems

or for regulatory options, value judgments are necessary. This issue is discussed

under the heading "Should Priorities Be Based on Relative Risks and Rish

Reduction Opportunities ?

Opponents of legislation mandating risk analysis by EPA also claim that

the science used in risk analysis is immature and only is validated for assessing

the risk of developing cancer. In addition, they maintain that, for most

chemicals, health effects, and ecological effects, data do not exist because

scientists have not done the necessary studies, and without data, risk analysis

is meaningless. Even when data are available, they argue that human data are

usually only from studies of adult white males with occupational exposures, and

animal studies are insensitive to risks affecting fewer than 1% of test animals.

CRS workshop panelists agreed that risk analysis focusses attention on the few

chemicals that have been tested for toxicity and currently ignores chemical

mixtures, possible synergistic effects: and the effects of exposure to multiple

emissions sources. The validity of this claim is further discussed in the section

of this report titled "The Information Value of Risk Analysis."

CRS workshop panelists agreed that there is cause for concern about the

quality of quantitative estimates of risk, costs, and benefits. They said this is

because the quality of underlying data is questionable, analyses are difficult to

do well and vulnerable to human error: and results are presented without

accompanying information about the range of possible estimates that might be

produced by different scientists. For example, one panelist claimed that

although it is generally thought that risk analyses are deliberately conservative

and therefore protective of human health, this is not always true; some risk

estimates probably underestimate risk.

Many who promote risk analysis acknowledge that it has limitations but

believe they can be overcome through research and development of improved

analytic methods or through the establishment of guidelines for the conduct of

analysis and presentation of results. Even the imperfect information produced

by risk analysis today is valuable, some argue, and should be considered by

decision makers. Clear explanations of the assumptions and uncertainties

associated with the risk estimates and standardized methods would reduce the

chance of misuse or misunderstanding, proponents of the legislation believe.

The consensus among CRS workshop panelists was that risk analysis is quite

sophisticated and constantly improving. Several proposals in the 103rd

Congress would have required development and use of guidelines for risk

analysis, comparative risk analysis, and risk communication, as well as research

to improve risk analysis methods.

Should It Be Used to Quantify Environmental and Health Benefits?

Many policymakers would like risk analysis to be used to quantify risk

reduction potential of environmental management strategies. Some also want

to quantify benefits to permit comparison with the costs ofmanagement options.

Such information, they argue, would help identify economically efficient choices,

that is, how to get the "biggest bang for the buck." Some of these policymakers

believe that spending for environmental protection should be managed more

efficiently because it is a considerable amount of money, too much to spend

wastefully. Others believe spending for environmental protection is excessive,

squandering too many public and private resources to produce small or

uncertain gains in environmental protection and public health. Legislation

addressing these concerns would require EPA to conduct risk assessment and

economic assessment (either net benefit or cost-effectiveness assessments) of

regulation^.^^ Two exemplary proposals were offered by Senator Johnston in

the 103rd Congress as amendments to S. 171, a bill to elevate EPA to

departmental status, and S. 2019, a bill to amend and reauthorize the Safe

Drinking Water Act. Both amendments were accepted and the bills passed the

Senate. The requirements of these amendments are summarized and compared

to those of the Reagan and Clinton Administrations' executive orders in the

appendix to this report.

EPA's most severe critics assert that environmental regulations adversely

impact the national economy and international competitiveness of American

businesses. (For an analysis of the economic consequences of environmental

regulations, see CRS Report 94-175, Economic and Environmental

Policymaking: Two-Stepping to a Waltz.)

Many environmentalists and others object to quantitative cost-benefit-risk

assessment of environmental or health and safety laws and regulations on moral

or ethical grounds, claiming that benefits such as life, health, and an

aesthetically pleasing environment should not be equated with commodities

bought and sold in the market and valued in monetary terms. They want

benefits described fully, in qualitative as well as quantitative terms.

Others criticize proposals to rely more heavily on quantitative risk

assessment for political reasons. They charge that the complexity of the analytic

4s Various forms of economic analysis are discussed on page 4 and in footnotes 16 and 25.

process allows analysts and interest groups to conceal important value

judgments and questionable assumptions. Thus, critics of risk analysis

legislation argue, the results of risk analysis may be misleading to policymakers,

who are the ones charged with the responsibility for making the decisions.

Moreover, complexity allows an intellectual elite and those wealthy enough to

hire their expertise to dominate discussions and decisions: according to these

opponents of legislation.

Scientific objections also have been raised to quantitative assessment of the

benefits of risk reduction by those who believe that the economic theories and

methods employed to express the value of benefits in dollars are inadequate and

unreliable. For example, they contend that surveys asking how much one is

willing to pay to obtain a hypothetical reduction in risk are irrelevant to

important decisions about real choices in daily life. They argue that for real

decisions many factors are considered in addition to the magnitude of risk

reduction. For example, people may

consider the quality bf the benefits

and costs, characteristics of those

who bear the costs and receive the

benefits, the degree of choice

available to those exposed, timing of

the decision a n d health or

e n v i r o n m e n t a l consequences,

economic and social status of

individuals who benefit or potentially

suffer prior to and following the

decision, certainty of the risk and

cost estimates, and the perceived

necessity of choosing among the

proffered options. Some believe the

only valid approach to quantifying

society's values is case-by-case.

EPA's Science Advisory Board

agrees with these critics, in part. It

has criticized EPA's methods for

assuming that the future value of an

ecological resource must be less than

its present value. It concluded in a

1990 report that this policy inevitably

leads to depletion of irreplaceable

natural resource^.^^

Moreover,

reliance on measures such as the

public's "willingness t o pay"

exacerbates this problem, accordingto

49 U.S. EPA, Science Advisory Board. Reducing Risk: Setting Priorities and Strategies for

Environmental Protection. Washington, U.S. Environmental Protection Agency, September 1990.

p. 8.

the Board. For example, although many members of the public may not care

about wetlands. these nonetheless contribute to the larger ecosystem and are

valuable now and in the future, for such purposes as waterfowl and fish habitat

and to filter pollutants from water. Therefore, the Board concluded, techniques

need to be developed to assess the real long-term value of ecosystems.

Critics of quantitative economic analysis also claim that the costs of

environmental and health and safety regulations may be exaggerated, because

data often are provided by regulated industries, and EPA ignores the "learning

curve"; the critics believe real costs tend to go down with time as companies gain

experience in complying. In contrast to monetary values, unquantifiable

benefits are excluded from analysis, according to critics who are particularly

concerned about the discounting of benefits to future generations. CRS

workshop panelists noted that EPA has been unable to quantify benefits such

as clean ground water and that the Agency claims it does not know how to

evaluate costs and benefits of some of its programs.

The insensitivity of quantitative analysis to the value of environmental and

health benefits to future generations is an example of the general inability of

economic methods to account for uneven distributions of environmental risks

and regulatory costs and benefits among people, according to this view.

Advocates for environmental justice who seek to eliminate alleged

disproport~onaterisks borne by low-income and minority communities argue

that those subgroups may be burdened and other groups may reap a

disproportionate share of the risk reduction, while taxpayers and consumers

bear the cost of implementation and compliance. Instead of, or in addition to,

weighing total costs against total benefits. they want EPA to describe

distributions of risks and benefits and to consider inequities in developing

environmental regulations. Existing statutes may limit EPA's authority to

address this concern in regulations, however. For example, statutes sometimes

direct States to design remedies for risks.

Many promoters and critics of environmental risk analysis agree that the

results of quantitative risk assessments should not be reported as a single

number known as a ''point estimate." Point estimates of risk often are used,

they believe, (as did CRS workshop panelists) to focus attention on relatively

small risks to large populations (for example, the U.S. population as a whole)

rather than on large risks to smaller groups, such as workers, the economically

d~sadvantaged,or ethnic minorities. EPA often assesses and reports risk

estimates for vulnerable individuals, so this concern may be overstated.

Nevertheless, CRS workshop panelists agreed that the results of risk analyses

too often are reported as single numbers (point estimates). They would prefer

analysts present a range of risk estimates that might be obtained by different

scientists with different values and deliberately discuss scientific uncertainty so

that decisionmakers are not misled. The quality of the data underlying the risk

assessments also should be revealed, they agreed. According to some panelists,

cost data and estimates often are uncertain and should be presented as a range

of plausible values.

Still others charge that if the goal is to reduce costs of regulations, then

Congress should revise the statutes, not just add requirements for quantitative

analysis of risks and economic impacts, because EPA cannot consider costs of

regulationsunder some major environmental statutes that dictate the degree of

protection to be achieved. In this view, a mandate to analyze i n itself is

inefficient, because analysis will consume scarce EPA resources, sometimes

without purpose. Statutes that impose the greatest regulatory compliance costs

(and therefore would be the preferred targets for analytic requirements meant

to increase efficiency) prohibit consideration of compliance costs or health,

human welfare, and environmental benefits, according to OMB analyst Arthur

Fraa~.~O

Finally, many argue that formal quantitative cost-benefit-risk analysis

would delay EPA's issuance of some regulations, and delays will mean that lives

or habitats might be lost that could have been saved had the regulation been in

effect. Delays may even increase the cost of analysis, for example, if the Agency

misses statutory or judicial deadlines and environmental groups respond by

filing lawsuits, critics argue. Thus, they claim the net benefit of environmental

regulation might be reduced. On the other hand, if analysis is cut short to meet

deadlines, industries may charge that EPA regulations are arbitrary and

capricious. Depending on the statutory requirements, this may also lead to legal

challenges. Some critics believe that regulating based on risk is too time

consuming, resulting in delayed implementation of statutes enacted to protect

human health and the environment. They cite rationale for the Clean Air Act

Amendments of 1990 (CAAA) as an example. Before enactment of the CAAA,

section 112 of the Clean Air Act required EPA to regulate emissions of

hazardous air pollutants based on risk. Only 6 pollutants were regulated in 13

years under that Act. Dissatisfied with the pace of regulation, Congress

amended the Act in 1990 to require EPA regulation of emissions of 189

hazardous pollutants based on available pollution control technology.'1

CRS panelists agreed that data collection and risk analysis can delay

regulatory action and consume resources that might otherwise be used to

prevent, reduce, or redress environmental pollution. They noted a tendency for

agencies to analyze more than is necessary to inform risk managers, and advised

that risk analysis should cease when the cost of conducting the analysis and of

delayed decisions outweighs the potential value of additional information to

decisionmakers.

Those who practice cost-benefit-risk analysis have responded to some of

these criticisms by developing new methods. Policymakers also have responded

by modifying proposals. For example, the original Johnston amendment that

was incorporated into S. 171, a bill to elevate EPA to cabinet status, applied to

50 Luken and Fraas.

The U.S. Regulatory Analysis Framework: A Review. p. 100.

U.S. L i b r a ~ yof Congress. Congressional Research Service. A Legislatiue History of the

Clean Air Act Amendments of 1990. Volume 1.Washington, U.S. Go*. Print. Off., Nov. 1993, p.

860-863.

all final rules. The revised version of the Johnston amendment which was

accepted as a floor amendment to Senate-passed S. 2019, a bill to reauthorize

the Safe Drinking Water Act, required risk and economic analyses only for rules

with an annual impact of $100 million or more. In recent years, approximately

3.5 percent of EPA's published rules were expected to have an economic impact

greater than $100 million. Thus, the revised provision would have consumed

fewer resources.

Critics of cost-benefit-risk assessment are not necessarily opposed to

designing efficient environmental protection strategies; many argue that costeffectiveness is an acceptable form of analysis of alternative management

strategies. Cost-effectiveness analysis begins after the health and safety or

environmental goal (that is, the level of risk reduction desired) has been

established; the analysis then identifies the least cost means of obtaining the

benefits. The revised Johnston amendment (section 18 in S. 2019) appeared to

require cost-effectiveness analysis.

Should Priorities Be Based on Relative Risks?

EPA's experiments with comparative risk analysis, and similar State

experiments that were encouraged and funded by EPA, have generated

considerable interest among legislators. Many would like scientists to provide

information on how environmental hazards rank based on risk estimates,

believing that this information would facilitate decisions about legislative and

regulatory priorities. Some have suggested that Federal, State, and local

governments should enact budgets and allocate resources that tie the greatest

expenditures to environmental hazards posing the greatest risks. Others have

proposed that EPA provide perspective for viewing environmental hazards

within the context of other Federal programs; they would require EPA to

compare the risks of regulated environmental hazards with risks of other

regulated and unregulated hazards.

Those who object to comparative risk proposals contend that comparative

risk analysis is an unscientific, ad hoe procedure that lends a false air of

objectivity to the subjective judgments of scientists. They question whether an

exercise that combines the diverse views of an unrepresentative sample of

Government scientists to produce a single prioritized list of hazards is more

informative than a thorough recitation of the points on which scientists with

diverse viewpoints agree and disagree, such as may occur in a hearing or an

advisory committee. Priority setting requires value judgments. they argue, and

should be made politically; scientists are no more qualified than others to decide

whether, for example, the risk of a small decrement in intelligence for 3 to 4

million children exposed to lead-based paint is more or less significant than the

risk of approximately 13,600 deaths annually from lung cancer due to indoor

levels of radon gas. Which is worse, one person dying or 10.000 people feeling

sick most of the time? Does it matter if the one dying is a child, or a smoker?

It is even more difficult and less scientific to compare ecological risks with risks

to human health, these critics contend. According to this view, scientists are

expert only a t determining probabilities, and the public or its representatives

should be asked to contribute their expertise to the process of priority setting.

EPA's Science Advisory Board agrees with this view. I n Reducing Risk it

stated:

... because they experience those risks first-hand, the public should

have a substantial voice in establishing risk-reduction priorities.

Thus EPA should include broad public participation in its efforts to

rank environmental risks. Such participation will help educate the

public about the technical aspects of environmental risks, and it will

help educate the government about the subjective values that the

public attaches to such risks. The result should be broader national

support for risk-reduction policies that necessarily must be predicated

on imperfect and evolving scientific understanding and subjective

public opinion."

Critics of risk management based on risk comparisons alone (that is,

relative risks) also argue that risk is only one aspect of the environmental

problems. Some argue that risk comparisons often focus on average national

rates of death or disease and ignore equally important factors. such as the

acceptability of available risk reduction strategies or the fairness of the result.

Priorities should he based on all relevant information about hazards and

available management options, not on risk alone. and should be made

democratically, they assert. They reason that all means of risk reduction are not

equally desirable, citing diverse examples such as the wearing of a gas mask or

modification of a production process to reduce use of toxic chemical^.'^

Benefits provided by hazards also vary and should be considered, according to

this view, because risk is not always undesirable, and many risks, such as

driving a car or skydiving, are taken voluntarily either for the benefits that may

be obtained or for the thrill of the experience. Panelists at the CRS workshop

agreed that risk analysis, especially quantitative assessment, tends to emphasize

the magnitude and severity of consequences over other aspects of the situation.

such as whether exposure to the hazard is necessary or voluntary or whether

the people who profit from a hazard are the same as the people who are a t risk

or the people who pay to reduce risk.

In 1989, the NAS published a report that summarized the state of

knowledge about how best to communicate about risks.'* This report is

noteworthy primarily because it was a consensus document prepared by the

''

U.S. EPA, Science Advisory Board. Reducing Risk: Setting Priorities and Strategies for

Envimnmental Pmtection. Washington, U.S. Environmental Protection Agency. (1990) p. 24.

53 In general, risk may be eliminated, avoided, or reduced by eliminating, controlling, or

isolating the hazard. Alternatively, risk may be reduced without affecting the hazard by

preventing or reducing exposure of people or other living things to the hazard. A population also

might be compensated for any adverse effects experienced in the event of exposure. The risks of

specific hazards niay or may not be easily controlled in any of these ways.

"

National Research Council. Improving Risk Communication. Washington, D.C., National

Academy Press, 1989. p. 97.

Committee on Risk Perception and Communication of the National Research

Council (NRC), a large group of scholars and practitioners with widely differing

political perspectives. One topic addressed by the report was how to employ risk

comparisons. According to the Committee: risks should only be compared when

risks are comparable; risks are comparable when they "exhibit qualitative

characteristics that are reasonably similar."" This means that the most

comparable risks generally are experienced in the same way by the same

population for the same reason. For example, the risks of riding a bicycle,

walking, or being driven to school may be easily compared. In contrast, the risk

of being struck by lightening is not comparable to the risk of traveling, because

although both are familiar, the former derives from a natural phenomenon

beyond human control; in addition, an individual's risk of being killed by

lightening is greatly reduced with little effort, for example by remaining indoors

during storms or employing devices to deflect electrical charges. Several

qualitative characteristics of hazards (risks) are particularly important. to

comparability, according to experts inchding: the magnitude and severity of the

potential harm, likelihood of harm, voluntariness of exposure, immediacy of

effect, trustworthiness of people managing the hazard (risk), population likely

to be exposed, concentration of effects in time and space, population likely to

benefit from the activity that creates the risk, and the degree of familiarity of

(or adaptation to) the hazard. In addition, the NRC committee cautioned

against appearing to select risks for comparison that "minimize or otherwise

trivialize the risk in question," for example, by comparing a hazard (risk) like

lightening that seems highly unlikely to inflict personal harm to one that is less

well understood by scientists and causes deep distress to some individuals, like

hazardous waste sites.j6

Many proponents as well as opponents of risk comparisons agree that if

hazards are compared based on risk estimates, risks to subpopulations should

be considered as well as risks to the population as a whole. In addition, some

propose that distinguishing characteristics of hazards that may affect the

acceptability of risks should be highlighted. Committees ofjurisdiction reported

several bills in the 103rd Congress that required risk comparisons as well as

identification of distinguishing characteristics of hazards and consideration of

risks to vulnerable subpopulations.

Would Additional Analysis Improve Risk Management?

Proponents of risk analysis, comparative risk analysis, or economic analysis

of the potential effects of environmental regulations have various options for

promoting the activity. This section examines selected potential impacts of

seven general approaches: 1) authorizing or requiring EPA to analyze

regulations, 2) authorizing or requiring EPA to consider costs, relative risks, or

the relationship between costs and benefits in making regulatory decisions, 3)

requiring EPA to reDort to Congress on the results of regulatory analysis: 4)

55

Ibid.

authorizing additional funding for analysis, 5) mandating research and

development of analytic methods, the database, or guidelines for risk assessment,

6) establishing guidelines for risk assessment or the presentation of analytic

results, or 7) requiring peer review.

In general, provision of statutory authority to conduct or to consider the

results of analyses probably would generate less controversy than a mandate,

which the Executive might oppose. Some argue that constraints on the

prerogatives of managers may violate tenets of good management by reducing

the flexibility needed to allocate resources efficiently and to adapt quickly to

changing circumstances.

The potential effect on EPA of legislation authorizing or requiring

economic or risk analysis or consideration of risks, relative risks, costs, andlor

benefits in developing regulations would depend largely on which regulations

were to be analyzed. Legislation affecting only "major" or "significant"

regulations might have relatively less impact, because EPA already is required,

to the extent permitted by law, to conduct and consider the results of costbenefit-risk analysis for all regulatory actions that are "significant." Statutory

requirements would apply even in the absence of an executive order,

Legislation requiring analysis of additional regulations could provide

information that now is not readily available. Information about alternative

regulatory strategies and their potential consequences (that is, implementation

and compliance costs? the risks avoided, and other benefits) could help

policymakers and the general public set priorities, allocate resources, and

evaluate existing Federal laws and programs.

On the other hand, additional requirements for analysis would require

additional resources. The Congressional Budget Office has estimated that it

would cost $20 million to analyze all "non-routine" EPA regulatory actions

(approximately 50 percent of all regulatoq actions.) In the absence of additional

resources, the increased number of required analyses might force EPA to reduce

the quality of analysis for "significant" regulations. If EPA were to sacrifice

analytic quality underpinning its regulations, it might be more vulnerable to

legal challenges from regulated entities.

Additional private expenditures also might result from new statutory

requirements, because EPA's analyses often use data provided by regulated

industries. To supply data for additional analyses, EPA might require additional

data collection and reporting by such industries.

Additional requirements for analysis might delay EPA implementing

provisions of major environmental statutes. Any such delays would likely anger

environmental groups, who might seek to judicially compel EPA action. Delays

could also affect regulated industries, for example, if the regulations delayed

were meant to clarify or reduce existing regulatory requirements.

Such delays or increases in the cost of regulating might be reduced,

however, if legislation authorized analyses that varied in detail in proportion to

the significance of regulations. CRS workshop panelists believed that Federal

agencies sometimes analyze more than is necessary to inform risk managers. To

the extent that this is true, EPA might be able to reduce the overall cost of

promulgating regulations, if Congress gave it the authority to vary the depth of

analyses.

A Federal mandate to conduct risk analysis to support regulations also

might affect data collection, according to CRS workshop panelists. They

cautioned that a mandate might discourage industries from doing research and

collecting data, because once data are produced, for example, on chemical

toxicity, EPA is perceived as being more likely to conduct risk analysis and to

regulate.

Requiring analysis or consideration of risks and costs would not necessarily

prevent regulation of very small risks. Nor would such a requirement prevent

promulgation of regulations that are costly for regulated industries or State or

local governments. Since 1981, EPA has almost invariably conducted risk and

economic analyses in developing its more costly regulations. Critics have

claimed that in come cases the costs appear high relative to the risks they

address. Many of EPA's critics believe the Agency is simply too protective of

health and the environment. However, an equally plausible explanation for

such regulations may be that authorizing statutes constrain EPA (or are

interpreted by EPA to constrain it) from considering costs or the magnitude of

risk when setting the standards or safety criteria.

If it is determined that some statutes require EPA to regulate insignificant

risks regardless of cost, Congress could choose to override existing statutory

authority by omitting the standard "saving"clause from legislation that requires

consideration of risks, costs, or cost-effectiveness of regulations. However, this

would likely require review of each potentially affected environmental statute:

an overriding statute might have unintended consequences that would be

difficult to predict. In addition, significant opposition might be expected to such

legislation because it might appear to reduce the overall level of protection of

the environment and public health. Alternatively, Congress might consider

amending the requirements for analysis in each environmental statute.

Instead of authorizing or requiring EPA analysis or consideration of risks,

costs, or relative risks, legislation could require periodic EPA reports on the

results of such analyses of environmental regulations; such reports might assist

Members with oversight responsibilities or alert Members on authorizing

committees to provisions in authorizing statutes in need of reexamination. Such

reports arguably would consume relatively less of EPA's resources and might

serve additional purposes, for example, to inform the general public about

Federal programs.

Given the historically high level of EPA involvement in risk and economic

analyses and the fact that EPA has conducted analyses of proposed regulations

for two decades. often on its own initiative, Congress might conclude that

inadequate funds help explain perceived regulatory failures. In this case,

Congress might choose to provide additional funding targeted to EPA's analytic

activities; more and better analyses and better regulatory decisions might be

obtained. A similar argument might be made for eliminating statutory deadlines

contained in authorizing statutes: by providing additional time for analysis

prior to promulgation of regulations, Congress might enable more

comprehensive analyses and more rational decision processes.

Because the NAS has concluded that the greatest improvement in risk

analysis might be obtained by improving the quality and comprehensiveness of

knowledge, Congress might choose to authorize or mandate EPA attention to

research and development.j7 Analytic methods, data collection, or guidelines

might be targeted for development. Such legislation would likely generate less

controversy.

Finally, those who believe that EPA is dominated by political rather than

scientific considerations might prefer to impose scientific guidelines or standards

for risk assessment or the presentation of analytic results. Such guidelines or

standards could be mandated by Congress: to be developed by EPA, another

agency, an interagency workgroup, or an outside body with the relevant

expertise. It is questionable, however, whether any group could develop detailed

guidance that would be applicable to the array of environmental problems and

accepted as "scientific"and unbiased. Many groups have tried to accomplish this

task and failed over the last 25 years. In addition, detailed guidance may be

difficult to update quickly enough to keep up with rapid changes in science.

Alternatively, Congress could encourage or require development of a system

for independent peer review of risk analyses and economic analyses that

underpin proposed regulations. Peer review is a familiar and well-established

practice among scientists and it generates little controversy. Scientists have

found no other means to be as effective for enforcing high standards of quality

for scientific publications. Only peer review has been found to be flexible

enough to respond quickly to changes in scientific knowledge and methods.

THE INFORMATION VALUE OF RISK ANALYSIS

There appears to be general agreement that policymakers need more

information to inform risk management decisions. Views diverge, however,

regarding the type of information needed and whether it is best provided by risk

analysis. The debate might benefit, therefore, from explicit consideration of

what information risk analysis provides.

57 NAS, National Research Council. Risk Assessment i n the Federal Gouenment: Managing

the Process. Washington, DC, National Academy Press, 1983. p.5-6.

Key Factors Determining the Quality of Information Provided

Under ideal conditions, a risk analysis might gather, organize, and

summarize all of the important information relevant to hazard management.

It would include qualitative as well as quantitative information about the

characteristics of the hazard, exposed population, potential effects, and potential

effects of available management strategies; describe scientific uncertainties; and

provide a range of forecasts based on alternative. scientifically plausible

assumptions about the relationship between exposure to the hazard and

potential health or environmental effects.

I n practice, however, the type of information provided by environmental

risk analysis varies from abundant (but often with critical gaps) to superficial,

from accurate to biased, because risk analysis is a field of inquiry rather than

a single method. Risk analysts study hazards using a variety of procedures

adapted from other fields of study. Sanitary and industrial engineering,

psychology, economics,sociology, statistics, and operations research, for example,

have provided models and procedures used by risk analysts. Because some of

these methods were developed for different purposes (for example, to determine

actuarially sound life insurance rates), they often have not been scientifically

validated for, and are difficult to apply to, environmental hazards. The defining

characteristic of methods used in risk analysis is a reliance on past experience

to predict future events. If there is no past experience, there are no data and

there can be no meaningful analysis.

A second consideration is that risk analysis is a tool for evaluating what

is known about things that cannot be known with certainty -- that is, it is only

used to describe the effects of hazards that are unpredictable due either to their

randomness or to lack of data or scientific understanding of the principles that

govern their occurrence. Its methods were developed to allow agencies to

implement legislation despite incomplete data and scientific understanding.

Risk analysis always produces an estimate, never an exact prediction, and

estimates vary in quality. (Weather forecasts, for example, are relatively wellinformed risk estimates.) Thus, risk analysts can only discuss the likelihood of

various outcomes and, at best, may present risks as statistical probabilities. If

there is no past experience with a hazard, there is no basis for any forecast,

much less a quantitative estimate (although risk estimates may be made based

on conceptual models or experiences with similar hazards.) If there is

experience but no record to ensure accurate recall, risk estimates are likely to

be unreliable.

Finally, there are times when risk analysis can provide no information at

all, because some environmental hazards and effects defy risk analysis, even

when data are abundant. Science cannot always explain complex or unusual

relationships between the exposures to hazards and the potential health and

ecological effects. For example, chemicals in the environment that suppress

immune systems may not be recognized as hazards, because their effects will be

seen as a variety of health problems, each of which may be attributed to a

different cause. In other cases, only people with certain innate characteristics

may be affected by exposure to a toxic substance.

Quality of the Database

The quality of available data largely determines the quality of information

that can be provided by a risk analysis. Thus, the NAS concluded in 1983 that

the most effective way to improve risk assessment in the Federal Government

is to improve the quality and comprehensiveness of knowledge." The current

data situation was summarized in a recent report by the Congressional Office

of Technology Assessment (OTA).55 It estimated that 62,512 chemicals are in

commerce in the United States today, and another 1500 new chemicals enter the

market annually. Environmental experts believe that "good data on health

effects exist for only 10%of commercial chemicals, according to OTA. Of course,

many of these new chemicals that have not been tested adequately may be

harmless, but according to NAS, data are also inadequate for many chemicals

that Congress has deemed "hazardous." NAS recently evaluated the availability

of data for risk analyses for 189 hazardous air pollutants and concluded EPA did

not have "sufficient data to assess fully the health risks ... within the time

permitted by the Clean Air Act Amendments of 1990."60 OTA reported that at

least 12 Federal agencies are currently conducting health risk assessment

research to fill the gaps in scientific understanding, but their efforts are poorly

coordinated and supported at a level that is less than 0.5 percent of the cost of

complying with EPA regulations. (This figure does not include research relevant

to the analysis of ecological risks.)

Risk Assessment Methods

Environmental risk analysis is a relatively new and immature field, and

this is evident in the state of development of its methods. The most developed

and well established analytic methods probably are those concerning acute

effects; for chronic effects, the most developed are those used to assess human

cancer risks of chemicals. These methods evaluate and model the results of

animal experiments and human studies to estimate the risk that people will

develop cancer following various levels of exposure to individual chemicals.

Many of EPA's environmental standards, emission limits, and quality criteria

are based on the results of cancer risk assessment. Other categories of risks,

such as mutagenicity and immunotoxicity are rarely assessed, representing a

substantial hole in risk assessment methodology.

5S NAS, National Research Council. Risk Assessment i n the Federal Gouernment: Managing

the Process. Washington, DC, National Academy Press, 1983. p.5-6.

55 U.S. Congress, Office of Technology Assessment. ResearchingHealth Risks; OTA-BBS-570.

Washington, U.S. Govt. Print. Off., Nov. 1993. 228 p.

60 NAS, National &search Council. Science and Judgment i n Risk Assessment. Washington,

National Academy Press. (1994)p. 8-13,

Even cancer risk assessment is beset by the absence of scientific data and

theories. The scientific judgments and inference choices that are used to fill

these gaps are controversial, because they are shaped by a scientist's values,

different scientists have different values, and different choices lead to different

risk estimates. Many social scientists who study technical controversies believe

that "ostensible disputes over the science are, in reality, over the values inherent

in the assumptions."61 The NAS has identified at least 50 inference choices

required in conducting a cancer risk assessment that cannot be made on a

scientific basis, and many of these decisions have strong implications for public

policy. For example, analysts must determine how much evidence is enough to

conclude that a chemical is a possible human carcinogen. Some want strong

evidence prior to classification; they prefer to err, if necessary, by withholding

judgment until they are sure a problem exists. Others would act on the first

available evidence; they prefer to err on the side of alerting public officials to a

possible risk.

To reduce the influence of values on individual risk estimates and to

ensure that the assumptions and inferences choices made by agencies are clearly

expressed, NAS has suggested that Federal agencies should develop and adopt

guidelines for risk assessment. EPA adopted the first guidelines for cancer risk

assessment in 1977. A revision was promulgated in 1986, and a second revision

is in progress.

EPA also established guidelines in 1986 for analyzing: the risk that a

chemical will cause mutations affecting future generations or damage to human

deveIopment; human exposure to a chemical; and human health risks of

chemical mixtures. The Agency revised its guidelines for developmental

toxicants in 1991 and for exposure in 1992. EPA's cancer risk assessment

guidelines currently are being revised, In addition, guidelines are being

developed for analyzing neurotoxicity and reproductive and for exposure

measurements. The Agency has proposed a rough framework for ecological risk

analysis based on recommendations of the NAS.6Z NO guidelines are

established for assessing the risk of a chemical's adverse effects on the nervous,

respiratory, or immune systems, or for other lethal and sublethal effects. There

is no established scientific procedure for assessing ecological risks or for

conducting comparative risk analysis.

Guidelines are necessary to ensure that risk assessments are conducted

consistently and, therefore, are more easily evaluated by independent experts.

Rushefsky, Mark E. "Assumingthe Conclusions: Risk Assessment in the Development of

Cancer Policy." Politics and the L i p Sciences, v. 4, (August), 1986. p. 31.

62 U.S. EPA, Risk Assessment Forum. Framework for Ecological RiskAssessment.EPAi63OiR921001. Washington, U.S. Environmental Protection Agency, February 1992. 41 p.

U.S. EPA, Risk Assessment Forum. Report on the Ecological Risk Assessment Guidelines

Strategic Planning Workshop. EPAf630iR-921002. U'ashington, U.S. Environmental Protection

Agency, Februaly 1992. 57 p.

U.S. EPA, Risk Assessment Forum. Drafi Ecological Risk Assessment: Issue Papers.

EPA/630/R-94/004A. September 1993. 544 p.

(Independent evaluations of risk assessment by qualified experts, or peer review.

is the traditional means by which scientists ensure adherence to professional

standards of quality in practice.) However, guidelines do not ensure that equally

competent scientists will agree with the risk estimates produced by the process.

In fact, some scientists criticize EPA's risk estimates for carcinogens because

they do not agree with the guidelines or think different rules should apply to

certain chemicals. Controversy surrounds risk assessment only partly because

the field is so young that its methods have not been studied thoroughly and

adequateIy validated. NAS concluded in its 1983 report:

Dissatisfaction with the actions of [Flederal regulatory agencies is

often expressed as criticism of the conduct and administration of the

risk assessment process. The Committee believes that the basic

problem in risk assessment is the sparseness and uncertainty of the

scientific knowledge of the health hazards addressed, and this

problem has no ready solution. The field has been developingrapidly,

and the greatest improvements in risk assessment result from the

acquisition of more and better data, which decreases the need to rely

on inference and informed judgment to bridge gaps in knowledge" (p.

Thus, controversy will not disappear when risk analysis matures, because it

grows inevitably from value judgments based on different ethical systems and

63 Ibid.

inference choices embodied in agencies' science policies which make risk

assessment possible as well as from the special interests that stakeholders have

in EPA's risk estimates.

LEGISLATIVE ACTMTIES

LEGISLATION IN THE 103RD CONGRESS

More than a dozen bills and amendments on environmental risk analysis

were introduced in the 103rd Congress. One was enacted, but it applied to the

Department of Agriculture, not EPA. Nine other bills were passed by one

chamber or reported by the committees of jurisdiction.

Arguably, the most influential risk proposals in the 103rd Congress were

offered by Senator Johnston. The two "Johnston amendments" would have

required EPA to analyze risks, costs, and benefits for proposed and final

regulations. The original "Johnston amendment" was the first risk legislation

debated on the Senate floor, and it was adopted on April 29,1993, by a vote of

95 to 3. The amendment was incorporated as section 123 in S. 171, a bill to

raise the U.S. Environmental Protection Agency (EPA) to department (cabinet)

status. A similar proposal that would have amended a House bill to elevate EPA

to the cabinet (H.R. 3425) was unsuccessful, however. The rule for

consideration of the reported bill was defeated on the House floor, reportedly in

part because the rule would have prevented introduction of non-germane

amendments, such as that on risk and cost-benefit analysis.

During the second session of the 103rd Congress, Senator Johnston

addressed some of the key concerns of House Members when he introduced a

revised version of his amendment. It was adopted by the Senate during the May

18,1994 floor debate on Senate-passed S. 2019, a bill to amend and reauthorize

the Safe Drinking Water Act. Both amendments are summarized in the

Appendix. The Appendix also compares the amendments' provisions with

requirements in President Clinton's executive orders, which some argue,

eliminate the need for legislation.

The Senate also passed S. 2019, amending and reauthorizing the Safe

Drinking Water Act, which included in 515 a revised version of a bill originally

introduced by Senator Moynihan (S. 110) that would have requiredEPA to rank

pollution sources based on risk. The Senate also adopted House-passed H.R.

820. the Kational Competitiveness Act of 1993, after amending it to require all

Federal agencies to prepare and publish an economic and employment impact

statement for each rule and notice published in the Federal Register. The House

passed H.R. 1994 reauthorizing EPA's environmental research program and

establishing a core research program on risk reduction, and H.R. 3870

promotingresearch, development and deployment of environmental technologies

and requiring OSTP to establish a protocol for conducting and reporting the

results of risk assessments which are conducted to inform efforts to prioritize

research projects. The House Committee on Science, Space and Technology

reported H.R. 4306, amended: Oct. 7, 1994 (H.Rept. 103-857). It would have

established a program in EPA to develop risk assessment guidelines, oversee

their implementation: provide for scientific peer review, identify and conduct

research on risk assessment methods, and develop risk characterization guidance

and oversee its implementation. A pilot program on comparative risk analysis

and an interagency coordinating process in OSTP also would have been

established by H.R. 4306.

For more detailed information on these and other proposals in the 103rd

Congress, see CRS Report 94-716, Comparison ofEnvironmenta1 Risk Provisions

in the lO3rd Congress.

OUTLOOK FOR THE 104TH CONGRESS

The House Republican Contract with America promises that within the

first 100 days of the 104th Congress risk legislation will be introduced, debated,

and voted upon in the House. Title 111 of the "Job Creation and Wage

Enhancement Act of 1 9 9 5 (JC'NEA), one of the draft bills distributed with the

House Republican contract, appears to integrate several of the proposals that

saw action in the 103rd Congress. For example, the JCWEA title I11 contains

a slightly modified version of the original Johnston amendment, with coverage

expanded beyond EPA to include all Federal agencies that promulgate

regulations concerning human health and safety or the environment.

In addition, some proposals that did not advance in the 103rd Congress

may have more vigor in the 104th; for example, almost all the provisions of H.R.

2910, the Risk Communication Act of 1993: are found in the JCWEA title III.

It would require Federal agencies to distinguish explicitly between scien

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