THE EPA AT FIFTY SYMPOSIUM: KEYNOTE ADDRESS.

• Author: Wheeler, Andrew

Good afternoon, it is a pleasure to be with you today. Thank you to Professor Jonathan Adler for the introduction. We have known each other for at least twenty years. I also want to thank the University for hosting me. It is great to be back at Case Western. I graduated with my undergraduate degree here in 1987. I almost went to law school here. As I was making my decision, my car was stolen for the second time from just outside my dorm. The campus has changed a lot since the 1980s; it is a lot safer. But when it was stolen for the second time, I decided I wanted to be in a different city, and I went to Washington University in St. Louis. I know I would have had a great time if I would have come here for law school, though.

Next year, the Environmental Protection Agency (EPA) turns fifty, and that is why we are here. To borrow from the old Henny Youngman joke, you know you're fifty when you are warned to slow down by your doctor instead of the police. (1) The Agency has matured, but we are not slowing down anytime soon. We have a lot of important work to do. For my remarks today, I would like to focus on two EPAs: The EPA of the past forty-nine years, and the EPA of the next fifty.

I do not think there is any question that our nation has made tremendous environmental progress over the past forty-nine years. From 1970 to 2018, the combined emissions of the main six air pollutants dropped 74%, while the U.S. economy grew by 275%. Emissions of all these pollutants have continued to decline under President Trump. (2) In the 1970s, more than 40% of our nation's drinking-water systems failed to meet even the most basic health standards. (3) Today, over 92% of community water systems meet all health-based standards, all the time. (4) That is not to say the other 8% fail to meet the criteria all of the time; (5) they may have a day here and there that they do not, but we are working with those communities. Today, the United States has the cleanest air on record, and we are ranked number one in the world for access to clean drinking water. (6) My point here is not to gloss over our challenges, but to demonstrate that the efforts started in the 1970s to clean up our air, land, and water have been largely effective. We all know that there is still much more work to be done. We face significant challenges--some that have plagued the Agency for forty-nine years. But to properly understand and address these challenges we must go back to our founding.

The EPA is the child of a large executive branch re-organization. President Nixon transferred fifteen existing units from four government agencies into a new independent agency. (7) Air, Solid Waste, Radiological Health, Water Hygiene, and Pesticide Tolerance were transferred from the Department of Health, Education, and Welfare; (8) Water Quality and Pesticide Label Review came from the Interior Department; (9) Radiation Protection Standards came from the Atomic Energy Commission and the Federal Radiation Council; (10) and Pesticide Registration came from the Department of Agriculture. (11) All these incoming employees had to learn new policies and protocols--not to mention keeping pace with the slew of new environmental laws passed in the 1970s. (12) One result of piecing the Agency together in this fashion is that we tend to have a very siloed mentality. And that has continued throughout the last forty-nine years. The air office operates in its silo; the water office in its silo; and so forth. This is a mentality we have struggled with for the past forty-nine years. And it impacts our rulemakings and how well we interact with states and the regulated community. We have to break down those silos, and that is what we've been working on.

I think our best effort in this regard has been the PFAS Action Plan. (13) The Action Plan is the first time we utilized every single one of our program offices to put together a multi-media, national-research and risk-communication plan to address an emerging chemical of concern. (14) That had never happened in the forty-nine years of the Agency. We issued that plan this past February, and we are looking at all of our statutes and we are moving forward to protect the public from PFAS. (15) PFAS get into the drinking water and it is an extremely difficult environmental issue to grapple with. And we are using all of our statutes to try to address it. (16) PFAS bioaccumulate. (17) They have an impact on internal organs, including your liver and kidneys. (18) There are over 5,000 different PFAS: 602 have been in commerce over the last ten years in the United States, and 1200 overall have been approved in the United States in commerce over the last ten to twenty years. And they are hard to detect; you cannot use the same detection method for all the PFAS and you cannot use the same clean-up methods for all of them. (19)

We are moving forward with the process to develop a national drinking-water standard for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS). (20) We have begun the regulatory-development process for listing PFOA and PFOS as hazardous substances under the Superfund statute. (21) And in April, we released for public review and comment the interim groundwater-cleanup recommendations for sites contaminated with PFOA and PFOS. (22) All these actions required coordination across program offices, and I am very proud of the progress we are making in this respect.

While the Agency has been slow to change in some respects, in other respects, certain changes have been an important and necessary part of the Agency's maturation. Forty to fifty years ago, the EPA was the primary enforcer of our nation's environmental laws. The Clean Water Act, the Clean Air Act, and our other core environmental laws always envisioned a major role for the states, but it took states time to build up their programs.

And early on, the EPA had to throw its weight around to prove its authorities were legitimate. Here is what William Ruckelshaus, the first EPA Administrator said during his confirmation hearing: "As far as I view the mission of this Agency and my mission as its proposed Administrator, it is to be as forceful as the laws that Congress has provided, and to present firm support for enforcement by the States." (23) He meant what he said. In its first year alone, the EPA referred 152 pollution-related cases to the Department of Justice for prosecution. (24) And only a week after becoming the first Administrator, Ruckelshaus announced that the EPA was serving the cities of Atlanta, Detroit, and Cleveland with 180-day notices that directed them to stop violating federally sponsored state-water-quality standards. (25) In response, Cleveland Mayor Carl Stokes accused Ruckelshaus of making a politically motivated assault on Democrat-controlled cities. (26)

This sounds vaguely familiar to the response of a certain state out West to some of our recent actions. Contrary to what some may think, our actions are not unprecedented. The EPA has been doing this since week one of its...