I Don’t Make the Rules, I Comment on Them

May 12, 2023 | 11:19 am
Against a cheery yellow-toned background of people and seats, in an auditorium of some sorts, a black microphone is foregrounded, looking as though it's waiting for you to say something into itJoao Cruz/Unsplash
Christopher J. Gillespie, M.S., N.E.S.A.

It is one thing for Congress to pass a law. It is entirely different thing for a federal agency to make a rule (in other words, regulations) in accordance with that law.

You may be thinking, “What have federal agency rules ever done for me?” One example that might literally hit home is lead poisoning prevention.

While lead has historically had many uses as an additive to products such as paints and gasoline, it is also a very dangerous and cumulative toxicant. It is particularly harmful to children under the age of six.

Although Congress passed legislation to ban lead-based paint in 1971, it did not go into effect until 1978.

Thankfully, the federal rulemaking process offered additional avenues for combating lead poisoning.

Between 1972-1978, federal agencies such as the Environmental Protection Agency (EPA) and the Centers for Disease Control and Prevention (CDC) were able to initiate health-based regulations to remove lead from gasoline and drinking water.

Today, rulemakings surrounding lead have evolved into full-fledged prevention programs tasked with preventing childhood lead poisoning and protecting disadvantaged communities. So, if you drink water, pump gas, or frequent buildings with painted interiors—you are connected to the federal rulemaking process.

Since its inception in 1946, the Administrative Procedure Act (APA) has provided federal agencies with a standardized framework for interacting with the public—which includes 1) requiring agencies to notify the public of regulatory proposals; and 2) allow for public comments before any rule can be changed or adopted. These comments are typically accepted in written format, but sometimes agencies will hold public hearings.

This is known as “The Notice and Comment Rulemaking Process,” and according to the Office of the Federal Register, thousands of rules undergo this process and are finalized every year.

For one of these rules, I testified at the EPA’s “Virtual Public Hearings on the Risk Management Program Safer Communities by Chemical Accident Prevention (SCCAP) Proposed Rule in September 2022.

I rule, you rule, WE RULE

As a member of the Science Network, I was made aware of the Risk Management Program (RMP) rulemaking.

For context, Safer Communities by Chemical Accident Prevention is a rule related to the RMP and issued by the EPA, in accordance with the Clean Air Act. The RMP regulates nearly 12,000 highly hazardous chemical facilities that use 255 hazardous substances. The rule requires these facilities to submit risk management plans to prevent chemical disasters.

It is important that people like me let the EPA know if these guidelines work for our communities.
The proposal added requirements for certain RMP facilities to assess the risk of “natural hazards” like extreme weather in their risk management plans. Under the RMP, EPA regulates facilities differently based on their program level (1-3). Program 1 facilities are deemed by the EPA as imposing limited threat to “public receptors” such as homes, schools, hospitals, and other institutions used by the public under “worst-case release.” As a result, the EPA proposed that only Program 2 and 3 facilities should be required to assess natural hazards.

A screenshot from my comment during the Safer Communities by Chemical Accident Prevention rulemaking process.

In my comment, I mentioned that 206 of the 255 substances in question are chemically-organic substances, 49 are chemically-inorganic substances—and all of them are vulnerable to climate risks, especially inundation and water intrusion. Once released, these organic and inorganic substances are persistent in the environment. Studies show that chemical pollutants can shift the acidity, salinity, and biodiversity of entire ecosystems—directly impacting greenhouse gas emissions.

Given the increased degree of rainfall events and natural disasters in the U.S. (e.g., four “1-in-1,000 Year” rainfall events in the past summer alone), I suggested that the EPA extend the requirement to assess natural hazards to all facilities, across all program levels. In an increasingly climate-sensitive world, any facility that contains one or more of these substances must take every precaution to prevent further chemical pollution.

While the final rule has not yet been released, I think my comment will make a difference. This is partly because in accordance with the Administrative Procedure Act, agencies are “legally required to respond to every unique, fact-based comment.”

Outside of the comment itself, I learned a lot about the ins and outs of comment writing and federal rulemaking.

And as you may have guessed, I have many comments (pun intended) on my experience.

Rulemaking is hard, but commenting is harder.

Wow!—for thousands of rules, that is a lot of comments. But exactly how many comments is it? Let’s use my SCCAP experience as a baseline:

  • I was one of 45 pre-registered speakers scheduled to provide testimony on day one of a three-day public hearing.

[45 testimonies x 3 days = 135 testimonies]

  • At designated times during the event, we were each invited to share our three-minute testimony via device, microphone, or telephone. It is worth noting the EPA was notably strict on the three-minute cut-off time.
  • In addition, 57,903 written comments were submitted through regulations.gov, an eGovernment platform that allows members of the public to participate in proposed rulemakings.

[135 testimonies + 57,903 written comments = 58,038 total comments]

Thus, I estimate that around 58,000 comments were submitted. For reference, the RMP directly impacts 1 in 2 Americans. There have been over 1,500 reported chemical disasters—directly harming thousands of Americans and endangering millions more—yet only 58,000 comments were submitted.

You might be thinking, “more people should be commenting,” and honestly—I agree!

Luckily, I learned a few things that you might find helpful if you choose to speak up/weigh in/get involved:

  1. Tell your story: Your personal experiences are important. Tell the agency how the proposed rule might threaten or protect your freedoms, health, and safety. Comments like these provide an important element of accountability to the rulemaking process.
  2. Use your background: Whether your expertise is in art or aerodynamics, cooking or carpentry, science or surfing, your knowledge can likely contribute to rulemaking. For example, the current RMP regulates 255 hazardous substances. An artist could pull from their professional training regarding the importance of chemical safety when working with dangerous substances (i.e., turpentine, shellac, toluene, etc.) to suggest additional chemicals that should be regulated.
  3. Respond to counterpoints: While the SCCAP rulemaking had a great deal of public comments around strengthening the rule, there were also comments from those who would rather see it dissolved. Carefully evaluating these arguments, discrediting fallacious claims, and presenting contrary evidence could make a whole “rule” of difference.
  4. Partner with others: There is strength in numbers and rulemaking is no exception. Collaborating with local organizations, community groups, and value-aligned individuals is a great way to produce a strong comment.

In conclusion, the rulemaking process is less than 80-years-young with plenty of opportunity for expansion. It is easier than ever to contribute comments on proposed rules. We can now submit comments online, participate in virtual webinars and public hearings, and partner with community-partners to amplify disenfranchised voices.

It is important to remember that anyone can weigh in on a comment period. Even people who are not U.S. citizens are allowed to contribute.

One way to stay up to date on comment periods is to frequent the regulations.gov website to see what’s trending. Another way is to join the UCS Science Network, and partner with thousands of scientists and community-based partners to help implement meaningful change.

Currently, UCS is hosting workshops and webinars around the rulemaking for Ethylene Oxide (EtO) Emissions Standards for Sterilization Facilities. Ethylene oxide is a colorless cancer-causing gas. These facilities are disproportionately polluting communities with people of color, lower income, and those whose first language is not English.

Every day, rules are being re-evaluated, proposed, and adjudicated.

And that means that every day, rules can be improved.

We need more comments. We need your comment.

Christopher J. Gillespie is a 4th-year doctoral candidate with a focus in soil ecology and soil biogeochemistry at North Carolina State University. Chris is also a tripartite fellow: serving as a Policy Entrepreneurship Fellow (PEF) with the Federation of American Scientists (FAS); an AgBioFEWS Fellow with the National Science Foundation (NSF); and a Doctoral Fellow with the Center for Environmental Farming Systems (CEFS). His research strives to promote climate mediation in the agricultural sector through the amalgamation of sustainable management practices and science-based policy. Follow him on Twitter @SpoilTheSoil.

The UCS Science Network is an inclusive community of more than 25,000 scientists, engineers, economists, and other experts, focused on changing the world for the better. The views expressed in Science Network posts are those of the authors alone.