<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28849.wais]
S. Hrg. 109-646
PENDING NOMINATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
STEPHEN L. JOHNSON TO BE ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION
AGENCY
LUIS LUNA TO BE ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND RESOURCE
MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY
JOHN PAUL WOODLEY, JR., TO BE ASSISTANT SECRETARY OF THE U.S. ARMY FOR
CIVIL WORKS
MAJOR GENERAL DON T. RILEY TO BE MEMBER AND PRESIDENT OF THE
MISSISSIPPI RIVER COMMISSION, U.S. ARMY
BRIGADIER GENERAL WILLIAM T. GRISOLI TO BE MEMBER OF THE MISSISSIPPI
RIVER COMMISSION, U.S. ARMY
D. MICHAEL RAPPOPORT TO BE MEMBER OF THE BOARD OF TRUSTEES OF THE
MORRIS K. UDALL FOUNDATION
MICHAEL A. BUTLER TO BE MEMBER OF THE BOARD OF TRUSTEES OF THE MORRIS
K. UDALL FOUNDATION
__________
APRIL 6, 2005
__________
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_____
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island BARBARA BOXER, California
LISA MURKOWSKI, Alaska THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
APRIL 6, 2005
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 12
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri....................................................... 7
Boxer, Hon. Barbara, U.S. Senator from the State of California... 6
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 16
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 18
DeMint, Hon. Jim, U.S. Senator from the State of South Carolina.. 9
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Isakson, Hon. Johnny, U.S. Senator from the State of Georgia..... 6
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 9
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 18
McCain, Hon. John, U.S. Senator from the State of Arizona,
prepared statement............................................. 58
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 11
Obama, Hon. Barack, U.S. Senator from the State of Illinois...... 9
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 14
WITNESSES
Butler, Michael, Nomination by the President to be a Member of
the Board of Trustees of the Morris K. Udall Foundation........ 158
Grisoli, Brigadier General William T., nominated by the President
to be a member of the Mississippi River Commission............. 44
Prepared statement........................................... 153
Responses to additional questions from:
Senator Inhofe........................................... 155
Johnson, Stephen L., nominated by the President to be
Administrator, U.S. Environmental Protection Agency............ 20
Prepared statement........................................... 59
Responses to additional questions from:
Senator Baucus........................................... 106
Senator Bond............................................. 65
Senator Boxer............................................ 115
Senator Carper........................................... 124
Senator Chafee........................................... 68
Senator Clinton.......................................... 125
Senator Inhofe........................................... 62
Senator Jeffords......................................... 76
Senator Lautenberg....................................... 136
Senator Lieberman........................................ 108
Senator Murkowski........................................ 70
Senator Obama............................................ 139
Senator Thune............................................ 74
Senator Vitter........................................... 75
Senator Voinovich........................................ 67
Luna, Luis, nominated by the President to be Assistant
Administrator for Administration and Resource Management,
Environmental Protection Agency................................ 42
Prepared statement........................................... 141
Responses to additional questions from Senator Inhofe........ 142
Rappoport, D. Michael, nominated by the President to be a member
of the Board of Trustees of the Morris K. Udall Foundation..... 45
Prepared statement........................................... 155
Responses to additional questions from:
Senator Inhofe........................................... 157
Senator Jeffords......................................... 157
Riley, Major General Don T., nominated by the President to be a
member and president of the Mississippi River Commission....... 44
Prepared statement........................................... 149
Responses to additional questions from:
Senator Inhofe........................................... 151
Senator Vitter........................................... 151
Woodley, Jr., John Paul, nominated by the President to be a
Assistant Secretary of the Army for Civil Works................ 43
Prepared statement........................................... 142
Responses to additional questions from:
Senator Baucus........................................... 147
Senator Inhofe........................................... 143
Senator Jeffords......................................... 143
Senator Lautenberg....................................... 148
Senator Vitter........................................... 148
ADDITIONAL MATERIAL
Articles:
Critics Say EPA Would Have Harmed Low-Income Children,
NewStandard, Catherine Komp................................ 31
Experimenting on Children, St. Petersburg Times.............. 32
Playing With Poison; EPA Pesticide Research Doesn't Pass the
Smell Test................................................. 33
Charts:
Contractor CHEERS Telephone Screening Summary................ 119
NESCAUM...................................................... 3
Letters from:
Benjamin H. Grumbles.....................................83, 86, 90
Senator Clinton.............................................. 135
Senator Lugar................................................ 39
Senator Sarbanes............................................. 81
Several Senators............................................. 85
Stephen Johnson.............................................. 111
PENDING NOMINATIONS
----------
WEDNESDAY, APRIL 6, 2005
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee met, pursuant to other business, at 9:15 a.m.
in room 406, Dirksen Senate Building, Hon. James M. Inhofe
(chairman of the committee) presiding.
Present: Senators Inhofe, Warner, Bond, Voinovich, Chafee,
Murkowski, Thune, DeMint, Isakson, Jeffords, Baucus, Lieberman,
Boxer, Carper, Clinton, Lautenberg, and Obama.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. The meeting will come to order. We will go
ahead and get started.
Let me mention, Mr. Johnson, I understand we have a vote at
10 o'clock. They will hold it open, I think, for a little bit
longer. So I'd like to go right up until 10:15 or so, and then
of course you know we have a joint session of the legislature,
Senator Jeffords, that we will have to attend. It is the wish
of the Chair that we dispose of Stephen Johnson's portion of
the hearing during that first hour, then we will come back at--
what, 2:30 for the others.
So with that, in order to accommodate some of the requests
that we have had from both sides of the aisle, I am going to
forego my opening statement and my questions in order to
accommodate the request for two rounds of questions in hopes
that we can do this by 10:20 or so.
I do want to welcome all the nominees here today. We do
have Steve Johnson, who has been before us. He has been
confirmed twice before this committee. He has already appeared
in the budget hearing this year, so he is not a stranger to
this. We have Luis Luna, John Paul Woodley, General Riley,
General Grisoli and Michael Rappoport that will be here for the
second time. We may have time to get started with them at the
end of this, but I suspect that will not be the case.
Before we have opening statements, I would like to have you
respond to the required questions of all nominees, if you
would, please. You may stand to do this. Are you willing to
appear at the request of any duly constituted Committee of
Congress as a witness?
[Witnesses respond in the affirmative.]
Senator Inhofe. Do you know of any matters which you may or
may not have thus far disclosed that might place you in any
conflict of interest if you are confirmed to this position?
[Witnesses respond in the negative.]
Senator Inhofe. Thank you.
Mr. Johnson, you may be seated.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
I want to welcome all of our nominees to today's hearing. Today we
will be considering a number of nominations; including Steve Johnson to
be the Administrator of the Environmental Protection Agency; followed
by a second panel where we will have 5 additional nominees to hear
from: Luis Luna, to be EPA's Assistant Administrator for Administration
and Resource Management; John Paul Woodley, Jr., to be Assistant
Secretary of the Army for Civil Works; Major General Don Riley, to be a
Member and President of the Mississippi River Commission; Brigadier
General William T. Grisoli, to be a Member of the Mississippi River
Commission; and D. Michael Rappoport, to be a Member of the Board of
Trustees of the Udall Foundation.
Mr. Johnson, welcome again to this committee. This is the third
time during this Administration that you have appeared before the
committee as a nominee for a post at EPA first for an Assistant
Administrator spot; then to be Deputy Administrator; and now for the
top job. I would note that each time you were confirmed without
opposition and I have no reason to believe that this time will be any
different.
I do want to briefly touch a couple of very important issues: First
is of course the Tar Creek Superfund Site in Oklahoma. I want to thank
you and the Agency for the ongoing work at the Tar Creek Superfund Site
and I will be asking for your commitment that it remain the top
priority for EPA.
The second issue that I would like to bring up is that of EPA
grants. Last year, the committee held the first oversight hearing into
grants management at the EPA. EPA has taken some positive steps. Not
only is EPA now competing discretionary grants for the first time, it
has created a new website with information on grant recipients;
developed a new results policy with measurable outcomes; and enacted
new oversight to avoid funding political activities.
However, new policies are not enough. Real reform of grants
management requires the attention of the highest levels at EPA. We
continue to observe different practices and problems which causes me
great concern. One recent example involves the Harvard Mercury study
which has been in the news over the last few weeks. While most of the
criticism has centered around the fact that the EPA received the study
too late to be used in the mercury MACT regulation, I am concerned
about another issue.
On February 1st of this year, I wrote a letter to EPA asking for
more information about the grant which funded the research. While my
staff continues to look into this particular case, I am concerned about
the overall process for these types of grants. Apparently, EPA funded
this research, through a third party (in this case NESCAUM), to Harvard
where an EPA employee on leave conducted most of the work. This was
done without competition, and signed off on by career staff at EPA. I
want to know if there was a personal or professional connection between
the employees, and how often are current EPA employees the
beneficiaries of EPA grant money.
In the preliminary documents we have received from the EPA it
appears that when the money was given to NESCAUM, it was with the
understanding that they would contract out the work. This chart shows
the connections between the various parties. While this might be a
completely innocent arrangement, I do have a number of unanswered
questions regarding these transactions. I want to know what the
understanding was between EPA and NESCAUM; I want to know what the
understanding was when the EPA employee took leave to work on his PHD
dissertation at Harvard; was there an understanding that he would be
funded by a non-competitive EPA grant? We must have more accountability
in the EPA grant process.
Once again, I want to thank all of the nominees for being here
today.
[The chart referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. I want to welcome our second panel and thank you
all for joining here today as we consider your nominations. On this
panel we have: Luis Luna; John Paul Woodley, Jr.; Major General Don
Riley; Brigadier General William T. Grisoli; and D. Michael Rappoport.
Regarding the Army Corps and Mr. Woodley there has also been some
recent press involving the Florida Everglades and the lack of progress.
Apparently the St. Petersburg Times obtained an internal Corps memo by
Gary Hardesty here in the DC office. In the memo, Mr. Hardesty gives a
very frank and honest appraisal of ongoing concerns with the project. I
hope the report to Congress due later this year is equally frank. I
would point out one incorrect observation in the memo; my staff and I
have in fact been closely following the developments on the Everglades
and I regret that my predictions about cost overruns are turning out to
be true. It is my intention to hold a formal hearing on the Everglades
as soon as the report is submitted to Congress, and I want an assurance
from Mr. Woodley that the report will not be late.
I want to note for the record, that next week when the committee
votes to report today's nominees, we will also be voting Michael
Butler, who has been nominated to be a Member of the Board of Trustees
of the Udall Foundation. Because the Udall Board is a part-time
position and most of the expenses are paid for by the individual, the
committee has historically provided Udall nominees with the option of a
hearing. While Mr. Butler will not be here, he has provided testimony
that will be included in the record. He has answered the required
committee questions.
Senator Inhofe. With that, I will go ahead to Senator
Jeffords first.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Thank you, Senator Inhofe. Good morning
and welcome to all of our nominees.
Mr. Johnson, you are before this committee again, this time
as the President's nominee for the most important environmental
position in the Government, Administrator of the Environmental
Protection Agency. As a scientist, you have the responsibility
to put policy before politics, to put public health before
corporate profits, and to put the long term needs of the
environment before the short term needs of special interests.
As a long-time EPA employee, you have tremendous experience
and expertise for this job. The question today is whether you
have the fortitude to stand up against powerful interests to
protect our air, our water and our land. The EPA Administrator
should not be a rubber stamp for the White House policy. You
have a great opportunity to bring a fresh approach to EPA, one
that I say is badly needed.
As you know, I, along with other members of the committee,
have a number of outstanding information requests that EPA has
yet to fulfill. Some of these requests date back to 2001. The
Administration's continued obstruction and stonewalling on
these legitimate requests has made it impossible for Congress
to do any sort of oversight or to craft consensus legislation.
The Agency, at the instruction of the White House, has
persisted in obstructing our legitimate inquiry into facts and
analysis that this committee needs to do its job. I hope we can
get your commitment today to help us get this information soon.
You have also signed the now infamous mercury rule. That
was a serious mistake in my mind, and I and many Senators of
both parties advised you and former Administrator Leavitt
against doing it. The Bush administration relied on the notion
that the United States is only a small part of the global
problem, so we shouldn't bother taking aggressive action
domestically.
Somewhere between 30 and 60 percent of the mercury that
falls on Vermont comes from U.S. sources. That is not
insignificant. A grossly hypocritical U.S. representative at
international meetings has blocked more aggressive action on a
global level. Our once prominent leadership on environmental
matters has become a joke around the world. Mr. Johnson, you
have quite a job ahead to restore the Agency's credibility here
and abroad, if it can be done.
I would also like to welcome back to the committee John
Paul Woodley, the President's nominee to be Assistant Secretary
of the Army for Civil Works, and look forward to your
statement.
[The prepared statement of Senator Jeffords follows:]
Statement of Hon. James M. Jeffords, U.S. Senator from the
State of Vermont
Good morning and welcome to all of our nominees. Mr. Johnson, you
are before this committee again, this time as the President's nominee
for the most important environmental position in this government -
Administrator of the Environmental Protection Agency. While you have an
obligation to serve the Bush administration, your greater
responsibility will be as the guardian for the environment for all
Americans.
The EPA needs a strong, independent leader who is not afraid to
speak his mind and bring balance to the Bush administration's attempts
to move our nation backwards on environmental protection. As a
scientist, you have a responsibility to put policy before politics, to
put public health before corporate profits, and to put the long term
needs of the environment before the short term needs of special
interests.
As a longtime EPA employee, you bring tremendous experience and
expertise to this job. The question today is whether you have the
fortitude to stand up against powerful interests to protect our air,
our water and our lands. The EPA Administrator should not be a rubber-
stamp for White House policies. You have a great opportunity to bring a
fresh approach to the EPA, one I must say is badly needed.
As you know, I, along with other members of this committee have a
number of outstanding information requests that EPA has yet to fulfill.
Some of these requests date back to 2001. The Administration's
continued obstruction and stone-walling on these legitimate requests
has made it impossible for us in Congress to do any sort of oversight
or to craft consensus legislation. The Agency, at the instruction of
the White House, has persisted in obstructing our legitimate inquiry
into facts and analysis that this committee needs to do its job. I hope
we can get your commitment today to help us get this information soon.
You also signed the now infamous mercury rule. That was a serious
mistake that I and many Senators of both parties advised you and former
Administrator Leavitt against doing. The Bush administration relied on
the notion that the United States is only a small part of the global
problem so we shouldn't bother taking aggressive action domestically.
Somewhere between 30 and 60 percent of the mercury that falls on
Vermont comes from U.S. sources. That is not insignificant. And, it is
grossly hypocritical when U.S. representatives at international
meetings have blocked more aggressive action on the global level.
Our once-prominent leadership on environmental matters has become a
joke around the world. Mr. Johnson, you have quite a job ahead to
restore the Agency's credibility here and abroad. If it can be done.
I would also like to welcome back to the committee John Paul
Woodley, the President's nominee to be Assistant Secretary of the Army
for Civil Works and look forward to your statement. Mr. Luna, Major
General Riley, Brigadier General Grisoli, and Mr. Rappoport, I believe
this is a first time for each of you before this committee and I look
forward to your statements as well.
Thank you.
Senator Inhofe. Thank you, Senator Jeffords.
Senator Inhofe. Senator Isakson.
OPENING STATEMENT OF HON. JOHNNY ISAKSON, U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Isakson. Mr. Chairman, in respect to the desire to
have two rounds of questions, I'll waive any opening statement,
except to acknowledge the cooperative spirit and timely
response I've always received from Mr. Johnson and welcome him
here today.
[The prepared statement of Senator Isakson follows:]
Statement of Hon. Johnny Isakson, U.S. Senator from the
State of Georgia
Thank you Mr. Chairman. I want to welcome our nominees to the
committee today, and congratulate them on their appointments. I look
forward to hearing from them views on pertinent issues and their
visions for their respective roles. We have a lot to discuss today so,
in an effort to expedite getting to the nominee statements and question
and answer period, I will yield back at this time.
Senator Inhofe. Well, thank you, Senator Isakson.
Senator Boxer.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. I will withhold an opening statement and
hope I can have enough time to question.
Senator Inhofe. I appreciate that. We are going to try to
dispose of the first item prior to having to leave to vote and
for the joint session.
Senator Boxer. I would like to put a statement into the
record, however.
Senator Inhofe. Of course, we will put that into the
record.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator from the
State of California
Mr. Chairman, a reasonable opportunity to question the nominees and
to receive answers to those questions is at the heart of our
constitutional role of advice and consent. We owe it to the people we
represent to have a full debate before we move forward. Because our
time is limited, I will focus today on a few critical issues. But the
few minutes we have today cannot be the end of the debate in this
committee.
The nomination for Administrator of EPA is one of the most
important we consider in this committee. EPA's mission to protect human
health and the environment, including those most vulnerable to
pollution's effects, plays a key role in the quality of life in every
community in this country. This is a subject worthy of serious
discussion, especially in light of the direction that EPA has taken. We
have seen rollback after rollback at the expense of the health of our
families and the environment. We cannot afford to continue this way.
One of the issues I want to focus on today, and Mr. Johnson has
played a key role in this issue as I understand it, is the issue of
human testing and pesticides, including testing on children.
Pesticides are dangerous by design. They are designed to kill
biological organisms. Because of this danger, federal law prohibits
them from being labeled or called ``safe.''
Children are especially vulnerable to pesticides. The USEPA,
National Academy of Sciences, and American Public Health Association,
among others, have stated this and treat it as accepted fact.
Pesticides can cause cancer and adversely affect a child's
neurological, reproductive, respiratory, immune, and endocrine systems,
even at low levels. It is also my understanding that EPA's new cancer
risk assessment guidelines for early life exposure finds that children
under two may have a tenfold increase in risk from cancer causing
substances.
I am very concerned about any EPA program that would allow human
testing of pesticides. Testing of pesticides on children is an even
greater concern. The moral and ethical issues involved in such a
program are very serious. I intend to question Mr. Johnson very
carefully about any such programs or plans, including the EPA's
Children's Environmental Exposure Research Study.
Another serious concern is the Mercury rule that EPA issued just
last month that fails to protect human health, including children.
In 2000, EPA made a finding that it was necessary and appropriate
to strictly regulate mercury emissions from utilities due to the public
health and environmental threat posed by this source of hazardous air
pollution. This finding required that maximum achievable control
technologies be applied due to the serious nature of the hazard. The
finding was reversed by EPA last month in an action approved by Mr.
Johnson, the nominee for Administrator before us today. I am sorry to
stay this was not a good start on the job.
The original finding was the correct finding and the reversal is
not supported by the law or the facts. Maternal consumption of unsafe
levels of mercury in fish can cause neurodevelopmental harm in
children, resulting in learning disabilities, poor motor function,
mental retardation, seizures, and cerebral palsy.
EPA's failure to fully consider key studies showing cardiovascular
and other health threats from mercury emissions from power plants,
including a Harvard study and an internal EPA study raises serious
questions about whether sound science was relied on in putting together
this weak rule. The failure to address those findings is even more
troubling in light of information I have received that EPA officials
scuttled planned meetings with leading experts on cardiovascular
effects of mercury before the rule was issued. The best way to remedy
this seriously flawed outcome is to stay the rule for reconsideration.
I also have questions about the Administrations plans to address
the shortfalls in the Superfund program. The President's budget falls
far short of what is necessary to address the growing backlog of toxic
sites around the country. While the President's budget proposes $32
million more than enacted this year, it is over $100 million less than
what he asked for last year. The Administration has acknowledged the
backlog of sites, but there are no plans to address it. According to
EPA's own internal documents, the backlog of cleanup dollars needed
could reach $750 million to $1 billion by next year. This program
cannot be ignored as the problems grow worse and worse. There are
families in this country living with toxic waste in their backyards
real people, including kids are getting hurt and it needs to stop.
EPA plays a central role in these issues and the nominee for
Administrator must be prepared to address these problems. A full
opportunity to question Mr. Johnson is more than a reasonable request.
It is what we were sent here to do.
Senator Inhofe. Senator Bond.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR
FROM THE STATE OF MISSOURI
Senator Bond. Thank you very much, Mr. Chairman.
Unfortunately, I have potentially three other conflicts this
morning. So I am not going to waive my opening statement. There
are a couple of things I do want to say and questions I want to
pose in case I can't be here.
But I appreciate your holding this hearing. The
Administrator of the U.S. Environmental Protection Agency is
very important, and I've had an opportunity to get to know
Stephen Johnson, and know that as a dedicated career civil
servant, devoted to the Nation and the cause of the
Environmental Protection Agency he can do an excellent job. As
a scientist by training, he knows the vital role that science
plays in assisting policymakers to make their decisions.
Sound science is not just a catch phrase, it's not just a
throwaway line. Sound science is more than just an outlook. It
should be more than just a way of doing business. It should be
at the heart of every decision the Agency makes.
I was a little bit shocked to hear criticism of the mercury
rule, which people have talked about for a long time. I'm from
Missouri, talk's enough. Show me. Finally, for the first time,
the Agency has come forward with a mercury rule. Please correct
me if I'm wrong, but I understand that the mercury reductions
required by the EPA's Clean Air Interstate Rule and the Clean
Air Mercury Rule will adequately address the mercury human
health threat from power plants and Clear Skies is more than
enough and absolutely essential.
But as a career employee, you know that no matter what you
do, you're going to be criticized, sometimes on the basis of
personal, political interests, sometimes on the basis of
unsound environmental hysteria. But you have been in the
position of putting your heart and soul into advancing the
program, advocating the positions, and we appreciate what you
and your staff have done and are doing. As a scientist, you
know that EPA decisions must be made more in the heart more
than pure desire and more than just belief. Sound science is
the mind that goes with the heart.
I would ask you perhaps in case I'm not here to ask a
question to give us your analysis of which will produce a
greater amount of air pollution reduction and thus be better
for the environment. We have a choice: one, litigation against
a few individual power plants; two, legislation covering 1,110
power plants and mandating 70 percent pollution reductions from
the entire industry. This is really a trick question, but you
might address that, so we know whether litigation or
legislation is going to be more effective in cleaning up the
environment.
Finally, I would like to welcome Mr. Woodley back to the
committee. I think it's vitally important we have leadership
for the Corps. I've never yet found an assistant secretary who
did half of what I wanted a secretary to do, which is not
because I'm always right, it's because they have a great deal
to balance and a very difficult job balancing the interests and
the inter-agency disputes.
Furthermore, because the Corps is within the Department of
Defense, there is effectively no Cabinet-level voice. Depriving
the Corps of an assistant secretary leaves them blowing in the
wind, run only by the Office of Management and Budget. I think
we can agree on a bipartisan basis that that is the worst
possible option. If any of my friends from OMB are here, I'd be
happy to discuss that with you. If you're not here, please send
them a letter. We would like to see an assistant secretary who
runs it, and I think John Paul Woodley is thoughtful,
responsive, capable of telling me and others no, and he has
proven to be patient. I think he deserves the Senate's
approval.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Bond. I'm glad you
brought up the thing on mercury, because it is so frustrating,
we see ads run in the New York Times saying, ``This President
is reducing mercury standards,'' when he has established it
first.
Senator Bond. Wasn't he the first? Had anybody taken a
step?
Senator Inhofe. No one had.
Senator Bond. He's done something, absolutely. Isn't there
a country music song, ``I want a little less talk and a lot
more action''?
Senator Inhofe. We're running out of time here.
[Laughter.]
Senator Inhofe. Senator Obama.
OPENING STATEMENT OF HON. BARACK OBAMA, U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Obama. Not sure I can follow up on that.
Thank you very much, Mr. Chairman. I am going to save my
time for questions, but I very much appreciate Mr. Johnson's
being here and we all look forward to hearing his testimony.
Statement of Hon. Barack Obama, U.S. Senator from the State of Illinois
Mr. Chairman, I will be brief so that the opportunity for my
colleagues to ask questions will be maximized.
I would like to begin by thanking the Chairman for conducting this
hearing. I would also like to thank the nominees for appearing before
the committee today during this informational session, and to
congratulate them on their nominations to serve the United States in
these various capacities.
I appreciate having the opportunity to hear from Mr. Stephen
Johnson, who has been nominated to serve as the Administrator of the
Environmental Protection Agency. As the nominee knows, given the size
and diversity of my state, we have a wide range of issues that fall
under EPA jurisdiction, whether it is agriculture, coal, water and land
resources, and the like, so I look forward to hearing his presentation
and to having the opportunity to present questions for his response.
I also am appreciative to have the John Paul Woodley appear before
the committee today for nomination for the position of Secretary of the
Army for Civil Works. As my colleagues know, there are three major
rivers in my state--the Illinois, the Mississippi, and the Ohio--as
well as Lake Michigan, and we rank among the top states in the nation
in waterborne commerce, of which the Corps has a significant role. I
will be interested in learning his views on the lock and dam
investments along the Mississippi River and Illinois Waterway, which I
support, as well as his views regarding the delayed funding associated
with the McCook and Thornton Reservoirs in Chicago. I look forward to
his presentation.
Finally, I would like to acknowledge the nominees for the Morris K.
Udall Foundation and the Mississippi River Commission who have come
before the committee today. Thank you for taking the time to present
your credentials.
Senator Inhofe. Thank you.
Before some of you arrived, we had commented, we were going
to try to have this first panel disposed of prior to the time
that we have to go vote and then go on to the joint session. So
I appreciate that cooperation very much, Senator Obama.
Senator DeMint.
OPENING STATEMENT OF HON. JIM DeMINT, U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator DeMint. Thank you, Mr. Chairman. I will not make an
opening statement, only to say that particularly with Mr.
Johnson, I appreciate his willingness to work with us on some
difficult issues in my State. He has been very responsive and I
look forward to the questions and answers today.
Senator Inhofe. Thank you, Senator DeMint.
Senator Lautenberg.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR
FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Mr. Chairman, I won't be quite as brief
as you hope, but I'm not going to take much time. I have had a
chance to meet with Mr. Johnson and learn a lot more about his
views and have great respect for his professionalism and his
capability and capacity to do this job. The only thing I see is
that he's going to be forced to do some of this work with one
hand tied behind his back. That's my statement, not his.
But I don't see the resources available to get the things
done that we'd like to, particularly whether it's drilling in
the ANWR or the mercury rule that the Chairman and our
colleague from Missouri seem to be so happy about. The fact of
the matter is, it's going to cause larger deposits of mercury
in the State of New Jersey in the years past 2009, according to
EPA. We don't like that, and we would hope that there is
something we could do to prevent it. Highly toxic material, we
don't need any more of that. New Jersey gets punished because
it's east of some of the States that help produce it from their
plants.
So we looked at something like the Superfund program, a
program that I've been involved in since 1983, and we were
making great progress, sites were being cleaned up. People who
were responsible for the pollution were largely paying the
price. But now without any income coming from those who might
create the pollution in the first place, we are looking at
sites that, if they are orphans as a result of not being able
to find a responsible party, they could lie dormant or worse,
active poisonous sites for a long time to come.
Last, I was concerned about the Toxic Substances Control
Act, which Mr. Johnson had significant amount of work to do
there. It has not been a smashing success. There are thousands
of chemicals that have not been really identified, registered
as those that we have to be careful of. Nevertheless, once
again I reiterate that, Mr. Johnson, I indicated to you in our
conversation yesterday, that I was impressed with your record
and your integrity. You'll take care of the record, and you
don't mind if I look at the integrity along the way in terms of
getting the job done.
Again, I'll try to get you another oar to row with, but I
don't know how successful I will be.
Mr. Chairman, thank you very much.
[The prepared statement of Senator Lautenberg follows:]
Statement of Hon. Frank Lautenberg, U.S. Senator from the
State of New Jersey
I want to welcome Mr. Johnson and begin by thanking him for the
EPA's response to my letter about the Ringwood Superfund site in New
Jersey. My state's former governor, Christie Whitman, was the first
person to lead the EPA in this Administration. However, it seemed that
her hands were usually tied because the Administration wasn't committed
to protecting the environment.
Mr. Johnson, you are known as an honorable and capable professional
but what I continue to see is that for this Administration the goal of
protecting our air, our water, and our other natural resources lies at
the bottom of its priority list. From drilling in the Arctic
Wilderness, to setting mercury standards written by and for the power
industry, this Administration has consistently sided with big business
interests that exploit our environment, instead of protecting the
interests of America's families.
I hope Mr. Johnson will be able to overcome that record, start with
a clean slate and become the kind of champion for the environment that
our children and grandchildren deserve.
I want to focus today on three issues of special importance in New
Jersey. First, the EPA's new mercury rule. My state is one of nine
states suing EPA because this rule fails to protect public health. In
fact, according to EPA, New Jersey's mercury emissions under these
rules will actually increase between 2009 and 2015.
We've known for at least a decade about the severe and irreversible
health effects of mercury exposure, especially to fetuses, infants and
children. I hope Mr. Johnson will keep their interests in mind, rather
than just the interests of power companies and polluters, if he is
confirmed as administrator.
Also, the Superfund program to clean up hazardous waste sites is
also in crisis. Since the Superfund tax expired in 1995, funding has
declined 34 percent. As a result, a large backlog of hazardous waste
sites have not been added to Superfund's priority list, and the cleanup
of many other sites has been slowed or put on hold.
Finally, I am very concerned about the Toxic Substances Control Act
(TSCA), which was established 29 years ago (1976) to protect public
health and the environment from toxic chemicals. It has been an utter
failure at achieving this goal.
I look forward to working with Mr. Johnson and the members of this
committee to restore and reaffirm the mission and integrity of the EPA.
I also look forward to hearing from our other nominees for other vital
posts.
Senator Inhofe. Thank you, Senator Lautenberg.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
I will be leaving the committee early this morning, I have
another committee meeting, so I will be submitting my questions
in writing.
Senator Inhofe. Sure.
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. But I do want to thank you, Mr. Johnson,
for the time that we had to discuss some of the issues that are
very important in my State, that of the Village Safe Water. We
have had a chance to talk a little bit about mercury and fish
and some of the others, but again, I appreciate your time.
As I have mentioned to you, there are few agencies that
have more influence or more impact on what is happening in the
State of Alaska, again, the EPA and the Corps of Engineers. So
it's important that we're here this morning, it's important
that we will be moving forward your name to take up the head of
EPA.
I have repeated so many times that I've forgotten where
I've said it and to whom I've said it, but Alaska is so unique
in so many ways. One of the things that we struggle with is our
regulations that are designed to be one-size-fits-all. We try
to make our case and we plead for some exceptions, we plead for
some ration within the Agency to look at our situations and
allow common sense to prevail.
So I ask you again to work with us on our issues that are
distinct, that are unique, and I look forward to the
opportunity when we can welcome you up and show you first-hand
what's really going on. Thank you for your time this morning
and for the time that we have had.
Thank you, Mr. Chairman.
Statement of Hon. Lisa Murkowski, U.S. Senator from the State of Alaska
Thank you, Mr. Chairman. I know that we all want to hear from our
friends on the other side of the witness table, so I will be very
brief, and will focus on our two most senior nominees.
There are very few agencies of our government that have more impact
on the citizens of my state than the Environmental Protection Agency
and the Corps of Engineers. I am confident that the attention that EPA
and Corps employees lavish on Alaskans and Alaska projects has always
been well-intentioned. However, while some might argue the point, I
cannot say that I think their influence has always been beneficial.
From time to time, on issue after issue, I've noted that Alaska is
``unique''--and that because it is unique, it deserves special
consideration. Like many western states, we have often struggled with
environmental restrictions sought by, imposed by, and maintained by
interests with very little knowledge of the conditions we live with.
We try to address serious issues with clarity and common sense. But
all too often, government agencies try to apply one-size-fits-all
solutions that simply don't work. Mr. Chairman, what I would LIKE to
ask these gentlemen is for a pledge that they will instruct their
staffs to avoid the easy answers and to tune their regulatory actions
as carefully as the law will allow.
Despite the desperate urgency of some organizations fund-raising
letters, the truth is that Americans have made huge strides toward a
cleaner, healthier environment, and we've been able to do so without
crippling our own economy.
Mr. Chairman, I think it should be clear that if we are to continue
to make strides toward a cleaner environment, maintaining a healthy
economy must remain a number one concern.
With that, Mr. Chairman, I will yield and look forward to hearing
from others. I do have a number of questions, but because I another
commitment, I'd like to submit questions in writing, if there is no
objection.
Senator Inhofe. Thank you, Senator Murkowski.
Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman. I apologize, I
will not be able to stay and ask questions. But I will insert
them for the record. I do have a statement to make.
I understand we're here to consider several pending
nominations, including that of Mr. Stephen Johnson to be the
new Administrator of the Environmental Protection Agency, who
is obviously here. Mr. Johnson, I was very sorry that we were
not able to meet prior to your hearing, but I hope we will be
able to sit down together. I make it my practice to do so
whenever anyone is nominated for such an important position.
I had great respect for your predecessors, both former
Governors. I asked both of them why they wanted the job and
whether or not they thought they could stand up to defend the
interests of their Agency to the Administration. Unfortunately,
neither one of them stayed at the Agency for very long. Perhaps
as a career EPA official you have a better idea of what you're
getting yourself into and I certainly hope that if confirmed,
you'll stick around a while.
Frankly, it's very important for heads of departments and
agencies to stay a longer period of time than most do, because
we're constantly reshuffling the deck with all these changes
that are going on. I very much hope that you will settle down
here and help settle the Agency down so we get some
professionalism, more professionalism that we now have. Because
it's a very, very solid agency, I very much hope that you can
do that.
My top priority at the EPA is, as you may know, is Libbey,
MT. I'm going to ask for your commitment, as I have your
predecessors, to personally visit with me as soon as you
possibly can. Seeing is believing, you will get a better sense
of what's going on at Libbey when you do personally see Libbey.
Your predecessors did personally come and as a consequence,
they devoted a large amount of their thought and time and
resources to Libbey. It's such a deep problem there, and I very
much hope that you will do the same when you're confirmed.
Since they both visited, both your predecessors visited in
person, and they had probably the kind of connection with the
community that the community expected and wanted to have, too.
Too often, especially in western States, we're a long way from
Washington, DC, there is a very deep sense that, oh, those
folks in Washington, they don't care about us, they're so far
away, what do they know about our problems, just a bunch of
bureaucrats back there.
But when Governor Leavitt showed up and when Governor
Whitman showed up, EPA administrators, it made a huge
difference. The people there began to say, hey, somebody does
care, and maybe they're going to get it. When the EPA followed
up, a very, very good person there, made that connection,
because after all, we're all public servants. We all work for
the people in Montana, as well as all other Americans and all
the other problems of this country.
We have to show that we are the employees and they are the
employers. By showing up, we actually do so. I again urge you
to come to Libbey. We'll talk about specific issues when we get
a chance to meet privately.
Mr. Chairman, I also understand this committee will later
consider the nomination of John Woodley to be the Assistant
Secretary of the Army for Civil Works. As you may know, I
opposed Mr. Woodley's nomination previously, because I was not
satisfied that you would adequately protect Montana's interests
on the Missouri River. The President used his recess
appointment, however, to appoint Mr. Woodley for the remainder
of the 108th Congress, that was back in 2003. We are now headed
into our seventh year of drought in Montana, and I might say
the situation looks even worse now than it did then.
Fort Peck Lake and other Upper Missouri River Basin
reservoirs are disastrously low, so low, in fact, we will
likely hit the magic number of 31 million acre feet of system
storage by March of next year. Finally, finally, finally at
this number the Corps will preclude navigation on the Lower
Missouri River. Fort Peck was long ago devastated by low water
levels. Every foot the lake drops further just increases the
pain. Frankly, I wish that Mr. Woodley could come out and see
Fort Peck Lake.
Our recreation industry has been hit hard, as we have lost
most access to the lake and businesses have shut their doors.
All this in turn hurts our local communities and our economies.
There are growing concerns about water and power supply
along the Missouri as the drought continues. The benefits of
navigation as compared to recreation on the Missouri are very
small. However, the benefits of navigation are absolutely
dwarfed by those of water and power supply. If we have
foolishly drained our reservoirs over the past several years in
the mistaken belief that we are only hurting recreation in a
few Upper Basin States like Montana, we should think again.
What this highlights is the puzzling and utterly
frustrating fixation the Corps has on supporting a minor
navigation industry in the lower Missouri at the expense of
every other use of the river. Mr. Woodley, I know you are in
the audience there, and I know you know there is a sense in the
Corps that, well, we've put this behind us, that the new master
manual is set, that we should just all pray for rain.
Well, I hold a hope, a very strong hope, that some day
we're going to get more than that. As you know, I introduced a
bill last Congress that would set the navigation to preclude at
not 31 million acre feet, but at 44 million acre feet. My view
is a much more reasonable number, and one that until this
drought is finally over with has rarely been breached. The
Senate Interior Appropriations bill last year called for
changes that precluded at 44 million acre feet. When the Corps
studied the impacts this would have on the Missouri River, it
found there would be a net positive impact along the Missouri
River.
Sometimes I feel I am beating a dead horse. But we are just
devastated at Fort Peck. I really would like the active
assistance of the Corps in finding more and better ways to
address the impacts of continued drought at Fort Peck. We need
the Corps' help, not the Corps' sympathy.
Mr. Woodley, I know you're out there somewhere. This time I
need a genuine commitment from you to work with me and the
Upper Basin States to find a better way. I cannot stress this
enough. I am not going to give up. I am not going to give up.
We are going to find a way to make sure that those folks in the
Upper Missouri River get fair treatment. They have not been
receiving fair treatment. I thank you, Mr. Chairman, for
letting me make that statement.
Senator Inhofe. Thank you, Senator Baucus.
Senator Voinovich.
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR
FROM THE STATE OF OHIO
Senator Voinovich. Mr. Chairman, perhaps President Bush has
found a way around the challenge of having an EPA director that
doesn't do enough for the environment or too much for business
by nominating Mr. Johnson to be our next EPA Administrator. He
has two very unique qualities. First, in this unheard of
politically divisive world we operate in, he will be the first
career official to hold a position, having worked at the EPA
for 24 years. I'm sure that's applauded by people that are
working in the Agency, it's going to be good for the esprit de
corps.
He also has extensive knowledge of the inner workings and
the personnel at the Agency. The members of this committee
ought to know that the EPA is in deep, deep trouble today in
terms of the number of people that they need to get the job
done. We need to get somebody on board very, very quickly, so
that we don't hemorrhage any more.
Second, we have a professional scientist to be the
Administrator. This is an area where I've been concerned about
for a long, long time, Senator Carper and I have had
legislation in the last couple of years because we think we
need more science at the EPA. I rejoice in the fact that you
are a scientist. So that's the good news.
[The prepared statement of Senator Voinovich follows:]
Statement of Hon. George V. Voinovich, U.S. Senator from the
State of Ohio
Mr. Chairman, thank you for holding this nominations hearing.
This morning, I am going to put on two hats that I wear proudly in
the Senate. The first is as a member of this committee and the second
is as Chairman of the Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia.
As I am sure my colleagues know, I am very interested in the
management of our federal government and its workforce. Finding the
right people with the right skills to run our nation's agencies,
departments, commissions, and foundations is very important.
The nominees before us today have extensive experience in both the
private and public sectors. I thank you all for your willingness to
serve, and even more importantly, I thank your families for their
sacrifices. I welcome you and look forward to hearing from you.
Our first nominee this morning is Steve Johnson to be EPA
Administrator. In my opinion, this is one of the most difficult
positions in the federal government especially in a Republican
Administration. No matter what you do it is either too far for industry
or not enough for the environmental groups.
However, I wonder if President Bush has found a way around this
challenge by nominating you to be our Nation's next EPA Administrator.
You have two very unique qualities. First and this is unheard of in
this politically divisive world we operate in you will be the first
career official to hold the position as you have worked at EPA for 24
years. Your extensive knowledge of the inner workings and personnel at
the Agency may be exactly what is needed to manage it.
Second, you will be the first professional scientist to be
Administrator. This is an area that I have long been concerned about at
EPA. In fact, I have introduced legislation over the last two
Congresses with Senator Carper to strengthen science at the Agency. I
look forward to working with you because EPA must have a fundamental
understanding of the science behind the real and potential threats to
the environment to be effective.
I also look forward to working with you on a variety of other
issues, including:
More funding and assistance to local communities to deal with water
infrastructure needs;
Strong leadership in the President's comprehensive effort to
restore the Great Lakes; and
Harmonizing our environment, economic, and energy needs through
clean air regulations.
Again, I thank all of the witnesses for being here today and for
their desire to serve this country.
Senator Voinovich. I'd like to switch and ask a question.
That question is, or is it appropriate, are we in the question
period?
Senator Inhofe. It's appropriate, yes.
Senator Voinovich. The recent mercury rule that was
released, several States and environmental groups have sued,
which we all expected. I fully expect lawsuits on the Clean Air
Interstate Rule in the near future from a lot of groups.
Based on past lawsuits on rules of this nature, and I'd
like you to use an example if you can, how much will these
lawsuits cost the Government to defend, and how long will the
rules be delayed because of these lawsuits? I just wanted you
to know, my opinion is today we have an environmental policy
called litigation policy. That's what we have had for the last
40 years. Can you answer that question?
Mr. Johnson. I'd be happy to, Senator. There's a wide range
of experiences, I can't comment on the costs. But what I can
comment on and give you some examples, at least one example
that comes to mind, as you know, I spent many years in the
Office of Pesticide Programs regulating pesticides. A number of
years ago, EPA moved to suspend a hazardous pesticide, the
chemical name was 245T Silvex. From the time the Agency moved
to suspend this dangerous chemical, I believe the length of
time before cancellation finally went into effect was 10 years,
10 years of litigation and back and forth.
That's obviously not a cost effective way to try and manage
the environment.
Senator Voinovich. How long do you think the litigation----
Senator Inhofe. Senator Voinovich, we are going to have two
rounds of questions. Were you not going to be able to be here
later? If you were, I'd like to hold off questions.
Senator Voinovich. OK, thank you.
Senator Inhofe. Thank you, Senator Voinovich.
Senator Carper.
OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM
THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman. I would say to Steve
Johnson, welcome this morning. I suspect when you testify you
will have an opportunity to introduce some of these people,
maybe family or friends behind you. If any of them might be
parents or spouses, I just want to say----
Senator Inhofe. We are going to ask him to introduce his
family.
Senator Carper [continuing]. I just want to say to each of
you, thank you for sharing, well, first of all to the parents,
thank you for instilling in this man the understanding that we
have a responsibility to serve this country. To anybody who is
sitting in the audience who might be a spouse, thank you for
sharing him with all of us.
As you know, Clear Skies failed to be reported out of this
Committee last month, a 9-9 vote, because folks on my side and
Senator Chafee on the other side thought that we could do
better than the Administration's Clear Skies proposal. I want
to be clear, just because we voted against that bill that day
doesn't mean that we don't want a bill. I very much want a
bipartisan bill. I believe it's possible to get one.
In order to enact a strong, balanced piece of legislation
this year, we need more cooperation from the Administration. On
March 3d, I sent a letter to you, Mr. Johnson, asking EPA to
conduct a detailed cost-benefit analysis of the various multi-
pollutant Clean Air bills that Congress has proposed, namely
that proposed by Senator Inhofe, I believe, on behalf of the
Administration, Senator Jeffords' proposal and a proposal I had
introduced in the last Congress with Senator Chafee, Senator
Alexander, Senator Gregg and myself.
As of today, not only have I not received these analyses, I
have not been given assurances from you that we will receive
them in the future, if we will ever receive them in the future.
I know that some on this panel and the Administration have said
that our committee has all the information that we need. I just
disagree. EPA has conducted extensive analyses of Clear Skies.
The same cannot be said of our bill or the Jeffords bill.
In order for Democrats to sit down with Republicans and
negotiate a compromise to these decisions on what the
appropriate caps and time lines should be for NOx, for SOx, for
mercury, for carbon, we need this information from EPA. Senator
Voinovich mentioned earlier our interest in good science and
making sure, the idea that you are a scientist is something
that we welcome. But we need good, scientific analysis from the
EPA.
I don't think it matters who is in the White House, what
party is in the White House, who is in majority in the
Congress. When we are asked to make these difficult decisions,
it's just an enormous help if we can get good, timely,
comprehensive analysis.
March 3d was not the first time I have requested this
information. Let me just give this short history. In 2003, EPA
delivered to me a partial economic analysis of the Clean Air
legislation that a number of us had introduced in 2002, with
one major caveat. The EPA said that they had changed to modern
techniques, and that using the latest assumptions, the cost and
health benefits of our bill ``differ in some cases
significantly'' from the information I was given.
Not surprisingly, I then asked EPA to conduct a new
analysis, using the most up to date techniques possible. In
June 2004, I received another letter from EPA saying that
because the Environment and Public Works Committee was not
preparing to move Clear Skies that year, that EPA would not
conduct the analysis that we had sought.
The irony is that when we started toward markup early this
year, I again repeated my request for a detailed technical
analysis of the Jeffords bill and our bill. Then I was told
that EPA didn't have time to do it, because the committee was
moving quickly to pass legislation. That response, my friend,
is just unacceptable.
In hindsight, some might say that it was even a foolish
position to take, especially in light of the fact that it is
now April and we have yet to move a bill out of this committee.
If EPA had conducted the analysis that we first requested, it
would be in our hands, would have been in our hands for some
time and in the hands of each of our colleagues. We would
probably be a lot closer to getting a bipartisan bill to the
President's desk.
Mr. Johnson, let me just be perfectly clear. I want the
same modeling done for the Jeffords bill and for our bipartisan
bill that the EPA has done for the Clear Skies legislation.
This is not an unfair request. My colleagues have asked me to
negotiate a compromise on this bill if possible. I know that my
friend, Senator Voinovich, is frustrated, has been frustrated
with me and our process, because I have not been able to put
down a counter-offer to what he and Senator Inhofe have
proposed.
I'm just not sure how I'm supposed to counter if I don't
know what I'm trading. I don't even know the benefits my own
bill brings to my own State. I know what Clear Skies will do
and frankly, it's not much for Delaware. Clear Skies won't
solve Delaware's air quality problems, and the Administration's
I think woefully inadequate mercury proposal means more
Delawareans will get sick from mercury related illnesses.
After the Clear Skies bill died a couple of weeks ago, I
said that no means find another way. We need EPA's help and
cooperation if we are going to find another way, and we need
the information we have requested to find another way and to
help us craft a bipartisan bill that can pass this committee,
and more importantly, be signed into law this year. If the
Administration is serious about getting clean air legislation
done this year, and I hope that it is, then I suggest that EPA
deliver the information that we have requested, and let's go to
work.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Carper.
Senator Chafee.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Thank you, Mr. Chairman, very much. I am
pleased to be here today and look forward to hearing the
testimony of Mr. Johnson as Administrator of the Environmental
Protection Agency.
I believe the nomination of a scientist who has made a
career at EPA is an important characteristic in selecting a
candidate as Administrator. I appreciate the time that Mr.
Johnson has spent in my office reviewing his credentials, and I
look forward to working with him in the future.
Senator Inhofe. Thank you, Senator Chafee.
Senator Lieberman.
OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thanks, Mr. Chairman. I thank you and
welcome you, Mr. Johnson, welcome your family. I just take a
look at your dad, and there's a remarkable similarity between
the two of you. There's not going to be any paternity actions
in this matter, it's very clear on your face.
[Laughter.]
Mr. Johnson. Senator, you have made his day.
[Laughter.]
Senator Lieberman. Needless to say, you are both very good
looking guys.
Mr. Johnson, I want to thank you for your 24 years of
dedicated public service. I must say, as others have said here
already, that I'm encouraged that at a time when there are so
many challenging and indeed controversial environmental
decisions and problems facing us that the President has
nominated a respected scientist and career employee to be the
next Administrator of EPA. This is genuinely refreshing and
encouraging.
I commend you for stating in your prepared testimony how
important it is for the Agency to base its decisions on the
best available scientific information and on developing rules
through ``an open and transparent decisionmaking process.'' As
you know, there is a lot of concern here in Congress and
outside about occasions on which people feel that science has
taken a back seat in recent years in some of the decisions that
EPA has made.
In February of last year, which you probably remember, a
group of over 60 prominent scientists, including 20 Nobel
laureates, sent an open letter to the President alleging that
too much of the science-based decisionmaking had been
politicized. That can't be permitted, and I know from having
talked to you that that's not what you intend to do as
Administrator. You are a scientist and you will make the best
judgments you can based on science.
This gives me encouragement, if I may take this occasion to
do so, to say that I hope you will apply or find a way to apply
this principle retroactively to recent agency, one recent
agency decision regarding the clean air mercury rule, which was
signed on March 15th. Personally I am not convinced that the
principles of good science were consistently applied in this
rulemaking process, and those concerns have been expressed also
by the GAO and the Inspector General of EPA itself certainly
with regard to process in the recent reports.
I hope that as you begin your duties you will reexamine the
science informing this particular decision and specifically
take a look, if you have not already, at the study from Harvard
University that the EPA funded, yet it appears to me did not
follow, perhaps even ignored in the development of its rule. If
you find that the science supports a much lower cap on mercury
emissions in this country, I hope you will take action to
revise the ruling. As you know, many of us here in Congress are
convinced that lower emissions limits of mercury are limited to
adequately protect human health and the environment and that
the technology exists to achieve them much sooner than 2018,
which is the current proposal.
In confirming your nomination, this committee and the
Senate will be telling the Nation that we have given you our
trust, our trust that you will make the best decisions based on
the best science for the health of our environment and of
course, for the health of our citizens. That is an enormous
responsibility, but I have confidence, based on your record and
my more recent conversations with you that you will take on
this responsibility with the integrity and dedication that you
have demonstrated throughout your career at EPA.
I look forward to supporting you, and I am confident you
will help America meet the environmental challenges ahead.
Thank you very much.
Senator Inhofe. Thank you, Senator Lieberman.
[The prepared statement of Senator Lieberman follows:]
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
Thank you, Mr. Johnson, for your 24 years of dedicated service to
an important agency. I find it encouraging that in a time where so many
challenging and controversial environmental issues confront us, the
President has nominated a respected scientist and career employee to be
the next Administrator.
Mr. Johnson, I commend you for stating in your testimony the
importance of basing agency decisions on the best available scientific
information, and on developing rules through an ``open and transparent
decision-making process.'' I trust that as a scientist, you appreciate
the importance of those words. The American public needs to know that
the decisions the Agency makes are based, above all, on good science.
Unfortunately, several members of this committee share my concern
that in recent years, science has taken a back seat in the decision-
making process at EPA. We are not the only ones who hold this view. As
you know, in February of last year a group of over 60 prominent
scientists, including 20 Nobel laureates sent an open letter to
President Bush criticizing the recent politicization of science-based
decision-making.
While there are many considerations that affect decisions, in
recent years, science has not only been neglected or ignored, but even
worse, has been selectively applied to support pre-determined
conclusions. I fully expect you to uphold the ideals that you state in
your testimony; in my interactions with you thus far, you have given me
hope that you will do so.
Your emphasis on science further gives me confidence that you will
apply this principle retroactively to recent agency decisions where the
scientific basis has been questioned. Specifically, I would like you to
re-examine the Clean Air Mercury Rule. I am not convinced that the
principles of good science were consistently applied in the development
of this rule, concerns that were repeated by the GAO and EPA Inspector
General in their recent reports.
I trust that once you begin your duties as Administrator, you will
make it your highest priority to re-examine the science informing this
decision, and specifically examine the Harvard study that the EPA
funded yet ignored in development of its rule. If you find, as I expect
you will, that the science supports a much lower caps on mercury
emissions in this country, I expect you to revise your ruling. I and
many of my colleagues are convinced that lower emissions limits are
needed to adequately protect human health and the environment, and that
the technology exists to achieve them much sooner than 2018.
In confirming your nomination, we will be telling this nation that
we have given your our trust - trust that you will set aside partisan
political considerations and make the best decisions, based on the best
science, for the health of our environment, and for the health of our
citizens. This is a tremendous responsibility. I have confidence that
as a scientist, you will approach this position with the integrity and
dedication you have demonstrated throughout your career at EPA, and I
wish you well in meeting this challenge.
Senator Inhofe. Mr. Johnson, I am going to go ahead and
recognize you for a very brief opening statement. I want you to
introduce what members of your family are here today. But after
that, we are going to go to two rounds of 4-minute rounds of
questioning. We are going to try our best to dispose of this
panel by 20 after. For the benefit of my colleagues, there is
going to be a vote at 10 o'clock. However, we have told them
that we will continue to meet in here until 10:20, so no one is
going to miss his or her vote by doing so.
Mr. Johnson.
STATEMENT OF STEPHEN JOHNSON, NOMINATED BY THE PRESIDENT TO BE
ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Johnson. Thank you, Mr. Chairman. Distinguished members
of the committee, I am honored to appear before you today as
the President's nominee for the position of Administrator of
the U.S. Environmental Protection Agency.
I want to thank Chairman Inhofe and also Ranking Member
Jeffords for scheduling this hearing this morning. I also want
to thank many of you for the courtesy meetings with me in the
past several weeks and for allowing me to discuss my
qualifications for this position.
If it pleases the committee, I would like to ask that my
full written statement be included in the record.
Senator Inhofe. Without objection, so ordered.
Mr. Johnson. Thank you, sir.
If I may, I would like to take a moment to introduce the
members of my family who have accompanied me this morning. I am
pleased to have my wife, Debbie, and my son, Matthew here with
me today. I regret that my daughters, Terri and Allison, are
not able to be here. They are taking care of our two new
grandchildren this morning. We thought it was better for them
to be there than here.
I am also pleased to have my father, Bill, who is 82 years
old and can still work me into the ground every day. Senator
Lieberman, you have now found favor with my father.
[Laughter.]
Mr. Johnson. I am also pleased to have my wife's parents,
John and June Jones, attending as well.
I would like to say one further word about my dad. He
retired after spending over 30 years of service to the U.S.
Government. As you can tell, I'm really proud of his service.
I'm especially proud that he could be here today with me.
I would also like to introduce three close friends with me
today, Ms. Ona Chapman, a long-time family friend from Boone,
NC; the Rev. R. Dallas Greene, who is the pastor of my church
in Frederick, MD; and George and Linda Selden of Campus
Crusade, also dear friends.
Mr. Chairman, I would like to begin by saying that I am
enormously indebted to President Bush for the opportunity he
has given me. I have had the privilege of serving in EPA for
more than 24 years. I was trained as a scientist, with a
graduate degree in pathology. I served in a number of positions
and capacities within the Agency. I was honored to be chosen by
President Bush in 2001 to serve as Assistant Administrator for
the Office of Prevention, Pesticides and Toxic Substances.
Again, I was honored in 2004 to be selected by the
President to serve as Deputy Administrator. But it is an
unparalleled privilege to be selected to lead the Environmental
Protection Agency. As the first career employee and trained
scientist to be nominated, I am most grateful for the
opportunity.
It is a fair question to ask how I would lead the Agency if
given the opportunity. During my more than two decades at the
Agency, I have worked with eight of the nine EPA
administrators, and I understand that we build on the
accomplishments of those who have preceded us. As former
Administrator, now Secretary Leavitt described it, we are
running a generational relay race, passing the baton from one
generation to the next, vowing to keep up the pace of
environmental protection and striving to accelerate the pace.
Mr. Chairman, as I consider the next leg of the race to be
run, I see that we have made extraordinary progress in
environmental protection over the past 30 years. I am proud to
say that we have done so while maintaining an economy that
continues to grow. We have developed an ethic of environmental
protection in the United States. The questions now are, how can
we do this better, with more certainty, using better tools.
I see two key challenges before the EPA, if are to maintain
the pace of environmental protection in a vibrant economy.
First, we must manage the dynamic evolution of scientific
discovery. Second, we must identify and formalize collaborative
approaches to solving environmental problems.
Let me say a word first about managing science in the EPA.
As a scientist, I am intrigued with the promise of new areas
that technology and scientific discovery hold for improving the
world we live in. But I also recognize the process of
scientific discovery is not always straightforward. There are
times when we are not sure what the science is telling us.
So our challenge is to make sure that when we are required
to make regulatory or policy decisions, we are using the best
available scientific information while continuing to pursue and
encourage rigorous scientific inquiry.
I would like to say a word here about the recent clear air
mercury rule, because I think it is an example of the kind of
challenge presented by the dynamic nature of scientific
inquiry. The issue of mercury emissions from coal-fired power
plants had languished in the Agency for too long. It was time
to make decisions about how to control these emissions from
power plants.
But few of the scientific questions are easy. We face
questions of how quickly technology would develop, how the fate
of various types of mercury in the environment would occur, and
what about the sources of exposure to the human population?
Using our best scientific judgment, we carefully reviewed many
scientific studies and more than 500,000 public comments in
reaching our decisions in the rule.
I am proud to say that this is the first regulation
anywhere in the world to control mercury emissions from power
plants. But we are not finished with the issue of mercury. We
will continue to follow the science to better understand the
risks to human health and the environment. We will do our best,
in an open and transparent way, to make decisions based upon
the best available science to continue to protect public health
and the environment.
The second challenge we face is to identify and formalize
collaborative approaches to solving environmental problems. The
traditional methods of environmental protection are not as
effective in the face of new realities. We have harder
scientific questions to answer, sometimes fewer resources, and
many times our environmental issues extend beyond the reach of
our agencies and even our court systems. We need to find new
ways to identify common interests and solve pollution problems.
The President's Executive Order on the Great Lakes is one
of the best, most recent examples of a successful
collaboration. We need to recognize when environmental problems
are amenable to collaborative approaches and learn the skills
necessary to lead such collaborations to successful completion.
Mr. Chairman, looking into the future, an essential
ingredient for meeting these two challenges for the next leg of
our generational race is a well trained, professional staff at
EPA. We need people who are trained in the sciences, who are
committed to an open and transparent process, and who are
passionate about finding new and innovative ways of solving
problems. As a veteran of the Agency, I would make it a
priority to develop these qualities in the next generation of
EPA professionals.
Mr. Chairman, in conclusion, I have dedicated my entire
professional life to protecting public health and the
environment. I have always believed that these goals are
consistent with maintaining our economic competitiveness. I am
proud that our Nation has prospered as we continue to achieve
our environmental objectives.
If confirmed, I will do everything I can as Administrator
to continue to serve the American people by working to protect
their health and the health of the environment. Thank you very
much. At this time, I would be very happy to answer any
questions you may have.
Senator Inhofe. Thank you, Mr. Johnson. As Chairman, I have
no questions. We are going to still try to get this done in
time. I would recognize Senator Jeffords. These will be 4-
minute rounds.
Senator Jeffords. For the convenience of Senator Carper, I
would like to yield my time now for him, and I will hold my
questions until the second round.
Senator Inhofe. Senator Carper.
Senator Carper. Thanks very much. Thank you, Senator
Jeffords.
Mr. Johnson, as I stated in my opening statement, on March
3d of this year, I sent to you a request for analysis of
various multi-pollutant legislative proposals. I just want to
ask first of all, what progress have you made in fulfilling
that request?
Mr. Johnson. Well, Senator, thank you very much for the
request. Thank you for your interest in helping us move the
Clear Skies legislation. I believe that is an important piece
of legislation that we should continue to pursue. I think it's
the right answer. It's a better answer than the two rules that
we have put in place.
I am convinced and continue to believe that the best
approach is working with you and other Members of the committee
in a bipartisan fashion to get whatever analyses that you all
need to be able to move this important piece of legislation
forward. So my commitment to you, Senator, is to work with you
in a bipartisan fashion to get the analysis that we all agree
is necessary to move this forward and to have the debate.
Senator Carper. Again I would ask, what progress has been
made in fulfilling that request? It was rather specific, and
you and I had an agreement to go over that.
Mr. Johnson. Senator, we have not begun the specific
analysis. The first reason is, as I believe I mentioned to you
when we met, is that when your initial letter came in on March
3, we were in the midst of doing very detailed analysis, long
into the night of many nights, of finishing up our mercury
rule. We had a court deadline of March 15. So our attention
was, I believe, appropriately focused on making sure we were
meeting that deadline.
Second, since that time, as I met with you and Senator
Voinovich and Senator Inhofe and Senator Jeffords, it became
very clear to me that there was bipartisan interest in moving
forward, but that there was no agreement as to what analysis
needed to be done. I respect your request. You certainly have
my commitment to work with you, Senator Jeffords, the Chairman,
and Senator Voinovich in a bipartisan way, to provide whatever
analyses that this committee needs to be able to answer the
questions.
Senator Carper. Let me just ask you, whose permission do
you need to respond fully to the request I've made of you?
Mr. Johnson. I'm not sure that there is permission per se.
I would say and reiterate that I believe it's appropriate for
us to work together in a bipartisan way to try to address this.
If there is no interest in moving the legislation forward
on both sides of the aisle, then I would say that I'm not sure
that's the wisest use of resources. But again, I wouldn't want
to preclude that. I would want to have further discussions. So
my commitment, again, is to work with you, Senator Voinovich,
the Chairman, and Senator Jeffords to meet your needs for the
data that you need, to be able to help move this important
piece of legislation. Because I agree with you, I think Clear
Skies is a better approach.
Senator Carper. I would not pretend to speak for my friends
on the other side. But there is plenty of interest on this side
in moving a strong, balanced bill. It protects our environment,
protects public health, and it is fair and reasonable to those
of us who consume electricity and those who would produce it.
Let me just ask directly, do you intend to conduct the
analysis that I have requested?
Mr. Johnson. I will conduct the analysis that has been
requested by this committee, yourself included, if there is
agreement on what analysis needs to be done. Again, if it's
clear that the committee is interested in conducting analysis
and moving Clear Skies forward, which I certainly hope it is,
and that is my belief, then I am prepared to have the Agency
conduct whatever analysis is necessary.
Senator Carper. To your knowledge----
Senator Inhofe. Senator Carper, I'm very, very sorry, but
in deference to the other members of the committee, we ought to
try to keep within our 4 minutes. You will have another
opportunity.
Senator Carper. Thank you very much.
Senator Inhofe. Thank you. Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman.
Welcome again, Mr. Johnson. I have two quick questions.
I have a personal belief that we here spend too much time
arguing about standards that oftentimes by their best are
arbitrary and far too little time talking about best management
practices and motivation for solutions.
To that end, my first question is this. A couple of years
ago, in the southern Tennessee Valley, northwest Georgia, a
number of counties in those States came together and created an
early action compact to address particulate matter and to try
and prevent, and meet attainment so they would not fall into
non-attainment. This PAC was an aggressive PAC where these
counties and communities made aggressive efforts to reduce the
particulate matter.
It's my understanding that notwithstanding what they did in
that compact that they are going to be found to be non-
attainment. Why would we have an encouragement for people to go
into compacts to address the problem we're concerned about, and
then even when they do it, have no transition or no ability to
give them some room and then find them in non-attainment?
Mr. Johnson. Well, Senator, certainly we are and should,
and I certainly encourage the development of and signing up for
early action compacts. That is the kind of collaborative
approach that I think is the right thing to do.
Having said that, we do have the requirements of the Clean
Air Act that we all have to fulfill. When monitors that meet
the requirements of the statute find that there are
exceedances, whether it be fine particulate such as
PM<INF>2.5</INF> or ozone, then we are bound by what the law
directs us to do, and then we have to find that those cities or
areas are in non-attainment.
Having said that, certainly we need to work even harder to
work with the State and local communities to address those
issues. Clearly, regulations that are put in place such as the
Clean Air Interstate Rule help, the Clean Diesel Rule,
certainly helps to address a lot of the issues that we're
talking about. But you certainly have my commitment to continue
to work with you and the communities in your jurisdiction to
help them in any way that we can to make sure that the air is
clean and also meeting the standards.
Senator Isakson. Would I be correct in assuming that were
Clear Skies the law, in such a situation where you had early
action compacts, you in fact would have an opportunity to
determine this as a transition area rather than a non-
attainment area and actually encourage collaboration?
Mr. Johnson. That is correct. That is part of one of the
provisions that certainly has been discussed as part of the
Clear Skies and one of the many advantages to the Clear Skies
legislation.
Senator Isakson. I have to cut you off, but I have one
other quick question. The two great motivators in life, one is
fear, the other is reward. There are others, but those are the
most significant.
In the 1990's, I worked in Georgia, in the Soil Sediment
Control standards in the State of Georgia. It's my
understanding that EPA has taken a most aggressive posture on
violations of the Stormwater and Soil Sediment Erosion Control
standards, to the extent that there is no leeway between notice
of an offense and right to cure. The fines are significant. I
understand fines are a motivating reward.
But given the type of weather than can happen and acts of
nature, doesn't it seem appropriate that if we took a best
management practice approach, which is to notify a violator,
give them a chance to remediate on a first offense, not talking
about a repeat offender, that would be a far better solution
than to arbitrarily be sticking rather significant fines on
people with no right or time to cure?
Mr. Johnson. As a general course, I believe that the
direction that we need to be headed is to ensure that there is
compliance. The reason why there are stormwater runoff rules is
to ensure the protection of the environment. There are multiple
ways to get there, as you've said.
I believe our approach with that issue is to work with the
communities and the facilities to first understand what the
problem is and then address it.
Senator Isakson. Thank you.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Isakson.
I regret to say that the very ambitious schedule that I
outlined an hour ago isn't going to work. We are going to
recognize Senator Boxer, she made a request early on to forego
her opening statement and have her 4-minute rounds consecutive.
We will acknowledge you at this time.
But I would say to the rest of you, after she has
completed, we will go ahead and vote and go to our joint
session, then reconvene at 2:30. Does anyone have a problem
with that?
Senator Boxer, for 8 minutes.
Senator Boxer. Thank you, Mr. Chairman.
Congratulations on your nomination, Mr. Johnson. You and I
had a good talk about the fact that this committee, individuals
on it, we need more information. I am going to take you at your
word that you will do that, so I'm not going to belabor the
point.
But I think I'm a little troubled by some of your answers
to Tom Carper. But hopefully, you will surprise us and we will
be happy and get the information we need to make sound
judgments.
I am very concerned about a number of issues, some of them
have been mentioned here. But I am going to focus in on
pesticide testing on humans. Mr. Johnson, you've spent most of
your long career working on pesticide programs. In 2001, you
were promoted by the Bush administration to head the pesticide
program. When you were first elevated to this position, the
Bush administration overturned the Clinton administration's
informal moratorium on human testing of pesticides, so that
human testing could continue.
Administrator Whitman quickly reversed that decision after
a public outcry. At the time, you were quoted in the L.A Times
as saying, ``We believe we have more than a sufficient data
base through the use of animal studies to make licensing
decisions that meet the standard to protect the health of the
public without using human studies.'' Now, we know what the
court said, was that the EPA had to do more, make more of a
case before you could ban human testing, and that is in
process.
But despite your statement that you didn't need human
testing, in October 2003, while you were running the pesticides
program, EPA proposed the Children's Environmental Exposure
Research Study, or CHEERS. I have a copy of the brochure that I
have blown up on a chart, Mr. Chairman. This picture really
tells it all. The picture tells the story.
The study is recruiting very young babies, less than 3
months old as a target group, and their families, and providing
incentives for routine pesticide spraying in their homes. If
you agree to keep up the spraying over a 2-year period, you can
get up to $970. You also get a framed certificate of
appreciation, a CHEERS bib, a tee-shirt with the child riding a
bicycle and the CHEERS logo, a calendar, a newsletter and the
video camera you use to tape the effects of pesticides used on
your baby. You get to keep the video camera.
Mr. Johnson, in my opinion, this is just me speaking, I
don't speak for anyone else. As someone who wrote the
Children's Environmental Protection Act, I find this an
appalling project. I think it's unethical, because we already
know that children are very sensitive to chemicals, much more
than we are. It flies in the face, I think, of everything that
we know about pesticides and kids.
The financial incentives are also likely to attract lower
income residents of the Florida county that is the target of
the study. If ever there was a case of environmental injustice
with the victims being babies, this is it.
Now, I had, I was led to believe by little articles in the
newspaper that this program had been canceled. But I was
confused as to why this recruiting brochure is still up on your
web site. I called the phone number, and I could take the time
to play it, but I can just show you the chart, I have it. This
is what you get when you call the number. ``Thanks for calling
CHEERS. The study has been delayed due to some technical
issues. We don't know how long the delay will last, but we will
contact you in the future when we resume the project. Thanks
again for your interest in CHEERS.''
So my question to you is, has this program been canceled?
Mr. Johnson. Senator, I suspended the program. Our Office
of Research and Development that developed the research
protocol went through four institutional review boards for the
protocol. The intent to go into people's homes and to monitor
what their normal activity was with children there was the
intent.
But seeing and hearing about the various issues which you
have just raised, I actually suspended----
Senator Boxer. Has the program been canceled?
Mr. Johnson. I have not canceled the program, and I
suspended it. Here's what I have asked be done. In fact, in the
coming weeks, there will be a public hearing that this study
will be presented to a joint panel of experts, experts outside
the Agency that include experts from our children's health
advisory----
Senator Boxer. I'm sorry to cut you off, but has the
program been canceled?
Mr. Johnson. It has been suspended.
Senator Boxer. The answer is no, is it not?
Mr. Johnson. That's correct. It has been suspended, pending
the outcome of external scientific peer review.
Senator Boxer. We will contact you in the future when we
resume the project. Now, your description of what you had
intended is not what it says in this brochure. It says, am I
eligible to participate? Sixty participants, only 60, will be
selected. To be selected, you must live in Duvall County, FL,
which by the way is 27 percent minority population, be a parent
of a child less than 3 months old or between the ages of 9 to
12 months old and spray or have pesticides sprayed inside your
home routinely.
You have not canceled this program. Now, my understanding
is that you have a group that is now studying this program. Why
are you studying this program? Don't we know enough to know
that this would be morally wrong, to entice probably low income
people, to entice them with $900 plus, it's a lot of money for
some people, keep spraying their children, essentially, the
environment of their children for 2 years, otherwise they don't
get the money?
Isn't that just wrong on its face? Why do you have to study
that? You said we don't need human testing. You used that clear
statement in 2001.
Mr. Johnson. I stand by the statement. We don't need----
Senator Boxer. Good. So then, why don't you cancel the
program?
Mr. Johnson. Well, the reason why we didn't cancel the
program was because the issues that you raised are issues that
come up with every study, whether it's children or adults,
where human subjects are involved. Again, the researchers were
trying to identify a sub-population that were using pesticides,
not encouraging them to use, certainly not directing them to
expose children to pesticides or other chemicals, because it
was more than----
Senator Boxer. Mr. Johnson, if I were to go out and say, I
want to find out more information about smoking and what it
does to women, because we know now women seem to be more
adversely impacted. I said, for 2 years, if you smoke, you
continue, you're already smoking, you're smoking a pack a day,
we're not asking you to smoke more, but you continue smoking a
pack a day for 2 years, we'll give you $1,000. That's wrong.
Why are we going into these homes where they may be
pesticide spraying, maybe the parents don't even know the
information you and I know, and just telling them, use those
pesticides as infrequently as possible and try to get people to
understand that it's bad?
All I'm saying is, and I'll conclude here, because I heard
the cough of my Chairman----
[Laughter.]
Senator Boxer [continuing]. Kind of a hint, I've gotten to
know his cough.
I feel so strongly about this, Mr. Johnson, that unless
this project is canceled, I have a lot of problems moving this
nomination forward, I'm going to be honest. I don't think we
need any more studies to know this is morally wrong. Take
little babies and entice their parents with gifts? What do
these kids know about it? They are innocent victims, and I
think it's outrageous and I think you ought to pull the plug on
that program tomorrow. If you don't, I'm going to have
problems. I'm going to use everything at my disposal to make
that happen.
I thank you.
Senator Inhofe. Thank you, Senator Boxer. We are recessed
until 2:30 this afternoon.
[Whereupon, at 10:20 a.m., the committee was recessed, to
reconvene at 2:30 the same day.]
Senator Inhofe. All right, the meeting is reconvened. We
are out of recess. There is a vote that will take place in
about 10 minutes, but we plan to work all the way through the
votes and ask the committee if they will take turns in going
out to vote and coming back.
We will continue now with Mr. Johnson and Senator DeMint. I
don't believe you have had a first turn at questions, have you?
Senator DeMint. No, I have not.
Senator Inhofe. OK, well, you're recognized for either both
of yours or one of yours.
Senator DeMint. OK, great. Thank you, Mr. Chairman.
Thank you, Mr. Johnson, for being here today. I had a
chance to meet your dad, who you told me about as well, who is
from Myrtle Beach, SC. We have some family connections here in
the State. I met with Mr. Johnson on several occasions to talk
about some issues in our State that are very important to us. I
appreciate your responsiveness. As you know, it's very
difficult when areas are in non-attainment to replace jobs,
which in South Carolina, because of the loss of textile jobs,
we have the third highest unemployment rate in the Nation.
Trying to attract new industry is difficult when you have non-
attainment status.
You have assured us that you will work with us on making
sure the monitoring is fair, which I greatly appreciate. But on
a larger scale, I would just like to mention, you brought up
just the ethic of protecting the environment in the EPA, which
I greatly appreciate. But I hope with your leadership that we
can expand that ethic to include a culture of recognizing that
not only do you need good air, clean water to have a good
quality of life, but you need a real good economic environment.
I think in the past the EPA has been known for more of a
punitive relationship with the business community, when in fact
we need what you mentioned before, a more collaborative
relationship. Business needs partners on how to produce. There
are so many incentives now for someone to outsource something,
because we can't get an environmental permit to do something,
when in fact with the right science, the right collaboration,
we could do those jobs here in this country. In talking with
you, I feel like that you'll bring that rational perspective to
the EPA, which I greatly appreciate.
But as you know, in our area we have asked for particular
help with a particular monitor, and at this point feel like the
EPA has not even filed its own criteria with the locations of
those, which has put many jobs at risk. So I would appreciate
the follow-up that you have promised us, and I fully, am very
convinced that you will what you said, which I greatly
appreciate.
Mr. Johnson. Thank you.
Senator DeMint. But if I have just a minute, I would just
like to get maybe your thoughts on the collaborative
relationship with business, economic growth and how you see
bringing a culture that has been focused on standards for the
environment to standards that balance the economic needs as
well as bringing all of your science and methodologies to bear
on partnering with industry so that we can produce in this
Country and still have clean air and clean water.
Mr. Johnson. Thank you, Senator. Let me first comment that
I do certainly commit to work with you to address the air issue
and the monitor which may be problematic, and look forward to
working with you each step of the way. I think we have outlined
a good series of steps to take to better understand that, with
additional monitors and other things. I look forward to working
with you and you certainly have my commitment.
With regard to environment and economics, my experience and
certainly my belief is they not only go hand in hand, they
really must go hand in hand. Because without a vibrant economy,
certainly my experience is, less attention is paid to the
environment. I believe that they need to go hand in hand, and
that we need to pay attention to the environment as we move
forward in our economic development.
Certainly I think we have some absolutely outstanding
examples of things that we have done cooperatively. One of my
favorite examples in the air program is one of the labels that
we have called EnergyStar, and EnergyStar is currently used on
multiple appliances if they meet a certain standard.
What's interesting to me is in the year 2004 that just by
the purchasing and use of these EnergyStar certified products,
if you will, that just that one, just the year 2004, the
savings both in electricity, I believe the number is about $10
billion in savings of energy costs, and also the amount of
emissions reduced by buying an EnergyStar product equates to, I
believe the number is about 20 million cars on the road. So
here is just a label, and informing consumers of what kind of
product to buy, one that is energy efficient, has tremendous,
tremendous leverage and opportunity. That is an example of the
kind of collaborative partnership that is working, continues to
work, and that's the kind of thing that I'd like to see expand
to other areas.
Senator DeMint. Thank you very much.
Mr. Chairman, if I could make one comment about our next
nominee, because I'm not sure if I'll get back. Another
challenge we have in our State, I think it takes about twice as
long in our State to get a permit from the Army Corps than
several other States, which is another jobs issue. But on at
least one occasion I have requested help from Secretary
Woodley, who has come to our State and solved our problems at
least on specific matters. I want to thank him publicly for
being responsive, and I hope he can bring that culture to the
whole office there in South Carolina.
So thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator. Senator Boxer, 3
minutes.
Senator Boxer. Yes, I will go fast here. Thank you, Mr.
Chairman.
Mr. Johnson, just to continue on this issue that I raised
with you, the Children's Environmental Exposure Research Study,
where EPA has a plan about which was put on hold and not
canceled, and continuing to evaluate that would expose babies
to pesticides, what do you tell in the application? Are you
aware of what you're telling families about the possible risks
to their children?
Mr. Johnson. Senator, some times there is an opportunity to
take advantage of a break and a recess. After you raised the
issue on the children's study, I went back and looked at both
the voice mail message and also what was on our web site and
found that it did not reflect what my direction was to the
Agency, and that was a full suspension, not to do any
recruiting, not to do anything until such time.
I have a letter that will be delivered to you very shortly
that clearly states that I directed that all aspects of the
study, including enrollment, be suspended. To be clear, no
additional work is going to be conducted, subject to the
external scientific review, both as a science and the ethic.
Senator Boxer. Well, that's a suspension and I appreciate
that. But that's not a cancellation of the program. I want you
to cancel this program. Because just so you know, in the form
that the people get, it says, is there are any risk to me and
my family, the answer from the EPA is no, you and your child
will not experience any risks from participating in the study.
We further found out that--who's paying for the study? Are
you aware of who's paying for the study?
Mr. Johnson. There are two sources of funds for the study.
One source is EPA, the other is through a Cooperative Research
and Development Agreement with the American Chemistry Council.
Senator Boxer. The American Chemical Council.
Mr. Johnson. That's correct.
Senator Boxer. Right. So we have this program being funded
by the industry that makes the pesticides.
I will close with this. Once more saying, I'm glad you're
taking, you know, you changed the voice mail. But you're still
continuing to look at this. I want this program canceled.
Let me read to you what the EPA, several EPA scientists
expressed, I'm reading from an article, and I'll put it in the
record, Mr. Chairman, from November 12, 2004. Critics say EPA
study would have harmed low-income children. Several EPA
scientists expressed outrage about the study, saying it
unfairly targets low-income families, attempting to lure them
into an agreement with high-tech gadgets when they may not
fully understand the health consequences for their children. It
goes on, there is actually a person cited here who says, ``This
study goes against everything we recommend at EPA concerning
the use of pesticides related to children. Paying families in
Florida to have their homes routinely treated with pesticides
is very sad when we at EPA know that pesticide management
should only be used to protect children.''
So I'll put that into the record.
[The article referred to follows:]
[From the NewStandard]
Critics say EPA Study Would Have Harmed Low-Income Children
After scientists and environmentalists slammed the EPA for planning a
pesticide study critics believe could potentially harm low-income
children, the agency has sent the methodology back for review
(By Catherine Komp)
November 12, 2004.--The Environmental Protection Agency announced
that it has suspended a study looking into the effects that pesticides
have on children, after top EPA scientists questioned the ethics and
safety of the research itself. The $9 million Federal study, partially
funded by an alliance of chemical companies, would pay low-income
families almost $1000, plus electronics and clothes, to maintain
current pesticide use in their homes for 2 years.
The Children's Environmental Exposure Research Study (CHEERS)
targeted families in Duval County, Florida and was to study the effects
on small children of using chemicals and pesticides in the home. In
addition to the one-time $970 payment, the EPA was offering incentives
such as a free camcorder, VCR, t-shirts, bibs, and a framed certificate
of appreciation. While the EPA's website said it would not ask families
to apply pesticides in their home to be part of the study, it does
require that parents ``maintain [their] normal pesticide or non-
pesticide use patterns for [their] household.'' The EPA would then
monitor changes in development of children in the house.
Several EPA scientists expressed outrage about the study, saying it
unfairly targets low-income families, attempting to lure them into an
agreement with high-tech gadgets when they may not fully understand the
health consequences for their children. In an email obtained by the
Washington Post, Troy Pierce, an EPA life scientist in Atlanta, said
the study ``goes against everything we recommend at EPA concerning use
of [pesticides] related to children. Paying families in Florida to have
their homes routinely treated with pesticides is very sad when we at
EPA know that [pesticide management] should always be used to protect
children.''
Critics and doctors say household cleaners and pesticides are
linked to neurological damage in children and they criticize the EPA
for stating on its CHEERS web site that the study will not cause risks
to children or parents.
Environmentalists have also criticized the CHEERS study. Dereth
Glance is program coordinator for Citizen's Campaign for the
Environment, a nonprofit organization focusing on issues surrounding
public health and the environment. In a press statement, Glance said
the EPA solicited participants from hospitals and clinics in
Jacksonville, Florida that serve primarily low-income families and
people of color.
In its documentation on the study, however, the EPA says that it is
finding potential participates through a variety of methods, including
private doctor's offices, daycares and word of mouth. The agency
adamantly denied targeting low-income families.
Maria Lawson, spokesperson for the American Chemistry Council,
which provided $2 million toward funding the $9 million EPA study, told
the Post that the group ``continues to strongly support the study
because of the great importance of increasing understanding of the
exposures of young children to pesticides and other chemicals they
naturally encounter in their daily lives.''
Linda S. Sheldon, an EPA spokesperson, told the Post that the study
was important because there is so little information about how small
children absorb harmful chemicals. She also said the study's design had
been reviewed by independent scientists, officials at the Centers for
Disease Control and Prevention, as well officials at the Duval County
Health Department.
Since the study was suspended this week, the EPA announced it will
reexamine its design and submit it for review to a panel of independent
experts. An assessment is expected next spring.
Senator Boxer. Then there is an article in the St.
Petersburg Times, November 2, 2004, the U.S. Environmental
Protection Agency has announced a project with the innocent-
sounding acronym CHEERS, and it explains it, they will be given
$970, a camcorder and all the rest. It says, ``Then over the
next 3 years, researchers will stop by every 3 months or so to
determine which chemicals the children are exposed to and how
they may be affecting their development.''
Would you want that for your new grandchildren? I'm a
grandma. I don't know that you'd sign them up.
Here's what it says. ``No, this isn't a sick joke, but an
EPA-approved study that is partially funded by the chemical
industry.'' So Mr. Chairman, I've said my piece, I so
appreciate getting another few minutes here. I stick with what
I said. We know enough, as your EPA scientists have said, that
this is wrong, morally wrong. We should cancel this program. I
have heard wonderful things about you, Mr. Johnson. I hope you
will take to heart what I said, because I certainly would like
to see you do your job.
But if you don't cancel this project, I don't really
understand it, because science has already told us that our
children are the ones we must protect from pesticides, not
encourage parents to keep spraying for 2 years while we see the
damage to their children. It's an outrage, and I'm hoping that
by tomorrow you have another letter on my desk that says, I've
taken a further step and canceled the program.
Thank you.
[The articles referred to follow:]
[From the St. Petersburg Times]
[November 2, 2004]
Experimenting on Children
(South Pinellas Edition)
Florida.--The U.S. Environmental Protection Agency has announced a
project with the innocent-sounding acronym CHEERS. Parents in the
Jacksonville area who want to participate will be paid up to $970 and
given a video camcorder and ``an official, framed Certificate of
Appreciation.'' While that might sound tempting, especially to a family
looking for a little help with Christmas this year, anyone interested
might want to know what CHEERS stands for before signing up--Children's
Environmental Exposure Research Study.
More specifically, the EPA wants 60 families in Duval County who
have a child under the age of 13 months to continue applying household
pesticides as usual. Then, over the next two years, researchers will
stop by every three months or so to determine which chemicals the
children are exposed to and how that might be affecting their
development. No, this isn't a sick joke, but an EPA-approved study that
is partially funded by the chemical industry.
The EPA says the information will help the government protect
children from harmful chemicals in the future. While that goal is
noble, the methods being considered are indefensible. Even some of the
regulatory agency's own scientists are coming to their senses and
beginning to question the plan among themselves, according to e-mail
messages obtained by the Washington Post.
Suzanne Wuerthele, EPA regional toxicologist in Denver, said she is
afraid the study takes advantage of poor families and fails to inform
them of the risk to their children. ``It is important that EPA behaves
ethically, consistently and in a way that engenders public health,''
she wrote, adding that if the agency fails to do so, its ``reputation
will suffer.''
Unfortunately, it is the children involved in the study that stand
to suffer the most. By offering money and a camcorder (which will be
used to record the child's activities), the EPA is obviously trying to
entice low-income families, a group that is also less likely to be
aware of the dangers.
Linda Shelton, acting director of the EPA's Human Exposure and
Atmospheric Sciences, said the agency would monitor chemical use in the
homes and inform parents if a child's urine showed significant levels
of pesticides, but that misses the point. The agency's first
responsibility is to protect children, not to stand by as even a few
are exposed to needless risk.
A humane and just society doesn't do experiments on children that
even appear to treat them as lab animals. The EPA should cancel this
study and find an ethical way to research the chemical threat to
children.
______
[Sarasota Herald-Tribune]
[November 3, 2004]
Playing with Poison; EPA Pesticide Research Doesn't Pass the Smell Test
Florida.--Maybe it's time for someone to throw a tent over the
Environmental Protection Agency and fumigate it for bad ideas.
In a mind-boggling move, the agency recently announced plans to
accept $2 million from the American Chemical Council to conduct a 2-
year study of the effects of pesticides on 60 infants and toddlers in
Duval County.
As if the inherent conflict of interest in accepting industry
funding weren't bad enough, the proposal gets worse: The EPA is
offering $970, plus free clothing and camcorders, to every family
recruited.
Astonishingly, what the agency isn't offering is to intervene if
the kids begin showing levels of poisoning that would cause health
damage or developmental problems.
Scientists inside and outside the EPA oppose the plan, which bears
the Orwellian acronym of CHEERS, short for Children's Environmental
Exposure Research Study.
There's certainly merit in studying the effects of pesticides on
small children, but this approach raises serious ethical--not to
mention common-sense--questions.
Public Employees for Environmental Responsibility, a watchdog
group, says the study fails to explain to families the potential risks.
Critics contend that poor families will be lured into the program
without fully weighing the pros and cons.
The study is also objectionable because of the financial role of
the pesticide industry. Surely our government isn't so hard up for
research money that it has to take cash from the very industries under
scrutiny?
CHEERS is nothing to cheer about. The EPA should squash this idea
flat.
Senator Voinovich. [Presiding.] Thank you, Senator Boxer.
The Chairman has asked me to preside while he's voting. I
will take this opportunity to do one thing that I think is
important for the record. Maybe, Mr. Johnson, I might bring you
up to date on what's happened in Clear Skies, I know you've
followed it somewhat, but it wasn't in your bailiwick.
Mr. Johnson. Yes.
Senator Voinovich. I think I'd like to point out that this
committee has had 24 hearings, including 2 this year, on multi-
emissions issues. At the business meeting, we had thousands and
thousands of pages of information displayed on a table right in
front of this committee. EPA career staff, not the political
people, have stated that this is the most analysis that they
could ever remember being performed for a single legislative
proposal. That's pretty significant.
In truth, we have more information on Clear Skies and the
other proposals than any other bill going through this
committee. Many of the members of the committee on the other
side had none of this information when they voted for the
Jeffords bill back in 2002. I remember that, I was very much a
part of that negotiation. The fact is, we had zippo in terms of
information on that, and this committee voted it out.
We probably have more information about these multi-
emission proposals than the whole Congress had when it passed
the Clean Air Act amendments in 1990. There are a lot of things
that were speculative, but Congress decided to go forward with
it. Now we have even more information than 1 month ago, due to
the finalizing of your Clear Air Interstate Rule.
I would also like to point out to you and for the record
that the Energy Information Administration analyzed all three
of these bills, the ones that we're asking for an analysis, the
Jeffords, the Carper and Clear Skies on May 2004, a little over
a year ago. EPA did an analysis of all three bills. I asked
them to do that, and they interpolated the effects of all three
bills from the Clear Skies analysis. EPA career staff has told
me and probably has told you that if we did what Senator Carper
wants, it would take us several months and quite frankly, we
would end up with very little new information than what's
already on the table. I want you to understand that I think we
have enough information to get started with the negotiation and
come up with numbers.
Besides that, I think it's something that needs to be
pointed out, all of the environmental groups, some of them
sitting here, have done an analysis of these bills. So have the
industrial representatives. We'll get them in the room, how do
you feel about this, environmental groups? They'll say, we feel
this way about it. Well, how do you feel about it, industry?
Well, we have it.
People really are genuine about doing something about this
issue and getting away from what I refer to as a litigation
environmental policy that has done nothing basically for the
environment and certainly has put this Country behind in terms
of our energy and our economy. This is a very important area. I
wish Senator Carper were here right now to hear this. But I
think it's important that this be in the record, and that this
Senator is willing to get started tomorrow if somebody is
willing to come to the table, and let's start using some
numbers, once it's over, we'll ask you to do another complete
analysis before the bill hits the floor.
But to sit here and say, we're going to wait until some
information comes in, hell will freeze over before we get a
bill out of here. We can hardly find time to get a highway bill
out on the floor here in the Senate. That's reality.
Great Lakes, you and I have talked about it. I am very
concerned about the leadership that we have for Great Lakes.
I'd like you to comment to me about how you feel about it. Your
predecessor, Mike Leavitt, spent a lot of his time, some would
say too much of his time, on it. The fact is, I'd like to hear
from you. Are you familiar with it, and how do you feel about
it?
Mr. Johnson. Senator, first of all, thank you for your
leadership on Clear Skies. Thank you for your comments on the
analysis. I stand ready to assist you and other Members of the
committee to help in any way I can, because I think Clear Skies
is still the right thing to do.
With regard to the Great Lakes, I certainly was working
with now-Secretary Leavitt in his leadership with the Great
Lakes. The Great Lakes are great, and the phrase that captured
what the effort is all about is a regional collaboration of
national significance. I think that is very appropriate.
Because it really is a significant area of effort to bring
together multiple groups, whether from the States, from the
cities, from tribes, from all aspects of the Federal
Government. Mike Leavitt was clearly the leader.
If chosen to be confirmed, I certainly plan to move into
those shoes. Those are big shoes to fill. I have already
attended two of the executive committee meetings to get briefed
by all the participants and begin actively working. I'm excited
that we have a great effort, and we're moving rapidly with
great cooperation from everybody.
So Senator, you have my personal commitment. This is an
important task. Not to mention, it's also an executive order by
the President. I intend to fulfill that.
Senator Voinovich. I'm very happy to hear that.
One of the things I also suggested to the Administration is
that this might be a wonderful thing that we can collaborate on
with the Canadians. Recently, we had more differences of
opinion, and this might be something where we can join with
them in a very positive issue. It could be the most significant
restoration in the world by a bilateral effort between the
United States and Canada.
Senator Carper and I have introduced bills, as I mentioned
earlier, in terms of science. You're a scientist. The question
we have is, what is your thought about having somebody
specifically be designated as that science person in the EPA?
We never really did get a chance to find out what Mike Leavitt
felt on that. There has been some pushback over the last
several years on it, and I think it's a great idea.
It adds to, I think, the credibility of the Agency to have
someone there that's on the science side, both for those that
are from the business side and from the environmental side. How
do you feel about it?
Mr. Johnson. I think that since I honestly believe science
must be the foundation of all the Agency's decisions, I'm fully
supportive of having a senior scientist. In fact,
organizationally we have, our principal science organization is
our Office of Research and Development. In addition to that, we
do have a senior scientist position which, if confirmed, I
would move to fill with a highly qualified scientist.
I think it's important. As I said, it's the foundation of
our Agency decision. So the more help we can have in the
science arena, I think the better decisions we will make.
Senator Voinovich. I would really like to have you look at
it and really focus on it. Maybe Senator Carper and I could
come and see you. If you don't think it's a good idea, tell us
why you don't think it's a good idea. We think it is. But
perhaps after you review it, you may say, this is not a bad
idea.
The last thing is the issue of the rules and regulations in
regard to sewer overflow-combined sewers. First of all, I think
you have an obligation to come to the Administration and ask
them for more money for water and sewers in this Country. I
mean, it's abysmal what we're doing in terms of this
infrastructure problem that we have.
The other thing that I'd ask is this, that you have all
these rules and regulations that are forcing local communities
to do a bunch of things that cost a whole lot of money. One of
the examples that I have is the city of Akron, OH, that's
agreed to go forward and do what they're supposed to do, the
Ohio Environmental Protection Agency has signed off and said,
it's OK. They come to Washington and Washington says--and by
the way, they agreed to 30 years--Washington says, no, it's got
to be done in 15 years.
It seems to me that some common sense approach should be
given to some, if you're not going to provide the money to
these cities and say, hey, baby, it's your job to fund it, then
for goodness sakes, it seems to me the Agency has a
responsibility to cooperate and say, OK, you know, you can't do
it in 15 years, but you are going forward with it, we can
monitor your performance and I really would appreciate your
looking into that.
Mr. Johnson. I would be pleased to. I will do that. Just a
comment, you hit, I believe, one of the major issues facing the
Agency in the water arena. That is, it's true that as a Nation
we have an aging infrastructure. The cost to our cities and
communities for trying to address that, the costs are
staggering, far exceeding EPA's budget.
So I look forward to working with you and other members of
this committee and others to look at what are some innovative
ways that we can deal with this reality of aging
infrastructure, and of course combined sewer overflows are one
aspect of that issue.
Senator Voinovich. Thank you.
Senator Inhofe. [Presiding.] Thank you, Senator Voinovich.
Senator Carper, for 4 minutes.
Senator Carper. Let me just reiterate for all of us,
especially for Mr. Johnson, what I've asked for and requested
be submitted back in the early part of March. First of all,
economic impact analysis of the manager's amendment of Clear
Skies; the Chafee-Carper, et al. proposal; and finally, Senator
Jeffords' proposal. That's an economic impact analysis of
those.
Second, we've asked for modeling of the air quality
benefits of each of these bills. Third, we've asked for other,
more focused analyses to better understand the mercury hot
spots issue and the impacts of the proposed changes to resource
review.
I said earlier in my statement, in trying to negotiate with
our friends on the other side and with the Administration, it's
hard to know, for me at least, it's hard for me to know what to
offer when we get down to the final horse trading. I don't even
know the benefits of my own bill that several of us have
introduced brings to my own home State. I know Clear Skies
doesn't do enough and Clear Skies won't solve Delaware's air
quality problems.
So I don't think we're being unreasonable here. We're just
going, my fears are we are going to spend a lot of time arguing
about whether or not you're going to provide the scientific
analysis that is, I think, if not available is achievable in
fairly short order. We spent a lot of time arguing about
whether or not you're going to provide it. Instead of us having
good data on which to figure out where to draw the line on SOx
or NOx or mercury or CO<INF>2</INF>, we're just going to waste
time, spin our wheels, that's not what I came here for, and I'm
sure it's not what you're up to either.
Let me just ask, if I could, Mr. Johnson, to your
knowledge, how many IPM analysis has EPA conducted in the
development of the Administration's Clear Skies proposal? Any
idea?
Mr. Johnson. Senator----
Senator Carper. I'm told it's 20 or 30.
Mr. Johnson. I don't know. As you well know, IPM was just
one of the, sort of the first step modeling that we do on air
quality, and then followed by another, more advanced model that
really takes weeks to run, and then followed by that with other
model called BENMAP that gets into benefits assessments. So
that combination of all those models to give the most complete
picture and the best analysis is literally months worth of
work.
Senator Carper. How many air quality modelings have been
done on Clear Skies, just roughly?
Mr. Johnson. I don't know, sir, but I would be happy to get
back to you with that.
Senator Carper. I was told 10 or so. If you could, for the
record, that would be great.
Mr. Johnson. I would be happy to.
Senator Carper. Let me just ask, could the Administration
put together a meaningful proposal without that kind of
modeling?
Mr. Johnson. As I understand, certainly in the historical
context of the original Clear Skies proposal, there was
extensive modeling that had been done, put that on the table.
Senator Carper. Did EPA conduct any analyses that you are
aware of in preparation for the clean air rule? If so, any idea
what was done?
Mr. Johnson. Again, extensive analysis and in fact, there
is, I think, literally thousands of pages of analysis in the
docket now on the Clean Air Interstate rule.
Senator Carper. Why did EPA choose not to interpolate the
air quality and economic impacts of this rule from the modeling
that was already done for Clear Skies?
Mr. Johnson. Excuse me, sir, which rule?
Senator Carper. The CAIR rule.
Mr. Johnson. The CAIR rule?
Senator Carper. Yes, let me ask you again. Why did EPA
choose not to just interpolate the air quality and economic
data, economic impact of this rule just by modeling that was
already done from Clear Skies?
Mr. Johnson. Certainly there was, I'm sure that there was
interpolation, at least what I recall from some of the early
briefings before all the detailed analysis was done, to set the
stage and put the marker as directionally where we should be
going, to make sure that we're spending our resources as wisely
as possible, and not doing needless analysis, obviously. So
there was that.
But then we did do a detailed analysis, obviously, this is
a rulemaking, it was a rulemaking, it is a rule. Unfortunately,
as you know, there used to be a process of proposing a rule,
finalizing a rule and then moving it forward. It has now been
replaced with proposing a rule, finalizing a rule then
litigating.
So we have to be ever mindful of that for all of our
regulations and particularly for those that we know are
associated with great controversy. So there was a great deal of
analysis done, both for understanding the science and making
sure that we are being appropriately public health protected
and moving the intent of the Clean Air Act, at the same time,
recognizing that we know we live in a litigious society.
Senator Carper. Mr. Chairman, I did not come here to
litigate, I came here to legislate and to find common ground.
I'm convinced we can find it. Doing the analysis that we've
asked for would be a huge help toward finding that common
ground.
Senator Inhofe. Thank you, Senator Carper.
The Chair will ask unanimous consent to include in the
record at this point a letter of endorsement by Senator Lugar
for the confirmation of Mr. Johnson. Without objection, let it
so be ordered.
[The letter referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. All right, Senator Jeffords.
Senator Jeffords. Mr. Johnson, you revoked Administrator
Browner's decision that it was ``necessary and appropriate'' to
reduce mercury emissions at each and every electric generating
unit in the country, using the maximum achievable control
technology as required in section 112 of the Clean Air Act.
Then you signed a rule that would allow 200 or more old and
dirty power plants to avoid making any mercury reductions until
the year at least 2020. Not to mention toxic trading.
How is this approach that you and the Bush administration
have taken more protective of public health than the approach
you are deeply obligated to take under section 112?
Mr. Johnson. Senator, as part of our regulation of mercury,
we were looking at mercury in the context of two other air
pollutants on both SOx and NOx. We were already moving toward
regulation of those.
As we were looking at the technologies associated with the
SOx and NOx, it became apparent that there were co-benefits, in
fact, significant co-benefits, that the same types of pieces of
equipment that would be put on for controlling SOx and NOx
would actually have a significant impact on mercury,
particularly mercury deposition and the kinds of mercury that
we're concerned about, methyl mercury in and around plants,
particularly the water bodies, because of concern for fish.
As we looked through what our regulatory tools are, indeed
section 112, the same section, also authorizes the Agency to
examine alternatives. So it doesn't say that we have to use a
particular or a prescribed approach, such as the maximum
available control technology, but in fact we could examine
alternatives. Given the fact that we were already receiving and
would receive significant co-benefits as a result of the Clean
Air Interstate rule, we chose what we thought was the most
health protective, the most cost efficient approach, and that
was section 111, which is the cap and trade you referred to.
Senator Jeffords. Thank you, Mr. Johnson. I have written
repeatedly, repeatedly to the Agency detailing my objections to
the Administration's illegal and unauthorized approach on
mercury. In March 2004, 45 Senators warned Administrator
Leavitt against adopting the rule which you have signed,
because it fails to comply with the Clean Air Act.
Were you ever advised by any person over at the Agency that
the final mercury rule would not withstand judicial review?
Mr. Johnson. No, in fact, my staff advised me that it would
withstand judicial review. Of course, you are probably well
aware that the Agency has now received a petition, or I think
maybe more than one petition, for staying the rule. But
certainly the staff has, my staff, legal staff, and our air
staff advise me that the rule was legal and defendable.
Senator Inhofe. You may continue, Senator Jeffords.
Senator Jeffords. Mr. Johnson, based on the response you
gave Senator Carper today, are you telling this committee that
you will only undertake research and provide technical
assistance for committee members if it is a bipartisan request
that includes the Chairman and Ranking Member of the full
subcommittee?
Mr. Johnson. Let me try to be clear, Senator. What I'm
trying to do is to walk what I believe is an appropriate and
certainly in 24 years of history at the Agency, an appropriate
path. That is, with the intent to pass a piece of legislation,
in this case Clear Skies, and there would appear to be interest
in having a bipartisan approach to passing Clear Skies, that in
order to take the kind of analysis, it literally takes, to go
through all the models that I referred to for all the various
scenarios, literally many weeks to do.
I believe it is a good approach for us to sit down, make
sure that we are all on the same page, make sure that we are
all supportive of having the right input parameters, or at
least understanding what the input parameters are, because the
last thing that I would want to have happen is to model your
proposal or model Senator Carper's proposal or model the
Chairman's mark or model some other, and then get into endless
debate over, you used the wrong input parameters, you've done
this wrong, we can't possibly come to a compromise.
So I think it's good practice, and again, in my 24-year
history here, when we're faced with the opportunity to have a
bipartisan piece of legislation, that the best approach is for
us to work together and to come up with, OK, here's the kind of
analysis that needs to be done. This is not a day's worth of
work. This is weeks and months worth of work which I'm
committed to investing if we all are understanding what ones
we're going to do and what approach we should take. Again, I
think it's important that, for me and certainly for the Agency,
that I want to meet Senator Carper's needs, I want to meet
Senator Voinovich's needs, I want to meet your needs and I want
to meet the Chairman's needs.
So what's the best way of doing that? Not for me to go off
and independently try to address those, but rather to try to
say, let's work together in a bipartisan way to figure out what
are the analyses that need to be done, what are the base set of
assumptions that need to go into those analyses, and then we
can move forward. But if there is not a desire to do that, or
if there is not a desire to really work toward legislation,
then I would ask, please save us from spending resources that
we don't have to spend.
As I said, I think it's the right thing to do, and I look
forward to trying to work with you all in a bipartisan way to
achieve that.
Senator Jeffords. I assure you, and I am sure my partner
would agree with me that we want to work in cooperation, we
want to do everything we can to maximize the utility of the
resources we have and come up with a legislation which is going
to solve the problem.
Senator Carper. Senator Jeffords, would you yield to me for
a minute? Mr. Johnson, was the extensive analysis EPA has done
with respect to Clear Skies over the past 4 years a direct
result of a bipartisan request? If so, who made that request?
Mr. Johnson. The Clear Skies legislation was an
Administration proposal. So it was done to support the
Administration's original proposal.
Senator Inhofe. All right, thank you very much.
I want to get to our last member who has joined us, Senator
Warner. We have gone through two rounds of 4 minutes of
questions, you certainly have 8 minutes if you would like to
use it.
Senator Warner. Mr. Chairman, I won't use it. Again, I have
had the opportunity to work with and visit with this
distinguished public servant. I intend to lend my total
support.
Let me clarify this colloquy which I moved in here to catch
the tail-end, to make sure. We have pending the bill which the
Chairman has, you're not suggesting that be delayed, is that
it? Do you think we have to independently allow you to do the
studies and the time, and come along at a later date?
Mr. Johnson. No, I would be thrilled to work with the
Chairman's mark on the piece of legislation and to work to move
that forward. But unfortunately, Senator Warner, not everyone
has signed up for that approach.
Senator Warner. I see. All right. That makes it more clear.
Senator Inhofe. No further questions, Senator Warner?
Senator Warner. No, thank you, Mr. Chairman.
Senator Inhofe. All right, we will now dismiss the first
panel and thank you for your tolerance and your time and ask
the second panel to come forward.
I would say to Mr. Johnson that, while the other panel is
being seated, I will be submitting a question for the record
concerning the review of the prevention and control counter-
measures. I talked to you about it before, in Oklahoma we have
oil producers, manufacturers, farmers, airports that would like
to have clarification of this particular issue. So we will be
submitting a question for the record on that.
Senator Inhofe. I want to welcome our second panel and
thank you for your patience. It is my intention, as you heard
this morning, to have our first panel over with by the time we
had to go into our joint session. It didn't work out that way.
I have already introduced you once when we first began. What I
would like to do as have you, those who wish to do so, give
brief opening statements. Do your best to go 3 minutes if at
all possible. Your entire statement will be made a part of the
record.
We will start with Mr. Luna.
STATEMENT OF LUIS LUNA, NOMINATED BY THE PRESIDENT TO BE
ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND RESOURCE
MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Luna. Thank you, Mr. Chairman and members of the
committee. I am honored to be appearing before you today as
President Bush's nominee for Assistant Administrator for
Administration and Resources Management at the Environmental
Protection Agency. I have an opening statement and I appreciate
that you will allow me to insert it in the record.
Senator Inhofe. It's in the record.
Mr. Luna. Thank you, sir.
With me here today is my wife, Bonnie, whose love and
encouragement has afforded me this opportunity to be here. She
is a gift I did not merit, and I would not consider taking this
job without her steadfast support.
Also here are very dear friends whose support I also
cherish: Tom and Jacquie Meeks, Jennifer Walker, Chris Van
Buskirk and Tony Palm. Not here are my brother Joe and his
wife, Cindy, who live in Texas, nor our parents, whose names I
mention in honor, Bernardo and Anamaria Luna. They are now
deceased. My parents made what remains to me an incredible
sacrifice: sending my brother and me to the United States from
Cuba to escape Communism, to ensure that we lived in freedom--
even if it meant we would never see each other again--because
they realized that liberty is the most precious gift on earth.
By God's hand, they, too, were able to escape, and their pride
at seeing this day come would have been unbounded.
I am of course grateful to the President that he would see
fit to nominate me, and to the U.S. Senate for considering me
for this post. I must give the glory for this day to my Lord
and Savior, Jesus Christ.
Should you and your colleagues see fit to confirm me as
Assistant Administrator at EPA, I would rely on three
principles to ensure the Agency's resources are well managed:
accountability, transparency and results.
I would expect to be held accountable for the EPA's
resources. It is a responsibility I would not take lightly, and
I would make sure goals are accomplished and promises are kept.
I would insist that issues are handled and decisions are
made with transparency, because the process, if it's open,
produces confidence in the final product. I would focus on
results. I would not confuse activity with progress. I would
see that issues were dealt with straightforwardly and resolved.
In the interest of time, I will refer you to the text of my
statement, and I thank you so much for the privilege of
appearing before you.
Senator Inhofe. Thank you very much.
Mr. Woodley, it seems like you've been before us several
times, but you might have something new to say.
STATEMENT OF JOHN PAUL WOODLEY, JR., NOMINATED BY THE PRESIDENT
TO BE ASSISTANT SECRETARY OF THE U.S. ARMY FOR CIVIL WORK
Mr. Woodley. It is a great privilege to be once again
before the committee. I want first to express my appreciation
to you, Mr. Chairman, for promptly scheduling this hearing and
my deep sense of privilege and honor to be on the panel with
these other distinguished public servants. I am very much
mindful as well of the confidence expressed in me by President
Bush and Secretary Rumsfeld who submitted my nomination for
this important post within the Department of the Army.
The Army Corps of Engineers and its civil works function,
encompassing navigation, flood control, water resource
development and environmental improvements, has for 200 years
contributed greatly to the prosperity and well-being of our
Nation. I deeply appreciate the courtesy of the committee, and
if confirmed, I look forward to working with the Chairman and
all members of this important committee to address the vital
navigation, flood control, water resource and environmental
challenges of the Nation.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you very much, Mr. Woodley.
General Riley.
STATEMENT OF MAJOR GENERAL DON T. RILEY, NOMINATED BY THE
PRESIDENT TO BE PRESIDENT AND A MEMBER OF THE MISSISSIPPI RIVER
COMMISSION
General Riley. Mr. Chairman, thank you for this opportunity
to testify. I also have submitted my full statement for the
record, and also would like to thank you for this opportunity
to serve not only in uniform but serve the Army Corps of
Engineers, as well as the Mississippi River Commission.
I am struck by the visionary leadership of the Congress in
1879 in establishing the Mississippi River Commission to look
at a basin-wide approach to water resources, engineering and
policy advice. We see across the Nation today many basins,
watershed basins taking much the same approach for sustainable
management and development of their water resources. Some of
the common attributes we see today were evident in the
commission back in 1879: partnership, listening sessions,
inspection trips on the river and a broad representation.
So I feel confident that what you see today with the
Mississippi River Commission and what the Congress began in
1879 will continue with the work of the Commission. I just want
to close by thanking you for the opportunity to serve and
thanking you for your leadership and as well for what you do to
support the great people in the Corps of Engineers.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, and I would only ask you to keep
in mind that my State of Oklahoma uses the Mississippi in order
to reach our port at Catoosa. Keep that in mind.
[Laughter.]
Senator Inhofe. General Grisoli.
STATEMENT OF BRIGADIER GENERAL WILLIAM T. GRISOLI, U.S. ARMY,
NOMINATED BY THE PRESIDENT TO BE A MEMBER OF THE MISSISSIPPI
RIVER COMMISSION
General Grisoli. Mr. Chairman and members of the committee,
thank you very much for the opportunity to be here before you
today as the nominee for the Mississippi River Commission.
Mr. Chairman, as General Riley has already stated, some of
the highlights of the Mississippi River Commission and its
role, et cetera, what I would like to is just briefly talk a
little about some of my qualifications for this particular
position.
As the commander of the northwest division, I have gained
an appreciation for basins, overseeing both the Missouri and
the Columbia River, understanding the complexities, seeing the
need for sustainable solutions to basins themselves and
watersheds. Also during that period of time, since July 2003, I
have been a member-designee for the Mississippi River
Commission and have been able to go on several trips which
enabled me to listen, conduct inspections with the other
commissioners and really partner with some of the stakeholders
on the river and understand the great natural resource that we
have there.
I am committed, if I am confirmed, to look for balanced
improvements in the Mississippi River and look for best
engineering practices. I want to thank you today for this
opportunity to appear before the committee, and I look forward
to addressing your questions.
Senator Inhofe. Thank you very much, General.
Mr. Rappoport.
STATEMENT OF D. MICHAEL RAPPOPORT, NOMINATED BY THE PRESIDENT
TO BE A MEMBER OF THE BOARD OF TRUSTEES OF THE MORRIS K. UDALL
FOUNDATION
Mr. Rappoport. Thank you, Mr. Chairman, members of the
committee. I very much appreciate this opportunity to present
myself as a Presidential nominee for the position of trustee of
the Morris K. Udall Scholarship and Excellence in National
Environmental Policy Foundation.
It is a particular privilege for me to be nominated by
President Bush to serve another term on the Foundation's board
of trustees. With your permission, sir, I do have a detailed
statement that I would appreciate having submitted for the
record, along, Mr. Chairman, for appropriate reference our
recently released Foundation annual report.
I am very pleased also to be accompanied by my wife, Suzi,
and our son, Sloan. Sloan had worked for a number of years on
the Senate side.
I also would like to express my appreciation to Senator
John McCain and Senator Jon Kyl for their letters to the
committee on my behalf. If appropriate, I would respectfully
request that they be included in the record as well.
Finally, on behalf of the Foundation Board of Trustees and
our dedicated staff, I am very pleased to report that since we
began operation in 1994, through the strong support of the
Congress, the Foundation has awarded 755 scholarships, 18 Ph.D.
fellowships, and administered 114 internships for Native
American and Alaska Native college students pursuing careers in
health care and tribal policy. We also have hosted 7 major
conferences on contemporary environmental and Native American
issues, and we have sustained support for the Udall Center for
Studies in Public Policy at the University of Arizona.
The Foundation also oversees the activity of the U.S.
Institute for Environmental Conflict Resolution created by
Congress in 1999. Located within the ambit of the Foundation is
the Native Nations Institute for Leadership and Management and
Policy, all of which, Mr. Chairman, we believe contribute
mightily to the legend of Congressman Udall.
As per the committee's request, I am prepared to answer any
questions you may have. I am also willing to appear at the
request of any duly constituted committee of Congress as a
witness. Finally, I know of no matters that would put me in
conflict of interest with the board of trustees, should I be
confirmed by the Senate.
Senator Inhofe. Thank you, Mr. Rappoport. I would like to
ask all of you the same two questions, you can answer one at a
time, starting with Mr. Luna, are you willing to appear at the
request of any duly constituted committee of Congress as a
witness?
Mr. Luna. Yes, sir.
Mr. Woodley. Yes, sir.
General Riley. Yes, sir.
General Grisoli. Yes, sir.
Mr. Rappoport. Yes, sir.
Senator Inhofe. Do you know of any matters which you may or
may not have thus far disclosed that might place you in any
kind of a conflict of interest if you are confirmed in this
position?
Mr. Luna. No, sir.
Mr. Woodley. No, sir.
General Riley. No, sir.
General Grisoli. No, sir.
Mr. Rappoport. No, sir.
Senator Inhofe. All right, fine. We will begin a series of
5-minute rounds. I think we are going to try to keep it to one
round because of the time that's already gone by. I only have
one question, that is, we'll start with Mr. Luna.
We have established a policy that's worked very well just
in the last year, concerning some of the grant recipients on
discretionary grants. It's done quite well, we're posting them,
there is a lot of sunlight of this, so people know just who is
getting the grants, who is applying for the grants to enhance
competition. We plan to expand that program. I would ask you if
you are in agreement with what we are doing and will help us to
expand that program.
Mr. Luna. Mr. Chairman, I approach the $4 billion a year in
grants EPA provides from the standpoint of a taxpayer. I would
very much like to make sure that the dollars are spent in a way
that advances the interests of the American people and produces
environmental results.
I know that the Agency is in the midst of implementing a
five 5-year strategic plan for grants administration, but I
would like to look at that plan with fresh eyes and make sure
that it is truly results-oriented. I will work very closely
with the staff that developed the plan and also with this
committee to make sure that we get the desired results.
Senator Inhofe. Would you agree that we could expand this
to include disclosure of all affiliated programs and
organizations?
Mr. Luna. One of the things that I would like to discuss
with Mr. Johnson, if you choose to make him Administrator, is
how we can greatly expand the reach and transparency of the
program to make sure that everything is on the table, so that
people can see for themselves what moneys are going to whom,
who is making application, and what is being processed before
grants go out the door.
Senator Inhofe. Very good, thank you.
Senator Jeffords.
Senator Jeffords. First of all, I would like to thank you,
Mr. Woodley, for coming to Vermont. I know you spent some time
with us and you participated in our water resources workshop
along with Brigadier General Temple, Colonel Coaming, Colonel
Polo, the staff from the New England and New York districts and
the North Atlantic division. It was a wonderful time and we got
a lot out of it.
This is the second year we have had listening sessions.
They have helped us to identify water resources issues
throughout the State. Thank you for providing that service.
First of all, as you know, we have not had a Water
Resources Development Act, WRDA, since 2000. This committee
passed WRDA in 2004, but the bill did not make it to the Senate
floor. The committee is scheduled to consider a WRDA bill next
week.
I have heard from members of the Corps of Engineers that we
need a WRDA bill. Yet this Administration has not proposed one.
It is my guess that they would not support one if Congress did
select. Am I correct, that this Administration does not support
a WRDA bill?
Mr. Woodley. We certainly have not proposed one, Senator. I
would have to say that our posture is one of looking at the,
working with the House, looking at the Senate to answer
questions and to be as supportive as we can of the
congressional processes moving forward. There are certainly
matters, and I would be wrong to suggest that there are not,
that need to be addressed in the context of a WRDA bill. We
have gone too long without one.
I am sorry that we have not been able to get ourselves
together to propose one. I wish we had. But we have not been
able to, but of course, that is, I certainly want to be as
helpful and supportive of the committee and the counterpart
committee in the House of Representatives as they undertake
those deliberations.
Senator Jeffords. I guess I want to be clear that I would
want to see one.
Mr. Woodley. Yes, sir.
Senator Jeffords. And that I believe the committee wants to
see one. Certainly we will do everything we can to accommodate
your needs to make sure we can have one. Do you understand
that?
Mr. Woodley. Yes, sir.
Senator Jeffords. There has been a great deal of debate on
reforming the Corps of Engineers as well. You have been at the
Corps for over a year and a half. During your tenure, have you
taken any steps to change the way the Corps does business?
Mr. Woodley. Yes, sir, we have. We have tried to do, I have
concentrated my efforts in the area of improving the Corps'
analytical capabilities, which are, I have to say, I think are
strong and are good, but are not as good as they need to be. In
the meantime, the chief of engineers has instituted, in fact
General Flowers and General Strong are continuing with that
leadership initiative, has instituted the plan called USACE
2012, U.S. Army Corps of Engineers, USACE 2012, to restructure
the way the Corps is organized to break down some of the
stovepipes, and to flatten some of the organizational
structures that evolved the way the Corps does business.
We also issued the Corps' first civil works program
strategic plan which sets out our vision for the goals, the
broad programmatic goals the Corps should have. It's a
revolutionary document. I certainly think that if we are able
to change the way the Corps does business to where it's looking
at the ways in which the Nation needs to move forward to solve
broad-based water resource development problems that we will
have done a great work.
I appreciate that this is not the be all and end all of
Corps' reform, that a lot of the work, that we are extremely
interested in receiving guidance from the committee on ways in
which we should implement such things as a robust program of
independent review for major projects. I know that was
something that was dealt with in both Houses in the last couple
of years with the Water Resource Development Act proposals. We
are very anxious to begin work on a statutory framework in
which we can undertake that.
In the meantime, we have not forgotten about it. We have
undertaken a substantial amount of independent review,
particularly for major projects such as the Upper Mississippi
River.
Senator Jeffords. Thank you for that answer. I look forward
to make sure we make progress in that area. Thank you.
Senator Inhofe. Thank you, Senator Jeffords.Senator Warner.
Senator Warner. I thank you, Mr. Chairman.
I would like to focus my questions--I tend to support all
members of the panel--on Mr. Woodley. Mr. Woodley, you and I
have known each other for a very long period of time, and it
has been a marvelous professional relationship and friendship
that we have had. I severely regret that the Senate has not yet
confirmed you. You have served now in your position as the
Acting for how long?
Mr. Woodley. I received a recess appointment, Senator, in
August 2003 and served in that capacity until the end of the
last Congress. Since then, I have been serving as the Principal
Deputy Assistant Secretary.
Senator Warner. I see, pending the outcome of this
nomination now before us by the President?
Mr. Woodley. Performing duties as assigned under the
authority of the Secretary of the Army.
Senator Warner. So it was August 2003, then through and
including the conclusion of the Congress last year in 2004.
That was a period of what, 18 months?
Mr. Woodley. Just about, yes, sir.
Senator Warner. About 18 months. I say to my colleagues on
this committee, I have known this fine man, and I will do what
I can do help clarify whatever concerns my colleagues now have,
continuing or otherwise, with regard to his nomination. I feel
not only that this man is ably qualified, but after all, he is
a human being and he is entitled to have the benefit of advice
and consent of the Congress one way or the other. I feel very
strongly about that. You have to get on with your life, and I
thank you for accepting this nomination to come up here again
and hopefully work our way through this process.
Now, with respect to my, at least one colleague, that spoke
to this nomination this morning, I think at this time I will
ask unanimous consent that Mr. Woodley can put into the record
a statement to give his perspective with regard to what was
presented, I think, this morning, to the committee, legitimate
concerns of this member of our committee, a distinguished, long
serving member, about a problem regarding the Missouri River,
as it flows into the Mississippi and the rate of flow, and the
problems that his State is now suffering and has suffered for
some time with regard to droughts and how those droughts affect
certain lakes which are important to his State and the level of
the lake is dependent on the amount that is taken out of those
lakes by a series of dams operated by the Corps to maintain a
certain level and depth of the Missouri and Mississippi Rivers
to allow navigation up to a certain point.
Is that a concise description of what you think wherein the
difference of views rests?
Mr. Woodley. Yes, sir. I should make it clear that I have
been to the Fort Peck Lake, I have been to Helena, I have been
to Lake Sacajawea at Garrison in North Dakota, I have been to
Pierre, SD and met the Governors of these States and seen the
conditions. They are very bad.
Senator Warner. It's serious.
Mr. Woodley. Very serious.
Senator Warner. From the standpoint of those States that
embrace the lake.
Mr. Woodley. It is unquestionably a major devastating
drought condition that has taken the level----
Senator Warner. Not created, I mean the drought is created
by nature?
Mr. Woodley. Yes, sir.
Senator Warner. The levels of the dams, however, is
controlled by man through the operation of the Corps?
Mr. Woodley. Yes, sir. The situation that existed at the
time that I was appointed was that, there was a master manual,
which is a regulation that governs----
Senator Warner. I don't want to take up too much time of
the committee. I want you to have, and I have the UC, granted
by the Chair, for you to put into the record a full
dissertation on this very complicated and extremely technical
subject. Such that your perspective, and presumably that of the
Administration, is set forth in the record.
Mr. Woodley. Yes, sir.
Senator Warner. I would presume that the distinguished
colleague of this morning might wish to avail himself of the
opportunity and I so request that he can put into the record
such statement as he may wish to.
Senator Inhofe. Yes, without objection.
Senator Warner. I thank the Chair.
Now, let me turn to a separate issue, Mr. Woodley, and
that's one of reprogramming funds in the Corps. All of us here
who have the responsibility of operating the committees as
chair and ranking member through these many years, we are
familiar with the practice of reprogramming, and it's got to be
done, it's a discretion that rests with the Administration,
subject to certain review by the Congress. I am concerned that
the Corps' reprogramming construction funds, contrary to very
specific congressional direction of funding, provided to
individual unauthorized projects.
Let me point this out. Specifically, I am concerned about
funds that I did myself secure with the help of the other
Members of Congress from Virginia, to the 50-foot deepening of
the inbound channel for the Norfolk Harbor. I met this morning
with a distinguished group of individuals from that region. The
withdrawal of these funds from the programming is having a
severe impact on that region down there.
This is a major project on serving commerce in that region.
The Corps has identified the funds that I received to be put
toward another project. I am told that the position of the
Corps is that the President did not budget for the project, so
these funds should be used for another priority.
Now, that is in direct conflict to congressional direction,
no disrespect to our distinguished President. But we here in
Congress, a co-equal branch, have the right under the
Constitution to make certain decisions and we do it, and it's
written into legislation and we would hope that the President
would respect that. Do you have any comments about that?
Mr. Woodley. I do, indeed. I don't know who it is that is
telling you this, Senator.
Senator Warner. Good, speak up loudly for the record. I'm
wrong, I'm delighted to hear I'm wrong.
Mr. Woodley. That is not the policy, to reprogram, to
identify from these funds to reprogram based on whether or not
the program was a congressional or Presidential priority. We
take, and I have with me General Riley, who in addition to
being nominated for the position on the Mississippi River
Commission, is also the Director of Civil Works Programs for
the Corps of Engineers and in that capacity is in charge of the
day to day management of that program.
He and I have made it clear that the budget for program
that we are given by Congress is the program that we are
expected to execute. If the funds have been reprogrammed, then
that is a, that must necessarily, if the reprogramming is
according to our policy, it must necessarily have been a
reprogramming that took place because of some inability of the
project to utilize the funds at the time.
We do have, we do, if a project is given funding and has
litigation or----
Senator Warner. I understand that.
Mr. Woodley [continuing]. weather related difficulties or
whatever, that is a grounds for reprogramming. But not the
grounds that someone is attributing to this situation. I have
not looked into this situation, as you know, I am astonished
that anyone in this organization would program funding away
from any Virginia project while I'm sitting in my current
capacity. So I assure you that we will discover----
Senator Warner. What the problem is and hopefully we can
remedy it.
Mr. Woodley [continuing]. and understand it.
Senator Warner. I'd like to get Major General Riley on the
record on this question.
Senator Inhofe. Before you do, let me just explain to the
committee, our senior member did not have either of his 4-
minute rounds for questioning in the first panel or an opening
statement. We are giving him more time for that reason.
Senator Warner. I thank you.
General Riley. Thank you, Senator Warner, and I can
reemphasize what Secretary Woodley said, that you have our
absolute commitment that when we have reprogrammed funds away
from a project that didn't need it at the time, you have our
commitment to put that funding back to that project when it
is----
Senator Warner. I know, but I can't delay this project
until you have recycled some funds from somewhere at some
future date.
General Riley. No, sir. When it is needed, it will be
there. That's our commitment.
Senator Warner. Well, I think this is reassuring. I would
ask both of you to reexamine it and just give me a letter to
that effect. Perhaps both of you can sign the letter, I think
that would be helpful.
Last, Mr. Chairman, I thank the indulgence, I ask unanimous
consent that a statement by this Senator with regard to the
current deliberations within the Corps concerning the use of
windmills for wind generation of power, I have said it before,
I continue to say it, I have no bias, no prejudice, no
objection to utilization of wind power where it is
appropriately authorized.
Now, my concern is this project in the State of
Massachusetts, which you are well familiar with, and that it is
now the subject of some further consideration by the Corps. I
filed a letter, which I appreciate your allowing me to put that
into the record in the context of this Q and A.
But the authority that the Corps seems to be grasping for,
to give this permit, is predicated on an 1899 statute called
the Rivers and Harbors Act. Now, in 1899, the only windmills
that maybe the Members of Congress had in mind were those that
Don Quixote encountered. Folks, that's a real stretch. I've
gone back and read that statute. Congress did not have in mind
at that time wind power. Wind power has come on the horizon
with the advent of technology. It may be a great source.
But I think if we are going to take and put the heavy
investment, and indirectly the taxpayers are investing in this
because of the public funds given as a subsidy for wind power,
and I believe I'm on record as having voted for that, which I
think it's important to, these non-renewable sources, to give
them support.
But I think to grant a license predicated on that statute
is a foundation of matchsticks. At some point, some court will
knock it down and there we are. We should have, here in the
Congress, the responsibility to enact a framework of
legislation to support the exploration of wind power on those
parts of the continental shelf that are under the jurisdiction
of the Federal Government. There are certain structures to
support the licensing in the several States, I believe, or some
States have moved in that direction.
But for us to simply go off here and allow this to go
forward without, in my judgment, a framework of legislation,
much like we have, Mr. Woodley, for oil and gas exploration, am
I not correct?
Mr. Woodley. You certainly are.
Senator Warner. Where the Federal Government very carefully
supervises this matter, I just think it's wrong. You know, I've
been, had hell and damnation descended on me, and even dragged
my family into this thing, a former member of the family, that
is, I'm no longer a member of a family that owns some property
up there. I can't control everything that is written about us.
It has nothing to do with that.
It's just that they are thinking about putting the offshore
down off my State. I'm intervening in the Massachusetts thing
because we could have a duplicate situation off the coast of
Virginia. If there is appropriate Federal legislation to
support it and Federal supervision, I am all for it. But I
don't want to see any windmills off my State put up with a
tremendous number of towers and so forth resting on a
matchstick foundation of statutory authorization, period,
paragraph.
Do you get my message?
Mr. Woodley. I understand it and fully agree.
We are, the Corps of Engineers as an institution and I am
personally very uncomfortable with the authority that we are
being asked to use. It is not well adapted to the purpose, nor
do I believe that the Corps of Engineers, if Congress were to
assign this task to one of our Federal agencies, I do not
believe that the Corps of Engineers is the appropriate resident
for that----
Senator Warner. For the granting of the licenses.
Mr. Woodley. Yes, sir, except to the extent that the, that
we should be consulted with respect to navigation channels.
Senator Warner. Correct, under the 1899 Act, and those
features.
Mr. Woodley. Absolutely.
Senator Warner. That's a good answer. Solves my problem. I
thank the indulgence of the distinguished Chairman and Ranking
Member, my colleague from Delaware.
Senator Inhofe. Thank you, Senator Warner.
Senator Carper.
Senator Carper. Thank you, Mr. Chairman. To our panel,
welcome, it's good to see all of you here today.
General Riley, I enjoyed talking with you on the phone a
couple of weeks ago when we were trying to sort through a
reprogramming issue on a couple of beaches in Delaware. We
thank you for helping us there.
General Grisoli, I don't have a question for you, sir. Mr.
Rappoport, no questions for you, either. Mr. Luna, good to see
you, good luck in your new job.
Mr. Luna. Thank you, sir.
Senator Carper. I would say to Secretary Woodley, thank you
for joining us in Delaware a couple of months ago, on a very
cold winter day, as we were--it was cold, the wind was howling,
but you were good to come to Rehoboth Beach, Rehoboth and Dewey
Beach. Senator Biden and Congressman Castle and I have been
working for several years to try to cobble together some money
to come in and do a beach replenishment and beach renourishment
project. You were good to come and join us in kicking that off.
Subsequent to that, we have learned that there is, the
money that had been earmarked for that project had been moved
to pay for other things. There is reprogramming stuff that
happens from time to time that others have referred to. I tried
to track you down a couple of weeks ago, on a Friday afternoon,
fairly late, actually, tried to track down General Riley, we
were able to find him. I talked to your exec, whose name I
don't recall. If I heard it, I would recognize it.
General Riley. Colonel Balanchi, sir.
Senator Carper. Yes, there you go. The long and the short
is, we I believe were making some progress toward identifying
moneys that can be sort of reprogrammed anew and come back in
to backfill this particular project.
I just want to thank you and General Riley and others with
whom you work, certainly folks up in your office in
Philadelphia, for all your efforts to help us solve this
problem. I would just--yes, sir?
Mr. Woodley. I'm hoping not to find that the source of that
is a 50-foot channel in the Chesapeake Bay.
[Laughter.]
Senator Carper. I hope not, too.
Can you just take a minute and give us the latest, an up to
date status report on this project, please?
Mr. Woodley. Yes, sir. I was briefed on that yesterday. The
contractor is, the contract is underway. The total of $7.6
million has been reprogrammed to the project, including not
only funds reprogrammed, programmed back into the project that
had been used in prior years on other projects, because of
holdups within the Rehoboth project, but also to restore the
reductions for savings and slippage.
The Corps of Engineers budget is designed to be run with
reprograms. It is an awkward situation, but the way it is run,
there is, it is designed to have funds appropriated to projects
and then in the case, in any given year, more than 100 percent
of our construction appropriation is earmarked to projects,
with the understanding that we are doing construction.
Construction, buying a project of the Corps of Engineers, a
lock, a dam, a levee, a beach renourishment, flood damage
reduction, is in no way analogous to going to the supermarket
and buying a cake of soap or a box of corn flakes. They are in
no way analogous.
We buy these things as time goes on, construction has
difficulties, it runs into litigation, it runs into weather, it
runs into striking rock where we thought was sand. Difficulties
are expected, but unpredictable. So we routinely are required
to reprogram in order to not, if we failed, if we did not
reprogram, the alternative would be to maintain an enormous
carry-forward from year to year. At least in the past, it has
not been regarded as the most efficient use of public works
funding.
That's a long way of saying that we have, as a policy, it
requires, and as we have committed to do so, we have restored
the funding and will complete the project. Construction is
underway. The contractor began work in February, and I believe
that project will be completed by the end of our construction
season in this fiscal year.
Senator Carper. Thanks. Mr. Chairman, if I could have a
quick follow-up on this. I understand some of the money, it's
$7.6 million, it's been sort of gathered, reprogrammed to come
back and complete this project that was previously approved, it
comes from other Delaware projects, which have also been
approved. I would just ask that as we move from one Delaware
project, fully approved, through this earlier project that we
certainly don't end up just robbing Peter to pay Paul, but in
the end that we complete all the projects that have been
authorized.
Mr. Woodley. I understood that that was funded, it was
anticipated fourth year earnings that were not anticipated to
be needed based on current projections of construction earnings
between June and October of the current fiscal year. And that
we have either funding in the new fiscal year or reprogrammed
no year funding to complete the projects that you mentioned.
Senator Carper. Excellent. Thanks for your response. Mr.
Chairman, thanks for the time.
Senator Inhofe. Thank you, Senator Carper.
Senator Thune.
Senator Thune. Thank you, Mr. Chairman. Thank you, panel,
for your testimony and response to questions today.
Mr. Chairman, if I might, I would ask unanimous consent
that a statement earlier with respect to the EPA Administrator,
Mr. Johnson, who was here earlier to question regarding an EPA
policy as it pertains to cattle feed lot operations, I would
like to add that for the record, if it's possible.
Senator Inhofe. Without objection, so ordered.
Senator Thune. Thank you, Mr. Chairman.
Mr. Woodley, I want to follow up on some conversations that
I had with you previously, as well as members of your staff. It
has to do with an ongoing battle that the Missouri River Basin
States have had over management of the Missouri River. The
Upper Basin States, as you know, because you have been there,
are experiencing successive years, or continuous now, drought
for about 6 or 7 years in a row, which has created some
incredibly adverse conditions in the Upper Basin. We are an
economy that has come to rely extensively on recreation, the
commercial activity associated with the Missouri River, as well
as hydropower.
So we have lost or are losing significant economic activity
related to recreation and also seeing higher costs associated
with energy because of the way the reservoir has been managed,
complicated by the drought, has led to less hydropower
production there as well.
I guess what I more specifically want to deal with today,
and understanding that management of the Missouri River is an
issue that many of us in this body and in the other body, the
House, disagree with and continue to do that, have disputes
over, we have a new master manual in place now which I think
will provide some direction. Those of us who think that it
didn't go far enough with respect to the Upper Basin States,
and I'm sure some of my colleagues from down-river think the
opposite.
But in any case, we have a very, very serious situation in
South Dakota and the Upper Basin right now because of the
drought. Inasmuch as those other issues are very important, we
also have one which is of great urgency, and your Colonel
Beattie was out in South Dakota last week, who oversees the
district out there from Omaha, with respect to the Corps. He
had an opportunity to meet with tribal officials, with local,
county, municipal, State officials, myself included in that
meeting, to talk about a response plan in the event the
reservoir reaches a level this summer where there are about
14,000 people, primarily on the Cheyenne Indian Reservation,
who would be without water.
There is a study that's underway by the Corps right now,
which I understand will be completed in the next few weeks,
which will lay out some of the options and some of the costs
associated with that. But I wanted once again to emphasize and
to reiterate the importance of this issue, and for your
attention. I just think that we can't afford to wait until that
crisis occurs. Because the ability to respond in a short period
of time, it may not be possible to respond in a short period of
time. I think the more planning we do ahead of time right now,
the better off we are all going to be.
But I wanted to say that to you, to reinforce the
importance of that issue and also perhaps to maybe get your
comment with respect to some of the things that the Corps is
now doing in anticipation of what we could experience this
summer, assuming that we don't get some rainfall in the upper
basin States. Water supply, potable water for the people in the
Cheyenne Indian Reservation and many of the communities
surrounding it, about 14,000 people would be extremely
adversely impacted if that should happen.
So we expect to work closely with you, but I would be
interested again in just perhaps your observations at this
point in time about how things are progressing.
Mr. Woodley. Yes, Senator, we have also spoken to Colonel
Beattie and his higher commander, General Grisoli, who is here
with us today in another capacity. So he also has reinforced
this as well, I know, and General Riley in the same way.
Colonel Beattie, we expect Colonel Beattie to be in real time
contact with this problem, not to hear about it from when he
gets a call, but to have him and his experts from Omaha in real
time contact with this, on a daily basis, to understand that
what is happening with the levels in relationship to this
particular intake and to the other intakes, and what options
there are and what the costs will be, and how the Corps of
Engineers can participate in making sure that there's no
interruption of the water supply necessary for human health and
well-being on that reservation.
Having said that, I have also told him that we need to look
at the horizon. I think that the one thing that I have been
most disappointed in, in the situation that I found, was the
inadequate master plans for the major reservoir facilities.
They have not been updated and to the extent they existed, they
were not adequate. Beyond that, they had not been brought up to
date.
My instruction has been that we are not, we should not be
responsible for finding ourselves in a situation where a basin
for which we have some decades of data now, and which was known
to Lewis and Clark to be prone to drought, we should not now be
staring at each other in gap-mouthed astonishment to find that
we're having a drought in the region. Instead, we should know
when the level of the reservoirs reach certain points that
actions must be taken, and that those actions should be,
whether it's something as simple as extending a boat ramp, or
something as complex as maintaining the necessary intakes for
potable water.
So I will expect to see, within at least the next year or
the year after that, with respect to each of these facilities,
a fully and comprehensive and fully coordinated master plan so
that my successor who deals with the drought of 2025, so he or
she will know what it is that needs to be done.
Senator Thune. I know it wasn't the Corps which was
responsible for the construction of that intake initially, but
I know that General Grisoli and General Riley are also
acquainted with this issue. But people look to you as sort of
the custodians, if you will, of that system, and to be the lead
on any response. So I know there are a multitude of agencies
involved with that, and Colonel Beattie has tried to explain to
me what they are doing in trying to coordinate between agencies
the various lines of responsibility.
But all I want to reiterate is the dire emergency this will
present if in August that pool level reaches a point where that
intake is no longer able to provide water for the 14,000 people
that are affected by it. We are anxiously looking forward to
working with you in terms of what you need from Congress to
address that.
But clearly, there are several agencies I know that have
some jurisdiction there. But I appreciate the fact that the
Corps has stepped up and is working to at least proactively
address what could be a very, very dire situation for the
people in that area.
Mr. Woodley. Senator, we are always, I am, I and General
Grisoli, at whatever level you and your staff want, if there is
something that needs to be done and is not being done, I would
commit to you to do everything within my power to remedy that
whenever it is brought to my attention.
Senator Thune. We will look for it. The study should be
completed soon. It will lay out a series of options, so we'll
go from there. Thank you.
Senator Inhofe. Thank you, Senator Thune. The Chair will
ask unanimous consent that the testimony of Michael Butler be
included into the record. It is the intent of the Chair to
report him out with the rest of the nominees, that's for the
Udall Foundation.
[The referenced document follows on page 158.]
Senator Inhofe. It is also is our intention to have a
business meeting a week from today where I will report out the
nominees and also the WRDA bill.
Senator Clinton, you've been very patient. We're having 5-
minute rounds. Feel free to take more time if you desire.
Senator Clinton. Thank you very much, Mr. Chairman.
Gentlemen, thank all of you and thank you for your service.
Mr. Woodley, I have a longstanding interest in the Corps'
ongoing study of the St. Lawrence Seaway. It's my view, shared
by many who have looked at this, that expansion of the seaway
would cause irreparable damage to the St. Lawrence River, would
cost taxpayers literally billions and billions of dollars and
provide little in the way of additional economic benefits.
That's why I was pleased when the Corps committed that the
current phase of the study would not look at expanding the
seaway but instead would focus on maintaining and optimizing
the current seaway system.
However, the study has since evolved from a U.S. Army Corps
of Engineers reconnaissance study into a bi-national evaluation
of the existing navigation system. That occurred in May 2003
when the U.S. Department of Transportation signed a memorandum
of cooperation with Canada's Ministry of Transportation. This
has understandably led to some confusion, because we have
always viewed the Corps as the principal agency and the
responsible agency.
So there is a great deal of concern in the Great Lakes-St.
Lawrence region about the scope of the study. As a result, I
sent a letter to Congress, to the Corps on January 24, along
with 13 other Members of Congress, asking for detailed
information about the scope and time line of the study. I
mention this because to date we have not received a reply from
the Corps.
However, I understand from my staff that the Corps may soon
be ready to provide the information requested within the next
week or two. Can you confirm that I and other Members of
Congress will soon receive this important information
clarifying the status of the St. Lawrence Seaway study?
Mr. Woodley. Senator, I'm delighted to understand that they
don't respond to you any better than they do to me.
[Laughter.]
Mr. Woodley. Having said that, I am also informed by the
staff of the Corps of Engineers that the letter has been held
up by the necessary inter-agency coordination, so that all, the
Transportation Department and the Corps of Engineers, and the
FAA and for all I know the CCC has approved it and that they
can all agree that this is the correct information that you and
the other Senators are receiving. I believe that within the
week you will receive your information.
Senator Clinton. Thank you very much, Mr. Woodley. I
appreciate that. I must say that the Corps has been very
responsive on this issue.
With respect to another important Corps responsibility, for
the last 30 years, the Corps has conducted one of the most
extensive, comprehensive studies of coastline erosion in the
world, I think. This is the Fire Island to Montauk Point
Reformulation Study. Anyone who is familiar with that part of
the shoreline of Long Island, you know that it is one of the
most beautiful beaches in the world, but it is battered daily
by the ocean and it has suffered a lot of erosion. Of course,
because of the growing population, a lot of development
challenges as well.
Last year, we in New York received a commitment from the
Corps that funding for the completion of this study, which is
literally in its last year after 30 years of effort, we are
about to get what I believe, Mr. Chairman, will be state-of-
the-art information about what erosion occurs, why it occurs,
how to prevent it, how to save beach frontage from further
losses, so that we can continue to utilize it for recreational,
commercial and other purposes. Unfortunately, we discovered it
was zeroed out in the President's budget. I would like to work
with you, it's a relatively small item, but it's one that would
be necessary in order to finish this study, to have the
information.
At that point, then, the State and local governments, along
with private landholders, along with the Federal Government,
will have a plan. Right now, nobody knows what they are
supposed to do. They are not sure whether if they put a jetty
out there or if they build too close--they don't know what to
do. Everybody has been waiting for the completion of this very
comprehensive study.
So I would like to work with you, Mr. Woodley, to try and
make sure we finish this study, so that then the State's
responsibility and local government, everybody else's, can be
clear. But it will be done within the context of a
comprehensive, scientific study that the Corps has carried out.
Mr. Woodley. I will certainly be delighted to look into
that, Senator, and work with you to reach a conclusion on that.
Senator Clinton. Thank you very much. Thank you, Mr.
Chairman.
Senator Inhofe. Thank you, Senator Clinton.
Mr. Woodley, I would just like to make a couple of
comments. First of all, the worst of all Superfund sites, Tar
Creek, your cooperation and the cooperation of the Corps has
been very good, as well as all the other agencies. We now have
a plan that is working, we're on schedule. It involves the
State of Oklahoma, University of Oklahoma, the Corps of
Engineers, the EPA, DOI and everybody else, and they are all
talking to each other.
So everything is good and I feel good about it. I just want
your commitment that you will continue having that as your top
priority, as you have in the past.
Mr. Woodley. Yes, sir.
Senator Inhofe. Then second, back when we had the
Everglades Restoration Act of 2000, I opposed that at the time,
and I did so because we did not have--that was the first time
that legislation has been passed without a Corps report. The
legislation provided that we would get a report every 2 years,
assessing certain things. As of now, we haven't gotten
anything, and this is 5 years later. So I just wanted you to
tell us right now what date we can expect to have that first
report.
Mr. Woodley. Senator, I'm aware of a 5-year report that's
due. But I would have to look into that and find out what the
2-year report is. I know we are preparing a 5-year report.
Senator Inhofe. Yes, you have two different reports. One
was having to do with the independent scientific review panel,
and the other was a panel to produce a report to Congress every
2 years assessing with measurable ecological indicators the
Agency's progress in restoring the Everglades.
Now, that's the biannual report. You might ask your staff
here to join in and see if everyone is also unaware of that.
Mr. Woodley. I am not aware of it, no, sir.
Senator Inhofe. OK, it's in the statute. Well, why don't
you become aware of it and then for the record, respond to it
so we know when we are going to receive that.
Mr. Woodley. It's one of our lengthier statutes.
Senator Inhofe. All right, very good. We appreciate your
time today. You all have done an excellent job and we are
looking forward to working with you. We will dismiss panel No.
2.
Anything else? OK, we're adjourned.
[Whereupon, at 4:05 p.m., the committee was adjourned.]
[Additional statements submitted for the record follow:]
Statement of Hon. John McCain, U.S. Senator from the State of Arizona
Mr. Chairman, thank you for holding this hearing to
consider the nomination of D. Michael Rappoport for
reappointment to the Udall Foundation Board of Trustees. I am
pleased to offer my highest recommendation for his
confirmation.
The Morris K. Udall Foundation was established by Congress
in 1992 to honor the legacy of Mo Udall and his commitment to
the preservation of the nation's natural environment by
advancing programs in environmental and Native American policy.
The Foundation has enjoyed great success. It has competitively
awarded hundreds of scholarships to college students throughout
the United States; it has developed and carried out a very
successful native American Indian Summer Congressional
Internship Program; and, it is well along in the effort to
establish the Native Nations Institute that was authorized by
Congress in 2000 to provide leadership and governance training
for tribal officials.
The Udall Foundation has also established and successfully
operated the U.S. Institute for Environmental Conflict
Resolution, created to assist in the resolution of federal
environmental, natural resources, and public lands conflicts
and controversies through facilitated negotiation, mediation,
and collaborative problem-solving. It is so appropriate that
the Conflict Resolution Institute is housed under the Morris K.
Udall umbrella, as Mo was so adept at helping find common
ground to forge resolutions from often diverse view points
resolutions that were of benefit not only to Arizona, but the
nation.
The Act establishing the Foundation created a Board of
Trustees comprised of 13 members, almost all of whom are
nominated by the President and confirmed by the Senate. Mr.
Rappoport was first confirmed in 1994 as one of the original
members of the Board, and was reappointed in 1997 to serve a
term that expired in October 2002. Mr. Rappoport was again
nominated by the President for reappointment last year.
Unfortunately, the full Senate did not have an opportunity to
consider his nomination before adjournment.
Throughout Mr. Rappoport's service on the Foundation Board,
he has played a critical role in the Foundation's many
achievements. He is currently serving as the Chair of the
Management Committee and has worked tirelessly to help ensure
the financial integrity and operational success of the
Foundation. It is essential that this highly dedicated
individual be reappointed to the Board to help ensure the
Foundation's future and further build upon its many successes
to date.
Mr. Chairman and members of the Committee, Mr. Rappoport's
contributions to the Foundation have been remarkable, and I am
pleased to strongly recommend his swift confirmation for
reappointment to the Morris K. Udall Foundation Board of
Trustees.
Thank you.
----------
Statement of Stephen L. Johnson, Nominated by the President to be the
Administrator of the U.S. Environmental Protection Agency
Mr. Chairman and distinguished Members of the Committee, I am
honored to appear before you today as the President's nominee for the
position of Administrator of the United States Environmental Protection
Agency. I want to thank Chairman Inhofe and Ranking Member Jeffords for
scheduling this hearing this morning, and I also want to thank many of
you for the courtesy of meeting with me in the past several weeks to
discuss my qualifications for this position.
Mr. Chairman, I am enormously indebted to President Bush for the
opportunity he has given me. I have had the privilege of serving in the
EPA for more than twenty-four years, and during this time I have had
the opportunity to participate in many of the Agency's most significant
accomplishments. I have worked with eight of the nine EPA
Administrators, and I understand first-hand the enormous responsibility
the Administrator of the EPA has to protect human health and the
environment. That sense of responsibility is heightened by being the
first career employee and the first individual with formal scientific
training to be nominated to head the Agency.
Mr. Chairman, as you are aware, I am trained in biology and
pathology. After graduating from college, I worked for the Computer
Sciences Corporation at the Goddard Space Flight Center and was
assigned to serve as a junior member of the launch support team for the
first Synchronous Meteorological Satellite (SMS-1). After completing my
graduate degree in pathology, I worked at Litton Bionetics,
Incorporated, as a research scientist. I began my career at EPA in 1979
as a health scientist in the Office of Pesticides and Toxic Substances.
I joined Hazelton Laboratories in 1982 to be Director of Operations,
where I managed the company's laboratory operations, including the
toxicological evaluation of chemicals. In 1984, I returned to EPA to
the Office of Prevention, Pesticides and Toxic Substances (OPPTS),
where I held numerous positions, including the Director of the
Registration Division, the Deputy Director of the Hazard Evaluation
Division, and the Executive Secretary of the Scientific Advisory Panel
for the Federal Insecticide, Fungicide, and Rodenticide Act. I also
served as the Deputy Director of the Office of Pesticide Programs, and
the Principal Deputy Assistant Administrator of OPPTS.
In 2001, I was honored to be chosen by President Bush--and
confirmed by the Senate--to serve as Assistant Administrator for the
Office of Prevention, Pesticides and Toxic Substances. In this
position, I was responsible for implementation of the nation's laws for
pesticides, toxic chemicals, right-to-know, pollution prevention, and
lead-based paint, including the regulatory and scientific programs.
I was honored again in 2004 to be selected to serve as Deputy
Administrator. I appreciated the support of this Committee and the full
Senate in being confirmed, and I especially appreciated the support of
both Governor Whitman and Governor--now Secretary Leavitt as I served
under their leadership.
Mr. Chairman, during my more than two decades at the EPA, I have
been privileged to direct, guide, and witness many significant
environmental accomplishments in reducing pollution of the air, water,
and land. Preparing for this hearing has helped to remind me of the
significant accomplishments we have achieved. For example, today the
air is the cleanest in three decades. Over the last thirty years, total
emissions of the six principal air pollutants have decreased by more
than 50 percent, while the Gross Domestic Product has increased by more
than 175 percent. EPA's recent Clean Air Interstate Rule, the Clean Air
Mercury Rule, and the Clean Air Diesel Rule, will ensure that we
continue--and even accelerate--our steady march toward achieving the
goals of the Clean Air Act. I understand that we have more work to do.
When he nominated me, the President charged me with working with
Congress to pass Clear Skies legislation. Clear Skies legislation will
improve upon EPA's regulations by creating a nationwide program with
greater certainty and greater emissions reductions. I appreciate the
work the Committee has already done on this issue, and I look forward
to working with you to advance this important legislative initiative.
We have a number of other accomplishments to be proud of. In the
1970's, nearly 90 percent of children in the United States had blood
lead levels above 10 micrograms per deciliter compared to just 2.2
percent today. Over the past several years, more than 1,000
contaminated sites are in the process of being cleaned up. Brownfields
legislation passed by Congress and signed by President Bush in 2002
holds the promise to transform thousands of additional sites across the
country into usable, productive land. Recycling and composting of
municipal solid waste has increased more than tenfold in the last
decade. And even as our economy has continued to grow, industrial
releases of 332 chemicals tracked since 1988 are down nearly 50
percent, a reduction of 1.55 billion pounds.
EPA and our partners continue to make progress in improving our
beach water quality. Just a few months ago, former Administrator
Leavitt put into place new beach water quality standards protecting the
public against pathogens in coastal and Great Lakes waters. Annual
wetland losses have dropped dramatically, and President Bush has now
raised the bar by pledging to achieve, for the first time, an overall
increase in wetlands. Who would have thought this possible thirty years
ago, when wetland losses were nearly 500,000 acres annually? And our
drinking water is cleaner and safer, too. Over 90 percent of the
population served by community water systems receives drinking water
that meets all health-based standards--up from 79 percent just a decade
ago.
Our food supply is also safer. EPA has been increasing protections
from pesticides for everyone--and especially children--through its
vigorous implementation of the landmark 1996 Food Quality Protection
Act (FQPA). EPA has reassessed nearly 70 percent of the existing
pesticides to make sure they meet today's standards for safety. As a
result, many pesticide uses that posed the greatest risks have been
taken off the market. And many older pesticides have been further
regulated to make sure that produce sold on the market does not have
pesticide concentrations beyond acceptable limits, and that any
pesticide residues in food meet the tougher health standards called for
in the FQPA. Another example of the success of this effort to reassess
pesticides is the greatly reduced use in residential settings of
organophosphates--a class of acutely toxic pesticides. It's estimated
that 15 million to 20 million pounds of organophosphate pesticides have
been removed from use in and around homes. At the same time, we've
worked to ensure that growers and citizens have the products they need
to control pests.
Mr. Chairman, while serving in various positions within the Agency,
I have relied upon several principles to guide my decisions. Even as we
face new challenges, I believe that these are the principles I would
rely upon as Administrator, and I'd like to summarize them briefly.
First, I will continue to work to ensure that the Agency's decisions
are based on the best available scientific information, and that the
Agency uses the resources provided by Congress--and those resources we
can leverage from other sources--to pursue scientific questions that
are important to the health and welfare of the American public. The
scientific community continues to make dramatic progress in
understanding the effects of pollution on human health and the
environment, and how to measure those effects. We see extraordinary
advances in disciplines that barely existed ten years ago--in the
fields of biotechnology, nanotechnology, and toxicogenomics.
As a scientist, I am intrigued with the promise that these new
areas of discovery hold for improving the world we live in. But I also
recognize that the process of scientific discovery is not always
straightforward; there are times when we're not sure what the science
is telling us. So our challenge is to make sure that when we are
required to make regulatory or policy decisions, we are using the best
available scientific information, and at the same time we should
continue to pursue and encourage rigorous scientific inquiry.
The second principle I will follow is to pursue as open and
transparent a decision making process as possible. During my time at
EPA, I have managed virtually every aspect of the Agency's rulemaking
process, from the development of technical scientific papers, to the
final, formal decisions. I understand that the credibility of EPA's
decisions comes from two things: first, from the integrity of the
science that underlies the decision; and second, from the ability of
the public to understand how the Agency came to its decision. The ideal
rulemaking process would be one in which we solicit input and advice
from all interested stakeholders and then make a decision with which
everyone agrees. Unfortunately, it rarely happens that way. Even when
there is disagreement on the Agency's final decision, I want to be
certain that the Agency has a clear rationale for that decision, and
that rationale is evident to all who may be interested.
As a part of this effort to improve the openness of our rulemaking
process, I will work hard to strengthen and improve the dialogue among
government, the regulated community, public interest groups, and the
general public. Furthermore, I recognize the important interest that
Congress has in our work--both as the author of laws given to the
Agency to implement, and as the overseer of taxpayers' dollars charged
to EPA's trust--and I will do my best to accomplish your intent.
The third principle I will follow is that new problems require new
approaches to finding solutions. Despite our past successes, we face
many continuing challenges, such as limited resources, and a number of
new challenges, such as environmental issues that cross traditional
borders and boundaries. Just as we live in a global marketplace, many
of our environmental problems are becoming increasingly international.
These international issues require us to adopt new approaches. The
President's Methane-to-Markets program is one such approach. This
program is a new global initiative designed to advance international
cooperation on the recovery and use of methane as a valuable clean
energy source. In addition to the United States, thirteen countries are
participating in the partnership and are expected to undertake
activities aimed at capturing and using methane emitted from landfills,
coal mines, and oil and gas systems. This program has the potential to
reduce net methane emissions by up to 50 million metric tons of carbon
equivalent annually by 2015, and continue at that level, or higher, in
the future. This would be the carbon equivalent of removing 33 million
cars from the roads for one year or eliminating emissions from fifty
500-megawatt coal-fired power plants.
I am encouraged that we have already had some success with a new
focus on collaboration to address environmental problems--a method that
is useful even when resources are limited and when typical legal
authorities are not available. Perhaps the best recent example of
collaboration is the success we have enjoyed to date with the
President's Great Lakes Executive Order issued a little more than a
year ago. At the President's direction, former Administrator Mike
Leavitt convened a meeting of governors, mayors, tribal leaders, other
elected officials, the leadership of ten Federal agencies, and many,
many stakeholders to convene a Collaboration of National Significance
on the Great Lakes. These leaders are working together--across
jurisdictional lines and across political boundaries--to develop a plan
to preserve and protect the Great Lakes as a national treasure. I am
excited about the prospect of adopting this model of problem solving to
a number of other issues confronting the Agency in the next several
years.
I should point out that the collaborative approach to environmental
problem solving is not new. EPA's ENERGY STAR program is one example of
a voluntary program that has existed for several years and has resulted
in significant environmental benefits. ENERGY STAR is a voluntary
public/private partnership that works with manufacturers, utilities,
retailers, and end users to promote energy efficiency. Last year alone,
using ENERGY STAR products and programs, Americans saved enough energy
to power 24 million homes and reduce greenhouse gas emissions equal to
20 million cars--all while saving approximately $10 billion on energy
bills.
One key to the success of EPA's collaborative problem solving is to
strengthen the partnership with our State and local colleagues. While
EPA is obligated to continue to establish national standards and hold
States accountable for meeting those standards, we know that each State
and locality has its own unique issues, and that State officials are in
the best position to know how to solve those issues. Through
collaboration, we have the opportunity to provide States and localities
with the most flexibility to address their specific problems, thereby
getting the most benefit from limited resources.
Of course, none of these new tools is intended to take the place of
EPA's obligation to enforce the environmental laws as written by
Congress. We will use incentives whenever it is appropriate, but we
will never give up the ability to hold individuals accountable under
the environmental laws of the nation. We have been entrusted with this
important responsibility, and while we should not abuse it, we must
always be vigilant to enforce the laws.
Finally, let me mention a fourth principle I consider vital to the
Agency's future success. As a twenty-four year veteran of the Agency, I
want to do what I can to build the Agency for the next generation and
beyond, including strengthening the day-to-day operations of the Agency
such as grants oversight, and ensuring that we meet our new
responsibilities with respect to homeland security. As many of you
know, we are facing a challenge as the professionals who joined the
Agency in its infancy are retiring. EPA's success is inseparable from
the qualifications of its staff. And the successes the Agency has
accomplished are a tribute to the accomplishments of its staff. To
maintain our ability to deal with the environmental challenges of the
next decade and the next generation, we need to make sure we have
people trained in the right disciplines and with the right problem-
solving skills. I would say parenthetically that we have already
started to train senior managers in collaborative problem solving
skills, and we are starting to see the benefits of that training.
Mr. Chairman, I have dedicated my entire professional life to
protecting public health and the environment. I have not viewed it to
be a goal exclusive of maintaining our economic competitiveness, and I
am proud that our nation continues to prosper as we continue to achieve
our environmental objectives. If confirmed, I will do everything I can
as Administrator to continue to serve the American people by working to
protect their health and the health of the environment.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Inhofe
Question 1. On February 1, 2005, I wrote you concerning an EPA
grant (X-98165501, and subsequent amendment) to the Northeast States
for Coordinated Air Use Management (NESCAUM) totaling $1,279,928.00. At
least part of this grant, reportedly $270,000.00, was subcontracted to
the Risk Analysis Center at Harvard University where an EPA employee on
leave pursuing a doctorate at Harvard prepared a report for NESCAUM to
undermine the mercury rule. How will you provide tighter controls over
your agency to prevent bureaucrats within your agency from using
taxpayer dollars to pursue their own agendas?
Response. Harvard University was paid approximately $100,000 by
NESCAUM as a contractor under the EPA grant, in which the agency
provided approximately $270,000 to NESCAUM for research related to the
quantification of benefits from reducing mercury emissions. The EPA
employee who worked for Harvard, however, did not receive any
compensation for his work from EPA grant funds. Although the employee
in question did receive approval from his Deputy Ethics Official (DEO)
for this work, EPA is considering developing new guidance for DEOs to
follow when an employee requests approval for outside employment, with
or without compensation, involving EPA grant recipients. EPA is also
planning to implement a system that would enable the agency to track
approvals and disapprovals of requests for outside employment related
to EPA grants.
Question 2. I strongly believe that real reform of grants
management at the EPA requires the oversight from highest levels within
the Agency. Can I get your commitment to ensure competition, ensure
measurable environmental results, and ensure strict financial oversight
especially of non-profit grant recipients with affiliated lobbying and
political organizations?
Response. I share your commitment to a strong program of grant
competition, to awarding grants that are results-oriented, and to
ensuring that EPA provides financial oversight of all of its grants,
including grants to non-profit organizations with affiliated lobbying
and political organizations. The Agency has moved aggressively under
its Grants Management Plan to address these issues. We are implementing
a revised competition policy that lowers the competition threshold from
$75,000 to $15,000, a change we estimate will subject an additional $8
million to competition. We are also implementing a new policy on grant
environmental results that will better align grants with the Agency's
strategic plan and focus on outcomes. Further, on March 31, the Agency
began imposing pre-award controls on non-profit applicants designed to
identify problems in their ability to manage Federal grant funds
properly and to prohibit grant awards until the problems have been
resolved. As a supplement to these policies, and to enhance senior-
level oversight, I recently issued a directive to EPA's Assistant
Administrators and Regional Administrators requiring them to certify
the appropriateness of proposed non-competitive, discretionary grants
and competitive announcements. I believe that these actions, coupled
with other initiatives EPA is taking under its Grants Management Plan,
will lead to genuine reform in our management of grants.
Question 3. I appreciate the EPA's work in the Tar Creek Superfund
Site and would like to especially commend the work of Richard Greene
and the staff at Region 6 and the new cooperative work among the EPA,
Army Corps of Engineers, and Department of Interior which is necessary
to clean up Tar Creek. Can I get your commitment that the RIFS
(Remedial Investigation and Feasibility Study) and proposed plan for
chat removal will be completed on schedule?
Response. The Tar Creek Superfund site remains one of EPA's top
priorities. Yes, EPA will continue to work diligently on completing the
Remedial Investigation and Feasibility Study (RIFS) on schedule. The
Agency has made significant progress since the work on the RIFS started
in January, 2004. Additional site sampling is underway and it is
expected that the RIFS written report will begin this summer which will
continue EPA on its schedule to develop the proposed cleanup plan.
Question 4. The Agency is currently reviewing the Spill Prevention
Control and Countermeasure rule it published on July 17, 2002 to see if
changes need to be made to assist small facilities. In a Notice of Data
Availability published on September 20, 2004, the Agency published a
proposal by the Small Business Administration that suggested a tiered
approach for small facilities that would increase requirements as the
amount of oil stored increased. The levels proposed by the SBA are too
low to help marginal wells in my state of Oklahoma. These wells are the
``small facilities'' of the oil industry and their concerns need to be
accommodated in any future rule making.
Can I get an assurance that as Administrator you will ensure that
any new proposed rule or guidance fully addresses the concerns raised
by the small independent producers with respect to marginal wells and
the burdens placed on them by the underlying proposal?
Response. EPA is in the midst of a rulemaking process which
includes collecting and analyzing data as follow-up to the September
20, 2004 Notice of Data Availability (NODA) for facilities that store
oil below a certain threshold. All information, including that provided
in comments on the NODA, will be weighed in formulating a proposed rule
to address the concerns of smaller facilities in the context of an
adequate and reasonable spill prevention, control and countermeasure
program.
EPA will fully consider the concerns raised by the small
independent producers and continue to work with them to understand
their concerns and explore means to address them while retaining
effective spill prevention measures at oil production facilities.
Question 5. As a scientist by training and as former AA to the
Office of Prevention, Pesticides, and Toxic Substances (OPPTS,
pesticide registration), you have a great deal of experience with the
risk assessment process at EPA. As you are aware, there is a growing
concern about the quality of the science at EPA, as well as the
perception that the process is biased by both internal as well as
external pressure requiring constant oversight from external entities.
Take for example the unanimous rebuke by the National Academy of
Science panel of EPA's risk assessment work with respect to
perchlorate. There is also a concern about the lack of transparency to
the public. If you are confirmed as EPA Administrator, what steps will
you take to ensure that risk assessments and the policy decisions that
flow from them are based on independently peer-reviewed science, absent
external and internal pressure and what will you do to ensure that the
information is adequately and understandably related to the public?
Response. I am committed to improving the use of science at EPA.
EPA's process for risk assessments is very rigorous, using only
information from the published peer-reviewed scientific literature.
Nevertheless, there are instances, as in the case of NAS's perchlorate
review, where the selection of studies and interpretation of studies
differs among scientists, leading to different conclusions.
During the past year EPA's Office of Research and Development has
instituted several steps to improve the transparency of its risk
assessment process. As part of EPA's Integrated Risk Information System
(IRIS) program, we currently publish a public call for nominations for
chemicals to be assessed. When a selection is made we ask for new
scientific information available or soon to be available about the
chemicals nominated. We also publish an annual list of chemicals that
are being assessed in order to inform all interested parties. When an
assessment is ready to be peer-reviewed, we post the draft report as
well as any comments that we receive from any member of the public on
the IRIS web site. Finally, when an assessment is complete, the final
assessment is also posted on the IRIS web site.
Recently, I have asked the IRIS program to modify their process to
allow additional transparency and access to EPA assessments in
progress. We will shortly be proposing this revised approach for public
comment. We have received very favorable responses to our proposal from
discussions with the American Chemistry Council and the White House
Office of Science and Technology Policy.
All of EPA's IRIS assessments are peer-reviewed by independent
panels of scientists, the EPA Science Advisory Board or the National
Academy of Sciences. The steps that we are now proposing will add to
the transparency of our process. We have constantly set ourselves the
goal of meeting the highest possible standard for the quality of the
assessments, including objectivity and transparency, and I believe that
we are meeting those goals.
Question 6. Many constituents have expressed concern that some EPA
staff personnel are not well informed and often over-zealous when using
the agency's investigation and enforcement powers. I have heard
examples where some EPA field personnel may be following their an
agenda rather than learning the necessary science and understanding the
applicable rules, laws and policies Outside influences often have to
educate the EPA project manager about the facts, the science and the
applicable standards. This lack of training and experience can be
frustrating for the regulated entity and may, in some cases, lead to
hostility on the part of the EPA staff.
Can this Committee count on your efforts to assure that field staff
are properly trained and supervised to perform their duties with
respect for other agencies and the regulated public?
Response. EPA is committed to ensuring that our field staff are
well trained and conduct inspections in a highly professional manner.
In 1988, the Agency implemented EPA Order 3500.1, Training and
Development for Individuals Who Lead Compliance Inspections/Field
Investigations (Order) (revised in 2002). This Order establishes
consistent Agency-wide training for employees leading environmental
compliance inspections/field investigations. It ensures that these
employees have a working knowledge of regulatory requirements,
inspection methodology and health and safety measures. Additionally,
EPA hosts an annual EPA Inspector Workshop to focus on issues related
to inspections across all media. Finally, EPA has published a series of
Inspector Manuals which provide guidance on conducting inspections, and
operates an EPA Inspector Website which includes inspector/inspection
policies.
To help ensure that facilities have an opportunity to voice any
concerns about inspectors, especially small businesses, EPA inspectors
normally distribute a fact sheet which includes a discussion on
commenting on federal enforcement actions and compliance activities.
The fact sheet provides the phone number for the Small Business
Ombudsman, and has information on the ten Regional Fairness Boards,
which were established to receive comments from small businesses on
enforcement and compliance activities. We would welcome the opportunity
to determine if a problem existed in a specific case (or cases), and if
so, to take steps to correct it.
Question 7. EPA issued in February a proposed rule for on the
matter of whether or not an NPDES permit is needed for the application
of pesticides under certain circumstances and in compliance with FIFRA
requirements. This proposed rule appears to be a solid effort and
consistent with longstanding Agency policy and the recent statements it
has issued following the Talent and Forsgren cases in the 9th Circuit--
pesticides used in compliance with FIFRA are beneficial products, not
``chemical wastes'' as that term is defined in the Clean Water Act, and
their application is not subject to NPDES permitting.
I am concerned, though, that this proposed rule excludes from NPDES
permitting only those circumstances where pesticides are applied, in
compliance with FIFRA, directly into, over or near water--so-called
aquatic uses and dealing with pests found in or near aquatic
environments. Certainly, if pesticides applied in those aquatic
circumstances are excluded from NPDES permitting (as is appropriate),
should not pesticide uses that take place further from water also be
excluded? Such uses almost by definition should result in less
pesticide reaching water. I know that it is the Agency's longstanding
operational approach not to require NPDES permits under these
circumstances. Would it not be wise to extend this proposed rule to
cover all pesticide uses applied in compliance with FIFRA, and limit
the confusion and potential ill-informed litigation that will focus on
these non-aquatic uses?
Response. I understand your concerns with the limited scope of the
Environmental Protection Agency's (EPA) proposed rule regarding
coverage under the Clean Water Act (CWA) of pesticides regulated under
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Let me
assure you that EPA is working hard to ensure that the legal
application of pesticides is not subject to litigation under the Clean
Water Act.
The proposed rule published in the Federal Register on February 1,
2005, embodies the substance of an Interpretive Statement that was
issued by EPA on January 25, 2005. The Interpretive Statement clarifies
that applications of pesticides to or over, including near, waters of
the U.S. do not require National Pollutant Discharge Elimination System
(NPDES) permits if the pesticides are applied consistent with all
relevant requirements under FIFRA. The Interpretive Statement also
stated that ``[i]t has been and will continue to be the operating
approach of the Agency that the application of agricultural and other
pesticides in accordance with label directions is not subject to NPDES
permitting requirements.''
The comment period on the proposed rule closed on April 4, 2005.
Several commenters shared your concern that the proposed regulatory
language only addressed pesticides applied to, over and near waters.
EPA will review and respond to all comments received and issue a final
rule by October of this year.
EPA committed in the Federal Register to ``continue to review the
variety of other circumstances beyond [those] described above in which
questions have been raised about whether applications of pesticides
that enter waters of the U.S. are regulated under the CWA, including
other applications over land areas that may drift over and into waters
of the U.S.'' Towards that end, EPA is considering additional options
that would successfully engage interested external stakeholders to
provide feedback to the Agency on outstanding issues regarding NPDES
and pesticides.
In addition, we would be happy to meet with you or your staff at
any time to discuss this issue.
Question 8. Mr. Johnson put together a most impressive and
extraordinary coalition of environmentalists, farm commodity groups,
the pesticide industry, farm workers and labor to support the Pesticide
Registration Improvement Act, enacted in 2004. PRIA brings new funding
stability to EPA's Office of Pesticide Programs, improves
predictability for approval times for registration of new products
aimed at public health and agriculture, and provides the resources
needed to complete tolerance reassessment and re-registration. Industry
has agreed to pay more than $200 million over 5 years. It is a win for
industry, for public health, for the environment, and for EPA.
As a principal architect of PRIA, how will you ensure that the
funding stability it provides will be preserved and the deadlines it
incorporates will be met? Further, can you give us assurance that you
will keep this coalition together and support reauthorization of PRIA?
In the face of budget pressures, what process and policy changes do you
support that will ensure that the Pesticide Program will be able to
meet its registration and re-registration obligations?
Response. Thank you for acknowledging the success of the Pesticide
Registration Improvement Act. The Agency recently celebrated the one-
year anniversary of the effective date of the Pesticide Registration
Improvement Act, and has many positive accomplishments to report.
During that timeframe, the registrant community has paid over $20
million in new pesticide registration service fees and nearly $45
million in renewed pesticide registration maintenance fees. These
resources have been utilized to enhance the appropriated funding of
both the registration and re-registration programs and help to ensure
that all deadlines under PRIA and the Food Quality Protection Act are
being met.
One of the hallmarks of PRIA has been the continued collaboration
between the Agency and all stakeholders on pesticide registration
issues. Through the Process Improvement Workgroup, operating under the
Pesticide Program Dialogue Committee, the Agency continues to engage
stakeholders to identify and collaborate in areas in areas to improve
the registration process. These efforts have already identified the
need to improve guidance regarding labeling requirements for
pesticides, and other work is underway. The Agency has also undertaken
internal reviews of its evaluation procedures and found ways to reduce
an application's queuing time while maintaining high quality,
scientifically sound review standards. These efficiencies and process
improvements will help enable the Agency to meet its registration and
re-registration obligations.
I look forward to continuing to work with the Administration, with
Congress and the coalition to continue our successful collaboration for
stable funding and program efficiencies being achieved by EPA's Office
of Pesticide Programs.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Bond
Question 1. Which will produce a greater amount of air pollution
reduction, and therefore benefit the environment more: (1) litigation
against a few dozen individual power plants, or (2) legislation
affecting over 1,100 power plants and mandating a 70 percent nationwide
pollution cut from power plants? Please provide a comparison of the
lbs. of pollution reduced as a result of NSR settlements and the
estimated lbs. of pollution that would be reduced through passage of
Clear Skies legislation.
Response. Aggregate emissions from the power sector under Clear
Skies would be reduced by 70 percent beyond today's emission levels.
Annual emissions of SO<INF>2</INF> would drop from 11 million tons in
2000 to 3 million tons upon full implementation of Clear Skies, and of
NOx from 5 million tons in 2000 to 1.7 million tons upon full
implementation. As demonstrated by the Acid Rain Program, Clear Skies
will achieve emissions reductions that (1) are greater; (2) are more
cost-effective; (3) are more certain to occur; (4) will likely be
realized sooner; and (5) can be achieved at far lower cost to the
government than NSR enforcement actions. We have learned that, among
other things, a cap-and-trade approach generally results in emission
controls being installed at the largest plants nation-wide. On the
other hand, an enforcement approach is generally limited to plants at
which NSR violations have occurred--and not necessarily the plants that
are most cost-effective to control. Settlements may allow EPA and an
individual company to focus on achieving the most cost-effective
reductions available from that company. But by definition, a NSR-type
approach cannot be as cost-effective as a broad cap-and-trade approach
like Clear Skies.
Question 2. For more than a year, EPA has been considering whether
to allow consumers to purchase wood treated with A-C-C, or Acid Copper
Chromate. ACC is less expensive than anything currently on the market
and has been used successfully in Europe for years. EPA formed a
Scientific Advisory Panel (SAP) last year to look at ACC and it
concluded that there was little health risk to consumers. While the SAP
certainly laid out a clear roadmap for re-registration of A-C-C, the
EPA has failed to take any action on the SAP's recommendations. Can you
give me an estimate on when the EPA will finally resolve this issue and
hopefully give consumers more choice and lower costs when it comes to
wood preservatives?
Response. EPA's action on the pending ACC application is dependent
on two critical pieces of data that have not yet been submitted by the
registrant to EPA. As described more completely below, EPA is concerned
about potential dermal exposures to hexavalent chromium from treatment
of wood with the ACC treatment solution. Hexavalent chromium as surface
residue on treated wood may cause sensitization in humans contacting
the wood in residential settings. Moreover, these surface residues have
the potential to persist as the conversion to the less toxic trivalent
chromium species is temperature-dependent.
To address the outstanding concerns, the Agency has taken several
steps. The Agency presented its scientific issues regarding dermal
sensitization to its Scientific Advisory Panel (SAP) in May 2004. Among
other recommendations in its July 2004 report, the SAP noted that
exposure information was important to determine potential risks
associated with contact to treated wood surfaces. Specifically, the SAP
stated: ``It is not important how much of a chemical is in the matrix
but how much is leached out of it and available for exposure.''
In response to the report, the Office of Pesticide Programs has
analyzed the recommendations, presented its analysis to the Agency's
Science Policy Council (SPC), and based on recommendations from both
the SAP and SPC, revised its level of concern for hexavalent chromium
in ACC-treated wood. We are now waiting for two critical studies that
the Agency required of the registrant in a letter sent January 2004.
One of these studies will provide information that specifically
addresses the level of hexavalent chromium on the surface of ACC-
treated wood, and the other study is to determine levels of exposure to
workers at wood treatment facilities. Once these data are submitted,
the Agency will be in a position to make a determination as to whether
there is a risk of dermal sensitization from exposure to hexavalent
chromium resulting from contact to treated wood.
In addition, an extensive study of the cancer risks posed by oral
ingestion of hexavalent chromium is underway by the National Toxicology
Program (NTP) and we expect those results in May 2005. Upon receiving
this study and the two studies requested of the registrant noted above,
the Agency will be able to determine whether the law's ``reasonable
certainty of no harm'' safety standard, including infants and
children's exposures, can be met, and thus, make its registration
decision.
Question 3. A concern with A-C-C is the possibility of a dermal
reaction such as a skin rash. Yet the scientists who made up the SAP
found the actual level of concern for dermal exposure to be between 50
and 167 times less than where EPA suggested. How is EPA responding to
this finding?
Response. When the Agency establishes a level of concern, it
typically selects a single value from the studies available to it
representing an exposure level at which no adverse effect is expected
to occur. The Agency will apply uncertainty factors to that level to
ensure an adequate margin of safety for people who may be exposed to
the chemical--in this case, hexavalent chromium. The number and
magnitude of the uncertainty factors will depend on the completeness
and quality of the underlying database for the chemical.
For hexavalent chromium, the Agency's Scientific Advisory Panel
(SAP) recommended a range of values from 0.09 to 0.3 mg/cm2. EPA has
considered both the SAP recommendation as well as the recommendation of
the Agency's Science Policy Council on this point and has established a
value of 0.009 mg/cm2.
The difference in the values suggested by the SAP and that chosen
by the Agency is a result of the lack of exposure information available
and the possibility of repeated exposures which could occur. When data
are supplied by the registrant on the actual surface residue levels of
hexavalent chromium on the treated wood and the time course necessary
for conversion of the hexavalent form to the less toxic trivalent form,
then the value chosen by the Agency could be further revised since the
degree of uncertainty about the level of exposure will likely be
reduced. The Agency has communicated the rationale for its current
level of concern and the possibility to revise that level upon receipt
and evaluation of the surface residue data to the registrant.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Voinovich
Question 1. EPA's mercury rule has already been sued, and lawsuits
on the Clean Air Interstate Rule will soon follow. Based on past
lawsuits on EPA rules, how much do you expect this lawsuit to cost the
federal government to defend and how long do you expect the rules to be
delayed?
Response. Litigation can be costly and could potentially delay
implementation of EPA regulations. The filing of a lawsuit does not
automatically stay the effectiveness of our rules. Thus, CAMR is in
effect now and will remain so unless EPA or the Court were to stay the
rule. We have received an administrative petition to stay the rule,
which we are currently evaluating. We expect several parties to request
the D.C. Circuit to stay the rule pending resolution of their lawsuits.
If EPA and the Court deny such petitions, the CAMR will not be delayed
at all. If EPA or the Court were to grant the requests, CAMR could be
delayed anywhere from 90 days up to the full time the case is in
litigation.
Question 2. The President signed an Executive Order last year to
coordinate Great Lakes activities and develop a restoration strategy.
How do you plan to be involved with this initiative?
Response. I am the acting as the Chair of the Great Lakes
Interagency Task Force (IATF), which is spearheading implementation of
the Executive Order. I am also representing the federal agencies on the
Executive Committee governing the Great Lakes Regional Collaboration
(GLRC).
The first year of the Task Force has been spent working on high
priority issues needing interagency cooperation such as the Interagency
Snakehead response, the Illinois Sanitary and Ship Canal Dispersal
Barrier and identifying future areas where interagency coordination
would improve the delivery of programs and decision-making in the Great
Lakes Basin. These projects, along with more than 130 other interagency
initiatives, have been documented in an Interagency Project Matrix that
is being updated and used as a tool to promote improved management of
Great Lakes programs.
The GLRC that was launched toward in December 2004 involved
considerable outreach and discussion with Great Lakes governmental
partners at the State and local levels, Tribes, key Great Lakes
organizations, and stakeholders. The GLRC is governed by an Executive
Committee that is overseeing the effort to develop a strategic plan. I
represent EPA and other Federal Agencies on the Executive Committee.
The Committee has established eight ``Strategy Teams'' corresponding to
priorities established by the Great Lakes governors and adopted by the
Great Lakes mayors. Work of the Strategy Teams and the Executive
Committee is currently underway and will culminate in ``Summit I''
during the Summer 2005, and ``Summit II'' in December 2005, at which
time the final Strategic Plan will be released.
Continuing the work of the GLRC is a high priority. The plan will
serve as a blueprint for the Great Lakes community, and will assist
Federal Agencies in priority setting, as well as to identify areas
where greater interagency coordination can help in cleaning up and
protecting the Great Lakes. Continued bi-partisan support and
leadership from Congress will be critical to our success.
Question 3. Over the last two Congresses, I have introduced
legislation to create a position of Deputy Science Administrator at the
EPA. What is your position on this bill? What role do you believe
science should play in EPA's decision making? What steps will you take
to continue to improve the science that EPA relies on?
Response. I appreciate your leadership in promoting improved
science at EPA. Upon arriving at EPA, Administrator Whitman
commissioned a task force to identify ways to strengthen the scientific
and economic bases of our policies and decisions at EPA. The task force
concurred with the need for an Agency Science Advisor, and
Administrator Whitman appointed Paul Gilman, Assistant Administrator
for Research and Development, to this position. I understand that the
responsibilities of the Science Advisor and the proposed Deputy Science
Administrator are similar. The Agency has found the Science Advisor
position to be extremely valuable in advancing the use of science at
EPA and I intend to fill the position as quickly as possible if
confirmed.
While it is important that EPA's scientific research and
development be integrated with and be responsive to the Agency's
regulatory needs, it is vital that the conduct of the research itself
be independent and of the highest quality. Over the past four years,
EPA has taken major steps to assure that it carries out a program of
sound science to inform Agency decisions without allowing regulatory
objectives to distort scientific findings or analyses. These steps have
included open, transparent and peer reviewed research planning;
competitively awarded extramural research grants; independent peer
review of science publications, assessments and documents; and rigorous
peer review of EPA's research laboratories and centers.
The measures the Agency has taken in the past several years have
gone a very long way toward strengthening science at EPA. We can always
improve, but EPA has made many achievements to date in strengthening
the Agency's science program.
EPA's Fiscal Year 2006 President's Budget reflects this
Administration's commitment to ensuring that the nation's environmental
policy is based on cutting-edge science. This budget includes
investments for Homeland Security and advanced environmental
monitoring, including support for the Global Earth Observation System
of Systems (GEOSS). The results of these efforts will help provide the
scientific foundation to protect human health and the environment for
decades to come.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Chafee
Question 1a. In November 2003, EPA released a draft blending policy
for wastewater treatment facilities that would clarify the use of
blending as an approved treatment process. This guidance has been
praised by municipalities and the wastewater industry, and met by
opposition from the environmental community. The environmental
community has taken the position that this draft guidance would provide
new loopholes for wastewater treatment plants to avoid needed upgrades
at their facilities. On the other hand, the industry states the
guidance clearly defines the situations in which blending would be
allowed and includes specific guidance on how the policy should be
implemented in order to meet Clean Water Act standards. How many
facilities nationwide utilize blending as a management practice? Is
this figure expected to increase under the new blending policy?
Response. Information is not available on the frequency of blending
at the 16,000 municipal wastewater treatment facilities across the
United States. The Association of Metropolitan Sewerage Agencies (AMSA)
conducted a survey of its members in 2001. AMSA received 122 responses
(47 percent of its membership). Of the members that responded, 48
percent (59 of 122 responses) indicated that they blended. The 59
utilities that indicated they blended had facilities in 26 States.
Given the lack of current data on the number of facilities that
blend, the frequency of blending at the facilities and the scope of any
final EPA blending policy, it is difficult to predict whether blending
would increase. The management of wet weather flows within a municipal
wastewater collection system and treatment plant is very site-specific
and the potential for blending would depend on a number of variables,
including: the management of peak flows in the collection system; peak
wastewater flows at the treatment plant; available wastewater treatment
plant capacity; and, the plant-specific permit limits.
Question 1b. Does EPA have a handle on the total number of blending
events by all facilities nationwide on an annual basis?
Response. EPA does not have an estimate of the frequency of
blending at municipal wastewater treatment facilities. EPA believes
that its on-going review of the legal, policy and scientific issues
associated with blending will significantly improve regulatory
oversight of discharges from municipal sewage treatment facilities
during wet weather conditions. These improvements, along with improved
data management, could make accurate estimates of blending events
possible in the future.
Question 1c. Where does the agency currently stand on finalizing
the blending policy?
Response. EPA continues to review comments. Our goal is to clarify
permitting requirements relating to wet weather flows at municipal
sewage treatment facilities. EPA's focus is on providing the public
with protection from exposure to contaminants, including pathogens, and
ensuring nationwide access to clean, safe and secure water. We have not
established a schedule for making a final decision.
Question 2. The President's FY 2006 budget would eliminate nearly
all $2 million from EPA's Stratospheric Ozone Protection program. This
program has been recognized as one of the most cost-effective with
benefits outweighing costs by a 20:1 ratio. The proposed budget
reduction prevents the U.S. in meeting its commitments under the
Montreal Protocol for which it has provided two decades of consistent
leadership in restoring the earth's ozone layer. I understand many
industries such as manufacturers of refrigeration and air conditioning
equipment, appliances, and automobiles, have invested billions in
developing ozone safe technologies on the understanding that the U.S.
government is serious about protecting the ozone layer. If the budget
cut causes the U.S. to fail to comply with the terms of the Montreal
Protocol, does this not risk stranding a huge investment in this
country?
Response. The stratospheric ozone protection program has been very
successful, with benefits significantly outweighing costs. After
Congress completes the appropriations legislation, I will review the FY
2006 budget to ensure that the United States can continue to meet our
commitments under the 1990 Clean Air Act Amendments and the Montreal
Protocol and realize the benefits of the investments that have been
made by U.S. industry.
Question 3a. As part of the approval process for the Cape Wind
Energy project in Nantucket Sound, EPA's New England office recently
submitted comments on the Corps of Engineers draft environmental impact
statement. This project off the coast of Massachusetts will help the
region meet our goals for renewable energy production and for air
quality. Are you familiar with this project and the importance of
moving forward with it?
Response. I am familiar with the Cape Wind proposal. It is the
first and largest scale offshore wind energy project proposed in the
United States, and I consider it to be among the highest priority
projects now going through the environmental review process. Staff in
my immediate office and in EPA's headquarters' program offices, in
addition to those in EPA Region 1, have been and will continue to be
involved in tracking the progress of the project and overseeing the
agency's review of it. In view of the project's importance and
precedent, it is essential that EPA and all of the agencies make sure
that the environmental review process is sound and moves forward to
completion.
Question 3b. If renewable energy is going to become a reality in
this country, it is important that EPA uses its NEPA review authority
to help make sure these projects are environmentally sound. However, if
we set the standard of proof unrealistically high, the large scale use
of renewable energy will remain an unattainable goal. Do you agree that
EPA should be using its authorities to help make renewable energy a
reality?
Response. EPA supports an increase in electrical generating
capacity using renewable resources such as solar, hydropower, and wind.
Every major project requiring federal permits, even those with
potential for significant environmental benefits such as Cape Wind, are
required by the National Environmental Policy Act to undergo a rigorous
review that examines adverse impacts and alternatives. This is
especially important when a project is the first of its kind in the
U.S. because how the analysis is done sets a precedent for future
reviews. EPA has devoted substantial effort to working as a cooperating
agency with the Corps of Engineers during development of the
environmental impact statement. In comments on the EIS, EPA stated
strong support for renewable energy and did not oppose the Cape Wind
project, but concluded that the document did not contain enough
information to adequately assess the project's potentially adverse
impacts and alternatives to avoid or minimize those impacts. The
concerns EPA raised were not new and had been raised by EPA and other
agencies during development of the EIS. EPA had hoped the EIS would
address the concerns because New England needs clean, renewable energy
projects, and Cape Wind's proposal, if shown not to cause significant
adverse impacts, has tremendous potential for benefiting the region.
Question 3c. Will you promise to review this matter personally to
make sure that EPA is being constructive and helpful in moving this
project forward?
Response. Yes. I will make sure that EPA continues to treat this
project as among the highest priorities and makes diligent,
constructive efforts to work with the Corps of Engineers to completion
of the environmental review process. Since commenting on the draft
environmental impact statement, EPA Region 1 has contacted and met with
the Corps to discuss their interest in working toward resolving any
issues and moving the environmental review forward expeditiously.
Question 4. In Rhode Island, approximately 250 sites meet the
criteria for brownfields; one of these is the Fields Point Site.
Although progress has been made, the application process has stalled. I
believe that it is necessary to take a property, like Fields Point,
that has sat vacant for decades, on a beautiful shoreline and
revitalizing it for community use. My question is, how do you see the
EPA brownfield grant program continuing or evolving under your
stewardship?
Response. I will continue to vigorously implement the 2002
Brownfields Law. Interest in EPA Brownfields grants remains high, as
demonstrated by the more than 500 applications for the more than 200
grants that EPA anticipates awarding in fiscal year 2005. EPA will
continue to emphasize outreach to state and local governments, non-
profit organizations and the private sector, and focus on improving
performance measures, working with state, tribal and local grantees.
The Fields Point area is an example of how partnerships can cleanup
and revitalize brownfields properties. A portion of the area was
assessed with $150,000 from EPA. Cleanup was undertaken using a
$700,000 loan from the State of Rhode Island using an EPA Revolving
Loan Fund grant. An environmental education center is now under
construction. In another area of Fields Point, the university owning
the property has assessed the site and applied to EPA for additional
cleanup assistance. That application is under review and EPA
anticipates announcing the fiscal year 2005 grants later this spring.
______
Response of Stephen L. Johnson to Additional Question from
Senator Murkowski
Question 1. EPA's Clean Air Mercury Rule represents a significant
step in improving America's air quality. This rule makes the United
States the first country in the world to regulate mercury emissions
from utilities. I hope other nations will follow the Administration's
lead. I understand from EPA's analysis that humans are primarily
exposed to mercury by eating fish that contains methylmercury. I also
understand the primary source of mercury, especially for the fish most
commonly found in the marketplace, is from overseas sources, not those
in the United States. As you know, the seafood industry is very
important to my State and we don't want seafood harvested in Alaska's
nearly pristine environment to be affected by pollution from abroad.
What is EPA's position on seafood consumption? Would you please remind
us which four species of fish pregnant women and children should avoid
eating? And would you please give us examples of fish with low mercury
levels?
Response. The Clean Air Mercury Rule is an important component of
EPA's plan to improve the Nation's air quality. I join you in hoping
that other nations will follow our lead and reduce mercury emissions
from utilities and other sources.
EPA continues to recognize that fish and shellfish are part of a
well-balanced diet that can contribute to heart health and children's
proper growth and development.
Nearly all fish and shellfish contain traces of mercury. While not
an issue for most Americans, some fish may contain higher levels that
might harm an unborn baby or young child's developing nervous system.
The risks from mercury in fish and shellfish depend on the amount of
fish and shellfish eaten and the levels of mercury in the fish and
shellfish. As a result, the 2004 FDA/EPA Fish Consumption Advisory
advises pregnant women, women who may become pregnant, nursing mothers,
and young children to avoid certain types of fish that are higher in
mercury--specifically shark, swordfish, tilefish and king mackerel. But
seafood consumption generally is very beneficial and the advisory also
recommends that this same group eat up to two meals per week of fish
and shellfish that are low in mercury. Five of the most commonly eaten
fish that are low in mercury are shrimp, canned light tuna, salmon,
pollock (including Alaskan pollock), and catfish. In addition,
Americans can check local advisories about the safety of fish caught by
family and friends in local lakes, rivers, and coastal areas. If no
advice is available on local sportfishing species, eat up to 6 ounces
(one average meal) per week of fish caught from local waters, but don't
consume any other fish during that week.
Americans can follow these same recommendations when feeding fish
and shellfish to young children, but serve smaller portions.
Question 2. How should regulations recognize unique conditions,
such as when an area is classified as ``non-attainment,'' but the fact
of non-attainment is due to uncontrollable environmental conditions,
such as severe cold-weather temperature inversions (as in Fairbanks,
Alaska).
Response. EPA took several steps to help the Fairbanks area come
into attainment with the carbon monoxide (CO) standard in light of the
severe cold temperatures occurring in winter months when CO pollution
is of greatest concern. For example, we provided the area with
assistance in developing its attainment demonstration. This included
help in determining the control measures the area would need to attain
the standard and assistance with its air quality modeling. The steps
taken by the state and local officials, in combination with national
control programs, proved to be successful. In July 2004 EPA approved
the Fairbanks maintenance plan and redesignated the area to attainment
for CO.
With regard to your question about unique conditions, such as
severe cold temperatures, here are policies EPA has put in place.
Working with State and local governments, EPA has developed two
policies (Exceptional Events Policy and Natural Events Policy) which
describe the circumstances under which data affected by certain
exceptional and natural events may be excluded from regulatory
decisions such as attainment determinations. When either an exceptional
or natural event is determined to have significantly contributed to a
violation of a national ambient air quality standard (NAAQS), our
policies and guidance have provided for special exemptions in the use
of the data for regulatory purposes. However, EPA does not exempt
violations of the health-based NAAQS that occur during uncontrollable
environmental conditions such as severe cold-weather temperature
inversions. The National Research Council (NRC) affirmed this position
in a report entitled ``Managing Carbon Monoxide Pollution in
Meteorological and Topographical Problem Areas.'' (Fairbanks, Alaska
was one of the cities included in this report.) The NRC noted that
granting an exemption to a health-based NAAQS denies protection to the
general population and susceptible individuals. The NRC report supports
EPA's long-established policy that it is appropriate for air quality
managers to consider meteorological and topographical issues when
determining the emission reductions needed to achieve the NAAQS.
Question 3. Current science indicates the largest part of any
industrial atmospheric contaminants present in Alaska are from overseas
sources, both man-made and natural. How should regulatory action
recognize and respond to that fact?
Response. EPA recognizes that some areas in the United States are
affected by pollution transported from overseas. The Agency has
policies to adjust its regulatory requirements for areas that can
demonstrate the impact of such pollution. EPA is also working to reduce
international transport through participation in international
environmental negotiations and agreements.
In keeping with its Exceptional Events Policy (see question #2
above), EPA currently has a policy related to international events that
may cause, or significantly contribute to, violations of the ozone
standard at air quality monitoring sites within the United States. EPA
is currently working to draft a policy that will address emissions from
international events that will apply to all of the criteria pollutants.
This policy will address the treatment of data determined to be
affected by international events such as emissions from international
forest fires, Sahara dust, glacial dust, as well as other types of
emissions from international sources, both man-made and natural, that
may impact monitoring sites within the United States.
Section 179B of the Clean Air Act (Act), related to international
border areas, applies to nonattainment areas that are affected by
emissions emanating from outside the United States. This section
requires EPA to approve a State Implementation Plan (SIP) for a
nonattainment area if: (1) it meets all of the requirements applicable
under the Act, other than a requirement that the area demonstrate
attainment and maintenance of the NAAQS by the applicable attainment
date for the affected pollutant; and (2) the affected State
demonstrates to EPA's satisfaction that the SIP would be adequate to
attain and maintain the NAAQS by the applicable attainment date ``but
for'' emissions emanating from outside the United States. EPA also
participates in numerous international agreements and cooperative
working groups which are focused on reducing transported pollution.
Prominent examples include the 1991 U.S. Canada Air Quality Agreement
and the 1983 La Paz Agreement between the U.S. and Mexico.
EPA has also been an active participant in the Convention on Long-
Range Transboundary Air Pollution (LRTAP), which establishes a broad
framework throughout North American and European regions covered by the
United Nations Economic Commission for Europe (UNECE) for cooperative
action on air pollution. LRTAP sets up a process for negotiating
concrete measures to control specific pollutants through legally
binding protocols; so far, LRTAP has addressed issues such as acid
rain, ground-level ozone, persistent organic pollutants (POPs), and
heavy metals. In 1999, the United States signed a protocol to abate
ozone, acidification, and eutrophication. Just recently, EPA and LRTAP
jointly formed a Task Force to conduct the technical analyses necessary
to develop a fuller understanding of the hemispheric transport of air
pollutants and provide technical assessments of this transport to LRTAP
executive bodies for use in Convention Protocols. These efforts are all
very important to reducing transported pollution.
Question 4. Dust control is a serious matter in Alaska and other
western states. What role can EPA serve in assisting states find ways
to control the problem, especially in isolated rural areas such as
Alaska villages?
Response. Wind blown dust is a pervasive air pollution problem
across parts of the West. The EPA assists the States in a number of
ways as they search for technically viable and cost-effective solutions
to dust problems. EPA is currently working closely with the Dust Forum
convened by the Western Regional Air Partnership (WRAP) of the Western
Governors' Association and also with the National Tribal Environmental
Council and the Institute of Tribal Environmental Professionals (ITEP)
on a number of technical issues related to dust source identification,
emissions estimation and mitigation. For example, EPA has recently
worked closely with the State of California to identify control
measures that the State will require for adoption in specific areas,
and with ITEP on the development of software to estimate emissions from
dust and other sources. ITEP also has a grant from EPA to provide
training to Alaskan Natives.
EPA has successfully worked with communities to develop solutions
that are tailored to their specific needs and constraints. An example
of a very successful effort occurred in the Owens Lake area in the
Great Basin of California. Other projects are underway in the West that
we are confident will be helpful to communities and citizens.
Specifically, EPA has initiated grants with two Alaskan villages to
monitor air quality and develop solutions to their dust problems. The
State of Alaska has recently developed a brochure to help guide Alaskan
Natives toward solutions to their road dust problems.
Also, one of the most effective ways the EPA can help is by
providing the appropriate forums to identify technologies and share
experiences and successes across State, local, and Tribal boundaries.
Examples of this are the Best Available Control Measures workgroup, the
annual Emission Inventory Conference (being held April 12-14, 2005 in
Nevada) and periodic regional meetings with States, local governments
and tribes.
Question 5. What role do you see--both for yourself or the agency--
in reconciling contradictory science on the subject of climate change?
Response. As the Administrator of EPA, I will ensure that the
agency remains fully committed to using an open, transparent, and
scientifically rigorous process in evaluating the science of climate
change. This means that EPA is committed to rigorous peer review of all
its research and scientific finding, and to the active involvement of
the scientific community (e.g., the National Research Council),
interested stakeholders, and policy makers.
The planning and implementation of EPA's climate science activities
is closely coordinated with the interagency U.S. Climate Change Science
Program (CCSP). The CCSP coordinates and integrates scientific research
on global change sponsored by 13 participating departments and agencies
of the U.S. Government. Through the CCSP, the EPA develops and provides
timely, useful and scientifically sound information to decision makers.
The CCSP is organized to reduce uncertainties in five areas:
1. Improve the knowledge of past and present climate conditions.
2. Improve quantification of the forces that bring about climate
change;
3. Reduce uncertainty of projections of how the Earth's climate may
change in the future.
4. Understand the sensitivity and adaptability of ecosystems and
human systems to climate change; and
5. Explore the uses and identify the limits of knowledge to manage
risks and opportunities related to climate change.
To address these uncertainties the CCSP Strategic Plan calls for
the production of over 20 rigorously peer reviewed Synthesis and
Assessment reports during the next 5 years. EPA is a lead or co-lead
agency on four reports and will contribute to most of the others.
Question 6. While it may be primarily an FDA and/or USDA issue, I'd
also like to ask if you see a role, and if so, what, in which EPA can
help ensure that foreign seafood processing facilities preparing food
for export to the U.S. are actually following required HACCP plans, and
ensure that companies which supply the processing facilities, such as
aquaculture companies, are not using products such as fungicides and
pesticides that are permitted in that country, but not permitted for
U.S. aquaculture operations?
Response. All food, including seafood--whether of domestic or
foreign origin--to be sold in the United States--must have a tolerance
(maximum amount of a pesticide allowed to remain in or on foods). The
Federal Food, Drug and Cosmetic Act (FFDCA) requires EPA to establish
or change these tolerances after conducting a risk assessment to ensure
the food will be safe provided the pesticide is applied legally. Once
established, EPA publishes these tolerances in the Federal Register.
FDA uses the tolerances established by EPA when it inspects food,
including seafood, produced in and outside the U.S. FDA samples
imported and domestic foods to ensure that pesticide residues are
within established tolerances or are covered by exemptions. If not,
they are considered adulterated and are subject to enforcement through
FDA. FFDCA can prohibit movement in interstate commerce of adulterated
and misbranded foods.
Also, through a communication system established by the World Trade
Organization (WTO), we ensure that our trading partners are aware of
our rules for accepting their exports to the U.S. We do this by
notifying the WTO of regulatory actions that could affect international
trade, which is primarily tolerance actions. So, if EPA establishes a
new tolerance, changes or revokes an old one, the WTO and all its
members are informed.
Question 7. When you appeared before this committee to discuss the
agency's budget for Fiscal Year 2005, we had a conversation about the
Village Safe Water Program in Alaska. At the conclusion of that
conversation, you agreed that the EPA would work with the State of
Alaska to address whatever concerns that the EPA might have over the
operation of the program in past years. I hope that I impressed upon
you the urgency of resolving those differences because nobody in
America should have to live in a community that lacks basic sanitation
facilities. My question is what progress has the EPA made since you
last appeared before this committee to resolve these differences and
restore funding to this important program?
Response. EPA has instituted a number of management changes and
enhanced procedures and tracking systems that improve oversight and
accountability in the Village Safe Water Program in Alaska.
I am pleased to report:
<bullet> The State priority system for selecting candidate projects
has been revised to directly reflect program goals and objectives;
<bullet> State funding requests are now required to explicitly
include goals, objectives and environmental outcomes;
<bullet> The State Department of Environmental Conservation (DEC)
has made significant improvements to its financial and procurement
systems; and
<bullet> EPA's Regional office in Seattle has assigned a new
project officer to manage the sanitation grant, and the Village Safe
Water Program in Alaska DEC is under new leadership.
Further actions currently underway:
<bullet> EPA and Alaska are working with the Indian Health Service
to develop a detailed project tracking and allocation data system to
document progress toward program goals, objectives and environmental
measures;
<bullet> EPA and the State are developing a Memorandum of
Understanding as well as program guidelines that will stress
achievement of financial management practices, program management
accountability, and program performance goals and measures; and
<bullet> EPA will review the State's FY05 grant application package
($45 million) for compliance with all Federal requirements and program
goals.
EPA will be monitoring the implementation of the Village Safe Water
Program very closely.
Question 8. When we first met during this committee's budget
hearing several weeks ago, I was not certain whether you fully
understood what the goal of the Village Safe Water program in Alaska
is. Now that you have had a few weeks to study the matter, I wonder if
you might explain to the committee what you have learned about the
sanitation conditions in rural Alaska and whether you think that the
Village Safe Water program is worthy of continued federal financial
support?
Response. The Village Safe Water Program serves approximately 232
Alaska Native Villages, approximately 80 rural communities, and about
50,000 households.
In 1998, at the beginning of this program, about 40 percent of
households lacked water/wastewater infrastructure; that number has
improved to 23 percent today. This success is due in large part to the
$325 million which has been appropriated since 1995.
The challenges in bringing infrastructure to the remaining 23
percent include remote locations, scattered populations, poor or frozen
soils, harsh climate, limited cash economies, poor maintenance, and
language/cultural barriers.
I recognize the value of continuing to invest in water and
wastewater infrastructure in Alaska.
Question 9. When you last appeared before the committee, I
suggested that it is important for you to visit Alaska and experience
the sanitation challenges we face in our remote Alaska Native
communities. Do you have any plans to travel to my State in the near
future?
Response. I appreciated the opportunity to discuss with you prior
to my confirmation hearing the unique and serious environmental issues
confronting many communities in Alaska. I appreciated your invitation
to visit several of these communities to understand first-hand these
problems. I look forward to accompanying you on such a visit at your
convenience. In the meantime, I will continue to work with my staff to
identify solutions for these communities that are cost-effective and
appropriate given their unique circumstances.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Thune
Question 1. Applicability of CERCLA/EPCRA Release Reporting
Requirements to Cattle Operations.--A number of cattle producers in
South Dakota have expressed to me their concern about an issue that I
believe shouldn't even be an issue for cattle operations but has become
one in today's climate of citizen suits. The issue is whether or not
CERCLA and EPCRA release reporting requirements apply to open-air beef
cattle operations?
It is my understanding that the EPA has issued a consent agreement
with the pork, poultry and dairy industries on this subject. Those
industries are different from cattle operations in important ways for
purposes of applicability of this law. Those industries house their
animals in barns and use anaerobic lagoons to treat waste.
Cattle operations I am concerned about, on the other hand, feed
cattle in open-air feedlots and use shallow, aerobic precipitation
retention ponds to catch runoff.
Under section 104 of the Act, Congress specifically excluded from
clean up action ``naturally occurring substances in unaltered form, or
altered solely through naturally occurring processes or phenomena.'' An
example of a naturally occurring substance cited in the Senate
Committee Report is ``animal wastes (e.g. beaver excrement)'' which
produce ammonia and hydrogen sulfide. I believe emissions from manure,
flatulence and belching in cattle operations fit under this exclusion.
In addition, EPA has exempted from release reporting requirements
operations that produce radionuclides. The criteria EPA used for the
exemption include: (1) continuous low level emissions over large areas;
(2) rapid dispersion of the emission in the environment; (3) acceptable
exposure risk (Congress specifically recognized the low risk of low
level continuous ammonia releases); and, (4) infeasibility and
inappropriateness of a response. Ammonia and trace hydrogen sulfide
emissions from cattle operations fit squarely within these criteria for
an exemption.
``Ammonia when used to produce or manufacture fertilizer or when
used as a nutrient in animal feed'' is specifically exempted from the
CERCLA tax, due to the ``unnecessary burden'' it would place on
agriculture. It would be absurd to construe coverage of CERCLA/EPCRA
release reporting to exempt the application of chemical fertilizers,
but to treat flatulence, urination and defecation as ``releases'' of
``hazardous substances'' from ``facilities''.
I understand that EPA staff is in agreement concerning feedlots not
being subject to the CERCLA/EPCRA reporting requirements.
While the EPA has been aware of this issue since December 2003, no
informal ruling has been given. As the President's nominee to head-up
the EPA, I would appreciate an official answer to this outstanding
matter.
Response. EPA is working diligently on this issue. EPA has met with
the cattle industry and their representatives on numerous occasions
have suggested various ways of proceeding to address the reporting
issue, and remain open to discussing this issue. I will keep you
informed of our progress.
Question 2. Given the current status of the Superfund program, do
you believe that the EPA should look at alternative financial
mechanisms that would encourage Potentially Responsible Parties (PRPs)
to reach settlement and begin cleanups sooner? In particular, I'm
interested in the potential expanded use of work substitute contractors
Response. EPA will continue to be receptive to innovative financing
approaches in settlements at Superfund sites. EPA has agreed to
settlements involving ``work-substitution contractors,'' combined with
fully-funded insurance programs as financial assurance.
To date, innovative financing and work substitution approaches have
been used at a variety of sites, with a variety of PRPs. The PRPs'
commitment to achieving a settlement with one or both of these features
is critical, particularly because the PRPs may incur additional, up-
front transactional or financial costs to implement these approaches.
When innovative financing or alternative work substitution approaches
are proposed by PRPs at a particular site, EPA has been and will
continue to be open to considering them.
Question 3. Would you consider a pilot program in each EPA region
to identify sites that might be positively impacted by such a new
approach? While not a panacea for all Superfund cleanups, I believe the
EPA could allow for greater use of this innovative practice--especially
in light of the success at the Iron Mountain site in California
Response. EPA will continue to be open and encourage innovative
practices such as alternative work substitution approaches when they
are proposed by PRPs at a particular site
Question 4. It is my understanding that the States (including South
Dakota) recently submitted to EPA a third list of fungicides for
proposed use in combating soybean rust. This list is now before EPA for
Section 18 emergency exemption review. Several of the active
ingredients on this third list are already approved for use by farmers
in South America. As the growing season approaches and U.S. farmers are
faced with the imminent threat of soybean rust, what assurances can you
provide that EPA will devote the necessary resources to reviewing these
products in a timely manner so that our farmers may have access to the
same tools available to their Brazilian counterparts?
Response. EPA received a third request under the emergency
exemption provision of FIFRA for new and additional soybean fungicides
from the South Dakota and Minnesota Departments of Agriculture. EPA
intends to process this new request as quickly as possible.
EPA shares your concern for soybean rust and has made an extensive
investment in the review of fungicides that are effective in
controlling the highly destructive plant pathogen that causes soybean
rust. Eight pesticide products are already fully registered to control
soybean rust. In addition, EPA has approved 133 emergency exemptions
for other pesticides to control soybean rust. These include five
exemptions for South Dakota. These emergency exemptions supplement the
available registrations and provide growers with products which have
proven to be effective at controlling the soybean rust pathogen in
countries where the disease is already established. Overall, there are
18 products, containing one or more pesticide ingredients, available at
this time. To help farmers know what pesticides are available, EPA
maintains a website with up-to-date information on the status of
available pesticides.
______
Response of Stephen L. Johnson to Additional Question from
Senator Vitter
Question 1. Mr. Johnson, the restoration of Coastal Louisiana is a
top priority for me, for the other members of Louisiana's congressional
delegation, and for the State of Louisiana. In your testimony you
mention the importance of collaboration to address environmental
problems such as the Great Lakes.
In Louisiana, we have an environmental crisis: our coast is eroding
and wetlands (much of it critical habitat) are disappearing at an
alarming rate. This also negatively impacts everyone in the nation who
relies on resources supplied by Louisiana. Once confirmed, how would
you respond to this problem? How would you incorporate coordination and
build partnerships collaborate with other federal agencies, the state,
and local communities? How will you exercise your leadership and devote
federal resources to restore coastal Louisiana and its wetlands?
Response. EPA fully recognizes the threat that past and ongoing
wetland and barrier island loss poses to the safety, economy, and
culture of coastal Louisiana, as well as the Nation's economy.
Since passage of the Coastal Wetlands Planning, Protection, and
Restoration Act (CWPPRA) in 1990, EPA has been working closely with our
Federal and State partners to develop and implement the most effective
restoration projects. To date, we have implemented a number of barrier
island restoration projects, thereby helping to maintain the ecological
and storm protection functions provided by these important resources.
We continue to seek innovative strategies that could complement
barrier island and river diversion efforts. For example, we are
currently promoting the use of long-distance sediment transport to
rebuild lost wetlands in the near-term and in strategic locations.
CWPPRA has proven to be an effective and essential part of the
overall effort to save coastal Louisiana. However, CWPPRA alone will
not address the problem. We believe that we must maintain and build
upon CWPPRA with complementary programs, which focus on a larger scale.
For this reason, we participated actively with the State, Corps of
Engineers, and other important stakeholders in the development of the
Louisiana Coastal Area (LCA) Ecosystem Restoration Plan.
The LCA Plan is an excellent next step in the effort to save
coastal Louisiana. However, additional large-scale measures will be
needed to fully address past and ongoing wetland and barrier island
losses in coastal Louisiana.
As Administrator, I would continue EPA's involvement in both CWPPRA
and the LCA Plan. The multi agency effort and grass-roots public
participation afforded by CWPPRA are crucial to our success in
continued restoration of Louisiana's coast. The challenges posed by
Louisiana's coastal loss are too great to be solved by any one agency
or by government alone.
______
Response of Stephen L. Johnson to Additional Questions from
Senator Jeffords
Question 1. Sometime ago, Administrator Leavitt informed the
Committee that the proposed implementation rule for the fine
particulate matter standard would be issued by the end of 2004. Can you
provide a date certain by which that rule will be proposed and become
final?
Response. On December 17, 2004, EPA took final action to designate
attainment and nonattainment areas under the more protective national
air quality standards for fine particles (PM<INF>2.5</INF>). The
implementation rule for PM<INF>2.5</INF> will provide guidance to the
States on a number of issues related to the attainment process,
including precursor pollutants to be addressed by states, reasonable
further progress options, and options for area classifications.
The inter-agency review will be completed shortly, after which time
I will sign the proposed rule and it will be published in the Federal
Register. In the interim, we have issued informal guidance to the
states to assist them as they begin to develop their implementation
plans.
Question 2. One of the most successful multi-lateral environmental
treaties ever negotiated is the Montreal Protocol. I am concerned that
the U.S. appears to be slower than most other countries in phasing out
methyl bromide as a soil and building fumigant and that this may
threaten U.S. participation and compliance with this treaty. Are you
committed to ensuring that the U.S. remains in compliance with this
treaty, and what can be done to more rapidly replace methyl bromide
with substitute compounds and technologies?
Response. I am committed to the Montreal Protocol, including our
responsibility to end use of methyl bromide and support the shift to
alternatives that are safe for the ozone layer. On January 1, 2005, EPA
phased out production of MeBr, except for limited exemptions. Since
that time, EPA has worked with the State Department and the Department
of Agriculture to implement a ``critical use exemption'', as authorized
by the Parties to the Montreal Protocol.
I also am committed to rapidly registering good alternatives to
Methyl Bromide. Reductions in U.S. exemption requests have been
possible partly because alternatives already registered can displace
certain existing uses of Methyl Bromide.
Question 3. The President's budget proposes draconian cuts in the
EPA ozone protection program, cuts that will force the agency to
curtail its skin cancer awareness effort, known as the SunWise program,
and slow its ability to review information on critical use exemptions
on methyl bromide, as well as approving methyl bromide substitutes.
Will you support restoring funding for this program?
Response. I believe it is important to protect children's health
from preventable disease and I will review funding for this program.
SunWise has been a highly successful skin cancer awareness program, and
is now used in over 10,500 schools in every U.S. state to help kids
understand simple behavior changes that can reduce their risk of
developing skin cancer later in life.
Question 4. The Superfund program is withering on the vine. Each
year, EPA puts out a list of Superfund sites that lack money for
cleanup. The Elizabeth Mine in Vermont has been on this list year after
year. The Wall Street Journal reports that the Superfund funding
shortfall may reach $750 million in 2006. Yet the Administration
opposes reinstating the Superfund fees and has not proposed to fully
fund the program. What steps would you take as Administrator to ensure
that all toxic waste dumps listed on the National Priorities List are
cleaned up without further delay?
Response. I strongly support and enforce the ``polluter pays
principle'' under the Superfund law. The success of the polluter pays
principle is illustrated by the fact that roughly 70 percent of
Superfund sites are cleaned up by the parties responsible for hazardous
waste, an average of $838 million per year to clean sites as mandated
by EPA. A broader perspective shows that, over the history of the
program, EPA has required responsible parties to spend more than $21
billion on cleaning up contaminated properties.
EPA has always relied upon Congress to appropriate funds for the
Agency to pay for cleanups at Superfund sites. Superfund program
appropriations have remained relatively steady over the past 5 fiscal
years at $1.3 billion to $1.5 billion. The FY 2006 President's Budget
Request continues to maintain steady funding for the program.
The Agency is making significant progress in cleaning up Superfund
sites. Unlike in previous years where smaller, less costly sites were
targeted for cleanups, we are now addressing large and complex sites
that present unique clean-up challenges. Cleaning up these sites
requires a disproportionate share of Superfund money. I can assure you
however, that new projects that are not funded have been secured, often
have had prior cleanup work and pose no immediate threat. EPA will not
put communities at risk and will continue to protect human health and
the environment.
Question 5a. The voluntary High Production Volume challenge program
appears to be making important strides, but I am concerned that it may
not be receiving the resources it needs. I'm told that EPA is well
behind in commenting on the industry submitted test plans and in
reviewing the final submissions. And just recently, the American
Chemistry Counsel has proposed expanding the HPV program to include an
additional 500 chemicals. Yet the President has proposed cutting the
HPV challenge program budget by $850,000. As Administrator, what steps
will you take to ensure that the HPV program obtains the financial
resources it needs?
Response. I am extremely pleased with the success of this
voluntary, collaborative program. More than 400 companies committed to
make publicly available basic health and safety information on 2200
high-production volume chemicals. I am also pleased that the American
Chemical Council, the Soap and Detergent Association, and the Synthetic
Organic Chemical Manufacturers Association are building on this success
by their Extended HPV program which will increase by 500 the number of
HPV chemicals being addressed through voluntary efforts.
The Agency is currently experiencing a delay in reviewing and
posting our comments on test plans submitted by industry. Several
factors have contributed to this delay, including the large number of
test plans that come into the Agency at the end of the last calendar
year instead of over the course of the year. To further speed the
reviews, EPA is continuing to work on efficiencies that can be achieved
as our data systems are enhanced and conduct more international
cooperation. We will post comments on all test plans as they are
available.
I believe our current budget request provides the HPV program with
the resources it needs to fulfill its primary mission of making
critical chemical information available to the public, while supporting
the screening and prioritization work on HPV chemicals that EPA will be
commencing with available resources in FY 2006. I commit to you that
the Agency will carefully consider the future resource needs of the HPV
program.
Question 5b. The HPV program only requires screening level data and
does not apply to thousands of chemicals produced below 1 million
pounds per year. As Administrator, what are the next steps you will
take to ensure that all chemicals used in commercial products--
regardless of production volume--are safe?
Response. I take very seriously the Agency's responsibility to
ensure that the chemicals used in commercial products do not present
unreasonable risks. The Agency has concentrated its current screening
efforts on the highest volume subset of the chemicals contained on the
TSCA Inventory. The chemicals included in the initial HPV Challenge
Program represent about 90 percent of total U.S. chemical production.
The Agency has other regulatory and voluntary efforts directed at
chemicals in commerce. Specifically, the Voluntary Children's Chemical
Evaluation Program involves data collection and risk assessment to
identify and obtain testing needed for a detailed evaluation of 20
pilot chemicals that may pose a risk to children. Assessments have also
been conducted in support of numerous regulatory activities directed at
lower volume chemicals presenting significant risk potential, including
the development of Significant New Use Rules on individual chemicals
and several classes of chemicals, including PFOS derivatives, benzidine
dyes, and others. In recognition of the ongoing EPA work on HPV
chemicals, the TSCA section 4(e) Interagency Testing Committee has
started focusing more of its attention on identifying testing
priorities for lower volume chemicals.
Even as we use our TSCA tools to ensure that chemicals already in
the marketplace do not present unreasonable risks and to take action if
there are concerns, we also continue to act as a ``gatekeeper'' to
ensure that all new chemicals are reviewed by the Agency prior to use
and appropriate actions taken. EPA typically reviews more than 1,500
new chemicals per year (most of which are lower volume chemicals), of
which only 50 percent go on to commercial production.
In the fall of 2003, EPA established the National Pollution
Prevention and Toxics Advisory Committee (NPPTAC) to provide policy
advice and recommendations on future directions of EPA's risk
management and pollution prevention programs. EPA look forward to
working with the NPPTAC to obtain advice regarding additional steps EPA
should consider an assessing and managing chemical risks and in
implementing our pollution prevention programs.
Question 5c. What is the status of EPA's December 2000 proposed
test rule requiring manufacturers of the first set of ``orphan''
chemicals to develop hazard data, and when does the Agency plan to
issue additional rules for the remaining ``orphan'' chemicals?
Response. EPA plans to promulgate the initial HPV test rule this
fall and to propose the next HPV test rule in the spring of 2006.
Question 6. While the Administration has halted plans to change
Clean Water Act rules, I am greatly concerned that the guidance
document jointly issued by EPA and the Army Corps of Engineers in
January, 2003 is still in effect. This guidance removes Clean Water Act
protections for what your agency has estimated to be about 20 million
acres of wetlands. Given the decision not to proceed with rule changes
and last year's GAO study which revealed that, at least for Corps of
Engineers Districts, this guidance is resulting in widely varying
interpretations of Clean Water Act jurisdiction, has your agency
reconsidered the need for withdrawal of this guidance and if not, why?
What are your plans to ensure that the Clean Water Act is consistently
applied throughout the nation?
Response. The January 2003 legal guidance states that field staff
may no longer assert jurisdiction over isolated, intrastate, non-
navigable waters based solely on the migratory bird rule, and that
agency headquarters approval should be obtained prior to asserting
jurisdiction over such waters based solely on other types of commerce
links. The legal memorandum emphasizes that field staff should continue
asserting jurisdiction over navigable waters, their tributary systems,
and adjacent wetlands. The memorandum also emphasizes that
jurisdictional calls must reflect existing regulations and relevant
case law.
EPA and the Corps are committed to increasing consistency,
transparency, predictability, and sound science for the CWA section 404
program. The agencies are taking a number of steps in response to the
Supreme Court's decision in Solid Waste Agency of Northern Cook County
(SWANCC). As we implement these actions and monitor their
effectiveness, we are continuing to assess the adequacy of existing
field practices, guidance, and training programs and will take
appropriate steps to ensure Clean Water Act jurisdiction is correctly
determined. EPA and the Corps are working together, based on the two
years of experience will make decisions based upon that experience,
current information and emerging case law.
Question 7. The only thing that the Supreme Court struck down in
the SWANCC decision was the policy of using the presence of migratory
birds as the sole basis for jurisdiction under the Clean Water Act.
This is the Department of Justice's interpretation of the SWANCC
decision. Why didn't EPA and the Corps simply issue a directive to
field staff, stating that the migratory bird policy is no longer to be
used alone to establish jurisdiction, but stress that all other current
Clean Water Act rules should continue to be implemented to the full
extent of the law? Would you consider that course of action as
Administrator?
Response. On January 15, 2003, EPA and the Corps issued joint legal
guidance that clarified the scope of ``waters of the United States'' in
light of the U.S. Supreme Court's decision in SWANCC and subsequent
judicial decisions (68 FR 1991, 1995 (January 15, 2003)). The legal
guidance directs field staff to no longer assert jurisdiction over
isolated, intrastate, non-navigable waters based solely on the
migratory bird rule. Moreover, the legal guidance confirms the
Agencies' commitment to assert jurisdiction to the maximum extent of
the law. Consistent with this legal guidance, field staffs at both EPA
and the Corps continue to implement and enforce programs affecting all
``waters of the United States'' protected under the CWA after SWANCC.
As Administrator, I will work with the Corps and, based on the two
years of experience with the January 2003, guidance, assess the
continued effectiveness of the guidance and make decisions based upon
experience, current information and emerging case law.
Question 8. The EPA/Corps guidance includes a ``phone home'' policy
whereby regulators that believe it appropriate to assert jurisdiction
over any water that might be considered ``isolated'' must first gain
permission from headquarters. How many times has your agency been asked
to consult on such a decision? Is it feasible that this hurdle may be
encouraging regulators to ``when in doubt, throw in the towel'' on
jurisdiction? If not, how do you explain the extremely limited number
of consultations that have been requested?
Response. The January 2003, guidance calls for field staff to
obtain formal EPA and Corps headquarters approval prior to asserting
jurisdiction based solely on links to interstate commerce. We have
received six requests for formal headquarters approval, plus an
additional handful that involved navigable-in-fact isolated waters that
do not require headquarters approval. Of those six, headquarters is
seeking additional information on two, found two to be jurisdictional,
and two to not be jurisdictional.
We are continuing to assess the adequacy of field practices,
guidance and training programs and will take appropriate steps to
ensure Clean Water Act jurisdiction is correctly determined. EPA and
the Corps are working together, based on two years of experience with
the guidance, to assess its effectiveness and will make decisions based
on that experience, current information and emerging case law.
Question 9. EPA has requested that the Corps of Engineers provide
reports of their jurisdictional determinations to EPA. What has been
the response to this request? Has the EPA received sufficient
information to determine if the Corps Districts are making the right
decisions with regard to jurisdiction? If not, what do you propose to
do to ensure that the Clean Water Act is being appropriately
implemented in all regions of the country?
Response. The Corps and EPA have been working together to assess
the resource implications of SWANCC, and the agencies are committed to
increasing the consistency, transparency, and sound science for the
Clean Water Act (CWA) section 404 program. As part of this broader
effort, the Corps Districts have posted information on their websites
regarding findings of no-jurisdiction, and Corps headquarters has
shared with us draft summaries forwarded by the Districts and
Divisions. Analysis of that information is on-going. EPA and the Corps
are continuing to assess the adequacy of existing field practices,
guidance, and training programs, and will take appropriate steps to
ensure CWA jurisdiction is correctly determined. EPA and the Corps are
working together, based on the two years of experience with the
guidance, to assess its effectiveness, and will make decisions based on
that experience, current information and emerging case law.
Question 10. Are you aware of additional case law that has
developed since the SWANCC guidance was put in place? Would you agree
that cases, such as the Fourth Circuit's rulings in U.S. v. Deaton and
U.S. v. Newdunn and the 6th Circuit's U.S. v. Rappanos have changed the
legal landscape as summarized in the EPA/Corps SWANCC guidance?
Wouldn't you agree that the legal summary in the guidance is now out of
date and misleading to those who do not have access to legal council on
a daily basis? What are your plans to remedy this?
Response. EPA and the Corps are taking a number of steps in
response to the Supreme Court's decision in Solid Waste Agency of
Northern Cook County (SWANCC). As we implement these actions and
monitor their effectiveness, we are continuing to assess the adequacy
of existing field practices, guidance, and training programs, and will
take appropriate steps to ensure Clean Water Act jurisdiction is
correctly determined. Together the Agencies, based on two years of
experience with the January 2003, guidance, will assess its
effectiveness and make decisions based on that experience, current
information and the emerging case law affirming the government's
position in the cases noted in your question.
Question 11. This Administration has renewed the commitment to ``no
net loss'' of the Nation's wetlands. How can this possibly be achieved
if the guidance has removed protection for more than 20 million acres
of wetlands and we were still losing at least 58,000 acres of wetlands
prior to the SWANCC decision--despite the best efforts of our Farm bill
programs, the fine work of groups like Ducks Unlimited, the North
American Waterfowl Management plan, and others?
Response. The EPA continues to support and implement the
Administration's commitment to the goal of ``no net loss'' of wetlands
under the section 404 regulatory program as well as the President's
aggressive new national goal to achieve an overall increase of
America's wetlands each year. To achieve these goals, EPA will continue
to implement and enforce programs affecting all ``waters of the United
States'' after SWANCC, to the maximum extent of the law. The
Administration will also continue to work with our valuable partners to
achieve these goals through important programs such as those included
in the Farm bill, which provide a critical link to wetland conservation
on millions of acres of farm land. As part of the effort to accurately
track our progress toward this goal, the Administration is committing
to produce a 2005 version of the National Wetland Inventory, that will
help provide the agencies with important baseline data.
Question 12. You served as head of the Director of the Office of
Pesticide Programs, which is charged by federal laws with ensuring that
pesticides are used in a manner that does not pose a risk to human
health. In particular, the laws require EPA to account for the special
susceptibility of infants and children to the toxic effects of the many
pesticides they are exposed to. Unfortunately, there have been claims
that EPA's decisions in the area of pesticide regulation too often
erred on the side of the interests of the pesticide manufacturing and
application industries, instead of the health and safety of our
nation's children. For example, in 2001, EPA reversed a decision to
require manufacturers of rat poison to include bittering agents that
would help prevent childhood poisonings, based only on the
recommendations of pesticide applicators. Similarly, EPA faced charges
that it had failed to apply a special statutory tenfold safety factor
to protect infants and children from pesticides in their food. In
making these decisions, EPA relies almost exclusively on data provided
by the pesticide manufacturers whose only motive is to sell more of
their products. Can you give any assurance that as Administrator you
will give more weight to the laws' presumptions in favor of protecting
human health, particularly children's health?
Response. I am committed to ensuring that the laws administered by
EPA are implemented and enforced in a manner that protects human
health, particularly children. EPA's decisions during my years with the
Office of Pesticide Programs have brought significant new safeguards
for pesticide use and we are already seeing the results. Pesticide
poisonings of children by chlorpyrifos have fallen dramatically, and
residues in children's food from a number of pesticides have declined.
I understand that there has been controversy about some of the
decisions taken by EPA's pesticide program. In addition to those who
think we have not ensured sufficient protections, I have heard from
many who claim the Agency has gone too far. While I believe the Agency
has acted reasonably with regard to the issues you highlight, I would
like to provide you with an explanation of our positions.
Regarding the regulation of rodenticides, in 1999, EPA formed the
Rodenticide Stakeholders Workgroup as a subcommittee under the
federally-chartered advisory body, the Pesticide Program Dialogue
Committee (PPDC), to consider, among other things, the risks to
children of accidental exposure to rodenticides and potential measures
to reduce such exposures. This workgroup included representatives from
the EPA, CDC, USDA, State officials, the medical community, public
interest groups, the pesticide industry, and members of the general
public. The workgroup fully considered the possibility of requiring
bittering agents in rodenticide products as it reviewed information
presented by a broad range of interested and affected parties. The
workgroup ultimately recommended against the requirement of bittering
agents due to the potential for adverse effects on the efficacy of
rodenticide products. This recommendation reflected their recognition
of the significant public health risks posed by rodents, and the widely
held concerns that requiring all products to contain bittering agents
could hinder efforts to control rodent populations in certain
circumstances. EPA adopted the workgroup's recommendations, and in
November 2001 issued a Federal Register notice announcing its decision
to rescind the bittering agent requirement. While EPA does not
currently require bittering agents in all rodenticide products, the
Agency encourages rodenticide manufacturers to incorporate them
voluntarily in certain products. In fact, many of the rodenticide
products on the market today do contain bittering agents. Finally, we
are still in the process of completing our reevaluation of the
rodenticides, and we will continue to monitor all available information
on childhood poisonings. As we bring our review to closure, we will
make sure that appropriate risk mitigation measures are put into place
to ensure the safety of children.
Regarding protecting children under the Food Quality Protection
Act, when establishing or reviewing tolerances under the Federal Food
Drug, and Cosmetic Act, the EPA is required to apply an additional
tenfold safety factor to protect infants and children, unless the
Agency can find on the basis of reliable data that another safety
factor will adequately protect infants and children. In order to ensure
that the Agency implemented this critical provision, EPA used a very
public process to develop guidance explaining how such decisions should
be made. In addition to seeking public comment, the Agency sought
advice from its independent expert scientific peer review body, the
FIFRA Scientific Advisory Panel, on several occasions. Generally, the
guidance calls for EPA to review the extensive database available on
each pesticide and to retain the additional tenfold safety factor
unless we have a sound scientific database to support a change.
Following this guidance, EPA has made several hundred chemical-
specific determinations under this provision. Each of these decisions
is fully documented in reviews that are available to the public as part
of the Agency's public participation process. For just over half of the
pesticides, EPA concluded that the additional tenfold factor is not
necessary and therefore may be removed. For the balance of the
pesticides, EPA has retained some additional safety factor, in some
case the statutory tenfold factor, and in other cases factors ranging
from 3 to 30. We believe that examination of the individual chemical
decisions about safety factors will demonstrate that EPA's conclusions
are based on scientific assessments.
Question 13. On October 5, 2004, Senator Sarbanes and I wrote to
Administrator Leavitt asking why the Agency testified during the last
Congress that provisions of the Jeffords-Sarbanes/Norton-Waxman Lead
Free Drinking Water Act of 2004 were ``premature'' when the Agency is
requiring that the Washington Aqueduct and Sewer Authority perform
these same actions when dealing with the lead crisis in Washington, DC.
A copy of the letter follows and I request that you respond.
______
October 5, 2004.
Administrator Leavitt,
Environmental Protection Agency,
Washington, DC.
Dear Administrator Leavitt: We are writing to you regarding the
Environmental Protection Agency's implementation, oversight, and
enforcement of the Lead and Copper Rule and your ongoing review of the
drinking water regulations pertaining to lead. Earlier this year it was
first reported that lead levels in the DC public water system were
significantly higher than federal guidelines, and had been so for more
than two years. Today, the Washington Post reported that data showed
cities throughout the nation have avoided the requirements of the Lead
and Copper Rule by manipulating the sampling and testing process.
Clearly, it is time for the federal government to take the recent
threats to our public water systems seriously and impose tougher
standards and requirements to ensure the public health.
Lead is a serious health threat to children and pregnant women. It
is particularly dangerous for children. Children exposed to lead can
experience low birth weight, growth retardation, mental retardation,
learning disabilities, and other effects. It is also particularly
handful during pregnancy.
On April 7, we introduced the Lead-Free Drinking Water Act of 2004,
S. 2733, which seeks to strengthen the federal standards for lead in
drinking water to protect public health. Our colleagues in the House,
Delegate Eleanor Holmes-Norton (D-DC) and Congressman Waxman (D-CA)
introduced the House companion bill, H.R. 4268. This legislation used
the Washington, D.C. lead experience as a blueprint for improvements
that should be made to the nationwide regulations. This bill would
provide funding and requirements for replacing lead pipes, it would
close loopholes in the existing regulations, it would require stronger
rules for public notice, it would require the removal of lead from our
schools, and it would revise the definition of ``lead-free.''
On May 21,2004, the Agency testified before the House Government
Reform Committee that the ``Lead-Free Drinking Water Act of 2004'' is
``premature at this time.'' However, there are several weaknesses
highlighted by the data analysis presented by the Washington Post
today, and incorporated by EPA in the compliance order for the
Washington Aqueduct and Sanitation Authority (WASA) which suggest many
provisions of the legislation are sorely needed.
For example, the Washington Post article identifies manipulation of
test results by utilities during the test site selection process, with
inappropriate elimination of sites, with sample invalidation, and with
changes in the numbers of homes tested. The Lead-Free Drinking Water
Act of 2004 requires that the EPA substantially revise the monitoring
requirements of the Lead and Copper Rule to require more frequent
monitoring, to ensure that the monitoring is statistically-relevant and
fully representative of all types of residential dwellings and
commercial establishments, and to enhance frequency and scope of
monitoring when water chemistry is changed. In addition, to improve
enforcement and eliminate fraud with the reporting of test results, the
Act requires that all lead test results be submitted electronically
directly to the Administrator or State or local agency. Please explain
why the Agency opposes improvements to the sampling methodology for
lead in drinking water proposed by the Lead-Free Drinking Water Act of
2004.
The Washington Post article also states that in the spring of 2004,
EPA regulators identified a series of loopholes in the regulations that
weaken protections against lead in drinking water. They included:
nothing requires utilities to notify individual homeowners that their
water has high lead, and the regulation does not allow the same stiff
sanctions for high lead that it does for other contaminants such as
bacteria. The Lead-Free Drinking Water Act of 2004 would require this
type of notification for homeowners and would require the Agency to re-
evaluate the regulatory structure for lead in drinking water and
establish a maximum contaminant load or a treatment technique that is
more protective of human health than current standards. Please explain
why the Agency testified that the Lead-Free Drinking Water Act of 2004
was ``premature'' when Agency regulators had identified the exact
weaknesses in the current EPA regulations that the bill will eliminate.
In addition, in June 2004, the Agency issued a compliance order
with WASA, which actually requires many things that are not required by
current regulations, but are required by the legislation. We are
pleased that the Agency believes these ideas will improve the public
health of Washington, D.C., but we are puzzled why the Agency does not
believe the entire nation should receive the health benefits from these
improvements which will reduce the public's exposure to lead in
drinking water.
For example, the EPA compliance order requires WASA to take several
corrective actions including:
<bullet> requires plans for updating its lead service line
inventory and reporting to EPA
<bullet> requires WASA to strongly encourage full replacement of
lead service lines with owners paying for their portion, including
submission of a plan to EPA for encouraging homeowners to agree to full
replacement
<bullet> prohibits the use of the ``test out'' procedure to count
lead service lines as replaced even if they are not
<bullet> requires WASA to develop and submit a public education
plan including public health issues, steps to reduce health risks, and
take steps to address EPA recommendations on effectiveness of prior
public education
<bullet> requires WASA to document to EPA that they have provided
water filters to all customers suspected or known to have lead
contamination at no charge as well as those with ``unknown'' service
line materials
<bullet> requires WASA to submit detailed sampling plans to EPA.
Each of these items is required by the Jeffords-Sarbanes/Norton-
Waxman Lead-Free. Drinking Water Act of 2004. Please explain why the
Agency testified that these actions are ``premature'' when the Agency
is requiring that WASA perform these same actions.
We understand that the EPA is conducting an extensive review of the
Lead and Copper Rule to determine if any changes to the current
regulations are warranted. We urge you to revise the Lead and Copper
rule to incorporate the provisions of the Lead-Free Drinking Water Act
of 2004.
Some of the parents whose children were affected by the Washington,
D.C. lead incident wrote to me saying, ``It is our hope that other
mothers in this country will not have to experience the frustration,
anger, and fear that we have during the many months that this crisis
has dragged without resolution.'' Despite our best efforts, today and
tomorrow, mothers around the country will embark on this same
experience as they learn more about the lead content of their city's
drinking water. Safe drinking water is not a privilege; it is a right.
We urge you to re-evaluate your testimony on the Lead-Free Drinking
Water Act of 2004 and endorse this legislation so that we can move
forward quickly. We urge you to quickly revise the Lead and Copper rule
to incorporate the regulatory elements of this legislation. These
actions will help restore public confidence is a system that is broken
and ensure that lead in our water is a thing of our past.
Sincerely,
Paul Sarbanes.
______
Response. According to EPA files, responses to this letter were
mailed on November 12, 2004. I am providing a copy of EPA's response
for the record.
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Question 14. On December 20, 2004 I joined several of my colleagues
in urging the EPA to reconsider the Agency's proposed guidance
regarding ``blending.'' I have not received a response. Do you plan to
reconsider the guidance and take action to protect public health? If
so, when? If not, why? A copy of this letter follows and I would
appreciate a response.
______
December 20, 2004.
Administrator Michael Leavitt,
Environmental Protection Agency,
Washington, DC.
Dear Administrator Leavitt, We are writing to you regarding the
Environmental Protection Agency's (EPA's) proposed guidance entitled
``National Pollutant Discharge Elimination System (NPDES) Permit
Requirements for Municipal Wastewater Treatment Discharges During Wet
Weather Conditions,'' which was published in the Federal Register on
November 7, 2003 (68 FR 63042)(EPA Water Docket, ID #OW-2003-0025).
This policy would permit a process called ``blending'' which mixes
partially treated sewage with fully treated sewage and discharges it
directly into receiving waters. We recognize that in extremely limited
circumstances, when no feasible alternatives exist, blending may
provide an important, temporary solution to water quality problems
associated with peak wet weather flows. However, we are concerned that
EPA's proposed policy puts public health at risk because it would allow
more frequent use of blending and undo many of the public health and
environmental gains achieved under the Clean Water Act.
The main concern with the increased use of blending is its effect
on the presence of bacteria, viruses, and pathogens in wastewater
discharges. Some familiar examples commonly found in wastewater are
cryptosporidium, E. Coli, and giardia, all of which cause intestinal
illnesses of varying severity. A huge cryptosporidium outbreak in
Milwaukee, Wisconsin, in 1993 caused more than 400,000 people to become
ill and more than 100 people died. Secondary treatment and disinfection
are the two processes most critical to reducing the presence of these
contaminants.
The proposed blending guidance would allow water that receives only
primary treatment to bypass the secondary treatment process and be
discharged into receiving waters. Disinfection is not required by the
proposed guidance as a condition of the use of blending, and it is not
consistently required in areas where human contact with water is
expected. Because EPA's proposed guidance increases the allowable uses
of blending, it increases the likelihood that bacteria, viruses, and
pathogens present in wastewater flows entering treatment plants will be
discharged and will come into contact with people through swimming or
drinking water.
In addition, the Agency's blending guidance undermines the 1994 EPA
Combined Sewer Overflow (CSO) policy which requires, as part of a long-
term control plan, the evaluation of alternatives to eliminate CSOs. By
expanding the potential use of blending, it is likely that more
communities will select blending instead of other alternatives with
greater water quality benefits. The result will be a missed opportunity
to clean up the nation's CSO discharges.
The public health ramifications of moving forward with the proposed
blending guidance should not be ignored. We urge you to end
consideration of this guidance.
Sincerely,
U.S. Senators Jim Jeffords, I-VT; Patrick Leahy, D-
VT; John Kerry, D-MA; Edward Kennedy, D-MA;
Chris Dodd, D-CT; Joe Lieberman, D-CT;
Frank Lautenberg, D-NJ; Jon Corzine, D-NJ;
Richard Durbin, D-IL; Jack Reed, D-RI;
Harry Reid, D-NV; Hillary Clinton, D-NY;
Charles Schumer, D-NY; Daniel Akaka, D-HI;
Paul Sarbanes, D-MD; and Barbara Boxer, D-
CA.
Response. According to EPA files, responses to this letter were
mailed on December 30, 2004. I am providing a copy of EPA's response
for the record.
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Question 15. On October 14, 2004, I joined Senator Boxer in a
letter to the Agency regarding the administration of the Safe Drinking
Water Act as it pertains to hydraulic fracturing. I have not received a
response. Please respond to the questions included in this letter as
described below.
______
October 14, 2004.
Administrator Michael O. Leavitt,
Environmental Protection Agency,
Washington, DC.
Dear Administrator Leavitt: We are writing to you regarding the
Environmental Protection Agency's (EPA's) administration of the Safe
Drinking Water Act (SDWA) as it pertains to hydraulic fracturing. In
recent months, the Agency has taken several key actions on this issue:
On December 12, 2003, the EPA signed a Memorandum of Understanding
with three of the largest service companies representing 95 percent of
all hydraulic fracturing performed in the U.S. These three companies,
Halliburton Energy Services, Inc., Schlumberger Technology Corporation,
and BJ Services Company, voluntarily agreed not to use diesel fuel in
their hydraulic fracturing fluids while injecting into underground
sources of water for coalbed methane production.
In June of 2004, EPA completed its study on hydraulic fracturing
impacts and released its findings in a report entitled, ``Evaluation of
Impacts to Underground Sources of Drinking Water by Hydraulic
Fracturing of Coalbed Methane Reservoirs.'' The report concluded that
hydraulic fracturing poses little chance of contaminating underground
sources of drinking water and that no further study was needed.
On July 15, 2004, the EPA published in the Federal Register its
final response to the court remand (Legal Environmental Assistance
Foundation (LEAF), Inc., v. United States Environmental Protection
Agency, 276F. 3d 1253). The Agency determined that the Alabama
underground injection control (UIC) program for hydraulic fracturing,
approved by EPA under section 1425 of the SDWA, complies with Class II
well requirements.
We are concerned that the Agency's execution of the SDWA, as it
applies to hydraulic fracturing, may not be providing adequate public
health protection, consistent with the goals of the statute.
First, we have questions regarding the information presented in the
June 2004 EPA Study and the conclusion to forego national regulations
on hydraulic fracturing in favor of an MOU limited to diesel fuel. In
the June 2004 EPA Study, EPA identifies the characteristics of the
chemicals found in hydraulic fracturing fluids, according to their
Material Safety Data Sheets (MSDSs), identifies harmful effects ranging
from eye, skin, and respiratory irritation to carcinogenic effects. EPA
determines that the presence of these chemicals does not warrant EPA
regulation for several reasons. First, EPA states that none of these
chemicals, other than BTEX compounds, are already regulated under the
SDWA or are on the Agency's draft Contaminant Candidate List (CCL).
Second, the Agency states that it does not believe that these chemicals
are present in hydraulic fracturing fluids used for coalbed methane,
and third, that if they are used, they are not introduced in sufficient
concentrations to cause harm. These conclusions raise several
questions:
1. The data presented in the June 2004 EPA study identifies
potential harmful effects from the chemicals listed by the Agency in
this report. Has the Agency or does the Agency plan to incorporate the
results of this study and the fact that these chemicals are present in
hydraulic fracturing agents into the CCL development process, and if
not, why not?
2. In the June 2004 EPA study, the Agency concludes that hydraulic
fracturing fluids do not contain most of the chemicals identified. This
conclusion is based on two items--``conversations with field
engineers'' and ``witnessing three separate fracturing events'' (June
2004 EPA Study, p. 4-17.)
a. How did the Agency select particular field engineers with whom
to converse on this subject?
b. Please provide a transcript of the conversations with field
engineers, including the companies or consulting firms with which they
were affiliated.
c. How did the Agency select the three separate fracturing events
to witness?
d. Were those events representative of the different site-specific
characteristics referenced in the June 2004 study (June 2004 EPA Study,
p. 4-19) as determining factors in the types of hydraulic fracturing
fluids that will be used?
e. Which companies were observed?
f. Was prior notice given of the planned witnessing of these
events?
g. What percentage of the annual number of hydraulic fracturing
events that occur in the United States does ``3'' represent?
h. Finally, please explain why the Material Safety Data Sheets for
the fluids identified as potentially being used in hydraulic fracturing
list component chemicals that the EPA does not believe are present.
The Agency concludes in the June 2004 study that even if these
chemicals are present, they are not present in sufficient
concentrations to cause harm. The Agency bases this conclusion on
assumed flowback, dilution and dispersion, adsorption and entrapment,
and biodegradation. The June 2004 study repeatedly cites the 1991
Palmer study, ``Comparison between gel-fracture and water-fracture
stimulations in the Black Warrior basin; Proceedings 1991 Coalbed
Methane Symposium,'' which found that only 61 percent of the fluid
injected during hydraulic fracturing is recovered. Please explain what
data EPA collected and what observations the Agency made in the field
that would support the conclusion that the 39 percent of fluids
remaining in the ground are not present in sufficient concentrations to
adversely affect underground sources of drinking water.
After identifying BTEX compounds as the major constituent of
concern (June 2004 EPA study, page 4-15), the Agency entered into the
MOU described above as its mechanism to eliminate diesel fuel from
hydraulic fracturing fluids.
3a. How does the Agency plan to enforce the provisions in the MOU
and ensure that its tenets are met?
b. Will the Agency conduct independent monitoring of hydraulic
fracturing processes in the field to ensure that diesel fuel is not
used?
c. Will the Agency require states to monitor for diesel use as part
of their Class II UIC Programs?
4a. Should the Agency become aware of an unreported return to the
use of diesel fuel in hydraulic fracturing by one of the parties to the
MOU, what recourse is available to EPA under the terms of the MOU?
b. What action does the Agency plan to take should such a situation
occur?
c. Why did EPA choose to use an MOU as opposed to a regulatory
approach to achieve the goal of eliminating diesel fuel in hydraulic
fracturing?
d. What revisions were made to the June 2004 EPA study between the
December 2003 adoption of the MOU and the 2004 release of the study?
Which of those changes dealt specifically with the use and effects of
diesel fuel in hydraulic fracturing?
e. The Agency also states that it expects that even if diesel were
used, a number of factors would decrease the concentration and
availability of BTEX. Please elaborate on the data EPA collected and
the observations the Agency made in the field that would support the
conclusion that the 39 percent of fluids remaining in the ground (1991
Palmer), should they contain BTEX compounds, would not be present in
sufficient concentrations to adversely affect underground sources of
drinking water.
We are also concerned that the EPA response to the court remand
leaves several unanswered questions. The Court decision found that
hydraulic fracturing wells ``fit squarely within the definition of
Class II wells.'' (LEAF II, 276 F.3d at 1263), and remanded back to EPA
to determine if the Alabama underground injection control program under
section 1425 complies with Class II well requirements. On July 15,
2004, EPA--published its finding in the Federal Register that the
Alabama program complies with the requirements of the 1425 Class II
well requirements. (69 FR No. 135, pp 42341.) According to EPA, Alabama
is the only state that has a program specifically for hydraulic
fracturing approved under section 1425. Based on this analysis, it
seems that in order to comply with the Court's finding that hydraulic
fracturing is a part of the Class II well definition, the remaining
states should be using their existing Class II, EPA-approved programs,
under 1422 or 1425, to regulate hydraulic fracturing. To date, EPA has
approved Underground Injection Control programs in 34 states. Approval
dates range from 1981-1996.
5. Do you plan to conduct a national surveyor review to determine
whether state Class II programs adequately regulate hydraulic
fracturing?
At the time that these programs were approved, the standards
against which state Class II programs were evaluated did not include
any minimum requirements for hydraulic fracturing. In its January 19,
2000 notice of EPA's approval of Alabama's 1425 program, the Agency
stated, ``When the regulations in 40 CFR parts 144 and 146, including
the well classifications, were promulgated, it was not EPA's intent to
regulate hydraulic fracturing of coal beds. Accordingly, the well
classification systems found in 40 CFR 144.6 and 146.5 do not expressly
include hydraulic fracturing injection activities. Also, the various
permitting, construction and other requirements found in Parts 144 and
146 do not specifically address hydraulic fracturing.'' (65 FR No. 12,
p. 2892.)
Further, EPA acknowledges that there can be significant differences
between hydraulic fracturing and standard activities addressed by state
Class II programs.
In the January 19, 2000 Federal Register notice, the Agency states:
. . . since the injection of fracture fluids through these wells is
often a one-time exercise of extremely limited duration (fracture
injections generally last no more than two hours) ancillary to the
well's principal function of producing methane, it did not seem
entirely appropriate to ascribe Class II status to such wells, for all
regulatory purposes, merely due to the fact that, prior to commencing
production, they had been fractured.'' (65 FR No. 12, p. 2892.)
Although hydraulic fracturing falls under the Class II definition,
the Agency has acknowledged that hydraulic fracturing is different than
most of the activities that occur under Class II and that there are no
national regulations or standards on how to regulate hydraulic
fracturing.
6. In light of the Court decision and the Agency's July 2004
response to the Court remand, did the Agency consider establishing
national regulations or standards for hydraulic fracturing or minimum
requirements for hydraulic fracturing regulations under state Class II
programs?
a. If so, please provide a detailed description of your
consideration of establishing these regulations or standards and the
rationale for not pursuing them.
b. Do you plan to establish such regulations or standards in the
future?
c. If not, what standards will be used as the standard of
measurement for compliance for hydraulic fracturing under state Class
II programs?
We appreciate your timely response to these questions in reaction
to the three recent actions taken by the EPA in relation to hydraulic
fracturing the adoption of the MOU, the release of the final study, and
the response to the Court remand. Clean and safe drinking water is one,
of our nation's greatest assets, and we believe we must do all we can
to continue to protect public health. Thank you again for your
response.
______
Response. According to EPA files, responses to this letter were
mailed on December 7, 2004. I am providing a copy of EPA's response for
the record.
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Question 16. What is the incremental benefit to public health,
quantified wherever possible, over the next 20 years, of the mercury
rule that you signed recently as compared to the section 112/MACT
approach outlined in the proposed rule?
Response. We determined that the multi-pollutant approach of CAIR
and CAMR provides tremendous public health benefits by focusing first
on reducing SO<INF>2</INF> and NOx while providing via a two phase
mandatory emissions cap strong incentives for the further development
and installation of mercury-specific technologies starting in 2010. By
2015, the benefits of CAIR and CAMR are $85 billion to $100 billion
annually.
Under the MACT approach, new and existing facilities would have to
meet performance measures to reduce their emissions, usually through
installation of control equipment. These kind of approaches often
``lock in'' specific control technologies that become obsolete over
time, while not providing the appropriate incentives for the
development and application of more efficient controls. In contrast,
under the CAIR/CAMR approach, marketable permits for mercury should
lead to technological advances and cost savings as companies meet the
declining cap. We fully expect that other countries will be more likely
to follow the U.S. lead and take action to reduce mercury emissions
from power plants if control technologies are more cost effective.
While we are not able to provide you a quantitative estimate of the
health benefits of greater international action, such action is
essential for addressing the global sources of mercury. This is an
important unquantified benefit of a cap-and-trade approach compared to
a MACT approach.
Question 17. Prior to signing the mercury rule, did you request a
briefing or written materials from EPA staff on alternatives to the
approach selected in that final rule?
Response. On January 14, 2005, I was briefed on the possible
regulatory options for the final CAMR. In attendance at that meeting
were the Assistant Administrators from all major EPA program offices:
Air; Water; Prevention, Pesticides, and Toxic Substances; Research and
Development; Enforcement; and the General Counsel along with members of
their staffs. Follow-up meetings were convened several weeks later for
the purpose of discussing the modeling results and making final
decisions on the proper approach for CAMR. Agency analysis of the
alternatives can be found in the rulemaking docket and, in particular,
in the Regulatory Impact Analysis.
Question 18. If you did request and receive such a briefing or
written materials on alternatives to the approach in the final mercury
rule, did they indicate that a different approach than the one you
selected and signed could produce a greater net benefit to public
health?
Response. I received many briefings on benefits and costs including
in-depth discussions of alternative approaches. In particular, I was
briefed on the relative merits of using a ``command-and-control''
(MACT) approach versus a market-based cap-and-trade approach. A MACT
approach typically would set emission limits per unit of output or
throughput, allowing total emissions to grow as the number and size of
sources grow. A cap-and-trade approach, on the other hand, sets a hard
cap that would insure that emissions would not increase as the economy
grows. For any level of compliance cost, the flexibility of a cap-and-
trade approach means greater emissions reductions can be achieved than
with a less flexible MACT approach. I concluded that the combined
approach of CAMR and CAIR provided significant public health benefits
and addressed the public health concerns of mercury emissions due to
power plants.
When considering the details of a cap-and-trade system, I was
briefed on several options, including issuing CAIR alone and varying
the level and timing of the caps of CAMR. When we considered more
stringent control options, the benefits (in terms of reduced exposure
to mercury) were relatively small while the costs increased
substantially. This result is due to a number of reasons. For example,
control technologies installed to comply with CAIR (scrubbers and SCRs)
tend to reduce the mercury that is most likely to deposit in the U.S.
Hence it was difficult to discern any significant difference in mercury
deposition among more stringent options beyond CAIR and CAMR. Further,
the costs of the mercury regulation will get passed on to consumers in
the form of higher electricity prices. Increases in electricity prices
are highly regressive--lower income families must pay a bigger
percentage of their income to these costs. In turn, higher priced
energy leaves less available for health care, nutrition, and other
important determinants of the quality of life. While these effects are
hard to model, it is important to note that more stringent regulation
does not always produce greater public health benefits, let alone
greater net benefits to society.
Question 19. You justified revoking Administrator Browner's
decision, which had found that it was ``necessary and appropriate'' to
reduce mercury emissions from each and every electric generating unit
using maximum achievable control technology, by indicating that U.S.
sources are only a small part of the total global emissions. Should the
U.S. be negotiating a binding global treaty to reduce those emissions?
Response. As a more expeditious approach to addressing
international sources of mercury, the U.S. proposed a series of public/
private partnerships at a meeting of the UNEP Governing Council in
Nairobi, Kenya in February, 2005. These partnerships would focus on
reducing the major global sources of mercury. Recognizing that a ``one
size fits all'' approach will not work for all mercury sources, the
U.S. proposal seeks to bring together industry experts, governments,
NGO's and funding organizations to help achieve rapid reductions in
sectors such as mining, utilities and the chlor alkali sector. This
approach was supported unanimously by the more than 120 countries
attending the UNEP meeting.
EPA, working with the Department of State and others, has already
started working on these partnerships.
Question 20. As the Administrator, will you seek to increase staff/
personnel resources for the implementation of the Clean Air Interstate
Rule? If so, what would you consider to be an appropriate increase? If
not, why not?
Response. Now that the Clean Air Interstate Rule (CAIR) has been
promulgated, the Agency's staff is moving into the implementation
phase. We have already held a workshop with technical staff from
Headquarters and the EPA Regional Offices to discuss the level of
resources that will be needed to assist the states and the utility
industry to implement the rule. In the near future, we will organize
similar workshops with staff from state air pollution control offices.
Additionally, EPA staff is meeting with industry associations, as well
as individual companies, to explain the regulations and answer their
questions. The feedback EPA receives from all of these interactions
will allow EPA managers to develop resource needs to fully support the
CAIR program.
Clearly, implementation and compliance monitoring of CAIR will
require an expenditure of contract monies, as well as staffing needs. I
plan to discuss these resource needs with senior EPA managers and
ensure that adequate resources are made available either as part of the
President's 2007 FY budget request to Congress, or through re-
programming of existing Agency resources.
Question 21. Prior to signing the Clean Air Interstate Rule, did
you review the Agency's public report required to be prepared pursuant
to section 102 (C) of the National Environmental Policy Act to
accompany the Clear Skies legislation sent up for introduction by
request in 2003? This law directs the Agency (or responsible official)
to include in every recommendation for legislation significantly
affecting the quality of the human environment, a detailed statement on
several elements, but specifically on alternatives to the proposed
action. Please provide the Committee with a copy of that report.
Response. The Clean Air Interstate Rule was not subject to NEPA
section 102(2)(C), pursuant to the statutory exemption for Clean Air
Act actions contained in Section 7(c)(1) of the Energy Supply and
Environmental Coordination Act of 1973, 15 U.S.C. Sec. 793(c)(1). A
legislative environmental impact analysis was not prepared for the
President's Clear Skies bill.
Question 22. In what year will the Clean Air Interstate Rule and
the Clean Air Mercury rule result in a 70 percent reduction of the
total national powerplant emissions of each pollutant covered--SOx,
NOx, and mercury? Please provide the specific data or reference to
support that projection.
Response. EPA used the Integrated Planning Model (IPM) for
projections of SO<INF>2</INF>, NOx, and mercury from the power sector
under these rules. The cap levels set forth in CAIR and CAMR require a
73 percent reduction in SO<INF>2</INF>, a 61 percent reduction in NOx,
and a 69 percent reduction in Hg from 2003 levels. For SO<INF>2</INF>,
there is a bank of allowances that industry draws down on to reach the
emissions cap that has been built up from early reductions that
provided benefits to the public at the outset of the Acid Rain Program
and near-term early reductions expected before CAIR begins in 2010
thus, EPA projects that the aforementioned emission reduction will be
met in 2023. For NOx, modeling does not project a significant amount of
early reductions or banking for CAIR, so the final reduction will
likely be met in 2015. For mercury, the model projects a bank of
allowances building up in the earlier years of the program that come
from early reductions which are then used at rate in later years that
leads to hitting the annual 15 ton emissions cap in 2025.
Question 23. Administrator Leavitt informed the Committee that the
second phase of the ozone NAAQS implementation rule was to have been
completed last summer. Can you provide for the hearing record a
commitment for a date certain by which that rule should be promulgated?
Response. Due to the number and complexity of issues arising from
the move to the 8-hour ozone standard, and the large volume of public
comments received on the proposed implementation rule, EPA decided to
break the ozone implementation rule into two phases. EPA issued the
first phase of the rule implementing the 8-hour ozone standard in April
2004; we are now working to finalize the Phase 2 rule.
The Phase 2 rule will cover remaining 8-hour implementation issues,
such as New Source Review, reasonably available control technology
(RACT), modeling and demonstration, and reasonable further progress.
The Phase 2 rulemaking was submitted for interagency review on March 7,
2005. I expect to sign the rule once the interagency process is
complete.
Question 24. A significant handicap to replacing ozone depleting
compounds such as methyl bromide has been the delay in registering new
compounds that can take its place. What can be done to expedite the
review and registration of compounds? Can something be done to expedite
the review process as well as the familiarization of new compounds by
the affected user groups?
Response. Since 1997, EPA has registered a number of chemical/use
combinations, which are providing pesticide users many safe and
effective alternatives to methyl bromide as quickly as possible. The
pesticide/crop combinations include:
2000: Phosphine to control insects in stored commodities;
2001: Indian Meal Moth Granulosis Virus to control Indian meal moth
in stored grains
2001: Terrazole to control pathogens in tobacco float beds
2001: Telone applied through drip irrigation - all crops
2002: Halosulfuron-methyl to control weeds in melons and tomatoes
2003: Trifloxysulfuron sodium as an herbicide for tomato
transplants in Florida and Georgia
2004: Fosthiazate as a pre-plant nematocide for tomatoes
2004: Sulfuryl fluoride as a post-harvest fumigant for stored
commodities
In addition, EPA has worked to reduce and tailor the pesticide
registration data requirements to the extent feasible while still
ensuring that the Agency's registration decisions meet Federal safety
standards. Furthermore, EPA scientists routinely meet with prospective
methyl bromide alternative applicants during the pre-registration
process to increase the probability that the data are collected and
submitted correctly for the first time, thus minimizing delays. The
Agency works with the U.S. Department of Agriculture, pesticide users,
and others to keep information updated regarding the phase in of
alternatives, pinpointing the areas of greatest need, and ultimately
using this information to ensure continued focus on registering methyl
bromide alternatives.
Question 25. The Montreal Protocol has been an area in which U.S.
Government and industry have provided great leadership in implementing
substitute technologies. I understand that these technologies are under
attack by other countries, with Europe attempting to ban U.S.
technologies as part of its climate change regulations, and I also
understand that the recent efforts to replace methyl bromide have been
slowed because of the Agency's inability to promptly register
substitutes. What can you do to assure continued U.S. leadership in
this area and the protection of the multi-billion dollar investment
made by American industry on this important issue?
Response. I can take several steps to assure continued U.S.
leadership in protecting the ozone layer, and to protect investments
made by American industry in this important issue. With respect to
possible trade concerns with the EU, I intend to remain strongly
engaged at the international level, so that we do not allow what has
been a scientifically-led process to become a tool of any regional
trade policy.
With respect to Methyl Bromide, we need to continue our efforts to
register alternatives. Finally, we need to apply the same registration
standards to Methyl Bromide, to make sure that we are subjecting this
chemical to the same standards required of its ozone-safe alternatives.
Question 26. Do you believe that Federal facilities should comply
with the same environmental standards and requirements as are imposed
on private and non-Federal entities and sources?
Response. Yes. We must also take into consideration other national
priorities when advancing environmental protection with regard to
federal facilities. It has been EPA's experience that the Nation's
environmental goals can nearly always be achieved in concert with other
public and national security values. EPA will continue to work
collaboratively with Congress and other federal agencies, states,
tribes and other stakeholders toward that end.
Question 27. Based on your many years of experience at the Agency,
what do you perceive as the top five greatest involuntary environmental
health risks faced by the American public?
Response. The American public deserves to have a clean, safe, and
healthy environment. Our Nation faces numerous environmental challenges
today. However, it is very difficult to rank them by level of risk.
Environmental challenges, such as particulate matter, ground-level
ozone, and homeland security threats, among others, are all very
important. I believe we must continue to use sound science to establish
priorities and to improve the ability to measure our environmental
progress.
Question 28. There is great concern that the Agency may weaken and
relax the current rules and schedule to reduce sulfur in diesel fuel.
Will you commit to ensuring that the Agency implements and enforces the
compliance deadlines and requirements in the Highway Diesel Rule and
the Nonroad Diesel Rule as currently written?
Response. The Administration remains committed to full
implementation of our highway and non-road rules limiting emissions
from diesel engines and fuels. We understand that engine manufacturers
have spent considerable time, effort, and financial resources on
developing cleaner engines that require the use of the low-sulfur fuel.
EPA is working with refiners and pipeline companies to ensure that they
can meet our aggressive low-sulfur diesel fuel standards on time and in
a manner that not restrict fuel supply, raise prices to consumers, or
interfere with the investments made by engine manufacturers.
Question 29. Please provide a date certain by which time you will
review the state and local government submissions required to be made
by December 31, 2004, under the Agency's unauthorized Early Action
Compact protocol program and make a determination as to whether the
terms and conditions in the protocol have been complied with in each
submission.
Response. EPA expects to issue proposed determinations by May 15,
2005, and final determinations by September 30, 2005.
Question 30. By what date will you commit to rescinding the
``deferred nonattainment designation'' status of those Early Action
Compact (EAC) areas which have not complied with the terms and
conditions of the EAC protocol, as determined by your review in the
preceding question?
Response. By September 30, 2005, EPA will rescind the deferred
nonattainment designation status of any EAC areas which have not
complied with the terms and conditions of the EAC protocol and EPA
guidance.
Question 31. To date, the Agency has not added any hazardous air
pollutants to the list established by Congress in the 1990 Clean Air
Act Amendments. Section 112(b)(2) of the Clean Air Act requires the
Administrator periodically review that list and, where appropriate,
revise that list to add pollutants that present or may present a threat
of adverse human health or environmental effects. By what date will you
commit to conducting this review?
Response. Adding to and removing pollutants from the list is an
ongoing process which involves the review and evaluation of significant
amounts of scientific information and is generally carried out through
the evaluation of outside petitions to the Agency. EPA reviews these
petitions on a pollutant by pollutant basis to determine whether to add
or remove the pollutants. Since 1990, the Agency has received 6
complete petitions to delist hazardous air pollutants. Of these, EPA
denied one (methanol), approved two (caprolactam and ethylene glycol
monobutyl ether), proposed to grant one (methyl ethyl ketone) and is
currently reviewing two (methylene diphenyl diisocyanate and methyl
isobutyl ketone). EPA is also evaluating two requests to add pollutants
to the list (hydrogen sulfide and diesel exhaust) and hopes to make
initial decisions on these by the end of the year. Independent from the
evaluation of outside petitions, there are data gathering and analysis
efforts underway within various parts of the Agency to develop better
scientific information on exposures and health impacts of specific
pollutants, and to review the list and make recommendations for adding
or removing pollutants from it. As these efforts come to fruition, we
will propose to modify the pollutant list accordingly.
Question 32. Do you believe that it is prudent to take Federal
actions that will increase total greenhouse gas emissions?
Response. The prudent course of action at this time is to ensure
that the projected growth in greenhouse gases is reduced while also
maintaining our economic growth and improving our energy security. To
this end, the Administration has implemented a number of programs that
will reduce greenhouse gas emissions and greenhouse gas intensity. At
EPA, these programs include EnergySTAR, Climate Leaders, Smartway
Transport, and the international Methane to Markets Partnership.
Question 33. The Agency has not yet complied with the schedule that
it set out to issue a final mobile source air toxics (MSATs) rule. By
what date will you commit the Agency to promulgating a final MSATs
rule?
Response. The schedule for the proposed and final MSAT rule is the
subject of litigation, and EPA is currently in settlement discussions
with the litigants. I will inform you of our schedule when it has been
resolved in the litigation.
Question 34. Is EPA the first federal agency or department to issue
guidelines (Guidelines for Carcinogen Risk Assessment EPA/630/P-03/
001b) that establish threshold risk level for cancer that would allow
the public to be exposed to chemicals that are likely to result in
cancer in more than one-in-a-million people and can you assure us that
this approach will not compromise public health?
Response. The EPA is the only federal agency to issue guidelines
for risk assessment; and has issued guidelines for carcinogen risk
assessment since 1976. Since that time, it has been recognized that
certain carcinogens may act in a way such that cancer is not caused
until a certain toxic level (a threshold) is reached. In the past,
several EPA assessments have treated chemicals in this way. Because
these chemicals have a threshold for carcinogenicity, the risks at low
dose are below one-in-a-million.
The new cancer guidelines (released March 29, 2005) guide the risk
assessor to take all of the data that we have available about a
chemical into account, and to reflect the data in the choice of model
selected, the dose-response chosen, and the risk characterization
itself. There has been no section added to the Guidelines or removed
that would significantly change the way that potential carcinogens are
evaluated.
As always, decisions about the level of protection to the
population are a risk management decision made by EPA Program Offices
and Regions, and are not a component of the risk assessment that these
cancer guidelines address. There is no single agency-wide standard for
such risk management decisions. Each must be made based on a specific
set of facts consistent with available statutory and regulatory
requirements.
Question 35. Can you assure us that the use of expert elicitations
in the absence of sufficient peer reviewed studies and data will not be
used move away from the protective default option of the historically
referenced one in a million defeat standard and how much weight will
expert elicitations be given in the weight of evidence narratives in
deciding carcinogenic risk?
Response. Expert elicitation is a tool that has been widely used
for a number of years to help understand the range of expert opinion
that exists regarding a specific topic. It has not been widely used in
past risk assessments, although there are quite a few recent examples
in the peer reviewed literature that demonstrate applications of this
tool for risk assessment.
The recently published Guidelines for Carcinogen Risk Assessment
discuss expert elicitation as one formalized approach that may be used
to help assess the risk of a chemical. The guidelines do not give this
approach any more weight than any other in helping to reach conclusions
about the carcinogenicity of a chemical, although the guidelines state
that working with actual data on a chemical is preferred.
The degree of public protection from a carcinogen to be attained
(e.g., a probability of ``one chance in a million'') is a risk
management decision and is not a part of the risk assessment process.
Expert elicitation, along with the results of other parts of the risk
assessment and the resulting risk characterization, will be provided to
risk managers for their decision as to the desired degree of
protection.
Question 36. In responding to my October 20, 2004, letter, EPA
again provided a list of the 34 specific projects ranked by the
Agency's National Prioritization Panel for which there were no funds
available in fiscal year 2004. Yet EPA failed to provide the specific
information requested about the extent of the funding shortfall and its
impact on cleanup activities. Without an accurate picture of
Superfund's financial needs, Congress cannot have a meaningful
discussion about whether to fully fund the program to expedite the
cleanup of toxic waste dumps from across the nation. As Administrator,
do you commit to providing all of the information requested in the
October 20, 2004 letter within a month of being confirmed?
Response. Yes, EPA will provide you with additional information on
the 34 Superfund projects ranked by EPA's National Risk Prioritization
Panel that were not funded in FY 2004. Should I be confirmed by the
United States Senate, you have my commitment that the information will
be provided within a month of my confirmation.
Question 37. In your written testimony, you state that the 2002
brownfields legislation ``holds the promise to transform thousands of
additional sites across the country into usable, productive land.'' I
am concerned that the promise of this legislation is being undermined
by inadequate Presidential budget requests. It is estimated that EPA is
forced to turn away more than two-thirds of the applicants for federal
brownfields assessment and cleanup funding due to limited funds. The
brownfields statute authorizes $200 million through 2006 for site
assessment, remediation and revolving loan funds. Why does the
President's 2006 proposed budget only ask for $120.5 million and what
steps will you take as Administrator to ensure that the brownfields
program is fully funded?
Response. In FY 2004, EPA's Brownfields program received $92.9
million in congressional appropriations for section 104(k) of the
Brownfields Act and $89.3 million in FY 2005. The FY 2006 President's
Budget requests $120.5 million which is a $31.2 million increase above
the FY 2005 congressionally appropriated funding level. The Brownfields
program continues to remain a priority for EPA and is one of the few
programs for which increased funding has been requested.
Question 38. In your written testimony, you note that ``recycling
and composting of municipal solid waste has increased more than tenfold
in the last decade.'' Notwithstanding this statistic, the recycling
rates of many consumer commodities, such as plastic, aluminum and
glass, are at historic lows. Businesses are finding it increasingly
difficult to obtain the quantity and quality of recycled feedstock
needed to meet demand. As Administrator, what steps would you take to
encourage greater recycling?
Response. EPA is aware of the recent difficulties encountered in
recycling specific commodities and the Agency is committed to improve
the rate of recycling.
EPA is developing Action Plans under the Resource Conservation
Challenge which will target selected waste streams in municipal solid
waste for special emphasis based on generation and recovery rates and
the potential for increased recycling. We identified these waste
streams as the most effective focus to help the nation achieve a 35
percent national recycling rate. Specifically, EPA will have a national
focus on increased recycling for in three sectors of municipal solid
waste: paper, containers and packaging, and organics (including food
waste and yard trimmings). These are large sectors of the municipal
solid waste stream which that will provide opportunities for increased
recycling.
Through these Action Plans, EPA will be providing a national focus
by engaging the Agency's ten Regional Offices in the effort. However,
EPA cannot alone increase recycling. It will require collaborative
efforts with our primary partners--states, tribes, and local
governments--as well as key stakeholders in business and industry and
in the environmental community. Businesses, manufacturers, consumers,
schools, and all Americans have a role in increasing recycling. EPA's
key role is to engage national stakeholders in broad initiatives.
In addition to the large-volume waste streams for which EPA will
design and implement programs which will stimulate and foster increased
recycling, the Agency is also committed to increasing the recycling of
electronics materials. Although electronics currently does not
represent a very large percentage of the municipal solid waste stream,
it is growing quickly and poses some unique waste management issues.
Just recently, EPA sponsored a National Meeting with various
stakeholders interested in electronics recycling. As a result of the
meeting, a number of specific activities and actions have been
identified for which further work will be undertaken.
Question 39. I have heard reports that EPA is considering a
proposal to authorize radiation doses to the public of 100 millirem per
year, reversing EPA's longstanding position opposing radiation dose
limits over 15 millirem per year. Is this correct? If so, is it correct
that EPA has estimated that a 100 millirem per year standard would
result in a lifetime risk of 1 cancer incidence in 169 people exposed
over a 70-year lifespan, far in excess of EPA's acceptable risk range?
Response. EPA does not plan to weaken its standards for radiation
protection. EPA has been working on revising a 44-year old Presidential
Guidance to Federal agencies for protection of the public. The current
Federal Guidance, as signed by President Eisenhower, includes a
cumulative public dose limit of 500 millirems/year, which is equivalent
to a cancer risk of 3 in 100 excess cancers over a lifetime. EPA's main
objective in revising the old Federal Guidance is to reduce this
excessively high recommended dose limit, to be more realistic in light
of the stringent single source standards that EPA and other Federal
agencies have issued. The draft revised Guidance reinforces and
strengthens the current public process used by Federal agencies for
setting individual source limits. EPA continues to rely on the excess
cancer risk range of no more than 1 in 10,000 excess cancers in a
lifetime to manage cleanup of radioactive sites.
Question 40a. Your testimony states that over 90 percent of the
population served by community water systems receives drinking water
that meets all health-based standards--up from 79 percent just a decade
ago. EPA's supporting data for this statement on the EPA drinking water
website contains a notice stating that these measures are based on
violations reported by states to EPA's Safe Drinking Water Information
System (SDWIS). The notice also states that EPA is aware of
inaccuracies and under reporting of some data in this system. The
accuracy of SDWIS data is of serious concern. In the District, for
example, WASA incorrectly reported that the District was under the 15
ppb lead action level for the 2000 to 2001 monitoring period. This
problem of incorrect sampling and reporting also appears to be
occurring nationwide. On October 5, 2004, the Washington Post published
a story detailing how utilities across the country have manipulated
their sampling and monitoring programs to avoid exceeding the action
level. What action is EPA taking to address the accuracy of SDWIS data?
Response. The states and EPA have made significant strides in
improving data quality since the first data quality assessment was
completed in 1999. The data that we receive from states is the most
robust set of national data that we have on drinking water compliance.
The Agency has worked with states to develop strategies to continue to
improve the completeness and accuracy of data and is committing
substantial resources to SDWIS/STATE, a database software application
designed jointly by EPA and states, which automates calculations and
comparisons of utility data to federal and state standards.
Additionally, the Agency is increasing the frequency of state data
verification audits that are used to assess the quality of data in
SDWIS. EPA remains committed to continuing to work with states to
improve the quality of the data we use in carrying out our programs and
reporting to the public and has in place a joint plan with the
Association of State Drinking Water Administrators to address specific
data reliability concerns that still exist.
Question 40b. How does your statement on drinking water safety
reconcile with EPA's recent report on lead contamination in medium and
large water systems (January 2005) which shows that over 10.2 million
people, since 2000, are served by water systems that exceed the 15 ppb
lead action level?
Response. First, it is important to note that an exceedance of the
action level is not, in itself, a violation of drinking water
standards. A violation is assessed when the utility fails to take the
actions required by the regulations related to public education,
monitoring, and potentially, lead service line replacement. Our SDWIS
data indicate that 2.5 million people were served by utilities that had
a violation of treatment technique for the Lead and Copper Rule in FY
2003. Second, although the data posted in January 2005 showed that 10.2
million people were served by systems that had exceeded the action
level at some time since January 2000, it is unlikely that the entire
population served by those systems were exposed to elevated levels due
to the nature of lead in drinking water (e.g. from plumbing, not the
source water). For example, in the greater Boston area, monitoring
indicated that the action level was only exceeded in fewer than half of
the 28 communities served by the water authority. Therefore, the entire
service population of more than 2 million did not receive water over
the action level. Nevertheless, EPA agrees it is important that all
customers of public water systems receive water that meets the lead
action level.
Question 40c. What is EPA doing to address the 10 percent of the
population that is served by community water systems that do not meet
all health-based standards?
Response. EPA is committed to working with states that have primary
enforcement responsibility for ensuring that utilities meet all health-
based drinking water standards. The Agency is providing training and
technical assistance to states and utilities to ensure that they
understand regulatory requirements and to strengthen their capacity to
comply with the regulations. EPA's Regional enforcement staff also
works with states to address significant non-compliers, which are those
utilities that have persistent violations of drinking water standards.
Question 41. The President's budget is proposing to cut the Clean
Water Act State Revolving Loan Fund (SRF) by a staggering $361 million,
or by a third, compared to the FY 2005 appropriation of $1.1 billion.
In your testimony before the committee, you remarked that the costs for
addressing aging water infrastructure far exceed EPA's budget and are
staggering for our cities and communities. What steps will you take as
Administrator to ensure that water infrastructure is a priority and
that the problem of combined sewer overflows is addressed?
Response. Water infrastructure is a priority for the Administration
and I commit to giving personal attention to this issue. EPA has made a
substantial investment in the nation's wastewater systems by helping
states establish a permanent source of infrastructure funding. Since
1987, EPA has provided nearly $23 billion to capitalize the CWSRF-
nearly three times the original CWA authorized level of $8.4 billion.
In FY 2004, the President's Budget presented a long-term plan to
address national water infrastructure needs, which included an
extension of federal funding of the CWSRF until 2011. The Bush
Administration's commitment to provide $6.8 billion between 2004-2011
represents a $5.1 billion increase over the commitment of the previous
Administration. EPA's FY 2006 request continues to support that long-
term plan.
On January 31, 2003, EPA convened a forum on ``Closing the Gap:
Innovative Solutions for America's Water Infrastructure'' to facilitate
a dialogue to define the vision and identify a strategy for sustainable
infrastructure. As a result of this initiative, the Agency is working
in partnership with the states, water utility industry and other
stakeholders to ensure sustainability of water and wastewater systems.
This includes: promoting water efficient products; promoting actual use
costing of water; promoting management techniques for reducing long
term costs and improving performance and sustainability; and expanding
watershed approaches to identify effective local infrastructure
solutions.
The Report to Congress: Impacts and Control of CSOs and SSOs issued
on August 26, 2004, presents a comprehensive characterization of CSOs
and SSOs, including the extent of environmental and human health
impacts caused by CSOs and SSOs, the technologies used by
municipalities to address these impacts, and the resources spent by
municipalities to control CSO and SSO discharges. The Report finds that
there are many existing structural and non-structural technologies that
are well-suited for CSO control. We look forward to working with
Regions and states to address the findings of the Report. In addition,
EPA's 1994 Combined Sewer Overflow Control Policy, codified in the Wet
Weather Water Quality Act of 2000, provides flexible guidance to
consider the site-specific nature of CSOs and find the most cost-
effective way to control them. EPA continues to work with states and
CSO communities to develop and implement their long-term control plans,
including: characterizing their combined sewer systems; monitoring the
impacts of CSOs on waterways; and discussing water quality and CSO
control goals with permitting authorities, water quality standards
authorities, and rate payers. EPA encourages municipalities to take
advantage of opportunities that exist to evaluate water pollution
control needs on a watershed management basis and to coordinate CSO
control efforts with other point and non-point source control
activities.
Question 42. You testified, in answer to a question from Senator
Carper, as follows, `` I will conduct the analysis that has been
requested by this Committee, yourself included, if there is agreement
on what analysis needs to be done.'' It is not clear from your
testimony whose agreement you are seeking. I ask whether you agree that
each legislator, regardless of whether a Chairman of a Congressional
Committee, is entitled to request information from the executive
agencies (in accordance with the holding of the D.C. Circuit court in
Murphy v. Deprtment of the Army, 613 F. 2d 1151, 1157 (D.C. Cir. 1979)
which concluded ``all Members have a constitutionally recognized status
entitling them to share in general congressional powers and
responsibilities, many of them requiring access to executive
information . . . Each of them participates in the law-making process;
each has a voice and a vote in that process; and each is entitled to
request such information from the executive agencies as will enable him
to carry out the responsibilities of a legislator.'')?
Response. The Department of Justice's long-standing guidance to all
executive agencies is that only the Speaker of the House, the President
of the Senate, and the chairman of a committee or subcommittee are
entitled to privileged documents exempted under from the Freedom of
Information Act. This has also been EPA's long-standing position, fully
supported by my Office of General Counsel. That said, I respect your
oversight responsibility and I commit to working with you to address
your information needs.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Baucus
Question 1. Will you visit Libby, Montana as soon as possible after
you are confirmed?
Response. I appreciate your invitation to visit Libby, Montana, and
I look forward to making the trip as soon as possible if and when I am
confirmed. As you stated in your remarks at my confirmation hearing on
April 6, visiting Libby will not only help me to better understand the
scale of the cleanup challenge at Libby, it will also help members of
the community understand that we are committed to solving this
environmental problem.
Question 2. The Libby community is deeply concerned about the EPA's
approach to cleanup and remediation of the former Stimson Lumber mill
property in Lincoln County. Lincoln County hopes to use this property
as an industrial park and to stimulate economic development. The EPA
made a commitment to the community in a workshop that the EPA sponsored
several years ago, to stand firm with Libby and support completing the
Stimson cleanup in a way that also helps the community use the site in
the manner they have proposed. The community is concerned that the EPA
is dragging its feet here. Will you look into this situation and report
back to me on how the EPA will fulfill its commitment to the community?
Response. EPA will keep its commitments to Libby. EPA has taken a
number of steps to assist with the cleanup and the economic
redevelopment of the Stimson Lumber mill property. EPA will begin
cleanup of the Central Maintenance building at the Stimson Lumber Mill
property within the next two weeks (April 18th). This will allow the
current and future business tenants to work safely in the Central
Maintenance building of the facility.
EPA continues to work with the local authorities to assist with
their efforts to stimulate economic development in Libby. Last summer,
the Lincoln County Port Authority constructed a motocross track at the
Stimson Property for a special event. EPA assisted the Port Authority
by taking soil samples in the area to assess risk of exposure to
recreational visitors at the track. There were no detectable
concentrations of asbestos in any of the soil samples and EPA approved
construction of the track. Further, in 2004 EPA established a
Cooperative Agreement with the Lincoln County Port Authority,
committing $50,000 to development of site plans and design related to
future use of the property.
Question 3. The EPA made a commitment to me on two occasions and to
Libby community leaders to detail a half time employee in Libby to work
on economic development and marketing. This hasn't happened and the
people in Libby continue to ask for this. This person could also help
the community with creative approaches to leveraging the Brownfields
program for economic redevelopment in Libby. Will you follow through on
EPA's commitment?
Response. Perhaps there has been some confusion between EPA's
commitment to hire a full time construction manager for Libby with the
request for a half-time EPA employee to work on economic development
issues in the town. EPA has had a full time remedial project manager
and his half-time assistant working from EPA's Denver office for
several years to support the important work at Libby. Additionally, we
are currently in the process of recruiting for a full time project
manager who will reside in Libby. We anticipate this position will be
filled within 1-2 months. This new employee--on the ground in Libby--
would ensure that the clean up activities move at a brisk pace. To the
extent he or she has time, discussions with current or prospective
businesses regarding the ``cleanness'' or ``safeness'' of Libby as a
location for economic development would be part of this person's job.
EPA Thoroughly reviewed the issue of supporting a half-time employee
dedicated to economic redevelopment and marketing in Libby. While EPA
has assisted in economic redevelopment within its response authority
under CERCLA at Superfund sites and will continue to do so at Libby,
funding a position that focuses on marketing related to Libby economic
growth or tourism is not within EPA's Superfund authority. Furthermore,
EPA's top priority at Libby is to address the human health and
environmental threat by minimizing exposure to Libby asbestos
contamination at existing residences and other commercial properties.
Question 4. Lincoln County officials and I have been pressing the
EPA to work with us to develop a proactive plan to address what to do
with buildings and homes that cost more to clean, than to tear down and
replace with new structures. It is my understanding that the EPA has
some latitude and discretion here but will not exercise its discretion.
I believe this would require some out-of-the box thinking on EPA's
part, but the folks in Lincoln County and me (and the taxpayers) are
concerned by the mounting cleanup costs, and the fact that EPA will
often spend $80,000 to $100,000 or more to clean a home worth only
$30,000. Will you look into this situation and report back to me with
proposals as to how EPA can take a different approach here?
Response. I also believe that Superfund cleanups should be
protective of human health and the environment and be cost-effective
and efficient. It is my understanding that the average cost of cleanup
at a residential home in Libby is now $30,000.
The costs involved in demolition and replacement of any residence
or commercial property in Libby are considerably more than $30,000. The
costs associated with the construction process include the demolition
itself, disposal of the debris, and restoration of the property to a
suitable condition to rebuild. Other government costs include temporary
relocation assistance, personal property storage payments, and the cost
of fair market or replacement value for the demolished structure. In
order for the government to approve of this process, these combined
costs must be less than the cost of cleanup of a particular residence.
In most cases, the cost of demolition and then rebuilding far exceeds
the cost of cleanup.
EPA's plans to demolish several structures in Libby are the result
of extensive research, engineering evaluation and planning, which
concluded that the work would be cost-effective. The properties
included in these plans have unique factors related to the structural
integrity of the buildings, or to the level of contamination within a
particular home.
Question 5. In general, how will you manage the Superfund program
as Administrator and how will you ensure that priority Superfund sites
around the country, particularly Libby, Montana, continue to receive
adequate funding to protect the public's health and welfare given the
funding constraints the program is now facing due to am empty Superfund
Trust Fund?
Response. Superfund program appropriations have remained relatively
steady over the past 5 fiscal years and EPA's FY 2006 budget request
maintains steady funding.
I will continue to have the Superfund program supplement its
appropriated funding by regularly reviewing Superfund contracts and
other funding mechanisms to determine whether unspent resources are
available for use in the current fiscal year. Over the past 4 fiscal
years, EPA has de-obligated more than $500 million in this manner to
fund new construction projects.
EPA obligated $256 million of FY 2004 appropriations for Superfund
cleanup construction. Nearly $195 million of these resources were used
to fund ongoing projects like Libby, Montana. In FY 2004, EPA conducted
a total of 678 on-going cleanup projects at 428 sites (this includes
EPA lead, PRP lead, and federal facility sites). I can assure you that
EPA will continue to protect human health and the environment by
cleaning up hazardous waste sites and Libby, Montana will continue to
be one of EPA's top cleanup priorities.
Question 6. As you know, Montana (along with many other states) is
experiencing an exploding methamphetamine epidemic. One of the side-
effects of meth production is the toxic chemicals it leaves behind,
posing a direct threat to public health and safety. Funds to clean-up
these mini toxic waste sites are hard to come-by. Please tell me your
thoughts on how we might leverage the Brownfields program to clean-up
some of these sites, for instance by developing a pilot program within
the larger Brownfields program.
Response. The assessment and cleanup of methamphetamine labs are
among the statutory eligible uses of brownfields funding. To date, EPA
has seen a very small number of applications by localities for the
brownfields competitive grant program for assessment and cleanup of
these properties. However, our state and tribal grant program under
section 128 of the Brownfields Law has seen several states applying for
and receiving funding to address outreach, education and assessment of
these types of properties for local entities. Examples of states
addressing these issues include Kansas, Missouri and Minnesota.
______
Response of Stephen L. Johnson to Additional Questions from
Senator Lieberman
Question 1a. You commented in your testimony today and in recent
meetings with staff and with members of this Committee that you fully
support the use of the best science to make Agency decisions, and that
Agency decisions require an ``open and transparent decision-making
process.'' Yet the EPA has been criticized recently by GAO and EPA's
own Inspector General, who concluded that EPA did not conduct
appropriate cost-benefit analysis of its proposed mercury rule, and
appeared to choose its reduction target based on the levels the
President proposed in his Clear Skies Initiative, not based on the
technology review required by the Clean Air Act.
Does your principle of applying the best science apply
retroactively to decisions made before your confirmation?
Response. The CAMR represents the first time that the federal
government, or any nation, has regulated mercury emissions from the
fleet of power plants. I am proud of this. The CAMR rulemaking process
was one of the most rigorous and thorough in EPA's history. This level
of rigor was appropriate given the importance of the decision and the
great deal of public interest in the issue. Claims that the process and
our review of the science were anything less than rigorous or
comprehensive are simply untrue.
Science inquiry is an iterative process and is always evolving.
Regulatory decisions, however, must be made based on the best
information at a given point in time. We will continue advancing and
monitoring the science in this important field and, if future
information warrants, I am committed to taking additional appropriate
action.
Question 1b. Do you believe that we will have mercury-specific
control technology available in this country before 2018?
Response. I have listened carefully to many different experts on
the topic of the availability of mercury-specific control technologies.
EPA's Office of Research and Development wrote a White Paper--Control
of Mercury Emissions from Coal-Fired Electric Utility Boilers: An
Update (March 2005)--that details the information on tests and explains
their professional judgment about the future availability of
technology. The white paper states:
As discussed in this document, since the release of the earlier
White Paper, additional data, mostly from short-term tests, have become
available on mercury control approaches for power plants. Also, a broad
and aggressive RD&D program is underway, which will yield experience
and data in the next few years. Accordingly, ORD continues to believe
that PAC injection and enhanced multipollutant controls will be
available after 2010 for commercial application on most, if not all,
key combinations of coal type and control technology to provide mercury
removal levels between 60 and 90 percent. However, considering the
progress made with halogenated PAC sorbents and other chemical
injection approaches, it is now believed that optimized multipollutant
controls may be available in the 2010-2015 timeframe for commercial
application on most, if not all, key combinations of coal type and
control technology to provide mercury removal levels between 90 and 95
percent. Such optimized controls could include less expensive use of
sorbent (PAC or halogenated PAC) injection with enhanced SCR and/or
enhanced FGD systems. See page 29 of http://www.epa.gov/ttn/atw/
utility/ord--whtpaper--hgcontroltech--oar-2002-0056-6141.pdf
This paper was a part of the Agency's CAMR rulemaking (and is
available in the docket). Based on this information, I believe that
mercury-specific control technologies will be available for many power
plants in advance of the 2018 phase II cap. The economic incentives
inherent in the two-phase cap-and-trade program finalized in the CAMR
will serve to advance the technologies such that they are widely
available for use in complying with the Phase II cap.
Question 1c. Members of my staff have had conversations with
vendors who have indicated that control technology is available today,
and will soon be applied in many states that have more stringent
mercury standards that the federal Clean Air Mercury Rule. Why does the
mercury rule require no real reductions until 2018 if technology will
be available much sooner?
Response. Substantial reductions will take place in 2010. The final
CAMR that I signed dovetails with CAIR and together these two rules
provide for a flexible, multipollutant approach to reducing
SO<INF>2</INF>, NOx, and mercury from the power sector. These two rules
provide strong incentives for the installation of a large number of
scrubbers and SCRs that will reduce SO<INF>2</INF> and NOx,
respectively, and will also reduce mercury emissions, particularly the
types of mercury that matter most for reducing U.S. deposition.
This approach provides significant public health benefits by
focusing on reducing SO<INF>2</INF> and NOx while providing strong
incentives for the further development and installation of mercury-
specific technologies starting in 2010, well in advance of 2018. We
expect that this approach will lead to the development of less costly
technologies for reducing mercury emissions.
Question 1d. Will you apply the principles of the ``best science''
to the mercury rule by re-evaluating the proposed rule in light of the
reports that a Harvard study funded by EPA itself, a study that found
estimated health benefits from mercury control considerably greater
than those the Agency has publicly claimed, was ignored in development
of the rule, despite indications that EPA received the results of the
study by its stated January deadline?
Response. On March 24, 2005, I received a letter from Senators
Leahy, Boxer, Jeffords, and Kerry that asked the same question. Please
find my attached response, which was sent on April 5, 2005.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Question 1e. What are your specific plans for addressing the
shortcomings identified by the GAO and the EPA Inspector General
regarding regulation of mercury?
Response. The CAMR rulemaking process consisted of a proposed rule,
a supplemental proposed rule, a public comment period in both
proposals, an extension of the comment period, and solicitation of
public comment on a Notice of Data Availability. The IG characterized
the process as incomplete before the process was completed.
The GAO report encouraged EPA to pursue additional economic
analysis. We agreed and, in fact, were already in the process of
finalizing a number of the analyses the GAO report requested or cited
as informative. These analyses are part of the supporting documents for
the final CAIR and CAMR.
Question 2. According to the National Academy of Sciences report
from June 2001, a report requested by the Bush White House:
``Greenhouse gases are accumulating in Earth's atmosphere as a
result of human activities, causing surface air temperatures and
subsurface ocean temperatures to rise. Temperatures are, in fact,
rising. The changes observed over the last several decades are likely
mostly due to human activities, but we cannot rule out that some
significant part of these changes are also a reflection of natural
variability.''
Do you agree that global warming is occurring? Do you agree that
the 1990s were the hottest decade on record? Do you agree that a
significant portion of the warning that has occurred over the last 50
years is due to human activity? Even if there are uncertainties about
the precise impacts from continued emissions growth, isn't it dangerous
to let CO<INF>2</INF> concentrations keep rising to levels that have
not been seen in the history of the human race? Are you aware that the
administration's voluntary ``goal'' for CO<INF>2</INF> emissions would
allow emissions to continue rising by 14 percent over the next decade?
Response. Like the President, I agree with the findings of the
National Academy of Sciences report. I also agree that we need to take
steps to reduce the projected growth in emissions of greenhouse gases
like CO<INF>2</INF>. We need to develop and implement ways of reducing
greenhouse gas emissions that will also maintain the strength of our
economy, and we are taking strong steps to confront this long-term
challenge. The President has proposed a program to address both the
technological and scientific challenges we confront as well as a series
of immediate actions to reduce greenhouse gas emissions in the United
States and abroad. I believe that these actions--which at EPA focus on
programs like Energy STAR, Smartway Transport, Climate Leaders and the
international Methane to Markets Partnership--are a strong and
effective response to the challenge we face.
Question 3. There are concerns in the scientific community that our
current lead exposure standard is not sufficiently protective,
particularly with regard to children. What are your plans for having
the Agency review the science and making a determination as to whether
updated, stricter standards are needed?
Response. Reducing exposure to lead has been an important issue for
EPA for more than two decades. While the hazard standards are a
critical part of EPA's lead poisoning prevention program, they are most
effective as part of the Agency's broader program designed to educate
the public and raise public awareness of the health effects of lead.
The hazard standards are based on a thorough review of the best science
that was available to the Agency at the time the standards were issued
in 2001. EPA recognizes, however, that the science is constantly
developing and with it our understanding of the relationship between
exposure and health impacts. At such time as new data become available,
the Agency will consider changing the standards to reflect these data.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Boxer
Question 1a. Mr. Johnson, the trade publication Inside EPA has on
its web site a copy of a study authored by EPA's water office examining
the cardiovascular benefits of utility mercury controls ``Benefits of
Reducing Mercury in Saltwater Ecosystems.'' Notably, that study was not
made available to the public at any time before you signed the power
plant mercury rule--including during the public comment period in
December 2004 when EPA specifically requested comment on the
cardiovascular impacts of mercury from power plants. Indeed, EPA still
has not made it publicly available, as far as I am aware, and its
findings were never discussed in the final rule.
This agency study appears to be in line with the Harvard study that
EPA refused to take in account or discuss in its final rule. The water
office study ``concludes that reducing mercury by 30 percent would
create $541 million in benefits in the Southeastern U.S. from improved
cardiovascular health in humans and mercury reductions in marine fish
and shellfish. The study consistently found that 85 percent of total
benefits could be ascribed to reductions in cardiovascular disease,
with the remainder made up by IQ improvements, for a total annual
benefit of $600 million.'' ``EPA Study Backs Rejected Harvard Effort On
Mercury Control Benefits,'' Risk Policy Report Daily News--Thursday,
March 31, 2005. In view of your statements on basing policy on sound
science, it is surprising that this was suppressed and not considered.
Please explain your rationale was for not including or considering this
study in the course of the mercury rulemaking?
Response. The Office of Water report is a case study to focus
attention on data and knowledge gaps and suggest areas for research
priorities to address those uncertainties. The final CAMR rulemaking
considered the same underlying science but did not rely on the results
of the Office of Water study because the study is undergoing internal
review and has not undergone external peer review. The Agency also has
concerns with the large uncertainties surrounding the study's
quantitative estimates and assumptions made by the study.
Question 1b. Will you make this study available to this Committee
and include it in the final rulemaking docket for the power plant rule?
And since EPA does not have the excuse that this study was ``too late''
to be considered by the agency, as you have claimed about the Harvard
study, why was this study not made available for comment and review
during the public comment period and before you signed the final power
plant rule?
Response. As described above, the Office of Water case study is
undergoing internal peer review but has not undergone any external peer
review. When the document has been peer reviewed and is final, we will
make it public and share it with the Committee. In the final rulemaking
for CAMR, we relied on the same underlying science as was used in the
Office of Water case study. The Agency's benefit methodology, including
peer reviewed case studies, are described in detail in the supporting
documents for the final rule. We took comment on our benefits
methodology in the proposal and further in the Notice of Data
Availability.
Question 2a. Mr. Johnson, were you aware that EPA staff were
attempting to meet with outside cardiovascular researchers and experts
in January of this year while the power plant mercury rule was being
developed? According to EPA sources, political appointees at the agency
prevented that meeting from taking place before you signed the rule.
Can tell us why this was done? Do you believe that meeting with experts
on the cardiovascular effects of mercury was relevant to the rulemaking
and the decision to exclude the NESCAUM study?
Response. Over the past year, Agency staff and managers were
briefed by several of the leading cardiology researchers on the studies
looking at the potential cardiovascular impacts of mercury exposure.
The Agency carefully reviewed the peer-reviewed literature. A detailed
discussion of that literature can be found in the Regulatory Impact
Analysis supporting the rule.
I was aware that Agency scientists were exploring options for
initiating a meeting among relevant federal agencies that would include
presentations from and panel sessions including individuals outside the
federal government. The scientists were planning to hold the meeting
after the close of the comment period. I was concerned that holding the
meeting at such a late stage in the rulemaking process and after the
close of the comment period would have greatly jeopardized the Agency's
ability to issue the final rule in accordance with its legal deadline
and the requirements of the Administrative Procedures Act.
As I said in my oral testimony before the Committee in April, and
the Agency said in the preamble to the final CAMR, EPA will continue to
monitor and advance scientific developments in the understanding of
mercury, and if new evidence warrants, EPA is committed to reevaluating
the CAMR. I look forward to having our scientists work with other
applicable agencies, especially FDA, to continue to look at the issue
of the health impacts of methylmercury exposure.
Question 2b. Will you commit to making available to EPW Committee
staff all EPA staff involved with the question of cardiovascular harms
from mercury, the Harvard study, the EPA water office study, and the
cancelled meeting with cardiovascular experts so that Congress can get
to the bottom of this important public health matter?
Response. I would be happy to work with the Committee to schedule a
meeting on this important issue. As always, we stand ready to provide
the Committee with an opportunity to talk with the Agency's lead
experts on issues before the Committee.
Question 2c. Will you commit to providing to this Committee all EPA
documents, including emails, discussing these same issues and the
planned meeting, as well as a list of the planned and invited
participants?
Response. However, I understand and respect the oversight role over
the Environmental Protection Agency and I will commit to respond fully
to oversight requests by the Chairman on behalf of the Committee. Most
of the information specifically requested here are internal
deliberative communications and hence privileged.
Question 3. Mr. Johnson, as you know, the Clean Air Act required
EPA to make a finding as to whether mercury and other air toxics
emitted from power plants should be regulated as ``hazardous air
pollutants''. EPA found that they should. However, in your mercury
rule, you overturn this finding, without justification or the required
notice or comment. This action ensured that mercury would not be
controlled in three years in the most protective fashion using state of
the art controls, called ``Maximum Achievable Control Technology'', as
is required by law. It is worth pointing out that is how mercury is
controlled when emitted from a variety of other of sources, including
incinerators.
You have been asked by me and some of my fellow Senators and
members of the public to ``stay''--or put on hold--this decision. Will
you commit to ``staying'' EPA's March 29th mercury ``rescission'' and
delisting rulemaking while judicial review of this rule takes place,
and commit to going back and considering all the benefits of regulating
power plant mercury pollution more quickly and more rigorously?
Response. Before I respond to your specific question concerning
mercury and the recently promulgated Clean Air Mercury Rule (CAMR), I
want to make sure that the Agency has been clear about the nature and
sources of risk from mercury. We are exposed to methyl mercury through
the fish we eat. Reduction of emissions from U.S. power plants may
affect local freshwater ecosystems, but will not significantly reduce
ocean concentrations. The importance of this point cannot be
understated because the vast majority of fish and shellfish Americans
consume come from ocean waters, and only a small portion of fish and
shellfish consumed are freshwater recreationally caught fish. To
suggest that there is a quick fix to the mercury problem in the U.S.
would be misleading. EPA continues to recognize that fish and shellfish
are part of a well-balanced diet that can contribute to heart health
and children's proper growth and development. The best way for women of
childbearing age, pregnant and nursing mothers, and young children to
realize the benefits of eating fish and shellfish and be confident that
they have reduced their exposure to the harmful effects of mercury is
to follow the EPA-FDA Fish Advisory issued last year.
The CAMR represents the first time that the federal government, or
any nation, has regulated mercury emissions from the fleet of power
plants. I am very proud of this. The CAMR rulemaking process was one of
the most rigorous and thorough in EPA's history. This level of rigor
was appropriate given the importance of the decision and the great deal
of public interest in the issue. Claims that the process and our review
of the science were anything less than rigorous or comprehensive are
simply untrue.
Since we finalized the rule, we have received at least one
administrative stay request and have been sued in the U.S. Court of
Appeals for the District of Columbia Circuit. Several groups have also
informed us that they intend to file administrative reconsideration
petitions. Until the Agency has had an opportunity to review all of
this material, it would be inappropriate and premature for me to commit
to a particular action. That said, I have several concerns with staying
the rule. First, I believe the CAMR rule is valid--legally,
scientifically, and as a matter of policy. Second, staying the rule
would leave mercury unregulated. Even if one believes that our final
rule should have been more stringent, that belief would not justify
staying the rule. As EPA said in the preamble to the final rule, if
future information demonstrates that additional control is warranted,
EPA is committed to reopening and reevaluating the CAMR standards.
Finally, EPA was legally obligated to finalize the CAMR by March 15,
2005. A stay of the rule would raise questions as to whether we met our
legal obligations.
Question 4. Mr. Johnson, please provide the most current TRI data
on mercury.
Response. The most recent TRI data can be found at http://
www.epa.gov/tri/. For your information, the Agency relied in large part
on the National Emissions Inventory (NEI), not the Toxics Release
Inventory (TRI) you reference in the CAMR rulemaking for a variety of
reasons. For one, the NEI incorporates information from the 1999
Information Collection Request (ICR) data, the only test data for a
large number of utility units employing a variety of control
technologies currently available to the Agency. The most recent
released NEI is for 1999 (found at http://www.epa.gov/ttn/chief/net/
1999inventory.html) and we are currently reviewing the 2002 NEI, which
we expect to release later this year.
Question 5. At this year's budget hearing, I asked you to provide
me with a list of sites ready for Superfund clean-ups in priority
order. You had said you would provide it. This commitment was also made
by Acting Assistant Administrator Tom Dunn. Mr. Dunn informed my staff
that the most current list, which I understand is subject to change,
would be provided. Despite these commitments, to date the EPA has not
provided this information. This information is critical and especially
timely, as the appropriations process has already begun and communities
and families are dependent on this funding for securing their health
and safety. More importantly, our communities and families have a right
to know whether their government intends on meeting its obligations.
Can you commit to me today, that you will provide this list to me by
the end of the week, if not sooner?
Response. EPA is still in the process of making final funding
decisions for new cleanup projects in fiscal year 2005. Final funding
decisions for new construction starts are not expected until September
of this year. I can assure you that when the final new construction
start information is available, we will transmit the information to the
committee. It is my understanding that the list of construction starts
in fiscal year 2004 was sent to you pursuant to the commitment made
during the recent budget hearing.
There are a number of dynamic factors which affect the funding
decision-making process for new construction starts. For example, EPA
does not yet know the total amount of money that may become available
through deobligations. Also, in some cases, delays in the remedial
design or other site specific circumstances will result in a site not
being ready for construction during this fiscal year.
All Superfund remedial action funding decisions are made in close
coordination with EPA regional offices after a careful review of each
project. These discussions result in a better understanding of the
project schedule, type of project activities, and when in the fiscal
year estimated funding requests would be needed.
Question 6. My understanding is that the EPA has prepared a
document describing and listing which Superfund sites present a direct
and immediate threat to human health. A version of this document was
leaked to the press, which is how I came to learn of its existence.
Because peoples' very health and lives are at stake, this information
is of utmost importance. Will you commit to me today to making any
similar documents and related information available to me immediately?
Response. I understand that in response to your request at EPA's
recent budget hearing, EPA provided your office with the list of
Superfund new construction projects that did not receive funding in FY
2004. I am not familiar with the specific document you are describing
in your question.
EPA is still in the process of making final funding decisions for
new cleanup projects in Fiscal Year 2005. Final funding decisions for
new construction starts are not expected until September of this year.
I can assure you that when the final new construction start information
is available, we will transmit the information to the Committee.
Question 7. We have spoken before about the need for better
communications and more openness from your Agency. I want to confirm
with you now, that if I need to call your office and ask for
information, I will get responses promptly and fully. This information
is essential to Congress' oversight role. Will you again pledge to
improve this vital communications link and be responsive and prompt
with me and all other Members?
Response. Yes, EPA will strive to communicate information in an
effective, timely manner with all members of Congress and Congressional
Committees.
Question 8. Given the Superfund program's serious funding problems,
will the Administration support reauthorization of the Superfund taxes
paid by polluters? If not, how will you ensure that funding shortfalls
for cleanups are met?
Response. I strongly support and enforce the ``polluter pays
principle'' under the Superfund law. The success of the polluter pays
principle is illustrated by the fact that roughly 70 percent of
Superfund sites are cleaned up by the parties responsible for hazardous
waste, an average of $838 million per year to clean sites as mandated
by EPA. A broader perspective shows that, over the history of the
program, EPA has required responsible parties to spend more than $21
billion on cleaning up contaminated properties.
EPA has always relied upon Congress to appropriate funds for the
Agency to pay for cleanups at Superfund sites. Superfund program
appropriations have remained relatively steady over the past 5 fiscal
years at $1.3 billion to $1.5 billion. The FY 2006 President's Budget
Request continues to maintain steady funding for the program.
The Agency is making significant progress in cleaning up Superfund
sites. Unlike in previous years where smaller, less costly sites were
targeted for cleanups, we are now addressing large and complex sites
that present unique clean-up challenges. Cleaning up these sites
requires a disproportionate share of Superfund money. I can assure you
however, that new projects that are not funded have been secured, often
have had prior cleanup work and pose no immediate threat. EPA will not
put communities at risk and will continue to protect human health and
the environment.
Question 9. As you know, there are many critically important
Superfund sites across America that are underfunded and not being
cleaned up. Yet families and communities are expecting their government
to keep its promise and remediate these areas. What efforts is the EPA
making to give notice to communities that their clean-ups are being
delayed due to underfunding?
Response. The Superfund program has the most extensive community
involvement process of any environmental statute including the
authority to award technical assistance grants to communities to help
them be active participants in the cleanup process.
EPA will continue to involve the community in every significant
Superfund program milestone from listing on the National Priorities
List (NPL) to choosing and constructing a remedy. I agree with you that
when EPA lists a site on the NPL and starts cleaning up a Superfund
site, the Agency has a commitment to finish the cleanup. EPA will keep
communities informed of a Superfund site's status and progress, whether
the cleanup milestone is performed earlier than anticipated or takes
longer than anticipated. History has taught us that community support
of a Superfund cleanup remedy is vital to the effectiveness of the
remedy.
Question 10. How many participants were recruited for the CHEERS
study? Please provide all information, including documents, on anyone
recruited for the study.
Response. On April 8, 2005, I cancelled the Children's Health
Environmental Exposure Research Study. Last fall, in light of questions
about the study design, I directed that all work on the study stop
immediately and requested an independent review. Since that time, many
misrepresentations about the study have been made. EPA senior
scientists have briefed me on the impact these misrepresentations have
had on the ability to proceed with the study.
I have concluded that the study cannot go forward, regardless of
the outcome of the independent review. EPA must conduct quality,
credible research in an atmosphere absent of gross misrepresentation
and controversy.
Please see the attached table for data on the number of
participants that were recruited for CHEERS. As is the norm, all files
(including personal information) are maintained by contractors and are
confidential.
Attachment
Contractor CHEERS Telephone Screening Summary
October 15 through November 5, 2004
------------------------------------------------------------------------
No. of Subjects Status
------------------------------------------------------------------------
114....................................... Total number of individuals
who said they would be
interested in the study
71........................................ Total number not yet
contacted when stop work
order was received.
43........................................ Total number contacted
31........................................ Completed Telephone
Screening
17........................................ Eligible-Completed Telephone
Screening
14........................................ Ineligible-Completed
Telephone Screening
12........................................ Unknown Eligibility (started
telephone screener-partial
complete)
------------------------------------------------------------------------
Home Screening Visit Summary
October 15 through November 5, 2004
------------------------------------------------------------------------
No. of Subjects Status
------------------------------------------------------------------------
33........................................ Home Screening Completed
14........................................ *In Progress
Contractor was in the
process of contacting
potential participants to
set up home screening visit
when stop work order was
received.
------------------------------------------------------------------------
Question 11. Please provide the names and offices of EPA personnel
involved in the development and implementation of the CHEERS study and
a detailed description of their role in the study program.
Response. Dr. Roy Fortmann, EPA/ORD, Principal Investigator and
alternate-Task Order Project Officer; Dr. Nicolle Tulve, EPA/ORD,
Principal Investigator and Task Order Project Officer; Dr. Suzanne
McMaster, EPA/ORD, co-Principal Investigator; Dr. Lisa Melnyk, EPA/ORD,
co-Principal Investigator.
The Task Order Project Officer directs the work of the contractor
who would actually implement the study in the field by collecting the
samples and survey information. The Alternate Task Order Project
Officer does this work in the absence of the Task Order Project
Officer.
The Principal Investigator (PI) is the lead person for design and
implementation of the study, including integrating the contributions of
the co-Principal Investigators (co-PIs). The PI will serve as the
technical expert in his/her particular area of expertise and will
synthesize the inputs of co-PIs so the overall effort is cohesive and
answers the questions/objectives of the study. In this case, two
people, Dr. Roy Fortmann and Dr. Nicolle Tulve, shared that
responsibility as a team. Dr. Fortmann's particular area of expertise
is human exposure assessment and exposure factors. Dr. Tulve's area of
expertise is multi-media pathways and exposure.
The co-Principal Investigators have responsibility for the
scientific merit of the study in their particular areas of expertise.
They work with the Principal Investigators to ensure that the
components of the study for which they are responsible are
scientifically sound and address the questions/objectives of the study
in their own areas. This study had four co-Principal Investigators. Dr.
McMaster's expertise is in neurotoxicology and assessment in infants
and children. Dr. Melnyk's expertise is in exposures through foods and
handling of foods.
The following individuals had responsibility for the review and
oversight of research. Because this took place over a 2.5 year period,
different individuals were in different positions throughout the course
of the study.
Dr. Linda Sheldon, EPA Office of Research and Development (ORD),
National Exposure Research Laboratory, Human Exposure and Atmospheric
Sciences Division (HEASD)--Associate Division Director for Science,
Acting Division Director; Dr. Jerry Blancato--Acting Division Director
(HEASD), Acting Associate Laboratory Director (NERL)--NERL's Human
Subjects Research Review Official in that capacity Dr. Larry Cupitt--
Associate Laboratory Directory (NERL)--NERL's Human Subjects Research
Review Official in that capacity; Dr. Gary Foley--NERL Laboratory
Directory; Dr. Peter Preuss--EPA's Human Subjects Research Review
Official.
Question 12. Please provide all information, including written
information, provided to potential participants in the CHEERS study,
including but not limited to information related to waivers of
liability.
Response. Potential participants were given a CHEERS study flyer
(attached) with contractor contact information and an EPA web site for
further information. Only 3 subjects completed the home screening
visit. No one actually was enrolled into the study. Therefore at most 3
potential study participants were given a Participant Consent form at
the time of the home screening visit. EPA's pesticide program's
educational material on the safe handling of pesticides around children
was to be given to all study participants. All participants were to be
educated on the safe handling of pesticides around children and given
contact information on using Integrated Pest Management practices in
lieu of pesticides. (Note: some of the materials are attached herewith;
the remainder will be hand-delivered).
Question 13. Please identify all pesticides or chemicals that were
to be considered in the CHEERS study. For each pesticide or chemical,
please provide a description of any data EPA has collected or is aware
of historically on the risks associated with that chemical and any
limitations or instructions on the use of those chemicals around
children.
Response. CHEERS was intended to be an observational study to
measure chemicals in the home environment. Thus, the CHEERS pesticides
and chemicals were a list of those that we proposed to measure in
environmental samples. This was not a list of the pesticides/chemicals
that participants would be required to apply or use. Sampling was
intended to measure concentrations that resulted from normal use
patterns. Participants were not expected to change their everyday
patterns of use (unless we observed that something harmful was being
done). All of the pesticides on the attached list are registered for
indoor use, thus we might have expected to find them in environmental
samples in the home. This is similar to approaches used by CDC and the
National Health and Nutrition Examination Survey (NHANES). They analyze
a large number of chemicals in blood and urine, but they are not
expecting that all individuals in the population will be exposed to all
of the pesticides on the attached list.
Attachment
----------------------------------------------------------------------------------------------------------------
Brominated
Flame
Pesticides Phthalates Retardant Perfluorinated Compounds
Congeners
----------------------------------------------------------------------------------------------------------------
Allethrin (cis/trans)................... Butyl benzyl phthalate..... 47 PFOS
Bifenthrin.............................. Dibutyl phthalate.......... 99 PFOA
Cyfluthrin.............................. Diethyl phthalate.......... 100 Me-FOSE-OH (2-(N-
methylperfluorooctanesulfon
ami
do)ethyl alcohol)
Cyhalothrin............................. Di(2-ethylhexyl) phthalate. 153 Et-FOSE-OH (-(N-
ethylperfluorooctanesulfona
mid
o)ethyl alcohol)
Cypermethrin............................ Diisononyl phthalate....... 154 ...........................
Deltamethrin............................ Diisodecyl phthalate....... 181 ...........................
Esfenvalerate........................... ........................... 183 ...........................
Fenpropathrin........................... ........................... 190 ...........................
Imiprothrin.............................
Permethrin (cis/trans)..................
Prallethrin.............................
Pyrethrin...............................
Resmethrin..............................
Sumithrin...............................
Tetramethrin............................
Tralomethrin............................
Chlorpyrifos............................
Diazinon................................
Piperonyl butoxide......................
Fipronil................................
DEET....................................
----------------------------------------------------------------------------------------------------------------
EPA has rigorous regulatory programs for both pesticides and
chemicals. All pesticides sold or distributed in the United States must
be registered by EPA, based on scientific studies showing that they can
be used without posing unreasonable risks to people or the environment.
The discussion in the attachment is the available EPA information on
risk of these pesticides and chemicals.
Attachment
Status of Pesticides in CHEERS.--The 21 pesticides included in
CHEERS have all been registered by EPA. Over half (11) also are subject
to reregistration because they were initially registered prior to
November 1984 and must be reevaluated to ensure that they meet current
scientific and regulatory standards.
<bullet> 10 of the CHEERS pesticides are new pesticide active
ingredients initially registered after November 1, 1984. These
pesticides were evaluated against current scientific and regulatory
standards and found to meet current requirements for registration. They
should not pose unreasonable risks to human health and the environment,
including risks to children, when used in accordance with their EPA-
approved label directions and precautions. Those pesticides are:
<bullet> Bifenthrin
<bullet> Cyfluthrin
<bullet> Cyhalothrin
<bullet> Deltamethrin
<bullet> Esfenvalerate
<bullet> Fenpropathrin
<bullet> Imiprothrin
<bullet> Prallethrin
<bullet> Tralomethrin
<bullet> Fipronil
<bullet> FIFRA as amended in 1996 provides for review of all
pesticides on a recommended 15 year cycle to make sure they continue to
meet current scientific and regulatory standards for registration.
These 10 pesticides and all other registered pesticides will be
reevaluated in the future through the Registration Review program. The
Agency expects to publish the final Registration Review rule in 2006,
with implementation starting in 2007.
11 CHEERS Pesticides Subject to Reregistration
<bullet> Eight pesticides subject to reregistration are currently
under review and decisions for these pesticides are scheduled to be
completed between now and the end of September 2008. These pesticides
and their anticipated RED completion dates are as follows:
<bullet> Allethrin - 2007
<bullet> Cypermethrin - 2006
<bullet> Permethrin - 2006
<bullet> Pyrethrin - 2006
<bullet> Resmethrin - 2006
<bullet> Sumithrin - 2008
<bullet> Tetramethrin - 2008
<bullet> Piperonyl butoxide - 2006
<bullet> Three of the pesticides subject to reregistration have
completed reregistration, they include: chlorpyrifos, diazinon, and
DEET. See summaries below.
Diazinon and Chlorpyrifos. EPA completed its review of residential
uses of chloripyrifos and diazinon in 2000. Both compounds had
extensive homeowner and residential uses which could potentially expose
children. After reviewing the toxicology databases for both of these
organophosphorus compounds, the Agency found that there was a potential
for adverse exposures to children through uses in and around the home.
Virtually all residential uses of chloripyrifos were cancelled, with a
retail stop sale date of December 2001. All residential uses of
diazinon were cancelled, with a phase-out ending all retail sales of
indoor products by December 2002 and retail sales of outdoor
residential products by December 2004.
Although residential use of these two pesticides were cancelled in
2002 and homeowners do not report applications, we still detect
measurable concentrations in samples taken from nearly all homes. These
pesticides are also routinely measured in dietary samples. Thus, the
Agency felt it was important to document their continued prevalence in
environments where children spend time.
DEET. EPA completed the DEET reregistration in 1998. The Agency has
carefully considered whether DEET's use has been implicated in seizures
among children. The Agency believes that the incident data are
insufficient to establish DEET as the cause of the reported effects.
However, because of DEET's unusual use pattern (direct application to
human skin and clothing) and its association with seizure incidents,
the Agency believed it was prudent to require clear, common sense use
directions and improved label warnings and restrictions on all DEET
product labels. These label changes have been implemented.
PolyBrominatedDiPhenylEthers (Brominated Flame Retardants):
To supplement a voluntary phase-out of two common flame retardant
chemicals scheduled for the end of this year, EPA is taking action to
ensure that no new manufacture or import of two flame retardant
chemicals occurs after January 1, 2005, without first being subject to
Agency review. The two chemicals, Penta and Octa are part of a chemical
group called polybrominated diphenyl ethers, or PBDEs, and have been
used as flame retardants in commercial products such as furniture foam
and structural plastics in small electronic appliances and computers.
This action follows a November 3, 2003 announcement by the Great
Lakes Chemical Corporation, the only U.S. manufacturer Penta and Octa,
who agreed to voluntarily phase-out production of these chemicals by
December 31, 2004. This regulatory procedure by EPA, known as a
Significant New Use Rule, will ensure that prior to any manufacture or
import of these chemicals, EPA will have 90 days to evaluate potential
risks, and can prohibit or limit any new use or activity that may pose
a concern. EPA is concerned that manufacturing could be restarted in
the future, and this action provides EPA the opportunity to evaluate
and control future uses associated with both Penta and Octa.
Phasing out these two chemicals, while spurring the development of
safer alternatives, without compromising the benefits derived from
flame retardant use, are priorities for EPA and various stakeholders.
To promote these goals and to explore the safety of alternative flame
retardant chemicals, EPA has convened a group of stakeholders in its
Furniture Flame Retardancy Partnership, that includes chemical
manufacturers, the furniture industry, government agencies, and
consumer groups
PFOA/PFOS:
PFOA is a persistent chemical causing systemic and developmental
toxicity in animal studies and has a half-life in humans measured in
years. In April 2003, EPA released a preliminary risk assessment for
PFOA, and started a public process to identify and generate additional
information needed to strengthen the risk assessment. In February 2005,
the Agency presented a draft preliminary risk assessment to the SAB for
review to ensure that innovative approaches being used in the
development of the risk assessment are scientifically sound. Comments
from the SAB should be provided to the Agency this summer. The Agency
has an aggressive effort underway to better understand the potential
risks that this essential ingredient used in the manufacture of a wide
range of non-stick surfaces may pose to the public. EPA is actively
engaged in a formal process with industry and other stakeholders which
is resulting in voluntary commitments to test PFOA and routes of human
exposure. These efforts will assist the Agency in determining, if
necessary, appropriate risk management actions.
Question 14. Please provide a description of previous studies done
on the chemicals or pesticides involved in the CHEERS study, including
any studies on increased incidence of cancer or other illnesses in
children exposed to these pesticides or chemicals.
Response. Several observational studies that measured pesticides
and other chemicals in homes have been conducted or planned. These
include the National Human Exposure Assessment Survey (NHEXAS) program,
the Jacksonville 2001 study, and several EPA STAR grants. CDC has
measured metabolites of some of the chemicals in blood and urine as
part of the National Health and Nutrition Examination Survey (NHANES).
The National Children's Study, which is in the planning stage, is a
large epidemiological study that is intended to evaluate health effects
of chemicals in children. In addition, see above response to Question
No. 4.
Question 15. Please provide all documents and information related
to the agreement between EPA and the American Chemistry Council on
funding for the CHEERS study. Please summarized and explain any
limitations or conditions imposed by the American Chemistry Council on
information related to the study, including data.
Response. The documents related to the Cooperative Research and
Development Agreement (CRADA) between the American Chemistry Council
(ACC) and EPA on the CHEERS study are attached, along with a brief
summary of what is in each document. The ACC did not impose any
limitations or conditions on information related to the study. The
ACC's support came with no strings attached. The provision in the CRADA
that allowed the ACC 45 days to review and provide suggestions on any
publication of data is a standard provision of all EPA CRADAs. It does
not allow ACC to prevent the EPA from publishing results nor does it
give the ACC any right to require revisions to a publication. Likewise,
the provision that EPA acknowledge ACC as a contributor in any
publications related to the study involves a simple factual statement,
and does not allow the ACC to influence the content of any such
publications. As is the norm, EPA would acknowledge the ACC as a
contributor regardless of the provision.
Question 16. Please indicate what human testing studies have been
considered by EPA in the case by case review process for such data now
in place at EPA, including detailed summaries of those studies. Please
indicate whether payment of subjects or ingestion of pesticides or
chemicals by subjects was involved in those cases. Please also indicate
whether minors were involved in any of those studies.
Response. Over the years, scientific research with human subjects
has provided much valuable information to help characterize and control
risks to public health, but its use has also raised particular ethical
concerns for the welfare of the human participants in such research, as
well as scientific issues related to the role of such research in
assessing risks.
To address these concerns, EPA and 17 federal agencies promulgated
the ``Common Rule'' to ensure that research done by, or funded by,
federal agencies meet the highest ethical standards. As a result, we
have procedures in place whereby all EPA research that involves human
subjects must have the protocol, consent forms, compensation, etc.,
approved by an Institutional Review Board, and that approval, as well
as the basic documents, are reviewed and approved by the EPA Human
Subjects Research Review Official (HSRRO).
Since 2000, the EPA HSRRO has approved 236 research studies
involving human subjects. These studies have been captured on summary
sheets which are attached, along with an abstract or description of the
study.
Third-Party Human Research
A small amount of the scientific information has been submitted to
EPA that is generated by researchers who are not part of or supported
by a federal agency. The Agency refers to such research as ``third-
party'' research.
From 2001 to May 2003, EPA policy and practice was not to use in
its risk assessments or regulatory decisions data from third-party
research involving intentional dosing of human subjects for the purpose
of identifying or quantifying a toxic effect. On February 8, 2005, EPA
published a Federal Register notice seeking public input on ways to
strengthen protections for participants involved with human subjects
research submitted to EPA. This notice discussed the initiatives the
Agency will undertake to develop a comprehensive plan for the review
and consideration of studies involving human subjects. A major part of
this effort will be to evaluate and adopt, as appropriate, the
recommendations from the NAS on human testing. EPA is seeking comment
on its future plans, which include rule making processes, public
engagement, and developing additional policy guidance as needed. In
addition, the notice described EPA's current case-by-case approach for
evaluating third-party human studies.
Consistent with the court decision in the Crop Life America case
however, EPA has used the results of such studies in a few, limited
cases. These are described more fully below.
Perchlorate.--Early this year, EPA released its risk assessment for
perchlorate, a naturally occurring and man-made chemical that is
increasingly being discovered in soil and water. Most of the
perchlorate manufactured in the United States is used as the primary
ingredient of solid rocket propellant. One of the key studies for the
risk assessment was conducted by Greer, et al in 2002. In this study,
37 adult male and female volunteers received a radio-labeled, oral dose
of perchlorate for 14 days. The researchers measured thyroid uptake to
evaluate the effect of perchlorate on thyroid function. EPA based its
decision to rely on the Greer et al. (2002) study on the recommendation
of the National Academy of Sciences (NRC, 2005), and note that this
study had been undertaken at an institution conforming with the Common
Rule on the protection of human subjects. A summary of EPA's risk
assessment for perchlorate, including additional information on the
scientific and ethical attributes of the Greer study, may be found at:
http://www.epa.gov/iris/subst/1007.htm
Acute Exposure Guideline Levels (AEGLs).--AEGLs, are non-regulatory
values developed by EPA and the National Academy of Sciences to
describe the risk to humans resulting from once-in-a-lifetime, or rare,
exposure to airborne chemicals. They are particularly valuable for use
by first responders in emergency situations. More information on the
AEGLs program is available at: http://www.epa.gov/oppt/aegl. In
addition, EPA will be glad to provide all copies of the scientific
studies used by the Agency in developing interim AEGLs, which were
discussed at its December 2004 meeting.
Hexavalent chromium.--In May 2004, EPA asked its independent expert
peer review group, the Scientific Advisory Panel (SAP), for advice on
assessing the potential of hexavalent chromium. This pesticide is
pending regulatory approval to greatly expand its use as a wood
preservative in residential settings. There are concerns that
hexavalent chromium can cause acute contact dermatitis and can elicit
allergic responses through contact with skin. EPA presented the results
of several third-party human studies to the SAP for their
consideration. Additional information on these studies is available in
EPA's risk assessment, along with the SAP's report on that meeting, at:
http://www.epa.gov/scipoly/sap/2004/index.htm
In addition to the risk assessments discussed above, and consistent
with the direction from the CropLife American litigation, EPA is
currently considering through its reregistration program a number of
pesticides for which intentional, third party dosing human studies have
been submitted to the Agency. Before any regulatory decisions are
finalized or based on these third party human studies, the Agency
intends to make its scientific and ethical evaluations of these studies
available to the public as part of the public participation process for
the reregistration of pesticides. Under the public participation
process, EPA releases a preliminary risk assessment on an active
ingredient and takes public comment. After considering public input,
the Agency revises its risk assessment and again takes public comment.
The Agency would be pleased to provide copies of these studies.
______
Response of Stephen L. Johnson to Additional Question from
Senator Carper
Question. The Environmental Protection Agency has received a number
of information requests from members of this committee. Specifically,
Senator Jeffords has outstanding requests dating back as far as
December 14, 2001. At the committee hearing Wednesday, you were asked
whether you intended to respond to Senator Carper's request to provide
additional analyses of his and Senator Jeffords' clean air bills. From
your testimony, it would seem you'd prefer to respond to a bipartisan
request from the committee rather than to a request from an individual
senator. On March 4, 2004, Senator Inhofe and Senator Jeffords sent a
letter to then-Administrator Leavitt (Letter Attached). That letter
states that EPA should respond to requests from either Senator Inhofe
or Senator Jeffords, and I would assert other Senators as well. Please
delineate EPA's process for determining which Congressional requests it
chooses to respond to, and whether you agree with the position of
Senators Inhofe and Jeffords.
Response. Senator Carper, the Agency does its best to provide
information and technical assistance to any Member of Congress who may
request such assistance, consistent with the Agency's obligations under
existing laws and policies. My responses to your questions at the
confirmation hearing on April 6th were based on the request in your
March 3, 2005, letter to me in which you requested EPA to ``provide a
common platform of analytical information for all of the multipollutant
proposals and any compromise bill language that may come out of
negotiations.'' You have described to me several times that you would
like a format that would allow an ``apples-to-apples'' comparison of
various proposals. To provide such a format, I believe it is necessary
and appropriate to consult with the authors of the other major
mulitpollutant proposals to agree on the parameters of EPA's analysis
and a discussion of whether and how certain provisions should be
analyzed. Without such an agreement, I do not believe any resulting
analysis would meet your objective of allowing an ``apples-to-apples''
comparison of the various proposals. I am encouraged by our recent
conversations and look forward to working with you to meet your request
for information.
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Clinton
Question 1. During our meeting earlier this week, I handed you a
letter which discussed three specific topics and asked questions. I
would appreciate if you answer those questions as part of this record,
and I have inserted the text of that letter at the end of these
questions for your reference. However, I wanted to clarify my question
about the acid rain report in light of our discussion on Tuesday. As
you know, I am extremely frustrated with the fact that the
Administration has not yet produced an acid rain report as required by
section 103(j) of the Clean Air Act. During the meeting, you indicated
that one reason for delay in finalizing the report is that the impact
of recent agency decisions had not been factored into the report, and
that doing so could result in lengthy, additional delays. However, the
Clean Air Act simply requires the report to Congress to describe acid
deposition trends and the reduction in deposition rates that must be
achieved in order to prevent adverse ecological effects. While it would
be useful to understand the relationship between recently enacted
policies, it is not a requirement of the law, and not a reason for
further delay in providing the report to Congress. Therefore, I
reiterate the request in my April 5, letter, and urge you to supply the
draft report immediately and the final report as soon as possible.
Response. Acid Rain--EPA is concerned with the impact of acid
deposition on sensitive lakes, streams, and forests in New York State
and throughout the northeast. Passage of the 1990 Clean Air Act
Amendments was an important step in addressing these impacts.
Implementation of the Acid Deposition Control Program has resulted in
reductions in acid rain and encouraging signs of ecological recovery,
particularly in Adirondack Mountain lakes. As you observe, however, our
work is unfinished. Many in the scientific community, including
scientists consulted by the Hubbard Brook Research Foundation, maintain
that additional reductions in sulfur and nitrogen deposition are
necessary for further ecological recovery.
In March, EPA finalized the Clean Air Interstate Rule requiring
significant further reductions in emissions of sulfur dioxide
(S0<INF>2</INF>) and nitrogen oxides (NOx). These reductions will act
to further improve the health of forests, lakes, and streams in New
York State and the region. Other recent federal rules and state actions
will also cause SO<INF>2</INF> and NOx emissions to decline. Since
section 103(j) requires, in part, a review of deposition and ecological
effects occurring as a result of such emissions, it is prudent to add
information to the Report that would provide Congress with the most up-
to-date information which is available concerning such emissions.
As you know, the NAPAP report that you are concerned about is
required by section 103(j) of the Clean Air Act. This section
established an Acid Precipitation Task Force consisting of EPA, DOE,
DOI, NOAA, NASA and additional members appointed by the President. In
1993, President Clinton promulgated Executive Order 12811 which created
the National Science and Technology Council. This council, through its
Committee on Environment and Natural Resources (CENR), is the body that
currently coordinates federal acid rain research and monitoring and the
organization that oversees the production of the NAPAP report. Although
EPA participates in the Acid Precipitation Task Force, we do not chair
the group. For draft copies of the report, please contact CENR.
The NAPAP report is still undergoing interagency review. You have
my assurance that I will devote the necessary resources at EPA to this
process. I will also work with the interagency process to provide any
necessary information and analysis as well as to assist the issuance of
a final report. I am confident that CENR will release the report in May
or June.
Mercury--To understand our approach to reducing mercury from the
power sector, it is critical to understand that Americans are exposed
to methylmercury through the fish we eat. EPA continues to recognize
that fish and shellfish are part of a well-balanced diet that can
contribute to heart health and children's proper growth and
development. The best way for women of childbearing age, pregnant and
nursing mothers, and young children to realize the benefits of eating
fish and shellfish and be confident that they have reduced their
exposure to the harmful effects of mercury is to follow the EPA-FDA
Fish Advisory issued last year. The CAMR reduction of emissions from
U.S. power plants may affect local freshwater ecosystems, but will not
significantly reduce concentrations in most marine fish. The importance
of this point cannot be understated because the vast majority of fish
and shellfish Americans consume come from ocean waters, and only a
small portion of fish and shellfish consumed are freshwater
recreationally caught fish. To imply that there is a quick fix to the
mercury problem in the U.S. would be misleading.
The CAMR represents the first time that the federal government, or
any nation, has regulated mercury emissions from the fleet of power
plants. I am very proud of this fact. The CAMR rulemaking process was
one of the most rigorous and thorough in EPA's history. This level of
rigor was appropriate given the importance of the decision and the
great deal of public interest in the issue.
As part of our analysis for CAMR, we looked at the possibility of
``utility hotspots''--areas with methylmercury concentrations in fish
due solely to power plants that exceed the methylmercury water quality
criterion. Many lakes and rivers across the country, including in New
York, unfortunately do have levels of mercury such that states issue
fish advisories. It is important to understand that most of that
mercury in fish across the country comes from sources other than U.S.
power plants and therefore cannot possibly be addressed through this
rulemaking. You refer to regions in your state as ``hotspots'' but they
are likely not ``utility hotspots.''
The final CAMR that I signed dovetails with CAIR and, combined,
provide for a flexible, multipollutant approach to reducing
SO<INF>2</INF>, NOx, and mercury from the power sector. We determined
that this multipollutant approach provides significant public health
benefits by creating strong incentives for the installation of a large
number of scrubbers and SCRs that will reduce SO<INF>2</INF> and NOx,
respectively, and will also reduce mercury emissions, particularly the
types of mercury that matter most for reducing U.S. deposition. By
2015, the benefits of CAIR and CAMR are $85 billion to $100 billion
annually. As a point of comparison, complete elimination of mercury
emissions from power plants would not generate benefits anywhere near
this large, even if doing so were technically possible.
In the Clean Air Act (CAA), Congress directed EPA to treat
utilities differently than other industrial sources. CAA section 112
says that EPA can regulate utilities under that section only if EPA
finds that such regulation is ``appropriate and necessary'' after
considering implementation of other requirements of the Act. In the
final CAMR, EPA concluded that it is not ``appropriate or necessary''
to regulate utility HAP emissions under Clean Air Act section 112 since
utility HAP emissions remaining after implementation of other measures
of the Act (e.g., the acid rain and recently promulgated CAIR programs)
such emissions do not cause hazards to public health. Because EPA found
that it is not appropriate or necessary to regulate utilities under
section 112, it did not issue MACT standards.
Under the CAIR/CAMR approach, the flexibility of allowance trading
creates strong financial incentives for coal-fired power plants to look
for new and low-cost ways to reduce emissions and improve the
effectiveness of pollution control equipment starting in 2010, much
sooner than you suggest. The mandatory declining caps coupled with
significant automatic penalties ensure that emissions will be reduced
down to 15 tons when fully implemented. We fully expect that other
countries will be more likely to follow the U.S. lead and take action
to reduce mercury emissions from power plants if control technologies
are more cost effective. Given that international action is essential
for addressing the global pool of mercury, this is a very important
benefit of a cap-and-trade approach compared to a MACT approach.
I believe the CAMR rule is valid--legally, scientifically, and as a
matter of policy. As we said in the preamble to the final rule, if
future information demonstrates that additional control is warranted,
EPA is committed to reopening and reevaluating the CAMR standards.
WTC--As you know, the World Trade Center (WTC) Expert Technical
Review Panel has met nine times in open meetings in New York City since
March 2004 to interact with EPA and the public on plans to monitor for
the presence of residual WTC dust in indoor environments and suggest
additional analyses that could be undertaken by EPA and others to
evaluate the current level and the geographic extent of WTC
contamination.
EPA's draft proposed sampling plan reflects input from individual
panel members and the public, including the WTC community and labor
coalition. The current proposal is to determine the presence of and
evaluate the levels of contaminants of potential concern in lower
Manhattan buildings, and also to measure for particular contaminants
that could be markers for WTC dust. A formal comment period on the
draft sampling plan closed on January 18, 2005. EPA is currently
revising the draft proposal considering all comments received and will
produce a final draft plan for discussion at the next panel meeting
which we plan to hold in May (subject to panel members availability).
It is our intention to make the revised final draft sampling plan
publicly available two weeks prior to the panel meeting.
We are committed to do some sampling in Brooklyn, but the exact
boundary is still being discussed. We are evaluating existing WTC-
related information and evidence to determine the specific area of
Brooklyn we would sample.
Question 2. As you know, in 2002 the wood treatment industry
responded to the tremendous public concern about children's exposure to
wooden playgrounds, picnic tables, and backyard decks treated with
arsenic and hexavalent chromium, by agreeing to voluntarily phase out
the production of the wood preservative Chromated Copper Arsenate (CCA)
for residential uses.
I understand you played an instrumental role in helping to
facilitate this voluntary phase-out, which took effect at the end of
2003. I applaud you and the EPA for helping to affect this change,
which your Agency called ``one of the most dramatic pollution
prevention advancements in history.'' In addition to virtually
eliminating the use of arsenic in the United States, this phase-out
helped to eliminate the use of 64 million pounds of hexavalent chromium
a year, according to EPA's Green Chemistry Awards Program, which
awarded the Presidential Green Chemistry award to an alternative
product containing no arsenic and no hexavalent chromium.
This is why I am extremely concerned that the EPA has failed to
take action to deny pending applications to register the wood treatment
chemical Acid Copper Chromate (ACC). EPA approval of ACC would
reintroduce as much as 100 million pounds a year of the human
carcinogen, hexavalent chromium, back into the consumer marketplace.
Exposure to Hexavalent chromium is also known to cause such human
health problems as kidney and liver damage, birth defects, and skin
ulcers. In addition, this chemical has caused drinking water
contamination, worker illness, as well as soil and air degradation.
I and many others believe that approving new ACC registrations
would be a step backwards for the EPA and the wood treatment industry
in the U.S. It would lead to the introduction of this hexavalent
chromium-based product to the U.S. market where it is currently not in
use. It would unnecessarily introduce a known human carcinogen into a
widely used consumer product. It would create unnecessary exposure to
hexavalent chromium among producers and consumers of preservatives and
treated wood. And it would undermine the great progress the EPA and the
wood treatment industry are poised to make as the industry transitions
to a new, safer generation of wood preservatives.
As you know, EPA has the authority under FIFRA (the nation's
pesticide safety law) to deny the registration for ACC due to
insufficient data on the safety of the chemical. Why it has taken EPA
so long to deny the registration applications for ACC, which presents
clear threats to public health and the environment?
Response. EPA's action on the pending ACC application is dependent
on two critical pieces of data that have not yet been submitted by the
registrant to EPA. As described more completely below, EPA is concerned
about potential dermal exposures to hexavalent chromium from treatment
of wood with the ACC treatment solution. Hexavalent chromium as surface
residue on treated wood may cause sensitization in humans contacting
the wood in residential settings. Moreover, these surface residues have
the potential to persist as the conversion to the less toxic trivalent
chromium species is temperature-dependent.
To address the outstanding concerns, the Agency has taken several
steps. The Agency presented its scientific issues regarding dermal
sensitization to its Scientific Advisory Panel (SAP) in May 2004. Among
other recommendations in its July 2004 report, the SAP noted that
exposure information was important to determine potential risks
associated with contact to treated wood surfaces. Specifically, the SAP
stated: ``It is not important how much of a chemical is in the matrix
but how much is leached out of it and available for exposure.''
In response to the report, the Office of Pesticide Programs has
analyzed the recommendations, presented its analysis to the Agency's
Science Policy Council (SPC), and based on recommendations from both
the SAP and SPC, revised its level of concern for hexavalent chromium
in ACC-treated wood. We are now waiting for two critical studies that
the Agency required of the registrant in a letter sent January 2004.
One of these studies will provide information that specifically
addresses the level of hexavalent chromium on the surface of ACC-
treated wood, and the other study is to determine levels of exposure to
workers at wood treatment facilities. Once these data are submitted,
the Agency will be in a position to make a determination as to whether
there is a risk of dermal sensitization from exposure to hexavalent
chromium resulting from contact to treated wood.
In addition, an extensive study of the cancer risks posed by oral
ingestion of hexavalent chromium is underway by the National Toxicology
Program (NTP) and we expect those results in May 2005. Upon receiving
this study and the two studies requested of the registrant noted above,
the Agency will be able to determine whether the law's ``reasonable
certainty of no harm'' safety standard, including infants and
children's exposures, can be met, and thus, make its registration
decision.
Question 3. Mr. Johnson, you served as head of the Director of the
Office of Pesticide Programs, which is charged by federal laws with
ensuring that pesticides are used in a manner that does not pose a risk
to human health. In particular, the laws require EPA to account for the
special susceptibility of infants and children to the toxic effects of
the many pesticides they are exposed to. Unfortunately, there have been
claims that EPA's decisions in the area of pesticide regulation too
often erred on the side of the interests of the pesticide manufacturing
and application industries, instead of the health and safety of our
nation's children. For example, in 2001, EPA reversed a decision to
require manufacturers of rat poison to include bittering agents that
would help prevent childhood poisonings, based only on the
recommendations of pesticide applicators. Similarly, EPA faced charges
that it had failed to apply a special statutory tenfold safety factor
to protect infants and children from pesticides in their food. In
making these decisions, EPA relies almost exclusively on data provided
by the pesticide manufacturers whose only motive is to sell more of
their products. Can you give any assurance that as Administrator you
will give more weight to the laws' presumptions in favor of protecting
human health, particularly children's health?
Response. I am committed to ensuring that the laws administered by
EPA are implemented and enforced in a manner that protects human
health, particularly children. EPA's decisions during my years with the
Office of Pesticide Programs have brought significant new safeguards
for pesticide use and we are already seeing the results. Pesticide
poisonings of children by chlorpyrifos have fallen dramatically, and
residues in children's food from a number of pesticides have declined.
Regarding the regulation of rodenticides, in 1999, EPA formed the
Rodenticide Stakeholders Workgroup as a subcommittee under the
federally-chartered advisory body, the Pesticide Program Dialogue
Committee (PPDC), to consider, among other things, the risks to
children of accidental exposure to rodenticides and potential measures
to reduce such exposures. This workgroup included representatives from
the EPA, CDC, USDA, State officials, the medical community, public
interest groups, the pesticide industry, and members of the general
public. The workgroup fully considered the possibility of requiring
bittering agents in rodenticide products as it reviewed information
presented by a broad range of interested and affected parties. The
workgroup ultimately recommended against the requirement of bittering
agents due to the potential for adverse effects on the efficacy of
rodenticide products. This recommendation reflected their recognition
of the significant public health risks posed by rodents, and the widely
held concerns that requiring all products to contain bittering agents
could hinder efforts to control rodent populations in certain
circumstances. EPA adopted the workgroup's recommendations, and in
November 2001 issued a Federal Register notice announcing its decision
to rescind the bittering agent requirement. While EPA does not
currently require bittering agents in all rodenticide products, the
Agency encourages rodenticide manufacturers to incorporate them
voluntarily in certain products. In fact, many of the rodenticide
products on the market today do contain bittering agents. Finally, we
are still in the process of completing our reevaluation of the
rodenticides, and we will continue to monitor all available information
on childhood poisonings. As we bring our review to closure, we will
make sure that appropriate risk mitigation measures are put into place
to ensure the safety of children.
Regarding protecting children under the Food Quality Protection
Act, when establishing or reviewing tolerances under the Federal Food
Drug, and Cosmetic Act, the EPA is required to apply an additional
tenfold safety factor to protect infants and children, unless the
Agency can find on the basis of reliable data that another safety
factor will adequately protect infants and children. In order to ensure
that the Agency implemented this critical provision, EPA used a very
public process to develop guidance explaining how such decisions should
be made. In addition to seeking public comment, the Agency sought
advice from its independent expert scientific peer review body, the
FIFRA Scientific Advisory Panel, on several occasions. Generally, the
guidance calls for EPA to review the extensive database available on
each pesticide and to retain the additional tenfold safety factor
unless we have a sound scientific database to support a change.
Following this guidance, EPA has made several hundred chemical-
specific determinations under this provision. Each of these decisions
is fully documented in reviews that are available to the public as part
of the Agency's public participation process. For just over half of the
pesticides, EPA concluded that the additional tenfold factor is not
necessary and therefore may be removed. For the balance of the
pesticides, EPA has retained some additional safety factor, in some
case the statutory tenfold factor, and in other cases factors ranging
from 3 to 30. We believe that examination of the individual chemical
decisions about safety factors will demonstrate that EPA's conclusions
are based on scientific assessments.
Question 4. Documents submitted into the record by pollution
control equipment manufacturers stated that 70-90 percent mercury
control from coal-burning power plants can be guaranteed by vendors and
bought by power plants today, yet EPA has made the case that control
technologies for mercury aren't yet ``commercially available''. Why did
EPA not rely on the most recent information about commercial
availability and capability of mercury pollution controls for coal-
burning power plants?
Response. EPA is optimistic that some, if not all, of the mercury
control technologies currently being tested will be ready for
commercial-scale deployment across the fleet of coal-fired power plants
after 2010. The high degree of variability in the test results to date,
combined with the inability to adequately assess balance of plant
issues (i.e., what happens over long periods of time when using these
advanced mercury removal technologies) led the Agency to determine that
mercury-specific control technologies were not available for fleet-wide
deployment in the 2008-2010 timeframe. As outlined in the final CAMR,
EPA believes these technologies will become available after 2010, and
that they will play a significant role in reducing mercury emissions
well below the anticipated co-benefits levels dictated by the CAIR
alone.
Results from the DOE's mercury Phase I Testing Program are outlined
in EPA's Office of Research and Development (ORD) updated White Paper
(March 2005) on mercury control technologies which can be found in the
CAMR docket. In these projects, mercury-specific technologies were
tested at different coal-fired power plants, representing both
different coal types and varying air pollution control device
configurations. The results from these studies, along with other
information, were used to form the basis of the ORD assessment of
technology. Given the promising results from the Phase I experiments,
the DOE embarked on a longer-term Phase II program, which is currently
underway, to better understand the impact of these mercury-specific
control systems on different coal types (e.g., subbituminous and
lignite coals) over longer periods of time. The final results from
these studies will not be available before 2008-2009.
The multipollutant approach of CAIR and CAMR provides public health
benefits by focusing first on reducing SO<INF>2</INF> and NOx while
providing strong incentives for the further development and
installation of mercury-specific technologies starting in 2010, well in
advance of 2018. We expect that this approach will lead to the
development of less costly technologies for reducing mercury emission
from this sector.
Question 5. Does EPA plan to address the fact that, under the ``cap
and trade'' approach, the maximum control level of 70 percent
reduction--nominally due by 2018--will not be achieved until 2025 at
the earliest? How can EPA say that cap and trade is the best approach
to reduce mercury emissions from coal-fired power plants without ever
analyzing the benefits of a MACT approach, required by the Clean Air
Act? Why is a MACT approach, as required by the Clean Air Act,
appropriate for all other industrial sources of mercury emissions, but
not coal-fired power plants?
Response. Although the second phase will be initially higher than
the caps that are required under CAMR, it is important to note that
under a cap-and-trade program emissions are capped permanently and the
first phase achieves early reductions of mercury because of the banking
of excess emission reductions. Under a cap-and-trade approach,
emissions reductions are achieved cost-effectively by offering sources
more compliance flexibility, including the ability to buy allowances
and these reductions tend to occur at the largest emitters because
those emitters can achieve the most cost-effective reductions. In
addition, compared to a MACT approach, the ability to bank and sell
allowances under a cap-and-trade approach creates a more continuous
incentive for the development of new mercury control technology.
In the Clean Air Act (CAA), Congress directed EPA to treat
utilities differently than other industrial sources. CAA section 112
says that EPA can regulate utilities under that section only if EPA
finds that such regulation is ``appropriate and necessary'' after
considering implementation of other requirements of the Act. In the
final CAMR, EPA concluded that it is not ``appropriate or necessary''
to regulate utility HAP emissions under Clean Air Act section 112 since
utility HAP emissions remaining after implementation of other measures
of the Act (e.g., the acid rain and recently promulgated CAIR programs)
do not cause hazards to public health.
Question 6. As you know, EPA has responsibility to protect the most
sensitive populations. Historically, EPA has taken into account impacts
on sensitive populations in issuing its regulations. Why, in releasing
the mercury rule, did EPA focus on the average American and not those
populations most vulnerable to mercury poisoning, such as women of
childbearing age, young children, Native Americans, and subsistence
fishermen?
Response. The focus of our rule was on sensitive populations--women
of childbearing age and the developing fetus. It should be noted that
EPA's reference dose for methylmercury is based on protecting the most
sensitive population: women of childbearing age. We looked at highly
exposed groups including certain Native American tribes and subsistence
fishermen families. This is explained in detail in the Regulatory
Impact Analysis and in other documents supporting the final CAMR and
the revision of the 2000 regulatory finding.
Question 7. As of December 1, 2004, EPA had closed 128 of the Title
VI complaints it had received. Most were rejected for jurisdictional
deficiencies. Of the 30 complaints accepted for investigation, none
resulted in a finding of violation. Although some of the complaints
investigated were filed by individuals with limited legal experience,
others were filed by Congressional representatives or by public
interest organizations specializing in environmental justice issues and
who could be expected to recognize violations of Title VI and its
regulations. Other agencies, such as the Department of Education, have
routinely found in the complainant's favor and negotiated changes in
recipient behavior or policies. How do you explain the EPA's record of
finding no violations of Title VI or its implementing regulations in
more than 10 years of investigating such complaints? Given that other
agencies have found Title VI violations in their investigations, could
EPA's investigation or review standards be responsible, in part, for
the fact that even those cases of disparate impact that are most
obvious to the casual observer are incredibly difficult, if not
impossible, to substantiate?
Response. The goal of EPA's Office of Civil Rights External
Compliance Program is to ensure that recipients of EPA assistance
comply with the relevant nondiscrimination requirements under federal
law. EPA has worked diligently to bring apparent noncompliant recipient
agencies into compliance. EPA's regulations require EPA to attempt
informal resolution whenever possible. The term ``informal resolution''
refers to any settlement of complaint allegations prior to the issuance
of a formal finding of noncompliance. While EPA has never made a
finding of noncompliance, EPA has informally resolved allegations from
7 Title VI complaints with recipient agencies to improve their policies
and procedures. Two other complaints were informally resolved by the
complainant and recipient, without EPA involvement. EPA is currently in
the process of formalizing another settlement agreement that will
address concerns raised in 3 separate Title VI complaints. EPA's focus
on bringing recipient agencies into compliance benefits the public by
ensuring service is provided in a nondiscriminatory manner.
Question 8. In the majority of cases actually investigated by EPA
and dismissed on the merits, EPA found that the challenged decisions or
projects would not cause an adverse impact. In many of these cases,
that decision was predicated on compliance with National Ambient Air
Quality Standards (NAAQS) or other environmental laws. However, EPA has
stated in its Revised Draft Guidance on Investigating Title VI
Complaints that compliance with environmental standards alone does not
guarantee compliance with Title VI and, in fact, studies have found
adverse health impacts from exposure to some pollutants (i.e.,
particulate matter) at levels below the NAAQS. (See, e.g., Jonathan
Samet et al., Fine Particulate Air Pollution and Mortality in 20 U.S.
Cities, 1987-1994, 343 New Eng. J. Med. 1742 (2000).) In light of these
facts, how does EPA make a determination that compliance with NAAQS or
other environmental standards will, in fact, prevent any adverse
impacts?
Response. OCR relies, to some extent, on existing environmental
standards when assessing Title VI complaints. As you noted, the NAAQS
is one example of such a standard. OCR has stated that air quality in
areas attaining the NAAQS ``is presumptively protective of public
health in the general population.'' Draft Revised Guidance for
Investigating Title VI Administrative Complaints Challenging Permits
(Draft Revised Investigation Guidance), 65 Fed. Reg. 39,680 (2000)
(emphasis added). In other words, while the NAAQS provides an important
benchmark in determining whether adversity exists, attainment of the
NAAQS merely establishes a rebuttable presumption of no adversity. OCR
does not believe it would be appropriate to wholly rely on the NAAQS
both because of the inherent limitations of the NAAQS, such as those
you mention, and because an environmental standard may not adequately
analyze adversity in the civil rights context. Examples of the latter
circumstance include whether the environmental standard encompasses the
same sources relevant to a civil rights analysis and whether the
environmental standard focuses on potentially unique characteristics of
the affected population in a civil rights complaint.
Question 9. In the case of the Midland Avenue complaint, EPA
resolved the matter in a relatively short period--less than one year.
Many other complaints remain unresolved after five years or more. In
fact, the first complaint ever to be filed with the EPA--the St.
Francis Prayer Center complaint regarding the Genesee Power Station
(submitted to EPA in 1992; recognized by EPA in July 1994 and accepted
for investigation in January 1995) remains unresolved, according to
EPA's own website. How does the EPA plan to address this backlog of
complaints and ensure that new complaints are handled in a timely
fashion?
Response. In 2004, EPA increased staff by 75 percent to provide
sufficient support to its External Compliance Program. While EPA is
working diligently to complete work on all old cases, the Midland
Avenue complaint is an example of OCR's efforts to handle new
complaints as expeditiously as possible.
EPA has also focused on educating recipient agencies to help reduce
situations that could result in the filing of Title VI complaints.
These efforts include (1) EPA-sponsored training on public
participation for recipients, community groups, and industry, (2)
guidance for recipients on public involvement, 70 Fed. Reg. 10,625
(2005), and (3) guidance for recipients on limited English proficiency,
69 Fed. Reg. 35,602 (2004).
Question 10. Since the EPA has never finalized its Revised Draft
Guidance for Investigating Title VI Complaints Regarding Permitting,
what are the standards that the agency is using to investigate these
complaints?
Response. Evaluations of alleged violations of EPA's Title VI
regulations are based on the facts and totality of the circumstances
that each case presents. Rather than using a single standard for
analyzing and evaluating adverse disparate impact allegations in all
situations, EPA uses several techniques to determine compliance. EPA
has used techniques practiced by the EPA Title VI Task Force, which
closed over 52 complaints, techniques described in the U.S. Department
of Justice's Title VI Investigation Procedures Manual, techniques
described in the EPA Revised Draft Investigation Guidance, which is
being evaluated internally based on application during some
investigations, as well as EPA's Title VI regulations and case law.
Question 11a. EPA dismissed the Midland Avenue complaint, because
it found that the challenged project would not have a ``significant
adverse impact'' on the host community. This assessment was based
solely on a review of the project under the National Environmental
Policy Act (NEPA). This NEPA review relied in part on proposed, but
unrealized, mitigation measures and, in part, on a technical
justification for the placement of the facility to reach its Finding of
No Significant Impact (FONSI). In addition, under the Revised Draft
Guidance for Investigating Title VI Complaints Regarding Permitting,
EPA notes that the ``significance'' of an adverse impact will be
determined based both on the severity of the impact and the disparity
in demographic characteristics. (a) How does EPA justify relying
entirely on the NEPA analysis in light of its deficiencies?
Response. The approach developed to investigate a complaint depends
on the nature and complexity of issues involved in the case. In the
Midland Avenue Regional Treatment Facility (RTF) complaint, EPA's
Office of Civil Rights (OCR) examined whether the recipients violated
EPA's Title VI regulations by approving an Engineering Design Report
and the Midland Avenue RTF and Conveyances Facility Plan. Here, OCR
principally relied on a review of the unusually extensive and complete
record of the development and approval of the Syracuse combined sewer
overflow abatement program (and of the Midland Avenue Regional
Treatment Facility). This investigation was conducted by reviewing
documents provided by the complainants, recipients, and EPA Region 2.
OCR primarily reviewed the U.S. EPA Region 2's Environmental Assessment
(EA), EPA Region 2's Response to Comments issued with the EA, EPA
Region 2's 2004 EA Re-evaluation, and the Environmental Information
Document. OCR also examined the Amended Consent Judgment, the
Alternative Site Evaluation Overview Document, the Midland Avenue RTF
and Conveyances Facility Plan, and the Wastewater Technology Fact
Sheet: Chlorine Disinfection (EPA 1999).
In response to the statement that EPA's assessment was based on
``proposed, but unrealized, mitigation measures,'' the impacts alleged
in the complaint were ``anticipated'' consequences as a result of the
construction of the Midland Avenue RTF. There were no actual, realized
impacts since the construction of the facility had not yet begun.
Therefore, the analysis is largely based on anticipated consequences
and mitigative measures (some already implemented), where necessary.
The technical justification for the project is to abate a public health
nuisance by reducing and eliminating raw sewage discharges to Onondaga
Creek from combined sewer overflows (CSOs) and eliminate odors. In
response to concerns raise by the community, the building size was
reduced from 30,000 to 24,000 square feet, the distance from the
nearest residence to the facility was increased from 90 to 250 feet,
the number of vortex units was reduced from 3 to 2, and the frequency
of operation was reduced from 50 times per year to 9 times per year.
After a review of all of the documents, OCR concluded that the location
and design of the Midland Avenue RTF would not have a significantly
adverse impact or discriminatory effect on the surrounding
neighborhood.
Question 11b. How does EPA justify determining ``significance''
based wholly on NEPA standards without considering the disparity of
demographic characteristics?
Response. Under EPA's Draft Revised Investigation Guidance, the
``adverse impact'' decision is a determination as to whether an
estimated risk or measure of impact is significantly adverse,
independent of demographics. If the impact is not significantly
adverse, the allegation is not expected to form the basis of a finding
of noncompliance with EPA's Title VI regulations and disparity is not
considered. Draft Revised Investigation Guidance, 65 Fed. Reg. 39,680
(2000). An assessment of disparity is not necessary where adversity
does not exist. In the assessment of the Midland Avenue RTF, OCR did
not find adversity, so disparity was not analyzed. Id. 39,682.
Question 12. On January 15, 2003 the Bush administration issued an
advance notice of proposed rulemaking (ANPRM) crafted to dramatically
weaken the Clean Water Act by narrowing the definition of what
qualifies as a ``water of the United States'' to remove longstanding
federal protections for many wetlands, streams, lakes and other waters.
In response to opposition to this proposal from a broad array of
interests, including scientists, state agencies, Attorneys General,
environmental groups, and hunting and fishing interests, the
administration announced on December 16, 2003 that it would not pursue
this ill-conceived rulemaking.
However, a policy directive that was issued at the same time (and
that essentially accomplishes the purposes) as the now-abandoned
rulemaking proposal was left in effect. Among other things, this
directive requires Corps districts and EPA field staff to seek ``formal
project-specific approval'' from headquarters before asserting Clean
Water Act jurisdiction over waters--but for staff to say that a water
is not jurisdictional requires no such approval.
This policy directive (Appendix A to the January 15th Federal
Register notice) has caused untold harm to waters across the nation
that are being stripped of federal protection, from an 86 acre lake in
Wisconsin, to entire basins in the arid West, not to mention countless
streams and wetlands across the country. In a particularly troubling
case, the Corps determined that the Folsom South Canal in California,
which among other uses sometimes conveys drinking water to the city of
Rancho Cordova, is no longer covered by the Clean Water Act.
As mentioned above, the policy directive currently in place
requires Corps districts and EPA field staff to seek formal project--
specific approval from headquarters before asserting jurisdiction over
waters of the United States. No such prior approval from headquarters
is required to assert that a water is non-jurisdictional.
Do you think it is a good policy for our nation's precious and
limited water resources that no permission--or even notice--from the
agencies' headquarters is needed to abandon Clean Water Act
protections, but field staff must get permission before simply
asserting the legal status quo (i.e., that these waters remain
protected)?
Response. The January 2003 legal guidance states that field staff
may no longer assert jurisdiction over isolated, intrastate, non-
navigable waters based solely on the migratory bird rule, and that
agency headquarters approval should be obtained prior to asserting
jurisdiction over such waters based solely on other types of commerce
links. The legal memorandum emphasizes that field staff should continue
asserting jurisdiction over navigable waters, their tributary systems,
and adjacent wetlands. The memorandum also emphasizes that
jurisdictional calls must reflect existing regulations and relevant
case law.
EPA and the Corps are taking a number of steps in response to the
Supreme Court's decision in Solid Waste Agency of Northern Cook County
(SWANCC). As we implement these actions and monitor their
effectiveness, we are continuing to assess the adequacy of existing
field practices, guidance, and training programs and will take
appropriate steps to ensure Clean Water Act jurisdiction is correctly
determined. EPA and the Corps are working together, based on the two
years of experience will make decisions based upon that experience,
current information and emerging case law.
EPA and the Corps are committed to increasing consistency,
transparency, predictability, and sound science for the CWA section 404
program. The agencies have undertaken a number of steps in response to
the Supreme Court's decision in Solid Waste Agency of Northern Cook
County (SWANCC).
Question 13a. We are very concerned by what appears to be the lack
of EPA involvement in the implementation of this policy directive.
Please provide responses to the following questions: (a) Is/was EPA
aware of Folsom South Canal determination? If so, what role did the
Agency play in this water's non-jurisdictional determination? Does EPA
agree that this water is no longer protected by the Clean Water Act?
Response. EPA and the Corps jointly implement the Clean Water Act
(CWA) section 404 program. In this implementation partnership, the
Corps is responsible for day-to-day permitting decisions in their
respective Districts. Frequently, Corps and EPA field staffs coordinate
jurisdictional or permitting calls. In this case, EPA did not
participate in a decision regarding CWA jurisdiction over the Folsom
South Canal.
Question 13b. If confirmed, would you support denying federal Clean
Water Act protections to our nation's drinking water sources?
Response. EPA will continue to implement and enforce programs
affecting all waters of the United States, including waters used as
sources of drinking water, to the maximum extent of the law.
Question 13c. In another case, in June 2003, the Corps' Albuquerque
District ruled that the entire 150-mile long Sacramento River in New
Mexico and all of its tributaries are non-jurisdictional under the
Clean Water Act because they are part of a ``closed basin'' system.
Indeed, the Corps District issued a sweeping declaration that all
``closed basin'' systems were now unprotected by the Clean Water Act.
What role did the Agency play in this non-jurisdictional determination?
Does EPA agree that closed basin rivers and their tributaries should no
longer be protected by the Clean Water Act?
Response. Jurisdictional calls are not made by categories of
waters. Instead, they are made on a site-specific basis, guided by
applicable regulations and case law, reflecting the often complex
factual circumstances of the waters being considered. To our knowledge,
the Corps has not issued a declaration that all closed basin systems
are non-jurisdictional under the Clean Water Act (CWA) as a category.
While we are unaware of the Sacramento River ruling, indeed, we are
aware of site-specific affirmative findings of CWA jurisdiction over
streams located in closed basins. For example, the Corps Albuquerque
District issued a notice on March 16, 2005, that the Mimbres River, its
tributaries and adjacent wetlands were jurisdictional based on the
river's use by small watercraft.
Question 13d. Are there any Corps' non-jurisdiction determinations
made since January 2003 with which EPA has disagreed? Please provide
summary information about all such instances.
Response. The Corps and EPA have undertaken a variety of actions to
increase coordination and minimize disagreement prior to reaching final
determinations on section 404 program implementation and jurisdictional
determinations after SWANCC. EPA and Corps headquarters continue to
coordinate on requests from the field on jurisdictional calls involving
isolated intrastate non-navigable waters based solely on commerce links
other than those in the migratory bird rule. Furthermore, a number of
EPA Regions and Corps districts currently coordinate in advance on
jurisdictional calls that raise challenging issues, reporting that such
communications are effective in resolving differences in
interpretation. And, EPA, Corps, and DOJ staffs also continue to have
bi-weekly meetings to discuss jurisdictional issues and questions that
arise in the field.
Question 13e. How many miles of streams, acres of wetlands and
ponds, and miles of streams has the Corps and/or EPA declared to be
non-jurisdictional under the policy directive (i.e. since January
2003)? Are these levels of losses of water resources acceptable to EPA?
Response. The Corps and EPA have been working together to assess
the resource implications of SWANCC, and the agencies are committed to
increasing the consistency, transparency, and sound science for the
Clean Water Act (CWA) section 404 program. As part of this broader
effort, the Corps Districts have posted information on their websites
regarding findings of no-jurisdiction. Analysis of that information is
on-going. One challenge we face when assessing the impact of the SWANCC
decision is that we do not have comparative data from before the
decision to act as a baseline for measuring change.
Question 14. In December 2003, the administration committed to not
pursuing a rulemaking to narrow Clean Water Act jurisdiction. The clear
implication of this announcement is that the existing Clean Water Act
regulatory definition of ``waters of the U.S.'' remains in effect and
will be enforced.
If confirmed as Administrator, when do you plan to revoke the
policy directive that has--for all intents and purposes--served as a
vehicle enact the ends of the supposedly--abandoned rulemaking and that
is in conflict with the existing regulations?
Response. If confirmed as Administrator, I would remain committed
to full and effective implementation of the Clean Water Act and all its
programs. As EPA and the Corps apply the regulatory definition of
waters of the United States, we will continue to assess the adequacy of
existing field practices, guidance, and training programs and will take
appropriate steps to ensure Clean Water Act jurisdiction is correctly
determined. With respect to revising the January 2003 guidance, EPA and
the Corps are working together to assess the effectiveness of that
guidance and will make decisions regarding the need for its revision
based upon two years experience with the guidance, current information
and emerging case law.
Question 15. On March 1, 2004, EPA's Inspector General released a
report, ``EPA Needs to Consistently Implement the Intent of the
Executive Order on Environmental Justice,'' that found that EPA's
Office of Environmental Justice (OEJ) and the agency overall have
failed to adequately implement President Clinton's 1994 Executive Order
12898 ``Federal Action to Address Environmental Justice in Minority
Populations and Low-income Populations.'' The E.O. requires
environmental justice principles to be integrated with EPA day-to-day
operations to ensure minority and low-income populations are not
subjected to disproportionately high levels of environmental risks.
Overall, the Inspector General concluded that EPA has not fully
implemented Executive Order 12898 nor consistently integrated
environmental justice into its day-to-day operations. EPA has not
identified minority and low-income, nor identified populations
addressed in the Executive Order, and has neither defined nor developed
criteria for determining disproportionately impacted. Moreover, in
2001, the Agency restated its commitment to environmental justice in a
manner that does not emphasize minority and low-income populations, the
intent of the Executive Order.
What are your views on the Inspector General's conclusions? In
particular, do you agree that, in order to implement E.O.12898, EPA
must as a threshold matter identify predominately minority and low-
income populations in order to determine whether such communities are
experiencing or are at risk of experiencing disproportionately high
levels of environmental risks? If EPA has not identified populations
addressed in the Executive Order, how can the goals of the Executive
Order be achieved?
Being as specific as possible, what steps would you take to address
environmental justice concerns identified by the Inspector General's
report? What performance measures would you adopt to measure EPA's
progress in this area?
Response. On June 7, 2004, the Agency submitted its response to the
Inspector General's report (a copy of is attached). I believe the
Agency's June 7, 2004 response responds to your first three questions.
The Agency is developing an Agency-wide strategic plan for
environmental justice (to be finalized in the fall of 2005), which will
take into account the Inspector General's report.
The Agency is in the process of establishing specific performance
measures, which began with the Environmental Justice Action Plans and
Progress Reports for fiscal year 2003 and fiscal year 2004-2005
submitted to the Office of Environmental Justice by each Regional and
Program Office (these documents can be found at: http://www.epa.gov/
compliance/resources/reports/ej.html).
Question 16. Under the Toxic Substance Control Act, Congress
directed EPA to issue regulations ensuring lead-safe remodeling and
renovation practices in homes built before 1978. To date, EPA has not
complied with this requirement, and has instead put forward a voluntary
compliance program. My state of New York contains the largest number--
3.3. million--and percentage--43 percent--of homes built before 1950.
The risks to New York's minority children are pronounced. For example,
in New York City, 95 percent of children found to be lead-poisoned in
2001 were African-America, Hispanic or Asian. Given the scope of the
risk posed to children in New York and throughout the country, will you
commit to issuing regulations as required under TSCA?
Response. EPA intends to work with the renovation and remodeling
industry to increase the use of lead-safe work practices, which in turn
will help us all to meet the goal of eliminating childhood lead
poisoning. As part of this effort, the Agency is developing an
education and outreach campaign that will convey the benefits of the
use of lead-safe work practices to minimize both workers' and
homeowners' exposure to lead dust during renovation and remodeling. EPA
is also targeting outreach efforts to expand consumer awareness.
Critical to creating demand for the use of lead safe work practices
during renovation and remodeling is an educated consumer.
EPA plans to launch this material by this fall and will evaluate
the effectiveness of this effort and will determine what additional
steps may be necessary, including regulation.
______
April 5, 2005.
Mr. Stephen L. Johnson, Acting Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Dear Mr. Johnson: As the Senate Environment and Public Works
committee prepares to consider your nomination to be the Administrator
of the United States Environmental Protection Agency (EPA), I would
like you to consider several issues of great importance to my state of
New York.
Acid rain remains a major problem in New York State, particularly
in the Adirondacks. According to a recent report by the Hubbard Brook
Research Foundation, forty-one percent of the lakes and streams in the
Adirondacks suffer from acidification. In addition, one quarter of the
Adirondacks' lakes and ponds are so acidic that they no longer sustain
their native plant and animal life. Acid rain has also harmed the trees
of the Adirondacks, where on some mountains, up to 80 percent of red
spruce and balsam fir forests have been destroyed. To ensure that
Congress has the information it needs to determine whether acid rain is
being adequately addressed, the Clean Air Act requires the
Administration to submit a report to Congress every two years showing
acid deposition trends. Every four years, this report is also required
to recommend pollution reductions levels necessary to prevent adverse
ecological effects. Yet, in spite of evidence of continuing problems in
the Adirondacks and elsewhere in the eastern United States, the Bush
Administration has not submitted a single such report to Congress. I
understand that EPA has completed a draft report. Please provide me
with a copy of the draft report, and let me know when the report will
be finalized.
As you know, I worked with the White House to secure an agreement
to establish the World Trade Center (WTC) Expert Technical Review Panel
in the fall of 2003. The primary charge of the panel, which is chaired
by EPA, is to address lingering concerns about indoor contamination
resulting from the collapse of the World Trade Center on September 11,
2001. As a result of the panel's work, EPA will soon finalize a plan to
test New York City apartments and offices for WTC contaminants and to
clean these contaminants up where they are present at dangerous levels.
While significant progress has been made during the plan's development,
I remain concerned about several aspects of the EPA's most recent draft
plan. As EPA works to finalize modifications to the draft plan, I urge
you to give strong consideration to: adding additional samples to the
testing program to examine contamination in Brooklyn; expanding the
number of contaminants that will be tested; collecting and analyzing an
adequate number of WTC dust samples to determine whether a valid WTC
dust ``signature'' can be developed; setting clean-up triggers at
levels that are protective of human health; testing in areas that are
likely to harbor residual WTC contamination; and adding strong quality
assurance procedures and other operational protocols that the draft
plan does not include. In addition, I note that the planned April 11
meeting of the panel has recently been postponed, and I urge you to
reschedule the meeting to occur not later than May, and to make the
revised plan publicly available at least two weeks before the meeting.
Finally, I was dismayed by your recent decision to finalize a
wholly inadequate EPA regulation to reduce mercury emissions from power
plants. Mercury is a potent neurotoxin that we know is present at
unhealthy levels in one in twelve American women, threatening their
babies with developmental disorders. New research appearing next month
in the scientific journal Ecotoxicology documents for the first time
the wide-ranging negative impact of mercury deposition on ecosystem
health. We now know that certain regions of the Northeast, including
New York's Adirondack Mountains, have been identified as hotspots or
areas of high mercury contamination in fish, birds and other animals.
In spite of these facts, the rule that you finalized requires only
modest mercury cuts, does not require installation of mercury-specific
emissions controls at power plants for more than a decade, and allows
trading of mercury. I believe that this approach is both unlawful and
inadequate, and I will support Congressional efforts to overturn this
regulation. I urge you to act immediately to revise the rule to better
protect New Yorkers' health and environment from the dangers of
mercury.
I appreciate your attention to these matters, which are of great
importance to the people and natural environment of New York.
Sincerely yours,
Hillary Rodham Clinton.
______
Response of Stephen L. Johnson to Additional Questions from
Senator Lautenberg
Question 1. Both the Government Accountability Office and EPA's
Inspector General recently issued reports showing that the
Administration manipulated the science behind the new Mercury Rule.
You've been at EPA for 25 years and know the agency has a long
tradition of providing independent scientific analysis on environmental
issues. A few weeks ago, the New York Times said, ``That reputation is
in tatters,'' because of EPA's repeated manipulation of science. As the
Administrator, how will you restore the reputation EPA once had?
Response. Before I respond to your specific question concerning
mercury and the recently promulgated Clean Air Mercury Rule (CAMR), I
want to make sure that the Agency has been clear about the nature and
sources of risk from mercury. We are exposed to methyl mercury through
the fish we eat. Reduction of emissions from U.S. power plants may
affect local freshwater ecosystems, but will not significantly reduce
ocean concentrations. The importance of this point cannot be
understated because the vast majority of fish and shellfish Americans
consume come from ocean waters, and only a small portion of fish and
shellfish consumed are freshwater recreationally caught fish. To
suggest that there is a quick fix to the mercury problem in the U.S.
would be misleading. EPA continues to recognize that fish and shellfish
are part of a well-balanced diet that can contribute to heart health
and children's proper growth and development. The best way for women of
childbearing age, pregnant and nursing mothers, and young children to
realize the benefits of eating fish and shellfish and be confident that
they have reduced their exposure to the harmful effects of mercury is
to follow the EPA-FDA Fish Advisory issued last year.
I am committed to achieving and maintaining the highest possible
standards of scientific inquiry. On difficult science issues, the
Agency turns to its internal scientific experts in the Office of
Research and Development for review and advice and, as appropriate,
look to outside panels of experts such as the Science Advisory Board
and the National Academy of Science.
We have a strong program of scientific research and development.
Over the past four years, EPA has taken major new steps to assure that
its science is independent and sound. These steps have included open,
transparent, and peer reviewed research planning; competitively awarded
extramural research grants; independent peer review of science
publications, assessments, and documents; and rigorous peer review of
EPA's research laboratories and centers. If confirmed, I will work to
ensure that this progress continues that the best available science is
used in all of EPA's decision-making.
Question 2. The Superfund tax expired in 1995. The program is now
essentially broke and must depend on appropriations each year, which
have been steadily declining. New Jersey has the greatest number of
Superfund sites in the country. We are also the most densely populated
state. So, more kids are growing up living next to toxic contamination
in New Jersey than anywhere. This is the first administration that has
failed to support Superfund's ``polluter pays'' tax. Explain to me why
we should let polluters off the hook by not reinstating the tax?
Response. I strongly support and enforce the ``polluter pays
principle'' under the Superfund law. The success of the polluter pays
principle is illustrated by the fact that roughly 70 percent of
Superfund sites are cleaned up by the parties responsible for hazardous
waste, an average of $838 million per year to clean sites as mandated
by EPA. A broader perspective shows that, over the history of the
program, EPA has required responsible parties to spend more than $21
billion on cleaning up contaminated properties.
EPA has always relied upon Congress to appropriate funds for the
Agency to pay for cleanups at Superfund sites. Superfund program
appropriations have remained relatively steady over the past 5 fiscal
years at $1.3 billion to $1.5 billion. The FY 2006 President's Budget
Request continues to maintain steady funding for the program.
The Agency is making significant progress in cleaning up Superfund
sites. Unlike in previous years where smaller, less costly sites were
targeted for cleanups, we are now addressing large and complex sites
that present unique clean-up challenges. Cleaning up these sites
requires a disproportionate share of Superfund money. I can assure you
however, that new projects that are not funded have been secured, often
have had prior cleanup work and pose no immediate threat. EPA will not
put communities at risk and will continue to protect human health and
the environment.
Question 3. The Toxic Substances Control Act was enacted in 1976 to
``protect public health and the environment'' from toxic chemicals. In
nearly 30 years, TSCA has been used to regulate only five chemicals
beyond PCBs, which were required to be phased out in the law. Children
are the most vulnerable to toxic chemicals, and according to the CDC,
17 percent of all U.S. children less than 18 years of age have one or
more developmental disabilities, which are increasingly tied to toxic
chemical exposure. Toxic chemicals are a major concern in New Jersey.
In 2000, New Jersey was ranked 15th highest in cancer deaths. Do you
believe the Toxic Substances Control Act is fulfilling its mission ``to
protect human health and the environment'' from toxic chemicals?
Response. As you know, TSCA provides the Agency with the authority
to ban or otherwise control chemicals; to ensure that new chemicals and
significant new uses of chemicals are reviewed prior to
commercialization; to require testing on new chemicals and chemicals
already in the marketplace; and to require the reporting of information
needed to ensure an adequate understanding of potential risks and
effective enforcement of the law.
In addition to the TSCA section 6 control regulations referred to
in the question, it is important to note that EPA uses its TSCA section
5 authorities (to obtain pre-manufacture notification (PMN), to issue
Significant New Use Rules (SNUR), and to regulate pending the
development of information) to ensure assessment and needed regulation
of new chemicals and significant new uses of new and existing
chemicals. In this regard, we have reviewed over 36,000 PMNs and have
restricted or otherwise regulated over 1600 of these chemicals while a
similar number have been withdrawn by the manufacturer, often in the
face of EPA action. In addition, we have issued SNURs covering
approximately 700 chemicals, which require notification to the Agency
prior to initiating a significant new use of the chemical.
EPA also complements its TSCA authorities with a wide range of
voluntary testing, product stewardship and pollution prevention
approaches to address potentially harmful chemicals. For example, EPA
efforts in 2000 and 2004, respectively, resulted in the phase-out of
production of over 80 Perfluorinated Chemicals (PFOS) derivatives and
Octa- and PentaBDE by their only U.S. manufactures. We also took a
voluntary approach to obtaining a more complete understanding of High
Production Volume (HPV) chemicals by challenging the U.S. chemical
industry in 1998 to voluntarily provide basic health and safety
information on more than 2,200 of the chemicals produced at more than a
million pounds a year. We are currently on track to receive the data by
the end of 2005 on over 1,400 HPV chemicals. The other 800 chemicals
are being handled by a complementary international effort under the
Organization for Economic Cooperation and Development. EPA's Green
Chemistry and Design for the Environment Programs are examples of
highly successful efforts which seek the development and use of safer
and more environmentally friendly chemicals and alternatives. Hospitals
for a Healthy Environment and the Green Suppliers Network are examples
of EPA programs which are obtaining significant reductions in the
environmental footprint of, respectively, healthcare facilities and
companies in manufacturing supply chains, like the automotive,
pharmaceutical, and healthcare industries.
Question 4. According to the GAO, only two percent of the 60,000
chemicals grandfathered in under TSCA have even been examined for
safety. Do you believe that TSCA give EPA the adequate authority to
protect children's health from the harmful effects of the grandfathered
chemicals?
Response. I can assure you that EPA takes very seriously its
commitment to protect children from chemical risks. EPA has taken a
number of steps under TSCA to protect children from the harmful effects
of chemicals. In addition to the actions described in the previous
question, the Agency complements its TSCA authority with a wide range
of voluntary testing, product stewardship and pollution prevention
approaches.
For example, in 2003, when the Agency amended its regulation for
chemical production reporting, we included a requirement that industry
provide us with additional information on chemicals produced in volumes
over 300,000 lbs per site per year. Among the new reporting
requirements is the need to identify chemicals that are intended for
use in children's products or in consumer products. This will serve as
an important source of valuable new information in our efforts to
understand and protect children from chemical risks. In 2000, EPA
initiated the Voluntary Children's Chemical Evaluation Program (VCCEP)
by calling upon the chemical industry to participate in an effort to
conduct tiered testing and assessment on chemicals to which children
may be disproportionately exposed. Industry responded positively and
VCCEP work is underway on 20 chemicals. This program is providing us
with a greater understanding of the potential hazards, exposures, and
risks to children associated with chemical exposures. Additional TSCA
Titles give the Agency authority to address concerns related to the
risks associated with asbestos, including asbestos in schools, and
lead-based paint.
EPA has also taken action to deal with other TSCA chemicals, such
as Perfluorinated Chemicals (PFOS) and PFOA, ingredients in the
manufacture of a wide array of non-stick surfaces and products, which
present concerns for developmental effects (among others), as well as
other chemicals of potential concern such as Penta and OctaBDE. EPA has
issued a SNUR requiring notification of new production of 88 PFOS
derivatives and is currently considering similar actions on an
additional approximately 180 PFOS derivatives. We recently released a
preliminary risk assessment on PFOA which is undergoing peer review by
the Agency's Science Advisory Board and we are using TSCA Section 4
testing tools, among others, to develop data needed to understand the
sources and pathways of exposures to PFOA. Penta and OctaBDE are also
the subject of proposed SNURs that would apply to any new production of
these phased out chemicals. Finally, working with other Federal
Agencies, EPA proposed adding a group of PFOS, PFOA, and PBDE
derivatives to the Centers for Disease Control and Prevention's
National Health and Nutrition Examination Survey (NHANES) blood
monitoring study and we are working with the National Institutes of
Environmental Health Sciences' National Toxicology Program to conduct a
class study on the health effects of a series of perfluorinated acids
similar to PFOS and PFOA.
Question 5. EPA has been internally discussing weakening the
standard for how much nuclear radiation the public may be exposed to.
For decades, EPA has required that the allowable concentration of
radiation could pose a risk of no more one cancer in every ten thousand
people. The new standard would weaken that standard to a cancer risk of
1 in 170, which is equivalent to getting 1,200 chest X-rays over a
lifetime. The Administration may want to weaken this standard so that
in the event of a dirty bomb, the cleanup would be easier to
accomplish. I've been told that EPA is considering weakening its
standard for radiation exposure. Is this true, and if it is, could you
explain the reason for this change?
Response. EPA does not plan to weaken its standards for radiation
protection. EPA has been working on revising a 44-year-old Presidential
Guidance to Federal agencies for protection of the public. The current
Federal Guidance, as signed by President Eisenhower, includes a
cumulative public dose limit of 500 millirems/year, which is equivalent
to a cancer risk of 3 in 100 excess cancers over a lifetime. EPA's main
objective in revising the old Federal Guidance is to reduce this
excessively high recommended dose limit, to be more realistic in light
of the stringent single source standards that EPA and other Federal
agencies have issued. The draft revised Guidance reinforces and
strengthens the current public process used by Federal agencies for
setting individual source limits. EPA continues to rely on the excess
cancer risk range of no more than 1 in 10,000 excess cancers in a
lifetime to manage cleanup of radioactive sites. In the event of a
dirty bomb, EPA anticipates that its cleanup standards will be fully
considered, along with other relevant federal standards, for
appropriateness given the nature and extent of radioactive
contamination.
Question 6. In a July 2004 Sierra Club report, Communities at Risk,
How the Bush Administration is Failing to Protect people's Health at
Superfund Sites, a report written using EPA data, New Jersey was
highlighted as one of the key states which have:
1. Superfund sites where there is uncontrolled human exposure to
dangerous chemicals (5 sites, and 14 more sites where there is not
enough information to know for sure);
2. Superfund sites where toxic contaminants in migrating
groundwater are not being controlled (22 sites, with 15 more sites
where the information is incomplete).
When I met with you, you assured me that Superfund sites were being
assessed and prioritized strictly based on human health criteria.
Please explain to me what you plan to do to address the high risk
conditions that exist at at least 27 Superfund sites in New Jersey,
according to this report, and potentially far more, if all the data
were available.
Response. I can assure you that protection of human health and the
environment remains the Superfund program's top priority. You have my
commitment that the Superfund program will continue to base its cleanup
and funding decision-making on the risks posed by hazardous waste
sites. Where immediate threats to human health identified, EPA takes
action, such as providing alternative drinking water. EPA's Superfund
Removal program is ready to act when there is an immediate threat posed
by hazardous waste sites in New Jersey and throughout the country.
It is important to note that the Human Exposure environmental
indicator addresses both actual and potential exposures. Therefore,
many of the NPL sites, including the ones in New Jersey, that are
characterized in the ``not under control'' category are not actually
causing exposure.
Of the approximately 17 percent of NPL sites that are categorized
as ``not under control'' or as ``insufficient information'',
approximately 90 percent of those have Superfund actions under way to
address or investigate the potential exposure. You have my commitment
that EPA will continue to address the sites in New Jersey and elsewhere
that are characterized as ``not under control'' or as having
``insufficient information.''
______
Responses of Stephen L. Johnson to Additional Questions from
Senator Obama
Question 1a. I understand that the EPA has been doing an excellent
job thus far in leading the ``Great Lakes Regional Collaboration,'' and
that you personally have been committed to ensuring the success of this
cooperative effort to develop a long-term strategy for the Great Lakes.
Once the strategy is complete (expected December 2005), what steps will
you take within EPA and with the Administration generally to help
ensure that the strategy is implemented?
Response. Executive Order 13340 was signed on May 18, 2004, calling
for the establishment of a ``Regional Collaboration of National
Significance'' (GLRC) on the Great Lakes. EPA is working with the
Regional Collaboration to develop the plan that is due to be released
in December 2005. The Chair of the Interagency Task Force (IATF) is the
EPA Administrator, who is a member of the Executive Committee of the
Regional Collaboration. Through this role, EPA will assist to ensure
that the plan is completed and a process is developed to implement the
plan, report on progress, and take corrective actions, when necessary.
EPA will also work with the Collaboration and with other Federal
Agencies through the IATF, to develop mechanisms to carry out both
programmatic and administrative requirements associated with the
Executive Order, including the Regional Collaboration. We believe that
continued bi-partisan support and leadership from Congress will be
critical to our success.
Question 1b. Will EPA estimate the amount of investment it would
take to restore the Great Lakes as part of this Collaboration? If so,
when will that estimate be ready?
Response. As participants in the GLRC, EPA is working with other
members to develop the strategic plan, including developing appropriate
cost estimates associated with the plan. A draft plan is expected to be
available in July. EPA will continue to work closely with this effort
to ensure that appropriate cost estimates are developed.
Question 2. It is my understanding that scientists from the U.S.
Geological Survey and Washington University in St. Louis have tested
for mercury in East St. Louis. Their readings turned up some of the
highest readings ever for mercury and that East St. Louis is a hotspot
for mercury. I know that locals fish at both Horseshoe Lake State Park
in Granite City and Frank Holten State Park adjacent to East St. Louis.
Fish tissue sampling from Frank Holten showed high mercury levels. All
area waters have fish advisories for mercury.
I am curious to know to what level these types of hotspots were
incorporated into the EPA reasoning when formulating the mercury rule.
Response. I do not know if the results from the study that you
reference were incorporated in the databases used for the exposure
modeling in support of the final CAMR. The databases are extensive
containing thousands of entries and I'm told that an immediate answer
is not available but I commit to provide you with an answer as soon as
possible. It is important to understand that most of that mercury in
fish across the country comes from sources other than U.S. power plants
and therefore would not be addressed through the CAMR rulemaking.
Question 3. It is my understanding that the CDC estimates that over
400,000 American children under age 5 have elevated blood-lead levels
potentially affecting their cognitive abilities. A different study
estimates that 20 percent of the children under 5 in Chicago have
unacceptable blood-lead levels. Lead may cause a range of health
effects, from behavioral problems and learning disabilities, to
seizures and death. Children 6 years old and under are most at risk,
because their bodies are growing quickly. I understand that EPA has
been working on a rule for some time. Last year, however, EPA
apparently decided that rather than following the law and requiring all
relevant workers to be trained, EPA wants to have a voluntary program
instead. This is a very troubling decision. Mr. Johnson, has EPA made
the decision to abandon writing a rule on renovation and remodeling in
favor of a voluntary approach? If so, what is EPA's scientific basis
for believing that a voluntary program would be effective? What will
EPA do if the results are not as good as projected? If not voluntary,
when will EPA issue a proposed rule?
Response. EPA intends to work with the renovation and remodeling
industry to increase the use of lead-safe work practices, which in turn
will help us all to meet the goal of eliminating childhood lead
poisoning. As part of this effort, the Agency is developing an
education and outreach campaign that will convey the benefits of the
use of lead-safe work practices to minimize both workers' and
homeowners' exposure to lead dust during renovation and remodeling. EPA
is also targeting outreach efforts to expand consumer awareness.
Critical to creating demand for the use of lead safe work practices
during renovation and remodeling is an educated consumer.
EPA plans to launch this material by this fall and will evaluate
the effectiveness of this effort and will determine what additional
steps may be necessary, including regulation.
Question 4a. In January 2001, under the leadership of the Clinton
Administration, the EPA published a rule implementing clean diesel and
fuel regulations. Engine manufacturers have invested hundreds of
millions of dollars (Caterpillar Tractor Company more than $1 billion
alone) in technology to achieve a 99 percent reduction in diesel
emissions. It is widely recognized and accepted that these
unprecedented emissions standards cannot be achieved without a
corresponding requirement to limit the content of sulphur in diesel
fuel to 15 ppm or less. In fact, during the 2001 rulemaking, engine
manufacturers argued the sulfur content of diesel fuel should be at or
near zero. The Bush Administration has also been a strong advocate of
the diesel standards. As I understand it, the oil and pipeline industry
has requested that the EPA provide ``flexibility'' in implementing the
EPA standards. Precisely what type of ``flexibility'' is sought by the
oil, refining and pipeline industries?
Response. Refiners, pipelines, and terminals have expressed concern
that despite their best efforts, during the initial transition into the
program there may be ``hiccups'' that may lead to reduced volume of
ultra-low sulfur diesel (ULSD). They have expressed a desire only for
flexibility during the initial transition into the program in such
limited situations that could both help ensure supply and availability
of diesel fuel and avoid unnecessary enforcement issues.
Question 4b. How would granting this ``flexibility'' not jeopardize
the investments made by companies like Caterpillar, all which based
considerable research and development capital resources on a commitment
made by the federal government?
Response. The Administration remains committed to full
implementation of our highway and nonroad rules limiting emissions from
diesel engines and fuels. We understand that engine manufacturers,
including Caterpillar, have spent considerable time, effort, and
financial resources on developing cleaner engines that require the use
of the low-sulfur fuel. EPA is working with refiners and pipeline
companies to ensure that they can meet our aggressive low-sulfur diesel
fuel standards on time and in a manner that not restrict fuel supply,
raise prices to consumers, or interfere with the investments made by
engine manufacturers.
__________
Statement of Luis A. Luna, Nominated by the President to be Assistant
Administrator for Administration and Resource Management, U.S.
Environmental Protection Agency
Mr. Chairman and Members of the Committee, it is an honor to appear
before you today as President Bush's nominee for Assistant
Administrator for Administration and Resources Management for the
Environmental Protection Agency.
The position oversees most of the assets and systems the Agency
needs to do its work: personnel, training, facilities, security,
purchasing, and grants administration. It is, in brief, an office
responsible for many of the daily operations that make EPA run.
I believe the task before me would be straightforward: to provide
EPA's 18,000 employees the tools they need to be successful, and to
ensure that the resources you entrust to the Agency are used in
appropriate ways. The goal of both of these endeavors, of course, is to
implement the laws passed by Congress in a way that produces meaningful
and cost-effective environmental improvements for our nation.
I would bring with me 32 years of experience in the Federal
government, not-for-profit organizations and the private sector. During
my career, I have had the opportunity to work for Senators and Members
of Congress on legislative matters. I have served in four Federal
agencies handling planning, performance and administrative issues. I
have also helped created and run nonprofit organizations, as well as
worked in the business community. These jobs have given me
administrative and policy-development skills I would apply to the EPA
post. They have also provided me an understanding of what it takes to
develop and implement initiatives in organizations large and small, as
well as an appreciation for the impact that Federal policies can have
on the nation.
Should you and your colleagues grant me the high privilege of
serving our country in this capacity, I will use three touchstones to
guide me in my work: accountability, transparency, and results.
I will be accountable to the President, the Congress, the
Administrator of EPA, my colleagues at the Agency, and most of all to
the taxpayers. If I am asked to see that the Agency's resources are
well managed, I must be willing to be held to account for my
performance. This I will do. I will, in turn, also hold those with whom
I work accountable, but always in a manner that is collaborative and
constructive.
I will conduct my activities, and those of the office, with
transparency. Administering EPA's resources is best done by ensuring
that there is openness in the way decisions are made and issues are
handled. From dealing with personnel matters to administering grants to
purchasing supplies, it is vital to conduct our affairs in ways that
are visible, understandable and credible. Only in that way can we hope
to maintain the integrity of the outcome.
I will be focused on results. Activity is not the same as progress,
and I will commit to pressing for solutions to issues. I will avoid
policies and directives that ensnare our goals in bureaucratic
procedures rather than forward motion, thereby wasting time and
resources.
One area that will draw my particular attention is EPA's grants
program. I know that this Committee has repeatedly questioned its
operations. I am also aware of the conclusions drawn by the Government
Accountability Office, the Office of Management and Budget and EPA's
own Office of Inspector General regarding the management of EPA grants.
I think these are legitimate concerns. It is essential that the $4
billion EPA distributes in grants per year achieve the desired
environmental results and are spent according to the rules. From what I
read, that has not always been the case.
I am familiar with EPA's 5-year grants management plan. It outlines
how to improve staff training, increase competition, make better use of
technology, enhance oversight and focus on environmental results. All
of these are appropriate and necessary steps. Although the Agency is in
the midst of implementing the plan, I nevertheless intend to look at it
with fresh eyes and adjust it as needed to ensure its success. I will
test it against the principles I mentioned earlier accountability,
transparency and results to see that it does, indeed, fully and
effectively address the persistent challenges faced by EPA's grants
program.
I hope this brief overview will give you insights into how I would
manage the resources you provide to the Environmental Protection
Agency. Thank you for considering my nomination and for allowing me the
opportunity to appear before you.
______
Responses of Luis A. Luna to Additional Questions from Senator Inhofe
Question 1. During an oversight hearing before the Environment and
Public Works Committee held March 3, 2004, the EPA Assistant Inspector
General for Audits testified to an audit of a nonprofit EPA grant
recipient. In that audit, the Inspector General concluded the nonprofit
recipient violated the Lobbying Disclosure Act for the 5-year term of
the audit and recommended the EPA recover all grant dollars awarded to
that nonprofit recipient during that period. EPA's new financial
oversight for nonprofit grant recipients is a positive step. In order
to avoid taxpayer dollars going to lobbying and political
organizations, what would be wrong with requiring a potential nonprofit
recipient to disclose all affiliated organizations including Internal
Revenue Service designated 501(c)(4) and 527 organizations in the new
financial oversight policy?
Response. I have read about this particular audit and can certainly
see why it would give the Committee pause about the manner in which EPA
grant dollars are being distributed. I believe the Agency should
consider requiring nonprofit applicants to disclose their ties to
affiliated organizations to which the funds could be transferred. This
would mean changing the language of the questionnaire EPA currently
sends to nonprofit grantees before they receive funding. That change
would require clearance by the Office of Management and Budget (OMB)
under the terms of the Paperwork Reduction Act. I would be happy to
work closely with OMB on this issue.
Question 2. While EPA has instituted new oversight policies in
grant management, this Committee's oversight has revealed that EPA
needs a consistent peer review policy in grant solicitations and grant
awards. I believe this Committee should consider hearings on this
issue. Can I get your commitment to a real and thoughtful consideration
of new peer review in grants focusing on resolving real environmental
issues rather than wastefully spending on inconsequential ones?
Response. The short answer to your question is an emphatic ``Yes.''
Peer review has great value in assuring that taxpayer dollars are used
appropriately. I believe in the value of having many eyes look at
projects and proposals, which helps both improve the outcome and avoid
potential problems. It enhances accountability, transparency and
results--the three concepts I said at my confirmation hearing would be
the touchstones guiding my work at EPA.
I am aware that EPA's new competition policy encourages offices to
use peer review-type processes to achieve the desired results. These
processes range from using peer reviewers within EPA (or other Federal,
state and local agencies) to reviewers from universities and the
private sector. I am also aware that there is a pilot project underway
to explore expanded use of paid peer reviewers on typical EPA grants. I
will look at the information generated by this project, as well as the
real-world application of the new competition policy, to see how best
to get meaningful and cost-effective reviews of pending grants.
I will look at the information generated by this project, as well
as the real-world application of the new competition policy, to see how
best to get meaningful and cost-effective reviews of pending grants.
__________
Statement of John Paul Woodley, Jr., Nominated by the President to be
Assistant Secretary of the Army for Civil Works
Mr. Chairman, members of the committee, I want first to express my
appreciation for promptly scheduling this hearing to consider my
nomination to be the Assistant Secretary of the Army for Civil Works.
I am mindful of the confidence expressed in me by President Bush
and Secretary Rumsfeld in submitting my name in nomination for this
important post with the Department of the Army. The Army Corps of
Engineers and its civil works function encompassing navigation, flood
control, water resource development, and environmental improvement, has
for 200 years contributed greatly to the prosperity and well-being of
our Nation.
I deeply appreciate the courtesy of the committee. If confirmed, I
look forward to working with the Chairman and all members of this
important Committee to address the vital navigation, flood control,
water resource, and environmental challenges of the Nation. Thank you.
______
Responses of John Paul Woodley to Additional Questions from
Senator Inhofe
Question 1. When Congress authorized the Corps in WRDA 2000 to
proceed with work on a comprehensive restoration of the Everglades, one
concern at the time was that authorization of such a large restoration
project was premature in part because the Corps had not yet identified
measurable environmental outcomes. In response to these concerns, the
Corps was required in the legislation to establish an independent
scientific review panel to review the environmental progress (PL 106-
541, Sec. 601(j)(1)). In addition, the panel was required to produce a
report to Congress every 2 years assessing the agency's progress in
restoring the Everglades as measured by these environmental indicators
(PL 106-541, Sec. 601(j)(2)). Has the Corps convened this independent
scientific panel?
Response. Yes Senator, the Corps has convened an independent
scientific review panel through the National Academy of Sciences. The
panel was convened In October of 2004 and is composed of twelve
scientists with specialties that include: construction and
environmental engineering, wetland scientists, water quality
specialists, biologists in various specialties, geomorphology and
hydrology, landscape ecology, and watershed management whose mission is
to review the interim environmental goals and targets and report to
Congress biennially on the progress in restoring the Everglades.
Question 2. Has the scientific panel identified the environmental
indicators by which the Corps can measure its progress at restoring the
Everglades?
Response. The panel has not come to a conclusion on the proposed
environmental indicators to be used to measure the progress on
restoring the Everglades. Since its inception, the Independent
Scientific Review Panel has met twice, once in October 2004 and again
in February 2005. A third meeting is scheduled for April 2005. The
first meeting established a direction and an understanding of their
objectives. The second meeting covered a wide range of topics
associated with understanding the modeling, past science coordination,
various goals for the Everglades and Florida Bay, land acquisition, and
touring of portions of the project area. There was also an open public
session for interested parties to address the panel. The third meeting
will include tours of other portions of the project area, an update of
the State's Acceler8 program, a review of the progress in the Southern
Everglades, and experiments and results of adaptive management efforts
with regard to experimental water deliveries and
decompartmentalization. This meeting will be open to the public for
input.
Question 3. How does the Corps expect to produce a 5-year progress
report if it hasn't established the panel required to provide a
scientific assessment of ecological measures of progress?
Response. The Corps is on schedule to produce the 5-year report to
Congress as required by the Water Resources Development Act (WRDA) of
2000. This report will be based on the progress to date for both
modeling and the interim goals, which have been developed, and the
results of ongoing work with adaptive management. This report is a
snapshot in time of where the project is at this time and will form the
bases for studies over the next 5 years unless modifications result
from demonstration projects on aquifer storage and recovery or
directions identified through model revisions or results from the
Independent Science Review Panel.
Question 4. When can we expect to see the first biennial report?
Response. Senator, the first biennial report of the Independent
Science Review Panel is scheduled for June 2006.
______
Responses of John Paul Woodley to Additional Questions from
Senator Jeffords
Question 1. Do you support independent peer review of Corps
projects?
Response. I fully support the independent review of major
engineering, scientific, and technical work products that are a part of
Corps of Engineers feasibility studies, particularly those that are a
part of large, complex, and controversial Corps projects. Not all
projects may require the additional time or expense of independent
review and the Chief of Engineers should have discretion on studies
that may be relatively routine, such as projects that are neither
technically complex nor controversial. I fully agree that providing for
peer review of the major scientific, engineering, and technical work
products that support the recommendation of the Chief of Engineers for
implementation of water resources projects. It should not apply to the
decision or recommendation itself or the application of policy to the
recommendation. In this manner, the Chief of Engineers and I would
retain the policy compliance or internal review aspect of the
feasibility study as well as the responsibility to fully document the
disposition of any recommendations resulting from independent peer
review. To facilitate review of water resources reports, I have worked
closely with the Corps to develop new guidance that establishes the
principles of both internal and external peer review. Every proposed
Corps project will undergo either an external or internal independent
peer review on the technical aspects of the project or an internal
policy compliance review. With respect to the National Research
Council's (NRC) report, ``Review Procedures for Water Resources Project
Planning,'' I support their concept that ``reviews should be conducted
to identify, explain, and comment upon assumptions that underlie
economic, engineering, and environmental analyses, as well as to
evaluate the soundness of models and planning methods.''
Question 2. Do you think the principles and guidelines that the
Corps uses when evaluating projects need updating?
Response. I believe that the principles and guidelines provide the
necessary flexibility to respond to today's challenges in addressing
our Nation's water resources needs. I have worked with the Corps of
Engineers to ensure that Corps planning studies will evaluate, display
and compare the full range of alternative plans' effects across all
four principles and guidelines accounts. Effects will include benefits
and other desirable outcomes and costs and other adverse impacts, as
well as cumulative effects. Planning reports will include a full
discussion and display of the beneficial and adverse effects of each
plan, and a comparison of effects among plans. The discussion and
display will address each of the four established accounts and will not
be limited to any one account. However, the National Economic
Development (NED) plan will still be identified. After considering a
plan's beneficial and adverse effects across all four accounts, the
plan may be a candidate for selection if it has, on balance, net
beneficial effects. The planning report will explain the basis for
selection considering the beneficial and adverse effects in all four
accounts. My office has the responsibility for granting or rejecting a
waiver for selecting the NED plan based on the four accounts and the
justification provided. I'm finding that on a day-to-day basis that the
concepts and requirements established under the current principles and
guidelines reflect a broad approach to today's water resources planning
needs that enable us to work collaboratively with project sponsors,
other state and Federal resource agencies, the public, as well as OMB
and the Congress.
Question 3. In guidance the Corps of Engineers issued jointly with
the EPA after the SWANCC decision, Corps of Engineers' field staff were
directed to seek formal project-specific Headquarters approval prior to
asserting jurisdiction over isolated water that are both intrastate and
non-navigable, including permitting and enforcement actions. This
direction gives complete discretion to the field staff to decide
whether or not to regulate any isolated, intrastate non-navigable water
and creates an additional step that could add unnecessary delay in
permitting and enforcement. How is this working? How many permits have
been effected by this guidance? How long is it taking for a permitting
or enforcement action subject to the new Headquarters approval, to go
through the process? What procedures are field staff using in order to
get Headquarters approval?
Response. Corps districts are required to determine if Clean Water
Act (CWA) jurisdiction exists over isolated, intra-state, non-navigable
waters based on interstate commerce connections presented in 33 CFR
328.3(a)(3)(i)-(iii). Prior to asserting jurisdiction solely on the
basis of 33 CFR 328.3(a) (3), the district is to request a concurrence
from Corps and EPA HQ.
To date, approximately 10 actions (out of many thousands) have been
raised to the Corps and EPA HQ by the districts. On average, the
coordinated HQ review has been taking on the order of 6 to 12 months to
complete. In some cases, it is taking longer than 12 months to complete
the process. In part, this is because districts have not been provided
with guidance to outline what information HQ is reviewing to support
the district determination. As a consequence, coordination efforts
between the district and the Corps and EPA HQ team have been extensive
and resulted in actions being time consuming to complete. Additional
delays have occurred as there is no mechanism in place to ensure both
HQ agencies continue to process a decision to completion in a timely
manner.
To that end, we have drafted a MOA to promote interagency
cooperation, facilitate increased communication, and make more
efficient the process for determining CWA jurisdiction for actions
being review under 33 CFR 328.3(a)(3). The MOA outlines the information
to be submitted by the districts to request a HQ-level review and a
process to ensure the request moves forward in a timely manner. We
provided EPA with a draft copy of the MOA for review/comment on January
31, 2005. EPA provided feedback on the MOA in February 2005. It is
expected that we will meet with EPA within the next couple of weeks on
the MOA to determine how we move forward for processing actions covered
under 33 CFR 328.3(a)(3).
Question 4. Since 1986, the Corps has been required to prepare a
detailed mitigation plan whenever a civil works project will have more
than minimal impacts. In 1990, Congress established a statutory goal
for the Corps' civil works program of no overall net loss of the
Nation's remaining wetlands base. However, a 2002 GAO Report shows that
the Corps has not proposed any mitigation at all for 69 percent of
projects constructed since 1986. Where mitigation is required, it is
often at far less than a 1:1 acreage replacement despite the fact that
the Corps and most states typically require the private sector to
implement far more than 1:1 mitigation. Do you believe that the Corps
should be required to meet the same mitigation requirements as the
private sector (at least 1:1 mitigation and more for certain kinds of
water resources damages)? If not, how do you plan to ensure that the
Corps meets the Congressionally mandated goal of no-net-loss of wetland
acres and functions?
Response. Mitigation is an integral part of the Corps of Engineers
Civil Works and regulatory missions. The Corps goal is to fully
mitigate for environmental impacts and to mitigate with habitat of the
same kind (e.g., fresh water wetlands for fresh water wetlands) and of
a value equal to or greater than that, which was impacted. This
mitigation will be done prior to or concurrent with project
construction.
The Water Resources Development Act of 1990 established an interim
programmatic goal of no overall net loss of the Nation's wetlands by
acreage and function (associated with mitigation) and a long-term goal
to increase the quality and quantity (associated with restoration).
Both the Corps' regulatory mission and Civil Works program have this as
a goal for actions involving the Corps. To meet this goal, the Corps
not only mitigates for its actions, but is also creating wetlands as
part of its Civil Works restoration mission. Mitigation would only
allow the Corps to offset the impacts of its programs or those they
oversee. To achieve the long-term goal of increasing the quality and
quantity of the Nation's wetlands, the Corps has implemented an
ecosystem restoration program.
The President's no net loss goal is a national goal. Evaluation of
impacts and mitigation using only acreage dimensions, applied on an
individual project basis, can be misleading. For instance, under an
acre for acre requirement an acre of high quality wetlands could be
replaced with an acre of low quality wetland. Strict adherence to a no
net loss of acreage requirement would, in that case, result in a net
loss of environmental values. Value associated mitigation requires
considerably more information than just the measure of area. What must
be assessed is a measure of the physical/chemical/biological values
associated the resource (wetland area, riparian area, upland area,
etc.) to be impacted. The Corps' Civil Works program approach of
looking at habitat value is consistent with the policies of the U.S.
Fish and Wildlife Service (as described in the Federal Register, Volume
46, No. 15, dated January 23, 1981). All of U.S. Fish and Wildlife
Service mitigation goals are stated with regard to habitat value.
Accordingly, from an environmental perspective, the Corps' approach of
replacing habitat value is more reflective of losses/impacts than a
simple acre for acre approach.
Mitigation ratios that do not consider the value of what is being
lost, are not reflective of good environmental stewardship. Using
ratios without any other evaluation may lead to under or over
mitigating project impacts, either of which is not in the public's
interest. The Corps Civil Works program uses one of many differing
habitat based evaluation procedures.
In general practice, functional values are determined by applying
aquatic site assessment techniques generally recommended by experts
and/or by the best professional judgment of federal and state agency
representatives. These types of assessments fully consider ecological
functions included in the Section 404 (b)(1) Guidelines. The objective
in the guidelines for mitigating unavoidable impacts is to offset
environmental losses. For wetlands and other special aquatic sites,
such mitigation should provide, at a minimum, a one for one functional
replacement (i.e., no net loss of values), with an adequate margin of
safety to reflect the expected degree of success associated with the
mitigation plan. In the absence of more definitive information on the
functions and values of specific wetland sites, a minimum of 1 to 1
acreage replacement may be used as a reasonable surrogate for no net
loss of functions and values.
Civil Works vs. Private Development: I do believe the Corps should
meet the same mitigation requirements as the private sector; however,
mitigation as generally practiced by Corps planners affects a much
broader range of resources than does the Corps regulatory program,
which applies to aquatic resources. The most visible mitigation
attributed to the Corps regulatory program is the compensatory
mitigation done for wetlands impacts. To the extent a Corps Civil Works
project impacts wetlands, the Section 404 (b)(1) guidelines are applied
to the project. Those projects are treated in the same manner as a
private developer's project.
Question 5. In response to an advance question for your nomination
hearing before the Armed Services Committee last Congress asking
whether you believe we are currently meeting the no net loss of
wetlands goal, you responded that you ``understand there are
differences of opinion on whether or not the Corps is meeting the
goal.'' You also stated that you ``understand that there are monitoring
and record-keeping issues that should be addressed in this
connection.'' Please describe the steps you have taken to determine
whether this goal is in fact being met in connection with civil works
projects, and the steps you have taken to address the lack of
mitigation monitoring and record-keeping.
Response. Senator, let me begin by identifying the steps that have
been undertaken in the Regulatory program. After the criticism of the
Regulatory databases in the mid 1990s, Regulatory began development of
a national database that would standardize permit tracking across all
districts electronically. This resulted in an Operations and
Maintenance Business Information Link (OMBIL) Regulatory Module (a
database program) which allows the Regulator to input type, acreage,
and functional score of the aquatic resources the proposed project
would impact, what was permitted, and what was constructed on the
ground as checked by compliance visits to the site. This system has
been installed in 15 districts and should be installed in all districts
by the end of FY 2007. However, Civil Works does not yet have a fully
functioning database program. The Corps Institute for Water Resources
(IWR) has developed a demonstration database program, which has been
populated with data from the Continuing Authorities Program. A database
for Civil Works is much more complicated in that it must cover a much
broader range of natural resources than just aquatic resources in the
Regulatory program. The amount of data to be collected and entered is
significantly greater. The Corps has requested additional funds to
verify its mitigation efforts, but these requests have not been funded
by Congress. I firmly believe that the Civil Works program must have a
fully functional database so it can be determined if the mitigation
goals are achieved and I will work with the Corps to establish a fully
functional database program for Civil Works through further work with
IWR or working to incorporate Civil Works mitigation into the OMBIL
database program.
I have requested substantial increases in the Corps' budget for the
Regulatory program for both FY 2005 and FY 2006, predicated in part on
the need to address the lack of mitigation monitoring and record-
keeping.
Question 6. Do you think the programmatic responsibilities and
guidance documents of the Army Corps of Engineers should include
consideration of the impacts of sea-level rise related to global
climate change?
Response. Senator, I fully agree that sea-level rise needs to be
addressed in Corps planning studies. In fact current Corps guidance
includes direction with regard to including sea-level rise in our
planning studies. Engineer Regulation 1105-2-100, page E-142 states:
``k. Sea Level Rise. The National Research Council (NRC)
study on sea level change (Responding to Changes in Sea Level:
Engineering Implications, 1987) is a practical and rational
review of data on relative sea level changes and the resulting
impact on engineering structures. The study should be used by
the Corps for technical guidance until more definitive data are
available. The NRC study recommended that feasibility studies
for coastal projects should consider the high probability of
accelerated sea level rise. Since precise estimates of future
sea level rise are unknown, the risks associated with a
substantial rise should be addressed. Feasibility studies
should consider which designs are most appropriate for a range
of possible future rates of rise. Strategies that would be
appropriate for the entire range of uncertainty should receive
preference over those that would be optimal for a particular
rate of rise but unsuccessful for other possible outcomes.''
______
Responses of John Paul Woodley to Additional Questions from
Senator Baucus
Question 1. Mr. Woodley, what percentage of barging activity on the
Missouri River is related to Corps activities and what percentage is
commercial traffic?
Response. The barging activity conducted by the Corps and its
contractors for river maintenance (referred to as waterway materials),
looking over a 5-year average, represents 1 percent of total commercial
tonnage. Long-haul commercial tonnage, which does not include sand/
gravel and waterway materials, represents about 8 percent of the
tonnage on the Missouri River.
Question 2. Why do you believe that Congress has directed you to
protect the barge industry on the Missouri River, and what does that
mean? Where can I find your exact authorities? Don't you have a great
deal of discretion in how you exercise your authorities along the river
to maximize all uses of the river?
Response. Section 9 of the 1944 Flood Control Act authorizes the
Missouri River Mainstem Reservoir System to be operated for the
purposes of flood control, navigation, irrigation, power, water supply,
water quality control, recreation, and fish and wildlife. Since
navigation is a Congressionally authorized project purpose, I
understand that the Corps is required to provide for navigation in its
management of the system. I also understand that navigation does not
have a priority position in system management, but must be balanced
with other authorized project purposes. The Corps of Engineers operates
the System following the guidelines that are identified in the Missouri
River Master Water Control Manual, which was revised over a 15-year
period involving extensive consultation to better balance the adverse
impacts of drought to all of the project purposes. We do have a certain
degree of discretion in operation of the system. During day-to-day
operation of the System, the Corps may have very minor deviations from
that identified in the Master Manual to respond to special
considerations. These deviations are coordinated with the affected
parties.
I reject the notion that the 2004 revision to the Master Manual is
the last word in Missouri River management. The Corps has been and will
continue to be engaged with the leaders and communities of the basin to
address the baleful effects of drought and to help these communities
achieve all the benefits available from wise management of this vast
but fragile resource.
Question 3. Do you agree with the Corps' recent analysis which
found that changing the navigation preclude to 40 million acre feet of
system storage would have a net positive economic impact along the
Missouri, and would have a minimal negative impact on the barge
industry?
Response. The analysis of a 40-million acre-foot preclude
determined that average annual Missouri River navigation benefits
(based analysis used to derive a National Economic Development plan)
would be reduced from $9.35 million to $9.26 million, a reduction of
about 1 percent. Effects on navigation on the Mississippi River were
not analyzed. Navigation on the Missouri River would be suspended
earlier and benefits would be reduced in only the more severe droughts
similar to the ones that occurred from 1930 through 1941 and from 2000
to the present. The Current Water Control Plan, which was first
followed in 2004 following its revision in March 2004, provided an
increase in the navigation preclude from 21 to 31 million acre feet.
This change was accomplished following 14 years of analyses and
communication, and it was supported by seven of eight basin states.
Question 4. I appreciate your recognition at the hearing that the
situation at Fort Peck is serious. But, how much higher would Fort Peck
currently be if the navigation preclude had been set at 44 million acre
feet, and if the drought conservation measures contained in the current
Master Manual had been in place during this current drought? How much
higher at 40 million acre feet?
Response. I visited Fort Peck last year, and I can testify first-
hand as to the devastating impact of the present drought on this
important resource and the communities which depend upon it for their
livelihoods and well-being. The severity of the current drought in the
upper Missouri River basin is not well understood around the nation, in
my view, and, if confirmed, I commit to work closely with you and other
leaders to do all within my power to find a better way to lessen the
impacts of drought on all parts of the Missouri River basin. Based on a
cursory analysis, a 44-million acre-foot preclude with the current
drought conservation measures would have resulted in no navigation in
2003. The estimated savings in terms of storage with both conservation
measures would have been about 5.2 million acre feet, which would
translate to an elevation change of about 8 feet at Fort Peck.
Navigation would have occurred in all years of the current drought up
to this year had the navigation preclude been set at 40 million acre
feet and the current conservation measures followed throughout the
drought. The current drought conservation measures, however, would have
saved about 1.5 million acre feet of water in the system for an
estimated gain of 2.5 feet at Fort Peck.
______
Responses of John Paul Woodley to Additional Questions from
Senator Vitter
Question 1. Mr. Woodley, the restoration of Coastal Louisiana is a
top priority for me, for the other members of Louisiana's congressional
delegation, and for the State of Louisiana. Once confirmed, how will
you exercise your leadership and devote federal resources to restore
coastal Louisiana and its wetlands?
Response. The restoration of Louisiana's coastal ecosystem is
important to me, too, and I believe it is a top ecological priority for
our country. The problems and potential solutions were recently
addressed in the Louisiana Coastal Area (LCA) Ecosystem Restoration
Study that my office recently received from the Corps of Engineers for
review. That study identifies several actions that could be taken in
the near term to address the problems of the coast, recognizing that
actual restoration is likely to take several decades and will certainly
require additional actions, which have not yet been fully studied or
even proposed at this time. If confirmed, I will work tirelessly to
secure the support of Congress the projects currently proposed. I will
ensure the full participation of the Corps in implementing the actions
that the Congress authorizes. In this regard, I have recommended an
increase in funding for planning ecosystem restoration in coastal
Louisiana to $20 in FY 2006, which is included in the President's FY
2006 budget.
Question 2. In Louisiana, we have a coastal environment crisis: the
state is losing a wetlands area equivalent in size to a football field
every 38 minutes. This negatively impacts everyone in the nation who
relies on resources supplied by Louisiana. Once confirmed, how would
you respond to this problem? How would you support the State of
Louisiana in responding to this problem?
Response. The scale of this problem is vastly larger than the more
familiar wetlands issues encountered elsewhere. Despite that scale, the
wetlands involved happen to be contained almost entirely within the
borders of Louisiana. Nonetheless, the ecological and economic reality
is that this is not simply Louisiana's problem. I believe that the
Corps and the State of Louisiana have already identified the right path
to ward the proper solution, which is an ongoing joint federal-state
effort, involving multiple state and federal agencies, like the one
that has recently produced the LCA Near Term Plan. I believe we need
not only to provide for the projects recommended in the near term plan
to be implemented as effectively and efficiently as possible, but also
to provide the means and mechanism for the multi-agency planning
process to continue. We should establish and equip an on-going effort
to develop the science, the technologies, and the new plans that will
be required in order to carry this effort into future decades. The
Federal government and the State of Louisiana should be equal partners
in this effort, supported by a multi-agency task force that can
recommend the best, full use of our combined resources.
Question 3. As the Corps initiates restoration of Louisiana's coast
how will it incorporate coordination and build partnerships with other
federal agencies, such as EPA, the state, and local communities?
Response. I believe that an ongoing multi-agency task force should
recommend the development, sequencing, and scheduling of restoration
activities, as well as monitor their implementation and their overall
effectiveness. The state and federal government, as equal partners in
the restoration effort, should be supported on the task force and its
workgroups by all the relevant agencies of their governments, as well
as by other stakeholders as they might deem appropriate. While the
Corps may be assigned significant responsibility for developing and
implementing the plan, all of those agencies should have a role that
reflects their responsibilities under the law, the resources they
control, and the expertise that they can contribute toward the overall
goals of the project.
______
Responses of John Paul Woodley to Additional Questions from
Senator Lautenberg
Question 1. The President's FY 2006 budget for Army Corps would
make enormous cuts in flood protection projects which are of great
importance to New Jersey--especially in view of the current flooding in
14 N.J. counties. Every flood control project in areas that are now
literally under water, have been zeroed-out in the president's budget.
More than 3,500 people have been evacuated so far and millions of
dollars in damage has been caused. Last year, New Jersey suffered
similar flood devastation. Could you explain to me how the decision was
made not to fund any of these clearly needed flood control projects?
Response. Given the President's overall priorities, including the
ongoing War on Terrorism and the need to reduce the deficit, funding is
not available to enable construction of all worthy Civil Works
projects. To make best use of available funding, the construction
portion of the Fiscal Year 2006 budget for the Army Civil Works program
focuses on making substantial progress on high return projects. The
predominant criterion that was used to identify the high return
projects was the ratio of remaining benefits to remaining costs. This
ratio ignores sunk costs and realized benefits, and compares the
economic returns from prospective investments to the costs of realizing
those returns. With the funding available for Fiscal Year 2006, we were
able to fund ongoing construction projects with remaining benefit--
remaining cost ratios of 3.0 to 1 or higher. Similar constraints
affected the planning and design program.
I sincerely regret that the construction of some worthy projects
and studies must be suspended or deferred, with the type of
consequences that you describe. For future Civil Works budgets, I will,
if confirmed, continue do my best to seek the funding needed for worthy
projects and studies, to ensure that the criteria for allocating
available funds are fair and reasonable, and to ensure that cases where
there are extraordinary or extenuating circumstances receive full
consideration in the budget process.
Question 2. The President has proposed cutting shore protection
funding by 32.3 percent compared to his FY 2005 proposal. The
Administration has also adopted the position that the federal
government no longer needs to assist coastal communities with beach
protection. Yet, by law we've made a 50-year commitment to the beach
projects that Congress has authorized. Do you believe the government
should honor this commitment?
Response. The change in the total funding requested for shore
protection from Fiscal Year 2005 to Fiscal Year 2006 reflects the sums
of individual allocation decisions rather than an explicit decision
about a shore protection total.
Both Fiscal Year 2005 and 2006 budgets included funding for initial
construction of beach nourishment projects. Unlike the Fiscal Year 2005
budget, the Fiscal Year 2006 budget also includes a proposal to fund
periodic renourishment at authorized storm damage reduction projects as
needed to mitigate the effects of Federal navigation operation and
maintenance on the nearby shorelines.
For projects involving periodic renourishment, the Administration's
position remains that, once initial construction has taken place,
renourishment to remedy shoreline impacts attributable to causes other
than Federal navigation operation and maintenance should be a non-
Federal responsibility.
The Army enters into a project cooperation agreement for each
project once it receives construction funds. Every agreement explicitly
recognizes that Federal financial participation is subject to the
availability of funds for the project. The Administration's budget
policy is reflected in the way funding in the budget is allocated or
not allocated among available projects. Should a shore protection
project that is not included in the budget be provided funds by
Congress in annual appropriations, we would use those funds on the
project as intended.
__________
Statement of Major General Don Timothy Riley, Nominated by the
President to be President and Member of the Mississippi River
Commission
Mr. Chairman and Members of the Committee, I am honored to appear
before you as the nominee for president and member of the Mississippi
River Commission.
Mr. Chairman, I would like to make a brief statement about the
Mississippi River Commission, the Mississippi River and Tributaries
(MR&T) project, and my qualifications for the position for which I have
been nominated.
The Mississippi River Commission, established by Act of Congress on
June 28, 1879, consists of seven members, all of whom are appointed by
the President of the United States subject to confirmation by the
Senate. Three members are Corps of Engineers officers, one of whom
serves as president; one member is from the National Oceanic and
Atmospheric Administration; and three members are from the civilian
sector, two of whom must be civil engineers. This unique blend of
military personnel and civilians encourages an exchange of information
and ideas from various points of view and the best professional advice
to the President.
From its inception in 1879, the Commission has been charged with
the vital task of planning and implementing a program of flood damage
reduction projects and navigation improvements on the Mississippi
River. More recently, project purposes have been expanded to include
environmental restoration. This task continues to be conducted in
concert with the myriad political institutions, individuals, and public
entities that have major interests in seeing that the water resources
needs and opportunities of the Mississippi Valley are evaluated,
planned, designed, constructed, and maintained. The current mission of
the Mississippi River Commission is to balance the needs of flood
control, navigation, recreation, and the environment in a sustainable
manner.
As established in 1879, the Commissioners are to serve as advisors
in planning and implementing water resource projects and programs on
the Mississippi River between the Head of Passes below New Orleans to
its headwaters. Since 1928, the Commission has spent a significant part
of its leadership on the Mississippi River and Tributaries project,
authorized by the Flood Control Act of May 15, 1928, to be implemented
under oversight of the Commission. The MR&T project extends generally
from the confluence of the Ohio River to the Head of Passes below New
Orleans and covers portions of seven states. It receives water from all
or portions of 31 states and part of two Canadian provinces, or roughly
41 percent of the contiguous United States. Effective planning, design,
construction, and operation of the widespread and complex MR&T project
have been assisted greatly by the Commission's active consultation with
the public, particularly on its semiannual Mississippi River inspection
trips, and by the high degree of professionalism that has been
developed in its staff.
The MR&T project is truly of national significance. As a result of
this project, damages have been reduced $25 for each $1 spent. For
example, a major flood on the lower Mississippi River would have
catastrophic effects on the inhabitants of the Mississippi Valley and
the economy of the nation were it not for the protection provided by
the levees and other flood control works throughout the project area.
Many have noted that the comprehensive project on the lower river
provided for passage of major floods in 1973, 1983, 1997, and other
years without the extensive damage suffered in the upper river area
during the 1993 and 1995 flood events.
In addition, the navigation features of the project are essential
to maintaining the river for shipping import and export commodities
between inland ports and world markets. In short, the navigation
features of the MR&T project are essential in peacetime and vital to
our national defense in times of emergency.
A reorganization of the U.S. Army Corps of Engineers in April 1997
placed the entire length of the Mississippi River within the
Mississippi Valley Division of the Corps of Engineers. The Commander of
this Division also serves as President of the Mississippi River
Commission. The reorganization now allows management of the Mississippi
River as a single, unified system and enables the Commissioners to more
effectively serve as advisors to the Division Commander and the Chief
of Engineers as authorized in the 1879 legislation.
The Commission members have been active as advisors to the Corps on
the upper Mississippi River since the reorganization. The Commission
has conducted annual inspection trips on the upper Mississippi River
since August 1997 and has held a series of public meetings in the St.
Paul, Rock Island, and St. Louis Districts each year. These meetings
are in addition to the semiannual inspection trips and public meetings
in the Memphis, Vicksburg, and New Orleans Districts. The high-water
and low-water inspection trips encourage the MRC to listen to the
sponsors, partners, general public, other federal agencies, and non-
government agencies on a regular basis. The public meetings held during
the inspection trips offer a vital forum for these groups and
individuals to address their concerns and ideas. The MRC is also
available to these groups and individuals during the downstream
portions of the trips, site visits, and other events and meetings held
off the Motor Vessel MISSISSIPPI during the inspection trips.
With regard to my personal qualifications, I have served as a
member of the U.S. Army since I was commissioned in 1973. Prior to
assuming command of the Mississippi Valley Division and becoming
President Designee of the Mississippi River Commission, I served as the
Deputy Chief of Staff, Engineer Headquarters, U.S. Army Europe based in
Heidelberg, Germany. My troop assignments included duty as platoon
leader, assistant, S-3, company executive officer, and company
commander, 14th Engineer Battalion, Fort Ord, California; Commander,
7th and 17th Engineer Battalions; and other troop assignments detailed
in my biography. In addition, I served as a Contract Construction
Engineer for the U.S. Army Corps of Engineers Far East District in
Korea.
As President Designee of the Mississippi River Commission since
September 2002, I have accompanied the Commission on high and low water
inspection trips of the Mississippi River and tributaries and have
participated in the public meetings held by the Commission. This
experience has given me considerable insight into the importance of the
Mississippi River and its Tributaries as a National resource for
transportation and recreation. Also, I have come to understand and
appreciate the need for a balanced, sustainable approach in resolving
the often conflicting requirements for flood control, navigation,
recreation, water supply and power generation, and environmental
protection and restoration.
I am a native of California and received a bachelor's degree from
the United States Military Academy at West Point in 1973. I later
received a master's degree from the University of California in civil
engineering in 1980. I am also a 1987 graduate of the U.S. Army Command
and General Staff College, School of Advanced Studies, and the United
States Army War College. I am a registered Professional Engineer in the
state of California.
I believe my background and experience qualify me for an
appointment to the Mississippi River Commission. If confirmed to the
position, I commit to leading the continual, balanced improvement of
the Mississippi River system and the MR&T project by recommending,
through the Commission's oversight responsibilities, the application of
the most modern practices in water resources engineering. I also look
forward to being part of a Commission that focuses not only on the
traditional roles of safely passing the Mississippi River Basin
floodwaters to the Gulf of Mexico and providing a safe and dependable
navigable waterway, but also incorporating programs and projects for
recreation, and environmental protection and restoration.
For your information, I have attached a complete personal biography
and a current list of members of the Mississippi River Commission.
This completes my prepared statement. I am pleased to respond to
any questions.
______
Response of Major General Don T. Riley to Additional Question from
Senator Inhofe
Question 1. Flooding is still one of the major issues facing those
living near the Mississippi, and an issue that confronts the Commission
as well. One concern that has been raised with respect to flood control
projects is how the Corps calculates benefits. Because of the type of
economic inputs the Corps utilizes, it can frequently result in a
project where flood control is justified for the middle and upper class
neighborhoods in a community but is not justified for the poorer
sections of a community. While the economic damage that flooding can
cause is considerable, it is not the only concern, in fact, most people
probably worry about their safety and the safety of their family than
damage to property. For most other federal agencies, human health and
safety are generally accorded the highest priority. I would be
interested in your thoughts on how can we better integrate human health
and safety issues in how the federal government sets flood control
policy?
Response. The Corps is developing proposals to make our planning
process more efficient and responsive to contemporary needs. Under
current criteria, planning studies evaluate, display, and compare the
full range of alternative plans' effects across all four Principles and
Guidelines' accounts. These accounts include National Economic
Development, Environmental Quality, Regional Economic Development, and
Other Social Effects.
<bullet> plan may be a candidate for selection if it has, on
balance, net beneficial effects.
<bullet> May select and recommend any one of the candidate plans
<bullet> The basis for selection will consider the beneficial and
adverse effects in all four accounts),
<bullet> Must identify a National Economic Development Plan
The Corps has historically funded projects that have benefit to
cost ratios (based on the NED account) greater than 1.0. The challenge
will be to consider for funding projects with lower benefit to cost
ratios that have higher outputs in the other three accounts.
______
Responses by Major General Don T. Riley to Additional Questions from
Senator Vitter
Question 1. Major General Riley, you testified on Coastal Louisiana
issues when you served as Director of Civil Works for the Army Corps of
Engineers. From your experience, could you highlight the opportunities
featured in the LCA restoration plan?
Response. The LCA Ecosystem Restoration Program addresses the most
critical restoration needs and consists of various components that
could commence implementation in the near term. The Program recommends
15 near-term features aimed at addressing the critical restoration
needs. The components currently recommended for authorization include
five critical near-term ecosystem restoration features that could be
implemented expeditiously, a science and technology program to decrease
scientific and engineering uncertainties and to further optimize
efforts to achieve ecosystem restoration, a demonstration program
consisting of a series of demonstration projects to evaluate the
effectiveness of advances developed by the S&T Program through field
applications, and a beneficial use of dredged material program to take
greater advantage of using existing sediment resources made available
by maintenance activities to build and nourish vital coastal wetlands.
The five critical restoration features include:
<bullet> MRGO Environmental Restoration Features
<bullet> Small Diversion at Hope Canal
<bullet> Barataria Basin Barrier Shoreline Restoration
<bullet> Small Bayou Lafourche Reintroduction
<bullet> Medium Diversion with Dedicated Dredging at Myrtle
Grove
The five critical near-term ecosystem restoration features,
demonstration projects, and beneficial use of dredged material projects
are all subject to the approval of feasibility level of detail decision
documents by the Secretary of the Army.
The LCA Ecosystem Restoration Program also recommends ten
additional near-term restoration features for further investigations,
in anticipation that these features may be potentially recommended for
future Congressional authorization as part of the program. The
investigations would be conducted under existing authority and include:
<bullet> Multi-purpose Operation of the Houma Canal Lock
<bullet> Terrebonne Basin Barrier-Shoreline Restorations
<bullet> Land Bridge between Caillou Lake and Gulf of Mexico
<bullet> Small Diversion at Convent/Blind River
<bullet> Amite River Diversion Canal
<bullet> Medium Diversion at White's Ditch
<bullet> Stabilization of Gulf Shoreline at Pointe Au Fer
Island
<bullet> Atchafalaya River Conveyance to Northern Terrebonne
Marshes
<bullet> Modification of Caernarvon Diversion
<bullet> Modification of Davis Pond Diversion
In addition, a program to investigate the potential modification of
existing water resources projects is also recommended in order to
further restore the Louisiana coastal ecosystem. These investigations
would focus on improving the environmental performance of existing
projects.
And finally, several large-scale and long-term coastal restoration
concepts that could potentially be recommended for future authorization
beyond the near-term plan were identified and recommended for further
investigations. These investigations will address the need to reduce
coastal wetland losses and possibly achieve a net restoration. The
studies and their resultant projects, if authorized and constructed,
could significantly restore environmental conditions that existed prior
to large-scale alteration of the natural ecosystem. The investigations
include:
<bullet> Acadiana Bay Estuarine Restoration Study
<bullet> Upper Atchafalaya Basin Study
<bullet> Chenier Plain Freshwater Management and Allocation
Reassessment Study
<bullet> Mississippi River Delta Management Study
<bullet> Mississippi River Hydrodynamic Model
<bullet> Third Delta Study
At October 2004 price levels, the currently estimated overall first
cost of the LCA Ecosystem Restoration Program, which includes the
components recommended for authorization, the related investigations
and the ten additional future features, is $1,996,500,000.
Question 2. From your experience, in what ways have you found the
degradation of Coastal Louisiana to be of national significance to the
nation's economy and national security?
Response. The conditions of current and continuing coastal land
loss in coastal Louisiana leave the communities and businesses in south
Louisiana in a position of ever increasing risk. Smaller tropical
storms and hurricanes are inflicting escalating levels of damage with
increasing frequency. The population base and business communities in
south Louisiana support some of the nation's most significant resource
industries - oil and gas production, commercial fishing in numerous
forms, ship building and marine fabrication. If the degradation of
coastal Louisiana wetlands is not addressed and the people and business
operations in this part of the nation are impacted, not only will it be
a threat of great individual and personal loss, but it will also be a
tremendous loss to major industries and the nation.
<bullet> Louisiana contains one of the largest expanses of coastal
wetlands in the contiguous U.S. and accounts for 90 percent of the
total coastal marsh loss occurring in the Nation.
<bullet> Approximately 70 percent of all waterfowl that migrate
through the U.S. use the Mississippi and Central flyways. With over 5
million birds wintering in Louisiana, the Louisiana coastal wetlands
are a crucial habitat to these birds, as well as to neotropical
migratory songbirds and other avian species that use the wetlands as
crucial stopover habitat.
<bullet> Recent data from the U.S. Fish and Wildlife Services
(USFWS) show expenditures on recreational fishing (trips and equipment)
in Louisiana to be nearly $703 million, and hunting expenditures were
$446 million for 2001.
<bullet> Louisiana's coastal wetlands and barrier island systems
enhance protection of an internationally significant commercial-
industrial complex from the destructive forces of storm waves and
tides. Deep-draft ports in Louisiana, which includes the Port of South
Louisiana, handle more tonnage than any other port in the Nation.
<bullet> Louisiana contains the most active segment of the Nation's
Gulf Intracoastal Waterway (GIWW).
<bullet> In 2000, Louisiana led the Nation with production of 592
million barrels of oil and condensate (including the outer continental
shelf (OCS)), valued at $17 billion and was second in the Nation in
natural gas production with $1.3 billion (excluding OCS and casing head
gas). In addition, nearly 34 percent of the Nation's natural gas supply
and over 29 percent of the Nation's crude oil, moves through the state
and is connected to nearly 50 percent of the U.S. refining capacity.
<bullet> Coastal Louisiana is home to more than 2 million people,
representing 46 percent of the state's population. When investments in
facilities, supporting services activities, and the urban
infrastructure are totaled, the capital investment in the Louisiana
coastal area total approximately $100 billion.
<bullet> Excluding Alaska, Louisiana produced the Nation's highest
commercial marine fish landing (about $343 million) excluding mollusk
landings such as clams, oysters, and scallops.
These economic and habitat values, which are protected and
supported by the coastal wetlands of Louisiana, are significant on a
National level.
__________
Statement of Brigadier General William T. Grisoli, Nominated by the
President to be Member of the Mississippi River Commission
Mr. Chairman and Members of the Committee, I am honored to appear
before you as a nominee to become a member of the Mississippi River
Commission.
Mr. Chairman, I would like to make a brief statement about the
Mississippi River Commission, the Mississippi River and Tributaries
(MR&T) project, and my qualifications for the position for which I have
been nominated.
The Mississippi River Commission, established by Act of Congress on
June 28, 1879, consists of seven members, all of whom are appointed by
the President of the United States subject to confirmation by the
Senate. Three members are Corps of Engineers officers, one of whom
serves as president; one member is from the National Oceanic and
Atmospheric Administration; and three members are from the civilian
sector, two of whom must be civil engineers. This unique blend of
military personnel and civilians encourages an exchange of information
and ideas from various points of view and the best professional advice
to the President.
From its inception in 1879, the Commission has been charged with
the vital task of planning and implementing a program of flood damage
reduction projects and navigation improvements on the Mississippi
River. More recently, project purposes have been expanded to include
environmental restoration. This task continues to be conducted in
concert with the myriad political institutions, individuals, and public
entities that have major interests in seeing that the water resources
needs and opportunities of the Mississippi Valley are evaluated,
planned, designed, constructed, and maintained. The current mission of
the Mississippi River Commission is to balance the needs of flood
control, navigation, recreation, and the environment in a sustainable
manner.
As established in 1879, the Commissioners are to serve as advisors
in planning and implementing water resource projects and programs on
the Mississippi River between the Head of Passes below New Orleans to
its headwaters. Since 1928, the Commission has spent a significant part
of its leadership on the Mississippi River and Tributaries (MR&T)
project, authorized by the Flood Control Act of May 15, 1928, to be
implemented under oversight of the Commission. The MR&T project extends
generally from the confluence of the Ohio River to the Head of Passes
below New Orleans and covers portions of seven states. It receives
water from all or portions of 31 states and part of two Canadian
provinces, or roughly 41 percent of the contiguous United States.
Effective planning, design, construction, and operation of the
widespread and complex MR&T project have been assisted greatly by the
Commission's active consultation with the public, particularly on its
semiannual Mississippi River inspection trips, and by the high degree
of professionalism that has been developed in its staff.
The MR&T project is truly of national significance. As a result of
this project, damages have been reduced $25 for each $1 spent. For
example, a major flood on the lower Mississippi River would have
catastrophic effects on the inhabitants of the Mississippi Valley and
the economy of the Nation were it not for the protection provided by
the levees and other flood control works throughout the project area.
Many have noted that the comprehensive project on the lower river
provided for passage of major floods in 1973, 1983, 1997, and other
years without the extensive damage suffered in the upper river area
during the 1993 and 1995 flood events.
In addition, the navigation features of the project are essential
to maintaining the river for shipping import and export commodities
between inland ports and world markets. In short, the navigation
features of the MR&T project are essential in peacetime and vital to
our national defense in times of emergency.
A reorganization of the U.S. Army Corps of Engineers in April 1997
placed the entire length of the Mississippi River within the
Mississippi Valley Division of the Corps of Engineers. The Commander of
this Division also serves as President of the Mississippi River
Commission. The reorganization now allows management of the Mississippi
River as a single, unified system and enables the Commissioners to more
effectively serve as advisors to the Division Commander and the Chief
of Engineers as authorized in the 1879 legislation.
The Commission members have been active as advisors to the Corps on
the upper Mississippi River since the reorganization. The Commission
has conducted annual inspection trips on the upper Mississippi River
since August 1997 and has held a series of public meetings in the St.
Paul, Rock Island, and St. Louis Districts each year. These meetings
are in addition to the semiannual inspection trips and public meetings
in the Memphis, Vicksburg, and New Orleans Districts. The high-water
and low-water inspection trips encourage the MRC to listen to the
sponsors, partners, general public, other federal agencies, and non-
government agencies on a regular basis. The public meetings held during
the inspection trips offer a vital forum for these groups and
individuals to address their concerns and ideas. The MRC is also
available to these groups and individuals during the downstream
portions of the trips, site visits, and other events and meetings held
off the Motor Vessel MISSISSIPPI during the inspection trips.
With regard to my personal qualifications, I have served as a
member of the U.S. Army since I was commissioned in 1976. Prior to
assuming command of the Northwestern Division, I served as the Deputy
Director of Army Transformation in the Office of the Deputy Chief of
Staff for Operation, Headquarters Department of the Army, Pentagon. My
troop and unit assignments include duty as a Commander, 41st Engineer
Battalion, 10th Mountain Division, Ft Drum, NY and Commander, 555
Engineer Group, Ft Lewis, WA. In addition, I served as a Project
Engineer, Far East District, Corps of Engineers, in Korea, and Deputy
Resident Engineer, Chief, Information Management Office, and Deputy
District Engineer, New Orleans District, Louisiana.
As a Member Designee of the Mississippi River Commission since July
2003, I have accompanied the Commission on high and low-water
inspection trips of the Mississippi River and its tributaries and have
participated in the public meetings held by the Commission. This
experience has given me considerable insight into the importance of the
Mississippi River and its tributaries as a National resource for
transportation and recreation. Also, I have come to understand and
appreciate the need for a balanced, sustainable approach in resolving
the often conflicting requirements for flood control, navigation,
recreation, water supply and power generation, and environmental
protection and restoration.
I am a native of New York and received a bachelor's degree from the
United States Military Academy at West Point in 1976. I later received
a master's degree from the University of Illinois in civil engineering
in 1983. I am also a 1988 graduate of the U.S. Army Command and General
Staff College, and a 1997 graduate of the Industrial College of the
Armed Forces. I am a registered Professional Engineer in the State of
Virginia.
I believe my background and experience qualify me for an
appointment to the Mississippi River Commission. If confirmed to the
position, I commit to leading the continual, balanced improvement of
the Mississippi River system and the MR&T project by recommending,
through the Commission's oversight responsibilities, the application of
the most modern practices in water resources engineering. I also look
forward to being part of a Commission that focuses not only on the
traditional roles of safely passing the Mississippi River Basin
floodwaters to the Gulf of Mexico and providing a safe and dependable
navigable waterway, but also incorporating programs and projects for
recreation, and environmental protection and restoration.
This completes my prepared statement. I would be pleased to respond
to any questions.
______
Responses of Brigadier General Grisoli to Additional Questions from
Senator Inhofe
Question 1. A major concern on the Mississippi is the deteriorating
condition of the navigation system. The impression is that the backlog
of needed O&M repairs is growing every year. Do you feel that is the
case?
Response. In times of such austere budgets, unfunded maintenance
needs continue to grow. As a result we see increasing frequency and
durations of emergency closures at U.S. Army Corps of Engineers locks
and dams. The Operations and Maintenance, General program has not had
sufficient funding to keep pace with age related repairs. The average
age of locks on the Upper Mississippi River is about 50 years old. Age
and high usage has caused the locks to deteriorate at a faster rate and
the necessary funding has not increased at the same rate for needed
repairs and major rehabilitation.
In order to combat this and minimize the impact of backlog, the
Corps has met with the waterway users to prioritize our maintenance
needs. This prioritization is based on risk and reliability on a system
basis. That is, those items which have the highest likelihood of having
the greatest impact are given priority for available funds.
Question 2. In an era of budget deficits, dramatic increases in
federal spending, even in necessary spending, is easier said than done.
In reality there is precious little extra money available to throw at
the problem. Are there systemic or institutional changes that could be
made to transform the incentives of both the agency and users?
Response. There is a need to combine the efforts of Federal
agencies having responsibility in water resources to meet needs on a
watershed basis. The U.S. Army Corps of Engineers is investigating the
possibility of demonstration watershed studies to develop and sharpen
skills which are necessary to do this. We also expect to develop
collaborative procedures, look at necessary institutional arrangements,
and leverage all sources of funding to accomplish this.
__________
Statement of D. Michael Rappoport, Nominated by the President to be a
Member of the Board of Trustees of the Morris K. Udall Foundation
Mr. Chairman, Members of the Committee, my name is David Michael
Rappoport of Scottsdale, Arizona and I am Associate General Manager for
Public & Communications Services at the Salt River Project, a public
utility providing electricity and water to much of the Metropolitan
Phoenix area. In that capacity, I am responsible for community,
corporate and government relations as well as communication, consumer
and education services.
Thank you for this opportunity to present myself as a Presidential
nominee for the position of Trustee of the Morris K. Udall Scholarship
and Excellence in National Environmental Policy Foundation. It is a
particular privilege for me to be nominated by President Bush to serve
another term on the Foundation's Board of Trustees.
I would also like to express my appreciation to Senator John McCain
and Senator Jon Kyl for their letters to the Committee on my behalf. If
appropriate, I request that they be included in the hearing record.
My association with Mo Udall extends back more than 30 years to a
time when he was instrumental in building support for the Central
Arizona Project, a major water supply system of energy, pumping and
canal facilities. It continued through public policy activities
involving land use planning, surface mining and reclamation, Indian
water rights, the safety of Federal dams and several wilderness
proposals.
In the early years, the interests I represented were not always in
total agreement with the positions so effectively advocated by Mo. But
for most of our association, I was among the many who supported his
leadership on a variety of issues of national import. In later years, I
had the good fortune to either chair or serve on one of Mo's Business
Advisory Committees, Energy and Water Task Forces as well as several of
his re-election committees. And, like so many others, I came to admire
his sense of civility, his ability to fashion consensus and above all,
his integrity and commitment to public service.
When Congress established the Udall Foundation it gave special
tribute to these qualities. Specifically, in 1992 Congress authorized
to be appropriated $40 million to the Morris K. Udall Scholarship and
Excellence in National Environmental Policy Trust Fund. To date,
approximately $31 million has been appropriated for deposit into the
fund. By law, we are required to invest monies appropriated in public
debt securities.
It is important to note that the Foundation operates primarily on
the interest earned from those investments and on a modest annual
appropriation. As Chairman of the Foundation's Management Committee, I
oversee those investments as well as the Foundation's dedicated
professional staff.
Basically, the funds are administered by the Foundation to, among
other things:
<bullet> Award scholarships, fellowships, internships and grants
for study in fields related to the environment, Native American and
Alaska Native policy;
<bullet> Develop resources to train professionals in the fields of
environmental, Native American and Alaska Native health care and tribal
public policy; and
<bullet> Establish a Program for Environmental Policy Research and
Environmental Conflict Resolution in the Udall Center located at the
University of Arizona.
On behalf of the Foundation Board of Trustees, I am pleased to
report that since we began in 1994, the Foundation has:
<bullet> Awarded 755 scholarships and 18 Ph.D. fellowships to
outstanding students in all 50 states, Guam, Puerto Rico and the
District of Columbia;
<bullet> Administered 114 internships for Native American and
Alaskan Native college students pursuing careers in health care and
tribal public policy;
<bullet> Hosted seven major conferences and forums on contemporary
environmental and Native American issues; and
<bullet> Sustained support for the University of Arizona Udall
Center for Studies in Public Policy.
In addition, the Foundation, based in Tucson, Arizona, is home to
the U.S. Institute for Environmental Conflict Resolution, created by
Congress in 1999 to provide mediation and other alternative dispute
resolution services. Today the Institute is regarded both in and out of
government as a trusted convener of diverse parties engaged in
difficult environmental controversies.
Also located within the ambit of the Foundation is the Native
Nations Institute for Leadership, Management and Policy, which provides
educational opportunities and planning resources for tribal leaders.
Both the Foundation and the University of Arizona are especially proud
of our collaboration in this unique and noteworthy endeavor.
Mr. Chairman, I am here to assure you and the Committee that the
Foundation is completely committed to carrying out the purposes
intended by Congress. Also, I am pleased to report that the results of
an independent audit conducted by Clifton, Gunderson LLP, dated
November 30, 2004 concluded, among other things, that the Foundation's
balance sheets and related statements as of September 30, 2004:
``Present fairly, in all material respects, the financial
position of the Foundation . . . in conformity with accounting
principles generally accepted in the United States of
America.''
Further, I am pleased to report that the necessary management
controls are in place.
In closing, I would suggest that the Foundation's purposes have
been best captured by Mo's own words of a few years ago:
``America is never done like a poem or a painting. . .''
All of us at the Foundation believe we are well on the way to
helping future generations care enough to change things. I would
welcome the opportunity to serve another term as a Udall Foundation
Trustee to continue to help meet that challenge.
That concludes my statement. I am prepared to answer any questions
the Committee may have at this time. Also, I am willing to appear at
the request of any duly constituted committee of Congress as a witness.
Finally, I know of no matters currently that would put me in a conflict
of interest with the Board of Trustees should I be confirmed by the
Senate.
Mr. Chairman, I have with me the Foundation's recently released
2004 Annual Report. With your permission, I would like to submit copies
of it for appropriate reference.
Thank you.
______
Response of D. Michael Rappoport to Additional Question from
Senator Inhofe
Question. You have now been a member of the Foundation for several
years. Based on your experiences, what is your assessment of how the
Foundation operates; what in your view have been some successes of the
foundation; and if it needs changing, what would be your suggestions
for doing so?
Response. In my opinion, and I believe it is a view anchored in
both empirical and perceptual evidence, the Morris K. Udall Scholarship
and Excellence in National Environmental Policy Foundation (Foundation)
operates very efficiently producing noteworthy results with relatively
modest annual appropriations by the Congress. Since the Foundation
began operating in 1994, it has:
<bullet> Awarded 755 scholarships and 18 Ph.D. fellowships to
outstanding students in all 50 states, Guam, Puerto Rico and the
District of Columbia;
<bullet> Administered 114 internships for Native American and
Alaska Native college students pursuing careers in health care and
tribal public policy;
<bullet> Hosted seven major conferences and forums on contemporary
environmental and Native American issues.
Created by Congress in 1999, the U.S. Institute for Environmental
Conflict Resolution (Institute) has provided mediation and alternative
dispute resolution services in more than 300 cases. The Institute's
annual appropriation has been on the order of $1.3 million for the last
several years and it continues to generate revenue from services
provided
Congress also authorized the Foundation to transfer a portion of
its annual appropriations, beginning in FY 2001, to the Native Nations
Institution (NNI) which has provided executive education to more than
1,000 councilors, presidents and senior managers from over 100 Indian
nations. In partnership with the Harvard Project on American Indian
Economic Development the NNI has developed key research and strategic
assistance on tribal economic development, leadership and self-
determination.
Clearly, in view of the strong success of the Foundation, Institute
and NNI and our dedicated professional staff, I personally have no
operational changes to recommend at this time.
______
Response of D. Michael Rappoport to Additional Question from
Senator Jeffords
Question. The U.S. Institute for Environmental Conflict Resolution
is an integral part of the Udall Foundation. Through its first 5 years,
the Institute was involved in more than 300 cases and projects in 35
states to provide mediation, facilitation and related services to
assist in resolving federal environmental conflicts. I applaud the
Institute and wish it continued success. Do you think it would be
appropriate for Congress, and this Committee in particular, to call on
the Institute directly to mediate discussions with key stakeholders in
an effort to reach consensus on legislative issues under consideration?
Response. Generally speaking, and on behalf of the Foundation, the
Institute would welcome the opportunity to respond to any Congressional
requests for assistance in finding a consensus among diverse interests
engaged in difficult environmental controversies. However, in my
opinion, there may well be two constraints on the Institute's ability
to assist Congress as posed in the question.
First, the Institute is within the executive branch of the federal
government, and it is currently authorized to assist in resolving
disputes that involve a federal agency and concern the environment,
public lands or natural resources. The Institute would be able to
mediate discussions with key stakeholders related to legislative issues
if a federal agency were involved so long as Congress believed there
were no separation of power issues.
The second limitation is funding. The Institution's funding
includes a small appropriation ($1.3 million a year since FY 2002) and
also fees for its services (approximately $750,000 net of expenses in
FY 2004). While the Institute would be pleased to assist Congress, any
new projects would require attendant funding through fees or
appropriations.
I would be pleased to bring together the appropriate Foundation and
Institute staff with any representatives of the Committee to respond
further to this question.
Statement of Michael Butler, Nominated by the President to be a Member
of the Board of Trustees of the Morris K. Udall Foundation
Mr. Chairman, thank you for this opportunity to address the record
regarding my appointment by President George W. Bush to the Board of
Trustees of the Morris K. Udall Foundation for Scholarship and
Environmental Excellence in National Environmental Policy. I appreciate
the opportunity to testify in writing, and I am willing to appear at
the request of any duly constituted committee of Congress as a witness.
Concerning my ability to serve, I know of no matters currently that
would put me in a conflict of interest with the Board of Trustees
should I be confirmed by the Senate.
Secondly, my experience and education have prepared me to serve in
the capacity of board trustee. As the executive director of a 60-year-
old wildlife and conservation non-profit in Tennessee, I am thoroughly
familiar with non-profit organizational management, budgetary
processes, and board duties, both fiduciary and volunteer.
Additionally, as a classically trained wildlife biologist and
former Director of Conservation for the Tennessee Conservation League,
I have worked in several areas similar in scope to the work of the
Foundation, particularly in natural resource conflict-resolution
efforts, the creation of successful natural resource policy, and
support of natural resource education programs.
The Udall Foundation provides a valuable national service, as the
environmental challenges facing our country require workable solutions.
It is Morris K. Udall's commitment to civility, integrity, and
consensus that makes the Foundation's approach to environmental
challenges so vitally important.
I consider it an honor to be selected to serve on this board, and
look forward to furthering the work of the Foundation. Should you or
any member of your committee wish to contact me, please feel free to do
so at your convenience.
<all>