<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:74705.wais]
LESSONS FROM THE LABORATORIES OF DEMOCRACY: ENVIRONMENTAL INNOVATION IN
THE STATES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 13, 2000
__________
Serial No. 106-263
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs
DAVID M. McINTOSH, Indiana, Chairman
PAUL RYAN, Wisconsin DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia TOM LANTOS, California
LEE TERRY, Nebraska PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho HAROLD E. FORD, Jr., Tennessee
DAVID VITTER, Louisiana
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Marlo Lewis, Jr., Staff Director
Barbara F. Kahlow, Professional Staff Member
Gabriel Neil Rubin, Clerk
Elizabeth Mundinger, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on September 13, 2000............................... 1
Statement of:
Hackney, Joe, North Carolina State Representative, chairman,
environment committee, National Conference of State
Legislatures; Lynn Scarlett, executive director, Reason
Public Policy Institute; Jim Seif, secretary, Pennsylvania
Department of Environmental Protection; Langdon Marsh,
director, Oregon Department of Environmental Quality; Karen
Studders, commissioner, Minnesota Pollution Control Agency;
Lisa Polak Edgar, deputy director, Florida Department of
Environmental Protection; Erik Olson, senior attorney,
Natural Resources Defense Council; and Christopher Recchia,
deputy commissioner, Vermont Department of Environmental
Conservation............................................... 32
Letters, statements, etc., submitted for the record by:
Chenoweth-Hage, Hon. Helen, a Representative in Congress from
the State of Idaho, prepared statement of.................. 30
Edgar, Lisa Polak, deputy director, Florida Department of
Environmental Protection, prepared statement of............ 115
Hackney, Joe, North Carolina State Representative, chairman,
environment committee, National Conference of State
Legislatures, prepared statement of........................ 35
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 23
Marsh, Langdon, director, Oregon Department of Environmental
Quality, prepared statement of............................. 85
Olson, Erik, senior attorney, Natural Resources Defense
Council, prepared statement of............................. 123
Recchia, Christopher, deputy commissioner, Vermont Department
of Environmental Conservation, prepared statement of....... 137
Ryan, Hon. Paul, , a Representative in Congress from the
State of Wisconsin:
Dr. Goklany's papers..................................... 4
Prepared statement of.................................... 18
Scarlett, Lynn, executive director, Reason Public Policy
Institute, prepared statement of........................... 56
Seif, Jim, secretary, Pennsylvania Department of
Environmental Protection, prepared statement of............ 76
Studders, Karen, commissioner, Minnesota Pollution Control
Agency, prepared statement of.............................. 91
LESSONS FROM THE LABORATORIES OF DEMOCRACY: ENVIRONMENTAL INNOVATION IN
THE STATES
----------
WEDNESDAY, SEPTEMBER 13, 2000
House of Representatives,
Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:45 p.m., in
room 2447, Rayburn House Office Building, Hon. Paul Ryan (vice
chairman of the subcommittee) presiding.
Present: Representatives Ryan, Terry, Kucinich, and
Sanders.
Staff present: Marlo Lewis, Jr., staff director; Barbara F.
Kahlow and Jonathan Tolman, professional staff members; Bill
Waller, counsel; Gabriel Neil Rubin, clerk; Elizabeth
Mundinger, minority counsel; Ellen Rayner, minority chief
clerk; and Jean Gosa, minority assistant clerk.
Mr. Ryan. The hearing will come to order.
This is a hearing of the Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs. I am Paul
Ryan from Wisconsin.
I will begin with a brief opening and then I will yield to
my colleague from Nebraska, Mr. Terry, and then the ranking
member, Mr. Kucinich, who I think is on his way over.
Let me begin by thanking the witnesses, all of you, for
coming some great distances to testify today. We are very
interested in what you have to say on this very enlightening
and important topic.
In the Almanac of American Politics, 2000, Michael Barone
wrote, ``the initiative in shaping public policy is leeching
out of Washington to the States, to the localities, to the
private sector.''
Although Barone primarily had in mind State, local, and
private sector achievements in welfare reform, crime reduction
and wealth creation, an impressive, albeit seldom publicized
shift in the initiative from Washington to the States is also
occurring in environmental policy.
Today's hearing will showcase innovative environmental
solutions that may surprise many of us in Washington-solutions
tested in the ``laboratories of democracy,'' otherwise known as
the States.
Today's panel of witnesses include some of America's
leading environmental policy innovators. I am very pleased to
welcome Langdon Marsh, the director of Oregon's Department of
Environmental Quality; Jim Seif, secretary of Pennsylvania's
Department of Environmental Protection; Karen Studders, the
commissioner of Minnesota's Pollution Control Agency; and Lisa
Polak Edgar, the deputy director of Florida's Department of
Environmental Protection.
Each of you has a major environmental success story, or
several such stories, to tell. We are eager to learn why your
agency instituted those reforms, what results you have achieved
and what lessons, if any, your experience offers for other
State and Federal policymakers.
I would also like to extend a warm welcome to North
Carolina Representative Joe Hackney, who chairs the National
Conference of State Legislatures' Environment Committee; and
Lynn Scarlet, the executive director of the Reason Foundation
Public Policy Institute.
Mr. Hackney, among other things, will discuss what changes
in national policy would encourage the kinds of environmental
success stories our State agency witnesses will be sharing with
us today.
Ms. Scarlett's organization maintains the most
comprehensive research program on State environmental
innovation of any think tank in the country. Thank you for your
intellectual leadership.
Finally, I would like to welcome our minority witnesses,
Erik Olson, the senior attorney at the Natural Resources
Defense Council, and Christopher Recchia, a member of the
Northeast States for Coordinated Air Use Management and deputy
commissioner of the Vermont Department of Environmental
Conservation.
Over the past 30 years, the United States has taken a
largely top-down command-and-control, one-size-fits-all
approach to environmental protection.
When the environmental problems facing this country were of
the big and obvious variety--``haystack'' problems like burning
rivers, soot-belching smokestacks, and haphazardly dumped toxic
wastes-the technologically prescriptive, centralized-from-
Washington approach was feasible and reasonably effective.
However, after three decades, the old approach is beginning
to produce diminishing returns and even, in some cases,
counterproductive results.
For example, Superfund was an extremely popular program
when it was enacted. But today, most observers acknowledge
Superfund is mired in litigation, it squanders billions of
dollars, and yields little discernible benefit to public
health.
Another example, one that I am very familiar with as a
Wisconsinite, is the oxygenate requirement for gasoline in the
Clean Air Act Amendments of 1990. To meet that mandate,
petroleum producers had to put MTBE in the gasoline supply.
Regrettably, MTBE is now contaminating groundwater in some
areas of the country. We really felt this one in my home State.
The original centralized, command-and-control approach
cannot easily solve today's more elusive and dispersed ``needle
in a haystack'' issues, such as species habitat conservation,
agricultural runoff, and watershed management.
Yet, national priorities and methods have changed little
since the Environmental Protection Agency was founded in 1970
with its major focus on point source pollution and traditional
toxins.
While Federal environmental policy has largely remained
static over the last several decades, State environmental
agencies have been moving to fill the void. States are setting
priorities, developing partnerships with the EPA and the
private sector and achieving measurable results.
States are experimenting with incentive-based programs that
foster technological innovation and encourage companies to go
beyond mere compliance.
In addition, States are basing environmental decisions on
sound science, risk assessment, and other tools that maximize
benefits with limited resources.
Ultimately, States may be the key to successfully solving
the environmental issues of the 21st century.
Of course, the topic of today's hearing is not without
controversy. Some critics of State environmental performance
warn that any shift of authority from Washington to the States
will trigger a ``race to the bottom.''
The critics fear that absent rigorous control by the EPA
the States will compete for business investment by lowering
environmental standards and relaxing environmental enforcement.
In part, such fears are based upon the opinion that the
States allowed or even promoted environmental degradation until
President Nixon and Congress created the EPA in 1970 and
Federalized environmental policy.
This reading of the historical record is very questionable.
Recently, using the EPA data, Indur Goklany, a manager of
science and engineering at the U.S. Department of Interior,
shows that air quality began to improve substantially in the
decade before federalization, especially for pollutants, such
as particulate matter and sulfur dioxide, which were generally
recognized as public health problems at the time.
Goklany further notes that between 1960 and 1970, the
number of State air quality programs increased from 8 to 50.
That is pretty startling. Many jurisdictions tightened their
air quality standards during that decade. Such actions, some of
which were quite innovative, look more like a race to the top
than a race to the bottom.
I would like to request that two of Dr. Goklany's papers be
included in the record. Without objection.
[The information referred to follows:]
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Mr. Ryan. Whether or not Goklany's historical scholarship
is correct, current reality suggests that States are ready,
willing, and able to exercise greater authority and
responsibility for environmental protection.
States today are running most of the clean water programs,
clean air programs, safe drinking water programs, and toxic
cleanup programs Congress created.
According to the Environmental Council of States, States
conduct about 75 to 80 percent of environmental enforcement
actions taken by the EPA and the States combined, including at
least 97 percent of all enforcement inspections.
States also do most of the spending for environmental
protection--a point that should not be overlooked--about $12.5
billion in fiscal year 1996, which is almost twice as much as
the EPA's entire budget.
States are prolific environmental legislators, enacting
over 700 environmental laws in 1997 alone, at least half of
which dealt with programs not mandated by Federal law.
Moreover, 80 percent of the States have at least one Clean Air
Standard that exceeds the Federal minimum standard, according
to a study by the Council of State Governments.
Clearly, Washington does not have a monopoly on
environmental experience, wisdom, or talent. I am very eager to
learn from those of you who have traveled great distances, who
work in the environmental laboratories of democracy.
I would like to thank all the witnesses for participating
in today's hearing.
[The prepared statement of Hon. Paul Ryan follows:]
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Mr. Kucinich. Thank you very much, Mr. Chairman. I
appreciate the fact that this hearing is being held on State
innovations in environmental policy.
I welcome all the witnesses to our committee room.
Today we are going to hear from a few of the States that
have taken the lead in finding new and innovative ways to more
efficiently and effectively implement our environmental laws.
Many of these programs are still in the testing phase; however,
they hold a great deal of promise and I am looking forward to
hearing about them.
We will hear about States that are shifting resources to
regional offices that are better suited to address local
issues, States that are shifting their focus to the results of
environmental protections instead of the process, States that
are focusing on incentives instead of punishment, and States
that are working together to implement changes that would not
be feasible if only applied within one State's borders. All of
these ideas are worth exploring and I look forward to hearing
about them.
Mr. Chairman, because different States have different
environmental problems, they should be able to target local
priorities. In addition, States often have expertise in local
issues and can more easily consult with the people in the
affected community. They are laboratories for new ideas--some
of which will work well for that one State and other ideas
which may improve environmental performance across the Nation.
In many respects, the Federal Government has recognized the
important role of the States. A number of Federal laws call for
the Environmental Protection Agency to delegate to the States
primary responsibility for program implementation. States have
assumed responsibility for approximately 70 percent of the
programs eligible for delegation. The administration has passed
a federalism Executive Order encouraging State participation in
the development and implementation of Federal law. In addition,
it has established programs like the National Environmental
Performance Partnerships System which provide greater
flexibility and encourage better communication between the
Federal and State governments. Although there is still room for
improvement, we should not forget that the current system of
national environmental laws has been a great success.
Mr. Chairman, many States have invested in a cleaner
environment by passing laws that are more stringent than
Federal minimum standards. And others, like the ones we will
hear about today, are taking the lead in developing
environmentally sound innovations. Nevertheless, not every
State has made the same commitment to a cleaner environment. In
fact, by 1995, 19 States have adopted some version of a clause
which prevents the States from adopting rules that are more
stringent than Federal standards. States often need a nudge
from the Federal Government. For instance, when there were
significant outbreaks from cryptosporidium in tap water, and
over 100 people died, no State adopted a cryptosporidium
standard until the Federal EPA mandated one.
We should not forget the basic fact that pollutants are
carried in the air, rivers, lakes, rain, crops and otherwise
across State lines. And, in some cases, the polluter causes
greater damage in neighboring States than in its own home
State.
The Federal Government needs to stay involved in
environmental protection in order to: address interstate
transportation of pollution; establish and enforce minimum
standards; ensure a level playing field so one State does not
gain an unfair advantage over others; help States develop
environmental protection plans that are effective and
efficient; provide a means of sharing technologies and
expertise; enforce the law when local political pressures or
the lack of resources or expertise makes it difficult for
States to enforce the law; and prevent a ``race to the bottom''
when States lower environmental standards in order to court
business.
In conclusion, Mr. Chairman, I look forward to hearing
about important State innovations and what we can do to
encourage States to develop and implement successful ideas.
However, I would like to do so in a manner that recognizes the
Federal Government's critical role in protecting the public
health and the environment.
I ask unanimous consent to include relevant materials in
the record and I thank the chair.
Mr. Ryan. Without objection.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
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Mr. Ryan. Mr. Sanders.
Mr. Sanders. Thank you very much, Mr. Chairman, for holding
this important hearing. I am especially pleased that a fellow
Vermonter will be testifying on your panel, Chris Recchia, the
deputy director of the Vermont Air Pollution Program.
Mr. Chairman, I realize that the focus of this hearing will
be on environmental initiatives in the States. The premise, as
I understand it, is that giving States as much flexibility as
possible in combating pollution is the best approach to take.
Mr. Chairman, I do not fully believe in this premise and let me
tell you why.
Nationwide, more than 30 percent of residents still live in
regions with poor air quality. Vermont is no exception. Even
though Vermont has some of the toughest air quality standards
in the Nation, our health and the health of our forests, lakes
and streams continues to suffer from acid rain, ozone haze,
mercury and dioxin deposition.
This pollution is not coming from the State of Vermont. So
the State of Vermont could do everything that it possibly could
to correct the problem. It would not succeed. This pollution is
a result of pollution from outdated fossil fuel power plants in
different States.
So, I think that is why we need a national perspective as
well as encouraging States to develop their own local
initiatives.
In other words, the biggest threats to Vermont's
environment are not under the control of Vermont. In some ways
they are, but often they are not. They arrive in the winds in
the form of air pollution emitted in other States.
Vermonters have a proud tradition of protecting our
environment. Yet despite this proud tradition of environmental
stewardship, we have seen how pollution from outside our State
has affected our mountains, lakes and streams.
Acid rain caused from sulfur dioxide emissions outside
Vermont has drifted through the atmosphere and scarred our
mountains and poisoned our streams.
Mercury has quietly made its deadly poisonous presence into
the food chain of our fish to the point where health advisories
have been posted for the consumption of several species.
Despite Vermont's own tough air laws and small population,
the EPA has considered air quality warnings in Vermont that are
comparable to emissions consistent for much larger cities.
Silently each night, pollution from outside Vermont seeps
into our State and our exemplary environmental laws are
powerless to stop or even limit the encroachment.
The Clean Air Act of 1970 was a milestone law, which
established national air quality standards for the first time
and attempted to provide protection of populations who are
affected by emissions outside their own local and State
control.
While the bill has improved air quality, there is a
loophole in the law that needs to be fixed. More than 75
percent of the fossil fuel fired plants in the United States
began operation before the 1970 Clean Air Act was passed. As a
result, they are ``grand fathered'' out from under the full
force of its regulations.
To end this loophole, I am a co-sponsor of the Clean
Smokestacks Act introduced by Mr. Waxman. I am also a co-
sponsor of the Clean Power Plant Act introduced by Mr. Allen to
crack down on mercury pollution. Congress must pass these laws
as quickly as possible.
Another important Federal environmental regulation that
must be strengthened deals with the Corporate Average Fuel
Economy [CAFE] standards. These standards are especially
important today when American cars and light trucks are
responsible for consuming 40 percent of the oil used in the
United States.
Twenty-five years ago Congress passed, with bipartisan
support, the simple provision requiring cars and light trucks
to go further on a gallon of gasoline. This sensible and
efficient law, which was signed by President Gerald Ford,
created a standard for the number of miles per gallon that cars
and trucks must meet.
In retrospect, it was one of the most successful
environmental laws of all time, a Federal law signed by a
Republican President.
CAFE standards helped curb climate change by keeping
millions of tons of carbon dioxide out of the atmosphere. They
also cut pollution, improve air quality and help polluted
regions achieve the goals of the Clean Air Act. CAFE standards
provide an efficient and relatively painless way of achieving a
cleaner and safer environment for all Americans.
The CAFE standards program is a bargain for Americans
because it saves them money. I think most of us know that.
Let me just conclude, Mr. Chairman, by suggesting that I
think it is important that we learn what various States around
this country are doing, that we learn from each State. I am
proud of the environmental record of the State of Vermont.
But I do wish to emphasize that while we learn from each
State, it would be irresponsible to suggest that the Federal
Government does not have a very, very important role in
protecting our environment.
I thank you, Mr. Chairman, for the opportunity to make
those remarks.
Mr. Ryan. I thank you, Mr. Sanders. I thank you for your
passion on this issue as well.
I would also ask unanimous consent that Representative
Chenoweth-Hage's statement be included in the record. Without
objection.
[The prepared statement of Hon. Helen Chenoweth-Hage
follows:]
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Mr. Ryan. First, let me swear in all the witnesses. Would
each of you please stand?
[Witnesses sworn.]
Mr. Ryan. We will begin with Representative Hackney.
STATEMENTS OF JOE HACKNEY, NORTH CAROLINA STATE REPRESENTATIVE,
CHAIRMAN, ENVIRONMENT COMMITTEE, NATIONAL CONFERENCE OF STATE
LEGISLATURES; LYNN SCARLETT, EXECUTIVE DIRECTOR, REASON PUBLIC
POLICY INSTITUTE; JIM SEIF, SECRETARY, PENNSYLVANIA DEPARTMENT
OF ENVIRONMENTAL PROTECTION; LANGDON MARSH, DIRECTOR, OREGON
DEPARTMENT OF ENVIRONMENTAL QUALITY; KAREN STUDDERS,
COMMISSIONER, MINNESOTA POLLUTION CONTROL AGENCY; LISA POLAK
EDGAR, DEPUTY DIRECTOR, FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION; ERIK OLSON, SENIOR ATTORNEY, NATURAL RESOURCES
DEFENSE COUNCIL; AND CHRISTOPHER RECCHIA, DEPUTY COMMISSIONER,
VERMONT DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Mr. Hackney. Mr. Chairman and members of the subcommittee,
I am Representative Joe Hackney, Speaker Pro Tem of the North
Carolina House.
I appear before you today on behalf of the National
Conference of State Legislatures. I currently serve as the
Chair of NCSL's Environment Committee of the Assembly on
Federal Issues.
NCSL is a bipartisan organization representing all State
legislators from all 50 States and our Nation's commonwealths,
territories, possessions, and the District of Columbia.
The focus of NCSL's policies and advocacy activity is the
preservation of State authority, protection against costly
unfunded mandates, the promotion of fiscal integrity and the
development and maintenance of workable Federal-State
partnerships.
I appreciate the invitation to speak to you today about the
Federal-State relationship and the changes needed to assist
States in further protecting and enhancing environmental
quality.
Let me say first of all that NCSL urges the Federal
Government to renew its commitment to the Federal-State
relationship in environmental protection. For nearly 40 years,
Federal environmental laws have recognized the primacy of State
governments.
From the very first Federal law, Congress determined that
States and local governments were in an optimal position to
implement environmental standards that are established by the
Federal Government.
States acting in partnership with the Federal Government
play an indispensable role in a mutual effort to protect
natural resources and combat environmental degradation and
pollution.
New environmental problems have arisen and new approaches
are required. Except for the amendments to the Safe Drinking
Water Act of 1996 and the Clean Air Act in 1990, most of our
major environmental acts were last visited in the 1980's.
Although during that time we have made great progress, a
significant amount of pollution no longer comes from the end of
a pipe, but from some other source. We think improvements are
needed.
We want to urge Congress to use this hearing as the first
step in a new commitment to the Federal-State partnership for
the 21st century.
We urge Congress and the new administration to work with
NCSL and its Assembly on Federal Issues to convene regular
summits of State, Federal and local lawmakers, administrators
and other stakeholders to identify areas of our Nation's
environmental law that are outdated, ways in which current laws
and regulations can be modernized, and tools to improve the
Federal-State relationship.
It is time to move forward to the 21st century level in
protecting our water and air. Together we need to identify
smarter goals and strategies for keeping pollutants out of the
water or air.
We need to make much more progress in reducing the
emissions from power plants and other stationary sources.
We need to continue and expand upon the progress we have
made in reducing mobile emissions. NCSL was a strong supporter
of the move to low-sulfur gasoline. I might note that my State,
North Carolina, was moving along on that track before EPA acted
as well.
We need to pay more attention as a Nation to whether the
ways in which we grow our economy can have positive rather than
negative effects on environmental protection. For example, we
need to do a better job of preserving farms and open space as
we grow.
Together, we can move so much further ahead. The people
expect us to lead in these matters and NCSL would be pleased to
be a part of this effort.
Let me make a few points in summarizing the rest of my
testimony. No. 1, we commend the EPA in its efforts to
encourage States to develop innovative approaches. We don't
always find that those efforts work or are realized, but we
support a more formalized working relationship between the
States and the EPA which recognizes the role of the States and
their agencies as partners in the decisionmaking process as
contemplated in the original environmental statutes.
Second, and this is important, I think, in the context of
what others are going to say today, we recognize and support
the role of the Federal Government in establishing uniform
national environmental standards. But States must always have
the right to go beyond these standards and use their creativity
to pursue novel solutions to identified problems.
In fact, in North Carolina our concentrated animal feeding
operations laws are more comprehensive then EPA's. And we are
moving ahead with research at the North Carolina State
University to try and do the best job we can with that problem.
Third, improved flexibility. States have a compelling
interest in the uniform application and enforcement of Federal
laws in order to prevent pollution havens and prevent States
with lax enforcement from obtaining unfair economic advantages.
But, States need as much administrative flexibility as
possible, consistent with superior protection of our
environment to achieve environmental protections. Several
examples are given in the written text.
Next, let me mention just briefly a greater Federal role
when it comes to interstate pollution. We have to address
interstate pollution. We are, at our December meeting, going to
take up some aspects of that problem. We invite the
participation of the Congress.
We oppose any preemption attempts. We do not believe
centralized decisionmaking in Federal courts for compensation
for land use and other regulatory actions represents something
that you should get into. That would be a major threat to our
constitutional system of federalism.
Improving the efficiency of the State and local process is
an issue for State legislatures, not the Congress.
We continue to oppose unfunded mandates.
Let me just say in closing that the Federal-State
partnership has been in many respects a success story. The
public interest has been well served.
Environmental standards--health-based air quality
standards, water quality criteria which supports swimming,
fishing, drinking and biological needs--all of these have given
States environmental objectives that they can share, and each
State can then implement programs by delegation to solve those
problems.
I appreciate the opportunity to appear before you today on
behalf of the National Conference of State Legislatures. I
welcome your questions on this testimony.
[The prepared statement of Mr. Hackney follows:]
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Mr. Ryan. Thank you, Representative Hackney.
I would like to ask each of the witnesses if we could try
to confine your remarks to the 5-minute rule, since there are
so many witnesses and we would like to have ample time for
questioning.
Ms. Scarlett.
Ms. Scarlett. Thank you, Congressman Ryan, Congressman
Kucinich and Congressman Sanders and other members of the
subcommittee for having these hearings.
My name is Lynn Scarlett. I am executive director of Reason
Public Policy Institute, a Los Angeles-based nonpartisan
research organization.
Briefly, we have experienced three decades, as many of the
Members of Congress have pointed out here, of environmental
policy since the first Earth Day. Those three decades have
indeed yielded some successes, but there are four recurring
policy challenges.
First, how can policies better ensure environmental
innovations, both technological and institutional innovations?
Second, how can they better focus on results and take into
account the many interrelated goals rather than a silo-by-silo
or medium-by-medium approach?
Third, how can they better foster private stewardship, give
us a Nation, if you will, of self-motivated environmental
stewards?
Fourth, how can they better take into account local
knowledge, what Congressman Kucinich referred to in terms of
the knowledge of time, place, and circumstance, the devilish
details of each location and each State?
In this context of questions, a new environmentalism is
emerging and States are at the forefront of this discovery
process. There are four features to this new environmentalism.
First is a move by the States toward greater flexibility in
how they work with their regulated entities to achieve goals.
Second is a focus on performance rather than process as the
primary point of emphasis.
Third is an enhanced role for incentives rather than
punishment as the strategy of choice.
Fourth is a move toward place-based decisionmaking where
the devilish details of local circumstances are evident.
I am going to give you just a brief thumbnail sketch of
these innovations and defer to the State innovators to describe
them in more detail.
First, on enhanced flexibility, I want to underscore that
this is not about rollback, as Congressman Ryan noted. It is in
fact quite the opposite. It is about extending the
environmental performance envelope both upward and outward.
I just want to give you one example. New Jersey embarked on
a facility-wide permitting program replacing 80 permits on a
source-by-source basis at one plant with a single facility-wide
permit.
This enabled a system-wide evaluation of that plant and
through that the firm was able to reduce 8.5 million pounds of
emissions in a very short time.
The second type of innovation is the move toward developing
very robust performance indicators. Examples, of course, occur
in Florida. You have a representative from Florida here, and
Oregon. I presume you will hear more about those efforts.
But these emphases on performance indicators have two key
attributes that are worth noting. First is linking those
indicators to priority setting and second is a broadening
beyond enforcement bean counting to an emphasis on actual
environmental performance.
The third type of innovation is in the realm of incentives.
One example would be the Texas Clean Industries 2000 Program.
In this program over 200 firms commit to a 50 percent reduction
in toxic chemical emissions in a 2-year timeframe.
Other examples would be Illinois's Clean Break Amnesty
Program in which the State offers compliance assistance to
small emitters of pollution to help them clean up rather than
taking a more permitting and fine-oriented approach.
Finally, there is a move toward place-based decisionmaking,
particularly in the realm of watershed management. Watersheds
involve often cross-boundary problems and challenges.
Two examples I would mention are both Minnesota and Idaho,
which have pioneered effluent trading programs, in particular,
between point sources, the old-fashioned focus on emissions
that has been the center of attention, and nonpoint or farm
run-off problems, with some substantial benefits.
Let me turn now to challenges and opportunities. I think
there are three categories of challenges that these State
endeavors face.
First is the set of challenges posed by fitting new
programs within the old regulatory context. Perhaps in the
question and answer period we can discuss in more detail what
the fitting together involves.
The second set of challenges is technical, that is,
developing performance indicators is, for example, not easy.
How does one measure? How does one decide which indicators?
Again, we can go into more detail later.
The third set is which stakeholders are at the decision
table and how does one incorporate them, particularly as one
moves to place-based decisionmaking.
The final question, and I think of most interest to the
Congressman today, is whether Congress can be a facilitator of
this new environmentalism. What changes, if any, are needed to
encourage innovation and improve environmental performance?
It seems to me that while we have an efflorescence of State
innovations, these are taking place in many respects in the
interstices between the current regulations and to some extent
at the margins.
To foster these initiatives, therefore, I think that we do
need what Deborah Knopman of the Progressive Policy Institute
called ``transitional legal space.'' This is not the place for
outlining those details, but I want to make two points.
First, one needs a delicate balance between asserting
congressional commitment to flexibility and these innovative
approaches, but resisting prescription and micro-management of
that process, a recognition of what Congressman Kucinich noted
about the different needs and different circumstances of each
State.
Second, the expression of commitment may not be enough. One
may need more resources, more Federal resources devoted to
monitoring and also to helping States invest in developing
their indicators.
Finally, congressional action must recognize, as
Congressman Sanders pointed out, that on the one hand there is
a State leadership in new environmentalism, but on the other
hand, one does need backstop enforcement mechanisms, cross-
boundary facilitating role for Congress and for the EPA,
continued monitoring and an information clearinghouse.
I think with that I will close and say that the new
environmentalism is a discovery process and that is what these
State efforts are largely about.
Thank you.
[The prepared statement of Ms. Scarlett follows:]
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Mr. Ryan. Thank you. That is a lot for 5 minutes.
Ms. Scarlett. I have been told I would be good on the Fed-
Ex commercial.
Mr. Ryan. Yes, absolutely. That was very comprehensive. I
appreciate that.
Just so everybody knows, all of the contents of your
opening statements will be included in the record should you
decide to summarize your remarks.
Mr. Seif.
Mr. Seif. Thank you. Pennsylvania appreciates this chance
to be here this afternoon. We especially agree with your thesis
of the laboratories of democracy on behalf of Governor Tom
Ridge and ECOS, the Environmental Council of the States, which
a number of us are proud to be members of.
We are very happy that the Beltway has taken notice of what
some of us guys are doing out there.
My written testimony, as you have intimated, is far too
long and I am not even going to try to summarize it. It does
showcase three of the innovations that are particular sources
of pride to us in Pennsylvania.
As to each, I would like to make a couple of points. First,
the Land Recycling Program. Land recycling occurred, unlike
most Federal statutes, without any delegation at all. Superfund
is one of those statutes that doesn't provide for the standard
Federal package of deferring to the States after certain hoops
have been jumped through.
That may account for its innovativeness. It was not subject
to a long, EPA recipe of, ``here is what you have to do, here
is the kind of statutes, here are the regs, here are how many
FTEs you have to devote to it,'' and so on.
I don't necessarily recommend that delegation be altered; I
think it is a great idea, a very important innovation in
American jurisprudence, but it sure needs to be loosened up,
especially at this time when 71 percent, by EPA's measure, of
programs have been delegated.
We need some of what Lynn Scarlett has mentioned, that
maneuvering room in between the statutes where we can do more
innovation, but still with Federal guidance, which I think, is
overall very important.
Congressman Sanders has pointed out, someone has to be in
charge and someone has to watch over all the 50 States. The
question about delegation is, should there be some protection
of the brownfields programs?
I do commend to the committee's attention work being done
by other committees and in the Senate on the subject of
protecting the brownfields programs from perhaps some action by
this Federal Government, by the Superfund, that would do harm
to them.
At different times different statutes need different levels
of delegation. The Clean Water Act needed a lot at the
beginning and needs less now. The Clean Air Act may need more
now simply because of the nature of pollution.
There is not a single sort of role for where delegation
should be. EPA needs to have that kind of maneuvering room.
Growing Greener is a $645 million expenditure in
Pennsylvania for what we have dubbed ``green infrastructure.''
Infrastructure is usually thought of, in the green area, the
environmental area, as bricks and mortar and pipes and pumps
and so on.
In Pennsylvania we have discovered that most people still
think that we can argue about parts per million of this or that
pollutant as the environment, as the trees and streams and the
clean air.
Green infrastructure is simply tending to that broad aspect
of the environment beyond pipes and pumps. It is undeveloped
flood plain. It is a farm that is still a farm or other kind of
open space. It is a stream that has the right kind of buffer.
It is a network of land strung together to encourage and
enhance biodiversity. It is a watershed that has a community
organized behind it or a broad arrangement such as has been
pioneered in the Everglades recently.
It is a watershed that has a real TMDL, a sensible common
sense community measurement of what are we trying to do here
and how can we, point source and nonpoint source, get it done.
Green infrastructure is also an environmental leadership
style--the kind of people who will reach for hip boots and a
shovel instead of a microphone when they see a problem and
won't run off to the State capital or the national capital to
complain and demand new Federal laws.
The 21st century economy requires green infrastructure of
the sort that I am talking about. No community can live long on
smokestacks or dot-coms. You need to have a quality of life,
and that is green infrastructure.
In Pennsylvania we are glad we were able to fund this
amount of green infrastructure without going into any debt. It
is considered an investment and not something that our
grandchildren need to pay for.
Finally, I would like to talk about measuring the right
things. If I ever get a chance to brag to my grandchildren
about what I did when I was on the public payroll, it will be
the attempt not to build green infrastructure and revitalize
this or that acreage and industrial land, but rather to change
the way we count things, to change the very nature of the
public debate about the environment.
When I started out in the 1970's, any target you shot at
you could hit, and say you got a polluter and throw somebody in
jail.
In the environmental area we have tarried too long in
counting enforcement as a surrogate for public administration
progress against a known enemy which is pollution.
It is not how tough we are but how effective we are. That
means we can use and should use other tools, not instead of but
in addition to the traditional shoot 'em up cops and robbers
stuff that makes for good press.
The fact is that I would be happy to make available to the
committee the program that we have undertaken in Pennsylvania
to measure who is in compliance and who is not. It is not ``Did
we zing them last night?'' But did they do what they were
supposed to under the laws of the land, both State and Federal.
We can tell you that now. The fact is that when we can tell
you that, it changes the public debate about what should the
department be doing.
We are tired of being just a police force. We want to be a
police force and an ag extension agent as well as to the
broader problems of pollution.
I would like to conclude with some observations and state
an agreement with Congressman Sanders. Vermont is a little bit
like western Pennsylvania, the victim of pollutants elsewhere.
We could stop every car in Pittsburgh and still be in
trouble when we wake up in the morning at that end of our
State. The fact is air pollution is different from water
pollution and it is different from pollution underneath the
land as a result of hazardous waste and so on.
We do need a strong Federal Government. We do need careful,
thoughtful administration of the Federal system, not bureaucrat
bashing, which I am always guilty of myself, including EPA
bureaucrats.
But give them some maneuvering room in the State and at EPA
to do sensible things and they can be different at different
times and with different pollutants.
Thank you.
[The prepared statement of Mr. Seif follows:]
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Mr. Ryan. Thank you, Mr. Seif.
We will next turn to Langdon Marsh, the director of the
Oregon Department of Environmental Quality.
Mr. Marsh.
Mr. Marsh. Chairman Ryan, Congressman Sanders, my name is
Langdon Marsh. I am the director of the Oregon Department of
Environmental Quality. I am very glad to be here to talk about
some of our environmental policy innovations in Oregon.
We have a long history of innovative environmental programs
in our State, some of the first air pollution control laws in
the 1950's, the first bottle law, local land use planning laws
and a number of other programs designed to protect the
environment and quality of life consistent with economic
growth.
Over the past 5 years we have made a number of strides in
improving how environmental programs are carried out,
streamlined the permitting process, worked with neighborhoods
on cleaning up pollution and gotten many regulated facilities
into programs that produce effective results.
I would like to talk about one of those programs which we
believe is a real first and is being duplicated in other States
and within EPA. It is called green permits. This program
encourages companies to go beyond compliance with environmental
standards and actively improve their environmental performance.
It has a tiered approach offering different kinds of green
permits in which increasing levels of performance receive
increasing benefits.
This legislation authorizes our agency to modify regulatory
requirements for facilities that qualify, making it possible
for us to do things like consolidated reporting, modified
monitoring and alternative controls that allow for flexibility.
The payoff is that facilities must qualify by demonstrating
that they exceed the minimum requirements for compliance, that
they implement environmental management systems that truly
incorporate environmental concerns into day-to-day business
decisionmaking and that they also communicate widely and openly
with the public about their environmental performance.
We have currently five companies that have applied for
green permits. We are working with each of them. Each has
demonstrated a commitment to the environment and a willingness
to discuss its performance with the community.
Each has made significant gains in environmental
improvements like reducing chemical use and wastes, eliminating
wastes sent to a landfill and reducing air emissions to less
than 10 percent of the levels allowed in the permit.
They are also working on new projects that don't
necessarily relate just to the things that we as an
environmental agency regulate, like a reduction of water use
which benefits the larger community.
The regulatory efficiencies that these companies will
benefit from include consolidated reporting, flexibility in
their permits and enforcement discretion to recognize that a
company that has made the commitment, stepped up to the plate,
is making improvements and is accounting for it publicly does
not need the same kind of scrutiny as other companies.
We have also worked closely with EPA in developing its own
national performance track program, which is a very similar
program that was announced earlier this summer. It recognizes
the leadership of many in the private sector.
The ideas that are incorporated in that program have been
tested in Oregon. I think it offers some benefits for those
States that have a program like ours so that facilities can
participate in both and get benefits from both.
I would like to mention a couple of other things that we
are doing with innovation in dealing with the business
community. Small businesses, we recognize, are a source of a
significant amount of pollution that has not been traditionally
regulated under the Clean Air and Clean Water Acts and the
hazardous waste laws.
So, we have developed as one way of dealing with this a
partnership program with the automotive services industry in
the Portland area to certify auto shops that exceed regulatory
goals. We give them assistance and help publicize their
certification as green businesses, which are designed to help
them in the marketplace.
We have also participated in the Natural Step Network.
Natural Step is an international organization and movement to
promote sustainable business practices among companies that
sign up for it.
We are very pleased to be participating with companies like
Nike on the one hand and a small house parts company on the
other, working in partnership with them to lower their
environmental footprint and to share their success stories with
other businesses in the State.
Our Governor Kitzhaber has recently issued an executive
order on sustainability, the first of perhaps several that will
put the State on the path toward encouraging sustainable
actions by businesses, industry and the public. We have been
working very closely with the Governor on that.
So, in conclusion, we are working in partnership with many
proactive, progressive companies to protect the environment,
trying to solve problems, not just run programs. But as others
have said, we can't disregard the more traditional
environmental programs. Permits, inspections, and enforcement
actions have to be continued to ensure that we continue to
protect the environment.
Thank you very much.
[The prepared statement of Mr. Marsh follows:]
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Mr. Ryan. Thank you, Mr. Marsh.
Next we have Karen Studders, the commissioner of the
Minnesota Pollution Control Agency.
Ms. Studders. Mr. Chairman and members of the subcommittee,
I want to thank you for the opportunity to be here before you
today to share what we are doing in the State of Minnesota.
The three areas that I would like to discuss with you today
will focus on ``the second wave of environmental protection''
in the United States; the reorganization of our State agency to
meet new environmental challenges; and water pollutant trading
in the Minnesota River Basin.
I have spent my entire professional career working in the
environmental arena. I began as a bench chemist with the
Environmental Protection Agency and then I spent 17 years
directing the environmental regulatory programs for a large
energy provider.
Over the last 18 months I have been serving under Governor
Ventura as Commissioner of the Minnesota Pollution Control
Agency.
I would tell you that I am very excited that you asked for
this hearing today on this subject. I think it is a very
important matter that needs attention and we need to work
together on this.
What I would like to do is talk a little bit about this
``second wave of environmental protection'' in the United
States. The first wave of protection began in the early 1970's
and it focused on regulating large, industrial polluters.
It was very successful in using command and control to
address what we call point source pollution, out of the stack
and also out of the pipe.
However, to solve the environmental problems we have today,
we need to transition to the ``second wave of environmental
protection.'' We need new tools in this second wave to address
nonpoint sources of pollution.
For example, in Minnesota it is estimated that more than 50
percent of our air pollution comes from mobile sources, that is
cars, trucks, and airplanes. And 90 percent of our lakes,
rivers and streams are affected by nonpoint sources of
pollution such as urban runoff, agricultural activities, and
failing septic systems.
If we are to be truly innovative and effective, States need
flexibility. That is only available through Federal
authorization.
Let me tell you that in 1996 Minnesota passed legislation
to authorize environmental regulatory innovation experiments.
We did this so that Minnesota could take advantage of Federal
innovation programs such as project XL and the common sense
initiative. However, the Federal programs did not deliver the
promised flexibility we needed. As a result, Minnesota has been
unable to use its State innovations statute.
To address the new environmental challenges, this agency
underwent a major reorganization about 2 years ago. We are no
longer structured based on air, water and land, what we once
called ``silos.''
We redesigned the agency's service delivery system to match
three distinctly different geographic areas of our State.
This overhead that we are putting up shows the North
district where we have most of our recreational lakes,
including Lake Superior, as well as mining activities.
The South district, which is mostly agricultural crop land,
and the Metro district where one half of the population of the
State resides in the Twin Cities.
We also decentralized operations because different
environmental priorities exist in different parts of our State.
We now have six offices in greater Minnesota with 110 employees
delivering services in each of their respective regions.
We also created two additional divisions within our agency.
One is devoted to policy and planning and the other
environmental outcomes.
It is the job of the environmental outcomes division to
monitor the environment, to analyze the environmental data we
get and to evaluate the effectiveness of our programs.
For years we have tracked progress by the number of permits
we have issued, the enforcement actions we have taken and the
inspections we have made.
That is what EPA requires us to do. We have made the
assumption that these activities result in positive
environmental outcomes. But we need a better handle today on
the very diffuse activities that are degrading our environment,
the nonpoint sources.
The reorganization we went through is about performance and
measurable results. In order to achieve those results, we have
tied individual work plans to our agency's 5-year strategic
plan, which is actually linked to our 2-year contract with the
Environmental Protection Agency, our Environmental Performance
Partnership Agreement that we have with EPA.
I would like to share another environmental innovation from
the State of Minnesota. Because the Minnesota River is so
seriously polluted, the Minnesota Pollution Control Agency
actually strictly limits any new wastewater discharges that can
occur in that river basin.
If you look at the overhead that is up there, there is a
picture of both the Minnesota and Mississippi Rivers as they
come together. You can see the distinct discoloration of the
Minnesota River, which is shown on the upper top half of the
screen.
In 1988, EPA and our agency established a total maximum
daily load for that river because it was so polluted. This cap
placed tight restrictions on all existing wastewater treatment
plants that discharge into that river. It left little room for
expanded discharges.
So, how do we allow industrial expansion in this part of
our State while at the same time protecting our water quality?
Since 1997, we have used a technique called ``pollution
trading.'' In this case we are talking about water pollution,
specifically phosphorus and nitrogen.
Our first experience in pollutant trading was a partnership
with Rahr Malting. As the name implies, Rahr is a malting
company and the product is used in brewing. The pollutant
trading that they went through entailed not just point source,
but also nonpoint source pollution.
Let me tell you how it works. Rahr trades its increased
point source discharges of pollutants for a decrease in
nonpoint source pollution coming from agricultural land that we
don't currently regulate under our regulations.
To achieve this, Rahr established a trust fund of a quarter
of a million dollars, supervised by an independent board of
directors. Farmers and other landowners, including
municipalities, apply to the fund for projects aimed at
reducing nonpoint pollution in the river basin.
Rahr's offset provisions prevent 14,700 pounds of nitrogen
and 7,370 pounds of phosphorus from going into that river
annually.
In conclusion, I would like to tell you that to be
effective in this ``second wave of environmental protection''
we need to do more than just build partnerships with industry.
We also need to work with individuals on behavior change.
We must create environmental literacy within our citizens and
we must start instilling a sense of environmental awareness in
our young people.
I am optimistic that the citizens will respond to our
invitation to become environmental stewards.
The State recently published the Minnesota Environment 2000
Report, which I have provided to you. It is a snapshot of the
environmental past, present and future over the last 30 years.
I would like to tell you that there is a growing
understanding by the States of the need to move into this
``second wave of environmental protection.''
In this second wave, both point and nonpoint source
pollution programs are addressed using a myriad of tools,
education, assistance, voluntary and incentive-based programs
as well as command and control regulatory programs.
EPA has an important role to play at the Federal level and
an important role in supporting our State innovations during
this second wave.
To make such innovations possible, however, Congress must
provide authorization necessary in order for regulatory
innovation experiments to occur.
Thank you very much. I look forward to answering questions
later.
[Note.--The publication entitled, ``Minnesota Environment
2000,'' may be found in subcommittee files.]
[The prepared statement of Ms. Studders follows:]
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Mr. Ryan. Thank you very much, Ms. Studders.
Our next witness is Lisa Polak Edgar, the deputy director
of the Florida Department of Environmental Protection.
Ms. Edgar.
Ms. Edgar. Thank you, Mr. Chairman, members of the
committee. Thank you for inviting Florida to participate on
this panel today.
My name is Lisa Polak Edgar and I am deputy secretary for
planning and management for the Florida Department of
Environmental Protection. I am here representing the Florida
DEP and Secretary David Struhs.
I would like to talk to you today about two innovative
projects that we have been working on in Florida and also
briefly discuss our performance measurement system.
You may or may not be familiar with d-limonene. D-limonene
is a VOC, a volatile organic compound that is released into the
air during the citrus processing process. It is a gas that
comes from the oil that you get when you squeeze citrus for
juice.
D-limonene is volatile. It reacts with nitrogen in sunlight
to form ozone and as such is regulated under the Clean Air Act.
However, unlike many other VOCs, it is not toxic. In fact, it
is being used increasingly as a substitute for toxic solvents
and some industry pollution prevention programs.
D-limonene emissions in Florida generally occur in the
winter as the citrus is processed after the growing season in
the summer. Of course, ozone formation is not as serious a
problem in the winter.
For these reasons, Florida had never developed a serious
regulatory plan for this VOC emission for the 26 citrus
processing plants in Florida. This left the industry vulnerable
under the Clean Air Act and left our State regulatory program
incomplete.
As the industry is currently going through some
consolidation and plant modernization, our air program
discovered that the VOC emissions from these plants were higher
than had been estimated.
The time was right to rationalize our regulatory strategy.
We began discussions with the industry association and key
State legislators resulting in a bill that created a new State-
wide standard that will cut VOC emissions in half from the
average citrus plant.
The law also provides the ability for plants that exceed
the standard to sell credits to other citrus processing plants.
We were successful at the State level because we used the
collaborative approach up front, working with the industry and
State legislators, because of new technology that allows plants
to reduce the d-limonene emissions, and because the emission
production credit possibility allows more efficient deployment
of new capital investments by the industry for emission
control.
I would like to take a moment and share two quotes with you
about this program. One is from one of the legislators who
worked on it. ``It is win-win. Companies have a financial
incentive to be cleaner and those that can't afford to upgrade
equipment have a way to stay in business.''
From the industry, executive vice president of the
Processors Association, ``We are going to have less paperwork,
but a higher standard of performance. We are also going to have
more flexibility to meet that standard and that was our
preference.``
This initiative requires EPA approval of an amendment to
Florida's SIP, the State Implementation Plan. We will be
submitting this to EPA later this year.
I would also like to talk to you briefly about our
performance measurement system. The concept of better measuring
and reporting our environmental performance is a central
challenge to all environmental managers.
This is not about reducing standards; it is about better
understanding the impacts and outcomes of our environmental
protection programs.
Performance indicators inform important decisions, thereby
increasing our ability to protect the environment. Likewise,
free and open assessments of performance foster and promote
innovation by pointing out where it is most urgently needed.
At the Florida DEP we have had a performance measurement
system in place for about 3 years with information published in
a Secretary's quarterly performance report.
For performance measurement to add value requires thorough
data analysis, trend identification, and a commitment to
productive action to address both longstanding and emerging
trends that are troubling.
Tools that we use in this process include focus and watch
designations and environmental problem solving. One project
that used these tools we called ``Team SOS.'' Data showed that
sewage overflows in Orange County, the Orlando area, were
totalling over 1 million gallons a year. That is hundreds of
thousands of gallons of raw sewage flowing into rivers, lakes,
and even homes.
A team was formed to work with Orange County utilities. The
point was to find ways to fix the problem, not to just report
it. In this instance, the data already existed. Sewage
overflows and spills are required to be reported and have been
for years.
The difference now was that the data was analyzed and a
trend of sewage overflows and spills in certain areas and under
certain conditions was identified. Working with the Orange
County utilities, over 20 no-cost or low-cost actions and
innovations were identified that would help reduce the problem.
The annual amount of gallons spilled was reduced by over 60
percent.
As I mentioned earlier, our performance measurement system
has been in place about 3 years. We are now in the process of
evaluating our measures, our data collection systems, and our
data quality. It is a performance measurement of our
performance measurement system, if you will.
Secretary Struhs is committed to the continuous improvement
of the ability for all of us to make informed decisions about
our environmental quality and this includes improving the
functionality of our performance measurement system.
The mission statement of the Florida Department of
Environmental Protection is ``more protection, less process.''
Performance indicators should promote informed
decisionmaking at all levels and help us evaluate our
activities. It should also help us determine whether some
activities are serving process more than protection and aid us
in shifting resources and efforts that serve only process
toward the higher purposes of protection.
I would like to end by sharing a quote attributed to
General George Patton. ``Don't tell people how to do things.
Tell them what to do and let them surprise you with the
results.''
Thank you.
[The prepared statement of Ms. Edgar follows:]
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Mr. Ryan. Thank you, Ms. Edgar.
Now, we will hear from Erik Olson, the senior attorney, at
the NRDC.
Mr. Olson.
Mr. Olson. Thank you. Thank you for having me this
afternoon.
I wanted to talk a little bit about some of the debate that
has been going on about this very issue for some time.
Obviously, this is not a new issue. I also want to talk about
some of the innovations that we have embraced that States have
adopted. Finally, I wanted to note some of the basic criteria
that we think need to be met so that we can ensure continued,
``cooperative federalism,'' as it has often been called by
academic commentators.
As we all know, since EPA was created 30 years ago, there
has been enormous improvement in environmental protection and
in public health standards and in results. Much, if not most,
of that has been the result of vigorous work at the State level
because EPA simply doesn't have the resources or the knowledge
or the ability to put into effect most of the Federal
regulations without State cooperation and help.
Many State innovations have occurred that you have heard
about, and some of them have been very impressive. They often
occurred because there was a Federal requirement that there be
air quality improvements or that there be some other
improvement.
The States were creative and thought of new ways to achieve
those goals. There are many other examples that are cited in
our testimony such as improved right to know requirements that
have been adopted in California and New York that ended up
being part of the Federal law.
Another example is in Wisconsin and in Iowa and in New
Jersey. There are strong groundwater protection programs that
still haven't made it into Federal law that were a result of
innovative State programs.
Similarly, in California the citizens adopted a
proposition, Proposition 65, that imposed right-to-know
requirements for polluters that were creating toxic emissions
or toxic exposures to consumers. This law which resulted in
huge reductions in toxic exposures to citizens simply because
there were right-to-know requirements that flowed if there were
exposures that had not been otherwise known about.
So, I think that there are many lessons that we can learn
from innovations at the State level and many success stories
that could be told, certainly more than can be told in a 2-hour
hearing.
There are a couple of very important principles that need
to be taken into account in developing cooperative federalism
at the Federal level.
First of all, we need to recognize that there is huge
variation among the States. You have on the panel today
represented some of the leaders in State innovation and in
going beyond what minimum Federal requirements there are.
Unfortunately, there are many followers and there are even
some that oppose Federal standards or even oppose going forward
with many of the basic environmental protections and health
protections that are necessary. We need to keep that in mind.
Second, obviously, there are many reasons that States have
a very important role to play. First of all, as has been
mentioned, they have greater local knowledge of environmental
conditions locally, very often. They have more resources and
expertise and political support locally than the Federal
Government does often.
They also have more local political knowledge, which can be
extremely important. As has been mentioned, they are the
laboratories of democracy and often can be very innovative.
However, there are certainly some countervailing principles
that have always been important to consider.
For example, it has been mentioned that some States can be
susceptible to brown mail, where a large, powerful company
tells a State that if the State cracks down on it, it threatens
that it will see fit to move out of the State, move its
operations elsewhere.
Second, there is a concern about inaction by some States on
very basic public health problems. Mr. Kucinich mentioned the
cryptosporidium issue where there have been disease outbreaks,
yet many States, in fact, virtually all States, if not all
States, failed to adopt any standards for cryptosporidium until
they were federally required.
There are underground storage tanks and other examples
where States did not act until they were federally required to
do that, for many reasons. Very often it was for lack of
resources and other reasons.
Third, the level playing field is very important to many
States. There can be a race to the bottom, certainly not by all
States, but some States trying to attract business or trying to
avoid political problems will go ahead and adopt less stringent
standards. Probably one of the better-demonstrated examples of
that is where 19 States have adopted laws that prohibit the
State from going beyond the Federal minimum requirements.
So, there are many reasons that we need to make sure that
there is a so-called Federal gorilla in the closet. Someone
there at the Federal level that can help State officials who
are trying to do their job by giving them someone to point to--
Federal presence--to make sure that they can do their job well.
Many recent examples of polluter lobby groups trying to cut
State regulatory agency funding simply because they are trying
to reduce the State's ability to take regulatory enforcement
action are additional examples of the need for a Federal
presence.
So, we do believe that States have an important role, that
they should and must be innovators and that the Federal
Government has an important role in encouraging that. The
Federal Government needs to set national standards and set
health goals, and in addition, some minimum safeguards for
citizen participation.
But States should be free to go beyond that and certainly
should not be preempted from going beyond that.
Thank you.
[The prepared statement of Mr. Olson follows:]
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Mr. Ryan. Thank you, Mr. Olson.
Last, but not least, we have Mr. Recchia, the deputy
commissioner of the Vermont Department of Environmental
Conservation.
Mr. Recchia.
Mr. Recchia. Thank you, Chairman Ryan. Thank you very much
for the opportunity to be here, Representative Kucinich and
Representative Sanders. I appreciate the invitation and I am
very pleased to be here.
As Commissioner Studders has pointed out, I am a cleanup
hitter, so I get to say all the things that I don't think have
been said yet. But, to be honest with you, I think most of the
things have been said.
I think knowing my colleagues here and working with them on
ECOS and on the Ozone Transport Commission and a variety of
other groups that are trying to address State's interests and
how we manage our environmental programs, I would say that we
have much more agreement than we do disagreement.
That said, I think a couple of points really do need to be
made from Vermont's standpoint and I wanted to give you that
perspective.
In addition to being the deputy commissioner of Vermont's
Department of Environmental Conservation, however, I am here
representing also NESCAUM, which is the Northeast States for
Coordinated Air Use Management. It sounds a lot better in
acronym form than it does when you say the words.
That is New England, New York, New Jersey, basically trying
to coordinate their air use management programs to achieve the
best level of performance we can. We have been successful in
moving forward on joint air issues through this organization.
Really, as we cross into the 21st century, I want to
emphasize that we should be and we are celebrating, really,
three decades of environmental awareness that has been founded
in the recognition that there is an important Federal
regulatory role to be played in protecting our health and the
environment.
This has not always been an easy relationship. It is surely
an understatement to say that the State and Federal
relationship is certainly a complex one.
I guess in this discussion I would urge us to remember that
innovative and flexible is not necessarily the antithesis of
command and control.
They are not mutually exclusive. They can both work hand in
hand and indeed, I think, although we have all struggled a
little bit in trying to make it so, I think it has been working
in that direction.
So, I would ask us to remember that as we enter this debate
and focus on how to best improve the next decade of
environmental management that we recognize that even in
hindsight very few in government or in industry would make the
claim that the past 30 years of success in environmental
management would have happened in the absence of these Federal
laws and standards. They indeed have made a difference and I
think it is important to acknowledge that.
So, the debate really becomes improving our environmental
regulatory system in the form of a pursuit to refine the role
of the Federal Government and not replace Federal enforceable
standards.
With those introductory remarks, let me quickly turn to
some areas where we in Vermont have been doing innovative
programs and have had some successes working both with NESCAUM
and independently, and then briefly describe to you where I
believe the right emphasis should be on the Federal role and
the State role in managing environmental resources.
I will not go through in detail the examples that I have
provided in written testimony. You will find them in a revised
version in appendix A and B of the testimony that I am
providing.
Let me briefly tell you about one or two in air areas and
then I would like to focus on some water and mercury issues
that Representative Sanders alluded to.
First of all, in terms of air issues, this is an example.
The diesel regulation or control of large diesel engines has
been a problem in the sense that we have been preempted by EPA,
unintentionally, through the process of regulation and have
required some creative work to figure out how to overcome that.
Working cooperatively with a variety of engine
manufacturers, EPA, and the State regulators, we were able to
get, throughout the New England/New York region, various
innovative efforts in place to voluntarily upgrade those diesel
engines, well in advance of EPA. You will find details of that
in the back of my testimony.
In addition, we, too, have been working on what we call P4
pollution prevention in the permit process. I think Langdon
Marsh recognized that and presented some of those examples in
the context of the Oregon green permits program.
Really, for Vermont I want to focus on two areas which I
think exemplifies where the Federal role can help and where it
can hurt.
One is in protection of our watersheds and that was
mentioned earlier as an option of where States can work.
Certainly, even more so with air issues, the Federal Government
can allow and support flexibility in the management of our
State waters.
We have developed a watershed improvement project that
builds on local citizenry taking charge and taking
responsibility for their water resources and supporting those
uses, not only for themselves, but to take stewardship of them
for the rest of the members of the State and the community.
That is working very well. I piloted a program this year
that is actually getting in the ground restoration work of
rivers that have been damaged and degraded for the better part
of 50 years.
Now, a mechanism exists already to be able to get the
support of EPA necessary to support these types of programs. It
was mentioned earlier that it is through our Performance
Partnership Agreements. That is a mechanism by which the EPA
can provide and should provide State flexibility for this type
of work.
The final example shows where Federal programs are still
necessary and warranted. We have been working in New England
very, very hard to address mercury pollution and proper
management of mercury-containing wastes to protect public
health and our water resources.
Despite limited direct pollution sources, all of Vermont's
waters are under fish advisories for consumption of certain
fish species because of mercury contamination that comes from
elsewhere.
Now, we will do our part and we are willing to do our part
and to step up to the plate and do that. We have worked very
hard both with the other New England States and the Eastern
Canadian Provinces to achieve a regional goal of virtual
elimination of emissions of mercury.
Nonetheless, all that work will be for naught if other
States and areas do not step up to the plate as well.
Now, our program is serving as a model, not only on the
national level, but internationally we keep on hearing of
people who cite our program, which is a little bit scary, but
somewhat rewarding.
I would just say that what that points out is that I think
there are opportunities for States to design and implement
innovative, cost-effective, and geographically relevant control
strategies, but we can't do it all.
In short, I believe there are four main areas where the
Federal Government still has an appropriate role and should
continue to work. Three of these are what I will call
substantive and one of them is financial.
The three substantive ones are: First, we must have the
Federal Government setting minimum national standards of
environmental performance. This does not mean providing a
number of enforcement actions we ought to take. It is a true
level of environmental performance we ought to be achieving.
Two, provide research and technical support to support
technology development.
Three, we need their assistance and active participation in
resolving interstate transport conflicts. As much as I enjoy
working with all my colleagues from across the 50 States, it is
difficult when we get 22 of us in a room to try and negotiate
out how we are going to change the pattern of air polluting
flow from West to East.
Last, I would say the financial point again reiterates the
need to work through the Performance Partnership Agreements to
provide adequate funding to the States for the work you wish us
to accomplish and let us be flexible in making those resources
available to accomplish that work through the Performance
Partnership mechanism.
With that, I will stop. I thank you very much for your time
and I look forward to answering any questions.
[The prepared statement of Mr. Recchia follows:]
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Mr. Ryan. Thank you, Mr. Recchia.
That is the 10-minute bell, so I think what we will do is
briefly recess. The three of us will go vote and then come back
as fast as we can and then we will resume questioning.
So, the hearing will be recessed for 10 minutes.
[Recess.]
Mr. Ryan. The hearing will come back to order.
I am very fascinated with the whole race to the top versus
race to the bottom issue. I would like to explore that.
But before I do so, I would like to ask some of the State
officials about your particular problems in implementing your
reforms and your programs vis-a-vis Federal regulations.
Ms. Studders, you talked about your Project XL and you
talked about a law you have which is basically lying dormant
because of the inflexibility of a supposedly flexible program.
Could you elaborate on specifically what Federal laws and
regs have given you problems in exercising the discretion you
need to benefit from Project XL? Is that a clear question?
Ms. Studders. Yes, it is a clear question. I don't think I
have the specific reg. I can tell you the language that is
causing us trouble.
Mr. Ryan. Sure. See if you can just give me the nature of
it.
Ms. Studders. I apologize.
Mr. Ryan. That's OK. Explain the nature of the
inflexibility.
Ms. Studders. OK. I don't know the statute. There is
terminology, and I am going to use quotes around this, called
``superior environmental performance'' that is in the Federal
law.
When the initial explanation was in the Federal Register,
we felt we had some creativity that we could work with based on
the preamble in the Federal Register. Ultimately, when EPA
interpreted those regulations, their interpretation was
narrower than ours.
Literally, it is requiring companies to provide a guarantee
if they try to do something that there will be ``x'' percent
reduction of pollutants.
When you are out there on the front edge and doing
something for the first time, it is very difficult to provide a
guarantee.
That is my understanding of the issue.
Mr. Ryan. So, it is difficult to get the thing off the
ground in the first place?
Ms. Studders. Well, the guarantee piece. If you can't honor
the guarantee, then EPA doesn't want you to go forward.
I can tell you that most States will have to get similar
legislation in place in order to participate in something like
this. But absent some tweaking at the Federal level, it is
where the partnership is really critical, that both the Federal
Government and the States together work on this one.
Mr. Ryan. OK. Thank you.
Mr. Seif, you mentioned the Federal liability problems with
the brownfields. Specifically you mentioned that Federal
Superfund liabilities are discouraging companies from
participating in your State brownfield redevelopment programs.
What do the Pennsylvania business and community leaders
tell you about this problem? Would eliminating or reducing the
threat of Federal enforcement at sites cleaned up to
Pennsylvania standards significantly expand participation in
your program?
What have been the roadblocks you have faced in trying to
get these sites cleaned up?
Mr. Seif. We are facing fewer as time goes on. I think
earlier on when our program was new--it was signed into law in
the summer of 1995--there was a great deal of concern that if
you did everything we asked you to--and it was laid out clearly
about what you should do and that was one of its advantages
compared to Superfund--you still might look at Superfund as a
threat.
If you don't have a finality to a business deal, you don't
have a business deal. You can't bank on an uncertain time
period or on a certain amount of money. Our statute provides
that. The feeling was that the Federal Government could come
in, or the regional office or Washington, and say, ``It is not
quite how we like it. Let us start over.''
I think as time has gone on, and now upwards of 35 or 40
States have brownfields laws and you have an EPA alert to the
harm it can do to an essentially functioning State program,
there is more forbearance.
There are also more practitioners, whether they are legal
or consultants or landowners or redevelopment authorities that
are willing to go through the State process and have less fear
of a potential Federal intervention.
It is still probably a good idea, however, to see some
statutory reform of Superfund--if we can't get the whole thing
reformed, which would be, of course, Tom Ridge's first choice--
to at least provide some kind of safety, some kind of
borderline between Federal and State jurisdiction in this area.
A great deal has been debated about what that language
would be, but I would say the need for it is somewhat
diminished over the years, but probably still important to
have.
Mr. Ryan. OK.
Mr. Recchia, I wanted to examine something you said that I
found interesting. In your testimony you noted that while cost-
effective retrofit technologies exist that significantly
reduced emissions under your diesel program, States are
substantially preempted by the Clean Air Act from taking large
steps to reduce pollution from existing diesel vehicles.
Do you regard this as an undesirable Federal intervention
in State environmental prerogatives?
Also, do you believe that the better alternative system
would be to have EPA set performance-based standards or goals
and then allow the States to develop their own technologies,
instead of EPA dictating which States may use technology to
achieve these goals?
Mr. Recchia. Thanks. I would like to answer the second one
first if I could, which is, yeah, I would agree with that. I
think generally if EPA can establish scientifically based
performance standards that we will do better in terms of being
able to come up with innovative technologies to do this.
The difficulty there, and I don't have an easy answer for
it, is that for EPA to justify a scientifically based standard
there have to be technologies out there that they can point to
demonstrate ``This is achievable and feasible right now.''
That makes it very difficult to not point to a particular
technology and say, you know, we think that is ``the best'' and
most straightforward control and at the same time not be
forcing industry to use that technology because that is what
the standard was based on and they are usually on a timeframe
that needs to implement it quickly.
So, I don't know how you will address that concern.
Generally, I think performance-based standards are a better way
to go.
Going back to the first question on the diesel emissions, I
think that was an unintended consequence. I don't see that as,
you know, EPA going out of their way to try and mess around
with States' prerogatives.
But I do think that between that and the engine
manufacturers suing EPA, trying to get them to encompass a
group of off-road diesel vehicles, which are basically all the
construction equipment primarily responsible for a lot of the
particulate emissions, into a rule that was meant to be dealing
with on-road vehicles and successfully appealing that in court,
that caused some of the tension there.
I would call it more unintended consequence, but
nevertheless, the Federal Government, by intent or otherwise,
was preempting the ability to effectively move forward.
Mr. Ryan. OK.
Mr. Olson, I would like to ask you about that same exact
point. What is your take on a gradual transition to a regime
where the Federal Government establishes environmental
performance standards based on the best peer-reviewed science,
and then allows States to design their own implementation
strategies and hold States accountable for the results?
Here is what the best peer reviewed science say are the
correct standards. You achieve the results. You employ and
develop the technologies that work the best. What do you think
about that approach?
Mr. Olson. Well, I think it is actually the approach which
is embraced in some Federal statutes. There are many examples,
for example, parts of the Safe Drinking Water Act.
EPA adopts standards which say, ``You do it however you
want to do it, but you can allow no more than this level of a
given contaminant in your drinking water.''
There are technology-based standards under the Safe
Drinking Water Act. They similarly say, ``You do it however you
want to do it, but however you do it, it has to be at least as
good as this technology.''
So, there are some examples where that has been tried, and
it can work. In the Clean Air Act and the Clean Water Act there
are also examples where EPA will set a basic performance
standard, a new source standard, for example, and allow
innovation to happen.
My concern would be that a wholesale transition to that
approach without having thought through what the implications
are. A broad re-writing all the statutes, I think, certainly
could upset the apple cart and retroactively impair some of the
progress we have made.
Mr. Ryan. I want to stick to the 5-minute rule so that
everybody else gets a chance to ask their questions. We will do
another round.
I will yield to Mr. Sanders.
Mr. Sanders. Thank you very much, Mr. Chairman.
I think this is an interesting and important hearing. I
think there should be very little disagreement that States
should be learning from each other and that the Federal
Government should be learning from the States.
The more ideas that are out there, the better it is. I
think we need to improve our cooperation.
Let me start off with Mr. Recchia, if I might, with one
question. Then, others please jump in. Do you believe that we
need to end the Grandfather Clause in the 1970 Clean Air Act
for fossil fuel power plants and if we did, what impact would
this have on the Northeast, including the State of Vermont?
Mr. Recchia. I think that is a very critical area for
Vermont. In particular, we are the only State in the region
that is in compliance and in attainment for our ozone levels.
But we are just barely in compliance and we are just barely
meeting our particulate matter standards, through no fault of
our own.
The issue here is, you know, we talk about the race to the
top and the race to the bottom. The bottom line is, factually,
these plants have been around for 30-some odd years, have been
going forward and not putting on a level of control that the
rest of us are putting on in our own region and yet we are the
recipients of those emissions.
This is a perfect example where the Federal Government
needs to establish the minimum performance level that is going
to be necessary, the minimum limit of emissions that are going
to be acceptable.
Mr. Sanders. So, I am hearing you say that you think that
we should eliminate that Grandfather Clause?
Mr. Recchia. Yes. I am sorry. I should have just answered
the question, right? The answer is ``Yes.''
Mr. Sanders. Are people in agreement with Mr. Recchia or is
there disagreement?
Mr. Seif. I would definitely like to agree with Mr. Recchia
and point out that Pennsylvania was the first or among the
first States to deregulate electricity.
So, we have the anomalous and economically unfair situation
of having Pennsylvania power plants produce power with
pollution under very tight controls, that is the Northeast
Ozone Transport Region, and then facing competition from power
plants producing them without such controls and sending the
cheap electricity to compete with us and the even cheaper ozone
to jack up our monitoring numbers.
What is wrong with this picture? The level playing field
doesn't exist.
Mr. Sanders. Do I hear any disagreement with the need to
end the grandfather clause or are we all in agreement on that?
Ms. Studders. Representative Sanders, Minnesota is in
complete agreement. We have even gone so far as to send EPA a
letter asking EPA to take action in this area. With all the
work that is going on with electricity, this definitely is a
national issue that we need help with.
Mr. Sanders. OK. Thank you.
Let me ask another question if I might, a similar one. What
are your feelings about the need to strengthen CAFE standards
and put an end to the loophole for SUVs, minivans and pickup
trucks? What is your view on that? Do you think we should
strengthen CAFE standards?
Mr. Marsh. I am Langdon Marsh from Oregon. The States
played a very strong role over the last couple of years in
encouraging EPA to go as far as possible in eliminating the
differentiation in emission controls between SUVs and other
light trucks and cars.
EPA did adopt some very good regulations in 1999 to require
for much cleaner cars starting in 2004 and also to establish
lower sulfur in gasoline fuel standards starting in the same
year. That was a major victory, I think, in terms of national
standards.
I don't have any specific background myself on the CAFE
standards, but I think it is that type of cooperation that is
going to be necessary on a number of fronts, including off-road
engines, both diesel and non-diesel and on issues like
corporate average fuel efficiency. I think that issue could be
moved forward.
Mr. Hackney. Congressman, may I jump in on that? In this
respect, I am not speaking for NCSL, but as an individual
legislator from North Carolina. I think that we need to take a
larger view of both the questions that you have asked and move
beyond that to ask what do we want our air to be like in 50
years or 40 years or 30 years? How do we want our rivers to
look like then?
When I said in my testimony that we need to take the next
step, what I meant was let's do some serious thinking about how
we want the environment it to be.
In my State we are working really hard on air quality
problems. But even though we are moving to low-sulfur gas and
there is hope on the horizon for air quality because of all the
improvements that the Congress has put into effect and that we
have done locally as well, the vehicle miles traveled are going
up so fast that it may not make any difference in helping out
with our air quality.
So we need to take a long, serious look as we begin the
21st century as to what our air is going to be like in 25 or 50
years. We need to do some serious planning about that.
You have mentioned two specific areas which are very
important. We need to move ahead.
Mr. Sanders. You mean look at transportation as a whole?
Mr. Hackney. Yes.
Mr. Sanders. Do I have time for one more question?
Mr. Ryan. Go ahead.
Mr. Sanders. This question is a little bit outside of the
scope of what we have been discussing, but it concerns me a
great deal. It is a very serious problem in Vermont and I
suspect in your States as well.
There seems to be an epidemic of asthma in this country. I
know we have many kids from the State of Vermont who need
inhalators and nurses have inhalators in schools.
Is there a serious problem in your States? What is your
judgment as to the cause of the problem and what are your
States attempting to do to address the epidemic of asthma?
Mr. Seif. If I knew the cause of the asthma problem, of
course, I would be investing in whatever company I sold that
solution to. In terms of whether there is an increase or not--
--
Mr. Sanders. Is there a serious problem in Pennsylvania?
Mr. Seif. Of course.
Mr. Sanders. A growing problem?
Mr. Seif. Especially with younger people and other kinds of
respiratory problems with other people who are at risk or
indeed the general public.
The mix of indoor chemicals, the mix of unsafe buildings,
buildings that aren't green, the kinds of activities that
people are involved in. They are not as athletic as they used
to be and sometimes there may be an issue there.
We are also hearing that there may be a rise of asthma
vulnerability because of the extensive use of antibiotics in
our medical history in the last 30 to 40 years, that is, a
reduction of the amount of immune capacity in systems so that
vulnerability to asthma is heightened.
It doesn't have anything to do with what is external in the
air. It could be the same amount but a heightened
vulnerability.
But we do have to have transportation controls. We do have
to have a national fuel strategy and a national CAFE strategy.
Whatever it is, it should be national. It is uniquely a
national issue.
Mr. Sanders. What about indoor air quality? You started off
by talking about that.
Mr. Seif. That is a very important issue.
Mr. Sanders. Is that something Pennsylvania is doing much
on?
Mr. Seif. We have done a fair amount on it. We are building
and have just cut a ribbon on a new green building. It is so
environmental efficient that it sells power back to the grid.
Mr. Sanders. Do you help schools?
Mr. Seif. Yes, we do.
Mr. Sanders. Do you provide funding for schools that want
to clean up their ventilation and so forth?
Mr. Seif. Yes, and we are building it into State bidding
standards or standards for grants to school systems to make
buildings green in energy efficiency.
Mr. Sanders. For schools to get funding from the State they
have to have certain types of standards; is that what you are
saying?
Mr. Seif. Or head in that direction. The fight is on.
Mr. Sanders. I won't tell the chairman that.
Do you have other comments on asthma?
Mr. Hackney. Well, again, speaking individually and not for
NCSL, in North Carolina I introduced the mobile air emissions
bill. This last time we had hearings we had an emergency room
physician from UNC Hospitals in Chapel Hill come in.
On the days when the ground level ozone levels were very
high the very young and the very old show up at the emergency
room. It is a serious problem.
So, the answer briefly is yes.
Mr. Sanders. OK. Are there other thoughts on asthma?
Mr. Recchia. If I could tie it back to the diesel emission
issue, that was one of the most frustrating parts about some of
the diesel issues because we were trying to work with the non-
road vehicles in urban areas, Boston, for example, when they
were doing the big dig.
In New York City, obviously, asthma issues are significant
in an urban area like that, at least the reports are that they
are increasing dramatically, even beyond what we are
experiencing in Vermont.
So, you know, to be able to get cooperation to control
those vehicles and get them retrofitted because, you know, they
were going to be onsite for 2 or 3 years, was very important.
Ms. Scarlett. Perhaps I could loop this back to the
discussion of State innovations in general and make the
following comment on the several questions you have asked,
which have really been about whether we are clean enough, safe
enough, healthy enough with our standards, and say that I think
you have heard concurrence that, you know, environmentalism is
a journey, not a destination.
We are not at that final destination and there are many
unattended problems. But the issue is not just do we need
grandfathering and do we need CAFE standards, do we need
greater standards or changes emission control requirements?
It really does get back to, in any event, how does one do
this?
On the grandfathering, for example, it is not just ought
those facilities to be grandfathered, but the question is how
is it that they are going to be enabled to achieve those goals
and, for example, will they and other facilities who are
already regulated still be faced with a source-by-source--for
example, best available control technology--rule, which
sometimes inhibits them from looking facility-wide at all their
sources and optimizing their reduction across multiple
emissions.
A case in point is in Florida, with an electric utility who
had a non-BACT technology which would have reduced multiple
emissions across the board, albeit for one of the emissions not
quite as low as the BACT technology.
But the question is do we want this multiple ability to
address all sources? Then on the SUV issue. I chair for the
State of California the Inspection and Maintenance Review
Commission, which oversees and evaluates that program.
One of the challenges we have is that the SIP process, the
State Implementation Plan process, in a sense is kind of an up
front and modeled exercise, that is a State develops a series
of programs it is going to implement.
Attributed to those programs are certain kinds of modeled
guesses at what reductions will be achieved, and EPA approves
up front or does not approve up front, as the case may be, that
plan.
So, some States don't get credit for programs that they
want to implement which they think have a good chance of
reducing emissions, California being the case in point with
some ideas that it has on that front.
Then again to the asthma issue, as for example the State of
Texas grapples in Houston, grapples with its problem. One of
the challenges is that many of the remaining emissions,
particularly the ozone forming emissions, are from small
sources, dry cleaners, bakeries and so forth. This is what we
grapple with in California.
The question is do you try the permit-driven approach with
a kind of BACT technology, where you have to have this smoke
stack scrubber approach, or do you try, for example, what
Illinois has done with its Clean Break Amnesty Program, which
is to say, ``We know you as a dry cleaner don't have on your
staff an environmental engineer. Let us help you understand the
problems and solve them.''
So, let us not separate the standard from the ``how,''
which I think is a lot of what the State innovation discussion
here is trying to get at.
Mr. Sanders. Mr. Chairman, thank you very much for the
extra time.
Mr. Ryan. I would like to get back to the whole idea of
this race to the bottom, race to the top notion. I would like
to engage Ms. Scarlett and Mr. Olson first and then the rest of
the witnesses.
Ms. Scarlett, you wrote a study called ``Race to the Top,
the Innovative Face of State Environmental Management.'' I take
it that you do not believe that the States, if allowed greater
autonomy and discretion in setting environmental policy would
engage in a race to the bottom. Could you explain why?
Similarly, what we have heard just from witnesses here
today is that there are innovative, exciting programs out there
in the States right now under the current kind of regime.
If these things are happening right now, where is the
problem? Please address these two issues.
Ms. Scarlett. OK, well, let me try to make it brief. I
don't want to be Pollyannaish and suggest that there is never
any challenge, that there aren't some ill-deed doers out there,
whether it is an individual firm or a State itself that has
made fewer investments in environmental protection than others.
Certainly, that occurs.
But there are several reasons to think that we are more in
an era of race to the top rather than race to the bottom. One
is that most American citizens at this point, 85 percent, when
asked, say ``I am an environmentalist.''
Remember that environmental laws don't spring from nowhere.
They spring from constituent interest. That interest resides
not simply at the Federal level but at the State level and
fairly strongly.
Second, remember too, as several of the Congressmen pointed
out, that State legislators are often closer to those
constituents than one is often in Congress. So, when things are
bad, I think that Jim Seif next to me will say that he hears
about it. He hears about those environmental problems and
fairly quickly, whether from environmental activists and/or
from other members of the public.
So, that general psyche is out there. It is driving in the
direction of race to the top.
Now, is this merely hypothetical? No. What we have tried to
do is to document what is going on. You have programs like the
Massachusetts Environmental Performance Program. They had a dry
cleaner and a photo processor program. Through that program
they achieved a 43 percent reduction in perchlorethylene
emissions, 99 percent reduction in silver discharges.
You have the brownfields programs. You have heard several
of the State innovators mention them, but in a very short
number of years you had Pennsylvania cleaning up-how many sites
is it now?
Mr. Seif. 777.
Ms. Scarlett. You had Illinois with over 500 brownfield
sites cleaned up.
Mr. Ryan. You guys did better than----
Ms. Scarlett. But this is actually what you have going on
to some extent, a competition to do better. So, I think that
observationally and empirically we see improvements.
Mr. Ryan. Right. It is great to see the competition among
these brownfield programs.
Mr. Olson, I want to ask you because I was intrigued by
something you said in your testimony. I can't remember the
number you mentioned. I think you said 19 States adopted at
least one statute prohibiting their State environmental regs
from being any more stringent than existing Federal regs.
Mr. Olson. Right.
Mr. Ryan. And that is to buttress your point that you
believe a race to the bottom would occur if States were given
more autonomy.
Isn't that kind of a one-sided point of view? I mean given
what Ms. Scarlett just mentioned, also given the Council of
State Governments' finding that 80 percent of the States have
at least one clean air standard that exceeds the Federal
minimum?
Isn't there more to the picture than just the fact that
these 19 States have these regs out there?
Mr. Olson. Sure there is. I guess what I would say is if
you lifted all the Federal laws right now, environmental laws,
and I know nobody is suggesting that, but if you did, I think
as soon as the gun went off there would be a race in both
directions. Some States would race forward and some States
would race backward. It would probably depend on the program.
There are significant pressures to weaken standards, and I
am sure the State representatives here would tell you that
there are significant pressures. In some cases you have a major
employer or a major industry who is threatening to move out of
the State. There are many other reasons that there are
pressures for States to go below the Federal standards.
I would be happy, for the record, to submit examples where
States in fact are not currently living up to minimum Federal
standards.
Mr. Ryan. Do you think that may be partly because of the
prescribed technology they have to have or do you think they
just won't do it because they want to attract the business?
I think it is going to be one of these issues where you
probably have to go on a case-by-case basis. Lynn just gave us
an example where companies had different technologies that
would have worked better, but Federal law mandates BACT
technologies that are inferior.
I think that is very complicated. It is tough to paint that
one with a broad brush.
Representative Hackney, did you want to make a point?
Mr. Hackney. I want to say that I think the reason you hear
so much unanimity today on keeping strong Federal environmental
standards, is that the examples quoted by Ms. Scarlett and by
Mr. Olson are substantially correct.
You can find, if you look, places where States have not
done as much as they should. You can find, if you look, a lot
of places where States have done wonderful things.
So, we take the position that policywise that States need
the Federal backup, the Federal standard, but with the
flexibility to do better and maybe do it in different ways.
Mr. Ryan. Yes. It sounds like a case is being made across
the board for performance-based standards with autonomy and
discretion to go find the best way to meet these standards,
find the best technology to accomplish those goals.
If anybody disagrees with that, please speak up.
I wanted to ask you, Ms. Studders, a quick question. This
is an interesting chart you showed us, your geographic
breakdown. It is very intriguing that you decided to use a
regional approach to configure your agency and controls instead
of the silo approach.
Is that being done anywhere else and have any of your State
counterparts consulted you on doing that? Have you run into any
kind of Federal barriers in trying to implement this
restructuring?
Ms. Studders. I might be corrected by one of my peers who
have more time than I. I think Wisconsin did a similar
reorganization, slightly different, but geographically based.
To my knowledge, we are the only two States that have done
that, Congressman.
What is different about it or what we have found that is so
successful is that we are at the source of the problem. I will
be honest, the northern part of my State is mining and it is
recreational lakes.
The skills of the scientists that I need in the north are
very different than the skills I need dealing with feedlot
operators in the southern part of the State of Minnesota.
In the Karst area, which is southern Minnesota, I know
several other States here have the Karst dilemma, which is
geology that allows pollution to move very rapidly without
knowing where it is going to go. I need experts in the southern
part of the State who can deal with that.
Where I can tell you that we have had some difficulty, and
I will be honest on two fronts, the Federal Government and the
entire environmental protection system that we are all speaking
about today was created in reaction to crises. We created the
Clean Air Act when we had air pollution problems; the Clean
Water Act when we had a couple of rivers on fire.
The unfortunate part is that you can have staff working in
a program in the air area and they don't talk to their
counterpart in the water area. That is how you come up with
these major enforcement dilemmas that hit the headlines of the
paper and they say, ``What is the environmental agency doing
wrong?``
When you are arranged by those silos, as I literally refer
to them, there is no reason for the air people and the water
people to talk to one another, share their information, find
out if they maybe have a problem company that they need to sit
down and talk about.
With our new organization, my staff that are hydro-
geologists, that are scientists, that are working in the air,
water, the brownfields and the remediation area are on a team
working on a facility. They are able to holistically look at
that facility and prioritize what we need to do first to get
that facility into compliance.
So, we are looking at the environment. We are not just
looking at a permit regulatory requirement.
Mr. Ryan. That is fascinating.
Ms. Studders. It is tough, though, when we are trying to
interact with the Federal Government and other States. My
comment to my staff is we have to make it hard on us and easy
on everybody else.
Mr. Ryan. That is interesting. Go ahead.
Mr. Seif. That is food for thought in that regard. EPA is
also ``siloed'' and it does affect, in the same way as Karen
has described, their overall stewardship of the environment and
the Nation.
We also have a very heavily regionalized EPA. Richard Nixon
thought in 1970, let us have these 10 standard Federal regions
and all Federal agencies were supposed to go with that
arrangement. Only EPA has stuck with it; everyone else has gone
back to different arrangements--whether better or worse I don't
know.
EPA is very heavily regionalized and that increases, I
think, some institutional myopia in terms of dealing with
programs. The very successful Chesapeake Bay Program, the Great
Lakes Governors and others have organized around very natural
boundaries called watersheds, the boundary that God made. That
works a lot better.
We hope in Pennsylvania to go in that same direction.
Mr. Ryan. Mr. Marsh and then Mr. Recchia.
Mr. Marsh. Yes, I think just to supplement what my
colleagues have said, many States have regional offices. I am
not sure that they are specialized to the same extent as in
Minnesota and Wisconsin.
But there is a movement, very definitely, to bring
environmental agencies across the board out to work with local
communities and watersheds, in neighborhoods in urban areas, to
try to focus on holistic programs at the local level.
This is causing the need for significant cultural change
within the State agencies. I think one of the difficulties or
lags, if you will, is that the EPA in either the headquarters
or the regional offices are not quite there yet.
I think one of the promises of the performance partnership
process is to bring the Federal agency, EPA, in particular,
down to the regional problem-solving level where I think most
of the States are going.
I think a lot of the successes we are seeing in overall
improvement in environmental results are at the watershed and
regional air pollution levels.
So, I think one of the challenges for the next number of
years is bringing all of the resources to bear to solve
problems more comprehensively.
Mr. Ryan. Mr. Recchia and then Ms. Studders.
Mr. Recchia. Thank you, Mr. Chairman. I would actually like
to go back to an earlier topic if I could and just touch
briefly on the race to the bottom issue again. I generally
agree with Lynn that we are moving in the other direction, in
general.
But I think there is a potential with deregulation to go
the other way. I would offer you a thought about how to maybe
correct for that, using, if you will, market forces and the
constituents that Lynn had mentioned.
You know, generally, the public is interested in holding
people accountable for good environmental performance. That is
a wonderful asset in Vermont and I have no reason to believe it
is not true around the country.
What that means is the constituents need to know what the
environmental performance of those groups are. In other words,
there has to be some sort of environmental performance measure
or standard index or indices, if you will, of how, if I am
producing power in Vermont from a hydroelectric dam, how that
equates environmentally to someone producing power out in a
Midwestern State from a coal-fired power plant.
So, these constituents need to be able to see that. I guess
I would offer the same issue on the mercury front. You know,
part of the frustration from the region's standpoint is we feel
like we are doing a part that the Federal Government should be
doing in the form of dealing with consumer awareness of mercury
in products and package labeling and things like that really,
ideally, would be done on a Federal level.
That is the kind of partnership that I think works well. I
could explain to you all the great things we are doing on
mercury control in our State from the regulatory to the
voluntary, but on these broader issues, and particularly on air
issues, as you will see, we need more national presence and
consistency to help level the playing field.
Mr. Ryan. Ms. Studders.
Ms. Studders. Thank you. I wanted to supplement the
question you had asked in light of what some of my peers here
had said to you in responses.
We have a contract between the Minnesota Pollution Control
Agency and EPA, the Environmental Performance Partnership
Agreement. It is a 2-year contract. Not all States have it. I
apologize, I do not know the number of States that have that
contract. I think it is around 30, but I am guessing at that
number.
In that we set up expectations of what the State is going
to do and what the Federal Government is going to do.
To supplement what Secretary Seif said, one of our dilemmas
is, we can negotiate that in good faith with EPA and the staff
that do the agreement can come to agreement with our staff.
When we run into barriers is when it goes into the EPA
structure, into the different silos, into the air program, the
water program, and the land program.
They have specific measurements they want in that contract.
They aren't environmental measurements. They are the old style
measurements that I spoke about. That is where one of my
messages on flexibility is. We have to start looking at that
whole body of water, that whole air shed. We have to because
just that one indicator doesn't tell us if we are doing our job
well.
Mr. Seif. There is an even worse silo at EPA than the
media--air, water and so on. It is more like a black hole. It
is enforcement. OECA pollutes other portions of the agency that
have great ideas, great ideas for flexibility, innovative and
so on. You can always count on an OECA lawyer or a DOJ lawyer
to say, ``Oh, we can't do it that way because in 1982 we did it
a certain way.''
I believe the EPA is actually the conservative among the
players you see simply because the culture of the agency is
that way. It was effective, it was exactly how you would want
them to be in 1975. You don't want them to be that way in the
coming 10 years.
Mr. Ryan. That is interesting.
Ms. Scarlett.
Ms. Scarlett. I would like to just kind of loop this
together in the barrier issue, and then make what I think is
perhaps a constructive suggestion.
One of the things that Minnesota faced, and other States
faced, as they have tried to move to a more holistic and
regional approach, is a lack of clarity between the
relationship of the old silo-by-silo permits and the new
facility-wide or industry-wide or holistic permits that
Minnesota and others are exploring.
It is a lack of clarity, not a slam-dunk. Obviously, some
States have managed to move forward with these endeavors.
But a Federal or congressional authorization that made that
somehow clear, I think, would be something worth examining and
exploring.
Second, and also related, there is a mismatch between the
reporting requirements, the permit-by-permit reporting
requirements, and the more holistic environmental performance
indicators that Florida, Oregon, New Hampshire and others are
moving toward.
So, if there were a way, again, to reorient the Federal
focus on performance indicators that mesh with these new
directions, I think that would be fruitful.
Now, one constructive thought on thinking about the race to
the bottom and the race to the top and how does one grapple
with the fact that both are obviously possible, and that is to
take again a page from the States, the Green Tier Permitting
Program in Oregon and also that in Wisconsin, which actually
has tiered permits.
One could take, for example, the current NEPPS agreement
and develop a congressional kind of authorization whereby those
States that have NEPPS agreements and have these compacts that
have performance requirements in them are then essentially
fully responsible for permitting an enforcement and only held
to the test periodically on ``are you achieving real results?''
Those States that either do not want the delegated
authority, do not have a NEPPS agreement for whatever reason,
could still remain in the old environmental regulatory regime.
This allows us to move forward without jettisoning the
past, if you will. So, it is something to think about.
Mr. Ryan. Sure. That is a very provocative way of putting
it.
Mr. Sanders.
Mr. Sanders. Thank you very much, Mr. Chairman.
I just have two questions. I don't think there is any
disagreement that there are some areas where the local and
State government are better equipped to move and there are some
areas where the Federal Government must play a very important
role.
You mentioned the word ``dry cleaning.'' I remember in
Williamstown 20 years ago, a small town in the State of
Vermont, we had a problem. The water was severely polluted. The
State of Vermont could handle that. I don't think we don't need
the Federal Government.
On the other hand, it is reported that the hole in the
ozone layer is now three times the size of the United States.
There are, I guess, credible suggestions that causes skin
cancer around the world.
The State of Pennsylvania is not going to solve that
problem, nor even will the great State of Vermont all by
itself. Here is where you have a problem.
Does anyone disagree that on areas like that the U.S.
Government, along with the rest of the world, is going to have
to play a very, very active role? That is my question.
Ms. Studders. Congressman Sanders, from my perspective, in
Minnesota we share a boundary with Canada. I don't just deal
with State environmental issues. I am dealing with
international environmental issues.
Mr. Sanders. That is right.
Ms. Studders. The environment is global. The water is all
connected. I learned a statistic when I got this job that I
will share with you because it shocked me.
We know how China pollutes. The 10 most polluting cities in
the world, air-pollution-wise, are in China.
Mr. Sanders. That is right.
Ms. Studders. The air, to get from China to Seattle, takes
4 days. It takes 1 more day to get it to Minnesota. So, we have
to start thinking about the question that you asked earlier
about what do we want our air and water to look like in the
future. This is a global issue.
Mr. Sanders. That is right. But you have no argument with
the statement that this is not going to be solved at the
statewide level. It is going to be a national and international
solution.
Mr. Seif. I think there is another spectrum along which we
must think globally, that is geographic as has just been
mentioned. But what goes up a stack is a soup of stuff. It is
mercury, let's say. Here I go, I can see Marlo Lewis getting
ready.
That fact is, to be inflexibly against the regulation of
CO2, in a power plant stack, while urging innovation and the
like in the control of other kinds of pollutants, say mercury,
is not quite realistic. It is not how power gets generated. It
is not how planning gets done. It is not good engineering.
It may be that there is a good legal case, I believe there
is, that EPA doesn't have statutory authority concerning CO2.
But if EPA is to be managed or overseen by the Congress in a
flexible way, just as we would like it to oversee us in a
flexible way, it ought to be able to work with us, with the
Ozone Transport Commission, with individual States, with power
plants, with power companies, with other nations, to work on
all pollutants.
It should work to develop technology, techniques,
treaties--though I don't favor the one now before the Senate--
and other devises without having its hands sort of tied because
someone just doesn't agree with a particular step it may have
taken, or with its sometimes ``lead with the chin'' approach
about the way it operates.
The fact is flexibility is important from the Congress as
well as from EPA to the States.
Mr. Sanders. But having said that, you would not deny for a
second that the Federal Government, in fact the international
community has got to be actively involved in addressing this
crisis situation?
Mr. Seif. Actively and unfettered by particular agendas
against particular actions that they might, or ought to,
consider or at least research or think about.
Mr. Sanders. Let me ask another question, my last question,
if I might. I am curious. I don't know what the answer to this
one will be.
I think that around the country, although not in the U.S.
Congress, I should say, there is growing concern about
genetically modified organisms, the issue of labeling, the
issue of long-term possible health effects is something that
is-I will give you one example.
There are some companies that are making new fish. I guess
they have created a new salmon, which is two or three times
larger than the old salmon we used to have. The threat is if
that escapes into the waterways it could wipe out the specie
that we know today as salmon.
It is actually among ordinary people an issue to the degree
that they know about it in Europe and there is a great deal of
concern about this issue.
Is that an issue that is on the agenda of any Statewide
environmental agency?
Chris.
Mr. Recchia. Yes, I would like to respond to that because I
probably feel more passionately about this than I ought to
because it is sort of beyond the scope of my normal profession,
but I will say it is very related to the mercury labeling thing
I was just mentioning in the sense that I think that if you
want to enlist people of ability to vote with their feet, if
you will, or vote with their dollar or do any of that, they
must be informed about this.
It doesn't mean we have to have all the answers and know
necessarily whether it is good, bad or indifferent. The fact
that it is different and people have the ability to make their
own judgments about it as time goes on, I think, is very, very
important.
I think it is very important for mercury-containing
products, fluorescent light bulbs. If there is no alternative,
fine, put the mercury in. But tell people that it is in there.
They can judge whether that is good for them or not.
Mr. Sanders. You are suggesting labeling of genetically
altered products?
Mr. Recchia. Genetically altered foods, I would say the
same thing. I don't think any of us, at least no one in my
profession I know of would sit here and say ``We know all the
answers to environmental problems. So, you don't really need to
know that, ladies and gentlemen, because we will take care of
it for you.''
I think that is very patronizing and presumptuous and I
think that we ought to simply inform people of the range of
things they are ``concerning.''
Mr. Sanders. Are you supporting Federal legislation or
State legislation?
Mr. Recchia. On this type of thing I would support Federal
legislation for the same reason I would support Federal
labeling of mercury-containing products, etc.
Mr. Sanders. Yes, Ms. Studders, go ahead.
Ms. Studders. If I could do a friendly amendment to what
Vermont is suggesting. In Minnesota, we have an organization
called the Environmental Quality Board. It is comprised of 10
agencies in the State and five citizens.
Our job is to oversee environmental policy, particularly
where it crosses into different agencies.
I am going to give you an example of your question with
GMOs. There are health departments in the United States that
have some jurisdiction over that. There are agricultural
departments that have jurisdiction over that. There are
departments of natural resources or U.S. Fish and Wildlife that
have jurisdiction, as well as the Environmental Protection
Agency.
You have hit on a perfectly good example of why the old
system isn't working for us. Our environmental problems today
are crossing geography. They are crossing science. They are
crossing different disciplines.
I don't think you can say one agency has to do this. We
need teams now. The genetically engineered organisms, I mean
the impact is phenomenal, but I don't think one agency with its
expertise can solve that.
To the extent we can encourage that at the Federal level
and not just give it to one agency, I really think that
diversity is needed on issues like that.
Mr. Sanders. That is a good point. Are there any other
thoughts on GMOs?
Mr. Marsh. I would just like to say that I would completely
agree with the gentlemen from Vermont's suggestion that some
kind of Federal legislation requiring labeling for genetically
modified organisms in food would certainly make some sense, so
people would know and they could make their own decisions.
Mr. Sanders. Some of us are trying to accomplish that.
Thank you.
Mr. Chairman, thanks very much.
Mr. Ryan. No problem.
Let me just wrap up and ask a basic question of all
panelists.
Ms. Scarlett, you mentioned three legislative remedies that
you thought might help promote State environmental innovation:
amend existing environmental laws by including flexibility
provisions, develop an EPA authorizing statute specifying
congressional support for State environmental innovations, and
develop a statute allocating resources to States based on their
achievement of performance goals.
In that context, I would like to ask everybody a question
what do you think Congress ought to do?
The purpose of having you here is to have you advise us.
What do you think Congress ought to do to facilitate your
ability to improve the health and welfare and environments of
your respective States? What kinds of flexibility? What kind of
things do you think we ought to focus on doing here?
I will just start from left and go right. How does that
sound?
Mr. Recchia. It sounds not as good as starting from right
and going to left.
Mr. Ryan. It is your right and their left. OK.
Mr. Recchia. But I will. I guess I think that I would agree
with Secretary Seif. The weird part of the Federal
administrative agency right now in terms of the level of
cooperation and moving forward in a cooperative way is the
Office of Enforcement and Compliance Assistance [OECA]. So, I
would urge you to do something there.
I think the other thing you could do, because I believe EPA
wants to do the right thing and support us in these areas, is
build in the flexibility for EPA to establish standards that
are based on scientifically sound information that form the
basis of health or environmental performance levels that we
need to get to, but where there may not be technology out there
to achieve those standards, and allow flexibility for people to
see if they can innovatively get to that point.
I think right now they are so hounded on both sides that
they don't have any room and flexibility to move. I would also
agree with Jim's comment about, you know, no one should be
muzzled in doing the environmental work of this Nation and I
would urge us to not have that type of reaction when we
disagree.
Mr. Ryan. OK. Thank you.
Mr. Marsh. Mr. Chairman, I think that in addition to
promoting and permitting flexibility by EPA such as they have
done through the regulatory innovation agreement with the
States, and I think there may be something that can be done to
buttress that flexibility, I think that the resources are
probably the major limiting factor for both the EPA and the
States to be as flexible as they need to be.
I think the business community in our State does recognize
that if permits are going to be flexibly administered, you need
to have the people there available to do it.
Now, it is not all a Federal responsibility, to be sure,
but I think that looking at the capacity of both the States and
the EPA, through its regions, to work cooperatively and
flexibly, there is an element of a resource question there that
I think that Congress can address through its budget process.
Mr. Chairman, I am going to apologize, but if I am going to
get back to Oregon tonight, I have to leave right now.
Mr. Ryan. Please go ahead, by all means. Thank you for
coming.
Mr. Marsh. Thank you very much for inviting me.
Mr. Ryan. Mr. Walden sends his regards. He was stuck in
another committee, but he wanted to come.
Mr. Marsh. Thank you.
Mr. Olson. I would make three points in response to your
question. First of all, the Federal Government can and should
be providing funding to States and to EPA's programs that are
trying to encourage innovation at the State level.
I think that is one of the most important things that the
Federal Government can contribute.
Second, it is very important to try to identify better
measurements of performance. I don't know if you have looked
through the GPRA reviews that EPA does or the so-called
Government Performance and Responsibility Act. But many of
those, frankly, identify things like the number of permits
issued, which are important, but is that really what we are
after?
Perhaps what we ought to be focusing on is ways to identify
actual environmental improvements and making those achievable
through some kind of enforceable requirements.
I do want to just highlight why OECA, which has been sort
of whipped today, and other parts of the agency sometimes put
the brakes on the flexibility that has been suggested. I don't
know all the examples that may have been cited here, but
certainly one person's flexibility can be another person's
gutting of a requirement.
The concern often is will this requirement be enforceable.
Very often some of the proposed flexibility, which sounds good,
can end up becoming almost unenforceable. You know, if you give
a lot of flexibility to a Midwestern power plant that is
belching a lot of pollution, is that going to end up being so
much flexibility that you can have no enforceable requirements
and it will end up polluting the northeast, Vermont and
everywhere else? So, you know, that is obviously one issue that
comes up frequently.
Ms. Edgar. Florida would echo the comments of our sister
States and colleagues regarding some of the difficulties that
we have had trying to bring what we considered to be good ideas
and innovative ideas and being stalled by OECA.
We also would look for some ability to devote financial
resources to problems that are identified, to priority problems
rather than stovepipe distribution of funding sources.
To follow on a comment by Ms. Scarlett earlier, many of the
Federal requirements require States to collect reams of data on
outputs that really are of marginal use in analyzing and
understanding the outcomes of our environmental programs.
So, I think direction from the Federal level, from
Congress, from EPA to work with the States and help us with our
data integration, help us with data quality, data
standardization.
As an environmental agency, data is what we deal in, data
and science. In many instances we are dealing with incomplete
data to help us do true assessment, but yet we are required to
continue to report and to report and to report.
So, again, we need some direction to help us standardize
and be able to have indicators that help us with meaningful
outcomes.
Mr. Ryan. Thank you.
Ms. Studders. Minnesota thanks you for this opportunity. I
am going to give you seven suggestions that I really need. Some
of them are echoed by my peers and in others I am trying to
pull together a lot of what we said today.
The first is we need statutory flexibility. What I would
actually suggest is that you might want to think about a task
force or a work group to sit down and talk about what
specifically would be needed in that arena to help us with
innovations at the State level.
I think one of the things you need to understand is our
existing environmental statutes do not allow us to function
risk-free. When you are experimenting you need to have a safety
net that you can function in. We need that.
The second thing we have already touched on within OECA. I
don't want to beat up OECA, but let me draw an analogy. Today,
when I ask people, when something happens and they want to take
an enforcement action, the first question I ask them is: ``What
was the impact on the environment? What was harmed? What was
hurt? What was lost? How serious is it? Is it irreversible? How
long will it take to recover?''
That, to me, is a very vital question. When I am having a
fight with OECA that is not even on the table. The concern I
have is--again, it is not against them; it is the system they
were set up to enforce that is 30 years old.
Mr. Ryan. What is it? Is it process questions?
Ms. Studders. Well, that inspection found this widget out
of whack or this piece of paper not there or this many
emissions too large and did not look at what was the impact to
the environment. I could take a simpler example and it would go
back to where we have had our dilemmas with Project XL in
Minnesota.
One of our examples was a major corporation in our State
wanted to go forward early on with Project XL. Part of the
reason they actually backed out and why we backed out of the
project was because the Federal system was not able to give
them credit for changes they had already made that were above
and beyond regulatory and that had been done before the passage
of a law.
It is just literally the nitpicking of ``has there been
something already done above?'' We don't get credit for what we
have already done. So, if we are innovative and then a law gets
passed down the road, there is no credit for that.
Actually businesses that choose to be environmental leaders
are being penalized under this existing system by OECA. That is
what is problematic about it.
The third thing has to do with funding flexibility. Not
only do we need more money, but also we need money that we can
move around to where the biggest environmental threat is. Right
now there are so many strings attached to the money, it is very
difficult for us to do.
The fourth has to do with communication. That is one of my
strong messages as Commissioner. There needs to be a better
dialog between EPA and the State environmental agency. There
also needs to be a better dialog, as Secretary Seif said,
between the regions and headquarters of EPA. Often the right
hand does not know what the left hand is doing. We at the
States get to deal with both entities. That is tough sometimes
when HQ says one thing and your region says another.
Then you add the complication of the media--air, water and
land--within the agency. That communication between the silos
has to start happening.
The fifth is that I would like to challenge that we need to
do environmental regulation based on incentives as opposed to
punishments. Let us think about it. Most of us in this room are
parents or we have a niece or a nephew or a sibling who is
younger than us.
We think about what causes someone to change their
behavior. It is not getting yelled at. It is not getting beat
up. It is getting some positive reinforcement to do a behavior
change.
I would like to think that is the ``second wave of
environmental protection'' we have to put out there, especially
when we are going to start dealing with nonpoint source
pollution.
The sixth thing has already been touched on. EPA needs to
look at how it is structurally organized. It worked. It is not
working now. We need to look at the media issue. We need to
look at the regions issue. I would like to challenge that we
may need to take it apart.
The final and the seventh one is data integration. I know
there is an issue that is before Congress now. I believe it is
a $30 million appropriation in EPA's budget. It is for data
integration with the States.
Let me tell you how complicated it is right now. Fifty of
us have computer systems. Fifty of us keep the data
differently. EPA keeps the data differently. We don't put the
decimal in the same place. The data can't talk to the data. We
are spending millions of dollars, probably billions nationally,
on this data. And it is kind of useless right now.
We have to standardize the system. That is an example where
the Federal Government needs to help. But the Federal
Government can't design that system without having the States
at the table. We have to be there to tell you what our
computers can and can't do.
Do you know what? With this thing called the Internet we
can put that data on the Web and then citizens can start making
decisions to help us with the air, water and land because they
will see it. It will all be reported the same way and we can be
a better informed country. So, my last one has to do with data.
Thank you.
Mr. Ryan. Thank you.
Mr. Seif. Everything that Karen Studders said is absolutely
on target and especially, I think, the last one. Unless we
start counting the right stuff and try to break down what
reinforces the counting of the wrong stuff, which is
bureaucratic culture, including mine.
While I am here today giving advice on how other people
should do stuff, my bureaucrats have done some very dumb things
today. I don't know what they are. But I will find out
tomorrow.
That is because they are pursuing, under statutes or under
EPA grant direction, or because of the silos that they have
grown up in over 30 years in the agency, or because of external
enforcement by environmental groups saying, ``If you are not
putting people in jail, you are not doing the job.''
Whatever it is, we have to change what the goals are. Then
the same bureaucratic behavior that we decry and love to bash
and get headlines about will in fact serve the environment, if
we can get them to count the right stuff. That is the key.
I think Congress, frankly, could reorganize itself in terms
of the committee system to give EPA--well, you asked!
Mr. Ryan. Yes, I know. Let us have it.
Mr. Seif [continuing]. To give EPA a much better chance of
being responsible and responsive rather than perpetually jerked
around in terms of what their goals are and in terms of what
the oversight objectives are.
A good place to begin, as Karen mentioned, would be the
budget. But that is only after you handle the data systems, and
in particular, please cough up that $30 million so EPA, which
has the right approach in mind and has lots of State buy-in----
Mr. Ryan. Is that in the VA-HUD bill? Does anybody know?
Ms. Studders. Yes. It is in their budget.
Mr. Ryan. Is it in VA-HUD right now?
Ms. Studders. I know it is in their budget.
Mr. Seif. I don't know where it is. I am told it is in the
Senate.
You know, if the only tool you have is a hammer, every
problem looks like a nail. OECA is a hammer. There are lots of
other tools. If we could just incentivize and fairly count
their use, it would make a world of difference.
Mr. Ryan. Thank you.
Ms. Scarlett. Well, Congressman Ryan, I have already
mentioned a few, but let me just briefly repeat them. I do
think it is worth considering an authorizing statute for EPA
that would provide a vehicle to actually include clarification
of the respective permitting authority between the States and
the Federal Government.
As I suggested, this doesn't need to be either/or. One
could perhaps use a NEPPS style agreement as the mechanism to
make that happen so that some States would still be under the
old regime and some would enter the new.
Second, I do think that one needs to think about a
reorientation, perhaps, of resources toward data integration
and development of performance indicators. It could be either
resources to the States as they begin to work on those
performance indicators.
I find it ironic that we have been 30 years into our
environmental regulation with so much emphasis on permits and
process that we have actually unattended to those indicators
and their development.
Third, and relatedly, I think funding flexibility, we now
do have some block grants that go to the States, but they tend
to be silo by silo. So, again, there is not the opportunity for
a State that has a water problem to use those resources for
water. Instead they must use it for air, which might not, for
example, be their primary problem.
Then finally, and perhaps more controversial than any of
those three, I do think there is a need to reorient--I don't
know how this can happen. This is much more complex. I think
there is a need to reorient Federal resources toward ongoing
monitoring and actual performance--kind of ``the proof of the
pudding is in the tasting; how did we actually do'' rather than
up front second-guessing of program design.
I think the SIP process is a classic example of that up
front kind of preemption and second guessing rather than
letting States say, ``This is what we want to do.''
Sign a compact, if you will, a Netherlands style compact.
``This is what we are going to do.''
Hold us to the test in 2, 3 or 4 years and if we don't
succeed at that point, let us go back to the drawing board.
But that up front process actually does keep off the table
some very good innovative programs that otherwise might yield
performance.
Mr. Hackney. Mr. Chairman and members of the subcommittee,
thank you for this opportunity. I want to start out by
advocating something that you have just done, that we have
advocated in our testimony, to establish a better and a more
formal communication process between the State legislatures and
the Congress.
You have certainly started that today. I want to reiterate
that. I do think it is a two-way communication process. I think
it should be more formal. I think EPA should be intimately
involved with it as well.
Second, avoid mandates and preemption.
Third, send money.
Mr. Sanders. And cut taxes?
Mr. Hackney. In particular I want to mention send
university research money. I think those are some of the best
environmental dollars that we spend.
I mentioned earlier in my testimony that we have a hog
lagoon problem in my State caused by the immense expansion of
the hog industry.
We have a lot of important cutting edge research going on
at North Carolina State University and we are trying to learn
what does and doesn't work. Then we are going to put it into
effect.
We certainly invite the Congress to help us with that,
including helping us fund research.
We have advocated rewriting the major pieces of
environmental legislation in 21st century standards. That is to
say, let us look far off into the future and decide what we
want our country to look like in terms of the water and the
air.
Perhaps we need higher standards. Perhaps when we advocate
for uniform national goals and standards we need to aim high.
Thank you for the opportunity to testify today.
Mr. Ryan. Thank you.
Let me just finish up by saying thank you to everybody for
coming up here.
You know, I am a new Member of Congress here and I guess I
didn't get the memo which said that I know everything now that
I am a Federal legislator.
But, I will tell you, there seems to be a bit of arrogance
in this town that I have witnessed over the last couple of
years. It is basically ``Don't let the facts confuse me. I know
the answer and I am right. Here is the way it goes.''
Your ideas are something we need more of, this kind of
interaction, this kind of evidence, these kinds of stories help
us, in my opinion, to learn about what works, what doesn't,
what did work but what doesn't work any more.
These are the things that I think we need to hear about up
here. I am going to encourage my colleagues to review this
testimony.
I hope that this hearing is the beginning of a dialog, an
understanding. As you mentioned, Ms. Studders, we need a
``second wave of environmental protection,'' one in which we
stop making the environment a partisan issue and emphasize
getting things done and doing what works.
So, I just want to say thank you very much for coming.
Bernie, did you want to say anything?
Mr. Sanders. I would just add my thanks as well.
Mr. Ryan. I really appreciate everybody coming from such
great distances.
This hearing is adjourned.
[Whereupon, at 5:27 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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