<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:82666.wais]
EPA ELEVATION
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON ENERGY POLICY, NATURAL
RESOURCES AND REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST AND SECOND SESSIONS
__________
SEPTEMBER 21, 2001; MARCH 21 AND JULY 16, 2002
__________
Serial No. 107-135
__________
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
U.S. GOVERNMENT PRINTING OFFICE
82-666 WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
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 MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON, California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Jr., Tennessee BERNARD SANDERS, Vermont
JOHN SULLIVAN, Oklahoma (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs
DOUG OSE, California, Chairman
C.L. ``BUTCH'' OTTER, Idaho JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEVEN C. LaTOURETTE, Ohio PATSY T. MINK, Hawaii
CHRIS CANNON, Utah DENNIS J. KUCINICH, Ohio
JOHN J. DUNCAN, Jr., Tennessee ROD R. BLAGOJEVICH, Illinois
JOHN SULLIVAN, Oklahoma
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Dan Skopec, Staff Director
Jonathan Tolman, Professional Staff Member
Allison Freeman, Clerk
Elizabeth Mundinger, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on:
September 21, 2001........................................... 1
March 21, 2002............................................... 95
July 16, 2002................................................ 199
Statement of:
Boehlert, Hon. Sherwood L., a Representative in Congress from
the State of New York...................................... 4
Davies, J. Clarence, senior fellow, Resources for the Future;
Janet L. Norwood, fellow, National Academy of Public
Administration; Robert W. Hahn, director, AEI-Brookings
Joint Center for Regulatory Affairs; and Janice Mazurek,
director, Center for Innovation and the Environment,
Progressive Policy Institute............................... 36
Ehlers, Hon. Vernon J., a Representative in Congress from the
State of Michigan.......................................... 25
Futrell, J. William, president, Environmental Law Institute;
William Kovacs, vice president, Environment and Regulatory
Affairs, U.S. Chamber of Commerce; and Wesley Warren,
senior fellow for environmental economics, Natural
Resources Defense Council.................................. 248
Horn, Hon. Stephen, a Representative in Congress from the
State of California........................................ 9
Studders, Karen A., commissioner, Minnesota Pollution Control
Agency; and Jane T. Nishida, secretary, Maryland Department
of the Environment......................................... 164
Tinsley, Nikki, Inspector General, U.S. Environmental
Protection Agency; and John Stephenson, Director, Natural
Resources and Environment, General Accounting Office....... 100
Whitman, Christine Todd, Administrator, Environmental
Protection Agency; and James Connaughton, chairman, Council
on Environmental Quality................................... 222
Letters, statements, etc., submitted for the record by:
Boehlert, Hon. Sherwood L., a Representative in Congress from
the State of New York, prepared statement of............... 7
Connaughton, James, chairman, Council on Environmental
Quality, prepared statement of............................. 229
Davies, J. Clarence, senior fellow, Resources for the Future,
prepared statement of...................................... 39
Ehlers, Hon. Vernon J., a Representative in Congress from the
State of Michigan, prepared statement of................... 27
Futrell, J. William, president, Environmental Law Institute,
prepared statement of...................................... 250
Hahn, Robert W., director, AEI-Brookings Joint Center for
Regulatory Affairs, prepared statement of.................. 61
Horn, Hon. Stephen, a Representative in Congress from the
State of California:
Organization manual...................................... 31
Prepared statement of.................................... 10
Kovacs, William, vice president, Environment and Regulatory
Affairs, U.S. Chamber of Commerce, prepared statement of... 261
Mazurek, Janice, director, Center for Innovation and the
Environment, Progressive Policy Institute, prepared
statement of............................................... 74
Nishida, Jane T., secretary, Maryland Department of the
Environment, prepared statement of......................... 179
Norwood, Janet L., fellow, National Academy of Public
Administration, prepared statement of...................... 52
Ose, Hon. Doug, a Representative in Congress from the State
of California, prepared statements of..................2, 98, 202
Otter, Hon. C.L. ``Butch'', a Representative in Congress from
the State of Idaho:
Letter dated December 20, 2001........................... 162
Prepared statement of.................................... 144
Stephenson, John, Director, Natural Resources and
Environment, General Accounting Office, prepared statement
of......................................................... 127
Studders, Karen A., commissioner, Minnesota Pollution Control
Agency, prepared statement of.............................. 168
Sullivan, Hon. John, a Representative in Congress from the
State of Oklahoma, prepared statement of................... 317
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts, prepared statement of.............. 208
Tinsley, Nikki, Inspector General, U.S. Environmental
Protection Agency, prepared statement of................... 103
Warren, Wesley, senior fellow for environmental economics,
Natural Resources Defense Council, prepared statement of... 288
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 216
Whitman, Christine Todd, Administrator, Environmental
Protection Agency, prepared statement of................... 224
EPA ELEVATION: CREATING A NEW CABINET LEVEL DEPARTMENT
----------
FRIDAY, SEPTEMBER 21, 2001
House of Representatives,
Subcommittee on Energy Policy, Natural Resources
and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:45 a.m., in
room 2247, Rayburn House Office Building, Hon. Doug Ose
(chairman of the subcommittee) presiding.
Present: Representatives Ose, Otter, Cannon, Duncan,
Tierney, and Kucinich.
Staff present: Dan Skopec, staff director; Barbara Kahlow,
deputy staff director; Jonathan Tolman, professional staff
member; Regina McAllister, clerk; Elizabeth Mundinger and
Alexandra Teitz, minority counsels; and Earley Green, minority
assistant clerk.
Mr. Ose. The hearing will come to order. Committee, good
morning everyone. In the interest of time, I want to submit my
statement for the record.
[The prepared statement of Hon. Doug Ose follows:]
[GRAPHIC] [TIFF OMITTED] 82666.001
[GRAPHIC] [TIFF OMITTED] 82666.002
Mr. Ose. Mr. Tierney.
Mr. Tierney. I also would like to submit a statement for
the record and ask that it be kept open for submission of
relevant materials.
Mr. Ose. Without objection.
Mr. Tierney. And then basically give my apologies to the
three witnesses. We are dealing with the airline bill and I
have to get over to another meeting. So I will certainly read
your testimony and I appreciate the work that you have done and
appreciate your understanding.
Mr. Ose. I would like to welcome our colleagues this
morning, Mr. Boehlert of New York, Mr. Horn of California and
Mr. Ehlers of Michigan.
We are going to hear first from Mr. Boehlert, who is the
chairman of the Science Committee and has been a veteran of
efforts to elevate EPA to Cabinet level, going back more than a
decade.
Then we will hear from Mr. Horn, who is chairman of the
Subcommittee on Government Efficiency, Financial Management and
Intergovernmental Relations, and quite literally one of the
busiest chairmen in Congress. He is a one-man academy of
experts on government structure and management.
And finally, we are going to hear from Mr. Ehlers, who is
not only chairman of the Subcommittee on Environment,
Technology and Standards, but is also a physicist by training.
He definitely improves the collective scientific wisdom of
Congress by his very presence.
Mr. Boehlert.
STATEMENT OF HON. SHERWOOD L. BOEHLERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Boehlert. Thank you, Mr. Chairman. I want to thank
Chairman Burton and the Democrat leadership of the committee
for helping make possible today's hearing. Based on its name
alone, this subcommittee must be one of the busiest in
Congress. Energy Policy, Natural Resources and Regulatory
Affairs cover just about every hot issue under the sun,
actually including the sun.
But I am not here to talk about solar power, although I'd
be delighted to, and I recognize your time constraints in the
press of other priorities both international and domestic, so
I'll try to be brief. That can be a challenge, given the
importance of the subject and my long and often tortuous
legislative experience with the effort dating back to 1988. But
you know the issues and the importance of EPA's mission, so
I'll get right to the point.
And actually there are three points:
No. 1: Congress should elevate EPA to the Cabinet level
status it deserves and needs. Now is the time and this is the
place to do what is long overdue. What does the United States
have in common with Monaco, Libya, Panama, Peru and five other
countries? These are the holdouts that, for whatever reason,
have chosen not to make their primary environmental agencies
Cabinet level departments. Every other major country has done
so. Today, more than ever before, we need to make EPA an
official member of the President's Cabinet.
This has nothing to do with the stature or capability of
Governor Whitman, who I think is doing a tremendous job.
Instead, it is a question of timing and national and global
conditions. Environmental issues are becoming more complex,
more international and more global. This statement is even
truer today than it was when I made it before the Senate
Governmental Affairs Committee just 2 months ago; climate
change, widespread toxic pollution, both chemical and
biological, and invasive species are obvious examples. The
House Science Committee, which I am privileged to chair, is
looking precisely at such issues. There are also growing
complexities involving natural resource damages and
environmental challenges among other Federal agencies, such as
the Department of Energy and the Department of Defense.
No. 2: Don't be tempted by other environmental side issues
or controversies. Based on my previous experience with Cabinet
level legislation, I cannot overemphasize the importance of
staying focused. Let us not forget the lessons of 1993 and 1994
when elevation bills addressed wide-ranging and controversial
issues and became magnets for further controversy. The effort
ultimately failed. Republicans, Democrats, conservatives, and
liberals alike recognized what all of us should recognize
today: Only a straightforward, clean elevation bill can make it
through the process. That has been the message I have been
receiving from the administration--and they re-emphasized that
again just yesterday--and many in Congress and I believe they
are right.
Many issues confront EPA. Some of these are organizational
in nature. Some are left over from previous administrations and
some are brand new. Some can be addressed administratively.
Many should be addressed through congressional oversight. Mr.
Horn, the distinguished chairman of the Subcommittee on
Government Efficiency, Financial Management and
Intergovernmental Relations, and a good friend of mine and a
resource to this Congress, knows this. His expertise in history
and government and his appreciation for environmental
protection have served the Congress and the Nation well over
the years. I look forward to working with him on an EPA
elevation bill as well as his particular legislation. The
secret to success, I believe, will be for Congress to keep this
bill clean and simple, while at the same time, encouraging
oversight hearings on other legitimate issues and action on
separate and discrete bills by appropriate committees.
And the third and final point, Mr. Chairman: H.R. 2438 and
H.R. 64 should continue to move on parallel but separate
tracks. Mr. Chairman, I strongly support Mr. Ehlers' bill, H.R.
64, which would strengthen science at EPA by, among other
things, establishing a Deputy Administrator for Science and
Technology. The bill is pending before our Science Committee
and I anticipate full committee approval very soon, perhaps as
early as the week after next. While it is not the subject of
this hearing, I appreciate the opportunity to comment on its
importance and conventional connection to H.R. 2438. Based on
committee jurisdictions and recognizing the preferences of the
administration, I would urge your subcommittee not to try to
attach H.R. 64 or provisions from H.R. 64 to H.R. 2438.
In addition, we continue to have discussions with the
administration about H.R. 64 and how its provisions might be
implemented by and integrated within a new Department of
Environmental Protection. For the time being, it continues to
make sense to move these legislative initiatives on separate
tracks.
Thank you, Mr. Chairman. I hope markup of a clean,
bipartisan bill, once again let me stress, supported by the
administration as a clean bill will follow very soon. I am
confident that with your help and the bipartisan support of the
committee and full committee, as well as the continued support
of the administration, we can make this important effort a
success.
Mr. Ose. Thank you, Mr. Boehlert.
[The prepared statement of Hon. Sherwood L. Boehlert
follows:]
[GRAPHIC] [TIFF OMITTED] 82666.003
[GRAPHIC] [TIFF OMITTED] 82666.004
Mr. Ose. Mr. Horn.
STATEMENT OF HON. STEPHEN HORN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Horn. Thank you, Mr. Chairman. It is good to see you in
charge of this subcommittee, and I leave to you and the
subcommittee what pieces you think make common sense. I am
delighted to be here with my two colleagues with whom I have
great esteem, and that is Mr. Boehlert and Mr. Ehlers.
And let me just say a couple of points. It is clear,
although we have been committed to environmental protection
since 1970 with the establishment of the Agency, the priority
of that commitment has been the subject of reinterpretation
with each new administration because EPA has not had a
permanent seat at the Cabinet. With the increasing need to
protect the environment across borders and the increasingly
complicated nature of environmental protection, we must elevate
the existing Agency to a department. In having this discussion,
we should take it as an opportunity to provide effective
oversight and review many areas of our environmental
operations.
Our legislation does this. Two areas of continuing concern:
First, despite the implementation of the Government Performance
and Results Act, which the General Accounting Office has had
great concerns about, the current Agency and we also have
problems with them on information management, collection,
coordination, computer security, and they remain real
challenges for the EPA--and I hope that during the course of
debating whether to elevate the existing EPA to a Cabinet level
department, we will focus significant attention to information
management processes and resources within the current Agency to
ensure that our environmental information is reliable and of
the highest quality.
Second, we must ensure that the best practice management
aids and sound environmental decisions will be the result. Most
notably, that includes using risk assessment to understand the
benefits to be achieved by proposed regulations and the costs
that will necessarily be borne to meet those objectives--risk
assignment and assessment as it was originally proposed by our
colleagues, Representatives Thurman and Mica back in 1993-1994,
and it is included in my legislation. It has been
controversial. However, as a critical management tool, it would
enable our environmental regulators to begin the process of
setting achievable program objectives and methodologies to
measure our progress toward achieving environmental goals.
The inability of the existing EPA to establish risk-based
program priorities is a deficiency that has been recently noted
by the General Accounting Office and the EPA's Inspector
General, and requiring risk assessment as part of the
regulatory process will do much to resolve this.
I end these comments here and I submit a long statement for
the record, Mr. Chairman, if I might. And thank you for holding
this hearing this morning. I will be happy to have any
questions.
Mr. Ose. Thank you, Mr. Chairman.
[The prepared statement of Hon. Stephen Horn follows:]
[GRAPHIC] [TIFF OMITTED] 82666.005
[GRAPHIC] [TIFF OMITTED] 82666.006
[GRAPHIC] [TIFF OMITTED] 82666.007
[GRAPHIC] [TIFF OMITTED] 82666.008
[GRAPHIC] [TIFF OMITTED] 82666.009
[GRAPHIC] [TIFF OMITTED] 82666.010
[GRAPHIC] [TIFF OMITTED] 82666.011
[GRAPHIC] [TIFF OMITTED] 82666.012
[GRAPHIC] [TIFF OMITTED] 82666.013
[GRAPHIC] [TIFF OMITTED] 82666.014
[GRAPHIC] [TIFF OMITTED] 82666.015
[GRAPHIC] [TIFF OMITTED] 82666.016
[GRAPHIC] [TIFF OMITTED] 82666.017
[GRAPHIC] [TIFF OMITTED] 82666.018
[GRAPHIC] [TIFF OMITTED] 82666.019
Mr. Ose. Mr. Ehlers.
STATEMENT OF HON. VERNON J. EHLERS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Ehlers. Thank you, Mr. Chairman. It is good to see you
in that seat. I would like to speak about H.R. 64, a bill that
I sponsored. You of course heard testimony about addressing the
global issues from the previous two witnesses. I am speaking
about just one specific aspect, and that is how we can improve
the science in the EPA.
I appreciate this opportunity to discuss the different ways
to elevate the EPA to Cabinet level and also want to present my
thoughts about reforms the EPA should undertake immediately
regarding use of science and technology in the regulatory
process. As co-sponsor of Chairman Boehlert's legislation, I
certainly echo his comments today. I fully support its passage
and hope the Government Reform Committee will quickly move it
to the House floor.
Environmental policy is one of those rare issues that
literally affects every single American every single day of
their lives. Clean air, clean water, clean land certainly are
no less important than agriculture, education, transportation
and interior issues dealt with by some of the other 14 Cabinet
level departments. The EPA should be recognized for the
important role they play in Americans' daily lives.
In my view, one of the key issues surrounding this debate
is how should Congress address some fundamental regulatory
process changes that the EPA needs to make. Certainly if this
Agency is to become a Cabinet level department, it needs to be
held to the highest standards of process. I believe that the
most fundamental reform the EPA needs to make to the regulatory
process is to strengthen the role that science plays in the
Agency's decisionmaking process.
As many members are aware, I introduced H.R. 64, which the
Science Committee is reviewing, because I believe the Agency
needs a new Deputy Administrator for Science and Technology to
oversee the vast and complex scientific mission of the Agency.
It is essential that science infuse the entire regulatory
process, from initial concept to final regulation, if we are to
have good science-based regulations.
Let me address the intent of my legislation before I
discuss its relevance to the other bills discussed here.
Numerous times I have heard my colleagues and the scientific
community and the business community and the public say, what
we really want is the use of sound science at the EPA. Everyone
agrees that regulatory decisions made by the EPA should be
based on the best possible scientific research. However, many
institutions, citizens and groups believe that decisionmaking
at the EPA can be improved by a greater integration of science
into the process.
Many different studies have documented the need for
strengthening science at the EPA. The most recent of these was
issued by the National Research Council in September of last
year. The two primary recommendations of that report were to
establish a new Deputy Administrator for Science and Technology
at the EPA and to set a fixed term for the existing Assistant
Administrator for the Office of Research and Development. These
changes would elevate the role of science in the decisionmaking
process at the Agency as well as provide more stability to
existing research efforts being conducted inside of the Agency.
Both of these charges are captured in H.R. 64, which I have
introduced to ensure that science informs and infuses the
regulatory work of the EPA. This legislation also builds on the
review of our National Science Policy that I prepared in 1998
for the House Science Committee and which was adopted by the
House of Representatives in the 105th Congress. The
recommendation in that report that received the most favorable
response was that science be used differently in the regulatory
and judicial processes. It should not be used in an adversarial
fashion in the courts and should not be used as a mere adjunct
to the regulatory system. Rather, science should be used at the
beginning, middle, and end of an agency's decisionmaking
process.
Science can help us make informed decisions about the
relative risks of a threat, whether or not we need to address
it, and about how to allocate resources to address the threat.
The Environment, Technology, and Standards Subcommittee, which
I chair, has unanimously passed this bill out and it is
expected to come before the full committee in the first week of
October or soon thereafter, and I certainly hope that it will
soon reach the floor of the House.
I might also mention this legislation that I have
introduced, H.R. 64, is supported by the Science Advisory Board
of the EPA. And I have received numerous letters from
professional scientific associations and from business groups
and environmental groups supporting the passage of this bill.
I currently support the dual track strategy of moving the
elevation bill through the Government Reform Committee and also
H.R. 64 through the House Science Committee. I believe both
approaches should be taken. I hope that my bill, H.R. 64, will
pass into law, and that would, I think, make a strong case for
including it in the departmental--I'm sorry, the departmental
portfolio that the Agency will have once it becomes a Cabinet
level department. But I also am aware of the legislative
history, so I was trying to address too many issues, and an
elevation bill likely dooms the effort. So I believe this is
the best way to move H.R. 64 through the process quickly. And
once we get it through the House, we can assess how we can
combine the two bills.
I also want to say that because we have a new
administration at the other end of Pennsylvania Avenue, we have
a golden opportunity to improve the operation of the EPA, and
we are looking forward to working with you and your colleagues
as well as Chairman Boehlert and Chairman Horn and the
administration and other interested parties to bring about
these important changes by passing the bills that are before
us. I thank you for your time and consideration.
[The prepared statement of Hon. Vernon J. Ehlers follows:]
[GRAPHIC] [TIFF OMITTED] 82666.020
[GRAPHIC] [TIFF OMITTED] 82666.021
Mr. Otter [presiding]. Thank you very much, Congressman
Ehlers. The Chair has been made aware that Members of this
panel have to--are maybe even 3 minutes late for another
meeting. Could you give the Chair some sort of an expression of
the time that you can spend here with us?
Mr. Boehlert. I'm fine. I have been on this for 10 years.
Mr. Otter. Mr. Horn.
Mr. Horn. I have to go to the Transportation Aviation also,
but I can stay for 10 minutes certainly.
Mr. Otter. Then I would like to start off.
Mr. Horn, your bill also embraces several of the ideas on
science that Mr. Ehlers' bill does. How do you feel about Mr.
Ehlers' bill?
Mr. Horn. I think it is very worthwhile. If we can't get
more things in there, that is certainly very useful and I would
support that.
Mr. Otter. Mr. Boehlert.
Mr. Boehlert. I'm a co-sponsor, and we're moving that
through my Science Committee. I think it is very important that
we have science-based decisionmaking. That's why I have
strongly endorsed, and Dr. Ehlers I think agrees with this,
moving forward on a parallel track. The history indicates--we
have been through this in 1993 and 1994. Everybody talks about
elevating EPA to Cabinet level status. Incidentally, I might
add that the President and the administration are fully
supportive of my bill and fully supportive of the concept of a
clean bill. That does not address the separate legislation
introduced by Dr. Horn and Dr. Ehlers. I am enthusiastic about
working with them in partnership; but the fact of the matter
is, if we want to do what we all have talked about for a long,
long time, we have to avoid attaching anything else that will
open up this bill to delay any unnecessary lengthy debate. I
fully support and am enthusiastic of my support of Dr. Ehlers'
bill and we are moving that on a fast track through the Science
Committee. But let me stress, it should go on a parallel track.
EPA elevation must be a clean bill, or we will repeat what we
have been through before. And I don't want to do that and
neither does the President.
Mr. Otter. Mr. Boehlert, I have several questions about the
elevation bill. It has been my experience, at least in
business, that you can have only a certain critical mass, I
should say, of people reporting to you in order to do an
effective job, or a couple of things happen. No. 1, you
diminish the opportunities for those that are truly important
to the committee or to the people that are reporting to you.
Some of the criticism that I have at least heard on the
elevation of any agency--not just EPA, any additional agency--
is that to the extent that you increase the numbers in the
Cabinet room, No. 1, you decrease the administration's focus on
other critical functions of government. And I understand it is
arguable, you know, where you elevate EPA according to military
defense and these kinds of things. But what would you offer as
an argument against those who would say, the more people you
put in that room, the less effective each of them are going to
be?
Mr. Boehlert. First of all, I would point out that you
don't add anyone to that room. The Administrator of EPA is
already designated by the President of the United States as a
member of the Cabinet. She has a seat at the table. She has a
seat at the table only at the sufferance of this President. The
next President may view it differently.
Second, this Administrator is given Cabinet level status by
the President. But in reality, she is in a subordinate position
when she represents the U.S.' interests abroad. For example,
she travels to international conferences dealing with very
sensitive subjects on the environment. She is not at a
ministerial level or a Cabinet level officially, so she is
dealing from a subordinate position as she is in dealing with
the other members of the President's Cabinet. So the President
already has the Administrator reporting directly to him. The
President is enthusiastic in support of this elevation. I think
the time is long overdue that we do this.
Mr. Otter. And what about diminishing the focus that the
President would have on other areas of government?
Mr. Boehlert. It won't diminish the focus because he
already has a focus.
Mr. Otter. I understand that. But given the nature of an
invited position as opposed to an endowed position, I think
that would change the focus considerably, don't you?
Mr. Boehlert. The focus is what the President chooses it to
be, and he has indicated his intention to give the proper
attention and focus to the environment. The American people
expect us to protect the air we breathe and water we drink.
They expect us to give premier importance to the top official
in this country dealing with the environment. They expect the
President to have the top environmental official at his side as
he makes important decisions. And the President has indicated
that is exactly what he wants. So he is on the same wavelength
as the American people.
We are not adding any expense or a name change on the door.
We are not even adding a new chair. They are kind of expensive.
You have had the privilege of sitting down there, so have I,
down at the Cabinet room. The same chair will be there. The
same occupant will be there, only with a different title,
demonstrating in very tangible form that this President, this
administration, this government, gives the highest priority to
environmental concerns.
Mr. Otter. Thank you. Mr. Cannon.
Mr. Cannon. In deference to your time, I have one quick
question. How do you deal with the Council on Environmental
Quality in your bill? Do you change that?
Mr. Boehlert. Don't change that at all.
Mr. Otter. Thank you very much. We appreciate your
attention, and we appreciate your extending your time here so
we could ask these questions.
Mr. Horn. Mr. Chairman, if I might put in the record the
Organization Manual as it pertains now to the Environmental
Protection Agency.
Mr. Otter. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 82666.022
[GRAPHIC] [TIFF OMITTED] 82666.023
[GRAPHIC] [TIFF OMITTED] 82666.024
[GRAPHIC] [TIFF OMITTED] 82666.025
[GRAPHIC] [TIFF OMITTED] 82666.026
Mr. Otter. Our second panel this morning is in this order:
Dr. J. Clarence Davies, senior fellow, Resources for the
Future; Dr. Janet L. Norwood, fellow, from the National Academy
of Public Administration; Dr. Robert W. Hahn, the director of
the AEI-Brookings Joint Center for Regulatory Affairs; and
Janice Mazurek, director, Center for Innovation and Environment
Progressive Policy Institute.
If you would please take your positions at the table. If I
could ask you to please stand and raise your right hands. We do
swear our witnesses here. Sometimes we swear at them.
[Witnesses sworn.]
Mr. Otter. Being the vice chairman, I don't always get an
opportunity to explain all the rules and regulations, but I
have listened to Chairman Ose give them enough times that I do
know that we are limited to 5 minutes, and we want to give
everybody an opportunity to discuss particular topics and their
feelings about this legislation, but also want to give an
opportunity to those of us who are sitting on the committee to
ask sufficient questions in order to brief ourselves on the
issue and on the legislation. So if you pay a little attention
to the light in front of you, green is you are on ``go.'' And
when it hits white, you have about 45 seconds. And when it hits
red, if you're not in the process of summing--we would like to
sum up.
Dr. Davies.
STATEMENTS OF J. CLARENCE DAVIES, SENIOR FELLOW, RESOURCES FOR
THE FUTURE; JANET L. NORWOOD, FELLOW, NATIONAL ACADEMY OF
PUBLIC ADMINISTRATION; ROBERT W. HAHN, DIRECTOR, AEI-BROOKINGS
JOINT CENTER FOR REGULATORY AFFAIRS; AND JANICE MAZUREK,
DIRECTOR, CENTER FOR INNOVATION AND THE ENVIRONMENT,
PROGRESSIVE POLICY INSTITUTE
Dr. Davies. Thank you, Mr. Chairman. I appreciate the
opportunity to be here. Let me start by saying that my views
are simply my personal views. Resources----
Mr. Otter. Could I get you to pull that mic just a little
closer to you.
Dr. Davies. Is that better?
Mr. Otter. That is much better. And I would warn everybody
who is not involved in the conversation that the mics are hot
all the time, so you want to be careful what you say. Dr.
Davies.
Dr. Davies. Resources for the Future is a research
organization so it does not take positions on policy matters,
so my views are only my personal views. I want to make that
clear in the beginning. But I have had a longstanding
involvement in the subject of this hearing. I more than 30
years ago coauthored the reorganization plan that created EPA
in the first place. And at the time of the events that Mr. Horn
referred to of the previous consideration of Cabinet
legislation, I was the Assistant Administrator for Policy in
EPA and therefore had a fairly active role in those
considerations.
I share the view expressed by the members of the previous
panel that elevation of EPA to Cabinet level is long overdue.
As I guess Mr. Boehlert mentioned, we are one of the few
countries in the world that does not have a Cabinet level
environment department. Environment is a major fundamental and
permanent responsibility of the Federal Government and its
importance should be recognized in organizational terms.
Furthermore, it is important internationally to send a signal
that we consider environment to be a Cabinet level
responsibility. I guess to be more precise, it is important
that we erase the negative signal that we give repeatedly in
the international arena by having environment occupy a lower
level within the Federal bureaucracy.
Let me in this context just mention that in terms of span
of control of the President the concern that you raised, Mr.
Chairman, a few minutes ago, I really do not think that is a
serious concern. As mentioned by Mr. Horn or Mr. Boehlert, the
Administrator of EPA is already at the table in the Cabinet.
The Cabinet is not a decisionmaking body and therefore, the
number there is not really all that relevant. And in terms of
reporting to the President, I can put on my political science
hat and say that there are Cabinet level positions which
Presidents have ignored and other positions which are not
Cabinet level, like National Security Advisor, for example,
which the President pays a good deal of attention to. It is not
unusual, for example, for Republican Presidents, let's say,
never to see their Secretary of Labor in anything other than a
formal Cabinet meeting. So span of control does not have the
same kind of relevance, I think, that it does in the private
sector.
I am very sympathetic to Mr. Boehlert's urging that we do a
simple, clean elevation without any additional provisions.
Nevertheless, I think there are a number of things that at
least this committee should consider adding onto the
legislation; and perhaps my hope would be at least that a
number of them would be noncontroversial and, therefore, would
not subject the elevation to the same kind of jeopardy that
concerns Mr. Boehlert. I don't know. It is a serious concern.
No doubt about that.
I go into details in my testimony on the various items that
I think could be usefully considered in the context of a
Cabinet bill: A mission statement for the Agency. EPA has never
had a mission statement, and I think it would help in a number
of contexts if it did have a mission statement.
Integration across media. There is no policy area more
fragmented than pollution control. Jan Mazurek and I have
spelled out some of the details of that in a book which I have
given to staff. And you are not going to remedy that in the
context of Cabinet legislation, but I think it could be
considered that some kind of commission, some kind of
extraordinary body, could be convened to review the statutory
authorities administered by the Agency and ways which that
could be made into a more integrated whole.
Better science has been touched upon. And I subscribe to
the notion of a Deputy or an Under Secretary for Science in the
Agency. I think that would be useful. I think there may be
other steps that could be done to improve science within the
Agency. Better data, I suspect Janet Norwood is going to deal
with. But Bureau of Environmental Statistics is badly needed,
in my view, and the Office of Information which has been set up
by Mrs. Whitman is not an adequate substitute for that; in
fact, may detract from that in some way. So I think we still
need a Bureau of Environmental Statistics, and it is a
neglected function but an important one.
Program evaluation and economic analysis, which I think Mr.
Horn's bill deals with, I'm not sure I fully agree with the way
it deals with it, but it does address it and addresses it in
important ways.
Statutory basis for innovation. The Agency is running a
number of pilot projects--XCEL, CSI, so on--without any
statutory authority whatsoever. And I think there is general
agreement across party lines and so on that kind of
experimentation is useful, constructive, and needed, but it is
very handicapped by not having any statutory basis----
Mr. Otter. Could I get you to wrap up?
Dr. Davies. And finally, the international role, which I
think would be helpful to mention. I don't think the
legislation should become some kind of Christmas tree, but the
things I have mentioned are important and worth doing. They are
appropriate for Cabinet legislation and I think they should be
relatively noncontroversial if framed in the right way.
Mr. Otter. Thank you.
[The prepared statement of Dr. Davies follows:]
[GRAPHIC] [TIFF OMITTED] 82666.027
[GRAPHIC] [TIFF OMITTED] 82666.028
[GRAPHIC] [TIFF OMITTED] 82666.029
[GRAPHIC] [TIFF OMITTED] 82666.030
[GRAPHIC] [TIFF OMITTED] 82666.031
[GRAPHIC] [TIFF OMITTED] 82666.032
[GRAPHIC] [TIFF OMITTED] 82666.033
[GRAPHIC] [TIFF OMITTED] 82666.034
[GRAPHIC] [TIFF OMITTED] 82666.035
[GRAPHIC] [TIFF OMITTED] 82666.036
[GRAPHIC] [TIFF OMITTED] 82666.037
Mr. Otter. Dr. Norwood.
Dr. Norwood. Thank you very much. I appreciate the
opportunity to be here and to tell you a little bit about some
of the work that the National Academy of Public Administration
has been doing. My background is mainly in statistical policy,
having been Commissioner of Labor Statistics for 13\1/2\ years,
and I am now doing a great deal of work on promoting scientific
development in a variety of areas, including the environment. I
was a member of all three NAPA panels, which studies were
completed in 1995, 1997 and then 2000. These three reports
reviewed the entire operations, the internal structure and
implementation strategies as well as the manner in which
intergovernmental relations in EPA were handled.
A number of recommendations were made, and I'd be happy to
discuss those with the committee at a later time. I was given
three questions by the subcommittee staff, and I would like to
focus my attention on those.
The first was: Can EPA improve its effectiveness? I believe
that we found in the three academy reports that it would be
wise for EPA to focus on a few of the most important basic
problems, using its energy, resources and innovation to address
the problems of smog, water pollution and greenhouse gases.
As Terry said, we believe very strongly that the Congress
and EPA should work together to develop legislation to permit
EPA to move across environmental media. The stovepipe kind of
organization today and the way in which money and resources
need to be spent is really counterproductive. We believe that
EPA should have an effective system to collect objective and
scientific data, and I will get back to that.
Does EPA need structural changes? The most important is in
the statistical area. On the question of EPA elevation to
status as a Cabinet agency, we really didn't consider that. But
I can tell you my personal view, which is that elevation to
Cabinet status would certainly increase EPA's importance in the
public arena, and especially internationally, and provide its
Administrator with a better chance of getting attention.
But I think it's important to point out that Cabinet status
will not solve all of EPA's problems. We have to remember that
there are a significant group of Cabinet agencies--State
Department, Transportation, Energy, Agriculture, Labor and
there are more--who are also involved in environmental issues.
And the lines of jurisdiction among these agencies, and between
them and the EPA, need clarification when Congress considers
legislation on the status of EPA in our government.
I believe that EPA needs to be a scientific agency, and
that to be successful, any scientific agency must have an
adequate system of information that is objective. I would hope
that any bill which creates Cabinet status for EPA would take
account of the need for an independent Bureau of Statistics
within EPA, which is headed by a Presidentially appointed
professional with a fixed term of office. We have those models
in other parts of the government and they have worked
extremely.
There is no way that EPA will be able to go ahead with
innovative programs, with changing the way it relates to States
and local areas and to business unless it has a system of
scientific information that is objective and goes across all of
its media, that can be used to evaluate the effectiveness of
the work that is being done as further devolution occurs.
I'd be glad to answer any questions.
Mr. Otter. Thank you very much.
[The prepared statement of Ms. Norwood follows:]
[GRAPHIC] [TIFF OMITTED] 82666.038
[GRAPHIC] [TIFF OMITTED] 82666.039
[GRAPHIC] [TIFF OMITTED] 82666.040
[GRAPHIC] [TIFF OMITTED] 82666.041
[GRAPHIC] [TIFF OMITTED] 82666.042
[GRAPHIC] [TIFF OMITTED] 82666.043
[GRAPHIC] [TIFF OMITTED] 82666.044
Mr. Otter. Dr. Hahn.
Dr. Hahn. Thank you very much, Mr. Chairman. I didn't get
three questions to answer and I was instructed to think outside
the box a little, so I will try to do this. First I want to say
that the formal remarks I would like to submit for the record
were coauthored with my colleague, Randall Lutter, at the AEI-
Brookings Joint Center.
Mr. Otter. Without objection.
Dr. Hahn. Since we are short on time, let me make two key
points, and then focus on my recommendations. The first point
is that EPA should not be elevated to Cabinet status without
very serious thought. Once an agency is granted Cabinet status,
it is very unlikely in our lifetime to lose that status.
The second point is that we ought to address several
defects in both Federal environmental policy and the policy
process. EPA, as you probably know, accounts for the lion's
share of environmental, health, and safety regulations. We can
estimate that in several ways, but it is on the order of three-
quarters.
One of the fundamental problems of any mission-oriented
agency--and this was pointed out by Justice Stephen Breyer in a
very good book called Breaking the Vicious Circle--is that it
tends to have tunnel vision. Bureaucrats tend to focus on their
particular problem. We as economists think that environmental
policy is a very important problem, but we ought to think very
carefully about weighing the benefits and costs of any
individual policy before we move forward. After all, at the end
of the day, EPA is primarily in the business of making
regulations.
Some studies at the Joint Center suggest that EPA does not
always carefully examine the benefits and costs of its
policies. Using the government's numbers, quantifiable benefits
fall short of quantifiable costs in almost half of the
regulations we examined over about a 15-year period.
Let me turn briefly to our recommendations. We ought to
think carefully about requiring the Administrator to weigh
benefits and costs or at least, not precluding the
Administrator or the Cabinet Secretary from considering
benefits and costs. Many of our current laws preclude that, as
Dr. Davies and several others have noted.
We think that Congress should require that regulatory
impact analyses, and other supporting documents are available
on the Internet prior to the regulatory review process. That's
It's a matter of promoting transparency.
We believe each of these regulatory impact analyses should
include a good executive summary, which should be standardized
and include things that you normally would think would be
included in an executive summary, but frequently aren't in
these analyses; things like information on cost, benefits and
whether the best estimate of quantifiable benefits exceeds
costs.
We also believe that Congress should set up a separate
Office of Policy Analysis, much in the spirit of some of the
same suggestions that Dr. Davies and Dr. Norwood made about
science, that is responsible for doing all policy analyses. You
might be surprised to know that most of the policy analyses are
now overseen by divisions or departments within EPA, like Air
and Water, that have an interest in promoting regulation in
that area. We think that a separate office would help minimize
conflict of interest.
We also think that Congress should require EPA to adhere to
standard principles of economic analysis such as the OMB
economic guidelines, and we have strong evidence that they
don't.
One or two more and I'll stop. We think the Congress should
shift control of scientific peer review of key EPA studies away
from the Agency, again because of the problem of tunnel vision,
to a different governmental body such as the NAS or perhaps an
independent group within the Agency, if, in fact, it can be
independent.
And, finally, as part of the decision to elevate EPA to
Cabinet status, we think you should consider seriously funding
the independent regulatory oversight body within GAO that you
authorized under the Truth in Regulating Act.
In conclusion, we believe the decision to elevate EPA to
Cabinet status is a very important one. We think it should be
accompanied by careful consideration of ways in which you can
improve both environmental policy and make the process of
environmental policy more transparent.
Mr. Otter. Thank you, Dr. Hahn.
[The prepared statement of Dr. Hahn follows:]
[GRAPHIC] [TIFF OMITTED] 82666.045
[GRAPHIC] [TIFF OMITTED] 82666.046
[GRAPHIC] [TIFF OMITTED] 82666.047
[GRAPHIC] [TIFF OMITTED] 82666.048
[GRAPHIC] [TIFF OMITTED] 82666.049
[GRAPHIC] [TIFF OMITTED] 82666.050
[GRAPHIC] [TIFF OMITTED] 82666.051
[GRAPHIC] [TIFF OMITTED] 82666.052
[GRAPHIC] [TIFF OMITTED] 82666.053
[GRAPHIC] [TIFF OMITTED] 82666.054
[GRAPHIC] [TIFF OMITTED] 82666.055
Mr. Otter. Dr. Mazurek.
Ms. Mazurek. I'm the only non-doctor on the panel. Thank
you for giving me an opportunity to speak on a subject that has
been close to my heart since I staffed the first NAPA panel on
EPA in 1994. My main message today is twofold. The Progressive
Policy Institute strongly supports the elevation of EPA to
Cabinet level status. But our view is that elevation alone is
insufficient to reorient the Agency toward what we think are
important new environmental challenges of the 21st century. And
some Members of Congress have already designed a blueprint to
do just that.
In November 1999, Representatives Dooley, Tauscher,
Boehlert and Greenwood introduced an early work in progress
version of what is referred to as the second generation
Environmental Improvement Act, H.R. 3448. We use the term
``second generation'' to distinguish this approach from the
landmark laws and regulations that were expanded by Congress in
the sixties and seventies.
Unlike first generation approaches, second generation
measures place a premium on measuring success by changes in
real environmental conditions, and they also stress improved
environmental accountability, more public participation and
systemwide change.
I would urge the committee to at least consider the
principles contained in 3448 as Cabinet elevation efforts move
forward. And let me tell you why. We think that EPA has done a
commendable job addressing some of the problems first
generation laws were designed to address: smoke from
smokestacks, effluent from wastewater treatment facilities.
But we are now faced with a new set of environmental
challenges that are very, very different from those first
recognized in the sixties and seventies. Whereas the first
generation of environmental problems came from highly visible,
easy to pinpoint sources, some of today's problems are largely
invisible, at least here on the ground, such as global warming.
Others come from small, diffused, hard-to-pinpoint sources that
are difficult to identify, track, and regulate: homes, cars,
dry cleaners, farm fields, and parking lots.
To meet these new and emerging challenges to human health
and the environment in a manner that's effective and efficient,
EPA must be provided with what we are referring to as a legal
space to design, implement, and evaluate innovative
environmental management practices. And the second generation
bill, at least in its discussion draft form, I think lays out
kind of a road map to do just that.
It does so in two ways. First, it's designed to develop
more timely, accurate, and more precise information on
environmental conditions and environmental performance by
industries and other regulated sources. As Terry and I found in
our book, monitoring networks and data methods are woefully
inadequate in this country, not only to tell us about current
environmental conditions, but future environmental challenges.
The Agency under the Clinton Administration made some important
strides in at least beginning to improve how it manages
information. And we believe that Representative Horn's bill
contains measures that would take those gains even further.
But the second generation bill would provide incentives to
industries and States not only to modernize how they report
information, but also how they monitor and measure
environmental performance. Once EPA has better information
systems in place to identify new threats, it needs the legal
means to test out new ways to address them while upholding the
strong environmental standards that were put into place by
first generation laws.
The second generation bill would provide regulators with
the ability to pursue a broad array of experiments without
having to perform Houdini-like contortions on existing rules,
as Project XL demonstrated under the previous administration.
So, greenhouse gases, intersection of land use, and water
quality are just a few examples of what a second generation
approach might address.
And to summarize, we think that a Cabinet elevation law
that considers second generation principles would let
government and business systematically find out what incentives
for better environmental performance actually work, before
enshrining them in difficult-to-change first generation laws.
Thanks.
[The prepared statement of Ms. Mazurek follows:]
[GRAPHIC] [TIFF OMITTED] 82666.056
[GRAPHIC] [TIFF OMITTED] 82666.057
[GRAPHIC] [TIFF OMITTED] 82666.058
[GRAPHIC] [TIFF OMITTED] 82666.059
[GRAPHIC] [TIFF OMITTED] 82666.060
Mr. Otter. Thank you very much. I appreciate once again all
of you being here, and your opinions on the legislation that we
have under consideration. I guess I have some general questions
for all four of you, but I also have some specific questions.
And let me just say from my perspective, so you'll know sort of
where my questions are coming from, in the West--and I'm from
Idaho--in the West there probably isn't a Federal agency that
is more hated or distrusted than the Environmental Protection
Agency. And I say that, having been the Lieutenant Governor of
Idaho for 16 years and watched as the agencies marched into
Idaho and took over massive areas of Idaho and usurped a lot of
State authority and State responsibilities. But anyway, the
feeling generally is that the EPA has declared martial law on
the environment in the United States. And subsequently, not
unlike most martial--and I happened to be in the Luzon region
of the Philippines when Ferdinand Marcos declared martial law
in the Philippines, and it was not a pretty sight--all manner
of individual and civil rights and Constitutional rights,
private property, were set aside. And they were set aside by
those folks that came in with the full power of government to
do what they wanted to do, without rhyme or reason, suspending
in many cases the due process and suspending in many cases many
civil liberties.
Most of the civil liberties that we happen to talk about in
terms of the EPA are search and seizure, of reports that we
hear from all the time from industries; assumptions of guilt,
rather than assumptions of innocence and then proving guilt.
And so I believe really that a lot of people in the West would
be very, very encouraged about elevating the position of EPA
Administrator to Cabinet level, so long as they had the same
responsibilities as, say, any of the other agencies there to
respect private property, to respect the protections under the
Bill of Rights and the Constitution.
So with that in mind, I guess I will start with Mr. Hahn.
Mr. Hahn, much of what you said really falls in line with under
an ombudsman. And an ombudsman, when we finally got him into
Idaho in the Silver Valley--and the interesting thing there as
I think you probably know the history, the EPA came into the
Silver Valley 17 years ago, saying they could clean it up in 3
years for $28 million. That was $280 million ago, and they are
14 years over their time budget. When we kept asking for
reports and some kind of responsibility for what was going on,
we met a brick wall. And we also met Agency privilege.
And as you know, many of the Agency privileges are pretty
extensive for the EPA. No other government agency that I know
of, including the FBI, has those kinds of privileges. Anyway,
we finally did get the attention and we got the ombudsman to
come in. And the ombudsman found a great deal of waste, a great
deal of misinformation, a total lack of peer review. And then
the EPA Administrator under the last administration de-funded
the ombudsman and fired him for the report.
So what kind of protection, if we go to the GAO or if we
establish peer review and establish an ombudsman with any kind
of strength, what kind of protection, other than a separate
agency, can you possibly offer somebody who would be a
``whistle blower'' on the EPA?
Dr. Hahn. I am not sure I am the best person to answer that
question. I am not a lawyer. I think the more general question
you raise about agency powers is a very, very important one. If
the Federal Government has a very prominent role, as it now
does in setting air standards and water standards, we at least
ought to put analytical checks on that power by not having the
same group that makes the regulations also do the analysis.
Mr. Otter. You're right. Our feeling is that King George
III never had it so good. He made the law, he decided who broke
the law, and decided what the punishment was.
Dr. Norwood, how about on independence of the oversight,
how do you feel about that?
Dr. Norwood. Well, I feel very strongly that there's no way
that EPA can continue to work in this whole field without
having better approaches to finding what is successful, what is
not, and accountability; accountability to the people of the
country, to the government, and accountability to the States
and localities. In the NAPA reports, we went into considerable
length about the way in which EPA should work with States,
localities, with business, and with all the stakeholders. Very
clearly, they need to do that. And we have made a number of
recommendations about that--the more they do that, they still
have even more of a responsibility to be accountable for
environmental improvement. And so they need to be able to have
the scientific information as well as the statistical
information to be able to judge whether something has been
successful or not and whether this devolution is working.
The only way, it seems to me, that can be done is by
restructuring completely the so-called information systems that
the Agency now has. I know that they have made some strides. I
would not say that they are very large strides. There is a need
for a place within EPA that is somewhat independent; that is,
having a person heading it with a fixed term of office.
I was Commissioner of Labor and Statistics for a very long
time. I had a fixed term of office. We did things and said
things and published things that the President didn't like,
sometimes the Secretary didn't like. We tried to work with
them, of course. But basically, we felt we had a scientific
responsibility to the public to use our expertise to explain
things as objectively as we could. And I think that EPA is
lacking that.
I do think that many of the innovations that they have
attempted--and we had something like 17 teams of experts,
researchers, examining each of those. I think that many of
those innovations probably were successful. But before
undertaking a program, one should determine in advance how you
are going to determine whether it was successful or
unsuccessful and what kind of information you're going to need
in order to do that.
And this needs to be a cooperative effort. There's no way
the national government can develop all the data that is
needed. A lot of the data comes from business. A lot of the
work has to be done by business. A lot has to be done by States
and localities. So it needs to be a really cooperative effort.
There are a lot of examples in the Federal Government of that
sort of effort, and I think it can be done here.
Mr. Otter. Dr. Davies.
Dr. Davies. I recognize, Mr. Chairman, that the kind of
picture of the Agency you are painting is widespread,
especially in the West. It sounds to me like the kinds of
problems you are delineating are problems for the courts, and
they are not going to be significantly remedied by most of the
things that we have suggested here on this panel or elsewhere.
Mr. Otter. I didn't understand. They are problems of the
courts?
Dr. Davies. When you talk about civil liberties and
property rights, the best data in the world isn't going to
remedy that if it's a problem. That's what we have courts in
this country for, and that's where the remedy lies for those
kinds of difficulties.
Having said that, I agree with both Dr. Hahn and Dr.
Norwood that an independent capacity to deal with policy
analysis, with economic data, with environmental data, with
science and peer review, that all of those things could
significantly improve the Agency's performance and
effectiveness. And so, you know, I think those are very
valuable suggestions, that I am very sympathetic to them.
Mr. Otter. I would only point out, getting back to the
point that Dr. Hahn made, that many of the rules and
regulations were promulgated by the Environmental Protection
Agency, and some of those are relative to evidence offered in
cases of whether or not a person was polluting, whether or not
there was a crime, a breaking of a law committed.
I have become familiar personally with some cases, but as a
representative of 650,000 people in a district that has 87,000
miles of streambank, 119 municipal water systems or more, at
least 119 sewer systems, 650,000 people that work on the
watershed, there isn't almost any activity, whether it's
recreating or professional working or private property
ownership, that they can do without in some way finding
themselves coming in conflict with a rule or regulation that
probably, in all good intentions, was promulgated for a
situation that may be east of the Mississippi and north of the
Mason-Dixon line.
Unfortunately, the application of that law is on 87,000
miles of streambank, you know, and so what happens is we've
lost confidence. We've lost confidence in an Agency which we
hoped was going to come and help us with some of our
environmental problems. And they haven't helped. In fact, they
have been adversarial and they've--as Jefferson said, harassed
our people and eaten out their substance. And that's the
problem that we're having.
Dr. Hahn.
Dr. Hahn. I have come in contact with many folks, as you
have, who have suggested there are lots of regulations like
that. And we have to recognize that Congress at some level
deserves a large part of the blame for that through the laws
that it passes that, to some extent, empower the Agency to do
these things. Now, the Agency may have a different view of how
to implement these laws than the initial legislators, but
Congress deserves the blame. So if we are going to clean up the
process at some point, we have to go back to the organic
statutes, and there I think Dr. Davies and Ms. Mazurek have
made some good suggestions, as others have.
You really have to make some fundamental decisions about
how you want to organize this Agency and what you view as its
function. Should it be going after the top health-based
environmental priorities, or should it be going after
everything, even if it presents, arguably, no risk from a
scientific point of view.
Mr. Otter. I can tell you, Dr. Hahn, that our problems
manifest themselves from each generation. As I indicated
earlier, in my 16 years as Lieutenant Governor, many other
agencies also marched into the State. OSHA was one of those.
OSHA told us that environmentally, health wise, we had to
remove all the asbestos from all our schools. We took books and
decided to go with 6 and 7-year-old textbooks where the covers
were falling off. We let classrooms, although safely, but
really not very comfortable to be in, degenerate because we
spent tens of millions of dollars removing asbestos. And once
we got it all removed and finally sighed relief, then they
found one more building that had asbestos in it. And they said,
listen, it's not necessary to remove it. All you got to do is
paint it over, you can seal it in. And we spent all that money.
Now we come on with the EPA in the Silver Valley of Idaho,
and they say in 3 years and for $28 million, we can clean this
place up. Here we are, 17 years later, 10 times that much
money, and they found out when they were transporting all that
dirt from the site of the high levels of lead to the dump site,
that they didn't water down the trucks. So now all the yards
are contaminated. All the tops of the buildings where the dust
settled are contaminated. What we did was we spread the
contamination. And these people were there to help.
We don't need any more help like that. We have gone from
9,000 miners to none. We shut down 32 lumber mills in Idaho,
most of them for environmental considerations, because they
said we don't want you cutting trees off the watershed. And
this was a rule that was made, I am sure, with good intentions.
But what happened, we shut down 32 lumber mills. What happened
was then 880,000 acres burnt up and all that silt and all that
watershed is being washed into the salmon recovery areas. So
now we've got a bigger problem.
The first thing before we elevate, before we change, before
we come in with a whole new matrix of what we're going to do, I
think we've got to get confidence back into the system that
says we really need this, we really need this help. And I think
people are willing to be convinced of that, but I don't think
elevating it to the President's Cabinet level is going to do
that.
Chairman Ose.
Mr. Ose [presiding]. Thank you, Mr. Vice Chairman. I
appreciate you standing in for me. I want to delve in a little
bit. I regret I missed the statements that you made, but I did
read your testimony and written statements. And it seems to me
that there's a consistent comment there that the simple
elevation to Cabinet level does not address the underlying
problem. We heard this morning from Mr. Boehlert, Mr. Horn, and
Mr. Ehlers about how do we move what's called a clean bill
forward.
I'd be curious how you would do each approach addressing
the systemic needs that we've identified. For instance, Dr.
Davies, in your testimony you had seven suggestions, and the
others of you had specific suggestions. How do we incorporate
those in this process? Are we well advised to go forward with
what's a clean bill as, say, Mr. Boehlert may have described
it, or do we need to incorporate these other changes?
Dr. Davies. Well, I am very sympathetic, as I said in my
testimony, I think when you were out of the room, to Mr.
Boehlert's concern about having a clean bill and the political
dangers of putting too many things into Cabinet elevation.
There is also the question of committee jurisdiction, which is
a mystery that I have long since ceased to try and understand.
But I think my hope would be that at least most of the subjects
that I suggested or that others on the panel have suggested or
that are in Mr. Horn's bill, could be fashioned in such a way
that would generate broad support and basically not be
controversial.
There clearly are controversial things which I think would
kill the bill. And there's also no question that the more you
put in there, the more vulnerable you are to attack from
somebody or, you know, some kind of concern. But I think as
illustrated by this panel and at least by my knowledge of where
different groups are coming from and where the two parties are
coming from, there is very broad support for most of the kinds
of things that I mentioned in my testimony and which, you know,
other members of this panel suggested.
Mr. Ose. Dr. Norwood, in particular with your background at
BLS and the like, it seems to me like the issue of metrics, how
do we measure progress is a fundamental issue here. How do we
go about focusing on that specifically?
Dr. Norwood. Well, I think that we have to recognize that
there are problems in the science. We don't really have answers
to everything. I think that's part of the difficulty that you
were talking about before. So we need to have a scientific
involvement in the development of the kind of information that
is needed as support for what EPA does. And I believe that can
be done within the Agency if there is a place to make it clear
when the head of that particular part of the Agency has certain
scientific qualifications. That's been done in other agencies
and it has worked quite well.
The other part is the measurement. You have to decide first
what you're going to measure and you need to do that before you
go out and tell people all the great things you're going to do.
You need to figure out if you're going to start something new,
whether or not you're going to measure it and how you're going
to measure it, and then you need to develop the data.
Most importantly, EPA has got to be an Agency, as we've
indicated in all three of the NAPA reports, which works closely
with all of the stakeholders--with the States, with the
localities and with business, and sometimes uses business
techniques. There are many of them that we've recommended be
used. But the basic legislation that created EPA and under
which it operates is somewhat stultifying, because it is very
difficult and almost impossible to move across media. When you
get to the organization of a regional office, for example,
which really has to deal with the localities, everything is
coordinated there and yet the stovepipes within EPA, which are
partly the result of the legislation passed by Congress, makes
that extremely difficult.
Mr. Ose. Is the vehicle that allows--is this legislation
the vehicle that allows us to try to fix some of those?
Dr. Norwood. You know, you are much more skilled at
legislation than I. My experience has been, however, that if
these things are not in some way indicated in the legislation,
then they don't happen. And that's what would worry me. I
pointed out, for example, the problem of all the interactions
of all of the agencies in the Federal Government, and the
problem of determining who is in charge of the environment in
the U.S. Government.
Mr. Ose. I can't remember which of your testimonies, but
they had the mediums, and then the geographical areas, and
everybody was in charge, so nobody was in charge.
Dr. Norwood. And then we have a lot of departments in the
U.S. Government who have legitimate areas that they are
interested in. But I think that there needs to be a lot of
sifting out of that. There need to be strong changes in the
management of EPA as well. That would not be a part of
legislation, although if there is to be a Bureau of
Environmental Statistics, it has to be part of the legislation;
otherwise it's not going to happen.
Mr. Ose. Let me ask all of the panelists, one of the
suggestions, particularly Mr. Ehlers' bill, was to appoint a
Deputy Assistant for Science and Technology, I think is what he
referred to. Would that address the need of providing some
bridge between the scientific side and the regulatory side?
Again, I don't remember which one of your testimonies said it,
but one of the points was that the folks who are at EPA largely
are regulators and not scientists.
Dr. Norwood. Dr. Hahn is the one who discussed that. I just
wanted to make one comment, and that is that I have been doing
a great deal of work lately at the National Academy of Sciences
as well, and I think there is a need for outside people, but
there does have to be a scientific group within EPA as well, in
my opinion. Now I defer to someone who knows much more about
this than I.
Dr. Hahn. In answer to your question about whether you
should send this bill up now, clean, or with other things,
that's obviously your decision. I don't see a great urgency to
elevating EPA to Cabinet status. I could think of advantages
and disadvantages, given that I think the four of us at this
table who come out of an academic background think there are
many things broken in the area of Federal environmental policy
that fundamentally need fixing, as they say.
Mr. Ose. Of a structural nature or otherwise?
Dr. Hahn. I don't know what structure is, but as Dr.
Norwood pointed out and Dr. Davies pointed out, you've got
many, many statutes governing this Agency. You've got a real
problem now in terms of the way people view the authority of
EPA.
Congressman Otter made a point about his district with
respect to asbestos removal. I can tell you that's not an
isolated example from my experience. As I pointed out earlier--
and Justice Breyer pointed out in his book EPA suffers from
``tunnel vision.'' It only looks at the environment. It doesn't
worry about those 800 workers who were displaced and sometimes
it doesn't even think about whether there is a better way to
achieve the same or better environmental outcome at lower
costs.
We need to rectify that by, one, you need to think about
what powers you want to give to the Agency and how you want to
give the Agency those powers, in one statute or several
statutes. And then, what kind of information it uses to make
decisions. I think Dr. Norwood pointed out that there are real
problems with the nature of the information base that's
developed now. The Agency has an intrinsic bias. We have
different suggestions for how to address that bias.
Mr. Ose. I don't want to exclude our fourth panelist here.
Ms. Mazurek. Well, with respect to the point on achieving
the same environmental outcome at lower costs, which was
alluded to, I think in Congressman Otter's point initially, the
1994 NAPA report and study after study after study during the
1990's, including some of the statements that were made by the
prior administration, was that if EPA can find a cleaner,
cheaper, smarter way, it should be given the authority to do
so. And it tried to do that in number of experiments, including
the common sense initiative, Project XL, place-based ecosystem
management, and all of those initiatives faltered,
paradoxically perhaps, because EPA didn't have the authority to
give flexibilities to companies, States and localities who
really could deliver superior environmental performance.
That's why my predecessor, Debra Knopman, working with a
bipartisan group in Congress, put together the second
generation discussion draft, because it would enable those
kinds of measures; and also recognizing that the cornerstone,
the backbone, to innovation is information that tells us
whether or not these results are actually superior to what
would have been achieved in the absence of the experimental
programs.
And again, a number of these initiatives during the
nineties faltered because, A, as Dr. Norwood pointed out, we
didn't put the program evaluation measures in place before
those programs were actually launched; and B, there was a lack
of will and ability and resources, just financial resources on
the part of the Agency, to actually verify that these programs
were delivering superior environmental results.
Mr. Ose. I need to give my vice chairman some time. I have
some questions that I am going to go through here in the second
round, and I'm going to ask each of you to provide input on
them. But, Mr. Otter for 10 minutes.
Mr. Otter. Thank you, Mr. Chairman. I am not going to take
all that time, but I do just have a couple of questions. I have
heard the lack of resources part of the problems as you have
just said, Ms. Mazurek. And I wonder if it's the lack of
resources, or do we need to redirect resources within the
Agency, and maybe we need a third party, as has been suggested
by other members of the panel, because I don't know if it was a
scientific or a statistically proven report or not, but one of
the reports that we received in Idaho was that 12 cents out of
every dollar being spent in the EPA was actually being spent on
something other than cleaning up the environment; that for the
bounce for their buck that the taxpayers thought they should be
getting, if 88 cents is being spent on administration or has
been the case in court, then rather than directing new
resources, maybe this restructuring that my chairman mentioned,
Dr. Hahn, has to do with focusing the EPA, as Dr. Norwood
suggested, on the greenhouse gases, on the nonsource pollution.
And I apologize, I wrote them down, They are in my notes now.
But those focuses then invite the locales in. They invite the
State agencies.
Quite frankly, I have to tell you that we have a DEQ in
Idaho, Department of Environmental Quality, and I think every
one of those people in that Agency care a hell of a lot more
about the environment in Idaho than any EPA Administrator that
comes whipping through from some other State or from some other
locale. Quite frankly, I really believe that. Or any group of
administrators back here that manifest their desires in rules
and regulations that they ship out for us to implement. I think
my Governor probably cares more about the environment in the
State of Idaho than, quite frankly, the President of the United
States. But we have taken them out of the equation.
Dr. Norwood. I think it's important to recognize that there
have been some initiatives at EPA to put them back. And the
latest Academy report called ``Environment.gov'' does review a
whole series of them. The important thing is that there are
problems in the legislation which require certain enforcement
activities. There are difficulties, as I've said, across media.
So Congress bears some of the responsibility for this, I think.
I think that what we're seeing in government generally is a
devolution to State and local areas, but there has to be
accountability. And so we need to have both, really. And I
think we can.
I have had some experience at the very local level, in a
small town where we have a home on a big lake, and we've been
very active, my husband and I, trying to keep that water clean.
I can understand the problems that the town, a very small town,
about 800 people, has with the regulation both at the State and
at the national level. But EPA has made a number of attempts to
change that environment. It needs to do more. And we have made
a number of recommendations.
Mr. Otter. Just one more, perhaps a statement, but I would
invite anybody to respond to this. One of the things that I
really see lacking in our national environmental policy is a
lack of accountability by government agencies themselves. You
know, we hear stories all the time about developers that either
were fined $250,000 or they go to jail because they didn't
follow certain environmental regulations, Army Corps of
Engineers, wetlands laws or those kinds of things; polluters
that dumped pollution into rivers, you know. And the companies
have to now go back years later and make amends for those.
Yet, when I was in the full committee the other day, I
asked the Army Corps of Engineers and I asked the EPA and said,
``We caught you dumping 200,000 gallons a day of slop into the
Potomac River.'' We caught the Army Corps of Engineers--the EPA
caught them--and I said, ``Who went to jail?'' Well, we come to
find out that government agencies are exempt. The very teeth
that we needed into the law to make the private property owner
and the industry and the States obey the law, we absence
ourselves from ``accountability,'' I think was your word, Dr.
Norwood.
And so before I would go to any kind of a restructuring,
certainly I want the general of the Army Corps of Engineers to
go to jail, just like I want the CEO of some corporation to go
to jail, or the Governor, if they violate some environmental
law. Then I think we truly do have accountability.
Dr. Hahn, I invite comment on that.
Dr. Hahn. There's a problem there. And I'm happy with equal
treatment of the Government and the private sector. I like that
idea. The problem is: if you own any establishment that is
producing anything, you are probably violating some
environmental law. It may be a very gray area. I have been a
consultant to several companies in which sometimes they simply
can't figure out whether they are in complianced.
So I think it's a real good idea to think about limiting
the powers of EPA and having the agency focus on the most
important issues. You mentioned some that some of the other
panelists raised and recognize that this isn't 1970. We are in
a new century now, and the States have changed dramatically in
their capability for addressing environmental problems in a
creative and intelligent way. And a lot of that should be
recognized in any sort of statutory changes you make.
Mr. Otter. Would you agree though, Dr. Hahn, that any law
that we make offering penalty or persecution or whatever for
violators should also be applied to the government agencies?
Dr. Hahn. I think so.
Mr. Ose. Is pollution any worse, no matter whose hand it
comes from?
Dr. Hahn. That's correct.
Dr. Davies. You have to deal with the congressional
language on sovereign immunity.
Dr. Norwood. But there is a more important issue, and that
is that if Congress passes legislation requiring certain kinds
of enforcement, then the problem may be the legislation. In
EPA's case, there are some problems with its legislation, and
so it cannot do some of the things that you and I and other
people would like it to do. So in a way, Congress also has to
be held accountable, if you excuse my saying that.
Mr. Otter. Send Mr. Boehlert to jail.
Mr. Ose. No, we won't. Dr. Davies.
Dr. Davies. There are fundamental problems with the
statutes that EPA administers. And I think some of them are
spelled out in the book that Jan Mazurek and I wrote. Janet
Norwood's point about the stovepipe structure and the
fragmentation of the programs, that is the most fundamental
problem in my view. I have given to committee staff something
that I wrote sort out of desperation, because everybody said
you couldn't pull these statutory authorities together. And out
of desperation, I tried to do it. Whether I succeeded or not is
another question, but you can take a look and see. In any case,
I don't think you can deal with Cabinet legislation. I mean,
trying to integrate the statutes that the Agency administers
raises every single question of environmental policy that has
ever been raised. And it is a tremendously complicated task and
it's not something that could be undertaken in this context,
frankly. It's too bad, but I don't think it can.
I think you can take an initial step, as I suggested, by
setting up some kind of commission or select joint committee or
some body to start that process rolling, because it is badly
needed, but you couldn't do it within the legislation.
If I can just make one other quick point in response to Mr.
Otter's comments, without denying anything you said, it is hard
to find Federal programs that are more decentralized to the
States than the programs that EPA administers. The two key
functions are permitting and enforcement. Something on the
order of 80 to 90 percent of the permitting is done by State
agencies, and something on the order of 90 to 95 percent of the
enforcement is done by State agencies. So it is tremendously
centralized now and I think that has just to be kept in mind.
Mr. Otter. Could I have a followup on that, Mr. Chairman?
To Mr. Davies, can the EPA override any of those enforcement or
permit agreements?
Dr. Davies. Yes.
Mr. Otter. Can they override every one of them?
Dr. Davies. Well, no. There are some where it can and some
where it can't; but typically it can, yes. But it is not a
frequent occurrence.
Mr. Otter. As long as you're doing it our way, then you're
safe?
Dr. Davies. Yeah.
Mr. Ose. I want to go back to some specific questions I
have for all of you. There's not going to be any problem here.
You have all the time you want.
Dr. Davies, I followed your discussion about how EPA was
originally crafted. It was a reorganization rather than the
manner in which Cabinet departments are typically created. So I
am probably going to followup with some questions to you about
that.
I think Dr. Norwood has reemphasized that also about the
structural nature of what created EPA that leads to many of our
challenges today. I don't know whether or not Mr. Boehlert's
bill or Mr. Horn's bill or Mr. Ehlers' bill becomes the vehicle
we use. I am just not at that point yet. But I do want to get a
clear understanding of that if we move forward with this
legislation, what aspects of science need to be strengthened at
the Agency? For instance, do we need to specifically address
peer review issues of decisions? Do we need more basic
research? I think, Dr. Norwood, you talked about targeted
research. Do we need more of that? Does anybody have any
feedback on that?
Dr. Norwood. Well, I believe that the legislation that
creates EPA as a Cabinet agency probably has to say that it
will have certain officials in it, particularly if they are
Presidential appointments; that usually is in law. And I think
that an Office of Scientific Research and a Bureau of
Environmental Statistics ought to be a part of that.
Mr. Ose. So you would like have the Cabinet Secretary, and
then underneath you would have what effectively are deputy
secretaries, but there would be the Office of Research, office
of X, office of Y, office of Z kind of thing?
Dr. Norwood. I'm not sure exactly what the structure would
be, but in the statistics field, which I'm much more familiar
with, you should have--and in several cases, we do have in
several agencies, a Presidentially appointed head of the bureau
or whatever you want to call it, of statistics. And you have a
fixed term of office for that individual, which means that he
or she reports directly to the Secretary, doesn't have to go
through a lot of other people and has the independence that
comes with having a fixed term of office. For the data system,
I think that's terribly important.
Mr. Ose. Dr. Hahn.
Dr. Hahn. I basically agree with Dr. Norwood that's a
really important first step. But until you include the policy
analysis in a way that it's independent from the development of
regulations, you're not going to get the kind of unbiased
information and accountability you need.
That's why I argued in my testimony that we ought to have
only one Office of Policy Analysis developing policy, as
opposed to having it analyzed by parts of the Agency that are
actually making the regulations.
Dr. Davies. Just on a couple of points. I mean, science in
EPA is a very complicated topic. And it's not that they don't
do science. Probably something in the order of 20 to 30 percent
of the personnel in EPA are scientists of some kind. And a fair
number of those people are doing science.
Peer review to me--and here, I guess, Dr. Hahn, I disagree
a little bit; I don't think that's a major problem. The Science
Advisory Board of EPA is a pretty sophisticated, elaborate
operation. It is a much better outside science review operation
than most other agencies have, which is not to say it couldn't
be improved. And they have recently run into some problems in
terms of conflict-of-interest questions, and that is certainly
an area in which improvement is warranted. But to me, in the
hierarchy of problems, peer review of EPA science is not,
frankly, high on the list.
As Dr. Norwood said, part of the problem is just that a lot
of the science isn't there. You need to develop the basic
science. But part of the problem is also making the EPA science
program more rational. As I indicated in my written testimony,
the problem here is that the Office of Research and
Development, which in theory is the research arm of the Agency,
really only does about half the research, and nobody knows for
sure what the percentage is. But a significant part of the
research is done under the auspices of the individual program
offices, Air, Water, Hazardous Waste and so forth. Those
research efforts of the program offices are not coordinated
with the research done in EPA labs and by the Office of
Research and Development. So you've got a fundamental internal
problem of harnessing the resources that are there now to
better serve the needs.
Mr. Ose. You're suggesting that there is some redundancy
perhaps?
Dr. Davies. I don't know whether it's redundancy. Yeah,
there probably is some, but redundancy is less of a problem
than the inability to focus on what the most important problems
are.
Mr. Ose. I think your words were ``blinders'' and ``tunnel
vision.''
Dr. Davies. No way of mobilizing the resources that are
there to focus on the things that are important.
Ms. Mazurek. That's not a problem only with EPA. I mean to
illustrate, California EPA had this recent problem with
something that we know as MTBE. And what happened there was
that the air office did the risk assessment when they
considered it as an additive in fuel, but the air office had no
way of talking to the water office and so the risk assessment
was never actually undertaken to determine what would happen if
this leaked from gasoline storage tanks into the groundwater.
And now we have a big cleanup mess on our hands out in
California as a result of this. But again, this gets back to
the media-specific fragmented nature of the statutes, more than
a question of redundancy.
Dr. Hahn. Can I offer a personal anecdote as one who was on
the White House drafting team for the Clean Air Act Amendments
of 1990? I think there is a big problem in getting independent
science amd tjere os a big problem of getting independent
science heard. When we were developing the Clean Air Act, there
was a section of the Clean Air Act that dealt with air toxics
legislation. Now, when you say the words ``air toxics,''
everyone gets worried because no one wants to have arsenic in
their drinking water, for example. But all of us are going to
have some arsenic in our drinking water. We can't remove it
all.
The problem was that the scientists that I spoke with at
EPA in private conversation, when I called them from the
Council of Economic Advisors, told me that air toxics was a
very, very low risk problem. They were not allowed to say that
publicly. They had analyses suggesting that. They were not
allowed to say that publicly or their jobs would have been on
the line.
This was a question you raised earlier with respect to the
ombudsman. That information should have entered into the public
policy discussion before Congress developed the air toxics part
of the Clean Air Act, and it wasn't.
Mr. Ose. Dr. Norwood.
Dr. Norwood. I do think there is need for an independent
scientific group. I believe it should be inside EPA because
otherwise I don't think it would really get to the people that
it needs to. But there does need to be some kind of protection
of that group, of its scientific capabilities and its
objectivity.
I should say that part of the problem is that we talk about
risk assessment, we talk about all the economic analyses that
we should make, with the assumption that all the data are there
and that every model works perfectly. I spent some time
recently on the board of directors of a very large bank,
chairing the board's committee on risk assessment. And I'll
tell you that I learned a lot about the practical world and how
it is important to have a scientific approach, but that it
doesn't come quite so easily, so we have to work with that.
Mr. Ose. That leads directly to the next subject I want to
discuss, and that has to do with the stovepipe nature of the
manner in which the Agency currently works. You've all
recognized sometimes these issues cut across a number of
stovepipes. If we're looking at this in an ideal world, so to
speak, and we are considering legislation, what sort of a
functional structure should we have to deal with these cross-
cutting environmental issues? Clearly an independent scientific
body to review the information is useful.
I think, Dr. Hahn, you suggested separating scientific
review from regulatory action. Are there other such
suggestions?
Dr. Davies. You could organize the Agency totally along
functional lines and it would be a much better, more rational
organization than currently exists. The difficulty comes from
the disconnect between the way the Agency is organized in terms
of offices and the statutory responsibilities it has; if that
disconnect becomes too great, then nothing is going to happen
and then everything will just grind to a halt, because when you
say whose responsibility is it to carry out the Clean Air Act,
you won't be able to find where it is.
Mr. Ose. So your suggestion in that regard is go back to
the legislative underpinnings and fix them?
Dr. Davies. You have to at least make some progress fixing
the statutes before you can change the organization of the
Agency.
Mr. Ose. When we fix the statutes, what do we need to do? I
mean, that's the question. Do we need to define the structure
or need to be somewhat more generic and allow the folks who do
the executive branch to define the structure?
Dr. Davies. I mean, if I understand your question, what in
my mind the most basic thing you have to do is stop dealing
with environmental problems in a fragmented fashion, which is
what the statutes now do. I mean, most of the major problems we
have aren't just their problems. They aren't just water
problems. They aren't just hazardous waste dump problems. They
cut across a lot of different lines. The environment is one
single whole. On things like climate change, on things like
acid rain, and on things like stratospheric ozone depletion, on
nonpoint sources, almost any major current problem that you
name, the way the statutes are written is inadequate to deal
with the problem because it doesn't recognize the
interrelationships. And so that's what you have to do.
Mr. Ose. Just following up on that, if we had a question
dealing with water, under the Clean Water Act, we'd treat it a
certain way now. And arguably, we wouldn't know who was in
charge. How do we change that so that we know somebody is in
charge? We say that you are now the Under Secretary for Water?
Dr. Davies. You could do that. That is one option, just to
go all the way in that direction. That would not be my
preferred option.
Mr. Ose. What would be your preferred option?
Dr. Davies. You have 200 pages in response to that.
Mr. Ose. Briefly.
Dr. Davies. Briefly, you would have to both do the statutes
and the internal organization of EPA on a functional basis. So
you would have somebody in charge of standards setting. You
would have somebody in charge of enforcement. You would have
somebody in charge of planning, somebody in charge of policy
and economic analysis and so on. That's how you would organize
things. So you would pinpoint responsibility by the nature of
the function rather than by the segment or the physical
environment or the focus of where the pollution is and so on.
Mr. Ose. Do the rest of the panelists concur?
Dr. Norwood. I am not sure that I do completely, but I
don't know as much about this as Terry does. But what I would
like to say is that I have a strong belief, having been in
government a long time, that organizational structure can be
very important, but that it doesn't necessarily get you where
you want to go; because it's really the informal structure
within an agency that counts a great deal.
However, having said that, the problem with the EPA
legislation is that it prevents the Agency from thinking
broadly and from using its resources broadly. And yet, the
States don't think that separately. They don't have those
stovepipes. So when you get to a regional office, it's
ridiculous to organize a regional office along separate, media
lines because they have to deal with people who are dealing
across media lines in the States or localities. You don't have
the luxury of having individual offices there.
That is just one kind of thing. There is the question of
how they're doing work with some of the innovations that they
attempted. We dealt with that in this last report, the
restrictions on enforcement that were either in the law or
interpreted as being in the law, prevented them from doing many
of the things which we, at least at the Academy, felt they
should be doing to improve relations and improve the
environment.
Mr. Ose. Dr. Hahn. Ms. Mazurek.
Ms. Mazurek. If I may just sort of followup on Dr.
Norwood's point. Under the innovations programs that she
mentioned, they found that the enforcement provisions, or just
the statutes themselves, were the tripping-up point. So while
ultimately I share Terry's vision of where the Agency needs to
go, there are some interim measures, if one prefers the Lynn
Bloom muddling-through kind of approach, and that's what the
second generation proposal was designed to do, to provide legal
space to do cross-media approaches and to test out innovative
experiments, all the while simultaneously collecting
information that starts to tell you what these new emerging
priorities are, and then giving the Agency the authority to
experiment with different ways structurally of addressing them.
Dr. Hahn. Well, again thinking outside the box, right now
EPA really isn't responsible in any sort of meaningful way for
showing that it has enhanced the environment of either----
Mr. Ose. Accountable or responsible?
Dr. Hahn. Accountable--I'm sorry, good point--for showing
that its actions have actually improved the environment. One
way of writing the statute, and I haven't gone through the 200
page exercise that Terry has done, is to say OK fellows, we
think you should be thinking about reducing risks in a way that
saves lives or life years of Americans or citizens of the
world. And we are willing to give you access to private sector
resources on the order of X, because effectively when EPA
regulates, it takes money out of consumers' pockets. And we
want to see in 5 years' or 10 years' time that you have
actually made a significant difference based on an independent
policy review.
I don't think that is going to happen, but that is one way
of getting accountability. It is just some food for thought. I
think it could happen in a limited area as a pilot project.
Dr. Davies. If I could make one very quick point. I mean,
that's absolutely necessary. We are so far away from that, that
as Jan and I point out in the book, you can't tell whether
water quality in this country has gotten better or worse over
the last several decades because the data isn't good enough to
answer that question.
Mr. Ose. Mr. Otter. OK, I will continue then. Dr. Hahn, I
want to go back to your comments, and Dr. Davies--in fact,
everybody here. There is no base line is what you're saying.
And there is no attempt to keep the baseline or the updates
current for analytical purposes. Does that go back to the
underlying statute, the reorganization of it, or is that just
practice, managerial practice. I don't have a problem pointing
the finger at us if we're the root cause. Is it that we're not
watching? What do we need to do better, or what can we do
organizationally to establish the performance measures and then
make them work?
Dr. Davies. Three things, I think. Better data, better
analysis, and Congress asking the questions that will force the
Agency to take those things seriously.
Dr. Norwood is talking mostly about data on environmental
conditions, and I think that is essential. Dr. Hahn is talking
mostly about economic analysis and economic information, and
that's necessary, too. So we need to be a little careful when
we are talking about different kinds of information, but they
all go to the question of holding the Agency accountable and
having some kind of defensible, scientifically valid evidence,
independently arrived at to some degree, as to whether the job
is getting done.
Dr. Norwood. And it's important to recognize that a lot of
the information has got to be done cooperatively with States,
localities, and with the business community. There's no way
that the Federal Government can create all of that information.
It needs to get the information in large part from a lot of the
players in the system. And that means that it has to be certain
that there is a consistent system of definitions, the way in
which the data are collected, the quality of the data. And
there's none of that as of now in this system.
I should say that there are a number of models in the
Federal Government system of very good cooperative Federal,
State, and even local data cooperative systems. I think it can
be done.
Mr. Ose. Where are those models? For instance, where's the
template that we can at least go and examine?
Dr. Norwood. Well, certainly the place that I am most
familiar with, the Bureau of Labor Statistics, has had a
Federal-State cooperative program in developing information on
employment hours and earnings with the States since 1917. And
it means that they work together cooperatively. The Federal
Government pays some moneys to the States because the Federal
Government needs these data. The States supply money because
they want to do other things. The Federal Government helps to
keep these units in the States separate and independent from
politics.
I used to spend a lot of time talking to Governors about
the importance of that when I was there. I think there are
examples, different kinds of examples, in agriculture and in
education and other places. The important point is that you
can't put too big a burden on the respondents, on the people
who have the data. You can't have all different jurisdictions
asking them for the same information. And it has to be
consistent across all of these areas.
I've done a little book on the Federal statistical system
and its need for reorganization, which I have yet succeeded in
getting passed. And one of the chapters in it is on Federal-
State cooperation, which I think is tremendously important. The
Feds have a lot to learn in that, however, because it has to be
cooperative and it has to meet the needs of both those at lower
levels of government and business and the Federal Government.
It can't just be a one-way street.
Mr. Ose. Dr. Hahn, Ms. Mazurek, any feedback? I want to
thank the panelists for coming today. This has been
enlightening, to say the least. We are going to consider what
type of legislation to put forward. And obviously, we have--we
have the full range, if you will. The record from this hearing
will be left open for 2 weeks. We may have some followup
questions that we would like to send each of you in writing. We
would appreciate your cooperation in the response.
I want to thank you all for coming today. Like I said, this
has been enlightening and I do appreciate it. I may end up
calling you independently and just talking. So if you will
grant me that permission, I may very well followup. We stand
adjourned.
[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]
EPA CABINET ELEVATION--FEDERAL AND STATE AGENCY VIEWS
----------
THURSDAY, MARCH 21, 2002
House of Representatives,
Subcommittee on Energy Policy, Natural Resources
and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in
room 2154, Rayburn House Office Building, Hon. Doug Ose
(chairman of the subcommittee) presiding.
Present: Representatives Ose, Otter, LaTourette, Mink and
Kucinich.
Staff present: Dan Skopec, staff director; Barbara Kahlow,
deputy staff director; Jonathan Tolman, professional staff
member; Allison Freeman, clerk; Yier Shi, press secretary;
Elizabeth Mundinger and Alexandra Teitz, minority counsels; and
Jean Gosa, minority assistant clerk.
Mr. Ose. Good morning. Welcome to our hearing. I want to
recognize a quorum with the attendance of Mr. LaTourette.
The issue of elevating the Environmental Protection Agency
to cabinet level status has been around since the agency was
created in 1970. In the years since its inception, Congress has
passed numerous environmental statutes expanding the
jurisdiction of the EPA. As its jurisdiction has expanded, the
agency has grown as well. Today more than 18,000 employees work
at EPA and it has an annual budget of $7\1/2\ billion. It is
important to note that elevating EPA to a cabinet level
department will not in and of itself change the agency's size,
jurisdiction or effectiveness. The act of creating a new
cabinet level department is largely symbolic, but how and why
Congress elevates the EPA to a cabinet level department may
fundamentally affect not only how the EPA operates, but also
perceptions of the agency and the importance of environmental
issues.
Two bills have been referred to this subcommittee to
elevate EPA to a cabinet level department, H.R. 2438,
introduced by Representative Sherry Boehlert of New York, and
H.R. 2694, introduced by Representative Stephen Horn of
California. The two bills take significantly different
approaches. One offers no reforms to the agency, and the other
offers a multitude of reforms to the agency.
The principal question facing our subcommittee at this
hearing is what, if any, reform should Congress explore in the
process of elevating EPA to a cabinet level department.
When EPA was created in 1970, this country faced widespread
and daunting environmental challenges. We have made great
progress in the cleanup of large industrial pollution that
plagued our Nation 30 years ago. Today, however, we face new
environmental challenges, more complex and intractable
environmental concerns.
Last week the USGS, U.S. Geological Survey, released a
report on various chemicals in our rivers and streams,
chemicals like caffeine, which come not from some giant
caffeine manufacturing plant but from the coffee, tea and soda
that we drink every day. Are tiny amounts of chemicals such as
caffeine in our waterway a problem? How big of a problem is
this compared to our other environmental problems? What, if
any, resources should we devote to solving it?
These are the types of questions that will face EPA in the
coming decades. I would point out that it was the Geological
Survey and not EPA that produced this study, which in itself
raises questions about the role of EPA in dealing with the
environmental problems we face as a Nation.
At our first hearing in September, we heard from the
sponsors of the elevation bills. In addition, a number of
policymakers from the academic community testified about the
need for reform at EPA. Having heard from people who view the
agency from arm's length, today we want to hear from those
dealing with the agency on a more regular basis.
Our witnesses today bring with them a wealth of knowledge
about EPA and environmental policy. EPA's Inspector General and
the General Accounting Office have spent countless hours
reviewing, analyzing and auditing EPA's programs.
Hopefully, their expertise will shed some light on the
organizational and management challenges that EPA faces and
what sorts of changes need to occur at EPA to ensure that it
can achieve its mission.
After our first hearing, several Members of Congress wrote
me expressing concern about problems with EPA, citing numerous
GAO reports and urging me to address these issues. I have read
many of those reports. I am pleased that we could have the GAO
here today to focus on those subjects.
The other dramatic change that has occurred since EPA's
inception is the emergence of State agencies in protecting the
environment. Most of our major environmental laws are delegated
in some fashion to the States. In addition, States spend most
of the public money committed to environmental protection. For
instance, in fiscal year 2000, the States spent just over
$13\1/2\ billion on environmental and natural resource
protection, which is about double the entire budget of the EPA.
State agencies have emerged as not only the workhorses of
environmental protection but also innovative leaders. States
are on the cutting edge of solving the complex environmental
problems that we face today. Unfortunately, and we'll hear more
about this today, their innovative ideas often run into
obstacles, some of which originate at EPA.
Hopefully, today's hearing will shed some light on the
experience that State agencies have had in attempting to
overcome these obstacles and what lessons Congress should take
from those experiences as we consider elevating EPA.
[The prepared statement of Hon. Doug Ose follows:]
[GRAPHIC] [TIFF OMITTED] 82666.061
[GRAPHIC] [TIFF OMITTED] 82666.062
Mr. Ose. Joining us today on our first panel are the
Honorable Nikki Tinsley, who is the Inspector General for the
EPA. Good morning. Also John Stephenson, who is the Director of
Natural Resources and the Environment for the U.S. General
Accounting Office. Good morning.
Now, in this committee we typically swear in our witnesses,
and we're going to conform to that norm this morning. So if
you'd both rise.
And we have others who might provide counsel.
[Witnesses sworn.]
Mr. Ose. Let the record show that all the witnesses
answered in the affirmative. Now our typical approach here, as
you may well know, is that we recognize the witnesses for 5
minutes each to summarize their testimony, which we have
received and we will enter into the record and I have read, and
I even have a marked-up copy to ask questions from. So Ms.
Tinsley, you are first for 5 minutes.
STATEMENTS OF NIKKI TINSLEY, INSPECTOR GENERAL, U.S.
ENVIRONMENTAL PROTECTION AGENCY; AND JOHN STEPHENSON, DIRECTOR,
NATURAL RESOURCES AND ENVIRONMENT, GENERAL ACCOUNTING OFFICE
Ms. Tinsley. Well, good morning. I'm happy to be here to
testify and share information on EPA's top 10 management
challenges. Not surprisingly, these challenges overlap areas in
the President's management agenda. I'm going to highlight today
the challenges that are particularly important to EPA working
with States.
One challenge that EPA faces is linking its environmental
and human health mission with its corporate management
responsibilities. This challenge relates to three of the
President's management agenda items, linking budget and
performance, improved financial management, and competitive
outsourcing.
EPA can be viewed as a business whose primary product is
delivering improved environmental and human health protection
to the public, its investors, at a reasonable cost. For EPA to
show its investors that it is a company worthy of investing in,
it needs to address regional, State, and local priorities as it
develops environmental and human health goals and defines how
it will measure and report its accomplishments.
Further, the investors and Agency managers need to know the
cost of activities and resulting environmental and human health
protections in order to judge EPA's overall performance.
Without detailed information on what is working and at what
cost, Agency management cannot make informed decisions on how
to best deploy its resources to achieve results and the
investors cannot assess the success of their investment.
EPA is the leader in its progress in integrating its budget
and accounting structure with the Government Performance and
Results Act architecture and accounting for costs by goal and
objective. But EPA needs to improve its cost accounting system
and processes so Agency managers have useful, consistent,
timely, and reliable information on the cost of carrying out
programs.
The Agency has output data on activities, but it has little
data to measure environmental outcomes and results.
Another challenge that EPA faces relates to information
resources management, which is closely linked to e-government.
In many respects, sound IRM practices establish the foundation
for enabling e-government. Our audits of EPA programs often
have a component relating to environmental data information
systems, and we frequently find deficiencies within these
systems. Today most States have information systems based upon
State needs to support their environmental programs. EPA and
States often apply different definitions within their
information systems, and sometimes collect and input different
kinds of data. As a result, States and EPA report inconsistent
data, incomplete data, or obsolete data.
Recent audit work on EPA's systems identified problems in
EPA's enforcement, Superfund and water programs, and we
illustrated problems in inconsistent, incomplete, and obsolete
data. EPA is developing an information exchange network that
will support efforts for States and EPA to share information,
and EPA is working with the Environmental Council of States to
identify and develop data standards that will ensure
consistency in data reporting.
Unfortunately, right now the States get to decide whether
or not they want to adopt these standards. If the exchange
network is to work effectively, applying the data standards
cannot be voluntary.
EPA is also working to produce its first State of the
Environment Report to be issued in the fall of this year. The
purpose of this environmental report card is to inform the
public on EPA's progress in protecting the environment and
human health. This initiative will actually give the Agency its
next opportunity to honestly evaluate its data collection
processes, quality, and costs.
A third management challenge relates to the President's
management agenda item on human capital management. EPA
recognizes that one of its biggest challenges over the next
several years is the creation and implementation of a work
force planning strategy that addresses skill gaps in its
current work force, particularly competencies related to
leadership, information management, science, and technical
skills.
These skills gaps will intensify over the next 5 years as
about half of EPA's scientific and senior managers are eligible
to retire. These gaps can be addressed in part through employee
development. The need for training has been highlighted in a
number of our audit reports and in reviews by GAO and the
National Academy of Public Administration.
Our work shows that a lack of training for EPA employees
has hindered the Agency's ability to work effectively with
States, and that EPA needed to better train managers to oversee
assistance programs and to lead in a results and accountability
oriented culture.
Assistance agreements constitute approximately half of
EPA's budget and are the primary vehicles through which EPA
delivers environmental and human health protection. It is
important that EPA and the public receive what the Agency has
paid for. Our recent audit work of EPA's assistance agreements
disclosed that some recipients did not have adequate financial
and interim controls to ensure Federal funds were properly
managed. As a result, EPA has limited assurance that grant
funds are used in accordance with work plans and met negotiated
environmental targets. Last May we reported that the Agency did
not have a policy for competitively awarding discretionary
assistance funds totaling over $1.3 billion annually. EPA
depends heavily on States to fund and implement national
programs as well as most environmental data. Our work shows
problems with EPA and States working together to accomplish
environmental goals.
Mr. Ose. Ms. Tinsley, if I might, we have this entire
statement for the record.
Ms. Tinsley. OK.
Mr. Ose. If you could summarize here briefly. I know we've
got another page and a half on your testimony.
Ms. Tinsley. How about if I just jump to the part on
elevation?
Mr. Ose. That would be fine.
Ms. Tinsley. Which is--I was actually getting there. In
addition to having to work with State partners, EPA also relies
on a host of other Federal departments and agencies to
accomplish its mission. Right now EPA's budget represents only
20 percent of the Nation's environmental and natural resource
programs. Our office has been working with other Federal IGs to
develop an inventory of Federal environmental programs and we
have identified more than 300 environmentally related programs
managed by other Federal agencies. Because of that, the broad
breadth of these programs, we think it is important that EPA
sit at the table as a full partner with the other Federal
agencies, and so we support the elevation.
[The prepared statement of Ms. Tinsley follows:]
[GRAPHIC] [TIFF OMITTED] 82666.063
[GRAPHIC] [TIFF OMITTED] 82666.064
[GRAPHIC] [TIFF OMITTED] 82666.065
[GRAPHIC] [TIFF OMITTED] 82666.066
[GRAPHIC] [TIFF OMITTED] 82666.067
[GRAPHIC] [TIFF OMITTED] 82666.068
[GRAPHIC] [TIFF OMITTED] 82666.069
[GRAPHIC] [TIFF OMITTED] 82666.070
[GRAPHIC] [TIFF OMITTED] 82666.071
[GRAPHIC] [TIFF OMITTED] 82666.072
[GRAPHIC] [TIFF OMITTED] 82666.073
[GRAPHIC] [TIFF OMITTED] 82666.074
[GRAPHIC] [TIFF OMITTED] 82666.075
[GRAPHIC] [TIFF OMITTED] 82666.076
[GRAPHIC] [TIFF OMITTED] 82666.077
[GRAPHIC] [TIFF OMITTED] 82666.078
[GRAPHIC] [TIFF OMITTED] 82666.079
[GRAPHIC] [TIFF OMITTED] 82666.080
[GRAPHIC] [TIFF OMITTED] 82666.081
[GRAPHIC] [TIFF OMITTED] 82666.082
[GRAPHIC] [TIFF OMITTED] 82666.083
[GRAPHIC] [TIFF OMITTED] 82666.084
Mr. Ose. Thank you. We appreciate your summary.
Mr. Stephenson for 5 minutes, if you would, please.
Mr. Stephenson. Thank you. Good morning, Mr. Chairman. I am
pleased to be here today to discuss GAO's views on providing
EPA cabinet level status and to also point out some of the
major management challenges that the Agency must address
regardless of whether it becomes a cabinet level department or
not. Some of these views are going to sound very similar to
what you just heard from Ms. Tinsley, so I will be very brief.
While ultimately it is up to the Congress and the President
to decide, we believe that there is merit to elevating EPA to a
cabinet level department. Since EPA was created in 1970, its
responsibilities have grown enormously. Its mission, to protect
human health and the environment, has become increasingly
significant with the Nation's understanding of environmental
problems. Today, EPA's mission, size, and scope of
responsibilities place it on a par with many cabinet level
departments.
Its 18,000 employees and $7\1/2\ billion budget make it
larger or about the same size as the Departments of Labor, VA,
HUD, Energy, Education, State, Interior, and Commerce. Other
factors, although less quantifiable, include the highly
significant environmental problems to be addressed, the need
for environmental policy to be on equal footing with the
domestic policies of other cabinet departments, and the need
for international cooperation in formulating long-term
policies.
The United States is the only major industrialized Nation
in the world without cabinet level status for environmental
issues. Regardless of its status as a department or Agency,
there are longstanding fundamental management challenges that
EPA needs to address. I'll highlight three of these.
First, EPA must address the challenge of strategic human
capital management. Simply stated, that means having the right
people with the appropriate skills where they are needed. Last
October we reported that EPA had not done sufficient work force
planning and analysis to determine the number of staff and the
appropriate skill mix needed to carry out its mission. We also
noted that the number of enforcement staff available to oversee
State-implemented programs varied significantly among EPA's 10
regions, raising questions about whether enforcement may be
more rigorous in some States than others. EPA has initiated
actions to address our concerns, and we are doing followup work
to assess this and other management challenges at EPA.
Second, EPA needs better scientific environmental
information. Such information is essential if EPA is to
establish priorities for its programs that reflect risk to
human health and the environment, something we all believe it
should strive to do. This type of information is also needed to
identify and respond to emerging problems before significant
damage is done to the environment, damage that directly affects
human health and costs hundreds of billions of dollars a year
to correct.
While EPA annually collects vast amounts of data, much of
it is incomplete, inaccurate, and not well integrated. As a
result, it is not useful information to credibly assess risk
and establish corresponding risk reduction strategies.
Further, the lack of credible data has been a roadblock to
EPA's efforts to develop a comprehensive set of environmental
measures and indicators needed to evaluate the success of its
programs.
And finally, I would like to highlight an area I will call
regulatory innovation. Under the existing Federal approach,
EPA, under various environmental statutes, prescribes
regulations with which States, localities, and private
companies must comply. This approach, commonly referred to as
command control, has resulted in significant progress in some
areas, but is increasingly being criticized for being costly,
inflexible, and ineffective in addressing some of the Nation's
most pressing environmental problems.
In recent years, EPA has encouraged wider use of innovative
regulatory strategies that could streamline the environmental
requirements, but our work has shown that EPA has had limited
success in implementing such strategies.
This is due in large part to a strict interpretation of the
existing regulations. Legislative changes are needed to
overcome this barrier, changes that would give EPA broad
statutory authority or a ``safe legal harbor'' for allowing
States and others to pursue innovative approaches in carrying
out environmental statutes. Of course, EPA would also need to
develop the environmental indicators I alluded to earlier to
assure that the new approaches are doing a better job than the
command and control approaches they replace.
That concludes my statement. I would be happy to take any
questions.
[The prepared statement of Mr. Stephenson follows:]
[GRAPHIC] [TIFF OMITTED] 82666.085
[GRAPHIC] [TIFF OMITTED] 82666.086
[GRAPHIC] [TIFF OMITTED] 82666.087
[GRAPHIC] [TIFF OMITTED] 82666.088
[GRAPHIC] [TIFF OMITTED] 82666.089
[GRAPHIC] [TIFF OMITTED] 82666.090
[GRAPHIC] [TIFF OMITTED] 82666.091
[GRAPHIC] [TIFF OMITTED] 82666.092
[GRAPHIC] [TIFF OMITTED] 82666.093
[GRAPHIC] [TIFF OMITTED] 82666.094
[GRAPHIC] [TIFF OMITTED] 82666.095
[GRAPHIC] [TIFF OMITTED] 82666.096
[GRAPHIC] [TIFF OMITTED] 82666.097
[GRAPHIC] [TIFF OMITTED] 82666.098
[GRAPHIC] [TIFF OMITTED] 82666.099
Mr. Ose. Thank you, Mr. Stephenson. We have reviewed both
of your statements in writing, and we appreciate you attending
this morning.
We do have some questions that we need a little expansion
on. Ms. Tinsley, in your testimony, you talk about the
information resources management issue. You stated that the
result of the current system has been that States and EPA
report inconsistent data, incomplete data, or obsolete data, I
think those are your words, and your testimony suggests that
EPA is not currently capable of monitoring environmental
activities or comparing progress across the Nation. Is this
primarily a problem of data not existing or a problem of how
data is managed?
Ms. Tinsley. It's both. First of all, I guess if you think
about starting with the end in mind, the Agency and its
partners, both in the States and also its partners in industry,
has never decided what kind of information it needs to really
address whether or not the environment is safe and what kind of
indicators it actually wants to use. I think through this
environmental report card, the agency may get there by default.
And second, you have the data standards kind of issue that
I talked about. Unless people decide what level of quality they
want in the data and then gather data using methods that
provide that quality, they will have a problem as far as using
that data to make decisions about what to do next.
Mr. Ose. Are you suggesting that the programs themselves
lack prioritization within their objectives?
Ms. Tinsley. Yes, and it is difficult to assign your
priorities if you do not know what is working, if you do not
know where your problems are and what is working to address
them.
Mr. Ose. Do you know what the priorities of the EPA are?
Ms. Tinsley. Well, I know from a mission standpoint what
they are. They are to protect the human health and the
environment.
Mr. Ose. But for instance, they do not have a top 10?
Ms. Tinsley. They have their 10 organizational goals,
several of which include the media programs.
Mr. Ose. Well, I noticed--I do not know if it was your
testimony or Mr. Stephenson's testimony or a couple of the
other witnesses--that one of the standards by which EPA judges
its effectiveness is the number of regulations it issues,
rather than an empirical reduction in pollution in, say, the
Mississippi River.
Ms. Tinsley. If you were designing an environmental program
to be effective, you would have that kind of interim step. That
is an outcome. But then you would want to have some means of
measuring whether or not issuing your regulation really had an
effect on the environment down the road. Right now it is
difficult for EPA to measure the impact of a particular
regulation or a particular output. You almost have to start
when you design a program to determine what environmental
impact you want to create, and then sort of back in to how you
are going to do that, and then evaluate throughout the process
to make sure that your hypothesis, if you will, is working.
Mr. Ose. Do the States have this data? Are the States
suffering from the same problem that the EPA seems to be
suffering from, in terms of the available data to evaluate
their efforts?
Ms. Tinsley. Well, much of EPA's data comes from the
States, and States gather the data that they need to implement
their program. In many respects States are ahead of EPA in
gathering data, but what States decide they need differs on a
State-by-State basis. So we do not have a coordinated approach
to this, and to the Agency's credit they are trying to address
that problem, but has not fully addressed it at this time.
Mr. Ose. Well, how do we get from where we are to where we
want to be? And I'll tell you what my primary concern is. If we
look at individual permits, like, let's say Doug Ose
Manufacturing Plant gets a permit for the issuance of such-and-
such effluent and then John Smith gets one and Susie Jones and
whatever, you do not have any measurement of the aggregate
impact. You only have a measurement of the piecemeal impact. Is
that one of the problems here?
Ms. Tinsley. Yes, it is.
Mr. Ose. So, if you will, the methodology is flawed? Is
that what you are saying?
Ms. Tinsley. I do not think that as they've thought about
how they're going to do their work, they've stepped back and
done it from a big-picture standpoint. I mean, the issue that
you talked about, if you were talking perhaps about an NPDES
permit, you know, would relate to Total Maximum Daily Loads,
and how much pollution are you going to put in your stream, and
what are you going to use your stream for--are you going to use
it for swimming and fishing and drinking water--and then how
would you decide what's coming into the stream based on the
permits, as well as all the other uses, for example, farm and
agricultural runoff and that kind of thing. Then how and where
are you going to measure to make sure that you're taking care
of your stream, and then how are you going to regulate all the
people who are polluting the stream with some degree of
fairness? And many times this--well, always this is an issue
that goes beyond the boundaries of EPA. I mean, this is surely
a big issue to States, but then you also have the agricultural
community and a number of other players at the Federal level.
Mr. Ose. All right. My time is expired. I recognize the
gentleman from Idaho for 5 minutes.
Mr. Otter. Thank you, Mr. Chairman. My apologies to both
you and to the members of the panel for being tardy this
morning. I was at school. That's why I was tardy here instead
of being tardy there. But I did have an opening statement and,
Mr. Chairman, without objection, I'd like to submit that for
the record.
Mr. Ose. Hearing none, so ordered.
[The prepared statement of Hon. C.L. ``Butch'' Otter
follows:]
[GRAPHIC] [TIFF OMITTED] 82666.100
[GRAPHIC] [TIFF OMITTED] 82666.101
Mr. Otter. I do have a series of questions, but there was
something in response to the chairman's question Ms. Tinsley,
you indicated that you weren't quite sure that when a program
was set up, you weren't quite sure of all the data that was
going to go in. Yet in your written testimony that I read last
night, almost everything that comes out of the EPA is outbased-
intended. In other words, you already decide what the target is
and hopefully that is clear water and clean air, and then all
of the programs that you put in place hope to get us from
wherever it is now in the status of level of pollution to
usable, drinkable, swimmable, fishable. So I'm curious as to
the conflict I see between your written testimony and your
response to the chairman's question that you weren't quite sure
what the outcome was going to be, so you had to put certain
laws in place to see if the laws were effective in cleaning it
up. If most of our science or most of our intent here, our
mission, is out-based--in other words, we have a target here,
and the target is clean water and clean air and cleaning up
solid waste--does that create a conflict for you? It creates
one for me. It seems to beg the question here.
Ms. Tinsley. I'm not sure I'm clear on what your question
is.
Mr. Otter. I'm not sure I am either. I think the chairman's
question was relative to setting standards or putting certain
legal requirements and regulations in place, and your response
to that was that you weren't quite sure what the outcome was
going to be, and so in the transition, things had to be changed
or something.
Ms. Tinsley. No. What I'm saying is right now the Agency
doesn't have a means always of measuring what the outcome is
once it puts a regulation in place. If you think about, for
example, compliance assistance versus enforcement activities on
the Agency's part, right now the Agency doesn't have a system
where it would know whether it works better to spend its
limited resources helping industries learn how to comply with
regulations or does it work better to go out and do enforcement
activities and punish them? You know, how are you going to best
use your limited resources to get the result that you're after?
Mr. Otter. And what has been the result? What has worked
the best?
Ms. Tinsley. The Agency does not know at this time which
works best. See, you have to remember, I'm representing sort of
the outside view on what's happening at the Agency.
Mr. Otter. I understand.
Ms. Tinsley. Right now the agency doesn't have good systems
to show what works best, which approach works best. No doubt,
both approaches work, but when do you use one versus the other
one?
Mr. Otter. And which is the most productive? In 30 years,
having punished a lot of people in 30 years, having encouraged
a lot of people to do good things, we do not know which works
best? In 30 years?
Ms. Tinsley. Not that I'm aware of, no.
Mr. Stephenson. Could I add my 2 cents worth on this issue?
Part of the problem is that the performance measures that EPA
has set for itself are, as the chairman noted, largely
activity-based and not outcome-based. The Administrator right
now has an initiative to create some environmental indicators.
We do not know much about that yet. It's supposed to be a major
element of a report card that she's going to issue in the fall.
That may be a step in the right direction, but the data itself
on which the indicators are based originate in the States and
are problematic, too. First, there isn't enough environmental
monitoring to get good data. The data quality varies
significantly from State to State just like on the waters data
base for polluted waters, States report information very
differently from State to State. So if that sort of bad or
mixed data is rolled up at the EPA level, it still isn't going
to be very useful. So it's a long-term problem that needs to be
corrected, and right now EPA's data bases for air, water, and
waste cleanup are not integrated, and the data that originate
within the States may be flawed depending upon the State they
come from. It's a big problem and we've got to resolve it
before we can get to deciding priorities or where the taxpayer
dollars should be spent for environmental cleanup and pollution
control.
Mr. Otter. Well, Mr. Chairman, my time is up, and we really
didn't get on to the issue. I hope we'll----
Mr. Ose. We'll have another round. We'll have as many
rounds as you like.
Mr. Kucinich for 5 minutes.
Mr. Kucinich. I thank the gentleman. To the witnesses, the
two EPA elevation bills that have been introduced into the
House take vastly different approaches. The bill that was
introduced by Representative Boehlert is a clean bill that
elevates the Agency, and the bill introduced by Representative
Horn includes a number of additional provisions, some of which,
as you know, are controversial.
Do you have any particular view or recommendations that you
could provide at this time that would suggest whether we pass a
clean bill or a bill that also changes the organization and the
responsibilities of the EPA? Maybe Ms. Tinsley could start.
Ms. Tinsley. We haven't done any work to analyze the two
bills, but my personal perception is that it would be better to
have a clean bill, just because it provides wider latitude for
the agency to work with its partners to make decisions. If
there were going to be some requirements in the bill, I would
hope that they would be outcome-based and where you would let
the people who have to solve the problems work together to
solve those problems as opposed to trying to tell them how to
solve them.
Mr. Kucinich. Mr. Stephenson.
Mr. Stephenson. I'm going to stay politically correct and
in the middle on this issue, but you guys are the experts on
what works and what doesn't. The past attempts to elevate EPA
have failed----
Mr. Ose. I want to remind Mr. Stephenson, you're under oath
here.
Mr. Kucinich. I was going to ask the Chair to do that.
Thank you.
Mr. Stephenson. We were sworn in. The past history, as you
all know well, the 1993 bill, failed in large part because of a
minor amendment that the House couldn't agree to, so I think
history has shown that a clean bill probably would work better
and would be easier to pass, but I wouldn't want to let go of
some of the management issues that need to be addressed. We
think they need to be addressed regardless of the status of
EPA, whether it's a cabinet level department or an agency.
Mr. Kucinich. I thank the gentleman. I think you testified
that you disagreed with the recommendation of the EPA to cut
about 270 staff positions from Federal enforcement activities.
Is that right?
Mr. Stephenson. Our conclusion was that EPA didn't have the
data to support that decision. We called for a work force
analysis of the enforcement office.
Mr. Kucinich. Has that been completed, by the way?
Mr. Stephenson. I do not know. We have some ongoing work
looking at the 2003 budget to determine whether----
Mr. Kucinich. Are you going to continue to recommend that
they delay cuts to Federal enforcement until this analysis is
completed?
Mr. Stephenson. That would be our recommendation, yes.
Mr. Kucinich. Now this year the President again has
recommended cuts to Federal enforcement at the EPA and at other
agencies and, of course, this is after Enron and when we had
the SEC fail to uncover Enron's accounting practices. Now the
GAO recently found that part of the problem was that the SEC
did not have sufficient staff, and although the President has
recommended the increase in funding for the SEC, has
recommended deep cuts in Federal enforcement at the EPA and
numerous agencies or entities charged with ensuring compliance
with civil rights laws and laws that protect our workers. So
I'm concerned about this trend away from enforcement, that it
would only encourage further violations, and could end up at a
high price for safety, health, civil rights.
Mr. Stephenson. Well a lot of the implementation of
environmental law is being pushed on to the States, and so in
theory the States would need more resources. EPA would need
less, but that is oversimplified. EPA's role would change from
one of direct enforcement to assistance to the States in
implementing environmental law.
Mr. Kucinich. I'd like to quickly move to these questions
about measuring EPA performance, that focusing on performance
measures could lead to cuts in funding for complicated but
important areas like the environment or global warming, because
it's difficult to be able to assess what kind of success you're
having in those areas. So we could end up redirecting our
resources to either less dire problems or even less successful
programs, because we can measure the success of those programs.
I mean, how do you look at that in terms of, you know, trying
to measure performance standards of certain areas that are big
picture versus small picture?
Mr. Stephenson. There's not an easy solution. The results
of our environmental efforts are often long term. Sometimes it
takes 20 or 30 years to determine whether our programs for
cleaning up water actually result in fewer cancer deaths, for
example. So I do not have a simple solution.
Mr. Kucinich. OK. Thanks, Mr. Chairman.
Ms. Tinsley. Can I respond to that just a little bit? I
really think that----
Mr. Kucinich. Mr. Chairman?
Mr. Ose. I'd be happy to allow the response.
Ms. Tinsley. I think that it's important that EPA and its
partners sit down and develop a strategy to do just that,
because if we do not ever decide what is important to measure
and how we're going to measure it, then 30 years from now we
still won't know what works and what doesn't work.
Mr. Kucinich. I thank the Chair. Thank you.
Mr. Ose. I thank the gentleman. Mr. Stephenson, the GAO has
issued several reports in recent years, from 1995 onwards. It
just seems to be a constant delivery pattern, for which we're
appreciative, by the way.
Mr. Stephenson. That's good.
Mr. Ose. On the environmental information that's available
at EPA. Does the GAO feel that EPA is capable of effectively
monitoring the environment and comparing progress across the
Nation?
Mr. Stephenson. In a word, no. As I mentioned earlier, they
do not have the data--they do not have accurate data in the
form they need it and integrated well enough, not only within
EPA, but among all of the other data bases available in the
other agencies. Federal environmental data in general have not
been integrated in such a manner to be useful in setting
priorities for environmental programs.
Mr. Ose. Let me back up. I always like to use the phrase
``flying blind.'' Are you saying we're flying blind after 30
years?
Mr. Stephenson. The way EPA has grown, as you know, is
throuigh regulations in each of the media, in air, water, waste
cleanup, and so forth. There's never been an attempt to
integrate priorities across those programs. So in effect, EPA's
managers do not know how effective their programs are. I think
that's a fair conclusion.
Mr. Ose. Is it fair to say that might lead to a situation
where we focus on one particular pollutant in the environment,
which has a nominal impact, to the exclusion of another
pollutant, which could have a very significant impact?
Mr. Stephenson. That's a fair conclusion.
Mr. Ose. Does that possibility exist?
Mr. Stephenson. That possibility exists until managers have
better data to measure the effectiveness of their programs.
Mr. Ose. Right. Now, this issue of incomplete,
inconsistent, or obsolete data, which I believe you've both
testified to, could you give me, Mr. Stephenson, some specific
examples of incomplete, inconsistent, or obsolete data that EPA
currently collects?
Mr. Stephenson. The one I mentioned earlier is the most
often cited example. In the water area, States list their
waters as polluted or not, but they all adhere to very
different criteria and standards in doing that. This leads to
shared waters across State lines being listed as polluted in
one State and not polluted in the other, and beyond that the
standards that each State adheres to in creating their data
bases vary greatly. Some States have data integrity laws and
their data is very good, and others do not. So it's a very
mixed bag, and therefore it is very useless in managing an
overall program like clean water.
Mr. Ose. Let me make sure I understand the consequence of
that. If you've got one State that designated a water as
polluted because its standards specify X and the river flows
across the State line and another State decides that its
standard is Y and under Y the river is not polluted, you have
Americans subject to two very different----
Mr. Stephenson. Exactly.
Mr. Ose [continuing]. Due processes of law.
Mr. Stephenson. Exactly.
Mr. Ose. Ms. Tinsley, do you have any specific examples of
inconsistent, inaccurate, or obsolete data?
Ms. Tinsley. I do.
Mr. Ose. Can you share them with us?
Ms. Tinsley. I will add a little bit to John's water
example results in a fish advisory in one State and not in
another, and they share the same body of water.
Mr. Ose. What State?
Ms. Tinsley. I think it was Tennessee, and who was the
other? I'd have to look. We reported on it this year in one of
our audit reports where we actually had that situation, where
it was Tennessee on one side of the Mississippi River, and
who's--I do not remember who is----
Mr. Ose. Arkansas?
Ms. Tinsley. Yes. It was Arkansas, as a matter of fact, but
that's not the only example. Some of the other things that
we've found, we recently issued an audit report on the quality
of enforcement and compliance data stored in EPA's docket
system, and EPA uses that to estimate the amount of pollutants
reduced as a result of environmental actions, and the data was
incomplete and the Agency was making management decisions using
it.
Mr. Ose. I actually think your testimony is that the
information generated from the docket analysis is in large part
speculative without any empirical background. So they're just
making it up out of the--I do not--I mean, those are just my
words. They aren't yours, but, you know----
Ms. Tinsley. I do not think that they would say that they'd
make it up.
Mr. Ose. Do they have any empirical data behind these
docket conclusions?
Ms. Tinsley. I would assume that initially it was based on
some kind of scientific analysis. We did some other work on
enforcement where the Agency actually reports in its GPRA
report the results of compliance and enforcement actions, but
what we found was that the Agency never followed up to find out
if the companies actually did come into compliance. The
companies promised to come into compliance. EPA reports it as
an accomplishment, but as a matter of policy, did not go back
and followup to see whether or not the companies really came
into compliance.
EPA's Superfund system also has problems. The CERCLIS
system is what it is called, and it measures what's going on in
the Superfund program, and what we found was many times the
Agency information about what States were doing on non-national
priority list sites wasn't even included in the system. So the
Agency was making decisions without complete information.
Mr. Ose. The gentleman from Idaho.
Mr. Otter. Thank you, Mr. Chairman. I want to mention that
actually there's one other bill by Mr. Ehlers that has also
been advanced, and that should be the subject, if I'm correct
here, Mr. Chairman, also of our discussions here this morning.
Mr. Ose. Mr. Ehlers' bill is part and parcel of this
discussion.
Mr. Otter. And I think his bill, along with much of the
testimony that you two--although I didn't listen to your verbal
testimony this morning, I did read what you had submitted, that
the Environmental Protection Agency itself is fraught with lots
of problems, lack of standards, lack of follow-through, lack of
goal-oriented programs that are verified later on, 30 years of
not knowing whether or not punishment or the stick or the
candy, which is the most successful, and it seems to me that
although I could certainly argue, I think, with a certain
amount of reason for the elevation of the director to cabinet
staff level, it seems to me that we're getting the cart before
the horse here, that maybe we better clean up everything and
get everything in order as perhaps suggested by Mr. Ehlers'
bill, and then have an Agency that is fulfilling a mission. I
would hate to think of what we would have done with the
Secretary of State had we had problems all over the world,
ineffective Secretary of State, and then all of a sudden
decided, well, let's put him up to cabinet level, that will
make everything OK.
I do not want to share a misguiding opinion or idea with
the American people that because we've taken it up to cabinet
level, which is not an easy thing to do, by the way, that
everything is going to be all right. You think we need to
continue to share that we've got 283 million people that need
to worry about polluted waters, and polluted air, and collected
solid waste disposal and that it cannot just be one person or
Agency. It's got to be all 50 States; in Idaho, all 44
counties, all 202 cities. I'm a little concerned, not only from
your testimony but also from the suggestions from
Representative Ehlers that everything is not right, and I think
we've pretty well established that here this morning.
Defend for me taking an inadequate organization that is
missioned with a very important part of our Nation's health to
cabinet level staff and still be inefficient.
Ms. Tinsley. If you were to compare what EPA is doing from
the standpoint of having a results-oriented culture with other
organizations that I'm aware of through interacting with IGs,
EPA is actually ahead and is a leader in many of these areas.
Mr. Otter. Cabinet level position?
Ms. Tinsley. Yes.
Mr. Otter. Well, maybe we should remove those from the
cabinet level.
Ms. Tinsley. So if we're going to have a level playing
field, then we might need to think about that, but as far as
accomplishing its environmental mission, it is going to have to
interact a lot with those other Federal agencies that are
cabinet level position--you know, have cabinet level status as
well as, of course, as I've said, with the States. I think that
being an equal player at the table could give the Agency more
influence in that area, because right now it really has to deal
through personality and, not through having an equal seat at
the table, and that's a difficult thing to do, given that it's
really only 20 percent, even at the Federal budget.
Mr. Otter. Only 20 percent.
Ms. Tinsley. I know ``only'' sounds like a lot, but when
your goal is all about clean water, clean air, removing
hazardous waste, they're taking that 20 and trying to leverage
the other 80.
Mr. Otter. But you understand there's a lot more than 20
percent of this Nation's budget that's spent in pursuit of a
clean environment. I was the lieutenant Governor of Idaho for
14 years, and we busted our backs many times trying to match
and trying to also advance the cause of the clean water, air,
and solid waste disposal in Idaho. And we had to come up with
an awful lot of money. If not the exact same amount, in many
cases, it was a 40/60 split, and in some cases, although we
were promised money, we got none. So there's an awful lot more
money being spent than 20 percent of this Nation's budget, and
it is an important position. But also when we come back on the
next round, perhaps you can square up for me that if the States
need to take a much larger role in this, is that going to
diminish the actual role of the EPA as we see it on the
enforcement level here and then become the counseling and
become the activities adviser and that sort of thing for
States.
Thank you, Mr. Chairman.
Mr. Ose. I thank the gentleman. I want to go to something,
and I would appreciate both of your input on this. I look at
the way EPA is structured today, and the analogy that was drawn
for me was of a pin cushion. You have the Administrator; and
then you have Region 9, and Region 3, and Region 6, and Region
5; and in each of those regions, you have air, water, land,
stovepipe type of regulatory enforcement agencies; but you do
not have any level between the regions and the Administrator
that would take all of this information and sort through it for
the purpose of setting priorities within the Agency itself.
Coming back to your point for instance, if I recall
correctly, Tennessee being a polluted river on one side, but
Arkansas it's not. How do you reconcile those? It's the same
river. All it does is move 3 feet.
Now, Congressman Horn has within his bill a suggestion for
a Bureau of Environmental Statistics, where this information
that would allow the compilation and the analysis of these
statistics would take place. Is this a good idea?
Mr. Stephenson. I think both of us would agree that any
bureau or organization that would do a better job of
integrating environmental data and providing meaningful data to
measure progress and assess priorities across programs would be
a good thing. EPA is organized--now as you have observed is
partially media, water, and air and so forth and partially
function, enforcement, compliance. So it's a mixed bag. It's a
very strange organizational construct.
Mr. Ose. From an organizational construct position or
perspective, are there other Federal agencies that are
similarly structured?
Mr. Stephenson. I do not know.
Mr. Ose. OK. Ms. Tinsley, in your testimony, you talk about
how these environmental problems we just talked about transcend
media boundaries. You have some interaction between air, and
water, and land, and what have you, and solutions frankly
require some innovative approaches rather than, if you will, a
point source kind of analysis. Just to rephrase the question I
asked Mr. Stephenson, does the current organizational structure
lend itself to solving these cross-media problems?
Ms. Tinsley. It does not lend itself to solving those kinds
of problems, but it also doesn't preclude the Agency addressing
problems across media. One of the things that recently the
Agency has begun doing is looking at environmental protection
from a watershed standpoint, and using that strategy. It's
going to try and mix all of the different media things together
so that you look at how the air pollution in fact impacts the
water and things like that. So it's not impossible to get there
with this structure. And I think any structure that you have
will have some challenges to it. I think most important is the
ability and the desire of the people who are working on the
problem to work together to solve it.
Mr. Ose. Well, are we presently doing a good job of
handling these cross-media issues?
Ms. Tinsley. I think that if you were to ask people in the
Agency, they would say no, not as good as they could be.
Mr. Ose. I want to examine this watershed issue. There's a
situation down in South Carolina over the Tar River field that
feeds into the Pamlico Sound. Going to your safe legal harbor
issue that you mentioned in your testimony, the approach that
was taken changed to measure an outcome rather than a specific
effluent discharge, for instance. In other words, the agencies
all got together. The stakeholders signed off on some safe
harbor provisions, and they went and they measured what's the
impact at the mouth of the river where it spills into the
sound, because that's basically what they wanted to monitor. It
changed the approach.
Now, I want to come back--I know my time is about up. In
fact, it is up. I want to come back to this safe legal harbor
issue in particular in this next round, Mr. Stephenson. It's
your suggestion, I think, in your testimony that we need to
address that. So Mr. Otter, 5 minutes.
Mr. Otter. Thank you, Mr. Chairman. I want to go back to
the question I left you with, and that is how do we square up--
if we're going to ask the States to take a much larger role in
enforcement, it would seem to me if the EPA is going to carry
on the enforcement activities but sort of the advice and
setting standards and that sort of thing, which is needed
across State lines, and I think we've pretty well accomplished
a mindset on that, but if we do have this transfer, if you
will, to the States, do you think the elevation of the
Administrator to a cabinet level position would be more
effective for the States as a result of that? You know, I'm
just concerned that if we do that, how does the Governors
Association feel about it now? Do they want to see it elevated?
Do they think it's an important thing to do? It seems to me
that if they're going to be partners in this program, that they
need to buy into the idea that we've got a cabinet level
position here.
Mr. Stephenson. I do not know. I think that would be a
great question for the second panel. You've got a lot of the
State witnesses here. I think more importantly, EPA's role is
changing from direct enforcement to assistance to the States
and I do not know what that means in terms of staffing levels.
But assistance is certainly a very important function--it's
trust by verifying. They're still going to have to perform some
oversight functions to make sure that environmental laws are
consistently applied across the States. So they haven't
analyzed their staffing levels and their skill levels to
determine if they're in a good position to do that yet.
Mr. Otter. Ms. Tinsley.
Ms. Tinsley. I've heard the Administrator testify on the
funding that the Agency is asking for to give additional grants
to States, that those grants are going to be competitive, and
would probably be awarded to the States that are doing the best
job in enforcement, which would have to make you wonder what's
going to happen in those States that aren't doing a good job of
enforcement because they're not going to get any more money. So
the oversight and the involvement of EPA that John talks about
is going to be very important. EPA is going to have to continue
its enforcement role in addition to the compliance assistance.
Mr. Otter. Well, I would agree, and perhaps the EPA's role
of enforcement has not been as effective, and maybe that's
because it isn't a cabinet level position. You know, I'm very
much aware since 1994 without a permit, the Army Corps of
Engineers has been dumping 200,000 tons of sludge into the
Potomac River. In fact, into the habitat of the snub nose
sturgeon, and yet without a permit, violating the law.
If the State did that, I would think that the EPA--are they
just without power to make another agency obey the laws of this
land?
Ms. Tinsley. They don't seem to be real engaged in making
that happen. Our audit says neither EPA nor the States do
enforcement the way the regulations would anticipate it should
happen.
Mr. Otter. Which brings me back, I guess, to the question
that I had earlier. Maybe we need to clean this mess up before
we advance this mess in the very important and necessary role
that it has.
In your supportive data that I read last night, Ms.
Tinsley, I'm going to read for you a part of a paragraph: ``our
reviews and investigations have disclosed a particularly
disturbing trend in the number of environmental laboratories
that are providing misleading and fraudulent data to the States
for monitoring the Nation's public water supplies. Several
current lab fraud investigations involve severe manipulations
of lab tests used to evaluate the compliance of public water
supplies with Federal drinking water standards. Some of these
manipulations have masked potential violations of drinking
water regulations.''
If we elevated the Director to the Cabinet level, would
this help improve this, the qualification of labs, the
verifications of labs, the veracity of labs? How is this going
to help an inherent problem?
Ms. Tinsley. I don't think that whether EPA is a Cabinet
level office or not has any impact on that issue.
Mr. Otter. So we will just make bigger mistakes at a higher
level?
Ms. Tinsley. Just not one way or another. That's a
different issue.
Mr. Otter. Thank you, Mr. Chairman.
Mr. Ose. I thank the gentleman. I want to come back to this
safe harbor issue with Mr. Stephenson. This really boils down
to the EPA relationship with the States in terms of what kind
of insulation you can give them if they are going to do
innovative things. Now you recently released a report on
obstacles to State environmental innovation. What did you find
were the chief obstacles that the States faced?
Mr. Stephenson. One of the chief obstacles is the
rulemaking that EPA does based on the regulations. The
rulemaking is very prescriptive and it is done that way to be
legally defensible. But the impact that has is that it stymies
innovation within environmental programs. And the safe harbor--
--
Mr. Ose. Before we leave that, I want to make sure I
understand you correctly. When you say it is prescriptive, the
regulations mandate that it will be done A, B, C?
Mr. Stephenson. In a specific way.
Mr. Ose. Rather than L, R, Q? It is A, B, C, or no way at
all?
Mr. Stephenson. Right. In a lot of cases that is true. And
what we're suggesting is that maybe there is more room for some
flexibility in environmental programs. Just like I described,
measuring pollution at the mouth of the river, rather than
regulating everything that's put into the water along the way.
It's an outcome-based indicator and that's what we advocate.
Mr. Ose. What sort of things do you recommend to help
change that prescriptive culture that exists at EPA?
Mr. Stephenson. I think recognition in some of the
legislation that employing some innovative practices may be
acceptable would be the safe legal harbor that we are talking
about. Right now, the legislation doesn't really allow for
that, in our view. I believe there was a House bill last year
that in some way addressed this, but I'm not that familiar with
it.
Mr. Ose. I want to make sure I understand. Between rules
and regulations and legislation, you think the prescriptive
issue is legislative in nature, not regulatory in nature?
Mr. Stephenson. I think that because there is no provision
for this in the legislation, then the rules are not written in
such a way that would allow innovative practices to be
employed.
Mr. Ose. Is there a provision in the legislation that
prevents the innovation?
Mr. Stephenson. No.
Mr. Ose. It's just that the safe legal harbor issue----
Mr. Stephenson. And EPA chooses to implement the rules the
way it does in large part so they will be defensible against,
for example, the Clean Air Act or the Clean Water Act. That is
the approach they think they have to take.
Mr. Ose. So your suggestion is that in order to allow that
culture to evolve into something a little more innovative, we
need more flexibility in the legislation?
Mr. Stephenson. Exactly. Exactly.
Mr. Ose. All right. Then, Ms. Tinsley, you indicate in your
testimony that relations between the EPA and the States have
been strained in some occasions. Is this the principal reason
for that? Is it that the States think we can accomplish
something by doing a little more innovative approach versus the
EPA's prescriptive pattern of operation? What are the principal
causes of this difficult relationship between the States and
EPA?
Ms. Tinsley. In the past, EPA has monitored the States
through requiring States to do certain activities, as you said.
And States want to do other activities. It seems that it is
difficult for EPA to give up the old way of doing business in
favor of a new way. And EPA has also tried, as it has gone
through a transition to try to work with States, to hold States
accountable for showing changes in environmental results and
States have not wanted to be held accountable to that level. So
you have two different things going on.
Mr. Ose. Well----
Ms. Tinsley. And they sort of work against each other.
Mr. Ose. Let me ask the question to the extent that I can.
It would seem to me that somebody who lives in New Mexico,
working at the State of New Mexico's Department of
Environmental Regulation or whatever, is far closer to a
problem than somebody at a desk at EPA here in Washington, in
terms of what needs to be done. Are we just kind of saying, you
know, we are the big dog, you are the little dog, you have to
do what we say? Is that what is going on here?
Ms. Tinsley. At least in some of the regions where we have
looked at how the regions are interacting with the State, it is
something like that. And part of this is even a training issue
where, while the headquarters office at EPA said it was going
to do business differently with States, the regional people
said that they had not bought into it. And that's what they
actually told us when we did our work, was that maybe
headquarters wanted to do that, but that's not what they were
doing. Because EPA doesn't have a good handle on what its work
force is doing all the time, it did not even realize that was a
problem.
It resulted in regional people who worked with the States
actually asking the States to measure hundreds of things, all
the old activities that they used to monitor, plus the new
agreements with the States. And if you step back and looked at
what was happening, it looked like the States would spend all
of their time counting things and not much time protecting the
environment.
Mr. Ose. Mr. Otter.
Mr. Otter. Ms. Tinsley, in your capacity as the Inspector
General of the Environmental Protection Agency, how many people
do you have reporting to you?
Ms. Tinsley. We have about 350.
Mr. Otter. No, I mean to you.
Ms. Tinsley. To me personally?
Mr. Otter. Yes.
Ms. Tinsley. I have eight.
Mr. Otter. And, Mr. Stephenson, in your capacity as the
Director of Natural Resources and Environment, how many do you
have reporting to you?
Mr. Stephenson. Directly reporting about seven or eight.
Mr. Ose. Do you know that the President now has 14 on the
Cabinet reporting directly--I mean in the chain of command, 14
different people reporting to him. I come out of the private
sector, and generally we thought five to eight was about the
max that you could really do a good job with. And part of my
concern about this has always been if we did not fold into
another agency and have that agency representing the
Environmental Protection Agency on the Cabinet level, were we
going to diminish those that were already there or were we not
going to do as good a job as we would with a little more
independence? I think that's one of the things that we really
have to concern ourselves with.
The other that I am concerned about is as recently as 2
weeks ago, the environmental community, along with many of the
States, were quite upset when an individual was removed from
the Department of the Interior because of an apparent
disagreement with the administration. And as that person was
removed, it was suggested that, you know, that the
administration made sure that removal took place. Even though
the separation just by command would offer a little bit of
autonomy, I don't know of any of these 14 people that I have
seen any disagreement with this administration, so they are all
still sitting around the table.
One would have to wonder if the closer the Environmental
Protection Agency got to the administration vis-a-vis the
Administrator now sitting at the Cabinet table, that perhaps
part of that autonomy and that creative individual willingness
and focus on mission might be diminished, in light of what
happened a couple of weeks ago in the Department of the
Interior.
Mr. Stephenson. I don't have any basis for judgment, but--
--
Mr. Otter. Well, you are the Inspector General. You guys
should have investigated that. You don't have an opinion on
that?
Ms. Tinsley. Well, I do not investigate things that happen
at the Department of Interior. I'm pretty busy at EPA.
Mr. Stephenson. I think the management challenges are
independent of Cabinet level status. Maybe we shouldn't reward
EPA until it gets its act together, but based on the
President's management agenda and the OMB report card that it
just issued, no agency is doing a good job. There were reds
everywhere on their green, yellow, red checklist. So that is
not really a criteria.
To me, it is the importance of the job that EPA is doing
and the U.S. standing in the international community. If every
other country says this is Cabinet level status, then why don't
we? I guess that is kind of where I am.
Mr. Otter. And I'm sure you are aware that there is a major
difference in government structure between the U.S.
Government----
Mr. Stephenson. Of course.
Mr. Ose. Does Mexico, for instance, do they have a Cabinet
level position?
Mr. Stephenson. To my knowledge, yes.
Mr. Otter. I will take my environment, and this is no great
disparagement to our friends south of the border.
Mr. Stephenson. I am no way suggesting that elevating EPA
to Cabinet level is going to solve all of its problems and make
it a better agency. That is not what I am suggesting at all.
EPA has to address its management concerns regardless of
whether it is a Cabinet level agency or it remains an
independent agency.
Mr. Otter. My expectation would be if we do elevate it, if
we increase the title--if I took a person in my company, if I
went from Lieutenant Governor to Governor, I was expected to do
a much greater role. If I took a person from vice president to
a chief of a department or to president of a company, I would
expect them to have a much greater role, a much greater
influence, and much more focus overall for their particular
area of discipline. And I would expect it to improve.
Mr. Stephenson. Yes. Based on testimony from ex-
Administrators in the Senate last year, they contend that they
don't have an equal footing with other Cabinet level
departments, they don't have a place at the table. That's
debatable, I guess.
Mr. Otter. I think it would be. And perhaps I'd like to get
a Governor at that Cabinet level table as well. And so if we
are going to go to 15, we might as well go to 16 and put a
Governor on there. Thank you, Mr. Chairman.
Mr. Ose. I thank the gentleman. I keep coming back to this
structure issue. In terms of the Agency itself, going back to
the analogy I introduced of a pin cushion where the different
assistant administrators and the different regional directors
report directly to the administrator, I think there are 22
actual direct relationships there. If we are going to elevate
EPA to a Cabinet level status, aren't we also obliged to look
at how it will operate after the fact? If we can identify some
clear organizational issues that are frankly contributing to
the difficulty we are having in the aggregate of positively
affecting our environment, aren't we obliged as we elevate to
fix those structural problems?
Mr. Stephenson. Yes, I think they need to be fixed, whether
EPA is elevated or not.
Mr. Ose. Do you share that, Ms. Tinsley?
Ms. Tinsley. Yes.
Mr. Ose. All right. Now one of those that has been
suggested, and I think Mr. Otter brought this up earlier, had
to do with an office dedicated to science. Should the EPA have
an office dedicated to science, separate and apart? A deputy
administrator dedicated to the scientific function or
functions?
Mr. Stephenson. If our policy is going to be based on sound
science, I would think that such a position would be
appropriate.
Mr. Ose. Do you share that opinion Ms. Tinsley?
Ms. Tinsley. Yes, I do.
Mr. Ose. Now there has also been the suggestion at previous
hearings regarding an office to quantify whether or not the
programs are having an environmental impact, a positive
environmental impact or a negative environmental impact. And I
think, Mr. Stephenson, you talked about this previously. Should
the EPA have an office, a deputy administrator, if you will,
responsible for basically monitoring these programs to ensure
that they're achieving their objective? So you would have a
science guy, then you would have an enforcement office, you
would have a ``success or failure'' office. I don't know what
you call it.
How do you go about quantifying whether or not the money we
are spending is actually having the effect that we want?
Ms. Tinsley. If----
Mr. Stephenson. Go ahead.
Ms. Tinsley. If you had the information you needed to
measure what was happening in the environment, then you could
hold the individual managers accountable. In normal business,
every manager is accountable for making sure their part of the
organization works.
Mr. Ose. So you have to have an office of the data
administrator, so to speak, into which all data flows and from
which you can get good periodic reports evaluating the program.
Ms. Tinsley. That would be one way to do it. One of the
reasons that EPA doesn't have the data that it needs to manage
is not because managers would not like to have that, but
because there has sort of been, at least in the last few years,
a collective decisionmaking process about what money gets spent
on, and managers have a tendency to not want to take funds away
from their individual programs for the greater good, if you
will, because they are too busy trying to do the things that
they hope are working to deliver environmental results.
Mr. Ose. But you both testified that there is little
scientific data by which to judge those programs being funded.
Mr. Stephenson. Well, specifically data on environmental
indicators, I would call them, supported by sound science. But,
as you know, what does the data show in terms of how much
cleaner the water is getting, how much cleaner the air is
getting and so forth? The fact that EPA does not have a good
set of outcome-based environmental indicators would suggest
that it has fallen through the cracks in the Agency's current
organizational structure.
So I wouldn't want to get hung up on the title of a bureau
of environmental statistics or whatever. But that's a really
important function for EPA to determine its priorities. They
cannot employ risk-based environmental strategies unless they
have that kind of data. So it is an extremely important
function.
Mr. Ose. And we don't have that data now in a usable or
consistent manner.
Mr. Stephenson. No, and I think the current Administrator
would agree. That is why she has initiated the environmental
indicators study.
Mr. Ose. My time is up. OK. I am going to get another round
here. Both of you have testified about the human capital issue
in the Agency itself, one comment being that the skill set
within the work force is not necessarily aligned with the
challenges we face, and the second issue being that we have
this bulge, if you will, in the employee pool that is moving
through chronologically and within 5 years we are going to lose
a lot of senior people.
How do we deal with that? I mean, if we know they are
coming, we know these retirements are pending within 5 to 10
years, we have a need for a change in the skill sets, is this
an opportunity to frankly evolve the Agency--that is not a
verb, but I just made it up--evolve the Agency into something a
little more responsive or reflective of our current challenges?
Mr. Stephenson. Preparing for the future is part of good
human capital strategic management in any agency. There are two
problems. There is the succession planning problem and there is
the change in the skill mix from a direct enforcement function,
to more of an assistance to the States, to kind of an oversight
function. So there are two problems which should be part of
EPA's strategic human capital plan.
After we reported on it last year, they were going to
undertake several initiatives to address these specific
concerns. GAO has put out a human capital model for all
agencies to use to help guide them through this process, but,
we haven't been back in to look at how well they are doing in
that endeavor.
Mr. Ose. Ms. Tinsley, would you agree that we have--I mean,
we could look at it as lemons or lemonade in terms of an
opportunity here to refocus the skill set, if you will, within
the Agency. Is this an opportunity or an impediment?
Ms. Tinsley. Well, we would have to look at it as an
opportunity. But this is an opportunity that all of Federal
Government has, which I think in part is why there has been
legislation introduced to at least give managers more
flexibility in how to address these problems. If you look at
all these folks who could leave the Agency in 5 years, the
Agency doesn't have any idea whether or not that is going to
happen. So it needs, as John said, to have some strategic way
of thinking about where it wants to get to and what skills it
wants to replace, how it wants to do that through hiring versus
training, so that 5 years from now the Agency is where it wants
to be.
Mr. Ose. Now one of you in your written comments referenced
a number of pending. EPA ordered a contract ``in early calendar
year 2002 to develop a model work force planning process and a
system that will meet the Agency's competency-based work force
planning needs.'' That is Ms. Tinsley's testimony. When will
this contract be complete? Do you know?
Ms. Tinsley. I do not know.
Mr. Ose. Is it an open-ended contract?
Ms. Tinsley. I don't know the answer to that. I can get
back to you for the record.
Mr. Ose. For the record? We may well want that.
And also there is a second mention in here, your office
reported the Agency did not have a policy for awarding
discretionary assistance funds competitively. You did testify a
little earlier today about some change in the competitive grant
process.
Your written testimony says that the Agency agreed with the
OIG's observations and is drafting a policy which will address
competition in the award of discretionary assistance funds.
When will this be completed?
Ms. Tinsley. I don't know when that is going to be
completed, but I have heard discussions among the Agency
managers, particularly the Assistant Administrator for the
office that handles that. I think that draft will be out soon
for our comment.
Mr. Ose. See, this is the kind of thing that makes it very
difficult for us on this side, if you will, to evaluate what
we're doing. I have heard nothing in terms of specific
empirical objectives as they relate to the environment and I
did not read anything in your testimony relative to EPA's
mission in addressing those objectives, specific, empirical
objectives. We have a contract on a work force planning
process, for which I don't know the due date. In other words,
when is that contract supposed to be finished?
And on the competitive grant process, I get the same
question that we don't know when that will be finished. It
almost seems like we have a culture here that does not set
priorities with due dates. I mean, am I accurate here?
Ms. Tinsley. Yes. And you have a culture from an
environmental standpoint that doesn't have the information to
work with others to make those decisions.
Mr. Ose. To make those decisions.
Ms. Tinsley. That is right.
Mr. Ose. Or a central collection point into which that data
could come so priorities could be set and based on those
priorities we could allocate resources accordingly.
Mr. Otter for 5 minutes.
Mr. Otter. Mr. Chairman, I have no more questions for this
panel, but I would like to draw your attention to and make a
unanimous consent request that a letter received by you on
December 20, 2001, relative to this very subject, the elevation
of the Administrator to Cabinet level, signed by myself and
five of my colleagues, be made a part of this permanent record.
Mr. Ose. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 82666.102
[GRAPHIC] [TIFF OMITTED] 82666.103
Mr. Otter. Thank you, Mr. Chairman.
Mr. Ose. I do appreciate you taking the time to come and
visit with us today. I know it is not easy to constructively
criticize, but I do appreciate the input. It is helpful to me
to have you come and tell us what you found. I am interested in
whether or not to elevate EPA. But I'm also cognizant that we
are not going to repeat the problems we faced in the past. We
are going to try to fix them.
So your testimony has been very helpful in that regard, and
I want to thank you for coming. You are relieved of duty, so to
speak, and we will call the second panel forward. We will take
a 5-minute recess here, too.
[Recess.]
Mr. Ose. Our second panel today, we are joined by
Commissioner Karen Studders from the Minnesota Pollution
Control Agency. Thank you for coming. And also by Jane Nishida,
the secretary of the Maryland Department of Environment.
Ladies, as you know, we swear in our witnesses on this
committee. Rise and raise your right hands.
[Witnesses sworn.]
Mr. Ose. Let the record show that the witnesses answered in
the affirmative. We provide our witnesses with 5 minutes to
summarize their testimony, which we have received in advance
and we are grateful for that. So, Ms. Studders, you are going
to be first. Thank you for coming.
STATEMENTS OF KAREN A. STUDDERS, COMMISSIONER, MINNESOTA
POLLUTION CONTROL AGENCY; AND JANE T. NISHIDA, SECRETARY,
MARYLAND DEPARTMENT OF THE ENVIRONMENT
Ms. Studders. Thank you, Mr. Chairman and members of the
subcommittee, for giving me this opportunity to appear before
you today. I welcome the chance to provide Minnesota's
perspective on elevating the EPA to Cabinet status.
Minnesota has consistently supported a Cabinet level
department of the environment. I continue in this tradition
today. It is more important than ever before that environmental
protection is factored into decisions made at the highest
councils of our land.
There are three reasons to justify this change. First,
elevating EPA to a Cabinet level status would improve the
department's ability to work laterally with other Cabinet
members on what I call second wave environmental issues
involving agriculture, transportation, and energy. I will
explain those issues in a moment.
Second, pollution crosses State, regional, national, and
international boundaries, thus requiring a Department of the
Environment with access to policy discussions at the Cabinet
level.
Third, a Cabinet level Department of the Environment
provides leadership to States so that we can better do our
jobs.
On my first point regarding the second wave of
environmental problems, after more than 3 years as Minnesota's
environmental commissioner, it is clear to me that the State
regulatory agencies are facing very different problems today
than we faced in the 1970's, 1980's, and the 1990's when
Congress passed laws to deal with end-of-pipe emissions, which
I call environmental protection's first wave.
This was met with hard-won success. However, today the
greatest threats to our environment are not from our regulated
factories and facilities, but they are from widely disseminated
pollution arriving from transportation, energy consumption,
agriculture and urban sprawl. In Minnesota we realized a few
years ago that these complex problems could not be regulated
out of existence; we needed new strategies, what I call the
``second wave of environmental protection.''
This relies on enforceable goals, partnerships, innovation,
public stewardship, and is performance-based. In Minnesota,
Governor Ventura has afforded me the latitude to work directly
with my fellow commissioners in the State Department of
Transportation, Agriculture, Commerce, Health and Natural
Resources. By sitting at the table with the top managers of
other agencies, Minnesota has achieved some remarkable success.
And I won't go into a great deal of detail, but I would
encourage to you read it in my written testimony, but I would
like to cite two examples.
First, the environmental agency participated in writing the
State Transportation Department's 5-year strategic plan so that
when we design roads, we ensure we aren't increasing the
congestion unnecessarily and causing us to have air quality
problems.
Second, Minnesota just completed its first energy plan. It
is a 10-year energy plan written by our State Department of
Commerce. The entire appendix, more than half of the document,
talks about the environmental consequences of the energy
choices we make. And it literally costs that analysis down so
we can look at what is the cost to the ratepayer if we add this
piece of pollution control equipment to this plant in this
area. That is a first for Minnesota. I am very proud to say
that we have been able to do such work.
I do believe that EPA could forge more productive
relationships and strategies with other Cabinet members if the
department had a permanent place at table, as do I in the State
of Minnesota.
My second point, a Department of the Environment provides
clout for solving pollution problems crossing State, national
and international boundaries. Just as today's pollution
problems require national strategies, they also require
stronger cooperative relationships. As a commissioner that
shares a border with Canada, I know how important authority and
credibility are to developing and maintaining such
relationships.
My final point is that States need environmental leadership
that provides flexibility in approaching environmental problems
in the 21st century.
And now I'm going to differ a little from my written
testimony and try to touch on some of the issues that you
raised in your questions to the first panel, if I can. I do
believe that to achieve this leadership goal, EPA needs to do
three things.
First, we need a statute that--we need Congress' help in
writing to allow EPA to operate effectively among the media
programs. We need a safe harbor, and I will talk a little bit
about that.
Second, we need to change the structure so that it helps us
address cross media issues. However, I would not suggest
changing structure until we do some things legislatively.
Third, we need to focus on environmental results. I, too,
come from the private sector and am very interested in results.
First, in 1996, Minnesota passed a statute called the
Environmental Regulatory Innovations Act to give my agency the
ability to try new ways of working on environmental problems.
This law leaves in place our existing laws related to air,
water, and land, by allowing us to try approaches that are
different, promoting reduction in pollution levels overall and
reducing unnecessary administrative burdens. And it is allowed
under State policy.
A similar overarching Federal law could help EPA deal with
such innovations, one that leaves in place all of the major
environmental acts but also gives EPA the flexibility it needs
to do things differently and depart from statute when needed
through variances like Minnesota's law, or another mechanism.
This is the legal safe harbor I refer to.
Next, EPA needs a clear message from Congress that it wants
EPA to be flexible. That is where a legal safe harbor sends
such a message to EPA. In the meantime, a new overarching
environmental law can be and needs to be written, eventually
replacing the media laws that are currently on the books.
Then we need to address EPA's structure. Minnesota has
experience in designing a structure responding to emerging
environmental problems, such as smart growth, that cut across
the media programs. In our experience, the EPA innovations
staff tries very hard to do things differently, but they run
into obstacles with the media program staff. Perhaps using a
congressional task force with the administrator, congressional
staff, State environmental staff, and environmental
commissioners to design a new structure will give EPA the
flexibility to do their job once a national environmental act
is written.
Consider a functional organization with reporting similar
to the corporate model, such as permitting and enforcement and
research. But I will tell you I think we need a tight timeframe
to do this. We do not need to get caught up in analysis
paralysis. We need a flexible statute written. I think it could
be done in a month.
Second, we need to write a national environmental
protection act with a task force doing that work and getting
stakeholder buy-in. That could be done in about 6 months. And
then subsequently we need to redesign EPA. That, too, I think
would take about 6 months.
Once the above are done, Congress could then reduce the
number of committees that oversee EPA. I believe at present in
excess of 15 congressional committees oversee EPA. There are
not many other departments that have such a reporting
relationship with Congress.
Then EPA and Congress could move further in reporting on as
opposed to counting numbers of permits issued and numbers of
enforcement actions taken to measuring how the results actually
improved our environmental state. This is something that
Governor Christie Whitman has made a priority in her
administration, and a new statute allowing greater flexibility
and structure designed to allow the department to work across
media issues would give EPA the tools it needs to focus on
environmental outcomes, which I believe are clean air, water,
and land.
Finally, I'd like to share with you that I'm going to ask
you this question as I close: How should we measure the quality
of our air? One, should we focus on the number of permits that
are issued to major facilities; or, second, on the number of
days when air has no negative health impacts? In Minnesota, we
measure the latter.
Thank you for inviting me to provide Minnesota's
perspective, and I apologize in advance, because I know I took
more than 5 minutes.
[The prepared statement of Ms. Studders follows:]
[GRAPHIC] [TIFF OMITTED] 82666.104
[GRAPHIC] [TIFF OMITTED] 82666.105
[GRAPHIC] [TIFF OMITTED] 82666.106
[GRAPHIC] [TIFF OMITTED] 82666.107
[GRAPHIC] [TIFF OMITTED] 82666.108
[GRAPHIC] [TIFF OMITTED] 82666.109
[GRAPHIC] [TIFF OMITTED] 82666.110
[GRAPHIC] [TIFF OMITTED] 82666.111
[GRAPHIC] [TIFF OMITTED] 82666.112
Mr. Ose. Ms. Studders, we are glad you are here. Your stuff
is so good we decided to let you run. We figured it was
productive. So, Ms. Nishida, if your stuff is as good we're
going to let you run a little long, too.
Ms. Nishida. Thank you, Mr. Chairman and members of the
committee. My name is Secretary Jane Nishida. I represent the
Maryland Department of the Environment and I am privileged to
be here today to testify about Maryland's position with regards
to the elevation of EPA. You have my written testimony, and
what I would like to do in light of the number of questions
that you asked the panel one witnesses, is to forgo reading or
summarizing my written testimony but instead try to answer some
of your questions in the context of three questions that were
posed to me originally.
The first question is whether or not the original charter
of EPA is still valid today, 30 years later. The second,
whether improvements should be made in elevating EPA. The third
is whether EPA should in fact be elevated.
With regards to the first question, that is whether or not
the original charter of EPA is valid today, I want to answer
that in the context of an experience that we have in Maryland,
and that is our restoration of the Chesapeake Bay.
The earlier panel testified that they had run into
experiences where States may be treating a water body
differently from across State lines. I am happy to tell you
that with regards to the Chesapeake Bay, it is an unprecedented
level of cooperation that we have with regards to the
protection of the Chesapeake Bay between the States of
Maryland, Pennsylvania, Virginia, and the District of Columbia.
As well, we have included other States who are not technically
a part of the Chesapeake Bay restoration efforts but who do
play a role in terms of contributing to the water quality.
As a result of that and such things as trying to designate
a TMDL for one of the tributaries of the Chesapeake Bay, the
Potomac River, we are working jointly with those States that
share the Potomac River. So we believe that as a result of the
cooperation fostered by the Chesapeake Bay program, we will not
see the inconsistencies that are occurring in the other parts
of the country with regards to different standards and perhaps
different protections for a water resource.
Likewise, with regards to the question of whether the EPA
charter is flexible in addressing the Chesapeake Bay concerns,
as you have pointed out, there has been evolution of
environmental problems over the years from the command and
control approach of point sources. What we're finding in the
restoration of the Chesapeake Bay is that many of the sources
of pollution are not from our factories, they are from
agricultural runoff and sediment erosion from land use and from
air deposition. Twenty-five percent of the NO<INF>x</INF> that
enters the Chesapeake Bay comes from the air.
The EPA is one of our partners in this Chesapeake Bay
restoration, one of our strongest partners, and they have
worked with us in terms of flexible interpretation of their
standards and approaches. They are able to apply to the States
the flexibility that we need collectively to protect the
Chesapeake Bay.
The second question that I would like to address is what
other improvements should be made with regards to EPA. I will
acknowledge that all the points that were raised by
Commissioner Studders and the other panelists are very valid.
We need to look at pollution and environmental protection in
the future from a multipollutant strategy, from a cross media
strategy. We need to look at an entire facility, not just a
single media within a facility. We need to look more closely at
incentive-based approaches. We need to look more at compliance
assistance.
One of the difficulties that we have had with EPA in the
past, when they look at our enforcement record, they only look
at the number of NOVs and enforcement actions taken and not
what compliance assistance we have rendered.
You have raised a question with regards to data management.
Yes, more integration needs to occur in data management. One of
the difficulties that we have at the State level, as an
example, is that because everything is media-driven, my agency
data base cannot communicate with each other and this prevents
us from doing community-based profiles in addressing such
things as environmental justice.
We also need to look at outcome performance indicators, as
you indicated. In the State of Maryland, we have been working
with our regional office, Region 3, to develop a performance
partnership agreement that establishes environmental indicators
in exchange for more flexibility with regards to funding that
comes to the States. And these environmental indicators look at
number of wetlands that we restore, the number of lead-elevated
children that we reduced, the reduction of ozone days within
the State. So they are, again, environmental performance
indicators.
Which leads me to the final question, and that is whether
or not to elevate EPA. As you have indicated, there are several
proposals before you. One, H.R. 2438, which is the clean bill
in terms of elevating EPA; H.R. 2694, which has more in terms
of reforming EPA.
While we support aspects of the reform bill in terms of EJ,
IT, and public access, we would urge this committee to pass out
the clean bill, 2438, because we believe that the structural
problems are complex, require further evaluation, and further
dialog with important stakeholders like the States is needed.
I would add that when my agency was elevated to an
environmental agency in the mid 1980's, it was not a perfect
solution. Over the last 15 years I have been before the General
Assembly where there have been reforms in my agency, where
certain programs have been shifted and certain organizational
structures have been made.
I think the important thing is that we need to send a
message to our public, we need to send a message to the world
that we believe that environmental protection is on equal
footing with the other Cabinet level responsibilities. I think
the public deserves no less and the time is long overdue. Thank
you.
[The prepared statement of Ms. Nishida follows:]
[GRAPHIC] [TIFF OMITTED] 82666.113
[GRAPHIC] [TIFF OMITTED] 82666.114
[GRAPHIC] [TIFF OMITTED] 82666.115
Mr. Ose. Thank you, Madam Secretary. We appreciate you
coming today.
We are going to go to questions now. Ms. Studders, is it an
agency or commission you run? I just need to be clear in my own
head.
Ms. Studders. My agency's name is the Minnesota Pollution
Control Agency.
Mr. Ose. OK. Now, that agency, it is my understanding that
your agency was reorganized here several years ago and that the
manner in which you approach the issues before you changed. How
was the agency organized before and how is it organized now?
Ms. Studders. Mr. Chairman, the agency was actually created
3 years before EPA was created. And it was arranged exactly
like EPA is today arranged, which was by media: air, water,
land, a separate financial office, an administrative separate
office.
The agency was reorganized in 1998, destroying those media
organizations for all of the reasons that each of the panelists
have spoken about today with the second wave environmental
issues, and it was set up to deliver services geographically.
Minnesota is a northern State and we broke the State down
geographically and we dealt with the large communities
differently. So if you were a large community greater than
about 100,000 in population, services were rendered differently
to you than in the smaller communities.
What we did originally was try to put every single program
out into that service delivery system, if you will. We also
centralized a planning function, which I think is very critical
for planning and analysis before new rules are promulgated,
before a new standard is set, to have independent staff look at
that rule of standard and see if it was indeed warranted. And
we set up another division that had to do with environmental
results. We call it the environmental outcomes division. And
that group created the Minnesota Environment 2000 report which
I brought before this committee last year, and is looking at
our indicators quarterly, and produces a report quarterly
looking at what progress has been done.
But I will tell you that it is very difficult to measure
environmental progress in a quarter. It very often takes years.
Mr. Ose. Before we leave that, how do you measure it in
this report? Do you have specific quantifiers in the report? Or
is it subjective? Tell us how you measure it.
Ms. Studders. Mr. Chairman, that answer honestly depends on
the breadth or wealth of the information we may have in the
media. We have much better data on air in Minnesota than we do
on water. I think that is true of most States, but not all. The
number of parameters we have monitored air for in this country
has been a finite amount and it is less than a dozen and it is
manageable. In the water arena, it is thousands and it is less
than manageable. The criteria pollutants are measured. And what
we have seen is a movement of the criteria pollutants coming
out of the Twin Cities, our primary metropolitan area, and
extending north into our area north where our resort areas are.
We are seeing deposition issues in those lakes. But we are
measuring the pollutants, I believe, on a monthly basis and
then looking at that data cumulatively over years and adding
each subsequent month to that information.
Mr. Ose. Do you correlate the measurements with changes in
the regulatory regimes? In other words, at such and such a date
we had a measurement of X and we changed our regulation at that
time to address something else? Is there any way to correlate
your regulatory evolution with the empirical data that you are
monitoring out in the field?
Ms. Studders. Mr. Chairman, we started doing that last
November. We made a structural change to our organization last
November, which I think is important I share with this
committee. The district service delivery system was a little
flawed in that--I'll give you an example. In our main office we
have 500 people. In a smaller regional office we may have 50.
And to expect 50 people to operate over 50 environmental
programs was really, I think, a laudable goal, but an
impossible one. We pulled some of those programs back into our
central Saint Paul office primarily for what we call our major
facilities, those big emitters that have been regulated under
the Clean Air Act, Clean Water Act, RCRA, for 20, 30 years, and
have consolidated the major facilities in one division now and
what we call our minor facilities in a second division.
We still have those regional offices but what we learned in
the course of the last 3 years was that our staff needed
different skills to go out and inspect and enforce a major
facility versus providing some assistance and perhaps actually
teaching an entity, like a farmer that had not been regulated
before about the impact his or her phosphorous and nitrogen was
having on that waterway down the block. And so now our service
delivery system is looking at that skill issue and we actually
have different skills in the two divisions that we ask our
staffs to have.
Mr. Ose. I want to come back to this, but my time has
expired. Mr. Otter.
Mr. Otter. Ms. Studders, in your testimony, you provide us
that you had worked for many years for the private sector and
that is Reliant Energy.
Ms. Studders. Yes, that is true, Mr. Otter.
Mr. Otter. Tell me a little bit about Reliant Energy.
Ms. Studders. I can tell you that--I think it is important
I tell you this, I worked in the natural gas business
originally and went through a series of seven acquisitions and
mergers in my 17-year career in the energy business and wound
up at Reliant Energy. As that ended, we were doing
environmental regulatory work in 13 States and I was primarily
involved in negotiations with the different regions of the
Environmental Protection Agency, establishing standards and
negotiating cleanup scenarios for very large sites that needed
remediation, and then working on air quality agreements as
well.
Mr. Otter. And coming from that sector when you were
working with the EPA, did you find them pretty easy to work
with, relative to your position now as the head of the
Environmental Protection Agency of Minnesota?
Ms. Studders. I think what I would comment on is that I
found working with each region unique. Region 5 is different,
different than Region 7. The expectations in Region 8 are very
different than those in Region 2, and I found that troubling in
that to me what was good in New York should also be good in
Texas. But the different regions would interpret the laws
differently, and I fortunately worked for a company that said
let's hold ourselves to the highest standard that one region of
the EPA holds us to. So it made my job easier as I worked with
fellow managers to teach them what standard they needed to
comply with. But EPA themselves don't hold themselves to that
same standard.
Mr. Otter. Was Reliant generally under the auspices of the
public utilities commissions of these relative states?
Ms. Studders. Yes, it was.
Mr. Otter. And so if you had an environmental problem that
required a solution within a certain period of time, you needed
to, as you stated in your testimony, you could cost-basis
whatever it was going to cost for another 1,000 cubic feet of
gas, what that abatement process was going to cost you in your
product?
Ms. Studders. Yes.
Mr. Otter. And then with that knowledge, you could go to
the PUC and say we need an increase from $1.80 up to $1.85 or
$1.82?
Ms. Studders. We could, but I will be honest, the people I
worked for asked that I do a more thorough analysis of that,
meaning look at different alternatives to grapple with an
environmental scenario and cost that out, and then go to the
public utility commission and ask them what they thought. So we
did not necessarily always go in with one solution, we went in
with several so that they could help determine if they wanted
that issue addressed or not because there are different costs.
Mr. Otter. In that capacity, was Reliant ever fined by the
EPA?
Ms. Studders. Reliant has been fined by EPA, yes.
Mr. Otter. Did you believe that those were justifiable?
Ms. Studders. I will be honest, Mr. Chairman, the fines I'm
referring to actually happened to Reliant before I came to work
with Reliant, because I only worked with them the last 4 years
of my career. During the time I was there they did not have any
fines that I'm aware of.
Mr. Otter. Very good. I operated a plant in northern
Minnesota, a little town called Claxton. I also operated plants
in Idaho, Maine, California, and several other States, and
several other countries. And I have to tell you that we were
just as frustrated with the different rules and different--
about the time we thought we had it figured out in one State or
in one country and made those accommodations, then we found out
because of the inconsistencies between regions that we no
longer were doing the proper job.
And quite frankly, selling French fries is not the same as
selling 1,000 cubic feet of gas. There is no PUC to go to. You
have to go to McDonalds and Burger King and say we have to
raise the price of your product. We have a problem here. It is
not as easily accomplished in the private sector as it is in
the quasi public sector that you talk of. There is no PUC.
There is only the consumer. And if you happen to have been
fortunate to have located your plant in a region which was more
flexible, you could cost your product much cheaper. And if you
did not, and your competition did, well, then actually it was
the regulation by your own government that put you in a
noncompetitive position because you happened to locate your
plant in a different State and subsequently in a different
region.
And so you can imagine what the private sector is faced
with constantly when they have a multiplacement of plants or
when some competition was a little more far-sighted and located
in one of the regions that were more flexible. I will come back
to this later in my second round. My time is up, Mr. Chairman,
but flexibility is one thing that if we are going to establish
flexibility, and I appreciate the fact that both of you have
spoken to that, we need to make it consistently flexible.
Otherwise, we disenfranchise in the marketplace and we
disenfranchise States, to some extent one State is required to
do something that other States are not. Thank you, Mr.
Chairman.
Mr. Ose. I thank the gentleman. Ms. Studders, Ms. Nishida,
I have a bunch of questions for you also. Just be patient with
me.
Ms. Studders, you talked about how you have reorganized or
Minnesota has reorganized to effectively go away from the air,
water, land, to basically--these are my words, not yours--the
stationary known air emitters that require major oversight, and
then the smaller ones. You centralized the oversight of the
major guys in an office that had staffing. Now the smaller
offices, the satellite offices, if you will, retained
jurisdiction on what emerging types of industries? I mean, how
did you structure this? When you got the big emitters
identified and centralized, how did you handle the ones that
were less than big?
Ms. Studders. Mr. Chairman, the large emitters are
primarily identified by EPA, and the regulatory
prescriptiveness to which we are held to show that we are
complying with Federal law as we regulate them determined who
was a major facility. And that's a finite group that we could
put in that one division.
The second division is everything else. So it is much less
tangible and it will have facilities in it that one could argue
will have to operate under the same prescriptiveness. As an
example, a smaller sized wastewater treatment facility still
has to comply with the Clean Water Act.
But the volume of the discharge and the number of
pollutants they need to test for is much smaller than a major
facility is. That same staff will have to work with a farmer to
implement Minnesota's new feedlot regulations, which also have
two sets of rules. One set of rules is much more prescriptive
for a small farmer, to tell them exactly what to do. And the
second set of rules is performance-based, because the large
operators with confinement animal feeding operations [CAFO's]
told us they didn't want the prescriptiveness, they just wanted
the goals they needed to meet. So we wrote our regulations that
way.
Mr. Ose. Has that worked?
Ms. Studders. I would say yes, Mr. Chairman. We've had the
regulations on the books since last October, and when I came on
board in February 1999, there was much contention in Minnesota
about our lack of regulation of farmers and if you were even
being too tough on farmers or too weak on them. And I can tell
you the calls and the letters have dropped immensely since
we've gotten those regulations in place.
Mr. Ose. Well, let me examine the CAFO thing that you've
obviously dealt with, because I know that--I'm more familiar
with the hog production in Iowa and cattle production in
California than I am with what's in Minnesota, but the concept
is the same, in the sense that the discharge--I mean, you point
out that the critical piece to the puzzle is what are you
discharging at the end of the day, so to speak? Now, you
apparently have taken it toward that end as opposed to the
prescriptive end. Is that correct?
Ms. Studders. With regard to the CAFOs, that is true, Mr.
Chairman, yes.
Mr. Ose. And then you've taken that particular approach and
expanded it in the satellite offices beyond just the CAFO/AFO
situation, but perhaps to some more industrial uses?
Ms. Studders. We are in the midst of doing that, Mr.
Chairman. We are in the midst--we are now issuing permits that
are multimedia in Minnesota, and from our perspective in 1996
when Minnesota passed that law giving our agency the
flexibility, we were allowed to start doing those things.
Mr. Ose. Does the stovepiping of EPA, the air, land, water
issue, is that one of our impediments here?
Ms. Studders. Mr. Chairman, it's a double-edged sword. It
is both an impediment and something that is very valuable, if
that makes any sense.
Mr. Ose. It does.
Ms. Studders. When we made changes to our organization last
fall, we reinstituted what are called media leads. For us to
interact with the Environmental Protection Agency [EPA].
Mr. Ose. Media leaks?
Ms. Studders. Media leads.
Mr. Ose. I'm familiar with those.
Ms. Studders. Not leaks; a lead. We did that because it was
very difficult for EPA to talk to us. They didn't know who to
talk to, who was in charge of water in Minnesota, because we
had perhaps a dozen people handling water in Minnesota. And so
we have both a hierarchical relationship in our State now as
well as a lateral relationship.
And to simplify it, I'll tell you that if we have seven
offices, each of the offices work on water, but there is one
person now in charge of water, so that they have an indirect
relationship reporting in to that individual as they operate
their water programs. But they don't all report to that person,
because as they are out there working in the field--as my
fellow commissioner said--air deposition is very often
impacting water; my staff need to be looking at the impacts of
air and water together. And if I kept them organized by air and
water, they just weren't able to do that. It was too difficult
culturally for them to have that interaction. Now they are much
more amenable to having such an interaction.
Mr. Ose. All right. My time is expired. Mr. Otter.
Mr. Otter. Thank you, Mr. Chairman.
Ms. Nishida, in your testimony you indicated that you lack
certain aspects of Mr. Horn's legislation which called for the
establishment of a statistics bureau and creates an independent
bureau within the EPA dedicated to environmental statistics. Is
this something that you support, even though you indicated that
you prefer the clean bill? But if in the restructuring of the
EPA we were to establish that kind of a department, would you
have a little more belief in the information that you get from
EPA?
Ms. Nishida. I think as you have heard this morning,
managing data is one of the challenges that EPA has, along with
the States. And so I think by creating a bureau of statistics
or however we name that bureau, we would assist States in being
able to assure more complete and accurate data. So to that
extent, yes, I think that this would be an improvement with
regards to looking at the structure at EPA.
The question that I was pointing out was that some of the
other provisions in the reform bill are more complex and may
require more careful evaluation before proceeding and therefore
might delay the elevation of EPA.
Mr. Otter. Do you think it would be more advantageous for a
Cabinet-level EPA Director to make those kind of important
structural changes? Is the EPA director stopped from doing that
now because she doesn't have Cabinet-level position to make
those changes?
Ms. Nishida. No. I think it would be hard for me to say
that the EPA Administrator is prohibited now from doing that
because she doesn't have the Cabinet-level status. I think what
is important to point out that in her ability to interact with
other Cabinet-level agencies, she needs to have the same level
playing field.
And I'll just give you one example. In the area of air
quality regulations, she has to interact very closely with the
Department of Energy and the Department of Transportation. What
we have found at the State level, that some of the changes that
are now being considered in air quality protection and
statutes, EPA doesn't necessarily have the same level playing
field and the same access to the information and to the
decisions that we think that a Cabinet-level status might
afford her. And as I mentioned, most of the States in the
country have Cabinet-level environment departments. Certainly
Minnesota and Maryland are two of them.
Most recently, at the last ECOS meeting, which is the
environmental commissioners across the country, they supported
a resolution where the State commissioners recommended to
Congress to elevate EPA. So this is something that is
important, I think, at the State level to give the
Administrator that equal footing.
Mr. Otter. The term ``interaction,'' I'm a little confused
by that. One of the other committees that I serve on is the
Transportation Committee, and the subcommittee that I serve on,
that has to do with water and also with pollutants, air
pollutants. We've got a turnpike in New Jersey that is 6 years
yet to be built because the EPA has not permitted it. We've got
a bridge in Tennessee that's about the equal number of time.
I've got a stretch of highway in my State that kills 34 people
a year that we've not been able to go forward with on
construction because we haven't gotten the EPA permit.
What kind of interaction are you talking about? I mean,
they can deny the permit. We can't go forward with the
construction in transportation.
Ms. Nishida. Well, again, certainly I'm not suggesting that
there isn't communication between a Cabinet-level agency and an
agency like EPA. What I'm suggesting, though, that on some of
the important policy issues that are before this Congress in
terms of what new steps that this country needs to move toward
in terms of air quality initiatives that you have heard about
recently like the President's Clean Skies Initiative--that
those are the types of issues that we believe from a State
perspective, that EPA should be on a level playing field, on
equal footing with the other Cabinet agencies, because the
environmental aspects of those policy decisions are critical
and need to be considered in that equal footing.
Mr. Otter. I understand that, but I'm also, I guess,
concerned and maybe perhaps a little confused when you overlay
the Clean Skies with the Jobs Initiative and you see that we've
got over $14 billion in highway projects that are being held up
that could put over 400,000 high-paying jobs to work in this
country, and they're being held up because of one of the three
environmental considerations.
And the question is, are they dealing with true science?
There's a conflict between the two that is greater--and not
necessarily that the two goals can't be achieved, but right now
it appears that they can't be achieved. And so whether it's
agreements or whether it's ability to sit at the same table and
make these kind of decisions, I would hate to arrive at a
structure, whether it's at the Cabinet level or what, that
makes it worse.
Ms. Nishida. Well, I think you raise the issue of the
dichotomy between economic development and environmental
protection. And like you, I know that we can achieve both
goals. They don't need to be mutually exclusive. They don't
need to be necessarily adversarial in terms of their outcomes.
And Congress has passed a law that requires that any
transportation project, whether it's a highway project or a
transit project, be able to conform with the Clean Air Act that
you have also passed. And as a part of the responsibilities
that EPA has to assure transportation and clean air conformity,
they have had to take a close look at some of these
transportation projects. I'm not familiar with the one,
obviously, you're referring to. I can tell you that with
regards to the transportation projects in the State of
Maryland, we work very closely with our transportation
counterparts. We work very closely with EPA in trying to
resolve the conformity issue, because it is a very complicated
and difficult issue to resolve. But I think that the fact that
I'm a Cabinet-level agency gives me the greater ability in
terms of dealing with my transportation colleagues. That's not
to say that I want to put an obstacle to any transportation
projects. We just have to understand what the environmental
impacts are so that when we submit our State implementation
plans to EPA to meet the Clean Air requirements, there is
conformity.
Mr. Otter. I understand that. Mr. Chairman, in the second
round, I will come back and I will wonder out loud why the EPA
took Maryland's Clean Air standards back and is now operating
your Clean Air.
Ms. Nishida. I can answer that.
Mr. Ose. I thank the gentleman. Ms. Studders, it's clear
that you and the Governor of Minnesota are certainly trying to
innovate in how you address these challenges we face, and I
admit to significant admiration for your efforts. How
frequently do you seek to innovate? I mean, is it an ongoing
process?
Ms. Studders. Mr. Chairman, innovation is a tool that we're
trying to foster within our staff, just like enforcement is a
tool, just like writing a permit is a tool. I think what is
interesting is that--I really do believe Minnesota has been an
environmental leader in this country, and I think part of it is
the pristine lakes we have in the Boundary Waters Canoe Area,
and just the value that Americans place on that sort of real
estate.
The innovations start at the States, and Minnesota was one
of the prime States that pushed for the Environmental Council
of States to negotiate the agreement that the GAO talked about
in their report that I read last night, between the States and
ECOS. That was Project Excel, one of the agreements that we
were trying to help fix that had been passed.
I can tell you, Minnesota has similarly been very
disappointed with the amount of hours we have put of staff time
into innovations and for the lack of a result that's better.
Mr. Ose. What kind of obstacles have you run into?
Ms. Studders. When we sit down and work with companies that
want to innovate and sit down with regional EPA, it's not
uncommon to put 1,000 hours of staff time into talking about
doing something; yet the permit is not even issued.
Mr. Ose. Is it a conflict between a culture that relies on
a prescriptive mandate versus a culture that looks at an
outcome?
Ms. Studders. Mr. Chairman, very much so. If you look at
the Clean Air Act as an example, it's very prescriptive of how
to protect the environment. It's not prescriptive as to what
the goal is.
Mr. Ose. But those standards of how to protect the
environment were written in 1971 or 1972. Is that one of the
problems we have here?
Ms. Studders. Mr. Chairman, I believe the Clean Air Act was
actually amended a couple of times.
Mr. Ose. Well, the amendments that--we've had some
amendments in the early nineties, for instance.
Ms. Studders. Yes, I believe so; and that's why Minnesota
wrote the Innovations Act that allowed us to not follow that
prescriptiveness, so long as we were meeting the same CAA goals
and allowed that to happen. I can tell you that we could not
even have experimented with Project XCel if our State
legislature had not passed that statute.
Mr. Ose. Now, I'm told that in the past year or so, you
haven't sought any EPA approval of innovative programs at
Minnesota. Is that accurate?
Ms. Studders. What I would believe is accurate--it's yes
and no. We have two that we have further pursued, one with the
Anderson facility and another with--I apologize. I believe it's
an IBM facility. I may have the wrong name, but we have not
tried anything else. That is correct.
Mr. Ose. Why not?
Ms. Studders. Because the amount of stakeholder time and
the amount of staff time, in my mind, it's not cost-effective.
And I'm probably the first MN commissioner that's saying, how
cost-effective is this?
Mr. Ose. So someone at the State may vet a program, or a
proposal, more accurately, that gives a better environmental
outcome in terms of level of emissions or pollutants that are
put into the environment than the current prescriptive mandate.
Ms. Studders. Yes.
Mr. Ose. And the State of Minnesota has elected not to
pursue that because the culture, if you will, at EPA doesn't
seem to be very receptive to that?
Ms. Studders. Mr. Chairman, I wouldn't be quite that broad.
Minnesota still has its innovation statute on the books, and I
have not asked that the legislature remove that by any means.
We are operating under that statute with respect to several
permits that we did successfully get through, where the State
was able to make those decisions with delegated authority. But
to the extent where we have to involve EPA, our success record
has not been very good.
Mr. Ose. So once you get into an area where there's no
clear delegation of authority, that's when you tend to bog
down; when there's a prescriptive element to any consideration
you're making, there's little flexibility provided?
Ms. Studders. Mr. Chairman, that is correct. And in
fairness, we very often can get the flexibility at the region,
and then we get stuck at headquarters.
Mr. Ose. So the region might sign off on it, but then when
it goes up the chain you get resistance?
Ms. Studders. The closer you get to headquarters, the more
you're involved with media management and very much the silos.
Mr. Ose. The stovepipe issue?
Ms. Studders. Yes.
Mr. Ose. One of the things that occurs to me in listening
to your earlier testimony is that you reengineered--these are
my words, not yours--you reengineered your stovepipes in an
effort to expedite this innovative process that you've created
in Minnesota. It almost seems as if you reengineered to,
frankly, more effectively deal with stovepipe challenges you
face not the regional level but the national level. Am I
accurate?
Ms. Studders. I would say with our recent change, that is
accurate.
Mr. Ose. OK.
Ms. Studders. For point of information, I think it's
important to understand--if I could, Mr. Chairman--if we can't
interact with EPA well at the State level, we stand to lose a
significant amount of Federal funding.
Mr. Ose. I understand.
Ms. Studders. And in fairness to EPA, if we aren't
organized in a way that can somehow interact with their
existing structure, it does get to be problematic.
Mr. Ose. The situation I'm most familiar with--and this may
be the case up around Minneapolis, St. Paul--is that there is a
mandate in terms of what can go into automobile fuel, even
though industry tells us now that they can accomplish a more
efficient outcome if they're allowed to use a different
chemical or manufacturing process. And it's this kind of
innovation that I want to find a way to encourage, as opposed
to frustrate. It's outcome-based rather than legislatively
mandated, and that's the thing I keep driving at with
Minnesota's success.
I'm trying to figure out how to, frankly, push that up the
chain rather than have things sent down the chain. So I
appreciate you coming.
Ms. Nishida, I want to go to Maryland's experience. I've
particularly followed the Chesapeake Bay program, and I'm
highly complimentary of that. I do want to enter into the
record the short synopsis that I have here about the agreement
between the States and EPA. I do want to note publicly that the
signatories to this document dated December 9, 1983 are the
Commonwealth of Virginia, the State of Maryland, the
Commonwealth of Pennsylvania, the District of Columbia, United
States of America, and the Chesapeake Bay Commission. So we've
had for roughly 20 years some evidence of an ability to
interact successfully in a manner that leaves EPA, as I read
this document, leaves EPA as the Chair of the Chesapeake Bay
Council. Is that accurate?
Ms. Nishida. No. What happens is--Mr. Chairman, the Chair
rotates every year. And so this year it is Mayor Williams of
the District of Columbia who was nominated by his peers to be
the Chair of the Chesapeake Bay program.
Mr. Ose. The balance is accurate, though?
Ms. Nishida. Yes. The bay agreement that you're referring
to is the one in 1983. Most recently, there was an agreement
last year that set even higher goals with regard to our
commitments, and actually set very ambitious goals that we are
working now to achieve.
Mr. Ose. Briefly, if you would, summarize those goals. Are
they empirical in nature, or are they----
Ms. Nishida. They are empirical in nature. One goal is in
terms of wetlands. The Chesapeake Bay States have agreed to
restore 25,000 acres of wetlands in the Chesapeake Bay area.
Another goal is that we are going to reduce the negative impact
of sprawl by 30 percent, I believe. I might have that exact
percentage in error, but as you can tell from those two
examples, they are empirical goals that the public can hold us
accountable to.
Mr. Ose. All right. Is that a dynamic program? In other
words, you say this was adopted last year.
Ms. Nishida. Yes.
Mr. Ose. Do you periodically review it and update it?
Ms. Nishida. Yes. It is a very dynamic program in which new
goals are set. For instance, one of the goals that was
originally set was that we were going to reduce the amount of
nutrient pollution into the bay by 40 percent. That was to
occur in the year 2000. We are now reevaluating that
commitment, trying to understand whether we need to set new
goals with regard to nutrient reduction and, as I alluded to,
set new and different goals with regards to resource protection
or land use.
Mr. Ose. How do you get the science to determine what the
goal should be?
Ms. Nishida. We have a scientific advisory committee that
is chaired by some of the eminent scientists within the region,
and they essentially advise what we call the principal staff
committee, which includes the Cabinet secretaries from amongst
the region. They will make recommendations with regards to some
of the scientific background and goals that the States should
then set, and then we--it's our obligation to develop
strategies to meet those goals. So there's a science and
technical advisory committee that's created by the Chesapeake
Bay program.
Mr. Ose. So the science and technical advisory committee
will look at the bay as a whole and say, all right, our
analysis indicated that we've got a problem here, here, here
and here, and those may be different media, obviously different
geographic areas. Does the science and technical advisory panel
also make a recommendation as to the priority with which the
Chesapeake Bay program should proceed?
Ms. Nishida. They do make recommendations with regards to
priority areas that need to be addressed. One of the things
that we have found over the years is that the Chesapeake Bay
program is very comprehensive. It started out originally as a
water pollution problem and had a water pollution focus. But in
the last agreement I just referred to, there are goals on air
pollution, there are goals on transportation, there are goals
on brownfields.
And so we have now, since the evolution of--since 1983,
gone to the other media, and it is truly a much more
comprehensive approach. It's not just a watershed-based
approach, though it is primarily water-based focused.
Mr. Ose. And EPA signed off on this?
Ms. Nishida. Yes, and EPA has signed off.
Mr. Ose. How is it that--I don't know how to put this
delicately so I'm not going to try. How is it that you've been
able to succeed in achieving, if you will, some cooperation on
this, frankly, comprehensive approach, and yet Ms. Studders has
some difficulty in creating the same kind of innovative
approach in Minnesota?
Ms. Nishida. Well, not knowing enough about, obviously----
Mr. Ose. I mean, we may very well compare you to Minnesota,
but I don't want to jeopardize Ms. Studders' job.
Ms. Nishida. Right. Well, let me, I guess, describe what we
think are the features that created the success with regards to
the Chesapeake Bay program. One, we had the commitment from the
highest levels of government, as you can see, and that
document--it is the Governors who signed the agreement.
Second, when the agreement was signed, all of the measures
were voluntary, so that some of the goals that were to be
achieved were going to be achieved through voluntary measures.
What has evolved is we've realized it has to include a mix of
regulatory measures.
The third thing is that even though we set an overall goal
for restoration of the Chesapeake Bay, each individual State
can adopt their own individual strategies, so it's not
prescriptive to the States in that sense. Maryland and Virginia
take very different approaches to land use. We have a land use
goal, but each State can meet it according to its own
approaches.
And then the fourth thing I would say is the very active
involvement we have with our stakeholders. I mentioned the
scientific community. We have also actively gone out to the
regulated community--to the industry. We have businesses for
the bay, which includes our chemical manufacturers. We have
farmers for the bay. We have even, most recently, a
homebuilders signed agreement to address the commitments in the
Chesapeake Bay program.
And so I think that, again, unprecedented level of
cooperation, both at the government as well as the private
sector, has contributed to our success.
Mr. Ose. My time is expired. Mr. Otter.
Mr. Otter. Ms. Nishida, when we left last, I had said that
I would come back to you with a thought out loud about the EPA
having to take over Maryland's air program. Why did that
happen? Was Maryland not meeting these standards?
Ms. Nishida. No. I'm glad you raised that. That's the title
V program. What happened was EPA determined there was a
deficiency in our title V program. The deficiency did not have
anything to do with the air quality and protections of our
regulations. Rather, it had to do with a legal issue of citizen
standing. The Maryland citizen standing law is much more
restrictive than the Federal Constitutional protections for
citizens in terms of access to court. So EPA advised us that we
had to correct that deficiency.
We actually went into our legislature a number of times to
correct environmental standing. Unfortunately, we were met with
a lot of opposition from the business community, who were
afraid of increased lawsuits as a result of having the broader
standing. And, frankly, we were actually glad that EPA took the
program back, because now as a result of that, the business
community for the first time testified this January in our
legislature in support of expanded standing, because they did
not want to have to go to Philadelphia to get their permits.
Mr. Otter. I understand that. We, I guess, had something
like that happen to us similarly in Boise, and it is
unfortunate, but you know when the question comes between the
individual's Constitutional right, I don't think that ought to
be diminished in any way. And having been a businessman, you
know, I know how tough that can be.
So perhaps with some of the tort reform that we have
engaged in and what we've already passed in the House--and Lord
knows what's going to happen to it in the other body--but
perhaps we can correct some of that, while not diminishing the
Constitutional standing of the individual in favor of anybody
else, including the government. Hopefully we'll be able to go
forward with that.
Has the EPA ever taken over any other program, solid waste
or water?
Ms. Nishida. In terms of the State of Maryland, no. That
was the first program that we lost delegation for, and
unfortunately we had the dubious distinction of also being the
first State in the country of losing title V delegation. But
our hope is, because the legislation has now passed, though it
hasn't come to the Governor's desk for signature yet, that we
can get the program yet. We have not lost anything else.
Mr. Otter. So because of the legalism rather than the
presence of any problem that was going to endanger the
environment, you lost the title V; is that fair?
Ms. Nishida. That is fair.
Mr. Otter. So that is not something that you would correct
or try to find some sort of arbitration method for establishing
a program where that didn't happen again?
Ms. Nishida. No. We have found, at least in our region,
where we have had difficulties with regards to program
delegation, that we have been able to work it out with the
region satisfactorily, so that we've been able to retain the
programs.
Mr. Otter. During your testimony, you spoke of the
Chesapeake Bay, and I have to tell you when I first came to
Congress--and I've only been here a few months, I guess 14 now,
15.
Mr. Ose. Seems like yesterday.
Mr. Otter. Seems like yesterday. That one of the first
gentlemen I met was a fellow by the name of Wayne Gilchrest.
And Wayne had made a statement in the Transportation Committee
that I was really concerned about. And I talked to him about
it, and I said, I want to make you a deal, Wayne. I won't make
any decision that adversely affects Maryland without talking to
you. It doesn't mean I'm going to vote your way necessarily.
And you won't make a decision that adversely affects Idaho
without talking to me first. And you don't have to vote my way;
just listen to my argument.
I ended up voting for the Chesapeake Bay, I think it was
$350 million for the Chesapeake Bay cleanup, simply because of
that agreement with Wayne.
And, you know, I hope that's the kind of cooperation that I
hope will continue for me in this Congress, because so many
times we try to do things in our own States and within our own
little world that can adversely affect anybody else. And this
inconsistency that we have coming from the EPA, Wayne and I
have since had many, many opportunities to talk about things
that are happening in Idaho.
For instance, 3 years ago, we burned 880,000 acres of
forest, and that's all on the watershed, and all of that
water--and ostensibly we weren't allowed to go in and harvest
or thin that forest on a sustainable yield, sustainable cut
basis, because we would have degraded the watershed.
I have since asked the EPA if they will make an
environmental assessment of whether we do more damage to the
watershed by burning it or do more damage to the watershed by
going in and selectively harvesting it. And, by the way, Wayne
is not fully my way yet, but he's coming my way.
It is fortunate that States like Maryland have been able to
work out a cooperative agreement on an important water body
like the Chesapeake Bay, because it truly is a national
treasure and something that we all ought to be concerned about.
But I would have to tell you, if I hadn't had the opportunity
to talk to Mr. Gilchrest, I probably would not have voted for
that bill.
Ms. Nishida. Well, we are obviously very proud of
Congressman Gilchrest. He is our strongest advocate in the
State of Maryland and obviously here on Capitol Hill, and so I
will certainly pass on your comments to the Congressman.
Mr. Otter. It doesn't change the fact that he can be a pain
in the tree stump sometimes, but he's a great guy.
Ms. Nishida. Me, too.
Mr. Otter. Thank you. Thank you, Mr. Chairman.
Mr. Ose. Wayne did that to you, too? I have to give
Congressman Gilchrest credit. He is quite an operator up here.
He did that same little dance with me, too. And I do enjoy
working with Wayne.
On the screen over here--you probably can't see it very
well--but that is a chart of the organizational structure in
the executive portion of the EPA under this and past
Administrators. There are 22 direct reporters to the
Administrator. The reason I put that up there is that I keep
coming back to this issue of why is it that we can make
something happen in the Chesapeake Bay that has been so clearly
beneficial to the environment and the surrounding States, and
we have such difficulty in a different region in making the
same kind of thing happen.
I've asked questions earlier, to the other panel in
particular, about the various bills before us and whether an
office of science, or office of implementation, or an office of
enforcement are appropriate levels of management to basically
collect and reconcile these decisions.
Now, Ms. Studders, you said earlier, in response to a
question on innovation, that it's very frustrating from your
perspective in terms of staff and the like to pursue these
things.
Ms. Nishida, you indicate that last year the Chesapeake Bay
program was updated to reflect a significant evolution in what
its objectives were and that EPA signed off on it. Those are
two diametrically different messages I'm getting here. And I'm
trying to figure out structurally, is the problem in the
structure where you have different regions who take different
approaches? I mean, what is the impediment here? Ms. Studders.
Ms. Studders. If I can, Mr. Chairman----
Mr. Ose. You need to turn on your microphone.
Ms. Studders. I'm chomping at the bit here to tell you
something, and I would draw this parallel: I think that
Secretary Nishida's example is a good one of a success. I don't
want to leave you with the impression that Region 5 or
Minnesota is not capable of similar success. Please. I believe
the Great Lakes are being handled exceptionally well. We have
eight States involved. I think there are five States in
Chesapeake Bay--four.
When you get multiple States involved, there's power in
numbers at the State level. And when there's multiple States
involved, I really do think EPA has come to the table a little
differently, and I think part of that is because you have to go
pretty high up at EPA when you're dealing with multiple States.
I think we're managing the Great Lakes exceptionally well,
considering they too are a treasure, and we're sharing them
with an international partner, and I believe we have eight
States around the Great Lakes.
A similar successful example I would cite is down in the
Gulf of Mexico where we were dealing with the hypoxia down
there. I'm honored to serve on the congressional task force,
but I can tell you it's a very different relationship when
there's multiple States at that table.
Mr. Ose. For what purpose, though? Why should that be
different?
Ms. Studders. I think it's pretty simple. I think when
you're dealing with a permit with one State, you're dealing
with an individual at EPA and that individual's supervisor or
manager, and they're typically in a media-led program, and
there's a right or wrong answer, primarily because they're
concerned about litigation and having something upheld in
court.
I think when you're dealing with a much more policy-
orientation about how are we going to manage this resource and
what sort of goals we should set to improve the quality of this
resource, you're doing it much more methodically, much--very
differently than the Clean Air Act or the Clean Water Act, and
you're applying normal management skills to a problem.
The issuance of permits and enforcements aren't normal
management skills. They're very prescriptive output-measured
ways of doing things.
Mr. Ose. Ms. Nishida, do you want to add anything to that?
Ms. Nishida. Well, I guess I would agree with my
commissioner with regards to the two different aspects to
interacting with the States and the structure that's before
you. When you are dealing with a specific industry or a
specific permit or enforcement issue and there are
disagreements amongst the States, it's much harder to resolve.
That is, even though we are obviously very successful with
regards to our commitment to restore the Chesapeake Bay as a
resource, as I mentioned, we were all left to our own devices
in terms of how we protect that resource.
What it comes down to, I guess, is sometimes in individual
permit issues, Maryland may take a very different approach than
Virginia EPA has to come in and then negotiate this, and that
is not always easy with regards to resolving a very specific
permit issue or enforcement issue.
Mr. Ose. But you've proven that it can work?
Ms. Nishida. Well, we have proven that it can work, as I
mentioned, in terms of broad goals that we are trying to
address. As I mentioned--take, for example, the wetlands goal
in terms of restoring----
Mr. Ose. 25,000 acres.
Ms. Nishida. The 25,000-acre goal. We may, in Maryland
approach that from a regulatory standpoint. In other words, we
may choose to impose more prescriptive regulations to get the
25,000 acres. Virginia may take a more incentive-based approach
to do that.
What I guess the strength of the Chesapeake Bay program has
been is, you have outcome goals that you prescribe for each
individual State, but you let the individual States prescribe
how you're going to perform those outcomes. And I think the
more that EPA tries to prescribe outcomes on States, that's
when you run into more of the difficulty.
Mr. Ose. You said that far more eloquently than I have been
able to say that yet this morning.
Mr. Otter.
Mr. Otter. Ms. Studders, in your answering a question to
the chairman during this last go-round of questioning, you
indicated how much easier it was for five States to get
together, or, I should say, how much easier it was to get
something, some reaction from the Environmental Protection
Agency; because several States get together, and that's
precisely the reason when we write a memo to the chairman, we
get as many other of our colleagues to sign that as we possibly
can, to say that this is not just one individual.
Now, let's take that from there to the private landowner or
the private citizen, the private farmer, that you mentioned
earlier. You know, for Archer Daniels Midland, or for some
company like that to file for an environmental permit because
they want to do something on 40 acres is much, much different
than for the mom and pop that own that 40 acres and that's
their equity, that's their livelihood, that's everything.
And I don't know if you've ever filled out a--is it a 404
national permit? Have you ever seen those 404 national--on
wetlands? But to ask mom and pop to sit down at the breakfast
table and to fill that thing out is absolutely impossible. And
what's even more frustrating is when they call you and they
say, Congressman, we went down to the local EPA and we went
down to the local Army Corps of Engineers folks and asked them
to do it, and they said we had to go hire somebody for $182 an
hour. We had to go hire an environmental engineer to do that.
If we're truly the servants of the people, why is it that
we don't engage in the EPA, folks like we do in the IRS, and
some now in the IRS; because if you walk in and you've got a
major tax problem, they assign somebody to sit down, and they
don't charge you, and they guide you through the process so
that you can fill out something as important every year as your
tax return.
Why can't we do that for folks with a 404 national permit
so that they can dig an irrigation ditch on their property or
so that they can build something on their property? Why don't
you get those five States together and go to the EPA folks and
say, why don't you simplify the permit so that it's a one-page
thing and mom and pop can sit down at the breakfast table over
a cup of coffee and have some sort of control over their life
and their property?
Ms. Studders. Mr. Chairman and Mr. Otter, I will see if I
can do justice to that very well-worded question. I'm going to
try to simplify it, because I think that's part of the core of
what we're all grappling with in how we improve environmental
protection in this country with limited resources.
The world of pollution has changed in America. And I can
quote you the Minnesota statistics, not the national, so I'll
keep it to my home turf that I'm much more familiar with. I
won't use the 404 form per se, but I'll say when the
regulations were written to create such a document, most of the
air pollution and the water pollution was coming from large big
sources, corporations, factories with many employees and very
complicated equipment, and it was appropriate to start
ratcheting down the emissions coming from that equipment.
In Minnesota, to give you an example, it was primarily our
air pollution and our water pollution. Those complicated forms,
they probably had an environmental engineer on staff who
understood and actually operated that equipment and could fill
it out. That's what the laws were written for.
Thirty years later in Minnesota, we have a very different
story. Air is almost 50-50. It's 43 percent coming from our
regulated businesses and 57 percent coming from things I can't
even regulate, that the Clean Air Act doesn't touch--
automobiles and energy. That's where our air pollution is
coming from. It's not coming from the points that I regulate.
Water, it's much more disparate. Only 14 percent of our
water pollution in our State is coming from the factories where
we regulate their discharge from the pipes, from the wastewater
treatment facilities, and from the businesses that are treating
their water before it's discharged. We're the land of 10,000
lakes and we do not have an ability to get our arms around 85
percent of the water pollution in our State with the existing
Clean Water Act!
The way we have chosen to start remedying this in Minnesota
was, we took the feedlot issue first. We are primarily an
agricultural State. Our main source of revenue is agriculture,
and we're very proud of our farmers. And we started
inventorying our farms. We estimated that we had 80,000 farms
in Minnesota. January of this year, we received applications
for feedlots numbering 40,000, and we know we have not had the
entire regulated community--we probably come in about 50
percent. We created a general permit, which the Clean Water Act
does allow us to do and the Minnesota comparable law does, and
we're issuing general permits to small farmers, a very simple
form. He or she can sit down at the breakfast table and fill
that form out with their spouse.
If you're a large CAFO in Minnesota, you're filling out a
much more detailed form as prescriptively regulated by the
Clean Water Act, but we feel you're capable of doing that. If
you're Archer Daniels Midland, you have people on board that
understand the ramifications of a facility of that size and
understand how to operate a facility of that size responsibly
and can fill that out. So we've handled it very differently.
Mr. Otter. Thank you, Mr. Chairman. Thank you.
Mr. Ose. I have nothing further.
I want to thank our witnesses today. We're going to leave
this record open for 7 days. We have some questions that may
arise here as we think about this over the next 24 hours. We'd
like your cooperation if we send them to you, to have a
response in writing.
We stand adjourned. Thank you both for coming.
[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]
EPA CABINET ELEVATION: AGENCY AND STAKEHOLDER VIEWS
----------
TUESDAY, JULY 16, 2002
House of Representatives,
Subcommittee on Energy Policy, Natural Resources
and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:05 p.m., in
room 2154, Rayburn House Office Building, Hon. Doug Ose
(chairman of the subcommittee) presiding.
Present: Representatives Ose, Duncan, Otter, Cannon,
Tierney, Waxman, and Kucinich.
Staff present: Dan Skopec, staff director; Jonathan Tolman,
professional staff member; Yier Shi, press secretary; Allison
Freeman, clerk; Greg Dotson, Elizabeth Mundinger, and Alexandra
Teitz, minority counsels; and Jean Gosa, minority assistant
clerk.
Mr. Ose. Good afternoon and welcome to today's hearing of
the Subcommittee on Energy Policy, Natural Resources and
Regulatory Affairs. The subject today will be EPA Cabinet
Elevation: Agency and Stakeholder Views.
Mr. Waxman has come in and Mr. Tierney will be back
shortly.
The issue of elevating EPA to Cabinet level status has been
around since the day after the Agency was created in 1970. In
the years since its inception, Congress has passed numerous
environmental statutes expanding the jurisdiction of the EPA.
As its jurisdiction has expanded, the Agency has grown as well.
Today with more than 18,000 employees at work, EPA has an
annual budget of $7.5 billion.
It is important to note that elevating the EPA to a Cabinet
level department will not in and of itself change the Agency's
size, jurisdiction, or effectiveness. The act of creating a new
Cabinet level department is largely symbolic. The important
thing is how and why Congress elevates the EPA, as it may
fundamentally affect not only how the EPA operates, but also
perceptions of the agency and the importance of environmental
issues.
Two bills have been referred to this subcommittee to
elevate EPA to a Cabinet level department. The first, by
Representative Sherry Boehlert, is H.R. 2438 and the other is
by Representative Steve Horn, H.R. 2694. The bills take
radically different approaches. One offers no reforms to the
Agency and the other offers a multitude of reforms. The
principal question facing our subcommittee at this hearing is
what, if any, reform should Congress explore in the process of
elevating EPA to a Cabinet level department?
At our first hearing in September, we heard from the
sponsors of the elevation bills. In addition to them, a number
of policymakers from the academic community testified about
whether elevation should proceed with or without certain
legislative reforms. At the second hearing last March, we heard
from EPA's IG and the General Accounting Office. Both
identified numerous organization and management challenges
faced by the Agency. In addition, we heard from State
Environmental Protection Agency heads. Most of our major
environmental laws are delegated in some fashion or the other
to the States. State agencies are not only the work horses when
it comes to environmental protection, but are also innovative
leaders. This as yet unchallenged assertion begs any number of
questions, some of which I hope to get to today.
When EPA was created in 1970, this country faced widespread
and daunting environmental challenges. We have made great
progress in the cleanup of large industrial pollution that
plagued our Nation 30 years ago. Many of the pollution problems
we face today come not from large industrial sources but from
the actions of every day citizens, from our cars, our yards,
our homes, our cities, and our farms. These are more complex
and intractable concerns that seem to defy the simple solutions
mandated by the first wave of environmental laws.
While elevating EPA to a Cabinet level department is an
important gesture, it is clear that more flexible and
innovative approaches are needed to find solutions to the
second wave or second generation of environmental problems, not
just for the problems we face today, but for the environmental
problems that we will undoubtedly face in the future.
By 2025, the population of the United States is expected to
reach more than 335 million people. That means we will have 50
million more people than we have now. Think about the amount of
food, water, housing, and energy consumed by an additional 50
million people. It understates the case that this could put a
strain on our environment. If we are to prepare for these
changes, we must begin to think about different approaches to
environmental regulation. The old command and control approach
won't get us where we need to go. It is largely inflexible and
some of the compliance costs are excessive. The time has come
for us to look at innovative ways to manage our environment.
High standards of environmental protection are a must, but
individuals must have the flexibility to meet those standards
in new ways. Government bureaucrats should not be environmental
bean counters but instead, environmental managers. The goal
should not be the number of permits issued or the amount of
money spent, but rather, the ultimate result which is a cleaner
environment.
While we do face some daunting problems, there are some
reasons to be hopeful, areas where environmental innovation and
experimentation have worked. For example, the 1990 Clean Air
Act amendments, in which many of my colleagues on this panel
participated, introduced the novel concept for controlling
sulfur emissions from powerplants. Instead of requiring
specific clean technology at every plant, sulfur emissions were
capped as a whole for the whole country. Powerplants were
forced to either reduce their own emissions or buy credits from
other plants that were in fact reducing emissions even further
than they were required. At the time, environmental economists
predicted this would be a more efficient way to reduce
pollution and in fact, the program was even more successful
than had been predicted, with powerplants reducing sulfur
pollution even more effectively than anyone had thought.
To its credit, this administration has seen the success of
such emissions trading programs and is seeking to expand them.
The administration's Clear Skies Initiative seeks to expand air
emissions trading beyond merely sulfur emissions. In addition,
EPA recently proposed a water quality trading policy that
promotes the use of pollution reduction credits for trading in
watersheds.
As our committee looks at elevating EPA, we want to ensure
that the Agency has an organizational and management structure
that allows such successful, innovative environmental policies
to be the rule, not the exception. Today's witnesses include
the Administrator of EPA, Governor Christine Todd Whitman; the
chairman of the Council on Environmental Quality, Mr. James
Connaughton; the president of Environmental Law Institute, Mr.
J. William Futrell; vice president for Environment and
Regulatory Affairs, U.S. Chamber of Commerce, Mr. William
Kovacs; and a senior fellow for environmental economics,
Natural Resources Defense Council, Mr. Wesley Warren.
[The prepared statement of Hon. Doug Ose follows:]
[GRAPHIC] [TIFF OMITTED] 82666.116
[GRAPHIC] [TIFF OMITTED] 82666.117
[GRAPHIC] [TIFF OMITTED] 82666.118
[GRAPHIC] [TIFF OMITTED] 82666.119
[GRAPHIC] [TIFF OMITTED] 82666.120
Mr. Ose. I would now like to yield to my friend from
Massachusetts for the purpose of an opening statement.
Mr. Tierney. Thank you, Mr. Chairman.
I am going to submit my statement for the record and allow
the witnesses to testify.
I would simply say I hope we can move the EPA up and
elevate it to the status I think it deserves and warrants. I
would note the Congressional Research Service found that of 198
governments worldwide, all but 9 include their environmental
agency at the administerial level. I am hoping we will be able
to do that with a clean bill and not get bogged down on the
internal machinations of how the Environmental Protection
Agency works.
With that, I yield the balance of my time and submit my
statement for the record.
[The prepared statement of Hon. John F. Tierney follows:]
[GRAPHIC] [TIFF OMITTED] 82666.121
[GRAPHIC] [TIFF OMITTED] 82666.122
[GRAPHIC] [TIFF OMITTED] 82666.123
[GRAPHIC] [TIFF OMITTED] 82666.124
[GRAPHIC] [TIFF OMITTED] 82666.125
[GRAPHIC] [TIFF OMITTED] 82666.126
Mr. Ose. The gentleman's statement is accepted for the
record without objection.
The vice chairman of the subcommittee, Mr. Otter.
Mr. Otter. No.
Mr. Ose. My good friend from Los Angeles and Beverly Hills,
Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman. As a result
of redistricting, it is Los Angeles, Beverly Hills, and many
other cities.
I am pleased to see Administrator Whitman here today.
I have long supported the elevation of EPA to a Cabinet
level department because of the great importance of its job and
the respect I have for the EPA staff. The American people
should take pride in the performance of this Agency over the
last decade. Most of the staff at the EPA are professionals who
care deeply about their work. These government employees have
chosen their careers because they want to protect public health
and the environment. Over the past decade, they have had a long
list of successes.
In the 1990's, EPA worked with industry, the States, and
environmental groups on initiatives such as updating health-
based air pollution standards, attacking powerplant emissions,
cleaning up automobiles and diesel engines, and finally,
working to clean up the Nation's rivers and streams, and
starting to address one of the most serious environmental
challenges we face, global warming.
EPA vigorously enforced the law. They caught diesel engine
manufacturers redhanded. EPA found that the Caterpillar Corp.
and some other companies had sold diesel engines that illegally
emitted millions of tons of air pollution. EPA investigations
revealed that electric utilities were flagrantly violating the
Clean Air Act, spewing some 5 million tons of illegal air
pollution each and every year.
Yet with grave disappointment, I have to note the sea of
change that has occurred in the last year and a half. Under
strong pressure from the White House, EPA appears to be in
active retreat from the central purpose of the Agency. Indeed,
the progress of the last decade is quickly being undone by the
Bush administration. For this reason, I question whether this
is the right time to be discussing elevating EPA to a Cabinet
department.
Last month, Administrator Whitman announced that she would
weaken the Clean Air Act's New Source Review provisions,
placing EPA's pending enforcement actions in jeopardy. Then EPA
joined the White House Office on Management and Budget in
announcing it would consider weakening the recently upheld
rules to clean up diesel engines. These actions, if carried
through, will be a major rollback of our clean air program and
could well leave children throughout the country exposed to
unacceptable levels of air pollution.
It seems every day we learn of a new rollback being pushed
by the Bush administration. Just this weekend, we learned that
EPA is considering a plan to jettison efforts to clean up
polluted runoff and yesterday the trade press reported that
Administrator Whitman may backpedal on penalties for not
complying with diesel engine emission standards. Without
sufficient penalties, companies won't bother to clean up their
engines and the health of the American people will suffer as a
result.
Today I have learned that EPA is considering requiring the
States to weaken their air pollution laws. I would like to
introduce a letter into the record from the State Air
Administrators on this issue.
It is a terrible thing for the Federal Government to ignore
its duties to protect public health and the environment, but at
least you would expect EPA to let the States do the job if EPA
won't. News that EPA would consider preventing the States from
more aggressively targeting air pollution is truly an outrage.
With regard to environmental policy, this administration
has acted abysmally and EPA's interactions with Congress have
been no better. Over the last year and a half, EPA has resisted
necessary congressional oversight, apparently at the direction
of the White House. In fact, EPA has been stonewalling
information requests I have made for months. This is not a
partisan issue. The Constitution provides Congress with
oversight authority, yet both Republicans and Democrats alike
have been critical of EPA's responsiveness to the congressional
oversight requests.
Good government requires responsiveness without resorting
to subpoenas. EPA must address congressional concerns in a
prompt, non-partisan manner, and I am looking forward to
hearing from Administrator Whitman on what changes she will
make at the Agency to ensure that EPA's poor record in
communicating with Congress is immediately improved.
Mr. Chairman, for more than 10 years, I have supported
elevating EPA to a Cabinet level position and I still support
this goal but I don't think it would do much good under this
administration. The whole purpose of elevating EPA is to
enhance environmental protection, but this administration seems
bent on undermining, not strengthening, our environmental laws.
Mr. Ose. Does the gentleman have a letter he wishes to
enter into the record?
Mr. Waxman. I have a letter I would like to submit for the
record.
Mr. Ose. Without objection.
[The prepared statement of Hon. Henry A. Waxman and the
information referred to follow:]
[GRAPHIC] [TIFF OMITTED] 82666.127
[GRAPHIC] [TIFF OMITTED] 82666.128
[GRAPHIC] [TIFF OMITTED] 82666.129
[GRAPHIC] [TIFF OMITTED] 82666.130
[GRAPHIC] [TIFF OMITTED] 82666.131
Mr. Ose. The gentleman from Tennessee.
Mr. Duncan. Thank you, Mr. Chairman.
Thank you for calling this hearing.
After spending my 6 year limit chairing the Aviation
Subcommittee, I now chair the Water Resources and Environment
Subcommittee. In that role, we have many contacts with the EPA.
I can tell you the EPA has been very responsive to that
subcommittee, both to the majority and the minority. There is
just no way they could have been more responsive.
My dad told me many years ago that everything looks easy
from a distance. The longer I live, the more truth I see in
that statement. It is easy to criticize but I said at one of
the hearings of my subcommittee that I thought Administrator
Whitman had perhaps the most difficult, if not the most
difficult, one of the most difficult jobs in entire Federal
Government because it is extremely difficult to reach that
delicate balance that we need to make sure we don't hurt the
poor, the lower income, and the working people in this country
because if we go overboard on anything, you can take any good
thing to extremes. If we go overboard in things that may sound
good on the surface, you destroy jobs, drive up prices, and
hurt the poor, and lower income, and the working people most of
all.
I think Administrator Whitman has been doing a really
outstanding job. I think we do have some serious questions we
need to look at in regard to whether to elevate the EPA. The
big question would be, what could the EPA do then that they
could not do now. That is sort of the threshold question.
We got a Congressional Budget Office report last week that
said it is going to cost us at least $3 billion to create the
Homeland Security Department, just to implement it. I assume
there would not be any similar type cost here, but we have to
look into all of these things.
I just want to thank you and Chairman Connaughton for being
here. He is also in a difficult position. I want to thank you.
You didn't come to my district but you did come close, to the
First District of Tennessee, a few days ago with Sandra Friez
attempting to work with the Congress. I hope you had a nice
visit to the Smokies. I represent about half of the Smokies. I
have the Second District. I appreciate your being here with us
today and I look forward to hearing your testimony.
Thank you very much, Mr. Chairman.
Mr. Ose. Thank the gentleman.
As our witnesses have come to know, in this committee we
swear in everybody, it doesn't matter who you are. So if you
would both please rise.
[Witnesses sworn.]
Mr. Ose. Let me again welcome you both to our humble
committee.
We will first have the Administrator of the EPA offer her
testimony and then we will have the chairman of the Council on
Environmental Quality offer his. We have received your written
testimony and it has been entered in the record. We would like
you to summarize your testimonies within 5 minutes each, so we
can go to the member questions.
Welcome, Administrator Whitman.
STATEMENTS OF CHRISTINE TODD WHITMAN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY; AND JAMES CONNAUGHTON,
CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY
Administrator Whitman. I want to thank you and the members
of the committee for the opportunity to be here this afternoon
to talk about something I think is of great importance,
particularly to the environment and to the American people, the
elevation of the Environmental Protection Agency to the level
of department.
It was over 30 years ago that President Nixon affirmed
America's commitment to the environment by creating the
Environmental Protection Agency. Since that time, the EPA has
worked to fulfill its mission, protecting human health and
safeguarding the natural environment. We have witnessed this
mission take on a whole new meaning since the attacks of
September 11th of this past year. As we have seen, EPA plays a
critical role in protecting our homeland with responsibilities
that range from responding to chemical or biological attacks to
protecting our Nation's water supply. These responsibilities
underscore the significance of the Environmental Protection
Agency.
However, despite the crucial nature of these new
responsibilities, the importance of the EPA is not a new
phenomenon. Since its creation in 1970, the EPA has worked to
preserve the quality and safety of some of our most basic
needs--the water we drink and the air we breathe. The EPA has
helped develop a national appreciation for our natural
resources and an understanding of the integral role that they
play, not just in our economic prosperity but also in our
everyday life.
Economic prosperity and protecting the environment are two
of the paramount goals of American life. EPA is charged with
finding that balance between those two issues to ensure that
America remains both economically strong, but as importantly,
environmentally safe and healthy for the public that we serve.
Fortunately, over the years EPA has enjoyed the support of
Congress and the White House. Establishing EPA as a Cabinet
level department is not a new idea. The first bill to elevate
the EPA was introduced in the Senate in 1988 and since that
time, a dozen similar proposals have been introduced.
Similarly, former President Bush showed his support by
becoming the first President to support elevating EPA to
Cabinet level and involving then Administrator Riley in the
Cabinet meetings and according him Cabinet level status.
President Clinton and President George W. Bush have followed
suit, both supporting legislation and including the EPA
Administrator in the Cabinet. These actions emphasize the
importance that past administrations and our current
administration put on the environment.
Environmental protection is critical to our public health's
security and economic vitality as are the responsibilities that
are under the jurisdiction of other Federal level departments.
Indeed, EPA works closely with many of those departments with
areas of responsibility often overlapping. As an example, EPA
is currently working with other Cabinet level departments,
emergency response teams, and independent experts to address
bioterrorism threats and to develop effective remediation tools
for protecting our Nation's critical infrastructures and the
health and safety of the American public.
Elevating EPA to Cabinet status will ensure that this type
of cooperation and integral working relationship will continue
into the future. The environment is not just a domestic issue.
It continues to play a central role in international relations
as well. This legislation will bring the United States on a par
with other G8 countries and more than 60 others by establishing
a Secretary for the Environment. The time has come to establish
EPA as a full member of the Cabinet. Doing so would be
consistent with over 30 years of environmental work and
accomplishments and with the status of our international
partners.
I am pleased that many in Congress support this crucial
step. The bill Congressmen Boehlert and Borski have introduced
would elevate EPA to Cabinet level status and provide the
Agency with the flexibility that it needs in that transition. I
would like to urge the committee to avoid any extraneous
amendments to the bill and to strictly limit any changes to
those that would improve organizational efficiency and
streamline management. I am requesting your support in
achieving this goal.
Making sure all Americans have clean air to breathe, pure
water to drink, and unspoiled landscapes to enjoy, and
contributing to the safety and the security of our homeland,
this encompasses the mission of the Environmental Protection
Agency and it is a mission that deserves our full support, the
full support of Congress, that Cabinet level status will bestow
on the Agency. Creating the Department of Environmental
Protection will ensure that our environmental and public safety
mission will continue to be a high priority both today and in
the future.
Thank you very much for your time and attention. I will be
happy to answer questions once the chairman has finished his
testimony.
[The prepared statement of Administrator Whitman follows:]
[GRAPHIC] [TIFF OMITTED] 82666.132
[GRAPHIC] [TIFF OMITTED] 82666.133
[GRAPHIC] [TIFF OMITTED] 82666.134
Mr. Ose. We thank you for your testimony, Administrator
Whitman.
Now, we welcome the chairman of the Council on
Environmental Quality, Mr. James Connaughton, for 5 minutes.
Mr. Connaughton. Good afternoon.
Thirty years ago, it fell to my predecessor, Russ Train,
the chairman of the first Council on Environmental Quality, the
task of helping advance the creation and the establishment of
the Environmental Protection Agency. It is my pleasure to sit
here today, as the current chairman of the Council on
Environmental Quality, and take part in advancing the next
critical step in this agency's evolution; that of a Cabinet
level agency.
I am pleased to share this panel with my colleague,
Administrator Whitman, with whom I have enjoyed a wonderful
year of close collaboration and significant environmental
progress.
In EPA's short history, its work has helped transform the
way Americans view the environment. It has planted in the
American consciousness a clear sense of environmental
stewardship. Over this period, EPA has taken on the qualities
we would expect and taken on the mission that we would expect
of a Cabinet department. First, EPA carries out the work of a
Cabinet department. EPA started out by overseeing four major
environmental statutes. Today, EPA implements 15 major statutes
and numerous others, as well as a full complement of grant
programs, voluntary initiatives, technical assistance and
educational programs, and citizen outreach throughout the
Nation.
EPA advances the mission of a Cabinet department. EPA is
reaching out to develop new approaches that promote
stewardship, spur innovation, instill sound science in its
decisions, advancing federalism through greater involvement of
State and local government, and ensuring compliance.
EPA also plays the vital role of a Cabinet level department
in defense of our homeland security. Their expertise is
essential for a Federal response to an act of terrorism that
involves a release of biological, chemical, or radioactive
material.
EPA produces initiatives of national significance that one
would expect of a Cabinet department. EPA designed and is
advancing the President's Clear Skies Initiative, which would
cut the Nation's powerplant emissions of sulfur dioxide,
nitrogen oxide, and mercury by 70 percent. This initiative will
enable hundreds of counties across the Nation to meet national
air quality goals.
EPA possesses the international standing of a Cabinet
department. Our laws, regulations and standards have been
adopted by nations across the globe. EPA's scientific and
technical expertise is respected worldwide and is increasingly
being deployed worldwide.
Finally, EPA's Administrator fulfills the role of a Cabinet
Secretary. When President Bush took office, he welcomed
Governor Whitman to his Cabinet. As EPA Administrator, Governor
Whitman serves the Nation as a core member of the President's
leadership team.
In sum, in the Bush administration EPA carries out the work
and advances the mission of a Cabinet department. In the Bush
administration, the EPA Administrator has the stature, the
standing, and the authority of a Cabinet Secretary. The Bush
administration therefore looks forward to working with the
committee to advance EPA Cabinet status legislation, and to
make official what in this administration is already a reality.
Thank you.
[The prepared statement of Chairman Connaughton follows:]
[GRAPHIC] [TIFF OMITTED] 82666.135
[GRAPHIC] [TIFF OMITTED] 82666.136
[GRAPHIC] [TIFF OMITTED] 82666.137
Mr. Ose. Thank you, Mr. Chairman.
We will now go to questions from Members. Each Member will
be given 5 minutes. If a second round of questions is
necessary, we will have one. I am going to claim time first.
My first question is for the Administrator. Governor
Whitman, in the past you have talked about moving EPA toward a
results oriented environment. I actually had the liberty of
going back and reading some of your recent speeches, which I
found enlightening because embedded in all your remarks is a
real focus on making this results oriented policy approach
stick.
The biggest problem is how do you change a large ship's
direction in a short period of time? I guess the question we
would have is how do we ensure that the agency will keep moving
in the direction you are trying to lead, which is a results
oriented approach? Is this legislation, whether Congressman
Boehlert's, or Congressman Horn's, or some mix of that, is
there something we can use to assist you in this task?
Administrator Whitman. Mr. Chairman, the legislation in and
of itself is not going to change the focus or the purpose of
how we administer the agency. The focus on the results oriented
approach is one that we are integrating into all our planning
now of budget and all of our prioritization.
As Congressman Waxman pointed out, we have an
extraordinarily dedicated staff of professionals, people who
are committed to making environmental progress. They have
welcomed the idea of measuring environmental progress by real
positive changes to the environment. I believe as we continue
to move forward in this way, we are going to institutionalize
this approach. As we develop our environmental report card,
which we are in the process of developing and hope to have
ready before the end of the year to show where we are today and
the status of the environment and where we hope to go, that
will also help determine that approach to the environment for
the Environmental Protection Agency is one that is going to
continue long after this Administration.
Mr. Ose. I do appreciate your touching on the future
because I scribbled in a little note here that none of us lasts
forever, so it is a concern that we find a way to get this
results oriented, empirically measured policy approach in
place.
Chairman Connaughton, the Government Performance Results
Act has created a general framework for agencies to establish a
mission, set goals and objectives to achieve that mission, and
then measure empirically the outcome of these policies and
projects to see if they achieve that. Would it make sense for
Congress to more proactively establish a statutory mission
statement for EPA?
Mr. Connaughton. I think right now we have a well
established framework for EPA's mission, which began with the
National Environmental Policy Act, in terms of its overall
goals and then the kind of statement you just heard
Administrator Whitman articulate, I think they have one at hand
that could be looked at.
I think a goals statement is important but it is also
important to leave the future Cabinet Secretary the flexibility
to have that mission statement evolve as circumstances evolve.
Certainly in your comments you reflected, Mr. Chairman, the
fact that we have had a long and quite rewarding history of the
regulatory apparatus in place in terms of the benefits it has
delivered, but we are at a stage where we need new tools and
new focus to make even greater progress with greater innovation
and less cost. Certainly I wouldn't want to lock us into a
particular construct, so I would want to be flexible on the
goals side.
Specifically, in terms of advancing the metrics and the
mission of the Government Performance and Results Act, we are
dedicated to making that happen. EPA has actually made
substantial strides in making real progress in articulating the
kinds of metrics you just discussed. Certainly the Office of
Management and Budget is a key supporter of that and certainly
in the President's budget submission this year, we made it a
first and critical step in beginning to identify some key
indicators on which we will measure agency performance. Those
indicators were worked out in close collaboration with the
agencies themselves.
Mr. Ose. Are those indicators, the metrics you speak of,
available for congressional review or input or are they
guidance documents?
Mr. Connaughton. The initial steps are actually articulated
in the President's budget submission to Congress, so we are
actually looking forward, as we get into the rest of the budget
season, to quite an extensive conversation about those.
Mr. Ose. Thank you, gentleman.
The gentleman from Massachusetts.
Mr. Tierney. Thank you, Mr. Chairman.
I thank the witnesses for being here today.
During the course of your time in this office, there has
been a great deal of criticism about what some perceive as an
attempt to weaken the broad range of environmental protections,
whether carbon dioxide, or the New Source Rule, the Clean Skies
Initiative, things of that nature. Over the weekend, the
Washington Post reported that you might be planning to reverse
the previous administration's watershed protection rule that
requires the EPA approval of State plans for cleaning up lakes
and rivers. Is that an accurate report? Are you, in fact,
planning to change those rules?
Administrator Whitman. We are looking and our mission is to
see how we can best implement all the rules we have before us.
We are looking at how we provide the States the kind of
flexibility they need to deliver on a watershed-based approach.
We are not talking about backing away from any of our water
regulations, we are not talking about rolling back any of our
Clean Water regulations or Drinking Water regulations. In fact,
I spent the morning talking with all the regional
administrators and assistant administrators on the budget, and
water was one of the first areas that came up for discussion
and a recommitment or an insurance that we are going to advance
the goals of Clean Water in this country.
Mr. Tierney. How is it that you say that moving away from
the current regulation put in by the last administration, how
is that going to specifically move us forward in that
direction?
Administrator Whitman. We are not moving away from any
regulation that the Agency has developed. What we are looking
at is a watershed-based approach as a more comprehensive way to
get at the kinds of challenges we face today. As the chairman
mentioned, one of the biggest issues we face is nonpoint source
pollution, particularly to our watersheds. It comes from
behavior of individuals in places far from where the waters
drain along our coastal waters.
What we need to do is encourage a watershed-based approach,
and we are looking at how do we help the States with that kind
of planning and identifying their most vulnerable watersheds,
what do we do to educate the public? But we are not in the
process of rolling back any regulations that would ensure that
we continue to comply with the Clean Water Act.
In fact, as you know, we have new standards that were put
in place in 1998. What we are looking at is how do we enable
the States to form a partnership that will leverage the
enormous number of dollars that are going to be required to
meet the new standards.
Mr. Tierney. So States will still need EPA approval before
moving ahead with their plans?
Administrator Whitman. Excuse me?
Mr. Tierney. States will still need the EPA's approval
before moving forward with any plans they have with respect to
cleanup?
Administrator Whitman. At this point in time, we are
anticipating continuing to work very closely with States and
tribal governments as our partners. We will look and make sure
that plans they put forward are going to achieve the goals of
the Clean Water Act.
Mr. Tierney. Right now it needs EPA's approval before any
plan goes forward? Are you still going to retain that aspect?
Administrator Whitman. At this point in time, we are still
retaining everything, but we are looking at what is the best
relationship to have and how do we ensure that we leverage all
our resources.
Mr. Tierney. If you are going to attempt any action that
would do away with the EPA's approval of those plans, would you
do it through a public rulemaking process?
Administrator Whitman. Yes. If we did anything, it would be
through a public rulemaking process. What you are talking
about, I believe, is the Total Daily Maximum Load regulation?
Mr. Tierney. Yes.
Administrator Whitman. That article, that was put on hold
by the Congress by the Clinton administration, so that
regulation has been on hold. We have continued that hold as we
have worked. It is an enormously challenging rule. It requires
setting a standard for every single pollutant, of which there
are literally hundreds in some States. Each State has to do
that and we are trying to work with the States to see how do we
best do that, what is the smartest way to do it, how do we
enable them to do it, do we identify those that are most
troublesome from a pollutant perspective first. At this point
in time, we are not talking about rolling back; we are just
trying to make it more effective.
Mr. Tierney. Thank you.
Mr. Ose. The gentleman yields back.
The gentleman from Idaho for 5 minutes.
Mr. Otter. Thank you, Mr. Chairman.
Administrator and Mr. Chairman, thank you for being here
today. I was particularly interested in the questions being
framed by my colleague from Massachusetts in terms of watershed
protection.
Madam Administrator, do you feel that elevating the
position of the Administrator of the EPA to Cabinet level post
would also probably provide you the opportunity to provide
greater national focus on certain issues that may be facing the
Environmental Protection Agency and watershed protection? Do
you agree with that?
Administrator Whitman. Congressman, at this point we enjoy
a very good relationship with the States, a very good
relationship with our other Federal partners, and I am not sure
the elevation would necessarily change that particularly. The
issues that we face are of such national significance that they
get a lot of attention, as we have seen recently, but
certainly, having the Agency become a department can only help
in our ability to implement some of the solutions, to get the
attention of some that we may need to get in order to work in a
collaborative way. It is only going to help us in that effort.
Mr. Otter. Let me ask this in a bit of a different way.
Part of watershed protection, it seems to me, would be to have
healthy watersheds.
Administrator Whitman. Absolutely.
Mr. Otter. Part of the Clean Water Act would be to have
healthy watersheds. Healthy watersheds mean healthy forests, at
least for us out west. Right now, we have overgrown forests,
forests that are burning up, forests that are in a poor state
of health to resist themselves from disease and bug
infestation, all kinds of noxious and invasive weeds that are
all degrading to the watershed.
My question goes to a position on the Cabinet, would that
give you a position perhaps over the objection of say, the ESA,
where you say we are going in to thin out these forests, have
prescribed burns, create a healthy watershed so we have a
healthy water supply?
Administrator Whitman. Again, right now I enjoy the kind of
relationship with my colleagues that wouldn't be impacted by
the elevation. The importance of the elevation is to ensure
that continues no matter which administration it is. It might
help in the future. The short answer is no.
Mr. Otter. Let us stop right here then. Why don't we? If
you agree with me that healthy watersheds are part of a healthy
supply and healthy forests, which certainly clean up the air,
they make their contribution to nature's cycle in cleaning up
the air, why haven't we focused on resisting this effort to
keep everybody out of the forests, everybody off the watershed,
and gone in and thinned the forests, had the prescribed burns,
created a healthy forest and therefore a healthy watershed?
Administrator Whitman. Congressman, as you know, the
decisions on forests, on burns and such policy, rests with both
the Department of Interior and the Department of Agriculture.
The watershed initiatives you talk about--in fact, in this
budget the President has requested an additional $21 million to
enable us to focus on 20 of the Nation's most threatened
watersheds and to work on a variety of watershed policies we
believe could be used to start to draw attention to watersheds.
The average person hasn't a clue what a watershed is. We need
to do an enormous education job, work with the States to help
them identify their watersheds, identify what is happening to
them, but the actual policy to which you are referring on
forest management rests with those two other departments.
Mr. Otter. I am not going to get into a major disagreement
with you, but it seems it is not out of character and not out
of the purview of the Environmental Protection Agency to
regulate the Department of Agriculture on what kinds of
chemicals it might use on noxious and invasive weeds in order
to eradicate those. It would seem to me that if the overall
purpose of a watershed is to create healthy water, it would be
within the purview of the Environmental Protection Agency to
order the Department of Agriculture and the Department of
Interior, like it can on the application of chemicals, to clean
up the watershed and to manage it so we have a healthy
environment.
Administrator Whitman. As we move forward with this new
watershed initiative, it may turn up something such as that,
but we are just beginning that process now. That has not been a
focus of the Agency to date.
Mr. Otter. I am sure we will come back to this on a second
round of questions, but Chairman Connaughton, the Council on
Environmental Quality was created prior to the EPA. The purpose
of the Council on Environmental Quality was to advise the
Government, including the President and the Cabinet, on
questions of the environment. If we were to elevate the
Administrator to Cabinet level position, do we get rid of the
Council on Environmental Quality or do we have a collateral
responsibility, a dual responsibility, for both you and now the
new elevated Secretary on the Cabinet level?
Mr. Connaughton. I think the roles would continue. As
Administrator and member of the Cabinet, Governor Whitman, just
as the Secretary of Agriculture, the Secretary of the Interior,
the Secretary of Commerce, reflecting on issues under the
purview of NOAA, enjoy the direct role as Cabinet members and
advisors to the President.
I would expect the Council on Environmental Quality would
continue its key role as a policy coordinating body and as an
interagency convening body to deal with the kinds of issues you
describe, related to forest health and watershed health where
not only is there a role for the Environmental Protection
Agency but the Department of Agriculture, the Department of
Interior, the Department of Defense, and the Army Corps of
Engineers. They each have something quite substantial to
contribute to a coordinated national response. That is where
assuring continued Cabinet status for EPA comes in, because EPA
can provide the kind of expertise you have described, the
technical expertise to understand the health of water systems.
Just to give you an example in addressing the forest health
issue, primary implementation would occur with the Department
of Agriculture and the Department of Interior, and then in
watersheds, we have a huge initiative, up to $47 billion, in
the farm bill conservation title, a significant portion of
which we need to tap and harness in an incentive-based way to
promote stewardship among our farmers and ranchers to help
clean up some of these watersheds, help preserve some of our
forest habitat as well, but do it in an incentivized way. That
is where EPA brings forward the technical expertise, the
agencies bring the outreach, the implementation, and the
incentives to achieve our goals.
Mr. Ose. The gentleman's time is up.
Mr. Otter. I would argue that the conservation title of the
Agriculture bill does not speak to the watersheds that I am
talking about. The managed watersheds is what the conservation
and that $48 billion is directed to. It is the impact we have
on the environment, not the impact we refuse to have on the
environment.
Mr. Connaughton. I was just using that as an example.
Certainly there are some affirmative programs specifically
related to forest health that we are pursuing quite vigorously.
Mr. Ose. The gentleman from California.
Mr. Waxman. Administrator Whitman, as you know, I have been
deeply disappointed by EPA's recent unresponsiveness to
congressional inquiries and particularly I can't understand why
you fail to provide information that I have requested. For
example, 2\1/2\ months ago, the Assistant Administrator for
Air, Mr. Jeffrey Holmsted, was quoted in the press as saying,
``EPA rejected its own more stringent proposal for powerplant
regulation based on information EPA received from the power
sector and unions.'' In April, I asked you for the information
referenced by Mr. Holmsted but have received no response. Is
there any reason Mr. Holmsted can discuss this information with
the press but EPA cannot provide it to the Congress?
Administrator Whitman. Congressman, we are doing our best
to respond to all your requests. As you know, I think you have
sent a dozen letters in the course of this year and received
responses to nine of those. We have three outstanding. One of
those is the one to which you refer.
We have an open process for reviewing our decisions and
responding to your requests. We hope to get that request to you
in very short order, but I will tell you that in order to
ensure that the answers are complete and thorough, we do spend
a great deal of time, and to date in response to the requests
that just you have sent to us, we have spent about 800 hours of
time to do it, so we don't take this lightly.
Mr. Waxman. I know you don't take it lightly, but it is
hard to understand whether it is being taken seriously because
we had a Subcommittee On Energy and Air Quality of Energy and
Commerce meeting on May 1. I sent EPA a set of followup
questions for the hearing record and I understand EPA answered
followup questions from other subcommittee members but I
haven't received a response to my questions. The record for
that hearing has now been closed and EPA never responded to my
questions, so EPA's lack of timeliness has resulted in an
incomplete congressional record.
Do you believe EPA has a responsibility to respond to
congressional inquiries in a timely manner and is there some
reason I haven't received a response?
Administrator Whitman. Congressman, we absolutely do our
best to provide answers in a timely fashion. I believe that
letter included a 12 page list of questions on the Clean Air
Act. As you may know, our decision was only recently made on
the New Source Review program to which most of that letter
referred. So we are doing our best to get a comprehensive
response for you because as you know, when we do send partial
responses, it is not satisfactory, nor should it be. We take
this responsibility very seriously.
Mr. Waxman. When do you expect that I will get these
replies?
Administrator Whitman. Again, I would hope we would have it
very soon.
Mr. Waxman. Are any of those responses currently undergoing
White House review?
Administrator Whitman. I don't know whether any of those
are. I believe they all rest with the Agency, those three
letters at this point in time.
Mr. Waxman. So you don't know if there is White House
review of those answers?
Administrator Whitman. I don't know where they are now.
Mr. Waxman. You don't know that there is any delay because
the White House is reviewing EPA's response?
Administrator Whitman. No.
Mr. Waxman. Do you know that the EPA response is not being
held up because the White House is reviewing the letters?
Administrator Whitman. I am saying I don't know exactly
where in the process of our Agency it is at this point in time,
but we can get back to you with that as quickly as possible.
Mr. Waxman. I would like to have that.
Can you tell us today any changes you will make at EPA to
ensure that congressional inquiries are answered on a timely
basis from now on? Can you tell us if you have any
recommendations for CEQ, whether the White House is speeding
the review of congressional inquiries?
Administrator Whitman. Again, we believe we respond as
quickly as we possibly can, understanding the nature of the
questions, as I indicated the one letter of yours was about 12
pages worth of very detailed questions. As you know, most of
our work is very detailed and scientific, so we try to ensure
we give you the most accurate answers possible. There are
numerous documents that you have asked for, and we would have
to go through and make sure we are in a position to provide
everything you want. So we do try. As I say, we have 3
outstanding of the 12 you sent since the beginning of the year.
I suspect we are not the only agency that has difficulty with
this.
Mr. Waxman. I look forward to getting your response on
those.
In the very brief time I have left, I want to ask you about
the diesel engines. In 1998, there was an agreement to settle
the largest ever Clean Air Act enforcement to make sure the
diesel engines were going to meet the standards. Now
Caterpillar is trying to back out of the deal. It wants EPA to
cut a break on the penalties it will apply.
If the penalties are too low, it is going to be more
profitable for them to pay the penalties than comply with the
law and it will increase the amount of pollution, wouldn't it?
The other part of it is, if Cummins is doing its job, aren't
they put at a competitive disadvantage if Caterpillar can just
pay a low penalty and they have gone ahead and done what they
should have done, which is comply with the law?
Administrator Whitman. We are planning to move forward with
the enhanced penalties. In fact, that is part of the Clean Air
Act, a requirement that we continue to review penalties and
there is a formula on how we do it. We have put forward a new
set of penalties that would be sufficient, we hope, to ensure
that we get those clean engines quickly, as fast as we need to
get them.
There will always be some companies that, for their own
financial and business decisions, decide they would rather
produce the old engines and pay the penalties, but we are doing
everything that we can at this point in time to ensure that we
have the desired impact on the environment and that we move to
the cleaner burning engines as quickly as we can.
Mr. Waxman. Will you commit to finalize the penalty rule
before October and keep the penalty levels you have proposed?
Administrator Whitman. We are moving forward with that
process. We will finalize by October. They are in the process
now, the new recommendations at the new levels.
Mr. Waxman. At your proposed levels?
Administrator Whitman. Yes.
Mr. Waxman. Thank you.
Mr. Ose. The gentleman from Utah?
Mr. Cannon. I would like to apologize to you and to our
distinguished panel for the fact I was a bit late but we get
caught up sometimes, and this is an important hearing.
I would like to thank our panelists. The job you have is
very difficult, often thankless, and very, very important. It
is a matter of balancing our quality of life and the prosperity
of Americans, especially those who are poorest who tend to be
affected.
Without lecturing, let me point out in the last recession
from March to March, we lost about 1.8 million jobs net but of
those 1.8 million jobs, we had an offset of about 400,000 jobs
of people who had college degrees or more and those 1.8 million
jobs that were lost were people who had less than a college
degree. So the decisions you make have a profound affect,
especially on the poorest among us.
Good science seems to me to be the key to solving the
problem of how we deal with these awful tradeoffs and if we can
deal with science and agree to context for science instead of
dogmatic beliefs that somehow creep into our society as
absolutes, I think we will do much better.
To followup on Mr. Otter's questions, the mountain behind
my house has just burned. It would have been national news
except we had so many other huge fires all over the West. In
fact, I have a canyon in the mountain to the south that burned
3 years ago and was national news, the mountain to the north
burned and hardly got a moment's notice, although I will tell
you the problem from that to our watershed and the loss of top
soil and the floods we will have next spring is really
daunting. I have several neighbors to the south whose houses
were wiped out by the mud flows subsequent to spring rains.
It seems to me, Mr. Chairman, that you are in a
particularly important position to be asked to do something
aggressive about what I think has been a decade of neglect to
our forests. Are you doing something actively and aggressively
to turn this around? This is an area where we have good
science, we have good understanding. If you look at Utah, we
have had two or three major forests that have been destroyed by
pine bark beetles, which could have been saved if we had just
gone in and eliminated those areas that were affected instead
of destroying literally a third of all the trees in the State
of Utah, which is devastating for top soil and for watershed.
Now that we have this crisis of fires, which I think lends
itself to terrorism in a serious way, are we doing something
radical to say we need to cut fire breaks, we need to take each
forest in the country, and under your direction guiding the
Forest Service and to some degree the BLM into taking steps
that will preserve or optimize our environment?
Mr. Connaughton. The short answer is yes and with
Congress's support, we need to do more. I had the privilege of
being in Idaho in Boise City to sign with the Governors--
including Governor Kempthorne, a very good friend of mine and I
enjoy working with him--to sign the 10-year fire plan, which
has some key immediate implementation steps that will be taken
this summer to at least get better control over the devastating
situation you describe so eloquently.
Then we have key implementation steps that will be
occurring as we prepare for next year's fire season and beyond.
We have to get into these forests. The science has caught up
with us, we have had decades of mistaken policy, decades, not
just one decade, but decades of mistaken policy. I think there
is a much broader consensus that we can sensibly go in and
produce a healthier forest as a result of some effective
management actions and we now need to mobilize the resources
and mobilize the local commitment and we have that now. It is a
bipartisan local commitment toward more effective management.
We have some significant work internal to the government,
the Forest Service, and BLM to preserve the environmental
reviews that need to occur, but to do it in a more streamlined
way so we can get these projects moving. We need to reduce the
litigation holding up some of these projects. We know what we
need to do, we can do it sensibly environmentally--so we are
working on all those different levels.
Mr. Cannon. Tell me please that we are doing something
radical. Because we have a radical problem, and we also have
pretty good science, and the President has a great deal of
power, and you are sort of the key to that power. Are we going
to do something like cut fire breaks in areas that are
significant?
Mr. Connaughton. The answer to that is yes. I would prefer
the words ``aggressive'' and ``environmentally responsible.''
Mr. Cannon. I appreciate that but let me tell you, if I
were a radical Islamic terrorist--I don't think I am giving
away any secrets here--you could drop little firebombs around
the western United States and have a huge effect on our
economy, our livelihood, our water, our water reservoirs, and
every other aspect of our life. Therefore, I think while you
may need to speak in terms you have described, some radical
action is probably justified.
Thank you.
Mr. Ose. The gentleman from Ohio?
Mr. Kucinich. Thank you, Mr. Chairman.
Administrator Whitman, welcome. Welcome, to the chairman.
If it was up to me today, I would address you as Secretary.
I believe the EPA deserves to be Cabinet level status. The
priorities of environmental protection and public health are
equally important and if not more important in some
consideration as energy, commerce, and others, dedicated
Federal departments.
Some opponents have criticized efforts to raise the EPA to
Cabinet level status on the argument that such a move would be
largely symbolic and wouldn't have any tangible meaning. I
think the best way to counteract that argument is for the EPA
to make a claim to Congress and the public that this would not
be the case. I use that as a prologue to concerns I had when I
read last Saturday's Washington Post that the EPA will ``no
longer exercise its duty over Total Maximum Daily Load, a
significant Clean Water Act antipollution program.'' The Total
Maximum Daily Load [TMDL] is the post child for a program where
Federal oversight is essential because the States have refused
to implement it.
As you know, I represent Cleveland. A few years ago, you
and I were with Senator Voinovich touring Cleveland. We know
years ago when the Cuyahoga River caught on fire, that was part
of what spurred passage of the Clean Water Act. I represent the
people of Ohio who petitioned the Federal EPA to help protect
Ohio's environment when the Ohio EPA failed to do so. Ohio's
EPA has undergone the deepest and widest evaluation of any
State EPA ever.
It is with disappointment that after my constituents have
experienced such precedent setting levels of pollution and have
rallied and fought against it, that now the Federal EPA, in my
opinion, is turning its back on the problem by weakening, by
reopening the TMDL rules. It will simply result in a lowering
of standards in order to meet such standards.
Proposed changes such as planning for entire watersheds
instead of individual water bodies, in my view, are merely a
tactic to lower standards to achieve compliance. As the
proposed changes to TMDL say, ``EPA will not review, approve,
or back stop,'' State plans to comply with water quality
standards. It seems EPA is not doing the job it has the duty to
do, and not doing the job citizens are asking it to do.
My first question is how would the EPA improve water
quality by removing itself from an oversight and enforcement
role?
Administrator Whitman. I know it will come as a surprise,
but the article isn't correct. Unfortunately, the newspapers,
particularly of late--there have been a couple on major issues
which have been very troubling for the Agency, because they
simply have been filled with inaccuracy.
As you know, the Congress put the implementation of the
TMDL rule on hold during the previous administration. We are
continuing to work with that. Our object is to see how we best
implement those TMDL standards, understanding that they are
enormously burdensome and complicated in that they require
individual standards to be set for every single type of
pollutant that is found in the water bodies.
We are exploring a number of different ways to leverage the
States' abilities with the Agency's abilities to ensure that we
reach the result that is the object of the TMDL rule, which is
cleaner, healthier waters. We are committed to that; we are not
backing away from it. The article unfortunately made some
assumptions that were just inaccurate. I know all of you have
been exposed to that kind of thing from time to time and know
it can happen.
It becomes very troublesome, though, when it is talking
about issues that are of such importance, and this one is of
critical importance.
Mr. Kucinich. I think it is important to go over this for
the record. I have the article from the Washington Post, one of
their environmental writers. Essentially, it characterizes the
Administrator's position on this. If the Administrator is
saying this is not true, then we will take her at her word.
Another disconcerting example, the EPA recently decided to
relax the New Source Review program rules. Just as
environmental advocates feared, EPA's decision has created a
chilling effect on court cases brought by the Department of
Justice and EPA to enforce New Source Review. While EPA claims
the new rule would not weaken ongoing litigation, we have proof
it has already done so.
On June 26, U.S. District Court Judge William M. Screteny,
presiding over a case brought by the New York Attorney General
for Clean Air violations instructed the Attorney General and
the utilities to submit new briefs describing how the rule
change would impact the issues brought by the case, and EPA's
decision to roll back the Clean Air Act is harmful enough
without the added impact of crippling governmental efforts to
enforce the law. If you could answer the question, why does the
EPA deserve to be a Cabinet level position if it rolls back air
and water quality standards?
If we in Congress want to promote the EPA, how can we do
that if it appears that the EPA is not realizing the authority
it has now?
Administrator Whitman. As you may not know, in a hearing
earlier today, the Justice Department testified to the fact
that prospective regulations should not impact those cases. In
fact, Attorney General Spitzer's spokesperson indicated they
did not feel any prospective action by the Agency would impact
those cases. We continue to vigorously enforce them.
The proposals that we have made on New Source Review, there
are two different sets of proposals. One, there were regulatory
changes that were first proposed during the Clinton
administration in 1996 and have been subject to the full and
open public process. Those really do not impact utilities at
all.
Prospective regulations that have not even begun the
rulemaking process but are contemplating, of those there are
three and one is the critical one, as far as utilities are
concerned, routine maintenance repair and replacement. That
rulemaking process has not begun. It will be subject to the
full public disclosure and it is responsive to a number of
concerns that have been raised about ensuring that New Source
Review is as effective and efficient as possible.
The real answer here, we all believe, whatever happens with
New Source Review, that we enact the President's Clear Skies
Initiatives, which include a very rigorous reduction in the
emissions of SO<INF>2</INF> nitrogen oxide and mercury by 70
percent over the next 10 years--make it clear, make it
mandatory, provide the flexibility for utilities to achieve
those standards within what makes sense for them economically,
work with the acid rain program, and work extremely
effectively.
We are continuing to ensure that we enhance the quality of
our air. I would say to your last point that the elevation of
the Environmental Protection Agency to department status should
really be a reflection of the importance this country puts on
the environment and not a reward, or not withheld as a
punishment or given as a reward for particular behavior. This
is broader than that. It is about where do we place the
environment in our scope of government and how important it is.
As you indicated at the beginning, environment is something
that is of enormous importance to the health and well being of
this Nation. That is how the elevation ought to be looked at.
It is not a reward for this administration or a previous
administration. It is about how we value the environment.
Mr. Kucinich. Thank you.
Mr. Ose. We will have a second round if the members so
choose.
Chairman Connaughton, in terms of the Agency being
elevated, should Congress statutorily require the Agency
measure the environment to ensure that the policies and
regulations are achieving those goals that are otherwise laid
out? The question is a bit broader than it may appear, in that
it is my understanding that the collection of information at
the agency, because of the scope of the problem, leaves
something to be improved. Would you care to comment on that?
Mr. Connaughton. I would first agree with you that data
collection information and tying measures of performance and
outcome to the specific actions and different things,
regulatory programs, incentive programs, State oversight, is a
very, very critical and near term, pressing priority. Certainly
that has been recognized by the National Academy of Public
Administration, some thoughtful analysis by the EPA Inspector
General, and recognized first and foremost by Governor Whitman
when she took the helm of the Agency.
Whether there is a specific legislative mandate is
something I think we should discuss. I have seen lots of
different proposals for that and at this time wouldn't be able
to commit to one or another of those. Certainly the Bush
administration supports linking programs to results. The best
way to achieve that is something we would like to talk to you
about.
Mr. Ose. Administrator Whitman, do you have any
observations you might wish to share with us regarding
collection of the information together with its correlation to
programs and results?
Administrator Whitman. We are instituting a results
oriented policy. That is how we are approaching our mission,
that is how we are approaching the various programs we
undertake, and any new regulatory process. We are strengthening
our accountability based on performance information, and we are
enhancing our performance information by elevating science at
the Agency and ensuring that is at the very beginning of any
kind of regulatory process, improving management decisionmaking
based on information on the best way of doing business to
accomplish our goals.
As I have said repeatedly, the measure of environmental
success should not be on the amount of penalties we collect in
a year or the number of enforcement actions we bring. It should
be on is the air clean, the water pure, the land better
protected. That is the measurement of whether or not we are
doing our job. We are moving now to institutionalize that kind
of results oriented policy.
One of the gaps--I will say there is a gap--is the quality
of the State level data. We cannot collect all the data. It is
virtually impossible to do it all ourselves. What we are doing
now is working closely with the States and tribes as partners
to try to develop better ways to get data, to see how we
leverage the dollars we give to make sure that we have some
national standards on data, and we make it easier for them to
collect and provide us with that kind of data, and we are not
overburdening them, because it is a huge burden to collect the
information required to make good decisions. That is something
we have focused on a great deal and will continue to as we move
forward.
Mr. Ose. How big an obstacle is the collection of data and
its correlation to the results?
Administrator Whitman. Actually, the collection is the
bigger challenge. Once you have the data, the correlation to
results is pretty easy to do. Even the TMDL, as we have been
talking earlier--Oklahoma is one State that has spent a lot of
focus and time on the collection of data. They have been able
to implement TMDLs without a great deal of effort and long
maintained that data collection and good data has to be the
basis for moving forward. Wherever we find those challenges,
that is where we will be directing our resources to try to help
the States do a better job of that and understand the
importance of good data collection and making their overall job
easier.
Mr. Ose. The reason I focused on data collection versus the
empirical metrics that Chairman Connaughton mentions is at the
end of my tenure here, I want to know that the environment is
better than when I got here. How do we help either the Council
or EPA find a way to measure these outcomes? I understand the
stovepipe approach with the Clean Water Act, Clean Air Act, and
what have you. Tell me how we in Congress can help you do that,
to get to the information collection that leads to better
results, less environmental damage?
Administrator Whitman. As you will see, we have requested
in this budget proposal some additional dollars for science.
That is going to be very helpful to us. We are trying to
breakdown those stovepipes. That is something I believe has
been an obstacle to our doing good planning for the
environment. No one told Mother Nature that what is in the air
can't come down on the water or the land, or what is in the
water can't migrate into the land and vice versa.
We need to do a better job in the way we collect and manage
environmental information and move away from that historic
media specific approach into a wider, broader, more enterprise-
wide management system. That is what we are in the process of
doing. The dollars and the emphasis that we have put on
enhanced science are going to help us with that and on
information technology. We have put some additional dollars and
will be requesting additional dollars in this budget on our
information technology so that we can enhance that and do a
better job in the way we collect that data and make it easier
to share it and understand it.
Mr. Ose. Chairman Connaughton.
Mr. Connaughton. I would amplify on that from the
perspective at a macro level: is the air cleaner, is the water
cleaner? We can collect that information, the broad
information, but we are missing this link, and the data flows
and the science Governor Whitman talked about is critical, is
the link to performance-based budgeting.
I think the Congress is critical, the House in particular,
in supporting the President's management agenda approach that
is actually trying to link these core indicators of
environmental quality and health with the most effective
programs so that we can begin to create a good old-fashioned,
good Government competition for budget dollars, tied to the
most effective programs.
Certainly we would want to see Congress support something
like the Clear Skies Initiative that would result in no
litigation and the most cost effective way of getting air
pollution reductions. It is finding the data that allows you to
link the program with the outcome that is critical, so you can
compare a command and control program to a market-based program
to an incentive-based program and say which is delivering more
environmental protection for the taxpayer dollar? Congress
getting behind that and actually giving us oversight, the
importance of oversight with a performance oriented budget
approach is really where I think we can advance this next
generation of more effective environmental management.
Mr. Ose. I do want to tell you we are interested in you
doing all the oversight you want. We are not going to give up
our oversight, so we welcome you to that party.
The gentleman from Utah?
Mr. Cannon. You have raised the bar for what is thoughtful
responses and I appreciate it. I have been an admirer from afar
and it is nice to see you actually dealing with these issues
and both of you have done so eloquently and well.
Ms. Whitman, you talked earlier about a report card and
answered a number of questions by the chairman. Are you
developing a report card that will have transparent data behind
it so people can understand where we are going? Is that the
same concept you are dealing with here?
Administrator Whitman. That is the whole point of it, to
make it something the public can understand, something we would
release on an annual basis. The importance here, and where we
could use congressional support when we do come out with that
report card, is an understanding that we are not going to meet
our goals every year and we are not always going to be able to
show the kind of advance we would like to see.
That doesn't mean we are not progressing. It doesn't mean
we should give up what we are trying. We should just improve
it. We shouldn't be afraid of self criticism but we are going
to make it very public, a transparent process, and ensure the
public can understand what we are saying.
Mr. Cannon. Among other things, we have made vast progress,
not because of Federal rules and the administration, but
because science has done some remarkable things for us that
cannot be predicted, controlled, or managed. If we have goals,
that will help direct resources, so I congratulate you on that
and look forward to following how that works.
Let me talk about the role of the States. When EPA started,
you had no State involvement. Now you have States with
significant State law and in many cases, delegation of Federal
authority to oversee laws. What do you see the role of the
States being? I realize you are going to have to work with
States and develop data, but how do you see the role of States
evolving after you have developed the kind of transparency you
are talking about of goals and information behind goals? Can
they pick up more of the slack? Can we delegate more and more
and the Federal Government become a more distant guide and let
the States take more responsibility?
Administrator Whitman. I share the President's perspective
that not all wisdom resides in Washington. Having come as a
Governor, I also appreciate the work and innovation that is
occurring at the State level.
We need to be able to provide the States the flexibility to
meet the generally agreed upon standards that are protective of
human health and the environment, standards we will work on in
a transparent way based on sound science, but we will work with
the States to allow them some flexibility in the implementation
without backing away from our responsibility to ensure we are
in fact protective.
We have a very good relationship with the States now. Some
of our most effective programs are State partnership programs.
We are looking for ways to expand those. The area of
enforcement, which I know is of great interest to many members
on the Hill, States do 90 percent of the enforcement now; they
do 95 percent of the inspections. We are trying to see how we
can help them do that better.
States right now are facing severe budget cuts and
concerns. We need to be sensitive to that. We need to see where
we can in fact help them do that job, understanding the
stresses they find themselves in at the moment.
At all times, we are working with States and tribes as our
full partners. We intend to continue that effort and look for
other ways we can do that while being protective of the
environment and human health.
Mr. Cannon. I agree with that. I tell my constituents the
average IQ in Washington is still only 100 and while we have
more power and maybe some more general view which is helpful to
us, I agree with you about States and their ideas.
It is nice for me to see this administration with people
who are articulate spokesmen. There is nothing we have to fear
from science, and from peer review, and from the kind of
processes that get people involved and are transparent. It is
the other side who are dogmatic and religious in their beliefs,
who plant links where they shouldn't be because they want that
to be protected. That is where the problem existed.
If I could encourage good science, peer review,
transparency, I think America will make great leaps forward,
and I encourage you in that activity.
I yield back.
Mr. Ose. I have two more questions and we will wrap up this
panel, because I know you both have busier days than I could
ever imagine.
Mr. Chairman, would an Office of Science that integrates
and coordinates all the science at EPA be helpful? First, is
the science collection and corroboration a fractured effort in
your opinion, at EPA? Could it stand improvement?
Mr. Connaughton. I will answer that in the affirmative. It
can be improved and we are working to improve it throughout the
government, the role of science, bringing it forward in the
line Congressman Cannon suggested.
I would note EPA has taken the critical step of actually
creating a science advisor post which I think was a very, very
strong move. It also brings somebody with responsibility to
look at science across the Agency, and also provides a key
person to participate interagency in many of the processes that
I am involved in and also spearheaded by the Office of Science
and Technology Policy. So the role of a strong individual or
group overlooking the science as well as the economics at the
Agency is very important and consistent with where we want to
take things, whether it is the Department of Interior or EPA.
Exactly how that would be structured, again, remains
something we should discuss and I think with Governor Whitman's
experience now and as she looks at the future, we would want to
defer to the leader of the Agency to see how it is structured.
Each Agency, the Department of Energy deals with it differently
than the Department of Interior, than does NOAA. Each have
structured science oversight in different ways. Before we pick
one, I think we should look at those models to see how they
were developed and how they were tailored and the particular
organizational needs of the institution. A strong central
scientific role is important.
Mr. Ose. Do you share that view?
Administrator Whitman. I certainly share the view. We can
do a better job, and we have been focusing on enhancing the
role of science in the decisionmaking at the Agency. My concern
with establishing a Deputy Administrator for Science or a
specific other position such as that is that science should be
incorporated throughout the Agency. It should be part of every
one of the Assistant Administrators job. I don't want anyone
thinking the Deputy Administrator for Science will take care of
that. It should be integral and form the basis for all of the
work we do. That is why I have established the office and role
of science advisor as someone who can take a more comprehensive
look but is not seen as being the science person. But in fact
we are continuing to integrate science in all the decisions we
make.
We have enhanced the use of external peer review as we move
forward with regulations. I think that is an important part to
corroborate the science we have used. We are doing everything
to ensure the level of our science is at the top of the range,
the best we can come up with. And we have some fine scientists.
We have an innovation strategy that we are in the process
of developing that will look for other ways to ensure that
science is integrated into the entire and throughout the entire
agency. So my only concern about isolating science to one
particular part of the Agency is that I don't want any kind of
isolation, I don't want any misunderstanding that there is one
person that talks science. That should be part of every single
one of the program areas. They have to have good science and
good reliance on science.
We are now doing it through the science advisor and also
through the innovation strategy that is a place where every
regulation will go and get looked at to see whether it needs
science, more science at the beginning than not. So we are
trying to integrate that but are willing to talk and work with
the Congress on how best to ensure that continues to happen.
Mr. Ose. I have nothing else. Mr. Cannon.
Mr. Cannon. I have nothing else but one comment. We have a
huge number of people in the private sector who thought a lot
about these things. I hope you would consider integrating them
either through contracting or your peer review process or other
means into the system because good ideas can catch on very
quickly and move mountains.
Mr. Ose. We will leave this record open for 10 days. Given
the time constraints, we will dismiss this panel. We do have
some questions we did not get to that we will submit in writing
and we ask for a timely response. We are grateful for you.
Administrator Whitman. We will get you a timely response.
Mr. Ose. Governor, you have always been responsive, so I do
appreciate it.
Again, the record will be open for 10 days, we will get you
the questions. We appreciate your taking the time to come down
and visit with us. We look forward to the next time. Thank you
both.
We will take a 5-minute recess.
[Recess.]
Mr. Ose. We will reconvene this hearing.
We welcome our guests for this panel. As you saw in the
previous panel, we swear in all our witnesses. Our witnesses in
the second panel will be the president of the Environmental Law
Institute, J. William Futrell; vice president for Environment
and Regulatory Affairs, U.S. Chamber of Commerce, William
Kovacs; and a senior fellow for environmental economics,
Natural Resources Defense Council, Wesley Warren. Gentlemen, if
you would rise.
[Witnesses sworn.]
Mr. Ose. Let the record show the witnesses answered in the
affirmative.
It would appear we have a vote scheduled here. We will
proceed, Mr. Futrell, with your testimony. We do have your
statement in writing. I read it and it is comprehensive and
universal. I do appreciate if you could summarize in 5 minutes.
STATEMENTS OF J. WILLIAM FUTRELL, PRESIDENT, ENVIRONMENTAL LAW
INSTITUTE; WILLIAM KOVACS, VICE PRESIDENT, ENVIRONMENT AND
REGULATORY AFFAIRS, U.S. CHAMBER OF COMMERCE; AND WESLEY
WARREN, SENIOR FELLOW FOR ENVIRONMENTAL ECONOMICS, NATURAL
RESOURCES DEFENSE COUNCIL
Mr. Futrell. Thank you for the opportunity to join this
dialog on elevation of EPA to Cabinet status. We have two
members of the House on our board of directors, Congressman Tom
Udall of New Mexico and Sherry Boehlert of New York. Therefore,
reviewing the testimony of the earlier hearings, I was
interested to read Sherry's judgment which I join in saying
keep it simple and a clean a bill to elevate EPA to Cabinet
status.
The invitation to the hearing asked me to comment about
what next after Cabinet elevation. I was fascinated to read the
comments by the other stakeholders in the hearing.
Mr. Ose. Mr. Futrell, I need to interrupt for a minute. I
am advised I have three votes which is likely to be a 40 minute
exercise. We can get each of your statements on records in
abbreviated form and leave the record open for 10 days, or when
the point comes where I have to bolt for the floor, we can be
in recess, I can come back and we can be here a bit longer.
Mr. Futrell. Whatever your wishes are, Mr. Chairman.
Mr. Ose. I do not like to treat my witnesses this way. I
feel as if I am being rude, but I do think in the interest of
time, yours and mine, it might be best to get your statements
in the record in an abbreviated form for each of you and let me
leave here when there are about 2 minutes left. We will adjourn
the hearing and send the questions in writing to each of you.
Is that agreeable?
Mr. Futrell. Sure.
Mr. Ose. You have 2 minutes.
Mr. Futrell. I read the statements and many of the
recommendations you are hearing from the National Academy of
Public Administration, from Terry Davis, Unified Act, are
prescriptions which will not cure the problem. My friend Bill
Kovacs is going to have the same sort of difficulties for his
companies as he has now because in our system of laws, we have
a checkerboard of black squares and red squares. If you are on
a black square, you are regulated beyond belief. That is Mr.
Kovacs' company, the Dupont Corp., General Electric. If you are
on the red square, you get away with environmental murder. That
is the American mining industry. The American mining industry
causes more damage to the waters of the United States than all
of manufacturing industry combined.
The focus in our environmental statutes is on the middle
process of turning raw materials into products. First, we cut
down the tree, that is resource extraction. Then it is
processed, that is manufacturing. Then it is thrown away and
used. That is resource recovery.
The Congress' environmental statutes are focused on
resource processing. If we were to rethink our laws and return
to what I call sustainable development law, you would be able
to ease much of the tension on the manufacturing sector. That
really means taking on the agricultural sector, the mining
sector, and others, and Congress has avoided that.
I note with approval your call, Mr. Chairman, for going to
pollution reduction credits for trading. ELI believes in
trading. The Clean Skies Initiative, Jim Connaughton's press
release on that quotes the ELI research work. Here is our book,
``The Clean Water Act TMDL Program.'' Unless you have a strong
TMDL program, you cannot have a water trading permit system.
It is a real challenge. Congratulations on these hearings.
I think my statement hangs together in written form.
[The prepared statement of Mr. Futrell follows:]
[GRAPHIC] [TIFF OMITTED] 82666.138
[GRAPHIC] [TIFF OMITTED] 82666.139
[GRAPHIC] [TIFF OMITTED] 82666.140
[GRAPHIC] [TIFF OMITTED] 82666.141
[GRAPHIC] [TIFF OMITTED] 82666.142
[GRAPHIC] [TIFF OMITTED] 82666.143
[GRAPHIC] [TIFF OMITTED] 82666.144
[GRAPHIC] [TIFF OMITTED] 82666.145
[GRAPHIC] [TIFF OMITTED] 82666.146
[GRAPHIC] [TIFF OMITTED] 82666.147
Mr. Ose. Thank you for your brevity.
Mr. Kovacs.
Mr. Kovacs. We have been discussing how to better organize
EPA for 30 years. Since the beginning, there has been a
fundamental shift and that shift is that 90 percent of all
enforcement and management activities are by the States.
Business has spent $2 trillion on environmental protection over
the last 30 years. It now spends $200 billion annually on
environmental protection.
We expect EPA to do the impossible, we expect it to have a
vast knowledge of law, science, technology, computer modeling,
the acquisition, development, and analysis of data, federalism
and the relationship of all these moving parts, and yet we
straightjacket them into a budget which says it must spend on a
specific program.
For example, EPA spends 64 percent of the budget on waste
management and water and 6 percent of the budget on science and
data information. The Chamber has some challenging
recommendations in our testimony. One is EPA needs overarching
statutory language, if it is going to be elevated, that allows
it to move forward in a flexible system to do performance based
standards and to remove the command and controls structure so
it can address problems in a timely manner.
Second, we believe there can't be any second guessing of
States. When the EPA authorizes the States to take over a
program, they are doing 90 percent of it now anyway, EPA
shouldn't be able to second guess it. If it doesn't like what
the States are doing, EPA ought to remove the program
authority.
EPA needs to be more focused on standard setting and
technical assistance and it needs to expend more of its money
in the realm of science. In particular, I refer you to a 1990
EPA report, ``Reducing Risk,'' where the agency admits there is
little correlation between relevant risk and their budget
priorities. This is a key.
We need to address sound science and data quality. We now
have the ``Data Quality Act.'' We can't have good science, we
can't have environmental protection unless you spend the money
to get the good science. Without spending the money on data
quality and science, we are not going to be able to reach the
goal of flexibility within the program as well as the ability
to address priority risks. It is a partnership between
business, the States and the Federal Government. We all need to
understand our roles and there are ways in which EPA can be
efficient, give the goals to the States, set the sound science,
while recognizing that business will continue to spend the
money to implement environmental programs.
[The prepared statement of Mr. Kovacs follows:]
[GRAPHIC] [TIFF OMITTED] 82666.148
[GRAPHIC] [TIFF OMITTED] 82666.149
[GRAPHIC] [TIFF OMITTED] 82666.150
[GRAPHIC] [TIFF OMITTED] 82666.151
[GRAPHIC] [TIFF OMITTED] 82666.152
[GRAPHIC] [TIFF OMITTED] 82666.153
[GRAPHIC] [TIFF OMITTED] 82666.154
[GRAPHIC] [TIFF OMITTED] 82666.155
[GRAPHIC] [TIFF OMITTED] 82666.156
[GRAPHIC] [TIFF OMITTED] 82666.157
[GRAPHIC] [TIFF OMITTED] 82666.158
[GRAPHIC] [TIFF OMITTED] 82666.159
[GRAPHIC] [TIFF OMITTED] 82666.160
[GRAPHIC] [TIFF OMITTED] 82666.161
[GRAPHIC] [TIFF OMITTED] 82666.162
[GRAPHIC] [TIFF OMITTED] 82666.163
[GRAPHIC] [TIFF OMITTED] 82666.164
[GRAPHIC] [TIFF OMITTED] 82666.165
[GRAPHIC] [TIFF OMITTED] 82666.166
[GRAPHIC] [TIFF OMITTED] 82666.167
[GRAPHIC] [TIFF OMITTED] 82666.168
[GRAPHIC] [TIFF OMITTED] 82666.169
[GRAPHIC] [TIFF OMITTED] 82666.170
[GRAPHIC] [TIFF OMITTED] 82666.171
[GRAPHIC] [TIFF OMITTED] 82666.172
Mr. Ose. Thank you, Mr. Kovacs.
Mr. Warren.
Mr. Warren. The Natural Resources Defense Council supports
elevation of EPA to a Cabinet level agency. We think it will
improve attention and priority of the environment within the
Federal Government, but we do not support it so strongly that
we would accept substantive changes to their ability to protect
the environment as part of that legislation. Therefore, we ask
you to pass a clean bill, free of such extraneous provisions.
We have endorsed H.R. 2438, Congressman Boehlert's bill,
but accordingly, we have opposed H.R. 2694, Congressman Horn's
bill. We believe that it would be a mistake to hold this
elevation of EPA hostage to addressing other issues, other than
the elevation. In fact, just those kinds of controversies
killed this legislation in 1994, which was the last serious
time it was moving through the House of Representatives. We
would not like to see that happen again.
I know the subcommittee has considered many so-called
second generation proposals as part of its consideration of
EPA's elevation bill and I have to assure you that they are
quite controversial. In some cases, they would amount to a
legislative wipeout of the underlying statute. The fact of the
matter is the underlying statutes for the most part work quite
well. They have brought us a generation of environmental
improvement. As Congress takes them up one by one, we can
suggest ways they can be improved further but to add them to
this bill would be a very grave mistake.
The two most important things that should be done to
improve environmental protection in this country is to use the
current statutes better, more enforcement of the laws on the
books and more funding for the provisions that exist in those
statutes would make great progress in this area.
The budget this year for EPA would actually cut enforcement
by 200 enforcement personnel or about 13 percent, and cut water
quality investments by over $500 million. Many proposals in
Congressman Horn's bill we consider controversial but two I
would point out specifically, Section 120, which would have
burdensome cost benefit and risk assessment requirements which
would almost certainly lead to litigation and could be
construed by some as a super mandate which would be laid on top
of all existing environmental decisional criteria and some of
the information provisions which would consist of extensive
micromanagement of how the Agency does that work including a
Bureau of Environmental Statistics which could conflict with
and be duplicative of other parts of the Agency.
Finally, if it does become a legislative free for all, as
the EPA Cabinet bill moves through the process, we would come
forward with proposals we think would substantially improve
environmental protection. The details are in our testimony.
They include improving sound science at the Agency by
eliminating dependence, overdependence, on industry data and
making sure peer review is free of conflicts of interest;
second, reform, how regulatory impact analyses and cost-benefit
work is done at the Agency so that costs are not overstated and
benefits undervalued; third, improve the way in which
children's health is protected in this country across the board
in all environmental statutes; fourth, improve transparency in
terms of how the agency makes its decisions, especially since
OMB seems increasingly involved in early decisionmaking at the
Agency; fifth, ban reliance on human testing data that comes
from the industry, and finally, make sure industry discloses
data it has in its possession that shows adverse environmental
impacts.
We would only recommend these if the legislation is thrown
wide open and we strongly urge the subcommittee to move EPA
Cabinet legislation free of such extraneous provisions that
might undermine its ability to protect the environment.
[The prepared statement of Mr. Warren follows:]
[GRAPHIC] [TIFF OMITTED] 82666.173
[GRAPHIC] [TIFF OMITTED] 82666.174
[GRAPHIC] [TIFF OMITTED] 82666.175
[GRAPHIC] [TIFF OMITTED] 82666.176
[GRAPHIC] [TIFF OMITTED] 82666.177
[GRAPHIC] [TIFF OMITTED] 82666.178
[GRAPHIC] [TIFF OMITTED] 82666.179
[GRAPHIC] [TIFF OMITTED] 82666.180
[GRAPHIC] [TIFF OMITTED] 82666.181
[GRAPHIC] [TIFF OMITTED] 82666.182
[GRAPHIC] [TIFF OMITTED] 82666.183
[GRAPHIC] [TIFF OMITTED] 82666.184
[GRAPHIC] [TIFF OMITTED] 82666.185
[GRAPHIC] [TIFF OMITTED] 82666.186
[GRAPHIC] [TIFF OMITTED] 82666.187
[GRAPHIC] [TIFF OMITTED] 82666.188
[GRAPHIC] [TIFF OMITTED] 82666.189
[GRAPHIC] [TIFF OMITTED] 82666.190
[GRAPHIC] [TIFF OMITTED] 82666.191
[GRAPHIC] [TIFF OMITTED] 82666.192
[GRAPHIC] [TIFF OMITTED] 82666.193
[GRAPHIC] [TIFF OMITTED] 82666.194
[GRAPHIC] [TIFF OMITTED] 82666.195
[GRAPHIC] [TIFF OMITTED] 82666.196
[GRAPHIC] [TIFF OMITTED] 82666.197
[GRAPHIC] [TIFF OMITTED] 82666.198
[GRAPHIC] [TIFF OMITTED] 82666.199
[GRAPHIC] [TIFF OMITTED] 82666.200
Mr. Ose. Gentlemen, I do thank you for your brevity. I
apologize for the circumstances we find ourselves in. I feel
badly. You came down, testified, and it will not go unnoted.
We will leave the record open for 10 days. We will send you
the questions we otherwise would have posed in person to you,
and hope for a timely response.
Again, thank you for taking time to come. This hearing is
adjourned.
[Whereupon, at 4:40 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[The prepared statement of Hon. John Sullivan and
additional information submitted for the hearing record
follow:]
[GRAPHIC] [TIFF OMITTED] 82666.201
[GRAPHIC] [TIFF OMITTED] 82666.202
[GRAPHIC] [TIFF OMITTED] 82666.203
[GRAPHIC] [TIFF OMITTED] 82666.204
[GRAPHIC] [TIFF OMITTED] 82666.205
[GRAPHIC] [TIFF OMITTED] 82666.206
[GRAPHIC] [TIFF OMITTED] 82666.207
[GRAPHIC] [TIFF OMITTED] 82666.208
[GRAPHIC] [TIFF OMITTED] 82666.209
[GRAPHIC] [TIFF OMITTED] 82666.210
[GRAPHIC] [TIFF OMITTED] 82666.211
[GRAPHIC] [TIFF OMITTED] 82666.212
[GRAPHIC] [TIFF OMITTED] 82666.213
[GRAPHIC] [TIFF OMITTED] 82666.214
[GRAPHIC] [TIFF OMITTED] 82666.215
[GRAPHIC] [TIFF OMITTED] 82666.216
-