U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–851 PDF 2007

S. HRG. 109–725

NOMINATIONS OF MARCUS PEACOCK, SUSAN P.

BODINE, AND GRANTA Y. YAKAYAMA

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

MARCUS PEACOCK, TO BE DEPUTY ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY

SUSAN P. BODINE, TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY

GRANTA Y. NAKAYAMA, TO BE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL

PROTECTION AGENCY

JULY 14, 2005

Printed for the use of the Committee on Environment and Public Works

(
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

LINCOLN CHAFEE, Rhode Island

LISA MURKOWSKI, Alaska

JOHN THUNE, South Dakota

JIM DEMINT, South Carolina

JOHNNY ISAKSON, Georgia

DAVID VITTER, Louisiana

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

FRANK R. LAUTENBERG, New Jersey

BARACK OBAMA, Illinois

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

(II)
(III)

CONTENTS

Page

JULY 14, 2005

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana ............................ 7

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 11

Duncan, Jr., Hon. John J., U.S. Representative from the State of Tennessee .. 1

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma ................... 2

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 4

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ......... 9

Obama, Hon. Barack, U.S. Senator from the State of Illinois ............................. 31

Thune, Hon. John, U.S. Senator from the State of South Dakota ..................... 8

Vitter, Hon. David, U.S. Senator from the State of Louisiana ........................... 5

WITNESSES

Bodine, Susan P., nominated by the President to be Assistant Administrator,

Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ........................................................................................................... 15

Committee questionnaire.................................................................................. 63–69

Prepared statement .......................................................................................... 61

Responses to additional questions from:

Senator Boxer ............................................................................................72, 74

Senator Jeffords ......................................................................................... 70

Senator Lautenberg ................................................................................... 73–74

Senator Obama .......................................................................................... 74

Nakayama, Granta Y., nominated by the President to be Assistant Administrator, Enforcement and Compliance Assurance, U.S. Environmental Protection Agency ...................................................................................................... 17

Committee questionnaire.................................................................................. 78–86

Prepared statement .......................................................................................... 76

Responses to additional questions from:

Senator Boxer ............................................................................................ 87

Senator Jeffords ......................................................................................... 87

Peacock, Marcus, nominated by the President to be Deputy Administrator,

U.S. Environmental Protection Agency .............................................................. 13

Committee questionnaire.................................................................................. 40–48

Prepared statement .......................................................................................... 38

Responses to additional questions from:

Senator Boxer ............................................................................................ 55

Senator Jeffords ......................................................................................... 49

Senator Lautenberg ................................................................................... 54

Senator Lieberman .................................................................................... 59

Senator Obama .......................................................................................... 57

ADDITIONAL MATERIAL

Letters from:

Madigan, Lisa, Illinois Attorney General, April, 5, 3005 .............................. 91

Representative Lynch, May 9, 2005 ................................................................ 93

Representative Towns, May 9, 2005 ............................................................... 93

Representative Waxman, May 9, 2005 ........................................................... 93

Senator Boxer, May 9, 2005 ............................................................................ 93

Senator Obama, May 9, 2005 .......................................................................... 93
Page

IV

Outstanding Document and Information Request to the EPA from Senator

Jeffords, as of July 14, 2005 ................................................................................ 88–90
(1)

NOMINATIONS OF MARCUS PEACOCK, SUSAN

P. BODINE, AND GRANTA Y. YAKAYAMA

THURSDAY, JULY 14, 2005

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to other business, at 9:30 a.m. in

room 406, Dirksen Senate Building, Hon. James M. Inhofe (chairman of the committee) presiding.

Present: Senators Inhofe, Jeffords, Thune, Vitter, Baucus, Boxer,

Lautenberg, and Obama.

Senator INHOFE. The committee will come to order.

We will recognize Jimmy Duncan for a brief introduction. Then

when he is completed, we will have the panel come forward. At this

time, I will recognize my good friend, Jimmy Duncan.

Congressman Duncan from Tennessee.

STATEMENT OF HON. JOHN J. DUNCAN, JR., U.S.

REPRESENTATIVE FROM THE STATE OF TENNESSEE

Mr. DUNCAN. Thank you, Senator Inhofe. It was certainly a privilege to serve with you in the House and sit next to you on the

Transportation and Infrastructure Committee. As you know, I

chaired the Aviation Subcommittee for 6 years, and you served

with me on that. You were a great Member of the House and certainly are a great Member of the Senate.

It is an honor also to be here with Senator Baucus and Senator

Lautenberg. Senator Baucus’ in-laws live in Knoxville, and we are

always pleased to have him visit there.

It is a privilege for me to be here to introduce my good friend,

Susan Bodine. I have done this four or five times on the Senate

side. The last time I did this was, my good friend, Senator Baker,

asked me to introduce someone to the Senate Foreign Relations

Committee on his nomination to become Ambassador of Japan. As

you know, that was a totally non-controversial nomination. I think

the same could be said about the nomination of Susan B. Bodine

to be Assistant Administrator for the Environmental Protection

Agency.

I think this nomination is of the same caliber. We have 6-year

limits on our chairmanships, and while I still serve on the Aviation

Subcommittee, it has been my privilege to serve for the past 5

years as chairman of the Water Resources and Environment Subcommittee. Susan has been the staff director for that subcommittee

during that time. I can tell you, in my career as a lawyer, a judge,

and a Member of the Congress, I have worked with thousands and
2

thousands of people. Susan, in my opinion, is one of the absolute

best that I have ever worked with in any area, in any field.

She is a person of the highest integrity. She is one of the most

competent, capable people that I have ever worked with. She is a

graduate of Princeton and the University of Pennsylvania Law

School. She was with Covington and Burling, one of our outstanding law firms. Since then, of course, she has worked with me

on the Water Resources and Environment Subcommittee.

She is an environmentalist with a heart, and she knows that

there has to be balance. She knows that regulations fall the hardest or hit the hardest on the smallest of our businesses and farms.

She has technical competence, and I just could not say enough good

things about Susan Bodine.

I think the Environmental Protection Agency, one time when Administrator Whitman testified before us, I told her that I thought

she had one of the toughest jobs in Washington. Being one of the

top officials of the EPA I know will be a very difficult job. But I

don’t know anybody that could do a better job than Susan Bodine.

I was really honored when she asked me to come here and speak

on her behalf this morning. I can recommend her in the highest

possible way. We are very, very fortunate that she is willing to

serve this Nation in this manner.

Senator INHOFE. That’s good, Congressman Duncan. I thank you

for that very excellent introduction.

So that you will be aware of it, it is my understanding you have

the WRDA bill on the floor of the House right now, and you are

probably in desperate need of Susan’s help on that, I would guess.

Mr. DUNCAN. That’s correct.

Senator INHOFE. What I think is going to happen here, since we

have five stacked votes at 10 o’clock, we will take this on to 10:15,

then recess and reconvene at 3 o’clock. So you will have her during

that time, and you can prepare accordingly. Thank you very much,

Jimmy.

Mr. DUNCAN. Thank you very much.

Senator INHOFE. I would like to ask the others to take their positions at the table.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

The purpose of today’s hearing is to consider the President’s

nominees for three positions at the EPA: the Deputy Administrator, Assistant Administrator for the Office of Solid Waste and

Emergency Response, and Assistant Administrator for Enforcement

and Compliance Assurance.

For the two assistant administrator positions, there has not been

a confirmed person in place for a significant period of time. It is

my hope that we can move all of these nominees quickly.

For all of our nominees, these are their first positions that require Senate confirmation. So it is a new experience for you guys.

I want to extend a welcome to you and your families. In a moment,

we will ask you to, before your comments, each one introduce any

members of your family or those that are with you.

Marcus Peacock has been nominated to be the Deputy Administrator for the EPA, which is the second highest ranking position at
3

the EPA. This is a very important position for both the management as well as developing and implementing the overall policy direction of the Agency. I am pleased that we have a person of quality to fill that position.

Mr. Peacock has been serving in the Bush administration for

more than 4 years as the Associate Director for Natural Resource

Programs for OMB. Prior to that, Marcus worked for the House

Transportation and Infrastructure Subcommittee as staff director.

Interestingly enough, he did that the year that I left that committee and came over to the Senate. I guess you chased me off.

[Laughter.]

Senator INHOFE. In that position, he worked very closely with the

committee on a number of issues, including being the House lead

staffer in conference on the Disaster Mitigation Act, what we refer

to as the Inhofe bill. That turned out very well, so I am particularly pleased to see you here today.

Susan Bodine, I think we have heard a lot about her. Maybe we

don’t need to elaborate too much right now. We know about your

reputation, how hard you work and how fair you are. We are delighted to have you here in this very significant position.

I don’t think there is any doubt about Ms. Bodine’s credentials

to head this office. She comes from a strong policy background

dealing with the issues in this program office, including Superfund.

She is currently staff director and senior counsel for the House of

Representatives Water Resources and Environmental Subcommittee of the Committee on Transportation and Infrastructure.

As most of the committee knows by now, the No. 1 Superfund

site in the entire country is in my State of Oklahoma. It is known

as Tar Creek. We have made substantial progress at Tar Creek

since I became Chairman. We actually have people to sit down in

the room and talk to each other about it. I think we have made

some great strides.

Granta Nakayama has been nominated to serve as the Assistant

Administrator for Enforcement and Compliance Assurance. Mr.

Nakayama is a partner for environmental law and product safety

at the Kirkland and Ellis law firm here in Washington, DC. In addition, he is an adjunct professor at the George Mason University

School of Law, where he teaches environmental law.

He was previously with the U.S. Naval Nuclear Propulsion program, where he served in positions including chief of quality control as an engineer.

Now, I would like, before turning it over to Senator Jeffords, to

ask each of you the question to which you will have to verbally respond so we can record it, are you willing to appear at the request

of any duly constituted committee of Congress as a witness?

Ms. BODINE. Yes.

Mr. PEACOCK. Yes.

Mr. NAKAYAMA. Yes.

Senator INHOFE. Do you know of any matters which you may or

may not have thus far disclosed which might place you in any conflict of interest if you are confirmed to this position?

Mr. NAKAYAMA. No.

Mr. PEACOCK. No.

Ms. BODINE. No.
4

Senator INHOFE. Very good.

Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Thank you, Mr. Chairman. I would like to

thank all of the nominees here this morning, and want each of you

to know that your commitment to public service, which is being

demonstrated here today, is admirable.

Each of you has been nominated to assume a leadership position

in the Environmental Protection Agency. The Agency’s mission,

protecting the environment, is becoming more and more important,

and more and more challenging as this country continues to grow

and competing pressures are put upon the Nation’s resources.

In the positions that you now have been nominated to fill, you

will need to weigh these pressures and make decisions that will impact the health and safety of our environment and our citizens. It

is no secret that I have been deeply disappointed by many of the

decisions and policies of the Bush administration when it comes to

the environment. As I have stated on numerous occasions, I believe

the White House has a shortsighted view of many of the issues affecting our air and our water and our land.

As each of you are looking toward assuming these new challenges, I want you to know that there is a major challenge that I

have been faced with in dealing with your Agency, and that that

challenge is access to information. It is our duty to inquire from

time to time about the Agency’s conduct of its mission, the Agency’s

expenditure of funds and the Agency’s implementation of status in

its purview, including the development of regulations under those

statutes.

You may know that I have been requesting information from

EPA dating back to 2001 on clean air regulation and many other

programs within the Agency’s scope. After numerous discussions

about this request and others, promises were made that the information would be forthcoming. I am still waiting. I probably sound

like the broken record, but every EPA nominee that has come before this committee since I rejoined the committee in 2001 has said

they would work with us toward fulfilling the information requests,

and I am still waiting.

It is my hope that each of you will help me and others on this

committee to fulfill our obligations to the American people for complete information regarding the health and safety of our environment. I will just say I am tired of waiting, and hopefully you will

relieve me of that burden.

[The referenced document follows on page 88.]

Thank you.

[The prepared statement of Senator Jeffords follows:]

STATEMENT OF SENATOR JAMES M. JEFFORDS, U.S. SENATOR FROM THE

STATE OF VERMONT

Each of you has been nominated to assume a leadership position at the Environmental Protection Agency. The Agency’s mission—protecting the environment—is

becoming more and more important and more and more challenging as this country

continues to grow and competing pressures are put on the nation’s resources. In the

positions that you have been nominated to fill, you will need to weigh these pres-
5

sures and make decisions that will impact the health and safety of our environment

and our citizens.

It is no secret that I have been deeply disappointed by many of the decisions and

policies of the Bush administration when it comes to the environment. As I have

stated on numerous occasions, I believe the White House has a short-sighted view

on many of the issues affecting our air, our water and our land.

As each of you are looking toward assuming these new challenges, I want you to

know that there is a major challenge that I have been faced with in dealing with

your Agency, and that challenge is access to information.

It is our duty to inquire from time-to-time about the Agency’s conduct of its mission, the Agency’s expenditure of funds, and the Agency’s implementation of statutes in its purview, including the development of regulations under those statues.

You may know that I have been requesting information from EPA, dating back

to 2001, on Clean Air Act regulations and many other programs within the Agency’s

scope. After numerous discussions about this request and others, promises were

made that the information would be forthcoming. I’m still waiting.

I probably sound like a broken record, but every EPA nominee that has come before this Committee since I rejoined the Committee in 2001 has said they would

work with us toward fulfilling the information requests, and I’m still waiting.

It is my hope that each of you will help me and others on this Committee fulfill

our obligations to the American people for complete information regarding the

health and safety of our environment. I am tired of waiting. Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Jeffords.

We will do the early bird rule, it will be Senator Vitter, Senator

Baucus, Senator Thune, Senator Lautenberg and Senator Boxer.

Senator Vitter.

OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR

FROM THE STATE OF LOUISIANA

Senator VITTER. Thank you, Mr. Chairman, thank you, Ranking

Member Jeffords, for this hearing today.

I appreciate the opportunity to be with the nominees, and I certainly echo Senator Jeffords’ comments thanking you for your commitment to public service.

Mr. Chairman, I am a little biased, but I have found some of the

best things to come around here on the Senate side come from the

House side. Two of our nominees are great examples of that today.

I had the real pleasure of working with Susan in the House. She

was incredibly helpful in helping us with the Lake Pontchartrain

cleanup legislation when I was in the House. I know Chairman

Young will face a real loss, but the EPA a huge gain as she moves

over there.

I have also worked with Marcus on the House Transportation

Committee and had the opportunity to work with him after he

moved to OMB as well. Probably better results when he was at

Transportation than OMB, but had the pleasure of working with

him in all situations.

Grant I have not worked with before, but I have a great deal of

respect for him. We both have higher degrees in Cambridge, MA,

which I think makes us the two only Republicans in recent human

history to come out of Cambridge, MA. I respect his background.

On a serious note, I have met with two of these nominees about

an issue I continue to be very focused on with this committee, and

that is the proper relationship and use of section 10 of the Rivers

and Harbors Act of 1899 and the relationship between that and

section 404 of the Clean Water Act.
6

Senator INHOFE. Why don’t you hold up just a minute and let’s

find out who is hammering in the next room?

[Laughter.]

Senator INHOFE. Then we will continue.

His comment about the House is very appropriate. I think Senator Lautenberg is the only one at this table who did not serve in

the House.

OK, Senator Vitter.

Senator VITTER. Thanks, Mr. Chairman.

As you know, I have a huge concern about some very recent use

of section 10 of the Rivers and Harbors Act of 1899 used by the

Corps to regulate activity miles and miles off any open navigable

waters in Louisiana. Of course, section 10 is about navigable waters and keeping it clear for navigability.

There are some real issues off those waterways; in particular,

issues in Louisiana about the proper or improper logging of trees

in coastal wetlands areas, coastal forests. I believe the right area

of the law to address that in is section 404 of the Clean Water Act.

So I have talked to two of these nominees specifically about being

engaged with EPA in terms of re-looking at the application of section 404, the proper relationship between that and section 10. I

think that is a very promising and very correct way to address the

real issues that we have in some of these areas well off any navigable waterway, and not abuse and expand the role of section 10

and use of that by the Corps.

So I look forward to continuing to work with these folks and EPA

on that solution, work with the committee as well in the context

of WRDA. Thank you, Mr. Chairman.

[The prepared statement of Senator Vitter follows:]

STATEMENT OF SENATOR DAVID VITTER, U.S. SENATOR FROM THE

STATE OF LOUISIANA

Chairman Inhofe, Ranking Member Jeffords, thank you for holding this hearing

today. I appreciate the opportunity to hear from our nominees. Before they get started, I want to make a few brief comments.

I have reviewed the background of our nominees and am biased toward the confirmation of at least two of them. You know, Mr. Chairman, there is one thing I

have found many good things come from the U.S. House of Representatives and two

of our candidates come from the other body.

I had the pleasure of working with Susan Bodine in the House. She was incredibly helpful in progressing the cleanup of Lake Pontchartrain and I was always impressed by her substance on issues. Chairman Young will have a significant loss

and the EPA a huge gain in your new position. I wish you the best and look forward

to working with you in your new role.

Marcus Peacock also worked for the House Transportation Committee and we had

the opportunity to work together on budget issues while he served at OMB. He

wasn’t always as loose with the checkbook as I had hoped, but he was always fair

and upfront in our dealings.

The only thing in common I could find with Grant Nakayama is that we both attended school in Cambridge so I guess that make us the only two Republicans to

come out of Cambridge, MA.

On a serious note, I have met with some of you regarding an issue we are having

in Louisiana with the Corps of Engineers attempting to use a provision designed

to prevent ‘‘obstructions to navigation’’ on dry land.

Section 10 of the Rivers and Harbors Act of 1899 was intended to regulate, and

I quote ‘‘wharfs, piers, dolphins, booms, weirs, breakwaters, bulkheads, jetties, or

the structures’’. The Corps recently determined that their Section 10 jurisdiction

could extend, ‘‘several miles from open navigable water’’ in Louisiana.

This committee passed an amendment to the Water Resources Development Act

(WRDA) by a 12–6 vote to clarify the Corps jurisdiction. I am committed to working
7

with a number of Senators on the committee to address their concerns and believe

the EPA could play an important role in this resolution.

As you know, Congress passed the Clean Water Act to protect and improve our

water quality. In an attempt to solve our problem here, I believe we should explore

the relationship of the Section 10 and Section 404 regulatory programs. I look forward to working with you to resolve this issue.

I thank the witnesses for being here today and look forward to your statements.

Senator INHOFE. Thank you, Senator Vitter.

Senator Baucus.

OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.

Mr. Chairman, I am most interested in the nomination of Mr.

Granta Nakayama to be Assistant Administrator for the Office of

Enforcement and Compliance Assistance at EPA. While I value my

relationship with all appointees at EPA, and for many, many years,

given my State’s close working relationship with the Agency, particularly through the Superfund program, and I must say, we have

a lot of Superfund sites in Montana, Mr. Nakayama’s background

raises particular issues and concerns in relation to Libby, MT.

I understand that Mr. Nakayama is currently a partner at the

firm of Kirkland and Ellis. Kirkland and Ellis represents W.R.

Grace in that company’s chapter 11 bankruptcy filing.

The firm also defends Grace against the criminal indictments

that were brought against the company and against seven current

and former Grace executives by the Justice Department. Those indictments allege that Grace and its executives engaged in a protracted conspiracy to hide the dangers of its vermiculite mining

and milling operations from the people of Libby, MT.

Mr. Chairman, these issues are relevant because it has become

clear that W.R. Grace deliberately shielded billions in assets prior

to filing for bankruptcy, leaving victims and the Government with

pennies on the dollar for health care and cleanup costs. Only a

small percentage of the money that Grace spun off has been recovered by the bankrupt estate.

Grace has also consistently fought having to pay its fair share of

cleanup costs in Libby, recently appealing a 2003 Federal District

Court ruling that it owes over $50 million to the U.S. Government

and to U.S. citizens. To date, cleanup costs in the town of Libby

have topped $100 million, due to the extensive nature of the contamination there, where asbestos has been found in hundreds of

homes, gardens, high school tracks and other areas, subjecting area

residents to ongoing exposure to asbestos fibers.

Mr. Chairman, I wish you could meet Les Gramstead. I wish Mr.

Nakayama could meet Les Gramstead. Les Gramstead was a

miner. Les came down every day from the mine, his clothes caked

with dust and powder. He would go home, embrace his wife, kids

jump into his lap, they all have asbestos related disease. All of

them. That is just one example.

At that time and prior to that time, W.R. Grace knew it was contaminating Libby. It knew it. Records show it. What did Grace do

about that? Nothing. Did Grace tell its citizens? No. Did Grace

enact some protective actions to shield its employees from health

risks? No. Nothing. Nothing. Nothing.
8

Now that this has been uncovered, what has Grace done to give

health benefits to people? Paltry little pittance. Plans that are full

of loopholes, full of caveats, don’t amount to anything. What recourse do the people of Libby have with respect to W.R. Grace?

Again, nothing. There are no assets left. Grace and the firm of

Kirkland and Ellis figured out a way to transfer 80 or 90 percent

of Grace’s assets off and have it shielded, so the people of Libby

have no assets to go after.

This is a huge problem, Mr. Chairman. It’s not just Les

Gramstead. It’s maybe 20 percent of the people of Libby, MT, who

have asbestos related diseases. And this isn’t just ordinary asbestos. This is tremulite asbestos. Tremulite asbestos is much more vicious. Why? Because it is a form of asbestos, tremulite asbestos,

gets into your lungs, has deeper hooks that lasts longer, longer latency, harder to detect, and it kills more easily. People in Libby are

dying, and some have already died.

So the question is, what do we do about this? It may be unfortunate that Mr. Nakayama has been tainted by Grace’s reputation in

my home State, and indeed elsewhere in the country. I understand

that Kirkland and Ellis has stated that Mr. Nakayama has nothing

to do with the firm’s representation of W.R. Grace.

However, I would not be doing my duty to represent the best interests of the citizens of the State of Montana and Libby if I did

not carefully consider Mr. Nakayama’s nomination and any connection he may or may not have with W.R. Grace.

It is critical, as zealous enforcement is necessary in this instance

to hold Grace accountable for the full extent of its wrongdoing in

Libby. There is not a lot of gray area here. Anything that might

weaken such enforcement raises a red flag with me. At the very

least as a partner at Kirkland and Ellis, Mr. Nakayama has profited, he has profited by his firm’s representation of Grace.

Additionally, if confirmed, Mr. Nakayama will have to recuse

himself from any matters involving W.R. Grace at EPA. What kind

of message does this send to EPA’s rank and file and to Grace, if

EPA’s top enforcer cannot lead the charge against such an egregious violator of the Nation’s environmental and public health and

safety laws?

Given the scope of Mr. Nakayama’s environmental practice at

Kirkland and Ellis, in how many other instances will Mr.

Nakayama have to recuse himself in pursuing an enforcement matter? These are important considerations to take into account as we

review Mr. Nakayama’s record and his fitness to hold the top enforcement post at EPA.

Mr. Chairman, I look forward to hearing from Mr. Nakayama directly and from other nominees. Thank you.

Senator INHOFE. Thank you, Senator Baucus.

Senator Thune.

OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR

FROM THE STATE OF SOUTH DAKOTA

Senator THUNE. Thank you, Mr. Chairman and Senator Jeffords.

I also want to welcome our nominees here this morning and will

be very brief in my remarks. These are important jobs, important
9

positions that we are talking about and important issues with

which you will deal in your capacities there.

But as Senator Vitter alluded to, I also had the experience of

working with Ms. Bodine and Mr. Peacock as a member of the

House Transportation Committee. Both are extremely highly qualified and capable public servants, people who operate with a high

level of professionalism and I had the chance to work with them

on the last highway bill, TEA–21 and subsequently with Mr. Peacock at the OMB, although I would echo what Senator Vitter said,

his answers always seemed to be more favorable when he was on

the Transportation Committee than they were at OMB.

But in any event, both of these people bring great experience,

quality capabilities and solid character to your new positions, and

I very much look forward to working with you. Also, Mr.

Nakayama, I should say I don’t have experience with, but I look

forward to working with you as this process moves forward as well.

We hope that we will have a lot of successes in the years ahead

in addressing what are some of the major challenges facing us in

terms of environmental policy and doing it in a way that is conscious and consistent with the very best environmental standards,

but in a sensible and common-sense, science-based approach, which

I think is a perspective that I hope we can all bring to this process.

Thank you again for your willingness to serve. I look forward to

your testimony and to working with you as the confirmation process moves forward.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Thune.

Senator Lautenberg.

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Thanks, Mr. Chairman, for calling this

hearing and giving us an opportunity to learn more about the

qualifications of these nominees. The American people are so dependent on Government to protect them against environmental

problems, global warming, contaminated water, polluted air, all of

those things. This is one of the principal committees in establishing

standards for our future generations, our children, our grandchildren.

I am concerned also about the fact that Mr. Nakayama and Mr.

Peacock both have had significant private interests on the side of

industry before serving in the Government. It seems that at EPA

vigilance is lacking. When I see the Justice Department cave in to

the tobacco industry, when a former big oil executive revised reports on global warming, it raised doubts on the part of the American people. Our Government has to look out for the public interest,

not the particular special interest.

That is true, absolutely true in case of the positions that both of

you are ready to assume. We are being asked to confirm Mr. Peacock as the Deputy Administrator, Environmental Protection Agency. His job is to use the skill and knowledge that he has acquired

for all of our people. The nomination comes at a time when EPA

scientists have expressed concerns about a new Agency plan for

risk assessments that will give more influence to special interests.
10

When we had an opportunity to talk a few weeks ago, Mr. Peacock, I asked that you look into that situation, and I am still waiting to hear from you.

[The response referred to follows:]

I have looked into the issues you raised, and my response indicates what I have

learned about this issue.

There are two major purposes of the proposed changes: (1) to identify and resolve

major scientific issues early in the assessment development process and thereby facilitate high quality and timely completion of assessments; and (2) to increase transparency in the assessment development process and thereby assure full and open

consideration and scientific review of relevant information.

EPA is planning to hold a public workshop on the proposed new process to solicit

comments, suggestions and concerns from the IRIS user community and stakeholders. The workshop will be announced in the Federal Register and on the IRIS

web site.

Senator LAUTENBERG. We are being asked to confirm Mr.

Nakayama as a top ranking compliance official. Your job would be

to make sure that industry is complying with guidelines and regulations that are put in place to protect the American people.

I remind each of you that you may have to wear a different hat

in this job, and I hope that you can focus on what the American

people need.

When I came to the Senate, as the Chairman noted, I am the

only one here who did not come from the House of Representatives.

I came from the corporate world. I was asked by a reporter during

the campaign what I would do if a question came up, with my company doing any business with the Government. I made a commitment that I would sell the stock that I had in the company, and

it turned out to be a very large company, because my mission, as

I took the oath, I knew that it was my mission to take care of the

people I represented.

When I think about my legislative responsibilities, I always picture my 10 grandchildren. They are all very young, the oldest is

11. When I see that he has asthma and my daughter has to find

the nearest emergency room before he can play baseball or whatever sport he is engaged in to make sure that if he has an attack

that they can take him to the right place.

But each of you who have family responsibilities also have to

have the same feeling about what you want. So when we have a

chance to ask questions, Mr. Chairman, we will go into some detail

and hope that we can establish the fact that the particular roles

that you had in the past are behind you and we are going to be

looking forward as representatives of the American people. Thank

you.

[The prepared statement of Senator Lautenberg follows:]

STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Mr. Chairman, thank you for calling this hearing and giving us an opportunity

to learn more about the qualifications of these nominees. The American people depend on our Government to be vigilant in safeguarding our environment and health.

In some cases lately, it has seemed that vigilance was lacking.

When the Justice Department suddenly appeared to cave in to the tobacco industry or when a former big oil executive revised reports on global warming . . . it

raised doubts in the minds of the American people. Our government must look out

for the public interest—not special interests. That is certainly true in the case of

the important positions we are considering today.
11

We are being asked to confirm Mr. Peacock as a Deputy Administrator of the Environmental Protection Agency. His job would be to protect our environment—not

the industry he used to represent. His nomination comes at a time when EPA scientists have expressed concerns about a new agency plan for risk assessments that

will give more influence to special interests. When I had an opportunity to speak

with Mr. Peacock a few weeks ago, I asked him to look into that situation. I’m still

waiting to hear back from him.

We are also being asked to confirm Mr. Nakayama as a top-ranking compliance

official. His job would be to make sure that industry is complying with guidelines

and regulations that are put in place to protect the American people. Before we can

confirm him, he needs to assure us that his first allegiance would be to the public

interest—not special interests.

I look forward to the opportunity to ask these nominees some questions about how

they would approach the jobs for which they have been recommended. Once again

Mr. Chairman, thank you for holding this hearing.

Senator INHOFE. Thank you, Senator Lautenberg.

Senator Boxer.

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Thanks, Mr. Chairman, very much for this opportunity.

I have little chance to talk about the problems with the Superfund program, just because we haven’t had hearings in many years,

frankly. So this is an opportunity for me to focus in on that program. As we all know, the heart of EPA’s mission is to protect the

health of our citizens, including families, and I believe particularly

young children. That is a moral responsibility. Of course these

nominees, whom I welcome here this morning, will be entrusted

with that important responsibility.

As the ranking member for the Superfund and Waste Management Subcommittee, I want to focus my remarks this morning on

the Superfund program and the kind of leadership that will be

needed to effectively deal with the threats to the health and welfare of the 10 million children who live within 4 miles of a Superfund site. Let’s think about that: 10 million children who live within 4 miles of a Superfund site. We know which States have the

most sites, California has almost 100 sites. There are those on this

committee who have even more sites.

So we need to do much more than we are doing to protect from

the threat posed by these sites.

I want to illustrate the point, Mr. Chairman. This is important,

your staff was there. In a recent staff briefing, my staff asked a

senior representative of the Superfund program a question. In answering that question, he said, ‘‘There are over 100 sites where

human exposure is not under control.’’ There are over 100 sites

where human exposure is not under control. In other words, where

the children and the families are getting impacted with the poisons

on those sites.

Now, if you go up on EPA’s web site, you will find that that is

the case. One hundred and three Superfund sites, this is directly

from their website, in 33 States, where human exposure is not

under control. I would like to ask that this be included in the

record, and I will share it with colleagues on both sides of the aisle,

so you can see where your State fits into this.

Senator INHOFE. Without objection.

Senator BOXER. I will pass it along.
12

What is very troubling is that EPA on this website says very little about the extent of the risks there. So I intend to ask this nominee about this disturbing fact, and for detailed information on

these sites and the risks that they pose. I want to join with Senator

Jeffords. For so long we have been trying to get information. We

cannot get information. Whether you are a Republican or a Democrat, we should be able to get information.

Now, if one of my colleagues on the other side gets this information, he may feel that one or two sites disturb him or her, and I

may feel that 80 disturb me, that’s not the question. We deserve

to have this information. These are our children.

I asked my staff to follow up on one particular site because it

had gotten a lot of publicity. It happens to be in Nebraska. What

we found, along with other information, shows that there are serious deficiencies in the Superfund program that need to be addressed by any future leader of that program.

The Omaha lead site covers thousands of acres where tens of

thousands of people live. Several hundred children have tested

positive for the past several years for lead poisoning, some quite severe. CDC estimates the number as much higher.

Much of the site affects residential areas, so many children are

affected through their homes, schools and day care. The Washington Post ran a front page story at Thanksgiving on one of the

young victims, and we will just show you a picture. Elam Jacob is

5 years old. He has suffered irreversible brain damage from extraordinarily high levels of lead exposure. This beautiful child.

This site attracted enough attention that Members of Congress

got involved. The Administrator paid a visit, and more money was

announced. But the Superfund program does not have the funds to

ensure that the worst yards in this site are addressed in less than

5 years. In the meantime, Elam’s mother explains that the EPA

has said the children should not play on windy days. I want to ask

all of us here who are dads, moms, grandmas and grandpas, this

is what they have to tell their children, don’t play on windy days,

and take your shoes off when you come inside and other kinds of

things. It goes back to Senator Baucus’ point, a simple thing of taking a child on your lap.

This is what these families are putting up with because we

haven’t cleaned up the site. To me, to tell a child, don’t play outside

on a windy day, is simply not an option for what we should be

doing.

Mrs. Jacob has pleaded with EPA to test her yard for months,

and they have not done it. Now Mrs. Jacob’s youngest child has

also tested positive for lead poisoning. Now they have two children

with lead poisoning, and EPA says, sorry, 5 years at the least until

we can clean it up.

So here’s what we have. We have these sites——

Senator INHOFE. Let me interrupt for just a minute. Are you

about to wrap up? Because you have gone considerably over your

time.

Senator BOXER. I am, you will be happy to know.

I will ask unanimous consent that the rest of my statement be

placed in the record, and I will wrap up in 1 minute.

Senator INHOFE. Without objection.
13

Senator BOXER. I know it is hard to hear this. I don’t like to talk

about it, either. But that’s what’s happening at these sites. This

isn’t just on a piece of paper a list of sites. These are sites where

children live very close to them. It’s dangerous, and we cannot get

the information.

So to get to the point, Ms. Bodine, I think you can tell I am going

to want information from you. I am going to want a pledge for the

information. In the question period, I will ask specifically what I

want and will get your commitment, I trust, to that information.

Thank you very much, Mr. Chairman.

Senator INHOFE. Thank you, Senator Boxer.

Our votes have started, but we are going to go ahead and take

15 minutes now, and I would like to see if we couldn’t possibly get

through our opening statements. I would like to have all of you

who have brought family here to begin by introducing your families, because they may not be able to return at 3 o’clock.

Mr. Peacock.

STATEMENT OF MARCUS PEACOCK, NOMINATED BY THE

PRESIDENT TO BE DEPUTY ADMINISTRATOR AT THE U.S.

ENVIRONMENTAL PROTECTION AGENCY

Mr. PEACOCK. Thank you very much, Mr. Chairman, Senator Jeffords, for scheduling this hearing today.

I will go ahead and just briefly introduce my family that is here

today. First of all, my wife, Donna McLean.

Senator INHOFE. Please stand up.

Mr. PEACOCK. She has a child on her lap. She may be familiar

to some members of the committee. She was the Chief Financial

Officer at the Department of Transportation for a number of years.

She has brought my two 8-year-old daughters, Mey McLean and

Iona McLean, who inexplicably decided to wear similar dresses

today. I don’t know how that happened.

[Laughter.]

Mr. PEACOCK. Also, from New York City, my sister, Felicity

Fridman is visiting, and her son, Vladmir Fridman. Then from

Rush Tower, MO, and I think while they are here the population

of Rush Tower has been reduced by about 25 percent, my motherin-law, Carolyn McLean and father-in-law, Ray McLean.

Then finally, from Chevy Chase, DC, I have my sister-in-law,

Robin Miles McLean, who is a former employee of EPA and now

full-time mom. She has brought her workload with her today, Jacob

Miles-McLean, Haley Miles-McLean, and finally, little Nate. I appreciate their support.

Senator INHOFE. Your time has expired.

[Laughter.]

Mr. PEACOCK. It’s all yours, Susan.

Senator INHOFE. Please continue.

Mr. PEACOCK. Mr. Chairman, Senator Jeffords and distinguished

members of the committee, I am honored to appear before you

today as the President’s nominee for the position of Deputy Administrator of the Environmental Protection Agency. I am indebted to

the President for his trust and the privilege of serving in this new

capacity.
14

There are three important things I would like you to know about

me. They make up who I am and govern how I would conduct the

job of Deputy Administrator, if confirmed. First, I am a first generation American. My parents emigrated from war-torn Europe

with three suitcases, a couple of trunks and $200. They left their

family and friends behind and took a great risk, not just for themselves, but for their children and their children’s children. That is

the greatest gift that I have ever received.

I love this country and cherish the rights we enjoy, rights that

give us the opportunity to realize our dreams. The first function of

any government, in my opinion, is to protect and honor those

rights.

Second, I grew up in Minnesota, and Minnesota gave me two

things. First, you can’t grow up in Minnesota without developing

an appreciation for the outdoors. Even when it’s 20 degrees below

zero. Indeed, I was at winter camp when I first developed a great

interest in the environment. I was about 15 years old and laying

out an orienteering course. I found myself in the middle of a frozen

lake, while a fellow Boy Scout moved a marker along the shoreline.

For some reason at that moment, the peacefulness and the serenity of that setting really connected with me. From that time on, my

eyes were opened to a deeper interest in the wonder of nature.

That started a lifelong interest in the natural world. It first drove

me to an interest in science and then ultimately engineering. It’s

a fascination my wife and I now share with our children by going

hiking, camping, canoeing and birdwatching.

Minnesota also gave me a strong sense of community. Public

service is a high calling in Minnesota. An adage etched on the old

Minnesota Convention Center really struck home with me. It said,

‘‘Participation in the rights of citizenship presumes participation in

the duties of citizenship.’’ My parents had helped me appreciate the

rights of citizenship in the United States, but Minnesota helped me

understand that those rights came with an obligation to the community and to the Nation.

Finally, I am an engineer. I have not practiced engineering as a

profession for many years. Nonetheless, I think I practice engineering every day. Because to me, the core of engineering is a disciplined process for problem solving. It requires one to be clear,

open-minded and analytical. It focuses on getting results.

As a manager and a budget officer, I have seen many different

types of problems. Engineering has given me the skills to break

them down into manageable pieces and work with others to come

up with solutions that get results. I think that’s exactly the kind

of skill one needs to be a Deputy Administrator.

Should I be confirmed, I would bring to EPA a strong sense of

public service, a deep appreciation for the environment and an excellent set of problem-solving and management skills. Under the

President’s leadership, our country has made great strides in cleaning up our air, water and land in a way that allows our Nation to

continue to grow and prosper. The air my children breathe today

is much cleaner than when I was a kid, and our food and drinking

water supplies are safer and our land is better protected.

Building on this success, EPA Administrator Steve Johnson has

laid out two challenges for the Agency. First, we must make sure
15

we are using the best available science to make decisions. Second,

we must formalize collaborative approaches to solving problems.

On this second point, as has been said before, traditional methods

of environmental protection do not work as well as in the past on

our remaining environmental challenges. Collaborating with States

and other partners to solve remaining environmental problems

needs to become more routine. I look forward to helping the Administrator tackle those challenges.

Mr. Chairman, if confirmed, I will do everything I can as Deputy

Administrator to continue to serve the people of this great country,

protecting their health and the health of the environment. I thank

you very much and would be happy to answer any questions.

Senator INHOFE. Thank you, Mr. Peacock, for that excellent opening statement.

Ms. Bodine.

STATEMENT OF SUSAN P. BODINE, NOMINATED BY THE PRESIDENT TO BE ASSISTANT ADMINISTRATOR, OFFICE OF SOLID

WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Ms. BODINE. Thank you, Senator.

First, let me introduce my family. I have with me today my husband, David Bodine, who is a research scientist at the National Institutes of Health, and my two sons, Christopher Bodine, he is 14

years old and about to enter high school in the fall, and then my

second son Steven Bodine, who is 11 years old and about to enter

middle school in the fall.

Senator INHOFE. Thank you very much.

Ms. BODINE. Mr. Chairman, Senator Jeffords, distinguished

members of the committee, thank you for the privilege of appearing

before you today as nominee for the position of Assistant Administrator for the Office of Solid Waste and Emergency Response. I am

honored that President Bush, Administrator Johnson and this committee are considering me for this position.

I have worked on environmental issues for my entire 17-year professional career, first as a practicing attorney and then as counsel

to the Water Resources and Environment Subcommittee of the

House Committee on Transportation and Infrastructure. In private

practice, I learned the substance of our environmental laws, but I

also learned from experience that the best way to approach a cleanup problem was from a technical and engineering perspective.

In fact, I found that the best way to approach these issues was

to get all the scientists and engineers in a room and find the most

cost-effective way of cleaning up the site. That is the outcome that

everybody wants to achieve.

I also found it very rewarding to work with clients to keep them

in compliance with the law. This was very challenging. Many of our

environmental statutes are extremely complex and the regulations

are even more so.

When I moved to Capitol Hill to work on the staff of the House

Transportation and Infrastructure Committee, I kept these same

objectives and approach: focusing on an outcome, a clean environment, but also trying to ensure that the laws that are established

to achieve this outcome are clear, understandable and workable.
16

It has been my experience over 101⁄2 years working in the House

that even when an issue is contentious or complex, if you start by

trying to identify your goal and agree on a common goal, then it’s

much more likely that you are going to find common ground on

how to achieve that goal.

As this committee knows, that was the process used to develop

the Small Business Liability Relief and Brownfields Revitalization

Act, which was the subject of several years of work and became law

in January 2002. To reach agreement on the first title of that Act,

environmental and business groups had to agree that holding small

business owners liable for municipal solid waste was not going to

facilitate cleanups.

To reach agreement on title II of that Act, which is the

Brownfields Revitalization title, municipal groups, developers and

environmental groups all had to agree that stimulating brownfields

development was a goal that everyone wanted to achieve. The

method to achieve that goal was changing Superfund liability, to

address the issue of prospective purchaser liability. But by focusing

on the goal, the groups achieved consensus that changing liability

was acceptable.

If confirmed by the Senate, I would like to take the same consensus-building approach to my new duties in the Office of Solid

Waste and Emergency Response. I know that we all share the goal

of protecting the environment. I know that we share the goal of

seeing hazardous waste sites cleaned up more quickly, and I know

we share the goal of making environmental regulations clear, understandable, and implementable.

If confirmed by the Senate, I would work with all of you on a bipartisan basis to find sustainable solutions to achieve these goals.

American citizens expect and deserve a thriving economy and a

clean, safe and secure environment.

I am going to submit the rest of my statement for the record, and

let me just say in closing, I look forward to any questions you and

your colleagues may have. Thank you very much.

Senator INHOFE. Thank you.

Mr. Nakayama, if you would prefer to withhold your opening

statement until we have more here, it seems like some of those

who are making some of the accusations are off voting now. Would

you prefer to do that?

Mr. NAKAYAMA. That would be fine.

Senator INHOFE. All right, then what we will do is go ahead and

recess until 3 o’clock. Do you have any family here to introduce?

Mr. NAKAYAMA. Yes, I do.

Senator INHOFE. Why don’t you go ahead and do that, so they

won’t have to come back.

Mr. NAKAYAMA. Thank you, Senator.

Mr. Chairman, my wife Larrene is here today and my daughter

Meredith, who will be entering seventh grade, is here also.

Senator INHOFE. That’s great. It’s nice to have both of you here.

We will go ahead and do that. You will be on first thing at 3

o’clock for your opening statement, then we will have our rounds

of questioning take place.

Thank you very much. We are in recess.

[Recess.]
17

Senator INHOFE. The meeting will come to order.

When we left last time, Mr. Nakayama had not had a chance to

make his opening statement. We will recognize you for that purpose now.

STATEMENT OF GRANTA Y. NAKAYAMA, NOMINATED BY THE

PRESIDENT TO BE ASSISTANT ADMINISTRATOR, ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Mr. NAKAYAMA. Thank you, Mr. Chairman.

Mr. Chairman, Senator Jeffords, distinguished members of the

committee, it is an honor and a pleasure to appear before you this

afternoon as the nominee to be EPA’s Assistant Administrator for

the Office of Enforcement and Compliance Assurance.

I am honored that President Bush and Administrator Johnson

have invited me to join the Administration to improve public health

and the environment in this great Nation. EPA has an important

responsibility to protect the land, air and water of our Nation.

From the Agency’s inception, compliance and enforcement have

been an important cornerstone of EPA’s programs to improve public health and the environment.

Vigorous enforcement is a crucial tool that ensures the promise

of our environmental statutes becomes an environmental reality.

Administrator Johnson has expressed his commitment to a strong

Federal enforcement program, and it is incumbent upon any nominee for this position to share that commitment.

Just as Americans must be able to trust and rely on EPA to protect the land, air and water, the Agency is committed to obtaining

the support of citizens and communities throughout our country in

protecting the environment. If confirmed, it will be my goal to work

collaboratively to ensure that citizens can both more easily assist

EPA in identifying potential environmental enforcement issues and

can more easily receive assistance in complying with environmental

regulations. The goal is to make a more ‘‘user-friendly’’ and efficient enforcement organization.

To this end, my prior experiences have provided me with some

unique preparation for this position. The Assistant Administrator

for Enforcement and Compliance Assurance must have an understanding of environmental law. I am currently a partner at

Kirkland and Ellis in the environmental and product safety practice area. I joined the firm in 1994 after attending law school in

the evening and graduating as the valedictorian. The first case I

worked on as an attorney was an environmental enforcement matter brought by EPA’s enforcement staff, and I have worked on similar matters ever since.

Today, my practice includes advising clients on a daily basis regarding their responsibilities in complying with our Nation’s numerous environmental statutes. Since 1998, I have also served as

an Adjunct Professor of Law at the George Mason University

School of Law, where I currently teach Environmental Regulation.

Practicing and teaching environmental law has provided an appreciation of the challenges of understanding, complying with, and enforcing these complex statutes.
18

Second, the nominee must be able to manage a large organization within the unique structure of the Federal Government. I

started my career in the military, in the U.S. Navy. After being selected by Admiral Rickover and serving for 5 years as an officer in

the Navy Nuclear Propulsion Program, I then served for 8 years as

a civilian manager reporting to Admiral Rickover’s successors. In

that program, I oversaw the manufacture of the prototype reactor

for the Seawolf submarine, the SSN–21.

Later, I was a manager with responsibility for welding, non-destructive testing, and quality assurance. During this formative period, I observed first-hand the high standards and dedication of the

individuals who served in the Naval Nuclear Propulsion Program,

and the results that could be achieved by a group of highly motivated Federal employees.

Last, I have found that technical training and the ability to process technical information can provide additional insights into the

practice of environmental law. My educational background, including Bachelor and Master of Science degrees from MIT in Nuclear

Engineering, combined with my prior experience as a practicing

nuclear engineer, has provided a strong technical background. In

my experience, a first-hand understanding of the technology and

science at issue in the environmental area inevitably leads to a

deeper and more realistic appreciation of the problems and challenges faced by both regulators and the regulated community.

EPA is most fortunate to have a very dedicated, extremely capable staff in the enforcement and compliance assurance office. I have

personally worked with many of them over the last decade and I

have been uniformly impressed by their dedication and professionalism. They work extremely hard because they care about the

environmental health of the Nation. As enforcers of the environmental laws, they must also adhere to the highest ethical standards. It is a group that any environmental attorney or engineer

would be proud to join.

If you should honor me by confirming my nomination, I look forward to working with the members and staff of this distinguished

committee, Administrator Johnson, and President Bush to make

the environment better for all Americans. Thank you for the opportunity to appear before you today. I will be happy to answer any

questions.

Senator INHOFE. Thank you very much, Mr. Nakayama.

First of all, in my opening statement, and I am sure you were

aware of it before this hearing, we talked about Tar Creek, the

most devastating Superfund site in America. For 25 years, they

poured money on the problem, they tried different things, nothing

seemed to work. They were trying to get people to move out, without correcting the problem. We had to remind them, it’s going to

have to be corrected anyway.

When I became chairman, I felt that if an effort can be done, it

should be done during my chairmanship. If I didn’t do it, I would

be quite embarrassed.

I found that the major problem that we had at that time was the

various bureaucracies not working with each other. We had the Bureau of Indian Affairs, we had the Department of Interior, we had

the Corps of Engineers, we had the EPW, all of them that wouldn’t
19

get in the same room together. Since that time, we have changed

that. They have come together, we now have a plan, and it is working with all of the Federal agencies, as well as the State of Oklahoma DEQ. The University of Oklahoma is the lead Agency, the

contractor. We are actually making headway in getting it done.

This is mainly because it enjoyed the top priority of the EPA and

at that time the previous chairman, Mike Leavitt. So I guess I

want to ask each one of you, if I have every bit the commitment

from you that we had from Mike Leavitt and that we are going to

be getting from Steven Johnson? I’ll start with you, Mr. Nakayama.

Mr. NAKAYAMA. Thank you, Mr. Chairman. You have my commitment. I understand that the Tar Creek site is a very important priority for the Agency, appropriately so. Thanks to your efforts, we

have made tremendous progress, the Agency has made tremendous

progress, and I look forward to working with you and the committee to continue that progress. I understand Region VI has recently submitted a claim for over $100 million for cleanup costs

and that work is proceeding, and it is proceeding at a rapid pace.

Senator INHOFE. It is.

Mr. PEACOCK. Yes, Mr. Chairman, actually it is a good example

of the sorts of sites that we are left with in the Superfund program.

They are particularly difficult and complex and require a lot more

effort than the smaller sites that we had in the past. I would be

interested in perhaps visiting Tar Creek, it seems a good idea, getting to know it much better.

Senator INHOFE. Yes, it is one of those things where you almost

have to be there. I know that Administrator Leavitt was quite surprised, after reading all the staff reports and seeing the pictures,

actually going there. It is different.

Ms. Bodine.

Ms. BODINE. Senator, it is my understanding that this is a very

high risk site. I believe that Superfund sites should be prioritized

based on risk, and that would put this site very much near the top.

Regarding your issue on the interagency relationships, I agree

that is critical, especially at a site like Tar Creek. If confirmed, I

will certainly make sure that EPA is working collaboratively with

the other agencies.

Senator INHOFE. I really believe that at least the two of you have

demonstrated clearly you can work with other agencies and break

down those barriers, so I appreciate your response very much.

Mr. Nakayama, there were some charges fired at you during the

first session that we had today about your association with the

W.R. Grace Company. I would like to have you take all the time

you need to respond to those charges. Would you like to do that?

Mr. NAKAYAMA. I certainly would, Mr. Chairman.

Senator INHOFE. I guess the first question I would ask is, did you

ever have any direct involvement or relationship with W.R. Grace

personally?

Mr. NAKAYAMA. Thank you for the opportunity to respond, Mr.

Chairman. I have had no involvement with the Libby, MT matter

involving W.R. Grace, direct or indirectly. Second, I have never

worked on any legal matter involving W.R. Grace. I have never

represented W.R. Grace in any of my practice.
20

So frankly, I am a little bit puzzled by the attention, but certainly understand people’s concerns.

Let me also say that with respect to serving, if I am confirmed

as the Assistant Administrator, I would recuse myself from any

mater involving W.R. Grace. So I would have had no involvement

in my private practice prior to joining the Agency, and anticipate

no involvement if I am confirmed and serving as the Assistant Administrator.

Senator INHOFE. At Kirkland and Ellis, how many attorneys are

there? You have accountants, too, I guess.

Mr. NAKAYAMA. It is a very large firm. I am not sure of the exact

number, I believe it is in excess of 700 attorneys. So it is quite a

number, with thousands of cases.

Senator INHOFE. In something that large, are they broken down

into specialties? I would assume they would be.

Mr. NAKAYAMA. Yes. Attorneys in a large firm typically work in

a practice area or group. The particular groups that were handling

the W.R. Grace matter, it’s my understanding, they are certainly

not in the group that I work in. I work the environmental and consumer product safety practice.

But the people who are working on the W.R. Grace matter,

frankly, I don’t even know the attorneys. I don’t know who is working on it. But I know I have never discussed the case with anybody

at the firm. All I know about the case and the matter is what Senator Baucus relayed in my meetings with him what I have read

and in the press.

Senator INHOFE. After having the experience dealing with and

working with 100 U.S. Senators, that is difficult enough. I would

imagine that it would be awfully difficult to know what the other

699 attorneys are doing in a firm.

Senator Jeffords.

Senator JEFFORDS. Mr. Peacock?

Mr. PEACOCK. Yes, Senator.

Senator JEFFORDS. The President has finally acknowledged at

the G8 meeting what the world’s best climate scientists have

known for more than a decade: man-made greenhouse gases are

contributing to and accelerating the global warming. Your opinion,

as contained in the infamous memo of March 8, 2001, that you coauthored, recommended that, ‘‘It would be premature at this time

for the President to propose any specific policy approach aimed at

addressing global warming.’’

That memo rationalized and attempted to justify the President’s

reversal of his campaign pledge to control carbon dioxide from

power plants. Just 2 days later, the President also withdrew from

Kyoto, and since that has not attempted any serious domestic or

international effort to achieve real reductions in total U.S. and

global greenhouse gas emissions.

Given the President’s most recent acknowledgement, what would

be the most appropriate message on carbon constraints or a similar

price signal for the Federal Government to send to the market to

actually achieve real near-term reductions in greenhouse gas emissions?

Mr. PEACOCK. Thank you for the question, Senator. I just want

to make it clear, both the President and myself take this as a very
21

serious matter, not just from a public policy perspective, but I have

two 8-year-old kids, so the world we’re headed into is one of interest and concern.

The President has felt for some time that there was a man-made

contribution to greenhouse gases and then also to increases in temperature. That’s why in February 2002, the President set out an

aggressive target of reducing greenhouse gas intensity from 22 percent to 18 percent by 2012.

That is a reduction of about 500 million metric tons of greenhouses gases than would have otherwise been released by 2012. He

has since laid out an aggressive program, both in the short term

and in the long term and in the science, in order to get a better

handle on climate change.

I would like to address the memorandum which you mentioned

from 2001, which I co-authored. At that time, the President was

asked by a number of Senators to clarify what they saw as possibly

contradictory statements during the campaign year. There was a

written statement which indicated that the President supported

mandatory controls on carbon dioxide from power plants. They felt

that some verbal statements had been made during the campaign

that conflicted with that.

So they asked for clarification. The President, as he does in similar situations, asked for advice from his senior policy advisors. One

of those advisors was the Director of the Domestic Policy Council

at the time, John Bridgeland. He collected six of us together, I

think they were all White House staff at the time. What he tasked

us with doing was to lay out, first of all, what was the written

statement from the campaign regarding carbon dioxide emissions

from power plants and what would any reasonable person interpret

from that written commitment.

Then—this is the important part—assuming the President did

not support mandatory controls on carbon dioxide emissions, which

he subsequently clarified he did not, how should the written commitment be characterized, and then how should that be translated

to the public. In fact, he confirmed, as he said later on that week,

I believe, that he did not support mandatory carbon dioxide controls on power plants.

He has subsequently supported, at least in the short term, strong

voluntary measures. In fact, some of the programs on voluntary

measures are at EPA, such as the Climate Leaders Program, which

includes 62 large companies from Mack Truck to Miller Brewing

Company that are making specific commitments to reducing greenhouse gases.

It also includes an important component, which the G8 noted,

which is technology transfer to other countries to reduce greenhouse gas emissions. The Methane to Markets proposal that the

President had in the last budget is a good example of that. There

are longer term measures, such as the Hydrogen Fuel Initiative

and Clean Coal Initiative.

Then there is the science program. We are now spending about

$2 billion on climate science. That is far more than any other country in the world. We are focusing that on the priority questions regarding climate science, to get a better sense of how much humans
22

may be contributing to changes in climate, since that still is a difficult question to answer.

Senator JEFFORDS. In fact, you have been handling environmental matters and regulations in the Administration for some

time now. So you obviously have a wealth of policy experience to

draw from. What do you consider to be the top five involuntary

risks to the environmental health faced by the American public?

Mr. PEACOCK. I’m sorry, Senator, the top five voluntary risks?

Senator JEFFORDS. Involuntary risks——

Mr. PEACOCK. Involuntary risks.

Senator JEFFORDS [continuing]. To the environmental health

faced by the American public.

Mr. PEACOCK. That is a good question. I am trying to remember

back. The Science Advisory Board, for instance, although it was

some time ago, tried to rank the risks to the American public. I

think they ranked the top 10 risks. One of them was indoor air pollution. That probably is still relatively high on the list, at least for

those people who may be in a home where someone is smoking.

I personally think, although it is not a health issue, invasive species, in an ecosystem, can cause dramatic changes, which can then

possibly affect human health.

What I would like to do is perhaps get back to you in writing on

the other four, particularly after I refresh my memory from the

Science Advisory Board studies including any that may have been

done recently.

[The response referred to follows:]

The American public deserves to have a clean, safe, and healthy environment.

Our nation faces numerous environmental challenges today. However, it is difficult

to rank them by level of risk. Environmental challenges, such as particulate matter,

ground-level ozone, and homeland security threats, among others, are all very important. I believe we must continue to use sound science to establish priorities and

to improve the ability to measure our environmental progress.

Senator JEFFORDS. I would appreciate that, thank you.

Senator INHOFE. Thank you, Senator Jeffords.

Before going to Senator Lautenberg, I just want to, for clarification purposes in this record, I want to get the G8 language, which

is identically the language that the President had in 2002.

Senator Lautenberg.

Senator LAUTENBERG. Thanks, Mr. Chairman.

I just wanted to clear up, without any intonation or bias, Mr.

Nakayama, did I understand that you never represented Grace directly? Is that what you said?

Mr. NAKAYAMA. Yes, Senator, I have never represented W.R.

Grace.

Senator LAUTENBERG. There was no implication in my question.

I just wanted an understanding.

Mr. Peacock, I don’t know whether you took your lead from the

Chairman of this committee, the distinguished Chairman, when

you talked about most of the bad air comes from indoor pollution,

indoor air pollution. I didn’t know whether you were talking about

the U.S. Senate or in general.

[Laughter.]
23

Senator LAUTENBERG. It is nice to see all three of you here. I

speak for myself, I am concerned about the transition from previous positions and attitudes.

I want to ask you, Ms. Bodine, I know you went to school in New

Jersey, and we’re very proud of that institution. It doesn’t represent fully all of New Jersey, as you know, looking at it from the

Princeton view. We love Princeton and we know that there are very

smart people who go to school there.

The Superfund program is of special importance to my State. We

have, I won’t say we have a monopoly, because we hear that beautiful States like Montana have Superfund problems, so it goes

across the country. But we have 113 Superfund sites in that little

State. Many of them are underfunded. I would ask you, are you familiar, do you know the amount of money that is being allocated

to Superfund cleanup or directed toward Superfund cleanup?

Ms. BODINE. Are you asking me what the President’s request is

for Superfund in 2006?

Senator LAUTENBERG. No, not the President’s request, the President’s availability of funds for Superfund cleanup.

Ms. BODINE. It would be the, well, I have that, it would have

been the appropriations for 2005, in terms of response actions—I

don’t have the exact number. I apologize.

Senator LAUTENBERG. OK. Is there enough there, to your knowledge, to effect a prompt cleanup of the sites that are listed on the

NPL list?

Ms. BODINE. I don’t have an answer to your question, because I

don’t have the information. But we do know that not all the sites

are cleaned up, so I guess the answer is simply, no, there isn’t

enough funding to clean up every single site. Although at each individual site, the funding needs depend on what stage the site is in

the process. Whether or not a site can use money in a particular

year depends on a number of factors, including status of enforcement against the PRPs, because, of course, EPA has an enforcement first policy. We want to spend PRP money before we spend

trust fund money.

Another factor is, of course, the stage of the remedy selection, to

make sure that all the paper decisions have been made and all the

risks have been evaluated.

There are various studies by Resources for the Future and others

about the billions of dollars it is going to take to complete action

on Superfund sites nationwide. But for an individual year, I don’t

have that information.

Senator LAUTENBERG. Have you had a chance to look at the pace

of cleanup going back a few years, and currently?

Ms. BODINE. Are you speaking about construction completions?

Senator LAUTENBERG. Yes.

Ms. BODINE. Construction completions, I have looked at that, yes.

There are not as many construction completions in the last couple

of years as there had been in the 1990’s.

Senator LAUTENBERG. Or underway?

Ms. BODINE. Or underway, well, no, a lot of things are underway.

A lot of them have reached the construction completion stage.

Senator LAUTENBERG. It just depends on how far the progress

has been.
24

Ms. BODINE. Right. On that issue of construction completions, I

have looked at the data on that. Concerns have been expressed

that the Superfund program is very, responsive to what data is requested, what information is tracked. There has been a heavy emphasis on construction completions for a long time.

Earlier, there was concern that this emphasis may have been to

the detriment, perhaps, of prioritizing sites based on the risk. Because, if you look at the data on construction completions in the

1990’s, you will see an enormous number of construction completions, but the actual amount of Federal dollars at each site is, in

the vast majority of cases, less than $5 million. I know that again

in the 1990’s——

Senator LAUTENBERG. I don’t want to hold my place too long

here. The Chairman has been about as patient as we find him.

But New Jersey has a number of, 37 orphaned sites. I ask you

this question, and that is, have you looked at the Superfund tax

as it used to be and see what it did to accelerate and protect the

areas where these sites exist, these Superfund sites? I just wonder

what you think about it, should we look to raise money for these

orphaned sites? We don’t have enough to take care of them, do you

think?

Ms. BODINE. When Congress enacted the Superfund taxes, it enacted them to go into the Superfund Trust Fund, but it set up a

mechanism where the trust fund that is part of the unified Federal

budget which means that in terms of the funding, the money has

to be appropriated out of the Trust Fund, it is not dedicated funding. The funding that is appropriated out of the trust fund has to

compete within the overall budget and all the overall priorities.

So if you look at the level of funding that was in the Trust Fund

and you look at the appropriations, there isn’t actually a relationship. The Trust Fund reached a height of about $3.8 billion in

1998. Even then, the amount of appropriations out of the Trust

Fund was still flat.

Senator LAUTENBERG. We’ll have to discuss it at another moment. Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Lautenberg.

Senator Baucus, and you will have an extra minute.

Senator BAUCUS. That’s fine, I appreciate that, Mr. Chairman.

Mr. Nakayama, the question about your involvement with

Kirkland, with Grace, what do you know about your firm’s involvement with W.R. Grace?

Mr. NAKAYAMA. I know that my firm represents W.R. Grace in

the bankruptcy matter. I understand that my firm represents some

Grace executives in the criminal indictment matter. That’s my understanding. I don’t have personal knowledge, I just know that

from reading press reports.

Senator BAUCUS. That gets to my second question, and that is,

your knowledge is based upon, only upon reading press reports?

You have no internal knowledge, that is, no knowledge other than

press reports?

Mr. NAKAYAMA. No knowledge other than press reports, that’s

correct.

Senator BAUCUS. What’s your firm’s policy with respect to clients? In most law firms, when a partner represents a client, the
25

entire firm represents the client, not just the lawyer, the entire

firm. That’s the basic rule of thumb in law firms today. Is that the

Kirkland policy?

Mr. NAKAYAMA. I really don’t know what the Kirkland policy is

with respect to what our agreements are with respect to the client,

if it is a representation on behalf of the whole firm or whether it

is with respect to a portion of the firm.

Senator BAUCUS. Well, what’s the understanding within the firm,

generally? For example, if you represent a client, is it an understanding or common knowledge that it is expected the firm also

represents the client, in addition to you?

Mr. NAKAYAMA. Maybe I’m not understanding the question, Senator. I represent clients, they are my clients and I work for them

and I am a member of Kirkland and Ellis, LLP.

Senator BAUCUS. Right. But do you consult with other members

of your firm, ever, about an issue when you are representing your

clients?

Mr. NAKAYAMA. I will consult, typically, with people in my practice group, yes.

Senator BAUCUS. Therefore, in a sense, at least that practice

group itself, in addition to you, represents that client?

Mr. NAKAYAMA. In that sense, yes.

Senator BAUCUS. Again the common rule is that the entire firm

represents that client, in addition to the partner? Isn’t that the understanding within your firm, too, the general rule? Different firms

operate differently. Some the entire firm does, some have special

practice groups that try and wall off different sections and so forth.

I’m just trying to find out what the Kirkland practice is.

Mr. NAKAYAMA. I know it sounds a little bit unusual, but I just

haven’t looked at that, Senator. I don’t know what our policy is

with respect to when we represent a client. I have not looked at

that policy, frankly.

Senator BAUCUS. You don’t know?

Mr. NAKAYAMA. No, I don’t.

Senator BAUCUS. Doesn’t that sound a little unusual?

Mr. NAKAYAMA. It may. It’s a fact. I just haven’t looked at it. Our

firm is a large firm with hundreds of attorneys. I have not looked

in fact at every policy of our firm, frankly.

Senator BAUCUS. Well, wouldn’t that be a big question, because

you may potentially be in a conflict of interest when you talk about

a prospective client, if that firm, your firm, Kirkland, may be representing the other side in some other way? Maybe in a civil matter. Isn’t that possible?

Mr. NAKAYAMA. It is possible, Senator, certainly.

Senator BAUCUS. So you don’t check to see?

Mr. NAKAYAMA. We do check.

Senator BAUCUS. To see whether there is someone else, some

other lawyer with a client in the firm, that’s representing another

client that may present a potential conflict or an appearance of a

conflict?

Mr. NAKAYAMA. Yes, we do check. We have a computerized system, and if you want to represent a new client to the firm, you

have to submit the new client to a data base and the data base

checks to make sure that client is not adverse to any other client.
26

Senator BAUCUS. So what happens if hypothetically a partner in

your firm is thinking about representing Client X, and then submits the information in their computer system to see if there is a

conflict, would you know about that submission?

Mr. NAKAYAMA. Would I know about that submission? I——

Senator BAUCUS. Customarily would other partners in that firm

know about that submission, that submission of that nature or request of that nature?

Mr. NAKAYAMA. Typically there would be a list, I imagine, that

comes around periodically, you would look at if—it is incumbent

upon the person introducing a new matter to contact any attorney

that they thought there might be a conflict that is identified out

of that system.

Senator BAUCUS. So in this case, when the firm represented W.R.

Grace, well, let me ask this question, do you know when Kirkland

took on W.R. Grace as a client?

Mr. NAKAYAMA. No, I don’t.

Senator BAUCUS. When you read about this in the press, did you

go back and check?

Mr. NAKAYAMA. No, I didn’t go back and check, no.

Senator BAUCUS. Wasn’t it a concern to you?

Mr. NAKAYAMA. The firm represents hundreds of clients. I would

be checking every day with respect to particular clients. There are

news articles about our clients and our cases every day in the

news.

Senator BAUCUS. I’m sorry?

Mr. NAKAYAMA. There are articles and press reports about the

clients, our clients and the firm every day. But I don’t typically

check to see when they became clients.

Senator BAUCUS. What I’m getting at is once your name was,

somebody approached you for this job, maybe did you go back and

look at your client list and say, gee, maybe there’s a conflict here,

maybe there’s a problem here, some enforcement actions before the

EPA? Did you do that?

Mr. NAKAYAMA. I literally—I guess when you say did I check my

client list?

Senator BAUCUS. Did you go back and say, gee, I have some clients here that present a problem here, a conflict?

Mr. NAKAYAMA. I looked at my——

Senator BAUCUS. I might have to recuse myself?

Mr. NAKAYAMA. Yes, I did look at my personal clients, the clients

that I have done work for, to see if there was a problem.

Senator BAUCUS. Did you look at Kirkland’s clients?

Mr. NAKAYAMA. No.

Senator BAUCUS. So in this case, if EPA begins an enforcement

action, is involved in an enforcement with W.R. Grace, what’s your

position?

Mr. NAKAYAMA. I’m going to recuse myself from that matter.

Senator BAUCUS. What about other cases where Kirkland has

represented other clients that come before the EPA?

Mr. NAKAYAMA. What I’ve done, Senator, is I have submitted my

financial disclosure form that explains and lists my clients. I have

also submitted an ethics agreement to the Office of Government

Ethics that was reviewed by the top ethics officer at the Agency,
27

as well as the Office of Government Ethics. That has been reviewed

and approved by the Office of Government Ethics.

Senator BAUCUS. As a partner in the firm, do you have any input

as to which clients the firm represents? Is that totally up to each

partner?

Mr. NAKAYAMA. I have input with respect to clients I bring to the

firm. Unless there is a conflict or unless there is some issue that

directly involves my clients, I typically, no, do not get involved with

respect to other partners and their clients.

Senator BAUCUS. Do you share the income that the firm receives

in charging W.R. Grace? As a partner, do you get some of that income?

Mr. NAKAYAMA. As an employee of Kirkland and Ellis——

Senator BAUCUS. Sorry?

Mr. NAKAYAMA. As an employee of Kirkland and Ellis, as a partner, we all received income from the firm as a whole.

Senator BAUCUS. Including income from W.R. Grace?

Mr. NAKAYAMA. Income from any client.

Senator BAUCUS. So that goes back to my first question, in a

sense, you’re really all together as a company, as a team. So that

is, you represent Grace, in a sense the whole firm does, and vice

versa. That makes sense, because you said that you would recuse

yourself in any action before W.R. Grace.

I’m just curious, can you explain the difference between

chrysotile and tremolite?

Mr. NAKAYAMA. I understand they are different types of asbestos.

Senator BAUCUS. You heard me this morning talk about

tremolite, that difference.

Could you tell the committee a little bit about your views on why

you praised the decision by the Fifth Circuit Court of Appeals to

overturn the EPA’s ban on asbestos?

Mr. NAKAYAMA. Yes, I certainly could. That was a law review article I wrote——

Senator BAUCUS. Right, right.

Mr. NAKAYAMA [continuing]. I wrote that for the George Mason

Independent Law Review back in I believe 1991. It was a decision

of the Fifth Circuit called Corrosion Proof Fittings v. EPA. The

Court held that a straight, across-the-board ban on asbestos, across

all uses, couldn’t be promulgated under the Toxic Substances Control Act, TSCA.

Senator INHOFE. The Senator’s time——

Senator BAUCUS. I’m sorry, I’ll be finished. Thank you, Chairman. I’ll be finished. I appreciate the committee’s indulgence here.

I only ask the question because most industrialized nations have

banned all uses of asbestos. This is a question, and I will pretty

much end up here. What is your sense of your duty as a person,

this is pretty abstract, bear with me for a while, on this earth? I

believe that we must, all of us have a moral obligation to leave this

place in at least as good a shape or perhaps better shape than we

found it, from an environmental perspective. Because we are just

here for a short while on this earth. We have kids, grandkids.

What’s your view about that?
28

Mr. NAKAYAMA. I agree with you, Senator. I have a daughter who

was here this morning, and I think all of us want to leave the planet in better shape for our children. We are here for a short time.

Senator BAUCUS. What can you say to this committee right now

to assure us that you are going to vigorously enforce the laws as

the chief enforcement person at EPA?

Mr. NAKAYAMA. Let me say this. I have approached every job I

have ever held very seriously. I think you can see that from my

record. I have a record of achievement, and I would approach this

job just as seriously.

If any company, individual, other Government Agency, believes

that my nomination somehow lessens their responsibilities under

the environmental laws and regulations of this country, they are

sadly mistaken. They are making a serious mistake, and they make

that mistake at their peril. I will vigorously enforce the environmental laws and regulations of this country. That is the job of the

person who sits as the Assistant Administrator for the Office of Enforcement and Compliance Assurance.

I look forward to working with you, if confirmed, you and your

staff, the committee, as we look forward and work together to

achieve that goal.

Senator BAUCUS. Well, thank you, and I appreciate that. Thank

you very much. Thank you, Chairman.

Senator INHOFE. Thank you, Senator Baucus.

Senator Boxer.

Senator BOXER. Thank you so much, Mr. Chairman.

I want to continue with the questions, Ms. Bodine, on the Superfund program. By the way, I share the concerns of my colleagues

and everything they have discussed. I want them to know that I

am with them on all of their concerns.

Right now I am the ranking member on the Superfund Subcommittee. As I said, we have not had a hearing in a very long

time. So I need to, instead of having hearings, since we don’t seem

to be able to do that, to get information from EPA.

Now, from your web site, as I said this morning, we have a list

of 103 Superfund sites in 33 States where human exposure is not

under control. There are 1,200 Superfund sites, give or take. So

there are 103 where people are getting exposed, right now, as we

sit here.

I need to know this, I need to see this list in the order of the

most dangerous going down the list. They are all dangerous, everybody is getting exposures who lives near these sites, especially the

children. But I need to have that list.

So far, I do not have that comprehensive list. We do know on

your web site you list the actual sites, you name them. But this is

not in order of most dangerous.

So I need to know that you will cooperate with me and we can

get this. Now, Senator Jeffords and I have been trying to get this

list for a very long time. Everything we get is just bits and pieces.

We never get answers, clear, simple, straightforward answers, you

know, these are the 10 most dangerous sites. I am asking you

today if you will work with me before your confirmation vote to get

this list from the EPA.
29

Ms. BODINE. Thank you, Senator. I don’t currently work at the

EPA, so I don’t control the documents they are producing. As you

know, I currently work for the U.S. House of Representatives, for

a committee that also has oversight over the Superfund program.

So I must say that I have an understanding of the importance of

congressional oversight and I have a bias in favor of sharing information.

If I am confirmed, I am going to have to respect the concerns and

certainly the protections that are necessary for my colleagues, including colleagues at the Office of Enforcement and Compliance Assistance with respect to things that are confidential, because of enforcement-sensitive information. Then if I am confirmed, I am also

going to have to respect whatever protocols, I am not familiar with

them, but whatever protocols have been set up by the executive

branch to protect information that is pre-decisional.

Let me say that I am told that those protocols have not changed

from Administration to Administration, but again, I cannot tell you

what they are, because I am not familiar with them.

But within those parameters, yes, I want to work with you, I

want to work with your staff on getting answers to your questions.

The list that you are talking about from EPA’s web site, I have not

gone and looked at that exact list.

Earlier I had seen a report that talked about sites that were not

in control. I was concerned and I called the Agency myself and

asked, well, what does this mean. I was told that that was, that

the sites were sites where there was current or potential exposure.

My concern was that there were any sites at all where there was

actual ongoing exposure, which is the concern I hear you expressing. I was told that no, they are not, what we are talking about

here is potential exposure.

But I agree with you completely, Senator, that if there are sites

out there with current, ongoing exposures, those are the sites that

need to be a top priority, the top priority. Those sites need to be

the ones that are addressed first. Again, when you are talking

about actual, current exposure——

Senator BOXER. I know my Chairman is not going to give me

extra time——

Senator INHOFE. If you would like to take both your rounds at

once, you may do that.

Senator BOXER. Thank you. Well, go ahead, then, I thought I

only had 5 minutes. Go ahead.

Ms. BODINE. Let me just repeat that in reaching that goal of

making sure that the priority is based on risk and that first and

foremost, if there is actual exposure at the site and people are currently exposed, that has to be at the top of the list.

Senator BOXER. OK. We need to see that list. Where is there actual exposure?

I was talking to my colleague, Senator Obama. He has a lot of

sites there—how many do you have?

Senator OBAMA. Eleven.

Senator BOXER. He has 11 sites that are titled Superfund Sites

Where Human Exposure is Not Under Control. Now, that is the

English language and I understand it. I don’t think it needs any—
30

I don’t think you and I should listen to the bureaucrats explain it

away.

It’s clearly a problem. Because, sure, on a day that the wind

doesn’t blow, it’s under control. But the next day the wind blows,

it’s not under control. So we have, and in my State, I have, I believe it is six sites where human exposure is not under control.

So I appreciate your spirit and spunk on the point, and the fact

that you’re not at the EPA. But your caveat is a very big caveat.

Because they are always going to give us reasons not to answer our

questions.

I would like to state for the record that our questions aren’t answered. We get bits and pieces of information.

Now, what I need to know from you and what I need to know

from EPA, and you can’t answer this question, but what I am going

to try to get from EPA is what stage of cleanup are we in for each

of these 103 sites. What sites, in particular, have that threat right

now to the point where there is an immediate threat to children,

let’s say. How many children live within 4 miles of these sites, and

how much will it cost to clean up these sites.

Now, you’re right, the legal department always gives instruction,

we can’t say this, because if we say this then the people at the bottom of the list won’t cleanup their site and all this stuff. The bottom line of that is, the Clinton administration gave us the list. We

never made it public. We kept it here at the committee. The committee was able to see it and that’s fine.

I certainly don’t agree with that. Because frankly, if you’re on

this list of 103, you’d better shape up, because we’re going to get

it cleaned up one way or the other. So this 103 has to be cleaned

up, out of the 1,200 sites.

Now, we know in Omaha there has been actual exposure, because I showed you that. We know in Libby there is exposure. I

can’t get from EPA what do they need from us by way of funding,

by way of personnel or whatever they need to get moving. So I

don’t want to go on very long, because I feel like you are in a situation where—you’re right, you don’t work for the EPA. You can’t get

this information for me.

But I am very frustrated about this. I feel like we have gotten

something from the EPA in connection with some of this information, but it’s not complete. So all I get is incomplete information.

So I just want to say for the record, Mr. Chairman, that just as

I used the Johnson nomination to stop a terrible program from

going forward, I intend to use the leverage I have here, and it is

no disrespect for anyone, it is out of love and respect for the people

who live at these sites, to say that I expect to get, in short order,

a list of these sites, in the order of priority, with information as to

what it will cost to clean them up, what it will cost to make them

at least do what we call in our office triage, to protect the little

kids—let’s take another look at these kids, this little boy who got

exposed to lead in Omaha, and now has irreversible brain damage

from lead. This poor woman cannot get EPA to go test how much

lead is left in her back yard.

This isn’t about charts and numbers. It’s about people like this.

This woman probably never asked her Federal Government to do

a darned thing. I’m sure that she’s a middle-class homeowner who
31

gets up in the morning and loves her kids. Now look what happened here, and she can’t get EPA to get a measure of the lead in

her back yard.

So what I will ask you to do is if you are talking to the folks over

there, as you go through the nomination, to tell them that Senator

Boxer is being tough on this situation. I would love a letter telling

us that they went to this woman’s back yard with their equipment

and gave her a straight answer. Because now she has another

child, right? The baby sister has lead poisoning now, too. She can’t

get a reading, EPA can’t come out there and do that?

This is very serious. We’re not doing enough. I know a lot of it

is caught up in the dollars. Look, I am the first one to admit, you

can’t do this on the cheap. I know a lot of people didn’t like Superfund because yes, it did put in a revenue raise or tax or whatever

you want to call it for polluters to pay. I know some people didn’t

like it because it was a general revenue fund. In other words, it

didn’t just go to the polluter, it went to the people who are in that

business, who could potentially pollute.

But it gave us the funding we needed. So anyway, that’s my message to you. You are all good people, I’m proud that you are stepping up to the plate. But these are serious times. The Superfund

program has been neglected. So I’m coming in with this request

that we get this information, the sooner I get it, the happier we all

are and we can move on. Thank you.

Senator JEFFORDS. I would like to join in that request. I am

agreeing with everything you stated.

Senator BOXER. Thank you, Senator.

Senator JEFFORDS. We have to see some action.

Senator BOXER. Thank you, Senator. So now the request is coming again from the two of us. Thank you very much.

Senator INHOFE. Senator Obama, if you would like to take both

of your rounds at once, you may do so.

OPENING STATEMENT OF HON. BARACK OBAMA, A U.S.

SENATOR FROM THE STATE OF ILLINOIS

Senator OBAMA. Why don’t I do that, Mr. Chairman, thank you

very much.

First of all, I think Senator Boxer, as usual, was extraordinarily

eloquent about a problem that, as she mentioned, affects my State

apparently fairly significantly. I have 11 of the sites that are mentioned here as, and again, all Senator Boxer and I can do is go by

the title of this list: Superfund Sites Where Human Exposure is

Not Under Control. Now, that may mean something different. But

that’s the title.

So Ms. Bodine, I would strongly recommend that you forward

this message to Mr. Johnson, make sure that he understand the

urgency of the situation here.

Let me make a larger point. That is, in my brief time here, I

have only been in office 6 months, my experience already has been

that EPA, under this Administration, is reticent to share information with Congress. I don’t know why that is.

But that appears to be the case. It just strikes me that in circumstances like this, we know that it’s not going to be easy to solve

the problem. I don’t get a sense that this committee has gone out
32

of its way to try to politicize these issues. All we try to do is get

the problem solved, but we can’t solve the problem in the blind.

So I join Senator Boxer, I was a signatory to the letter making

this request. I am expecting that we get some prompt responses.

Now, let me shift to something that actually connects with that

painful photograph that Senator Boxer just showed, and that’s the

issue of lead paint. I’m going to direct this to you, Mr. Peacock. I

want to ask you about a subject that’s of great importance to me,

and that’s the issue of lead poisoning in children.

High blood lead levels, as you know, can have a devastating impact on children’s health. They can lead to behavioral problems,

learning disabilities, seizures. The EPA estimates that 890,000

children in this country suffer from elevated blood lead levels. In

my home town of Chicago, there are 6,000 children with high blood

lead levels. That by the way is the highest in the country, as far

as we know. It is a problem that disproportionately affects poor

and minority children. Fully 22 percent of African American children living in pre-1946 housing have lead poisoning, 22 percent.

It’s just an astonishing statistic.

Now, in 1992, Congress mandated that EPA would promulgate

regulations on contractors engaged in home remodeling and renovation. So that’s 13 years ago. It was supposed to have been completed, these regulations were supposed to have been promulgated

by October 1996, which would be 9 years ago.

EPA’s own analysis found that such a regulatory program could

prevent 28,000 lead-related illnesses each year. That would, by the

way, if it’s not enough to see the pictures that Senator Boxer

showed, and you’re just thinking in terms of economic interests involved, we know that that would save us probably about $4 billion

in economic benefits, both in terms of health care costs and additional costs for supporting children with lead poisoning.

Now, 13 years after Congress first issued this mandate, the EPA

still hasn’t proposed any rules. And for the last several months, I

have been trying to understand why. When this committee considered Administrator Johnson’s nomination in April, I asked him

when EPA was going to issue this rule. Mr. Johnson didn’t answer

my question, he said that EPA was working on a voluntary program.

Of course, that’s not what the law requires. The law doesn’t say,

the EPA may set up a voluntary program. The law says, the EPA

shall promulgate regulations, mandatory regulations, around this

issue. In May, Senator Boxer and myself wrote a follow-up letter

to Mr. Johnson, asking him again, when will he issue the rules on

lead. I’ve gotten no response on this letter.

Last month, I included an amendment in the EPA appropriation

that would prohibit the Agency from spending any funds to delay

implementation of this requirement. You may be aware, that bill

passed the Senate unanimously.

So Mr. Peacock, like Ms. Bodine, this is always a difficult situation, you guys are just coming in, and I don’t want to visit the sins

of previous administrators on you. But my question is very simple,

can you make a public commitment today that EPA is going to

issue these lead rules by a date certain? Do you have any indication that that is taking place?
33

Mr. PEACOCK. Thank you, Senator, that’s a good question. Just

let me make three points. You are right to point out this is not an

issue I have been involved in in the past or currently. On the other

hand, as a resident of the District of Columbia, I am interested in

lead poisoning and what it can do to kids.

The second point, not diminishing what work needs to be done,

blood lead levels are another example of a success story so far in

the United States, blood leads have dramatically decreased, particularly after lead was taken out of gasoline. It continues, according to some of the most recent information, it continues to decrease.

So now what we find are particular areas, such as, Chicago,

where you can spot particular populations which continue to have

this problem and it persists, which I think is a lesson for making

sure the resources and efforts that are put toward it are targeted.

I don’t doubt that, for instance, the renovation of old housing stock

is a place to target such resources.

I do not know intimately about this particular legal requirement

or the requirement for issuing a regulation. What I do know is that

EPA has been working with the renovation and repair industry.

What I do not know is whether this would be their guidelines or

whether it is, in fact, a regulation, as you desire, and the law as

you say may require.

But I believe it may be a regulation, and my understanding is

there is a desire to get a proposed rule out by the end of this year.

Can I guarantee that in my current position? No, I can’t. But I can

certainly find out more about that for you.

Senator OBAMA. OK, well, I’m sympathetic to the fact that EPA

regulations, that’s a big manual. I assume you haven’t memorized

all of them.

Mr. PEACOCK. I probably know more than my fair share.

Senator OBAMA. Right. So let me just read to you Title 15, section 2682(c)(3) of the U.S. Code, just so that you’re clear in terms

of the statute that I’m referring to here.

‘‘Within 4 years after October 28, 1992, the Administrator shall revise the regulations,’’ and the title of the overall regulations is Lead-Based Paint Activity Training

and Certification. ‘‘The Administrator shall revise the regulations to apply to renovation or remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings that create lead-based paint hazards.’’

So it’s not ambiguous. You’re exactly right, I think the original

intention was, we’ve taken lead paint out of, or lead out of gasoline.

That has reduced lead poisoning, sort of ambient lead poisoning

that’s everywhere. We now have a localized problem that was specifically what this statute was designed to address, was old housing

stock that is renovated, and to make sure, in the same way, that

if there is asbestos in housing that we are going to make sure that

we’re not exposing folks or workers to this poisoning, that we’re

going to do the same thing with respect to lead-based paint.

So your rationales were right, that’s why the statute was written.

Thirteen years later, 13, I mean, I know the Federal Government

moves slowly, but even with public notice provisions and all the

hoops that have to be jumped through, 13 years is just an extraordinary amount of time to get a rule passed.
34

So I appreciate your public commitment to find out what’s going

on. I guess what I’m looking for is a public commitment to follow

the law. Now, if the Administration decides that this is not important, then they should have the law changed. Right?

Mr. PEACOCK. Yes.

Senator OBAMA. But the law is on the books, and has been ignored for 13 years. So can you tell me, can you give me any rationale as to why we wouldn’t just go ahead and pass this law? What

assurance can I get from you that once you’re confirmed, I’m not

getting a bunch of letters that are still ignored?

Mr. PEACOCK. Let me commit to do this for you, Senator. My understanding, if I recall correctly, is that EPA is planning on having

a proposed rule out by the end of this year. If that’s incorrect, I

will certainly let you know.

Once again, and this is more intuitive, my understanding—is

that this issue, in particular, affects many small businesses, because there are a lot of people out there who are not very large who

do renovation and repair. That may be a contributor, not an excuse, but a contributor for why it has taken as long as it has. Once

again, that may be a guess.

Senator OBAMA. I am very sympathetic to the costs involved and

that they shouldn’t be borne by small businesses exclusively. I’m

not interested in hoisting a localized tax, essentially, on individual

contractors to solve what should be a broader obligation on the part

of society.

So if the EPA believes that, they are concerned about small contractors having to bear these costs, then we should figure that out.

If we need appropriations to deal with this, then that’s something

I’m happy to address. But that’s not an excuse for ignoring it.

Mr. PEACOCK. No, and actually I wasn’t alluding to costs as

much as my own experience with the printing industry. You have

to make sure whatever you promulgate can be enforced effectively.

With a lot of small entities, that can be difficult. That’s actually

what I was alluding to, although I suppose costs could be——

Senator OBAMA. Well, if it’s an enforcement issue, then my assumption, there are a lot of smart people over at the EPA, you soon

to be one of them. My assumption is that, for example, I just

bought a house in Chicago. It’s a 1920 house. I assume that it

would not be difficult to have local governments and municipalities

say that prior to your doing any renovations on the home, you have

to do a quick test for lead-based paint, and if so, you have to show

some sort of certificate that in fact it was done properly.

Now, there may be some resistance on the part of local municipalities about that. I promise you I could convince the city of Chicago to go along with something like that. But there has to be that

rule in place.

Mr. PEACOCK. Let me get back to you with the straight story,

and of course the bottom line is to make sure we continue to reduce

these children’s blood leads.

Senator OBAMA. OK, thank you, Mr. Chairman. I appreciate your

forbearance.

Let me just close by saying this. Again, Senator Boxer alluded

to this, I am not interested in holding any of your nominations hostage. But you should let, if you get any resistance from your future
35

boss, the Administrator, about this, you should let him know that

I am deeply concerned about this and willing to gum up the works

a little bit until I get a clear response.

Senator INHOFE. Thank you very much, Senator Obama.

Let me go ahead, I guess we are each going to take another 5

minutes. Just so I can get things clear in the record, I did want

to clarify the statement that was made by Senator Jeffords concerning today’s, the G8 communique. The language in the G8 communique having to do with climate change is precisely, verbatim of

the message or the position of the President in 2002. I will read

it.

‘‘While uncertainties remain in our understanding of climate change, we know

enough to act now to put ourselves on a path to slow and, as science justifies, stop

and then reverse the growth of greenhouse gases.’’

Now, I would say further on this, we just went through this on

the floor a matter of 2 or 3 weeks ago. I headed up the opposition

to an amendment, it was debated for 2 days. I pointed out very

clearly that the initial creator of the climate change and his hockey

stick, Michael Mann from Virginia, had been totally repudiated, he

has been refuted by the scientific community, and that virtually all

science since 1999 has stated that yes, there may be some climate

change taking place.

However, our climate today is not as high as it was in the medieval warming period, and that if it is warmer, there is no sound

science to show that it is due to anthropogenic gases, man-made

gases, methane or CO2. I think it’s important to have that in the

record.

Second, for the record, I would like to suggest that we have the

Office of Government Ethics, Mr. Nakayama, the reason we have

the Office of Government Ethics is to determine if there could be

a conflict of interest, and if so, we would have to deal with that

during this process. I am going to read the letter instead of just

inserting it for the record. This is dated June 29.

‘‘In accordance with the Ethics in Government Act of 1978, I enclose a copy of the

financial disclosure report filed by Granta Nakayama, who has been nominated by

President Bush for the position of Assistant Administrator for Enforcement and

Compliance Assurance, U.S. Environmental Protection Agency. We have reviewed

the report and have also obtained advice from the Environmental Protection Agency

concerning any possible conflicts in light of its functions and the nominee’s proposed

duties. Also enclosed is a letter dated June 10, 2005 from Mr. Nakayama to the

Agency ethics official, outlining the steps that he will take to avoid conflicts of interest. Unless a specific date has been agreed to, the nominee must fully comply within

3 months of his confirmation date with the actions he agreed to take in his ethic

agreement. Based thereon, we believe that Mr. Nakayama is in complete compliance

with applicable laws and regulations governing conflicts of interest.’’

This is signed by the Acting Director of the Office of Governmental Ethics.

I would ask you this question, Mr. Nakayama. You have said

that you would comply within 3 months of the confirmation date

with the actions agreed to. If you are confirmed, will you do that?

Mr. NAKAYAMA. Yes, Mr. Chairman, I would.

Senator INHOFE. Mr. Peacock, we became involved in something

I think was very significant, you may not even be aware of it. But

we discovered that there are discretionary grants that emanate

from the Environmental Protection Agency that are first of all, they
36

are not based on sound science; second, many of these grants go to

the same people; third, it took us, and me as Chairman of this committee, a month to find out who actually passed on these grants.

We have set a reform in place. It seems to be working right now.

But it’s important to me that you, and I say all three of you, will

work with us in this effort to continue this reform so that we can

stop any kind of a discretionary grant that doesn’t have the official

sanction of the leadership of the EPA. Do you have any comments

to make about that?

Mr. PEACOCK. As you know, Senator, half of the EPA’s budget

grants, not all discretionary grants, but a significant portion are

discretionary grants. This has been, I think for 10 years now, a material weakness noted by the Inspector General. As you mentioned,

there is a 5-year plan that is being implemented to improve the

transparency, accountability, and results in the grant programs.

There is still a lot more work to be done there, and I want to work

with you on it.

Senator INHOFE. You’re right, for 10 years they’ve been talking

about it but we’re going to do it.

Mr. PEACOCK. Yes, I think we have started down that road.

Senator INHOFE. I think also, and as I talk to my cities and

towns who are, I was a mayor at one time, I know what unfunded

mandates are, I know that is probably the worst thing faced by our

mayors as well as our Governors. I’ve gone through these things

and recognized that it is really a serious problem.

Any time you have a grant that goes out, it’s competing with a

grant that might help a local community comply with water quality

standards, drinking water or other things. So it goes beyond just

the good government. It is something that drains those causes that

we’re supposed to be funding and taking care of.

Senator Jeffords.

Senator JEFFORDS. Yes, Mr. Chairman. For Ms. Bodine, the

Superfund program is at a crossroads. The fund, which held $3.8

billion in 1996 is essentially bankrupt.

The 2005 budget is $574 million in constant dollars below levels

from 1993. As a result of systematic funding shortfall, the rate of

completed cleanups has plummeted and EPA is forced to shift

money from ongoing projects to start the new cleanups.

What will you do as Assistant Administrator to assure that the

abandoned site on the National Priorities List like Elizabeth Mine,

Eli Mine, and the Pikes Hill Copper Mine in Vermont get promised

Federal funding for investigation and cleanup?

Ms. BODINE. Thank you, Senator Jeffords. You can count on me

to be a fierce advocate of the Superfund program within the Administration. As I discussed earlier with Senator Lautenberg, the

Superfund program is funded through annual appropriations.

That’s true today, that’s been true since its inception.

But first, I would certainly within the Administration be an advocate. I agree with the comments that were made earlier about

the importance of risk and focusing on risk reduction. As I noted

earlier, there has in the past been a focus on construction completions, and we’ve seen where a lot of sites where the cost to the

Agency was less than $5 million were pushed through the system.
37

Again, I don’t know the risks associated with them, but that may

have been at the detriment of more risky sites.

Once the Administration receives the appropriation from Congress, at whatever level it is, I also will say that I want to make

sure that those dollars are used in the most effective and efficient

way. I heard concern expressed about the Superfund program. I

have concerns about it as well. I do think that there are opportunities here to improve the management of the program, to improve

the incentives created by how we track things, what are we requiring regions to report on. You change behavior that way.

Certainly making decisions based on risk as opposed to pure construction completions, those are all things that can be tracked.

That will change behavior, both out in the regions and in terms of

how sites are put forward.

So I would like to say to the entire committee that I will look

forward to working with everybody on improving management of

the Superfund program. I do have a goal of getting Superfund sites

cleaned up more quickly.

Senator JEFFORDS. I appreciate those remarks. I can assure you

you will have me right behind you to make sure that you get the

proper wherewithal to make those decisions.

Ms. BODINE. Thank you.

Senator JEFFORDS. Mr. Peacock, why hasn’t EPA been allowed by

OMB to issue a proposed rule to implement the PM2.5 standard and

the second phase of the ozone implementation rule?

Mr. PEACOCK. Senator, I actually am not familiar with that rule.

I can’t even say that it’s at OMB for review, although I have no

reason to doubt that it is. I am involved on the budget side of OMB

and tend not to get involved in the review of regulations unless

they affect the budget. But I would be happy to get back to you to

answer that question.

[The response referred to follows:]

I understand that EPA sent a draft of the proposed PM2.5 Implementation Rule

to OMB in October of last year. Since that time, however, senior EPA managers and

OMB personnel have been focused on finalizing a number of regulatory packages

that were subject to judicial deadlines or were a higher priority for the Agency. This

includes significant actions such as the Clean Air Interstate Rule (CAIR) and the

Best Available Technology (BART) rule (a key part of the regional haze program).

These rules, especially CAIR, require important changes to the PM2.5 implementation rule, as well as to the draft final 8-hour ozone implementation rule. EPA managers have now placed the highest priority on completing the 8-Hour Ozone Implementation rule and the PM2.5 Implementation Rule. EPA and OIRA staff are now

working through changes for both of these rules.

Senator JEFFORDS. I would appreciate it if you would get back to

me. I want to assure you, I’ll do anything I can do to help you get

what you need.

Mr. PEACOCK. Great.

Senator JEFFORDS. Mr. Nakayama, there is currently a debate

going on within the Administration and within Congress concerning the extent to which the public should be able to obtain documents from EPA and other Federal agencies and outside parties

produced during enforcement settlement negotiations. Do you think

that additional legislation is needed to prevent the disclosure of

documents or should there be more public disclosure of documents?
38

Mr. NAKAYAMA. Senator, I appreciate the question. That is an

issue which I am personally not familiar with, I did not realize

there was legislation or pending legislation that is being considered

regarding the scope of documents that would be released.

From an enforcement standpoint, and I don’t want to sound too

parochial, but your interests are maybe a little different if you are

the enforcer, because you need to frankly be able to maintain confidentiality when you are negotiating a settlement agreement or

moving forward. On the other hand, I can understand the interest

in public disclosure.

So it’s a question that I will be glad to look into, Senator. I just

don’t have any opinion on that particular matter at this point.

Senator JEFFORDS. I would appreciate it if you’d look into it and

let me know what you have, and your views. I’ll be there to help

you if you need help.

Mr. NAKAYAMA. Thank you, Senator.

Senator INHOFE. Thank you, Senator Jeffords.

I thank all of you, and I do apologize to you and to your families

who hung in there for you and I’m sorry, that seems to happen

here occasionally in the U.S. Senate.

As far as the statements that were made by two or three of the

Senators here concerning documents, during the consideration of

the Clear Skies legislation, people were requesting documents from

this panel up here. We put a count on it, and we found that during

the consideration of the Clean Air legislation, which did not pass,

we received over 10,000 pages of documents that would fall into the

categories of modeling information and responses to requests,

which is over four times as many documents as we had received

during the 1990 Clean Air Act legislation. So I think maybe we’re

just asking for maybe too much sometimes.

So you might take that back to your new jobs. I would say to you,

Ms. Bodine, we would like very much, after your successful effort

on the floor today on the WRDA bill, to borrow you and use you

on the floor of the Senate when we get our bill up which we have

now passed out of our committee.

[Laughter.]

Senator INHOFE. We thank all of you. Is there one last thing anybody wants to say before we adjourn this meeting?

Ms. BODINE. Thank you very much for the opportunity to appear

before you.

Mr. PEACOCK. Thank you, Mr. Chairman and Senators.

Mr. NAKAYAMA. Thank you, Mr. Chairman.

Senator INHOFE. We look forward to working with you, and we

are adjourned.

[Whereupon, at 5:27 p.m., the committee was adjourned.]

[Additional statements submitted for the record follow:]

STATEMENT OF MARCUS PEACOCK, NOMINATED FOR DEPUTY ADMINISTRATOR FOR THE

U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, and distinguished members of the Committee, I

am honored to appear before you today as the President’s nominee for the position

of Deputy Administrator of the Environmental Protection Agency. I am indebted to

the President for his trust and the privilege, if confirmed, of serving the public in

this new capacity.
39

There are three important things I would like you to know about me. They make

up who I am and govern how I would conduct the job of Deputy Administrator if

confirmed.

First, I am a first generation American. My parents emigrated from war-torn England with three suitcases, a couple of trunks, and $200. Leaving their family and

friends behind, they took a great risk because of the opportunity they saw in this

country. This was an opportunity not just for themselves, but for their children and

their children’s children. It is the greatest gift I have ever received. I love this country and cherish the rights we enjoy—rights that give us the opportunity to realize

our dreams. The first function of any government should be to protect and honor

those rights.

Second, I grew up in Minnesota. Minnesota gave me two things. First, one cannot

grow up in that great State without appreciating the outdoors. Even when it is 20

degrees below zero. Indeed, my deep interest in the environment started at about

age 15 at winter camp. I was working on laying out an orienteering course and

found myself standing alone in the middle of a frozen lake while a fellow Boy Scout

moved a marker along the shoreline. For some reason, at that moment, the serenity

and peacefulness of that setting connected with me. My eyes opened up to a deeper

wonder of nature. That day started a lifelong interest in the natural world. It drove

me first to an interest in science and, ultimately, engineering. It is a fascination my

wife and I share with our kids through hiking, camping, canoeing, and birding.

Minnesota also gave me a strong sense of community. Public service is a high calling in Minnesota and pubic servants are expected to express the highest possible

level of integrity. An adage etched into the old Minneapolis Convention Center

struck home with me. It said, ‘‘Participation in the rights of citizenship presumes

participation in the duties of citizenship.’’ My parents helped me appreciate the

rights of citizenship in the United States. Minnesota helped me understand that

those rights came with an obligation to the community and the Nation.

Finally, I am an engineer. I have not practiced engineering as a profession for

many years. Nonetheless, I like to think I practice engineering everyday. To me, the

core of engineering is a disciplined process for problem solving. It requires one to

be clear, open-minded, and analytical. And it focuses on getting results. As a manager and budget officer, I have seen many different types of problems. Engineering

has given me the skills to break problems into manageable pieces and work with

others to come up with solutions that get results. I think this is exactly the kind

of skill one needs to be a Deputy Administrator.

Should I be confirmed, I would bring to EPA a strong sense of public service, a

deep appreciation for the environment, and an excellent set of problem solving and

management skills.

Under the President’s leadership, our country has made great strides in cleaning

up our air, water, and land in a way that allows our nation to continue to grow

and prosper. The air my children breathe today is much cleaner than when I was

a kid. Our food and drinking water supplies are safer. Our land is better protected.

Building on this success, EPA Administrator Steve Johnson has laid out two key

challenges for the Agency. First, we must make sure we are using the best available

scientific information to make decisions. Second, we must formalize collaborative approaches to solving problems. On this second point, traditional methods of environmental protection do not work as well as in the past on our remaining challenges.

Collaborating with States and other partners to solve remaining environmental

problems needs to become more routine. I look forward to helping the Administrator

tackle these challenges and make sure the air, water, and land my grandchildren

breathe, drink, and live on are even cleaner than what we have today.

Mr. Chairman, if confirmed I will do everything I can as Deputy Administrator

to continue to serve the people of this great country, protecting their health and the

health of our environment. Thank you very much and I would be happy to answer

any questions.
40
41
42
43
44
45
46
47
48
49

RESPONSES BY MARCUS PEACOCK TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. With regard to the findings in EPA’s final June 2004 study, Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing

of Coalbed Methane Reservoirs, that the use of diesel was a potential threat to underground sources of drinking water, do you think should EPA plan to develop national regulation standards for the underground injection control program to address this threat? If not, why not?

Response. I am not familiar with this report or the details of this issue. If confirmed, I will look into the issue.

Question 2. What action do you think EPA should take to address any

endangerment to public health as a result of hydraulic fracturing practices?

Response. As noted in the answer to the previous question, I am not familiar with

this report or the details of EPA’s activities in this area. If confirmed, I will look

into it.

Question 3. Do you know what monitoring procedures are in place to ensure that

the three major companies conducting hydraulic fracturing that signed the MOA

with EPA in December of 2003 are no longer using diesel as a part of their hydraulic fracturing process? Given that this MOA contains no enforcement provisions,

what actions should taken against these companies should they continue to use diesel? Is the voluntary commitment to ban the use of diesel working and have these

companies fully implemented the ban throughout their entire operations?

Response. I have no knowledge of this MOA, but will look into it, if confirmed.

Question 4. On March 10, 2005, Assistant Administrator Ben Grumbles testified

before the House Government Reform Committee regarding lead levels in drinking

water. Mr. Grumbles stated that EPA conducted a ten-state review of LCR implementation that involved review of over 450 utilities. What actions do you think

should be taken regarding these reviews in terms of reports and enforcement? If

confirmed, would you provide the results of this data review, including any reports,

to this committee?

Response. It is my understanding that EPA is still working to analyze the data

collected during its review of the ten state programs. I have been told that the

Agency will release a report with a national summary of the findings and make it

available to both the public and the committee.

Question 5. At the March 2005 House hearing, Mr. Grumbles testified that data

provided by the states indicates that 90th percentile levels for approximately 96 percent of utilities subject to the Lead and Copper Rule (LCR) are below the 15 ppb

action level. Regarding the 4 percent of utilities out of compliance with the LCR.

If confirmed, would you provide to the committee a summary of the sampling results

for each utility, the details of noncompliance, and specify whether an enforcement

action is pending or has been taken?

Response. If confirmed, I will work with the Office of Water and the States toward

a goal of providing a summary of recent information to the committee.

Question 6. While at OMB did you review the Administration’s rule to exempt

coal-fired power plants from the air toxic control requirements of section 112 of the

Clean Air Act? If so, do you think it is in the best interest of the public’s and environmental health to choose, as the Administration has, to allow hundreds of coalfired power plants to avoid adopting maximum achievable control technology for

decades?

Response. OMB’s Office of Information and Regulatory Affairs (OIRA), not my office, reviewed the section 112 revision notice. However, I am generally familiar with

it.

This rule accompanies the Clean Air Mercury Rule, which represents the first

time the U.S., or any other country, has regulated mercury emissions from existing

coal-fired power plants. Along with the Clean Air Interstate Rule, EPA’s recent regulations will require one of the most significant investments in air pollution technology ever in the history of the Clean Air Act and represents an important part

of this Administration’s efforts to help protect public health and the environment

without interfering with the steady flow of affordable energy for American consumers and business.

Question 7. The Administration has routinely requested increased funds for the

EPA’s national diesel initiative and clean school bus campaign. Congress has not cooperated and the request and appropriations have gone down over time. What effect,
50

if any, will the authorization bill included as part of the energy bill and the Clean

Air Subcommittee hearing discussed on Tuesday have on the availability of funds?

Response. Diesel retrofits in general are cost-effective control strategies for important pollution reductions. Both the national diesel initiative, including finalizing

new emissions standards for locomotive and marine engines, and clean school bus

program are priorities. The results associated with these programs will help to reduce particulate matter being emitted into the air and provide immediate public

health benefits. There is substantial interest and support from industry, state and

local governments, and public health and environmental organizations nationwide

for these programs.

Although the Administration supports efforts to reduce emissions from both new

and existing diesel engines, we are concerned that the funding authorized for diesel

retrofit programs in the energy bill goes well beyond the funding for such efforts

called for in the President’s 2006 budget. Like similar authorizations that go well

beyond the President’s budget, we cannot support the authorization levels in this

bill as they could create pressure to appropriate those levels in the future. However,

we look forward to working with Congress to address the public health goals of the

legislation consistent with the fiscal constraints that we all must confront.

Question 8. Which rules and regulations that have you worked on over the last

10 years will have the greatest beneficial impact on public and environmental

health?

Response. I have worked on a limited number of rules and regulations over the

last 10 years and very few of these addressed public or environmental health. This

is because my purview tended to address rules and regulations that had an effect

on the Federal budget. Nonetheless, of the limited number of rules and regulations

I have worked on, one stands out as being potentially beneficial to environmental

health. I worked on a U.S. Department of Agriculture rule clarifying the Federal

share for the cost of eradicating or controlling invasive species. The rule helps State

and local officials and other partners understand, upfront, what they are responsible

for and what they can expect from the Federal Government. This reduces uncertainty and should speed up activities that will eradicate or control such species instead of waiting to negotiate cost-share on a case by case basis. Unfortunately, the

execution of this rule has been blocked by appropriations language.

Question 9. Have you, at any point in your work at OMB, participated in discussions or meetings regarding Clean Air Act rulemakings that were intentionally

structured or designed to avoid the docketing requirements of the Clean Air Act?

Response. No, I have not participated in discussions or meetings regarding Clean

Air Act rulemakings that were intentionally structured or designed to avoid docketing requirements of the Clean Air Act.

Question 10a. EPA stated in its May 12th Federal Register notice finalizing the

Clean Air Interstate Rule (or CAIR) that the reductions in ground-level ozone

achieved by CAIR could save 500 more people from premature death every year. Yet

EPA did not include these benefits in its main analysis. Since then, three new studies were published in the July edition of the journal of Epidemiology which clearly

provide strong scientific evidence that the link between ozone and premature mortality is real and significant and additive to the effects of fine particles.

Will and should EPA now immediately include premature death reduction benefits in its primary estimates for future ozone rules? If not, what process do you believe EPA should have to go through before using studies published in peer-reviewed journals for rulemaking analyses?

Response. I am not familiar with the current published literature on ozone mortality. If confirmed, I commit to taking a close look at this issue.

Question 10b. If EPA decides not to include ozone mortality as part of the next

ozone rule analysis, would you be willing to provide this Committee with an explanation of any such decision, including a description of what steps you feel you need

to take before you can begin applying this peer-reviewed literature?

Response. Again, I am not familiar with the details related to this issue but, if

confirmed, I will look into it.

Question 11. There have been a number of instances in recent regulatory analyses

where EPA has used methods which have not been subject to outside peer review.

A primary example of this was OMB’s insistence that the Clear Skies benefit-cost

analysis should include an estimate of benefits based on a ‘‘Senior Death Discount’’

which reduced the value EPA normally uses for avoided early death by more than

half for senior citizens (from $6.3 million per life to $2.3 million for people over 70).

Now, we know that this was OMB’s idea and not EPA’s and this ‘‘Senior Death Dis-
51

count’’ was to be applied even though it had no scientific underpinning and peer review to support it.

It seems reasonable that such proposals by OMB or other Federal agencies to use

new methods or assumptions in EPA analyses should be conveyed in writing and

made available to the public. Do you agree such new proposed methods should be

subject to some kind of peer review so we can avoid debacles such as OMB’s Senior

Death Discount approach in the future?

Response. I agree that important methods or assumptions included in its regulatory analyses should be subject to outside peer review consistent with the Office

of Management and Budget’s Peer Review Bulletin issued on December 16, 2004.

Under this Bulletin, agencies are granted broad discretion to weigh the benefits and

costs of using a particular peer review mechanism for a specific information product

or components thereof.

Question 12. According to an Inside EPA article of September 17, 2004, EPA and

OMB have been collaborating on an approach which polls a small number of outside

experts and asks them to interpret the literature on fine particle health effects and

provide an estimated dose-response function. This sounds to me like an odd kind

of non-scientific process where a small number of selected people are being asked

to do the work traditionally done by EPA scientists. Inside EPA article reports that

the result of this OMB—EPA collaboration is a lowering of the estimated benefits

of pollution control. The professional experts and scientists on the EPA staff were

strongly critical of this project, which I also imagine is a very time-consuming and

expensive effort. Aren’t there enough health effects experts already on the government payroll in EPA who have already interpreted the particulate matter health effects literature, and haven’t these EPA experts’ interpretations already been subject

to outside peer review by the Science Advisory Board and the National Academy of

Sciences?

Response. I am not familiar with the expert elicitation approach mentioned, nor

any of the details associated with the estimating the benefits of pollution control.

If confirmed, I plan to take a close look at this issue and will make any changes

necessary.

Question 13. If you answered yes to the previous question, why is EPA spending

taxpayer dollars at OMB’s direction on this additional outside work for a health

endpoint that EPA can already quantify using peer-reviewed methods, while a wide

range of other human health and ecological effects are left unquantified for lack of

adequate research investment? These unquantified effects include those from dry

and wet deposition of mercury and mercury contamination in fish, the effects of atmospheric nitrogen deposition in watersheds and estuaries like the Chesapeake Bay

which EPA so far has failed to include in its analyses of the benefits of NOx control,

and the lack of any method for calculating the benefits of improved visibility in cities and residential areas where most of us live.

Response. Again, I am not familiar with the expert elicitation approach mentioned

or why it is being pursued, but if confirmed, I will take as close a look as necessary.

Question 14. How much is this outside expert survey project, mentioned in question No. 13, costing the taxpayers compared to how much EPA has been investing

in research to address human health and ecological effects currently left out of your

analyses?

Response. Although I am not familiar with this case in particular, I understand

that EPA’s Office of Air and Radiation and the Office of Research and Development,

as well as other EPA offices have made significant investments in characterizing,

quantifying, and valuing the benefits of improving our environment, including the

effects of the deposition of nitrogen from the air, runoff and other sources on our

estuaries. This particular project undoubtedly constitutes only a small portion of

this research effort.

Question 15. Do you agree that using scientifically rigorous surveys can help establish data needed to analyze the effects of EPA programs? Are you willing to provide this Committee with information regarding any survey work EPA has initiated

which is being held up by OMB under its Paperwork Reduction Act authority? And

if you find there is a backlog of scientific survey work being held up by OMB, what

steps will you take to ensure scientific work on data collection can proceed on a

timely basis?

Response. I agree that scientifically rigorous surveys can help inform both Agency

research and policymaking efforts. If confirmed, I commit to looking into the status

of any Information Collection Requests, and will work to make sure such requests

are reviewed as expeditiously as possible.
52

Question 16. I’m sure you are familiar with OMB’s annual Reports to Congress

on the benefits and costs of Federal regulation, originally nicknamed the Stevens

Report then the Thompson Reports. To their credit, in recent years OMB has made

the comments submitted on its draft reports available to the public, an admirable

example of transparency and accountability. However, the OMB website where

these comments are published shows that EPA last submitted comments on the

2002 report. Reading EPA’s comments on the 2002 report, it is clear that the Agency

had problems with many aspects of OMB’s report and with OMB’s preferred analytical practices pertaining to matters such as discounting future health benefits, using

quality of life adjustments to reduce estimated benefits of mortality reductions, and

other issues. I find it very odd that since 2002 EPA has been completely silent, submitting no comments on the record for the last 3 years of OMB reports. Will you

provide this Committee with copies of any comments EPA has prepared on drafts

of the Thompson Reports for the last 3 years, including this year, with an explanation for why any such comments were not made public and addressed by OMB

in the final versions of their reports?

Response. OMB’s Report to Congress on the costs and benefits of Federal regulation, known as the ‘‘Thompson’’ report, is written and produced by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and

Budget. I was not directly involved in the report, except to review drafts. My office

at OMB was not involved in the review process with other agencies. If confirmed,

I will find out the details of the process that was used with respect to EPA, review

the comments that were submitted by EPA and assess how OMB responded to

EPA’s comments.

Question 17. You have been called the ‘father of OMB’s Program Assessment Rating Tool,’ designed to evaluate program performance. Please explain how this tool

works with respect to preventative programs, such as most of the public health statutes that EPA administers? In other words, how do you quantify cancers avoided

or hazardous waste not spilled?

Response. A number of EPA programs with activities focused on prevention have

been evaluated successfully by the Program Assessment Rating Tool (PART). These

include programs with prevention, deterrence, compliance assistance, and research

components. OMB recognized that not all programs are alike, and thus there are

seven different PART instruments: Direct Federal, Competitive Grant, Block/Formula Grant, Regulatory Based, Research and Development, Capital Assets, and

Credit—the first five of which have been used for EPA programs. The basic tool is

the Direct Federal version. Each of the other versions adds a number of questions

tailored to the specific implementation activities of that type of program. In addition, and has been the case with EPA, OMB and the agency have the flexibility to

create a program-specific hybrid tool which pulls appropriate questions from more

than one version of the tool.

It is often challenging to link directly preventative activities with environmental

or human health impacts—ambient conditions, exposure or body burden/uptake, or

health or ecological status. In some cases, programs have employed ‘‘logic models’’

that link programmatic activities with the desired outcomes. Annual performance

measures thus capture programmatic outputs or intermediate outcomes, such as

compliance rates or the installation of pollution control equipment by the regulated

community. These annual measures are then linked to long-term performance measures which measure the desired environmental or human health impacts. In some

programs the preventative activities are a subset of the program’s implementation

activities. In these cases the program might have annual performance measures focused on programmatic activities or outputs, but all the program’s activities would

share the same long-term performance measures. Finally, in some cases it is possible to extrapolate from a representative sample the estimated impacts of programmatic activities on environmental or health impacts.

Question 18. The free flow of information from EPA to the outside world is of critical importance. Recently, EPA settled a lawsuit with a group that had requested

copies of employee surveys conducted by the agency in 1999, 2001, and 2003. The

watchdog group had requested the information under the Freedom of Information

Act and was basically stonewalled by the agency until a formal suit was filed. In

addition, EPA is increasingly denying public interest groups fee waivers under

FOIA. Not only were EPA’s actions a waste of resources, they were against the law.

What will you do to make sure that the Freedom of Information Act process is not

politicized and that requests are timely and efficiently processed?

Response. This Administration takes its obligations under the Freedom of Information Act seriously. I am not familiar with the case that is referenced in your
53

question, but I commit to doing a thorough review of this process, including fee

waivers, if confirmed.

Question 19. The effects of management practices on employee morale is a critical

area that will be under your purview at EPA. You have described the Deputy Administrator position as a sort of ‘‘Chief Operating Officer.’’ Should you be confirmed,

are there certain steps you would take to monitor employee morale and ensure that

it is going up rather than down?

Response. In keeping with Administrator Johnson’s commitment to transparency

and collaboration, I view the effective stewardship of EPA’s human resources as one

of the most critical responsibilities of the Deputy Administrator. Working with the

Administrator and with Agency leadership at all levels, I believe there are several

ways to stay in touch with the EPA staff, helping ensure that staff understand how

critical they are in achieving our mission and how much we value them as professionals and individuals. These steps include the following.

Keeping in Touch with Staff Opinions.—The results recently reported from the

Government-wide Federal Human Capital Survey (FHCS) once again confirms what

is evident in the EPA workplace everyday. That is, EPA staff are strongly committed to the Agency’s mission and understand their role in achieving that mission.

Continued monitoring of employee perceptions of EPA, its leadership, its management, and the support staff receive in performing their duties will be an important

step in making sure we are ahead of the curve in dealing with issues of morale and

employee effectiveness.

Taking an Active Role in Relationships with the Agency’s Human Capital Constituencies.—EPA has a strong history of active interaction between senior leadership and human resources constituency groups across the Agency. EPA’s unions are

one of these key constituency groups and I intend to foster a relationship characterized by continuous dialog, union involvement, mutual respect, and honesty. I look

forward to being actively involved in the work of EPA’s Human Resources Council

(HRC). An organization unique in Federal agencies, EPA’s HRC is comprised of executive-level leaders whose role is to raise issues of significance to the effective management of the Agency’s human resources and develop the analysis and advice that

the Administrator needs to deal with those issues.

Leading the Human Capital Change Effort at the Agency.—It is my understanding

that EPA’s human capital program is making progress in aligning its performance

management, workforce planning, competency management, employee development,

recruitment, and planning systems with the Agency’s strategic plan and then measuring results.

None of a Deputy Administrator’s many areas of responsibility are more important than those in the human capital area. I look forward to working along side my

new colleagues, just as has our Administrator, as part of an EPA team.

Question 20. Given the fact that EPA dropped its voluntary program for lead poison prevention a short period after Administrator Johnson wrote to Senators Clinton and Obama that lead regulation was unnecessary and extolling the virtues of

the voluntary approach, do you think that the Agency has realized, that at least for

lead, voluntary programs are not a panacea to regulation? Do you think it would

be a good idea to conduct a rigorous analysis of all of EPA’s voluntary programs

to make sure that they are achieving their environmental and health protection

goals?

Response. As I indicated at the hearing, it is my understanding that the Agency

intends to propose a lead renovation and remodeling regulation by the end of the

year.

As I understand it, EPA is undertaking a review of their voluntary programs to

more rigorously evaluate them. I believe the Agency’s goal is to ensure that voluntary programs complement regulatory programs and promote innovative approaches for environmental protection.

Question 21. On July 6, 2005 in Denmark, President Bush told reporters, ‘‘Listen,

I recognize the surface of the Earth is warmer and that an increase in greenhouse

gases caused by humans is contributing to the problem.’’ As you may know, the Administration’s current voluntary approach to this problem is projected by the Energy

Information Administration and every other economic forecasting entity to continue

increasing U.S. greenhouse gas emissions for the foreseeable future, thereby continually contributing to and compounding the problem. You may also know that knowledgeable climatologists have projected that the U.S. and other major emitters have

approximately 10–15 years to ‘‘decarbonize’’ our energy supply system or the next

100 years of global warming will be unstoppable. Do you think it would be prudent
54

for the U.S. to adopt an approach that would result in and guarantee that total

emissions in the U.S. and the world began to decline in the next 10–15 years?

Response. I agree with the President’s statements on climate change and I believe

that the broad portfolio of actions that this Administration is undertaking in this

important area is an effective response. These activities include near-term voluntary

programs to reduce current greenhouse gas emissions, many of which are implemented by EPA, coupled with substantial efforts on technology development that

will make new, cleaner energy sources available, and the world’s largest program

in climate science to improve our understanding and enable effective responses.

Through this program, we will help the world achieve the purpose of the recently

concluded G8 Summit in Gleneagles, Scotland—namely, ‘‘to put ourselves on a path

to slow and, as the science justifies, stop and then reverse the growth of greenhouse

gases.’’

Question 22. In my view, the Agency’s budget and resources for hazardous air pollutants research, regulation development and prevention activities have been much

lower than warranted by the statutory requirements in the Clean Air Act. As a result, the Agency has often been significantly behind schedule. EPA has also recently

issued unauthorized MACT standards incorporating risk factors inappropriately (for

example in the plywood/boiler MACT development) and is also unwisely contemplating, perhaps due to resource constraints, further unauthorized residual risk regulatory actions. Will you commit to reviewing the air toxics program budget and resources and advising this Committee of gaps in funding or resources that are needed

so that the Agency can promulgate and enforce rules that comport with the statutory requirements of the Clean Air Act?

Response. I am aware of the ongoing demands and the importance of the air

toxics program. If confirmed, I will look into this issue and address any problems

if warranted.

Question 23. A new report, issued this week by the Government Accountability

Office, serves as a wake up call on the need to modernize our chemical management

laws. According to GAO, EPA has required testing for fewer than 200 of the 62,000

chemicals used in commerce since EPA began reviewing chemicals in 1979. Additionally, GAO found that EPA’s reviews of new chemicals provide limited assurance

that health and environmental risks are identified before the chemicals enter commerce. Finally, even when EPA has toxicity and exposure information on chemicals

showing significant health risks, GAO found that the Agency has difficulty overcoming the legal hurdles needed to take action. The public health implications of

this report were highlighted by another study issued this week, finding that babies

in the U.S. are exposed to hundreds of synthetic chemicals, even before birth. TSCA

has not been updated since 1976. If you are confirmed as Deputy Administrator, will

you work with Congress to enhance TSCA to give EPA better tools to protect children from chemical exposure?

Response. I am very committed to protecting the environment and the health of

citizens—young and old—of this country by ensuring that needed information is

available on the hazards of chemicals. If confirmed, I look forward to working with

the Committee and others in Congress on this issue.

RESPONSES BY MARCUS PEACOCK TO ADDITIONAL QUESTIONS FROM

SENATOR LAUTENBERG

Question 1. I’m sure you are familiar with the case of Phil Cooney, a non-scientist

lawyer at the White House who altered science reports on climate change. Do you

believe these kinds of alterations of science documents by the White House are appropriate?

Response. The documents you reference relate to management of the Federal climate science program, and were reviewed following the same interagency review

process that is used on other documents of this type. Approximately 15 Federal

agencies were involved on the interagency review process which includes both scientists, policy specialists and senior managers.

Phil Cooney was both a policy specialist and a senior manager involved in the development and conduct of our climate change policies and activities. As someone

with expertise on issues relating to climate change and the environment, I believe

his participation in the review was appropriate.

Question 2. I am very concerned about a new plan that EPA is developing on ‘‘risk

assessment’’. When you visited my office a few weeks ago you promised to get back

to us with information on that plan. Since you haven’t done so, could you tell me

here what you have learned about it?
55

Response. I have looked into the issues you raised, and my response indicates

what I have learned about this issue.

There are two major purposes of the proposed changes: (1) to identify and resolve

major scientific issues early in the assessment development process and thereby facilitate high quality and timely completion of assessments; and (2) to increase transparency in the assessment development process and thereby assure full and open

consideration and scientific review of relevant information.

EPA is planning to hold a public workshop on the proposed new process to solicit

comments, suggestions and concerns from the IRIS user community and stakeholders. The workshop will be announced in the Federal Register and on the IRIS

web site.

Question 3. From my observations this administration ‘‘collaborates’’ only when a

state agrees with it. As just one example, during the ‘‘Clear Skies’’ debate many

states, including New Jersey, fought for the ability to regulate facility emissions to

meet Clear Air Act’s health standards. The administration refused to listen. Is that

the kind of collaboration we could expect if you are confirmed?

Response. Collaborative problem solving is an environmental protection approach

that I know current EPA Administrator Steve Johnson is committed to and is encouraging. EPA has a long history of helping multiple parties to work cooperatively

with the Agency to find environmental solutions—in watersheds, in communities

(e.g., Brownfields), and for some ecosystems such as the Great Lakes and Chesapeake Bay. Together with strong regulatory and enforcement programs, collaborative approaches can be an effective tool for some types of environmental problems.

I believe that EPA, under the leadership of Administrator Johnson, will continue

to look for areas where collaborative approaches can achieve beneficial environmental results.

RESPONSES BY MARCUS PEACOCK TO ADDITIONAL QUESTIONS FROM SENATOR BOXER

Question 1. Do you agree that the recommendations of the NAS on human pesticide testing, the Nuremberg Code and Declaration of Helsinki and the Common

Rule—at a minimum—should be specifically incorporate in any EPA regulation on

intentional human dosing studies with pesticides?

Response. Yes, I think it is important for EPA to require investigators who intend

to submit human clinical trial research to EPA meet high ethical standards.

Question 2. EPA estimates that the funding shortfall for wastewater treatment

and pollution prevention projects as of January 1, 2000 was $181 billion, and that

this shortfall will grow to $388 billion over the next 20 years. Before you are confirmed, please describe for me the steps that you will take to address harms to public health and environmental quality-including fish consumption advisories, closed

beaches and degraded aquatic and wildlife habitat—that will result from a lack of

sufficient funding in later fiscal years?

Response. In 2002, EPA issued The Clean Water and Drinking Water Infrastructure Gap Analysis. The analysis estimated the funding gap between projected infrastructure spending needs and current spending for the water industry. EPA undertook the analysis to develop a solid basis for understanding the magnitude of the

funding gaps potentially facing wastewater systems.

As a country, we have made remarkable progress over the years in protecting and

restoring our waters and wetlands. We have much left to do. EPA is committed to

meeting the challenge and to accelerating the pace. To support sustainable wastewater infrastructure, EPA continues to provide annual capitalization grants to the

Clean Water State Revolving Funds (CWSRF). The CWSRF has been one of the

most successful and cost-effective infrastructure financing programs in the Federal

Government’s history. The Agency has provided, through fiscal year 2004, nearly

$23 billion to capitalize the CWSRF, nearly triple the authorization level of $8.4 billion. This Federal investment, when combined with State contributions and other

funding sources, has allowed the CWSRF to support $48 billion in important water

quality projects.

In addition, EPA is addressing the funding gap by focusing on the ‘‘four pillars’’

of sustainable water infrastructure. The four pillars that are essential for sustainable infrastructure are: better management, water efficiency, full-cost pricing, and

watershed-based approaches. Better management means assuring that utility managers have the suite of tools they need. These tools include asset management, environmental management systems, cost-effective technologies, capacity building, and

other approaches used by the most successful utilities.
56

Another pillar in ensuring sustainable infrastructure is to encourage efficient use

of water. Although EPA’s focus is water quality, not water quantity, EPA increasingly finds that water quantity and quality issues are inextricably linked. EPA will

continue to promote water efficiency through such efforts as a voluntary program

to identify and promote water-efficient products.

The third pillar is full-cost pricing of water supply and wastewater treatment.

Pricing that seeks to recover all of the costs of building, operating, and maintaining

a system is absolutely essential to achieving sustainability. Conservation rates and

seasonal rates can further help reduce peak water demand, and valid concerns

about equity can be addressed through ‘‘lifeline rates’’ for the poor.

The final pillar in assuring sustainable water infrastructure is an important

water program priority in itself. EPA is committed to working co-operatively on a

watershed basis with our State, Tribal, and other partners to protect human health

and restore water quality nationwide. About a decade ago, EPA embraced the watershed approach, focusing on multi-stakeholder and multi-program efforts within

hydrologically defined boundaries, as a better way to address water quality problems. Today, we are increasingly managing water quality on a watershed basis.

Question 3. On June 7, 2005, the NAS and the heads of ten other national scientific institutions stated that ‘‘there is strong evidence that significant global

warming is occurring,’’ that ‘‘[i]t is likely that most of the warming in recent decades

can be attributed to human activities’’ and that ‘‘scientific understanding of climate

change is now sufficiently clear to justify nations taking prompt action.’’ Before you

are confirmed, please describe whether and how you will take specific steps to ensure we will reduce greenhouse gas emissions promptly and develop a U.S. policy

recommendation consistent with the NAS document.

Response. The President’s approach to climate change is informed by the best

available science, including the 2001 NAS report he requested on what is known

and unknown about climate science. The Bush Administration recognizes that the

surface of the Earth is warmer and that an increase in greenhouse gases caused

by humans is contributing to the problem. However, significant uncertainties in climate science remain and the Administration is working aggressively to address

them.

The Administration’s program first sets the U.S. on a path to slow the growth of

greenhouse gas emissions, and—as the science justifies—to stop and then reverse

that growth. The President has launched a broad portfolio of domestic and international initiatives to develop and delploy cleaner, and more efficient energy technologies through a broad range of programs, including voluntary, market-based, and

mandatory measures. The President’s climate change policies also promote technological innovation and reduce harmful air pollution in the U.S. and throughout the

world while improving our energy security.

I believe that these actions—which at EPA focus on voluntary programs like Energy STAR, Smartway Transport, Climate Leaders and the international Methane

to Markets Partnership—are a strong and effective response to the challenge we

face.

Question 4a. On June 8, 2005, the New York Times reported that political officials

in the Bush Administration edited scientific information in government reports on

climate change to downplay the connection between greenhouse gas emissions, climate change and the adverse consequences of climate change. This is not the first

time that those types of problems have arisen in the Bush Administration. This type

of political interference with science is a violation of the core principles of scientific

integrity and violates the public trust in our government to base its policies on accurate and independent information.

Please describe for me whether you agree that politics should not be a factor in

determining what scientific advice the EPA provides?

Response. I want to assure you that this Administration emphasizes the importance of using sound, credible, peer-reviewed science to inform its policies and decisions. EPA follows rigorous peer-review standards for all of its scientific products

to ensure the soundness and credibility of their results.

The Bush Administration supports sound science and has made a strong commitment to climate change science. In 2002, the President established the U.S. Climate

Change Science Program as part of a new cabinet-level management structure to

oversee public investments in climate change science and technology. CCSP coordinates and integrates scientific research on global change and climate change sponsored by 13 participating departments and agencies of the U.S. Government.

In July 2003, CCSP published the Strategic Plan for the U.S. Climate Change

Science Program. The Strategic Plan responds to the President’s direction that climate change research activities be accelerated to provide the best scientific informa-
57

tion to support public discussion and decisionmaking on climate-related issues. The

Administration’s commitment to sound science is exemplified by the rigorous public

peer review to which it subjected earlier drafts of the CCSP Strategic Plan. A major

public workshop was held in December 2002 to review the draft, and the National

Research Council was also commissioned to review the draft and final versions of

the Plan. The NRC said the Plan ‘‘articulates a guiding vision, is appropriately ambitious, and is broad in scope.’’ Also, the Plan calls for the production of 21 Synthesis and Assessment Reports, focusing on some of the highest priority scientific

questions being addressed by the CCSP. The 21 Reports will be produced through

a FACA process, with rigorous peer review, to ensure their balance, credibility, and

scientific soundness.

Question 4b. Please describe the steps you will take to ensure that political appointees and industry representatives do not alter scientific information in government reports, memos and other documents on climate change and other matters before EPA?

Response. As I noted above, EPA emphasizes the importance of sound, credible,

peer-reviewed science in all of its programs. I also am committed to an open and

transparent process in the development and in the review of EPA’s scientific documents that are prepared to inform decisionmakers. Consistent with the Information

Quality Act guidelines, comments EPA receives from stakeholders (e.g., the regulated community, environmental organizations, private citizens) are made publicly

available as the scientific documents are developed for subsequent use in setting

Agency policy or in developing regulations. I want to assure you that if confirmed

as the Deputy Administrator of EPA, I will insist that only credible, peer-reviewed

science be used in informing policy.

Question 4c. Please describe for me the steps that you will take to protect scientists from being asked to violate their scientific integrity by altering or suppressing scientific data?

Response. I will not ask any scientist at EPA or any other agency to violate their

scientific integrity by altering or suppressing scientific data. Indeed I am eager to

have the best and most credible science as we deliberate on what should be the appropriate policy. I also know that the scientific staff at EPA, as well as other agencies are incredibly committed to scientific integrity. They also know that as scientists, they have an important function to inform policymakers but the call as to

the appropriate policy is the responsibility of the Agency’s leadership.

Question 5. Please work with EPA to ensure that the agency provides me with

material including any written documents related to any assessment, before you are

confirmed, which EPA has or is conducting of potential concerns by employee regarding influence from political or industrial interests?

Response. I am not familiar with the material you mention in your question. If

confirmed, I will look into the existence of this material.

Question 6. Please work with EPA to provide me with EPA’s new draft assessment for MTBE, before you are confirmed, which recent trade reports state concludes that MTBE is a ‘‘likely’’ carcinogen. Please include any comments supplied

to the agency and a list of all individuals, government offices and other entities, including non-governmental entities, which have seen the document or have commented on the document.

Response. It is my understanding that the draft MTBE assessment is still early

in this process and has not received internal nor external scientific peer review and

thus it is not ready to be publicly released.

RESPONSES BY MARCUS PEACOCK TO ADDITIONAL QUESTIONS FROM SENATOR OBAMA

Question 1. Title 15, Section 2682(c)(3) of the U.S. Code requires EPA to promulgate regulations to reduce the risk of lead exposure during renovation and remodeling activities by October 28, 1996. By what date, will EPA issue these regulations?

Response. As I understand it, the Agency will announce by the end of this year

a comprehensive program, which will include a proposed regulation, as well as an

extensive education and outreach campaign aimed at the renovation, repair, and

painting industry and the consumer.

Question 2. Following his nomination hearing in April, I asked Stephen Johnson

when EPA would issue a proposed rule. He responded: ‘‘[T]he Agency is developing

an education and outreach campaign that will convey the benefits of the use of leadsafe work practices to minimize both workers’ and homeowners’ exposure to lead

dust during renovation and remodeling. EPA is also targeting outreach efforts to ex-
58

pand consumer awareness. . . . EPA plans to launch this material by this fall and

will evaluate the effectiveness of this effort and will determine what additional steps

may be necessary, including regulation.’’ Does EPA believe that such a voluntary

approach satisfies the requirement of 15 U.S.C. § 2682(c)(3)? If so, what is the basis

for EPA’s belief that a voluntary approach satisfies the requirement of 15 U.S.C.

§ 2682(c)(3)?

Response. The Agency is not relying solely on a voluntary program based on education and outreach, rather it will be a component of a comprehensive program to

ensure the use of lead-safe work practices by the renovation, repair and painting

industry. This comprehensive program will include a regulation. In addition, the

Agency intends to launch an extensive education and outreach campaign designed

to assist the Agency in reaching this unique industry of small businesses and individuals. EPA will also target outreach efforts to expand consumer awareness, which

is critical to creating demand for the use of lead-safe work practices. The Agency

will work closely with all interested stakeholders in the coming months as we move

toward announcement of this comprehensive lead safe work practices program.

As the number of lead-poisoned children continues to decline, it is critical that the

Agency focus its programs on the housing, the activities and the exposures to reach

the children of concern. EPA is in the process of assessing the costs and benefits

of approaches for controlling the risks from lead contaminated dust created by renovation, repair and painting activities in the target homes. EPA currently estimates

that there are 1.3 million children living in homes where these types of renovation

and repair activities take place every year.

Question 3. An EPA study has projected significant benefits from a regulation

mandating lead-safe renovation and remodeling practices. Has EPA conducted a

study to evaluate the effectiveness of a voluntary approach?

Response. The Agency is not relying solely on a voluntary program based on education and outreach, rather it will be a component of a comprehensive program to

ensure the use of lead-safe work practices by the renovation, repair and painting

industry. This comprehensive program will include a regulation. In addition, the

Agency intends to launch an extensive education and outreach campaign designed

to assist the Agency in reaching this unique industry of small businesses and individuals. EPA will also target outreach efforts to expand consumer awareness, which

is critical to creating demand for the use of lead-safe work practices. The Agency

will work closely with all interested stakeholders in the coming months as we move

toward announcement of this comprehensive lead safe work practices program.

As the number of lead-poisoned children continues to decline, it is critical that the

Agency focus its programs on the housing, the activities and the exposures to reach

the children of concern. EPA is in the process of assessing the costs and benefits

of approaches for controlling the risks from lead contaminated dust created by renovation, repair and painting activities in the target homes. EPA currently estimates

that there are 1.3 million children living in homes where these types of renovation

and repair activities take place every year.

Question 4. What, if any, scientific evidence does EPA have to indicate that a voluntary approach would protect as many children from lead poisoning as would a

regulatory approach?

Response. The Agency is not relying solely on a voluntary program based on education and outreach, rather it will be a component of a comprehensive program to

ensure the use of lead-safe work practices by the renovation, repair and painting

industry. This comprehensive program will include a regulation. In addition, the

Agency intends to launch an extensive education and outreach campaign designed

to assist the Agency in reaching this unique industry of small businesses and individuals. EPA will also target outreach efforts to expand consumer awareness, which

is critical to creating demand for the use of lead-safe work practices. The Agency

will work closely with all interested stakeholders in the coming months as we move

toward announcement of this comprehensive lead safe work practices program.

As the number of lead-poisoned children continues to decline, it is critical that the

Agency focus its programs on the housing, the activities and the exposures to reach

the children of concern. EPA is in the process of assessing the costs and benefits

of approaches for controlling the risks from lead contaminated dust created by renovation, repair and painting activities in the target homes. EPA currently estimates

that there are 1.3 million children living in homes where these types of renovation

and repair activities take place every year.

Question 5. What is the projected cost of EPA’s voluntary approach to encourage

contractors to use lead-safe work practices?
59

Response. The Agency is not relying solely on a voluntary program based on education and outreach, rather it will be a component of a comprehensive program to

ensure the use of lead-safe work practices by the renovation, repair and painting

industry. This comprehensive program will include a regulation. In addition, the

Agency intends to launch an extensive education and outreach campaign designed

to assist the Agency in reaching this unique industry of small businesses and individuals. EPA will also target outreach efforts to expand consumer awareness, which

is critical to creating demand for the use of lead-safe work practices. The Agency

will work closely with all interested stakeholders in the coming months as we move

toward announcement of this comprehensive lead safe work practices program.

As the number of lead-poisoned children continues to decline, it is critical that the

Agency focus its programs on the housing, the activities and the exposures to reach

the children of concern. EPA is in the process of assessing the costs and benefits

of approaches for controlling the risks from lead contaminated dust created by renovation, repair and painting activities in the target homes. EPA currently estimates

that there are 1.3 million children living in homes where these types of renovation

and repair activities take place every year.

Question 6. At the July 14, 2005, hearing, you indicated your belief that the reason that regulations had not yet been promulgated is because of the difficulty in creating enforceable rules against small contractors. Why would a lead regulation that

applies to small contractors be any different from countless other EPA regulations

that apply to small businesses, such as dry cleaners?

Response. The renovation, repair, and painting industry is comprised almost entirely of small businesses and individuals—roughly a quarter of a million businesses

in the U.S. provide professional renovation, repair, and painting services, employing

approximately 1.7 million workers. EPA initially examined several regulatory approaches to dealing with the risks of lead-based paint in renovation, repair, and

painting activities. The Agency’s preliminary analysis indicated that the annual

costs of these regulations could exceed $1 billion.

These significant costs would be borne by small businesses, consumers, and

households. This, combined with the challenges of enforcing against small businesses and individuals, led the Agency to investigate a range of options in an effort

to identify an approach under the law that would not disproportionately burden

America’s small businesses. However, after careful consideration of a number of approaches, including a voluntary program, the Agency determined that a combination

program that includes regulation, training, educating and outreach would provide

the most effective approach to ensuring the use of lead-safe work practices by this

industry. When the Agency issues a regulation that impacts small businesses and

individuals, the Agency significantly increases its compliance assistance efforts,

which will also be the case when this rule takes effect.

RESPONSES BY MARCUS PEACOCK TO ADDITIONAL QUESTIONS FROM

SENATOR LIEBERMAN

Question 1. I believe that in your years at OMB, you were a significant contributor to formulating the PART methodology for evaluating executive branch programs and offices.

EPA’s Acid Rain program was rated only ‘‘moderately effective’’ in the last PART

scoring exercise. I assume you must also know that the acid rain program has been

highly effective in achieving the emissions reductions required under the Clean Air

Act, while doing so at far-below-predicted costs to industry and also at low cost to

the EPA itself. According to OMB’s Thompson Report, the program is producing

over $70 billion in health benefits every year; these benefits are at least 40 times

its costs. I assume that there are not all that many Federal programs that can claim

achievements that are quite so high-leverage. Given that record, it is surprising that

OMB rates the program as only ‘‘moderately successful’’. Since the results of the

program are so well-documented, the rating itself raises questions about OMB’s approach to rating programs by PART scores.

Can you explain the discrepancy between the benefit and cost results for the acid

rain program and the modest PART score the program received?

Response. The PART is a questionnaire of approximately 30 questions that is used

to determine if a Federal program is getting results and, if not, why not. The PART

produces an overall rating for each program but it is most helpful in diagnosing

strengths and weaknesses in a program and helping formulate specific recommendations that are expected to improve the program. In this way, it looks at a much

broader range of program characteristics than just the current costs and benefits of
60

the program. The expectation would be that implementation of the recommendations would result in a program that is more efficient than the status quo.

In the case of the Acid Rain program the PART resulted in an overall rating of

‘‘moderately effective.’’ This is a relatively high rating. To date, no EPA program has

achieved a higher rating. Relatively few programs governmentwide have achieved

the highest rating of ’effective.’

Despite a relatively high rating, the Acid Rain PART indicates the program could

be improved if two recommendations are implemented: (1) The program should develop and track efficiency measures (which it currently does not track) and such

measures should include the full cost of implementing the program, not just the

Federal share, and (2) statutory requirements that limit the scope of the program,

such as maximum emissions reduction targets and the exemption of certain facilities, should be removed. The completed PART for this program and all of the other

EPA programs that have been recently evaluated can be found at http://

www.whitehouse.gov/omb/budget/fy2006/pdf/ap—cd—rom/part.pdf

I was the lead for the President’s Budget and Performance Integration Initiative

when the Program Assessment Rating Tool (PART) was created. I am very proud

of my association with this effort. As a sign of its success, the PART is now being

copied by State governments, such as Kentucky and California, and by other countries, such as Asia and Scandinavia. The PART is also a finalist for Harvard University’s prestigious ‘‘Innovations in American Government Award.’’ The winners will

be announced later this month.

Question 2a. Transparency in the Regulatory Review Process.— Executive Order

12866, which this Administration has said governs its process for reviewing proposed and final regulations, requires OMB to comply with certain requirements to

improve the transparency of the regulatory development process, such as disclosing

relevant information regarding any communications with outside parties while a

regulation is under review by OMB. These requirements are designed in part to ensure that the public knows whether people outside the government are sharing

views with OMB about regulations as they are being reviewed, and to provide the

public with information about the changes made to a rule as a result of the interagency review process.

Increasingly, the Agency is providing OMB with ‘‘informal’’ copies of rulemaking

packages—which, I gather, does not trigger the requirements of EO 12866, and

making a ‘‘formal’’ submission to OMB only very late in the review process—sometimes only days before a rule is signed. I am concerned that this practice of receiving ‘‘informal’’ rulemaking packages is resulting in either OMB or the Agency circumventing the transparency requirements of the Executive Order with the effect

of creating a back door for certain stakeholders to influence the regulatory process

without any public record of their involvement.

Could you tell me why the Agency and OMB are relying so heavily on this ‘‘informal’’ process whether you will support a continuation of this practice if you are confirmed?

Response. I have not participated in the ‘‘significance’’ determinations under EO

12866. This activity is the responsibility of Office of Information and Regulatory Affairs. If I am confirmed, I would be happy to look more closely at this process.

Question 2b. I have not reviewed the logs OMB is required to keep on review of

regulatory actions. When OMB has a regulatory package that has been submitted

‘‘informally’’, do you know whether it logs the dates and names of individuals outside the government who are involved in any substantive communication with OMB

about the regulation as it is required to do once a regulatory package is submitted

formally?

Response. I am not aware of what items OMB’s Office of Information and Regulatory Affairs dockets. If I am confirmed, I would be happy to look more closely at

this process.

In a similar recognition of the importance of a transparent process, in Section

307(d) of the Clean Air Act, Congress required EPA to place in the docket all drafts

of proposed and final rules (and accompanying documents) sent to OMB for interagency review and ‘‘all written comments’’ on those drafts by other agencies.

Question 2c. On a regulatory package that has been sent to OMB for review, if

someone from OIRA or another agency, rather than sending comments in writing

to EPA, were to dictate changes to draft preamble or regulatory text to EPA staff

with the understanding that EPA staff would incorporate these changes, it seems

to me that would be a circumvention of these provisions rather than compliance

with them. Do you agree?

Response. I have not participated in implementing Section 307(d) of the Clean Air

Act related to OMB review. As a result, I am not aware of what items are docketed.
61

Question 2d. If so, will you direct EPA staff that, if they receive changes to text

in a Clean Air Act rulemaking package orally rather than in writing, they are to

write the comments down, identify who made the comments, and then ensure that

they are placed in the docket at the appropriate time?

Response. If confirmed, I will work with EPA staff and my colleagues at OMB to

uphold the important transparency goals reflected in Section 307(d).

STATEMENT OF SUSAN P. BODINE, NOMINATED FOR ASSISTANT ADMINISTRATOR FOR

THE OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

Mr. Chairman, Senator Jeffords and distinguished members of the Committee,

thank you for the privilege of coming before you today as the nominee for the position of Assistant Administrator for the Office of Solid Waste and Emergency Response. I’m honored that President Bush, Administrator Johnson and this Committee are considering me for this position.

I am proud to introduce my husband, David Bodine, and my 2 sons Christopher

and Steven. I would also like to thank Chairman Duncan and my many colleagues

for their support and friendship.

I have worked on environmental issues for my entire 17-year professional career,

first as a practicing attorney and than as a counsel to the Water Resources and Environment Subcommittee of the House Committee on Transportation and Infrastructure.

In private practice, I learned the substance of our environmental laws. But, I also

learned from experience that the best way to approach a cleanup problem was from

a technical and engineering perspective. I found it most rewarding to work on cases

where the parties were willing to get all the scientists in a room to work out the

most cost-effective way of cleaning up hazardous waste or a Superfund site.

I also found it very rewarding to work with clients to keep them in compliance

with the law. This was challenging. Many environmental regulations, particularly

RCRA regulations, are extremely complex.

When I moved to the Hill to work on the staff of the House Transportation and

Infrastructure Committee, I kept the same objectives and the same approach: focus

on the outcome a clean environment. And, try to ensure that the laws that are established to achieve this outcome are clear, understandable, and workable.

It is my experience that even when an issue is contentious or complex, if you start

by identifying a goal it becomes much easier to find common ground. Once a common goal is established, reaching agreement becomes much more likely.

As this Committee knows, this was the process used to develop the Small Business Liability Relief and Brownfields Revitalization Act, which became law in January 2002. To reach agreement on title I of that Act, environmental and business

groups had to agree that liability against small business owners for municipal solid

waste did not facilitate cleanups. To reach agreement on title II of that Act, municipal groups, developers and environmental groups all had to agree that stimulating

brownfields redevelopment was an important goal, and that it was acceptable to revise Superfund liability to achieve that goal.

This process also was used to develop the Great Lakes Legacy Act of 2002. Both

the Sierra Club Great Lakes Program and the Council of Great Lakes Industries

had reached the conclusion that something had to be done to create incentives and

leverage other programs to accelerate cleanup of the Great Lakes Areas of Concern.

The result was that legislation.

Similarly, in 2000, when Congress started work on beach monitoring issues, environmental groups and States had very different views about how to create beach

water quality monitoring programs. By bringing environmental groups, States, and

EPA together, Congress was able to formulate legislation that greatly improved

beach water quality monitoring, without placing an unfunded mandate on States.

EPA employed this approach when it developed its Superfund Administrative Reforms, beginning in 1995. These reforms were based on the goal of making Superfund cleanups more cost-effective and timely. To achieve this goal, the Agency

reached a consensus with stakeholders that not every site had to be cleaned up to

background levels. Taking future land use into account and focusing on principal

threats has allowed EPA to help bring more sites back into productive use.

If confirmed by the Senate, I would take the same consensus-building approach

to my new duties at the Office of Solid Waste and Emergency Response. I know we

share the goal of protecting the environment. I know we share the goal of seeing

hazardous waste sites cleaned up more quickly. I know we share the goal of making

environmental regulations clear and understandable.
62

If confirmed by the Senate, I will work with you to on a bi-partisan basis to find

sustainable solutions to achieve these goals. American citizens expect and deserve

both a thriving economy and a clean, safe and secure environment.

In particular, I am very excited about the opportunity to work with Administrator

Johnson as a member of his team as we accelerate the pace of environmental protection; use environmental protection as a driving force of economic growth; promote

a culture of environmental responsibility; and continue to ensure compliance of our

nation’s environmental laws. To meet this challenge, EPA must not only implement

and enforce the laws enacted by Congress, it must be innovative, form partnerships,

and leverage private investment.

In closing, I look forward to any questions you or your colleagues may have.

Thank you. I ask that my statement be placed in the record in its entirety.
63
64
65
66
67
68
69
70

RESPONSES BY SUSAN P. BODINE TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. One of the roles of Congress is to perform congressional oversight. Yet

it is difficult to discuss whether human health is being protected or whether the

Superfund program is getting the resources it needs to clean up abandoned toxic

waste sites if EPA refuses to provide the site specific documents regarding cleanup

status and remediation needs. In short, Congress needs information regarding the

on-going remedial, removal and pipeline projects that are not sufficiently funded to

date and the dollar shortfall, based on the requests of the EPA Regions. Will you

work to ensure that EPA provides, before confirmation, all of the information that

I requested with Senator Boxer in our October 20, 2004, letter regarding the impact

of the Superfund’s cleanup slowdown?

Response. I have a great appreciation for the importance of congressional oversight work, and if confirmed will work with the Committee to facilitate access to

Agency information. Agency staff has advised me that the questions in the October

2004 letter seem based on an assumption that EPA funding process involves separate Headquarters and Regional estimates of costs. All Superfund remedial action

funding decisions are made in close coordination with EPA regional offices after a

careful review of each project. EPA Headquarters and the regions continue to work

together extensively throughout the year to balance the Superfund program’s

human health and environmental protection responsibilities with both individual

site needs and overall national priorities. Through the collaborative process, EPA

Headquarters Superfund program managers decide onsite and project funding levels

that make the best use of the funds that they have. EPA staff advises me that the

agency has piloted approaches for identifying ‘‘out year’’ costs for some large remedial projects, and that information will be provided to the Committee.

Question 2. As a mature program, Superfund works fairly well at sites with potentially responsible parties capable of performing the cleanup. The heart of the Superfund program, however, is to ensure that communities plagued with abandoned

toxic waste dumps are able to get Federal resources to address the contamination

immediately and remove the toxic blight. Given the decreased resources available

to the program, what will you do as Assistant Administrator to accelerate the cleanup of these abandoned sites?

Response. I intend to ensure that, to the extent practicable, Federal funding is

allocated based on risk. To use Federal funding more effectively, I will pursue a

number of actions to improve the efficiency and effectiveness of Superfund remedies

at these sites and to closely manage site specific costs. With regard to remedy effectiveness, I will ensure that the following measures are taken. I will work with the

Regions to improve assessment of contamination at these sites. I will ensure third

party reviews of remedies, using the Agency’s Contaminated Sediments Technical

Advisory Group to review contaminated sediment cleanups; the National Remedy

Review Board to review all remedies expected to cost $25M or more; and Value Engineering reviews of remedy design and construction at complex sites.

In addition, I will ensure that EPA recovers unspent funds from contracts, grants,

cooperative agreements, interagency agreements and state superfund contracts and

agreements. Since 2002 the Agency has recovered more than $550 million that has

been used to fund remedial actions, removals, enforcement, pipeline, and management and support. Finally, I intend to ensure that opportunities are not overlooked

to augment Federal dollars with private funding from volunteers who may be willing to expend private funds on the cleanup of sites that have redevelopment potential.

Question 3. The hazardous waste program was designed to create a ‘‘cradle to

grave’’ management system to prevent mismanagement of dangerous wastes. EPA

has proposed a definitional change to allow these hazardous wastes to evade the

Federal safeguards if they are intended to be recycled. Many states are concerned

that without minimal controls, such as tracking and financial assurance requirements, these rules will create a new wave of toxic waste dumps. As Assistant Administrator, would you finalize a rule that would allow million of pounds of hazardous waste to escape regulation without adequate assurances to prevent mismanagement?

Response. The Nation’s cradle-to-grave hazardous waste management system provides critical important public health and environmental protection, and indeed it

has fundamentally changed the way hazardous waste is managed in this country.

As Assistant Administrator, I would not support regulatory approaches that would

allow unsafe management of hazardous wastes under the guise of recycling. At the

same time, I believe we should be supporting legitimate and safe recycling, and we
71

should make sure EPA’s regulatory programs don’t provide unnecessary or unwarranted disincentives to the safe reuse of industrial materials.

Question 4. In your written remarks, you state that you are excited about the opportunity to join Administrator Johnson to ‘‘use environmental protection as a driving force of economic growth.’’ Like most environmental statutes, Superfund and

RCRA are public health laws, not public works laws. Will you assure us that, as

OSWER Assistant Administrator, real estate value will not play a role in whether

a toxic waste site gets cleanup funds?

Response. I will not allow real estate values to interfere with health or environmental decisions.

Question 5. The community of Yerington, Nevada, has been exposed to dust blowing off mine tailings from the Anaconda Mine site for many years. This dust may

be contaminated with radionuclides and metals that could cause serious health

problems for nearby residents. What are EPA’s plans to reduce the dangers created

by exposing residents to this dust? The public can still access the Anaconda Mine

site, which contains numerous hazards. What are EPA’s plans and specific date for

securing and restricting access to the site? When does EPA plan to host a public

meeting to discuss the status of the cleanup of the Anaconda mite site?

Response. I am not familiar with all of the details surrounding the Anaconda

Mine site. I am however, committed, to looking into this further if confirmed.

Question 6. Despite the growth of voluntary curbside collection, the recycling rates

of many consumer commodities, such as plastic, aluminum and glass, is near historic lows. Companies are finding it increasingly difficult to obtain the quantity and

the quality of the recycled feedstock they need to meet production demand. EPA recently acknowledged that the Agency does not expect to meet the nationwide recycling goal of 35 percent by 2005. As the Assistant Administrator of the Office of

Solid Waste and Emergency Response, what steps will you take to ensure that EPA

plays a leadership role in rejuvenating recycling in America?

Response. EPA staff advises me that data show that the national recycling rate

for 2003 was close to 31 percent. While it is true that the rate of recycling has

slowed, it continues to increase slightly each year. Many factors influence the recycling rate, including local and state funding for recycling programs, prices of commodities recycled, availability of markets, improvements in technology, consumer

behavior, etc. I am committed to working with our state and local governments to

improve and reinvigorate the recycling message and ethic.

Question 7. In responding to questions from me and Senator Lautenberg on

Superfund, you suggested that the significant slowdown in the number of sites annually for which construction has been completed is in part due to the Bush Administration’s emphasis on other sites in the Superfund pipeline. However, the number

of remedial action construction starts during the first 4 years of the Bush Administration has averaged 58 per year, down 41 percent from the prior 8 years of the

Clinton Administration, which averaged 98 new construction starts annually. In

short, this Administration is making substantially less progress in completing construction of Superfund remedies or in starting new remedy construction at sites

waiting on the National Priorities List. If confirmed as the Assistant Administration

of EPA’s Office of Solid Waste and Emergency Response, what specific steps will you

take to reverse this trend and ensure that sites at all stages of the Superfund process are expeditiously cleaned up?

Response. In my response to Senator Lautenberg’s question, I was referring to my

concern that in the past, more emphasis was placed on construction completion, so

that less expensive sites were cleaned up first. EPA data on construction completions between 1993 and 2001 and their costs supports this conclusion. During this

time period, construction at 659 sites was completed. Of the completed sites, 511

had EPA costs of less than $5 million, 262 sites had EPA costs of less than $1 million, and 63 sites had no remedial action. It is my understanding that the need to

focus on large, complex sites is now consuming significant EPA funds. If confirmed,

I intend to ensure that, to the extent practicable, EPA prioritizes available Federal

funding based on risk to public health and the environment. At the sites where

there are PRPs, I intend to work with EPA’s enforcement program to ensure that

these sites are cleanup expeditiously using PRP funds. To date, over $22.8 billion

in PRP funds have been committed to clean up.

Question 8. The Leaking Underground Storage Tank (UST) program regulates the

installation, maintenance and remedial activities related to underground storage

tanks. EPA estimates that there are more than 660,000 active USTs, and 125,221

backlogged cleanups at leaking UST sites. Leaking USTs are a major threat to the
72

quality of our nation’s groundwater, including a significant source of contamination

from methyl tertiary butyl ether (MTBE). Will you work with EPA to provide, prior

to confirmation, the latest data, including analysis of such data, on the technologies

and practices that are best able to prevent releases from underground storage

tanks?

Response. I understand that EPA is preparing analyses of tank system performance of various technologies and practices. Two reports are being finalized, and EPA

is prepared to brief you on the findings.

RESPONSES BY SUSAN P. BODINE TO ADDITIONAL QUESTIONS FROM SENATOR BOXER

Question 1. Please work with EPA to provide me with any material that contains

DoD statements informing EPA that the department does not intend to, or may not

complete its cleanup obligations at the McClellan Air Force base Superfund site, including cleaning up contaminated groundwater?

Response. It is my understanding that EPA has been in communication with the

Air Force and that they are actively working together to meet their cleanup obligations. EPA staff reported that they have not located any documents in which the

Air Force indicates that it does not intend to or may not meet its cleanup obligations. The issues currently under discussion are summarized in the Air Force’s proposed plan and EPA’s letter responding to the plan, both of which will be provided

to the Committee.

Question 2. Please work with EPA to provide me with material that describes the

activities that EPA’s will undertake to ensure that DoD completes its cleanup obligations at the McClellan Air Force base Superfund site?

Response. Given the scope of the projects involved, the EPA OSWER staff has informed me that it will require at least 2 weeks to collect all the materials to fulfill

your request. They plan to collect this information and provide it to you as soon as

possible.

Question 3a. EPA produced a proposed AAI rule that failed to meet the statutory

criteria for determine whether an entity had in fact conducted AAI. Among other

failings this proposed rule failed to ensure that: (1) a qualified environmental professional conducted the inquiry; (2) the inquiry included a visual inspection of the

site; and (3) the investigations protected public health by substituting vague performance standards in lieu of the Brownfield law’s established criteria and benchmarks.

Please work with EPA to provide me with information that describes the status

of the agency’s rulemaking process?

Response. EPA published a proposed rule that would establish Federal standards

and practices for the conduct of all appropriate inquiries on August 26, 2004. A copy

is attached. I have been informed that the Agency intends to publish a final rule

within the next 6 months.

Question 3b. Please confirm whether you support and whether and how you will

ensure that the final AAI rule is consistent with the criteria from the Brownfields

law as described by the attached letter from Senators Jeffords and Boxer and Representatives Dingell, Solis and Pallone?

Response. If I am confirmed prior to the publication of the final rule, I will ensure

that it is consistent with statutory criteria.

Question 4. The Nation’s Brownfield law forbids EPA from providing financial assistance in the form of brownfield loans or grants to potentially responsible parties.

Please work with EPA to provide me with information that describes any potentially

responsible parties that received funds from the brownfield program?

Response. For several years, EPA’s annual appropriations act has made parties

who purchase property prior to January 11, 2002, but who otherwise meet the definition of a prospective purchaser exempt from liability, eligible for grants even

though they may technically qualify as a responsible party because of the purchase

date.

It is my understanding that panels review and screen applicants, based on specific

information they provide in the application to ensure that no ineligible party receives funding. In the 2005 grant guidelines (and in all previous versions of these

guidelines) since the passage of the Small Business Liability and Brownfields Revitalization Act of 2002, an appendix attached to the guidelines lays out specifics regarding eligibility criteria.
73

For community-wide or nonsite specific revolving loan fund grants, an additional

screening occurs post-award, when sites are identified by the recipient, to ensure

that no ineligible party receives grant funds.

RESPONSES BY SUSAN P. BODINE TO ADDITIONAL QUESTIONS FROM

SENATOR LAUTENBERG

Question 1. Last September the Wall Street Journal, in an article, ‘‘Money Shortage Threatens Superfund,’’ reported that the funding backlog for Superfund site

clean-ups will be three-fourths of a billion dollars by next year. If current funding

is adequate as you suggest—what was the Wall Street Journal referring to?

Response. It was not my intention to say that current funding was adequate.

There are still sites remaining to be cleaned up so I believe additional funding is

warranted. In order to clean up these sites, EPA must continue with the ‘‘enforcement first’’ has led PRPs to commit over $22.8 billion in cleanup work through fiscal

year 2004. If confirmed, I also intend to prioritize the use of Federal funds by addressing the highest risk sites first. For less contaminated sites, there may be opportunities to find private sector partners who are willing to voluntarily invest private funds in cleanup because of redevelopment opportunities.

Question 2. Superfund can’t be described just in terms of numbers—we are talking

about people’s lives, as we heard Sen. Baucus describe in referring to Libby, Montana. In 1997, you helped write H.R. 2727 which would have weakened the cleanup

standards at Superfund sites. Did you agree with those provisions? With 10 million

kids living within a few miles of a Superfund site, do you now believe these standards should be weakened?

Response. H.R. 2727 was introduced by the Chairman of the Water Resources and

Environment Subcommittee, Rep. Sherwood Boehlert, on October 23, 1997. At that

time I was a counsel to the subcommittee and I worked on Superfund issues. Title

I of H.R. 2727 addressed remedy matters. This title did not weaken cleanup standards at Superfund sites. Rather, Chairman Boehlert’s intent was to codify the remedy reforms that had been advanced by EPA as administrative reforms.

Before introducing this legislation, Chairman Boehlert held hearings in the Subcommittee. On April 10, 1997, the EPA Acting Assistant Administrator for Solid

Waste and Emergency Response, Timothy Fields, testified that, through its administrative reforms, EPA had achieved an approximately 20 percent cost reduction, on

average, in the cost of cleaning up Superfund sites, while maintaining protection of

human health and the environment. According to Mr. Fields, EPA achieved these

cost reductions by using reasonable assumptions about current and future land use,

by applying treatment primarily to hot spots (the highly mobile, highly toxic waste),

and by using a combination of pumping and treating and natural attenuation for

groundwater remediation. Mr. Fields also testified about cost reductions achieved by

the National Remedy Review Board. Finally, Mr. Fields testified that it would be

helpful for Congress to codify EPA’s administrative remedy reforms. Subcommittee

marked up H.R. 2727 on March 11, 1998, but did not reach consensus. The legislation was not taken up by the full Transportation and Infrastructure Committee.

Chairman Boehlert continued to work on Superfund legislation and, in the following year, introduced another bill, H.R. 1300. With this legislation, Chairman

Boehlert did achieve consensus within the Transportation and Infrastructure Committee, which ordered H.R. 1300 reported by a vote of 69 to 2 on August 5, 1999.

With respect to remedy selection, H.R. 1300 clarified the intent of H.R. 2727 by incorporating certain EPA guidance by reference, instead of attempting to restate the

guidance. At this point in time, EPA has been operating under its remedy reforms

for a number of years and they have not been challenged. Accordingly, it no longer

appears that codification of EPA’s administrative remedy reforms is necessary.

Question 3. Placing technical decisions in the hands of scientists and engineers,

such as how ‘‘clean’’ a Superfund site should be, is vital. These decisions must remain above politics. So, regarding EPA’s recent internal discussions on risk assessment—would you support giving the regulated industry a bigger role in such technical decisions?

Response. I strongly believe in using sound, credible, peer reviewed science to inform policies and decisions. In addition, I believe all stakeholders should be given

the same opportunities to participate.

Question 4. The Superfund program is of special importance to my State. We have

113 Superfund sites in New Jersey and many of them are underfunded. The GAO

reports that program funding has fallen by 35 percent in the last decade. The number of sites cleaned up has dropped dramatically and the Superfund Projects Man-
74

ager in New Jersey tells me that sites take three-times longer to clean up than they

used to because the funding just trickles in. As the administrator of the EPA’s

Superfund office, would you support the reinstatement of the Superfund tax, or

some other funding source, to ensure that polluting industries help make up for

these funding declines and in cleaning up the orphan sites?

Response. I strongly support the ‘‘polluter pays’’ principle under the Superfund

law. The success of the polluter pays principle is illustrated by the fact that historically 70 percent of Superfund sites are cleaned up by the parties responsible for hazardous waste, an average of $838 million per year to clean sites as mandated by

EPA. A broader perspective shows that, over the history of the program, EPA has

required responsible parties to spend more than $22.8 billion on cleaning up contaminated properties.

EPA has always relied upon Congress to appropriate funds for the Agency to pay

for cleanups at Superfund sites. Superfund program appropriations have remained

relatively steady over the past 5 fiscal years at $1.3 billion to $1.5 billion. The fiscal

year 2006 President’s Budget Request continues to maintain steady funding for the

program.

I believe that the Agency is making significant progress in cleaning up Superfund

sites. Unlike in previous years where smaller, less costly sites were targeted for

cleanups, EPA is now addressing large and complex sites that present unique cleanup challenges. Cleaning up these sites requires a disproportionate share of Superfund money. As I understand it, the new projects that are not funded have been

secured, often have had prior cleanup work and pose no immediate threat. I commit

that, if confirmed, EPA will not put communities at risk and will continue to protect

human health and the environment.

Question 5. From my observations this administration ‘‘collaborates’’ only when a

state agrees with it. As just one example, during the ‘‘Clear Skies’’ debate many

states, including New Jersey, fought for the ability to regulate facility emissions to

meet Clear Air Act’s health standards. The administration refused to listen. Is that

the kind of collaboration we could expect if you are confirmed?

Response. Collaborative problem solving is an environmental protection approach

that I know current EPA Administrator Steve Johnson is committed to and encourages. EPA has a long history of helping multiple parties to work cooperatively with

the Agency to find environmental solutions—in watersheds, in communities (e.g.,

Brownfields), in ecosystems such as the Great Lakes and Chesapeake Bay, and for

some national issues. Together with strong regulatory and enforcement programs,

collaborative approaches can be an effective tool for some types of environmental

problems. I believe that EPA, under the leadership of Administrator Johnson, will

continue to look for areas where collaborative approaches can achieve beneficial environmental results. My written testimony provides examples of some of the collaborative efforts I’ve been involved with during my tenure as a congressional Committee staffer. These are examples of the kinds of collaboration you can expect, if

I am confirmed.

RESPONSES BY SUSAN P. BODINE TO ADDITIONAL QUESTIONS FROM SENATORS BOXER,

LAUTENBERG, AND OBAMA

Question 1. Please work with EPA to provide us with a complete list of Superfund

sites in order of current health hazards.

Response. I understand the Agency has a list that identifies priorities for new remedial start actions, which is considered enforcement sensitive. It is my understanding that the Committee has requested this list under separate cover, and that

arrangements are being made to provide the list to the Committee. I have been informed that the Agency does not have a listing of all sites in rank order of current

health hazards. I understand the Agency is working to prepare the list of 103 sites

where human exposure is not confirmed as under control, categorized by sites with

actual current exposure, current potential exposure, and future potential exposure.

If confirmed, I will ensure that this commitment is met.

Question 2. Please indicate how many children live near these sites and how they

may be at risk. Please also indicate any daycares, schools, playgrounds or other

similar places that are near these sites.

Response. EPA staff advised me that they do not have the specific information requested on a site-by-site basis. EPA does have site-by-site information available at

http://www.epa.gov/superfund/sites/cursites/index.htm. An example of such siteby-site information is attached. It is my understanding that the type of information

you requested is not routinely obtained, but is the type of information sometimes

collected at the local level when it would help address site specific risks.
75

Question 3. Please indicate what emergency or other short-term steps may of taking at each site to address the risk and the cost to take those actions.

Response. It is my understanding that EPA does not maintain a national data

base that accurately and readily translates the actions described in each site profile

into cost calculations.

Question 4. Please provide the cost to clean up all 103 sites where EPA has determined ‘‘human exposure is not under control.’’

Response. I understand that EPA has committed to compiling this information for

all sites on the list for which EPA has available cost information. If confirmed, I

will ensure that this commitment is met.

Question 5. Please work with EPA to ensure that EPA experts, including regional

staff, are available and authorized to answer any of our questions relating to Superfund, including human health risks, cleanup costs and funding shortfalls.

Response. If confirmed, I will be pleased to ensure that appropriate EPA staff experts within OSWER are available to you. I cannot, however, provide blank, preauthorization for EPA staff to speak on behalf of EPA or to represent EPA positions.

Question 6. Please insure that the information provided includes a priority list of

sites, like that provided to Senator Boxer while chair of the Superfund Subcommittee.

Response. Please see response to Question 1, above.

Question 7. Please work with EPA to ensure that we receive complete and detailed responses for each question in the Oct. 2004 letter that Senator Jeffords and

Senator Boxer sent to then-Administrator Leavitt on Superfund, with updated responses to the present.

Response. I have a great appreciation for the importance of congressional oversight work, and if confirmed will work with the Committee to facilitate access to

Agency information. Agency staff has advised me that the questions in the October

2004 letter seem based on an assumption that EPA funding process involves separate Headquarters and Regional estimates of costs. All Superfund remedial action

funding decisions are made in close coordination with EPA regional offices after a

careful review of each project. EPA Headquarters and the regions continue to work

together extensively throughout the year to balance the Superfund program’s

human health and environmental protection responsibilities with both individual

site needs and overall national priorities. Through the collaborative process, EPA

Headquarters Superfund program managers decide onsite and project funding levels

that make the best use of the funds that they have. EPA staff advises me that the

agency has piloted approaches for identifying ‘‘out year’’ costs for some large remedial projects, and that information will be provided to the Committee.

Question 8. Please work with EPA to provide us with detailed information to date

on clean-up work and activities that will not be performed at sites that could use

additional funding to initiate new projects or to expedite work at on-going projects

on those sites. Please include all regional requests for funding?

Response. EPA staff advises me that the Agency does not have separate Regional

and Headquarters costs estimates for sites. Funding priorities are based on risk, but

decisions at any point in time depend to a large degree on the readiness of the site

for construction work. These decisions are made in close coordination with EPA regional offices after a careful review of each project. EPA Headquarters and the regions continue to work together extensively throughout the year to balance the

Superfund program’s human health and environmental protection responsibilities

with both individual site needs and overall national priorities. Through the collaborative process, EPA Headquarters Superfund program managers decide onsite and

project funding levels that make the best use of the funds that we have. Hence, the

category ‘‘could use additional funding’’ has not been developed as a tool for program

management. The agency has attempted some pilot approaches to provide longer

range funding estimates, and I understand the Agency will provide this information

to the Committee. If confirmed, I will ensure this commitment is met.

Question 9. Please work with EPA to provide us with complete information to date

on the on-going remedial projects that could use additional funding and the dollar

shortfall for each project. Please provide all regional requests for funding.

Response. Please see response to Question 8, above.

Question 10. Please work with EPA to provide us with complete information to

date on the removal projects that could use additional funding and the dollar shortfall for each project. Please provide all regional requests for funding.
76

Response. EPA staff advises me that EPA does not allocate removal funds to the

Regions site specifically so this information is not available. Each Region is given

a portion of the total removal money each year based on the size of the Region and

historical need. To prepare for potential shifting priorities or new/undiscovered

risks, a portion of these funds is retained at Headquarters, and allocations are determined on a case-by-case basis by senior management.

Question 11. Please work with EPA to provide us with complete information to

date on the pipeline projects that could use additional funding and the dollar shortfall for each project. Please provide all regional requests for funding.

Response. EPA staff advises me that EPA does not allocate pipeline funds to the

Regions site specifically so this information is not available. Each Region is given

a portion of the total appropriated pipeline money each year based on Regional

workload and historical use, and they then determine how to allocate that money

across projects.

Question 12. Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act required EPA to promulgate regulations-‘‘not later than

5 years after December 11, 1980’’, which required ‘‘classes of facilities establish and

maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or

disposal of hazardous substances.’’ Please work with EPA to provide me with information that describes all activities that EPA has undertaken to meet this requirement to promulgate these regulations.

Response. EPA staff advises me that although some work on this project occurred

in the early 1980’s, it was not pursued to completion, and the staff with whom I

spoke are not certain of the details. Currently, the Office of Solid Waste and Emergency Response is analyzing information from CERCLIS and RCRA to identify the

type and attributes of RCRA facilities that have had CERCLA funded expenditures.

With this information, the Agency will review how to improve financial assurance,

including the use of CERCLA 108(b) financial assurance authority. If confirmed, I

plan to review the issue.

STATEMENT OF GRANTA Y. NAKAYAMA, NOMINATED FOR ASSISTANT ADMINISTRATOR

FOR ENFORCEMENT AND COMPLIANCE ASSURANCE

Mr. Chairman, Senator Jeffords, and distinguished members of this committee; it

is an honor and pleasure to appear before you this morning as the nominee to be

EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance. I am honored that President Bush and Administrator Johnson have invited

me to join the Administration to improve public health and the environment in this

great Nation. I am especially pleased to be joined today by my wife, Larrene.

EPA has an important responsibility to protect the land, air, and water of our Nation. From the Agency’s inception, compliance and enforcement has been an important cornerstone of EPA’s programs to improve public health and the environment.

Vigorous enforcement is a crucial tool that ensures the promise of our environmental statutes becomes an environmental reality. Administrator Johnson has expressed his commitment to a strong Federal enforcement program, and it is incumbent upon a nominee for this position to share that commitment.

Just as Americans must be able to trust and rely on EPA to protect the land, air,

and water, the Agency is committed to obtaining the support of citizens in communities throughout our country in protecting the environment. If confirmed, it will be

my goal to work collaboratively to ensure that citizens can both more easily assist

EPA in identifying potential environmental enforcement issues and can more easily

receive assistance in complying with environmental regulations. The goal is to make

a more ‘‘user-friendly’’ and efficient enforcement organization.

To this end, my prior experiences have provided me with some unique preparation

for this position. The Assistant Administrator for Enforcement and Compliance Assurance must have an understanding of environmental law. I am currently a partner at Kirkland and Ellis LLP in the environmental and product safety practice

area. I joined the firm in 1994 after attending law school in the evening and graduating as the valedictorian. The first case I worked on as an attorney was an environmental enforcement matter brought by EPA’s enforcement staff, and I have

worked on similar matters ever since. Today, my practice includes advising clients

on a daily basis regarding their responsibilities in complying with our nation’s numerous environmental statutes. Since 1998, I have also served as an Adjunct Professor of Law at the George Mason University School of Law where I currently teach

Environmental Regulation. Practicing and teaching environmental law has provided
77

an appreciation of the challenges of understanding, complying with, and enforcing

these complex statutes.

Second, the nominee must be able to manage a large organization within the

unique structure of the Federal Government. I started my career in the military,

in the U.S. Navy. After being selected by ADM Rickover and serving for 5 years as

an officer in the Navy Nuclear Propulsion Program, I then served for 8 years as a

civilian manager reporting to ADM Rickover’s successors. In that program, I

oversaw the manufacture of the prototype reactor for the Seawolf submarine (SSN–

21). Later, I was a manager with responsibility for welding, non-destructive testing,

and quality assurance. During this formative period I observed first hand the high

standards and dedication of the individuals who served in the Naval Nuclear Propulsion Program, and the results that could be achieved by a group of highly motivated Federal employees.

Lastly, I have found that technical training and the ability to process technical

information can provide additional insights into the practice of environmental law.

My educational background, including a Bachelor of Science and Master of Science

degrees from MIT in Nuclear Engineering, combined with my prior experience as

a practicing nuclear engineer has provided a strong technical background. In my experience, a first-hand understanding of the technology and science at issue in the

environmental area inevitably leads to a deeper and more realistic appreciation of

the problems and challenges faced by both regulators and the regulated community.

EPA is most fortunate to have a very dedicated, extremely capable staff in the

enforcement and compliance assurance office. I have personally worked with many

of them over the last decade and I have been uniformly impressed by their dedication and professionalism. They work extremely hard because they care about the environmental health of the Nation. As enforcers of the environmental laws, they must

also adhere to the highest ethical standards. It is a group that any environmental

attorney or engineer would be proud to join.

If you should honor me by confirming my nomination, I look forward to working

with the members and staff of this distinguished Committee, Administrator Johnson, and President Bush to make the environment better for all Americans. Thank

you for the opportunity to appear before you today. I will be happy to answer any

questions.
78
79
80
81
82
83
84
85
86
87

RESPONSE BY GRANTA NAKAYAMA TO ADDITIONAL QUESTION FROM

SENATOR JEFFORDS

Question. The actual number of individuals working in the enforcement and compliance assurance office has essentially remained flat over the last 5 years at about

3,444 employees. Do you think that if the office were larger, there would be more

enforcement actions and hence a cleaner environment?

Response. I have not yet had the opportunity to analyze the staffing needs of

OECA, but intend to do so, if confirmed. I intend to examine the resources to ensure

that OECA is directing them to achieve the best environmental results and, if additional resources are warranted, to advocate for those needs during the budget process.

RESPONSES BY GRANTA NAKAYAMA TO ADDITIONAL QUESTIONS FROM SENATOR BOXER

Question 1a. The Fourth Circuit Court of Appeals ruled on June 15 in United

States v. Duke Energy Corp. that EPA cannot prohibit large annual increases in air

emissions from power plants and other sources under New Source Review regulations, because NSR applies only to increases in hourly emission rates. The Fourth

Circuit ruling was based on an interpretation of the statute that was apparently rejected by the D.C. Circuit Court of Appeals in a decision reached later that month

in State of New York, et. al., v. USEPA. The Department of Justice would normally

ask the Fourth Circuit for an ‘‘en banc’’ to review of its decision in Duke Power in

light of the D.C. Circuit’s ruling in New York v. EPA. Do you plan to recommend or do you believe that situation merits asking the Department of Justice to seek en banc review of the Duke Power decision by the

Fourth Circuit?

Response. I have not been involved in the deliberations within EPA on what steps

the Agency should take in response to the Fourth Circuit decision in Duke Power.

Therefore, I am not in a position to set forth a personal recommendation on that

issue that would reflect consideration of all of the relevant factors.

Question 1b. Please work with EPA to provide me with information, before you

are confirmed, which describes who is ultimately responsible for deciding whether

to seek such review?

Response. The decision whether to seek en banc review of a ruling by the U.S.

Court of Appeals normally rests with the Solicitor General of the United States,

after consideration of recommendations from the affected agency or department, and

staff within the Department of Justice.

Question 1c. Please work with EPA to provide me with analysis, before you are

confirmed, of how the D.C. Circuit’s opinion affects information gathered by EPA on

previous NSR violations and the status of potential NSR violations among various

classes of industry?

Response. Since the D.C. Circuit issued its decision in State of New York only

very recently, I believe it will take some time for EPA to determine how the opinion

affects information gathered by EPA on previous NSR violations and the status of

potential NSR violations among various classes of industry. Therefore, I am not certain that the Agency will be in a position to complete such analysis in the relative

short term. However, I can assure you these court decisions would not alter my view

that NSR enforcement is an important tool in implementing the Clean Air Act.

Question 2. EPA’s enforcement policy requires the Agency to issue a notice of violation within sixty days of identifying a ‘‘high priority violator’’ under the Clean Air

Act. The Environmental Integrity Project submitted a Freedom of Information Act

request seeking notices of violation issued to 20 three power plants that EPA has

identified as ‘‘high priority violators.’’ EPA has responded that it failed to issue any

‘‘notice of violations,’’ in clear violation of its own enforcement policies.

Before you are confirmed, please provide me with a description of the specific actions that you will take to address the lack of ‘‘notice of violations’’, including whether you will immediately review the cases identified by the Environmental Integrity

Project as required under the Agency’s own policy.

Response. Enforcement is an important tool in implementing the Clean Air Act.

If confirmed, I intend to work with the Office of Civil Enforcement regarding enforcement to ensure that the best environmental results are achieved, taking into

consideration available resources. Enforcement matters typically involve weighing

the specific facts relevant to each individual case. As I have not been involved in

the NSR enforcement efforts, I am not currently in a position to describe specific

actions that I would take with respect to on-going NSR enforcement cases. Thus,

while I am not familiar with the specific cases that the Environmental Integrity
88

Project is referencing, I commit that I will thoroughly review all of these matters,

if confirmed.

Question 3. Please provide me with a list of all of the environmental enforcement

cases, before you are confirmed, which you have worked on during your career, including the party that you represented and the outcome of the case. Please specify

your capacity in each case (e.g. lead attorney, supporting attorney, expert . . . ).

Response. Under the D.C. Rules of Professional Conduct, an attorney may not reveal confidential client information. Under Rule 1.6—Confidentiality of Information,

‘‘a lawyer shall not knowingly: (1) Reveal a confidence or secret of the lawyer’s client

. . .’’ A list of all of the environmental enforcement cases that I have worked on

during my career, including the party that I represented and the outcome of the

case, would reveal confidential client information. This confidential information includes the fact that I have worked on specific cases, as well as the identity of specific clients. Consistent with the D.C. Rules of Professional Conduct, I am unable

to provide this list.

However, if confirmed, in the event that I am confronted with a potential conflict

of interest, I intend to consult with the Agency ethics officials to ensure compliance

with all government ethics requirements.

OUTSTANDING DOCUMENT AND INFORMATION REQUESTS TO THE EPA FROM SENATOR

JAMES M. JEFFORDS, AS OF JULY 14, 2005

1. ORIGINAL REQUEST: MAY 2001

The EPW Committee has repeatedly requested an ‘‘apples-to-apples’’ comprehensive comparison of the various multi-pollutant legislation proposals and their allocation methods (including the Clean Power Act, the Clean Air Planning Act and the

Clear Skies Act) using the same models and assumption and estimates of the net

air quality and public health impacts of any elimination of existing Clean Air Act

provision. These proposals should be compared to the final Clean Air Interstate Rule

and the Clean Air Mercury Rule, as well as any other State or Federal programs

and settlement agreements affecting or potentially affecting power plant pollution,

as the base case.

2. ORIGINAL REQUEST: DECEMBER 2001 AND JULY 2002

An updated privilege log of the documents in EPA and DOE possession relating

to the New Source Review program regulation changes including:

(a) the resulting impacts of the rules on future emissions;

(b) the impacts on EPA, State, or citizen NSR enforcement, including settled

or pending cases, or cases that may have been ripe had the rules not been

changed, or future enforcement authority;

(c) the impacts on attainment or maintenance of the NAAQS for SIPS, FIPS,

or tribal implementation purposes;

(d) the legal consistency of inconsistency of the rules; and

(e) the extent to which fewer sources may take permit limits to ‘‘net out’’ of

NSR, and the related future emissions impact (provided only a qualitative estimate with no mechanism to detect impact).

Additionally, EPA has not produced a quantitative analysis of the effects that the

new and proposed NSR rules would have on the environment and public health, as

was promised during both a July 16, 2002, joint-EPW-Judiciary Committee Hearing

and a September 3, 2002, HELP Committee Hearing, and as is required by Executive Order 12866.

3. ORIGINAL REQUEST: DECEMBER 2001

EPW members originally requested a log of documents to the proposed New

Source Review rules on December 14, 2001. After EPA failed to deliver the log by

the promised date of October 24, 2002, EPW resubmitted the request on December

20, 2002. A log was finally received on January 22, 2003—after the first set of rules

was finalized. However, the log is only a partial collection of the documents that

would be responsive to the request, it does not contain information pertaining to

document content, and it ends on September 30, 2002. EPW has requested a log

that identifies document content pertaining to both sets of rules finalized in December 2002 and August 2003, through the date of the Agency’s response to this request, which covers all documents described in the original request. To date the

Agency has not provided an updated privilege log of the documents in EPA and

DOE possession relating to the New Source Review program and regulations.
89

4. ORIGINAL REQUEST: AUGUST 2001

Senator Jeffords wrote to Administrator Whitman on August 10, 2001, with follow-up questions to a July 26, 2001, hearing, seeking a consolidated estimate of the

public health and environmental benefits, including tons of pollution avoided,

achieved through full implementation of all Clean Air Act Programs (including NSR,

MACT, and PM2.5/Ozone) that the Administrator mentioned during the hearing

would be potentially ‘‘unnecessary’’ under the Administration’s Clear Skies Act. A

good faith effort by EPA needs to be made to estimate the net air quality and public

health impacts of the elimination of the Clean Air Act Provisions mentioned above

as proposed in the Administration’s Clear Skies Act, and needs to be reported to

Congress.

5. ORIGINAL REQUEST: FEBRUARY 2003 AND JULY 2004

In an EPW briefing in February of 2003, EPW Committee staff asked for the

amount of methyl bromide currently in stockpiles in the United States. EPA replied

that it would not fulfill the request because it considered this confidential business

information. As stated by Committee staff in subsequent email correspondence and

meetings, this assertion does not apply to congressional requests. Again, in a July

22, 2004 letter to Administrator Leavitt, Senator Jeffords made a formal request

that this information be provided. EPA’s response was that it was barred from providing Congress with this information pending the court’s decision in a related lawsuit. The Ranking Member of the Senate Environment and Public Works Committee

does not recognize this as a sufficient reason for denying Members of Congress this

information.

6. ORIGINAL REQUEST: JULY 22, 2004

In a July 22, 2004 letter to Administrator Leavitt, Senator Jeffords made several

inquiries that the Agency considers privileged under the Freedom of Information Act

(FOIA). The Agency has not provided a legal rationale for its failure to respond to

the request for information, nor has it directly addressed the question of congressional access to information.

7. ORIGINAL REQUEST: OCTOBER 20, 2004 AND FEBRUARY 9, 2005

In an October 20, 2004 letter, Senator Jeffords and Senator Boxer made an information request regarding Superfund sites receiving no funds in fiscal year 04 and

sites receiving only partial funds in fiscal year 04. The Agency has not provided information about the remedial activities that were not

conducted at the 34 ranked unfunded sites due to inadequate funds. Additionally,

neither Senator received a response to their request for information about sites receiving only partial funds in fiscal year 04. During the February 9, 2005, EPA Budget Hearing, Senator Jeffords reiterated these requests, but has received no new information, let alone updated information for fiscal year 05.

8. ORIGINAL REQUEST: DECEMBER 2004

In December 2004, EPW staff requested by email that the reports and the drafts

of those reports for the National Acid Precipitation Assessment Program required

to be submitted to Congress for the years 2000, 2002, and 2004, under section 1030)

of the Clean Air Act. Senator Jeffords formally made this request to James

Connaughton in followup questions to a February 2, 2005 hearing. Senator Clinton

made this same request in April 2005 during the nomination hearing of Administrator Johnson. In Administrator Johnson’s response, it was indicated that the requested documents would be made available in May or June. In a June 24, 2005

letter, Senator Jeffords and five other senators reiterated the same request for these

reports and drafts of the reports. On July 13, 2005, the Office of Science and Technology Policy replied in a letter stating the report will be available by August 22,

2005.

9. ORIGINAL REQUEST: FEBRUARY 9, 2005

Senator Jeffords is still awaiting responses to his questions for the record relating

to the EPW Committee hearing of February 2, 2005, for James Connaughton, Chairman of CEQ. The questions were submitted on February 9, 2005, but the Senator

has still not received any response.
90

10. ORIGINAL REQUEST: APRIL 6, 2005

In follow-up questions to the nomination hearing of Administrator Johnson, Senator Jeffords requested the status and the promulgation of the proposed implementation rules for the revised PM–2.5 and ozone (second phase) National Ambient Air

Quality Standards (NAAQS). This request was initially made in 2004. The Agency

has no working deadline or given any indication of when the rules will be proposed.
91
92
93
94
95
96
97
98
99
100
101
102
103
104

Æ