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20–940 PDF 2016

S. HRG. 114–364 

COOPERATIVE FEDERALISM: STATE PERSPECTIVES 

ON EPA REGULATORY ACTIONS AND THE 

ROLE OF STATES AS CO-REGULATORS 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 9, 2016 

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

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 9, 2016 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 3 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 148 

WITNESSES 

Mirzakhalili, Ali, Director, Division of Air Quality, Delaware Department 

of Natural Resources and Environmental Control ............................................ 149 

Prepared statement .......................................................................................... 152 

Markowitz, Deborah, Secretary, Vermont Agency of Natural Resources ........... 159 

Prepared statement .......................................................................................... 161 

Huffman, Randy C., Cabinet Secretary, West Virginia Department of Environmental Protection ................................................................................................. 168 

Prepared statement .......................................................................................... 170 

Keogh, Becky, Director, Arkansas Department of Environmental Quality ........ 177 

Prepared statement .......................................................................................... 180 

Pirner, Steven M., Secretary, South Dakota Department of Environment and 

Natural Resources ................................................................................................ 189 

Prepared statement .......................................................................................... 191 

(1) 

COOPERATIVE FEDERALISM: STATE PERSPECTIVES ON EPA REGULATORY ACTIONS 

AND THE ROLE OF STATES AS CO-REGULATORS 

WEDNESDAY, MARCH 9, 2016 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:34 a.m. in room 406, 

Dirksen Senate Office Building, Hon. James Inhofe (chairman of 

the committee) presiding. 

Present: Senators Inhofe, Boxer, Capito, Boozman, Wicker, Fischer, Rounds, Sullivan, Carper, Cardin, Whitehouse, Gillibrand, and 

Markey. 

Senator INHOFE. The meeting will come to order. 

First of all, I am very happy to have the five witnesses that are 

here today. We always like to hear from the States, at least some 

of us do, and I would like to, at this point, have any of our members who want to introduce those from their State. Senator Capito, 

do you? 

Senator CAPITO. Yes. Thank you, Mr. Chairman. I would like to 

welcome Randy Huffman, who is our Cabinet Secretary, and has 

been for many years, in West Virginia at the Department of Environmental Protection. Randy was 3 years as the deputy, but he has 

worked in all variety of areas, including abandoned mine lands program. He is a graduate of West Virginia Tech. We see him, or I 

see him, around town all the time, so welcome, Randy. Thank you 

for your testimony and for your service to our State and to our Nation. 

Senator INHOFE. And Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. Yes, I would. 

First, I would also like to thank all of our witnesses for coming 

here today to testify in front of this Committee on State perspectives. I would particularly like to welcome to our Committee today 

the Secretary of the South Dakota Department of Environment and 

Natural Resources, or, as we used to call them, Dirt and Water. 

Secretary Pirner has served as the DENR Secretary for three 

South Dakota Governors, but he has also been in various positions 

at DENR since 1979. Secretary Pirner has more than three decades 

of experience with EPA regulations and is truly an expert in the 

field. 

Secretary Pirner has an impressive breadth of experience in 

every type of environmental regulation. He has extensive experiVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
2 

ence in EPA rules regulating water, air, and toxic substances. Secretary Pirner leads an agency with approximately 180 full-time employees, and this small group of employees is responsible for administering nearly all of the Federal environmental laws from the 

EPA such as Clean Water Act, Clean Air Act, and Safe Drinking 

Water Act. They are also responsible for administering various 

State environmental laws in the State with over 77,000 square 

miles of land. 

Secretary Pirner knows all too well the demands of a small State 

agency with limited budgets that they face while attempting to administer the increasing multitude of EPA regulations forced upon 

the States. Every day he is confronted with the challenge of managing his agency’s resources in a way that will allow them to fulfill 

all of their State and Federal duties as the environmental regulatory agency in South Dakota. 

It should also be noted that over 30 percent of DENR’s operating 

budget is relied upon Federal funds. Every day Secretary Pirner’s 

goal is to make sure that South Dakotans enjoy the cleanest air 

and water possible. In South Dakota, our environmental record is 

a source of pride for all of us. 

I can tell you that during the time that I worked as Governor 

in South Dakota for 8 years, Steve was the secretary of this department. He comes with a wealth of knowledge and an interest in seeing that things get done and get done correctly, and I am very, very 

happy that he has been able to make the trek out here for this very 

special meeting. Thank you. 

Senator INHOFE. It is very nice to have you here. 

Senator Carper, did you want to introduce? 

Senator CARPER. Before I introduce Ali, I just want to say to 

Randy welcome. I was born in Beckley and spent a lot of my years 

growing up as a kid going back and visiting my grandparents and 

my aunts and uncles and my cousins all over the State. So it is 

great to have you here. I think you have somebody with you today 

who is from Beckley. Nice to see you. Welcome. Good to see you. 

Ali, you have a name that is going to be most pronounced of any 

of our witnesses today. Just to make it easy for my folks, it would 

be easier to call him Ali. But his last name is Mirzakhalili. Nice 

sound to it. When I was Governor, he has been serving for the people of Delaware for close to 30 years. He has been a key leader in 

the Department of Natural Resources and Environmental Control. 

He used to work for the guy sitting right behind me, Christoph 

Tulou, who is our Secretary of the Department of Natural Resources and Environmental Control. So this is like getting the band 

back together, and we welcome the opportunity. 

Ali is the Director of the Division of Air Quality with the Department of Natural Resources and Environmental Control. He is responsible for implementing all aspects of the Clean Air Act requirements. He has 30 years of experience in all aspects of air quality 

management, including program and regulatory development, planning, compliance, and enforcement and permitting. He is a professional engineer and holds a B.S. in Engineering from the University of Delaware, an M.S. in Environmental Planning and Management from Johns Hopkins University. 

3 

He has been a great servant and friend. Welcome, Ali. We are 

happy that you are here. Thank you. 

Senator INHOFE. Thank you, Senator Carper. 

Becky, we are going to hold you until Senator Boozman comes 

here. I had breakfast with him, a prayer breakfast this morning 

and I told him I would do that, so we will postpone yours. 

Deborah, it is very nice to have you here. We welcome you along 

with the rest of the witnesses. 

Barbara and I will give opening statements, then we will hear 

from you. Since there are five of you, I would like to have you comply with the same time that we do up here. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Today’s hearing is critical to our understanding 

of the success and the lack of success of the environmental groups 

across the Country. Indeed, in appreciation of our unique system 

of federalism, Congress and, in particular, this Committee must 

check in with States to ensure this system is fully functioning 

when it comes to actions initiated by the United States Environmental Protection Agency, the EPA. For this reason, I want to 

thank our State regulators for being here today to share your feedback on whether the current regulatory framework between States 

and the EPA is working in upholding the principles of cooperative 

federalism. 

Cooperative federalism is a core principle of environmental statutes, including the Clean Air Act, the Clean Water Act, the Safe 

Drinking Water Act, RCRA, and several others. Unfortunately, 

under the Obama administration we have observed a flood of new 

regulations breaking down this system in what seems to be uncooperative federalism. The Obama EPA has embarked on an unprecedented regulatory agenda that simply runs over States by imposing an increasing number of Federal regulatory actions on States 

while requesting even less funds to help States carry out these actions. As some State regulators have explained, EPA is requiring 

them to do more with less. 

Many of these actions are driven from the EPA headquarters to 

fulfill a political agenda that often results in years of litigation and 

inefficiencies that cost citizens more taxpayer dollars and reap little to no environmental benefits. 

Today we have a diverse panel of witnesses from States across 

the Country working with different EPA regions and experiencing 

unique environmental issues who will expand on this breakdown. 

While State feedback varies, there are several troubling themes 

that have consistently emerged. EPA has neglected the responsibility to consult with States at the beginning stages of regulatory 

actions; the EPA gives States little time to digest complex regulations and provide meaningful analysis during short comment periods; EPA has allowed environmental activists to set regulatory 

deadlines imposed on States through sue-and-settle agreements 

without State input; EPA has increasingly used regulatory guidance to circumvent the regulatory process; EPA has a severe backlog of approving State implementation plans, yet has issued an unprecedented number of Federal implementation plans over State 

4 

air programs; EPA budget requests have called for decreased levels 

of State funding while requesting increased funds for EPA bureaucrats; and EPA is deviating from its core functions and duty to uphold cooperative federalism as we have defined it. 

These concerns are not limited to our witnesses today. Last 

month I sent letters to all Committee members’ State environmental agencies asking for feedback on EPA actions and the level 

of cooperative federalism. I appreciate the many responses I got to 

this Committee and, without objection, will make them part of the 

record. 

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Senator INHOFE. I look forward to receiving additional State responses and to hear more from our witnesses today as we take a 

hard look at what works and what does not work. 

And to hear the other side, Senator Boxer. 

[The prepared statement of Senator Inhofe follows:] 

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OPENING STATEMENT OF HON. BARBARA BOXER 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. How did you know? 

[Laughter.] 

Senator BOXER. Friends on the panel, thank you all for being 

here, and do count me in on people who want to hear from the 

States. So many of our States are leaders on the environment, my 

own being a prime example. We have proven that we can cleanup 

our environment and also create very good paying jobs, and it has 

been proven over and over again. 

I think that all wisdom certainly does not reside here. I think 

every one of us would say that. And that is why I have always 

liked the idea of minimum standards being set by the Federal Government to protect all of our people, but allowing the States to do 

more to protect their people from pollution; and that is really at the 

heart of what this debate is all about. To me it is not about States’ 

rights, it is about protecting people at a minimum level and then 

allowing the States to do more if they want to. 

Now, States have a very important role to play in carrying out 

our landmark environmental laws, which we can talk about them 

all day. I will make a prediction: We will never repeal the Clean 

Air Act. We will never repeal the Clean Water Act. We will never 

repeal the Safe Drinking Water Act. We will never repeal the 

Superfund Act. We will never repeal the Brownfields Act. Why? Because 90 percent of the American people support that. 

So what happens here in this committee, since my friend took 

the chair, it was tough to swallow, but nothing personal, what has 

happened is we are trying to see an undermining of those laws 

through the back door, making it impossible, lawsuits and the rest. 

So I just want to say this, and I will ask unanimous consent to 

place my full statement in the record. 

Senator INHOFE. Without objection. 

Senator BOXER. You have to learn, all of us, by what happens. 

We have to learn history; we have to look at current events. And 

I am speaking for myself and only for myself when I say this. 

When I look at what happened in Michigan, when I look at the way 

that State handled the situation in Flint, I think for us to be holding a hearing saying the Federal Government shouldn’t do anything, the fact is EPA, in writing, warned them. 

Did the EPA do enough? Not in my book. But they warned them 

in writing. They told them to put anti-corrosive treatment into 

those pipes. They ignored it. And I am not pointing the finger at 

any one person, but somebody there is going to be blamed for this 

at the end of the day when the suits finally come to the courts. 

But to me it is a moral crime. It is a moral crime. So to just say 

the States should do it all, there shouldn’t be minimum standards, 

we shouldn’t really triple-check these water systems, I just don’t 

buy it. And I think that what our laws do I think are very happy 

compromise between the right of the people who vote for president, 

who vote for senators, who vote for House members, to know they 

will have a basic standard so that they can be protected and their 

children can be protected, and then say to the States, look, you are 

the laboratory. If you can do more, fine, but protect them to at 

least a minimum level. And that has been the way I have viewed 

149 

this job. That is why when we preempt States on this I think it 

is a terrible thing to do, and I have shown that through my whole 

career. 

But again I want to say thank you all, whether you agree with 

me or not. I know two do and three don’t, something like that. But 

I am very happy to see all of you here. 

Senator INHOFE. Thank you, Senator Boxer. 

Senator Boozman, would you like to introduce your guest from 

Arkansas? I already told her I was about half hog and explained 

the genesis of that statement. 

Senator BOOZMAN. Well, in the interest of time, I just want to 

thank her for being here and thank her for the tremendous job that 

she is doing in Arkansas. We are very grateful to have her onboard. 

Like I say, we are just very pleased that you are here and all 

that you represent. Thank you. 

Senator INHOFE. Thank you, Senator Boozman. 

We are going to start with you, Ali. I am going to follow the direction of Senator Carper and take your short name, all right? You 

are recognized. 

STATEMENT OF ALI MIRZAKHALILI, DIRECTOR, DIVISION OF 

AIR QUALITY, DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 

Mr. MIRZAKHALILI. Chairman Inhofe, Ranking Member Boxer, 

and members of the Committee, my name is Ali Mirzakhalili, and 

I am Delaware’s Director of Air Quality. I thank you for the opportunity to testify today. 

I would like to share with you Delaware’s view of the respective 

roles and responsibilities of the EPA, State, and the U.S. Congress 

with respect to complying with various environmental statutes and 

associated regulatory actions to protect public health and the environment. 

The Clean Air Act has been a huge success, preventing literally 

hundreds of thousands of premature deaths, as well as averting 

millions of incidents of morbidity. The health benefits associated 

with the Clean Air Act far outweigh the cost of reducing pollution 

by more than 30 to 1. Moreover, we have accrued these health benefits over the same period as our Nation’s gross domestic product 

has grown. It is fair to say that the Clean Air Act has not only 

been one of our Nation’s most effective environmental statutes; it 

is likely to go down in history as one of the most effective domestic 

laws ever passed. 

The public generally does not differentiate between levels of government; it simply expects the entire system to work. Therefore, it 

is imperative that each part of Government, EPA, Congress, and 

the States, fulfill its respective roles and perform as effectively as 

possible. 

As I State in my written statement, I believe EPA can best fulfill 

its role by focusing on six important tenets: one, using sound 

science to set national standards; two, providing States flexibility 

to meet those national standards; three, issuing guidelines and 

rules in a timely manner; four, ensuring that States are held accountable for their actions; five, providing a level playing field; six, 

150 

setting standards for sources of pollution that are of national significance and where States may be preempted from doing so. 

Congress also has a major responsibility in environmental protection, including, most importantly, ensuring that it provides adequate funding to EPA and the States to assist in meeting our Nation’s clean air goals. Unfortunately, in recent years Congress has 

fallen short in this respect. The Clean Air Act authorizes the Federal Government to provide grants for up to 60 percent of the cost 

of State and local air pollution control programs, and calls for 

States and localities to provide a 40 percent match. Unfortunately, 

this has not been the case. State and local responsibilities have expanded significantly since 1990, while the grants have not, resulting in Delaware and most other States self-funding over 75 percent 

of their air programs’ operating budget. 

Despite all these challenges, States are trying to do their best to 

comply with all EPA rules and regulations under the Clean Air 

Act. In Delaware, I am proud to say we are meeting all of our 

Clean Air Act obligations. We succeed by being proactive, collaborative, and focusing our limited resources so as to ensure all emitting sources in the State are reasonably and appropriately controlled. 

This year States face a number of important regulatory deadlines 

under the Clean Air Act. These deadlines do not differentiate between large States with ample resources and small States like ours 

with fewer resources. I believe Delaware’s practice of ensuring all 

emitting sources are appropriately controlled is key to our ability 

to manage this workload in light of insufficient funding. If we can 

do it, so can others. 

Because of Delaware’s effort to attain and maintain compliance 

with earlier particulate and ozone standards, those efforts are not 

wasted, and the Regional Haze program, Delaware is complying 

with the 2012 PM2.5 standards and is subject only to the first of 

the three sulfur dioxide requirements. These deadlines do not represent an unmanageable workload for Delaware in 2016. 

We are continuing to work this year to reduce greenhouse gas 

emissions, which are endangering public health and welfare. This 

year Delaware will continue its work under the Regional Greenhouse Gas Initiative and prepare our State’s strategy under the 

Clean Power Plan. I believe the CPP is an excellent example of 

how EPA is thoughtfully and successfully working with States and 

stakeholders to craft achievable and flexible rules. 

Delaware continues to experience poor air quality, however, and 

impacts from ozone on public health and our economy. Delaware’s 

emissions control efforts to reduce ozone precursor emissions have 

resulted in a situation where over 90 percent of the ozone concentration adversely affecting Delawareans are attributable to 

emissions transported into Delaware from upwind States. Under 

the Clean Air Act, upwind States were required to mitigate these 

emissions more than 5 years ago, yet they have not done so. 

In some cases the problem is that upwind emitting sources have 

not controlled the emissions; in others appropriate emission controls have been installed on units but, incredibly, are not being operated. Any action this Committee can take to require upwind 

States to comply with the Clean Air Act and to increase EPA’s reVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00154 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
151 

sources to enable the Agency to ensure equity would greatly help 

Delaware and others in similar situations. 

Thank you for this opportunity to testify. I look forward to answering questions. 

[The prepared statement of Mr. Mirzakhalili follows:] 

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Senator INHOFE. Thank you, Ali. 

Ms. Markowitz. 

STATEMENT OF DEBORAH MARKOWITZ, SECRETARY, 

VERMONT AGENCY OF NATURAL RESOURCES 

Ms. MARKOWITZ. Good morning, all. My name is Deb Markowitz. 

I am the Secretary of Vermont’s agency of Natural Resources, and 

I know if Senator Sanders was not in Florida, he would be introducing me today. 

Thank you for inviting me to testify on cooperative federalism 

and environmental regulation. 

Vermont is a delegated State. This means we take responsibility 

for the oversight and implementation of Federal environmental 

programs. We implement the Resource Conservation and Recovery 

Act, the Clean Water Act, and the National Pollution Discharge 

Elimination System Permit Program, the Clean Air Act, and the 

Safe Drinking Water Act. 

Vermont chose to take on these federally delegated programs; 

EPA did not force us to do so. The Federal Government didn’t require it. Vermont chose to take responsibility to implement these 

important regulatory programs in our State because we know how 

important they are to Vermonters’ health, safety, and prosperity. 

Not only do we rely on clean air and clean water and clean land 

to protect the health of our people, but Vermont has a land-based 

economy. Our top industries include tourism, agriculture, and forestry. Each relies on a clean and healthy natural environment. People come from all over the world to swim in our lakes, fish in our 

rivers, hike in our forests, and ski in our mountains. But this isn’t 

all. In our manufacturing and high-tech sectors, indeed, in every 

sector of business and industry in Vermont, it is the natural beauty 

of our State and our pristine environment that enables us to attract good jobs and high quality employees to stay or relocate in 

Vermont. 

By managing these delegated programs, Vermont can ensure 

that our State is protected through regulation, assistance, and enforcement. This local control is even more important in light of the 

highly charged political dialog that our environmental laws and 

regulations engender here in Washington. 

While new rules promulgated by EPA take time and effort for us 

to implement in our States, there are many good reasons to support a strong Federal approach. First, we look to EPA for the expertise to study and develop the science and technology that 

underlies our environmental regulations. We could not meet our 

mission to protect human health and to safeguard our natural environment without this important Federal contribution. 

Second, we see value in having national standards for environmental protection. As the children in Rutland, Vermont who suffer 

from asthma and the anglers who can’t eat the fish they catch because of mercury pollution know well, pollution does not honor 

State lines. EPA has given us many important protections and 

Vermonters, as well as all Americans, have come to depend upon 

them. 

Finally, national environmental regulations provide an even 

playing field among States, helping to prevent a regulatory race to 

160 

the bottom in a misguided attempt to attract economic development. 

It is important to acknowledge that the System of co-regulation 

between EPA and the States is not always simple or without a natural tension. There are times when we want to address a problem 

differently than EPA’s approach did in the past, or when the Federal approach may have unintended consequences for us in 

Vermont because of our small size and rural character. In situations like these, we have found EPA willing to listen to our concerns and to work with us to find a solution. 

On numerous occasions and across sectors the EPA has supported Vermont in our efforts to implement programs to protect the 

environment. EPA has allowed flexibility in Vermont’s program implementation, cooperated with us to achieve our shared environmental goals, included Vermont’s voice in efforts to develop new 

rules and standards, and has shared resources and expertise to 

help us more efficiently and effectively implement our programs. 

In my written testimony I have included a number of specific examples, if that would be helpful. 

In closing, I want to reiterate the value of our relationship with 

EPA and that, for Vermont, this partner is essential to protect our 

environment and the health of our citizens, and exemplifies the 

doctrine of cooperative federalism, and I am very happy to take 

questions. Thank you. 

[The prepared statement of Ms. Markowitz follows:] 

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Senator INHOFE. Thank you. 

Now, Mr. Huffman. 

STATEMENT OF RANDY C. HUFFMAN, CABINET SECRETARY, 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 

Mr. HUFFMAN. Good morning, Mr. Chairman and members of the 

Committee. Thank you for the opportunity to address this Committee concerning federalism and environmental regulations. 

As West Virginia’s chief environmental regulator, I view the cooperative relationship with our Federal partners envisioned by 

Congress in all of our environmental statutes as critical. According 

to the environmental council or the States, over 95 percent of the 

environmental regulatory duties in this Country are actually carried out by the States. Congress placed the most important core responsibilities with the States because it knew States are far more 

responsive to local concerns and much more aware of the local environment than distant bureaucracies. 

In addition, States must be cost-effective, have balanced budgets, 

and perform in the face of flat or declining revenues. It is within 

these constraints that States have repeatedly demonstrated not 

only that we are up to the challenge, but that we actually continue 

to deliver the results Congress envisioned when it created our environmental framework within the model of cooperative federalism. 

Unfortunately, federalism under the current Administration has 

been less than cooperative with both EPA and Interior’s Office of 

Surface Mining. There is a constant flow of new regulations, guidance and initiatives from these Federal agencies, and much of it 

encroaches on the authority Congress gave to the States, and nearly all of it adds new regulatory burdens to State resources that are 

already stretched thin. At best, EPA and OSM are indifferent to 

the mounting consequences of their actions. At worst, we see these 

Federal agencies continue to basically rewrite our Nation’s congressional environmental acts with no accountability. 

I have many examples, but time will only permit me to cover a 

few. 

My first example is one with which we are all familiar. Regardless of the position individual States take on climate change, Section 111(d) of the Clean Air Act actually puts the States, not EPA, 

in charge of developing standards of performance. With little regard to the role Congress gave it, EPA has seized the States’ authority. Its carbon rule establishes the minute details of one of the 

most complex new regulatory initiatives in the history of the Clean 

Air Act. 

EPA is increasingly establishing what amounts to binding rules 

through guidance. States are expected to conform to the results of 

this process as if EPA had promulgated a valid rule. There are at 

least two problems with this: EPA guidance further eliminates 

State discretion and it allows them to avoid the accountability and 

transparency of rulemaking. 

My final examples relate to similar actions by Interior’s Office of 

Surface Mining. The proposed Stream Protection Rule, which I testified about before the Senate Energy and Natural Resources Committee in October, is another example of a Federal agency attemptVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00172 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
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ing to rewrite part of an act of Congress with no mandate to do 

so. They further fail to involve the States, which have primacy 

under the Surface Mining Act to carry out these duties. The result 

is a proposal that has multiple unlawful conflicts with Federal and 

State clean water laws. 

OSM also routinely fails to approve State program amendments 

upon which it is obligated to act. In fact, since 2009, West Virginia 

has submitted nine amendments to the Office of Surface Mining for 

consideration, and only those that propose to increase fees or taxes 

on the mining industry have been approved, and only then on an 

interim basis. 

My last example is OSM’s misuse of 10-day notices to correct 

permit defects. Ten-day notices are an OSM obligation under the 

Surface Mining Act to notify the States when a mining violation is 

suspected and has not been properly addressed. It is clearly an enforcement measure to be applied to active operations. In 2009, 

OSM was directed to use this regulatory tool to correct deficiencies 

in State-issued permits, which is clearly contrary to the Surface 

Mining Act. 

Most States, including West Virginia, embrace the idea and practice of cooperative federalism in regulating industrial activity and 

protecting the environment. The practice is sound, has great validity, and has been successful in the past. Since 2009, I have 

watched EPA and OSM go about executing an agenda that does not 

concern itself with the rule of law for making changes to our Nation’s environmental statutes. 

I don’t want to create the impression that all of West Virginia’s 

interactions with EPA and OSM are negative. Across many of our 

programs we have built very good working relationships with our 

Federal counterparts at the regional level. Most of the issues I 

have discussed appear to emanate from EPA and OSM headquarters, which have little or no understanding of what it takes to 

run a State environmental regulatory program. 

[The prepared statement of Mr. Huffman follows:] 

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Senator INHOFE. Thank you, Mr. Huffman. 

Ms. Keogh. 

STATEMENT OF BECKY KEOGH, DIRECTOR, ARKANSAS 

DEPARTMENT OF ENVIRONMENTAL QUALITY 

Ms. KEOGH. Chairman Inhofe, Ranking Member Boxer, and Senator Boozman, as well as members of the Committee, good morning. I bring you greetings from Governor Hutchinson of Arkansas, 

and I appreciated the opportunity to respond to your call this 

morning. 

We in Arkansas are seeking to drive regulatory policy that balance effective environmental results, assure long-term resource 

management, affordable energy, and economic growth goals. We 

want a State that can seek to attract the newest generation of professionals searching out healthy living lifestyles and Arkansas’s 

world-class recreational opportunities. 

Arkansas has invested heavily in assuring that we are wise stewards of the abundant and clean air, healthy breathing air, the 

amazing vistas with which we have been blessed. We do not take 

our status as The Natural State lightly. In fact, we strive to fairly 

and consistently the corresponding and complimentary roles of environmental stewardship and economic development. 

Likewise, for decades we have successfully worked with EPA 

under a symbiotic governing model that is the topic of today’s hearing. This notion is born of something uniquely American, our system of federalism whereby the Nation and States function together 

as co-sovereigns. Both the EPA and States had a relatively balanced seat at the table, and we are known to do in the south, we 

would all sit around the table and have a good old-fashioned meal. 

There would be lively debate, ample servings, and we would cooperate and prepare a meal together. 

However, this once treasured family style dining with our Federal partners has become a thing of the past. Now we have an increasingly diminished role in the menu selection and meal preparation. We are often forced to eat what is served. 

The cooperative federalism model that has defined Arkansas’s relationship with EPA beginning in the 1970’s has morphed into 

something that is better described today as coercive federalism. We 

have seen a decrease in time and tolerance for State implementation plans and a dramatic increase in EPA takeovers, or Federal 

Implementation Plans. Historically, these FIPs were used as weapons of last resort for our EPA partner, its nuclear option for States 

that were unfaithful to the partnership or denied marriage outright. 

Now FIPs are often used as an everyday tool, often of dubious 

origin, in the EPA’s vast arsenal. In the past 7 years, States have 

been forced to digest more of these Federal takeovers, known as 

FIPs, than were ever served in the prior three Federal Administrations combined ten times over. 

States will not waste the time to draft their own proposals if they 

expect the Federal Government to do what it wants to in the end. 

State sovereignty is diminished, and the opportunity for local innovation is destroyed. Cooperation should be fostered, not discourVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00181 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
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aged. We call on you, our Congress, to help remedy this broken 

marriage through amendment or ancillary legislation. 

States are placed in the unfair position of having purchased a 

very expensive seat at the table, but then finding out meals are 

served exclusively from the EPA table. We are to be served a fixed 

menu without a fixed price. States’ willingness to split the check, 

and occasionally buy dessert, was mitigated by a healthy respect 

and accompanying deference we received. Now we ask your assistance in resetting that needle to its point of origin. 

For air pollution, we seek air pollution prevention and control is 

the primary responsibility of the States and local governments. In 

our estimation, Congress should ring the dinner bell calling for the 

meal to be served. States should host that occasion and EPA should 

be a frequent and faithful guest at each State’s table. However, 

where we are now we can best describe as a progressive dinner 

party gone bad. 

States have recognized an unprecedented level of Federal actions. 

To borrow a saying in the South, we have more on our plate than 

we can say grace over. The sheer number of mandates and deadlines further complicated by the complexity of the rules leaves us 

in a position where being served appetizer, soup, salad, main 

course, and dessert all at the same time. And if we do not clean 

our crumbs, we are banished from the table. 

States rarely have sufficient notice and implementation of the 

rules to establish meaningful outcomes before moving to the next 

one, and we are left unable to get a taste of one course before the 

next one arrives. The EPA is afforded the luxury of being the ultimate picky eater while they select what they prefer on the menu, 

while we States are struggling to digest the meals plus leftovers. 

The reality that States are often now more pawn than partner 

is nowhere more evidenced in the EPA’s transformation from a 

two-sentence legislative passage to the Clean Power Plan, which 

had profound consequences and extraordinary costs. Arkansas is 

seeking ways to work with how we can work with EPA on consolidating efforts and superseding FIPs and SIPs without facing legal 

conflicts. 

In addition to the Clean Water Act, the State-developed robust 

eco region natural condition water criteria in Arkansas have now 

become unrealistic and often unachievable minimum water protection standards. In this case, EPA has executed an ultimate bait 

and switch. 

Serving up cooperative federalism in a coercive manner is distasteful, but the executive branch to ignore at our metaphorical 

table that are stabilized by three legs and not just one makes for 

a difficult and messy meal. We do want a seat at this table. We 

should not be fed the regulation of the day. In fact, the great majority of the FIPs we have result from reinterpretation of the good 

neighbor provisions. 

In conclusion, not only has the uniquely American cooperative 

federalism model fallen, and the State role is now less partner and 

more pawn, we do see sue and settle appearing on the menu. We 

are left to wonder if special interest groups currently occupy our 

seat at the table that once was reserved for us. When States are 

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disenfranchised, so is the truth of our Federal democracy and the 

people we represent. 

Thank you. 

[The prepared statement of Ms. Keogh follows:] 

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Senator INHOFE. Thank you, Ms. Keogh. 

Mr. Pirner. 

STATEMENT OF STEVEN M. PIRNER, SECRETARY, SOUTH DAKOTA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

Mr. PIRNER. Chairman Inhofe, Ranking Member Boxer, members 

of the Committee, my name is Steve Pirner, Secretary of the South 

Dakota Department of Environment and Natural Resources. I appreciate the opportunity to share with you our perspectives on why 

we do not believe the current regulatory framework between EPA 

and the States upholds the principle of cooperative federalism. 

Let me provide you a few examples. 

To help fund the administration of Federal regulatory programs, 

EPA awards us a Performance Partnership Grant. In 2012, the 

Grant peaked in funding, but has declined during the last 3 years. 

This decrease is certainly inverse to the huge increase in Federal 

requirements for delegated programs and, in our view, is an erosion of cooperative federalism. 

An increase of Federal preemption on what we hold as State 

rights is also detrimental to cooperative federalism. For example, 

EPA and the Corps of Engineers developed a rule intending to clarify which water bodies are subject to jurisdiction under the Clean 

Water Act. The rule has faced substantial opposition in South Dakota and we joined a lawsuit with 12 other States to block the rule. 

Upon joining the challenge, South Dakota Attorney General Marty 

Jackley was quoted as saying, ‘‘The EPA is overstepping its congressional authority and seizing rights specifically reserved to the 

States.’’ 

Also under the Clean Water Act, EPA has proposed or finalized 

new national water quality and effluent standards for ammonia, 

nutrients, selenium, and dental offices. The bottom line is that 

these new, more stringent standards are going to cause additional 

wastewater treatment, which is going to drive wastewater treatment costs up, perhaps to the point of being cost-prohibitive. 

Under the Resource Conservation Recovery Act, EPA finalized 

regulations to regulate coal ash. This was prompted by the liquid 

coal ash spill in Tennessee. Our single coal-fired power plant, the 

Big Stone Power Plant, disposes of only dry ash, but is still subject 

to the new rules which preempt DENR’s existing solid waste permit. 

In a settlement agreement under the Clean Air Act between EPA 

and the Sierra Club, the Big Stone Power Plant was listed as a 

large source and needing to demonstrate compliance with EPA’s 1- 

hour sulfur dioxide standard. EPA never took into account the new 

air pollution controls installed at a cost of $384 million to meet the 

Regional Haze Rule. There is no doubt these new controls will reduce sulfur dioxide emissions below the thresholds established in 

the consent decree. 

Another Clean Air dispute involves ozone. South Dakota is one 

of only 10 States in the Nation that is in full attainment with the 

national ambient air quality standards but, against our recommendations, EPA adopted a new, lower standard for ozone. We 

are now at risk of having a non-attainment status; not because our 

190 

air has gotten dirtier, but because EPA lowered the standards potentially below our background levels. 

In response to another petition from the Sierra Club, EPA determined that certain startup, shutdown, and malfunction exemptions 

in 36 States, to include South Dakota, are inadequate under the 

Clean Air Act and need to be eliminated. Our exemption allows for 

brief periods of visible emissions because certain pieces of equipment are not fully functional when these events take place. 

DENR’s rule was first established in 1975, was approved by EPA, 

and has not caused or interfered with South Dakota staying in 

compliance with the national standards. South Dakota has joined 

Florida’s lawsuit against the rule, along with 15 other States. 

The final rule that highlights the lack of cooperative federalism 

is the carbon dioxide standard for existing power plants. In 2012, 

which is the base year that EPA used, 74 percent of the power generated in South Dakota came from renewable sources. In spite of 

this remarkable record, EPA’s rule threatens the economic viability 

of the two fossil fuel-fired power plants that we do have in the 

State and could strand the Regional Haze controls previously mentioned at the Big Stone Plant. Here again our attorney general has 

joined lawsuits against the rule, most notably with West Virginia. 

The bottom line is these new Federal requirements will have a 

huge impact on our citizens and on our economy, but will produce 

little or no known noticeable benefits in South Dakota. For this 

reason, we believe that each State should have the right and the 

freedom to address these issues individually, using the principles 

of cooperative federalism and Executive Order 13132 on federalism. 

As stated in the Executive Order, ‘‘The Framers recognized that 

the states possess unique authorities, qualities, and abilities to 

meet the needs of the people and should function as laboratories 

of democracy.’’ That is not the case now. 

I hope this information is useful to the Committee. Thank you 

again. 

[The prepared statement of Mr. Pirner follows:] 

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Senator INHOFE. Thank you, Mr. Pirner. 

All right, would you hold the poster up that we have there? 

Ms. Keogh, according to this December 2015 timeline by the Association of Air Pollution Control Agencies, there are nine Clean 

Air Act deadlines for States this year alone. Your testimony describes a number of these EPA actions as, and I am quoting now 

from your statement, ‘‘we have, at best, overlapping and, at worst, 

conflicting directives.’’ Can you explain how competing deadlines 

impact your department? 

Ms. KEOGH. Thank you, Chairman. It is a bit frustrating as we 

seek implementation of these numbers of regulations in a very 

short timeframe. What we see as our program staff evaluate these 

rules and seek implementation, we are modeling different and 

often conflicting results for the exact same source or the facility, 

and it often ignores the progress that the States are already making, or continuing to make, on different timeframes. 

Senator INHOFE. Thank you very much. 

Mr. Huffman, on February the 23d of 2016, I led some 200 House 

and Senate members, 34 of those were Senate members, in filing 

an amicus brief with the D.C. Circuit in opposition to EPA’s Clean 

Power Plan. 

I did observe, Ms. Markowitz, you were the only one talking favorably about the Power Plan, but I have to point out that is because you are one of four States that is exempt from it. So I think 

the others would probably agree with you if that were the case. 

Anyway, the brief argues, among other things, that the Clean 

Power Plan violates the Clean Air Act’s principle of cooperative federalism, explaining, quoting from the brief, ‘‘The EPA takes a coercive approach that commandeers the States to implement and enforce the Agency’s power choices.’’ 

So I would ask Mr. Huffman, do you agree that the Clean Power 

Plan coerces States to implement EPA’s policy choices, not the 

choices of States? 

Mr. HUFFMAN. Yes, Senator. I believe EPA’s biggest challenge in 

implementing the Clean Power Plan is it had to go about it in a 

way that is unconventional. Typically, EPA will regulate pollutants 

at the end of the stack, if you will, or at the end of the pipe. And 

with regard to the Clean Power Plan, the only way to do that 

would be to put a regulatory number, a limit on carbon dioxide. 

And the only way to do that in a way that gave the effect that they 

would want would essentially shut down all fossil fuel production 

in this Country. 

So the way they went about managing every minute detail of 

how this Clean Power Plan should be implemented we think ran 

in conflict with Section 111(d) of the Clean Air Act, which gives the 

States the authority to establish those performance standards; and 

EPA has done that instead of setting the threshold and allowing 

the States to figure out how to do it. 

Senator INHOFE. All right, thank you. 

Mr. Pirner, there is a little bit of confusion, lack of clarity following the Supreme Court stay of the Clean Power Plan. Has your 

State continued to work on the rule? And if the stay is ultimately 

lifted, do you expect compliance deadlines to be extended? In other 

195 

words, are you continuing to work as if the stay were not a reality? 

How are you preparing for it? 

I might ask the others the same thing. 

Go ahead. 

Mr. PIRNER. Mr. Chairman, our plan before the stay was issued 

was to proceed along a path such that we could do enough to get 

the 2-year extension. EPA had said that that was not going to be 

a high bar to reach, so we read through what they were going to 

require and we had started to work on those items. One of those 

items was a public participation process. In response to that, we established a Website where people could view some information and 

give us comments. We had also scheduled some public input meetings. 

The day after the stay was issued we canceled those public meetings. The word that we are getting back from the legal team that 

is leading that lawsuit is that they expect those deadlines will be 

adjusted by the courts once the decision is made. 

Senator INHOFE. But expecting that and knowing that are two 

different things. 

Mr. PIRNER. Yes, sir. 

Senator INHOFE. Anyone else want to comment on that? 

All right, Senator Boxer. 

Senator BOXER. Thank you, Mr. Chair. 

Mr. Mirzakhalili, as you described in your testimony, Delaware 

is a downwind State, such as Rhode Island, I am sure we will hear 

more about that, and much of the air pollution in your State comes 

from upwind States. You say that ‘‘it is EPA’s role to ensure equity 

between where pollution is produced and where it is received.’’ 

It seems to me that is right spot on. So if EPA did not set minimum standards and all this went to your neighboring State who 

is sending smog and everything else over your way, and we left it 

all to each State, what would it be like for the people of Delaware 

in terms of asthma, in terms of COPD, and the other problems that 

come from filthy air? 

Mr. MIRZAKHALILI. Thank you for the question, Senator Boxer. I 

can answer that by saying they will be having a feast while we get 

the smoke in our eyes. We suffer from the consequence of those 

emissions if they are unabated. As I mentioned in my testimony, 

some of those are simple to remedy. The equipment has been installed, and they are just not operating because the current scheme 

is a cap control. 

Senator BOXER. Thank you. You answered that very well. 

Ms. Keogh, I would love to be invited to your house for dinner, 

because you obviously are focused on that, and it would be fun. So 

you just heard our witness from Delaware talk about the fact that 

if we didn’t have these basic minimum standards his State, they 

are wonderful people there, but they are located in a place where 

they get those winds and they get that pollution. 

So if your State was in that circumstance, I know you do get 

some pollution from surrounding States, but not to the extent that 

some of these other States get it, wouldn’t you think it would be 

fair to limit that pollution? Because wouldn’t you be concerned? 

The science tells us there is a direct link between dirty air and 

asthma and COPD and worse. 

196 

Can you understand their point, is what I am asking. 

Ms. KEOGH. Yes, Chairman. 

Senator BOXER. Ranking Member. 

Ms. KEOGH. Ranking Member. I apologize. 

Senator BOXER. It doesn’t matter. He would be unhappy if you 

called me chairman. 

Ms. KEOGH. I understand that. 

With due respect, Chairman. 

Arkansas does have very clear air and healthy air, and it is difficult for a State like Arkansas to reflect on the model assumptions 

that are made to implicate States which measure and monitor such 

clean air against other States or impacting those States. 

Senator BOXER. But that wasn’t my question. My question was 

if you were one of those States that got a huge amount of pollution 

from a next door State which did nothing to prevent it, would you 

put yourself in the shoes of Delaware or Rhode Island or these 

other States? It is just a simple yes or no. 

Ms. KEOGH. Our States work together when we have a situation 

like that. We have worked with our neighboring States. 

Senator BOXER. OK, so your position is that your State can tell 

another State what to do, and you are criticizing the EPA. Now you 

are going to say one State is going to tell the other State what to 

do. It is not realistic at all, and that is the reason we passed Federal legislation, under Nixon, I might say. 

Ms. Markowitz, can you explain why it is essential that we have 

national minimum standards, while also allowing States to be more 

stringent in protecting their citizens? 

Ms. MARKOWITZ. We are also an upwind State, so we are also 

suffering. Vermont is a clean green State. We have some of the 

worst air pollution in the Country in the little town of Rutland, and 

that is because of the way the winds come from coal-burning States 

into Vermont, and that is a problem for us. And we have tried to 

work cooperatively with these States to put in place those pollution 

controls that in many cases they already have. 

But in Vermont we want to do more. We recognize that we have 

this culture of environmentalism, but, at a baseline, when other 

States want to do less, it impacts our quality of life. 

Senator BOXER. OK, let me interrupt you only to say you are 

making my point. Minimum Federal standards let the States do 

more. 

Ms. MARKOWITZ. That is right. 

Senator BOXER. And I think that is what the beauty is of the 

Clean Air Act which is under such fierce attack. 

Now, Mr. Huffman, the January 2014 spill from the Freedom Industry’s chemical storage facility contaminated the drinking water 

supply of more than 300,000 residents of Charleston. You know 

that. We are now facing another drinking water crisis in Flint, 

Michigan, where children were poisoned by the city’s toxic drinking 

water. Given these events, do you think EPA and the States should 

be doing more, not less, to protect the public’s drinking water? 

Mr. HUFFMAN. Yes, Senator. I think that your point about minimum Federal standards and then let the States figure it out, that 

is absolutely the model that we should be following. 

Senator BOXER. Good. Good. 

197 

Mr. HUFFMAN. That is absolutely what we should be doing. My 

point today, and I think the frustration with West Virginia, with 

some it has been about what those standards are, but the real 

problem for me as a regulator is the way they go about implementing these standards. They are bypassing the guidelines under 

the Federal environmental statutes for how to implement one of 

these changes in minimum standards. 

Senator BOXER. Well, Mr. Huffman, since my time has run out 

and my chairman is coughing, which means he wants me to stop, 

let me just say that I really respect what you just said. I don’t 

think that any agency, the Federal Government or any State agency, should overstep its bounds. So we will talk more about, because 

I think what you said is very fair. Minimum standards, yes, but 

implemented in the right way. 

Mr. HUFFMAN. Correct. 

Senator BOXER. Thank you. 

Senator INHOFE. Thank you, Senator Boxer. 

Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. We pride ourselves 

in South Dakota with the clean air. We do have challenges at 

times. If there is a forest fire in California, we suffer from the 

smoke from that. So we understand, when you talk about you want 

clean air. We want it too. We think we do a good job in our State. 

Secretary Pirner, you have spent decades administering and implementing environmental regulations on both the State and the 

Federal level. Can you discuss, in your experiences, the differences 

you have seen in terms of the quality and benefits of regulations 

that have resulted from a process that incorporates more State 

input compared to the regulations that have recently been promulgated by the EPA? 

Mr. PIRNER. Senator Rounds, based on my experience, if you go 

back and EPA rolled out an issue, and if everybody came to the 

table and agree this is a problem and agree this is some options 

that are viable, things get done, it works. If you don’t have that 

process in place and the Federal Government, EPA in this case, is 

identifying the problem along with the option, or a couple options, 

none of which work for you, then we are left with the rash of lawsuits that I just mentioned in my testimony. 

Senator ROUNDS. Talk about ozone a little bit. In South Dakota 

we are in compliance. We are one of the few States that is in compliance. You have seen the new numbers coming out. Can you talk 

a little bit about what that does in terms of a State like South Dakota, where we are one of the 10 that actually complies with the 

guidelines right now? You mentioned they want to make a change 

in this, down to perhaps below our basic numbers. Can you talk 

about that a little bit, about how frustrating that is? 

Mr. PIRNER. Yes, Senator. To form ozone you have to have certain emissions, and it has to react with sunlight and then you get 

ozone. So ozone may actually form in a downwind State. In South 

Dakota, we are a population of, what, about 800,000 people. We 

don’t have the sources of the chemicals that react with the sunlight 

to form the ozone. 

So the ozone that we do have in South Dakota is either from 

upwind States or is basically our background levels. And I think 

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based upon what we have seen, the new limit that EPA has come 

out with is very, very close, if not above, our background levels. 

Senator ROUNDS. So what is a State like South Dakota supposed 

to do when we are not in compliance? 

Mr. PIRNER. We haven’t been there yet, thank goodness, but I 

would assume we would go into a non-attainment status. We would 

have to try to work with the EPA on figuring out what to do, but, 

since we don’t have the sources, I don’t know what we would do. 

Senator ROUNDS. In your experience, how would you recommend 

EPA change its practices of making regulations to better incorporate States’ perspectives in the regulatory process? In other 

words, what are the implications of the EPA enacting broad, overreaching national mandates rather than regulations that take into 

account the differing characteristics of individual States? 

Mr. PIRNER. Senator, your hearing today is on cooperative federalism, and if you read that Executive Order that I quoted in my 

testimony, it says in there that one of the principles of federalism 

is that those decisions that affect people that are made by the unit 

of government closest to the people are usually the best decisions, 

and we would say that is still true. 

Senator ROUNDS. I would suggest that during your tenure, from 

1979 on, you have gone through multiple administrations. Can you 

share with us a little bit about what you are seeing right now with 

regards to either the consultations that are either not there or the 

directives that are being laid out right now versus the way it used 

to work? Whether it was in a Democrat administration or a Republican administration, what is different about what is going on right 

now? 

Mr. PIRNER. Senator Boxer said we are not going to repeal the 

Clean Air Act and we are not going to repeal the Safe Drinking 

Water Act, and we are not going to repeal these environmental 

Federal acts; and I don’t think anybody wants to repeal those Federal acts. When those acts were put in place, there were real problems in this Country; the environment was really, really suffering, 

and that was the reason those acts were put in place. 

But in the intervening time period now tremendous progress has 

been made; our water is cleaner, our drinking water is safer, our 

air is cleaner. So I guess what bothers me some about this is now 

we are trying to ratchet down to the next environmental problem 

and we are getting to such low levels that we are going to spend 

a lot of time, we are going to spend a lot of money, we are going 

to spend a lot of resources, and in the end what is going to be the 

benefit? 

Senator ROUNDS. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Rounds. 

I mentioned in my opening statement that all these acts, the 

Clean Air Act, we on the Republican side were very supportive of 

that. In fact, I was one of the initial co-sponsors of those. So I 

wouldn’t want people to think that these things are not working. 

They are working. We understand that. 

Senator Carper. 

Senator CARPER. Thanks so much. 

Again, thanks to all of you. 

199 

I am going to put my old hat on as a recovering Governor just 

to followup on what Ali said. During the time that Ali was serving 

in the Department of Natural Resources, Christof Tulou, sitting behind me, was the secretary and I was Governor for 8 years, also 

chairman of the National Governors Association for a while. I get 

the idea that States are laboratories of democracy. I like the idea 

that the Federal Government would set some standards and say to 

the States, you figure out how to do it, figure out the most costeffective way to meet those standards. I thought the six points that 

you outlined in your testimony, Ali, I am almost tempted to go over 

them again and ask everybody on this panel if you agree with 

those. 

Before I do that, just be thinking about that. I am telegraphing 

a pitch. That is what I am going to ask next. So just be thinking 

what he said and how you feel about that. 

The Chairman and I go to a Bible study that meets most Thursdays. He has been to a prayer breakfast this morning. We are people of different faiths here, but we actually do try to figure what 

our faith is and abide by it. We are all people with different faiths. 

But one of the things I think all of us agree on, I don’t care what 

religion we are, is treat other people the way we want to be treated. I think that is a standard that we can all embrace. I don’t care 

what religion you are; it is there in your religion. I think it applies 

here. 

I could have shut down the State of Delaware’s economy when 

I was Governor, literally shut it down, and we would still have 

been out of compliance in any number of air quality metrics. That 

is just not fair. That is not right. That is why we need others to 

be a good neighbor and to look out for their neighbor. 

There are some places in the Midwest where they create cheap 

energy, burn coal, 500-foot tall smokestacks. Put the stuff up in the 

air, it blows all the way over to the East Coast, we get it. We end 

up with dirtier air. We have to spend more money to clean up our 

air because other people are getting cheap electricity, and it is just 

not right. So I would just ask for all of us to keep in mind the Golden Rule: treat other people the way we want to be treated. 

The other thing I want us to keep in mind is I think it was something, Mr. Pirner, that you said. We have made great progress. 

When I was at Ohio State University, a Navy midshipman there, 

there was a river up in Cleveland that caught on fire, the Cuyahoga River. We all remember that. 

I got on the train this morning in Wilmington, Delaware, there 

was a river that goes right by the train station there in Wilmington, the Christina River. We can’t eat the fish there. In fact, 

we can’t eat the fish in most of the rivers in my State. Frankly, 

there are a whole lot of other rivers in a whole lot of other States 

where they can’t eat their fish either. And while we are making 

progress, the Cuyahoga River doesn’t catch on fire anymore, but we 

still can’t eat our fish, and we can do better. 

We all agree that we ought to be guided by sound science. Part 

of sound science says that some of the real problems for air pollution is the size of the particulates that get into our lungs that are 

most dangerous are the smallest. We have only been concerned 

about the larger ones, but we find out, as we learn more through 

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science, the really dangerous stuff is the really teeny weeny ones, 

micro jobs. So I would just ask us to keep that in mind. 

I want to go back to what Ali said. He made six points that I 

just want everybody to say whether or not you think he is on target. 

He said, I believe EPA can best fulfill its role by fulfilling the following: one, sound science. EPA must set national standards as 

Congress mandated which rely on sound science as a cornerstone 

of its work. That is No. 1. 

No. 2, flexibility. Once EPA establishes its standards, this agency 

should provide States with appropriate flexibility to meet their obligations under the Clean Air Act and protect public health and the 

environment. That is No. 2. 

No. 3, timely rules and guidance. It is important that EPA issue 

timely implementation rules and guidance for use by the States. 

No. 4, accountability. EPA should be consistent in the outcomes 

it expects from States across the States and hold itself and the 

States and local air pollution control agencies accountable for meeting their commitments. 

No. 5, equity. EPA must provide for a level playing field among 

the States, kind of the Golden Rule deal that I just was laying out. 

And, finally, nationwide sources. EPA must address sources that 

States are either preempted from regulating or lack the necessary 

expertise to regulate, or that are most effectively regulated on a national level. 

Let me just start with you, Ms. Markowitz. Do you agree with 

those? Has he laid it out pretty well or not? 

Ms. MARKOWITZ. Yes, I agree with that. It makes tremendous 

sense. I think that is how we have been operating. We personally, 

in Vermont, have experienced tremendous flexibility in our relationship with Region 1. 

Senator CARPER. Thank you. 

Mr. Huffman. 

Mr. HUFFMAN. Yes, Senator, those are great principles. We agree 

with them and we long for those days when the execution follows 

that ideal. 

Senator CARPER. All right. 

Ms. Keogh. Think of this as a menu. 

Ms. KEOGH. I agree with Cabinet Secretary Huffman as well, and 

the other members. These are good principles. It comes down to the 

implementation and how we can work cooperatively, and find solutions rather than create new challenges. 

Senator CARPER. Thank you. 

Mr. Pirner. 

Mr. PIRNER. Yes, Senator, I would agree with those six points as 

well and, as the other witnesses have said, basically, it is how you 

carry it out. 

Senator CARPER. All right, good. 

Mr. Chairman, I would say the ayes have it. Thank you all very 

much. 

Senator INHOFE. Well, thank you. 

Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 

201 

I want to thank all of you. And I neglected to mention, when I 

talked about Secretary Huffman, that he also is a colonel and 

serves as the Vice Wing Commander of the 130th Airlift. So thank 

you for your service there, Colonel Huffman. 

I am glad that Senator Carper went to the principles that you 

laid out because I was going to use that in terms of my questioning. 

Secretary Huffman, you highlighted Section 303 of the Clean 

Water Act in your testimony, and basically it says that the EPA 

is asked to determine whether a change in the State’s water quality standard meets the requirements of the Clean Water Act. And 

if the EPA determines that a water quality standard isn’t consistent, by law, the EPA has to notify within 90 days. 

My understanding is that the West Virginia legislature approved 

a change in the State’s water quality standard just last year, but 

the EPA failed to either approve or deny the change within 90 

days. I think the substance of the talk we are talking about today 

is not so much the standards; as you mentioned, it is the implementation, it is the lawfulness with which the Federal agency is 

moving forward. 

So, in my view, with them not notifying in the timely fashion or 

giving you good direction, it violates the timely rules and guidance 

that the director in Delaware was talking about, and also the accountability portion of that. 

How vital is that feedback for EPA, that it come in a timely fashion to you so that you can fully implement? 

Mr. HUFFMAN. Well, thank you, Senator. Good to see you again. 

It is critical because there are a lot of moving parts in the environmental regulatory business. There is a lot going on. We need to 

make these requests and we need to get answers, and we need to 

move on. What is really frustrating is I can submit a change for 

a water quality standard, and not get it, and wrangle for months 

and sometimes years, but, yet, whenever I get an opportunity to 

comment on proposed rules, I might have 3 days, I might have 4 

days. And that is very frustrating and it makes me wonder, if I 

were a conspiracy theorist, I might wonder what their agenda is, 

what is going on here. So it is frustrating. 

Senator CAPITO. Let me ask you, too, the difference between 

guidance and rules and regulations. You brought that up in your 

testimony. We find that, really, throughout the Administration in 

terms of offering guidance instead of rulemaking because it does 

evade the legal aspects of creating a regulation. Are you getting 

more guidance than you have in the past? Is it more difficult? Is 

there enforcement mechanisms to guidance? 

Mr. HUFFMAN. Well, when you govern by guidance, instead of 

going through the protocols that the Congress has set up in our environmental statute, it allows you to get by with more; it allows 

you to avoid the transparency and how you get to your point; and 

we are seeing a lot of that not only with EPA, but, as I mentioned, 

with the Office of Surface Mining. 

Senator CAPITO. I think most of you have mentioned that what 

you need is the Federal minimum standard nobody has a problem 

with; it is the implementation aspect of it. But, also, most of you 

have mentioned the flexibility that the States need to have. ObviVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00205 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
202 

ously, in West Virginia, we have a much different situation than 

you have in Vermont. We are blessed with a lot of coal and we use 

it and have used it, and we are cleaning it up every day, but it is 

a bigger challenge for us in certain. So we need that flexibility in 

West Virginia to meet those standards because, as every member 

would say, clean air, clean water is just as valuable to us. And I 

think we can eat a lot of the fish that we catch in West Virginia, 

so we are very happy about that. 

Is the flexibility aspect probably the most difficult hurdle for you 

all to overcome? I will start with you, Secretary Huffman. 

Mr. HUFFMAN. I don’t know if it is the flexibility or the frustration. I know we are running out of time here. The frustration really 

seems to be it is an inconvenience to involve the public, to involve 

the States. It takes time. If you want to make a rule, it takes time. 

And, as you all know, that is a very cumbersome process. 

The convenient way to do that would be, by fiat, to impose it 

upon the States. That is what we are seeing. There is little to no 

flexibility because it is already written. By the time we get it, it 

is already written and the minds are made up, and it is very difficult to overcome that. 

Senator CAPITO. And I would just finally note that you participated or agreed to participate with OSM to develop the new stream 

buffer rule. Many States were involved with this. And because of 

the numerous frustrations and really the lack of listening that 

OSM was doing, most of the States pulled out of that, I think. Is 

that correct? 

Mr. HUFFMAN. That is correct. There was a draft of that rule 

that OSM mistakenly made public before, within days of us signing 

on as a cooperating agency, it was already written. 

Senator CAPITO. It was already written. Thank you. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you very much, Chairman. Let me 

associate myself with the remarks of Governor and now Senator 

Carper. As the attorney general of my State, Rhode Island, I saw 

exactly the circumstance that he very well described. Not only did 

the upwind States not make any effort to treat us fairly, we often 

had to try to sue the upwind States with EPA, or sometimes even 

sue EPA to enforce compliance with the Clean Air Act. 

On a perfect Rhode Island summer morning, you could drive to 

work and hear on the radio a warning that today was a bad air 

day, and the children and the elderly and people with breathing 

difficulties should stay indoors. Stay indoors. 

And, like Delaware, we could have shut down every outlet of 

emissions in the State of Rhode Island and not gotten ourselves 

into compliance, because it came from other States; other States 

that fought compliance; other States that often had not even put 

scrubbers on their smokestacks yet; other States that specifically 

built high smokestacks so it would project the emissions out of 

their State. They were very often States in compliance with these 

air regulations, even though they were the source of the emissions 

that were taking Rhode Island out of compliance. 

So I know there are going to be States that are going to unhappy 

with EPA regulation. They would love to have the regulation be as 

203 

close to the people as possible because those people have wangled 

it so that they can export their pollution to my State, and not have 

to pay for it and not have to clean it up. 

And that is a real problem that I think EPA has to address. It 

is very important to our downwind States. It is just not fair for 

kids in Rhode Island not to play on a summer day because they are 

having a bad air day. And what we have seen is that EPA has 

cracked down more and more, sometimes because States have sued, 

sometimes because they have acted on their own, actually, our bad 

air days are diminishing. 

But it took EPA to get after the States that were happy to go 

along with the gag, because they had made their pollution somebody else’s problem. That somebody else was my Rhode Island children, elderly, and people with breathing difficulties. 

So, for the record, our engagement with Region 1 of EPA is terrific in Rhode Island. We don’t have complaints. We talk back and 

forth; it is very open; there is no problem. So I don’t know if there 

is a significance to the fact that the States that seem to be more 

in the export business are the ones that have of the problem with 

EPA, and the ones that are more in the we are getting clobbered 

business are the ones that appreciate EPA, but certainly from 

Rhode island’s perspective, we appreciate very much what EPA is 

doing. 

Let me ask a quick question just to kind of see where folks 

stand, and let me start with Mr. Pirner. 

Mr. Pirner, do carbon emissions from fossil fuel burning cause 

changes in our atmosphere and oceans that portend harm to people 

and to ecosystems? 

Mr. PIRNER. Senator, I am not going to enter into that particular 

debate. What I would argue is that if we are going to control carbon emissions, it has to be done in a way that can work and that 

is feasible, and the first proposal that EPA laid out in our State 

simply was not feasible at all. 

Senator WHITEHOUSE. Why are you unwilling to answer a question at a hearing that is as simple as, do carbon emissions from fossil fuel burning cause changes in our atmosphere and oceans that 

portend harm to human beings? Why are you not willing to enter 

into what you call a debate? 

Mr. PIRNER. Senator, because I am not an expert in that particular topic. 

Senator WHITEHOUSE. Ms. Keogh, do carbon emissions from fossil 

fuel burning cause changes to our atmosphere and oceans that portend harm to humans and to ecosystems? 

Ms. KEOGH. I think you can find scientists that say both, yes and 

no. 

Senator WHITEHOUSE. And what do you say? 

Ms. KEOGH. Well, I am not an expert, either, as the other witness indicated. 

Senator WHITEHOUSE. Mr. Huffman, do carbon emissions from 

fossil fuel burning cause changes to our atmosphere and oceans 

that portend harm to humans and to ecosystems? 

Mr. HUFFMAN. I am sorry, I didn’t mean to interrupt you, Senator. I do believe that the science would indicate that our climate 

is changing. I think that there is a lot of, unfortunately, we are 

204 

having the debate in the wrong place in this Country over climate 

change. We are name-calling. It is reduced to name-calling over 

whether you believe or don’t believe in climate change. Sure, the 

climate is changing. What we need to be debating is what we 

should be doing about it. And I don’t know that we have come together as a Nation on that. 

Senator WHITEHOUSE. Well, clear enough for me. 

Let me just say for the record, as I close out, that I think every 

national lab, our U.S. military, NOAA and NASA, and every single 

one of our lead home State universities would have found that an 

easy question to answer with a plain and simple yes. Thanks. 

Senator INHOFE. Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Ms. Keogh, in your testimony you cite a dramatic decrease in 

time and tolerance or State implementation plans and dramatic increase in EPA Federal implementation plans under the Administration. As depicted in this chart, the Obama EPA has taken over 

State programs 54 times, more than the three previous administrations combined times 10. 

Director Keogh, are you concerned about this trend? Isn’t it true 

that State plans are integral to the Clean Air Act’s cooperative federalism structure and Federal plans were intended as only as a last 

resort? 

Ms. KEOGH. Thank you, Senator. We are concerned about this 

trend, and we understand as a State that Federal plans may be 

necessary sometimes, in circumstances where States do not act or 

choose not to act. But the frequency and process of the FIPs have 

become so alarming, mainly because they take a Federal solution 

that may be developed in a very short period of time with limited 

information and replace a very thoughtful and extensive process at 

a State level, where we have dealt with what could be a reasonable 

solution, we vett it through transparent processes and also search 

out whether we have unintended consequences. So that is our biggest concern, is that we replace our well thought out judgment with 

somebody else’s solution that may not have seen that same 

thoughtful process. 

Senator BOOZMAN. Very good. As you know, under the Regional 

Haze program, States develop implementation plans. EPA has limited authority to reject the State plan and issue a Federal plan instead. Still yet, in Arkansas, EPA rejected our State plan and proposed an extremely expensive Federal takeover. Director Keogh, is 

it true our State plan was on track to achieve natural visibility conditions? 

Ms. KEOGH. Yes, sir. 

Senator BOOZMAN. And its proposed Federal Regional Haze Plan 

for Arkansas, did EPA go beyond its limited procedural role prescribed by the Clean Air Act? 

Ms. KEOGH. In Arkansas, we do believe so. In fact, when I asked 

EPA, when they offered up the Federal proposal, why they expanded the scope of the Regional Haze Plan to include sources that 

were not legally authorized under the rule, EPA answered, because 

we can. 

205 

Senator BOOZMAN. How will the requirements of the Federal Regional Haze Plan interact with possible actions under the Clean 

Power Plan? Are those timelines intertwined in a complicated way? 

Ms. KEOGH. They are for Arkansas, at least. Our State air experts that evaluated both rules and have been working diligently 

to assess impacts and solutions looked at models, and I think it is 

important to show that the model under the Regional Haze Plan, 

where they take into account cost-effectiveness, assumes a source 

could install multi-million dollar control equipment and do it costeffectively. 

However, when you look at the models and the timelines of the 

Clean Power Plan, that same source no longer operates just a few 

years later, after those controls are installed, and that would be a 

very extremely costly mistake for Arkansans to pay for, to install 

multi-million dollar controls, only to have the source shut down to 

comply with the subsequent rule compliance date. 

Senator BOOZMAN. Thank you. 

Mr. Ali mentioned about the unfunded mandates. I think that is 

something that I think we can all agree on is a real problem. Some 

of these things we are having trouble on agreement, but the unfunded mandates really is a problem. 

Randy, can you address that a little bit? 

Mr. HUFFMAN. Well, it has really always been an issue. The 

funding for the vast majority, and I don’t know the number, of our 

environmental regulatory programs in the States is provided by the 

States, either through the General Fund budgets or, in our case 

there is a lot of special revenue type accounts, through assessments 

and fees on the industries that we regulate. I don’t know that I 

have ever seen any kind of an analysis by EPA when a new rule 

is imposed or a new guidance. There is never an analysis done, 

that I have seen, that would indicate what the costs are that are 

associated with. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Boozman. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

Ali, thank you for being here. Some of your fellow regulators 

have expressed concern about not being able to comment on EPA 

rules. The Clean Power Plan changed significantly from its draft to 

final form based on input from the States, industry, and other 

stakeholders. Do you find that the EPA is listening to you in terms 

of the flexibility, the concerns which you have been expressing? 

Mr. MIRZAKHALILI. I absolutely do, especially in terms of the 

Clean Power Plan. I think that the level of outreach and dialog 

with stakeholder involvement was unprecedented in that effort. We 

see marked difference between what they proposed and what was 

finalized, and we see our comments reflected in those changes. 

Senator MARKEY. Earlier in the hearing there was a discussion 

of the number of deadlines approaching for the Clean Air Act. The 

Massachusetts Department of Environmental Protection has corresponded with Chairman Inhofe for this hearing and he noted that 

Massachusetts will meet these deadlines. Will Delaware be able to 

meet those deadlines as well? 

Mr. MIRZAKHALILI. We absolutely will be. 

206 

Senator MARKEY. Will Vermont be able to meet these deadlines? 

Ms. MARKOWITZ. We absolutely will be. I want to acknowledge 

that under the Clean Power Plan we don’t have regulated entities, 

so we don’t have an obligation there. 

In answer to your earlier question, though, there was an unprecedented involvement even of Vermont in the development of those 

rules because we are deeply concerned that whatever the implementation is, that it could include the Regional Greenhouse Gas 

Initiative that we are part of. 

Senator MARKEY. So let me followup with you, Secretary 

Markowitz. The Safe Drinking Water Act allows States to manage 

public water systems within their jurisdiction if they meet national 

standards set by the EPA. Given the ongoing situation in Flint, 

Michigan, it is clear that we still have a long way to go to ensure 

safe drinking water for every American. What are the ways that 

we can enhance Federal-State cooperation to ensure safe drinking 

water for all in our Country? 

Ms. MARKOWITZ. Well, this is an area where we are having direct 

experience right now. We have an issue with a chemical, PFOA, 

which was not a regulated chemical which is nevertheless a carcinogen and an endocrine disrupter that has been found in wells 

in Bennington; it is a chemical that is used in the making of Teflon. And we really rely on EPA and their scientific expertise to help 

us manage that. 

In addition, they have come out with some new rules and standards for the limits in copper and some other things that we can 

find in our drinking water. This is an area of partnership that is 

really important. The standards that they set help us ensure that 

our Vermonters are healthy when they are taking water from their 

taps. 

Senator MARKEY. OK. 

Ali, let me come back to you. As we are all aware, climate change 

is a global problem, but it requires local solutions in order to solve 

the problem, and Pope Francis, who taught high school chemistry, 

came to Congress to preach his sermon on the Hill to us to tell us 

that the planet was warming and the science proved that, and that 

human beings were contributing to it and the science proved that, 

and that we had a moral responsibility to be the leaders for the 

planet. 

So my question is since both Delaware and Vermont are part of 

the Regional Greenhouse Gas Initiative, which has been partnering 

now coming up to eight or 10 years to reduce greenhouse gases, can 

you talk about how the EPA has been coordinating with you to ensure that this problem, this global warming problem can be solved 

by cooperation amongst the States and working with the States? 

Mr. MIRZAKHALILI. Thank you for the question, Senator. And 

they have been. One of the key comments we made after the proposal was for EPA’s final rule to accommodate and use the framework that we already set on the RGGI, and it is certainly being accommodated. We think our RGGI solution is a very good solution 

that can be actually expandable nationwide, and the rule accommodates, actually. 

Senator MARKEY. Thank you. And I appreciate the interState aspect of this as well, much less the international aspect of it, there 

207 

is no question about it, but there has to be cooperation. Silvio 

Conte, Congressman from Western Massachusetts, and I introduced the first acid rain bill in 1981. It took until 1990 to pass the 

bill, but 1981. And that was just because people in Ohio were putting these smokestacks football field high into the air and blowing 

the smoke right toward us, so we were the ones principally affected, Vermont and all the New England States. 

So it is clear that unless we work together we can’t solve problems of that magnitude, so we thank all of you for your work in 

trying to accomplish that. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you. 

Senator FISCHER. 

Senator FISCHER. Thank you, Mr. Chairman and thank you, Senator Boxer, for holding this hearing today, and thanks to all the 

witnesses for coming. 

The Nebraska Department of Environmental Quality shares in 

the concerns that have been expressed by many of the witnesses 

today. In the letter addressed to the Committee, our State has 

written that ‘‘While Nebraska has a good working relationship with 

EPA Region 7, recent EPA headquarters regulatory actions have 

snowballed. EPA’s compulsive tinkering with standards and limits, 

often before States have had a reasonable chance to comply, make 

it difficult to reconcile those often competing priorities.’’ 

Secretary Pirner, in your response letter that was sent to the 

Committee, you State that nearly all new Federal requirements 

will have an impact on your State, its citizens, and its economy, 

but will ‘‘produce little or no benefits in protecting public health 

and the environment.’’ Like my home State of Nebraska, South Dakota is a rural State that hosts many unique and critical natural 

resources that benefit citizens and communities. 

Can you please elaborate on the challenges many rural communities will face as a result of expansive EPA regulations? And what 

are the economic impacts in terms of job growth and industry investment from the EPA rules? 

Mr. PIRNER. Senator, part of my concern is that on the water 

quality and effluent standards that I talked about in my testimony, 

it is not that we are against having minimum standards; but now 

we are ratcheting those standards down to such a degree as to be 

almost infeasible in some cases. 

I will just talk about the ammonia standard. We were one of the 

first States to include ammonia as a water quality standard. Ammonia can be toxic to fish. So we agreed with that and we agreed 

that all of our large cities pretty much have what is called tertiary 

treatment that treat for ammonia, and have for many years now. 

But if we ratchet that level down, now we are going to have install 

even more treatment. 

Basically, the new standard is based not on fish anymore, it is 

based on mussels. So I am going, well, then how did the mussels 

do it when we didn’t treat for any ammonia? And, again, I am not 

a biologist and I don’t understand all that, but all I do understand 

is that the levels are getting down to such a point as to be costprohibitive, and that concerns me because if we do try to comply 

208 

with those new standards, we are going to be spending a lot of time 

and a lot of money that could be spent in other areas. 

Senator FISCHER. Right. The Nebraska Department of Environmental Quality, they discussed the need for streamlining those 

Federal requirements. We are always worried about that unnecessary duplication. So, Mr. Pirner, do you agree with that statement? 

In your experience, do you see duplication as a reoccurring theme 

among State regulators as they try to interpret and then try to implement all these Federal mandates? 

Mr. PIRNER. Senator, I am not exactly sure I understand the 

question. You mean duplication between the State and EPA? 

Senator FISCHER. In many cases, yes, but also between Federal 

agencies. So it is not just EPA that comes down with standards, 

but you have other agencies as well. 

Mr. PIRNER. Well, we certainly have other Federal issues with 

the Corps of Engineers, with Bureau of Land Management, with 

Forest Service. So there are many other Federal agencies that we 

believe are infringing on States’ rights besides EPA, if that is the 

answer. 

Senator FISCHER. How much time does that add when you are 

trying to meet regulations, when you have different agencies out 

there that I would say they are piling on a number of the regulations that we look at? 

Mr. PIRNER. Senator, it is certainly of concern. I will give you an 

example. In our Department, we are a relatively small Department. 

Our clean air program I think has 14 FTE in it for the whole State. 

When the Clean Power Plan came out, we took two of those people 

and they worked when it first came out and we were trying to do 

comments and trying to figure out what was going on. 

Then, when the final rule came out, we had to go through that 

process all over again. Basically, we process, I am going to say, 

somewhere around 80 air quality permits per month that are renewals and new and so on. I had to take 2 out of the 14 FTE out 

of that process to devote to just the clean air plan. 

Senator FISCHER. Right. In your testimony you talk about the 

EPA’s rule to regulate coal ash, and you note that the new rule will 

preempt the existing solid waste permit that is currently administered in your State. It is my understanding the EPA is encouraging 

States to amend their State solid waste management plans. Are 

you concerned about the timing for that? 

Mr. PIRNER. Yes, Senator, very much so. Again, we believe our 

existing solid waste permit was adequately protecting the environment. Now there is a host of new requirements that somehow we 

have to merge in with that existing permit, and we have to try to 

figure out how to do that in the least disruptive manner to both 

the agency and the industry. 

Senator FISCHER. Are you limited in your flexibility? 

Mr. PIRNER. All I can say at this point is our negotiations with 

Region 8 are ongoing. 

Senator FISCHER. Thank you. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Fischer. 

Senator Gillibrand. 

Senator GILLIBRAND. Thank you, Mr. Chairman. 

209 

Ms. Markowitz, as you know, New York and Vermont share Lake 

Champlain, and both are part of the Lake Champlain basin program. Working with EPA to improve the water quality of Lake 

Champlain is very important to both our States. It is my understanding that the EPA and the State of Vermont have been working together to establish a new total maximum daily load for Lake 

Champlain. Could you elaborate on how the EPA has worked collaboratively with your agency to negotiate this agreement? 

Ms. MARKOWITZ. Thank you. This is actually a perfect example 

of an issue that could have been seen as an overreach but, instead, 

really has ended up with a path forward that offers us flexibility 

and an innovative approach to cleaning up our waters. Lake Champlain suffers from terrible algae blooms from phosphorus pollution. 

Unlike in the 1970’s and 1980’s, it is not because of what is coming 

out of the wastewater treatment facilities as it is coming off the 

landscape. So rather than being point-source, it is non-point-source 

pollution, precipitation-driven pollution. 

So as we were working on a new TMDL for Lake Champlain, we 

have been working on it actually for 4 years, they could have just 

done it on their own, but they engaged us because they understood 

that if we were going to clean up the Lake, we really had to be involved because we understood what it would take to engage municipalities and farmers and business owners and developers and 

our transportation department in managing stormwater-driven pollution. 

It has been tremendously successful. We are waiting for the final 

TMDL to come out. We already have a plan, though, to implement 

that has been passed by our legislature, including some funding, 

and I am happy to share it in more detail to any of you because 

I think it is really the gold standard for this cooperative Federalist 

approach. 

Senator GILLIBRAND. Thank you. In your written testimony you 

wrote that ‘‘pollution does not honor State lines,’’ which is why you 

see the value of having national standards. 

Mr. Mirzakhalili, you describe that our most important responsibility under the Clean Air Act is to protect the health and welfare 

of citizens throughout the Country from the harmful effects of air 

pollution. Could you discuss some examples how pollution in one 

State affects the health and citizens in another? 

And from your perspectives as State environmental regulators, is 

the health of the citizens in Vermont, Delaware, New York, or any 

State better protected by having national standards that limit the 

amount of pollution that can be emitted into the air we breathe? 

And, last, do you agree that the EPA has not overstepped its authority in setting national standards using the Clean Air Act, the 

Clean Water Act, and other Federal environmental laws that 

States then implement and which are based on what the science 

shows to be necessary to protect public health and the environment? 

Mr. MIRZAKHALILI. Certainly. Thank you for the question, Senator. Delaware, Vermont, the Northeast is perfect examples of 

States that are suffering from air pollution transport, and that is 

EPA has come up with a transport rule recently to allocate responsibility and establish how much State contributes to the other. We 

210 

happen to think that they haven’t gone far enough. We think EPA 

needs to do more. Some of the transport good neighbor steps were 

due to us about 5 years ago, so I think that some of the deadlines 

that you see here are the result of things not getting done when 

they were supposed to get done. 

So I absolutely think EPA should do more in this area, and I 

think we stand to benefit from that. We can’t meet air quality 

standards; right now, in practice, 90 percent of our air quality, air 

resources have been allocated to upwind States. I can’t come into 

compliance without help. 

Senator GILLIBRAND. Do you want to add to that? 

Ms. MARKOWITZ. Well, that is our experience as well. We are 

barely in compliance in a number of parts of Vermont and, of 

course, we have no contributing industries, so, again, it is all 

upwind States. We have tried to negotiate; we have tried to sue. 

EPA has had rules on the books, and we are very pleased that they 

have come out with compliance deadlines, because that will make 

a difference to the health of the people of the State of Vermont. 

Senator GILLIBRAND. Thank you. 

Thank you. 

Senator INHOFE. Thank you, Senator Gillibrand. 

Senator SULLIVAN. Senator SULLIVAN. Thank you, Mr. Chairman. 

I want to thank the panelists for their testimony on a very important topic. 

I think it is very clear on this Committee we are all very committed to clean water, clean air. There has been a lot of focus on 

the Flint issue. Certainly nobody wants to have our drinking water 

have poison in it, so the issue of clean water is certainly going to 

come up because of that. I am really interested in having to work 

with my committee members. 

In my State, we have entire communities, entire communities in 

Alaska that don’t have running water, that don’t have flush toilets. 

Thousands of Alaskans, Americans, which I think is outrageous, 

and I certainly want to work with this Committee on not only addressing Flint, but other places that don’t have any of the benefits 

that most Americans just assume they have. We don’t have that in 

my State in a lot of communities, and it is something we need to 

fix, not just in other places in the Country. 

But, Ms. Keogh, I want to followup. Your statement I think really sums up a lot of the frustrations that so many of us have, where 

you just stated where the EPA stated because we can. Can you 

elaborate on that a little bit more, what you just mentioned? I find 

that remarkably arrogant. I find that an Agency that certainly dismisses the rule of law. I think there is example after example after 

example, and it is not just members from this Committee. 

I am always surprised why this Committee, on a bipartisan 

basis, isn’t more focused on making sure Federal agencies follow 

the law. Right now the EPA, in the last two Supreme Court terms, 

lost, the EPA v. Utility Air Regulators case in the Supreme Court 

lost; the EPA v. Michigan case has a stay on the WOTUS case 

where over 30 States have sued; and in an unprecedented, unprecedented action, the U.S. Supreme Court put a stay on the Clean 

Power Plan. 

211 

So the EPA is losing every single major rule that they are undertaking in the courts, with Obama administration officials, other officials who are Federal judges, saying the EPA is overstepping its 

legal bounds. 

And you may have seen what Gina McCarthy said on TV on the 

eve of the EPA v. Michigan case. When asked if she thought they 

were going to win the case, she said yes. They didn’t. But then she 

said, ‘‘Even if we don’t win the case, it was 3 years ago. Most of 

the States; companies are already in compliance. Investments have 

been made. We will catch up.’’ So it was kind of like, hey, even if 

we lose, we win because everybody had to abide by the law. I think 

that is outrageous, and it is the source of frustration that so many 

Americans feel. 

Can you just elaborate on this ‘‘because we can’’ quote? I just find 

it the height of arrogance. Just for everybody’s information, the 

EPA is supposed to abide by the law, and the Federal courts are 

showing in the last 3 years they don’t. Because we can is not an 

appropriate answer on people who work for you. 

Ms. KEOGH. Yes, Senator. Thank you. It is disheartening. We, as 

State regulators, find ourselves in that position every day as we effect regulation to make sure that we follow the law that is set 

forth. 

Senator SULLIVAN. Of course. That is what we are supposed to 

do, right? 

Ms. KEOGH. We do not create the law; we implement law. So it 

is frustrating. Admittedly, I had very short notice that this Federal 

plan was coming at the time, so I felt like it was a genuinely honest question to understand so I could communicate effectively why 

requirements were re-adding to the State plan, and it was very disheartening, at a minimum, and very frustrating or perhaps a violation of trust to answer it with ‘‘we can.’’ 

Senator SULLIVAN. So they didn’t attempt to cite a law or a reg; 

they just said ‘‘because we can.’’ Sounds like a king to me. 

Ms. KEOGH. The discussion went from a statement where Arkansas made that we are on a glide path with the Regional Haze Rule 

to actually advance and comply early, and that we were doing everything in our State plan that was required under the law. They 

went in and then, beyond that statement, discussed a provision 

about rate of progress and how they could require additional requirements under this phrase of rate of progress, and we questioned that, when we have a rate of progress that already exceeds 

or shortens the timeline and we actually achieve compliance early. 

So it became a bit of a circular conversation, to be honest with 

you that it was around there is a phrase in the law that says we 

can go beyond BART sources to seek a better rate of progress. And 

that was where they left it. And we did not end with a positive outcome at that, and obviously we continue to discuss that with EPA 

today. 

Senator SULLIVAN. Mr. Chairman, do I have time for one more 

question? I see that there is no other remaining members. 

Senator INHOFE. You don’t have time, but go ahead. 

Senator SULLIVAN. I just want to followup just on the issue of 

consultation, where one of my frustrations, and I had been the attorney general of the State of Alaska and the commissioner of natVerDate Aug 31 2005 10:26 Oct 26, 2016 Jkt 000000 PO 00000 Frm 00215 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20940.TXT VERN
212 

ural resources, but we often found that the consultation either 

didn’t exist or was very cursory. And yet in every statute that we 

are talking about, the Clean Air Act, the Clean Water Act, every 

EPA-focused statute, the consultation requirement is not optional; 

it is mandatory. 

So I would just like any of the witnesses here to, if you have a 

sense on the consultation more as just a box check when you indeed get it, or do they try to actually listen and implement your 

concerns? Because one of the things that we have seen is a onesize-fits-all rule form Washington rarely works, whether it is Alaska or Vermont or Arkansas or South Dakota. So I am wondering 

about your experience with mandatory consultation, that is what it 

is in all the laws, it is mandatory. Do you feel that you are getting 

that enough? 

Maybe I will start with Mr. Pirner. 

Mr. PIRNER. Senator, I think it is more of they check the box, in 

my opinion. A lot of these proposals that come out, there is a public 

comment period. We comment along with everybody else, but just 

in the example of the Clean Power Plan they received, what, 1.6 

million comments or something. So if you are talking a State to 

Federal agency consultation process, I wouldn’t consider submitting 

one set of comments, which we submitted under the Governor’s signature, go as being a State to Federal agency consultation. 

Senator SULLIVAN. Anyone else on the consultation issue? 

Mr. MIRZAKHALILI. Senator, if I may. I co-chair a committee, National Association of Clean Air Agencies, and I can tell you that 

EPA is present on every call they attended. And that is not just 

with my committee; with other committees where the organization 

has a presence of EPA staff. They bring their thinkings to us, they 

share early drafts, they explain. So that may be a good place to 

plug in a conversation with EPA. 

Could they do better? In some instances, yes. We hear there is 

friction and tension between guidance and flexibility. You said you 

wanted the rules. I understand. You said you want to go to rulemaking. Rulemakings are rigid. The guidance gives you a little 

more flexibility. So we have to be careful what we ask for of EPA 

and make sure they can produce what it is that we want. So the 

rules set the minimum standards; guidance provides some technical assistance; and the rest of it is our responsibility to collaborate and cooperate and get done. 

Senator SULLIVAN. Thank you. 

Ms. MARKOWITZ. I would add to that I am on the executive committee of the Environmental Council of the States, and EPA is at 

every meeting and comes on to monthly calls if we ask them to. 

So as described by Ali, they have made themselves remarkably 

available to us. In our region, as we are developing our performance partnership agreement, they also, in Region 1 at least, are offering tremendous flexibility in terms of how we are going to be 

managing our obligation under our delegated programs. 

And, of course, they could always do better. One of the places, 

there is a difference between listening and agreeing, so I think they 

do a great job listening. They don’t always agree. And that is, really, in part, some of the frustrations that you sometimes hear from 

my colleagues. They tend, in this Administration, we tend to agree 

213 

with them more, so we are not dissatisfied with the level of attention that we are getting from them in this dialog. 

Senator SULLIVAN. Mr. Huffman, do you have any thoughts on 

that? 

Senator INHOFE. Senator Sullivan, we will have to chop it off 

here. You are 5 minutes over. 

Senator SULLIVAN. OK, Mr. Chairman. Thanks. There is no one 

else here, so I was just wondering. 

Senator INHOFE. OK. I mean, Senator Boxer wants to have the 

extra time that you have used, and that is fine. 

Senator SULLIVAN. I mean usually, most committees, if there is 

no one else here and we still have questions, it doesn’t seem to be 

a big ask to continue to ask questions. 

I will submit questions for the record. 

Senator INHOFE. All right, that is fine. Thank you. 

Senator Boxer, take whatever time. 

Senator BOXER. That is very sweet of you. 

Senator INHOFE. Thank you. 

Senator BOXER. I just want to talk about the courts, because my 

colleague, Senator Sullivan raised the issue, so we looked it up. 

EPA has won 70 percent of the cases before the Supreme Court. 

As a matter of fact, on the 30 percent that they lost, sometimes 

they lost because they were not doing enough. And we can send 

you the memo on that, because I think that is important. 

I also think it is important to reiterate a fact clearly that should 

be in evidence. This is one Nation under God, indivisible, with liberty and justice for all. We know that. So to think that the Federal 

Government would not be an important partner to the States is 

wrong. 

Now, I know some of you say it is fine for them to be a partner, 

but I want to pick up on what Mr. Pirner said, because it is very 

clear. This has been a great panel, by the way. All of you have been 

so articulate and it has been very interesting here. 

But, Mr. Pirner, you said, look, in the 1970’s we had terrible air 

pollution and it is understandable, it made sense to cut the pollution. And now you said things are so much better EPA is going too 

far. I mean, that is essentially what you said. And I have to give 

you some facts that I am going to put in the record, with the Chairman’s agreement. And this is important. 

Eleven million Americans have COPD, chronic obstructive pulmonary disease. Eleven million. 22.6 million Americans have asthma, including 6.1 million children. And there are 1.68 million estimated new cases of cancer in 2016. So to sit there and say that 

there is not work to do it seems to me strange. And you are in such 

an important position to help those people. 

Now, maybe some of them live in your State, some of them live 

in a neighboring State, and to say that you have a great relationship with a State and they will be fine is just not a fact in evidence. 

Ms. Keogh, you are here, you are giving testimony to this Committee, and it has to be truthful, and I know you were. So over the 

next week can you please send me the name of who told you, the 

name of the person who said we are ordering you to do this because 

we can? I want the name of that person because whoever said that 

214 

was absolutely wrong, and I don’t want people to just throw it out. 

Who did it? If you can put that in writing confidentially, I would 

greatly appreciate it, because I want to find out why they would 

say such a thing. 

I just think overall this panel has really proved the point. 

There is another fact on coal ash which you complained about, 

Mr. Pirner. Right now there are 331 hazardous coal ash ponds that 

could, if not improved, lead to a loss of life. So, you know, maybe 

you can sit there and say what you say, but when I swear to protect the people, I am going to do it; and this is the Environment 

Committee, this isn’t the pollution committee. 

And Senator Inhofe and I have a different view of the role of the 

Federal Government. I think it is all very fair, but at the end of 

the day this is one Nation, so setting minimum standards, making 

sure our people are protected, whether they are in my State or a 

State adjacent where the pollution from my State may actually go 

to another State, I have an obligation, even if it is in my State. 

And, by the way, we have 40 million people and a lot of pollution, 

a lot of industry. We try our best. We do have forest fires; we have 

natural disasters. So we have an obligation, and my State doesn’t 

complain about it, they just cleanup their act. And it is just a function of what is right, what is morally right. And you can measure 

the progress as you look at the health of the people. 

This is not some conversation about the meaning of the Twelfth 

Amendment, the Tenth Amendment, the First Amendment; it is 

really about the health of our people. We should do everything we 

can to protect their health, and as long as I am vertical that is 

what I am going to be working on. 

Thank you. 

Senator INHOFE. Well, thank you, Senator Boxer. Anything else? 

Senator BOXER. No. 

Senator INHOFE. All right. 

Let me just make a final comment here that it seems like every 

time we have a hearing it ends up to be a global warming hearing, 

or at least that is injected into it. Let me just share my personal 

thought that climate is always changing. I have said this on the 

Senate floor. I can’t remember, I wasn’t alive in 1895, but in 1895 

we went through a period where they first started using another 

ice age. In 1918 was the first time they used global warming. And 

then, of course, that changed again in 1945 when that was another 

ice age they were talking about. And then, of course, that changed 

in 1975. So about every 30 years this happens, it has always been 

changing. 

The interesting thing is in 1945 that was the year they had the 

highest CO2 emissions in the history of this Country, recorded history, and that precipitated not a warming period, but a cooling period that sustained for another 30 years. So I just think that has 

to be said. I know that the public understands that now. I can remember back when I was the bad guy and we were talking about 

this back in 2000. At that time it was considered to be the No. 1 

concern; not it is 15 out of 15 according to Gallup’s March poll. So 

people have caught on and they are going to enjoy continuing to 

bring that up. 

215 

Last thing is we all want a clean environment, and when you 

mention the Clean Air Act and all these other acts, we were all for 

them, and I was back then. In fact, I was an initial sponsor of the 

Clean Air Act. 

So, with that, we will go ahead and adjourn. I would like to have 

one short quick word with Mr. Huffman and Ms. Markowitz, if I 

could. Thank you. 

[Whereupon, at 11:27 a.m. the committee was adjourned.] 

Æ