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22–167 PDF 2016

S. HRG. 114–393 

OVERSIGHT OF U.S. ENVIRONMENTAL 

PROTECTION AGENCY ENFORCEMENT 

AND COMPLIANCE PROGRAMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, WASTE 

MANAGEMENT, AND REGULATORY OVERSIGHT 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JUNE 29, 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 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY

OVERSIGHT

MIKE ROUNDS, South Dakota Chairman 

DAVID VITTER, Louisiana 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

DAN SULLIVAN, Alaska 

JAMES M. INHOFE, Oklahoma (ex officio) 

EDWARD J. MARKEY, Massachusetts 

THOMAS R. CARPER, Delaware 

JEFF MERKLEY, Oregon 

CORY A. BOOKER, New Jersey 

BARBARA BOXER, California(ex officio) 

(III) 

C O N T E N T S 

Page 

JUNE 29, 2016 

OPENING STATEMENTS 

Rounds, Hon. Mike., U.S. Senator from the State of South Dakota ................... 1 

Markey, Hon. Edward J., U.S. Senator from the State of Massachusetts .......... 3 

WITNESSES 

Giles, Cynthia, Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency .................................. 8 

Prepared statement .......................................................................................... 10 

Responses to additional questions from Senator Inhofe ............................... 16 

Response to an additional question from Senator Rounds ............................ 38 

(1) 

OVERSIGHT OF U.S. ENVIRONMENTAL PROTECTION AGENCY ENFORCEMENT AND 

COMPLIANCE PROGRAMS 

WEDNESDAY, JUNE 29, 2016 

U.S. SENATE 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND

REGULATORY OVERSIGHT

Washington, DC. 

The committee met, pursuant to notice, at 2:30 p.m. in room 406, 

Dirksen Senate Office Building, Hon. Mike Rounds (chairman of 

the subcommittee) presiding. 

Present: Senators Rounds, Markey, Crapo, Sullivan, and Inhofe. 

OPENING STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA 

Senator ROUNDS. Good afternoon, everyone. The Environment 

and Public Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight is meeting today to conduct a 

hearing entitled Oversight of U.S. Environmental Protection Agency Enforcement and Compliance Programs. 

Today we will hear testimony from Cynthia Giles, the Assistant 

Administrator of the Office of Enforcement and Compliance Assurance at the U.S. Environmental Protection Agency. We will be conducting oversight on the EPA’s civil, criminal enforcement and 

compliance programs, and explore suggestions for improvement. 

Federal laws such as the Clean Air Act, Clean Water Act, and 

the Resource Conservation Recovery Act give the EPA the authority to issue penalties and pursue criminal and civil actions in order 

to enforcement requirements of environmental laws. The EPA Office of Enforcement and Compliance Assurance, OECA, administers 

EPA’s environmental enforcement and compliance programs, and 

provides compliance assistance to the EPA’s regional offices, States, 

businesses, local governments, and tribes. 

However, in recent years, rather than providing compliance assistance, the EPA has dictated compliance by engaging in heavyhanded environmental enforcement. We have heard multiple reports of the EPA inspecting facilities and leaving the company 

waiting years for the results, imposing huge fines on companies 

that self-reported and corrected simple administrative errors, and 

a lack of transparency regarding environmental violations. 

Rather than assisting with compliance, the EPA chooses to simply impose aggressive and, at times, unreasonable penalties using 

2 

questionable enforcement methods. For example, in 2015, the EPA 

threatened Andy Johnson, a Wyoming farmer and father of four, 

with $16 million in fines, alleging that he had violated the Clean 

Water Act by constructing a stock pond on his property. It took the 

Johnson family over a year to settle a lawsuit with the EPA. 

In 2012, the EPA was criticized for using aerial surveillance over 

farms in Iowa and Nebraska to investigate Clean Water Act violations rather than speaking with landowners personally about the 

alleged violations. Most alarmingly, in 2010, an EPA regional administrator was quoted as saying he wanted to crucify oil and gas 

companies like Roman conquerors, with the goal of making them 

easy to manage for the next few years. 

Tactics and statements like this by EPA officials, who are supposed to be working collaboratively with stakeholders, are worrisome and lead to serious questions regarding the integrity of the 

EPA enforcement process. Further, the EPA has expanded their 

use of Section 114 information requests under the Clean Air Act. 

Section 114 letters allow the EPA to collect information from covered entities to use in developing our regulation or as part of an 

investigation for an enforcement action. The EPA has increasingly 

issued Section 114 letters to companies who are not the target of 

an enforcement action, but merely may have information relevant 

to a separate investigation of which they are not a part. 

These information requests are extremely burdensome, can cost 

companies hundreds of thousands of dollars, and, despite the fact 

that the company receiving the request is not involved in the enforcement action, they can still be subject to criminal and civil penalties if they do not accurately comply with these requests in a 

timely fashion. 

Additionally, the EPA has begun the implementation of their 

Next Generation Compliance Initiative, which, among other things, 

would outsource EPA enforcement responsibilities to third-party 

auditors who would take the place of actual EPA personnel in enforcing environmental laws. 

We all want clean air and clean water. Compliance with environmental law is a requirement and there should be repercussions for 

breaking those laws. However, when an agency unfairly targets 

certain sectors of the economy or imposes large fines on small companies who take the time to voluntarily self-report, or whose only 

recourse is to pay the fine because they do not have the resources 

to engage in a time-consuming lawsuit, it runs contrary to the true 

intent of the EPA’s enforcement program. 

The EPA should strive to be a resource that assists with environmental compliance rather than an agency that simply uses fines 

and scare tactics to dictate compliance. When the EPA works in a 

transparent, cooperative fashion with regulated communities, taxpayer dollars will be better managed, environmental laws will be 

more effective, and our environment will be cleaner for it. 

I would like to thank our witness for being with us today, and 

I look forward to hearing your testimony. 

Now I would also like to recognize my friend, Senator Markey, 

for a 5-minute opening statement. 

But let me just say this before Senator Markey steps in. I have 

appreciated Senator Markey’s work on the Committee and I have 

3 

appreciated the fact that Republicans and Democrats sometimes 

have differing points of view on different issues. But I think the 

one thing that we both agreed on is that we want an efficient and 

effective delivery of services, and we want a sense of accountability 

from the agencies that we are here to provide oversight to. So I just 

want to say that I have appreciated Senator Markey’s interest in 

this and your willingness to work with us in going through this series of oversight committee hearings. 

Senator MARKEY. 

OPENING STATEMENT OF HON. EDWARD J MARKEY, 

U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

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

I, last week, were at the White House sitting there while President 

Obama signed a bill which had equal numbers of Democrats and 

Republicans working together, the toxic chemical update of a law 

that is a 1975 law. Last night on the Senate floor we passed out 

the brownfields law; both of them coming out of this Committee, 

both of them bipartisan, working together to try to ensure that we 

have commonsense laws that are on the books. And I want to 

thank you, as a result, for scheduling today’s hearing. 

I would also like to extend my appreciation to Cynthia Giles for 

testifying here today. The Commonwealth of Massachusetts benefited from your expertise leading the water protection program at 

the Massachusetts Department of Environmental Protection. We 

thank you for that work. You have a similar job now to make sure 

that these laws are enforced, and the EPA is charged with implementing and enforcing the environmental laws to protect the air we 

breathe, the water we drink, the use for recreation and the land 

we use to grow our food. 

To ensure its mission is fulfilled, the EPA must have an enforcement arm with effective tools to enhance compliance with the law. 

It must be empowered to deter violations that can endanger health 

and the environment. 

The Agency’s commitment to environmental protection can be 

seen on the front page of yesterday’s New York Times, when Volkswagen agreed to pay up to $14.7 billion to settle allegations of 

cheating on air emissions tests and deceiving customers. This is an 

excellent example of the EPA acting as a tough cop on the environmental beat, working with State governments to enforce the law 

and protect public health. 

EPA enforcement actions have led to increased corporate compliance and environmental cleanup and mitigation of projects. EPA 

actions for non-compliance with environmental law have led to 

nearly $2 billion from corporate owners to clean up Superfund 

sites, $7 billion in investments by companies to control pollution 

and cleanup contaminated sites, $4 billion in court-ordered environmental projects resulting from criminal prosecutions. 

Unfortunately, the EPA’s ability to continue the pace of its compliance activities is strained by diminished resources. The EPA’s 

enforcement budget has declined by nearly 9 percent from 2010 to 

2016, and its enforcement and compliance force has decreased by 

17 percent during that same time period. Investing in EPA enforceVerDate Aug 31 2005 11:25 Oct 21, 2016 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\22167.TXT VERN
4 

ment activities and providing the Agency with necessary funding is 

critical to its success. 

We must also bring EPA’s compliance enforcement activities into 

the 21st century. The EPA’s Next Generation Compliance Initiative 

supports the advancement of more effective and efficient ways of 

controlling pollution by embracing advanced monitoring technology, 

electronic reporting, and increased transparency. Using an advanced monitoring system like infrared video cameras to actually 

see dangerous emissions, reducing the paper burden on both industry and the Agency, and increased public awareness of enforcement 

activities are all benefits of this new 21st century approach. 

Whether it is Love Canal, VW, Flint, Michigan, or Woburn, Massachusetts, where, in 1979, a woman, Ann Anderson, brought her 

young son, Jimmy, into my office and asked me if I would help her. 

She had done an epidemiological study of her own neighborhood 

and found that not only Jimmy, but other children in the neighborhood, had leukemia, had cancers. She had done the work and she 

had a city that was turning a deaf ear to her. She wasn’t receiving 

the right kind of support from the State. So Senator Kennedy and 

I went to the EPA to say, can you come in, can you begin to work 

on those issues. 

So it has to be a place where people can turn in order to make 

sure that their families are in fact protected. 

Now, over the years, of course, there have been many who have 

said, well, EPA just is not an agency which is needed to do this 

job. And I am reminded back in 1981 there was a guy whose name 

was Hernandez. He wrote a book after he had been considered and 

then rejected for the position of the head of the EPA, and he said 

he remembered the interview which he had in February 1981 to 

get the job as the head of the EPA, and in the meeting he was 

asked whether or not he would be willing to bring the EPA to its 

knees; and he said he did not know how to respond, but it was with 

the greatest relief when he learned that somebody else had been 

given the job, Ann Burford, Ann Gorsuch. 

Unfortunately, there is still this dynamic tension which exists between those that want to make it effective and work, and those 

that just want to bring it to its knees, and it is that balance that 

we have to strike here in order to make sure that we have an agency that is on the side of ordinary families, trying to protect their 

families from pollution in all of its forms. 

So I thank you, Mr. Chairman, for conducting this hearing and 

I am looking forward to hearing from the witness. 

Senator INHOFE. It is not appropriate to give an opening statement, but I do have a brilliant one I want to make a part of the 

record. 

Senator ROUNDS. Without objection. 

[The prepared statement of Senator Inhofe follows:] 

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Senator INHOFE. Our witness joining us today is Cynthia Giles, 

Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency. Ms. Giles has 

served as Assistant Administrator of OECA since May 12th, 2009. 

That was when she was confirmed by the Senate by a voice vote 

for the position. 

She previously served as the Director of the Conservation Law 

Foundation’s Advocacy Center in Rhode Island. Earlier in her career she served as Assistant United States Attorney in Philadelphia, head of the water protection program for the Commonwealth 

of Massachusetts, and the Director of Enforcement Coordination for 

EPA Region 3. 

We will now turn to our witness, Assistant Administrator Cynthia Giles, for her opening statement of approximately 5 minutes. 

Assistant Administrator Giles, you may begin. 

STATEMENT OF CYNTHIA GILES, ASSISTANT ADMINISTRATOR, 

OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Ms. GILES. Thank you, Mr. Chairman and Ranking Member Markey and members of the Subcommittee. I am Cynthia Giles, Assistant Administrator for the Office of Enforcement and Compliance 

Assurance, and I want to thank you for the opportunity to testify 

today about how EPA meets the challenge of ensuring consistent 

implementation and enforcement of Federal environmental laws 

and regulations. 

The mission of EPA’s enforcement and compliance program is to 

protect both human health and the environment by ensuring compliance with environmental laws. Most of these laws are built 

around important ideas of federalism, where States and the Federal Government have important, complementary roles in protecting public health and the environment. 

EPA is proud of the environmental progress this Country has 

made over the last several decades, due in large part to the combined efforts of tribal, State, and Federal Governments. During the 

more than 7 years that I have been in this position, I have learned 

that EPA and our partners share a strong commitment to a clean 

environment, and also to ensuring that there is a level playing field 

for companies that play by the rules. 

EPA is sensitive to the need for consistency and fairness, as well 

as flexibility to adapt to local issues. The Agency has developed innovative tools to help the regulated community, particularly small 

businesses, understand and comply with environmental requirements. 

EPA prepares small entity compliance guides when a rule may 

have significant economic impact on small entities. These guides 

explain in plain English the action that a small entity must take 

to comply. EPA also operates web-based Compliance Assistance 

Centers that received over 2.5 million visitors last year, and we 

maintain topic-specific hotlines for responding to requests. 

In EPA’s civil compliance program, we work closely with our 

State, local, and tribal partners to monitor compliance and, where 

significant violations are found and Federal enforcement is appropriate, work with the regulated entity to remedy the violation. 

9 

Most cases brought by EPA are resolved through a mutually agreeable settlement. Judicial cases are often brought jointly by both 

EPA and States. 

EPA also works with our partners to implement an effective 

cleanup enforcement program by engaging responsible parties to 

perform cite investigations and cleanups. Encouraging responsible 

parties to enter into cooperative cleanup settlements has reduced 

the need for litigation, cleaned up thousands of communities, and 

saved the American taxpayer billions of dollars in cleanup expenses. 

The Agency also undertakes criminal investigation and works 

with DOJ to prosecute the most egregious violators, while working 

closely with local law enforcement partners. States often take the 

lead on prosecuting crimes that endanger public health and damage the environment. 

EPA is currently modernizing our enforcement program with the 

Next Generation Compliance Initiative. Next Gen is based on the 

principle that today’s environmental challenges require a modern 

approach to compliance, using new information tools and approaches while strengthening enforcement. Better pollution monitoring and reporting helps to identify problems before they become 

really serious, helping save time and money for the regulated entities and for regulators at the tribal, State, and Federal levels. An 

example is our move toward electronic reporting. Making use of 

these kinds of modern information technology saves money for 

businesses, saves times for States, and increases transparency 

while improving accuracy. 

Over the last four decades, EPA, working with our State, local, 

and tribal partners, has made tremendous progress toward achieving cleaner air, water, and land for our Nation. A strong enforcement and compliance program has helped to make this possible. 

We will continue to work with our partners to take advantage of 

innovations and make smart choices about priorities, ensuring that 

the public health comes first. We know that achieving this goal requires consistency, a level playing field, and flexibility that acknowledges and allows for the diversity in our Nation’s environmental, economic, and demographic conditions. 

Thank you for the opportunity to testify, and I would be happy 

to answer any questions. 

[The prepared statement of Ms. Giles follows:] 

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Senator ROUNDS. Thank you for your testimony. 

Senators will now have 5 minutes each for questions. I will 

begin. 

I appreciated your comments with regard to the cooperative approach with States, and specifically I would like to focus on Section 

114. The EPA has increasingly issued requests for information 

from regulated entities under the Clean Air Act Section 114. These 

requests sometimes inform future regulatory actions and, in other 

cases, lead to enforcement action. 

Despite the inherent principle of cooperative federalism in the 

Clean Air Act, the EPA Headquarters submits these requests without including its State partners, who are most familiar with the 

regulated entities. Do you think this practice is consistent with the 

principle of cooperative federalism in the Clean Air Act, and is 

there any reason not to include State regulators on such correspondence, and would you consider including these State regulators on such correspondence moving forward? 

Ms. GILES. Thank you, Senator. Thank you for that question. As 

you point out, Section 114 is the authority that Congress gave to 

EPA to collect information to look for potential violations, so we 

use it for that purpose. I am not aware of the increasing use that 

you reference, but we do, and have, consistently used that authority to collect information about potential violations, and we also do 

routinely share information with States about what we know about 

violations or issues of concern, and they, likewise, share information they have with us. 

Senator ROUNDS. It is interesting that you bring up the fact that 

there is a concern as to whether or not there actually is an increasing use of it, and I am just wondering who is accountable for keeping the records of who does receive these letters and the purpose 

of the requests. 

Ms. GILES. We use 114 authorities when it is appropriate to review specific concerns that we may have about compliance. I am 

not aware that we separately track them, but we are careful to use 

them just in those instances where we have a reason to believe 

that there is a concern that requires attention. 

Senator ROUNDS. Would there be any reason why we shouldn’t 

be able to keep track of the number of 114 requests that are made 

and their outcomes? Seems to me to be a reasonable metric to keep. 

Ms. GILES. Well, we do track, of course, the cases that we bring, 

and Clean Air cases very frequently are based on information we 

gain from 114 letters. 

Senator ROUNDS. Do you think that there is someone that keeps 

track of the number of 114s? I would just ask for the record if you 

don’t know if there is, could we get you to followup with the Committee and find out whether or not there is someone responsible for 

keeping track of the 114s? And, if not, is there any reason that you 

could think of why we shouldn’t be keeping track of the number of 

inquiries made to the 114 process? 

Ms. GILES. I am not specifically aware of a separate record that 

is kept, but I would say each enforcement team and regional office 

is responsible for ensuring the appropriate use of Section 114 letters. I would be happy to look into that further and get back to you. 

40 

Senator ROUNDS. It would be very interesting to find out the 

number of 114s. As you say, if there is a perception out there that 

the 114s have increased, and you are not sure if they have, it 

would be a fact one way or another that would be useful to have 

in front of us for these purposes. Fair enough? 

Ms. GILES. I will look into that and get back to you, Senator. 

Senator ROUNDS. OK, thank you. 

How does the EPA justify the use of 114 letters to require operators to require a lengthy and rather expensive design evaluation 

that are not expressly required by current regulations? Isn’t this a 

backdoor way of requiring the industry to change its operations 

without a transparent public rulemaking process of notice and comment? 

Ms. GILES. Thank you, Senator. The 114 authority does allow 

EPA to ask facilities to collect information about emissions or other 

relevant information to determine if there is compliance. It is not 

for the purpose of rulemaking; it is for the purpose of determining 

if there is a pollution problem that requires enforcement attention. 

Senator ROUNDS. Thank you. 

Senator Markey. 

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

Over the last 6 years your office has seen a 9 percent decrease 

in funding and a 17 percent reduction in your work force. Your responsibilities have not decreased over the last 6 years; you still 

have the same statutory and regulatory responsibilities. So you 

have been really asked to do more with a lot less over the last 6 

years, is that correct? 

Ms. GILES. Senator, that is certainly correct. We have, along with 

the rest of the Agency, struggled with declining budgets. 

Senator MARKEY. And how is that working out? 

Ms. GILES. Well, we have made every effort to innovate, as both 

of you mentioned in your opening remarks, to innovate to make 

sure that we are making use of new technologies to find the most 

serious pollution problems, and we direct our enforcement attention to the most serious situations. 

Senator MARKEY. Well, let me ask this. A report released this 

week by the National Resources Defense Council states, ‘‘At State 

and Federal levels, resources for the enforcement of the Safe Drinking Water Act have been decimated by poor funding and bureaucratic indifference.’’ Overall, do you agree with the NRDC recommendations to strengthen drinking water enforcement and address environmental injustices? 

Ms. GILES. We certainly agree that drinking water compliance 

and enforcement is at the very top of the list for EPA’s priorities, 

and we know that the States feel the same way about it, and we 

are heightening our attention to this important topic and appreciate the input of organizations like NRDC drawing more attention 

to it. 

Senator MARKEY. Well, it turns out that, in 2015, enforcement 

actions have been taken on only 11 percent of the 8,000 violations 

of regulations designed to ensure that our drinking water is free 

of dangerous levels of lead and copper. Might the cuts in your 

budget and work force be partially responsible for the limited enforcement actions? 

41 

Ms. GILES. Senator, I am not really sure where NRDC got their 

numbers. I can tell you that, in 2015, which is, I think, the year 

that they were focused on in their report, there were about 6,000 

enforcement actions for drinking water taken across the Country, 

primarily by States, to address concerns about drinking water compliance. 

Senator MARKEY. How about the EPA? 

Ms. GILES. EPA takes a much smaller number because we have 

an oversight role, primarily, with respect to drinking water. I think 

we had somewhere over 100 enforcement actions for drinking 

water. 

Senator MARKEY. So what additional actions are you taking at 

the EPA in order to oversee this Flint mess at large across the 

whole Country, community after community, and are reporting 

that they have the same problem? 

Ms. GILES. Well, specifically with respect to Flint, as you mentioned, EPA did issue an enforcement order back in January, and 

we are working closely weekly, daily with the city of Flint and the 

State of Michigan to return that system to acceptable condition. I 

am pleased to say we are making good progress, but we are going 

to stay at it until we make sure that system is in good shape. 

Senator MARKEY. So, when you look at Flint, you are looking at 

a disadvantaged community. They obviously need a lot of help in 

order to make sure that these issues get resolved. It is not always 

a disadvantaged community. Woburn, Massachusetts was a good 

example of the community that had just been ravaged by industries, Monsanto, W.R. Grace and others, just using the land and 

the water as a dumping ground for TCE. By the way, under TSCA, 

the EPA just might be able to ban TCE in the years ahead, so that 

is about a year wait, but hopefully TSCA will make that possible. 

So, can you talk a little bit about how disadvantaged communities need a little bit more help from the Federal Government is 

they are going got be able to deal with these environmental issues 

that endanger their children? 

Ms. GILES. Senator, thank you. We totally agree that the overburdened communities in America require our attention and they 

need to know we have their backs, so that is what our EJ 2020 

agenda that is out for public comment now is designed to accomplish, to make sure that we are focused in rulemaking, permitting, 

enforcement, cleanup, and in our science on addressing the questions that these communities struggle with. 

Senator MARKEY. I just want to say, Mr. Chairman, through you 

to Chairman Inhofe, that I actually called Ann Anderson last week 

to tell her that we had overhauled TSCA and that this chemical 

which was the principal culprit in giving her son leukemia, and 

other children in that neighborhood, was now going to be potentially regulated and potentially banned under this new law. 

And she obviously, 40 years later, because of the incredible courage which she showed and resourcefulness, the Government had 

failed her, she had to do it by herself to do this epidemiological 

study of her own neighborhood. Ultimately Superfund got created 

because of her story, and that ultimately became a movie called A 

Civil Action, a famous book called A Civil Action. But that plus 

Love Canal kind of led to Superfund being passed, and now on the 

42 

Superfund site out there we have a lot of industrial development, 

but we also have the Jimmy Anderson, named after her son, Transportation Center. 

So that is a good example of where public sector investment or 

oversight then led to economic development that now serves the 

long-term best interests of the community of Woburn. So there is 

a good enforcement action that turned into something that was economically much more beneficial for that community. 

Thank you, Mr. Chairman. 

Senator ROUNDS. Thank you. 

Senator Inhofe, in this case Chairman Inhofe, I just would like 

to add that Senator Markey earlier had indicated the success that 

you clearly had the responsibility for with regard to the creation 

and the upgrade of TSCA, and also your success the other evening 

in the brownfields; and I would also like to add my congratulations 

to you for this bipartisan effort as well. 

Senator INHOFE. Well, this was a huge joint effort, right? 

Senator MARKEY. Thank you for saying that, because I was praising you behind your back. 

Senator INHOFE. Oh. 

Senator MARKEY. On brownfields and TSCA. 

Senator INHOFE. Well, I certainly forgive you for that. 

[Laughter.] 

Senator INHOFE. Let me get back, Ms. Giles, to something the 

Chairman was talking about on the 114s, because we have heard 

from people that the oil and gas companies, that these are used to 

pressure them to curb and monitor methane emissions before the 

EPA has even issued a methane rule for the industry. Now, are you 

contending that these are not enforcement letters, but they are, I 

think you said, informational letters? 

Ms. GILES. Thank you, Senator Inhofe. Yes, 114 letters are for 

the purpose of collecting information, they are not enforcement actions. 

Senator INHOFE. So would you confirm that they are not targeting methane, let’s say, in future consent decrees? 

Ms. GILES. I am not aware of the specific matter that you are referring to, but Section 114, that section of the statute, does give 

EPA the authority to ask companies for information about pollution 

and emissions as we are looking into the potential violations that 

may be occurring. 

Senator INHOFE. We all talked about and made our own comments about what happened in Paris and the President coming up 

with a commitment that he would be reducing CO2 emissions by 

between 26 and 28 percent by 2025, and then we made an effort 

through every group we could find, including the EPA, to determine how he is going to do that and we haven’t been able to find 

anyone who has any idea. 

In fact, I don’t think it can be done. I don’t think he does either. 

But it appears that your office stepped up enforcement of VOC 

emission requirements against the oil and gas sector, and the 

chairman commented, as a backdoor effort for the EPA to cut 

greenhouse gas emissions. 

Now, the question I would ask you is have you been pressured 

or do you have any kind of a mandate to reduce greenhouse gas 

43 

emissions through enforcement against utilities and the oil and gas 

industry to help the President meet these climate commitments? 

Has that happened? 

Ms. GILES. No, it hasn’t. Senator, I think what you may be referring to is some enforcement work that EPA has done with respect 

to VOC emissions, as you mentioned, from the oil and gas sector, 

which is with respect to existing laws that have long been in effect, 

and deal with pollution issues in some communities that are quite 

significant in the formation of ozone as a result of some of these 

industries. 

Senator INHOFE. In a broader perspective on your regulations 

that you are in the process of doing, have you been talking to the 

Administration about seeing what regulations can be adjusted or 

changed or put forth that would help them meet these requirements? In other words, nobody knows how he is going to get to a 

26 percent reduction, and I am if you have had conversations with 

them saying, through the regulation, what can you get done. 

Ms. GILES. Senator, the Enforcement Office doesn’t write regulations, so I am not aware of what conversations—— 

Senator INHOFE. So you haven’t had conversations. 

Ms. GILES. I personally have not. 

Senator INHOFE. You know, it wasn’t long ago that Al 

Armendariz made the statement, when he was talking to a bunch 

of subordinates, that, you know, what we have to do to the oil and 

gas industry is the same thing that the Romans did when they 

went through Turkey; they went into various small villages, crucified the first four people, get their attention. And we actually got 

the wording that he used on that, and after that happened he was 

let go. 

What is your evaluation of a comment like that, that a man who 

is working for the EPA, making to subordinates and going after a 

particular industry? 

Ms. GILES. I would disagree with that comment in the strongest 

possible terms. I do not agree with what he said and I disavowed 

it in public at the time. 

Senator INHOFE. If that is the case, why is it you praised him for 

it when you wrote him a letter saying, I just want to say how impressed I am at the terrific work the region did in the range order, 

what specifically he was talking about at that time. Great job. 

Ms. GILES. Senator, the comment I was making to him was with 

regard to a specific enforcement action, it was not with respect to 

his comment. 

Senator INHOFE. Well, it was a terrific job, and this was right 

after he did that. 

Ms. GILES. I don’t believe it was after he said that. 

Senator INHOFE. Oh, yes it was. The date was specifically the 8th 

of December 2010. And it was the spring of 2008 that he made the 

statement. 

Ms. GILES. Thank you for refreshing my recollection. It may have 

been after he made that comment, but it was not after I knew 

about the comment that he had made. 

Senator INHOFE. Thank you, Mr. Chairman. 

Senator ROUNDS. Senator Sullivan. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

44 

Administrator Giles, good to see you. I am appreciative and I always think it is important to emphasize that everybody on this 

Committee certainly is focused on making sure we have the cleanest air and cleanest water in the Country; certainly something that 

is a big issue in my State, in Alaska, where we do have some of 

the most pristine environments and clean air. 

One of the things I have raised on the Committee a lot is my concern about legal issues where I think the EPA is not following the 

law. I think it is not just us, but it is frequent court cases. And 

it also relates to the area that you are in charge of in terms of enforcement and compliance. 

I want to talk a little bit about the summer of 2013 in Alaska. 

Are you familiar with what happened in Chicken, Alaska during 

that summer? 

Ms. GILES. Generally, yes. 

Senator SULLIVAN. So that was when I think it was seven armed 

EPA agents, rifles, body armor, several ATVs, made a raid. Anything less than calling it a raid on a plaster mining operation, of 

a bunch of Alaskans who were out plaster mining, looking for 

Clean Water Act violations. The State of Alaska did an extensive 

report on that and one of the things you talked about, working 

closely with law enforcement, they said that there was actually 

very little coordination with law enforcement when you came in, 

scared the living daylights out of a bunch of Alaskan miners looking like, you know, the U.S. Army as opposed to the EPA. 

Have you learned any lessons on coordinating better with State 

officials on something like that? The Governor’s report in Alaska 

said that there could have been a terrible tragedy, terrible accident; a bunch of EPA enforcers coming in, rapid raid. You said that 

you are focused on working closely with law enforcement. What 

have you learned from that raid? 

Ms. GILES. Senator Sullivan, thank you for the question. As you 

know, the Governor’s special council did do a review of that situation and found that the investigation was done professionally and 

courteously; and I would add not just by EPA, but—— 

Senator SULLIVAN. Oh, I don’t think so. Did you find any violation of the Clean Water Act in that investigation? 

Ms. GILES. The information that was found was turned over to 

the State and to the prosecutors for their evaluation. 

Senator SULLIVAN. The answer is no. There were no Clean Water 

Act violations in that raid that was conducted. 

How much does EPA spend on training your officials, your 

agents, in terms of high-powered military weapons and arms training? 

Let me get to just a more direct question. When EPA started out 

for the first 20 years, you did not have armed agents. Why do you 

believe you need armed agents now, when in your initial 20 years 

you didn’t have armed agents? Why do you need armed EPA agents 

now? You spend millions of dollars on training, weapons, bullets. 

Why do you need that? 

Why can’t you rely on, for example, if you go to Chicken, Alaska, 

why can’t you rely on the State troopers to work with you for cooperation and coordination, so they can go in, if you think it is dangerous? Why is EPA spending so much money on having armed 

45 

agents, when the first two decades of your Agency’s existence you 

didn’t have that? 

Ms. GILES. Senator, the reason that was sought and the reason 

that Congress decided to give that authority to EPA was because 

the mechanism that was working up to that point was not working 

now. President Reagan is the president who specifically sought that 

authority. In his signing statement he said, I am pleased to sign 

this bill into law because it contains the explicit law enforcement 

authority for the Environmental Protection Agency, which this administration actively—— 

Senator SULLIVAN. Well, my first amendment as a U.S. Senator, 

my first bill was actually to disarm the EPA, because I don’t think 

you need the weapons. I think it would force you to actually cooperate, which you didn’t in the Chicken, Alaska case, with local law 

enforcement, and to have them be in charge of any kind of weapons 

in terms of any kind of dangerous mission. I still think that the 

vast majority of Americans don’t know that we have had a dramatic increase in the arming of our Federal bureaucracy. 

I am someone who is a strong Second Amendment supporter. I 

believe in an armed citizenry, but I don’t believe in an armed bureaucracy. And I think that I am going to continue to work with 

my colleagues here to throttle back on this area of the Federal Government’s increasing power to arm Federal agents. I think the EPA 

has not shown that it needs these weapons, and I think that is 

something that the Chicken, Alaska raid in particular demonstrated. 

Let me turn to the Gold King Mine site issue. If a private company had released 3 million gallons of contaminated water into a 

river, would your office have charged them criminally or brought 

civil or criminal charges to a private company that did something 

like that? 

Ms. GILES. Senator, the law and enforcement distinguishes between the company who makes and releases pollution and the entities that are trying to respond and cleanup pollution that other 

people created. So, in the case of EPA’s action in Gold King, we 

were acting as a responder, trying to prevent releases of pollution 

that were left there by others. 

Senator SULLIVAN. The EPA Administrator told us in a Committee hearing that she would hold the EPA to a higher standard 

that a private sector company. There have been numerous instances where the EPA has actually criminally charged people who 

accidentally, not on purpose, polluted rivers with much less 

amounts of pollution. 

Why has nobody in the EPA ben held liable, been criminally 

charged? The EPA administrator told this Committee she would 

hold the EPA to a higher standard, and yet nothing has happened. 

And if a private sector company did this, it is likely that the CEO 

or some members of that company would actually be in jail right 

now. 

You have not demonstrated any commitment similar to what the 

EPA administrator said she would do, which is hold EPA to a higher standard than the private sector. How come that has not happened? 

Ms. GILES. I totally agree, Senator. 

46 

Senator SULLIVAN. You agree with what? 

Ms. GILES. I agree that EPA is responsible and that we should 

hold ourselves to the same standard or higher that we would expect from a private party. 

Senator SULLIVAN. Then why has that not happened and people 

have gone to jail for doing something less than you did? 

Ms. GILES. In the event of a response action, if somebody causes 

a spill, as part of a response action, not pollution they created, we 

generally do not assess fines or pursue them for violations as you 

are discussing here. We do that in the case of someone who creates 

the pollution and is responsible for releasing it. 

Senator SULLIVAN. Didn’t you create the pollution and release it? 

Ms. GILES. We did not. We were responsible for the release. The 

pollution was not created by EPA; we were attempting to remedy 

the pollution that was left there by someone else. 

Senator SULLIVAN. But for the EPA’s action that day, would the 

Animus River have been polluted? 

Ms. GILES. I totally agree we are responsible for that. And what 

we expect from private parties when they are in that situation, if 

they are doing a response action and they make the situation 

worse, we expect them to fix it, and that is what EPA has been attempting to do. 

Senator SULLIVAN. But no one is civilly liable or going to jail, as 

has happened in the past. 

Ms. GILES. EPA does not typically assess penalties or pursue enforcement actions other than to get response parties to clean up the 

mess that they made, and that is what EPA is taking responsibility 

for doing, which we should do. 

Senator ROUNDS. I think what we will do is just in terms of since 

there are just a few of us here, I think we are going to try to do 

one more round. We are going to limit it to 3 minutes per senator, 

and we will roll on through, and I will begin. 

I have a specific question concerning the followups on the inspections. When the EPA conducts an inspection on facility, what are 

the policies and guidelines that the EPA follows in order to keep 

in communication with the facility and report the results of the inspection in a timely fashion? If there such a thing as an average 

time that it takes to report the results of an enforcement action to 

an inspection facility, what is it? Do you keep track of that? What 

should be considered timely for a followup response? 

Ms. GILES. We do. Thank you, Senator. We certainly do attempt 

to respond and communicate in a timely way with the facilities, all 

the way from talking to them at the time when the inspector is 

there through what subsequent action may be appropriate; and I 

would say the time for that probably varies quite a bit by the extensiveness of the inspection and the seriousness of the issues 

found there. 

Senator ROUNDS. If the EPA delays reporting the results of an 

inspection to a facility, what recourse does a facility have to get a 

more timely response from the EPA? I think you probably understand the reason. You inspect a facility; there is a threat of an enforcement action, clearly, with the inspection; there is a concern 

about whether they get a clean bill of health or whether they have 

to look at defensive actions coming in the future. It seems to me 

47 

that there ought to be some kind of a timeframe in which the EPA 

should have a responsibility to at least let the organization know 

whether there is going to be an enforcement action that they are 

going to be following. 

Ms. GILES. Yes, Senator. I would agree that it is important for 

us to stay in communication with the facilities, and we do certainly 

support and encourage folks in doing that. Any facility that does 

not think that they are getting information in a timely way, we 

would certainly hope they would call us, and we would make an 

attempt to communicate with them at that point. 

Senator ROUNDS. When you do the enforcement actions, do you 

communicate with your partners, the States in this particular case? 

And at what point does the communication with the State begin, 

or is there a process that you have in place within policy that directs that communications begin once again with the State, or are 

you in communication with the States during the entire time? 

Ms. GILES. Senator, thank you. Yes, the regions have regular 

communications with their State counterparts in the different compliance programs, and that varies from weekly to monthly to quarterly, and the purpose of those is to share information, what the 

States know, what EPA knows, and to see if we can reach joint decisions about what the best way of proceeding should be. 

Senator ROUNDS. What about in cases where you have specific 

enforcement actions that at least an inspection has been done with 

a facility? Is there any way for communication with the States? 

Would the States know what is going on with the activity that you 

brought or that you may bring with a facility within their jurisdiction as well? 

Ms. GILES. I think, Senator, generally the regions do have that 

communication with States around inspections that they are doing 

and what they have found, and, likewise, States share with EPA 

information that States have about pollution problems and compliance issues and discuss the best way to approach them. 

Senator ROUNDS. Thank you. 

I will just say earlier I had requested the information concerning 

the number of 114 requests, and what I will put into my official 

request will be that you just simply look at it over a 10-year period 

of time, over the last 10 years, including the most recent data that 

you might have. And we will extend you a formal letter on that, 

OK? Thank you. 

Senator MARKEY. 

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

May I ask, Ms. Giles, if EPA’s special agents have ever been attacked or killed as they are in the line of duty in enforcing the law? 

Ms. GILES. It is unfortunately the case that EPA agents who are 

executing search warrants or arresting people for serious environmental crimes have been assaulted, and it also happens, unfortunately too frequently, that the agents find significant quantities of 

firearms in these locations. So having a sidearm is a standard piece 

of equipment for any law enforcement officer, and we do the same 

at EPA, along with, of course, the training and the requirements 

that they follow the rules. 

Senator MARKEY. And I think that is very appropriate. These are 

crimes, in many instances, that the EPA is investigating, and those 

48 

who have committed these crimes, or alleged to have committed 

these crimes, could have guns themselves. 

So to send an EPA law enforcement officer into a situation without a gun, while there could be a gun on the other side of the door, 

I think would basically differentiate an EPA enforcement officer 

from every other enforcement officer at every other level of government in the United States. And we know that the person behind 

the door could have a gun. 

We know that there is no law that if you are on a no-fly terrorist 

list that you can’t buy a gun in the Unites States. We know that 

people can buy guns in gun shows without having gone through a 

background check. We know that people can go on Instagram and 

buy an Instagun. 

So we know that we don’t have all the safeguards that are in 

place, and yet why should we say to an EPA enforcement officer, 

when there have been officers which have been attacked in the 

past, that they can’t have a gun to protect themselves? Not to use 

it in an arbitrary way, but at least to have that kind of protection, 

which I think each law enforcement officer in our Country is entitled to. 

So I just think it makes no sense to have everybody else in 

America be able to buy a gun because of all the loopholes that we 

have, and that the only one subgroup in the whole Country that 

would not have a gun would be actually a law enforcement officer 

for the EPA. It just doesn’t make any sense whatsoever, given the 

fact that they are in fact enforcing the laws of the United States 

of America. 

So I would just like to put a good word in for those EPA special 

agents who are risking their lives every time they knock on a door, 

every time they are investigating a crime. The consequences for the 

person that they are investigating could be quite severe and, as a 

result, a reaction to an EPA special agent could be something that 

is life-threatening. So I just want to put in a good word for all 

those people who are out there and work every day for us. 

Ms. GILES. Thank you, Senator. They greatly appreciate that. 

Senator MARKEY. Thank you. 

Senator ROUNDS. Senator Sullivan. 

Senator SULLIVAN. So, Administrator Giles, I want to go to another issue. I talked about the frustration of the Animus River example. I think that there is a sense, certainly in my State, of a doas-I-say-not-as-I-do approach to some of the EPA enforcement, and 

I have raised this issue a number of times in this Committee, but 

you mentioned earlier a statement by a senior EPA administrator 

that you said you immediately disavowed. 

On the eve of the EPA vs. Michigan case, where EPA Administrator Gina McCarthy was asked if she thought that the EPA was 

going to win that case in front of the Supreme Court, she said she 

was confident that the EPA would; and then she said, ‘‘But even 

if we don’t win, it was 3 years ago. Most of them,’’ meaning all the 

companies and private sector businesses, ‘‘are already in compliance. Investments have been made and we’ll catch up. We’re still 

going to get at the toxic pollutions from these facilities.’’ 

Do you see a problem with that statement and do you disavow 

that statement? I mean, I find that statement to be remarkable beVerDate Aug 31 2005 11:25 Oct 21, 2016 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\22167.TXT VERN
49 

cause, in my view, it ignores the rule of law. It is essentially saying, heads, we win, tails, we win; it doesn’t matter. Do you understand why a statement like that from the head of the EPA brings 

so much frustration to the average American who is trying to comply with the law, the average small business? 

Do you disavow that statement from the EPA Administrator and 

do you understand why—as you probably know, that statement has 

been quoted all over the Country. People were shocked when they 

heard her say that. Do you understand why people were shocked? 

First of all, do you disavow that statement by your boss? 

Ms. GILES. Senator, are you referring to the mercury toxic standard? 

Senator SULLIVAN. I am referring to the quote that the Administrator made on the eve of the EPA vs. Michigan Supreme Court decision, which the EPA lost, by the way. 

Ms. GILES. Well, from an enforcement perspective, what I can 

tell you is when rules become final, companies do make progress 

toward complying with them, and if rules are overturned many 

years later, many companies have already gone a long distance toward compliance. 

Senator SULLIVAN. But it seems to me that she has that as part 

of EPA’s strategy, kind of like it doesn’t matter whether we were 

right or wrong on the rule because the companies had to comply. 

Do you understand why that makes people frustrated? Do you want 

me to read the quote again? 

Ms. GILES. No, Senator. I understand what you are saying, your 

frustration—— 

Senator SULLIVAN. No, it is not mine. I would say it is probably 

millions of Americans who are frustrated with that approach to the 

law and regulations by the EPA. 

Ms. GILES. Well, it certainly is the case that sometimes it takes 

quite a while for judicial cases to come to conclusion, and, meanwhile, companies do comply with the laws, has been my experience. 

Senator SULLIVAN. But you don’t understand why a statement 

from the head of EPA just like I read would make a lot of Americans very frustrated with how Federal agencies, particularly yours, 

operates? You don’t get that? 

Ms. GILES. I think the Administrator is expressing her view and 

confidence about the outcome of that litigation. 

Senator SULLIVAN. No, actually, she wasn’t. I mean, I am fine 

with her saying that she thinks they are going to win; she has good 

lawyers. That is fine. That is actually a strong statement from the 

EPA Administrator. That is expected. That part of her statement 

is fine. It is the part of her statement that says, ‘‘But even if we 

don’t win, it was 3 years ago. Most of them are already in compliance. Investments have been made. We will catch up.’’ That is really, even if we lose, we win. Like there is no way to lose. 

Ms. GILES. Senator, I think it is a statement of fact that many 

companies had made investments to comply with the regulation. 

Senator SULLIVAN. Oh, I know it is a statement of fact, but I am 

just asking you do you understand why that frustrates people. Can 

you see it? Can you sympathize with the small business person 

who fought that, thought it was illegal, and then the Supreme 

Court came out and said it was illegal, and then the head of the 

50 

EPA says, hey, too bad, it was illegal, but you already had to pay 

for it; good luck. Do you see how that makes people frustrated? 

Ms. GILES. I think I am getting pretty far out of my zone in enforcement and regulations. 

Senator SULLIVAN. Well, that is enforcement. That has a lot to 

do with enforcement. 

So you don’t see how that frustrates people. No sympathy there? 

Ms. GILES. It is not a matter of not sympathy. I think it is a 

statement of fact, which is a correct statement. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

Senator ROUNDS. Thank you. 

Before we close, Senator Barrasso was not able to be here. We 

have three separate subcommittees that are all meeting at the 

same time and Senator Barrasso asked that I highlight the practical recommendations for improving the partnership between your 

office and State regulatory agencies. 

The Wyoming Department of Environmental Quality submitted, 

in October 14th of 2015, a letter to your office, of which I have a 

copy here that I will enter into the record, and I understand that 

the Wyoming DEQ has not yet received any response or outreach 

from your office on this letter. In the letter, I would like you to 

check and see what the followup was. 

If they have received it, if they have reviewed the recommendations that the Department of Environmental Quality in Wyoming 

has made, and if I could get from you a response back in writing 

once you have had a chance to find the letter and so forth. If you 

would agree to make sure that we get a copy of the response that 

you would expeditiously followup on and get back to the Wyoming 

DEQ. 

Ms. GILES. Certainly, Senator, I will look into that. 

Senator ROUNDS. Thank you. 

Senator Markey, thank you once again for this participation. 

I would like to thank Ms. Giles once again for your participation 

in our meeting today. 

I think it is important that we get in and we ask the questions 

and we get the followup and so forth, and at least share some of 

our thoughts, frustrations on both sides of the aisle in some cases 

with activity. But, nonetheless, I think it is important that we continue with these oversight hearings and, once again, I want to 

thank you for attending today. 

The record for this meeting will be open for 2 weeks, which 

brings us to Tuesday, July 13th. This hearing is adjourned. 

[Whereupon, at 3:35 p.m. the committee was adjourned.] 

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