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[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

     HEARING TO REVIEW THE IMPACT OF EPA REGULATION ON AGRICULTURE

=======================================================================

                                HEARING

                               BEFORE THE

                        COMMITTEE ON AGRICULTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 10, 2011

                               __________

                            Serial No. 112-5

          Printed for the use of the Committee on Agriculture
                         agriculture.house.gov

                                _____

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                        COMMITTEE ON AGRICULTURE

                   FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
TIMOTHY V. JOHNSON, Illinois         TIM HOLDEN, Pennsylvania
STEVE KING, Iowa                     MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas              LEONARD L. BOSWELL, Iowa
K. MICHAEL CONAWAY, Texas            JOE BACA, California
JEFF FORTENBERRY, Nebraska           DENNIS A. CARDOZA, California
JEAN SCHMIDT, Ohio                   DAVID SCOTT, Georgia
GLENN THOMPSON, Pennsylvania         HENRY CUELLAR, Texas
THOMAS J. ROONEY, Florida            JIM COSTA, California
MARLIN A. STUTZMAN, Indiana          TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio                      KURT SCHRADER, Oregon
AUSTIN SCOTT, Georgia                LARRY KISSELL, North Carolina
STEPHEN LEE FINCHER, Tennessee       WILLIAM L. OWENS, New York
SCOTT R. TIPTON, Colorado            CHELLIE PINGREE, Maine
STEVE SOUTHERLAND II, Florida        JOE COURTNEY, Connecticut
ERIC A. ``RICK'' CRAWFORD, Arkansas  PETER WELCH, Vermont
MARTHA ROBY, Alabama                 MARCIA L. FUDGE, Ohio
TIM HUELSKAMP, Kansas                GREGORIO KILILI CAMACHO SABLAN, 
SCOTT DesJARLAIS, Tennessee          Northern Mariana Islands
RENEE L. ELLMERS, North Carolina     TERRI A. SEWELL, Alabama
CHRISTOPHER P. GIBSON, New York      JAMES P. McGOVERN, Massachusetts
RANDY HULTGREN, Illinois
VICKY HARTZLER, Missouri
ROBERT T. SCHILLING, Illinois
REID J. RIBBLE, Wisconsin

                                 ______

                           Professional Staff

                      Nicole Scott, Staff Director

                     Kevin J. Kramp, Chief Counsel

                 Tamara Hinton, Communications Director

                Robert L. Larew, Minority Staff Director

                                  (ii)

                             C O N T E N T S

                              ----------                              
                                                                   Page
Lucas, Hon. Frank D., a Representative in Congress from Oklahoma, 
  opening statement..............................................     1
Peterson, Hon. Collin C., a Representative in Congress from 
  Minnesota, opening statement...................................     3
    Prepared statement...........................................     4
Schilling, Hon. Robert T., a Representative in Congress from 
  Illinois, prepared statement...................................     5
Tipton, Hon. Scott R., a Representative in Congress from 
  Colorado, prepared statement...................................     5
Walz, Hon. Timothy J., a Representative in Congress from 
  Minnesota, prepared statement..................................     6

                                Witness

Jackson, Hon. Lisa P., Administrator, U.S. Environmental 
  Protection Agency, Washington, D.C.............................     6
    Prepared statement...........................................     8
    Supplementary information....................................    59
    Letter and submitted questions...............................    65

 
     HEARING TO REVIEW THE IMPACT OF EPA REGULATION ON AGRICULTURE

                              ----------                              

                        THURSDAY, MARCH 10, 2011

                          House of Representatives,
                                  Committee on Agriculture,
                                                   Washington, D.C.
    The Committee met, pursuant to call, at 2:03 p.m., in Room 
1300, Longworth House Office Building, Hon. Frank D. Lucas 
[Chairman of the Committee] presiding.
    Members present: Representatives Lucas, Goodlatte, Johnson, 
King, Neugebauer, Conaway, Fortenberry, Schmidt, Thompson, 
Rooney, Stutzman, Gibbs, Austin Scott of Georgia, Fincher, 
Tipton, Southerland, Crawford, Huelskamp, DesJarlais, Gibson, 
Hultgren, Hartzler, Schilling, Ribble, Peterson, Holden, 
McIntyre, Boswell, Baca, Cardoza, David Scott of Georgia, 
Cuellar, Costa, Walz, Schrader, Kissell, Owens, Courtney, 
Welch, Fudge, Sablan, Sewell, and McGovern.
    Staff present: Nicole Scott, Joshua Mathis, Patricia Barr, 
John Goldberg, Josh Maxwell, Tamara Hinton, Matt Perin, John 
Konya, Mary Nowak, Debbie Smith, Nathan Fretz, Clark Ogilvie, 
Nona Darrell, Liz Friedlander, Faye Smith, and Jamie W. 
Mitchell.

 OPENING STATEMENT OF HON. FRANK D. LUCAS, A REPRESENTATIVE IN 
                     CONGRESS FROM OKLAHOMA

    The Chairman. This hearing of the Committee on Agriculture, 
To review the impact of the EPA regulation on agriculture will 
come to order.
    Good afternoon. I want to thank the Administrator for being 
here today. I know there are quite a few committees in the 
Congress that have invited you to appear before them, and I 
expect your popularity as a witness will not diminish any time 
soon, Administrator. There is a reason the top priority for 
nearly every Member of the Agriculture Committee is related to 
the regulatory agenda of the Environmental Protection Agency. 
The reason is simple: Many Members of this Committee believe 
over the last 2 years, the EPA has pursued an agenda seemingly 
absent of the consequences for rural America and production 
agriculture. Your Agency is creating regulations and policies 
that are burdensome, over-reaching, and that negatively affect 
jobs and rural economies.
    Just a few examples: EPA's proposed zero tolerance standard 
for pesticides spray drift, initiating action to stiffen the 
current regulatory standard on farm dust, which would make 
tilling a field, operating a feed lot, driving a farm vehicle 
nearly impossible, and an unprecedented re-reevaluation of the 
popular weed control product atrazine. The EPA, in 2006, 
completed a 12 year review involving 6,000 studies and 80,000 
public comments.
    Yet one of the first orders of business of the Obama 
Administration was to start over after an article appeared in 
The New York Times. In many instances, the Agency is ignoring 
Congressional intent and looks almost to be trying to bully 
Congress. Instead of simply administering the law, EPA 
challenges Congress to pass more legislation that gives it more 
authority. And if Congress does not, it will regulate anyway.
    Farmers, ranchers, foresters alike, take great pride in 
their stewardship of the land. When a family's livelihood 
depends on caring for natural resources, there is an undeniable 
economic incentive to adopt practices that enhance long-term 
viability. While it may be popular among urbanites and 
suburbanites to blame farmers and ranchers for environmental 
concerns, I think that you can acknowledge that nobody cares 
more about the environment than those who derive their 
livelihood from it.
    Rural America's economy is dependent on agriculture. The 
EPA's regulatory approach has unjustifiably increased the cost 
of doing business for America's farmers and ranchers. If the 
EPA continues down this path, the only choice for many farmers 
and ranchers will be simply to stop farming altogether.
    Now, while there are many government regulations that are 
seemingly good for the country, those regulations must be 
developed in a manner that is mindful of the science and 
economic consequences. There has been some recognition of that 
phenomena as President Obama recently issued an Executive Order 
ensuring that all regulations should have public participation 
based on science and not prohibit growth, competitiveness, and 
job creation. I look forward to finding out how the most recent 
EPA actions meet this criteria.
    And on the positive note, I would like to take this time to 
acknowledge that there are recent examples of where the EPA and 
this Committee have been able to work cooperatively in an 
effort to remove unnecessary regulatory burdens. In particular, 
I would like to commend you for the technical assistance you 
have provided the Committee in our efforts to clarify the 
regulatory authority for pesticide applications in or near the 
Waters of the United States under FIFRA and not the Clean Water 
Act.
    I would like to call your attention to our shared concerns 
regarding the seemingly dysfunctional consultation process for 
pesticides under the Endangered Species Act. This is an issue 
of great concern to the Committee and that we would hope to be 
able to be work cooperatively with the EPA to address.
    I anticipate that nearly every Member will wish to engage 
you in a discussion of a specific area of concern. It is my 
hope that this hearing will serve to open the door to a more 
cooperative working relationship with the EPA generally, and 
you specifically, Administrator.
    I want to end this opening statement with one last 
perception. Farmers and ranchers believe your Agency is 
attacking them. They believe little credit is given to them for 
all the voluntary conservation activities that they have 
engaged in for years. This Committee is going to be an advocate 
for those farmers and ranchers, and I will tell you the 
Committee will look at every proposed rule from your Agency and 
ask essentially three very basic questions: Is the EPA 
following the law? Are you making regulatory decisions based on 
sound science and data? And are you conducting adequate cost-
benefit analyses?
    I thank you again for being here. I look forward to the 
dialogue that develops today and into the future.
    With that, I turn to the Ranking Member for his opening 
statement.

OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE 
                   IN CONGRESS FROM MINNESOTA

    Mr. Peterson. Thank you, Mr. Chairman. Good afternoon. And 
thank you for holding today's hearing. And I thank the 
Administrator for being with us. I, too, am hearing a lot from 
folks back in my district that are worried about what the EPA 
is up to. I have met with producer groups from across the 
country. And EPA regulations are nearly always on the top of 
their agenda. With all due respect to the Administrator and her 
testimony regarding EPA's commitment to science, transparency, 
and the rule of law, farmers in the countryside just don't see 
that. They see an out-of-control agency that doesn't understand 
agriculture and doesn't seem to want to understand it. Today's 
hearing gives the Agency a chance to respond to this 
perspective.
    For me, I keep hearing that EPA is only doing what the 
courts are telling them to do. And I see that in some lawsuits. 
The problem is that many cases aren't litigated to the point 
where the court makes a ruling. Instead, there seems to be a 
pattern of a lawsuit followed by an EPA settlement followed by 
a policy change to comply with that settlement. This has been 
going on far too often and many times without adequate public 
disclosure. We have watched organizations use the courts to 
twist laws against American farmers and agriculture production. 
More and more we are seeing important policy decisions that 
impact agriculture arise, not out of legislative process, but 
from a litigation process where court decisions or secret 
lawsuit settlement negotiations result in poor public policy 
decisions.
    If we don't work together to find a solution, producers 
will likely continue being told how to operate by bureaucrats, 
lawyers, and judges who don't understand agriculture. And, in 
my opinion, this is not any way to make agriculture policy. 
Policy should be developed in an open, transparent manner. This 
is what we did in the 2008 Farm Bill. Unfortunately, this sue-
and-settle strategy keeps the process in the dark.
    I started looking into this, and it is almost impossible to 
find copies of settlement agreements that have been negotiated 
by the EPA and their Justice Department counterparts. These 
agreements frequently contain provisions that are critical to 
agriculture and rural communities, but they are only coming to 
light after the fact. This needs to be a transparent process. 
The agreements need to be easily accessible to the public at 
one location on the EPA's website. Any damages or costs 
included in that settlement agreement must also be readily 
available.
    I think there is an opportunity for Congress to address 
some of these problems. The challenge from the Agriculture 
Committee's perspective, though, is that we have very little 
jurisdiction over the regulatory issues that are the most 
concern to our producers. I am hopeful today that there are 
some areas such as the legislation we passed yesterday where we 
can work with other committees to straighten out some of the 
things that are going on.
    I have already told Chairman Lucas that he has my 
commitment that on this side of the aisle we will work with the 
Republicans to make sure that we do things right. American 
agriculture has traditionally led the way to recovery when we 
have been in periods of economic stress--and we are seeing that 
now. The last thing we need is a new set of regulations on the 
segment of the economy that is actually working and producing 
jobs and leading this recovery.
    There are many issues under EPA purview that could have 
direct impact on both agriculture producers and rural 
communities. And so I look forward to the Administrator 
updating us on what is and what is not happening on these 
issues.
    And, again, I want to thank the Chairman for holding 
today's hearing and hope that we will be able to continue these 
discussions--not just exploring EPA regulations, but 
regulations coming from other Federal agencies--at future 
hearings.
    I yield back.
    [The prepared statement of Mr. Peterson follows:]

  Prepared Statement of Hon. Collin C. Peterson, a Representative in 
                        Congress from Minnesota
    Good afternoon and thank you Chairman Lucas for holding today's 
hearing.
    I'm hearing a lot from the guys in my district and they are really 
worried about what the EPA is up to. I've met with producer groups from 
across the country and EPA regulations are nearly always on the top of 
their agenda.
    With all due respect to the Administrator and her testimony 
regarding EPA's commitment to science, transparency and the rule of 
law, farmers in the countryside don't see that. They see an out-of-
control agency that doesn't understand agriculture and doesn't want to 
understand. Today's hearing gives the Agency a chance to respond to 
this perspective.
    For me, I keep hearing that EPA is only doing what the courts are 
telling them to do, and I see that in some lawsuits. The problem is 
that many cases aren't litigated to the point where a court makes a 
ruling. Instead, there seems to be a pattern of a lawsuit, followed by 
an EPA settlement, resulting in policy changes to comply with the 
settlement. This has been going on far too often and many times without 
adequate public disclosure.
    We've watched organizations use the courts to twist laws against 
American farmers and agricultural production. More and more we are 
seeing important policy decisions that impact agriculture arise not 
from the legislative process, but from a litigation process where court 
decisions or secret lawsuit settlement negotiations result in poor 
policy decisions. If we don't work together to find a solution, 
producers will likely continue being told how to operate by 
bureaucrats, lawyers and judges who don't understand agriculture. This 
is not the way to make agriculture policy.
    Policy should be developed in an open and transparent manner; 
unfortunately this ``sue-and-settle'' strategy keeps the process in the 
dark. I've started looking into this and it's almost impossible to find 
copies of settlement agreements that have been negotiated by EPA and 
their Department of Justice counterparts. These agreements frequently 
contain provisions that are critical to agriculture and rural 
communities but they're only coming to light after the fact. This needs 
to be a transparent process; the agreements need to be easily 
accessible to the public at one location on EPA's website, and any 
damages or costs included in the settlement agreements must also be 
readily available.
    I think there's an opportunity for Congress to address some of 
these problems. The challenge from the Agriculture Committee's 
perspective though is that we have very little jurisdiction over the 
regulatory issues of concern to producers. I'm hopeful that there are 
some areas, such as the legislation we passed yesterday, where we can 
work with other Committees to straighten out some of the things that 
are going on. I've already told Chairman Lucas that he has my 
commitment that this side of the aisle will work with Republicans to 
make sure that we do things right.
    American agriculture has traditionally led the way to recovery 
during periods of economic stress; and we are seeing that now. The last 
thing we need is a new set of regulations on the segment of the economy 
that is leading the recovery. There are many issues under EPA's purview 
that could have a direct impact on both agriculture producers and rural 
communities. I look forward to Administrator Jackson updating us on 
what is and what is not happening on these issues.
    Again, I thank the Chairman for holding today's hearing. I hope we 
will be able to continue these discussions, not just exploring EPA 
regulations but regulations coming from other Federal agencies, at 
future hearings.

    The Chairman. The Ranking Member yields back. The chair 
would request that other Members' submit their opening 
statements for the record so that the witness may begin her 
testimony and ensure that there is ample time for all 
questions.
    [The prepared statements of Messers. Schilling, Tipton, and 
Walz follow:]

  Prepared Statement of Hon. Robert T. Schilling, a Representative in 
                         Congress from Illinois
    Chairman Lucas, Ranking Member Peterson, I want to thank you for 
holding this hearing today to review the impact of EPA regulation on 
agriculture. I'm proud to sit on the House Committee on Agriculture, 
because it provides rural America with a voice that I believe is being 
shut out more and more when it comes to the policies that affect 
America's future.
    As a small businessman I know that unnecessary and burdensome over-
regulations will not lead to job creation, but will put people out of 
business.
    It is often said that American farmers help feed a growing world 
population and are constantly being asked to produce more on less land. 
Farmers are also stewards of our land and soil. I believe that proposed 
ideas and regulations by the EPA to regulate greenhouse gases, farm 
dust, and even milk are the equivalent of asking farmers to produce 
while having both hands tied behind their back.
    In her testimony, EPA Administrator Jackson notes her ``profound 
respect'' for the contributions of farmers. I believe that actions 
speak louder than testimony. Mr. Chairman, the producers I talk to back 
in Illinois believe the guidance and decisions coming out of EPA here 
in Washington, D.C. represent an affront to middle-American and 
agriculture as a whole. These farmers are left asking what EPA will 
regulate next.
    I hope that we make some progress today. I am especially interested 
in hearing EPA's plans involving its jurisdiction under the Clean Water 
Act. It is my belief that EPA should not be give total control to 
regulate all Waters of the United States. EPA has no business 
regulating ditches, farm ponds or puddles.
    Again, I thank Chairman Lucas for holding this hearing and look 
forward to hearing more about EPA's plans for U.S. agriculture, but 
more importantly what U.S. agriculture has to say to EPA.

Robert T. Schilling,Member of Congress.
                                 ______
                                 
    Prepared Statement of Hon. Scott R. Tipton, a Representative in 
                         Congress from Colorado
    Thank you, Chairman Lucas, for convening this hearing on the impact 
of EPA regulation on agriculture. Thank you also to EPA Administrator 
Jackson for coming today to speak before us and take our questions.
    I've heard from many farmers and ranchers in Colorado and in the 
third Congressional District that I represent, and I have real concerns 
about the adverse effect that new government regulations will have on 
agricultural producers in the coming years. The EPA is releasing 
excessive, onerous rules one after another, which will increase 
production costs, open up farmers to frivolous lawsuits, and make it 
more difficult for producers to maintain their livelihoods. Further, as 
rules, are proposed and go through rulemaking processes that stretch 
out for months or even years, they create uncertainty for farmers and 
ranchers about how government regulations will impact their future 
ability to operate their businesses. This uncertainty discourages 
capital investment, which is critical for creating jobs and growing the 
economy.
    This Administration is slowly but surely creating a regulatory 
nightmare for the agricultural community. Agriculture may be a bright 
spot in our struggling economy right now, but it will not remain so if 
farmers and ranchers continue to be barraged from every direction with 
these new rules. Farmers do more with less every day, and with a 
growing world population, they face ever-increasing pressure to expand 
production. Our country depends on agriculture, and if we make it 
impossible for farmers to make a living growing foods and fibers, we 
will all be adversely affected.
    I doubt any of us here want to see American farmers pushed out of 
business by onerous government regulations, so it's important that 
continue to hold these hearings and examine the effect of regulation on 
agriculture. Thank you again, Chairman Lucas and Ms. Jackson, for 
providing us with this opportunity to discuss EPA regulations.
                                 ______
                                 
    Prepared Statement of Hon. Timothy J. Walz, a Representative in 
                        Congress from Minnesota
    Chairman Lucas, Ranking Member Peterson, thank you for calling this 
hearing to look at how our environmental protections intersect with our 
agriculture industry. This is a very important matter to consider, and 
I want to thank Administrator Lisa Jackson for taking the time today to 
testify.
    We have a commitment to feed the nation and feed the world. At the 
same time, keeping our waterways and the air we breathe free of 
pollutants so that we can drink clean water and live longer, healthier 
lives for our generation and the generations to come is just as 
important a commitment.
    These two commitments do not have to be competing. I know our 
farmers, with their children using the same pesticides, drinking the 
same water, and breathing the same air, are just as concerned about the 
environmental impacts of our farming techniques as any environmental 
advocate. However, I have heard from a number of my farmers of the 
concern they have trying to comply with many EPA regulations. They 
wonder whether it will even be feasible to comply with such regulations 
as proposed changes to coarse particulate matter (PM10) 
under the Clean Air Act or if some of these regulations would be too 
costly to a small family farm.
    What we need to look at today is how our agriculture producers can 
help and assist with keeping our environment safe while still ensuring 
that our family farming businesses remain viable and productive. I 
would like to have a constructive discussion and find ways we can work 
with EPA's current policies without scrapping its ability to keep us 
safe.

    The Chairman. With that, I would like to welcome our 
witness to the table, the Honorable Lisa Jackson, the 
Administrator, U.S. Environmental Protection Agency, 
Washington, D.C.
    Administrator Jackson, please begin whenever you are ready.

    STATEMENT OF HON. LISA P. JACKSON, ADMINISTRATOR, U.S. 
       ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.

    Ms. Jackson. Thank you. Good afternoon, Chairman Lucas. 
Good afternoon, Ranking Member Peterson. Good afternoon, 
Members of this Committee. Thank you for inviting me to 
testify. I am pleased to be here today.
    I have great respect for the oversight role of Congress and 
believe that this ongoing dialogue is central to the commitment 
I have made to the American people to conduct EPA's business 
transparently and with accountability. I also believe an 
important part of that commitment is to dispel certain myths 
about EPA's work and its impacts on agriculture. These 
mischaracterizations are more than simple distractions. They 
prevent real dialogue to address our greatest problems. And so 
today I would like to spend a few minutes addressing some of 
them directly.
    Let me begin with one simple fact that I proudly embrace, 
farmers and ranchers are an essential part of our economy. They 
give us food, fiber, and fuel. The innovators in American 
agriculture deserve great credit for significant steps they 
have taken to protect the environment while feeding millions of 
people. With that recognition in my mind, my direction at EPA 
has been to establish a consistent dialogue with the 
agriculture community, which is crucial to our work. This is 
why I would like to take a moment to address some of the 
mischaracterizations that have been at times unaddressed or 
that need to be addressed again. As I am sure you would agree, 
Mr. Chairman, facts matter. And we all have a responsibility to 
ensure that the American people have facts and the truth in 
front of them, particularly when fictions are pushed by special 
interests with an investment in the outcome. Let me give you 
just five examples.
    One, is the notion that EPA intends to regulate the 
emissions from cows, which is commonly referred to as a cow 
tax. This myth was started in 2008 by a lobbyist and quickly 
debunked by the nonpartisan independent group FactCheck.org. 
And yet it still lives on. The truth is EPA is proposing to 
reduce greenhouse gas emission in a responsible, careful 
manner, and we have initially exempted agricultural sources for 
regulations.
    Another mischaracterization is the claim that EPA is 
attempting to expand regulation of dust from farms. We have no 
plans to do so. But let me also be clear: The Clean Air Act 
passed by Congress mandates that the Agency routinely review 
the science of various pollutants, including particulate 
matter, which is directly responsible for heart attacks and 
premature deaths. EPA's independent science panel is currently 
reviewing that science, and at my direction, EPA staff is 
conducting meetings to engage with and listen to farmers and 
ranchers well before we even propose any rule.
    Another example involves spray drift. While no one supports 
pesticides wafting into our schools and communities, EPA does 
not support a no-spray drift policy. EPA has been on the record 
numerous times saying this, but the incorrect belief that EPA 
is promulgating a no-drift policy persists. We have reached out 
to the National Association of State Departments of Agriculture 
and other key stakeholders. Working with them, we have been 
able to identify critical issues, and we will continue our 
efforts to resolve them.
    Yet another mischaracterization is the false notion that 
EPA is planning on mandating Federal numeric nutrient limits on 
various states. Again, please let me be clear. EPA is not 
working on any Federal numeric nutrient limits. We will soon be 
releasing a framework memo to our regional offices that makes 
it clear that addressing nitrogen and phosphorous pollution--
which is a major problem--is best addressed by the states 
through numerous tools, including proven conservation 
practices. The case of Florida is unique. The last 
Administration made a determination that Federal numeric 
nutrient standards were necessary in Florida. That required EPA 
to develop such standards.
    And finally is the notion that EPA intends to treat spilled 
milk in the same way as spilled oil. This is simply incorrect. 
Rather, EPA has proposed and is on the verge of finalizing an 
exemption for milk and dairy containers. This exemption needed 
to be finalized because the law passed by Congress was written 
broadly enough to cover milk containers. It was our work with 
the dairy industry that prompted EPA to develop an exemption 
and make sure the standards of the law are met in a commonsense 
way. All of EPA's actions have been to exempt these containers. 
And we expect this to become final very shortly.
    Now, contrary to the myths is the reality I spoke of 
earlier. EPA is in close consultation with America's farmers 
and ranchers. We have listened to their concern and made them a 
part of the work we do. Let me give you one positive example 
that I know is very important to this Committee. When EPA 
proposed higher renewable fuels production mandates under RFS2, 
we heard, again, through extensive public comments and direct 
conversations the ethanol industry's concerns with the analysis 
of greenhouse gas impacts, which EPA was conducting under a 
requirement from Congress. We addressed their concerns and we 
now have a rule that encourages vast innovation, respects the 
needs of agricultural communities, and is expected to create 
jobs and increase farmers' incomes by $13 billion annually by 
2022.
    Mr. Chairman, everyone in this room has the same desire--to 
have safe water, air, and land for our children, and to do so 
in away that maintains our economic strength. EPA will continue 
to work with this Committee, as well as our partners in the 
states and the agricultural community to achieve the goals we 
have set together, and to serve the values we all share.
    Thank you very much.
    [The prepared statement of Ms. Jackson follows:]

    Prepared Statement of Hon. Lisa P. Jackson, Administrator, U.S. 
           Environmental Protection Agency, Washington, D.C.
    Good afternoon, Chairman Lucas, Ranking Member Peterson, and 
Members of the Committee. I am pleased to appear before you today to 
discuss EPA's mission to protect human health and the environment and 
our interaction with the agriculture community.
    In my meetings with leaders in the agriculture community and in my 
meetings with Secretary Vilsack, I have indicated my profound respect 
for the invaluable contribution that farmers make to our economy by 
producing food, fiber, and fuel for our country and the world. I have 
also noted the critical work that farmers are doing to protect our 
soil, air, and water resources. At the same time, I am very much aware 
that farmers operate under unique and challenging circumstances--small 
margins, international competition, and the difficulties of operating a 
small business--that complicate the task of making a living on the 
land.
    As a result of our meetings with the agriculture community--with 
me, our senior leadership team and our regional staff--we appreciate 
the extent of EPA's interaction with agriculture and the concerns of 
farmers across the country.
    When I became EPA Administrator, I made a commitment to using the 
best available, peer-reviewed science, transparency, and the rule of 
law as hallmarks for EPA's work under my tenure. In no other area of 
EPA's work are those principles more important than in our work with 
agriculture.
    On issue after issue, we have seen the value of early and 
substantial engagement with the agriculture community to ensure that we 
fully understand the impacts of our actions. We seek opportunities for 
communication, as we are doing currently on particulate matter 
(PM10) and as we have previously done with public engagement 
in development of the National Pollutant Discharge Elimination System 
(NPDES) Pesticide General Permit. Our commitment to science has enabled 
EPA to make strong decisions on issues ranging from the decision on the 
Renewable Fuel Standard (RFS2) to the extensive work with the livestock 
and poultry industries on the National Air Emissions Monitoring Study 
(NAEMS). Finally, carefully following the laws that Congress has 
enacted has enabled EPA to ensure public confidence in the nation's 
food supply through implementation of the pesticide laws.
    My testimony further illustrates how the Agency has followed these 
key principles with specific examples from our pesticides, water, and 
air programs.
Pesticide Regulation
    EPA's Office of Pesticide Programs is charged with regulating 
pesticides under the Federal Insecticide, Fungicide, and Rodenticide 
Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA). EPA's 
regulatory programs for pesticides under both laws rest on the same two 
fundamental principles--basing decisions on best available, peer-
reviewed science and making our decisions through a process that is 
transparent and open to everyone.
    Under FIFRA, we must ensure that use of pesticides does not cause 
``unreasonable adverse effects on the environment.'' When used 
properly, pesticides provide significant benefits to society, such as 
controlling disease causing organisms, protecting the environment from 
invasive species, and fostering a safe and abundant food supply. 
FIFRA's safety standard requires EPA to weigh these types of benefits 
against any potential harm to human health and the environment that 
might result from using a pesticide.
    FIFRA generally requires that before any pesticide may be sold or 
distributed in the United States, EPA must license its sale through a 
process called ``registration.'' During registration, EPA examines 
every pesticide product that is being lawfully marketed in our country. 
In addition, FIFRA also requires EPA to reexamine previously approved 
pesticides against current scientific and safety standards through a 
program called ``registration review.'' Any changes to the use of a 
pesticide identified through registration or registration review as 
necessary for safe use appear on product labels.
    In addition, under FFDCA, EPA sets ``tolerances'' (maximum residue 
limits) for pesticides used on food or animal feed. EPA may establish a 
tolerance for a pesticide residue in food or feed only if EPA finds 
that there is a ``reasonable certainty of no harm'' from consumption of 
the pesticide treated food and from other nonoccupational sources of 
exposure.
    EPA makes more than 10,000 different regulatory decisions about 
pesticides every year. In 2010, EPA registered more than 700 new 
pesticide products, approved products for 277 new uses, and registered 
pesticides containing 24 new active ingredients (more than half were 
low risk biopesticides or low risk conventional chemicals). In 
addition, we approved hundreds of registration amendments, opened 
dockets for scores of pesticides in registration review, and reviewed 
thousands of notifications of other minor changes.
    Over the past 30 years, EPA has developed a highly regarded program 
for evaluating pesticide safety and making regulatory decisions. EPA's 
reputation rests on our world renowned expertise in pesticide risk 
assessment. Our approach to decision making is also widely considered 
to be a model for transparency and openness. Using this approach, the 
Agency makes decisions consistent with scientific information and 
protective of human health and the environment.
    Safe pesticide use makes an enormous contribution to our society, 
particularly in the production of food and fiber. Innovation in 
pesticide use has greatly increased agricultural productivity and 
contributed to a predictable food supply and stable food prices. EPA 
estimates that pesticides used to control various pests such as 
insects, weeds, and fungus contribute billions of dollars per year to 
agricultural production. In addition, maintaining a robust pesticide 
regulatory system provides a high level of consumer confidence by 
effectively policing the safety of pesticide residues in food.
    Pesticides provide direct and indirect benefits for the millions of 
people who use pesticides or purchase items on which pesticides have 
been used. Some of the most dramatic examples occur under Section 18 of 
FIFRA, where EPA may issue an ``emergency exemption'' to authorize the 
temporary use of an unregistered pesticide to address an unusual pest 
outbreak. For example, among other decisions last year, EPA approved 
emergency exemptions to control zebra and quagga mussels in Arizona, 
California, and Nevada; authorized 20 states to use two pesticides to 
control varroa mites in honey beehives, a pest hypothesized to 
contribute to colony collapse disorder; and allowed the emergency use 
of the fungicide, propiconazole, on Florida avocados to address an 
emerging disease that kills the tree and severely hurts the industry.
    I want to discuss three topics concerning pesticide regulation in 
greater detail. These topics--the Pesticide Registration and 
Improvement Act, atrazine, and international cooperation--illustrate 
the breadth of EPA's pesticide activities and how the Agency takes a 
leadership role in working with stakeholders to find science based 
solutions to contentious issues.
Pesticide Registration Improvement Act
    The Pesticide Registration Improvement Renewal Act (PRIA 2) 
provides an example for how user fees paid by the private sector can 
help support vital regulatory activities. EPA's pesticide regulatory 
programs are funded by a combination of appropriations and user fees. 
Under PRIA 2, the 2007 reauthorization of PRIA which is in effect from 
October 1, 2007 to September 30, 2012, entities seeking EPA approval to 
sell or distribute pesticide products must, in most cases, pay a fee 
before the Agency will process their applications. The amount of the 
fee depends on the type of application and the type of entity. For 
example, EPA charges lower fees for ``me too products'' than for 
entirely new pesticides. Small businesses pay reduced fees, and PRIA 2 
exempts government and government-supported organizations like the 
Interregional Research Project No. 4 (IR-4), from application fees.
    PRIA 2 was developed by a group of representatives from the 
pesticide industry, their trade associations, and public interest 
groups, provides benefits for interested stakeholders. For the 
pesticide industry, PRIA 2 requires EPA to make decisions on 
applications within a mandated timeframes. Before PRIA, because of 
limited resources, the Agency could not process all of the applications 
it received in a timely fashion. Large backlogs developed, and 
applicants could not predict when the Agency would make a decision. 
Pesticide companies had to establish priorities for which of their 
applications EPA would review first. With the additional resources 
provided by PRIA, however, the Agency can now process new applications 
in a timelier manner. In fact, since the start of the PRIA user fee 
program, EPA has met the timeframes for more than 99% of PRIA 
applications. With this kind of consistency in EPA's review of 
registrations, pesticide companies can develop more accurate business 
plans for marketing their products.
    Pesticide users also benefit from the more rapid approval of more 
new pesticide products. Since PRIA became law, EPA has seen an increase 
in the number of new pesticides being submitted, indicating that PRIA 
may have encouraged increased research and development. Under PRIA, the 
Agency has also seen an increase in the approval of pesticides for 
``minor uses'' to meet the pest control needs of farmers who grow minor 
crops--primarily fruits, vegetables, and nut crops. Further, by law 
some of the PRIA 2 fees go to support improved safety standards for 
agricultural workers and to provide pesticide safety education for farm 
workers and farm worker families. Finally, PRIA 2 sets aside a portion 
of the fees to increase funding for grants that improve understanding 
of Integrated Pest Management and develop new tools to reduce pesticide 
use.
    Society and the environment also benefit from PRIA 2. A number of 
the new pesticides receiving approval under PRIA 2 are safer than the 
previously approved products which they can replace. In addition, PRIA 
2 reauthorized maintenance fees to support EPA's registration review 
program. Under FIFRA, the Agency must reevaluate all previously 
registered pesticides at least every 15 years to make sure that 
products in the marketplace can still be used safely. The registration 
review program makes sure that, as the ability to assess risk evolves 
and as public policy and pesticide use practices change, all registered 
pesticides continue to meet the FIFRA statutory standard of no 
unreasonable adverse effects.
Atrazine
    The current scientific review of the human health and environmental 
effects of atrazine, a widely used herbicide, shows EPA's commitment to 
basing our regulatory decisions on the best available scientific 
information. In 2003, EPA conducted a review of atrazine and determined 
that, based on the science available at that time, atrazine was not 
likely to adversely impact human health or cause unreasonable impacts 
on the environment when used consistent with new labeling restrictions. 
As a condition for continued registration, the Agency required the 
registrants of atrazine to confirm the effectiveness of risk mitigation 
measures for protecting drinking water resources and aquatic life. 
Specifically, we required the registrants to conduct extensive 
monitoring of community drinking water systems and vulnerable 
waterways.
    In the nearly 8 years since that decision, nearly 150 new 
scientific studies have been conducted on the human health effects of 
atrazine. In addition, monitoring data from a variety of sources, 
including the registrants' studies discussed above, of atrazine in both 
drinking water sources and other bodies of water. EPA determined it is 
appropriate to look closely at this new research and to ensure that our 
regulatory decisions about atrazine reflect the best available science 
and continue to be protective.
    To ensure our assessment continues to be thorough, scientifically 
based, and fully transparent, we are consulting the FIFRA Scientific 
Advisory Panel (SAP), a Federal advisory committee charged with 
providing independent, expert peer-review of scientific issues 
involving pesticides. We have held four public SAP meetings over the 
last year related to our review of atrazine:

   November 3, 2009--EPA presented its plan for the atrazine 
        re-evaluation to the SAP;

   February 2-4, 2010--EPA presented and sought scientific 
        peer-review of its proposed plan for incorporating epidemiology 
        studies into the atrazine risk assessment;

   April 26-29, 2010--EPA presented and sought scientific peer-
        review of its evaluation of atrazine's effects based on 
        experimental laboratory studies, and the sampling design 
        currently used to monitor drinking water in community water 
        systems; and

   September 14-17, 2010--EPA presented and sought peer-review 
        of its evaluation of atrazine's non-cancer effects based on 
        experimental laboratory studies and epidemiology studies. This 
        review included new experimental laboratory data since the 
        April 2010 SAP meeting.

    Our examination of new health effects studies will still need to 
consider the upcoming results from the National Cancer Institute's 
epidemiological Agricultural Health Study (AHS) evaluating the 
potential association between atrazine and cancer risk. We expect to 
take these results, along with other epidemiological and laboratory 
animal studies, to the SAP later this year. At the conclusion of EPA's 
assessment of atrazine's human health effects, the Agency will ask the 
SAP to review atrazine's potential effects on amphibians and aquatic 
ecosystems.
EPA's International Cooperation in Pesticide Regulation
    Our international activities show how EPA's leadership role seeks 
to efficiently use resources and contributes to a predictable and 
protective global regulatory framework that facilitates trade while 
improving environmental protection. The ability to work effectively in 
an increasingly complex environment is a key to maintaining U.S. 
competitiveness in agricultural production, biotechnology, and 
development of needed means of pest control, as well as in promoting 
and enhancing food safety and environmental protection. The field of 
pesticide regulation is a striking example. In recent years, we have 
all experienced the globalization of our food supply due to the 
expansion of world agricultural trade. Trade in pesticides is also 
increasing at a rapid pace.
    As a major exporter and importer, the U.S. seeks to promote 
economic growth through its work with other countries and international 
organizations to encourage greater harmonization of pesticide 
requirements. These efforts strengthen public health and environmental 
protection at home and abroad, promote the wider availability of pest 
control technologies that U.S. agricultural producers rely on to 
maintain high levels of productivity, and help ensure the availability 
of a safe, varied, abundant and affordable food supply for U.S. 
consumers, and its partners in trade in agricultural and food products.
    For example, we will not realize expected benefits from registering 
new, often safer pesticides for use in the U.S. unless the necessary 
clearances are in place in countries that are important export markets 
for U.S. growers. Therefore, we work through the Codex Alimentarius (a 
joint food standards program of the Food and Agriculture Organization 
of the United Nations and the World Health Organization) to expedite 
the establishment and review of internationally recognized residue 
limits for pesticides in food. Many countries rely on the Codex maximum 
residue limits (MRLs) as their own national standards, and others 
(including the U.S.) strive to harmonize with Codex whenever possible.
    Harmonized MRLs facilitate compliance, reduce the likelihood that 
food with illegal residues will be imported into the U.S., and promote 
trade in safe agricultural products. We also work with other U.S. 
agencies to educate trading partners about the requirements of the U.S. 
food safety system and to work toward greater harmonization of 
pesticide regulation in ways that enhance the scientific basis of 
regulatory decision-making and improve efficiency, thereby saving 
government and private sector resources.
    Other areas where international cooperation has been important to 
our pesticides program include:

   Working with partners in the Organisation for Economic Co-
        operation and Development to harmonize test guidelines, data 
        requirements and application formats to conserve scientific and 
        regulatory resources;

   Harmonization of risk assessment and risk management 
        approaches, e.g., development of an MRL calculator tool that 
        makes it more likely that countries working from the same data 
        will reach similar regulatory results; and

   Work sharing and joint reviews. When we work together on 
        pesticide issues, we benefit from sharing scientific expertise 
        and review burdens with our regulatory counterparts and 
        decrease the likelihood that pesticide regulations will become 
        trade irritants.

    Collectively, these efforts are leading to ever more efficient use 
of scarce public and private sector resources to ensure that pesticides 
are being used safely, while at the same time providing businesses a 
more predictable and stable regulatory environment worldwide so they 
can expand economic opportunities.
Water Quality
    EPA recognizes that collaboration with states, farmers, rural 
communities and USDA can be particularly effective in achieving 
important improvements in water quality. Our work on the Chesapeake Bay 
and on the Mississippi and Atchafalaya River Basin are two examples of 
how those collaborations can work.
Chesapeake Bay
    One of EPA's major efforts on water quality protection in the past 
25 years is the development of a comprehensive, integrated plan for 
restoring the Chesapeake Bay. We developed this plan in consultation 
with the agriculture community, close collaboration with the Chesapeake 
Bay jurisdictions (the six Bay states and the District of Columbia), 
and with assistance from Federal agency partners. With the support of 
an Executive Order, EPA worked with other Federal agencies, 
particularly USDA, to develop a Federal strategy for protecting and 
restoring the Chesapeake Bay watershed. The strategy reinforced EPA's 
and USDA's recognition that maintaining the viability of agriculture is 
an essential component to sustaining ecosystems in the Bay. It also 
emphasized the agencies' commitment to strong partnerships and 
collaboration with states and local governments, urban, suburban and 
rural communities, and the private sector to achieve environmental 
objectives for the Bay. In this strategy, and in the actions EPA and 
USDA are pursuing under the strategy, the agencies acknowledge the 
enormous contribution that farmers are making to improve Bay water 
quality.
    Developing the Chesapeake Bay Total Maximum Daily Load (TMDL) was 
truly a collaborative effort. EPA worked closely with the Bay 
jurisdictions during 2009 and 2010 to help them develop and improve 
Watershed Implementation Plans (WIPs) to inform and support the 
Chesapeake Bay TMDL. In those plans, the states identified how they can 
best achieve the nutrient and sediment reductions called for under the 
TMDL. In developing the Executive Order strategy and the WIPs, EPA and 
its partners held nearly 400 public meetings with the agricultural 
community and other interested stakeholders. Using input from those 
meetings, the state developed WIPs recognize that suburban and urban 
communities as well as the agriculture sector will all need to achieve 
pollution reductions to restore the Bay and rivers. As a result of the 
hard work and commitments of the individual jurisdictions, there are 
now feasible and credible WIPs established to implement the nitrogen, 
phosphorus, and sediment reductions necessary to attain state water 
quality standards and restore water quality in the Bay.
    To help achieve pollutant load reductions, EPA combined resources 
with USDA to award more than $5 million in grants this past fall to 
assist farmers in adopting conservation practices in the region.
Mississippi and Atchafalaya River Basin
    In the Mississippi and Atchafalaya River Basin, EPA and USDA are 
working together to demonstrate success in water quality improvement. 
We are jointly collaborating to provide monitoring support for USDA's 
Mississippi River Basin Initiative (MRBI) as well as broader efforts to 
use EPA section 319 funds (and other available funds) in coordination 
with USDA programs to engage creatively in work with communities and 
watersheds to achieve improvements in water quality.
    EPA, USDA and USGS are collectively working together to focus on 
Mississippi River water quality goals. For example, the agencies are 
working to identify where NRCS MRBI projects can be funded and 
implemented in a way that supports the implementation strategies set 
forth in existing section 319 watershed plans, TMDLs, and other state 
plans. The agencies are also targeting their monitoring investments to 
best assess water quality trends and demonstrate water quality 
improvements. In these targeted areas, EPA Regions are coordinating 
with the state NRCS offices, agencies, and USGS at the local level to 
ensure meaningful stakeholder involvement and commitment to full 
implementation.
Air Quality
    National air quality issues are integrally related to agricultural 
activities. Particular areas of focus include coarse particulate 
matter, boiler standards, animal feeding operations, and the allowable 
level of ethanol in gasoline. EPA's actions in these and other areas 
are described below.
Coarse Particulate Matter
    The Agency recognizes that the review of the air pollution 
standards for coarse particles--called PM10--has prompted a 
great deal of concern in the agriculture community in recent months. 
EPA's national air quality standards, including our PM standards, are 
not focused on any particular industry or activity; rather, they set 
the level of a pollutant allowed in the outdoor air nationwide. EPA has 
not issued a proposal on PM10 and has not made any decisions 
about what to propose.
    EPA has reached out to rural communities to hear their perspectives 
on PM10 standards. EPA has held five meetings with 
stakeholders in several regions of the country. Initial reports 
indicate that these have been very well attended and much appreciated--
they have increased understanding about EPA's work and the farm 
community has provided useful insights that will help inform our 
deliberations. That information, along with EPA's scientific and 
technical assessments and the recommendations of our independent 
science advisors--the Clean Air Scientific Advisory Committee--will be 
considered as EPA begins the process of assessing what standards to 
propose to ensure that we provide the public health protection that the 
law requires.
Boiler MACT Rules
    On February 21, 2011, EPA issued final standards for boilers and 
certain incinerators that will achieve significant public health 
protections through reductions in toxic air emissions, including 
mercury and particulate pollution, while cutting the cost of 
implementation of these standards by about 50 percent from the proposed 
rules issued last year. EPA estimates that for every dollar spent to 
cut these pollutants, the public will see between $10 to $24 in health 
benefits, including avoiding between 2,600 and 6,600 premature deaths, 
preventing 4,100 heart attacks and averting 42,000 asthma attacks per 
year once they are fully implemented.
    The Agency's handling of this rule is a compelling example of how 
public comment and new information are used and can be especially 
valuable in crafting a sound regulation. EPA received more than 4,800 
comments from businesses and communities across the country in response 
to the proposed rules, including the agricultural community. As a 
result of this feedback, EPA revised the draft standards to allow 
additional flexibility and cost effective compliance. Among other 
things, we believe the final standards are sensitive to the needs of 
rural America, particularly given the role that biomass plays as fuel 
in rural areas. Furthermore, EPA is working with the Departments of 
Energy and Agriculture to provide facilities affected by the standards 
with technical assistance. In particular, together with USDA, we will 
be reaching out to facilities that have boilers that burn biomass to 
make sure that they understand the regulation, its cost- and energy-
saving features, and the benefits that can accrue to boiler owners as a 
result.
Animal Feeding Operations Monitoring Study
    In 2005, EPA and the animal feeding operations industry signed a 
voluntary compliance agreement that resulted in the first nationwide 
study of its kind for animal feeding operations. That study, the 
National Air Emissions Monitoring Study, was funded by industry and 
conducted by Purdue University with EPA oversight. The monitoring 
conducted under the study has been completed, and the data are 
available to the public via the web. EPA will use the data to develop 
improved methodologies for estimating emissions from animal feeding 
operations. Twenty four facilities in nine states made their operations 
available for monitoring and worked closely with researchers, industry 
experts and EPA throughout the study period. EPA will also use 
information it has received in response to a ``Call for Information'' 
issued in January 2011 seeking data from other monitoring studies of 
animal feeding operation emissions. We will make the draft 
methodologies available for public review and comment on a rolling 
basis in the near future.
E15
    Another important issue to the agricultural community has been 
action on the request by more than 50 ethanol producers and other 
supportive groups to allow E15 to be sold for use in gasoline powered 
vehicles and equipment. Under the Clean Air Act, a fuel that is not 
substantially similar to the fuel used to determine compliance with 
emissions standards must obtain a waiver before it can be sold. EPA may 
grant a waiver if there is sufficient information to show that the fuel 
will not cause or contribute to failures to meet applicable emission 
standards. In acting on the waiver request for E15, we provided an 
extended period for public comment and timely access to Department of 
Energy (DOE) test results on the impact of E15 on exhaust emissions of 
model year 2001 and newer cars and light trucks.
    After considering all of the available information, we granted 
partial waivers that allow E15 to be sold for use in model year (MY) 
2001 and newer cars and light trucks. In 2011, there are more than 150 
million MY2001 and newer vehicles that could use E15. These vehicles 
represent more than 74 percent of gasoline consumption. By 2014, we 
project E15 could be used in more than 187.3 million vehicles, 
representing 85% of fuel consumption.
    We are now in the process of completing a rule that will establish 
national labeling, transfer document and survey requirements for E15 as 
it enters the market. As part of the rulemaking process, we held a 
public hearing and provided a 60 day public comment period. We expect 
to issue a final rule in the next few months. Under the Clean Air Act, 
E15 must also be registered before it can be sold. We recently received 
emissions and health effects information to support a registration 
application. We expect to complete our review of that information in 2 
to 3 months.
Additional EPA Involvement With the Agricultural Community
    In addition to the examples highlighting EPA's pesticide, water, 
and air programs, there are many other EPA actions underway 
substantively addressing agricultural issues, including:

   Conducting outreach to livestock farmers in agricultural 
        areas such as the Shenandoah Valley to improve their 
        understanding of EPA requirements and programs;

   Planning to issue a final rule amending the Spill 
        Prevention, Control, and Countermeasures (SPCC) rule to exclude 
        milk and milk product containers from the SPCC regulatory 
        program, which has been transmitted to the Office of Management 
        and Budget for review;

   Listening to producer concerns and as a result, extending 
        the compliance period to provide time for educational and 
        outreach efforts to be carried out for farmers who are affected 
        by SPCC; and

   Providing significant assistance in the development of 
        watershed plans through the 319 program and in the renovation 
        of rural water systems though the State Revolving Fund (SRF) 
        program.
Conclusion
    I am fully aware that there are complex and difficult issues that 
we need to work on with the agriculture community and this Committee. 
You have my commitment that we will continue to rely on science, 
transparency, and the rule of law as we work together. And you have my 
commitment to engage in discussion early and often to increase 
understanding, improve our knowledge and create a stronger working 
relationship in support of a strong farm and rural economy and a 
healthy environment--I believe that they can and should go hand in 
hand.
    I appreciate the opportunity to be here today. I look forward to 
continuing our work with you and I am pleased to answer any questions 
you might have.

    The Chairman. Last Wednesday, the Fourth Circuit Court of 
Appeals ruled on a Biological Opinion--a BioOp--issued by the 
National Marine Fisheries Service relating to pesticide re-
regulation decisions in a final Agency action and therefore 
reviewable in district court. In light of this decision, what 
options are available to the EPA regarding your timeframe for 
implementing the reasonable and prudent alternatives under the 
three Biological Opinions you have received?
    Ms. Jackson. Thank you, Chairman. Yes, we are analyzing 
that decision with the Department of Justice because we do 
believe it may have some impact on our options, moving forward, 
on Biological Opinions. That issue, as you mentioned in your 
opening statement, is a significant one for agriculture, and 
for our pesticide program, which relies on Biological Opinions 
to make its registration and labeling decision, so important in 
rural America and in agriculture.
    Just today, I signed a letter charging the National Academy 
of Sciences to review certain technical and scientific issues 
in Biological Opinions, because they have come to be of great 
import in future decisions, moving forward.
    The Chairman. Administrator, you mentioned that you are 
very much aware that farmers and ranchers operate under unique 
and challenging circumstances. Apart from having outreach 
meetings, how has that awareness been incorporated into the 
decision-making process at your Agency?
    Ms. Jackson. Well, outreach means certainly the beginning, 
and of course, the public comment process, which is open to 
anyone when we put out a rule, is very significant as well. I 
gave one example in my opening testimony, which is probably the 
most dramatic one. The original proposal under the RFS2 for 
ethanol did not find that as a biofuel which would qualify for 
the credit under EISA. Through public comment, through hard 
work with USDA, through working with modelers, those numbers 
changed significantly enough that on adoption of that rule EPA 
essentially reversed that opinion. Our work on the pesticides 
general permit is another example of significant outreach to 
deal with a mandate that we received from the courts.
    The Chairman. Administrator, you mentioned dust and spray 
drift and nutrients. Do you believe that your Agency has the 
authority--you say you are not going to--but do you believe 
your Agency has the authority to regulate those issues?
    Ms. Jackson. Yes, dust via the Clean Air Act under the 
particulate matter standards. You mentioned nutrients under the 
Clean Water Act, certainly. And I forgot the third one.
    The Chairman. Spray drift issue.
    Ms. Jackson. Certainly through FIFRA labeling, which is 
where this issue was raised, EPA's decision on what to put on 
the label has a tremendous impact on that sector.
    The Chairman. But you acknowledge you believe in your role 
that you have existing Federal authority to regulate those 
things. Even though you say at the present time you are not in 
the process of preparing rules to regulate them, you do say you 
have the authority, you believe.
    Ms. Jackson. We regulate dust now under the Clean Air Act, 
under the 2004 standards. Nutrient pollution is certainly 
regulated under the Clean Water Act, generally by the states. 
But EPA standards and the total maximum daily load process has 
a lot to do with that.
    The Chairman. I think, Administrator, you put your thumb 
right there on the issue. The folks out in the countryside 
believe that you believe you have the authority. Their concern, 
more or less, is it is just when and to what degree will you 
regulate. And that is what they brought to our attention, along 
with the concerns about sound science and economic impact, and 
whether the results of these decisions will--the effect on them 
will be factored into the decision-making process.
    With that, I turn to my colleague, the Ranking Member, for 
his questions.
    Mr. Peterson. Thank you, Mr. Chairman. I am interested in 
learning more about how the EPA handles legal action brought 
against it. What factors do you use in determining whether or 
not to settle with a litigant or petitioner?
    Ms. Jackson. EPA makes a case-by-case judgment, sir. We 
have to look at several factors. The requirements of the law, 
most importantly. Legal risk is always a big factor in 
determining whether to continue the litigation or to settle a 
case. And the appropriateness of rulemaking or other action to 
address the party's claims. Sometimes we don't have the 
authority or our rulemaking is not an efficient method of 
addressing a claim.
    Mr. Peterson. At what point does the Department of Justice 
get involved in this? Do you disagree with them sometimes? And 
if you do, how do you proceed and who has the final say?
    Ms. Jackson. Well, certainly we work in concert with the 
Department of Justice. And the Department of Justice acts as a 
check, if you will. We cannot move forth on settlement without 
concurrence and consultation with the Department of Justice.
    Mr. Peterson. Do you recommend to them to settle or do they 
recommend to you or how does that work?
    Ms. Jackson. Oftentimes, it is a result of staff making 
some recommendations. I can get for you, sir, individual 
examples. But I would imagine that oftentimes, EPA lawyers meet 
with Justice Department, look at the merits of a case, and 
would recommend a settlement and ask for their concurrence.
    Mr. Peterson. Well, I have a number of questions that I am 
going to send you about trying to understand this. I would like 
to know what settlements have been made since you took over as 
Administrator and whether there has been any rulemaking that 
has taken part in that.
    One of the things, maybe, with the limited time, I would 
like to focus on this Waterkeeper settlement. Last May, you 
announced a settlement with the Waterkeeper Alliance, which I 
think is some kind of outgrowth out of the Sierra Club, Defense 
Fund. And I have some other questions about how some of these 
groups qualify to get the government to pay their legal fees 
and whether we need to look at that in the future, if they 
legally can do this.
    But in this case they apparently sued and then some 
livestock groups sued and there was a settlement made. But 
apparently, you guys negotiated with the Waterkeepers but you 
didn't negotiate with the agriculture groups. And then there 
was a settlement. Again, who made the decision not to include 
those ag groups? The settlement included an agreement to pay 
$95,000 in attorneys fees and costs. Do all of the EPA 
settlement agreements contain provisions for payment of 
attorney fees and how do you determine that?
    Ms. Jackson. Mr. Peterson, we are happy to get you specific 
answers for the record to all those questions. In general, I 
will simply say that Congress has imposed a vast array of 
requirements on EPA and we are frequently sued by environmental 
and also other organizations under statutes claiming that EPA 
has failed to take an action in a timely manner or that we have 
been unreasonably delayed. And in many cases, the remedy that 
we are demanded under that lawsuit is to undertake rulemaking.
    Mr. Peterson. What about if the lawsuit is not litigated 
and you just settle? Then all of a sudden you are basically 
doing a settlement that is requiring you to do rulemaking. We 
didn't authorize it or probably agree with it.
    Ms. Jackson. Well, we look at what the law requires us to 
do. One of the questions is whether you would lose if you went 
to court and whether we would be best served by settlement 
early and trying to agree on a schedule for rulemaking. 
Oftentimes, that rulemaking is overdue that we can live with 
rather than have the courts impose one on us. And we still have 
to pay court fees that would be much higher at the end of being 
on the losing end of a lawsuit. So the litigation risk is a 
very important consideration.
    Mr. Peterson. Do you make that decision or does the 
Department of Justice?
    The Chairman. By unanimous consent, I ask that the Ranking 
Member have 2 additional minutes. Seeing no objection, 2 
additional minutes.
    Ms. Jackson. We would make that together. Depending on the 
nature of the lawsuit, that can be a quick decision because 
oftentimes in these lawsuits it is fairly easy to know whether 
or not they would prevail.
    Mr. Peterson. I have this area that floods every year. We 
are going to flood again this year. And I don't know how many 
hundreds of millions of dollars this has cost us. The reason we 
haven't been able to ever do anything about this is 
environmental groups have basically stopped us. These are folks 
that are not from the area. They bring nothing to the table. 
And they have cost the taxpayers I don't know how many hundreds 
of millions of dollars.
    So maybe the problem is that we have just let these laws--
we don't know what we are doing; and that we have given these 
folks too many tools to muck up the whole system. Maybe we need 
to go in and review those things. But you say that we are 
requiring you to do this. Well, I have seen this firsthand in 
my district. That is the kind of thing they say to me there. 
Frankly, in the case of the legislature back in Minnesota that 
I used to serve in, I mean some of this stuff was foisted upon 
us and we didn't know what was going on.
    So this Committee maybe needs to look at reviewing some of 
this stuff, or some of these other committees as well, so that 
we don't set up a system that allows this to go on.
    Last, I can't find on your website these settlements. I can 
find it on some other organization's websites. But do you make 
this information public? I have heard some complaints that they 
can't find the information on these settlements. They can't 
find out how much it was and who got paid what for attorney 
fees and so forth. Is that something that you are making public 
immediately when you do this settlement?
    Ms. Jackson. Well, most of our settlements are required by 
law to go through public comment. But to your specific 
question, sir, if it is in one place, I would like to get back 
to you for the record, because I don't know the answer off the 
top of my head.
    The Chairman. Would the gentleman yield?
    Mr. Peterson. I will yield.
    The Chairman. I think the Ranking Member has a very good 
point here. With his agreement, I think the Committee should 
ask in writing today for a list of all these.
    Mr. Peterson. Mr. Chairman, I have another list of a couple 
of pages of things that I would like to submit with that.
    The Chairman. We are going to send you a wonderful letter, 
Administrator.
    The gentleman's time has expired.
    I now turn to the gentleman from Virginia for this 
questions.
    Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for 
holding this important hearing. Ms. Jackson, thank you for 
participating. As you may know, I have an interest in the EPA's 
regulations related to the Chesapeake Bay. As you may also 
know, the overwhelming majority of the Members of this 
Committee voted to cut off the funding for the EPA's 
implementation of the TMDL.
    I would like to ask you for some clarification regarding 
your testimony. In your testimony you stated: ``The EPA worked 
closely with the Bay jurisdictions to help them develop and 
improve watershed implementation plans.'' You also call these 
plans ``state developed.'' I would like you to clarify a few 
points for the Committee.
    First, in November of 2009, the EPA sent a letter to the 
watershed states requiring them to draft watershed 
implementation plans, is that correct?
    Ms. Jackson. That sounds right, sir, yes.
    Mr. Goodlatte. If the plans were not developed, the letter 
stated that the EPA would take ``appropriate independent action 
or consequences.'' Is that correct?
    Ms. Jackson. I believe the letter you are referring to does 
probably say that. I don't have it in front of me.
    Mr. Goodlatte. I have a copy here. We will share that with 
you if you would like to see it after the hearing. If that is 
correct, then there was not an independent decision by the 
state to write the plans as they were written, but it was a 
requirement by the EPA that they write them. Is that not 
correct?
    Ms. Jackson. Yes, sir, in response to a lawsuit from the 
Chesapeake Bay Foundation because the cleanup of the Bay was 
not proceeding as it should under Federal law.
    Mr. Goodlatte. The fact of the matter is there are also 
lawsuits now brought by the Farm Bureau because they have 
contended the EPA has exceeded its authority. And there is a 
group of 16 communities in the eastern part of Virginia, not in 
my district, that are contemplating a lawsuit as well because 
they believe the EPA has exceeded their authority.
    But what I would like to follow up on is the notion that 
these plans are state developed. I know my state and others did 
a lot of work to draft these plans to fulfill this requirement. 
But isn't it true that the EPA used the threat of a ``Federal 
backstop'' or ``consequences'' to compel the states to include 
certain provisions in their plan?
    Ms. Jackson. It is true that EPA had the authority we 
believe to backstop any state plan that didn't make meaningful 
steps to reduce pollution such that we would see improvements 
in the Bay.
    Mr. Goodlatte. We could debate how much improvement has 
taken place already. Farmers would tell you that they have 
reduced the amount of nitrogen and phosphorus very, very 
substantially, some say by as much as 50 percent, under the 
voluntary state-managed programs of the past. But in fact, to 
your point, the first time the plans were submitted to the EPA, 
the EPA rejected all of the states' plans. Can they really be 
called state-developed plans when the EPA rejected every 
states' plans at one point in this process?
    Ms. Jackson. Sir, I had several conversations with the 
Governor of Virginia, and I know my staff was in constant 
contact with him. One of the folks working on this worked for 
the Commonwealth of Virginia on the Chesapeake Bay. And, yes, 
the plans were developed by the state. It was EPA's role in 
looking at this regional problem that touches many states.
    Mr. Goodlatte. EPA rejected the state's plan and said the 
EPA would backstop or take Federal action if the state did not 
alter the plan.
    Ms. Jackson. EPA pointed out realistically where it thought 
the plan would not achieve the reductions necessary to be able 
to really reduce pollution and restore Chesapeake Bay.
    Mr. Goodlatte. As part of the EPA's actions in the Bay, in 
February of last year the EPA sent five poultry processors in 
my district information requests, citing section 308 of the 
Clean Water Act. The letter stated that it was mandatory for 
the processors to respond and supply the EPA with specific 
information about the individual independently owned farms that 
the processors contract with.
    Can you explain the authority EPA has to request 
information about individual small farmers who have contract 
arrangements with processors, but are not owned or operated by 
the processors? While the processors may be a permitted 
facility under the Clean Water Act, independent small farms 
that processors contract with are not.
    Should this Committee conclude that the issuance of the 308 
letters is an attempt by the EPA to try to use a processor's 
permit to regulate independent small farms?
    Ms. Jackson. No, you shouldn't conclude that, sir. But what 
you should conclude is that we have heard over and over from 
small farms that feed into these big processors that they are 
working under contract. And if they need more money----
    Mr. Goodlatte. There is no question they are working----
    Ms. Jackson. It is actually an attempt----
    Mr. Goodlatte. What authority does the EPA have to request 
information about individual small farms? They are not the 
processor.
    Ms. Jackson. EPA is trying to work with the processors to 
make them understand that their relationship----
    Mr. Goodlatte. The impression, I guess, from the processors 
is not that they are being told to work with. They were issued 
subpoenas to provide the information.
    Ms. Jackson. I don't believe they were subpoenaed, sir. I 
believe they were sent 308 letters.
    Mr. Goodlatte. What's your authority under section 308 to 
require processors to give you information about small 
individual farms?
    Ms. Jackson. We would like processors to realize that how 
they treat the small farmer----
    Mr. Goodlatte. That is not the question.
    Mr. Chairman, I would ask the Administrator be asked to 
answer the question.
    What is your authority under section 308 to require 
processors to give you information about farms that are not 
owned by the processors?
    Ms. Jackson. Section 308 of the Clean Water Act gives EPA 
fairly broad information-gathering authority which can be used 
for regulatory purposes.
    The Chairman. I think you have your answer, sort of.
    Mr. Goodlatte. Sort of, Mr. Chairman. And I would strongly 
dispute the authority of the EPA to do that. I will have more 
on that later. Thank you.
    The Chairman. The chair turns to the gentleman from 
Pennsylvania, Mr. Holden.
    Mr. Holden. Thank you, Mr. Chairman.
    Ms. Jackson, following up on Mr. Goodlatte's discussion 
about the Chesapeake Bay, as you are aware, in the last farm 
bill, this Committee had a $500 million investment in 
conservation practices for the Bay region. That was not easy to 
do. It was a carve-out for the region of the country. I 
remember Mr. Conaway asking a question about the validity of 
that program. And when we explained, Mr. Goodlatte and I, that 
we needed to do this because agriculture wanted to be part of 
the solution to the Bay problems, Mr. Conaway supported it, as 
did everyone else on this Committee, and it became the law of 
the land.
    The ink was not dry on the farm bill. USDA had no time at 
all to implement any of these programs and we get hit with this 
Executive Order. I think you understand the frustration that 
Mr. Goodlatte and myself and our producers feel. And we don't 
know how they are going to comply with this. And you talked in 
your opening statement about transparency in the EPA's process. 
And I understand that the load allocations outlined in the 
Executive Order are based upon assumptions that EPA kept very 
internalized. And we need to shed some light in this process. 
Do you intend to make public the process EPA used to determine 
the load allocations? And can you tell us who was involved in 
determining the allocations? And why did you choose to keep 
this internalized instead of publicly released in a peer-
reviewed process, as usual?
    Ms. Jackson. The watershed models that EPA uses to 
determine load allocations to the Bay are not secret. We have 
worked on those models for quite some time. The Department of 
Agriculture has their own assessment project and models that 
they use for their CREP program, sir.
    Mr. Holden. So you are telling me when you were enforcing 
or administering the Executive Order, you had consultation with 
producers?
    Ms. Jackson. We had consultations with the state regulatory 
authorities because that is who has to implement the TMDLs--the 
pollution diet numbers and load allocations.
    Mr. Holden. Don't you think you should talk to people who 
are going to have to live by those rules?
    Ms. Jackson. Well, certainly. That is part of our work if 
we are establishing a regulation. But the model for the Bay is 
simple. It gives an allotment to each state and then states 
come up with plans, watershed implementation plans, that they 
develop, and they say how we are going to meet their diet, how 
they are going to meet their allotment. And EPA's job and our 
best purpose, respectfully, is to try to work with states, to 
let states be in the lead, but to make clear we have an 
obligation under law as well to ensure that they make 
reasonable efforts.
    We have also worked very hard with USDA and support putting 
resources into agricultural sectors in the Bay region to try to 
continue to help them. I would agree that agriculture has made 
some real strides in reducing nutrient pollution. I would also 
respectfully state there is more work to do.
    Mr. Holden. I don't think anyone in the process would 
describe it as simple--that I have talked to. You said you have 
examined the lawsuits case by case, Ms. Jackson. If you can 
tell me, what is the status of the American Farm Bureau and the 
Pennsylvania Farm Bureau suit for implementation of the Bay 
program?
    Ms. Jackson. I know that the American Farm Bureau has sued 
us to stop implementation of the program. In terms of the exact 
status of the suit, I don't know if we have entered discovery 
yet.
    Mr. Holden. Moving on to another subject. We all hear from 
our rural co-ops that they are concerned about EPA regulation 
on their coal-fired plants. I would just like to remind you as 
you move forward that we have made a lot of progress in coal 
country since the implementation of the Clean Air Act, and we 
can make further progress. But I caution you about going too 
far. I would say the same thing about fly ash. And I would like 
to invite you to come to the anthracite coal fields of 
Pennsylvania and see the progress that we have made in an 
environmentally sound way.
    Prior to 1968 or 1969 before we had reclamation laws we had 
100 years of dumping waste coal, raw coal, that was dumped 
there. They were eyesores. Terrible. After the reclamation 
laws, we were able to find ways to use that waste coal and we 
are turning it into electricity, while cleaning up our 
environment.
    As a result of that, we have created hundreds of jobs. I 
would also caution as you move forward with regulation of fly 
ash to take into consideration that we are cleaning up the 
environment. We have job creation in the coal fields. And I 
would invite you to come to Pennsylvania and look at it.
    I yield back, Mr. Chairman.
    The Chairman. The gentleman yields back his time.
    The chair now turns to the gentleman from Illinois, Mr. 
Johnson, for his questions.
    Mr. Johnson. Thank you, Administrator, for being willing to 
be here with us. Just by way of quick background, I have a lot 
of pride as a Member of Congress in my record on the 
environment. I have a great deal of pride in the agricultural 
district that I represent. But what I have a great deal more 
pride in, I think every other Member of this Committee does 
too, is our commitment to separation of powers. I would suggest 
to you, Madam Administrator, that your Agency in particular, 
not you particularly, but your Agency in particular, has 
grossly violated and overstepped any reasonable limitations 
with respect to the Executive Branch of the government.
    Before we let your, I hope unintentional comments in your 
opening remarks go un-responded to, let me just specifically 
mention those three that you did, as well as some others. You 
talk about the urban myth with respect to the SPCC and milk as 
oil.
    The fact of the matter is that you recognize that as soon 
as you took office in January of 2009, that your Agency 
specifically withdrew the proposed exemption that the previous 
Administrator would have exempted milk from the Spill 
Prevention, Control, and Countermeasure rule. You mentioned 
spray drift. I would specifically bring your attention to the 
fact that the EPA draft guidelines specifically provide or 
would have provided for a zero tolerance level.
    You mentioned dust and the ``exaggeration'' with respect to 
dust. I would bring your attention to the fact that EPA staff 
recommended having a reduction of 100 percent of coarse 
particulate matter with respect to routine--if you want to call 
it routine--agricultural dust. I would also point out that over 
the course of your Administration and this Administration in 
effect--you can call it a cow tax--but the effect of many of 
your policies specifically by rule--not those of us who are 
elected to Congress, but by rule--to enact what amounts to a 
quasi cap-and-trade rule simply through your Agency.
    I would also point out to you that with respect to 
atrazine, to backyard ponds and application of the Clean Water 
Act, your Agency has, time after time after time, intruded on 
the legislation authority. I am not suggesting that you have 
any ill intention. I am suggesting, however, Madam 
Administrator, that your Agency has been absolutely the poster 
child, if you will, for usurpation of legislative authority. I 
can only speak for myself. I know the Chairman, the Ranking 
Member, and other Members of this Committee are gravely 
concerned about what EPA is doing, and specifically, as it 
relates to agriculture.
    In the agricultural sector, I don't think I am over-
speaking the case when I say that agriculture has been for the 
history of this country the backbone of our economy. It is the 
foundation of America. I think sometimes people from urban 
areas recognize that maybe a little belatedly. I think we all 
do, urban and rural both.
    We are asked as a farm economy in a burgeoning world 
population that is projected to triple at some reasonable time 
here to feed the world, to feed America, at the very same, 
Madam Administrator, that your Agency and USDA and others, are 
conducting in a contravening manner regulations, economic 
burdens, settlement of lawsuit is a systematic attack on 
American farmers.
    We are asked on the one hand--we asked our farmers: Feed 
the world. Become more productive. And at the same time, we 
have an Agency that is doing everything in its power to limit 
the tools that American agriculture has to do its job. I would 
suggest to you that that is counterintuitive and something we 
on this Committee, and most Americans, don't like. I am not 
putting the blame specifically on you. I am simply indicating, 
Madam Administrator, that there are clearly some mixed messages 
that we are getting from your Agency and the Administration 
generally.
    Let me ask you one question: I realize I am down to 45 
seconds. I assume you are concerned about agriculture. I am 
interested to know in the 30 seconds you have left what your 
agricultural background is and what you believe the 
relationship is between EPA, and an agriculture economy that is 
being absolutely bombed by the entreaties of your Agency. Do 
you have agricultural background, for example?
    Ms. Jackson. No, sir. I eat food and I eat meat and I drink 
milk.
    Mr. Johnson. Congratulations on being aware of that. 
Because, quite frankly, a lot of people aren't. I hope your 
subordinates would follow your example, realizing that we all 
eat. But go ahead.
    Ms. Jackson. Certainly, growing up--I am a city girl. I 
grew up in New Orleans, Louisiana. I had cousins who grew up--
what we would call up the river--who did farm and keep animals. 
My great aunt did. And I visited her many times in the summer. 
I think those connections are important. And I have a 
tremendous respect for the agricultural sector. And as I said 
in my opening remarks, I believe that stewardship of the land 
and strides made in stewarding the land have led to not just 
improvements in our environment but incredible productivity in 
our economy.
    Mr. Johnson. Well, thank you for your answers. Thank you 
for your patience. I hope you will stay around for a second 
round of questioning because a lot of people on both sides of 
the aisle are gravely concerned about what your Agency is doing 
specifically to our agricultural sector.
    Thank you.
    The Chairman. The gentleman's time has expired. The chair 
now turns to the gentleman from California, Mr. Cardoza.
    Mr. Cardoza. Thank you for being here today. I have to tell 
you that I agree with the sentiments that all my colleagues 
prior to me have shared. I would tell you that I believe that 
your Agency is the most unpopular agency in farm country from 
sea to shining sea, bar none. My first question to you is, have 
you heard of the term judicial activism?
    Ms. Jackson. Certainly.
    Mr. Cardoza. I would submit that your Agency often pursues 
a course of agency activism; where you want to have 
jurisdiction over an issue but the law may not quite say so. 
And so what Mr. Peterson and others are talking about here is 
that you settle suits that allow you to then go and pursue a 
course of action that you may not the right to do within a law. 
Do you have a comment with regard to that?
    Ms. Jackson. Yes, sir, I answered that question earlier but 
I am happy to repeat. What we do in settling lawsuits is 
consult with lawyers to determine whether or not we think there 
is significant risks; what the law requires.
    Mr. Cardoza. I did hear that previous explanation. You said 
as part of that explanation that you settle suits based on the 
grounds that you believe you can live with, if I recall your 
quote correctly. Madam Administrator, you may be able to live 
with them, but the farmers in farm country can't, oftentimes. 
The realities are that you are making it much more difficult 
every day to do exactly what my colleagues here, Mr. Johnson 
and others, have talked about--providing the food, fiber, and 
benefits of farming to our constituents.
    I would like to ask you a specific question regarding 
recently proposed rules to withdraw food tolerances of sulfuryl 
fluoride, a product critical to the protection of U.S. 
agriculture and especially specialty crops in California. This 
move is puzzling to me because it will negatively impact public 
health by increasing the potential for contamination and 
diminish producers' ability to export goods to foreign markets. 
Why is EPA issuing this proposal now? Can you tell me who are 
the actual beneficiaries of this EPA proposal? And why is the 
Agency taking such action, given the importance of this product 
to agriculture and public safety?
    Ms. Jackson. Yes, sir. The EPA's Office of Pesticides 
Programs found through their analysis that the tolerance of 
sulfuryl fluoride in food did not meet the Federal Food Safety 
Act, the child safety standards that we are authorized by 
Congress to employ. Those tolerances became an issue because we 
were sued. On the plain facts of the law, we could not make an 
argument that the tolerances were acceptable. This issue is 
also related to fluoride in drinking water. We have, for quite 
some time, been working with the agriculture sector, within the 
confines of the law, to give them time to phase out use of 
sulfuryl fluoride. A person's intake of fluoride is determined 
by many things, including, in a very small way, sulfuryl 
fluoride.
    Mr. Cardoza. Madam Administrator, are you aware of any 
member of your Agency, including yourself, who has ever 
requested an outside group, environmental organization or other 
group, to sue your Agency?
    Have you ever sought out a suit?
    Ms. Jackson. If you are asking me if I have personally 
sought out a suit----
    Mr. Cardoza. Anyone from your Agency.
    Ms. Jackson. Not that I am aware of, sir. That would be 
highly inappropriate.
    Mr. Cardoza. I agree with you about that. Every year USDA 
and EPA works in conjunction to release the Pesticide Data 
Program Report. This report is an important tool for EPA in 
setting those tolerances that you just talked about for 
pesticide residues of various commodities. The report 
demonstrates a robust reporting process, and year after year 
shows the vast majority of fruits and vegetables fall 
overwhelmingly below the tolerances set by EPA.
    Yet every year there are groups which misconstrue this data 
to suggest conventionally-grown commodities are unsafe for 
consumption. Can your office begin defending both the robust 
process which generates the reports, and the findings which 
demonstrate that the safety of the food supply is, in fact, 
safe?
    Ms. Jackson. Sir, the Agency is committed to doing its job. 
It is required to do that report. I committed to using the best 
science possible in that report. I will simply say this. Our 
Office of Pesticides Program has been working for decades now 
under FIFRA, under the law, reviewing pesticides, making 
registration decisions, making tolerance decisions, making 
labeling decisions, oftentimes with very little controversy. We 
review hundreds of those a year. So, yes, we are committed to 
doing our job and not--it is not our job to opine on the report 
but simply to produce it for the public.
    The Pesticides Data Program Annual Summary is produced by 
USDA, and the data is used by EPA in developing risk 
assessments for pesticides.
    Mr. Cardoza. Mr. Chairman, may I ask a follow-up on that?
    The Chairman. Seeing no objection, 1 additional minute.
    Mr. Cardoza. My point is, Madam Administrator, that if you 
generate a report that is generating controversy and is being 
erroneously misconstrued, if the report indicates the food is 
in fact safe, but others are saying it is not, based on your 
report, don't you have an obligation to defend the food safety 
of this country and the misinformation that is being put out 
there about the food supply?
    Ms. Jackson. I believe our obligation is to present the 
facts based on good science. And obviously what other people 
say or do in our democracy is up to them.
    The Chairman. The gentleman yields back his time. The chair 
would like to remind Members that they will be recognized for 
questioning in the order of seniority for Members who were here 
at the start of the hearing. After that, Members will be 
recognized in the order of arrival. I appreciate my colleagues' 
understanding.
    With that, the chair turns to the gentleman from Texas, Mr. 
Conaway, for his questions.
    Mr. Conaway. Thank you, Mr. Chairman. Madam Administrator, 
thank you for coming. As the Chairman said, I am from Texas. We 
have a particular angst about your Agency and the way that you 
have treated the entire state with respect to the Clean Air Act 
and the partnerships that we previously had and we are working 
on it. But that is not my question.
    As I talk to farmers and ranchers in my district, much like 
Mr. Cardoza, I get some of the angriest, harshest comments 
about your Agency from them. And they are mad. But underlying 
that mad is a fear of your Agency. And it is quite unbecoming 
of an American Agency like yours to be feared by the folks that 
they believe you are putting them out of business, almost 
intentionally. You have a wonderful opening statement that you 
didn't read. You say the perfect things: At the same time, I am 
very aware farmers operate under unique and challenging 
circumstances, small margins, international competition. 
Perfect. Couldn't have said it better myself. I may plagiarize 
it and use it at some point in time. But when you put out 
regulations that, specifically and on purpose, raise their cost 
of doing business and make them less competitive, or put them 
at a disadvantage to the rest of the world, then they begin to 
fear your reach into their quiet lives.
    I live in Midland, Texas. I was driving to Garden City, 
Texas, which is a beautiful spot, the other day, and the wind 
was blowing 40 to 50 miles an hour. It wasn't farm country, it 
was just pasture. The coarse particulate was so thick across 
the road, we had to drive very slowly because we couldn't see 
through it. Your statement at page 15 says you will issue 
standards on coarse particulate matter. That puts--the folks at 
west Texas, who are used to a way of life in which coarse 
particulate matter is a way of life, don't quite understand how 
you could put standards in place of whatever level that they 
could abide by. And so that creates this disdain for your 
Agency because of the way it looks under their watch.
    With respect to the EPA and the Administration--the Federal 
Government is about to regulate waterways. Is it the intent of 
the EPA and the Administration to have the Federal Government 
regulate waterways and to regulate and enforce how farmers will 
operate their farms, or will it respect the Congressionally-
mandated partnership between EPA and the states established 
under the Clean Water Act, particularly in light of how Texas 
has been treated recently with respect to the Clean Air Act?
    Ms. Jackson. Well, sir, I think you are getting at nutrient 
pollution, is that right? It is our intent, with the exception 
of the State of Florida, where we were required under an 
agreement reached by the previous Administration----
    Mr. Conaway. I understand that. Would you compare that then 
to what you did under the Clean Air Act with respect to 
stripping Texas of the opportunity to continue to run a 
permitting process that has demonstrably improved clean air in 
Texas. And yet you and your Administrator in Dallas apparently, 
in what appeared to be to us in a pretty arbitrary way----
    Ms. Jackson. There is one very clear similarity, which is 
the decision that the Texas permitting program did not meet the 
Clean Air Act was also made by the Bush Administration.
    The permits in Texas do not meet the legal Federal 
requirements under the Clean Air Act, and we have been working 
in Texas to bring that program into compliance with Federal 
law. That determination was made in the last Administration. 
The work is certainly being done and joined here. And we work 
with several companies in Texas to get their permits up to 
speed.
    Mr. Conaway. But you took it away from the state.
    Ms. Jackson. We have not taken it away from the state. 
Although, in those cases where people need permits--for 
example, greenhouse gas permitting, where the state has sued us 
and has indicated they have no intention of amending their 
state implementation plan to deal with greenhouse gases, EPA is 
running the program in the state, because otherwise sources in 
Texas would have no way to comply with the law.
    Mr. Conaway. Well, I will wait until a second round. Thank 
you.
    The Chairman. The gentleman yields back the balance of his 
time.
    The chair recognizes the gentleman from California, Mr. 
Costa, for 5 minutes.
    Mr. Costa. Thank you very much, Mr. Chairman.
    Administrator Jackson, I appreciate the fact that you are 
here. I want to try to cover quite a bit of ground here in the 
5 minutes allotted. I want to talk about, obviously, the 
registration process for restricted materials, both herbicides 
and pesticides. I want to talk about the issue on dust, 
although that has been covered quite a bit. And I would also 
like to touch upon water.
    Before I do that, though, I want to get a clear 
understanding. I have dealt with these issues at the state 
level and now at the Federal level for many years; and you, as 
an Administrator, and all those who work under you, as those in 
California, first begin their task at looking at risk 
assessment versus risk management, right?
    Ms. Jackson. That is a framework we use quite often.
    Mr. Costa. And so when you are trying to assess the risk on 
the potential health and safety to folks, whether it is 
consuming food or folks just in everyday walks of life in rural 
America or everywhere else, you have to make an assessment in 
where you can do the most good to protecting that health and 
safety, right?
    Ms. Jackson. Certainly, sir.
    Mr. Costa. It just seems to me that all too often, all too 
often, as the science has gotten better, as we look at parts 
per million, which was the initial ability to test 20, 30 years 
ago, to parts per billion, which we were able to do in the last 
15, 20 years, to now parts per trillion, that we do ourselves a 
great disservice, whether it is at the Federal level or the 
state level, at attempting to chase down every part per 
trillion in making those assessments on risk management. Would 
you agree or disagree?
    Ms. Jackson. I would certain agree and have testified 
before that as science has gotten better, it makes those 
decisions harder, because we can see pollution we couldn't see 
before.
    Mr. Costa. But you make an assessment as to where the 
quantifiable risk is going to be. I mean, how many gallons of 
water do you have to consume per day at parts per trillion, as 
we have in naturally occurring arsenic underground that has 
been there for millions of years versus other protections that 
you could provide on something that is parts per billion or 
parts per million that you can have far more impact?
    I submit to you, you don't do a very good job of that--not 
you, personally, but the Agency--nor have we done a very good 
job of that for the last 20 years. We are out there chasing 
anything that is detectable. How do you make a quantifiable 
judgment on that basis?
    Ms. Jackson. When I got to EPA, one of the things I said 
was that we had to use sound science, the best science. And one 
of the other things that has happened is we have initiated 
numerous scientific studies to get facts so that people aren't 
operating from a precautionary approach as much as a knowledge-
based approach.
    Mr. Costa. We can talk about this a lot more. Let me get a 
little further into the weeds here, because I want to pursue 
that later on at a separate time.
    Why did your Agency decide to re-review the study with 
regards to atrazine?
    Ms. Jackson. There has been a lot of data, I believe the 
number is over 150.
    Mr. Costa. Everybody agrees, there has been a lot of data, 
and there has been review. Why did you decide to re-review it?
    Ms. Jackson. I would just like to answer the question.
    Mr. Costa. No, I know. But there----
    Ms. Jackson. So there was a review. It was based on data as 
late as 2003. Since 2003 up to 2009, there has been lots of 
data, including data from the registrant, on impacts from 
drinking water. So rather than have that data sit there and 
scare people, we decided to do a scientific review.
    Mr. Costa. Well, I don't think that it has been portrayed 
that way. Let me move on.
    It was talked earlier about--my colleague from Texas--I 
have to call them dust. We can call it PM10, or we 
can call it PM2.5 or coarse materials, but in 
Fresno, California, we just call it dust.
    What are you going to do to ensure that normal farming 
operations will not be considered noncompliant under any new 
large particulate matter regulations? I mean, we have made 
tremendous strides, as you know, in dealing with this issue in 
nonattainment areas.
    Ms. Jackson. I absolutely agree. And I also think there is 
a general acknowledgment that coarse particle matter is a 
health hazard, and that agricultural and rural areas have 
worked with their states and counties to minimize that where 
they can. The law requires a 5 year review.
    And I want to clear up another myth, because it was 
repeated again. EPA has not proposed a new rule on dust. We 
have not proposed tightening it. The review by the Scientific 
Advisory Committee, which is listed in the statute, says that 
it is equally possible to retain the current dust standard as 
to change it.
    Mr. Costa. Well, very quickly. We didn't get a chance to 
touch upon fumigants, soil fumigants, which are a critical 
situation. Notwithstanding the Montreal Protocols, the efforts 
to provide new tools for soil fumigants for a host of commodity 
crops is leaving little tools in the toolbox to allow us to 
compete when many of these fumigants are being used all over 
the world. And I for one believe--and, Mr. Chairman, thank you 
for your indulgence here--that the Agency has to do a far 
better job in allowing us to reregister and provide 
alternatives on soil fumigants than you have done thus far.
    Thank you very much. And I will wait for the second round 
of questions.
    The Chairman. The gentleman yields back his time.
    The chair now turns to the gentleman from Florida, Mr. 
Rooney, for his 5 minutes.
    Mr. Rooney. Thank you, Mr. Chairman.
    Ms. Jackson, my questioning is much along the lines of Mr. 
Goodlatte's in that I also sponsored an amendment to the recent 
continuing resolution to defund the EPA with regard to a 
numeric nutrient rule in Florida.
    As you may recall, last spring I, along with a bipartisan 
group from the Florida Delegation, met with you over at your 
building to discuss the numeric nutrient rule for Florida, and 
at that time we basically asked you for two things, and that 
was a true, independent, complete third-party review of the 
science, a third party agreed upon by yourself as well as the 
Florida DEP, Department of Environmental Protection. We also 
asked for a complete economic analysis of the rule, including a 
cost-benefit analysis. And the reason for that is there is a 
huge gap between the EPA and Florida's DEP and DACS estimate, 
what the estimate costs to be would be. The EPA says it is 
about $100 million a year, but Florida DEP and DACS estimates 
over $1 billion a year. So obviously there is a huge gap there, 
and there is a lot of unanswered questions here, which is the 
reason for the request.
    Additionally, you may remember that in our meeting you 
continued to refer to the needs of the plaintiffs in the 
lawsuit, and that you needed to be sensitive to the plaintiffs 
in this lawsuit, which I believe is Earth Justice. But you may 
also remember us pushing back, and I can say that over 21 
Members of the Florida Delegation out of 25 voted in favor of 
my amendment to defund your efforts, as well as our freshman 
Senator Marco Rubio, who entered similar language over in the 
Senate; our Senator Bill Nelson, who was successful in getting 
certain delays, a Democratic; our Governor; our Agriculture 
Commissioner Adam Putnam, who was then a Congressman, at that 
meeting. The State Attorney General, the Chamber of Commerce of 
Florida, the Rural Water Association, the League of Cities, and 
the Farm Bureau all vocally opposed this rule.
    So while I understand that you need to be sensitive to 
plaintiffs, I again remind you that we need to be sensitive to 
our constituents. And the fact that we don't have an agreement 
between all these parties--they are at least willing to try 
through some kind of third-party independent review--leaves us 
in the situation where it is us against you. And I kind of find 
it interesting that, so far, all the line of questionings 
between Members of this side of the aisle and that side of the 
aisle all seem to be us against you. And I have never seen that 
before as a Member of Congress, and I think that that should 
tell you something.
    My question is, where are we going? Where are we now? I 
mean, in the Senate the CR was voted down, so we are kind of in 
limbo. And I guess I just want to ask you, will you commit, 
moving forward, so that we can try to bring--I want to be the 
environmental Congressman from my district. I would love to 
have that feather in my cap, but I also represent a lot of 
farmers.
    I just want us to get to the point where the farmers, the 
Chamber of Commerce, Earth Justice can all sit down and try to 
come to a number that it is not just EPA's number, rather than, 
you guys are just going to have to deal with it, and I don't 
care if you don't think that you can get there.
    So as we move forward, can we get some kind of commitment 
that EPA and Florida DEP at least can come up with some kind of 
agreement to have a third-party review and try to make people a 
little bit happier even if they are not going to get everything 
that they want?
    Ms. Jackson. Sir, I am happy to continue our work. We have 
been working very hard with Florida DEP. There is a 15 month 
delay in implementation of the rule, as you know. Florida's DEP 
has set numeric standards and nutrient criteria around the 
state. We are working to review those to see where they can be 
used basically in place of the numeric standards we were 
required to do as part of the Bush Administration's settlement. 
So I am happy to continue to work--and also on the costs.
    I do want to point out that when we had that meeting, we 
did agree to do cost-benefit analysis. We did do it. There is 
still concern over it, and I am happy to continue those 
conversations. We agreed to do independent scientific review of 
the coastal standards. That is being done. That is why there 
are no estuarine standards proposed. And I am happy to continue 
to work on this issue.
    I just have to point out that, as you say, there is severe 
water quality degradation in Florida from nutrients, so I would 
like nothing better than to find a solution that works for 
everyone.
    Mr. Rooney. If I just may, I appreciate that. And the fact 
that we are looking for independent third-party review for the 
coastal, I think it is just as vital when we talk about the 
rivers, lakes, and streams as well.
    With that, Mr. Chairman, I yield back.
    The Chairman. The gentleman yields back.
    The chair recognizes the gentleman from Minnesota, Mr. 
Walz, for 5 minutes.
    Mr. Walz. Thank you, Chairman Lucas, for your time.
    And, Administrator Jackson, thank you for coming here 
today. Mr. Rooney kind of hit on what I hit on. I am not sure 
that we could get a unanimous vote that today was Thursday, but 
we seem to be getting along the same lines here.
    And while I agree with that, I hope it doesn't come to an 
``us versus you'' type of thing, because I come from a proud 
district, one of the leading agricultural-producing districts 
in the country, but also leaders in environmental standards, 
leaders of keeping that clean. And I know, as a father of young 
children, just like my agricultural producers that are fathers 
of young children, I want them to breathe healthy air, drink 
clean water, and enjoy the fruits that, again, as is often 
said, we didn't inherit this from our ancestors; we are 
borrowing this land from our children.
    So I don't think it is mutually exclusive to get and 
recognize our producers as also good stewards of the land and 
also those of us who want to see that continue on to get right. 
And if you will, I kind of take a ``don't throw the baby out 
with the bath water'' approach. Especially if the bath water is 
contaminated, we have to do that. But if it is not, get it 
straight.
    And I say this because as a young man I lived in the 
People's Republic of China for a few years, and I know when you 
have environmental degradation what it does. There are areas 
that have catastrophic problems.
    But what my colleagues are saying is true, Ms. Jackson. Our 
producers are deeply concerned. These are good folks that feel 
like they are being overwhelmed. They feel like their 
livelihoods are under attack. And, I think, quite honestly, 
that they feel a lack of respect that they are actually right 
on, that they are trying to make a positive difference.
    So I share that with you in understanding how difficult 
your job is, but my colleagues are right when they are saying 
this.
    I have a couple questions for you. I think one of the 
things for me, how do you go about cost-benefit analysis of 
different sectors of the environmental impact of changes? What 
would happen? And I agree, and I am glad you put to rest some 
of the myth from milk spills or things like that. But when we 
hear the dust issues--and you said, again, putting that to a 
myth--but when a rule, a real rule, is put into place, how is 
that economic impact assessed?
    Ms. Jackson. Well, we are required, as part of the 
administrative procedures, to look at the cost of the rule, how 
it affects the sector, and what benefits there might be, either 
public health benefits, especially in an air rule, or benefits 
to, say, fishing or other industries from clean water, drinking 
water benefits as well.
    Mr. Walz. Do you think Mr. Rooney's point, though, on the 
third party, the good point on this, a third-party analysis, 
and some of those things? Whether it is fair or not, people's 
perceived reality is their reality. My producers are very 
skeptical of EPA and their analysis on this. How do we get 
around that? How do we make science and data the driving 
factor?
    Ms. Jackson. And that is my goal as well, sir. I think that 
there are times when independent analyses are very important, 
like the National Academies independent analysis on Biological 
Opinions, like the work we are doing on atrazine. I know that 
is controversial, but that has been a very open, scientific 
process with a scientific advisory board who are looking at 
these questions. I actually think, at the end of the day, it 
will cause people to have the same level of information, if you 
will, because it is not EPA, it is not the other side.
    Mr. Walz. It is an important part. And this is not new to 
your tenure in this. I went back and I spent a lot of time, 
because it is a fascinating discussion. I think there is 
something to be learned on the banning of DDT and the 
implications. You know that. There is a whole stream of thought 
that goes from the far edge to some fairly mainstream science, 
but there was a cost-benefit analysis in how that was 
implemented, and we are at the point again where people are 
questioning that. So I thank you for where you are at on this.
    My question is, is there something better we can do from 
EPA to get out to the stakeholders? Can you do field hearings 
in our districts and things like that? I think it is important. 
I appreciate you coming, and I appreciate your trying to be 
candid, and there are great questions here. I would love to see 
my constituents have that ability to hear, to ask, to interact. 
I know my job is to represent them because you can't be 
everywhere, but is that something EPA would try and do? And it 
is not a PR tour. It is an informational tour, and it is the 
stakeholders believing they are being heard. I think these 
concerns on both sides of the aisle that producers don't feel 
like they are being listened to, those are valid from them.
    Ms. Jackson. Yes, sir. And anything I can do either 
personally or through the Agency to increase the amount of 
communication, I am happy to. We tried to count up. I know we 
have done hundreds of meetings with various folks just in the 2 
years since I have been Administrator at the political level, 
but I also think listening sessions are good. We have offices 
out in the various regions who do a lot of work as well, and I 
am personally committed to increasing the amount of time I 
spend on communication with this sector because it can only 
help.
    Mr. Walz. I certainly appreciate that.
    I yield back, Mr. Chairman.
    The Chairman. The gentleman yields back the balance of his 
time.
    The chair now turns to the gentleman from Ohio, Mr. Gibbs, 
for his 5 minutes.
    Mr. Gibbs. Thank you, Mr. Chairman.
    I want to pursue a little bit--I heard you say in your 
testimony, I appreciate if you said this--that the numeric 
nutrient standard, that it would not apply to other areas. 
Because I have heard rumors that there was thinking about the 
whole Mississippi River Basin. Is that true that that is not 
the plan and the intent of the EPA to move that way?
    Ms. Jackson. That is not the plan of EPA, sir. And I do 
want to be clear on that, because I know there is a lot of fear 
out there that other areas are next.
    We believe that states--and many states in the Basin have 
already done a great job of starting to cut down on nutrient 
pollution into the Mississippi River Basin. And we would like 
to----
    Mr. Gibbs. Okay. I got the answer.
    I want to follow up. I am a little concerned in the Florida 
situation, I am learning about that, and as you know, Florida 
is where all the phosphorus as a major crop nutrient comes 
from. And if we don't get it from Florida, I guess the other 
sources would be Morocco, Saudi Arabia and China, which would 
severely increase the cost to our producers across the United 
States.
    My understanding, there are some permits that have been 
lingering for several years to increase the mining capacity in 
Florida for that. So I have a general concern about permits 
not--I guess it would probably be section 404 permits or 
whatever they are, to move forward with those operations. And 
then, of course, I follow that a little bit more with the 
unprecedented action of the EPA here recently of revoking a 
permit after there was final approval done after 3 years. I 
know the EPA, you will probably say it was a veto, but it was a 
revocation, and I think that is unprecedented.
    So I would like a comment on what is happening in our 
phosphorus-mining operations in Florida that supply nutrients 
to our American farmers.
    Ms. Jackson. Sir, I would have to get that answer for you 
because I don't know the status of any permit cases down there. 
I haven't had any personal involvement.
    Mr. Gibbs. Well, we need to look into that, because I know 
there is one substantial permit that has been lingering since 
2006 or 2007, and it is key to keep those operations going down 
there.
    Also, what would be your definition of navigable waters?
    Ms. Jackson. That is a much debated and discussed topic. So 
I think I will--suffice it to say that I recognize in my job 
that the jurisdiction of the Clean Water Act and its 
limitations to navigable waters and the two Supreme Court cases 
that spoke to that issue are all very important and have 
created quite a bit of uncertainty out there in terms of 
jurisdiction.
    Mr. Gibbs. I am concerned about that. I know that your 
Agency will be putting out guidance to move forward to that, 
and I am just concerned that there is a broad expansion of your 
Agency's jurisdiction on that that is going to have an impact 
on our economy and agriculture in general. Wouldn't some of 
that be better left up to states; waters that go beyond what 
most people would consider navigable?
    Ms. Jackson. Right now, as a result of the two Supreme 
Court cases, there is great variation and confusion about what 
waters are covered under the Clean Water Act. So EPA has been 
developing--has not yet released, but if we do release, it will 
be with full public comment guidance that is intended to 
relieve some of that clarity. We have heard from the regulated 
community that they need certainty.
    I do want to point out that we are very well aware of the 
exemptions that agriculture currently holds from the Clean 
Water Act, and very respectful of the fact that those 
exemptions are statutory. And I don't see any way, nor, of 
course, any reason, to deal with that matter.
    Mr. Gibbs. On pesticides, would requiring pesticide users 
to obtain NPDES permits under the Clean Water Act--would that 
increase the environmental protection?
    Ms. Jackson. EPA took the position that there would not be 
a need to get a separate permit, but the courts found 
otherwise, sir. So the courts have ruled that if you apply 
pesticides to waters--not on land, not terrestrial 
applications, directly to water--then you need a Clean Water 
Act permit.
    EPA has been working with the states, and just recently 
requested from the court another delay to continue working with 
states, on what we call a general permit. General permits are, 
I will say, the least burdensome--I don't know any other way to 
say it--permit.
    Mr. Gibbs. I appreciate that. For the applicators, under 
the general permit, is there any protections in the Act that 
would protect the citizens from lawsuits? Is there any legal 
protections--when they are applying chemicals under a FIFRA-
compliant label, is there any protections?
    Ms. Jackson. That is exactly the problem. The court 
decision--if someone right now applies without a Clean Water 
Act permit, they could be subject to lawsuit, citizen suit. So 
the general permit would provide protection. It would require 
registration and protection. But it wouldn't--what we have been 
working on, it would not apply to people, it would only apply 
to land. And it doesn't apply to runoff or irrigation return 
flows. It applies if you apply pesticides to water on purpose.
    Mr. Gibbs. Thank you.
    The Chairman. The gentleman's time has expired.
    The chair now recognizes the gentleman from Oregon for 5 
minutes. Mr. Schrader.
    Mr. Schrader. Thank you, Mr. Chairman.
    Switching to forestry, if we may, for a minute, Madam 
Administrator. On January 12, you announced EPA would 
promulgate a rule deferring the regulation of biomass carbon 
emissions under the current greenhouse gas tailoring rule for 3 
years while the Agency reviews the impacts. I appreciate that 
actually. This is a case where a lot of scientists and 
community came together and there was bipartisan questioning. 
It seemed like a fairly sudden reversal of the old feeling that 
biomass fuel is carbon-neutral over its life cycle. So I 
appreciate you taking a longer view of it.
    Some particular questions just so I understand more exactly 
where we might be going. I think that one of the big concerns 
that I am hearing about, and have myself, is that the actual 
initial rule, the tailoring rule, introduced a little bias into 
the regulation of biomass carbon emissions. Can you assure us 
that that won't be the case, and that the proposed rule will be 
neutral on whether biomass carbon emissions ultimately require 
regulation?
    Ms. Jackson. The time frame that we announced, Mr. 
Schrader, was intended to make sure we could get the scientific 
data and information necessary to be able to look at the carbon 
emissions for various forms of biomass and be--and determine 
where we have carbon neutrality, where we might even have a 
benefit, and where there may be concerns.
    Mr. Schrader. But the interim rule itself will be neutral 
and not bias the ultimate outcome?
    Ms. Jackson. Yes, sir. I think I understand the question. 
Yes. The intention was to give us a full 3 years and to make 
another rulemaking before that expires so that biomass 
facilities wouldn't be subject to uncertainty in the meantime.
    Mr. Schrader. I really appreciate that. What certainty can 
I have that rulemaking will be finalized by July 1?
    Ms. Jackson. Well, EPA has committed to it. And I think 
that, again, it was intentional that we have the study and then 
commit to the rulemaking for the exemption. And, of course, 
that will go through public comment as well so people will get 
a chance to see it.
    Mr. Schrader. Very good.
    In that January 12 letter, you also committed to the 
scientific review of the biomass combustion, and you ensured, I 
guess the quote would be, ``will ensure that partners within 
the Federal Government and scientists outside of it with 
relevant expertise, claiming equal roles in the examination,'' 
kind of getting at some of the background questions we have had 
here, the third-party issues. This scientific review will later 
be followed up by the rulemaking.
    When can we expect to see an explanation how you are going 
to reach out to outside parties and when the scientific process 
will start?
    Ms. Jackson. Sir, let me get you a schedule through the 
chair for the record. But I will commit that we are looking at 
an independent process, and we have standards for peer-review 
and scientists. So that will be a very public process as well.
    Mr. Schrader. Very good.
    I guess another question that has been discussed a little 
bit is the Federal appeals court in Seattle has questioned the 
authority of EPA to establish by rule nonpoint source status of 
forest roads. I am a little concerned about that. Most of the 
roads are relatively indistinguishable between local county 
roads and farming roads. And I think, again, it has been 
brought out today in the hearing--does EPA plan, I guess, at 
this point to stand behind its longstanding regulation to avoid 
imposing additional burdens on forest owners and farmers and 
local governments by declaring what has been nonpoint source 
problems to be point source?
    Ms. Jackson. Please let me get an answer for you for the 
record, because I don't know off the top of my head where we 
stand with analyzing that court case and what it might mean for 
our Section 319 Program, our Nonpoint Source Program.
    Mr. Schrader. I appreciate that for the record. That would 
be great if that is possible.
    Mr. Schrader. Just a last editorial comment. I am concerned 
about the Agency. The tenor of the conversation here is pretty 
tough, and I have become more concerned. This is a tough, tough 
time for this great country of ours. The President has called 
out for a little less onerous regulation. And, I mean, I 
understand there are good people trying to do good work, but 
this isn't the time to beef up stuff in addition to what people 
are struggling to deal with already, whether it is a local 
community or a forester or a farmer.
    I am concerned at this point that we are looking a little 
bit like the Department of Education under No Child Left 
Behind. There is this artificial standard; the benchmarks keep 
getting moved. And even though you make progress, you fail. And 
I think that is where a lot of the rural communities and a lot 
of the farmers and, frankly, a lot of Americans are feeling the 
hurt right now. So just as a word.
    Thank you for your testimony. I yield back.
    The Chairman. The chair now recognizes the gentleman from 
Georgia, Mr. Scott.
    Mr. Austin Scott of Georgia. Thank you, Mr. Chairman.
    Ms. Jackson, I understand that we have a mutual friend in 
Dr. David C. Bridges, the President of Abraham Baldwin 
Agricultural College. You made a statement when you were in 
Georgia that, as the EPA Administrator, there was no more 
important agenda for the EPA than keeping farmers on the farms. 
And I think, as we have gone around this room, you can pretty 
much tell that it seems to us and those of us who want to 
support agriculture that we can either have the EPA on the farm 
or the farmer on the farm. And the farmer is certainly the one 
that I am in favor of. I certainly want my child to be able to 
swim in the same rivers I did I and understand that.
    But I want to ask just a couple of quick questions. Cost-
benefit analysis on environmental impact studies on your 
regulations, are they done? And how good of a job do you think 
that the EPA does in determining the loss of private-sector 
jobs by the new regulations that are proposed?
    Ms. Jackson. They are done, sir. And we certainly do the 
best job we can. We have recently stepped up our jobs analysis 
to try to make it more robust. EPA's history on the cost of 
regulations is that usually our estimates are much higher than 
compliance costs tend to be, and I think that is an effort to 
err on the side of the services.
    Mr. Austin Scott of Georgia. With that said, can you tell 
me what a self-contained breathing apparatus costs?
    Ms. Jackson. I don't know off the top of my head.
    Mr. Austin Scott of Georgia. Well, ma'am, your department, 
as I understand it, has said that every farmer must have that 
when they are spraying their field. And if you don't know what 
it costs, I mean, that is an additional cost to the farmer. 
Every time you say the farmer has to have something, it is an 
additional cost to that farmer. It means that they are less 
profitable and less likely to be able to stay in business.
    So who will be administering the registration and the 
fitting for the self-contained breathing apparatus?
    Ms. Jackson. Sir, can you give me a little bit more 
information? What regulation you are referring to?
    Mr. Austin Scott of Georgia. I will be happy to confer off 
the record. I don't want to waste the rest of my time here.
    I would point this out, and then, Mr. Chairman, I want to 
yield the rest of my time to Representative Fincher as we are 
about to go vote.
    I hear what you are saying about compliance-related issues. 
I would appreciate a meeting with you to discuss an issue in my 
district, where one of your--this was a paperwork violation 
where a constituent was fined $50,000 per house for not having 
lead-based paint disclosure forms signed. It was a paperwork 
violation. They were told if they paid it within 30 days, it 
would be reduced from $150,000 to $50,000. That is the 
approximate numbers on the case. That really is, for a 
paperwork violation--my personal belief is that that is very 
abusive, not from you, but from the individual member that 
works for you that did that.
    And with that said, Mr. Chairman, I would like to yield the 
rest of my time to Representative Fincher.
    Mr. Fincher. I thank you.
    Thank you, Ms. Jackson, for coming today and spending some 
time.
    As an active farmer, seven generations, I am very familiar 
with the procedures and taking care of the land, taking care of 
the air, taking care of the water. My family is committed to 
leaving the world a better place now for our children and in 
the future. But at the same time, Chairman Lucas, hit on this 
when we started the day. Where is the end? Where does the 
jurisdiction stop for the EPA? Is it just an end-around all the 
time? Don't you think we would be better off making these 
regulations at a state level more than the Federal Government?
    The image that the American people have, and especially the 
farmers at home--I mean, my district is very rural and very ag-
related--is that Washington doesn't know best, and the EPA is 
out of control. And basing so much information on science is 
where we should be, not just theory. And it is a real problem, 
and we just--we have to move forward. And we are going to do 
that, I think.
    But there is a divide now between home and here. And it 
just seems like every piece of legislation from the Clean Water 
Act and going down the line to spray drift--I mean, I have 
handled more pesticides probably than all of this room put 
together over my lifetime, and I am pretty healthy.
    Nobody wants to protect the environment any more than the 
farmers, but the states and local governments and the farmers 
can see after it and do a good job of it, I feel, without 
Federal bureaucrats breathing down our throats.
    The Chairman. The gentleman's time has expired. The witness 
may answer.
    Ms. Jackson. Well, all I can say, sir, is that I appreciate 
your position and admit to you that I ran a state program. The 
vast majority of EPA's programs of the Federal laws in this 
country are implemented through the states, as you must know, 
from the pesticide world and others. So thank you.
    The Chairman. The chair would note to the Members and the 
witness that we have four votes on the floor. These are the 
last recorded votes of the day. I would suggest that we will 
turn to the gentleman from North Carolina for his questions, 
Mr. Kissell, then we will stand in recess until the conclusion 
of votes and will return. We appreciate the cooperation of the 
Administrator. But I would ask Members to return promptly after 
the votes so that we may finish in the spirit of officially 
easing everyone's time.
    The gentleman from North Carolina, Mr. Kissell, for 5 
minutes.
    Mr. Kissell. Thank you, Mr. Chairman.
    Thank you, Madam Administrator, for being with us today. 
And I will move quickly, knowing that votes are coming up.
    Madam Administrator, perception is reality, and I think 
what you have heard today that there is a strong perception 
that the EPA does not fully understand, or is not ready to work 
as closely with the ag community in a lot of ways. You had five 
examples of myths earlier on. I am sure that, after having 
debunked those myths, we could fill that ledger up with many, 
many more. And that is part of the problem is that there is so 
much uncertainty that is involved.
    I would like to, as the Chairman did earlier, compliment 
the Agency and our Committee, too, of working together to 
counter the court ruling to come up with legislation that, in 
effect, does what we intended in Congress to do. And I think 
that, as an example, we probably should need to do that more; 
that you talked about and the Ranking Member talked about some 
of the court decisions that we accept or some of the lawsuits 
that we settle without perhaps having the Committee's input. 
And it is kind of like we just say, ``Okay, this is the best we 
can do.'' But is that the intent of what we want to do? And I 
think we need more communication.
    There is the idea of the law of marginal returns, that the 
additional requirements, what do they produce in terms of 
actually improving the environment? And I move into a question 
here, and it is along the lines of uncertainty.
    There is an industry that is a heavy industry, high-energy 
industry, located well out of my district that is interested in 
moving to my district. They are concerned about the 
particulates, the PM rulings. They can meet the EPA's standards 
now of 15 parts per billion, but there is that rumor out there 
that it is going to be changed to 12 to 14, which they could 
not meet even in a new facility. So they are kind of at the 
point of saying, why should we even try? Why should we improve 
if we can't meet what is going to be a new regulation?
    A large percentage of our farming income, we know, comes 
from off the farm, because farmers and their families just 
can't make enough money just simply farming. When we have 
industries that help provide those jobs in rural areas, but yet 
they can't come to those rural areas because of uncertainty, 
then that 12 to 14 parts per billion is almost down to the 
natural levels.
    What can we tell these companies that will help them feel 
more certain that they are going to have input and ideas that 
the EPA is working with them, as my colleague Mr. Schrader 
said, that this is not the time to really be looking for those 
extra ounces of regulation when they won't produce that much in 
terms of improving the environment?
    Ms. Jackson. Well, sir, any regulation EPA does is going to 
be subject to full public comment. There is quite a bit of 
stakeholder input on the development of Clean Air Act 
regulations. The particulate matter regulations, both fine 
particles and coarse particles particulate matter, saves lives. 
And so what the Clean Air Act says EPA must do is every 5 years 
review the science to determine how best to protect human 
health, how best to----
    Mr. Kissell. And I hate to interrupt, but I know my time is 
about up. But within the every 5 years, if there is 
uncertainty, what is it going to be next time, what is it going 
to be next time, how can industry plan, and how can our farmers 
plan and know with certainty?
    And I am going to yield back on that because I know 
everybody needs to go vote. So I appreciate it, and I yield 
back.
    The Chairman. We probably have 6 minutes before the 
conclusion of this first vote. I appreciate the Administrator's 
indulgence of our time and voting requirements. The Committee 
will stand in recess subject to the call of the chair.
    [Recess.]
    The Chairman. The House Agriculture Committee will 
reconvene to continue hearing from our witness, the 
Administrator of the Environmental Protection Agency. With 
that, I would now turn to Mr. Tipton for his 5 minutes.
    Mr. Tipton. Thank you, Mr. Chairman.
    Thank you, Ms. Jackson, for being with us this afternoon. I 
have a couple of concerns, obviously, as I think you probably 
heard throughout this afternoon, and it is really getting back 
to the costs that are being borne by the American people.
    I agree with your earlier statement, as I believe everyone 
does, that we all want clean air, we all want clean water, but 
there is a general sense that the EPA is over-reaching. As I 
toured throughout the Third Congressional District of Colorado, 
it was remarkable to me. We have held better than 27 town hall 
meetings, and within no more than 5 minutes, at each one of 
these meetings, the EPA and over-regulation impact on 
communities comes up.
    I think the primary concern ultimately is not necessarily 
with the goal. It is overreaching. And we are by de facto 
actions having regulatory tax increases on the backs of 
struggling American families right now, families, senior 
citizens who are on fixed incomes that simply can't afford any 
more. And the EPA continues to regulate and to pass those costs 
on in the forms of ultimate cost to the consumers. All of this 
regulatory activity does cost money. It is not only to the 
farmers and small businesses, but, as I noted, to the 
taxpayers.
    Concerning the budgetary pressures that we currently find 
ourselves under, the EPA and all Federal agencies, I would like 
to know how are you prioritizing your expenditures? 
Specifically, since that was part of the topic in today's 
conversation with you, was the revaluation of the atrazine a 
high-priority project for you to spend funds on, or do you 
believe that the appropriations that you are going to have for 
this are simply going to be limitless? When you are going to be 
going into the evaluation, are there going to be any of the 
other chemicals that you are just going to perform unscheduled 
reviews?
    Ms. Jackson. Thank you, sir.
    The reevaluation of the new science that has emerged on 
atrazine is part of our base budget, and we are intending to 
continue funding it so that we can complete it. It will 
actually be quite helpful because we know we are having a 
National Cancer Institute study that we have been expecting, I 
believe, next year. So there will be a need to continue to 
evaluate these studies that have been commissioned on atrazine 
and to continue our work.
    I see that very much as part of our commitment to sound 
science; that when new data are put before us, we try to make a 
priority of evaluating it, especially as studies start to build 
up.
    Mr. Tipton. I understand that.
    Would you care to comment in terms of some of the impacts? 
And I know you have to recognize it goes probably beyond the 
scope of this hearing, but into the broader EPA as well, the 
unfunded mandates that you are putting on communities, which 
ultimately go on the backs of hardworking people having a tough 
time paying their bills.
    Ms. Jackson. Every rule we do, every regulation, is subject 
to an analysis of its costs, an analysis of its benefit. That 
is no more true than the pesticide program, so important to 
this Committee, where we were required even in our registration 
decisions to look at cost-benefit. It is actually sort of the 
basis of how we evaluate a pesticide.
    So rather than unfunded mandates, what I have said is that 
our job is to implement the environmental laws. That is what 
EPA was created to do, and it is our job to do that, and to do 
it in a way that I hope is innovative, and that, consistent 
with the President's new Executive Order, gives value to the 
American people, gives benefit that outweighs cost.
    Mr. Tipton. When we are talking about value to the American 
people, have you ever considered having a pilot program rather 
than just establishing a new regulation? We take part of your 
$10.3 billion budget and actually spend it on fixing the 
problem rather than creating just more regulations and hiring 
more people?
    Ms. Jackson. A significant part of our budget goes out the 
door in grants to states, to community groups, to the State 
Revolving Fund, all of which are about funding programs that 
fix the problem. Our 319 Program, where we are spending so much 
money on nonpoint source pollution, there is funding, 
authorized, of course, by Congress, and appropriated to us for 
those purposes.
    Mr. Tipton. Mr. Chairman, may I submit a few more questions 
to the Administrator? I am just about to run out of time. I 
would be happy to submit those to you.
    The Chairman. Seeing no objection, so ordered.
    The chair now turns to the gentleman from Vermont for his 5 
minutes. Mr. Welch.
    Mr. Welch. Thank you very much, Mr. Chairman, Administrator 
Jackson. Thanks, by the way, for hanging in here. This is a 
long and contentious hearing in some ways.
    Many of the people who are affected by initiatives that are 
either legislation passed by Congress or regulations that are 
promulgated by the EPA under the authority granted by Congress 
are under some pressure to make adjustments, and we are hearing 
a lot of Members speak about that.
    I am from Vermont, and we have a significant dairy farm 
community. They have expressed to me some of the same 
frustrations. But I know some of the frustrations people 
express have more to do with what they think is in the 
legislation or they think what is being done versus what 
actually is being done.
    I just want to give you an opportunity to address a couple 
of the things that I hear commonly stated. Number one, a cow 
tax. A lot of my farmers literally were of the belief that 
Congress, with the EPA, passed legislation that would, in 
effect, put a tax on every cow. Do you want to speak to that?
    Ms. Jackson. Yes, sir. As I said in my opening statement, 
EPA has absolutely no intention, has never proposed a cow tax. 
That rumor was really started by lobbyists, and it was, what if 
EPA did it, and it became a fait accompli. We are not going to 
do it. We do not intend to do it. In fact, agriculture is 
exempt from greenhouse gas regulation.
    Mr. Welch. Thank you.
    Another major concern that all of us in Vermont have--and 
Senator Leahy has been working on this all the time he has been 
in the Senate--is to have a clean lake. Of course, that is 
affected by phosphorus and nitrogen levels. What is the policy 
of the EPA with respect to working with the state to try to 
establish a sensible plan that protects, in the case of 
Vermont, Lake Champlain?
    Ms. Jackson. I have made it clear that EPA is not in the 
business of taking over State Nutrient Programs. Phosphorus 
nitrogen pollution is significant. It is impacting our areas. 
But EPA's job is to review state work and work in partnership, 
collaborate as much as we can, because although we have an 
oversight role, we simply don't have the resources and are not 
nimble enough to do what a state can do.
    Mr. Welch. Another issue brought up to me by farmers, and 
this is a real practical problem, is the one of spray drift. If 
someone sprays, they are apprehensive--a neighboring farm that 
is, say, organic is apprehensive about what the effect will be 
on them. That is just a very difficult practical problem. How 
does the EPA see itself proceeding in that area?
    Ms. Jackson. It came to my attention that words that had 
been discussed for possible inclusion on a label would set a 
standard of no-spray drift. I have made it clear, and we have 
been working since as an Agency, to make sure that that is not 
the impact. To change the words, to work with state ag 
departments. Listen, nobody wants spray drift. No one wants 
pesticides anywhere except where they are supposed to go. So, 
of course, we want to see it minimized, but we don't want to 
set a standard people can't meet.
    Mr. Welch. Thank you.
    I want to step back just a minute to get your advice. Tom 
Davis, who is the former Chairman--Republican Chairman of the 
Oversight and Government Committee, and someone who testified 
before that committee just the other day--and who is an 
extremely capable legislator--suggested that when it came to 
saving money in consolidating programs, there is a lot of 
things Congress could do. But one of his recommendations was 
that we look in the mirror, because he pointed out that there 
are many different committees of jurisdiction that pass a bill, 
in this case on, say, job training, and write it so that the 
committee thereon has jurisdiction. As a result, you get 
duplication.
    One of the questions I have for you is would there be a 
better way for us in Congress to pass legislation on a given 
topic that would actually at the end of the day make it easier 
for the Administrator to administer, and for those who are 
going to be subject to the legislation we pass to deal with the 
regulatory and legal process?
    Ms. Jackson. Well, certainly I know that myself and some of 
my fellow Cabinet members are subject to jurisdiction of 
numerous, numerous committees. I would not comment on Congress 
doing its business except to say I actually welcome oversight 
even from committees that don't have direct jurisdiction on 
issues because, as we heard here today, it is an opportunity to 
talk about facts; to really, instead of talk past each other, 
to speak to each other.
    So jurisdiction is one thing. And I know that is going to 
be a very important issue when you look at trying to make 
government efficient. But it is also important that we find 
opportunities to talk to each other.
    Mr. Welch. Thank you. And I yield back.
    The Chairman. The gentleman's time has expired.
    I would serve notice to my colleagues in the speaking 
query, we have Mr. Southerland, Mr. Crawford, Mrs. Schmidt. We 
have Mr. Neugebauer, Mr. Ribble, and Mr. Thompson.
    With that, I turn to Mr. Southerland.
    Mr. Southerland. Thank you, Mr. Chairman. I appreciate it.
    Administrator, thank you for being here today. I know it 
has been a long day with our votes. I wanted to ask and inquire 
a little bit more.
    I am from Florida. I represent Florida's Second 
Congressional District. There is great concern. I understand--I 
was not here for the testimony--but I understand that 
Congressman Rooney had some questions regarding the numeric 
standards that we are struggling with in trying to prepare for 
what is coming. I am curious because I am hearing from our 
constituents, farmers as well as municipalities around the 
district.
    As far as the science, I know that the Chairman had a 
three-step requirement as far as the position that this 
Committee would take regarding rules that--things we are 
looking for. One of those was science. Another was economics 
and was it legal. But as far as the Science Advisory Board, I 
understand that the EPA Science Advisory Board has your 
blessing to explore deeper into these requirements regarding 
canals, coastal waters, and estuaries. And I wanted to get your 
thoughts, a little bit more definitive statement by you, about 
flowing waters and having the SAB expand their examination of 
these requirements in the area of flowing waters.
    Ms. Jackson. Can you be a little bit more specific?
    Mr. Southerland. Does the Science Advisory Board have your 
blessing to be able to examine deeper and further into the 
effects of these standards in the areas of flowing waters?
    Ms. Jackson. I believe our charge to the independent 
process, the Science Advisory Board, has been related to 
estuaries. It is what I committed do when I met with the 
delegation, that we would take a look at the science of 
estuaries, because there was still concern about setting those 
standards.
    Mr. Southerland. But as far as flowing waters--and I know 
that canals, coastal waters, and estuaries--but as far as any--
do they have your blessing to examine all waters affected by 
this standard?
    Ms. Jackson. No. The charge didn't include the inland 
waters. Those are the standards that have been promulgated and 
now have been delayed for 15 months. I think there is about 13 
months left on that.
    Mr. Southerland. So if they wanted to go into the flowing 
water issue, they would be allowed to do that.
    Ms. Jackson. They have a charge. We charge the Science 
Advisory Board. We ask them to look at certain scientific 
questions. Their charge has been for estuaries, coastal waters.
    Mr. Southerland. Right. I guess my question is: Would you 
charge them then to examine flowing waters?
    Ms. Jackson. If you mean by that inland waters, then those 
standards have already been done. They were based on the 
science of the Florida Department of Environmental Protection. 
And what we are doing right now is working with them not on the 
science, but on issues around implementation. What happens when 
Florida has already made a standard like in the lower St. 
Johns; does that take the place of the nutrient standard? Those 
kinds of issues.
    Mr. Southerland. I want to ask, second, and I know I am 
running out of time here, I want to ask regarding the economic 
impacts of these standards. I am concerned because I hear 
various facts. First of all, has EPA done, in your opinion, the 
proper economic effects to agriculture in the State of Florida 
with these standards being implemented?
    Ms. Jackson. We have done an economic analysis. We have 
come up with our cost estimates. In fact, the impact to 
agriculture is not particularly great. Much of the high costs 
we are seeing in some estimates are based on the need for 
reverse osmosis for every single effluent from every single 
municipality. We do not see a need for reverse osmosis. That is 
a very expensive technology, and we do not believe the science 
nor the standards will require that.
    Mr. Southerland. So as far as the studies that we are 
getting from the Department of Agriculture that talk about the 
cost, the total initial cost, of Florida agriculture that go up 
to as high as $3 billion, you challenge that?
    Ms. Jackson. I would say I don't think we are in a place 
where we agree. But I also believe that by continuing to talk--
and we have been working pretty hard with the Florida DEP on 
this--I think we can get to a place where we can all look at 
the numbers and agree on the assumptions that are made. It 
depends on the assumptions.
    But I will say this: I do not agree that reverse osmosis is 
needed to meet these standards. And that is what is driving the 
high cost estimates that I have seen.
    Mr. Southerland. But would you agree that the 
implementation of this rule without knowing the economic 
ramifications is reckless at best, and we would hurt people 
that--and these same studies suggest that upwards to 14,000, 
15,000 agriculture jobs affected in the State of Florida. 
Clearly, that has to provide some concern on your part.
    Ms. Jackson. Absolutely. I do not want the people of 
Florida, agriculture, anyone in Florida to see these standards 
as onerous to that degree where it would harm the economy. I do 
think the 15 month delay, part of that was intended so that we 
could work with the Florida Department of Environmental 
Protection. They have done excellent work to show on the ground 
how these will really play out. The idea of allowing people to 
substitute in other standards that they have already worked on 
to the extent that they are equivalent makes great sense.
    The Chairman. The gentleman's time has expired.
    The chair now turns to the gentleman from Massachusetts for 
5 minutes.
    Mr. McGovern. Thank you, Mr. Chairman. I want to thank 
Administrator Jackson for being here; and her staff.
    This feels like an episode of Survivor. It has been a long 
hearing so far. But I am new to this Committee, and I guess I 
would be considered an urbanite because I live in the City of 
Worcester, Massachusetts. I have heard and dealt with EPA in a 
number of areas. I have heard from a lot of farmers in the 
Commonwealth of Massachusetts and across the country about 
their concern about regulation and, more specifically, about 
the cost of implementing regulation and change. I guess there 
is this kind of natural tension between putting a mandate 
forward and then the cost that is associated with people 
complying with that.
    I just think it is important the record reflect that these 
aren't just kind of arbitrary mandates or regulations. We could 
question whether they are necessary, but the intent of this is 
to basically improve our environment and better protect our 
citizens.
    Some of my colleagues have raised their concern about the 
potential costs of air quality or clean water standards. But, 
it is important to note that peer-reviewed science shows that 
dirty air and water have significant health costs to Americans 
across the country.
    While we need to figure out a way to help farmers and small 
businesses comply with some of these regulations, I have an 
issue with phosphorus standards in one of my communities. It is 
very, very costly. People don't dispute the science, but in 
this economy how do you comply, and how do you comply in a way 
we don't put farmers out of business? So that is a concern that 
we are going to have to try to figure out. Maybe we can have 
some suggestions on how to help people make the transitions and 
comply better.
    I would like to have you discuss the public health benefits 
of ensuring that we have reasonable clean air and water 
standards, because, to me, that is what all this is about. I 
think every one of us here is dedicated to clean water and 
clean air; the challenge is how do we comply. But, it is 
important that the record reflect why we are doing all this 
stuff.
    Ms. Jackson. Right. Thank you, Mr. McGovern.
    EPA's mission is to protect human health and the 
environment. I think we all have agreed several times in this 
Committee that everyone is for a clean environment. I think 
most Americans see it as part of our citizenship that we have 
clean air and clean water.
    We just released a study last week. It was a required study 
looking at the Clean Air Act amendments just since 1990. By 
2020, I think it is $20 trillion in health benefits, those are 
avoided; hospitalizations avoided, asthma attacks, fewer 
premature deaths, hundreds of thousands of fewer premature 
deaths, because of our work under the Clean Air Act. And it is 
important to remember that all that happened while our GDP was 
going up, up, up. So, in general, not only do we pay for 
ourselves $30-$40 to $1, but we are an investment. It is almost 
like preventive medicine.
    The Clean Water Act, I have done a bit of international 
traveling. One of the Members mentioned it earlier. I think we 
should not underestimate the strategic opportunity for our 
country in clean water. We are blessed in this country to have 
an abundant supply of clean water. We just have to be good 
stewards of it. Although EPA does a lot of regulation, we also 
do a lot of investment through the State Revolving Funds, our 
319 Program, the U.S. Department of Agriculture's conservation 
programs, and water programs, in trying to help communities 
comply. But I also want to align myself. I understand that cost 
is very important, especially in small communities. It is 
something that we work very hard on the ground to try to work 
with those communities, and I am certainly not saying our work 
is done.
    Mr. McGovern. I appreciate that. I wanted to ask the 
question because sometimes there is this impression that there 
are bureaucrats who have nothing to do who come up with 
regulations and mandates just because they can. It is important 
that people know that there is a science there. We can dispute 
the science, and we can argue about whether or not the 
regulation is the right regulation, or the cost-benefit, but 
there is a reason why EPA moves forward on this stuff, and that 
is basically to try to protect the health and well-being of our 
citizens and protect our environment. I appreciate that.
    On the cost stuff, that is something we are going to have 
to grapple with, because the State Revolving Funds aren't big 
enough to deal with all the projects. In small communities 
there is a need for grants. Small farms asking to comply with 
some of this stuff, they don't have the money, they go out of 
business. So that is something that we are going to have to 
deal with as well.
    Anyway, I appreciate you being here, and I appreciate the 
work that you do, and I appreciate the work of your staff, too. 
Thank you.
    The Chairman. The gentleman's time has expired.
    The chair now recognizes the gentleman from Arkansas for 5 
minutes. Mr. Crawford.
    Mr. Crawford. Thank you, Mr. Chairman.
    Administrator Jackson, I will be brief due to the lateness 
of the hour. I will be quick.
    I represent a district that is the number one rice-
producing district in the United States. We have more rice 
acres in my district than any other place in the United States. 
You may or may not know rice is produced in standing water for 
a period of 45-60 days, 6-8 inches of standing water. Are rice 
fields subject to regulation under the Clean Water Act?
    Ms. Jackson. Active agriculture is not. Discharges from 
those fields could be, sir. I would have to double-check that. 
Agriculture in that way is not, although the new pesticide 
requirements could affects rice farming.
    Mr. Crawford. If I may, could you submit those for the 
record in the future? It would be a big help.
    I want to address a question I addressed to the Secretary 
of Agriculture a few weeks back in a hearing. I didn't receive 
a satisfactory answer from him. I am hoping you can help me on 
this. At the last minute I asked Secretary Vilsack about the 
specific means of communication in place between the Department 
of Agriculture and your department. Unfortunately, he was not 
able to provide this Committee with a satisfactory answer, and 
I am hoping you can. Can you speak to my concerns? Is there any 
kind of a protocol or liaison that exists between EPA and USDA?
    Ms. Jackson. Yes, sir. He is sitting right over my left 
shoulder. That's my ag adviser, Larry Elworth.
    Mr. Crawford. That is a big help, because I couldn't get 
that answer from the Agriculture Secretary.
    What dialogue are you having right now with ag producers 
before developing a new regulation or guidance?
    Ms. Jackson. Our dialogue is significant, and it has 
increased, thanks in part to Larry's relationship. I have a 
good personal relationship with Secretary Vilsack, with Tom, 
and it is my belief that we are partners in trying to do many 
of the same things. And oftentimes they have resources and 
understanding that really makes a difference. I think the 
ethanol rule was a perfect example of that. Without the USDA's 
input on crop yields, we would have come to a very different 
result.
    Mr. Crawford. So in the role of liaison, your colleague 
behind you there, he basically facilitates dialogue between not 
only USDA and your Agency, but also with farmers?
    Ms. Jackson. Yes, sir, with grower groups. I have met with 
several. Tom and I have done joint meetings with many of the 
commodities groups where I am going to be going out as I 
committed to earlier and doing a lot more direct communication 
myself. My staff does. He is out all the time. We also have an 
advisory group--an agricultural advisory group--that Larry 
works with. They are a Federal FACA that advises us on 
agriculture policy as well.
    Mr. Crawford. And what is the tone from the farm 
population? Because I have to tell you, every farmer that I 
have talked to in the last year and a half has been very, very 
upset at the nature of the regulatory burden they are facing 
with respect to EPA. Can you gauge a tone from the farm 
community?
    Ms. Jackson. Well, I take the expertise of this Committee 
in representing its constituents very seriously, and we need to 
improve. I think we are going to, because when we talk about 
what is really happening and get out there and establish lines 
of communication, it is always better than not.
    So, yes, there is fear and concern. Some of it is grounded; 
some of it is perception. Some of it might be based in a real 
case. And you have to deal with those on the ground where you 
find them.
    Mr. Crawford. Thank you. Nothing further. I yield back.
    Ms. Jackson. Sir, I just got an answer on the rice 
question. Rice water is considered irrigation return flow and 
is exempt from the new pesticide water permit.
    Mr. Crawford. Thank you.
    Can we count on that for the foreseeable future.
    Ms. Jackson. Yes, sir. But if you want to submit those 
questions for the record.
    Mr. Crawford. I appreciate that. Thank you.
    The Chairman. The chair now recognizes the gentlelady from 
Ohio, Mrs. Schmidt, for 5 minutes.
    Mrs. Schmidt. Thank you, Mr. Chairman.
    And thank you, Administrator, for being here.
    My first question is a follow-up to Chairman Lucas' 
regarding the Biological Opinions under the Endangered Species 
Act. Could you clarify for us what your plans are regarding 
external review?
    Ms. Jackson. Yes, I am happy to.
    Just today I signed a letter to ensure good science in the 
consultation process. So EPA, USDA, DOI and Department of 
Commerce has asked the National Research Council, which is part 
of the National Academy of Sciences, to provide us with 
independent advice on certain scientific and technical issues 
that arise as we work to meet our responsibilities on 
endangered species.
    We are asking the NRC, the National Research Council, to 
address questions such as what constitutes best available 
scientific data, best scientific methods for evaluating 
pesticides' exposures and effects, and other issues.
    Mrs. Schmidt. Thank you.
    A follow-up question to Congressman Gibbs regarding the NCC 
v. EPA, the April 9 deadline, and your asking for an extension. 
Have you received that extension?
    Ms. Jackson. Not to my knowledge, no, ma'am.
    Mrs. Schmidt. If we don't receive that extension, what are 
the farmers to do by April 9?
    Ms. Jackson. Well, if we don't receive an extension, then 
we are under order to get a permit out, and certainly this is 
not our preferred path because we think we have some more work 
to do on not only Biological Opinions on endangered species, 
but with the states.
    Mrs. Schmidt. Okay. I would like to turn to another issue, 
one that greatly concerns greater Cincinnati and has for some 
time, and it is bed bugs. It is not a comfortable issue. 
Administrator Jackson, the EPA held a national bed bug summit 
in April 2009 and again in February 2011 with the goal of 
reviewing the current bed bug problem and identifying actions 
to address it. While I agree with the intent of the summit and 
to some of the proposals, it seems as though the EPA is almost 
exclusively focused on outreach and prevention. Outreach and 
prevention are worthy and laudable goals, but it does nothing 
for people who actually have the problem now. Many of these 
people are living on fixed or lower incomes.
    For an example, I had an individual in my district who had 
bed bugs in his couch. He couldn't afford what it is going to 
cost, about $5,000, to eradicate them now, and so he used 
rubbing alcohol on the couch, and then he lit a cigarette. He 
no longer has a problem. He no longer has a couch. This is a 
real story.
    So what we had was a section 18 exemption, which allowed a 
product to be used in those cases and for bed bugs that were 
resistant to other issues. Now that extension seems to be off 
the table.
    My question to you is: What do we do with this growing 
problem? It is not just in Cincinnati, but New York City, 
Washington, D.C., and throughout the United States.
    Ms. Jackson. It is a growing problem, Mrs. Schmidt. EPA's 
position--what we were asked to do was review a section 18 
emergency exemption for Propoxur. EPA scientists reviewed it; 
reviewed it against the law, especially the Federal Food 
Quality Protection Act, which is about children's health, and 
determined that we could not make a finding of safety for 
general use of Propoxur to deal with bed bugs. We did offer to 
the state that if there with limited uses, places like senior 
citizens homes or nursing homes where there weren't children 
residing, that might be an appropriate use.
    Mrs. Schmidt. That is good to know. But, again, let me 
follow up. The way we can now eradicate bed bugs is take a 
home, tent it, make sure that we don't have any air flowing 
through, and then heat that home between 130-150, interrupted 
for 15 minutes. I dare say that is not safe to an infant. So 
what we are doing now isn't safe for children either.
    Ms. Jackson. They wouldn't be in the residence at the time.
    Mrs. Schmidt. How do we know? There is no guarantee.
    I will go on to another question.
    My other question has to do with a letter that my 
colleagues and I sent you regarding the EPA's draft pesticide 
registration notice, 2010-X, entitled, False or Misleading 
Pesticide Product Brand Names. The proposal would require 
registrants of consumer pesticide products to change trademark 
brand names if they contain words that EPA considers to be 
misleading, such as ``pro'' or ``green,'' even though the 
Agency has previously approved these names. These products have 
been thoroughly evaluated through the EPA's rigorous pesticide 
registration process, and many of these products have now been 
on the markets for decades.
    What evidence does the EPA have to suggest that consumers 
are confused by pesticide product brand names? Many of the 
potentially affected products are decades old and familiar to 
consumers.
    In his response to the letter, Assistant Administrator 
Owens stated: The EPA believes that only a very small number of 
products will be affected by a final PR notice. And the EPA, 
``believes that there are very few registrants, if any, that 
would actually need to change their product names, and that no 
significant adverse impacts should occur to the marketplace.''
    However, an industry estimate suggests that proposals would 
impact more than 5,000 currently registered pesticide products 
and result in a potential loss of approximately $2.5 billion in 
brand equity.
    What analysis did EPA conduct to support the conclusion 
that only a very small number of products would be affected? 
Can you explain the discrepancy between the EPA's prediction of 
the proposal's affect and that of the industry?
    The Chairman. The lady's time has expired. The witness may 
answer the question.
    Ms. Jackson. I did commit at a hearing, I believe, last 
week to Mr. LaTourette, who asked a similar question, to review 
the question again. He didn't ask as detailed a question as 
you, ma'am. So I will get you an answer for the record to a 
very long question. But I understand the issue, and I am happy 
to take a look at it in general, especially any economic 
ramification.
    Mrs. Schmidt. Thank you.
    The Chairman. The gentlelady's time has expired.
    Mr. Neugebauer, who is recognized for 5 minutes.
    Mr. Neugebauer. Thank you, Mr. Chairman. Thanks for holding 
this hearing.
    Ms. Jackson, thank you for being here.
    A little secret here. The reason I came to Congress is 
because of EPA. I have been a land developer, small home 
builder, and what happened during my tenure in home building is 
I watched the EPA in the Clean Air and Clean Water Act be 
stretched from its original intent to way beyond what I think 
the original intent of that legislation was. We were out 
spending thousands of dollars stringing silt fence up to keep 
water from running off into bar ditches in west Texas; that 
what used to be a definition of the Waters of the United States 
went from rivers and streams and lakes to a bar ditch in west 
Texas or a casual water indention in a pothole.
    I am very concerned, and I appreciate the fact that you 
mention that you want to make scientific-based decisions. And I 
believe you said you do cost-benefit analysis. I assume you do 
that for every rule that you put out, and I assume that you put 
out the findings and the supporting data and all of the models 
that are behind the analysis; is that correct?
    Ms. Jackson. Yes, sir, to the best of my knowledge. 
Different statutes require different amounts and kinds of 
analysis, but we do do them.
    Mr. Neugebauer. For the last 50 rules that you put out, I 
would like to see the supporting data that you put behind 
there. Was that data available for comment as well on the 
studies, or did you just report the results of the findings?
    Ms. Jackson. I am happy to make that available. I am sure 
it was publicly available.
    Mr. Neugebauer. I would like to see that, because one of 
the things that I think what you heard today--and one of the 
things about speaking last is everything that has been said has 
pretty much been said. But, what you hear today is a grave 
concern that the Clean Water Act and the Clean Air Act have 
been expanded way beyond what their initial intent is, and that 
there has become a huge drain on the economy in our country 
because a lot of us believe that these rules and regulations 
have gone way beyond their intent, but also that the cost-
benefit analysis is not there.
    Particularly I have a concern with this Administration when 
the Congress has decided not to take up greenhouse gases that 
all of a sudden EPA decided that they would interpret the Clean 
Air Act as giving them jurisdiction over there.
    So what has happened is that the court system, both from 
some very judicially active judges and some very active 
environmental groups, have taken these two Acts to levels that 
no one ever anticipated. So what I have finally come to the 
conclusion is that it is time to repeal both of those bills, 
both of those Acts, and start over, because evidently the 
definitions within those Acts were so vague that they have been 
over-interpreted so many times that I am not sure that we can 
fix it by going back and doing something piecemeal.
    Now, I am for clean air. I am for clean water. Everybody on 
this panel is. But we are at a tipping point in this country 
where I believe that the environmental enforcement, the 
environmental laws, have superceded the rights of--many 
individual property rights of individuals in this country; that 
it is a huge drain on our economy in that--I know there is no 
telling how many--it is probably trillions of dollars that a 
lot of these policies are costing us. And yet I am not sure 
that all of the decisions that have been made have been done on 
a scientific basis. What a lot of my colleagues, including 
myself, feel like is that we decide what we want the policy to 
look like, and we go find the science to back it up.
    So what would be your opinion on let us start off with a 
clean piece of paper, start off with the technology that is 
available today that wasn't available when these two Acts were 
put in place? Because when you look at what we have done with 
the environment, we have made huge advancements in the control 
of water pollution and air pollution since those two Acts were 
enacted.
    Ms. Jackson. I believe that both of those Acts--the Clean 
Air Act; the benefits of the Clean Air Act for Americans' 
health is projected to reach $2 trillion in 2020.
    Mr. Neugebauer. Where did that data come from?
    Ms. Jackson. That is an EPA report that was required to be 
produced.
    Mr. Neugebauer. Was this internally, or is there external 
verification of that study?
    Ms. Jackson. That study was up for public comment for 
almost a year.
    Mr. Neugebauer. That wasn't the question. Was it an 
internal or third party?
    Ms. Jackson. It is an EPA study, sir, but it was up for 
comment.
    Mr. Neugebauer. I think that is what we are seeing as part 
of the problem.
    Ms. Jackson. Over time and time again, the benefits of the 
Clean Air Act are $30:$1--average $30 to $1 for every dollar 
spent.
    Mr. Neugebauer. That $30 to $1, is that a study based on an 
internal study done by EPA, or is there external verification?
    Ms. Jackson. They are not EPA studies alone, sir.
    Let me just simply say in answer to your question, I 
believe fervently that the reason this country enjoys the air 
quality that it does, and the clean water, the plentiful, clean 
water that it does, is because we as a country have strong 
environmental laws. We lead the world in insisting that, yes, 
we can have economic growth, but that we want to protect the 
health of our citizens and the legacy of clean air and clean 
water. Those Acts are priceless, in my mind.
    The Chairman. The gentleman's time has expired.
    The chair now recognizes the gentleman from Wisconsin for 5 
minutes. Mr. Ribble.
    Mr. Ribble. It has been a long day. I am sure it has been 
equally long for you. I have never been in a Committee hearing 
quite like this where everybody agrees that you have problems. 
Typically there is a lot of debate and discussion.
    But, anyway, you said earlier when Mr. McGovern was 
questioning you that the mission of the EPA is to protect human 
health and the environment. I think that is consistent with 
your website. But alongside that very nice picture of you by 
your bio, it also says: She and a staff of more than 17,000 
professionals are working across the nation to usher in a green 
economy.
    When did your mission change from protecting human health 
to economics?
    Ms. Jackson. Our mission hasn't changed, sir. The website 
says many things, but it says, as you mentioned, that our 
mission is for protection of human health and the environment.
    Mr. Ribble. So how much time are you spending on a green 
economy then?
    Ms. Jackson. We believe that our work enables a green 
economy.
    Mr. Ribble. That is interesting, because many of the people 
that I talk to back in Wisconsin would very much disagree.
    It also says here that part of it is to renew the public's 
trust in the EPA's work. Based on what you have heard today 
from both sides of the aisle, Republicans and Democrats, how do 
you think you are doing there?
    Ms. Jackson. I think we can always do better. But I think 
that communication of facts, not myths, is an important part of 
that equation, sir.
    Mr. Ribble. I can tell you, as someone who has never done 
this before--and I appreciated Mr. Tipton's comments, because 
the EPA came up on almost every single campaign event I was at. 
It got to the point where I had staff members timing how long 
it would take before some citizen would start to talk to us 
about the EPA. The American people don't trust you. And you 
need to hear that, and you need to take that back, because they 
don't.
    Let us talk a little bit about boiler MACT. Is the boiler 
MACT rules that were just promulgated on February 21, are they 
a revision of the 2004 Act?
    Ms. Jackson. They are not a revision of the Act. They are 
regulations, sir.
    Mr. Ribble. Revision of the regulations.
    Ms. Jackson. I don't believe there were air toxic standards 
in place for boilers before we proposed and finalized them in 
February.
    Mr. Ribble. I am wondering, what assurances can I give the 
paper manufacturers and those using coal-fired boilers in my 
district that in 2 years or 3 years, after they invest hundreds 
of millions dollars and the industry sheds thousands and 
thousands of jobs, that you are not going to change the rules 
again?
    Ms. Jackson. That is a loaded question, sir.
    Mr. Ribble. It is an honest question. They are afraid you 
are going to do that.
    Ms. Jackson. If we hadn't done the regulations--those 
regulations have been required since the 1990 Clean Air Act. 
They are long overdue. We have finally, in 2011, finalized 
regulations that were called for decades ago.
    Mr. Ribble. Are you prepared for the loss of jobs that are 
going to result?
    Ms. Jackson. We have done economic analysis as well as jobs 
analysis of that rule, and I am sure you have seen our numbers. 
They show that the rule might be neutral or even create jobs, 
because they require investments here to deal with toxic air 
pollution.
    Mr. Ribble. I guess what I am hearing from manufacturers in 
Wisconsin is that they may prefer to invest elsewhere, that 
they may prefer to invest in other countries because of this 
regulation.
    Does the air in China ever get over here?
    Ms. Jackson. Certainly.
    Mr. Ribble. It does, doesn't it? India, same thing. It 
shows up over here, doesn't it? And so does it make sense to 
promulgate rules that are so difficult to comply with that it 
actually incentivizes, encourages businesses to go to countries 
where the rules are less stringent?
    Ms. Jackson. The boiler toxics rules that we came out with 
address mercury, acid gases, particulate matter. They are 
called for by the Clean Air Act as a public health 
intervention. Even with that, I have to say that the final 
rules are--we cut the cost on the final rules by half and still 
protect as many or more people under the standards we just 
promulgated, sir.
    Mr. Ribble. Given what you have heard here today from 
virtually everybody in the room, save one, what are you going 
to do with this? What is going to change at the EPA to give any 
hope back home?
    Ms. Jackson. Yes, sir, you can. You can tell them that I 
listen. You can tell them that we are going to redouble our 
efforts to speak and communicate with people about what is 
really going on; to talk about our rules, to reach out. We 
think we reach out now, but clearly we can do better. Please, I 
welcome any Member of this Committee in helping us get the 
facts of what is happening out back in your districts. We 
welcome that.
    Mr. Ribble. Thank you for being here today.
    Ms. Jackson. Thank you.
    The Chairman. The chair would note to the Members present, 
I still have Mr. Thompson, Mr. Huelskamp, and Mr. Gibson in 
line.
    Mr. Thompson.
    Mr. Thompson. Thank you, Mr. Chairman.
    Administrator Jackson, thanks for your time and patience 
here this afternoon. I want to go back to earlier at the 
beginning of the session, and Mr. Goodlatte and Mr. Holden and 
some others were talking about Chesapeake Bay. That is an 
important issue for agriculture within my Congressional 
district, certainly within the Commonwealth of Pennsylvania. 
Pennsylvania, by all indications, has made great progress in 
reducing our nitrogen, phosphorus and sediment loads into the 
Chesapeake Bay in recent decades. I strongly believe we are on 
a path to achieving our reduction goals through, frankly, 
conservation practices without the TMDLs. However, it is very 
clear to me that the EPA is ignoring this progress and is 
arbitrarily moving forward with these new mandates.
    New information on the current health of the Bay, frankly, 
would be very beneficial to our long-term success and our 
process, going forward. Has the EPA done any analysis on what 
this progress that we have already made in the Chesapeake Bay--
now, I am talking since we began to invest probably hundreds of 
millions of dollars over 30 years; investments all along that 
watershed. I guess that is my first question: Is there a 
current analysis on that progress, a longitudinal study over 
the course of those 30 years?
    Ms. Jackson. Sir, one of EPA's--EPA is required to monitor 
the health of the Bay and to monitor progress towards agreed-
upon clean-up measures for the Bay. So, yes, were are 
constantly doing that. The states are a large part of that. 
Different states do it in different ways. But, yes, absolutely.
    Mr. Thompson. That is great. I have not seen that data. It 
would be very helpful for me.
    In fact, I also want to thank you. I know that the Deputy 
Administrator will be joining my Subcommittee on Conservation, 
Energy, and Forestry, on Wednesday, which includes watershed 
jurisdiction. So if he could bring that data, that would be 
wonderful to see that longitudinal study just in terms of the 
status of the Bay's health over the course of those 30 years.
    In your written testimony you strongly suggest that 
developing TMDLs for the Chesapeake Bay watershed was, ``a 
truly collaborative effort.'' I recognize that the states had 
input in crafting the WIPs. The agriculture producers and 
associations, it seems to me, were left out of this discussion. 
If the creation of the TMDL truly was a collaborative effort, 
why are so many farmers, ranchers, and agricultural groups in 
the watershed so staunchly against it?
    Ms. Jackson. Well, sir, I don't want to speak for them. I 
think that they are concerned because they are concerned about 
the impacts on their businesses. What EPA's job to do is to 
implement the law. We are required--and we were sued--to 
implement a pollution diet for the Bay. So what we do is this 
is a regional problem. We give each state an allocation and we 
say, you figure out the best way to meet your allocation. If 
everybody lives by their allocation, the Bay----
    Mr. Thompson. And I understand that part. I just would like 
to get some clarification. When I say, ``live by the law,'' as 
I have spent time with the Constitution, I understand that. I 
put myself out there, as 434 other Members, to write law, but 
it seems like what you are implementing came out of an 
Executive Order. As I look at the separation of powers, we pass 
the laws. The Administration is required to implement what we 
pass. Much of what came out of the Executive Order in February 
2009 regarding this didn't come from the lawmakers, it came 
from the Administration.
    Has there been a cost analysis done yet in terms of the 
impact of this? I know this question has been asked a number of 
times, and you have kind of affirmed every time. So I am 
assuming that in terms of the cost analysis, cost-benefit 
analysis, on agriculture and the impacts on the agriculture 
community, that the answer is yes, that this cost-benefit 
analysis has been done.
    Ms. Jackson. Are you asking about the TMDLs specifically, 
sir? They are not regulation, so they do not have a cost-
benefit analysis----
    Mr. Thompson. Don't the implementation of TMDLs have a 
cost?
    Ms. Jackson. The watershed implementation plans, the states 
deal a lot with what the costs are and how they are going to 
finance the improvements. Many of the costs are actually borne 
by municipal treatment works.
    Mr. Thompson. I have had township supervisors ask me who 
they turn the keys over to on this issue alone. I know it is 
outside the jurisdiction of this Committee. And I am sure the 
Members on the Transportation and Infrastructure Committee may 
have some questions for you on that. But specifically, for 
agriculture, to implement a policy that didn't come out of--
frankly, you didn't really answer the question, that the 
agriculture community really were not consulted with in 
contributing to this. And the state plans--the state had their 
plans, and they were rejected. And so TMDLs really are coming 
from the EPA. So I would hope that--there needs to be, in fact, 
a cost analysis done. What is the cost to agriculture?
    You know, we live in a country where we are blessed. We 
have the most affordable, highest quality food in the world. 
And anything that threatens that is just absolutely wrong. And 
as everyone knows, we don't just feed this country, we feed the 
world. We are looking at almost seven billion stomachs, going 
forward, in the future.
    So I am looking forward to meeting the Deputy Director. We 
had a very nice conversation today, He seems like a very nice 
man, originally came off of a dairy farm in northern New York, 
and so I appreciate your time.
    The Chairman. Would the gentleman yield before he yields 
back his time?
    Mr. Thompson. Yes. I certainly yield to the Chairman.
    The Chairman. The point about the TMDLs, and I direct this 
wherever the appropriate answer comes from. If it is not a 
regulation, then what is the enforcement mechanism? If it is 
not a requirement, then what does it matter?
    Ms. Jackson. The TMDLs are implemented through the 
Watershed Implementation Plans developed by the states, sir. So 
if you want to think of it as that TMDLs basically allocate an 
amount of pollution that is allowable, and then states go back 
and live within their means. And the ultimate goal is, to 
remind everyone, is a cleaner Chesapeake Bay, which is so 
important to so many people who live around here.
    The Chairman. But still ultimately it is a regulation that 
is in force, that participation is required wherever it came 
from, whoever compelled the creation of it, it is a standard 
has to be met by your people. Correct, Congressman?
    Mr. Thompson. It seems that way. And if I could reclaim my 
time. And my question is, if it is not a regulation that comes 
from the EPA, if this truly goes back to the states Watershed 
Implementation Plans, then the state could choose, without 
consequence, not to implement it if the ownership is strictly 
on the state, as you have indicated.
    Ms. Jackson. No. I don't want to be misunderstood, sir, and 
I don't want to mislead you in any way. EPA has a role under 
the Clean Water Act to play in cleaning up the Bay. There have 
been longstanding goals that have been set and met repeatedly 
for Bay cleanup and Bay pollution. The Bay has gotten better on 
some indicators, but we still have a long way to go. And the 
primary problem is nitrogen and phosphorus, nutrient pollution. 
And it comes from all sources, not just agriculture.
    The Chairman. Do you direct local governments to produce 
these standards that then you compel obligation to follow?
    Ms. Jackson. Mr. Chairman, EPA developed the TMDL for the 
Chesapeake Bay, it was required to do so, and then turned to 
state government to then develop plans to achieve those limits.
    The Chairman. So, Director, you develop the standards. And 
then you direct the states to implement the standards in regard 
to the TMDLs?
    Ms. Jackson. In the case of the Chesapeake Bay, yes.
    The Chairman. How can we say it is not a Federal 
requirement----
    Ms. Jackson. It is a requirement that stems from the Clean 
Water Act, sir. But what I want to be clear about is that the 
Chesapeake Bay is special. It actually has legislative language 
about it in particular. So how we handle the Bay is a bit 
different. In many states, when you are dealing with nitrogen 
or phosphorus pollution, the states are developing those 
standards under the Clean Water Act as delegated authority.
    The Chairman. The gentleman has, by unanimous consent, 1 
more minute.
    Mr. Thompson. Thank you.
    So with that being the case, then I come back to the fact 
that actually I am just shocked that this has been proposed, it 
is going to be mandated on the states. It will be imposed on 
the agricultural community, let alone other parts of the 
communities outside the jurisdiction of this community. And yet 
the EPA is not--where I have heard the fact that the EPA has 
conducted cost-benefit analysis time and time again this 
afternoon, that is not being done with this, with TMDLs. That 
is so wrong. I think it is something we need to correct.
    Ms. Jackson. It is not entirely accurate, sir. There are 
cost-benefit analyses done as part of rulemaking. And I want to 
clear up one other--perhaps I am giving you a misperception. 
The TMDLs were published in draft. They were subject to public 
comment. This is not something that was done behind closed 
doors. It wasn't something that was a secret. EPA has been on 
the hook for well over a decade to develop these total maximum 
daily loads. And it has been a long scientific process, and 
there has been a lots of back and forth.
    Mr. Thompson. And I look forward to continuing this 
conversation with your deputy director again.
    And I would ask, in addition to the first documents of the 
longitudinal study of improvement on the Chesapeake Bay, that 
he also bring those cost-benefit analysis that you referenced 
this time that you said have been done. Thank you.
    Ms. Jackson. Please, just if I can just make sure that the 
record is not incorrect. I did not represent to you that there 
are cost-benefit analysis done as we would for regulation.
    Mr. Thompson. You said----
    Ms. Jackson. I said costs were looked at as part of this 
process and as part of the whip process.
    Mr. Thompson. But you specifically said there were cost-
benefit analysis as part of the rulemaking.
    Ms. Jackson. Yes, sir. But you asked me if I did cost-
benefit. And I pointed out that the TMDLs are different because 
they are not a full rulemaking. So I don't want you to leave 
with the impression----
    Mr. Thompson. Well, they have full impact on rural 
communities.
    The Chairman. The chair now turns to the gentleman from the 
big first district of Kansas for 5 minutes.
    Mr. Huelskamp. Thank you, Mr. Chairman.
    Madam Administrator, thank you for being here, first. A 
couple questions. I do appreciate the other answers, and many 
of my questions have been answered but I have one in 
particular.
    In Parsons, Kansas, there is an ammunitions dump that was 
closed during the BRAC closure process in 2005. While the Army 
is attempting to close the base and turn it over to local 
redevelopment authority, you have attempted to require the Army 
and the community to make environmental improvements to the 
facility above and beyond those that are statutorily mandated. 
From where does the EPA believe their statutory authority 
governing these particular demands come?
    Ms. Jackson. Sir, let me get you an answer for the record. 
I believe that base is part of the Base Realignment and Closure 
process, and therefore EPA has been asked to review cleanup 
standards as we often do under the BRAC closure.
    Mr. Huelskamp. And I appreciate that. It was closed over 
5\1/2\-6 years ago. It is my understanding that other Members 
of the Kansas Delegation have asked you and your assistants 
similar questions on this matter since November and they have 
never received a response. And if such authority exists, I find 
it difficult to believe that you wouldn't have a response in 3 
months. Have you been asked this question before?
    Ms. Jackson. I believe we have correspondence on it, sir. 
But I don't have my notes here with me.
    Mr. Huelskamp. Well, I appreciate that, and we and other 
Members of the delegation look forward to an answer after 3 
months.
    Additionally, I would like to ask one more question about 
greenhouse gas regulation. I am sure you understand that 
agriculture is certainly an energy intensive business. Whether 
it is fuel in the tractor, fertilizer for our crops, or 
delivery of the products, agriculture uses a great deal of 
energy throughout production. It is my understanding you have 
proposed regulations and suggested we need to provide 
additional greenhouse gas regulation particularly relating to 
CO2.
    How do I explain to my farmers that they are expected to 
have these additional energy costs that would come out through 
a cap-and-trade proposal or such and somehow compete on the 
international market?
    Ms. Jackson. Sir, please explain to your constituents that 
there is no cap-and-trade proposal. There is no proposal that 
impacts agriculture. Agriculture is not subject to EPA's 
mandatory greenhouse gas reporting rule.
    Mr. Huelskamp. No, Madam Administrator. I appreciate that 
answer; however, agriculture is an energy consumer. We actually 
have a permit for an electrical generation plant in my district 
that suddenly the EPA has inserted themselves in the process. 
Indeed, your regional administrator put an editorial in the 
paper in the middle of that process and demands more 
restrictions on climate changing emissions. That impacts 
agricultural and our cost of production.
    Is it normal for regional Administrators to send out 
editorials to newspapers, inserting themselves in the local 
permitting process?
    Ms. Jackson. I believe that the regional Administrator, 
Karl Brooks, was opining on whether or not the permit would 
comply with greenhouse gas reductions that might be anticipated 
by future rulemaking or by future lawmaking.
    Mr. Huelskamp. And who is anticipating those? I presume 
those are coming from EPA, and that is what Mr. Brooks had 
indicated. So are you telling me there that he was wrong in his 
opining that this plant would be impacted by these proposed 
regulations?
    Ms. Jackson. No, sir. I did not say that. What I said is 
that there are currently regulations on the book that govern 
construction of new power generating facilities for greenhouse 
gas.
    Mr. Huelskamp. Exactly. And do you not think that impacts 
the cost of production of agriculture?
    Ms. Jackson. I do not believe that regulation does not come 
without cost. What I have submitted to over and over again in 
all regulations, especially greenhouse gases, is that we can 
make moderate reductions, mainly through investments in energy 
efficiency, that will allow us to start to deal with greenhouse 
gas pollution.
    Mr. Huelskamp. Earlier in your comments, though, you 
indicated those regulations would not impact agriculture. I am 
here to tell you they do. Farmers are smart enough to 
recognize, if you raise the price of their electricity, it is 
going to raise their cost of production. And when America is 
the only country seriously considering greenhouse gas 
regulations, considering CO2 regulations, and 
actually implementing them in this process, as Karl Brooks has 
threatened in a letter to the State of Kansas, the newspapers--
I just want you to know, I just can't believe as a regulator 
that you would allow a regional administrator to opine in the 
middle of permitting process and become a political agent of 
the Administration. I mean, did he approve that letter ahead of 
time?
    Ms. Jackson. Did he? He wrote it, sir, so I assume.
    Mr. Huelskamp. Were you aware ahead of time that he was 
going to submit this letter to every major newspaper across the 
state and insert himself in what is a state process? And you 
know it is a state process.
    If I might have an additional minute, Mr. Chairman.
    The Chairman. Without objection, 1 additional minute.
    Ms. Jackson. My understanding of the letter as you are 
describing it is it dealt with Federal regulation of greenhouse 
gases, and whether the state permit, which is issued under the 
delegated authority of the Clean Air Act, was subject to 
forthcoming regulations.
    Mr. Huelskamp. And, Madam Chair, that permit had not been 
issued yet. That had not been issued yet. And I would ask that 
the EPA let that permit go forward. It was issued before 
January, and I am very concerned for my producers because that 
permit is for agriculture-based co-op and covers 66 out of my 
69 counties. And most of those owners of that co-op are farmers 
and ranchers. And what you do at the EPA, whether or not you 
think the cost of electricity impacts the cost of production, 
it seriously does and makes us to noncompetitive. Because 
Mexico is not going to do this, China is certainly not doing 
this, or other competitors in terms of the ag production will 
not do this. So thank you, Mr. Chairman.
    The Chairman. The gentleman's time has expired. We now turn 
to our final Member to be recognized for 5 minutes, the 
gentleman from New York.
    Mr. Gibson. Thank you, Mr. Chairman.
    Madam Administrator, thank you for being here today and 
your responses throughout the afternoon. I represent upstate 
New York. And the issue that I want to talk to you about is 
actually one that has been well trodden throughout the 
afternoon. It is the Chesapeake Bay watershed. Just south of 
New York State, we have a USGS monitoring site. And from the 
reports I have, the water supply that comes from New York from 
the origins and the watershed is basically clean, with healthy 
levels of nutrient and sediment, below pollution levels.
    Therefore, the perception of our farmers--not only in my 
district, but I am the only one in New York on the Agriculture 
Committee, so I will also speak for those farmers that are 
beyond New York's 20th District.
    The perception is is that including them in this program is 
really not necessary and onerous. And my question to you is, 
what research do you have that our agricultural community is 
contributing to the problem in the Bay? I will wait for your 
response on that before I continue.
    Ms. Jackson. Parts of New York are in the Chesapeake Bay 
watershed. I don't think that is disputed as a fact. And what I 
would like you to know, sir, is that during the process of 
looking at this pollution diet and figuring out loads, there 
was a lot of discussion with New York State, and particularly 
driven by agriculture about their concerns that they not get 
loads that were too onerous, especially for agriculture.
    Mr. Gibson. And the perception right now, though, is that 
the program that is going to go forward is one that is going to 
have extensive costs for our state and for what is viewed as 
not extensive benefits. So this goes back to the conversation 
that you have heard several times from Members, but also is 
tied to what an earlier Member talked about, about another look 
at these TMDL levels. So, I guess, I pass it back for your 
response to that.
    Ms. Jackson. Yes. Certainly I know that perception is out 
there. I guess what I would like to just simply say is a lot of 
work was done to try to adjust New York's load to account for 
the fact that you are the furthest away from the watershed. And 
simply put, it is sort of human nature. Of course, the benefits 
for the Chesapeake Bay are hard for New Yorkers, especially 
upstaters, to appreciate because you are far away. And I 
certainly respect that and appreciate that.
    Mr. Gibson. But the other piece of this is when you look at 
the cleanliness, the healthiness of the water as it moves from 
New York, we think we are doing darned well when you look at 
nitrogen levels. So to include us in this program from the 
perspective of our farmers, they don't get this. They view it 
as yet another attempt from the United States Government to 
step on them and to really be an impediment to their 
profitability.
    Ms. Jackson. So some of the adjustments to New York's load 
was in recognition of the reductions that are coming from the 
agricultural sector already, in some part, due to economic 
conditions and in other parts, due to work that is being done. 
So there is an appreciation that New York's contribution here 
is discounted, if you will.
    Mr. Gibson. Well, I look forward to staying engaged with 
your office. I also thank you for what you are going to do and 
what you are doing for Nassau and Rensselaer County. I yield 
back.
    The Chairman. It appears all Members of the Committee have 
had an opportunity to be recognized for 5 minutes. Before we 
would adjourn, I would be remiss if I did not thank 
Administrator Jackson for 3+ hours of her time and her insights 
in what probably is going to be an ongoing dialogue for some 
time. Thank you, Administrator.
    Under the rules of the Committee, the record of today's 
hearing will be remain open for 10 calendar days to receive 
additional material and supplemental written responses from the 
witness to any questions posed by the Member.
    This hearing of the Committee on Agriculture is adjourned.
    [Whereupon, at 5:52 p.m., the Committee was adjourned.]
    [Material submitted for inclusion in the record follows:]
Supplementary Information by Hon. Lisa P. Jackson, Administrator, U.S. 
                    Environmental Protection Agency
    During the March 10, 2011 hearing entitled, Hearing To Review the 
Impact of EPA Regulation on Agriculture, requests for information were 
made to EPA. The following are their information submissions for the 
record.
Insert 1
          Mr. Gibbs. . . . I want to follow up. I am a little concerned 
        in the Florida situation, I am learning about that, and as you 
        know, Florida is where all the phosphorus as a major crop 
        nutrient comes from. And if we don't get it from Florida, I 
        guess the other sources would be Morocco, Saudi Arabia and 
        China, which would severely increase the cost to our producers 
        across the United States.
          My understanding, there are some permits that have been 
        lingering for several years to increase the mining capacity in 
        Florida for that. So I have a general concern about permits 
        not--I guess it would probably be section 404 permits or 
        whatever they are, to move forward with those operations. And 
        then, of course, I follow that a little bit more with the 
        unprecedented action of the EPA here recently of revoking a 
        permit after there was final approval done after 3 years. I 
        know the EPA, you will probably say it was a veto, but it was a 
        revocation, and I think that is unprecedented.
          So I would like a comment on what is happening in our 
        phosphorus-mining operations in Florida that supply nutrients 
        to our American farmers.
          Ms. Jackson. Sir, I would have to get that answer for you 
        because I don't know the status of any permit cases down there. 
        I haven't had any personal involvement.

    EPA and other Federal agencies recognize the importance of 
phosphate mining in sustaining American farmers. We are working closely 
with the U.S. Army Corps of Engineers and the State of Florida to 
ensure that permitting decisions for proposed operations in Florida are 
made in a coordinated, timely, and environmentally protective manner.
    Several permit applications have been submitted to the U.S. Army 
Corps of Engineers under Section 404 of the Clean Water Act for 
phosphate mining operations in central and southwest Florida. The three 
specific relevant permit applications (and their Department of the Army 
file numbers) are CF Industries' South Pasture Extension (SAJ-1993-
01395), Mosaic Fertilizer LLC's Four Corners Surface Tract (SAJ-1995-
00794), and Mosaic Fertilizer LLC's Ona Mine (SAJ-1998-02067). To help 
coordinate the environmental evaluation of these permit applications 
consistent with the National Environmental Policy Act, the Corps began 
formal development of an areawide Environmental Impact Statement (EIS) 
in February 2011, in coordination with Federal agencies and the State 
of Florida. The EIS will help assess the human health and environmental 
impacts of these proposed operations, identify possible alternatives, 
and provide significant opportunities for public involvement. EPA is 
actively participating in the Corps-managed effort as a cooperating 
agency. EPA's contributions to the EIS will focus largely on water 
quality and other environmental effects within EPA's areas of expertise 
and responsibility. The Florida Department of Environmental Protection 
is also participating in the effort.
    The agencies anticipate completing the draft EIS by October 2011 
and the final EIS by August 2012. When complete, the EIS will provide 
the Corps, other Federal and State agencies, and the public with a 
better sense of the environmental effects of the proposed phosphate 
mining operations. This will enable permit decision-making to move 
forward on these applications.
    Additional information on the EIS effort is available at http://
www.phosphateaeis.org/index.html.
Insert 2
          Mr. Schrader. . . . In that January 12 letter, you also 
        committed to the scientific review of the biomass combustion, 
        and you ensured, I guess the quote would be, ``will ensure that 
        partners within the Federal Government and scientists outside 
        of it with relevant expertise, claiming equal roles in the 
        examination,'' kind of getting at some of the background 
        questions we have had here, the third-party issues. This 
        scientific review will later be followed up by the rulemaking.
          When can we expect to see an explanation how you are going to 
        reach out to outside parties and when the scientific process 
        will start?
          Ms. Jackson. Sir, let me get you a schedule through the chair 
        for the record. But I will commit that we are looking at an 
        independent process, and we have standards for peer-review and 
        scientists. So that will be a very public process as well.

    EPA is in the process of conducting a study of the scientific and 
technical issues associated with accounting for biogenic carbon dioxide 
(CO2) from stationary sources. That study will include both 
a review of the technical information, and the description and 
development of specific accounting options for biogenic CO2 
emissions from stationary sources.
    We have requested that the EPA Science Advisory Board (SAB) conduct 
an independent peer review of the study. Thus, the SAB will serve as 
the "independent scientific panel" cited in the January 2011 letters 
from the Administrator to Members of Congress announcing our plans to 
address biogenic CO2 from stationary sources and the March 
2011 proposed rule to defer biogenic CO2 emissions from the 
PSD and Title V programs (76 FR 15249).Members of the public are 
invited to provide input in the process by: (a) nominating candidates 
to the SAB panel; (b) commenting on the list of SAB candidates; and (c) 
providing written and oral comments on the EPA technical document that 
is submitted for the SAB's consideration.
Schedule
    On April 27, 2011, the SAB published a "Request for Nominations of 
Candidates for a SAB Panel on Accounting for Carbon Dioxide 
(CO2) Emissions from Biogenic Sources" (76 FR 23587). 
Nominations for inclusion on this panel are solicited from members of 
the public and are due by May 18, 2011. From the nominees identified by 
respondents to this Federal Register notice (termed the "Widecast") and 
other sources, the SAB Staff Office will develop a smaller subset 
(known as the "Short List") for more detailed consideration. The Short 
List will be posted on the SAB website at http://www.epa.gov/sab and 
will include, for each candidate, the nominee's name and biosketch. 
Public comments on the Short List will be accepted for 21 calendar 
days. During this comment period, the public will be requested to 
provide information, analysis, or other documentation on nominees that 
the SAB Staff Office should consider in evaluating candidates for the 
Panel.
Insert 3
          Mr. Neugebauer. For the last 50 rules that you put out, I 
        would like to see the supporting data that you put behind 
        there. Was that data available for comment as well on the 
        studies, or did you just report the results of the findings?
          Ms. Jackson. I am happy to make that available. I am sure it 
        was publicly available.

    Please see attached chart including links to each rule's docket 
where the requested supporting data can be found.

                                                              EPA's 50 Most Recent Final Rules, up to and including March 10, 2011
           [This list includes the fifty most recent final rules published prior to or including March 10, 2011, that were signed by EPA's Administrator and include regulatory text.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    No.        Publication Date              Docket ID                   RIN                           Title                                    Link to Docket on Regulations.gov
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 1                 March 9, 2011            EPA-HQ-OAR-2008-0708      RIN 2060-AQ78  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants for Reciprocating           #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Internal Combustion Engines                0708
 2                 March 4, 2011            EPA-HQ-OAR-2009-0517      RIN 2060-AQ77  Updating Cross-References for the          http://www.regulations.gov/
                                                                                      Oklahoma State Implementation Plan         #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                                                                 0517
 3             February 22, 2011           EPA-R07-OAR-2010-0932       Not Assigned  Approval and Promulgation of               http://www.regulations.gov/
                                                                                      Implementation Plans, Kansas: Prevention   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-R07-OAR-2010-
                                                                                      of Significant Deterioration, Greenhouse   0932
                                                                                      Gas (GHG) Permitting Authority and
                                                                                      Tailoring Rule Revision, Withdrawal of
                                                                                      Federal GHG Implementation Plan for
                                                                                      Kansas
 4             February 17, 2011            EPA-HQ-OAR-2010-0239      RIN 2060-AP48  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants: Gold Mine Ore Processing   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      and Production Area Source Category, and   0239
                                                                                      Addition to Source Category List for
                                                                                      Standards
 5              February 3, 2011            EPA-HQ-OAR-2007-0562      RIN 2060-AQ30  Additional Air Quality Designations for    http://www.regulations.gov/
                                                                                      the 2006 24-Hour Fine Particle National    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
                                                                                      Ambient Air Quality Standards, 110(k)(6)   0562
                                                                                      Correction and Technical Correction
                                                                                      Related to Prior Designation, and
                                                                                      Decisions Related to the 1997 Air
                                                                                      Quality Designations and Classifications
                                                                                      for the Annual Fine Particles National
                                                                                      Ambient Air Quality Standards
 6              January 24, 2011            EPA-HQ-OAR-2006-0406      RIN 2060-AP16  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants for Source Categories:      #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
                                                                                      Gasoline Distribution Bulk Terminals,      0406
                                                                                      Bulk Plants, and Pipeline Facilities,
                                                                                      and Gasoline Dispensing Facilities
 7              January 20, 2011            EPA-HQ-OAR-2005-0031      RIN 2060-AQ46  Standards of Performance for Fossil-Fuel-  http://www.regulations.gov/
                                                                                      Fired Electric Utility Industrial-         #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2005-
                                                                                      Commercial-Institutional and Small         0031
                                                                                      Industrial-Commercial-Institutional
                                                                                      Steam Generating Units
 8              January 18, 2011            EPA-HQ-OAR-2002-0051      RIN 2060-AQ59  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants From the Portland Cement    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2002-
                                                                                      Manufacturing Industry and Standards of    0051
                                                                                      Performance for Portland Cement Plants
 9             December 30, 2010            EPA-HQ-OAR-2010-0107      RIN 2060-AQ45  Action To Ensure Authority To Issue        http://www.regulations.gov/
                                                                                      Permits Under the Prevention of            #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      Significant Deterioration Program to       0107
                                                                                      Sources of Greenhouse Gas Emissions:
                                                                                      Federal Implementation Plan
10             December 30, 2010            EPA-HQ-OAR-2009-0517      RIN 2060-AQ63  Action To Ensure Authority To Implement    http://www.regulations.gov/
                                                                                      Title V Permitting Programs Under the      #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                      Greenhouse Gas Tailoring Rule              0517
11             December 30, 2010            EPA-HQ-OAR-2010-1033      RIN 2060-AQ67  Determinations Concerning Need for Error   http://www.regulations.gov/
                                                                                      Correction, Partial Approval and Partial   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      Disapproval and Federal Implementation     1033
                                                                                      Plan Regarding Texas Prevention of
                                                                                      Significant Deterioration Program
12             December 30, 2010            EPA-HQ-OAR-2009-0517      RIN 2060-AQ62  Limitation of Approval of Prevention of    http://www.regulations.gov/
                                                                                      Significant Deterioration Provisions       #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                      Concerning Greenhouse Gas Emitting-        0517
                                                                                      Sources in State Implementation Plans
13             December 27, 2010            EPA-HQ-OAR-2006-0735      RIN 2060-AP77  Revisions to Lead Ambient Air Monitoring   http://www.regulations.gov/
                                                                                      Requirements                               #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
                                                                                                                                 0735
14             December 27, 2010            EPA-HQ-OAR-2010-0929      RIN 2060-AQ80  Interim Final Regulation Deferring the     http://www.regulations.gov/
                                                                                      Reporting Date for Certain Data Elements   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      Required Under the Mandatory Reporting     0929
                                                                                      of Greenhouse Gases Rule
15             December 21, 2010            EPA-HQ-OAR-2005-0161      RIN 2060-AQ31  Regulation of Fuels and Fuel Additives:    http://www.regulations.gov/
                                                                                      Modifications to Renewable Fuel Standard   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2005-
                                                                                      Program                                    0161
16             December 21, 2010            EPA-HQ-OAR-2008-0348      RIN 2060-AO58  Methods for Measurement of Filterable      http://www.regulations.gov/
                                                                                      PM10 and PM2.5 and Measurement of          #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Condensable PM Emissions From Stationary   0348
                                                                                      Sources
17             December 17, 2010           EPA-HQ-RCRA-2009-0310      RIN 2050-AG55  Hazardous Waste Management System          http://www.regulations.gov/
                                                                                      Identification and Listing of Hazardous    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-RCRA-2009-
                                                                                      Waste, Removal of Saccharine and Its       0310
                                                                                      Salts From the Lists of Hazardous
                                                                                      Constituents & Hazardous Wastes &
                                                                                      Hazardous Substances
18             December 17, 2010            EPA-HQ-OAR-2008-0508      RIN 2060-AQ33  Mandatory Reporting of Greenhouse Gases    http://www.regulations.gov/
                                                                                                                                 #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                                                                 0508
19             December 14, 2010            EPA-HQ-OAR-2008-0334      RIN 2060-AQ89  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants for Chemical                #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Manufacturing Area Sources                 0334
20             December 10, 2010             EPA-HQ-OW-2008-0390      RIN 2040-AE98  Federal Requirements Under the             http://www.regulations.gov/
                                                                                      Underground Injection Control (UIC)        #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2008-
                                                                                      Program for Carbon Dioxide (CO2)           0390
                                                                                      Geologic Sequestration (GS) Wells
21              December 9, 2010            EPA-HQ-OAR-2010-0133      RIN 2060-AQ16  Regulation of Fuels and Fuel Additives:    http://www.regulations.gov/
                                                                                      2011 Renewable Fuel Standards              #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                                                                 0133
22              December 6, 2010             EPA-HQ-OW-2009-0596      RIN 2040-AF11  Water Quality Standards for the State of   http://www.regulations.gov/
                                                                                      Florida's Lakes and Flowing Waters         #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2009-
                                                                                                                                 0596
23              December 1, 2010            EPA-HQ-OAR-2009-0927      RIN 2060-AQ00  Mandatory Reporting of Greenhouse Gases:   http://www.regulations.gov/
                                                                                      Additional Sources of Fluorinated GHGs     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                                                                 0927
24              December 1, 2010            EPA-HQ-OAR-2009-0926      RIN 2060-AP88  Mandatory Reporting of Greenhouse Gases:   http://www.regulations.gov/
                                                                                      Injection and Geologic Sequestration of    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                      Carbon Dioxide                             0926
25             November 30, 2010            EPA-HQ-OAR-2009-0923      RIN 2060-AP99  Mandatory Reporting of Greenhouse Gases:   http://www.regulations.gov/
                                                                                      Petroleum and Natural Gas Systems          #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                                                                 0923
26             November 26, 2010            EPA-HQ-TRI-2010-0006      RIN 2025-AA28  Addition of National Toxicology Program    http://www.regulations.gov/
                                                                                      Carcinogens Community Right-to-Know        #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-TRI-2010-
                                                                                      Toxic Chemical Release Reporting           0006
27             Novmeber 22, 2010            EPA-HQ-OAR-2009-0443      RIN 2060-AP78  Air Quality Designations for the 2008      http://www.regulations.gov/
                                                                                      Lead (Pb) National Ambient Air Quality     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                      Standards                                  0443
28              November 8, 2010            EPA-HQ-OAR-2010-0142      RIN 2060-AO69  Revisions to In-Use Testing for Heavy-     http://www.regulations.gov/
                                                                                      Duty Diesel Engines and Vehicles,          #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      Emissions Measurement and                  0142
                                                                                      Instrumentation, Not-to-Exceed Emission
                                                                                      Standards, and Technical Amendments for
                                                                                      Off-Highway Engines
29              November 5, 2010             EPA-HQ-OW-2010-0884       Not Assigned  Direct Final Rule Staying Numeric          http://www.regulations.gov/
                                                                                      Limitation for the Construction and        #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2010-
                                                                                      Development Point Source Category          0884
30              October 28, 2010            EPA-HQ-OAR-2010-0109      RIN 2060-A079  Mandatory Reporting of Greenhouse Gases    http://www.regulations.gov/
                                                                                                                                 #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                                                                 0109
31              October 20, 2010            EPA-HQ-OAR-2006-0605      RIN 2060-AO24  Prevention of Significant Deterioration    http://www.regulations.gov/
                                                                                      (PSD) for Particulate Matter Less Than     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
                                                                                      2.5 Micrometers (PM2.5)--Increments        0605
                                                                                      Significant Impact Levels (SILs) and
                                                                                      Significant Monitoring Concentration
                                                                                      (SMC)
32              October 14, 2010            EPA-HQ-OPA-2009-0880      RIN 2050-AG59  Oil Pollution Prevention, Spill            http://www.regulations.gov/
                                                                                      Prevention, Control, and Countermeasure    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPA-2009-
                                                                                      (SPCC) Rule--Compliance Date Amendment     0880
33               October 8, 2010            EPA-HQ-OPP-2005-0327      RIN 2070-AJ74  Pesticide Management and Disposal,         http://www.regulations.gov/
                                                                                      Standards for Pesticide Containers and     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPP-2005-
                                                                                      Containment, Change to Labeling            0327
                                                                                      Compliance Date
34            September 28, 2010            EPA-HQ-OAR-2010-0133      RIN 2060-AQ35  Supplemental Determination for Renewable   http://www.regulations.gov/
                                                                                      Fuels Produced Under the Final RFS2        #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                      Program From Canola Oil                    0133
35            September 22, 2010            EPA-HQ-OAR-2009-0925      RIN 2060-AQ02  Mandatory Reporting of Greenhouse Gases    http://www.regulations.gov/
                                                                                                                                 #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                                                                 0925
36            September 16, 2010            EPA-HQ-OAR-2010-0270      RIN 2060-AQ18  Technical Amendments for Marine Spark-     http://www.regulations.gov/
                                                                                      Ignition Engines and Vessels               #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
                                                                                                                                 0270
37            September 13, 2010            EPA-HQ-OAR-2008-0531      RIN 2060-AP23  Restructuring of the Stationary Source     http://www.regulations.gov/
                                                                                      Audit Program                              #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                                                                 0531
38             September 9, 2010           EPA-HQ-OAR-2002-0051,     RIN 2060-AO15,  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants From the Portland Cement    #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2002-
                                                                                      Manufacturing Industry and Standards of    0051
                                                                                      Performance for Portland Cement Plants
                                            EPA-HQ-OAR-2007-0877      RIN 2060-AO42                                             http://www.regulations.gov/
                                                                                                                                 #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
                                                                                                                                 0877
39               August 20, 2010            EPA-HQ-OAR-2008-0708      RIN 2060-AP36  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants for Reciprocating           #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Internal Combustion Engines                0708
40               August 13, 2010          EPA-HQ-SFUND-2010-0085      RIN 2050-AG58  Cooperative Agreements and Superfund       http://www.regulations.gov/
                                                                                      State Contracts for Superfund Response     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-SFUND-2010-
                                                                                      Actions                                    0085
41                 July 20, 2010            EPA-HQ-OAR-2008-0080      RIN 2060-AQ26  Amendments to National Emission Standards  http://www.regulations.gov/
                                                                                      for Hazardous Air Pollutants: Area         #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Source Standards for Prepared Feeds        0080
                                                                                      Manufacturing
42                 July 12, 2010            EPA-HQ-OAR-2008-0508      RIN 2060-AQ03  Mandatory Reporting of Greenhouse Gases    http://www.regulations.gov/
                                                                                      From Magnesium Production, Underground     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Coal Mines, Industrial Wastewater          0508
                                                                                      Treatment, and Industrial Waste
                                                                                      Landfills
43                 June 30, 2010            EPA-HQ-OAR-2003-0146      RIN 2060-AO55  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants From Petroleum Refineries   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2003-
                                                                                                                                 0146
44                 June 30, 2010            EPA-HQ-OAR-2008-0708      RIN 2060-AP36  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants for Reciprocating           #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      Internal Combustion Engines                0708
45                 June 22, 2010            EPA-HQ-OAR-2007-0352      RIN 2060-A048  Primary National Ambient Air Quality       http://www.regulations.gov/
                                                                                      Standard for Sulfur Dioxide                #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
                                                                                                                                 0352
46                 June 15, 2010            EPA-HQ-OPP-2005-0327      RIN 2070-AJ74  Pesticide Management and Disposal          http://www.regulations.gov/
                                                                                      Standards for Pesticide Containers and     #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPP-2005-
                                                                                      Containment, Change to Labeling            0327
                                                                                      Compliance Date
47                 June 15, 2010           EPA-HQ-RCRA-2005-0017      RIN 2050-AG57  Withdrawal of the Emission-Comparable      http://www.regulations.gov/
                                                                                      Fuel Exclusion Under RCRA                  #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-RCRA-2005-
                                                                                                                                 0017
48                  June 4, 2010             EPA-HQ-OA-2004-0002      RIN 2090-AA37  Nondiscrimination on the Basis of Age in   http://www.regulations.gov/
                                                                                      Programs or Activities Receiving Federal   #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OA-2004-
                                                                                      Assistance from the Environmental          0002
                                                                                      Protection Agency
49                  June 3, 2010            EPA-HQ-OAR-2008-0053      RIN 2060-AN47  National Emission Standards for Hazardous  http://www.regulations.gov/
                                                                                      Air Pollutants: Area Source Standards      #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
                                                                                      for Paints and Allied Products             0053
                                                                                      Manufacturing Amendments
50                  June 3, 2010            EPA-HQ-OAR-2009-0517      RIN 2060-AP86  Prevention of Significant Deterioration    http://www.regulations.gov/
                                                                                      and Title V Greenhouse Gas Tailoring       #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
                                                                                      Rule Part II                               0517
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                 ______
                                 
                          Submitted Questions
Letters and Response from U.S. Environmental Protection Agency
October 28, 2011

Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.

    Dear Chairman Lucas:

    Thank you for the opportunity to respond to your September 8, 2011 
letter and the questions for the record following the March 10, 2011, 
hearing on the impact of EPA regulation on agriculture. The attached 
document has responses for more than 80 percent of the questions. I am 
sending this set of approved responses rather than delay the entire 
package for the small number of responses still outstanding. The 
remaining responses are nearing approval and will be forwarded to you 
as soon as possible. I hope that this information is useful to you and 
the Members of the Committee.
    If you have any further questions, please contact me or your staff 
may call Sven-Erik Kaiser in my office at [Redacted].
            Sincerely,

            
            
Arvin Ganesan,
Associate Administrator.
                                 ______
                                 
November 30, 2011

Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.

    Dear Chairman Lucas:

    I am completing the response to your September 8, 2011 letter and 
the questions for the record following the March 10, 2011, hearing on 
the impact of EPA regulation on agriculture. On October 28, 2011 I 
responded to your letter with responses for a large portion of the 
questions. The attached document has responses for the remaining 
questions. Thank you for your patience and again, I hope that this 
information is useful to you and the Members of the Committee.
    If you have any further questions, please contact me or your staff 
may call Sven-Erik Kaiser in my office at [Redacted].
            Sincerely,

            
            
Arvin Ganesan,
Associate Administrator.
                                 ______
                                 
December 15, 2011

Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.

    I am completing the response to the questions for the record 
following a hearing before the House Committee on Agriculture earlier 
this year. Questions from Congressman Peterson forwarded by the 
Committee requested that the EPA provide the Committee with copies of 
all documents meeting the following criteria:

    (1) A settlement agreement entered into by the EPA;

    (2) In response to any civil action, administrative adjudication or 
        petition for review brought against the EPA or the 
        Administrator of EPA; and

    (3) During the period of January 1, 2006 through March 10, 2011.

    On the enclosed CD,* the EPA is providing settlement agreements and 
consent decrees entered during this time frame under the environmental 
statutes administered by the EPA. In addition, I am attaching a 
response to your question for the record in reference to publication of 
proposed settlements in the Federal Register for public comment.
---------------------------------------------------------------------------
    * The documents referred to are retained in Committee files.
---------------------------------------------------------------------------
    Thank you for your interest in this important subject matter. I 
hope that you will find these responses informative. If you have 
further questions, please contact me or your staff may call Sven-Erik 
Kaiser in my office at [Redacted].
            Sincerely,

            
            
Arvin Ganesan,
Associate Administrator.
                                 ______
                                 
December 28, 2011

Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.

    I am responding to questions for the record following the March 10, 
2011, hearing on the impact of EPA regulation on agriculture. The 
attached document includes responses to questions from Congressman 
Schilling that were received after the questions that were responded to 
previously. I hope that this information is useful to you and the 
members of the committee.
    If you have any further questions, please contact me or your staff 
may call Sven-Erik Kaiser in my office at [Redacted].
            Sincerely,

            
            
Arvin Ganesan,
Associate Administrator.
                           attached responses
Questions Submitted by Hon. Frank D. Lucas, a Representative in 
        Congress from Oklahoma
    Question 1. Are you aware that synthetic gypsum from power plants 
is not ``coal ash'' at all--but rather a byproduct of flue gas 
desulfurization (FGD) during the ``scrubbing'' process? If it's not 
coal ash, why are you including it in the regulations you are 
developing?
    Answer. The EPA's proposed rule addresses the management of coal 
combustion residuals (CCRs) from electric utilities. CCRs and ``coal 
ash'' are broad terms that refer to a range of residuals produced from 
the combustion of coal, including fly ash, bottom ash, slag, and flue 
gas emission control wastes. We are aware of the processes used to 
produce synthetic gypsum from FGD materials, and are carefully 
considering the comments regarding whether synthetic gypsum derived 
from coal combustion residuals warrants regulation.

    Question 2. The people who use synthetic gypsum for agriculture now 
face a huge regulatory uncertainty because of the coal ash rulemaking. 
When do you plan to complete this rule? As you work to determine if 
this material should be classified as a ``hazardous waste'', how should 
we address parties who are interested in recycling it, but are stuck in 
limbo?
    Answer. The agency is in the process of reviewing and addressing 
more than 450,000 comments received on the proposed coal ash rule. In 
addition, the EPA and the U.S. Department of Agriculture (USDA) are 
conducting a joint study on the use of flue gas desulfurization (FGD) 
gypsum in agriculture. In the preamble of the proposed rule, the EPA 
indicated that study should be completed at the end of 2012.
    Users of coal combustion residuals (CCR) in agriculture are 
encouraged to review the basic guidance provided in the interim report 
(Agricultural Uses for Flue Gas Desulfurization (FGD) Gypsum, March 
2008, EPA530-F08-009) \1\ pending completion of the study. The report 
references several resources for responding to questions including: the 
EPA's Industrial Waste Management Evaluation Model (IWEM) and the 
chapter on land application (Chapter 7) in the associated Guide for 
Industrial Waste Management http://www.epa.gov/epawaste/nonhaz/
industrial/guide/index.htm, the State's department of environmental 
protection, department of agriculture, and agricultural extension 
service, and the USDA Natural Resources Conservation Service.
---------------------------------------------------------------------------
    \1\ http://nepis.epa.gov/Exe/ZyNET.exe/
P1001II9.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2006+Thru+2010&Docs= 
&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QFiel
d=&Q 
FieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=
&File= 
D%3A%5Czyfiles%5CIndex%20Data%5C06thru10%5CTxt%5C00000004%5CP1001II9.txt
&User= ANONYMOUS&Password=anonymous&SortMethod=h%7C-
&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/
i425&Display=p%7Cf&DefSeekPage=x&SearchBack= 
ZyActionL&Back=ZyActionS&BackDesc= 
Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL#

    Question 3. Are there ways that the EPA might encourage flue gas 
desulfurization (FGD) gypsum use in agriculture to help address water 
quality problems caused by degraded soils and excess nutrient loadings?
    Answer. The EPA's proposed rulemaking on the management of coal 
combustion residuals (CCRs) acknowledges that there are significant 
benefits that can be derived from the use of CCRs in agricultural 
applications and that the EPA and the U.S. Department of Agriculture's 
Agricultural Research Service are engaged in field studies, expected to 
conclude in late 2012. The agency did request comments, information, 
and data on CCRs that are beneficially used in agriculture, but did not 
propose to regulate the beneficial use of CCRs in agricultural 
applications. The EPA continues to support the beneficial use of coal 
combustion residuals in an environmentally sound manner because of the 
important benefits to the economy and the environment.

    Question 4. Can you comment on the use of synthetic gypsum to 
protect the Chesapeake Bay from nutrient runoff funded by the USDA 
Conservation Innovation Grants Program and the projects and studies 
underway and planned in the Great Lakes Region for the same effect.
    Answer. We support the use of this technology as one approach for 
reducing nutrient runoff from agricultural operations through soil 
amendments that increase phosphorus adsorption capacity of farmland 
soils and buffer treatment to adsorb phosphorus before field runoff 
enters the streams and the Chesapeake Bay. Note that this is only one 
of many approaches that farmers can take to reduce nutrient losses from 
their operations. We have highlighted this approach along with other 
cost-effective, proven practices for reducing nutrients from 
agricultural operations in the Guidance for Federal Land Management in 
the Chesapeake Bay Watershed
(http://www.epa.gov/nps/chesbay502/). Although this document was 
developed for Federal lands, it acknowledges that a majority of land in 
the Chesapeake Bay watershed is non-Federal land, and also recognizes 
that the same set of tools and practices are appropriate for both 
Federal and non-Federal land managers to restore and protect the 
Chesapeake Bay.

    Question 5. Ms. Jackson, you testified before the House Agriculture 
Committee. If I could, let me read from your statement. You said: ``As 
I'm sure you would agree, Mr. Chairman, facts matter and we all have a 
responsibility to ensure that the American people have facts and the 
truth in front of them, particularly when fictions are pushed by 
special interests with an investment in the outcome. `Let me give you 
five examples: `One is the notion that EPA intends to regulate the 
emissions from cows--what is commonly referred to as a `Cow Tax.' This 
myth was started in 2008 by a lobbyist and quickly de-bunked by the 
non-partisan, independent group factcheck.org--it still lives on. The 
truth is--EPA is proposing to reduce greenhouse gas emissions in a 
responsible, careful manner and we have even exempted agricultural 
sources from regulation.' ''
    Your statement raises several questions:
     What is the basis of your statement that EPA has ``even exempted 
agricultural sources from regulation''? Can you cite the place in the 
regulation that ``exempts'' agricultural sources?

    Question 5a. Are you exempting all agricultural sources or just 
some?

    Question 5b. Have you exempted any other sectors from the 
regulation?

    Question 6. What authority does EPA to exempt certain sectors from 
the greenhouse gas rule? Where in the Clean Air Act is that authority?

    Question 7. The Clean Air Act explicitly states that ``major 
sources''--which is any entity that emits or has the potential to emit 
more than 100 tons of a regulated pollutant per year--must obtain a 
Title V operating permit. Is it your testimony that EPA is exempting 
all agricultural sources, regardless of their level of emissions, from 
the greenhouse gas regulation?

    Question 8. EPA's own figures state that 37,000 farms are above the 
threshold of a major source. How can they be exempt under the law?

    Question 9. If the basis of your statement is the tailoring rule, 
is it not correct to say that this approach only delays--it does not 
exempt--certain sources?

    Question 10. Do you believe you have the authority to disregard the 
100 ton and 250 thresholds in the law that defines major sources for 
the Title V and PSD programs?
    Answer 5-10. The EPA has established, by rule, a common sense 
approach to regulating greenhouse gas (GHG) emissions under the Clean 
Air Act (CAA) permitting programs. The rule, known as the ``Tailoring 
Rule,'' phases in CAA permitting requirements for GHGs, with only the 
largest GHG emitters covered in the initial phases. In these initial 
phases, which are intended to last until at least 2016, the EPA does 
not expect that agricultural sources are large enough that they will be 
subject to GHG permitting under the CAA.
    The Tailoring Rule does not take a sector based approach to 
exempting sectors from Prevention of Significant Deterioration (PSD) or 
Title V permitting requirements. Rather, we set emission thresholds in 
the Tailoring Rule that are applicable to all sectors. Sources below 
the thresholds have no GHG PSD or Title V permitting obligations 
regardless of what sector they are in. Although we did not take a 
sector based approach in the Tailoring Rule, our information is that 
some sectors have no sources above the thresholds, and thus effectively 
are exempted from GHG permitting obligations.
    With respect to agricultural sources, the question indicates that 
the EPA's own figures state that 37,000 farms have GHG emissions above 
the statutory major source threshold. According to our best 
information, none of these farms have GHG emissions above the 
thresholds of the Tailoring Rule that would trigger GHG permitting 
requirements, or even above the 50,000 tpy CO2e level.
    The legal basis for the phased-in approach adopted in the Tailoring 
Rule is set forth in the preamble to that rule. The purpose of the 
Tailoring Rule was to relieve the overwhelming permitting burdens that 
would, in the absence of the rule, fall on permitting authorities and 
sources. The EPA accomplished this by tailoring the applicability 
criteria that determine which GHG-emitting sources become subject to 
the PSD and Title V permitting programs. Both the PSD and Title V 
provisions establish clear numerical thresholds for applying the 
permitting requirements--in general, the Title V permitting 
requirements apply to sources emitting 100 tpy and PSD applies to 
sources emitting 100 or 250 tpy, depending on the source category. But 
under the Supreme Court's directive for how to interpret statutory 
provisions (described in the Chevron case),\2\ the EPA must interpret 
these thresholds based on what Congress intended them to mean when 
applied to the case at hand (i.e., when applied to GHG-emitting 
sources), and not necessarily on their literal meaning. The courts have 
established three legal doctrines that each make clear that the EPA is 
authorized to interpret the permitting thresholds for GHG-emitting by 
adopting the phased-in approach of the Tailoring Rule, and not by 
adhering to those 100/250 tpy thresholds literally, at least at the 
present time. The legal basis for the tailoring rule rests on the legal 
doctrines of absurd results, administrative necessity, and one step at 
a time due to events.
---------------------------------------------------------------------------
    \2\ Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 
467 U.S. 837 (1984).
---------------------------------------------------------------------------
Question Submitted by Hon. Collin C. Peterson, a Representative in 
        Congress from Minnesota
    Question 1. According to OPM's website, the ``Intergovernmental 
Personnel Act Mobility Program provides for the temporary assignment of 
personnel between the Federal Government and state and local 
governments, colleges and universities, Indian tribal governments, 
federally funded research and development centers, and other eligible 
organizations.'' The Committee became aware of a situation where EPA 
had entered into an Interpersonnel Agreement with a nonprofit, and the 
shared employee was lobbying on Capitol Hill for a piece of legislation 
involving EPA. How many IPA's are currently active? Is it possible to 
determine where EPA employees are currently working?
    Answer. As of August 18, 2011, the EPA has 23 employees serving 
under the Intergovernmental Personnel Act mobility program. They serve 
at the following organizations:

    Mississippi Department of Marine Resources
    The Nature Conservancy
    The Environmental Council of the States
    Navajo Nation EPA Superfund Program
    The Oregon Extension of Eastern University
    California Environmental Protection Agency
    Environmental Law Institute
    World Resources Institute
    Florida Department of Environmental Protection
    Puget Sound Partnership (2)
    DePaul University
    National Wildlife Federation
    Lincoln University Graduate Center
    Pennsylvania Department of Environmental Protection
    Commonwealth of Puerto Rico--Environmental Quality Board (2)
    Florida Department of Agriculture and Consumer Services
    City of New Haven Office of Sustainability
    North Carolina Agricultural and Technical State University
    The Clean Air Institute
    Navajo Nation Department of Justice
    Western States Water Council

    Question 2. Recent court decisions have concluded that EPA's 
assertion that it has authority under FIFRA to bring a misbranding or 
other enforcement action prior to completing administrative procedures 
under FIFRA Section 6 based on the failure of the chemistry or compound 
to satisfy the requirements of risk mitigation decisions is arbitrary, 
capricious, an abuse of discretion, and contrary to law. Please provide 
Committee with an expected timeline for completing the administrative 
procedures required under FIFRA section 6 for registrants with 
chemistries or compounds under risk mitigation review.
    Answer. In May 2008, the EPA issued its Risk Mitigation Decision 
for Ten Rodenticides (RMD), specifying rodenticide product changes that 
must be made to allow for continued use that does not present 
unreasonable adverse effects to human health or the environment. On 
June 7, 2011, the EPA finalized the RMD, moving to ban the sale to 
residential consumers of the most toxic rat and mouse poisons, as well 
as most loose bait and pellet products. The agency is also requiring 
that all newly registered rat and mouse poisons marketed to residential 
consumers be enclosed in bait stations that will render the pesticide 
inaccessible to children and pets. The EPA intends to initiate 
cancellation proceedings under FIFRA against certain noncompliant 
products.

    Question 3. We appreciate EPA working with the livestock industry 
to collect information about current emissions on today's animal 
feeding operations. It was our understanding that the methodology for 
collecting the information was approved by EPA is that correct? Is 
there a timeline for analyzing this information? How are you engaging 
the scientific community to analyze and digest the information 
collected by the livestock industry? How will EPA go about using this 
information down the road?
    Answer. The monitoring methodologies used in the National Air 
Emissions Monitoring Study were identified and selected by a broad 
group of stakeholders that included representatives from the EPA, the 
U.S. Department of Agriculture, the animal feeding operation (AFO) 
industry, state and local air agencies, and environmental groups. All 
stakeholders had a part in the development process, and the EPA 
approved the final methodologies. On January 19, 2011, the EPA issued a 
Call for Information seeking additional peer reviewed monitoring data 
on AFO emissions, along with information on how animals and waste are 
managed at specific sites. The deadline for submitting these data to 
the agency was March 7, 2011.
    The analysis of the data will be conducted by the EPA, with the 
assistance of their contractor, ERG, in a stepwise manner beginning 
with the broiler industry, followed by the swine and egg layers, and 
finishing with the dairy. As the analyses for each industry are 
developed, the drafts will be released on a rolling basis. 
Methodologies for the other species are scheduled to be completed and 
finalized by June 2012.
    All stakeholders, including interested members of the scientific 
community, will be provided with an opportunity to review and comment 
on the draft methodologies. The EPA will announce the availability of 
the draft methodologies for review in the Federal Register. In addition 
to the Federal Register notice, the EPA will inform representatives of 
the major AFO trade organizations and other stakeholders that the draft 
methodologies are available for review and comment. Additionally, the 
EPA plans to hold informational webinars, informal meetings, and 
outreach sessions with all interested stakeholders to discuss the data, 
processes, and information gathered from the study. Other information 
submitted to the agency will also be included for review.
    The EPA has made the National Air Emissions Monitoring Study 
reports and associated data available to all stakeholders at 
www.epa.gov/airquality/agmonitoring/.
    The agency will be using the data and information collected from 
the study, as well as other submitted data, to develop better tools for 
estimating AFO emissions.

    Question 4. EPA recently released its latest draft report on 
biofuels and the environment. There seem to be inconsistencies in this 
report, as compared to outcomes from the RFS rulemaking. To what extent 
did the drafters of this report collaborate with USDA and other Federal 
agencies, and with other departments within EPA?
    The draft report focuses on the potential negative environmental 
impacts of biofuels, but makes only the briefest comparison to the 
impacts from continued reliance on petroleum-derived baseline fuels. 
Will the final report attempt to correct this omission and go into 
further detail on both the potentially positive effects of biofuels on 
the environment, as well as the comparison to the environmental impacts 
of increasing dependence on marginal sources of foreign oil?
    Answer. The EPA does not believe there are inconsistencies with 
this report to Congress and the Renewable Fuel Standard (RFS) 
rulemaking. The basis for the Report to Congress was the RFS2 
Regulatory Impact Analysis. This first Report to Congress reviews 
impacts and mitigation tools across the entire biofuel supply chain 
from feedstock production and logistics to biofuel production, 
distribution, and use with an emphasis on six different feedstocks and 
two biofuels. The two feedstocks most predominantly used currently are 
corn starch to produce ethanol and soybeans to produce biodiesel. Four 
other feedstocks (corn stover, perennial grasses, woody biomass, and 
algae) have been reviewed for purposes of comparative evaluation. These 
represent the range of feedstocks currently under development. The two 
biofuels considered are ethanol (both conventional and cellulosic) and 
biomass-based diesel, because they are the most commercially viable in 
2010 and are projected to be the most commercially available by 2022.
    In preparing the draft report, the EPA assembled a large team of 
scientists from across the agency's research laboratories and program 
offices, including close cooperation with the Office of Air and 
Radiation. In addition, the EPA received input from U.S. Department of 
Agriculture (USDA) and Department of Energy (DOE) staff scientists and 
held a series of briefings with each of these agencies to apprise their 
leadership of the approach and scope of the report. Before a draft was 
released for public comment, it was reviewed by each of these agencies 
and the Office of Management and Budget (OMB).
    Regarding the consideration of environmental impacts of biofuels, 
section 204 of the Energy Independence and Security Act (EISA) calls 
for the EPA to report to Congress on the environmental and resource 
conservation impacts of increased biofuel production and use, including 
air and water quality, soil quality and conservation, water 
availability, ecosystem health and biodiversity, invasive species, and 
international impacts. This report is the first of the triennial 
reports to Congress required under EISA.
    The EPA has done an extensive review and analysis of the published 
peer reviewed scientific literature relevant to the environmental and 
resource conservation impacts of increased biofuel production and use. 
The published literature on comparing the environmental impact of 
biofuels with petroleum based fuels is quite limited and would have 
required the authors to draw conclusions not supported by the 
literature to address this important issue. It is anticipated that the 
next report to Congress, due in 2013, will likely include analyses that 
compare biofuel production with production of petroleum based fuels.

    Question 5. There is much criticism about the EPA's Florida 
proposal and this involves disputes about the underlying data, 
potential costs of complying with numeric standards when they are 
incorporated into discharge permit limitations, and disputes over the 
administrative flexibility. Also, some fear EPA's action in Florida 
will be a precedent for actions elsewhere. Are you aware of the EPA 
Region 5 letter to Illinois EPA on numeric nutrient standards? Do you 
intend to take the same actions in the states served by Region 5 that 
you have taken in Florida?
    Answer. Nitrogen and phosphorus pollution is a widespread, serious, 
and growing problem. This pollution threatens our waters used for 
drinking, fishing, swimming and other recreational purposes. It can 
hurt the tourism industry, reduce home and property values, and impact 
public health. To help states address this pollution, on March 16, 
2011, the EPA sent a memo to its regional offices that builds on our 
commitment to strengthen partnerships with states and promote 
collaboration with stakeholders on this issue. The agency will use this 
memorandum as the basis for discussions with interested and willing 
states about how to move forward on tackling this issue, recognizing 
that there is no one-size-fits-all solution. The agency strongly 
believes states should address phosphorus and nitrogen pollution 
through standards they develop and supports these critical state 
efforts. At this time, the EPA is not working on any Federal standards 
for phosphorus and nitrogen for any states other than ongoing efforts 
in Florida, but we are ready to provide support and technical assistant 
as states work to tackle this serious water pollution problem.

    Question 6. We have been made aware of a memo dated March 16th 
which echoes the January 21st letter sent by Region 5 to Illinois EPA. 
The memo encourages Regional Administrators to work with states on 
reducing nitrogen and phosphorus loadings. Can you elaborate on what is 
meant by the sentence ``EPA will support states that follow the 
framework but, at the same time, will retain all its authorities under 
the Clean Water Act.''?
    Answer. The EPA has oversight responsibility for many state 
activities under the Clean Water Act (CWA) including, for example, 
state adoption of water quality standards and state implementation of 
the National Pollutant Discharge Elimination System (NPDES) permit 
program where that program is delegated to a state. As the memorandum 
notes, the EPA encourages states to follow the recommended elements in 
the EPA's framework for state nutrient reductions and develop effective 
programs for reducing nitrogen and phosphorus loads in the near-term 
while they continue to develop state numeric water quality standards 
for nitrogen and phosphorus. As the memorandum notes, it is intended to 
stimulate a conversation. States retain broad discretion to design 
programs that meet their specific needs in addressing nutrient 
pollution, and these programs do not have to adopt the recommendations 
in the memorandum. We look forward to working with states to assure 
effective protection of public health and water quality, consistent 
with the best-available science and the requirements of the CWA. We 
also recognize under the Clean Water Act that the EPA is accountable 
for effective implementation of the law.

    Question 7. Have your staffing numbers been going up or down over the last 5 years? And how do the FTE levels compare in your program staff versus
 the enforcement and compliance staff over that same period?
    Answer. See following table:

                                                    Programmatic NPMs and OECA FTE Utilization Trends
                                                                     FY 2006-FY 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Actual FTEs
                   NPM                   --------------------------------------------------------------------------------    2006-2010      2006-2010 %
                                               2006            2007            2008            2009            2010            Delta          Change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Office of Air & Radiation                     1,830.2         1,807.6         1,807.5         1,843.3         1,852.9               22.2            1.2%
Office of Water                               2,131.9         2,097.6         2,088.9         2,124.7         2,207.0               75.1            3.5%
Office of Chemical Safety and Pollution       1,445.8         1,394.1         1,369.1         1,381.2         1,376.6           8(69.2)0           ^4.8%
 Prevention *
Office of Solid Waste & Emergency             2,719.2         2,664.7         2,678.7         2,684.9         2,738.5               19.3            0.7%
 Response
Office of Research And Development            1,936.9         1,924.8         1,899.1         1,916.7         1,903.1           8(33.8)0           ^1.7%
Office of International Affairs **               91.7            81.2            75.3            78.4           124.6               32.9           35.9%
                                         ---------------------------------------------------------------------------------------------------------------
  Programmatic NPM Total                     10,155.7         9,970.0         9,918.6        10,029.2        10,202.7                 47            0.5%
                                         ---------------------------------------------------------------------------------------------------------------
Year-to-Year Delta                                            8(186.2)0        8(51.4)0         110.6           173.5
Year-to-Year % Change                                            ^1.83%          ^0.52%           1.12%           1.73%
                                         ---------------------------------------------------------------------------------------------------------------
  AA Enforcement                              3,316.2         3,293.7         3,264.9         3,260.0         3,284.5           8(31.7)0           ^1.0%
                                         ---------------------------------------------------------------------------------------------------------------
Year-to-Year Delta                                             8(22.5)0        8(28.8)0         8(4.9)0          24.5
Year-to-Year % Change                                            ^0.68%          ^0.87%          ^0.15%           0.75%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data excludes enabling and support offices including: OARM, OCFO, OEI, OA, OIG, OGC. Utilization in support offices declined by 0.24%.
* The utilization of FIFRA fees has declined over the years, but is largely offset by an increase in PRIA fees FTE. Reduction is in line with
  restructured fees over this period.
** Increases in the Office of International Affairs in FY 2010 are due to the transfer of the Office of Tribal Affairs from the Office of Water to the
  Office of International Affairs.

    Question 8. There have been guidance documents seeking 
clarification of both the SWANCC and Rapanos court decisions, but the 
uncertainties about the Federal jurisdiction over wetlands and other 
waters remains in limbo and highly controversial. A new guidance 
document was recently released to Inside EPA. What are the 
similarities/differences of this guidance related to the ones 
previously released? What stage in the process is the document?
    Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have 
drafted guidance that clarifies those waters over which the agencies 
will assert jurisdiction consistent with the Clean Water Act (CWA), 
implementing regulations, and Supreme Court interpretations. The draft 
guidance cannot and does not alter existing requirements of the law; it 
merely explains how the agencies think existing law should be applied 
in general, and emphasizes that it may not be applicable in particular 
cases. The scope of waters that would be protected under the 
interpretations in the draft guidance would remain significantly 
narrower than under the agencies' interpretations prior to the Supreme 
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture 
in the CWA and regulations would be completely unchanged by the draft 
guidance. Also, the draft guidance should have no effect on USDA and 
NRCS agreements, including those undertaken under the auspices of the 
Food Security Act. The EPA and the Corps released the draft guidance 
for public notice and comment on May 2, 2011 with a 60 day comment 
period; this comment period was later extended until July 31, 2011. The 
agencies are now reviewing the comments received and will make 
decisions regarding any final guidance after carefully evaluating 
comments provided by the public. The agencies also expect to proceed 
with notice and comment rulemaking to further clarify the regulatory 
definition of the term ``waters of the United States.''

    Question 9. Can you explain how and/or what other Clean Air Act 
(CAA) authorities are triggered because of the emission standards for 
light duty trucks? For example, how did this trigger permitting 
provisions under Title V and the New Source Review?
    Answer. The EPA promulgated the emissions standards for light duty 
vehicles under Clean Air Act (CAA) section 202(a). ``Light-Duty Vehicle 
Greenhouse Gas Emission Standards and Corporate Average Fuel Economy 
Standards; Final Rule,'' 75 Fed. Reg. 25324 (May 7, 2010) (Vehicle 
Rule). The standards applied to cars and light trucks for model years 
2012-2016, and were applicable to greenhouse gases (GHG).
    The promulgation of the Vehicle Rule triggered the application of 
the New Source Review Prevention of Significant Deterioration (PSD) 
permitting program and Title V permitting program. The PSD program is 
found in Title I, Part C of the CAA, and those provisions apply to any 
``major emitting facility,'' defined as a stationary source that emits 
or has the potential to emit 100 or 250 tons per year (depending on the 
type of source) of ``any air pollutant.'' CAA section 169(1) (emphasis 
added). Such a facility may not initiate construction or major 
modification of its facility in such an area without first obtaining a 
PSD permit. See CAA sections 165(a), 169(1), 169(2)(C). For the last 
thirty years, the EPA has interpreted these provisions to require that 
PSD permits address ``any air pollutant'' that is ``subject to 
regulation under the CAA'' (except for a ``criteria'' pollutant for 
which an area has been designated non-attainment under an applicable 
National Ambient Air Quality Standard).
    The applicability provisions for the Title V permit program are 
found in CAA sections 502(a), 501(2)(B), and 302(j). These provisions 
provide that it is unlawful for any person to operate a ``major 
source'' without a title V permit and define a ``major source'' to 
include ``any major stationary facility or source of air pollutants 
which directly emits, or has the potential to emit, one hundred tons 
per year or more of any air pollutant.'' Taken together and in 
accordance with long standing EPA interpretation, these provisions 
provide that stationary sources are subject to Title V if they emit air 
pollutants that are subject to EPA regulation.
    Thus, both PSD and Title V permitting requirements are triggered 
when pollutants become subject to EPA regulation. The Vehicle Rule made 
GHGs subject to EPA regulation for the first time, thus triggering the 
application of both PSD and Title V to GHG emissions from stationary 
sources. In a separate action, ``Reconsideration of Interpretation of 
Regulations that Determine Pollutants Covered by Clean Air Act 
Permitting Programs,'' 75 Fed. Reg. 17004 (April 2, 2010), the EPA 
determined that GHGs would become ``subject to regulation under the 
Act,'' within the meaning of the CAA and the agency's longstanding PSD 
regulations and Title V interpretation, as of January 2, 2011, when the 
first new motor vehicles subject to the Vehicle Rule would enter the 
market. Likewise, the EPA explained that on the same date greenhouse 
gas emitting sources would become subject to the Title V permitting 
program.

    Question 10. Following up on the previous question, I understand 
that in May 2010, EPA issued a rule on thresholds for GHG emissions 
that define when Title V and New Source Review permits would be 
required. This rule, the tailoring rule, establishes a threshold of 
100,000 tons per year to those required to get a permit. Is there an 
agriculture exemption in this rule? Why not? If the goal is not to get 
small farms, why not include a straight exemption? You indicated in 
your response to Congressman Welch during questioning that 
``agriculture is exempted from greenhouse gas regulation.'' Can you 
explain what you meant by that?
    Answer. The purpose of the tailoring rule is to address the 
overwhelming burdens on permitting authorities that would otherwise 
occur if the existing statutory thresholds of 100 and 250 tons per year 
were applied to greenhouse gasses (GHGs) on January 2, 2011. Hence the 
final tailoring rule does not specifically exclude agricultural 
operations, or any industrial sector, from the New Source Review (NSR) 
or Title V permitting. Rather, the rule focuses on across the board 
thresholds and distinctions. The rule accomplishes this by establishing 
100,000 tons per year (tpy) of carbon dioxide equivalent 
(CO2e) as a threshold for new facilities and 75,000 tpy 
CO2e increases for modifications at existing facilities that 
already emit 100,000 tpy CO2e (in addition to a threshold 
75,000 CO2e for new and existing sources that are subject to 
NSR permitting for other pollutants). Given the thresholds that are in 
place for Steps 1 and 2 of the tailoring rule, farms, as well as other 
small businesses (e.g., restaurants, dry cleaners, etc.) are not 
covered at this time.

    Question 11. With regards to the tailoring rule, exactly what 
happens to whom after July 1, 2011?
    Answer. For Step 2 of the tailoring rule, which began on July 1, 
2011, Prevention of Significant Deterioration (PSD) permitting 
requirements cover, for the first time, new construction projects that 
emit large amounts of greenhouse gas (GHG) emissions (i.e., emissions 
of at least 100,000 tons per year (tpy)) even if they do not exceed the 
permitting thresholds for any other pollutant. Modifications at 
existing facilities that increase GHG emissions by at least 75,000 tpy 
(equivalent to CO2 emissions from burning 370 railcars worth 
of coal) will be subject to PSD permitting requirements, even if they 
do not significantly increase emissions of any other pollutant. Despite 
this change for Step 2, permitting requirements would still only apply 
to large sources of emissions.

    Question 12. EPA has been sued by a number of parties who argue 
that the Tailoring Rule is illegal. What is the status of these 
lawsuits? What is your best estimate as to when we will have a final 
outcome to these lawsuits? If the Tailoring Rule is struck down in 
court, how will you change your approach to regulating greenhouse gas 
emissions from stationary sources?
    Answer. The lawsuits have been brought in the United States Court 
of Appeals for the District of Columbia Circuit, and have been 
consolidated. The parties are in the process of filing their briefs on 
the merits. According to the briefing schedule set by the Court, merits 
briefing will be completed on December 14, 2011. Although the Court has 
not set a date for the oral argument, we expect that the Court will set 
the date for early in 2012. If it does so, then the EPA would expect, 
consistent with the Court's past practice, a decision in the summer or 
fall of 2012. For the reasons that the EPA explained at length in the 
Tailoring Rule preamble and in our successful defense of the rule 
against the motions for stay, we believe we have a solid legal basis 
for the rule.

    Question 13. Since the publication of the greenhouse gas 
``Tailoring Rule'' in June 2010, has EPA been petitioned to lower the 
threshold level of air pollutants that requires a Title V permit? If 
so, how is EPA responding to any such petition?
    Answer. The EPA has not received any petitions to lower the 
threshold level of air pollutants that requires a Title V permit.

    Question 14. Recent court decisions have concluded that EPA's 
assertion that it has authority under FIFRA to bring a misbranding or 
other enforcement action based upon the failure of a chemistry or 
compound to satisfy certain risk mitigation decisions is arbitrary, 
capricious, an abuse of discretion, and contrary to law. Given these 
court decisions, please provide the Committee with timeline of the 
steps EPA intends to undertake to complete the administrative 
procedures required by FIFRA Section 6 for chemistries or compounds 
that have failed to satisfy the risk mitigation decision process.
    Answer. Repeated question. Please see response to Question 2 
submitted by Mr. Peterson.

    Question 15. EPA staff has indicated that it is considering 
revising its approach to making a ``public interest'' finding for 
USDA's IR-4 Project applications under the Pesticide Registration 
Improvement Reauthorization Act (PRIA2). IR-4 sets it research 
priorities in an open public setting with significant input from the 
affected agricultural sector and uses government funds to develop data 
accordingly. How would the new approach for a ``public interest'' 
finding affect IR-4 applications?
    Please describe any financial impacts that may result from a change 
under the new approach for a ``public interest'' finding as it relates 
to IR-4 applications? Would such a change potentially increase the 
costs for IR-4 applications and thereby serve to reduce IR-4's 
applications for new pesticide uses on specialty crops/minor uses? Has 
EPA examined how this action might impacts on certain crops, the 
significant new costs to IR-4 in and the unintended consequences to 
some Federal Government priorities associated with such a change? Has 
EPA discussed this issue with USDA and, if so, does USDA support the 
approach being considered? In view of the vital and important role that 
IR-4 serves, does the Agency believe that it needs additional 
clarification from Congress regarding why IR-4 applications are in the 
public interest and therefore should continue to be exempt from PRIA 
fees?
    Answer. Earlier this year, the EPA developed and made available for 
discussion a draft proposal to explain how the Agency would make the 
``public interest'' finding under the Pesticide Registration 
Improvement Renewal Act (PRIA 2) [FIFRA Section 33(b)(7)(E)]. This 
provision states that ``the Administrator shall exempt an application 
from the registration service fee if the Administrator determines 
that--(i) the application is solely associated with a tolerance 
petition submitted in connection with the Inter-Regional Project Number 
4 (IR-4) . . . ; and, (ii) the exemption is in the public interest.'' 
The Agency's draft proposal reflects the experience that the EPA has 
gained in making case by case decisions over the last few years, and 
captures the criteria the EPA has developed through this experience.
    The EPA does not expect the articulation of the criteria to change 
significantly how it would process IR-4 submissions. Because the draft 
document is based on past experience, if it were adopted, existing 
policies and practices would continue and would not change. Currently, 
IR-4 applications remain the same. The draft document would not lead to 
additional application requirements, and, therefore, the costs for IR-4 
applications would not increase and there would be no financial impacts 
to IR-4.
    More generally, the types of applications that the EPA has found to 
be in the public interest in the past would continue to be in the 
public interest. Growers should see no difference and will continue to 
receive the same benefits from the IR-4 program. A common understanding 
of the approach will benefit and increase the efficiency of the 
collaboration between IR-4, the U.S. Department of Agriculture, the 
EPA, and the agricultural community.

    Question 16. Can you please provide the Committee with copies of 
all documents that meet all the following criteria?

    (1) A settlement agreement entered into by the EPA;

    (2) In response to any civil action, administrative adjudication or 
        petition for review brought against the EPA or the 
        Administrator of EPA;

    (3) During the period of January 1, 2006 through March 10, 2011.

    Answer. The EPA will need more time to respond to this request. The 
EPA plans to treat this request, together with Question 17 below, as it 
would a letter to the agency and will respond in writing to the request 
and Question 17 in a separate communication.
    [Editor's note: The EPA delivered to the Committee a CD containing 
copies of the requested information. The documents listed are retained 
in Committee files:]

Agreed Order:  September 28, 2010               Northwest Environmental AdvocatesConsent Decree:  February 1, 2006                 Sierra Club (Proposed CD)  February 15, 2006                Environmental Defense
  February 24, 2006                Sierra Club and American Bottom
                                    Conservancy
  August 22, 2006                  Our Children's Earth Foundation and
                                    Sierra Club
  October 16, 2006                 Kentuckians For The Commonwealth, et
                                    al.
  December 8, 2006                 Sierra Club
  February 13, 2007                Sierra Club and Coosa River Basin
                                    Initiative
  May 10, 2007                     Sierra Club
  May 18, 2007                     Rocky Mountain Clean Air Action, et
                                    al.
  May 31, 2007                     Sierra Club (Notice of Withdrawl)
  June 14, 2007                    American Lung Association of
                                    Metropolitan Chicago, et al.
  November 30, 2007                National Wildlife Federation and the
                                    Lone Tree Council
  September 17, 2007               Citizens Against Ruining the
                                    Environment
  September 17, 2007               Respiratory Health Association of
                                    Metropolitan Chicago, et al.
  September 17, 2007               People of the State of Illinois, ex
                                    rel.
  May 29, 2008                     Northwest Environmental Advocates
  September 4, 2008                Natural Resources Defense Council,
                                    Inc., et al.
  December 17, 2009                Florida Clean Water Network and Linda
                                    Young
  December 30, 2009                Florida Wildlife Federation, Inc., et
                                    al.
  June 8, 2010                     Northwest Environmental Defense
                                    Center, et al.
  November 4, 2010                 Defenders of Wildlife and Sierra ClubDismissal:  March 22, 2007                   Pasadena Refining Systems, Inc.
  April 18, 2008                   Ingersoll-Rand Company
  May 11, 2009                     North Coast Rivers Alliance, et al.Joint Motion:  October 17, 2006                 Center for Biological DiversityPartial Settlement Agreement:  August 20, 2007                  Ohio Valley Environmental Coalition
                                    Inc and West Virginia Highlands
                                    Conservancy Inc.Settlement Agreement:  January 27, 2006                 Sierra Club
  January 31, 2006                 United Farm Workers of America, et
                                    al.
  March 1, 2006                    St. Johns Riverkeeper, et al.
  March 28, 2006                   Natural Resources Defense Council,
                                    Inc.
  April 19, 2006                   Utility Air Regulatory Group
  June 20, 2006                    Oxy Vinyls, LP
  August 2, 2006                   Iowa Environmental Council, et al.
  September 26, 2006               Natural Resources Defense Council,
                                    Inc., et al.
  January 5, 2007                  American Foundry Society
  February 6, 2007                 Miami-Dade County, et al.
                                     Exhibit A--Proposed Revision to
                                    Florida Administrative Code Section
                                     Exhibit B--Program Guidance Memo
                                     Exhibit C--Implementation of the
                                    New Federal Regulations for Class I
                                    Injection Wells in Florida
  February 13, 2007                Center for Biological Diversity
  March 17, 2007                   Our Children's Earth Foundation
  April 13, 2007                   Sierra Club, et al.
  May 10, 2007                     New Jersey Department of
                                    Environmental Protection
  May 19, 2007                     Natural Resources Defense Council,
                                    Inc., et al.
  July 9, 2007                     American Iron and Steel Institute, et
                                    al.
  September 8, 2007                Rocky Mountain Clean Air Action
                                    (Notice of Lodging SA)
  September 8, 2007                Rocky Mountain Clean Air Action
  January 22, 2008                 Friends of the Earth
  January 25, 2008                 Public Employees for Environmental
                                    Responsibility, et al.
  August 8, 2008                   Natural Resources Defense Council,
                                    Inc., et al.
  August 21, 2008                  Union Oil Company of California, et
                                    al.
  December 29, 2008                Sierra Club, et al.
  April 1, 2009                    Idaho Conservation League
  August 21, 2009                  Sierra Club, et al.
  March 10, 2010                   Center for Biological Diversity
  April 28, 2010                   Conservation Law Foundation,
                                    Amendment
  May 10, 2010                     Chesapeake Bay Foundation
  May 25, 2010                     Natural Resources Defense Council,
                                    Inc., et al.
  June 4, 2010                     Northwest Environmental Defense
                                    Center, et al.
  July 2, 2010                     Environmental Geo-Technologies, LLC,
                                    et al.
                                     Exhibit A--Stipulated Motion for
                                    Voluntary Dismissal to be filed in
                                    the Sixth Circuit Action, Case No.
                                    09-4090
                                     Exhibit B--Joint Motion fro Stay of
                                    Proceedings to be filed in the
                                    Federal District Court Action
  July 12, 2010                    Wild Fish Conservancy
  August 25, 2010                  Sierra Club
  November 22, 2010                Riverkeeper, Inc., et al.
  November 3, 2010                 Natural Resources Defense Council,
                                    Inc., et al.  Second Amended SA
  December 20, 2010                Alfred J. Davis and Cindy Davis
  February 16, 2011                Sierra Club, et al.  Amendment
  March 3, 2011                    Idaho Conservation LeagueSettlement Agreement and Order:  February 19, 2008                Natural Resources Defense Council,
                                    Inc.
  May 17, 2010                     Center for Biological DiversitySettlement Agreement and Release:  August 15, 2007                  Friends of the Earth
  December 3, 2010                 Anacostia Riverkeeper, et al.Stipulation and Order:  June 1, 2006                     Washington Toxics Coalition, et al.
  October 20, 2006                 Center for Biological Diversity
  September 11, 2007               Natural Resources Defense Council,
                                    Inc.
  May 11, 2009                     North Coast Rivers Alliance, et al.
  January 12, 2010                 Center for Biological Diversity
  December 22, 2010                Natural Resources Defense Council,
                                    Inc. and pesticide Action Network
                                    North America

    Question 17. At the hearing, in response to a question about 
whether EPA's settlement agreements are made public, Administrator 
Jackson stated, ``. . . most of our settlements are required by law to 
go through public comment.''
    Since 2006, which proposed settlement agreements, other than those 
related to cases in which EPA took enforcement action against an 
individual or entity, were published in the Federal Register for public 
comment?
    If some, but not all, settlement agreements are published for 
public comment, explain how EPA and the Department of Justice determine 
which to open for public comment. Have the criteria for these 
determinations changed since January 1, 2006, and, if so, how? Please 
distinguish between civil actions or petitions for review brought 
against the agency from civil or criminal enforcement actions taken by 
the agency against an individual or entity.
    Please explain in detail, how, since January 1, 2006, EPA has 
amended settlement agreements, other than those related to cases in 
which EPA took enforcement action against an individual or entity, 
after such agreements have been open for public comment.
    Answer. This question is related to the document request in 
Question 16 and the EPA will need further time to respond. The EPA will 
respond to the document request under Question 16 and to this question 
in a separate communication, as explained above.

               Settlement Agreements and Consent Decrees Published in Federal Register for Comment Prior to Finalization 1/1/06 to 3/10/11
--------------------------------------------------------------------------------------------------------------------------------------------------------
  SA/CD Entry                                                                                                      Adverse     Modified as a result of
      Date            Plaintiff/Petitioner           Defendant               Case No.                Court        comment?         adverse comment
--------------------------------------------------------------------------------------------------------------------------------------------------------
    02/22/2011   Sierra Club                     EPA                              1:10-cv-859           D. D.C.
    02/14/2011   WildEarth Guardians             EPA                              6:10-cv-877             D. NM
    02/08/2011   Natural Resources Defense       EPA                             2:10-cv-6029           N.D. CA
                  Council, et al.
    01/31/2011   WildEarth Guardians             EPA                        1:10-cv-01218-REB             D. CO
    01/14/2011   Sierra Club, et al.             EPA                              1:10-cv-889           D. D.C.
    01/12/2011   Association of Irritated        EPA                             3:10-cv-3051           N.D. CA
                  Residents
    01/11/2011   Sierra Club, et al.             EPA                             3:10-cv-1954           N.D. CA
    01/10/2011   WildEarth Guardians             EPA                             1:10-cv-1672             D. CO
    12/22/2010   Natural Resources Defense       EPA                         1:10-cv-05590-CM         S.D. N.Y.          X
                  Council
    12/21/2010   American Petroleum Institute,   EPA                                  08-1277      D.C. Circuit          X
                  et al.
    12/21/2010   State of New York               EPA                                  06-1322      D.C. Circuit          X
    12/20/2010   Center for Biological           EPA                             3:10-cv-1846           N.D. CA
                  Diversity
    12/13/2010   Comite Civico Del Valle, Inc.   EPA                             4:10-cv-2859           N.D. CA
    11/23/2010   Louisiana Environmental Action  EPA                            1:09-cv-01333           D. D.C.
                  Network
    09/08/2010   Sandra L. Bahr, et al.          EPA                             2:09-cv-2511             D. AZ          X
    08/31/2010   Comite Civico Del Valle, Inc.   EPA                                 10-00946           N.D. CA
    07/15/2010   American Bottom Conservancy     EPA                              3:10-cv-292           S.D. IL
    07/14/2010   Sierra Club, et al.             EPA                              1:10-cv-133           D. D.C.
    07/07/2010   American Chemistry Council      EPA                                  09-1325      D.C. Circuit          X
    07/06/2010   Sierra Club                     EPA                              4:09-cv-152            N.D.CA          X   Modified two of the
                                                                                                                              deadlines for proposed and
                                                                                                                              final actions with regard
                                                                                                                              to technology and residual
                                                                                                                              risk review for source
                                                                                                                              categories.
    06/21/2010   Navistar, Inc.                  EPA                                  09-1113      D.C. Circuit
    06/21/2010   Navistar, Inc                   EPA                                  09-1317      D.C. Circuit
    06/08/2010   Sierra Club                     EPA                              3:09-cv-751           W.D. WI
    06/04/2010   Sierra Club                     EPA                              3:10-cv-127           W.D. WI
    05/17/2010   Center for Biological           EPA                        3:07-cv-02794-JCS           N.D. CA          X   Terms of the injunction
                  Diversity                                                                                                   were amended to exempt
                                                                                                                              public health uses and
                                                                                                                              reduce use limitations on
                                                                                                                              certain termiticide and
                                                                                                                              rodenticide applications.
    04/19/2010   Louisiana Environmental Action  EPA                             1:09-cv-1943           D. D.C.
                  Network
    04/15/2010   American Nurses Association,    Stephen L.                      1:08-cv-2198           D. D.C.          X
                  et al.                          Johnson
    04/14/2010   Environmental Integrity         EPA                              1:10-cv-165           D. D.C.
                  Project, et al.
    03/22/2010   WildEarth Guardians             EPA                            1:09-cv-01964             D. CO          X
    03/09/2010   WildEarth Guardians             EPA                      09-cv-02109-MSK-KLM             D. CO
    03/01/2010   State of New Jersey, et al.     EPA                                  08-4818       3rd Circuit
    02/23/2010   WildEarth Guardians             EPA                             4:09-cv-2453           N.D. CA
    02/05/2010   Environmental Integrity         EPA                            1:09-cv-00218           D. D.C.
                  Project, et al.
    02/04/2010   WildEarth Guardians, et al.     EPA                            1:09-cv-00089           D. D.C.          X
    02/02/2010   WildEarth Guardians             EPA                             1:09-cv-2148             D. CO
    01/29/2010   Comite Civico Del Valle, Inc.   EPA                            4:09-cv-04095           N.D. CA
    12/30/2009   Association of Irritated        EPA                             4:09-cv-1890           N.D. CA
                  Residents
    11/24/2009   Environmental Integrity         EPA                             1:09-cv-1025           D. D.C.
                  Project, et al.
    11/14/2009   Sierra Club                     EPA                            1:09-cv-1 028           D. D.C.
    11/03/2009   Sierra Club, et al.             EPA                            1:09-cv-00312           D. D.C.
    10/30/2009   Mossville Environmental Action  EPA                             1:08-cv-1803           D. D.C.          X
                  Now, et al.
    10/16/2009   Sierra Club                     EPA                        2:09-CV-00085-WOB           E.D. KY
    09/22/2009   Sierra Club                     EPA                            3:09-cv-00122           W.D. WI
    09/08/2009   Association of Irritated        EPA                             4:08-cv-5650           N.D. CA
                  Residents
    09/08/2009   WildEarth Guardians             EPA                             1:08-cv-2253           D. D.C.
    08/21/2009   Colorado Citizens Against       EPA                             1:08-cv-1787             D. CO
                  Toxic Waste, Inc, et al.
    06/18/2009   Alliance of Automobile          EPA                                  08-1109      D.C. Circuit
                  Manufacturers
    06/02/2009   Sierra Club                     EPA                                 08-c-664           W.D. WI
    06/01/2009   Sierra Club, et al.             EPA                             1:08-cv-1999           D. D.C.
    05/22/2009   American Petroleum Institute    EPA                                  06-1321      D.C. Circuit
    05/21/2009   BCCA Appeal Group, et al.       EPA                             3:08-cv-1491           N.D. TX
    03/19/2009   Environmental Integrity         EPA                            1:09-cv-00087           D. D.C.
                  Project
    03/16/2009   Environmental Integrity         EPA                            1:09-cv-00088           D. D.C.
                  Project, et al.
    03/03/2009   Rocky Mountain Clean Air        EPA                        1:08-cv-01422-RWR           D. D.C.
                  Action, et al.
    01/06/2009   Portland Cement Association     EPA                                  07-1046      D.C. Circuit
    09/12/2008   Association of Irritated        EPA                                  08-0227           N.D. CA
                  Residents, et al.
    06/09/2008   Desert Rock Energy Company,     EPA                            4:08-cv-00872           S.D. TX          X
                  LLC, et al.
    06/04/2008   Sierra Club, et al.             EPA                               06-CV-4000           N.D. IL
    05/14/2008   National Environmental          EPA                                  06-1428      D.C. Circuit
                  Development Association's
                  Clean Air Project
    03/25/2008   Coke Oven Environmental Task    EPA                                  06-1131      D.C. Circuit
                  Force
    01/17/2008   Battery Council International   EPA                                  07-1364      D.C. Circuit
    11/19/2007   Center for Biological           EPA                                  05-1814           D. D.C.
                  Diversity, et al.
    11/06/2007   Sierra Club                     EPA                            1:07-cv-01040           D. D.C.
    10/24/2007   Sierra Club                     EPA                            1:07-CV-00414           D. D.C.
    09/17/2007   Citizens Against Ruining the    EPA                               06-CV-6915           N.D. IL
                  Environment
    09/13/2007   Rocky Mountain Clean Air        EPA                                  07-1012      D.C. Circuit          X
                  Action
    09/07/2007   American Iron and Steel         EPA                                  00-1434      D.C. Circuit
                  Institute, et al.
    08/23/2007   Sierra Club                     EPA                              07-C-0154-S           W.D. WI
    08/20/2007   Ingersoll-Rand Company          EPA                                  98-1597      D.C. Circuit
    07/19/2007   People of the State of          EPA                            1:06-CV-06909           N.D. IL
                  Illinois ex rel. Madigan
    07/09/2007   Steel Manufacturers             EPA                                  05-1135      D.C. Circuit
                  Association, et al.
    06/14/2007   American Lung Association of    EPA                               06-CV-6933           N.D. IL
                  Metropolitan Chicago, et al.
    05/22/2007   Environmental Defense, Inc.,    EPA                                  06-1164      D.C. Circuit
                  et al.
    05/17/2007   Rocky Mountain Clean Air        EPA                            1:06-CV-01992           D. D.C.
                  Action, et al.
    05/14/2007   New Jersey Department of EPA    EPA                                  07-3746       3rd Circuit
    05/14/2007   State of New Jersey             EPA                                   07-612             D. NJ
    05/04/2007   Sierra Club                     EPA                                  06-5288           N.D. CA
    03/22/2007   Pasadena Refining Systems,      EPA                                 04-60982       5th Circuit
                  Inc.
    03/22/2007   Pasadena Refining Systems,      EPA                                 05-60551       5th Circuit
                  Inc.
    03/20/2007   Our Children's Earth            EPA                                 05-73130       9th Circuit
                  Foundation
    02/14/2007   Center for Biological           EPA                            1:06-CV-01350      D.C. Circuit
                  Diversity, et al.
    02/12/2007   Sierra Club, et al.             EPA                             1:06-CV-1523           N.D. GA
    01/05/2007   American Founders' Society      EPA                                  04-1191      D.C. Circuit
    12/13/2006   Sierra Club                     EPA                           06-0663 BB/LFG             D. NM
    10/20/2006   Center for Biological           Stephen L.                       02-1580-JSW         N.D. Cal.          X   Changes made to definition
                  Diversity                       Johnson                                                                     of ``upland habitat'';
                                                                                                                              flood control and rights-
                                                                                                                              of-way fire protection
                                                                                                                              uses were exempted from
                                                                                                                              coverage under the
                                                                                                                              injunction; and a few
                                                                                                                              minor wording changes were
                                                                                                                              made.
    10/16/2006   Kentuckians For The             EPA                            1:06-CV-00184           D. D.C.
                  Commonwealth , et al.
    10/02/2006   Natural Resources Defense       EPA                                  06-1059      D.C. Circuit
                  Council
    08/21/2006   Our Children's Earth            EPA                             05-05184 WHA           N.D. CA
                  Foundation, et al.
    04/19/2006   Utility Air Regulatory Group    EPA                                  06-1056      D.C. Circuit
    03/28/2006   Natural Resources Defense       EPA                          03-CV-02444 RDB             D. MD
                  Council
    02/01/2006   Sierra Club                     EPA                              05-CV-02177           D. D.C.
    01/31/2006   United Farm Workers             EPA                        2:04-cv-00099-RSM           W.D. WA
    01/27/2006   Sierra Club                     EPA                                  05-1045      D.C. Circuit
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Question 18. The following questions relate to the settlement 
agreement that EPA signed with the Waterkeeper Alliance, Natural 
Resources Defense Council, Inc., and Sierra Club on May 25, 2010:
    When was the proposed settlement agreement published for public 
comment?
    Answer. The settlement agreement was not published in proposed form 
for public comment. The Clean Water Act, unlike the Clean Air Act, does 
not require settlement agreements entered into under the statute to be 
published for public comment before being finalized. Under the 
settlement agreement, the EPA committed to propose collecting certain 
identifying information from concentrated animal feeding operations 
(CAFOs), or if the agency does not propose collecting this information, 
to explain why it is not proposing to do so. The agency will publish 
that proposal for public notice and comment and will seek stakeholder 
input on it before taking any final action. The EPA did not commit in 
the settlement agreement to take any specific final action. The 
specific provisions of the settlement agreement addressed a proposed 
rule only.

    Question 18a. Is the final settlement agreement posted on either 
EPA's or the Department of Justice's website?
    Answer. The final settlement agreement is publicly available. With 
some exceptions, neither the Environment and Natural Resources Division 
of the Department of Justice nor the EPA generally posts final 
settlement agreements in petition for review cases on its website. The 
EPA will post on its website any guidance or proposals which it 
undertakes to issue pursuant to such a settlement agreement.

    Question 18b. EPA has stated that its determinations on whether or 
not to settle with a petitioner are based on case-by-case 
determinations of legal risk and the requirements of the law. Please 
explain in detail why EPA determined that it was necessary to settle 
with the environmental petitioners (Waterkeeper Alliance, Natural 
Resources Defense Council, Inc., and Sierra Club).
    Answer. The environmental petitioners filed petitions for review 
raising two challenges to the EPA's final rule entitled ``Revised 
National Pollutant Discharge Elimination System Permit (NPDES) 
Regulation and Effluent Limitations Guidelines for Concentrated Animal 
Feeding Operations (CAFOs) in Response to the Waterkeeper Decision.'' 
73 Fed. Reg. 70418 (Nov. 20, 2008). First, they challenged the EPA's 
failure to require CAFOs that are known to discharge to apply for NPDES 
permits. Second, they challenged the EPA's analysis of ``best 
conventional pollutant control technology'' for fecal coliform. After 
weighing the legal risks of litigating these issues, the EPA, with the 
Department of Justice's concurrence, determined that settling this case 
was the most effective way of resolving the controversy in furtherance 
of the goals of the Clean Water Act.

    Question 18c. Why were the agricultural petitioners (National Pork 
Producers Council, National Chicken Council, and American Farm Bureau 
Federation) not included in the settlement negotiations? Did the 
Department of Justice or EPA make the decision not to include the 
agricultural petitioners in the settlement negotiations?
    Answer. The EPA prefers, where possible, to reach agreement with 
all stakeholders to avoid further litigation. In this case, the EPA had 
conversations with the agricultural petitioners in an effort to reach 
settlement but was unable to reach agreement with them. The EPA and the 
Department of Justice generally include only the party or parties with 
which they are settling in settlement negotiations.

    Question 18d. Since the settlement agreement was reached with the 
environmental petitioners, has EPA conducted settlement negotiations 
with the agricultural petitioners?
    Answer. No. No. Prior to reaching a settlement with the 
environmental petitioners, the EPA had conversations with the 
agricultural petitioners in an effort to reach settlement. However, as 
indicated above, the EPA and the agricultural petitioners were unable 
to reach settlement.

    Question 18e. In negotiating and entering into this settlement 
agreement, what considerations did EPA make regarding the increased 
regulatory burden that would be placed on the owners or operators of 
concentrated animal feeding operations (CAFOs)?
    Answer. The EPA did not commit in the settlement agreement to take 
any final actions that would affect CAFOs. The EPA committed to propose 
collecting certain identifying information from CAFOs, or if the agency 
does not propose collecting this information, to explain why it is not 
proposing to do so. The EPA's proposal will be subject to public notice 
and comment before the agency takes any final action on it. Further, 
the agency believes that reaching out to agricultural stakeholders to 
discuss their views on such a collection would be an essential part of 
its decision making process. Minimizing any burden on the regulated 
community is a priority for the EPA and the agency will welcome CAFO 
owners and operators' views as to how best to achieve that goal.

    Question 18f. EPA will soon be publishing a proposed rule to 
effectuate the policy changes that EPA agreed to implement in the 
settlement agreement. If there is a public comment period for the 
proposed rule, does EPA have the flexibility to make substantive 
changes to the proposed rule following the comment period, or is EPA 
legally bound to adhere to the settlement agreement? If EPA were to 
make substantive changes to the proposed rule, what legal effect would 
such changes have on the settlement agreement?
    Answer. The settlement agreement does not bind the EPA to any 
specific final action. It requires the EPA to propose collecting 
certain identifying information from concentrated animal feeding 
operations (CAFOs), or, if the agency does not propose to collect that 
information, to explain why it is not proposing to do so. The EPA will 
solicit public comment on the proposal. After considering comments, the 
EPA has the flexibility to make substantive changes to the proposed 
rule and will have the option to determine, in its final action, how 
much, if any, of the information it will collect. Further, the 
settlement agreement specifically states that it does not in any way 
limit the EPA's discretion under the Clean Water Act or general 
principles of administrative law.

    Question 18g. The settlement agreement requires EPA to collect 
detailed information from CAFO owners or operators. The information 
will be made public unless there is a showing that the information is a 
confidential trade secret, pursuant to 33 U.S.C.  1318(b). What does 
EPA consider to be a confidential trade secret? For instance, would 
owner/operator names, locations, numbers of animals, whether a CAFO has 
a nutrient management plan, or whether a CAFO has applied for an NPDES 
permit be made public?
    Answer. As stated above, the settlement agreement does not require 
the EPA to collect any information. It requires the EPA to propose 
collecting certain information, or, if the agency does not propose to 
collect that information, to explain why it is not proposing to do so. 
The EPA will solicit public comment on the proposal before taking final 
action. The EPA did not commit in the settlement agreement to the 
content of its final action.
    If the EPA decides, in a final rule, to collect information from 
concentrated animal feeding operations (CAFOs), it would collect that 
information pursuant to section 308 of the Clean Water Act, the Act's 
information-gathering authority. Section 308 requires the EPA to make 
public any information the EPA collects under the rule unless that 
information is confidential business information (CBI). CBI is defined 
and discussed in the EPA's regulations codified at 40 CFR part 2, 
subpart B For any information collection requirement that EPA 
finalized, CAFOs would be given the opportunity to identify what 
information they believe qualifies as CBI. EPA would treat any such 
claimed CBI in accordance with its regulations, which generally require 
that the submitter of the information have the opportunity to 
substantiate their claim. EPA would then determine whether the claimed 
information meets the definition of CBI, and not release the 
information if it did.

    Question 18h. How does EPA plan to use the information that it 
collects?
    Answer. If the EPA were, in a final action, to determine to collect 
any information from concentrated animal feeding operations (CAFOs), 
the EPA would use the information to further its statutory duties to 
restore and maintain the quality of this nation's waters. In support of 
these responsibilities, the EPA develops and enforces regulations, 
assesses the effectiveness of its programs, awards grants, researches 
environmental issues, sponsors partnerships, educates the public, and 
publishes information. A basic inventory of CAFOs, which is generally 
what the settlement agreement addresses, could be useful for any of 
these purposes.

    Question 18i. On March 16, the U.S. Court of Appeals for the 5th 
Circuit ruled that EPA could not mandate that a CAFO that ``proposes'' 
to discharge obtain a National Pollutant Discharge Elimination System 
permit. How will this ruling impact the settlement agreement and the 
expected proposed rule?
    Answer. The Court of Appeals' decision in National Pork Producers 
Council et al., v. EPA does not address EPA's authority to collect 
information pursuant to section 308 of the Clean Water Act. The 
decision therefore would not affect the EPA's data collection proposal.

    Question 19. When EPA is negotiating a settlement, and it becomes 
clear that the agency will propose a rule as a result of the 
settlement, does EPA conduct an economic analysis of the impact of the 
impending regulation during settlement negotiations? If not, does EPA 
conduct an economic analysis of the impact during the rulemaking 
process? If the economic analysis shows problems with the proposed 
rule, does EPA have the authority to change the rule, or would that 
negate the settlement agreement?
    Answer. Where the EPA agrees under a settlement to propose a rule, 
it does not conduct an economic analysis. Whether the EPA conducts 
economic analysis of the impact of any given proposed rule depends on 
the nature of the rule in question. The EPA does not commit in 
settlement agreements to final, substantive outcomes of rulemaking and 
retains adequate discretion under its settlement agreements to address 
the results of any economic analysis undertaken in connection with a 
proposed rule. For this particular proposal related to the settlement 
agreement described above, the EPA is required to determine information 
collection costs pursuant to the Paperwork Reduction Act. EPA expects 
that the costs of collecting the basic inventory information addressed 
in the settlement agreement would generally be low and unlikely to pose 
a significant regulatory burden.
Question Submitted by Hon. Timothy V. Johnson, a Representative in 
        Congress from Illinois
    Question. Ms. Jackson, one of the greatest challenges in rural 
America right now is addressing urgent water and wastewater needs for 
small rural communities. At the same time, the EPA continues to add 
layers of stringent regulations on these communities, requiring 
billions of dollars in new investments throughout each state. When 
developing a TMDL does the EPA consider the impact the implementation 
of the TMDL may have on water and sewer rates, especially across small 
rural communities? What remedies do you offer if the community is 
unable to finance changes to their system or build a new system?
    Answer. The EPA recognizes the particular needs faced by rural 
communities in maintaining their water and wastewater infrastructure, 
and the EPA seeks to ensure that its programs are implemented in ways 
that recognize these specific challenges. In the context of a total 
maximum daily load (TMDL), most TMDLs are completed by the states, and 
this is the EPA's preference. TMDLs are approved by the EPA, and to 
receive approval, they must identify pollutant reductions adequate to 
meet water quality standards, including a margin of safety. This 
evaluation does not specifically consider costs. However, the EPA 
encourages states to take into consideration implementation issues, 
such as the cost of implementation, when they develop TMDLs, although 
implementation plans for TMDLs are not required by Federal law. The 
TMDL development process also provides opportunities for stakeholder 
input on how the TMDL would be implemented. States may also have the 
opportunity, should they wish to do so consistent with the Clean Water 
Act, to adopt temporary variances from their water quality standards, 
or they can set lower water quality goals to avoid widespread social or 
economic impacts. These changes would also require EPA approval.
    Additionally, the Clean Water State Revolving Fund (SRF) is one 
mechanism available to communities for financing upgrades to publicly 
owned treatment works. The Clean Water SRF offers below market interest 
rates that can make financing treatment plant upgrades more affordable 
for many communities. In addition, the FY 2010 and FY 2011 
appropriations allowed the SRF programs to use a portion of their 
capitalization grant to provide additional subsidy in the form of 
principal forgiveness, negative interest loans, and grants. States are 
encouraged to use this additional subsidy to provide financing to rural 
communities that could not otherwise afford a loan.
Questions Submitted by Hon. Martha Roby, a Representative in Congress 
        from Alabama
    Question 1. First, I like to ask you about the EPA guidance 
document that would broaden the reach of the Clean Water Act. Many 
stakeholders in Alabama are concerned with how EPA is going to redefine 
``Waters of the U.S.'' and how this will impact agriculture and the 
jurisdiction USDA and NRCS has through a MOU on wetland/stream issues?
    Also, can you please explain why this determination is being done 
through an internal guidance document as opposed to a formal rulemaking 
that would provide for public comment? It seems that a change to the 
definition of water in the U.S. will have far reaching effects and 
should be an open and transparent process.
    Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have 
drafted guidance that clarifies those waters over which the agencies 
will assert jurisdiction consistent with the CWA, implementing 
regulations, and Supreme Court interpretations. The draft guidance 
cannot and does not alter existing requirement of the law, it merely 
explains how the agencies think existing law should be applied in 
general, and emphasizes that it may not be applicable in particular 
cases. The scope of waters that would be protected under the 
interpretations in the draft guidance would remain significantly 
narrower than under the agencies' interpretations prior to the Supreme 
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture 
in the CWA and regulations would be completely unchanged by the draft 
guidance. Also, the draft guidance should have no effect on U.S. 
Department of Agriculture and the Natural Resources Conservation 
Service agreements, including those undertaken under the auspices of 
the Food Security Act. The EPA and the Corps released the draft 
guidance for public notice and comment on May 2, 2011 with a 60 day 
comment period; this comment period was later extended until July 31, 
2011. The agencies are now reviewing the comments received and will 
make decisions regarding any final guidance after carefully evaluating 
comments provided by the public. The agencies also expect to proceed 
with notice and comment rulemaking to further clarify the regulatory 
definition of the term ``waters of the United States.''

    Question 2. In your testimony you refer to the EPA's latest actions 
in your review of the National Ambient Air Quality Standards as 
required every 5 years under the Clean Air Act. The Second Draft Policy 
Assessment for Particulate Matter released on July 8, 2010 would 
establish the most stringent and unparalleled regulation of dust in our 
nation's history. If this ruling goes into effect, it appears that this 
would be impossible for farmers in Alabama to attain. Whether it is 
livestock kicking up dust, tractors going through a field or merely a 
car driving down a gravel road, farmers are going to be in 
noncompliance. And in times that Alabama faces extreme drought like a 
few years ago, it will only make it more impossible. What options are 
available to you regarding modifications to air quality standards 
regulations for farm dust?
    Answer. I committed in an October 17, 2011 letter that the EPA will 
send to the Office of Management and Budget a proposal to keep the 
PM10 national ambient air quality standard as it is, with no 
change. This existing standard has been in effect since 1987. I am 
hopeful that this announcement ends the myth that the agency has plans 
to tighten regulation of farm dust.

    Question 3. In response to questions about treating milk as oil 
under the SPCC regulations, you have repeatedly stated that the EPA 
does not intend to regulate milk. I suppose you recognize that these 
questions would not keep coming up had the EPA not withdrawn the 
proposed exemption issued by your predecessor in January of 2009. It is 
now 26 months later and the EPA has yet to issue a final rule exempting 
milk from the SPCC regulations. What are you planning to change in the 
proposed exemption that has taken you over 2 years to draft?
    Answer. On April 12, 2011, the EPA issued its final rule exempting 
milk and milk product containers from the Oil Spill Prevention, 
Control, and Countermeasure (SPCC) rule. The final rule was published 
in the Federal Register on April 18, 2011 and became effective on June 
17, 2011.

    Question 3a. Does EPA plan to regulate other low capacity on-farm 
storage? What kind of guidance and implementation time-frames will you 
consider for on-farm storage?
    Answer. The Oil Spill Prevention, Control, and Countermeasure 
(SPCC) rule is not directed toward low capacity oil storage. It applies 
to farms that store more than 1,320 U.S. gallons in total of all 
aboveground containers or more than 42,000 gallons in completely buried 
containers.
    Regarding the implementation time frames, the SPCC program requires 
the preparation and implementation of an SPCC Plan. Farms in operation 
on or before August 16, 2002, must maintain or amend their existing 
Plan by November 10, 2011. Any farm that started operation after August 
16, 2002, but before November 10, 2011, must prepare and use a Plan on 
or before November 10, 2011. On October 18, 2011, the EPA amended the 
date by which farms must prepare or amend and implement their SPCC 
Plans, to May 10, 2013. If the EPA receives no adverse comment by 
November 2, 2011, then the rule will become effective on November 7, 
2011. Assistance for farms is available through the EPA regional 
offices and at: http://www.epa.gov/emergencies/content/spcc/
spcc_ag.htm.

    Question 4. I am extremely concern over the proposed Boiler MACT 
rule to reduce pollution from industrial boilers. In Alabama, we have 
over 61 boilers with 51 of them in the wood products industry. I have 
heard from constituents that if it goes into effect that it would 
result in a loss of 17,000 jobs in mills plus nearly 55,000 jobs in the 
surrounding communities. New Air Regulations could total about $4 
billion annually, which is over 4 times the entire industries profit 
for 2008. I do appreciate the response in February that your office 
gave me and my fellow freshman colleagues who wrote to you in the 
beginning of this Congress on this issue. In that letter you mention 
that you will be accepting more comments on the rule--Could you discuss 
what we should expect from the Agency in the next few months in how 
they will be collecting and reviewing these additional comments and 
when we expect you to take the next step on the final ruling?
    Answer. Based on public comment and additional data provided during 
the comment period, the EPA made significant changes to the rules. The 
rules still achieve significant public health protections through 
reductions in toxic air emissions, including mercury and soot, but the 
cost of implementation was cut by about 50 percent from a version of 
the proposals issued last year. One of the changes made in the final 
rule was to combine coal and biomass fired boilers into a single 
subcategory, with the effect that owners and operators of biomass 
boilers will be able to comply more easily and at lower cost than was 
envisioned in the proposed rule. Also, as the result of the final rule 
defining nonhazardous solid waste, boilers burning clean biomass, or 
secondary biomass material generated through other processes that 
nonetheless is similar to clean biomass will not be reclassified as 
solid waste combustors. In addition, wood residuals were removed from 
the definition of non-hazardous solid waste, which provides additional 
fuel flexibility for biomass boilers. Finally, owners of biomass 
boilers may submit case by case requests for other types of materials 
to qualify as fuels (and, if they qualify, be permitted to be combusted 
by units subject to the boiler major or area source standards rather 
than the incinerator standards).
    Many biomass boilers are located at area sources of hazardous air 
pollutants. Area sources are typically smaller industrial or commercial 
operations/facilities. Significant changes were made to the area source 
requirements for biomass units. Under the final rule, existing area 
source biomass boilers are subject to a periodic tune-up requirement 
rather than the emission limits that were proposed. New biomass boilers 
are subject to emission limits for particulate matter that are 
reflective of readily available, proven, cost effective technologies 
that will not harm the economics of new projects at area sources.
    The EPA believes further public review is required because the 
final standards significantly differ from the proposals. Therefore, the 
EPA has announced that it intends to reconsider certain aspects of the 
final standards under the Clean Air Act process for reconsideration, 
which allows the agency to seek additional public review and comment to 
ensure full transparency. This process will enable us to conduct 
further analysis of issues presented during and after the public 
comment period for the recently adopted rule, including any further 
information that the public and affected source owners choose to 
provide to the EPA. As part of the reconsideration process, the EPA 
will issue a stay postponing the effective date of the standards for 
major source boilers and commercial and industrial solid waste 
incinerators. EPA also announced that the agency would accept 
additional data and information regarding potential reconsideration of 
these standards until July 15, 2011. We intend to issue a proposed 
reconsideration decision by the end of October 2011 and to finalize a 
decision by the end of April 2012. This schedule will allow the agency 
to base the final standards on the best available data and provides the 
public with ample opportunity to submit additional information and 
input.
Questions Submitted by Hon. Jean Schmidt, a Representative in Congress 
        from Ohio
    Question 1. In your response to Chairman Lucas regarding biological 
opinions under the Endangered Species Act, could you clarify for us 
what your plans are regarding external review?
    Answer. In March 2011, on behalf of the Departments of Agriculture, 
Commerce, and Interior, the EPA requested that the National Academy of 
Sciences (NAS) convene a committee of independent experts to review 
scientific and technical issues that have arisen as a result of 
collective responsibilities under the Endangered Species Act (ESA) and 
the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The 
recent experience of completing consultations under the ESA for FIFRA 
related actions affecting Pacific salmon has illustrated a number of 
scientific issues. The scientific and technical topics on which we seek 
advice pertain to the approaches utilized by the EPA, the Fish and 
Wildlife Service of the Department of the Interior, and the National 
Marine Fisheries Service of the Department of Commerce's National 
Oceanic and Atmospheric Administration in assessing the effects of 
proposed FIFRA actions on endangered species and their habitats. These 
topics include the identification of best available scientific data and 
information; consideration of sub-lethal, indirect and cumulative 
effects; the effects of chemical mixtures and inert ingredients; the 
use of models to assist in analyzing the effects of pesticide use; 
incorporating uncertainties into the evaluations effectively; and the 
use of geospatial information and datasets that can be employed by the 
departments and agencies in the course of these assessments. Two 
Biological Opinions developed by the National Marine Fisheries Service 
evaluating the impacts of six pesticides (carbaryl, carbofuran, 
chlorpyrifos, diazinon, malathion, and methomyl) on Pacific salmon will 
serve as examples to illustrate the scientific complexity of these 
issues. A concerted, closely coordinated effort to address these issues 
openly and actively will assist in the proper execution of the 
statutory responsibilities under the ESA, FIFRA and other applicable 
laws.
    The Executive Branch is formulating the specific charge to the NAS 
panel. Based upon preliminary discussions with the NAS, we believe that 
the external review could be completed in approximately 18 months, once 
the panel is convened. The first meeting of the NAS panel is scheduled 
for November 3, 2011.

    Question 2. Last week, the EPA filed for an extension of the court 
order in the case NCC v. EPA to give additional time to complete 
consultations under the Endangered Species Act. Is the EPA guaranteed 
to receive the extension you requested?
    Answer. On March 28, 2011, the United States Court of Appeals for 
the Sixth Circuit granted the EPA's 2nd Motion to Stay the Mandate 
until October 31, 2011 in the National Cotton Council of America v. EPA 
case.

    Question 2a. If an extension is not granted, would EPA and the 
states be able to finalize a Pesticide General Permit by April 9th?
    Answer. As discussed in the response above, on March 28, 2011, the 
United States Court of Appeals for the Sixth Circuit granted the EPA's 
2nd Motion to Stay the Mandate until October 31, 2011 in the National 
Cotton Council of America v. EPA case.

    Question 2b. In the absence of a Pesticide General Permit, could 
pesticide applicators be subject to citizen suits under the Clean Water 
Act for failure to obtain an NPDES permit?
    Answer. As indicated in the responses above, pesticide applicators 
are not required to obtain an NPDES permit prior to October 31, 2011. 
After that date, an operator who does not have a permit and who 
discharges could be subject to enforcement under the Clean Water Act, 
including enforcement under the citizen suit provisions, where 
applicable.

    Question 3. I want to turn attention to an issue pertaining to 
environmental justice and an issue that is very important to me and 
southern Ohio, bed bugs. Administrator Jackson, the EPA held a National 
Bed Bug summit in April of 2009 and again in February of 2011 with the 
goal of reviewing the current bed bug problem and identifying actions 
to address the problem. While I agree with the intent of the summit and 
some of the proposals, it seems as though EPA is almost exclusively 
focused on outreach and prevention. Outreach and prevention are worthy 
and laudable goals, but it does nothing for people who actually have 
bed bug infestations, especially those living on fixed and lower 
incomes. Do you think that proper consideration was given to Section 18 
exemption requests from states like Ohio for pesticide permits to 
eradicate this pest?
    Answer. The EPA's approach, as supported by CDC, DOD, HUD, NIH, and 
USDA, is not focused solely on outreach and prevention, but rather 
these efforts are part of a more comprehensive and multifaceted 
strategy that includes a variety of educational, non-chemical, and 
chemical approaches for bed bug management and control. Many involved 
in addressing bed bug infestations are now recognizing that no chemical 
is a silver bullet and that effectively managing bed bugs requires a 
comprehensive, collaborative approach.
    The EPA's role is to carry out the Congressional mandate in the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to ensure 
that pesticides are (1) safe and (2) effective. We carry out that 
responsibility through rigorous scientific screening of pesticides and 
imposing limits on the use of registered pesticides to ensure that they 
do not harm people or the environment when used according to the label.
    The EPA's assessment of Ohio's request for an emergency exemption 
allowing use of propoxur for bedbug infestation suggests the likely 
exposures to propoxpur are not adequately protective of the public. 
Propoxur, along with other members of its chemical class, is known to 
cause nervous system effects. The agency's health review for its use on 
bed bugs suggests that children entering and using rooms that have been 
treated may be at risk of experiencing nervous system effects. 
Inhalation and hand-to-mouth exposure routes pose the most concern for 
children. A safety evaluation must support all emergency use patterns, 
and the current risk assessment does not support a general approval, as 
had been sought in Ohio's section 18 request.

    Question 3a. Has the EPA reached a final decision on Ohio's Section 
18 request? If not, what mitigation measures is EPA presently 
considering? If EPA's decision to refuse the Section 18 request is 
final, is the Agency considering an alternative approach that Ohio and 
the other should pursue?
    Answer. The EPA is open to working with Ohio and others to 
determine whether propoxur can be used in some capacity for the control 
of bed bugs. As you are aware, the EPA's review found the requested use 
presents an unacceptable risk because children exposed to propoxur in 
treated rooms may experience nervous system effects (cholinesterase 
suppression). Inhalation and hand-to-mouth exposure routes pose the 
most concern for children. In addition, during the propoxur product 
reregistration process (2007 to 2009), all indoor residential spray 
uses were deleted from product labels due to risks to children.
    The EPA has communicated these results to the officials in Ohio. 
The EPA has offered Ohio the possibility of allowing the use of 
propoxur in locations where children would not be present, such as 
senior centers or other managed facilities with the ability to protect 
children from exposure. At this time, Ohio state officials have not 
proposed to modify their propoxur request in that manner.
    The EPA has also been in discussions with Ohio, and others, about 
the possibility of conducting additional toxicity testing that could 
assist the EPA in refining the risk assessment for propoxur.

    Question 4. In December, several of my colleagues and I sent you a 
letter expressing our concerns about EPA's draft Pesticide Registration 
Notice (PR Notice) 2010-X entitled False or Misleading Pesticide 
Product Brand Names. The proposal would require registrants of consumer 
pesticide products to change trademarked brand names if they contain 
words that EPA now considers to be misleading such as ``pro'' or 
``green'' even though the agency has previously approved these names. 
These products have been thoroughly evaluated through EPA's rigorous 
pesticide registration process and many of these products have been on 
the market for decades.
    What evidence does EPA have to suggest that consumers are confused 
by pesticide product brand names? Many of the potentially affected 
products are decades old and familiar to consumers.
    Answer. The EPA is aware of registrants' concerns about the draft 
PR Notice 2010-X concerning false or misleading pesticide product brand 
names. As background, for a registrant to lawfully sell and distribute 
a pesticide in the United States, the product cannot be ``misbranded'' 
as defined in the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) [see FIFRA  12(a)(1)(E)]. FIFRA defines ``misbranded,'' in 
part, as having labeling that ``bears any statement, design, or graphic 
representation relative thereto or to its ingredients which is false or 
misleading in any particular'' [see FIFRA  2(q)(1)(A)]. Therefore, if 
a brand name or product name that appears on a product's labeling is 
false or misleading, it would be a violation of FIFRA to sell or 
distribute the product. In addition, the EPA could not grant a 
registration to a product that would be misbranded [see FIFRA  
3(c)(5)(B)].
    The draft PR Notice 2010-X does not require registrants to change 
pesticide product brand names; rather, it provides examples of brand 
names that may be considered to be false or misleading and describes a 
process for ensuring that brand names are not false or misleading by 
making changes such as replacing them or including qualifiers or 
disclaimers. Even though the PR Notice is still in draft, the FIFRA 
requirements apply to all pesticides, and when making decisions on 
registration applications or amendments, the EPA must determine whether 
labeling is false or misleading.
    Regarding your question about consumers, the EPA does not make 
decisions about the acceptability of pesticide product brand names 
solely based on complaints from consumers. The basis for evaluating a 
product's brand name is initially the EPA's judgment as to whether that 
name appears to be ``false or misleading in any particular'' along with 
any evidence the EPA may possess indicating a name is false or 
misleading, consistent with the statute. The agency reviews a pesticide 
product's labeling and informs applicants or registrants if the agency 
finds specific statements, claims, product brand names, logos, pictures 
or other aspects of the labeling to be potentially false or misleading. 
For example, a product name containing the term ``green'' could mislead 
the consumer into believing that a product is totally safe for the 
environment and thereby cause consumers to ignore the safety warnings 
and precautions on the label.
    When labeling is potentially false or misleading, the EPA may work 
with the applicant or registrant to modify the labeling so that it is 
not false or misleading before the labeling is approved. Occasionally, 
some applicants, registrants and distributors have considered or 
adopted product brand names (or placed company names or trademarks 
within or in close proximity to product brand names) that run counter 
to agency regulations and FIFRA concerning false or misleading claims. 
It is for this reason that the EPA believes that guidance issued in the 
form of a PR Notice is needed to clarify its current interpretation of 
what product names may be false or misleading. Again, the PR Notice 
does not require any brand name to be changed, instead it provides 
guidance to registrants on what terms may be false or misleading as 
well as options for modifying labeling so that it is not false or 
misleading.
    Finally, you may be interested to know that the EPA is considering 
narrowing the scope of the notice so that it focuses solely on safety- 
and composition-related terms, which would reduce the number of 
potentially affected products by roughly \2/3\ (66%). For example, the 
term ``pro'' and other efficacy-related terms would be removed from the 
PR Notice.

    Question 4a. In his response to the letter from my colleagues and 
I, Assistant Administrator Owens states that ``EPA believes that only a 
very small number of products will be affected by the final PR 
Notice,'' and ``EPA believes that very few registrants, if any, would 
actually need to change their product brand names and that no 
significant adverse impacts should occur in the marketplace.'' However, 
an industry estimate suggests that the proposal could impact more than 
5,000 currently registered pesticide products and result in a potential 
loss of approximately $2.5 billion in brand equity. What analysis did 
EPA conduct to support the conclusion that only a very small number of 
products will be affected? Can you explain the discrepancy between 
EPA's prediction of the proposal's affect and that of the industry?
    Answer. In evaluating the public comments received on the draft PR 
Notice, the EPA has counted the products bearing brand names for 
federally registered pesticide products that contain the 21 terms 
listed in the draft notice as potentially false or misleading. The EPA 
has found a total of 1,322 federally registered product brand names 
(not including distributor products) containing those listed terms. As 
mentioned in the previous answer, the EPA is currently contemplating 
narrowing the scope of the notice so that it focuses solely on safety- 
and composition-related terms, which would reduce by about \2/3\ (66%) 
the number of potentially affected products. Moreover, the draft 
guidance neither bans product names containing the example terms, nor 
does it require brand names to be revised. Rather, it clarifies that 
product names containing certain terms could potentially be false or 
misleading and provides options available to registrants for addressing 
such issues with the agency.

    Question 4b. What type of economic analysis has EPA done on the 
economic impacts to pesticide manufacturers, garden centers, retail 
stores and other businesses that sell pesticide products?
    Answer. The Agency is not required to conduct, and has not 
prepared, a formal economic analysis of proposed policies such as this. 
Nonetheless, the EPA works with pesticide companies and others on PR 
notices and takes into account the economic impacts. As mentioned in 
the previous two answers, the EPA is considering narrowing the scope of 
the notice, which would decrease the number of products that might be 
affected by about \2/3\ (66 percent). Therefore, the EPA estimates that 
only a very small percentage of all pesticide product brand names for 
current federally registered products would be likely to take any 
action in response to the PR Notice. Further, the PR Notice offers 
registrants simple and workable alternatives to changing or removing 
names such as by using disclaimers, qualifying statements, changing 
font type and size, and other methods short of removal or changes of 
trademarked names.

    Question 4c. Can EPA provide the Committee with assurances that it 
will refrain from requiring registrants to change existing product 
brand names through the registration process until a formal policy is 
finalized?
    Answer. The EPA agrees that the draft PR Notice should not be 
implemented until we have duly considered all public comments received 
and have issued a final and effective PR Notice. However, in the 
absence of a final PR Notice, the EPA must continue to respond to 
potentially false or misleading terms in product brand names in a 
manner that is consistent with the law.

    Question 5. Administrator Jackson, On January 7th your Agency 
declared that the purposeful introduction of fluoride, at significant 
levels, into drinking water is a critical public health practice that 
needs to continue. As you know, the Centers for Disease Control have 
called community water fluoridation one of the ``ten greatest public 
health achievements of the 20th century''. However, 3 days later, your 
agency proposed to prohibit the use of a vital food protection 
product--a product necessary to protect the US food supply--because it 
results in a small amount of fluoride to be introduced to the diet of 
some individuals.
    Administrator Jackson--your agency is saying ``Because we're 
worried about your health . . . we need to put it in your drinking 
water. BUT, because we're worried about your health . . . we need to 
take it out of your food.''
    Don't you agree that this is approach to public health, protection 
of the food supply and the environment is absurd? Wouldn't you agree 
that there HAS to be a better solution than this?
    Answer. The EPA, the Centers for Disease Control and Protection 
(CDC), and the U.S. Food and Drug Administration (FDA) worked closely 
to reach a shared understanding of the latest science on fluoride, in 
order to ensure a consistent, comprehensive approach. The agencies have 
concluded that the amount of fluoride to which people in the United 
States are exposed has increased over the last several decades since 
the introduction of drinking water fluoridation and consumer dental 
products (such as fluoride toothpaste and mouth rinses). This has led 
to a large decline in the prevalence of tooth decay, but has also been 
accompanied by a modest increase in the prevalence of dental fluorosis, 
a condition caused by fluoride over exposure that can cause dental 
effects ranging from barely visible lacey white markings, to more 
severe staining or pitting of the tooth's enamel. The proper levels of 
fluoride provide important benefits to dental health, and the majority 
of the United States population is not exposed to excessive levels. 
However, fluoride exposure is too high for some children, particularly 
those who live in areas with high levels of naturally occurring 
fluoride in drinking water.
    The EPA is currently examining the fluoride drinking water standard 
and considering whether to lower the maximum amount of fluoride allowed 
in drinking water, which is set to prevent adverse health effects. In 
addition, the EPA is proposing to withdraw the fluoride tolerances for 
the fumigant sulfuryl fluoride because Section 408 of the Federal Food, 
Drug, and Cosmetic Act (FFDCA) prohibits the EPA from establishing 
tolerances for pesticides if aggregate exposure (exposure from all non-
occupational sources, including drinking water and dental products) is 
not safe. Based on the recommendation of the National Academies of 
Science, as well as the EPA risk assessments, the EPA has determined 
that, in areas where drinking water contains naturally high fluoride 
levels, aggregate exposures to fluoride for infants and children under 
the age of seven years old can exceed a level that can cause severe 
dental fluorosis. The EPA recognizes that in most such cases, pesticide 
residues would not be a primary source of exposure and removing such 
residues would generally not have a significant impact on risk or 
public health. EPA also recognizes the significant benefits that 
several uses of sulfuryl fluoride provide, but considerations such as 
these are not relevant under FFDCA Section 408 which requires the EPA 
to base its tolerance decisions on risk alone, even when the 
incremental risk is small. As explained in the Federal Register notice 
announcing its proposal in response to objections to the sulfuryl 
fluoride tolerances, EPA thinks that this action is required by Section 
408 of the FFDCA. The Federal Register notice containing EPA's proposal 
discusses the possible adverse impacts on public health and other 
consequences from a final decision to revoke the sulfuryl fluoride 
tolerances.
    The EPA's proposed decision on sulfuryl fluoride was published in 
the Federal Register on January 19, 2011. The Agency accepted comments 
through July 5, 2011, and anticipates issuing a final decision in 2012. 
The EPA has proposed a three year phase out for most sulfuryl fluoride 
uses in order to provide time for users to transition to alternative 
treatments; the phase out time would not begin until 60 days after the 
EPA publishes the final order in the Federal Register, likely in 2012.
Questions Submitted by Hon. Dennis A. Cardoza, a Representative in 
        Congress from California
    Question 1. Administrator Jackson, the EPA recently announced an 
advance notice of proposed rulemaking seeking public input on the 
effectiveness of current water quality programs influencing the health 
of the San Francisco Bay Delta Estuary. The ANPR solicits comment on 
topics, such as potential site-specific water quality standards and 
site-specific changes to pesticide regulation. Can you explain the 
EPA's intent with this recent announcement? How do you intend to 
coordinate and work within the current BDCP process without causing 
more harm than good?
    Answer. The EPA committed to complete this advance notice of 
proposed rulemaking (ANPR) and public solicitation process in the 
Interim Federal Action Plan (IFAP) for the California Bay Delta Estuary 
developed in 2009 by six Federal agencies. The IFAP describes various 
actions Federal agencies committed to undertake, with the State of 
California, to investigate and mitigate the impacts of all stressors on 
the imperiled native species and the Bay-Delta Estuary aquatic 
ecosystem; to encourage smarter water use; to help deliver drought 
relief services; and to ensure integrated flood risk management. Water 
quality in the Bay Delta Estuary and its tributaries is impaired, 
contributing to the current ecological and water supply crisis. 
Specifically, the EPA's role in this initiative is to ``assess the 
effectiveness of the current regulatory mechanisms designed to protect 
water quality in the Delta and its tributaries.'' This ANPR is the 
start of this assessment.
    The comment period for the ANPR closed on April 25, 2011. The EPA 
will review the public responses to the ANPR, along with the 
significant scientific information developed about Bay Delta Estuary 
aquatic resources. We will synthesize all available information and 
develop a strategic proposal on how to use the EPA's authorities and 
resources to achieve water quality and aquatic resource protection 
goals in the Bay Delta. We will collaborate with the state and regional 
water boards, as well as with other agencies and stakeholders, to 
assure that our collective efforts are effective and efficient.
    At the same time, the Bay Delta Conservation Plan (BDCP) is being 
developed as a habitat conservation plan under the Federal Endangered 
Species Act and the state Natural Community Conservation Plan Act and 
is targeted to address primarily the impacts of the state and Federal 
water export facilities on endangered and threatened species. The BDCP 
is expected to include proposals for changing how water is diverted and 
conveyed through the Bay Delta Estuary to the state and Federal water 
export pumping facilities in the south Delta. The EPA's 
responsibilities under the Clean Water Act to protect designated uses 
of waterbodies, that may include estuarine habitat, fish migration, and 
threatened and endangered species, overlap with ESA requirements being 
addressed in the BDCP. Some actions taken pursuant to the BDCP will 
need to comply with both the ESA and Clean Water Act. To that end, the 
EPA will ensure that any action it might take as a result of this ANPR 
will be closely coordinated with other Federal and state actions 
related to the BDCP, any biological opinions on water operations 
affecting the Bay Delta Estuary, and any other actions requiring ESA 
compliance.

    Question 2. Administrator Jackson, EPA recently proposed to 
withdraw food tolerances of sulfuryl fluoride, a product critical to 
the protection of U.S. agriculture and especially specialty crops in 
California. This move is puzzling to me because it will negatively 
impact public health by increasing the potential for contamination and 
diminish producers' ability to export goods to foreign markets. Why is 
EPA issuing this proposal now? Can you tell me who are the actual 
beneficiaries of this proposed EPA action? And why is the Agency taking 
such an action given the importance of this product to agriculture and 
public safety?
    Answer. As explained in the Federal Register notice announcing its 
proposal in response to objections to the sulfuryl fluoride tolerances, 
EPA thinks that this action is required by Section 408 of the Federal 
Food, Drug, and Cosmetic Act (FFDCA). The Federal Register notice 
containing EPA's proposal discusses the possible adverse impacts on 
public health and other consequences from a final decision to revoke 
the sulfuryl fluoride tolerances.
    The EPA, the Centers for Disease Control and Protection (CDC), and 
the U.S. Food and Drug Administration (FDA) worked closely to reach a 
shared understanding of the latest science on fluoride, in order to 
ensure a consistent, comprehensive approach. The agencies have 
concluded that the amount of fluoride to which people in the United 
States are exposed has increased over the last several decades since 
the introduction of drinking water fluoridation and consumer dental 
products (such as fluoride toothpaste and mouth rinses). The EPA's 
fluoride risk assessment showed that children--particularly those 
living in those areas with naturally occurring high levels of fluoride 
in the drinking water supply--are exposed to fluoride levels that can 
cause severe dental fluorosis. Withdrawal of the sulfuryl fluoride 
tolerances will reduce these children's level of fluoride exposure. The 
EPA is also currently examining the fluoride drinking water standard 
and considering whether to lower the maximum amount of fluoride allowed 
in drinking water.
    The EPA is proposing this action on sulfuryl fluoride because the 
governing statutory provision, Section 408 of the FFDCA, bars the EPA 
from establishing tolerances for pesticides if aggregate exposure 
(exposure from all nonoccupational sources, including drinking water 
and dental products) is not safe. Based on the recommendation of the 
National Academies of Science as well as the EPA risk assessments, the 
EPA has determined that aggregate exposure to fluoride exceeds levels 
that can cause severe dental fluorosis in areas where drinking water 
contains naturally high fluoride levels. The EPA recognizes the 
significant benefits that several uses of sulfuryl fluoride provide and 
also the key role the availability of sulfuryl fluoride serves in 
helping the EPA meet its obligations under the Montreal Protocol to 
reduce the use of the stratospheric depleting pesticide, methyl 
bromide. Nonetheless, considerations such as these are not relevant 
under FFDCA Section 408 which requires the EPA to base its tolerance 
decisions on risk alone. EPA believes it has no discretion in this 
area; we are required by Section 408 to remove tolerances when 
aggregate exposure exceeds the safe level, even if only by a small 
amount for highly exposed populations, and even where the exposure from 
pesticide residues is insignificant compared with other sources of 
exposure, as in the case of fluoride.
    The EPA's proposed decision on sulfuryl fluoride was published in 
the Federal Register on January 19, 2011. The agency accepted comments 
through July 5, 2011, and anticipates issuing a final decision in 2012. 
The EPA has proposed a three year phase out for most sulfuryl fluoride 
uses in order to provide time for users to transition to alternative 
treatments; the phase out time would not begin until 60 days after the 
EPA publishes the final order in the Federal Register, likely in 2012.

    Question 3. Every year the USDA and EPA work in conjunction to 
release the Pesticide Data Program report. This report is an important 
tool for EPA in setting tolerance levels for pesticide residues for 
various commodities. The report demonstrates a robust reporting process 
and year after year shows that the vast majority of fruits and 
vegetables fall overwhelmingly below the tolerances set by EPA. Yet, 
every year there are groups which misconstrue this data to suggest 
certain conventionally grown commodities are unsafe for consumption. 
Can your office begin defending both the robust process which generates 
this report and the findings which demonstrate that safety of the food 
supply?
    Answer. The U.S. Department of Agriculture's (USDA) Pesticide Data 
Program (PDP) provides high quality, indispensable pesticide monitoring 
data that is invaluable to the EPA in producing realistic pesticide 
dietary exposure assessments as part of its effort to implement the 
1996 Food Quality Protection Act. The EPA works with USDA to ensure the 
information released through the PDP program is accurately described to 
the public.
    PDP monitoring activities are a Federal-state partnership. Samples 
of fruit, vegetables, and other commodities are collected from 10 
participating states from all regions of the country representing 50 
percent of the U.S. population. Samples are apportioned according to 
each state's population and the commodities selected are chosen, in 
part, for their significance in the diet. Specific emphasis is placed 
on sampling fruits and vegetables commonly consumed by children. The 
samples are collected close to the point of consumption--at terminal 
markets and large chain store distribution centers--immediately prior 
to distribution to supermarkets and grocery stores. Samples are 
collected based on a sampling design method that ensures that 
monitoring data are nationally representative of the U.S. food supply. 
They represent food that is typically available to the consumer for 
purchase throughout the year to provide the best available realistic 
estimate of exposure to pesticide residues in foods.
    The data collected under this program is ideal in many respects for 
use in the EPA's exposure assessment for pesticides: samples are 
collected as close to the point of consumption as possible (while still 
retaining the identity of product origin) and sampling is based on 
statistically reliable protocols. Over the last 15 years, PDP has 
collected tens of thousands of samples of 85 different commodities, 
analyzing for over 440 pesticides. During this time, only a small 
percentage of these samples found (1) pesticide concentrations above 
the legal limit allowed (referred to as a tolerance) or (2) pesticide 
residue on commodities that do not have a tolerance established for 
that chemical (while the presence of such residue may be illegal, it is 
not necessarily unsafe). The EPA routinely uses USDA's PDP data as a 
component of its risk assessments to ensure that risk estimates for the 
U.S. population and various subgroups are safe--that is, there a 
reasonable certainty of no harm.
Question Submitted by Hon. Reid J. Ribble, a Representative in Congress 
        from Wisconsin
    Question. I appreciate that EPA intends to finalize an exemption 
for dairy under the Spill Prevention, Control, and Countermeasure rule. 
However, I have heard increasing concern from Wisconsin farmers about 
regulatory uncertainty because the Agency has yet to do so. When does 
EPA plan to finalize this exemption? This process is cause for concern 
about EPA's overall methodology, seeing as milk is already regulated 
for quality and safety.
    Answer. On April 12, 2011, the EPA issued its final rule exempting 
milk and milk product containers from the Oil Spill Prevention, 
Control, and Countermeasure (SPCC) rule. The final rule was published 
in the Federal Register on April 18, 2011 and became effective on June 
17, 2011.
Questions Submitted by Hon. Mike McIntyre, a Representative in Congress 
        from North Carolina
    Question 1. Administrator Jackson, 2 weeks ago, the Secretary of 
Agriculture gave testimony before this Committee on the current state 
of the agriculture industry. I don't think that anyone on this 
Committee would disagree with me that your Agency, the EPA, was the 
most talked about topic by Members of this Committee. Whether you 
realize it or not, my constituents and many American farmers are very 
worried and upset over the number of regulations coming out of EPA that 
negatively impact farmers and ranchers. Given that perception can 
become reality, how do you intend to improve the EPA's record in the 
future? What fundamental changes in EPA's relationship with the 
agricultural community are you willing to commit to today?
    Answer. The EPA is committed to providing an effective opportunity 
for input from all stakeholders in shaping environmental protection 
strategies including input from the agricultural community. We have 
established a Federal advisory committee, The Farm, Ranch, and Rural 
Communities Committee, to provide advice to the agency. My office is 
directly engaged in facilitating the work of the Committee which is 
currently deliberating the most effective approaches to protecting 
water quality in agriculture.
    Each of our Regional Administrators has an agriculture advisor who 
interacts directly with the agriculture community, including state and 
local agricultural organizations. The EPA is currently engaged in a 
series of intensive listening sessions with agricultural and other 
stakeholders to solicit their views on the issues surrounding emissions 
of particulate matter. The EPA Office of Pesticide Programs also 
conducts an active Federal advisory committee to solicit input from a 
wide range of stakeholders on pesticide issues, particularly those that 
affect agriculture.
    In addition, I will continue to travel to farm communities to talk 
directly with farmers and will continue to join Secretary Vilsack in 
meeting with commodity groups and farm organizations. The EPA finds 
these discussions a valuable opportunity to keep agricultural 
stakeholders informed about agency initiatives and to get feedback from 
them on these issues. The agency often solicits agriculture community 
views on the EPA's efforts to promote environmental quality and 
willingly accepts invitations to meet. The EPA will continue to promote 
opportunities to engage and inform all stakeholder groups, including 
those representing agriculture.

    Question 2. Administrator Jackson, with regard to the national 
ambient air quality standards (NAAQS) for ozone? What are the parts per 
billion the EPA is considering?
    What would be the economic impact of lowering the standard to 
between 60 and 70 ppb?
    How does the EPA, or how will the EPA, work with communities that 
it designates as in nonattainment if there is a disagreement about the 
designation? For instance--if there are objections about the location 
of air monitors or if a community is already under an existing plan to 
improve air quality. Will the EPA work with them in a positive and 
collaborative manner?
    Answer. On September 2, 2011, the Administration withdrew the final 
rule for the reconsidered 2008 ozone National Ambient Air Quality 
Standards (NAAQS) from interagency review and is now proceeding with 
implementation of the current ozone NAAQS of 0.075 ppm (or 75 parts per 
billion).
    When implementing a new or revised NAAQS, the EPA and states work 
together in a collaborative manner prior to final designations. The 
Clean Air Act outlines the process for initial area designations 
following the establishment of new or revised NAAQS (see section 
107(d)). This includes: (1) the EPA guidance to states on the 
designation process, including the factors the EPA intends to use to 
evaluate appropriate boundaries for nonattainment areas; and, (2) a 
process for states to submit designation recommendations, which the EPA 
carefully considers. If the EPA intends to promulgate a designation 
different from a state recommendation, the EPA must notify the state at 
least 120 days prior to promulgating the final designation. The EPA 
must also provide the state an opportunity to demonstrate why the 
potential modification is inappropriate.
    For the ozone NAAQS, the EPA recently announced that it will be 
proceeding with initial area designations under the 2008 standard, 
starting with the recommendations states made in 2009 and updating them 
with the most current, certified air quality data. Because the agency 
has these recommendations from the states and quality assured data for 
2008-2010, there is nothing that state or local agencies need to do 
until the EPA issues any proposed changes to the states' 
recommendations (the ``120-day letters``) later this fall, though of 
course, states are welcome to contact the EPA to discuss specific 
issues at any time.

    Question 3. Administrator, there have been guidance documents 
seeking clarification of both the Solid Waste Agency of Northern Cook 
County (SWANCC) and Rapanos court decisions, but the uncertainties 
about the Federal jurisdiction over wetlands and other waters remains 
highly controversial. The new draft guidance document was recently 
released to Inside EPA.
    What are the differences between this guidance and the ones 
previously released? What stage in the process is the document?
    In North Carolina, many farmers are worried that many new water 
bodies are going to fall under EPA and Army Corps regulation and 
require Federal permits. Under the draft guidance currently at OMB, how 
broadly do you expect the impacts to be on agriculture? Does the EPA 
envision regulating farm ponds and other water bodies located on farms?
    Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have 
drafted guidance that clarifies those waters over which the agencies 
will assert jurisdiction consistent with the Clean Water Act (CWA), 
implementing regulations, and Supreme Court interpretations. The draft 
guidance cannot and does not alter existing requirements of the law; it 
merely explains how the agencies think existing law should be applied 
in general, and emphasizes that it may not be applicable in particular 
cases. The agencies have worked carefully to assure that the draft 
guidance is consistent with the law and would not impact any of the 
existing statutory or regulatory exemptions for the nation's farmers. 
The agencies understand the important role played by farmers in 
conserving and protecting clean water and the environment. The EPA and 
the Corps released the draft guidance for public notice and comment on 
May 2, 2011 with a 60 day comment period; this comment period was later 
extended until July 31, 2011. The agencies are now reviewing the 
comments received and will make decisions regarding any final guidance 
after carefully evaluating comments provided by the public. The 
agencies also expect to proceed with notice and comment rulemaking to 
further clarify the regulatory definition of the term ``waters of the 
United States,'' and to provide the public with an opportunity to 
participate in decisions regarding changes to the agencies' 
regulations. All exemptions for agriculture in the CWA and its 
implementing regulations would remain unchanged by the guidance, 
including the EPA's longstanding interpretation of 404(f)(1)(c) 
exempting farm ponds from CWA section 404 permitting requirements.
Questions Submitted by Hon. Tim Huelskamp, a Representative in Congress 
        from Kansas
    Question 1. In Parsons, KS, there is an ammunition depot that was 
closed during the latest round of the BRAC (Base Realignments and 
Closures) process in 2005. While the Army is attempting to close the 
base and turn it over to a redevelopment authority organized by the 
local community, you have attempted to require the Army and the 
community to make environmental improvements to the facility above and 
beyond those that are statutorily mandated. From where does the EPA 
believe their statutory authority governing these particular demands 
come? Further, I request the EPA provide documentation of this 
authority.
    Answer. EPA believes that its authority to address environmental 
conditions at the Kansas Army Ammunition Site (KSAAP) site comes 
primarily from the Resource Conservation and Recovery Act (RCRA) and 
the Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA). A RCRA permit was issued for the KSAAP site in 1989, 
which pursuant to requirements of RCRA section 3004(u) included a 
provision for ``corrective action''--the requirement to clean up 
releases of both hazardous wastes and hazardous constituents.
    The Army is expected to finalize its transfer to the developer in 
the November/December 2011 timeframe. EPA and the state initiated the 
30 day public notification process on September 28, 2011, to modify the 
existing RCRA corrective action permit that will ultimately facilitate 
the transfer of the KSAAP facility to the developer and the operating 
contractor after the land transfer occurs. The details of remediation 
requirements are being negotiated between EPA, DOD, the state, and the 
developer.

    Question 2. Do you intend to conduct a comprehensive cost-benefit 
analysis prior to proposing any changes to regulations concerning farm 
dust? What mitigation steps would you propose to ensure compliance with 
dust-related air quality standards?
    Answer. I committed in an October 17, 2011 letter that the EPA will 
send to the Office of Management and Budget a proposal to keep the 
PM10 national ambient air quality standard as it is, with no 
change. This existing standard has been in effect since 1987. I am 
hopeful that this announcement ends the myth that the agency has plans 
to tighten regulation of farm dust.
Questions Submitted by Hon. Larry Kissell, a Representative in Congress 
        from North Carolina
    Question 1. Administrator Jackson, while I am concerned with the 
impact of coarse particulate matter or PM10 standards 
pertaining to farm equipment and rural roads, I am also troubled by the 
impact that the EPA's PM2.5 standard may also have on rural 
America. PM2.5 limits are currently set at 15 parts per 
billion (ppb), and now EPA is looking to make the PM2.5 rule 
even stricter. New levels being considered are between 12-14 ppb--which 
are approaching naturally occurring background levels. For example, 
naturally occurring levels in rural North Carolina are at 12.8 ppb. 
Concerns over these new levels have prevented Charlotte Pipe from 
building a new green foundry in a rural area of my district. This rule 
could impact hundreds of other manufacturers that want to expand their 
capacity or build a new facility, and potentially not allow new jobs to 
enter rural America where they are surely needed.
    Should, in the case of a new greener foundry replacing an older 
facility or the greener retrofitting of an old foundry be judged by the 
lessening of the particulate matter emitted relative to the old 
facility, rather than the aggregate particulate matter present in the 
location where the new facility is located?
    Answer. The National Ambient Air Quality Standards (NAAQS) are set 
to protect public health and the environment. It is not the intent of 
the Clean Air Act (CAA) to prohibit the development of cleaner sources. 
If the new foundry is built at the same location as the older facility, 
then the greener facility likely would not increase emissions in the 
area, and therefore not trigger additional requirements for evaluating 
emissions increases. If the new foundry is built at a different 
location, the CAA requires that the surrounding area will still remain 
within acceptable air quality levels. The source will need to assess 
its air quality impacts and can work with the state and the EPA 
regional office to determine any appropriate steps to address impacts 
that exceed CAA levels. In North Carolina, the state is the permitting 
authority, and the CAA provides them the flexibility to determine what, 
if any, additional controls are needed in an area to ensure local air 
quality is protected.

    Question 2. Agribusiness retailers form the heart of fertilizer 
distribution in the U.S. and provide precision application that targets 
nutrients where they are needed. There are 6,800 agribusiness retailers 
in the country, almost a third of which are small businesses.
    The EPCRA statute contains several exemptions from the definition 
of a hazardous chemical, including ``fertilizer held for sale by a 
retailer to the ultimate customer'' (hereinafter the ``fertilizer 
retail exemption'').
    After 20 years of EPA upholding this exemption, Region 6 has 
reversed course and began enforcement and HQ staff are asserting that 
it no longer applies to simple mixing of fertilizers (with no chemical 
reaction)? Can you please explain to the Committee why the Agency has 
chosen to side-step Congressional intent as it relates to the 
``fertilizer retail exemption'' and what further action do you plan to 
take as it relates to this issue?
    Answer. The EPA's Region 6 has not taken any enforcement actions 
under section 312 of the Emergency Planning and Community Right-to-Know 
Act (EPCRA) for fertilizers and there has not been any policy change 
regarding the fertilizer exemption.
    Sections 311 and 312 of EPCRA apply to owners and operators of 
facilities that are required to prepare or have available a material 
safety data sheet (MSDS) for a hazardous chemical defined under the 
Occupational Safety and Health Act (OSHA) Hazard Communication Standard 
(HCS). If the hazardous chemical is present at or above the reporting 
thresholds specified in 40 CFR part 370, the facility owner or operator 
is required to submit a material safety data sheet (MSDS) or a list 
that contains the hazardous chemical under section 311 of EPCRA. Under 
section 312 of EPCRA, if a hazardous chemical is present at or above 
the reporting threshold specified in 40 CFR part 370, the facility 
owner or operator is required to submit an emergency and hazardous 
chemical inventory form (Tier I or Tier II) to the State Emergency 
Response Commission (SERC), Local Emergency Planning Committee (LEPC) 
and the local fire department annually by March 1. This information is 
made available to the public by the LEPCs so they have information on 
the chemicals in process or being used in their community.
    Section 311(e)(5) of EPCRA exempts from the definition of a 
hazardous chemical ``any substance to the extent it is used in routine 
agricultural operations or a fertilizer held for sale by a retailer to 
the ultimate customer.'' Thus, if a retail facility sells fertilizer to 
a farmer, those fertilizers are exempt from reporting under Section 311 
and 312 of EPCRA. However, there are examples where these retail 
facilities also blend various fertilizers to create a unique 
fertilizer. We are currently evaluating this scenario to determine how 
the retailer fertilizer exemption in EPCRA applies and engaging with 
industry to better understand the situation. The agency will keep the 
Committee and the agricultural community informed of any results from 
the evaluation.
Questions Submitted by Hon. Jeff Fortenberry, a Representative in 
        Congress from Nebraska
    Question 1. Does the EPA plan to regulate low capacity on-farm fuel 
storage?
    Answer. The Oil Spill Prevention, Control, and Countermeasure 
(SPCC) rule is not directed toward low capacity oil storage. It applies 
to farms that store more than 1,320 U.S. gallons in total of all 
aboveground containers or more than 42,000 gallons in completely buried 
containers.

    Question 2. Does the EPA plan to regulate livestock emissions?
    Answer. Under the Mandatory Reporting of Greenhouse Gases (GHG) 
rule, certain livestock facilities with manure management systems with 
emissions equal to or greater than 25,000 metric tons of carbon dioxide 
equivalent (CO2e) per year from a manure management system 
are required to report. No other GHG emission sources associated with 
agriculture are covered. However, the EPA is not currently implementing 
this part of the rule (subpart JJ) due to a Congressional restriction 
prohibiting the expenditure of funds in fiscal year 2011 for this 
purpose.
Questions Submitted by Hon. Randy Hultgren, a Representative in 
        Congress from Illinois
    Question 1. If EPA and the Corps were to adopt the Draft 2010 Clean 
Water Protection Guidance as a final document, is there any water body 
or wetland that lies within the same watershed as a navigable or 
interstate water that would not have a ``significant nexus'' to that 
navigable or interstate water?
    Under the Guidance, a ``significant nexus'' is sufficient to 
establish jurisdiction, so doesn't that mean that EPA or the Corps 
could assert jurisdiction over any water body or wetland?
    Answer. The agencies do not believe that all water bodies and 
wetlands would be determined to be jurisdictional under the draft 
guidance. For example, most water bodies and wetlands historically 
regulated under the ``other waters'' provision of our regulations would 
not be found jurisdictional under the draft guidance. As stated in the 
guidance, while each situation must be evaluated on a case-by-case 
basis, the agencies believe that most streams that flow into a 
traditional navigable or interstate water, as well as their neighboring 
wetlands, would be found to have a significant nexus to such downstream 
waters. We believe this is fully consistent with the SWANCC and Rapanos 
decisions and generally reflects the agencies' current interpretation 
of the scope of Clean Water Act jurisdiction. As a result, the agencies 
do not believe that the guidance, if finalized, would result in a 
significant change in Clean Water Act jurisdiction.
    The agencies released the draft guidance for public notice and 
comment on May 2, 2011 with a 60 day comment period; this comment 
period was later extended until July 31, 2011. The agencies are now 
reviewing the comments received and will make decisions regarding any 
final guidance after carefully evaluating comments provided by the 
public.

    Question 2. The draft guidance provides no exceptions that are not 
in the statute or in existing regulations. Isn't it true that under the 
draft guidance EPA and the Corps could regulate almost any waters body 
or wetland on a case-by-case basis, even if the guidance says they are 
``generally not jurisdictional?''
    These water bodies include ditches constructed wholly in dry land, 
artificial lakes and ponds used for stock watering or irrigation, rice 
fields, even water filled depressions from construction activity. 
Nothing in the guidance stops EPA or the Corps from arguing that a 
``significant nexus'' exists between those water bodies and downstream 
navigable or interstate waters.
    Answer. No. Past guidance issued by the agencies in 2008 also 
identified specific types of water as ``generally not jurisdictional'' 
such as swales or erosional features and upland ditches. Since that 
guidance was issued, the agencies have asserted jurisdiction over few, 
if any, of these waters. The draft guidance will not change this 
position.

    Question 3. In the SWANCC case, the court addressed an old quarry 
that was proposed to be filled in as a landfill. The Corps asserted 
jurisdiction because the quarry was used by migratory birds. The 
Supreme Court said no. Under the draft guidance, couldn't EPA and the 
Corps assert jurisdiction over that quarry because it holds water and 
lies within in a watershed, even though it is isolated?
    Answer. No, the guidance will not result in jurisdiction over the 
waters at issue in SWANCC.

    Question 4. Why are EPA and the Corps trying to change the policies 
of their agencies through a guidance document? The courts have said 
that an agency cannot do that without going through notice and comment 
rulemaking.
    Answer. Guidance was previously issued by the agencies on this 
important issue in 2008. The agencies believe that farmers, homeowners, 
businesses, and others deserve additional transparency, consistency, 
and predictability in the process for identifying which waters are, or 
are not, subject to the requirements of the Clean Water Act. We do not 
believe that the 2008 guidance provides the necessary clarity and are 
therefore working to develop replacement guidance. The EPA and the U.S. 
Army Corps of Engineers (Corps) released the draft guidance for public 
notice and comment on May 2, 2011 with a 60 day comment period; this 
comment period was later extended until July 31, 2011. The agencies are 
now reviewing the comments received and will make decisions regarding 
any final guidance after carefully evaluating comments provided by the 
public. The agencies also expect to proceed with notice and comment 
rulemaking to further clarify the regulatory definition of the term 
``waters of the United States.''

    Question 5. Why is EPA taking a single opinion and making it the 
law of the land? Courts have said that you can't turn a dissent into a 
majority opinion by combining it with a concurring opinion to argue 
that the position of the dissent and the concurrence constitute the 
opinion of the court--but isn't that what EPA and the Corps is 
proposing to do in the draft guidance?
    Answer. It is the position of the United States that in the wake of 
Rapanos, Clean Water Act (CWA) jurisdiction may be established using 
the standard set forth in either the plurality or Justice Kennedy's 
opinion. The U.S. established this position in the previous 
administration. This position is consistent with Supreme Court case law 
governing interpretation of the opinions of a divided court. Indeed, 
the four dissenting Justices in Rapanos, who would have affirmed the 
court of appeals' application of the Corps's regulations, stated 
explicitly that either the plurality test authored by Justice Scalia or 
the significant nexus test authored by Justice Kennedy could be used to 
determine CWA jurisdiction because they would uphold jurisdiction under 
either test.

    Question 6. The draft guidance goes far beyond even Justice 
Kennedy's opinion in the Rapanos case. In Rapanos, Justice Kennedy 
suggested that in some cases Justice Scalia's test would be broader 
than Justice Kennedy's ``significant nexus'' test. Justice Kennedy said 
that a surface water connection may not constitute a significant nexus 
if it was small and remote. In contrast, the draft guidance takes a 
very broad view of what is a tributary (and includes ephemeral streams) 
and then presumes that anything that can be considered a tributary has 
a significant nexus even if it has a small or no impact on downstream 
waters.
    The draft guidance also says it does not matter how remote the 
waterbody is.
    So, even if it is valid for EPA and the Corps to rely on the 
Justice Kennedy's significant nexus test, how can it go beyond it and 
assume jurisdiction over remote water bodies that have little or no 
impact on downstream waters?
    Answer. The agencies do not believe that all water bodies and 
wetlands would be determined to be jurisdictional under the draft 
guidance. For example, most water bodies and wetlands historically 
regulated under the ``other waters'' provision of our regulations would 
not be found jurisdictional under the draft guidance. As stated in the 
guidance, while each situation must be evaluated on a case-by-case 
basis, the agencies believe that most streams that flow into a 
traditional navigable or interstate water, as well as their neighboring 
wetlands, would likely be found to have a significant nexus to such 
downstream waters. We believe this is fully consistent with the SWANCC 
and Rapanos decisions and generally reflects the agencies' current 
interpretation of the scope of Clean Water Act jurisdiction. As a 
result, the agencies do not believe the guidance, if finalized, would 
result in a significant change in Clean Water Act jurisdiction.

    Question 7. EPA has proposed regulations for coal ash disposal that 
include a possible ``hazardous waste'' designation. One of the 
materials included in that category is synthetic gypsum produced by 
power plants that can be safely and effectively used in agricultural 
applications.
    Doesn't it create a serious regulatory barrier to productively 
using a product when you label it a ``hazardous waste'' on the property 
of the person who makes it? If you were a farmer, would you want to 
place a material on your fields that the government considers hazardous 
waste on the property of the person who makes it?
    Answer. The EPA's proposed rulemaking on the management of coal 
combustion residuals (CCRs) addresses CCRs that are being disposed. The 
proposed rule acknowledges that there are significant benefits that can 
be derived from the use of CCRs in agricultural applications and that 
the EPA and the U.S. Department of Agriculture's Agricultural Research 
Service are engaged in field studies, expected to conclude in late 
2012. The agency did request comments, information, and data on CCRs 
that are beneficially used in agriculture, but did not propose to 
regulate the beneficial use of CCRs in agricultural applications. As 
for the potential stigma that hazardous waste disposal requirements 
could have on beneficial use, the EPA recognized that issue in the 
proposal, solicited comment, and will carefully evaluate the 
information received prior to any final regulatory decision.

    Question 7a. Are you aware that synthetic gypsum from power plants 
is not ``coal ash'' at all--but rather a byproduct of another process 
at the power plants? If it's not coal ash, why are you including it in 
the regulations you are developing?
    Answer. The EPA's proposed rule addresses the management of coal 
combustion residuals (CCRs) from electric utilities. CCRs and ``coal 
ash'' are broad terms that refer to a range of residuals produced from 
the combustion of coal, including fly ash, bottom ash, slag, and flue 
gas emission control wastes. We are aware of the processes used to 
produce synthetic gypsum from flue gas desulphurization materials, and 
are carefully considering the comments regarding whether synthetic 
gypsum derived from coal combustion residuals warrant regulation.

    Question 7b. Does synthetic gypsum qualify as a ``hazardous waste'' 
based on its toxicity? Then why do you want to label it as hazardous 
and create all of this confusion?
    Answer. Wastes may be deemed hazardous in two possible ways: (1) 
because the waste is ignitable, corrosive, reactive, or exceeds certain 
clearly hazardous toxicity characteristics; or, (2) the EPA lists 
(through rulemaking and with consideration of public comment) a 
particular waste or category of wastes as hazardous, if it is 
determined that the waste poses substantial present or potential hazard 
to human health and the environment when managed in certain ways such 
as land disposal.\3\ With regard to coal combustion residuals (CCRs), 
they are not ignitable, corrosive, or reactive, and rarely exceed the 
toxicity characteristic, and thus the issue in the proposed rule 
centers around whether the waste poses a hazard to human health and the 
environment when managed in certain ways such as land disposal. In a 
listing determination, the EPA will evaluate factors such as the 
toxicity and concentration of constituents in a waste, the volume of 
waste and how it is managed, the potential for the constituents to 
migrate, and damage cases resulting from exposure to and release of 
CCRs. The EPA will also conduct extensive risk modeling for various 
disposal scenarios. The EPA relied upon its analysis of these factors 
in drafting its proposed CCR rule and will carefully evaluate the 
information and comments it received in response to the proposed rule, 
prior to issuing any final rule regarding the classification of CCRs 
being disposed.
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    \3\ For additional information about designating hazardous wastes, 
see http://www.epa.gov/osw/hazard/dsw/index.htm.

    Question 7c. EPA previously supported the use of synthetic gypsum 
in agriculture, but canceled the C2P2 program that provided that 
support. Is there a reason you did not notify your partner, the 
Department of Agriculture, before you terminated that program? Do you 
have any plans to resume active support for recycling coal ash and 
synthetic gypsum?
    Answer. While the EPA is engaged in the rulemaking process for coal 
combustion residuals, the agency has suspended active participation in 
the Coal Combustion Products Partnership. The EPA continues to believe 
that the beneficial use of residuals from coal combustion, when 
performed properly and in an environmentally safe manner, is beneficial 
to the environment and the EPA is not proposing to modify the existing 
exemption for coal ash when beneficially used. The EPA is interested in 
broadening the dialogue on beneficial uses and encourages all 
interested parties to review and provide comments and any relevant 
information and data on the proposed rule.

    Question 7d. The people who use synthetic gypsum for agriculture 
now face a huge regulatory uncertainty because of the coal ash 
rulemaking. When do you plan to complete this rule? Do you think it is 
fair to tell the world that you might decide to call this material a 
``hazardous waste'' and then let people who want to recycle it just 
hang there for years while you think about it?
    Answer. The agency is in the process of reviewing and addressing 
more than 450,000 comments received on the proposed coal ash rule. In 
addition, the EPA and the U.S. Department of Agriculture are conducting 
a joint study on the use of flue gas desulphurization (FGD) gypsum in 
agriculture. In the preamble of the proposed rule, the EPA indicated 
that study should be completed at the end of 2012. Users of CCR in 
agriculture are encouraged to review the basic guidance provided in the 
interim report (Agricultural Uses for Flue Gas Desulfurization (FGD) 
Gypsum, March 2008, EPA530-F08-009) \4\ pending completion of the 
study. The report references several resources for responding to 
questions including: the EPA's Industrial Waste Management Evaluation 
Model (IWEM) and the chapter on land application (Chapter 7) in the 
associated Guide for Industrial Waste Management http://www.epa.gov/
epawaste/nonhaz/industrial/guide/index.htm, the state's department of 
environmental protection, department of agriculture, and agricultural 
extension service, and the USDA Natural Resources Conservation Service.
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    \4\ http://nepis.epa.gov/Exe/ZyNET.exe/
P1001II9.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2006+Thru+2010&Docs= 
&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QFiel
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D%3A%5Czyfiles%5CIndex%20Data%5C06thru10%5CTxt%5C00000004%5CP1001II9.txt
&User= ANONYMOUS&Password=anonymous&SortMethod=h%7C-
&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/
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ZyActionL&Back=ZyActionS&BackDesc= 
Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL#
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Questions Submitted by Hon. Scott R. Tipton, a Representative in 
        Congress from Colorado
    Question 1. Many of EPA's recent regulatory activities are in areas 
where there is a significant component of state delegated authorities 
and responsibilities (NPDES permitting, soil fumigant label changes, 
contemplated changes to PM10 standards, etc.). State budgets 
aren't growing. Additional resources are difficult to come by. How will 
states pay for these activities? If additional resources are not 
available, what regulatory or enforcement activities should states NOT 
do in order to take on these new responsibilities?
    Answer. The EPA and states share responsibility and accountability 
for assuring compliance with environmental laws and regulations to 
protect human health and the environment. Congress envisioned 
cooperative implementation of its laws by the EPA and authorized or 
delegated states to do the majority of the day to day work to implement 
our environmental programs by developing standards, issuing permits, 
conducting inspections and taking enforcement actions. The EPA develops 
national standards, programs, policies and guidance, conducts 
inspections and takes enforcement actions in situations of national 
interest, and oversees state programs.
    There are a number of flexibilities afforded the EPA regions and 
states as they plan compliance and enforcement activities. For example, 
the Compliance Monitoring Strategies (CMS) are important tools for 
targeting inspection resources on the most important sources of 
pollution. The CMS provide flexibilities for the EPA regions, states, 
and territories in establishing inspection coverage over a range of 
sources. Through the annual planning process, the EPA regions, states, 
and territories are encouraged to establish specific commitments and 
targets for inspection coverage across sources and to strategically 
target their inspection programs, and limited inspection resources, to 
give priority to those sectors determined to be most important in terms 
of adversely impacting public health and the environment.
    The agency intends to meet the challenges of improving compliance 
while reducing burden on states. To ensure compliance across the 
country, in these times of tight Federal and state budgets, the agency 
can no longer rely solely on traditional inspection and enforcement 
approaches to address the many regulated facilities and increasing 
numbers of smaller sources contributing to environmental problems.
    The EPA is looking at new ways to improve compliance with agency 
regulations, including increased monitoring, better targeting of 
enforcement, the expansion of electronic reporting, and enhanced 
transparency by publishing greater amounts of emissions data to the 
Internet. A key element of this approach is using technology to allow 
the agency to be more effective and efficient at compliance. This 
includes electronic reporting; monitoring pollution releases and 
ambient conditions in a more efficient and effective way by using 
modern equipment and advanced training for inspectors; continuing to 
provide more complete, timely and accurate information to the public, 
where it can be used to drive better environmental performance from 
regulated facilities and government; and using new approaches to 
compliance, such as self-certification programs, and third party 
reviews, to create stronger incentives for compliance.
    In August 2011, the EPA issued its Final Plan for Periodic 
Retrospective Reviews of Existing Regulations.\5\ The plan includes 35 
priority reviews which are intended to improve the overall 
effectiveness of our regulatory program, including reducing burden and 
costs. Several of these reforms have the potential to reduce 
permitting, enforcement and compliance burden on states. Below is a 
list of priority actions that most directly address state burden:
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    \5\ http://www.epa.gov/regdarrt/retrospective.
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    Electronic Reporting--Item #1.1.1 in the plan: The EPA intends to 
replace key outdated paper reporting requirements with electronic 
reporting as soon as practicable. Agency reporting requirements are 
still largely paper based for all media programs, which is inefficient 
and unnecessarily resource intensive for reporting entities and states, 
and ineffective for compliance monitoring and assurance. Among other 
things, the EPA intends to conduct a targeted review to convert key 
existing paper reporting requirements to electronic reporting, and 
develop a strategy for ensuring that new rules incorporate the most 
efficient electronic reporting techniques.
    National primary drinking water regulations--Long Term 2 Enhanced 
Surface Water Treatment (LT2)--2.1.9: The EPA intends to evaluate 
effective and practical approaches that may maintain, or provide 
greater protection of, the water treated by public water systems and 
stored prior to distribution to consumers. Among other things, the EPA 
intends to assess and analyze new data/information to evaluate whether 
there are new or additional ways to manage risk while assuring 
equivalent or improved protection, including with respect to the 
covering of ``finished water'' reservoirs (i.e., drinking water that 
has already been treated and is intended to be distributed directly to 
consumers without further treatment).
    Combined Sewer Overflows (CSOs) and integrated planning for wet 
weather infrastructure investments--2.1.10: The EPA intends to gather 
additional information on how we can better promote Green 
Infrastructure (GI), ensure practical and affordable remedies to CSO 
violations, and identify additional approaches to ensure that 
communities can see noticeable improvements to their water quality and 
reduced risks to human health through prioritizing infrastructure 
investments.
    CAA Title V Permit programs--2.1.14: A Title V permit lists all of 
the air quality related rules and requirements that apply to the 
particular air pollution source, and specifies how compliance will be 
monitored. States are required to give public notice of the draft 
permits and some permit revisions, and typically post permits on their 
websites. The EPA intends to review the Title V implementation process 
to determine whether changes can be made to help all permitting 
participants understand the program better, and to help streamline the 
process to make more efficient use of industry, public, and government 
resources.
    Sanitary Sewer Overflow (SSO) and peak flow wet weather 
discharges--2.2.3: The EPA intends to gather additional information 
about the most effective way to manage wastewater that flows through 
municipal sewage treatment plants during heavy rains or other wet 
weather periods that cause an increase in the flow of water (these are 
collectively known as ``peak flows''). The EPA intends to evaluate 
options that are appropriate for addressing SSOs and peak flow wet 
weather discharges and determine if a regulatory approach, voluntary 
approach, or other approach is the best path forward.
    Consumer confidence reports for primary drinking water 
regulations--2.2.6: The Consumer Confidence Report is an annual water 
quality report that a community water system is required to provide to 
its customer. The EPA will consider reviewing the Consumer Confidence 
Report Rule to look for opportunities to improve the effectiveness of 
communicating drinking water information to the public, while lowering 
the burden on water systems.
    Reporting requirements under Section 303(d) of the Clean Water Act 
(CWA)--2.2.7: The EPA intends to explore ways to reduce the burden on 
state governments when reporting on the quality of the nation's water 
bodies. The requirement for states to report on the condition of their 
waters every 2 years under Section 305(b) is statutory. However, the 
requirement for states to identify impaired waters that need a Total 
Maximum Daily Load (TMDL) every 2 years under Section 303(d) is 
regulatory. States have raised concerns that reporting this information 
every 2 years is a significant administrative burden. The EPA intends 
to work with the public and states to identify alternative approaches 
for reducing associated burden and evaluating the impact of changes 
under either or both CWA Sections 303(d) and 305(b).
    Water quality standard (WQS) regulations--2.2.10: Since the current 
WQS regulation was last revised in 1983, a number of issues have been 
raised by states and other stakeholders, or identified by the EPA, that 
could benefit from clarification and greater specificity. Among other 
things, the EPA intends to provide regulatory flexibility to allow 
states and tribes to achieve water quality improvements before 
resorting to a use change.
    State Implementation Plan (SIP) Process--2.2.11: EPA and states are 
working together to review the administrative steps states must follow 
when they adopt and submit SIPs. SIPs describe how areas with air 
quality problems will attain and maintain the National Ambient Air 
Quality Standards. A number of simplifying changes to the SIP 
development process have been implemented or are under consideration, 
including reducing hard copies, eliminating hearings on matters of no 
public interest, minimizing the number of expensive newspaper 
advertisements providing public notice, and determining whether and how 
the process for making minor plan revisions might be simplified.

    Question 2. How much of state budgets go toward ``fixing'' the 
problem, i.e., complying with EPA regulations? You mentioned grants to 
states. How much does a state or community have to contribute to 
receive these grants or other sources of funding to assist with 
compliance costs?
    Answer. The EPA does not collect detailed data on environmental 
spending for compliance in the context of overall state budgets. The 
Environmental Council of States (ECOS) collected data on 27 state 
budgets and found that an average state in their study met over 80 
percent of their state environmental agency's budget with a combination 
of Federal Government support and fees, with only about 20 percent of 
projected budgets coming from state general revenues. This represents 
all activities at the state environmental agency, not just those 
related to enforcement of the EPA regulations.\6\
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    \6\ Brown, R.S., and Fishman, A. Status of State Environmental 
Agency Budgets, 2009-2011, ECOS. http://www.ecos.org/files/
4157_file_August_2010_Green_Report.pdf.
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Questions Submitted by Hon. Robert T. Schilling, a Representative in 
        Congress from Illinois
    Question 1. In your testimony, you note your ``profound respect'' 
for the contribution that farmers make the whole world over. However, 
farmers and producers in the 17th District of Illinois feel threatened 
by EPA's over-regulation. How can you claim to respect the 
contributions of farmers when it has been suggested that your EPA may 
regulate everything from farm dust to milk?
    Answer. The EPA is committed to providing an effective opportunity 
for input from all stakeholders in shaping environmental protection 
strategies including input from the agricultural community. We have 
established a Federal advisory committee, The Farm, Ranch, and Rural 
Communities Committee, to provide advice to the agency. My office is 
directly engaged in facilitating the work of the committee.
    Each of our Regional Administrators has an agriculture advisor who 
interacts directly with the agriculture community, including state and 
local agricultural organizations. The EPA is currently engaged in a 
series of intensive listening sessions with agricultural and other 
stakeholders to solicit their views on the issues surrounding emissions 
of particulate matter. The EPA Office of Pesticide Programs also 
conducts an active Federal advisory committee to solicit input from a 
wide range of stakeholders on pesticide issues, particularly those that 
affect agriculture.
    In addition, I will continue to travel to farm communities to talk 
directly with farmers and will continue to join Secretary Vilsack in 
meeting with commodity groups and farm organizations. The EPA finds 
these discussions a valuable opportunity to keep agricultural 
stakeholders informed about agency initiatives and to get feedback from 
them on these issues. The agency often solicits agriculture community 
views on the EPA's efforts to promote environmental quality and 
willingly accepts invitations to meet. The EPA will continue to promote 
opportunities to engage and inform all stakeholder groups, including 
those representing agriculture.
    Regarding the regulation of farm dust, I committed in an October 
17, 2011 letter that the EPA will send to the Office of Management and 
Budget a proposal to keep the PMl0 national ambient air 
quality standard as it is, with no change. This existing standard has 
been in effect since 1987. I am hopeful that this announcement ends the 
myth that the agency has plans to tighten regulation of farm dust.
    Similarly, regarding the regulation of milk, on April 12, 2011, the 
EPA issued its final rule exempting milk and milk product containers 
from the Oil Spill Prevention, Control, and Countermeasure (SPCC) rule. 
The final rule was published in the Federal Register on April 18, 2011 
and became effective on June 17, 2011.

    Question 2. I have very strong concerns about the word 
``navigable'' being removed from the Clean Water Act. Will EPA be 
developing new guidance that opens up all waters of the United States 
to regulation? Why is EPA trying to change policies through a guidance 
document?
    Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have 
drafted guidance that clarifies those waters over which the agencies 
will assert jurisdiction consistent with the CWA, implementing 
regulations, and Supreme Court interpretations. The draft guidance 
cannot and does not alter existing requirement of the law, it merely 
explains how the agencies think existing law should be applied in 
general, and emphasizes that it may not be applicable in particular 
cases. The scope of waters that would be protected under the 
interpretations in the draft guidance would remain significantly 
narrower than under the agencies' interpretations prior to the Supreme 
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture 
in the CWA and regulations would be completely unchanged by the draft 
guidance.
    The EPA and the Corps released the draft guidance for public notice 
and comment on May 2, 2011 with a 60 day comment period; this comment 
period was later extended until July 31, 2011. The agencies are now 
reviewing the comments received and will make decisions regarding any 
final guidance after carefully evaluating comments provided by the 
public. The agencies also expect to proceed with notice and comment 
rulemaking to further clarify the regulatory definition of the term 
``waters of the United States.''

    Question 3. Atrazine was last re-registered as a herbicide in 2006 
after 12 years of review and 6,000 scientific studies reaffirming the 
safety of the product. In October of 2010, the World Health 
Organization increased its guidelines for atrazine (as it pertains to 
drinking water) from 2 parts per billion to 100 parts per billion. What 
prompted you to open up the re-registration of atrazine and do you 
expect the 6,001st study to produce a different conclusion? I would 
like the record to reflect that University of Chicago Economist, Don 
Coursey, recently announced that banning atrazine would cost us 21,000 
to 48,000 jobs from lost production in corn alone.
    Answer. The EPA's current scientific evaluation of atrazine is 
based on our commitment to using the best available science and follows 
regular open and transparent processes, including our process to obtain 
independent, external peer review of important science issues. The 
agency will decide whether any steps are necessary to better protect 
health and the environment, based on this scientific evaluation. The 
EPA reregistered atrazine in 2003, which was the last major regulatory 
decision specifically for this herbicide. Given the substantial new 
scientific information generated since the 2003 reregistration decision 
and improved data on the documented presence of atrazine in both 
drinking water sources and other bodies of water collected as a 
condition of reregistration, the agency is reviewing the new research 
to ensure that our regulatory decisions regarding atrazine are based on 
the best available science and protect public health and the 
environment. Since the EPA concluded its last evaluation of atrazine in 
2003, the agency has evaluated close to 150 newly published studies 
investigating a wide array of effects potentially relevant to human 
health risk assessment.
    The EPA is committed to an open, transparent, and science based 
review process that relies on rigorous examination of the relevant 
scientific data. As part of this process, to be certain that the best 
available science is used to inform its atrazine human health risk 
assessment, and to ensure transparency, the agency is seeking advice on 
key aspects of the science evaluation from the independent FIFRA 
Scientific Advisory Panel (SAP). The EPA presented its plan for the 
atrazine reevaluation to the SAP in November 2009, and the agency held 
three SAP meetings in 2010 to address new atrazine studies and related 
issues. An SAP meeting was held in July 2011 to obtain scientific peer 
review of new data that the EPA received from the epidemiological 
Agricultural Health Study (AHS) conducted by the National Cancer 
Institute at the National Institutes of Health. The EPA recently 
received the final report from that meeting of the SAP and plans to 
take the recommendations from this SAP report as well as all previous 
SAPs on atrazine and human health into account as it updates the state 
of the science for the atrazine registration review. Atrazine's 
registration review process is scheduled to begin in 2013.
Letter and Questions Submitted by Hon. Thomas J. Rooney, a 
        Representative in Congress from Florida; Hon. Steve Southerland 
        II, a Representative in Congress from Florida
March 11, 2011

Hon. Lisa P. Jackson,
Administrator,
United States Environmental Protection Agency,
Washington, D.C.

    Dear Administrator Jackson,

    During yesterday's House Agriculture Committee hearing to review 
the impact of EPA regulation on agriculture, we discussed the recently 
finalized EPA mandate regulating numeric nutrient levels in Florida's 
rivers, lakes and streams.
    Like you, we want clean water for Florida. We appreciate your 
stated willingness to work with the Florida Department of Environmental 
Protection (DEP) to consider alternatives to the EPA mandate, which 
will go into effect in March 2012, in order to achieve the goal of 
cleaner water.
    Over the last year, we have worked with a bipartisan coalition from 
Florida's Congressional Delegation on this matter. We have repeatedly 
requested that EPA allow a thorough, third-party review of the science 
used in the final EPA mandate. We have also repeatedly asked for a 
complete economic analysis to determine the cost the new regulation 
would impose on our state. By some accounts, the mandate would impose 
approximately $1 billion in direct economic costs, and approximately $2 
billion in indirect costs, on Florida each year.
    Florida's statewide unemployment remains near 12 percent, and our 
businesses and families struggling to stay afloat during difficult 
economic times. As Senator Bill Nelson (D-FL) noted in his letter to 
you yesterday requesting a delay in the implementation of this 
regulation, the EPA should not spend money enforcing the rule until we 
have more precise estimates of the cost of compliance. We echo his 
request to quote ``. . . to suspend application and enforcement of the 
rule, while providing for an independent analysis of the cost of 
compliance and continuing to help cities and counties prepare . . .''
    We are very grateful to you for committing during yesterday's 
hearing to work with DEP toward a solution that can be agreed to by all 
parties. We also appreciate your indication that you will be willing to 
allow a third-party review of the science and to complete an economic 
analysis of EPA's proposed regulation. Thank you very much for meeting 
these reasonable requests.
    As your agency begins this process, will you please provide us with 
the following information:

    1. When will EPA begin to produce a complete economic analysis of 
        the impact of the proposed regulation, and when does EPA expect 
        that analysis to be complete?

    2. What methodology will EPA use in its economic analysis?

    3. Which third-party organization will EPA task with conducting a 
        thorough review of the proposed rule?

    4. When will that third-party review commence, and when does EPA 
        expect it to conclude?

    5. How will EPA adjust the proposed regulation to accommodate the 
        findings of the third-party review and economic analysis?

    We look forward to working with your agency; Florida Agriculture 
Commissioner Adam Putnam; DEP; other concerned state and Federal 
agencies; as well as interested environmental, agriculture and business 
groups to develop an agreeable compromise.
    Thank you for your appearance before the House Agriculture 
Committee yesterday and for your stated commitment to work with the 
State of Florida and our Congressional delegation on this important 
issue. We appreciate your prompt consideration of these questions. If 
you have any questions, please contact Congressman Rooney's office at 
(202) 225-5792.
            Sincerely,
            
            
 Hon. Thomas J. Rooney,               Hon. Steve Southerland II,
Member of Congress;                  Member of Congress.

Response from Environmental Protection Agency
April 21, 2011

Hon. Thomas J. Rooney,
Member of Congress,
U.S. House of Representatives,
Washington, D.C.

    Dear Congressman Rooney:

    Thank you for your letter of March 11, 2011, to Administrator Lisa 
P. Jackson, regarding the Environmental Protection Agency's (EPA) final 
rule establishing limits on nitrogen and phosphorus for Florida's 
lakes, springs and flowing waters (Inland Rule). As the senior policy 
manager of EPA's national water program, I appreciate the opportunity 
to respond to your letter. In the letter of April 6, 2011, to Senator 
Nelson, Administrator Jackson indicated that the Agency has begun the 
process of working with the National Academy of Sciences (NAS), a 
highly reputable and independent organization, to conduct a third party 
review of EPA's cost estimate for the rule in comparison with those of 
other stakeholders. EPA's rule, with the exception of the site-specific 
alternative criteria provision, will not take effect until March of 
2012.
    In addition to the concerns raised about the independent cost 
review of the Inland Rule, you requested specific information about the 
Agency's plans for a third-party review of the science and the economic 
analysis for the proposed rule EPA is developing for Florida estuaries, 
coastal waters, and southern inland flowing waters.
    EPA is presently collecting and evaluating available information 
and data to use in developing an economic analysis for the proposed 
rule. When it is completed, the analysis will be made available, along 
with the proposed rule for Florida estuaries, coastal waters, and 
southern inland flowing waters, in November 2011. In developing the 
economic analysis, EPA will follow the Agency Guidelines for Preparing 
Economic Analyses and the White House Office of Management and Budget's 
Circular A-4, guidance to Federal agencies on the development of 
regulatory analysis, which define the best practices in conducting 
analyses of environmental regulation. As appropriate, any 
recommendations resulting from the NAS review of the Inland Rule 
economic analysis that are applicable to the analysis for the proposed 
coastal-estuary rule will be factored into the analysis for the 
proposed rule.
    For the proposal itself, EPA has requested the Agency's Science 
Advisory Board (SAB) to review and provide input and recommendations on 
the underlying scientific methodology and related data that will be 
used to develop numeric nutrient criteria for estuarine and coastal 
waters, as well as flowing waters in south Florida. The SAB is 
comprised of independent nationally recognized experts and is expected 
to issue a final report in June 2011. As part of their review, the SAB 
has requested and received expert scientific and technical input from 
interested parties and organizations in Florida. We plan to use the 
findings and recommendations of the SAB report to strengthen the 
scientific basis of the numeric nutrient criteria that will be proposed 
in November 2011. In addition to this SAB review, we will be conducting 
our own internal analytic and data quality review of the information 
and analysis supporting the rule. Further, the Agency will request 
scientific, technical, and policy review from the Florida public, 
interested stakeholders and additional experts as part of the formal 
comment period following proposal. Finally, prior to finalizing the 
proposal, EPA is planning a series of technical meetings in Florida 
early this summer with local scientific experts to request their 
perspectives on the approaches being considered for development of the 
criteria.
    Once the proposal is published and we have received additional 
technical and scientific input as part of the comment period, we will 
carefully review and consider that input, build upon it where possible, 
and provide responses to the comments received. This additional 
feedback, analysis and information we receive is an important part of 
the Agency's considerations and will help shape the final rule for 
Florida estuaries, coastal waters, and southern inland flowing waters. 
That final rule is presently scheduled to be issued in August 2012.
    Again, thank you for your letter. If you have further questions, 
please contact me or your staff may call Denis Borum in EPA's Office of 
Congressional and Intergovernmental Relations at [Redacted].
            Sincerely,

            
            
Nancy K. Stoner,
Acting Assistant Administrator.

    Editor's note: An identical letter was sent to Hon. Steve 
Southerland II, a Representative in Congress from Florida.

                                  
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