U.S. GOVERNMENT PRINTING OFFICE

59–383 CC WASHINGTON : 1999

S. HRG. 106–268

NOMINATIONS CONSIDERED DURING THE FIRST

SESSION OF THE 106th CONGRESS

HEARINGS

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

THE NOMINATION OF GEORGE T. FRAMPTON TO BE A MEMBER,

COUNCIL ON ENVIRONMENTAL QUALITY—APRIL 28, 1999

THE NOMINATION OF TIMOTHY FIELDS, JR. TO BE ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY—MAY 5, 1999

THE NOMINATIONS OF RICHARD MESERVE TO BE A MEMBER OF THE

NUCLEAR REGULATORY COMMISSION, PAUL L. HILL, TO BE A MEMBER, CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD, AND

MAJOR GENERAL PHILLIP R. ANDERSON, BRIGADIER GENERAL ROBERT GRIFFIN, AND SAMUEL E. ANGEL, TO BE MEMBERS OF THE

MISSISSIPPI RIVER COMMISSION—SEPTEMBER 23, 1999

THE NOMINATIONS OF GLENN L. McCULLOUGH, AND SKILA HARRIS

TO BE MEMBERS OF THE TENNESSEE VALLEY AUTHORITY, AND GERALD V. POJE, TO BE A MEMBER OF THE CHEMICAL SAFETY AND

HAZARD INVESIGATION BOARD—OCTOBER 6, 1999

(

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SIXTH CONGRESS

JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia

ROBERT SMITH, New Hampshire

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

ROBERT F. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

JIMMIE POWELL, Staff Director

J. THOMAS SLITER, Minority Staff Director

(II)
(III)

CONTENTS

Page

APRIL 28, 1999

NOMINATION OF GEORGE T. FRAMPTON

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 4

Bennett, Hon. Robert F., U.S. Senator from the State of Utah ........................... 7

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 1

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 11

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 5

WITNESS

Frampton, George T., nominated by the President to be a member of the

Council on Environmental Quality ..................................................................... 9

Committee questionnaire ................................................................................. 26

Prepared statement .......................................................................................... 23

Responses to additional questions from:

Senator Bennett ........................................................................................ 39

Senator Crapo ............................................................................................ 40

Senator Graham ........................................................................................ 33

Senator Thomas ......................................................................................... 34

ADDITIONAL MATERIAL

Draft Memorandum, to Heads of Federal Agencies .............................................. 35

MAY 5, 1999

NOMINATION OF TIMOTHY FIELDS

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 47

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 43

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 48

Warner, Hon. John W., U.S. Senator from the Commonwealth of Virginia ....... 60

Wyden, Hon. Ron, U.S. Senator from the State of Oregon .................................. 56

WITNESS

Fields, Timothy, nominated by the President to be Assistant Administrator

for Solid Waste and Emergency Response, Environmental Protection Agency ........................................................................................................................... 44

Prepared statement .......................................................................................... 62

Committee questionnaire ................................................................................. 66

Responses to additional questions from:

Senator Chafee .......................................................................................... 73

Senator Inhofe ........................................................................................... 78

Senator Smith ............................................................................................ 81
Page

IV

ADDITIONAL MATERIAL

Letters:

Association of State and Territorial Solid Waste Management Officials ..... 92

Chafee, Hon, John H., Chairman, Committee on Environment and Public Works .................................................................................................... 90

Environmental and Technology Council ......................................................... 94

Hazardous Waste Action Coalition .................................................................

Interstate Oil and Gas Commission ................................................................ 92

Office of Solid Waste and Emergency Response, EPA .................................. 92

Petroleum Marketers Association ................................................................... 93

Report, Strategy for Enforcement of Regulatory Requirements Applicable to

Underground Storage Tank ................................................................................. 85

Memorandum, Underground Storage Tanks, EPA ............................................... 87

List ............................................................................................................................

SEPTEMBER 23, 1999

NOMINATIONS OF RICHARD MESERVE, PAUL L. HILL, PHILLIP R.

ANDERSON, SAMUEL E. ANGEL, AND ROBERT GRIFFIN

OPENING STATEMENTS

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 95

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 97

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 97

Lieberman, Hon. Joseph I. U.S. Senator from the State of Connecticut ............ 118

WITNESSES

Anderson, Maj. Gen. Phillip R., nominated by the President to be a member

of the Mississippi River Commission .................................................................. 114

Committee questionnaire ................................................................................. 160

Letter, Division Ethics Counselor ................................................................... 169

Prepared statement .......................................................................................... 158

Angel, Samuel E., nominated by the President to be a member of the Mississippi River Commission ................................................................................... 115

Committee questionnaire ................................................................................. 175

Prepared statement .......................................................................................... 173

Byrd, Hon. Robert C., U.S. Senator from the State of West Virginia ................. 98

Prepared statement .......................................................................................... 118

Griffin, Brig. Gen. Robert, nominated by the President to be a member

of the Mississippi River Commission .................................................................. 116

Committee questionnaire ................................................................................. 186

Prepared statement .......................................................................................... 183

Hill, Paul L., nominated by the President to be a member of the Chemical

Safety and Hazard Investigation Board ............................................................. 101

Committee questionnaire ................................................................................. 124

Prepared statement .......................................................................................... 119

Responses to additional questions from Senator Lieberman ........................ 141

Meserve, Richard, nominated by the President to be a member of the Nuclear

Regulatory Commission ....................................................................................... 107

Committee questionnaire ................................................................................. 145

Prepared statement .......................................................................................... 143

Responses to additional questions from:

Senator Lieberman .................................................................................... 157

Senator Thomas ......................................................................................... 157

ADDITIONAL MATERIAL

List, Members of the Mississippi River Commission ............................................ 172
Page

V

OCTOBER 6, 1999

NOMINATIONS OF GLENN L. McCULLOUGH, SKILA HARRIS, AND

GERALD V. POJE

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 200

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 199

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 214

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 205

WITNESSES

Cochran, Hon. Thad, U.S. Senator from the State of Mississippi ....................... 195

Harris, Skila, nominated by the President to be a member of the Tennessee

Valley Authority ................................................................................................... 204

Committee questionnaire ................................................................................. 233

Letter, Government ethics official ................................................................... 239

Prepared statement .......................................................................................... 231

Responses to additional questions from:

Senator Chafee .......................................................................................... 240

Senator Inhofe ........................................................................................... 241

Lott, Hon. Trent, U.S. Senator from the State of Mississippi ............................. 200

McCullough, Glenn L., nominated by the President to be a member of the

Tennessee Valley Authority ................................................................................ 202

Committee questionnaire ................................................................................. 218

Letters, Government ethics ............................................................................. 229

Prepared statement .......................................................................................... 216

Responses to additional questions from Senator Inhofe ............................... 230

Pickering, Hon. Charles, U.S. Representative from the State of Mississippi ..... 197

Poje, Gerald V., nominated by the President to be a member of the Chemical

Safety and Hazard Investigation Board ............................................................. 206

Committee questionnaire ................................................................................. 245

Letter, Government ethics official ................................................................... 259

Prepared statement .......................................................................................... 241

Thompson, Hon. Fred, U.S. Senator from the State of Tennessee ...................... 196

Wicker, Hon. Roger, U.S. Representative from the State of Mississippi ............ 198

Prepared statement .......................................................................................... 215

ADDITIONAL MATERIAL

Statement Hon. Bill Frist, U.S. Senator from the State of Tennessee ............... 216
(1)

NOMINATION OF GEORGE T. FRAMPTON

WEDNESDAY, APRIL 28, 1999

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

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

Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding.

Present: Senators Chafee, Lautenberg, Smith, Bennett, Thomas,

Crapo, and Baucus.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good afternoon.

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

Mr. George T. Frampton to be a member of the Council on Environmental Quality, which during the course of the afternoon will be

called CEQ, I am sure, in many instances.

I am pleased to welcome everyone, and in particular our nominee, Mr. Frampton.

The CEQ was established in 1970 by the National Environmental Policy Act to review the impact of programs and activities

of the Federal Government on the environment, and to recommend

to the President national policies to improve the environment.

Mr. Frampton was appointed acting Chair of the CEQ upon the

departure of the then-Chair, Katie McGinty, in November 1998.

Before joining CEQ Mr. Frampton worked as a private attorney

and environmental consultant. From 1993 to 1997 he had what I

consider to be one of the best jobs in the U.S. Government, Assistant Secretary of Interior for Fish and Wildlife and Parks.

And if you didn’t enjoy that job, you are a hard man to please.

[Laughter.]

Senator CHAFEE. Prior to that he was President of the Wilderness Society. From 1976 to 1985, Mr. Frampton was a partner in

a Washington law firm. During the period from 1979 to 1980, he

was Deputy Director and Chief of Staff of the Nuclear Regulatory

Commission’s investigation into the Three Mile Island nuclear accident.

Among his experiences, he clerked for the Honorable Harry

Blackmun on the U.S. Supreme Court in the 1971–1972 session.

He received his B.A. in Physics and Philosophy from Yale, his M.S.

from the London School of Economics, and his J.D. from Harvard

Law School.
2

Now, anybody who went to Yale undergraduate and Harvard

Law School, I am sure, is destined for greatness.

[Laughter.]

Senator CHAFEE. Mr. Frampton has an impressive background.

He is well qualified to be Chair of CEQ. This position poses a challenge that I am confident he is prepared to face. I look forward to

hearing what our nominee has to say about his background and

what he hopes to accomplish.

Senator Baucus is not here, and I understand that Senator

Crapo—you have to preside at 3, as I understand it?

Senator CRAPO. Yes, one of my opportunities that I have.

Senator CHAFEE. OK. If you have a statement and would like to

ask a question, something to that effect, go ahead.

Senator CRAPO. I don’t have a statement, but I would like to ask

questions. Would you like me to do that?

Senator CHAFEE. I think so. I’m going to get back to Senator

Bennett and Senator Thomas, but you have a peculiar situation

and we want to accommodate you.

Senator CRAPO. Well, thank you, Mr. Chairman, I appreciate

that.

Mr. Frampton, welcome. I always like to see a Harvard Law

graduate come before the committee.

As you know, I ended up as a freshman here, being called to

serve as the Chairman of the Subcommittee on Fisheries, Wildlife,

and Drinking Water, and I am interested in your perspective on

why you feel that comprehensive reform of the Endangered Species

Act failed in the last Congress. Do you have a feel for that?

Mr. FRAMPTON. Well, Senator, I think perhaps other members of

the committee could answer that better than I could. I would just

say that, as I think you know, I worked on this issue at the Interior Department for 4 years, began a partnership with the Western

Governors Association, Governor Levitt of Utah, in 1993 to try to

craft a consensus proposal with WGA and the Administration, and

I think we did produce a proposal which became one of the bases

for the committee’s own deliberations and negotiations over the

Kempthorne bill that was reported out by the committee, which I

thought was a bill that, obviously, we hoped would move through

the Senate, and perhaps it just ran out of time. But it seemed to

me to be a bill that was a good consensus reform effort that would

improve the act and had a lot of support from the regulated community and from the Administration.

As I said to a number of members of the committee, I would certainly be delighted, if I am confirmed as Chair of CEQ, to work to

try to see whether it is possible to bring that kind of a consensus

bill back this year.

Senator CRAPO. Do you feel that we need to have comprehensive

reform of the Endangered Species Act?

Mr. FRAMPTON. Well, Senator, I will say this, that I think the

Administration in the last 6 years has really pushed the envelope

to try to develop new ways to make the Endangered Species Act

work, particularly on private land, in using voluntary agreements

with land owners in which State and local governments are involved. So I think we have taken this a long way, and it is working

now. But there are concerns that some of the administrative re-
3

forms that the Administration has pioneered and put into place

may be vulnerable, that those should be put into the statute.

So I think there is a need for a sort of centrist consensus, a legislative effort, which simply codifies and perhaps takes a step forward on some of the directions that have been done over the last

few years administratively. I think that need is out there.

Senator CRAPO. I think I know the answer to this question, but

I just want to be sure. Did you support the Kempthorne bill, the

committee bill that actually came out last Congress?

Mr. FRAMPTON. I was actually out of the Interior Department,

but I believe the Administration did support that bill; to what formal extent I am not certain, but certainly we were very happy with

that bill. There were things that we would have liked to have had

different, but we really hoped that that bill—we worked hard on

it for 4 years—would pass the Senate and become a vehicle for

eventual Congressional action.

Senator CRAPO. Did you have a personal position on that bill?

Did you personally support it?

Mr. FRAMPTON. I personally worked very hard, not only myself

but the people working directly for me, my deputy and counselor

and special assistant, to take that bill from its inception with the

WGA staff, right through the WGA and into the committee process.

So that was something that I thought personally could be—I

thought we had just about hit the sweet spot of ESA reauthorization with that bill.

Senator CRAPO. Well, as we try to work on Endangered Species

Act issues this year, can we be assured of your cooperation in

working with us to find a path forward?

Mr. FRAMPTON. Absolutely.

Senator CRAPO. In your testimony you mention that the CEQ has

developed a new paradigm for the Endangered Species Act. It

seems to me that if the CEQ is in a position where it is developing

a new paradigm, or having to deal with creating a new paradigm,

that that’s further indication that reform of the act is really necessary. Would you agree with that?

Mr. FRAMPTON. Well, I would just say that I’m not sure that it’s

CEQ. CEQ is important to this, but it’s really the departments and

agencies that administer the law that are principally involved in

the new paradigm.

But as I said, I think that to encapsulate in legislation and to

consolidate the new paradigm, legislation is very important.

Senator CRAPO. I see that my time is running out.

As the chairman of the subcommittee that will be working on

this issue—and you may not be able to answer this question right

now, but if you have any insight, I would appreciate it—could you

give me any advice as the chairman as to the direction you think

we ought to take as we seek to reform the Endangered Species Act?

Mr. FRAMPTON. Well, Mr. Subcommittee Chairman, I would be

very hesitant in my current position to undertake to give you any

advice. But as I’ve said, I think that the Kempthorne bill represented the culmination of a very good process and had a lot of

support, and if there is a realistic possibility of going forward in

the next 2 years with this, I would think that would be an ideal

place to start.
4

Senator CRAPO. All right. Well, thank you very much. I notice

that my time has expired——

Senator CHAFEE. If you have another question, you go ahead. We

want to accommodate you. I know that you are due there very

quickly. If you have a couple more minutes, go ahead.

Senator CRAPO. I do just have maybe another question or two,

and I do appreciate the Chairman’s willingness to help out on this.

In fact, maybe I will just conclude with a comment.

We do want to look at this very closely and see where we can

move. As you know, there are a lot of issues related to the Endangered Species Act where it was hard to find that ‘‘sweet spot’’ that

you were talking about, where we could move forward. We are

going to be trying to do that again, and I would welcome the opportunity to work with you to be sure that we do as much as possible

in that regard.

And in that context, I guess my last question would be this. If

confirmed, are you in a position from the CEQ to play a leadership

role from the Administration’s perspective in helping us to work on

this issue?

Mr. FRAMPTON. Senator, I would certainly undertake to do that.

I have to say that my philosophy about CEQ is that the kind of

leadership that it should exercise is to help the people who actually

implement programs and policies to do their jobs. So I would want

to engage you and the subcommittee and the committee on these

issues not just as a CEQ function, but with the people from the Interior Department and National Marine and Fisheries Service and

other Federal agencies that have a working group that worked on

this over the last few years.

Senator CRAPO. Thank you, Mr. Frampton.

Mr. Chairman, again, I appreciate your cooperation. As you

know, one of the opportunities that freshman Senators have is to

preside over the Floor when assigned, and that’s my opportunity

right now. Thank you very much.

Senator CHAFEE. Well, seize upon your opportunity.

OK. Fine.

Senator Baucus?

Senator BAUCUS. Mr. Chairman, are we speaking or are we questioning?

Senator CHAFEE. I think now we will go back to the statements.

OPENING STATEMENT OF HON. MAX BAUCUS,

U.S. SENATOR FROM THE STATE OF MONTANA

Senator BAUCUS. Mr. Chairman, I will just submit mine for the

record.

First let me congratulate and welcome Mr. Frampton. As you

know, Mr. Chairman, he has a wide variety of experiences, from

Assistant Secretary of Interior for Fish and Wildlife, to head of the

commission that was examining Three Mile Island. It’s a wide variety of deep experience and background, and he is eminently qualified for the job.

My issues—I have many, but one that I am going to want to explore with him at some time, maybe today, is his ideas on how we

can use Better America Bonds to help deal with growth and sprawl

and open space generally in this country. That’s not directly under
5

the purview of the Council on Environmental Quality, but it’s

something the Council will be involved with in some way.

In addition, I would urge Mr. Frampton—I know this will be the

case, but just to remind him—to work hard on the balance between

environmental protection and growth. We have to work together

here. It’s this whole thing; it’s food on the table, plus enjoying clean

air and clean water and open space. It’s a balance, there’s nothing

more to it than that.

I look forward to working with you, Mr. Frampton.

I might say, Mr. Chairman, that I believe—have you introduced

his son and his fiancee yet?

Senator CHAFEE. I have introduced no one.

Senator BAUCUS. Well, I will introduce someone, his son Thomas

is here. Thomas, why don’t you stand?

And Ms. D’Arista, his fiancee?

We are very happy to have you both here, and I know Mr.

Frampton is very proud of you, and you are of him, too.

Finally, Mr. Frampton, in wishing you good luck, I would just

urge you to decide what it is that you want to be remembered for

when you leave, and I’m going to be asking you that question, so

you might be thinking about it.

[Laughter.]

Senator BAUCUS. Thank you.

[The prepared statement of Senator Baucus follows:]

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Thank you Mr. Chairman, and I would like to join you in welcoming Mr.

Frampton back to this committee.

As you have noted, and as evidenced by his resume, Mr. Frampton brings to this

position vast experience in environmental issues, ranging from Assistant Secretary

of Interior for Fish and Wildlife to Chief of Staff for the Nuclear Regulatory Commission’s investigation into the Three Mile Island nuclear accident.

With our ever-increasing awareness that environmental protection and economic

growth go hand in hand, the Council on Environmental Quality will need a person

with his breadth of knowledge to help shape and coordinate Federal environmental

programs.

What was clear in 1970 when the Council was established is even more important

today. Growing demands to use land and water for residential and business growth

put pressures on our valued and limited resources.

Growth is an important issue in my State of Montana. Montana is the least metropolitan State in the country, yet we grew faster than the rest of the country—

a 10 percent increase—in the 1990’s. Last year, our State Environmental Quality

Council set up a Growth Subcommittee to investigate the issues that arise from

growth.

Although sprawl does not fall into the traditional NEPA role of CEQ, the Council

can play an important role in coordinating the Federal agencies on this issue.

In addition, I am interested in hearing your thoughts on how the Administration’s

Better America Bonds proposal could be used to help communities deal with growth.

I believe that it is a very useful concept and one I intend to pursue.

I look forward to hearing from you this afternoon, Mr. Frampton.

Senator CHAFEE. Thank you.

Senator Thomas?

OPENING STATEMENT OF HON. CRAIG THOMAS,

U.S. SENATOR FROM THE STATE OF WYOMING

Senator THOMAS. Thank you, Mr. Chairman.

Welcome, Mr. Frampton. Since coming to the Senate I have been

particularly interested in the Council on Environmental Quality.
6

As a matter of fact, for 2 years we had an oversight committee on

energy in which we spent a great deal of time with the Council. It was established in the 1970’s to review the impact of Federal

programs and activities on the environment. Today, the agency has

a much broader role in developing Federal land management policy. In fact, throughout President Clinton’s time in office, CEQ has

been more powerful than all the other Federal land management

agencies put together. Although CEQ claims it is only advisory and

does not set policy, nothing could be further from the truth. I am particularly interested in Mr. Frampton’s views on the role CEQ can play in resolving issues regarding the National Environmental Policy Act. It has been designed to ensure that environmental impacts of proposed Federal actions are considered and

minimized by Federal agencies. Although the process sounds simple and quite reasonable, NEPA has become a real problem for

public land users throughout Wyoming and throughout the west.

The statute that was supposed to provide for additional public comment and input has instead become an unworkable and cumbersome law.

The current NEPA process takes too long, costs too much money, is being used to delay and stop many activities on Federal lands

designed for multiple-use projects. From timber salvage sales to the

renewal of grazing permits on BLM lands, NEPA is used to delay

and frustrate the efforts of public land users who rely on these

areas for economic survival.

Let me make it clear: I am not opposed to the efforts to review

environmental impacts, but there must be something done in a reasonable and straightforward manner that does not serve to hinder

reasonable multiple use activities. Unfortunately, in my repeated

efforts to engage CEQ, making reasonable reforms to NEPA, and

looking for answers to many problems, the agency has been of little

help in the process. On several occasions I have met with Katie

McGinty, past Director, to discuss NEPA. I have written numerous

letters to the agency about the problems with the law. In 1995 we

wrote a 13-page letter, with Larry Craig. I got a letter that basically said, ‘‘I am open to your ideas. Thank you for your letter.’’

That’s all I ever heard.

As you know, we wrote a letter last year, and 9 months later,

after you came, we got a letter acknowledging receipt; no response,

no activity, nothing substantive to come from CEQ.

So these are the kinds of experiences that I’ve had, and I don’t

think I’m the only one.

So I am very interested in finding some solutions to make NEPA

work. I think that is the responsibility of CEQ. Perhaps we made

a mistake when we combined the two activities and made being advisory to the President the major task.

So I look forward to your testimony and I have a number of questions that I might ask. Thank you.

[The prepared statement of Senator Thomas follows:]

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE STATE OF WYOMING

Thank you Mr. Chairman for holding this hearing today regarding the nomination

of George Frampton to become Chairman of the Council on Environmental Quality.

I look forward to hearing Mr. Frampton’s testimony and discussing with him his

views on the role of CEQ.
7

Since coming to the Senate, I have been particularly interested in the Council on Environmental Quality. Although the CEQ was established in 1970 to review the

impact of Federal programs and activities on the environment, today the agency has

a much broader role in developing Federal land management policy. In fact,

throughout President Clinton’s time in office, the CEQ has been more powerful than

all of the Federal land management agencies. Although the CEQ claims it is only

‘‘advisory’’ in nature and does not set Administration policy, nothing could be further from the truth.

I am particularly interested in Mr. Frampton’s views on the role CEQ can play in resolving issues regarding the National Environmental Policy Act (NEPA). NEPA

was designed to ensure that the environmental impacts of a proposed Federal action

were considered and minimized by the Federal agency taking that action. Although

this process sounds simple and quite reasonable, NEPA has become a real problem

for public land users throughout Wyoming and the West. A statute that was supposed to provide for additional public comment and input in the Federal land management process has instead become an unworkable and cumbersome law. The current NEPA process takes too long, costs too much money and is being used to delay or stop many activities on Federal lands designed for multiple use. From

timber salvage sales to the renewal of grazing permits on BLM land, NE PA is

being used to delay and frustrate the efforts of public land users who rely on these

areas for their economic survival. Let me be clear, I am not opposed to efforts to

review the environmental impacts of proposed actions on Federal lands, but this

must be done in a reasonable and straightforward manner that does not serve to

hinder ’reasonable multiple use activities.

Unfortunately, despite my repeated efforts to engage the CEQ in making reasonable reforms to NEPA and looking for answers to many of the problems regarding

the law, the agency has been of little help in this process. On several occasions I

met with Katie McGinty, past Director of CEQ, to discuss NEPA, have written numerous letters to the agency about the problems with the law and have discussed

this issue at length with other Federal land management agency officials, but to no

avail. The problems with NEPA implementation continue to grow and the frustration of public land users continues to increase.

Mr. Chairman, I am very interested in finding solutions that will allow the NEPA

process to work properly. I hope Mr. Frampton will work with me to find the answers that help us resolve many of the current problems regarding NEPA. The status quo is unacceptable, and I expect the CEQ to step-up and fulfill its role as the

primary agency designed to address issues involved with NEPA.

Thank you Mr. Chairman, I look forward to hearing the testimony of Mr.

Frampton.

Senator CHAFEE. Thank you, Senator.

Senator Bennett?

OPENING STATEMENT OF HON. ROBERT F. BENNETT,

U.S. SENATOR FROM THE STATE OF UTAH

Senator BENNETT. Thank you very much, Mr. Chairman. I am

going to have to leave as well for the Appropriations Committee,

so I will submit questions to Mr. Frampton in lieu of asking them

here.

I want to make a few comments for the record.

Like my friend from Wyoming, I’ve had less than satisfactory experience with CEQ, but to use a Biblical phrase, ‘‘There arose in

Egypt a Pharaoh who knew not Joseph.’’ Everything was different.

I have hopes—while Mr. Frampton clearly has many views that are

different from mine, I have hopes that his administration of this

agency will be like that new Pharaoh, and that we will have a

greater degree of openness and communication and cooperation

than we’ve had before, and I have strong reason to believe that will

be the case.

I worked with Mr. Frampton in his position at the Interior Department. He came to Utah on occasion, which probably was not

his favorite thing to do, but he took his assignments very seriously.

We were always able to get an answer from him when we wanted
8

something, and even when the answer was no and we wanted it

to be yes, it was very straightforward and the lines of communication were kept open. I have every reason to believe that will be the

case now at CEQ, and I look forward to that change.

I would ask you if I might, Mr. Frampton, before I leave, do you

have any knowledge of any ‘‘stealth national monuments’’ that are

being considered anywhere in Idaho or Arizona or Colorado or

someplace that you might want to take this opportunity to tell us

about in advance?

[Laughter.]

Mr. FRAMPTON. Senator, I have no knowledge of any stealth

monuments. The only monument proposal that I am aware of is a

very large blip on everyone’s radar screen, which is the proposal

that Secretary Babbitt is advancing or trying out in a series of public meetings——

Senator THOMAS. This is on the Arizona strip?

Mr. FRAMPTON. For Arizona, the area in the northwest corner of

the Grand Canyon National Park, the Arizona Strip proposal. What

I know about that is what I read in the newsclips and from the

hearings and the other work that the Interior Department has

done to put the proposal forward for public comment and criticism

and reaction.

Senator THOMAS. Mr. Chairman, Mr. Frampton knows full well

that history; he lived through that whole thing with us, and I think

he’s smart enough to realize that that’s not something the Administration should try to do again. I think it was a shameful period in

our history, where the Administration did something strictly ex

parte with one group, while at the same time doing everything they

could to keep the ‘‘bad guys’’ uninformed and in the dark. And as

one of the ‘‘bad guys,’’ whose principal sin was that I was elected

by the people of the State of Utah, I resented that action on the

part of his predecessor, and I made that very clear to her in previous hearings.

So I intend to vote for Mr. Frampton’s confirmation with some

enthusiasm, based on the experience we have had—conversations

we have had privately. He has been good enough to come by my

office and we’ve talked through some of these issues, and I think

this is one of the President’s better appointments. I am happy to

support it and look forward to working with him very closely.

Senator CHAFEE. Thank you very much, Senator.

Mr. Frampton, before you give your statement, I just want to say

that I listened very closely to the problems Senator Thomas raised,

and I found them disturbing. Now, that wasn’t on your watch, so

you are not the person involved, but obviously you’re not going to

be able to satisfy every Senator on this committee. But I certainly

would expect you to go the full distance in responding accurately

to questions—in this case, from Senator Thomas, or if he wants to

get together with you, you should make yourself available, because

this committee is very responsive to how its members feel about

situations.

Again, I’m not sure that you can necessarily satisfy Senator

Thomas, but you certainly have to make a determined effort to do

so. And not just Senator Thomas; anybody on either side of this

committee.
9

And maybe at the end of the period, we can have for you glowing

reports from Senator Thomas just like Senator Bennett gave. We’ll

give you a couple months.

[Laughter.]

Senator CHAFEE. All right. Why don’t you proceed with your

statement?

STATEMENT OF GEORGE T. FRAMPTON, NOMINATED BY THE

PRESIDENT TO BE A MEMBER OF THE COUNCIL ON ENVIRONMENTAL QUALITY

Mr. FRAMPTON. Thank you, Mr. Chairman.

Mr. Chairman, Senator Baucus, distinguished members of the

committee, it is an honor to appear before you as the President’s

nominee to be a member and Chair of CEQ. I have submitted a

written statement and I will certainly try to keep my oral remarks

very short, since we seem to be well into the questioning and dialog

already.

Six years ago, when I came before this committee as a nominee

to be Assistant Secretary of Interior, I said that if confirmed I

thought that you would find me a reasonable and constructive partner with the Congress. And I believe—at least I hope—that I lived

up to that trust, having been confirmed, in the 4 years that I spent

at Interior.

I think that work was good preparation for CEQ because a great

deal of what I did at the Interior Department involved building

teamwork and consensus, trying to get agencies—just the agencies

within the Interior Department—to work together, something that

was not always easy, but more importantly, to get the various Federal departments working together, and for the Federal Government to begin to work more with States and local governments and

stakeholders in new kinds of partnerships. Those were the kinds of

projects that I worked on: Everglades restoration, where I chaired

a Federal-State task force with seven Federal departments; Exxon

Valdez oil spill, where I served on a trustee council, which was a

State-Federal partnership; plus my efforts to restructure the Endangered Species Act to use voluntary agreements with local governments and landowners, from timberland owners in the northwest and southeast to the counties of San Diego and Riverside in

Southern California.

In fostering those kinds of partnerships, which I think is the direction in which our environmental policy has got to go, CEQ really

has to play an indispensable role. CEQ was created by Congress in

1969 in part to advise the President on the long-term direction of

environmental policy; but equally important, and especially critical

today, to coordinate the environmental work of the Federal family,

to make sure that Federal agencies speak with one voice, work together, and referee disputes among them.

Even more important, CEQ is charged with a broader mandate

to make sure that in the implementation of our environmental programs, economic and social imperatives would be fully taken into

account. Sound environmental policy that was broad-based and balanced and based on good science—I think that was Congress’ vision

in 1969.
10

A parallel vision that Congress sought to advance in NEPA was

to make sure Federal agencies would make important decisions affecting the environment in a democratic way, and only after a thorough examination of the impacts of alternative courses of action.

Both of these visions—the vision of coordination and balance, and

the vision of informed democratic decisionmaking—were quite prescient for 1969, especially when you consider that EPA hadn’t even

been created at that time, which seems hard to believe now. But

they remain the cornerstones of the Nation’s environmental policy

today.

My vision, in response to Senator Baucus, my idea of the challenge for CEQ going forward, is no more or no less than what I perceive Congress’ vision to have been in 1969: first, to give farsighted

but realistic advice to the President and his advisers and the Cabinet about the future direction of environmental policy; second, to

coordinate the implementation of environmental programs, but to

do so not just within the Federal family, but today that has to be

with the States and local governments and private stakeholders;

and third, to make sure that we have a process of environmental

decisionmaking that is balanced, well informed, and democratic.

I would like to just conclude, Mr. Chairman, by saying that in

the last 6 years, I think that this Administration has compiled a

strong record of environmental protection, as good as that of any

in history, and presided over the strongest economic recovery, probably, in the 20th century—peacetime recovery, at least.

So there shouldn’t be any reason to debate any longer whether

rigorous environmental standards can go hand-in-hand with economic progress. Recent history has proven that they can. And I say

that very emphatically, without any tinge of partisanship, because

you, Mr. Chairman, as one of the greatest environmental statesmen of the Senate, know much better than I that the Republic

Party has been at least as identified with environmental issues

over time as the Democrats, and that most of what we have accomplished in the environmental field over the last 30 years truly has

happened only when there has been bipartisan support for it, and

I embrace that tradition. I am proud of the role that CEQ has

played in that tradition. I am proud of the role that NEPA has

played in that tradition, and I hope that to the extent that that’s

not working well, Senator Thomas, that I can help improve it; and

I hope that in furtherance of that tradition, that if confirmed, I will

be able to work with the Congress in a bipartisan tradition in trying to address the environmental challenges we face as we go into

the next century.

Thank you.

Senator CHAFEE. Well, thank you, Mr. Frampton, for those kind

comments. I think they are accurate. People forget that the great

mass of environmental legislation pouring through here in the

early 1970’s was all signed by President Nixon—that is the Clean

Air Act, Clean Water Act, Endangered Species Act, all that early

1970’s legislation. But it came about, just as you said, in a bipartisan fashion, Senator Muskie being the chairman of the subcommittee that Senator Crapo is now in charge of.

Senator Lautenberg, do you have an opening statement that you

would like to make?
11

Senator LAUTENBERG. Mr. Chairman, I will submit my statement

for the record.

[The prepared statement of Senator Lautenberg follows:]

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

NEW JERSEY

Mr. Chairman, am pleased that we are having this hearing today to confirm Mr.

Frampton to be the new Chair of the Council on Environmental Quality. This is an

important position, and Mr. Frampton is well qualified for this post, as his record

attests.

Mr. Frampton is certainly no stranger to the issues of interest to this committee.

He has worked in the private sector both as a partner in the law firm of Rogovin,

Stern & Huge, and as president of the Wilderness Society, a non-profit organization

devoted to preserving wilderness and wildlife, from 1986 to 1993.

He also has extensive experience within the Federal Government—as Assistant

Secretary of the Interior for Fish and Wildlife and Parks. In this position, he was

responsible for the National Park Service and the U.S. Fish and Wildlife Service.

Moreover, since the departure of Katie McGinty, he has been serving as the Acting

Chair of CEQ, and knows well what this position entails.

I look forward to hearing his statement today, and response to any questions we

might have, and to working with him over the next 2 years.

Senator LAUTENBERG. I just want to welcome Mr. Frampton. I

am encouraged by his lengthy experience and his knowledge of the

issues, and his interest in improving the functioning of CEQ and

the whole environmental agenda. So I welcome Mr. Frampton and

hope that we will be able to move with dispatch here. And if there

are any issues that ought to be discussed, I hope that they will be

discussed separately from just the confirmation of his well-qualified

background and his knowledge generally, that we will get confirmation done and then get on with the committee’s business.

Senator CHAFEE. Thank you, Senator.

Senator Smith, do you have an opening statement?

Senator SMITH. No, Mr. Chairman, I will wait for the questions.

Thank you.

Senator CHAFEE. All right.

I think I will start down the list of questions now.

Mr. Frampton, 2 weeks ago a Federal District Court Judge issued an order prohibiting the Department of Transportation from

starting construction of the Wilson Bridge, and the claim was that

they didn’t comply with NEPA, they didn’t comply with the Clean

Air Act, they didn’t comply with the National Historic Preservation

Act. And it is evident that the documents that they submitted on

this were woefully inadequate, and even EPA indicated that the environmental analysis for the construction was unsatisfactory.

What are you going to do to see that this doesn’t happen again,

either with respect to this bridge or any other? It seems to me that

this is a very costly—and I’m not necessarily talking dollars, I’m

talking time—error that was made, and the Court had no trouble

finding that the preparation was totally inadequate.

Mr. FRAMPTON. Senator, I have not read the Court’s decision, so

I cannot comment on the specific issues. I can only say that I wish

the CEQ had been a little bit more on top of this EIS process over

the last couple of years because, certainly, the Court’s decision is

pretty emphatic.

I think that we obviously need to pay more attention to this

issue. In fact, with respect to issues that relate to highways and

bridges, in the TEA–21 legislation there is a provision that CEQ
12

was instrumental in getting in the legislation that calls on DOT to

have a more coordinated review, and I think there is a process

there that we are working through. We will invest a fair amount

of time and energy in trying to see that that process is improved.

With respect to the bridge itself, the Justice Department, as I

understand, has taken the lead in trying to bring the Federal agencies together to figure out the fixes that need to be made, how

those fixes can be made quickly and in a realistic timeframe, so

that we don’t face the problems that I have read about in the newspapers with respect to the lifetime of the bridge for heavy vehicles.

The Justice Department has a sort of ‘‘emergency task force’’ looking at that issue and how we can do it right and do it quickly.

Senator CHAFEE. Well, that was one of the questions I had. You

are absolutely right, what you said about TEA–21 and the streamlining provisions. You are getting geared up for that now in the

CEQ, are you?

Mr. FRAMPTON. Yes, Mr. Chairman, and I realize that this committee is having hearings on that subject. It has taken some time

for the Department to move forward. They went around the country, listening to people on all the issues of TEA–21, which is a pretty complicated statute, but I think they are now making some

progress. There is an options paper on coordinated review of transportation projects that is out, and hopefully some decisions will be

made in the next few weeks about specific proposals. We intend to

devote some time and energy to try to push that process forward.

Senator CHAFEE. OK. A final question. I have heard some concerns raised about the Administration’s plans to restore the Everglades, something you’ve been involved with. The complaints are

that the Administration doesn’t go far enough. If I remember, they

are talking in terms of $8 billion, aren’t they? Is that the right figure?

Mr. FRAMPTON. About $7 billion, of which roughly half or a little

less than half would be a Federal share, over a period of approximately 20 years, Senator. I believe that’s the number.

Senator CHAFEE. And I think that we have a water resources bill

here, and we will do another one next year, particularly because of

the Florida Everglades.

Are you paying attention to what these scientists say? I suppose

you can get scientists to say anything on any side of the issue.

Mr. FRAMPTON. Senator, I am personally paying attention because the statute requires that the restudied plan come to Congress by July 1 of this year.

I think that in the development of this plan, which has been a

monumental effort of getting stakeholders together and basing it

on the broadest possible science, that a very good job has been

done. However, we have one last opportunity to make sure that

this is the best possible plan between now and the first of July, and

I think that not only Federal scientists but outside scientists need

to have one last shot at this plan. I am confident that we are going

to have a very good plan, come July 1st.

Having said that, however, like many long-term plans, some of

the details here will be in the implementation. So it’s not just getting a good plan—and I am confident we will have one—it’s setting

up a process of independent scientific peer review, which Secretary
13

Babbitt has set in motion, over the next five to 6 years as the final

designs are developed and the implementation begins, that there is

constant outside vetting of that activity. I think that is equally important to the outlines of the plan that we will be submitting July

1st.

Senator CHAFEE. All right.

Senator Baucus?

Senator BAUCUS. Thank you, Mr. Chairman.

Mr. Frampton, just briefly, on the first question raised by the

Chairman, namely, the Wilson Bridge, does CEQ review that EIS?

Mr. FRAMPTON. I don’t know the answer to that, Senator. I will

have to get back to you.

Senator BAUCUS. This is not the first time. I have come up with

something similar to this in my State of Montana. It’s a vexing

problem. Generally, in my opinion, it is because the relevant departments—the State Department of Transportation, and ironically, in this case it could be the Federal Highway Administration

and DOT—just don’t do a good job in preparing a proper EIS. In

Montana, for example, the State did an improper job; somebody

litigated it, and they had to go back and do it all over again. If you

do it right the first time, then you avoid these kinds of problems.

It just happens constantly.

I know there is a problem with the EIS procedure, but I must

say that a lot of the problem with the Federal agencies is that they

just don’t do a good job in the first place. If they did a good job

in the first place, then they wouldn’t consequently be having these

kinds of problems. That happens time and time and time again,

particularly with respect to highway projects.

My question really revolves about the Better America Bonds. I

think this is a very good concept, one that has lots of potential, and

I’d like your thoughts on how you think it should be shaped or

formed, or some of the divisions that we should be looking at, or

some of the ideas that you might have with it.

Obviously, growth and sprawl issues are nationwide. There are

problems in urban America, but there are very much problems in

rural America, as well. I am very sympathetic with small problems

in metropolitan areas, but I am also very sympathetic with a lot

of the open space issues that occur in the western States. I can certainly speak for the State of Montana.

As you know, this is a bonding authority that the States would

have. Some have suggested that EPA allocate the amount of bonding authority to be available among the States. Frankly, I am a little nervous about that; I think it smacks too much of ‘‘Big Brother’’

Federal Government, and there are lots of other ways to address

the allocation issue.

But your thoughts on how we can make this work and work

well?

Mr. FRAMPTON. Senator, I think this is a very exciting concept,

and it has found a lot broader support than even I expected that

it would. I think it is one of a number of things we are doing, like

the Salmon Fund proposed in the budget, and the Clean Air Partnership Fund, to try to help local and county and State government

take the lead on these issues.
14

So it is responsive to the idea that we can’t do everything by regulation, and we have to put some resources into the local effort.

Let me just say a couple things about how I think this would

work best.

No. 1, Better America Bonds is aimed at issues of livability and

smart growth, but not just at the suburbs. It is also aimed at the

cities——

Senator CHAFEE. Mr. Frampton, I’m going to have to ask you to

hold up here. We are now in the last part of a vote. Apparently it’s

a motion to instruct the Sergeant at Arms.

Senator BAUCUS. I could go over a little later, after I finish this.

Senator CHAFEE. What in effect I was going to propose is to ask

our members to go over and vote and come right back, so we will

do that now.

Senator CHAFEE. I would ask Senator Smith and Senator Thomas, if you would, come right back because we want to give you a

shot at the questions.

Mr. FRAMPTON. Senator, this is aimed at the inner cities as well

as the suburbs, No. 1.

No. 2, I think it is important that the money available—which

at the levels requested by the Administration would generate close

to $10 billion in bonding authority over 5 years—would be used for

each of the designated purposes, brownfields, open space, recreation, and clean water.

I also think, to respond to your comment about EPA, EPA is the

conduit for receiving proposals from cities and counties to do the

bonding, and the Administration proposed it that way because EPA

is doing brownfields and clean water issues and has relationships

with the cities and counties. But EPA is not going to be the deciding agency. This will be an interagency program, and there will be

an interagency committee that looks at the bonding requests and

make judgments—if there is an overapplication for requests, who

will get what.

Senator BAUCUS [assuming the chair]. So how did you handle the

oversubscription or overapplication?

Mr. FRAMPTON. We don’t have specific criteria, but the proposal

is to make it competitive and try to create an interagency process

that—obviously, geographical distribution will be important to

some extent, but a process that tries to look at whether the proposals are part of a good plan, part of a comprehensive smart growth

plan, and also partly whether they really supplement existing resources that States and counties have; and then, which ones seem

to be getting the biggest bang for the buck. To some extent, that

is subjective.

Senator BAUCUS. Another problem is, what happens when there

is a huge project? You don’t want it to take up the lion’s share of

the bonding authority that is available nationwide and leave out

some good smaller projects in other parts of the country.

Mr. FRAMPTON. These are issues that have been discussed internally to try to get a balance into the criteria for judging, but probably we won’t finalize those unless and until Congress enacts the

program.

Senator BAUCUS. Right.

Mr. FRAMPTON. But I think those are hard issues.
15

Senator BAUCUS. They are, but I am raising all these with you

so that we can discuss them and flesh them out, so that there is

general agreement among those who are interested in the program

as to what those provisions should be. I just urge you—and I know

you well—and others to be thinking about that, because I think

this is a very exciting program and I am going to be developing my

own proposal, and I would like those who are interested to consult

with me, as I will with them.

Well, I think I had better get over and vote. The committee is

temporarily in recess.

[Recess.]

Senator THOMAS [assuming the chair]. If you’re prepared, we’ll

just go ahead. The Chairman will be along in a minute or two,

since we’ve kind of fallen behind. I will take the prerogative of

going ahead with some questions and we’ll get started.

You mentioned in your statement, Mr. Frampton, you are going

to be a member and Chairman. Who else are members?

Mr. FRAMPTON. There are no other members, Senator.

Senator THOMAS. Why not?

Mr. FRAMPTON. Well, I am not an expert on the history of this,

but my understanding is that since the mid-1980’s, basically Congress has provided each year in the appropriations bill that the

power of the Council is vested in a Chair, so it is has been a oneperson Council for 10 years or more. That has been something that,

I guess, has been accepted by both Administrations and Congresses.

Senator THOMAS. The CEQ is combined with the White House

Office of Environmental Policy, and I think this has obviously expanded the role of establishing environmental policy within the Administration.

Rather than being a policy arm, shouldn’t CEQ be an independent agency to do this coordinating that you talk about?

Mr. FRAMPTON. Well, at the beginning of the Clinton Administration, Senator, there was an effort or an initiative to create an Office of Environmental Policy that would be different from CEQ, but

that effort was abandoned. My understanding—again, I’m not an

expert in the history—is that now there is CEQ, the Council on Environmental Quality. Technically in the statute there is also an Office of Environmental Quality, which was also provided for in 1970,

so that’s the original formulation, is what we have now.

I think that CEQ is somewhat different than the other policy

councils at the White House because it does have a Senate-confirmable Chair, but on the other hand it is not, obviously, a completely

independent agency. One of the purposes of CEQ was to give advice

to the President about environmental policy, and another was to

actually coordinate the Administration’s environmental policy.

So I think it exists in a place in between an independent agency

and advisory role.

Senator THOMAS. It is also charged with the responsibility of

really administering and coordinating NEPA, was it not?

Mr. FRAMPTON. That is correct.

Senator THOMAS. And how many new changes and policies and

rules and adjustments have there been made in the last 20 years?
16

Mr. FRAMPTON. Well, over the last 20 years CEQ has issued

guidance under the rules——

Senator THOMAS. Under new rulemaking in 20 years? I don’t

think so.

Mr. FRAMPTON. Not new regulations. I think the regulations, by

and large, have worked pretty well. What CEQ has done is write

guidance under the regulations and the statute to respond to individual issues or problems that have——

Senator THOMAS. I guess I disagree with you some. You indicated

a moment ago how you had to be responsive to the changes that

have taken place since 1969 or whenever it was. The fact is, there

have been very few in terms of administering this very difficult

law, under quite difficult circumstances, and literally for 20 years

the agency charged with administering it and keeping up-to-date

rules has not issued any rules at all.

Mr. FRAMPTON. Has not made major changes in the regulations

that were originally written, Senator.

I would say this, though, that I think that the ability to write

guidance is a way to adjust to changing circumstances. You mentioned in your opening statement that you had found CEQ unresponsive in the past, and this is something that we discussed when

I came to see you in your office. And one of the concerns you expressed was the need to amend the law or create a new policy on

cooperating agencies. This was something, in your view, that even

though CEQ had done positive things in the past, wasn’t working

very well.

I went back and looked into this after we met a couple weeks

ago, and found that indeed CEQ had on occasion written letters to

agencies, encouraging them to be more forward-leaning in getting

State and local agencies in as cooperating partners, but we didn’t

have comprehensive guidance on that. So I asked that one be drafted, and it is in fact in interagency review and we’re going to issue

it.

I hope that through guidance, comprehensive guidance, we can

deal with the problem that you identified, I hope in an effective

way, and be responsive to you and your concerns on those issues,

without necessarily rewriting the statute or the regulations. We

will see how that——

Senator THOMAS. What is your opposition to rewriting? If you

agree with the cooperating agencies, why shouldn’t that be the

standard for each of these operations? Why should we be selective?

We had to work our fannies off to get it for the Yellowstone winter

use. Now, when they want it in Medicine Bow, why shouldn’t the

State and the counties be entitled to be cooperating agencies?

Mr. FRAMPTON. Well, as I said to you, when we talked—I think

to try to rewrite the statute or the regulations to require that, in

every case, hundreds and hundreds of EIS’s a year, every single

State and local agency that falls within the possible orbit automatically be included, is really sort of a top-down, one-size-fits-all approach, particularly in light of the fact that being a cooperative

agency often costs the local government unit money——

Senator THOMAS. They aren’t required to participate, and neither

do you have to include everything. Maybe it ought to be their

choice, rather than yours.
17

Mr. FRAMPTON. Well, I hope that by putting out new guidance in

response to your concerns, and trying to put this policy of being

very open to this and offering it—except in unusual cases—to every

local government unit, that we can address the problems that

you’re concerned about that way. If it turns out that that really

does not address the problems, then I think we can look——

Senator THOMAS. I just would hope we don’t have to wait another

20 years to find that out. I think we’ve done this quite a little bit.

We’ve found some times, certainly, when cooperating agencies had

some expertise, and that’s all they are in there for, is to share the

expertise they have, which is defined.

On a different matter, we have been working on open space and

so on, and of course livestock production plays a role in that. Do

you think it is necessary that the renewal or the transfer of a permit is a major Federal action, for a grazing permit?

Mr. FRAMPTON. Well, I think that’s an issue that, as you and I

discussed, is the result of some Court action concern about whether

the agencies need to do this. For a long time, the grazing permits—

NEPA work was not being done on them, and now EAs need to be

done on them, and the agencies——

Senator THOMAS. The Court has not ruled that the need to do it.

Mr. FRAMPTON. But I think there is a concern that without going

through the process, we will be very vulnerable——

Senator THOMAS. So you are going to be driven by the threat of

lawsuits rather than what’s good policy?

Mr. FRAMPTON. No. My understanding is that the Administration

is being driven by what it thinks it needs to do under the law.

Senator THOMAS. So you agree that there has to be a NEPA

study for the renewal of an unchanged grazing license?

Mr. FRAMPTON. Well, my understanding is that the agencies are

doing what the guidance from the Justice Department is telling

them is the best practice. Now, when you say ‘‘unchanged,’’ I think

it may be that it being unchanged in going back to the beginning

would not require an EA.

I’m not trying to deliver a legal opinion on this because I’m not

that familiar with the legalities——

Senator THOMAS. You’re avoiding my question.

Mr. FRAMPTON. Sorry.

Senator THOMAS. Do you think that the renewal of a 100-head

lease that is unchanged, location, numbers, should have to have an

EIS or an EA?

Mr. FRAMPTON. I would like to have the opportunity to respond

to you in writing, because I think you’re asking me in part a legal

question, about the judgments that have been made about that.

The agencies obviously feel that, with respect to leases on which

there are changed circumstances, the NEPA work has to be done.

Senator THOMAS. What happens, as you know, is that the Forest

Service, for example, isn’t able to do it all, so we have to go into

the budget; we have to put into the budget special language to say

that it will be extended for a certain length of time so that the

agency can do it; they claim that they don’t have the money, they

don’t have the expertise. But your agency, which is responsible for

making this thing work, has taken a hands-off position. I don’t understand that.
18

Mr. FRAMPTON. Well, Senator, I don’t think we have taken a

hands-off position. I think that one of the important solutions to

this would be not to do them all one by one, but to try to batch

them so that you can do them in a much more efficient way, and

then nobody gets delayed. And nobody is being harmed now under

the current status quo.

And CEQ is working—and has worked and will work—hard with

BLM and the Forest Service to try to push the idea of doing these

in a batch——

Senator THOMAS. I appreciate what you are saying, but it doesn’t

give me much comfort to have you say, ‘‘Well, we’ll work with

them.’’ They’ve been working with it for 20 years, had that long a

time. We have referred it to them; nothing happens. It’s discouraging. And then to have you come here, as a new face in an agency,

and really say, ‘‘Well, we’ll just do what we’ve been doing’’—it

would be really refreshing for you to say, ‘‘By golly, if there’s something that ought to be changed here, we’ll do it.’’ But you haven’t

said that.

Mr. FRAMPTON. Well, Senator, there are two issues that you have

raised that you raised with me in your office a few weeks ago. One

was cooperating parties——

Senator THOMAS. And you have not responded to either one of

them.

Mr. FRAMPTON. Well, I have tried to. What I am telling you today

is that we have tried to set a world record in response by actually

putting out a policy, getting a policy, writing it, and putting it out.

And on the issue of grazing EAs, we’re looking into what we can

do to put more pressure on the agencies to try to batch these and

do them by watershed or ecoregion instead of one at a time.

Senator THOMAS. I’ve taken too long.

That’s what we had in our grazing bill. You can take a look at

the whole area, but you don’t need to take each one. I mean, it just

doesn’t even make sense.

Mr. FRAMPTON. I agree with that.

Senator THOMAS. And I understood that your agency—you act

like you have to persuade them. I thought you were sort of in

charge of coordinating this. You’re not?

Mr. FRAMPTON. Well, we can’t always instruct. Even within the

Federal Government it takes a certain amount of consensus and

suasion to change the way agencies work.

Senator THOMAS. I just have to tell you, I am impressed with

your background but I’m not very impressed with your willingness

to talk about making changes in something that, to most people,

has been generally a little unsatisfactory. And I’m just being very

candid with you. I don’t think that’s the kind of an approach that

some of us would expect to see when a new person comes into this

job.

Thank you, Mr. Chairman.

Senator CHAFEE [resuming the chair]. Senator Smith?

Senator SMITH. Thank you, Mr. Chairman.

Good afternoon, Mr. Frampton.

You come from a background, as I understand it—you were

President of the Wilderness Society, you were an Assistant Secretary for Fish and Wildlife at the Department of the Interior, and
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obviously those two areas are very much involved with animal protection and so forth, which surprises me. What surprises me is the

Administration’s insistence on the chemical testing initiative,

which has raised the ire of many in the animal welfare community,

and in my view, with justification. A, it’s costly; B, it is repetitious

and unnecessary in many, many cases.

I chair the subcommittee with jurisdiction over this and have

some interest in it, but EPA is working on three of these initiatives. One is the High Production Volume, two is the chemical testing program, and three is the endocrine disruptive program in children’s health. And each requires the industry to commit to massive

toxicity testing.

So my question is, given all the concerns expressed, and the financial implications for both the industry and EPA, why continue

this?

Mr. FRAMPTON. Well, Senator, I think what has raised some controversy about this most recently is the agreement between the

Chemical Manufacturers Association, EDF, and EPA to do a large

volume of testing of chemicals, and to put the resulting information

out to the public on the Internet, which I think is a terrific voluntary information-based strategy.

Now, I think the announcement of that program several months

ago has given rise to some misunderstandings about the actual impact this is going to have on animal testing with rabbits and so

forth. In the first place, there is not an intent to increase testing

or do testing with respect to chemicals for which we do have information already. So a lot of this program is simply gathering and

coordinating existing information, making it available to the public.

Second, as a part of this, the Administration is committed to trying to make sure that the actual amount of animal testing is minimized; that alternatives are being sought; EDF and various Federal agencies—I believe that we responded in a letter to you on this

recently—so we are very conscious of trying to make sure that a

very, very good program, which has tremendous benefits for public

health, does not necessarily result in an unnecessary amount of

animal testing.

But ultimately, a certain amount of animal testing—we would

like to get away from it altogether—but a certain amount of it is

still the cost we pay for significant improvements in public health,

for children and adults.

Senator SMITH. Still, though, the question is that there are a lot

of these chemicals that you have significant and extensive data on,

that are still being used. You haven’t purged the list. I mean, I

hear your testimony, and I’ve heard it before from others, but there

is an extensive amount of testing that still goes on that is totally

unnecessary. I don’t think you’re getting the right information in

terms of what these chemicals are and how much data you already

have—you know what they are, but in terms of the data that already exists, it’s repetitious and unnecessary.

What about the final point on this? It is my understanding that

you did meet with some animal welfare representatives who did

raise some issues—eight, I think. Why have you not responded to

those issues?
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Mr. FRAMPTON. I have not personally met with the animal welfare rights folks on this over the last month or so, when I became

aware of this. I know that issues have been raised to various Federal officials and to the Vice President and the President, but we

have tried to respond by, No. 1, clarifying what it is that we are

doing; and, No. 2, undertaking some efforts to make sure that animal testing for chemicals that do have to be tested is minimized.

Senator SMITH. Well, as a Senator with a staff, just be a little

bit careful in your response, because your staff did meet and talk

extensively. You said you didn’t meet, but my staff——

Mr. FRAMPTON. I personally have not met.

Senator SMITH. All right. You should clarify that.

So I still think that there is more that we can do in this area,

and I would ask you to look at it because I think you are going to

find that there is extensive testing that is totally unnecessary, with

a lot of data available.

Mr. FRAMPTON. Senator, I am very willing to look at the issue

in more depth, personally and through my staff, to make sure that

what we are doing to make sure that the testing is minimized is

everything we can do.

Senator SMITH. All right.

Let me ask a couple questions on another subject.

On Superfund, Carol Browner said a little while ago that ‘‘Our

experience on allocation is that it’s a great tool; it should be part

of Superfund.’’ But this year EPA has taken the position that ‘‘fair

share’’ should not be part of any Superfund legislation. Why the dichotomy here?

Mr. FRAMPTON. Well, Senator, I can’t respond on the individual

issue of the different position that she has taken. I would just say

that we discussed this before, as well, because I know you are concerned about the Administration engaging on this issue. We do

want to engage on the issue, but the situation is a little different,

and I don’t think anybody can fault the Administration’s engagement over the last 6 years, certainly trying to reach agreement. I

think Administrator Browner is as disappointed that comprehensive reform didn’t reach agreement as you are, but we are in a situation now, as I said to you a few weeks ago, where the program

is different than it was 6 years ago. Most of the cleanup decisions

have been made. We have tried so hard to reach agreement, and

we are still apart on issues; the people who are doing this at EPA

and others in the Administration tell me, ‘‘If we’re going to accomplish something, we want to try to focus on those limited but important areas where we do have agreement, which fit the current

needs of the program.’’ And if we could do that, perhaps—the

things where there is consensus—we would be able to move forward on some of those issues where everybody wants to do things,

brownfields and innocent purchasers and so forth.

Senator SMITH. Well, fair share allocation is a concept that has

been around for a long time. It’s not new, as opposed to joint and

several liability, and it seems to me that in this position you should

be able to answer the question yes or no. Do you support fair share

allocation in Superfund, yes or no?

Mr. FRAMPTON. I am not a Superfund expert——
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Senator SMITH. I don’t think you need to be an expert. Joint and

several liability means that everybody is liable at the site, regardless. There might be some argument—there is a big argument

about how much. And the other is, you figure out how much each

party owes, and they pay their fair share. I mean, there’s nothing

complicated about it.

Mr. FRAMPTON. Here is what I have to respond to you. I am

not—there is some impression that Administrator Browner has

said or testified that the Administration would be open to, or embraces, fair share allocation as opposed to joint and several liability, and I am not familiar with the specific statements but I think

that EPA would say that if that’s the impression that has been created, it’s a misunderstanding, and the Administration is not in a

position to agree to that. But again, some of this is in the details,

and my understanding is that at the end of last year, we were still

pretty far apart on some pretty major liability issues, and some

other issues, as well.

Senator SMITH. We are, but you know, you were in support of reinstating the taxes, and doing it by picking winners and losers

rather than fair share. I mean, the Administration has taken the

position that de minimis municipalities, waste generators, and so

forth should be out; others, those locked in consent decrees or those

that have not settled one way or the other, PRPs, those people

should not get out. So that’s not fair. It becomes a fairness issue,

as far as I’m concerned.

Mr. FRAMPTON. Well, I understand your position, Senator. I

think the Administration would say that if we can agree, if there

is consensus within the Congress and with the Administration,

that it is fair to let some parties out, to exempt some parties, with

de minimis liability, and we can agree on what is fair with respect

to some people, but we cannot come to agreement on major liabilities with larger parties, then we ought to go forward and try to

be fair to those people on whom we can agree what fairness is

about.

Senator SMITH. What you’re saying is, you’re willing to be fair to

some people and not to others, therefore it’s not fair. I mean, that’s

the bottom line here. That’s the argument we’ve been having with

Ms. Browner and the Administration for years, that in order to

really reform Superfund, we need to be fair to everyone; and that

to be fair to everyone, whoever has the site, if you’re a de minimis

party or if you’re a huge entity such as Mobil or Exxon or somebody like that, that whatever your fair share is is what you owe.

And you’re picking winners and causing others to be losers and

saying, ‘‘Well, we’ll be fair to these guys, but not fair to these

guys.’’ If you’re not fair to everybody, then you’re not being fair at

all.

Mr. FRAMPTON. I think what is involved is some fundamentally

different ideas about what being fair, especially to the large number of large parties, really means. I think what I’m saying is, I understand the Administration’s position. Again, I’m not an expert on

this. I know we failed to agree on this over the last few years, but

if we can agree on being fairer than we are now, even by your

terms, then maybe we should go ahead and do that because then

we can legislate it.
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Senator SMITH. Well, I don’t think you’re going to—I think the

message needs to be taken back to EPA that the taxes on industry

are not going to be reinstated in this Congress unless the program

is fair, and I think that’s the bottom line. And it is not fair the way

it is now, and I wish we could get there. I regret that we’re not,

because I think that’s the only way we’re ever going to get the program fixed.

Thank you, Mr. Chairman.

Senator CHAFEE. All right. There are a couple of obligatory questions I will ask you, Mr. Frampton.

First, are you willing, at the request of any duly constituted committee of the Congress, to appear in front of it as a witness?

Mr. FRAMPTON. I certainly am.

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

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

Mr. FRAMPTON. Other than what has been disclosed, no, Mr.

Chairman.

Senator CHAFEE. Senator Thomas, do you have any further questions?

Senator THOMAS. I have a couple. I will try to do it quickly.

I guess I’m a little confused about the administration of NEPA.

I get the impression from you and from your predecessor that one

of the responsibilities there is to administer it and to coordinate

it—I don’t know anyone else who does—and yet, you don’t do any

regulations. You do rules and letters and guidance, none of which

are subject to public review.

If it is your job to make it common and administer it, how do you

do that?

Mr. FRAMPTON. Well, Senator, as you pointed out, the regulations

that were written under the original act were, of course, subject to

the usual public review process. My understanding is that in the

past, when CEQ has issued guidance or advice on NEPA issues,

that the practices varied, but certainly what CEQ tries to do is

bring the Federal agencies—and if it hasn’t in the past, I think it

sometimes has, but certainly should in the future—bring the public

and stakeholders into that process as well.

But I don’t know anything else that CEQ does, as you said, that

is regulatory or rulemaking. If we did, it would require, under the

APA, another statute, public notice and comment period and so

forth, Federal Register publication.

Senator THOMAS. Wouldn’t it be a normal expectation that you

would do rulemaking from time to time, as times change? You have

mentioned three or four times in your testimony how times have

changed, how the circumstances have changed, and yet, apparently, the regulations are OK for 20 years.

Mr. FRAMPTON. Well, I guess one way of looking at that is that

the regulations have stood the test of time——

Senator THOMAS. If you agree with that, of course.

Mr. FRAMPTON. If you feel the program is not working, then I

think that obviously one would look to regulatory changes. But I

am not familiar in the last few years with any specific set of proposed regulatory changes that have been put forward under NEPA

that are designed to make it work better.
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I think the problem is really in the implementation, not in the

regulations.

Senator THOMAS. I have not heard of any either, and I would

rather like to hear of some.

We are having a hearing tomorrow on the Everglades. Have you

seen the GAO report?

Mr. FRAMPTON. I have.

Senator THOMAS. What do you think of that?

Mr. FRAMPTON. Well, I think there is a genuine and legitimate

concern that is expressed in the report about the lack of a strategic

plan for the overall program, but I am not sure that the GAO examiners who worked on the report fully understood how much the

restudy and surrounding processes which were created, which represent an enormous amount of consensus among a lot of parties,

actually embody a strategic plan, or the fact that an actual strategic plan is in the process of being developed.

So I think that’s a genuine concern, but I think that concern is

being responded to.

Senator THOMAS. Is that what the restudy is for, to come up with

a plan to spend the $10 billion that they predict will be spent?

Mr. FRAMPTON. The restudy is a strategic plan of enormous

breadth. What the GAO said is—I think the kind of strategic plan

that was unthinkable 4 or 5 years ago—that anybody could develop

that on a consensus basis. The GAO said, ‘‘Well, you need a consensus plan that goes much further, that looks at all the actors in

south Florida who are doing everything. You need to broaden the

scope of this plan.’’ And to the extent that the restudy has to fit

with other important things that are happening, I think that’s

right, and I think that some of that is going on, and that the people

who worked on the report—the examiners themselves—don’t appreciate how much of that is actually happening.

Senator THOMAS. Well, it’s an interesting thing when the Park

Service has a little over $1 billion a year in their budget, $6 billion

in arrears, and we’re going to spend $10 billion here. It’s an interesting study, in any event.

Thank you.

Mr. FRAMPTON. Thank you, Senator.

Senator CHAFEE. All right. Well, thank you, Senator.

Mr. Frampton, thank you very much for coming by and responding to the questions. I don’t know if anybody asked for other questions, but if so, please respond swiftly if you can, in writing.

Mr. FRAMPTON. We will indeed, Mr. Chairman, thank you.

Senator CHAFEE. Thank you very much.

That concludes the hearing.

[Whereupon, at 4:13 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF GEORGE T. FRAMPTON, JR., ACTING CHAIRMAN, COUNCIL ON

ENVIRONMENTAL QUALITY, EXECUTIVE OFFICE OF THE PRESIDENT

Mr. Chairman, Senator Baucus, distinguished Members of the Committee: It is

an honor to appear before you today as President Clinton’s nominee to be a Member

and the Chairman of the Council on Environmental Quality.

Six years ago, I came before this Committee as the President’s nominee to be Assistant Secretary of the Interior for Fish, Wildlife and Parks. I said I believed that,
24

if confirmed, you would find me to be open, fair, and a reasonable and constructive

partner with the Congress. I also said that as an advocate in different professional

roles throughout my career, I had based my advocacy on sound facts, fairness, practicality, and the importance of maintaining personal credibility.

You did vote to confirm me, and as an Assistant Secretary of the Interior from

1993 to 1997, I believe I fulfilled the trust you placed in me. I further believe that

the insight and experience gained during my time at Interior help immeasurably in

fulfilling the responsibilities I assumed upon becoming acting Chairman of CEQ 5

months ago.

Much of my work at Interior involved building teamwork and consensus—among

agencies within the Department; among various Federal departments and agencies

with different priorities and missions; and among State and local governments, private landowners, and other stakeholders.

One such undertaking was the Federal/State task force that developed a comprehensive restoration plan for the Everglades/South Florida Ecosystem, the largest

ecosystem restoration ever undertaken in the United States. This 6-year effort,

which enjoys bipartisan support at both the Federal and State level, is scheduled

to come to fruition this June.

Another major success was our effort to develop a new paradigm for the Endangered Species Act, including the pioneering use of Habitat Conservation Plans with

private landowners, and collaborations with State and local governments such as

Natural Communities Conservation Planning Program (NCCP) in the Southern

California counties of San Diego, Orange, and Riverside Counties. In addition, in

partnership with Governor Leavitt of Utah and the Western Governors Association,

I helped craft a reform proposal for the Endangered Species Act that became an important basis for the Kempthorne bill reported out of this committee.

As the lead Federal trustee in the Federal/State Exxon Valdez Oil Spill Trustee

Council, I joined with then-Governor Wally Hickel of Alaska to forge a balanced,

comprehensive program guiding the use of the civil penalty paid by Exxon to restore

Prince William Sound and the Exxon Valdez spill area in South Central Alaska.

This program, based on the best available science and broad public input, found

wide support among Federal and State agencies, Native Corporations, fishermen,

environmentalists, and local and Alaska residents.

Working with the Alaska Department of Economic Development, the U.S. Department of Energy, and the National Park Service, I also negotiated an agreement to

locate one of the nation’s first Clean Coal Technology Demonstration Projects adjacent to Denali National Park. Among the benefits of this innovative project are improved visibility and air quality. Without this agreement, the project would have

foundered.

To cite just a few other examples: I was a principal in the collaborative effort with

the Forest Service and the Department of Commerce to finalize the Pacific Northwest Forest Plan. I worked with the armed services to develop cooperative programs

to protect habitat on military bases. With the State of California, the Corps of Engineers, and the Ports of Long Beach and Los Angeles, I led the effort to use port

mitigation funding to purchase and bring into protective ownership of the State the

largest remaining estuarine wetlands on the California coast. In Montana, Utah,

and North Carolina, I oversaw the implementation of innovative habitat plans with

landowners and county governments to protect endangered species.

While at Interior, I came to recognize that almost every important environmental

or natural resource issue facing the Federal Government today requires coordination

among more than one Federal agency or department. Most of these issues also demand close cooperation, and often a sustained partnership, with State and local government as well.

This is where the Council on Environmental Quality plays an indispensable role.

CEQ was created by the Congress in 1969 to advise the President on the longterm direction of environmental policy. But equally important—and especially critical today—was Congress’ direction to coordinate the environmental work of the Federal family, and to oversee implementation of the National Environmental Policy

Act (NEPA).

First, CEQ was to make sure that Federal agencies are working together, not at

cross purposes, and to referee disputes between the agencies. Congress envisioned

CEQ as a ’neutral’ arbiter free of ‘‘agency bias’’—that is, commitment to a particular

regulatory approach or agency mission. As such, CEQ could ensure that the broadest set of environmental goals was being advanced.

Second, CEQ was charged with an even broader mandate: to make sure that in

the articulation and implementation of the nation’s environmental program, economic and social imperatives were fully taken into account. Sound environmental
25

strategy that is based on good science, and is broad-based rather than parochial in

scope—this, I believe, was the vision of Congress.

A parallel vision embodied in NEPA is that Federal agencies make important decisions affecting the environment in a democratic way, only after a thorough examination of the likely impacts of alternative courses of action. By putting sound information before the public and government managers, informed public input to such

decisions would be guaranteed.

Both of these visions—coordination and balance, and informed democratic decisionmaking—were prescient for 1969, a time when the Environmental Protection

Agency did not yet even exist. They remain cornerstones of the nation’s environmental policymaking, and have been at the heart of our environmental progress

over the past three decades.

In my work over the past 5 months as Acting Chairman of CEQ, a very large part

of my work has been oriented to this practical, problem-solving side of CEQ’s mandate: seeing to it that Federal departments and agencies are on the same page, are

working together. I have been reminded often, as I was at the Interior Department,

how important it is that the Federal family speak with one voice. This subject comes

up over and over again with mayors, county executives, and Governors, as well as

with representatives of regulated groups and industries.

In November, when I addressed the Western Governors Association (WGA) meeting in Phoenix, many of the Governors explained how important CEQ is to them

because it is the only place where ‘‘all roads cross’’ when it comes to Federal environmental policy. It is the only place they can go for help when they are caught

between Federal environmental statutes or agencies, or want to appeal an agency

policy or decision. In fact, several Governors said publicly they are dismayed that

CEQ is so small and has so few resources, given the importance of its role to their

constituents.

A significant part of CEQ’s casework relates to the NEPA process, and particularly to the preparation of Environmental Impact Statements (EIS) and Environmental Assessments (EA). Typical of CEQ’s involvement is a recent settlement in

a case involving the Longhorn Pipeline, which runs from Austin to San Antonio. A

proposal to use this former oil pipeline to transmit natural gas—serving, among

other things, poor communities with inadequate energy supply—faced potentially

fatal delays because proponents sought to avoid NEPA’s applications and a Federal

court held that an EIS might be required. A CEQ-brokered court settlement satisfactory to all parties calls for prompt preparation of a robust EA that will provide

the public with ample information and meet NEPA legal requirements in time to

allow for key investment decisions.

State and local governments, and other stakeholders, look to CEQ for leadership

on new initiatives as well. For example, last fall the Governors of California, Oregon, Washington, and Alaska asked the Administration to create a Federal fund

to help them restore endangered coastal salmon runs—with an absolute minimum

of Federal red tape. But to ensure accountability to the Federal Government and

Congress, and coordination on a regional basis, the Governors proposed that the

Federal coordinating role be undertaken by CEQ. Responding to their request, the

President’s proposed fiscal year 2000 budget indeed includes a $100 million Pacific

Coastal Salmon Recovery fund to help States, tribes and local communities restore

coastal salmon.

Clearly CEQ’s ‘‘casework’’ and coordinating roles are also very important to many

Members of Congress. The number of requests and referrals from Members seeking

improved NEPA coordination among the agencies is increasing every year.

Yet CEQ today has fewer staff members and a smaller budget than it had during

much of the 1970’s—nearly a third less staff even than at the end of the Bush Administration.

For this reason, the President’s proposed fiscal year 2000 Budget requests additional funding for CEQ to carry out a Partnership Program to work more closely

with governments, mayors, and private individuals in collaborative initiatives and

in problem-solving in the field.

My vision for CEQ is no more and no less than the vision I believe Congress had

in 1969: a balanced, coordinated and effective Federal environmental policy, and a

process for democratic, informed environmental decisionmaking.

In 6 years this Administration has compiled a record of strong environmental protection as good as that of any President in history, while catalyzing and overseeing

the strongest economic recovery since World War II. There is no longer any reason

to debate whether rigorous environmental standards go hand in hand with economic

progress. The history is now clear, and the record speaks for itself.
26

I am proud of the part CEQ—and NEPA—have played in establishing that record

and look forward to working with the Congress to continue building on it, for the

sake of our environment and the American people.
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RESPONSES BY GEORGE FRAMPTON TO ADDITIONAL QUESTIONS FROM SENATOR

GRAHAM

Question. Will the CEQ conduct an analysis on how the Department of Defense

conducts Environmental Impact Statements for base closures and determine if the

process could be streamlined or improved for future base closures?

Response. Pursuant to the Defense Authorization Amendments and Base Closure

and Realignment Act of 1988 and the Defense Base Closure and Realignment Act

of 1990, Congress modified the application of NEPA to the base closure process and

limited its procedural mandate to certain phases. The overall process could certainly

be improved for future base closures. In fact, given where the processes currently

are, a review of how to improve the NEPA coordination would be timely. At present,

CEQ was not contemplating a study of this process. However, it this surfaced as

an important and immediate issue and CEQ had additional resources for an analy-
34

sis on the base closure and reuse process, the results could possibly be helpful to

the agencies and the public.

As to the specific question you and I spoke about in your office, there appears to

be no difference between how the various branches of the Armed Services conduct

their NEPA analyses for base closures. The difference between how the NEPA processes were conducted for the closures of Homestead Air Force Base and Orlando

Naval Air Station was based solely on differing levels of community support. The

difference was not based on any inconsistency between the Armed Services’ implementation of NEPA.

RESPONSES BY GEORGE FRAMPTON TO ADDITIONAL QUESTIONS FROM SENATOR

THOMAS

Question 1. During your confirmation hearing, you stated that CEQ was preparing

interagency guidance regarding State and local governments as cooperating agencies.

A. Please provide a copy of this guidance.

Response. A copy of the draft interagency guidance, currently being circulated for

comments, is attached.

B. Will this guidance be subject to public review and comment?

Response. Guidances, such as this one, represent short policy statements which

usually do not go through a public comment period. Instead, the draft guidance will

be circulated to all Federal agency NEPA contacts for agency comments. In addition,

however, we would be pleased to circulate copies of the draft guidance to interested

Members of Congress, such as yourself, and receive comments on the draft guidance

from your office and other Congressional offices. We will also be happy to send draft

copies to the National Governors Association, the Conference of Mayors, and the National Association of Counties for comments.

C. When will this guidance be issued?

Response. We hope to issue this guidance by mid-June 1999. Of course, that is

dependent on the nature and timing of the comments we receive on the draft guidance.

D. What agencies will receive this guidance?

Response. All Federal agencies will receive the draft guidance and will have an

opportunity to comment on it. The final guidance will also be sent to all Federal

agencies.

E. Why not issue this guidance as a CEQ regulation?

Response. The current CEQ regulations already contain clear provisions concerning cooperating agencies and the roles of local, county, State and Tribal governments in the NEPA process. The guidance focuses on the existing regulations and

will serve to remind all agencies of their responsibilities to include local, county,

State and Tribal governments, where appropriate. Thus, the guidance is an appropriate way of reinforcing the intent of the regulations and makes the issuance of

another regulation unnecessary.

F. How will CEQ ensure that local land managers or rangers are aware of this

guidance?

Response. The final guidance will be sent to all agency heads and all agency

NEPA liaisons. CEQ will request that these agency heads and NEPA liaisons distribute the guidance to the appropriate personnel, including all appropriate regional, district and other local offices.

G. Will you support my efforts to amend NEPA to clarify that-State and local governments should be afforded the opportunity to become cooperating agencies if they

so choose?

Response. The National Environmental Policy Act and the current NEPA regulations fully reflect the goals of NEPA in including local, county, State and Tribal governments as cooperating agencies. We believe that the guidance currently contemplated satisfies the additional need for a comprehensive policy as we discussed

in your office. The Administration has opposed in the past amending NEPA to make

mandatory State, local and Tribal cooperative status. If the guidance proves not to

be successful, however, I will certainly be willing to consider other options.

Question 2. In November 1995, Senator Craig and I sent the attached letter to

your predecessor outlining a process of improving NEPA compliance within the Forest Service. I also have enclosed Ms. McGinty’s only response to this letter. Please

provide an action plan for addressing the issues raised in that letter.
35

Response. The November 1995 letter to the Chair of the Council on Environmental Quality raises serious and important issues regarding the Forest Service’s

implementation of the National Environmental Policy Act. The numerous suggestions contained in the letter for embarking on a comprehensive rulemaking include

cogent observations and interesting substantive suggestions. I believe that the process that you and Senator Craig propose for the rulemaking has merit. I also agree

with the suggestion in the letter that we only begin on such a course of action following the Forest Service’s revision of their planning regulations under the National

Forest Management Act. This is especially important since the NEPA process, to be

effective, must be well integrated with the decisionmaking process. In short, after

the Forest Service’s revision of their planning regulations has been completed, it

will be appropriate for the Forest Service to revise their current NEPA procedures.

At that time, I will consult with the Chief of the Forest Service regarding the proposals in the November 1995 letter and report back to you and Senator Craig on

the NEPA implementation issues.

Question 3. According to CEQ regulations, Environmental Assessments (EAs) are to be brief concise analyses which assist a Federal agency in determining whether

a proposed action will have significant impacts and therefore require an Environmental Impact Statement (EIS).

A. Please provide the number and length of EAs, by Federal agency, for each of the last 5 years. Response. Our most recent data on environmental assessments is CEQ’s 1992 survey of Federal agencies and EAs. In 1992, Federal agencies prepared 45,000 EAs,

and agencies continue to prepare approximately 50,000 EAs each year. Only 26 percent of the agencies responding to the 1992 EA Survey indicated that their EAs do

not exceed 10–15 pages, as recommended by CEQ. Another 26 percent of the agencies estimate the average EA length at 26–45 pages. Forty-six percent of the agencies prepare EAs averaging between 16–60 pages. Six agencies (13 percent) responded that the average length is between 46–100 pages. Two agencies stated that

their average EA is 100 pages. Attached please find the list of 44 agencies responding to the EA survey, the chart regarding number of EAs prepared by agency and

the chart of average length of EAs by agency. (See Attachment).

B. How many of these EAs resulted in the preparation of EISs?

Response. Twenty-eight percent of the respondents to the 1992 EA Survey stated

that they precede EISs with EAs less than 1 percent of the time. Further, the same

number simply never prepare EISs, while 4 of the respondents said their agencies

‘‘rarely’’ precede EISs with EAs. Thus, 67 percent of the respondents, rarely, if ever,

precede EISs with EAs, either because they do not prepare EISs, or, as many agencies noted, do not have to prepare an EIS based on experience and NEPA guidance.

The 67 percent figure rises to 74 percent when calculating those agencies that precede less than 10 percent of their EISs with EAs. Four agencies precede EISs with

EAs 100 percent of the time.

C. How many EISs were preceded by EAs?

Response. The 1992 EA Survey reflects that most of the 44 Federal agency respondents do not precede EISs with EAs. As set form above, 74 percent of respondent agencies stated that less than 10 percent of their EISs are preceded by EAs.

D. ACED does not have this information, why not?

Response. Not applicable.

Question 4. Given the wide range of actions which require an EA—everything

from the Longhorn pipeline in Texas to the renewal of an unchanged grazing permit

in Wyoming—Ms. McGinty stated that ‘‘CEQ is aware that further clarification of

the use of EAs would be useful, particularly in the area of public participation. ‘‘

See S. Hrg. 104–774 at p. 61 (Sept. 26, 1996.) What clarification has CEQ provided

over the last 3 1⁄2 years on the use of EAs?

Response. In the past 3 1⁄2 years, CEQ has provided clarification on the use of environmental assessments in its Environmental Justice Guidance under the National

Environmental Policy Act, published on December 10, 1997. The guidance makes

clear that EAs also require a discussion of socio-economic considerations.

DRAFT MEMORANDUM

FROM ACTING CHAIR TO HEADS OF FEDERAL AGENCIES

RE: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act

DATE: April ,1999
36

The purpose of this Memorandum is to urge agencies to actively solicit the partici- pation of State, tribal and local governments as ‘‘cooperating agencies’’ in implementing the environmental impact assessment process under the National Environmental Policy Act (NEPA). 40 C.F.R. § 1508.5. As soon as practicable, but no later

than the scoping process, Federal agency officials should identify State, tribal and

local government agencies which have jurisdiction by law and or special expertise

with respect to any environmental impact involved in a proposed action, or a reasonable alternative to a proposed action, that requires the preparation of an environmental impact statement. The Federal agency should hen determine whether such

non-Federal agencies are interested in assuming the responsibilities of becoming a

cooperating agency under 40 C.F.R. § 1501.6.

The benefits of granting cooperating agency status include disclosure of relevant

information early in the analytical process receipt or technical expertise and staff

support, avoidance of duplication with State tribal and local procedures, and establishment of a mechanism for addressing intergovernmental issues. If a non-federal

agency agrees to become a cooperating agency, agencies are encouraged to memorialize in writing their specific expectations, roles and responsibilities.

Agencies are reminded that cooperating agency status neither enlarges nor diminishes the decisionmaking authority of either Federal or non-Federal entities. However, cooperating agency relationships with State, tribal and local agencies helps to

achieve the direction set forth in NEPA to work with other levels of government ‘‘to

promote the general welfare, to create and maintain conditions under which man

and nature can exist in productive harmony, and fulfill the social, economic, and

other requirements of present and future generations of Americans.’’ Considering

NEPA’s mandate and the authority granted in Federal regulation to allow for cooperating agency status for State, tribal and local agencies, cooperator status for appropriate non-Federal agencies should occur routinely.

LIST OF 44 AGENCIES RESPONDING TO EA SURVEY AND INITIALS AS THEY APPEAR IN

TABLES

Department of Agriculture

• Agriculture Stabilization and Conservation Service (ASCS)

• Animal Plant Health and Inspection Service (APHIS & APHIS/BP)

•Farmers Home Administration (FHA)

•Food Safety and Inspection Service (FSI)

•Forest Service (USES)

• Rural Electrification Administration (REA)

Department of Commerce

• Economic Development Administration (EDA)

Department of Defense

• Air Force (Air Force)

• Army (Army)

• Marine Corps (USMC)

• Navy (Navy) Department of Energy (DOE)

Department of Housing and Urban Development (HUD)

Department of Interior

• Bureau of Land Management (BLM)

• Bureau of Reclamation (RECLAM)

•Fish and Wildlife Service (F&WS)

• Minerals Management Service (MMS)

• National Park Service (NPS)

• Office of Surface Mining (OSM)

Department of Justice

• Bureau of Justice Statistics (BJS)

• Immigration and Naturalization Service (INS)

Department of Labor

• Mine Safety and Health Administration (MSHA)

Department of Transportation

•Federal Aviation Administration (FAA)

•Federal Highway Administration (FHWA)

•Federal Railroad Administration (FRA)

•Federal Transit Administration (FTA)

• Maritime Administration (MARAD)

Department of the Treasury

•Federal Law Enforcement Training Center (T-FLETC)

• Bureau of Alcohol, Tobacco and Firearms (T-ATF)
37

Department of Veterans Affairs (VA)

Arms Control and Disarmament Agency (ACDA)

Consumer Product Safety Commission (CPSC)

Environmental Protection Agency (EPA)

Export-Import Bank of the United States (EXIM)

Federal Communications Commission (FCC)

Federal Energy Regulatory Commission-OHL (FERC-OHL)

Federal Maritime Commission (FMC)

General Services Administration (GSA)

Interstate Commerce Commission (ICC)

Marine Mammal Commission (MMC)

National Capital Planning Commission (NCPC)

Tennessee Valley Authority (TVA)

Nuclear Regulatory Commission (Office of Nuclear Reactor Regulation) NRC/NRA

U.S. Postal Service (USPS)

Small Business Administration (SBA)
38
39

RESPONSES BY GEORGE FRAMPTON TO ADDITIONAL QUESTIONS FROM SENATOR

BENNETT

Question 1. Do you have any knowledge of communications, ongoing plans or ac- tivities designed to create additional national monument sites anywhere in the

United States, beyond the discussions regarding the proposed monument on the Arizona Strip?

Response. Nothing beyond the letter from the President to Secretary Babbitt in

November and made available to Congress. As you know, the President wrote Secretary Babbitt asking him for his advice on whether any area warranted national

monument protection. The President has received no such recommendation or information from Secretary Babbitt to date and other than the conversations that Secretary Babbitt has had with Congress, I am aware of no such recommendations or

information.
40

Question 2. I am sure that the Committee members would be very interested in learning which States would be impacted by such plans if there are any. Please tell

us all of the areas and States that have been, currently are, or could be included

in any discussions that have been held. Response. See answer 1 above.

Question 3. If you are not personally aware of any other discussions, will you re- view this matter with your staff as well as the appropriate individuals in the various Federal agencies that might be impacted. If it is the case that there are no

plans to use the Antiquities Act to create additional monuments, please provide me

written assurance that this is the case within 2 weeks of receiving these questions. Response. Only the President has the authority under the Antiquities Act to cre- ate a national monument. To my knowledge, my staff and I are not aware of any

plans for the President to do this.

Question 4. Do you feel that the Antiquities Act which was passed in 1906, long before the passage of FLPMA, NEPA, the National Park Service Organic Act, or the

Wilderness Act is still an appropriate vehicle for public land management decisions?

Is it your intention that this authority will be used again during the remaining tenure of the Clinton Administration?

Response. I believe that the Antiquities Act is still an appropriate vehicle for certain public land management decisions. As you know, the President’s authority

under the Antiquities Act is available only to the extent that the land in question

is land already in public ownership, and has no application to land that is privately

owned. The decision to invoke the executive authority under the Antiquities Act is

not available to the Chair of CEQ, but is the President’s alone. I would not presume

to speak for the President on this matter with respect to the remainder of his term.

RESPONSES BY GEORGE FRAMPTON TO ADDITIONAL QUESTIONS FROM SENATOR CRAPO

Question 1. Congress and the courts have repeatedly confirmed the authority of

States to allocate and administer water within their borders. However, I am deeply

concerned that the Administration is setting the stage for ignoring long-established

statutory provisions concerning State water rights. Can I have your commitment

that the Endangered Species Act, Clean Water Act, Federal Land Policy Management Act, national designations, and other Federal initiatives are not used to erode

State sovereignty over water?

Response. The Administration’s initiatives proceed from the principle that we

need to strengthen our partnership with States both in protecting ground water and

surface water, and in helping resolve disputes among States with conflicting claims

to water resources. This principle recognizes that State law provides the foundation

for our water right’s system.

As the Committee is aware, there are particular circumstances in which States

have disputed the scope of Federal authority to protect waters of the United States

or to protect other water resources that have been entrusted to Federal management. I do no intend to seek any change in the positions or roles that agencies have

asserted in these particular matters over the course of the Administration, and I

intend to make myself available to States with concerns that agency conduct may

have impinged State authority over water resources.

Question 2. Current Federal land management agency actions demonstrate a clear

policy direction to decrease access by the public to Federal lands. I have visited communities in Idaho that have been greatly impacted by these actions. Recognizing the

role of the CEQ in guiding these policies, is it appropriate for National Forests to

be designated ‘‘closed-unless-posted-open.’’ ?

Response. CEQ has had no involvement to my knowledge in these policies that

involve decreasing access by the public to Federal lands. As I understand it, the

policies your question raises about national forest road postings are decided on a

forest-by-forest basis at a local level.

Question 3. If this must be determined on a case-by-case basis, is it your policy

that the public is restricted from public lands except where designated by land managers?

Response. Many of the public lands are administered under multi-use statutes.

However, not all uses are appropriate for all lands. The appropriate use is determined by the processes set out by law and processes, which generally involve local

land users and stakeholders.

Question 4. At the recent Andrus Symposium on public land management in

Boise, Idaho, a number of agency officials, including Chief Dombeck and Director

Clark, indicated their interest in having more collaborative stewardship with local
41

communities. I support their interest in this, but am concerned that policy direction

from Washington poses constraints on the Federal Advisory Committee Act (FA CA)

process. What steps are you taking to eliminate these constraints to FACA and increase local public involvement in decisionmaking?

Response. The Administration is committed to working with local communities to

forge partnerships for more collaborative stewardship. There was concern voiced

several years ago that the Federal Advisory Committee Act prohibited such local

government inclusion. Fortunately, FACA was amended specifically to allow State

and local government participation where a statute, such as NEPA, encouraged public involvement. To the extent that your question raises concerns about the number

of authorized advisory committees, I would be pleased to review the situation and

see if the number of committees in existence can and should be increased.

Question 5. Your predecessor, Katie McGinty, was an instrumental supporter of

the Enhanced Training in Idaho project as the Idaho congressional delegation, the

Air Force, the Department of Interior, and the State of Idaho worked to enact land

withdrawal legislation to build this range. Can we count on your support as we continue the effort to develop this important Air Force training range.

Response. I am aware of CEQ’s historical involvement and support of this project

and would be more than happy to work with the Idaho delegation should there be

a role for CEQ to play in the future.

(43)

NOMINATION OF TIMOTHY FIELDS, JR.

WEDNESDAY, MAY 5, 1999

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

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

Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding.

Present: Senators Chafee, Warner, Crapo, Baucus, Lautenberg,

and Wyden.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good morning. The purpose of today’s hearing

is to consider the nomination of Mr. Tim Fields as Assistant Administrator of EPA’s Office of Solid Waste and Emergency Response.

I am pleased to welcome everyone here today. Mr. Fields, I believe you have the members of your family here. Would you like to

introduce them to us?

Mr. FIELDS. Yes, sir, thank you, Mr. Chairman.

I have with me, and I will ask them to stand, my wife, Emma;

my son, Stephen Fields; my mom, Clara Fields; and my dad, Tim

Fields, Sr. And they are all here to visit today with me, and thank

you for having me introduce them.

Senator CHAFEE. Fine, well, we are delighted that you all were

able to be here this morning, and I am very pleased to welcome you

to this hearing.

Mr. Fields has been employed by EPA in a variety of positions

for more than 25 years. Most recently, on February 17, 1997, Mr.

Fields was appointed as Acting Assistant Administrator for the Office of Solid Waste and Emergency Response, which has the

unpronounceable acronym of OSWER, which is an odd one.

Prior to this, Mr. Fields served for 3 years as Principal Deputy

Assistant Administrator for OSWER. In this capacity, he was responsible for Superfund, hazardous and solid waste management

under the so-called RCRA Act, and environmental cleanup under a

number of other Federal laws.

Mr. Fields was Director of EPA’s Superfund Revitalization Office

for 2 1⁄2 years. He was Deputy Director of EPA’s Superfund Office

for 2 1⁄2 years, Director of EPA’s Emergency Response Division for

4 1⁄2 years, and Deputy Director of the Hazardous Site Control Division for a 1 1⁄2 years.
44

In addition to these positions, Mr. Fields has held a variety of

supervisory and staff positions in the Office of Mobile Sources and

the Office of Solid Waste. Since September 1997, he has also served

as Chairperson of the EPA Human Resources Council.

Mr. Fields has a Bachelor of Science degree in Industrial Engineering from Virginia Polytechnic Institute and Virginia State University. He has a Master of Science in Operations Research from

George Washington University, and had an additional year of graduate studies at Ohio State University.

Now this nomination has not proceeded as quickly as others that

the committee considered recently. Mr. Fields has been serving in

an acting capacity for nearly 27 months, since his predecessor, Elliott Laws, resigned in early 1997. The White House nominated another individual for this position, but that was later withdrawn and

Mr. Fields was selected as the new nominee.

Mr. Fields might have been confirmed last year, had his nomination been received by the committee just a few days earlier than

it was. The committee acted on a large number of nominations,

right up to the end of the last Congress. And all those individuals

were ultimately confirmed, prior to adjournment.

Since the President resubmitted Mr. Fields’ nomination to the

committee in January of this year, we have examined an important

decision that EPA made regarding the enforcement of a December,

1998 deadline for underground storage tanks to comply with Federal law. I will have some questions on the substance of that policy,

and Mr. Fields’ role in the EPA’s decision, when we get to the question period.

Now, Senator Baucus, I am sure, has a statement. And perhaps

other committee members will, too. I do not see Senator Baucus,

but he should be here soon.

But I think we can proceed. You have a statement, Mr. Fields.

Why do not you rise and raise your right hand, if you would,

please.

Do you swear to tell the truth, the whole truth, and nothing but

the truth, so help you, God?

Mr. FIELDS. I do, sir.

Senator CHAFEE. Fine, all right, why do not you proceed with

your statement, Mr. Fields?

STATEMENT OF TIMOTHY FIELDS, JR., NOMINATED BY THE

PRESIDENT TO BE ASSISTANT ADMINISTRATOR, OFFICE OF

SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Mr. FIELDS. Thank you, Mr. Chairman. It is a great honor for me

to be here before you and the other members of the committee who

will be joining us.

As you said, I have been a career public servant for almost 28

years now. I am greatly honored to be here today to testify before

this committee.

My family and I are both grateful and honored that President

Clinton has nominated me for the position of Assistant Administrator for Solid Waste and Emergency Response.

I look forward with great enthusiasm to the challenge and the

opportunity of serving as Assistant Administrator and directing the
45

waste management and environmental cleanup programs at EPA.

I am willing to meet with any other Senators, and talk to members

of your staff, as you consider this nomination.

I am especially proud today to have my family with me. They are

my greatest supporters. I thank them for being here and being

present.

My wife, Emma, has been my greatest supporter for more than

26 years. We have been keeping each other together and straight

for a long time. And I thank her for all she has done to be a supporter for me.

My son, Stephen, I thank him for even being here. He is in the

midst of final exams right now, in college, as he graduates next

week.

I thank him for making the sacrifice to come here and be here,

in the middle of his exam schedule. I told him to stay, but he decided to come anyway. That speaks well of him, but I hope it does

not impact on his exam grades.

[Laughter.]

Mr. FIELDS. I am also thankful for my parents. My mom and dad

have been great for me. A lot of people say I act like my dad and

look like my mom.

My dad is my hero. He is why I became an engineer. My father,

at an early age, when I was growing up, built his own house. He

put in all the electricity. He put in water and heating and bathroom facilities when we formerly were using outhouses. He cut my

hair, he fixed my cars, and he still does that, even today. So I

thank him for being a great role model for me.

My mom, she has been a great friend. She has been a great supporter. When I was growing up, I always wondered, people used to

always come down around our house. We lived in a rural community. And they would always come visit. I thought they were visiting me. I found out later that they wanted to be near my mom’s

cooking.

So, you know, it has been a tremendous support system. And my

mom and dad have been supporting me for more than 51 years.

And I thank them for being here today. It is really, really special

that they are here.

Senator CHAFEE. Well, we are certainly glad you are all able to

be here. That is a wonderful thing. And I know Senator Lautenberg

joins me in welcoming you, your son, your wife, your parents, to

this hearing today.

Senator LAUTENBERG. It does intimidate us, I will tell you. We

had better behave.

[Laughter.]

Mr. FIELDS. Well, Mr. Chairman, Senator Baucus, and Senator

Lautenberg, and other members of the committee who will join us,

I did begin my career at EPA in 1971, about 6 months after EPA

was formed.

A lot has changed at EPA since that time. What has not changed

is my dedication to public service and my strong commitment to

EPA’s mission to protect public health and the environment. I

know that public service is a special calling for me.

As Principal Deputy Assistant Administrator for 3 years, and

Acting Assistant Administrator during the past 2 years, in
46

OSWER, and Senator Chafee, you did a good job of pronouncing

that acronym, I have had the opportunity to be involved in some

major program initiatives; the Superfund program reforms being a

major component of that.

I was tasked by the Administrator to lead and direct the three

rounds of Superfund administrative reforms. I am pleased to tell

you that the high priority on Superfund by this Congress and the

Clinton Administration has resulted in some significant improvements.

We have got 599 sites that are now construction completed. We

have got 90 percent of the sites that are either construction complete or construction underway.

So we have done a lot to get cleanup done. We have accelerated

cleanup by more than 20 percent, and reduced costs by about 20

percent, with more than a billion dollars in cost savings and remedy updates over the last 3 years.

We have been fair. More than 18,000 small parties have been

settled out, and we have offered orphan share funding for more

than 70 parties over the last 3 years. At the pace we are going, we

are projecting that 85 percent of the sites will have construction

completed by the end of 2005.

Our goal in Superfund is to build on that success administratively, and work with Congress to pass responsible Superfund legislative reform. We would suggest that there is a lot of agreement

of certain reforms like liability relief for perspective purchasers, innocent landowners, contiguous property owners and small generators and transporters of municipal solid waste.

We would hope that people would focus on some of those

changes, enact them, and reinstate the taxes, and allow us to have

the resources we need to finish the job of getting these sites

cleaned up.

Brownfields has also been a program that I have spearheaded

and led the effort on at EPA. I led the direction and the development of the Brownfields Action Agenda in 1995.

That effort started with three communities, began to spread to

50 more, and now we are involved in more than 250 communities

around the country, where we have given them grants to provide

assistance to the assessment and cleanup of Brownfields sites in

communities around the country.

It has resulted in more than a billion dollars in other private and

public sector investment, and created more than 2,500 jobs in the

last couple of years.

I will continue to build on the success of this initiative, which

began as an EPA initiative, and has now become an Administration-wide initiative.

Third, one of my top priorities for the near term will be the Resource Conservation and Recovery Act (RCRA) correction action

program. We want to implement administrative changes to RCRA,

just like we have done for Superfund. I welcome the opportunity

to work with this committee on making those changes, as well.

The RCRA corrective action program has 1,700 high priority

sites. We want to work with you to develop a program and game

plan as to how we can most effectively address those sites.
47

I am ready to provide leadership to meet this challenge. States

are largely responsible for overseeing RCRA corrective action cleanups. But I believe they need national and program leadership from

EPA to help get the job done.

Last, in closing, I would like to thank the employees of the Office

of Solid Waste and Emergency Response, and many other partners

at EPA, in the Enforcement Office, the General Counsel’s Office,

Congressional Affairs Office, all the folks who have worked to support me over the years, as well as our EPA regional offices and the

labs, who work hard to implement the Superfund, the Brownfields,

the RCRA Hazardous and Solid Waste Program, the Underground

Storage Tank Program, the Chemical Emergency Preparedness and

Prevention Program, the Federal Facilities Oversight Program, the

Technology Innovation and the Oil Pollution Programs on a daily

basis.

I could not do my job without that tremendous support. These

are all talented and dedicated Federal employees, who are critical

to the success of these programs. I pledge my support to them, as

well as this committee, as we work together to provide safe and

healthy environments for ourselves, for our children, our grandchildren, and future generations.

In closing, Mr. Chairman, I want to thank you for your time and

the opportunity to appear before this committee. I ask this committee for your support of my nomination as Assistant Administrator

for Solid Waste and Emergency Response at EPA. I pledge to faithfully execute the laws and regulations within my responsibility.

I look forward to working with this committee. And I will be

happy to answer any questions at this time.

Senator CHAFEE. Well, thank you very much, Mr. Fields.

And Senator Baucus, do you have a statement that you would

like to make?

OPENING STATEMENT OF HON. MAX BAUCUS,

U.S. SENATOR FROM THE STATE OF MONTANA

Senator BAUCUS. Actually, I would, Mr. Chairman, like to say a

few words about the nominee.

Since the nominee is a native Virginian, Senator Warner was

going to be here this morning to introduce Mr. Fields. But he is unable to attend this hearing, because of the crisis in Kosovo, and he

has several meetings on that subject he is attending.

And I would just like to, in the meanwhile, just mention a little

bit of Mr. Fields’ very considerable background, particularly in

solid waste and emergency response.

As a career employee of EPA since its inception in 1971, he actually is a very rare breed, in the length of time he has served with

such distinction.

Even more remarkable, he received the highest award for civil

servants, the Presidential Rank Award for Distinguished Executive

Service—not once, but he received that highest award four times.

He was twice recommended under President Bush and twice recommended under President Clinton. And he is the only EPA employee to be so honored, and has received four times the highest

civil service award.
48

Mr. Chairman, we have a nominee of exceptional ability. He has

demonstrated commitment to public service more than anyone I

know. And these are qualities that I think will help serve him in

the programs he administers very well.

He has been front and center at the heart of a lot of the reforms

in Superfund. He has dedicated experience. He has long tenure, a

great list of personal accomplishments. And I know that he is the

kind of man who focuses on getting solutions to problems today.

Rather than bellyaching or complaining about something not getting done right, he just settles down and gets the job done.

And I just want to commend you, Mr. Fields, and thank you for

all the work that you have done for not only EPA, but for our country.

Mr. FIELDS. Thank you, sir.

Senator CHAFEE. Senator Lautenberg?

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Yes, thanks, Mr. Chairman.

I feel like now, having read the book, we are going to the prologue and see what it is about. Because we have heard from Mr.

Fields. We have met the three generations, which is nice to see. I

am sure that your family is proud of you. And we know that you

have a good support system, not only on a personal basis, but within this institution, as well.

And it is deserved, because you have done such a good job, Mr.

Fields. Rarely, as Senator Baucus has said, have we had a nominee

come before us with so much direct experience to qualify him for

the job??

And as you know, Mr. Fields comes to us, not from a political

background, but from the field of engineering. He came to the attention of the Administration not from the world of politics, but

from long and outstanding service as a career employee.

You mentioned that you started in the early 1970’s, and during

that time you have worked on matters that relate to hazardous

waste, since well before the passage of Superfund in 1980.

As you well know, it has been a program that I have supported

very aggressively, because I see the results. And we are pleased

that we are on target to complete the task that was taken those

years ago. It took a long time to get it rolling, but it is rolling now.

And Mr. Fields served as Deputy Assistant Administrator in the

Office of Solid Waste and Emergency Response from 1994 through

February 1997. And at that time, he was appointed to his current

position as Acting Assistant Administrator for OSWER.

During that time that Tim Fields has been working in the top

management of the waste programs, the program has undergone

major changes and major improvements. In fact, as just about everyone involved in the Superfund Program agrees, there have been

significant strides made in the number and the pace of the sites

being cleaned up, with your hand very much involved.

According to a report issued by the General Accounting Office, by

the end of this fiscal year, all cleanup remedies will have been selected for 95 percent of the non-Federal NPL sites. That is over

1,100 sites.
49

Additionally, about 990 National Priority List sites have had

final cleanup plans approved. Approximately 5,600 emergency removal actions have been taken at hazardous waste sites to stabilize

dangerous situations, and to reduce the threat to human health

and the environment.

Almost 31,000 sites have been removed from the Superfund inventory of potential waste sites, to help promote the economic redevelopment of these properties. That is a very significant program.

During this same time, EPA has worked to improve the fairness

and the efficiency of the enforcement program, even while keeping

up the participation of potentially responsible parties in cleaning

up their sites.

EPA has negotiated more than 400 de minimis settlements with

over 18,000 small parties, which gave protection for those parties

against expensive contribution suits brought by others to try oftentimes to divert attention to the polluter largely responsible.

So since fiscal year 1996, EPA has offered orphan share compensation of $145 million at 72 sites to responsible parties who

were willing to step up and negotiate settlements of their cases.

And EPA is now offering this at every single settlement, to reward settlers and reduce litigation, both for the Government, and

with other private parties.

And I had an interesting meeting with a fellow named Jan

Schlichtmann, who was the subject of a movie called Civil Action.

And I was interested to know that this lawyer, who brought the famous case up in Woburn, is now engaged not in litigation, but in

negotiating settlements, and has decided that there is a better way

to go.

And that is pretty astounding, when you think about it. Because

often, there are such juicy fees that hang out there as a target for

reward. But people are getting more sensible, totally, about the

way we deal with the Superfund Program.

So other improvements besides the few highlights we have mentioned, such as instituting the targeted review of complex and high

cost cleanups, prior to remedy selection, have reduced the cost of

cleanups, without delaying the face of cleanups.

In short, EPA’s administrative reforms have significantly improved the program by speeding up cleanups and reducing senseless litigation, and making the program fairer, faster, and generally

more efficient.

And I think it is fair to say that Mr. Fields deserves a significant

part of the credit for these strides. In fact, I think that most of the

people who have dealt with Tim Fields, in his current acting position, would agree that his approach is unflaggingly constructive,

and that he is devoted to making the programs that he administers

work.

I understand that many outside groups support this nomination,

including the Hazardous Waste Action Coalition, the Association of

State and Solid Waste Management officials, the Petroleum Marketers Association of America, and the InterState Oil and Gas

Compact Commission.

They are, by no means, uninterested observers in this action.

They say, Mr. Fields, that you deserve support because of the way

you have handled your job.
50

So I want to put into the record, Mr. Chairman, a copy of their

letter in strong support of Mr. Fields. And I look forward to working with him in the future, continuing our joint efforts to clean up

hazardous waste sites and protect the health and future welfare of

our citizens.

[The letter from Hazardous Waste Action Coalition follows:]

HAZARDOUS WASTE ACTION COALITION

Washington, DC 20005, February 19, 1999.

The HONORABLE JOHN H. CHAFEE,

Dirksen Office Building,

U.S. Senate,

Washington, DC 20510.

DEAR SENATOR CHAFEE: The Hazardous Waste Action Coalition (HWAC) is a national trade association representing the leading firms that provide multimedia environmental assessment and remediation services across the United States. Our

members work to implement this country’s hazardous waste laws in an expeditious,

cost-effective manner to ensure protection of human health and the environment.

HWAC strongly endorses the nomination of Tim Fields to be the Assistant Administrator of EPA’s Office of Solid Waste and Emergency Response (OSWER). Mr.

Fields has been responsible for implementing EPA’s Superfund Administrative Environmental Resources Reforms, which have helped to improve the Superfund program in the absence of much needed comprehensive legislative reform. Mr. Fields’

breadth of experience in Superfund, RCRA and the other activities undertaken by

EPA’s OSWER office is matched by few people either inside or outside of the Federal Government. Our experience is that Mr. Fields is a consensus-builder, and is

committed to getting the job done. We are confident he will work hard to promote

responsible implementation of Congressional initiatives. Finally, Mr. Fields knows

the cleanup business and is extremely well-suited to guide EPA’s hazardous and

solid waste programs into the next century.

We urge your prompt confirmation of Tim Fields, to be EPA’s Assistant Administrator of the Office of Solid Waste and Emergency Response (OSWER). Please feel

free to contact me at 202–828–7368, or Terre Belt, HWAC’s Executive Director, if

you have any questions.

Sincerely,

DANIEL E. KENNEDY, President.

Senator LAUTENBERG. And I hope that the process will move expeditiously, and that you will be able to assume the full responsibility, as I think you have earned it.

Mr. FIELDS. Thanks very much.

Senator CHAFEE. Thank you very much, Senator.

Senator Crapo?

Senator CRAPO. Thank you, Mr. Chairman. I have no opening

statement at this time.

Senator CHAFEE. All right, now we will have a period for questions.

Mr. Fields, on December 9 of last year, you issued a memorandum on the subject of EPA’s enforcement policy with respect to the

December 22 deadline for upgrading, replacing, or closing leaking

underground storage tanks. As you recall, the deadline was to be

December 22.

Up until that point, everyone at EPA, from the Administrator

down, had repeatedly stated that the deadline would be enforced.

We were so informed that you were going to stick by that deadline.

Your December 9 memo, however, seemed to reflect a different

position, essentially giving small businesses, the so-called ‘‘mom

and pop’’ operations, and State and local governments, that is, local

fire departments or police departments, or local governments—

what you did was to give them an additional 6 months to come into

compliance.
51

Now, obviously, the ones who had made the effort to comply were

resentful of the extension that was given to some others. And I

have great trouble understanding why you changed the policy.

Could you tell us what went into your thinking?

And, obviously, the Administrator was involved, too. I am not

saying she was not involved. But if I am correct, it was you who

issued the December 9 memo?

Mr. FIELDS. That is correct, Senator. I will be happy to describe

what led to that policy change.

Senator CHAFEE. And particularly, I am concerned about giving

the extension at all. My own view is, you set deadlines, and you

and the Agency had constantly said you were going to stick by the

deadline, which is fine.

Mr. FIELDS. Right.

Senator CHAFEE. But go to it.

Mr. FIELDS. You are right. We did issue a policy, signed jointly

by me and the Assistant Administrator for Enforcement and Compliance Assurance, Steve Herman, on December 9, to change our

enforcement and compliance assistance strategy, for how we address underground storage tanks.

We did not change the deadline. We would have to amend the

regulations in order to change the deadline. But I want to tell you

what led to the change in policy.

We determined that there were significant changes in the projections of the number of people that would be in noncompliance from

our earlier projections. In December, 1997, one year before the

deadline, we were projecting that roughly 15 percent of the universe would be in noncompliance, about 165,000 tanks.

As we were approaching the December, 1998 deadline, we were

discovering and we were projecting that 350,000 tanks would be in

noncompliance, more than double the number of tanks that we

were projecting a year earlier.

So that, obviously, caused some issues. We were concerned with

the reality of a more than double noncompliance universe than we

were projecting a year earlier. So that was a consideration that informed our judgment that we had to do something to bring those

into compliance.

Second, we recognized that a lot of those people that were still

in noncompliance, the 350,000, were small businesses, moms and

pops, that had not taken the steps to bring their tanks into compliance, and critical local government service organizations, like fire

departments, police departments, hospitals, et cetera.

So given the large number of people that were going to be noncomplying by December 22, 1998, and the makeup of some of those

people, we said, what is the best way, how do we focus our resources, and bring those remaining tanks into compliance; 550,000

had been brought into compliance; 1.2 billion had closed during

that 10-year period. How do we get these last 350,000 into compliance?

And so we then decided that we needed a combination of enforcement activity and compliance assistance activities to bring that remaining universe into compliance.

So we formulated with the Administrator and the Enforcement

Office and my office a dual strategy which said, high enforcement
52

priority will be the Federal Government, first of all. We have got

to set a good model and get our act together.

So the Department of Defense, Department of Energy, we have

got to make sure we are meeting the deadline. Large, multiple complex facilities and facilities near sensitive ecosystems would be high

priorities.

And last, we said, for the mom and pop, and the local government support services, we would use compliance assistance. They

would have to self-disclose, tell us that they are in noncompliance,

and we would issue a penalty to them, and put them on a compliance agreement to bring their tanks into compliance.

We thought that was the best approach to bringing these remaining, roughly 300,000, tanks into compliance as quickly as possible.

That is the thinking that led to this.

I recognize, you are right, Senator, it was a policy change. As I

have communicated to your staff, in the future, I want to make

sure we have a better process for communicating when the Agency

makes major policy pronouncements, that we have an opportunity

to discuss and inform this committee ahead of time, and have a dialog about it.

But that is what led to our change in policy, those considerations.

Senator CHAFEE. Well, yes, there is no question that the change

in policy did cause deep concern with me and others.

It is my understanding, however, that the facts I have are somewhat different from the facts that you have described. And that is,

the number of tanks that were not meeting the standards.

Let us see, in the summer of 1998, we have information that

shows over 536,000 tanks, 60 percent of all the underground storage tanks, were not equipped to meet the upgrade requirements.

That was back in the summer of 1998, the summer.

In the fall, it appears, as of November, 1998, approximately

395,000 would be out of compliance. In other words, it was not

more. It was fewer, which does not conform with the situation as

you have outlined it, previously.

Mr. FIELDS. Well, I agree the data fluctuated through the year.

The fact is, Senator, that as I stated earlier, that we were projecting on December, 1997, 165,000 tanks would be in noncompliance,

15 percent of the universe.

As we were approaching the deadline, in November, 1998, we

were now projecting 350,000. I can not speak for what the numbers

were, throughout the year.

I do want to point out those numbers vary. For example, I have

got data here now that I can provide to the record that shows that

in 13 States that said they had a certain percentage of tanks in

compliance on December 22, 1998, they now have reduced the number of tanks that they say were in compliance.

Some States, for example, said 75 percent of the tanks in our

universe were in compliance. They now tell us that that was

wrong. The number really should have been 55 percent. So the

numbers varied during the year.

I did not track the numbers throughout the year. But all I can

tell you is that during the fall of 1998, I was seeing that the num-
53

bers had more than doubled, from what had been communicated to

me in December 1997.

And that was a consideration. It was not the only consideration.

But the fact that we had a large number of tanks that were in noncompliance, what is the best strategy for bringing them into compliance, considering the make-up of that universe, small mom and

pops, you know, Federal Government facilities, large complex facilities—what is the best strategy?

Given you have got 300,000 tanks, and we all, this committee,

and me, as well, share a common goal, what is the best approach

to getting all of the two million tanks that existed in 1988 into

compliance as quickly as possible? A great job has been done, all

except 300,000, and what is the best approach to do that?

I can not quibble over, you know, how the numbers fluctuated.

But all I know is that the numbers had more than doubled from

a year earlier.

Senator CHAFEE. OK, fine, thank you. My time is up.

Senator Baucus?

Senator BAUCUS. Thank you, Mr. Chairman.

Thank you very much, Mr. Fields.

I might say, Mr. Chairman, and this is just in passing, that the

Montana Department of Environmental Quality, in October, 1998,

did an analysis of this deadline.

And it concluded that it would have some effect, not great effect,

if it were enforced vigorously, but that the loss of all service stations in the communities may have economic health effects, even

though fuel might be made available in nearby communities.

The point being, in rural States, where a station goes down, it

causes great hardship. It is kind of like the theory of perspective

reimbursement in hospitals. You know, the theory, the patient survived, but some could always go to the next hospital. But in rural

areas, that just does not apply.

Mr. Fields, I would like you to just outline for us and remind us

of some of the administrative reforms that you are part of and

helped put together in the Superfund Program. What are some of

the things that you have done to help speed cleanups and get rid

of some of the paperwork, and helped make the program more efficient?

Mr. FIELDS. Sure, Senator, I will be happy to give you some examples of that. We implemented, as I indicated, three rounds of administrative reforms during the last 6 years.

The reforms all had different themes. In the first round of reforms, we focused on how we can be more fair. We implemented a

lot of reforms on de minimis settlements, and how we can get more

small parties out of the system, mixed funding, and allocation pilots that we would test new ways to be more fair to parties involved in the system.

The second round of reforms was focused on Brownfields, and

how we can foster more economic redevelopment of sites, while we

are assessing them and cleaning them up. And that led to the

Brownfields Action Agenda.

And the third round of reforms was focused on how we could

speed the pace of cleanup, how we could provide more consistency.
54

And that led to, for example, the updating of the remedy initiative that led to saving time and money, based on new science and

technology, more than a billion dollars over 3 years, the National

Remedy Review Board that has saved more than $43 million in

terms of looking at more than 30 site remedies, implementing presumptive remedies to speed up cleanup, soil screening levels for

more than 100 chemicals commonly found at Superfund sites, guidance on future anticipated land use, so we would probably consider

industrial versus commercial versus residential land use in making

remedy decisions.

Those are just examples of some of the reforms we have implemented. We think they have had a tremendous impact. Our data

shows that we have saved more than 20 percent in time.

It now takes an average of 8 years, from the time a site is put

on the NPL until construction is complete. We have saved tremendous costs. And I think we would be judged by most people to be

more fair.

Senator BAUCUS. Could you give us some idea of how much of a

cost reduction and how much of a delay in time?

Mr. FIELDS. A 20 percent reduction in time—we have gone from

10 years to 8 years in the time it takes to go through the

Superfund process.

We have saved 20 percent, on the average. The average cost of

a Superfund site cleanup now is $20 million; whereas, 5 or 6 years

ago, it was $25 million, on the average, for a Superfund site cleanup. We have saved more than a billion dollars in projected costs in

the future, from the updating remedies initiative.

So I think those are just some examples, and even we have gotten letters and endorsements from the regulated community that

agree that those reforms are working, and time is being saved, and

cost is being saved, as well.

Senator BAUCUS. Were you involved in the Anaconda Oil Works

project?

Mr. FIELDS. Yes, I was.

Senator BAUCUS. Could you explain that to the committee,

please? I think that is quite a success story.

Mr. FIELDS. That is a tremendous success story. And that is a

contaminated mine property in Butte, Montana. That site was

cleaned up, and construction is underway. But we were successful

in working with the responsible party, with the State, with the

community.

We were able to take contaminated mining area, and working

with Jack Nicklaus, it was converted into a world class Jack

Nicklaus golf course.

And that is a tremendous success story and an example of how

we want to turn Superfund sites into recycled, valuable property

for the future. And I think the Anaconda is a great success story.

And Jack Nicklaus has indicated, by the way, he wants to work

with us on some more Superfund sites, based on his experience

with the Anaconda site.

Senator LAUTENBERG. Do they want to go farther, or something?

Senator BAUCUS. That is right. It is a higher altitude. They could

go a little farther, there.

What remains to be done? What can be done administratively?
55

Mr. FIELDS. Well, we want to continue the administrative reforms we have implemented over the last 6 years. We believe that

the primary new focus, administratively, ought to be on just the example used just cited, of the Anaconda site and the golf course example.

We have seen, over the years, that there have been many examples like that where we have been able to take a contaminated

Superfund site, using the Brownfields model, and turn it into a

productive reuse, commercial or economic or recreational or ecological, in that community.

We want to now move forward in looking at how we can recycle,

redevelop, reuse more of these Superfund sites. I think that is

going to be the next major administrative focus for us at EPA, how

we can marry up environmental cleanup and economic redevelopment at the same time.

Senator BAUCUS. That is a good point, instead of just plain cleaning up the site and leaving it there, it is getting a win/win out of

it.

Thank you, very much.

Senator CHAFEE. Thank you, Senator Baucus.

Now there is a vote on. I think it is best for us to recess here,

and go over and vote. I will be back and we will get started as soon

as I get back. So we will have a little break here.

[Recess.]

Senator CHAFEE. We are waiting for Senator Baucus. And until

he gets here, I have a couple of questions I will ask you, Mr. Fields.

Getting back to the underground storage tanks and the enforcement which, as you know, has been troubling to me, the 6-month

extension, now that, presumably, would take it from December 22

up to June 22. Am I right?

Mr. FIELDS. That is correct.

Senator CHAFEE. And, therefore, what your plans are—now, I understand Administrator Browner was in on this decision, if I understand the situation correctly.

In other words, I think she has indicated that her concerns were

more with the so-called mom and pops, and with the local communities, where they have the fire station and police station tanks.

Am I correct in that? That was what seemed to motivate her.

Mr. FIELDS. That is correct, Senator. Obviously, when we shared

with her the 300,000-plus people that were in noncompliance, we

pointed out that roughly 100,000 of those tanks were likely to be

small businesses, mom and pops, and some local governments that

provide fire, police, et cetera, services.

So, yes, that was a strong consideration for the Administrator.

She was concerned about the population that you just mentioned.

Senator CHAFEE. But now what is going to happen, before you

know it, June 22 will be with us, you know. That is 5 weeks away.

What is going to happen then?

Mr. FIELDS. Well, June 22, Senator, in response to your letter

and your inquiry on your concern about this issue, we made clear

to all the regulated community, that effective June 23, that day we

will obviously make all local governments, all small businesses, a

high enforcement priority.
56

Those that have not self-disclosed, paid a penalty, and entered

into a compliance agreement with EPA, they become a high enforcement priority, also. And your letter to us prompted us to make

clear that very clear policy in our communication to the regulated

community. So they will become a high enforcement priority, as

well.

We feel that the 6 months is more than enough opportunity for

those people who legitimately want to take steps to come into compliance to let us know about it, take action to do so. If they do not

do it by June 22, they become a high enforcement priority, as well.

Senator CHAFEE. OK. Senator Wyden, do you have a statement

or some questions? The time is yours.

OPENING STATEMENT OF HON. RON WYDEN,

U.S. SENATOR FROM THE STATE OF OREGON

Senator WYDEN. Thank you very much, Mr. Chairman. I appreciate your thoughtfulness, and I will be brief.

Let me just say to the nominee that the Office of Solid Waste

and Emergency Response is going to play a key role in connection

with what is my top priority on this committee, and that is deepening the Columbia River Channel.

Chairman Chafee and Senator Baucus both have been enormously helpful to me. I think the Chairman knows this goes back

to the days with Senator Hatfield. This is something that he felt

very strongly about.

And there is great concern that if EPA decides to list the Portland Harbor, which is, of course, a part of the project, as a

Superfund site, that could throw a very large wrench into the

works, possibly setting back the deepening project for several

years.

Now to prevent that from happening, I want to make it clear, I

wish to work with you and your office to see if there is not a less

bureaucratic alternative to a Superfund listing that ensures both

that the harbor gets cleaned up, and allows the channel deepening

project to move forward without a delay.

For example, my State has submitted a fairly lengthy proposal

to you all, asking for the opportunity to take the lead in cleaning

up the site, without a formal Superfund listing.

Another option would be to segment the deepening project. That

way, deepening would proceed on the 103 miles of the Columbia

Channel, where there is no contaminated sediment, and the entire

project would not be held up because of the possibility of a five mile

stretch of the Willamette that is not essential for the deepening

project.

In short, before we vote on your nomination, I would very much

appreciate the chance to meet with you in my office to discuss in

detail these options. They are of enormous importance to our region.

As I say, Chairman Chafee and Senator Baucus have been extraordinarily helpful to this senator on this project. And as the

Chairman knows, it does go back to the days of Senator Hatfield,

when it was his top priority, as well, for our region.

So if you would like to comment at this time, Mr. Fields, that

would be welcome. But I would like the chance, before we vote on
57

your nomination, to meet with you in my office to discuss these

matters in some detail.

Mr. FIELDS. Senator Wyden, I pledge to you that we will have

that meeting expeditiously.

And, apparently, I learned during the break that there was some

confusion. I guess our staff did not know that your office had not

received the communication that we wanted to meet with you actually prior to this hearing. And I apologize for that not occurring.

But I assure you that I am aware of the situation around Portland Harbor. And I know that we are considering our various options; one of which is the State’s option of State deferral of the site,

and not putting it on the NPL; and, you know, looking at an option

of the NPL, as well.

We have gone various ways on that. And we have been able to

be flexible. And we recognize the importance of redevelopment.

As I shared earlier, before the break, a major focus of our agenda

here now and in the future, in the next couple of years, is going

to be how we can recycle and how we can redevelop more contaminated property.

So whichever option allows us to help facilitate both cleanup and

re-use and redevelopment, and creation of infrastructure in that

area, we would be very supportive of.

I will set up a meeting with you to discuss your concerns, your

position on this, and make sure we carefully weigh all that before

any final decision is made.

Senator WYDEN. I was raised to be very, very cautious about ever

hearing an ‘‘F’’ word. But when you say ‘‘flexibility’’ you are talking

about the word we want to hear in our part of the world on this.

And we believe that there is a way to clean up the harbor, and

go forward with this channel deepening project that both Chairman

Chafee and Senator Baucus have been so helpful on. And so we

will look forward to that meeting.

And I thank you for the time, Mr. Chairman.

Senator CHAFEE. Yes, it would be helpful to move right along

with setting up that meeting. Because, as with all nominations, I

like to bring them up and move along.

And there will be some delay here, because I think there will be

some written questions to the witness. And then he will have to

have a chance to respond to them. But if you could set up that fairly soon.

Senator WYDEN. Absolutely.

Senator CHAFEE. And let me know when you have completed it,

if you would.

Senator WYDEN. Thank you. We will do it right away.

Senator CHAFEE. OK. Senator Baucus?

Senator BAUCUS. Yes, thank you, Mr. Chairman.

Mr. Fields, you have testified that cleanups have been completed

at 599 of the sites of the NPL. For what percentage of sites have

remedies been selected?

Mr. FIELDS. We have selected remedies at more than 90 percent

of the sites, the non-Federal sites on the National Priorities List.

That is a substantial number of sites. We are estimating that by

the end of next year, remedies at over 1,100 sites will have been

signed.
58

So at a lot of the Superfund sites, remedies have been selected.

And we have got construction completed at more than 45 percent

of the sites on the National Priorities List.

Senator BAUCUS. So what work remains to be done; how much?

Mr. FIELDS. Well, I would make five quick points on that point.

There is a lot that we have done. We see a lot of progress has been

made in this program.

At the end of this current fiscal year, fiscal year 1999, we will

have roughly 700 sites that we have to bring to construction completion. We will continue to still need to do about 200 to 300 removal actions a year, at Superfund sites and non-NPL sites around

the country.

We want to continue the pace of doing 85 construction completions a year, up through 2005. We will have to invest some resources in post-closure care; that is, 5 year reviews, operation and

maintenance at sites, as well. And there will be some limited numbers of listings.

But, bottom line, in 2005, 85 percent of the current NPL will

have construction complete. So I think we do see some light at the

end of the tunnel. Substantial progress has already been made.

And we see, over the next 5 years, a substantial amount of work

being done because of the reform agenda that we have implemented in Superfund.

Senator BAUCUS. If this Congress does not pass the Superfund

Bill, how much delay will that cause, or what will that prevent you

from doing?

Mr. FIELDS. Well, we, as an Administration, have suggested to

Congress targeted legislative reform that we would support. And

we think that there is bipartisan support by Democrats and Republicans for liability relief for prospective purchasers, innocent land

owner liability relief, contiguous property owners, and small generators and transporters of municipal solid waste.

We, however, do believe, with that limited, targeted legislative

reform that we would hope Congress would agree to support, we do

believe that there needs to be a reinstatement of the taxes. We

need that to have a source of funding to get our job done.

We believe that roughly $1.5 billion a year is going to be needed

over the next 5 years to continue the job of completing 85 constructions a year, doing 200 to 300 removals, et cetera.

Senator BAUCUS. How much is left in the trust fund?

Mr. FIELDS. At the end of this current fiscal year we are in right

now, we will have about $1.4 billion left in the trust fund. At the

end of fiscal year 2000, which is the next year beginning October

1st, we will have roughly $485 million remaining in the trust fund.

Senator BAUCUS. Since the tax is not being collected now, what

is that, partly interest, and what other sources of revenue?

Mr. FIELDS. Well, the revenues are where we obtained cost recovery and some interest payments. But the bottom line is, that balance will run out in the middle of fiscal year 2001, at the current

time, unless Congress provides either reinstatement of the taxes, or

some alternative source of funding for the Superfund program.

Senator BAUCUS. What is your reliance quotient on the balance

being made up with general revenue?
59

Mr. FIELDS. Well, we are concerned about a substantial contribution from general revenues footing the bill for Superfund toxic

waste cleanup.

Historically, as you know, Congress has given us about $250 million a year in general revenues to fund this program. And the rest

has been paid for out of taxes into the trust fund.

We believe that is an appropriate balance, 85 percent coming

from the trust fund, 15 percent from general revenues. We do not

believe the American taxpayer ought to foot the bill for toxic waste

cleanup. So we would be opposed to a system of all of Superfund

cleanup being funded by general revenues.

Senator BAUCUS. So, basically, general revenue has supplied

about $250 million a year. Is that correct?

Mr. FIELDS. That is correct.

Senator BAUCUS. And if the tax is not reinstated, over the 5-year

period, what would the total general revenue contribution have to

be?

Mr. FIELDS. Well, on the average, I mean, as I said, we would

run out of money. The trust fund balance expires midway into

2001.

Senator BAUCUS. You are going to keep the same $1.5 billion?

Mr. FIELDS. We are talking $1.5 billion a year, roughly, over, let

us say, a 4-year period. We are talking there about $6 billion in

general revenues just, you know, over a 4-year period, plus some

amount that would come out of general revenues and fiscal year

2001 which, roughly, is going to be another billion.

So you are talking $7 billion; $7 billion would be needed to fund

the program out of general revenues, if we did not reinstate taxes

from 2001 through 2005.

Senator BAUCUS. I have another question. I know my time has

expired, Mr. Chairman.

But some of the oil companies say why should they have to pay

any more because, at least they say, that most of their sites have

been cleaned up.

Mr. FIELDS. Well, you know, that is a judgment we have got to

make regarding how toxic waste cleanups ought to be done. We

think that the fairest mechanism is to have some contribution

through taxes into the fund.

I have heard that same issue regarding the oil companies and

chemical companies and others that are contributors to contamination at some of our most toxic sites around the country. We think

they ought to be footing most of the bill, as opposed to the American taxpayer.

Senator BAUCUS. Thank you very much.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Senator.

Senator Warner?

Senator WARNER. Thank you, Mr. Chairman, distinguished

friend, the Ranking Member. And Mr. Fields, we welcome you.

Mr. FIELDS. Thank you, sir.
60

OPENING STATEMENT OF HON. JOHN W. WARNER,

U.S. SENATOR FROM THE COMMONWEALTH OF VIRGINIA

Senator WARNER. As privileged as you are to claim the great

State of Virginia; it is my State. And when I look back over your

record, first your educational background, and your experience, I

say to myself, the President and the administrative EPA selected

wisely.

Mr. FIELDS. Thank you, Senator.

Senator WARNER. And we are fortunate that a man of your distinction is willing to devote himself to public service. My guess is

that you could triple your income on the outside, if you wished to

do that. We have got you now. We are going to keep you a while.

[Laughter.]

Senator WARNER. This is a great committee. And from time to

time, you will come before it to give us your valuable advice and

guidance as to how best to solve the almost insolvable problem that

you are willing to take on.

I wish you luck, and that of your family.

Mr. FIELDS. Thank you, Senator Warner.

Senator CHAFEE. He has his family with him, Senator, his mother, father, son, and wife are all present. He has got a cheering section there.

Senator WARNER. Well, when he does not get home for supper on

time, bear with us.

[Laughter.]

Mr. FIELDS. Senator Warner, I just want to say, I know you have

been very busy with Kosovo and other matters involving foreign

policy.

It really deeply pleases me, and it is tremendously gratifying to

have the support of my home State senator. And I thank you for

taking the time to even come here, given your busy schedule. And

I thank you for your support.

Senator WARNER. Well, thank you, and I wish you luck. And that

is an awesome amount of paper that you have in front of you there.

[Laughter.]

Senator WARNER. I find, just rely on your own experience and

good judgment.

Mr. FIELDS. Well, Senator Chafee has a lot of questions, and I

had to have a lot of answers here today.

[Laughter.]

Senator CHAFEE. Well, what is more, Senator Warner, Mr. Fields

was educated in a Virginia institution.

Senator WARNER. That is right.

Senator CHAFEE. Virginia Polytechnic University, which I guess

is called Virginia Tech. Is that correct?

Senator WARNER. Yes, Virginia Tech.

Mr. FIELDS. That is correct, sir.

Senator CHAFEE. Mr. Fields, I want to ask you about the Basel

Convention. Now that is a convention that deals with the shipment

of hazardous waste from nation to nation, across nation’s boundaries. And they are going to meet in December, in Basel, Switzerland, this coming December, which is not so far away.
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And I am concerned that the United States will arrive there

without having ratified the convention, because the Administration

has not proposed to us any legislation to do that.

And here is a situation where we need leadership from the Administration. And we have been waiting several years for the Administration’s proposal on ratifying that convention.

Now it is my understanding that EPA is working with the State

Department and the Commerce Department on a draft bill. So my

question to you is, when do you think we will receive that?

And I just do not want a situation to develop that you send up

some draft in September and October, and then somebody will

blame Congress for failing to enact it by the time you meet in December. We have got to have the thing some time in advance to

consider. These things just do not going flying through the day

they are received.

So my question to you is, what is going on, and maybe you do

not know. Maybe you are going to have to reply in writing. But if

you do know, I would be interested in what is taking place as far

as sending up to us a document for us to ratify the Basel Convention.

Mr. FIELDS. Yes, Senator, we are working with those departments. There is an inter-agency work group, as you indicated,

made up of State Department, EPA, Commerce, Department of

Justice, and various other agencies, on this. We are drafting legislation, and are going to be giving Congress a draft bill.

We will work with your staff to set up a meeting next week to

talk about what we may develop and provide to you that would

meet your needs.

Our initial schedule was to develop a draft legislative package

and get it to you, and the House of Representatives, as well, by

September. Your staff have communicated to me that that might

be a problem in terms of your December deadline and the meeting

coming up.

So we will be meeting with your staff, Senator Chafee, to talk

about what we need to provide to you and what timeframe, so it

meets your needs to develop legislation that this committee needs

to consider.

So the current schedule would probably result in it getting to you

too late, based on what you have indicated. We will work with your

staff to see if we can provide what you need in a more timely way,

in terms of legislative language.

There are some issues that the inter-agency work group has resolved, and we are very clear on that. There are other issues which

we are still having debate within the Administration, and we are

not there, yet.

But we will have a meeting with your staff next week to talk to

you about where we are, to talk about those pieces that we are

clear on, and those pieces that are going to take more time.

And then we can work out a mutually agreeable schedule as to

what we need to provide to your committee to meet your legislative

agenda for the remainder of this year.

Senator CHAFEE. Well, that will be very helpful. We have all discovered that everything takes longer than you think around here.

And receiving this in September just would be unacceptable, and
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so the sooner the better. And we look forward to your meeting with

our folks in connection with that.

Now in your testimony, you said you plan to reinvent the retro- corrective action program, administratively. You have touched on

this a little bit, but what are some of the specifics that you have?

Mr. FIELDS. We want to adopt the Superfund model of how we

might reinvent RCRA. We want to, rather than finalizing regulations for corrective action, for example, under Superpart S of

RCRA, we want to issue policy and guidance on how we can more

effectively implement RCRA corrective action in a streamlined way,

taking advantage of those best approaches that States and others

have adopted over the years. We will be establishing, just like we did for Superfund, numeric annual goals that regions and States have to achieve in the way

of RCRA corrective action cleanups to meet our 2005 goals. We will be putting on training workshops for our States on the most innovative way in which RCRA corrective action can be done. We will be looking at a resource initiative for the future in terms of what resources we are going to need to meet our commitments

for the out-years for RCRA corrective action. Right now, the current budget has $47.5 million for RCRA cor- rective actions. We want to look at a potential budget initiative for

future years to be able to meet our goals for the next 7 years. We have got specific annual goals that we will be providing to our regions and States, up through 2005. And we will be putting

together an administrative reform agenda that allows us to achieve

those goals annually, as well as the ultimate end point in 2005.

Senator CHAFEE. Mr. Fields, there are two obligatory questions I will ask you. One is, will you, at the request of committees from

Congress, appear before the committee that requests you to appear?

Mr. FIELDS. Yes, sir.

Senator CHAFEE. And, second, do you know any reason, that has not been disclosed to us, why you would not be suitable for this position?

Mr. FIELDS. I know of no such reason, Mr. Chairman.

Senator CHAFEE. Fine. All right, I do not think we have any fur- ther questions. There may be some questions come up in writing

to you. If you could get those answered in writing rapidly, and get

back to the committee, that would be very helpful to us. Thank you very much, Mr. Fields. We thank your family for their attendance. That completes the hearing. Thank you.

Mr. FIELDS. Thank you, Mr. Chairman. [Whereupon, at 10:20 a.m., the committee was adjourned, to re- convene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF TIMOTHY FIELDS, JR., NOMINATED TO BE ASSISTANT ADMINISTRATOR

FOR THE OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL

PROTECTION AGENCY

Mr. Chairman, Senator Baucus, and Distinguished Members of the Committee, as a career public servant for almost 28 years, I am honored to be here today to testify

before this Committee. My family and I are grateful and honored that President

Clinton has nominated me for the position of Assistant Administrator for Solid

Waste and Emergency Response at the U. S. Environmental Protection Agency

(EPA). I look forward with great enthusiasm to the opportunity for new challenges
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as an EPA Assistant Administrator in the direction of our waste management and

environmental cleanup programs. I am especially proud to have my family with me here today—my wife, my son and my parents. I thank my colleagues and many friends for their presence and

support!

A search for common ground

Mr. Chairman, Senator Baucus, and Members of the Committee. I began my ca- reer with the U. S. Environmental Protection Agency in 1971. A lot has changed

at the EPA since that time. What has not changed is my dedication to public service

and my strong commitment to EPA’s mission to protect public health and the environment. I know that public service is a special calling for me. In some ways, I believe that finding solutions to today’s environmental problems is more difficult than in years past. When I began my career, EPA’s job was to write

dozens of regulations to implement the new environmental laws passed by Congress.

Now, with its important regulatory programs in place, EPA is more focused on approaches that not only protect the public and our environment, but also do it more

efficiently, with less red tape, less process and in ‘‘plain English.’’ We must weigh

the needs and concerns of all stakeholders and search for consensus.

One thing that I have learned in my years at EPA is that we in the Federal Gov- ernment do not have all of the answers. I am committed to looking beyond Washington, D. C., for solutions that are good for public health and the environment, good

for business and good for our State, local and tribal partners. I am convinced that

if we work together, we can find solutions that will work for everyone.

Superfund—getting results

As Principal Deputy Assistant Administrator for 3 years, and as Acting Assistant Administrator during the past 2 years, I have had the opportunity to put some of

these new solutions to work. A major priority for me is continued Superfund reform.

Cleaning up Superfund sites continues to be of utmost importance to the Agency.

I am pleased to tell you that, because of your high priority focus on Superfund and

the Clinton Administration’s Superfund administrative reforms, we are implementing Superfund far differently today than 6 years ago. Significant program improvements have occurred. We have completed cleanup construction at 599 sites. We have

settled with more than 18,000 small parties, offered $145 million in orphan share

funding, accelerated cleanup by 20 percent and significantly reduced the cost of

clean up, saving over $1 billion in future costs through remedy updates at more

than 200 sites over the past 3 years. We are now achieving 85 construction completions per year. At this pace, we will have completed cleanup construction at 85 percent (1,180 sites) of existing National Priorities List (NPL) sites by 2005. I will continue to work on administrative reforms to strengthen the Superfund program, and with Congress on legislative reforms that will address the specific

statutory changes that would improve the program. We must continue to aggressively implement our reforms so that cleanups continue to be faster, fairer and more

efficient than ever before. We must refine and update our reforms so they continue

to work well. We need to also recognize that many of these Superfund sites, with

a little work, creativity and commitment can become valuable assets to the community. We have already seen many old Superfund sites transformed into parks, retail

businesses, and golf courses. I would like to work with our State and local partners

and give them the tools they need, in conjunction with the private sector and affected communities, to turn even more Superfund sites into productive properties.

Our goal should be to build on our Superfund successes and cleanup the remain- ing Superfund sites and any newly discovered sites as quickly as we can. Targeted

legislative changes to clarify the liability of prospective purchasers, innocent landowners, contiguous property owners and small generators and transporters of municipal waste would be helpful. That coupled with reinstatement of the Superfund

taxes will give us what we need to finish our job.

Brownfields—a shining success

One of the most successful examples of what we can do when we work together is brownfields. In the brownfields program, we did not promulgate any new regulations. We did not tell State or local governments, businesses, or communities what

to do. They told us what they needed. And we tried to help. The approach is working. In the short 4-year history of our brownfields program, we have developed partnerships with 250 communities across America through grants to State and local

governments. Through this effort, over $ 1 billion worth of investments has found

its way into local economies, creating more than 2,500 jobs and improving the quality of life in hundreds of neighborhoods across the nation. I will continue to build

on this success. In fact, this year EPA will provide support to more than 70 addi-
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tional communities, up to $200,000 each, to assess their brownfield sites, and 63 additional communities, up to $500,000 each, to help establish their own revolving

loan funds for cleaning up their brownfield sites. What began as a modest EPA initiative has been expanded by the support of other Federal, State and local government, and private partners to become a strong mechanism for assessing, cleaning

up, and redeveloping brownfield properties.

Reinventing Hazardous Waste Programs

I hope to use the success of the brownfields program as a model for other pro- grams within the Of lice of Solid Waste and Emergency Response. One of my top

priorities is to reinvent the Resource Conservation and Recovery Act (RCRA) corrective action program administratively, much as we did in Superfund, and I welcome

the opportunity to work with you and others in achieving this goal. The RCRA corrective action program is the remediation program for facilities that treat, store, or

dispose of RCRA corrective action hazardous wastes and have potential environmental contamination.

In RCRA corrective action, we have a huge task ahead of us. We have about 1700 high priority RCRA corrective action sites that need to be addressed. Our Government Results and Performance Act goal directs us to control human exposure at 95

percent of these sites by 2005. This means that EPA and the States, collectively,

will have to address an average of 185 sites per year for the next 7 years. This is a tall order, but I am ready to provide the leadership to meet this chal- lenge. States are largely responsible for providing oversight in cleaning up these

sites, and one of my first initiatives will be to redouble our efforts to work even

more closely with States. I will personally look for every opportunity to talk to State

officials, to listen to their concerns and wherever possible, to support their ideas for

improving the program. I will continue to look for administrative ways to cut red

tape and unnecessary requirements. We must focus our regulations and guidance

on results and not process. The recently promulgated Hazardous Waste Identification Rule (Media) and the Post Closure Rule are both good examples of how we can

achieve this goal. I am also committed to helping States take full advantage of the

flexibility already available in RCRA. For that to happen, State and regional officials must first know where they have discretion. And we have taken some initial

but important steps to get the word out. We have developed a comprehensive training program for regional and State officials that defines the flexibility in our rules

and guidance, and have established national, regional, and State goals for cleanup. Finally, we are also in active negotiations to attempt to settle litigation on one of the Agency’s critical regulatory reforms, the Corrective Action Management Rule.

I am hopeful that these negotiations will result in a rule that remains a flexible

and valuable tool for protective, efficient cleanups. Through all of these efforts, I believe we can reinvent our RCRA cleanup program, and I look forward to working

with you on these actions.

Underground Tanks—working toward compliance

Another top priority is compliance with underground storage tank regulatory re- quirements. As you know, after a 10-year phase in period, on December 22, 1998,

the statutory deadline passed for upgrading underground tanks to prevent drinking

water, groundwater and soil contamination. While 1.2 million tanks have been

taken out of operation and another 635,000 tanks have been upgraded or replaced

over the past 10 years, many tank owners are not yet in compliance. However, our

latest estimates are that 77 percent of the nation’s tanks are in compliance. We

want to work with the States to ensure that the remaining tanks are brought into

compliance.

Risk Management Plans

I will continue to work with this Committee and others on effective implementa- tion of the Risk Management plan (RMP) regulations. Consistent with a recent judicial stay of the RMP regulations by the U. S. Court of Appeals as applicable to propane facilities, EPA intends to issue an interim administrative stay of the June 21

, 1999, RMP rule effective date as it applies to flammable hydrocarbon fuels, including propane, butane, ethane, propylene, and ethane (natural gas), stored in quantities greater than 18,000 gallons. EPA believes that facilities that store fuels in excess of this threshold present a risk to American communities, and should be required to submit an RMP.

Regarding Off-site Consequence Analysis (OCA) data, EPA has announced that it

will not post OCA information on the Internet in light of the FBI concerns that such

information could represent a national security risk. EPA does not intend to release

OCA data until a responsible approach to address the national security concerns has

been developed and is in place. EPA is working with DOJ, FBI, and other Federal
65

agencies to develop a responsible approach to making OCA information available to

the public that addresses the security concerns. The interagency group is considering both legislative and non-legislative options and expects to complete its work very

soon.

Conclusion

Of course, OSWER is responsible for many other important activities. Our Federal

facilities cleanup oversight, and emergency preparedness, prevention, and response

functions are critical. And our work on counter-terrorism, innovative technologies,

recycling, waste minimization and pollution prevention will continue to be important to me and the Agency.

Finally, I would like to thank the employees of the Of lice of Solid Waste and

Emergency Response and EPA’s Regional Offices and Laboratories who work hard

to implement the Superfund, Brownfields, RCRA, Underground Storage Tank,

Chemical Emergency Preparedness and Prevention, Federal Facilities, Technology

and Oil Pollution Programs on a daily basis. These are the talented and dedicated

Federal employees who are critical to the success of these programs. I pledge my

support to them as we work together to provide safe and healthy environments for

ourselves, our children and grandchildren, and future generations.

In closing, let me thank you again for your time and the opportunity to appear

before you. I look forward to working with this Committee and I will be happy to

answer your questions.
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RESPONSES BY TIMOTHY FIELDS TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. Your written testimony states that one of your ‘‘top priorities is to reinvent the Resource Conservation and Recovery Act (RCRA) corrective action program administratively.’’

Question A. What are the specific areas or problems that you believe need to be

addressed in this reinvention effort?

Response. The RCRA Cleanup Reforms are the Agency’s primary focus in identifying and reducing impediments in the corrective action program. At times, RCRA

cleanups have suffered from an emphasis on process and a lack of clarity in cleanup

objectives. More specifically, the impediments or disincentives to timely and cost-effective RCRA cleanups include:

• Multiple reporting and review requirement of the corrective action process.
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• Disagreements over cleanup objectives between EPA, State agencies, and companies.

• Lack of incentive for companies to perform cleanups apart from economic advantages, such as selling or redeveloping the property.

• The application of certain RCRA requirements, such as land disposal restrictions (LDRs), minimum technological requirements (MTRs), and permitting, when

applied to the cleanup of remediation waste.

Question B. What specific changes do you plan to make to the corrective action

program? In particular, what elements of the proposed Subpart S regulation do you

expect to implement?

Response. In the near-term, EPA plans to focus on the following administrative

reforms to the corrective action program. Most of these components derive from the

Subpart S effort.

• Development of performance-based guidance during 1999 that clarifies general

short-term cleanup objectives and includes recommendations on how to gauge

when they have been achieved.

• Implementation of additional guidance and an extensive training effort in 1999

and 2000 that emphasize environmental results instead of the process, and that

highlight existing flexibility in the corrective action program which can be used

to accelerate cleanups.

• Fostering maximum use of program flexibility by actively encouraging States

to adopt the regulatory flexibility in the recent VIR-media and Post-Closure rules,

and by encouraging the use of a broad range of appropriate authorities and approaches for expediting corrective action.

• Enhancing community involvement in RCRA cleanups, including providing detailed information on cleanup progress for individual facilities on the Corrective

Action website.

Question C. Do you plan to issue regulations to effect your changes to the corrective action program, or will you rely on guidance documents? If you intend to rely

on policy memoranda and guidance documents, how do you plan to ensure compliance with the Congressional Review Act?

Response. EPA does not plan to make extensive regulatory changes. If there is

a subsequent need for some targeted regulations, the Agency will pursue them on

an as-needed basis. We have concluded that promulgating a comprehensive set of

RCRA regulations at this time could unnecessarily disrupt the 33 States authorized

for the RCRA Corrective Action Program, as well as those State programs that currently are undergoing review for authorization. Through the RCRA Cleanup Reforms described above in the response to Question 1B, we hope to develop a new

atmosphere of partnership and cooperation among regulatory authorities, industry,

and stakeholders.

EPA plans to announce its intention not to take final action on most of the proposed Subpart S rule [July 27, 1990 (55 FR 30798)] for corrective action -for solid

waste management units (SWMUs) at hazardous waste management facilities in the

near future. EPA is taking that action because, among other reasons, the Agency

has determined that such regulations are not necessary to carry out the Agency’s

duties under sections 3004(u) and (v).

EPA plans to rely on guidance and outreach to effect changes in the corrective

action program. If EPA does determine that regulations are necessary, any final regulations will be submitted to both Houses of Congress and GAO as required by the

Congressional Review Act (CRA). Since the enactment of the Small Business Regulatory Enforcement Fairness Act of 1996 that included the CRA, (SBREFA), Pub.

L. 104–121, EPA consistently has interpreted the CRA as applying only to Agency

actions that contain binding legal requirements, regardless of what those documents

are titled or whether those documents are subject to statutory notice-and-comment

rulemaking requirements. Thus, EPA has submitted to both Houses of Congress and

to GAO under the CRA not only final regulations promulgated by the Agency, but

also documents labeled ‘‘guidelines’’ that contain binding legal requirements, unless

the document is expressly exempted from CRA coverage pursuant to 5 U.S.C

§ 804(3).

In general, however, EPA does not intend its policy statements and guidance documents to be binding and they have no birding legal effect on the public. We prepare and issue these documents to provide information regarding an EPA regulation

or enforcement position that may be useful to EPA employees and/or the public. The

RCRA Corrective Action guidance that EPA already has issued is not legally binding. Moreover, at the present time, EPA does not plan to issue legally binding guidance with respect to the RCRA corrective action program.
75

Nonetheless, EPA intends to send to the Congress and GAO courtesy copies of all non-binding RCRA corrective action guidance documents as they are issued.

Question D. Are there specific problems or concerns relating to the corrective ac- tion program that you believe require legislation to address? If so, what are those

problems or concerns and are you prepared to commit the staff and resources to

work with this committee to address those problems and concerns? Response. In 1993, EPA issued the Corrective Action Management Unit (CAMU) regulations to address RCRA remediation waste issues. EPA currently is exploring

possible settlement of the litigation challenging these regulations. In the past, uncertainty over the litigation challenging the CAMU rule has led to discussion of legislation. Currently, EPA is waiting for the outcome of the settlement process before

assessing the need for any legislative fixes to address RCRA remediation waste issues. Any dialog about whether there is a need for new legislation should consider

this settlement process, RCRA regulations promulgated last year, and the RCRA

Cleanup Reforms. Obviously, I will work with the committee to address remediation

waste problems and concerns.

Question 2. In your testimony, you made a commitment to improve communica- tions with this committee and, in particular, to consult with the committee before

the Office of Solid Waste and Emergency Response announces or implements significant changes in policy. How do you plan to implement that commitment? For example, how will this new commitment affect your office’s actions with respect to any

policy decision made on the Subpart S regulations or the proposed modification to

the CAMU rule?

Response. OSWER has frequent communications with the Senate Environment

and Public Works Committee, and intends to continue these communications, particularly with respect to important changes in policy, such as those pertaining to

implementation of the RCRA Cleanup Reforms (an outgrowth of the Subpart S Regulations) or any further changes to the CAMU regulations. For instance, OSWER

continues to brief the committee on the progress of the CAMU and Subpart S regulations. With regard to the Subpart S regulation, EPA expects to issue by early

Sumner a notice announcing its intention not to take action on most provisions of

the 1990 Subpart S proposal. EPA offers to brief the committee on this decision and

its alternative plan for guidance. I have also asked my staff to brief committee staff

on our plans for a Superband Recycling Initiative. Finally, I will have my two deputies meet with committee staff on a periodic basis to discuss OSWER activities.

Question 3. In February, 1999, Administrator Browner testified before the com- mittee regarding EPA’s fiscal year 2000 budget. The committee recently receded answer’’ to a number of followup questions. The following questions seek additional information regarding OSWER budget priorities and plans that were lacking in the

initial responses we received.

There is evidence that the Superfund National Priority List program is starting

to ‘‘wind down.’’ For example, the General Accounting Office reported in November

that there were 232 sites nationwide that either EPA, the States or both believed

would eventually be listed on the National Priority List.

Question A. You sense as the national program manager for Superfund. Do you

agree that the scope of future additions to the Superfund NPL is likely to be closer

to the 232 new additional site level projected in the November GAO report, a report

that EPA concurred in, or will it be much larger or smaller than that? Please respond in detail.

Response. For clarification, the GAO report referenced in your questions did not

contain any projections of the number of sites to be added to the NPL in the future.

It would be accurate to say that the report identified 232 sites that State and Federal responders believed might be placed on the NPL. Moreover, the Agency continues to discover new sites every year. In fact, of the 26 sites newly proposed to the

NPL this year, only 7 were identified as likely NPL candidates in the GAO report;

3 were even identified in the GAO category of ‘‘unlikely to be placed on the NPL’’

in the GAO study. Fifteen of the 26 were either among sites needing further investigation or were newly discovered.

Several factors are likely to affect the number of sites listed on the NPL in the

future. Perhaps the biggest single variable is the percentage of sites States clean

up. Likewise, private party cleanups can reduce the number of NPL listings. The

willingness of States to support NPL listings is another key variable that also will

affect how many sites are listed. Over the past 6 years, we have listed an average

of 26 sites each year on the NPL. Last year, we proposed 34, and in fiscal year 1999

we may list up to 40 sites on the NPL. Therefore, I believe the GAO report reflects

a reasonable estimate of the number of fixture NPL candidates over the next 5

years.
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Question B. The written response from Ms. Browner’s hearing stated that ‘‘significant work’’ remains at existing sites and that you do not know how many more sites

will be added to the NEIL beyond the 40 new sites expected this year. However,

both the Congress and EPA must make some assumptions about the future size of

the program, such as funding levels, staffing levels, and anticipated remedial contractor requirements. Does your office have any strategies, studies, estimates, or

plans that address the future of the program beyond fiscal year 2000? Please provide the committee with copies of all relevant documents.

Response. EPA expects to achieve 1,180 construction completions through 2005,

assuming an annual appropriation of $1.5 billion, and 85 construction completions

each year. This projection is based on a combination historical performance, planning estimates contained in EPA’s information systems, budget assumptions, and

strong focus on an increased pace to achieve cleanups at NPL sites. The methods

to implement the Agency’s goals are presented in the President’s annual submission

of the proposed Superband budget to Congress. This budget includes contractor and

staff resources for cleanup/response enforcement, management and support, and research, as well as resources for other Federal agencies that carry out Superfundrelated functions.

As stated in the Administrator’s earlier response, we do not know how many sites

we will list on the NPL each year. In order to maximize cleanups and environmental

benefits, we depend on a number of approaches in addition to the NPL. We are committed to working tenth our state partners to determine what sites are most appropriate for the NPL. We will list sites on the NPL only after considering several factors, such as whether a site presents a serious threat to human health and the environment, whether a state requests EPA to list a site, or whether a state is unable

or unwilling to conduct the cleanup. EPA’s commitment to states also Includes

maintaining a strong site assessment program, not merely as a tool to list NPL

sites, but as a way to encourage potentially responsible parties to work closely with

States to achieve cleanups in lieu of NPL listing. As indicated in the response to

the last question, the average number of listings has been 26 per year. However,

there may be up to 40 this year. Therefore, a range of 26 to 40 sites per year is

a reasonable assumption and generally consistent win the universe in the GAO report. EPA also foresees having a substantial role in post-construction related activities at NPL sites to ensure that implemented remedies remain protective in the future. As more sites complete construction, the use of resources will increasingly shift

toward compliance and environmental monitoring and response work at facilities

where waste remains place. Four documents related to the future of the program

are attached: 1) elements of the Agency’s Strategic Plan, 2) a table from the President’s Budget Appendix, 3) Superfund elements of a multi-year briefing for the Deputy Administrator, and 4) the Superband Contracts 2000 Decision memorandum.

Question C. EPA’s response to my February questions state that EPA expects to

continue the current pace of cleaning up 85 sites per year through 2004. Over the

past 6 years, however, you have only added 26 new sites per year to the list. Is your

85 facility per year figure based on a facility-by-facility analysis of where each site

stands in the cleanup process and/or is it based on historical averages and assumed

funding levels? Please provide the committee with copies of all relevant documents,

such as the names of the specific facilities and their projected construction completion dates, assumptions regarding funding or additions to the National Priority List,

and any supporting data upon which such projections are made.

Response. EPA’s projection of completing construction at 85 sites per year is based

on a combination of historical performance, planning estimates contained in EPA’s

information systems, budget assumptions, and strong focus on an increased pace to

achieve cleanups at NPL sites. As sites move through the Superfund pipeline, an

increasing number of sites have construction underway. Assuming stable finding for

the next six fiscal years, the program believes that, on the basis of sites currently

under construction or with plans for construction, an average of 85 sites per year

will reach the construction completion milestone. Attached ore two lists of sites

where construction completion may be met by 2005. The first is the list of sites we

are tracking as candidates for construction completion in fiscal year 1999. The second list provides the candidate pool for additional construction completions in fiscal

year 2000 through BY 2005, based on planning data. It is important to note that

these data are projections (i.e., assuming optimal construction schedules, the availability of All Finding, completion of critical tasks), and estimates become less reliable when forecasted beyond 2 years. Also attached is the Superfund/Oil Program

Implementation Manual which outlines the planning and implementation procedures for the Superband program.
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Question 4. Several followup questions from the February hearing addressed funding levels for RCRA corrective action. I asked how many more sites might have their

human health or groundwater releases controlled if EPA devoted an additional $15

or $30 million to the corrective action program. EPA did not answer the question

and merely said the levels in the ‘‘President’s Budget are adequate.’’ That response

is not satisfactory.

In answering the following two questions, please assume an equal number of

groundwater and human health releases are addressed. Also please account for any

costs associated with the operation of the program in the 33 states with delegated

authority. Please consult with committee staff if further clarification is needed in

formulating a response.

Question A. Please provide the committee with a detailed estimate of how many

additional sites could have their human health threats or groundwater releases controlled if Congress provided additional funding of $10, $20, or $30 million dollars

for this purpose?

Response. We believe Finding included in the President’s fiscal year 2000 budget

is adequate to keep the program on track to meet our 2005 GPRA Environmental

Indicator goals. However, the Agency is currently conducting an internal mid-year

review to deterrmme accomplishments to date. Part of that review will focus on

whether accomplishments to date and projected commitments will ensure that we

achieve our 2005 targets. If it is determined that the 2005 targets are not achievable, the Agency plans to use the fiscal year 2001 budget process arid the strategic

plan revision process to make appropriate revisions. This approach directly reBects

the revision process outlined u1 GPRA and OMB guidance and other materials.

In response to your specific questions, we have provided below our estunates of

additional progress that could be achieved in the event that an additional $10 million, $20 million, or $30 million dollars were available in the fiscal year 2000 budget. These estimates are very rough given the time constraints and they include EPA

and State resources. It should be noted that, unlike Superfund, neither EPA nor the

States can directly implement cleanups at Corrective Action facilities; therefore, the

pace of a cleanup is not as directly under the regulator’s control. We also are assuming that the funding level increase will remain stable for at least 5 years so that

progress made 1 year on moving a site toward meeting envirorunental indicators

(EIs) will not be lost by budget cuts and the inability to maintain staff who are

working on the facilities.

The Agency is currently on an aggressive schedule to address human exposures

at 95 percent of the high priority facilities by 2005. Therefore, we would apply any

additional resources to addressing groundwater controls at these facilities. It must

be recognized that as we approach the last of the high priority facilities, the groundwater controls will become increasingly difficult to attain since these will be the

largest facilities with the most complex and challenging groundwater contamination.

Therefore these last sites will require proportionally more resources and will require

significantly more time to stabilize. Here are our estunates for achieving additional

environmental indicators for groundwater releases controlled by the year 2005 given

these caveats and assumptions:

Additional Funding for Achieving Environmental Indica- tors Estimate of Additional Facilities Achieving Ground Water Releases Controlled by 2005

$10 million ............................................................ 150

$20 million ............................................................ 200

$30 million ............................................................ 230

Question B. Please provide the committee with a detailed estimate of how many

additional sites could have their human health threats or groundwater releases

cleaned up if Congress prodded addffional funding of $10, $20, or $30 million dollars

for this purpose?

Response. The ultimate goal of the RCRA corrective action program is to achieve

final cleanup at all RCRA facilities. However, our near-term objective has been to

stabilize the worst sites in order to prevent human exposures and to stem the

migrat.on of groundwater contamination. Consequently, we have not directly analyzed ache resources required to bring RCRA facilities to final cleanup, and therefore any estunate of outputs is highly speculative. We believe the most usefull way,

at this time, to estimate the final cleanup costs is to look at the experience of the

Superfund program. Specifically, we believe the EPA oversight costs associated with
78

a Potentially Responsible Party (PRP) cleanup may be an appropriate representation of the costs and timing that will be incurred for a RCp.A corrective actionsite.

In the Superfund program, it takes an average of 8 years from the time a site is

listed on the NPL to reach the point where construction is completed for the final

remedy. We evaluated the pricing model for Superfund sites, and made some adjustments to reflect differences between the two programs to more accurately project

possible RCRA outputs. The following table presents the estimated number of additional cleanups by 2008 that might result Dom the additional finds levels presented

in your question. (Of course, between now and 2008 we expect to bring a number

of facilities to construction of final remedies under current funding levels; however,

we do not have projections of this number.) The following estimates assume stable

funding through the 8-year period necessary to complete the cleanup work at these

sites.

Additional Funding for Final Remedy Selection National Estimate of Additional Facilities With Construction Completion by 2005

$10 million ............................................................ 90

$20 million ............................................................ 180

$30 million ............................................................ 270

RESPONSES BY TIMOTHY FIELDS, JR. TO ADDITIONAL QUESTIONS FROM SENATOR

INHOFE

Regarding the HWC MACT Standards

Question 1(a). In the latest letter Senator Wyden and I sent you on the hazardous waste combustion MACI Standard, we asked if you had data on cement kilns and

feed rates. Your response again refers us to data from a single experimental incinerator. Does the Agency have any data on cement kilns and feed rates, not incinerators, and was this data used in the rulemaking process? Response. The data we provided (cement kiln emissions and feedrate data for the semi-volatile metals (SVM), i.e., lead and cadmium) were used in the rulemaking

process to confirm our engineering judgment that there is a positive relationship between metals feedrate and metals emissions. Our judgment is based, in part, on the

fact that metals we not destroyed by combustion in a cement kiln and that they do

not partition solely to the cement or cement kiln dust based on studies we reported

to Congress in 1994. Therefore, we concluded that metal emissions must increase

as metal feedrates increase. I have attached the ‘‘Draft Technical Support Document

for HWC MACT Standards CODA): Volume III: Evaluation of Metal Emissions Data

base to Investigate Extrapolation and Interpolation Issues, April 1991.’’ In this document, Figures 15–20, 22a, 22b, and 27 all contain SVM metals emissions and

feedrate relationship data.

We highlighted the information on this one specific incinerator in our response

because this is the only data we have from a facility specifically attempting to document the relationship between metals feedrate and emissions. This positive relationship also holds Rue for data we have Tom some cement kilns (see relationship in

Figure 15 and general increase in emissions with feedrate in Figures 17, 22a, and

22b for cement kilns).

Question 1(b). If you do not have separate data on cement kilns, then please explain how the incinerator data was used for the cement kiln standards considering

the Agency felt the differences between the Do categories was great enough to warrant separating cement kilns and incinerators into two separate categories.

Response. The incinerator data can be used to determine the positive relationship

between emissions and feedrate for all types of combustors because the relationship

between metals emissions and feedrate is the same for all types of combustion systems. To detennme the relationship between metals feedrate aIld emission rate, we

evaluated the theoretical potential for emissions and the empirical data in the HWC

data base. We concluded that there must be some pe of direct, positive relationship

between metals feedrate and emissions. Metals cannot be destroyed in the combustion process, and assuming the system must reach some type of equilibrium, metals

cannot accumulate in the system without reaching a saturation limit. Additionally,

the theory predicts that the relationship will be proportional -over a large range of

feedrates (an increase in feedrate produces a consistent incremental increase in

emissions). A flat or negative relationship (that emissions decrease as feed increases) is not physically possible. Although there are some additional data that
79

would support this, we could not be sure that the additional data had been obtained

under sufficiently controlled conditions that are required for the purpose of demonstrating the relationship. Therefore, we concluded that the available data for an

individual combustor confirms a positive relationship between SVM feedrate and

emissions.

In 1992, the Agency established separate source categories for Portland cement

manufacturing arid hazardous waste incineration as major emitters of hazardous air

pollutants. These sources have fundamental differences in design and operation that

can affect the types and concentrations of some hazardous air pollutants and control

measures. For example, Portland cement ldlos have much higher ernission?s of organic HAPs that are attributable to desorphon from raw material than h?dous waste

incinerators. Further, although controlling the feedrate of metals and chlorine is a

practicable control measure for hazardous waste incinerators, existing Portland cement kilns cannot practicably control the feedrate of metals and chlorine in raw

matenals. (Hazardous waste fuel metal content is controllable.)

Question 2. In our latest letter, eve also asked you for materials on the technical

objections the Air of lice might have raised to your approach. You refused to produce

the material claiming it is ‘‘deliberative’’. Because this MACT standard is different

from all previous MACT standards which have been issued by the Office of Air and

Radiation, it is important for the committee to understand the rationale used to develop this standard, in particular the rationale differences between this standard

and the other MACT standards. Unless the Administration is claiming ‘‘executive

pnviIege’’ please provide the committee with any documents involving disagreements or ‘‘nonconcurrences’’ between EPA’s Office of Air and Radiation and EPA’s

Office of Solid Waste and Emergency Response pertaining to the SVM standard for

cement kilns.

Response. The requested documents are attached. These documents represent

predecisional discussions, often at the staff level, and contain the normal give and

take of technical and scientific debate. Ultimately, all of the staff reached a consensus regarding the approach contained in our current draft of the final rule, and the

Office of Air and Radiation concurred on the rule.

We believe it would be extremely harmful to the Agency if these materials were

released to the public by the committee. It would chill filture legitimate scientific

and policy debate within the Agency, could suggest that final decisions have been

made when the decision process is not complete, and dramatically and unnecessarily

increase our workload (by generating questions from the public regarding the content of these documents that will be answered in our flak rule and docket). It would

be particularly unfortunate to create this distraction for the Agency at a time when

we must focus on completing a mle that already has taken well beyond the date

that we promised in order to settle litigation on this subject.

Question 3. Please explain why the Office of Solid Waste and Emergency Response

has had the lead responsibility for the lIWCMACI standard instead of the Office of

Air and Radiation. ID particular please explain why your Office had the lead for

this standard and not the MACT standards for municipal solid waste or the medical

incinerators.

Response. OSWER has had the responsibility under RCRA for emissions from incineration of hazardous waste for over 20 years and has thereby developed specialized scientific and technical expertise. Under Section 3004 (a) and (q) ofthe 1984

amendments to RCRA, the EPA was assigned the direct responsibility to establish

air emission standards for hazardous waste incinerators and kilns burning hazardous waste as fuel. General authority to address emissions from hazardous waste incinerators has existed in RCRA since 1976. OSWER, as the EPA office charged with

implementing these requirements, issued its first regulation for incinerators in

1981. Therefore, given OSWER’s historical role in writing air emission standards for

these types of facilities it was logical that OSWER would take the lead responsibility for the HWC MACT standards. The Office of Air and Radiation (OAR) agreed

to support OSWER in the development of the CAA MACT standards in two ways—

generally applicable engineering principles applicable to combustion and ad pollution control devices, if and when appropriate, and also with respect to the procedures used to determine MACT Boors and beyond the floors.

For municipal solid waste incinerators and medical incinerators, OSWER has no

expertise in regulating air emissions from these sources and OAR has that type of

previous experience in assessing control options for these source cakgones, therefore,

the Agency has used OAR to develop the MACT standards for this class of units.

Each of these decisions is weighed with respect to experience, current workload, and

other administrative factors to make sure that the Agency’s resources are deployed

in a reasonable and effective manner.
80

Regarding the Risk Management Plans

Question 1. Because the Administration has been so late in responding to the se- curity concerns will you issue a stay for the reporting deadline for all respondents

to match the stay the Court gave the propane industry, until the security issue can

be properly addressed? Response. On May 7, 1999, the Department of Justice transmitted to you and other Members of Congress a dray bill entitled ‘‘Chemical Safety Information and

Site Security Act of 1999.’7 This draft legislation is the product of an interagency

group, convened by the Department of Justice which included representatives Dom

the Environment Protection Agency, the Ounce of Management and Budget, the National Secunty Council, and several components of the Departnent of Justice, including the Federal Bureau of Investigation. The proposal would continue to permit appropriate dissemination of the offsite consequence analysis information, within some

limits, without introducing unnecessary risks to public safety. We hope that it will

be considered quickly and enacted. Since facilities have had 3 years to address risk management program require- ments, the Agency does not believe that a stay in the reporting deadline would be

in the best interest of chemical safety. The Agency already has received voluntary

submission of approximately 500 Risk Management Plans.

Question 2. In my followup questions to the March 16, 1999 Risk Management Plan Hearing I asked you:

‘‘During the hearing, eve had testimony from the President’s of the American

Fawn Bureau and the National Propane Gas Association contradicting the EPA estimates of the number of facilities which will be required to report on propane. Apparently the North Carolina Depa’l’. . ent of Environmental Resources has estimated

that 11,000 farm facilities in North Carolina alone will be required to report. Please

provide an updated EPA estimate of the number of propane facilities (all types of

facilities) and an explanation for the discrepancies in the estimates.’’

You responded by stating that the American Farm Bureau and the National Propane Gas Associatior’ had contradicted each other. If you reread their statements

you will see that they did not contradict each other. The Farm Bureau’s 10 percent

figure was used to illustrate the estimated costs. Please reexamine your response

to this question and provide the updated estimate.

Response. EPA assumed from your origins followup question that the 10 percent

figure in the American Farm Bureau (AFB) testimony was not only illustrating their

estimate of the cost of the Risk Management Program (RMP) rule but was also an

estunate of the number of farms covered by the Rum rule, since it contradicts EPA’s

estimates EPA also asks Congress to recogruze that the information in correspondence between the North Carolina Department of Agnculture and EPA has been mixcharacterized and used incorrectly in cost and covered universe estimates. The National Propane Gas Association (NPGA) testimony states: ‘‘The Worth Carolina3 Department [of Agriculturel sent a letter to EPA on November 9J 1998 stating that

in North Carolina, approxiInately 11,000 farms use propane to cure tobacco. In

other words, a single propane user sector—farmers—of a single propane use—curing

tobacco—in a single state totals nearly 33 percent of EPA’s entire national estimate

for propane.’’ (Emphasis in original). NPGA does not misquote the letter, but the

reader is led to believe that all 11,000 farms handle more than 10,000 pounds of

propane and would be covered by the RMP rule But the letter itself never reaches

this conclusion Additional data subsequently received from the North Carolina Department of Agriculture makes it clear that far fewer than 11,000 farms are actually

covered by the RMP rule North Carolina indicated that only 155 farms (of all types)

have greater than 5,000 gallons (about 21,000 pounds) of propane in a single tank

or greater than 4,000 gallons aggregate (about 17,000 pounds)—No data was available on the number of farms having more than 10,000 pounds but less then 17,000

pounds, or the number of faIms having less than 10,000 pounds of propane Therefore, to estimate the number of farms potentially covered by the RMP rule nationwide (those handling more than 10,000 pounds), EPA used the 155 North Carolina

farms as a basis along with state-by-state propane sues data and the knowledge

that North Carolina consumes far more propane for farm use than the national average. EPA believes using e North Carolina and propane sales data this way creates

a reasonable estimate of the number of fanns potentially covered by the RMP rule.

EPA recognizes that more than l SS farms in North Carolina may handle more Man

10,000 pounds of propane; however, even if an exact count were available, basing

a national esbrnate solely on North Carolina data would grossly overestimate the

number of farms potentially covered because North Carolina consumes more propane for farms than all other states. Our current estimates of the number of facilities, including farms, handling more than 10,000 pounds of propane are as follows:
81

Estimate of propane facilities covered by the RMP rule tenor to the court stay):

Number of Retail facilities = 12,500

Number of Non-fann Users = 16,100

Number of Farms = 5,300

Total= 33,900

RESPONSES BY TIMOTHY FIELDS, JR. TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. You are aware of my concerns regarding parties left facing joist and

several liability after EPA settles with de minimis and other parties. EPA opposed

bi-partisan legislation last year that would have established a fair share allocation

system dealing fully with this problem. As you know, I am especially concerned

about third-partr contribution actions vhere PRPs who have signed Consent Decrees

with EPA sue parties who did not join in the settlement.

EPA’s current policy—letting some polluters off the hook and providing inadequate orphan share to others—exacerbates rather than ameliorates the system’s

unfairness. As you know, mandatory orphan share, mixed funding agreements and

forgiveness of past costs do not fully address the unfair contribution suit problem.

What new ideas have you developed since our meeting to help those victimized by

large PRPs in third-party contribution suits?

Response. Through EPA’s Arlministrative Reforms, the Agency has succeeded in

making Superfund fairer and cutting litigation for small parties. For example,

through Administrative Reforms we have developed our Municipal Solid Waste Settlement Policy, which allows generators and transporters of municipal solid waste

to settle with the Agency for a flat rate of $5.30 per ton. In addition, we have instituted the Orphan Share policy, under which we provide a contribution in lieu of insolvent and defunct parEes at each eligible settlement, up to 25 percent of the cost

of the proposed remedy. The President has continuously requested additional funds

for this purpose each year as a part of EPA’s budget. Our de minimrs Id de

micromis policies continue to be effective in protecting parties from contribution

suits—we have settled with over 18,000 of these parties. Finally, we continue to approve ability-to-pay settlements, for those parties who can show financial hardship,

in order to provide contribution protection to these parties.

Even so, in some circumstances panes that should never have been subject to the

Superband liability web are unfairly targeted by large PRPs in third-party contribution suits. Legislation to exempt innocent landowners, prospective purchasers, contiguous property owners, and small businesses arid homeowners that sent household waste hom CERCLA liability would provide more fairness and Neatly reduce

third-party litigations against small parties. EPA also supports giving the Agency

authority to spend $200 million a year to provide orphan share Finding to encourage

settlements at Superfine sites.

Question 2. EPA’s Superfund Reforms Annual Report fiscal year 1998 concludes

that flexibility in the fair share allocation process to address site-specific issues is

critical. EPA supported a prescriptive bill in the 103d Congress. Would EPA support

legislation containing a more flexible allocation system in this Congress?

Response. As part of its Superfiind Administrative Reforms, EPA undertook 12

pilot allocation projects to ’test drive’ the allocation provisions of the 1 03rd Congress. Our experience with the pilots has shown us that prescriptive, mandatory allocations are generally not conducive to reaching expedient settlements. In addition,

at many sites, allocations are simply not necessary, and may lead to delays and increases in transaction costs for all pardes involved. As a result, a statutory allocation system is not something we find that the Superfine program needs now. EPA

also supports giving the Agency authority to spend $200 million a year to provide

orphan share fundLng to encourage settlements at Superband sites. The President’s

fiscal year 2000 budget reque fits $200 million for orphan share finding.

Question 3. The GAO testified earlier third year before the House in a hearing

at which you also appeared. GAO testified that ‘‘completion of construction at existing sites’7 and reducing new entries into the program was EPA’s top Superfund priority. Do you agree with GAO’s characterization in this regard? If not, why not?

Response. Completion of cleanup construction at existing Superfine sites has been

and continues to be the top priority for the program The Agency’s 1997 Strategic

Plan has identified construction completions as a major goal for the program. EPA

has not identified ‘‘reducing new envies into the program’’ as a top Superfi’nd priority, as GAO seems to have stated. EPA Administrator Browner and others have

noted, however, that the program is maturing. Evidence of this is the fact that the
82

slumber of sites added to the CERCLIS Inventory for Superband assessment has declined in recent years. As late as the mid-1 990’s, over 1,000 sites were added to

CERCLIS annually. The average for the past 2 years was approximately 500 sites

per year.

Question 4. EPA agreed ‘‘with the basic findings and recommendations’’ of a November 1998 GAO report stating that there are still 3,036 sites awaiting an NPL

listing decision lay EPA, 73 percent of which have been in CERCLIS for more than

a decade.

Question A. How many of those sites will be the subject of a listing decision this

year?

Response. Since March 1998 (when the GAO began their audit), EPA has proposed 60 sites to the NPL. Slightly under half of these proposed sites came from

the GAO survey universe of 3,036 sites. EPA is working win States to make decisions on the remaining sites in the audit universe over the next several years, but

until we have consulted with all the States, we cannot provide a definitive schedule

for completion of this effort.

As an immediate response to the audit, EPA identified nearly 600 sites that could

potentially require removal actions, performed file reviews of these sites, and determined that 47 of these sites needed an onsite assessment. Those 47 sites are currently being scheduled for inspections, to determine what, if any, removal activities

are needed.

Question B. When do you anticipate completing the evaluation of the remaining

sites?

Response. EPA anticipates that the evaluations for some regions (those with approximately 100 sites) will be completed next year. For several regions with a larger

number of sites, however, the evaluations will take several years. These evaluations

also must be prioritized with evaluations of other sites not part ofthe GAO audit

universe. (States identify about 500 sites a year that need assessment.)

To avoid duplication of effort, and enhance the role of States in the process, EPA

is holding meetings with State officials in an effort to divide up the GAO universe

and allow States to take e lead on many of the GAO audit sites. EPA will then assess the remaining sites. Some of these discussions are occurring now and EPA and

States will need to establish individual schedules based on resource and funding

constraints. EPA committed to GAO that the Agency would prepare a status report

by 2/28/00 on how regions and States are proceeding.

Question C. GAO further stated in their November 1998 report that EPA regional

employees and other officials believe 1,234 of those sites are ‘‘unlikely’’ to become

eligible for the NPL. What is your estimated schedule for archiving those sites?

Response. EPA agreed to archive those sites that are not eligible for the NPL by

the end of Fiscal Yew 1999. EPA did not agree to immediately archive other sites

in the ‘‘unlikely’’ categoric that are generally undergoing State cleanups. Archiving

this group is appropriate only after the cleanup has been completed. Indeed, some

States have asked that EPA keep these sites in CERCLIS until cleanup is complete,

to help ensure that those cleanups are completed successfully. Moreover, while

many sites in that category refight be safely archived, EPA will need to evaluate

each site individually. So far, EPA has proposed 9 sites to the PAL that were included in the Unlikely to be eligible’’ category. The States supported the listing in

all 9 cases.

Question D. GAO recommended that EPA and the States ‘‘should develop a Joint

strategy for addressing these sites.’’ EPA specifically concurred in this recommendation.

I. When will you have this strategy finished?

II. With which State organizations are you working?

Response. EPA regions are working win each State to assign leads for each ofthe

sites in the audit. We will issue a status report by February 28, 2000, and will have

all sites assigned as soon as these discussions me completed. In addition to working

with each of the affected States, we have discussed our plans with the Association

of State and Temtorial Solid Waste Management Officials (ASTSWMO) newell.

D(a). Please consult with committee staff during development of this strategy.

Response. I will have my stay consult with the committee staff as we develop this

strategy.

Question 5. In response to questions submitted after the budget oversight hearing

on February 24, EPA stated that it expects to list 40 sites on the NPL this year,

even though historically the average has been 26. In fact, EPA expects to achieve

this 53 percent increase in site listings at the same time EPA’s budget request is

30 percent less than it was last year. That appears to be a reallocation of resources
83

and priorities based on a combination of increased efficiencies through your administrative reforms and the fact that the cleanup program is ramping down.

Question A. How many site assessments did EPA, either by contract or cooperative agreement, perform in fiscal year 1998?

Response. See table below.

Question B. How many site assessments do you anticipate performing in fiscal

year 1999?

Response. See table below.

Number of Superfund Site Assessments Funded by EPA

(Contractors and Cooperative Agreements)

Assessment Type FY 1998 (Actual)

FY 1999 (Estimate)

Pre-CERCLIS Screening 1 .................................................................................................................. 1,205 1,006

Preliminary Assessment 2 ................................................................................................................ 330 387

Site Inspection 3 .............................................................................................................................. 549 704

Source SCAP–13 Report

1 Pre-CERCLIS Screening activities involve cursory evaluations to erasure that only sites requiring Federal Superband assessment work get

added to the EPA’s Comprehensive Emergency Response, Compensation and Liability Information System (CERCLIS) data set. 2 Preliminary Assessments involve collection and review of available technical and site history information at sites added to CERCLIS to

determine whether a threat or potential threat exists. 3 Site Inspections involve collection and review of more detailed data, ant generally include additional sampling information to confirm the

presence of hazardous waste.

Question C. What are your projections for annual site assessments for fiscal years

2000–2005?

Response. While EPA has not made projections for the specific number of site assessments in the future, we have estimated the number of final assessment decisions through fiscal year 2005 as part of the Agency’s reporting under the Government Performance and Results Act (GPRA). Final assessment decisions are tracked

to ideate y sites with completed Superfund site assessment activities (e.g., no further action, deferral to RCRA, proposal to the NPL, etc.) Final assessment decisions

are an end product of individual assessment activities, such as Preliminary Assessments and Site Inspections.

The following table shows the number of find site assessment decisions made in

fiscal year 1998 and the number of decisions we estimate for each year from fiscal

year 1999 through fiscal year 2005 as part of our GPRA planning efforts.

Final Assessment Decisions Developed for GPRA Reporting

Fiscal Year No. of Final Site Assessment Decisions

FY 1998 .................................. 486 (Actual)

FY 1999 .................................. 530 (Estimate)

FY 2000 .................................. 530 (Estimate)

FY 2001 .................................. 530 (Estimate)

FY 2002 .................................. 530 (Estimate)

FY 2003 .................................. 530 (Estimate)

FY 2004 .................................. 530 (Estimate)

FY 2005 .................................. 530 (Estimate)

Question D. What are your projections for annual listing decisions in fiscal years

2000–2005?

Response. It is hard to project fixture listing decisions on a year-by-year basis

since there are so many variables involved in making listing decisions. In addition

to technical site conditions, we believe it is important to consider factors such as

State support, cleanup work performed by potential responsible parties, and Federal

finding and staffing resources when projecting fixture listing decisions. More recently, we’ve raised our internal fiscal year 1999 estimate of new proposals of up

to 40 sites. The average number of listings for the past 6 years has been 26 per

year, so a range of 26 to 40 sites per year for fiscal years 2000–2005 appears to

be a reasonable estimate.

Question 6. Your testimony and EPA’s ‘‘Superfund Reforms Annual Report for fiscal year 98’’ estimates future cost reductions or savings of more than $1 billion due

to remedy reforms. The Annual Report states that ‘‘EPA expects these savings estimates to increase as regions complete their analyses.’’
84

Question A. Given that this reform was initiated in 1995 and average cleanup

time ranges between 8 and 10 years, should we anticipate realizing the bulk of

those life-cycle cost savings during the next 5 years?

Response. The more than $1 billion estimate reflects savings from two administrative reforms, Remedy Updates (over $1 billion from more than 200 reviews) and the

National Remedy Review Board (over $40 million from 33 reviews). The timing of

the savings and the beneficiary of the savings vary from site to site. Remedy Update

savings are most likely to accrue faster because the proposals are for updates to existing Records of Decision (RODs) for sites/projects that can be in the design or construction phases, or in operation and maintenance (e.g., ground water pump/treat

actions). Reviews by the National Remedy Review Board (NRRB) occur during or

after the Remedial Investigation/Feasibility Study, but prior to ROD signature.

These savings will occur during Be remedy implementanon phase and in most instances would be within the 5-year window cited. For both Remedy Updates and

CURB Reviews, the beneficiaryy of the savings can either be the Superfund Trust

Fund for a fund-financed response, or a Potentially Responsible Party or over Federal Department when they are financing the remedy.

Question B. At how many other sites do you expect to replicate these savings?

Response. Remedy Updates and the NRRB remain active reform initiatives under

the Superfund process. The NRRB has reviewed an average of about 12 sites per

year and we expect that trend to continue. Remedy Updates have averaged about

65 updates per year for the past 3 years and we hope they will continue at a similar

pace, depending on the demand.

Question C. What additional savings do you expect to realize through administrative reforms in remedy selection and other areas?

Response. As noted above, we expect Remedy Updates and NRRB reviews to continue. It is anticipated that these projected annual cost savings will continue to be

several hundred million dollars. Remedy selection guidance reforms (e.g., Presumptive Remedies), are intended to streamline the response process or clarify performance expectations and improve consistency, thereby saving both time and money.

Over Administrative Reforms have, and will continue to result in cost reductions for

PRPs undertaking response actions. These include guidance on future land use,

streamlining PRP oversight, and orphan share compensation.

Question 7. There are currently 1,264 sites on or proposed for the NPL. The GAO

report referenced above, in which EPA concurred, states that a maximum of 232

sites are likely to be added to the NPL. EPA’s answers to questions for the record

ofthe February 24th budget oversight bearing stated goals of:

40 site listings per year;

85 construction completions per year, and

completing construction at 1180 sites by the end of fiscal year 2005

Assume that all of the sites GAO expects to be added are added to the NPL.

Please provide this committee with estimates for Superfund funding needs in light

of the GAO data, projections for construction completions, and any future expected

cost savings due to remedy or other administrative reforms. Please provide separate

estimates for direct response action costs, indirect costs, and inter-agency transfers.

Response. EPA expects to achieve 1,180 construction completions through 2005,

assuming an annual appropriation of 1.5 billion. This projection was based on a

combination of historical performance, planning estimates contained in EPA’s information systems, budget assumptions, and strong focus on an increased pace to

achieve cleanups at NPL sites. The methods to implement the Agency’s goals are

presented in the President’s annual submission of the proposed Superband budget

to Congress. This budget includes contractor and staff resources for cleanup/response, enforcement, management and support, and research, as well as resources

for other Federal agencies that carry out Superfund-related functions.

As stated in the Administrator’s earlier response, we do not know how many sites

we will list on the NPL each year. In order to maximize cleanups and environmental

benefits, we depend on a number of approaches in addition to the NPL. We are

cornrrutted to working with our State partners to determine what sites are most

appropriate for the NPL. We will list sites on the NPL ordy after considering several

factors, such as whether a site presents a serious threat to human health and the

environment, whether a State requests EPA to list a site, or whether a State is unable or unwilling to conduct the cleanup. EPA’s commitment to States also includes

maintaining a strong site assessment program, not merely as a tool to list NPL

sites, but as a way to encourage potentially responsible parties to work closely with

States to achieve cleanups in lieu of NPL listing. EPA also foresees having a substantial role in post-construction related activities at NPL sites to ensure that Implemented remedies remain protective in lhe future. As more sites complete con-
85

struction, the use of resources will increasingly shift toward compliance and environmental mornitoring and response work at facilities where waste remains in

place.

The fiscal year 1999 enacted $1.5 billion budget includes $1.005 billion for con- tractor and staff resources for cleanup/response, $145 million for EPA enforcement,

$135 million for management and support, including audits, $40 milhonfor research

and-development, and $175 Bullion for other Federal agencies that catty out

Superfitud-related functions. We expect the proportions of Superfund resources allocated to each of these categories to remain stable through EY 2005. Although we expect Superfund Reforms, such as Remedy Updates and National Remedy Review Board reviews, to continue through 2005, it is not possible to project

the level of estunated savings fiom future actions. Remedy selection guidance reforms (e.g., Presumptive Remedies) are intended to streamline the response process

or clanfy performance expectations and unprove consistency, thereby saving both

time and money. Other Adrninistrative Reforms did, and will continue to, result in

cost reductions for PRPs who undertake response actions.

EPA’S STRATEGY FOR ENFORCEMENT OF REGULATORY REQUIREMENTS APPLICABLE TO

UNDERGROUND STORAGE TANK (UST) FACILITIES

AUGUST 10, 1998

This document describes the U.S. Environmental Protection Agency’s (EPA) strat- egy for enforcing the regulatory requirements applicable to underground storage

tanks (USTs)as of December 1998. EPA will work with States and, as necessary,

augment State efforts by taking Federal action. This document was developed jointly by EPA’s Office of Underground Storage Tanks (OUST) and Office of Enforcement and Compliance Assurance (OECA), in

concert with Regional Office UST program managers and enforcement coordinators.

Background

By December 22, 1998, all USTs installed before December 22, 1988 that are not

already protected against corrosion, spills, and overfills must be upgraded, replaced,

or properly closed. The EPA Administrator has already announced that the Agency

will not extend the deadline. Other UST regulatory requirements, including those

for release detection, financial responsibility, and reporting and remediation of UST

releases will remain in effect. In the Code of Federal Regulations (CFR), EPA’s requirements appear in 40 CFR Part 280.

EPA can enforce the Federal requirements in States and territories that do not

have EPA’s approval to run their own UST programs in lieu of the Federal program,

and in Indian Country. In approved States and territories, EPA can enforce State

regulations that were included in the State Program Approval process, even if they

are more stringent than the corresponding Federal regulations. The Agency cannot

enforce State regulations that are broader in scope than the Federal regulations,

e.g., those applicable to UST systems not covered by the Federal regulations, such

as heating oil tanks for direct consumptive use.

EPA’s goal is full compliance with the 1998 requirements as quickly as possible.EPA does not and will not condone non-compliance. EPA’s regulations do not

provide for a grace period in which violations can be corrected without a penalty

. By December 1998, UST owners/operators will have had 10 years to comply with

these requirements. During this 10-year period, EPA conducted extensive outreach

activities to inform the regulated community of the upcoming 1998 technical requirements and provided compliance assistance to owners and operators of UST facilities. Given the threat that sub-standard tanks pose to human health and the environment, EPA believes it is essential to ensure that violations are promptly corrected.

What EPA expects States to do

The philosophy that has guided the UST program since its inception is that States

have the primary responsibility for implementation and enforcement of UST regulations (except in Indian Country). EPA therefore has devoted a major share of its

UST resources to supporting and helping strengthen State programs and will continue doing so.

EPA expects States to take the lead in securing compliance with the 1998 UST

requirements. EPA recognizes that States can use various enforcement activities to

achieve compliance. These enforcement activities can include filing administrative

or judicial actions or immediately stopping operation of a non-complying tank (e.g.,

by using their ‘‘red tag’’ authority). Some States do not have statutory authority to
86

assess and collect penalties administratively and must initiate a judicial action if

penalties are to be assessed. While the judicial process may be time-consuming,

States should use their enforcement authority to demonstrate to UST owners and

operators that they cannot ignore UST requirements with impunity. In the months leading up to the December 1998 deadline, EPA expects that States generally will continue to monitor and enforce compliance with UST requirements

already in effect, including those for release detection; remind UST owners/operators

of their obligation to upgrade, replace, or properly close sub-standard UST systems;

make UST owners/operators aware that enforcement action will be taken against

those who miss the deadline; and, in concert with EPA Regional Offices, develop

plans for post-deadline compliance and enforcement activity. EPA expects that States will expeditiously identify non-complying UST facilities, including marketers and non-marketers, after the deadline and require those facilities to be promptly upgraded, replaced, or properly closed. States with UST programs that lack UST regulations or a fixed deadline for up- grading, replacing, or closing sub-standard UST systems should work with EPA Regional Offices to develop procedures for dealing with violations; such procedures

may include referring cases to EPA for appropriate action.

EPA will continue to assist States

EPA is prepared to assist States in carrying out their UST compliance and en- forcement responsibilities by continuing its own extensive outreach to UST owners/

operators; helping States train UST inspectors; fostering exchanges of information

among the States about effective means of securing compliance; and supporting

States’ efforts to design and implement cost-effective ways of increasing their field

presence.

When EPA will take action

Under RCRA Subtitle I, EPA has the authority to and will inspect UST facilities in order to assess compliance with the UST regulations. While EPA may take enforcement actions in all States, its activities will be concentrated in States that have

less active UST enforcement programs. EPA also will try to be responsive to requests from any State for support in dealing with Federal agencies or other UST

owners-operators who are resistant to State compliance efforts.

Factors the Agency will consider in deciding when and where to conduct inspec- tions will include UST compliance levels and the level of States’ compliance and enforcement presence. EPA’s Regional Offices will be responsible for selecting the

States in which Federal action will be undertaken. Regional Offices will have continuing communication with States about the status of State compliance and enforcement activities. EPA will give notice to State officials before undertaking UST

inspections or initiating UST enforcement actions (other than issuance of field citations) in accordance with the agreements States have with EPA (e.g., State Program

Approval Memorandums of Agreement). Because EPA believes it is essential that Regional Offices have latitude in decid- ing where to initiate Federal actions, the Agency will not establish criteria for such

decision-making. Some degree of consistency from one Regional Office another is

nevertheless important; EPA believes that such consistency can be achieved through

ongoing communication between EPA Headquarters and Regional Offices. . EPA will continue to monitor and enforce UST compliance in Indian Country. En- forcement activities in Indian Country generally will be guided by this strategy.

UST facilities not owned and operated by Native American Tribes will be subject

to enforcement action in the same manner as UST facilities elsewhere in the U.S.

Tribally owned and operated UST facilities will be subject to enforcement action in

accordance with EPA’s Indian Policy Implementation Guidance issued on November

8, 1984.

EPA will also conduct UST inspections and issue administrative penalty orders or field citations at Federal facilities using newly clarified Subtitle I authorities.

RCRA provides penalty and order authority to EPA for use against Federal agencies

for violations of UST requirements. States should also inspect Federal facilities and,

as appropriate, issue compliance orders.

How EPA will deal with non-compliance

After December 22, 1998, it will be illegal to operate UST systems that are not equipped to protect against corrosion, spills, and overfills. Owners/operators who

miss the deadline must bring sub-standard UST systems into compliance by upgrading, replacing, or closing them. If EPA finds them in violation, they will be subject

to monetary penalties for periods of non-compliance.

EPA’s goal is to ensure that sub-standard UST systems are brought into compliance by the regulated community. When UST owners and/or operators fail to comply
87

with the 1998 deadline requirements, EPA will initiate enforcement actions to ensure prompt compliance with the UST regulations. EPA’s position is not to allow

continued operation of sub-standard UST systems after December 22, 1998. Toward

that end, EPA takes the position that sub-standard UST systems should be temporarily closed until the work necessary to upgrade, replace, or permanently close

them is completed. Alternatively, EPA may refer the matter to the State UST implementing agency where a State has the authority to shut down such an UST facility

without initiating administrative or judicial proceedings.

In pursuit of its goal, EPA will use all the enforcement tools available for dealing

with UST violations, including, administrative and judicial enforcement actions. Judicial enforcement actions are particularly appropriate in situations involving recalcitrant parties. The Agency may use field citations in some circumstances for a limited period of time after the December 1998 deadline. In situations where the inspection shows that a release has occurred or is occurring, EPA’s regulations require

owners/operators to take immediate action to prevent any further release, as well

as other steps to respond to the release. EPA can use RCRA Secs.7003, 9003(h), or

9006, to issue administrative orders to require cleanup or initiate judicial action requesting temporary or permanent injunctive relief. EPA can also use Sec. 9005 information request letters to gather information from owners/operators of UST facilities.

Temporary closure and upgrading after 1998

UST owners/operators can comply with the Federal regulations by upgrading, replacing, or properly closing (either permanently or temporarily) their sub-standard

USTs. During the time in which an UST system is temporarily closed, it is permissible to upgrade, replace, or permanently close it. If the period of temporary closure

of a sub-standard UST system extends past December 22, 1998, the UST must be

upgraded or replaced before it can be legally operated.

EPA’s regulations allow a sub-standard UST system to remain in temporary closure for a maximum of 12 months unless the owner-operator completes a site assessment and obtains an extension from the responsible UST implementing agency;

States and the EPA are not obliged to grant such extensions. EPA’s position is that

sub-standard UST systems, that have not been granted an extension by the implementing agency, should not remain in temporary closure beyond December 22, 1999,

even if the USTs were placed into temporary closure after December 22, 1998.

Other Settlement and Enforcement Policies

In appropriate circumstances, EPA may use the Agency’s ‘‘Interim Policy on Compliance Incentives for Small Businesses’’ (June 3, 1996)(61 FR 27984)(Small Business Policy); ‘‘Policy on Flexible State Enforcement Responses to Small Community

Violations’’ (November 22, 1995)(Small Community Policy); ‘‘Supplemental Environmental Projects Policy’’ (May 1998)(SEP Policy) and the Ability to Pay guidances,

in settlements of UST enforcement cases. These policies can be used for settlement

purposes only; they are not used for pleadings or at hearings or trials. Copies of the

EPA settlement policies are also available through EPA’s Internet site at http://

www.epa.gov/OECA.

This document does not establish or modify any regulatory requirements; it provides guidance on policies and procedures but does not constitute final Agency action on any matter. It also is not intended, and cannot be relied upon, to create any

right, benefit, or trust responsibility enforceable by any party in litigation with the

United States.

MEMORANDUM—ENVIRONMENTAL PROTECTION AGENCY

December 9, 1998

SUBJECT: EPA’s Inspection and Compliance Assistance Priorities For Underground Storage Tank Systems Not Meeting The 1998 Deadline,

FROM: Steven A. Herman, Assistant Administrator, Office of Enforcement and

Compliance Assurance

TO: Timothy Fields, Jr., Acting Assistant Administrator for the Office of Solid

Waste and Emergency Response

TO: Regional Administrators, Regions I-X

This memorandum clarifies some aspects of the August 10, 1998 memorandum

entitled, ‘‘Underground Storage Tank 1998 Deadline Enforcement Strategy.’’ In particular, this memorandum provides EPA Regional Of flees guidance on the subsection of the strategy entitled ‘‘When EPA will take action’’ which contained the

following:
88

Because EPA believes it is essential that Regional Offices have latitude in de- ciding where to initiate Federal actions, the Agency will not establish criteria for

such decisionmaking. Some degree of consistency from one Regional Office to another is nevertheless important; EPA believes that such consistency can be

achieved through ongoing communication between EPA Headquarters and Regional Offices.

As part of that ongoing communication, today’s memorandum reflects a continu- ing assessment of UST compliance levels and the best ways for EPA to use its limited resources to reach underground storage tank (UST) program environmental

goals. The attached document provides further background information on this subject and States EPA’s Federal inspection priorities for Regional Offices. Our primary concern remains finding the most efficient way to ensure that USTs do not leak by meeting standards for protection from spills, overfills, and corrosion.

Working in partnership with States, we believe that focusing EPA’s resources over

the next 6 months on compliance assistance activities, especially for small businesses and local governments, and high priority inspections is the most effective approach to reaching our environmental goals of protecting human health and the environment from substandard USTs. Since the UST program’s inception, EPA has

been sensitive to the need for balancing our environmental goals with concerns

about unduly impacting small businesses and local governments. While we are not extending the deadline, we believe it necessary to set priorities to reach most effectively the environmental goals of the Federal UST program. If

you have any comments on this memorandum, please contact Joan Olmstead (202)

564–4018 in the Office of Enforcement and Compliance Assurance or Sammy Ng

(703) 603–7166 in the Office of Underground Storage Tanks.

SUPPLEMENTAL INFORMATION REGARDING THE AUGUST 10, 1998 ENFORCEMENT

STRATEGY

DECEMBER 9, 1998

This document pertains to the U.S. Environmental Protection Agency’s (EPA)

strategy for enforcing the regulatory requirements applicable to underground stooge

tanks (USTs) as of December 1998.

Background

December 22, 1998 marks 10 years that the U.S. Environmental Protection Agency’s regulations for underground stooge tanks (USTs) have been in effect. During

this time, the UST program has significantly reduced the threat to human health

and the environment posed by USTs:

• Over 1.2 million substandard USTs in service in 1988 have been taken out of

operation, thus removing them as sources of leaks; and

• Of the 892,000 USTs currently in operation, approximately 500,000 USTs meet

tough federal standards that protect human health and the environment.

EPA would like to recognize those parties that have come into compliance by upgrading, replacing or closing their tanks. Their efforts help to reduce the threat of

petroleum and hazardous substances being released into the environment.

EPA has also made every effort during the past 10 years to alert UST owners

about the 1998 deadline:

• EPA has distributed over 1.4 million compliance assistance documents, many

of which were focused on timely compliance with the 1998 requirements;

• EPA, States, and industry have used and continue to use web sites, telephone

hotlines, ‘‘Mining, and conference presentations to broadcast UST compliance information; and

• Many State UST programs and professional/trade associations have used EPA

compliance assistance materials (or adapted them or made their own materials), distributing several hundred thousand documents to their constituents.

Despite these efforts by EPA, States, and industry to effect full compliance, it has

become clear that a significant number of USTs will not be in compliance by December 22, 1998. For some, it is a matter of poor planning and the unavailability of

equipment and contractor assistance. For others, it may be a lack of financial resources. EPA will undertake a number of efforts to address this situation.

Providing Additional Compliance Assistance and Setting Inspection Priorities

With the deadline imminent, EPA will undertake several efforts to address the

many USTs that will not be in timely compliance.

State Partnership: In developing policies to assure compliance with the 1998

deadline, EPA has worked very closely with the States to assure that we take appro-
89

priate and fair action against those owners and operators that have failed to comply

with the law. In doing so, EPA continues to recognize that the States are the primary enforcers of this law and that many States have enforcement authorities that

are more extensive than those of the federal government. Compliance Assistance: Given the large number of facilities that remain in non- compliance, EPA will continue its compliance assistance efforts, especially for small

businesses and local governments. EPA will continue to assist UST sectors in their

compliance efforts by providing compliance assistance information and helping to

identify available sources of financing for UST upgrading, closing, or replacement.

Owners and operators of USTs are encouraged to take advantage of available financing to upgrade or replace their USTs as expeditiously as possible. Some States

have developed assistance programs for UST owners with many programs targeted

to small businesses. These programs include grants, direct loans, and loan guarantee programs. In addition, the Federal Government has several programs that may

provide assistance to UST owners (including Small Business Administration, RUMI

Development Administration, Economic Development Administration, and Administration for Native Americans). For more information, please see EPA’s publication

entitled ‘‘Financing UST Work: Federal and State Assistance Programs.’’ Disclosure and Self-Correction: For those government agencies, businesses and other owners and operators of facilities that will not be in compliance by the deadline, EPA continues to encourage them to disclose their violations pursuant to EPA’s

‘‘Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of

Violations’’ (Dec. 22, 1995)(60 FR 66706)(Audit Policy), EPA’s ‘‘Interim Policy on

Compliance Incentives for Small Businesses’’ (June 3, 1996)(61 FR 27984)(EPA’s

Small Business Policy), or similar State policies. EPA’s Audit Policy encourages regulated entities to voluntarily discover, promptly disclose, expeditiously correct and

prevent violations of Federal environmental requirements in order to mitigate gravity penalty amounts by 75 percent and in some cases up to 100 percent. Owners

and operators of underground storage tanks should recognize that disclosure of violations to EPA under the Federal Audit Policy does not provide protections from

State enforcement action. Indeed, except for disclosures from facilities in New York,

Idaho, Hawaii, and Indian Country, EPA will share all disclosures with the appropriate State agency and consult with them before resolving any violations. Owners and operators of facilities located in New York, Idaho, Hawaii, and Indian

Country should send their disclosures to the appropriate Regional EPA office for

Audit Policy consideration (see attached list of contacts). Facilities located in States

with Audit Policies that meet the Federal criteria articulated in the Feb. 14, 1997

memorandum entitled, ‘‘Statement of Principles Effect of State Audit Immunity/

Privilege Laws On Enforcement Authority for Federal Programs,’’ should send their

disclosure to their appropriate State regulatory agency. High Federal Enforcement Priority: During the first 6 months following the deadline, EPA will focus its federal inspection resources in areas that can produce the

greatest environmental and human health benefit. In particular, EPA will focus its

resources on:

• Federal facilities;

• Owners and operators of multiple UST facilities;

• Owners and operators of large facilities with multiple USTs; and

• Facilities that are endangering sensitive ecosystems or sources of drinking

water by failing to upgrade, replace, or close USTs.

These UST owners are strongly urged to move quickly to come into compliance,

as they could be subject to State enforcement actions or citizen suits. In addition,

many fuel distributors have told EPA that they may not deliver fuel to USTs that

have not been upgraded or replaced.

Low Federal Enforcement Priority: During the first 6 months immediately after

the deadline, EPA will not focus its Federal inspection resources on the following

types of UST facilities:

• Small UST facilities (generally four or fewer tanks) owned and operated by one

person not owning or operating other regulated UST facilities; and

• USTs owned or operated by local governments and States (including public

service entities such as school districts, fire departments, and police departments).

Small businesses and local governments are strongly urged to move quickly to

come into compliance, as they could be subject to State enforcement actions or citizen suits. In addition, as noted above, many fuel distributors have told EPA that

they may not deliver fuel to USTs that have not been upgraded or replaced.

EPA has established policies for small businesses (‘‘Interim Policy on Compliance

Incentives for Small Businesses’’) (June 3, 1996)(61 FR 27984) (EPA’s Small Business Policy) that allow qualifying parties a waiver of most penalties for prompt disclosure and correction. For example, small businesses that step forward to identify
90

violations and agree to upgrade, replace or close USTs can expect to pay a minimal

civil penalty in the first few months of 1999. That is because the Agency generally

recovers only the economic benefit associated with delayed investment in compliance, which in the first few months after the deadline is quite small. The longer

compliance is postponed, however, the more economic benefit accumulates, so small

businesses and local governments are urged to correct problems within the next 6

months.

This document does not establish or modify any regulatory requirements; it pro- vides guidance on policies and procedures but does not constitute final Agency action on any matter. It also is not intended, and cannot be relied upon, to create any

right, benefit, or trust responsibility enforceable by any party in litigation with the

United States.

EPA Audit Policy Contacts

Region 1 (CT, ME, MA, NH, RI, VT) Suzanne Parent (617) 565–3351

Region 2 (NJ, NY, PR, VI) John Wink (212) 637–3918, (212) 637–4035

Region 3 (DE, DC, MD, PA, VA, WV) Samantha Fairchild (215) 814–2627

Region 4 (AL, FL, GA, KY, MS, NC, SC, TN) Bill Anderson (404) 562–9655

Region 5 (IL, IN, MI, MN, OH, WI) Tinka Hyde (312) 886–9296

Region 6 (AR, LA, NM, OK, TX) Barbara Greenfield (214) 665–2210

Region 7 (IA, KS, MO, NE) Becky Dolph (913) 551–7281 Region 8 (CO, MT, ND, SD, UT, WY) Michael Risner (303) 312–6890

Region 9 (AZ, CA, HI, NV) Leslie Guinan (415) 744–1339

Region 10 (AK, ID, OR, WA) Jackson Fox (206) 553–1073

Violations in more than one EPA Region—David Nielsen (202) 564–2270

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

Washington, DC, 20510, December 22, 1998.

The HONORABLE CAROL BROWNER, Administrator

Environmental Protection Agency

401 St., S.W.

Washington, D.C. 20460

DEAR ADMINISTRATOR BROWNER: I am writing to express my deep concerns re- garding the Environmental Protection Agency’s (‘‘EPA’s’’) revised enforcement strategy with respect to leaking underground storage tanks. I believe that this enforcement strategy is unjustifiable and inconsistent with the Agency’s responsibility to

protect the environment from the threats associated with leaking underground storage tanks. As you know, on December 9, 1998, Steve Herman, the Assistant Administrator of the Office of Enforcement and Compliance Assistance, and Tim Fields, the Acting

Administrator of the Of lice of Solid Waste and Emergency Response, issued a

memorandum purportedly clarifying the Administration’s enforcement strategy with

respect to the December 22 deadline for upgrading or replacing leaking underground

storage tanks. As I read the memorandum, however, it effectively extends the compliance deadline for at least 6 months for the owners of certain tank facilities. Specifically, it States, among other things, that ‘‘EPA will not focus its Federal inspection requirements’’ on tank facilities ‘‘owned or operated by local governments and

States.’’ The effect of this non-enforcement policy will be to allow, and even encourage, governmental owners of a large number of noncomplying underground storage

tanks to continue to ignore the requirements of the law, even where there might

be significant environmental risk, for another 6 months. There is no justification for

distinguishing between public and private tanks. Furthermore, your staff has acknowledged that this apparent 6 month grace period could be extended. That is simply unacceptable.

Owners of underground storage tanks have had 10 years to come into compliance

with the requirement to upgrade, replace or close leaking tanks. The regulated community has supported this requirement and now legitimately expects the deadline

to be strictly enforced. Thousands of private owners of tanks have invested significant resources to comply with the deadline; some have even gone out of business

in order to avoid noncompliance. EPA’s new enforcement strategy is fundamentally

unfair to all of those tank owners who in good faith have complied with the law.

There can be no legitimate reason, for example, to exempt the City of New York

from fully complying with the deadline, when smaller tank owners in the private

sector have been forced to invest in upgrading or replacing their tanks.

I recognize that EPA has limited resources to enforce the underground storage

tank program. I also recognize that EPA’s enforcement strategy does not bind the

States, although it is troubling that at least a few have indicated that they will fol-
91

low EPA’s lead. Thus, while I would support a strategy that targets EPA enforcement resources on those facilities that present the greatest threat to the environment, I cannot support a strategy that arbitrarily distinguishes between publicly

and privately owned facilities for enforcement purposes. That is neither good public

policy, nor good environmental policy.

It is my hope that you will immediately withdraw this new enforcement strategy

and clarify that the Agency will indeed strictly enforce the December 22 deadline.

Affirmation of a strong enforcement policy will not prevent the Agency from exercising sound prosecutorial judgment or relying on compliance assistance where appropriate. At the same time, it will sends a strong message that no one is exempt from

the underground storage tank requirements.

I look forward to your personal attention and response to this matter.

Sincerely,

JOHN H. CHAFEE.

OFFICE OF SOLID WASTE AND EMERGENCY,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Washington, DC 20460, February 15, 1999.

The HONORABLE JOHN H. CHAFEE

U.S. Senate

Washington, D.C. 20510–6175

DEAR SENATOR CHAFEE: Thank you for your letter of December 22, 1998, to Administrator Carol Browner in which you expressed concerns regarding the U.S. Environmental Protection Agency’s (EPA’s) ‘‘revised enforcement strategy’’ with respect

to leaking underground storage tanks.

Let me begin by saying that EPA fully intends to implement the August 1998 national enforcement strategy for underground storage tanks (USTs) which we developed with a great deal of input from the States. We have not extended the December 22, 1998 deadline for upgrading, replacing, or closing substandard USTs for any

group of facilities. USTs that do not meet these requirements are in violation of

Federal and State regulations. What our December 9, 1998 memorandum stated is

how EPA plans to use its limited resources to most effectively enforce the UST deadline in the near term. Thus, for the first 6 months after the deadline EPA will focus

its limited enforcement and inspection resources on high priority facilities which we

believe potentially pose a greater risk to public health and the environment, while

continuing to offer compliance assistance to smaller facilities and State and local

government-owned facilities that are committed to upgrading. This assistance will

not be provided to facilities that do not intend to bring their tanks into compliance.

Under the Agency’s implementation of these enforcement priorities during this period, lower priority facilities are not exempt from requirements, but will be given

more flexible compliance terms if they disclose violations to the Agency promptly,

by no later than February 12. The longer facilities wait during the 6-month period

to disclose violations to EPA, the less favorable the compliance conditions are likely

to be. After June 22, 1999, those facilities specified as lower enforcement priority

in the December 9 memorandum?will be considered to be high enforcement priorities. We believe that encouraging prompt self-disclosure and entering into agreements with expeditious compliance schedules, as well as penalties that recover the

economic benefit of noncompliance, will allow EPA to bring more facilities into compliance than would be possible with inspection and enforcement actions alone.

You expressed specific concerns regarding the placement of local and State governments as a low enforcement priority. EPA believes that there are public interest

reasons for treating local and State governments differently than similarly sized private businesses for a limited period of time (e.g., in order not to disrupt fuel availability for police, emergency vehicles, hospitals or school buses). However, the December 9 memorandum clearly States that high Federal enforcement priority facilities include ‘‘[I]ocations that are endangering sensitive ecosystems or sources of

drinking water by failing to upgrade, replace, or close’’ an UST. Thus, State and

local government facilities that pose a significant public health or environmental

risk will be a high priority for Federal enforcement. Therefore, we believe our policy

allows us to focus on the facilities of greatest health and environmental concern. At

this time EPA is working with a number of localities seeking to self-disclose tank

violations, including large metropolitan areas and smaller municipalities. The Agency will actively work to put these government entities on aggressive schedules that

will ensure prompt compliance. Again, our interest is in ensuring that vital local

services are maintained while the environment is protected from substandard USTs.
92

Since December 22, 1998, we have become aware of certain local governments and small businesses that have contractors onsite upgrading, replacing, or closing their

tanks. Some of these have self-disclosed that they are in violation of the UST deadline, and are entering into compliance agreements to bring affected tanks into compliance. While these tanks were not in compliance by December 22, 1998, we believe

the best course of action is to allow these entities that self-disclosed a short period

of time to bring their tanks into compliance with the UST regulations and pay a

small penalty. Another important clarification is that the policy stated in the December 9 memo- randum only affected EPA actions. It did not affect in any way State enforcement

policies and priorities. In fact, the vast majority of States are following their previously determined strategies which include doing inspections, taking enforcement

actions and, in those States with the authority, ‘‘red-tagging’’ (e.g., stopping fuel deliveries to) noncompliant tanks.

I am encouraged by your support of a strong enforcement program for underground storage tanks. We have worked very hard and well over the past 10 years

with all the States to implement the UST program. We will continue to work with

the States to ensure full compliance with the regulations as soon as possible.

If you have any questions, please feel free to contact me, or your staff may call

George Hull at 202–260–7808.

Yours truly,

TIMOTHY FIELDS, JR., Acting Assistant Administrator.

INTERSTATE OIL AND GAS COMPACT COMMISSION,

February 17, 1999

The HONORABLE JOHN CHAFEE, Chairman

Senate Environment and Public Works Committee

U.S. Senate

Senate Dirksen Washington, DC 20510

DEAR SENATOR CHAFEE: I am writing to urge your swift action in approving the

nomination of Timothy Fields, Jr. as Assistant Administrator for Solid Waste at the

Environmental Protection Agency.

In his capacity as Acting Assistant Administrator for Solid Waste, he has worked

with representatives of member States of the Interstate Oil and Gas Compact Commission (IOGCC). The IOGCC is a Congressionally chartered Compact of 30 oil and

gas producing States. The IOGCC, from 1991 until earlier this year, worked closely

with the EPA on a multi-stakeholder program to upgrade State regulatory programs

for oilfield waste. The program was extremely successful and was cited by a White

House task force as a model of Federal-State cooperation.

The State review process was stopped because of one stakeholder’s refusal to participate and EPA’s reluctance to allow alternate participants. Mr. Fields made time

to meet with State’s representatives and assured the States that EPA was committed to the State review process. At a time when one stakeholder group’s representatives were attempting to hold up the process, Mr. Fields assured the States that

EPA would not allow the process to be held hostage by one group. If confirmed, the

States are confident that Mr. Fields will play an important role in revitalizing and

funding the State review process.

EPA relationships with the States are critically important, and Mr. Fields has

demonstrated his willingness to work with State government toward positive results. He is a fine public servant, committed to progress, Nat just bureaucracy.

Sincerely,

CHRISTINE HANSEN, Executive Director.

ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT

OFFICIALS

Washington, DC 20001, March 2, 1999.

The HONORABLE JOHN H. CHAFEE, Chairman

Environment and Public Works Committee

U.S. Senate

Dirksen Senate Office Building

Washington, DC 20510

DEAR SENATORS CHAFEE AND BAUCUS: The purpose of this letter is to convey the

support of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) for the nomination of Mr. Timothy Fields, Jr., to be the Assistant
93

Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental

Protection Agency (USEPA). We have not made such a recommendation in over 10

years, and would not normally do so for a Presidential appointee. However, Mr.

Fields is a career employee of USEPA, and an individual with whom we have been

associated for over a decade, and we feel obliged to share our confidence in him with

the Committee.

ASTSWMO is an association representing the waste program managers of the

States and Territories. Our members are State employees engaged in the professional management of the regulatory and cleanup programs associated with hazardous waste, solid waste, State Superfund and remediation, underground storage

tanks, and minimization, reduction, and recycling activities within their States and

Territories. They are career employees, with backgrounds in engineering, technical

management, and other sciences. ASTSWMO is a nonpartisan organization, and we

focus primarily on fulfilling our mission; to enhance and promote effective State and

Territorial programs and to influence national decisionmaking on waste policies. We

have testified before ’the Committee and its Subcommittees on a number of occasions, and your staff has often consulted with our members as legislative proposals

affecting RCRA and CERCLA are developed.

Mr. Fields is well known to our members, having risen through the ranks at

USEPA and worked closely with them in program offices over a number of years.

We were happy to see him elevated to Deputy Assistant Administrator, and then

Acting Assistant ; Administrator of OSWER. We are delighted that he’ has now been

nominated to hold that position on a permanent basis. The reason for our strong

support is simple, he is someone we trust to’ continue to listen to. us, consider our

input, and to come to an objective, informed decision. We have not always agreed

with Mr. Fields in the past ?and there are certain to be occasions of disagreement

in the future, but we know that his judgments are fair and professional. Mr. Fields

goes out of his way to seek consultation with regulators and stakeholders outside

the Federal family, and we think that is one of the principal reasons he is held in

such high esteem. Certainly, he has the professional training and extensive background which give him exceptional expertise in the science and implementation of

the full range of waste programs he will manage as Assistant Administrator. But

many people have those professional skills, and what singles him out to us is his

honesty, candor, and openness. We trust him to do the right thing.

We urge the Committee to favorably report his nomination to the Senate, and to

support the Senate’s rapid confirmation of this remarkable individual. Thank you

for your attention to our views.

Sincerely,

JAMES L. WARNER, President,

ASTSWMO.

PETROLEUM MARKETERS ASSOCIATION OF AMERICA

Arlington, VA 22209, March 9, 1999.

The HONORABLE JOHN H. CHAFEE

United States Senate

Washington, D.C. 20510–6175

DEAR SENATOR CHAFEE: We writing on behalf of the Petroleum Marketers Association of America (PMAA) to express support for nomination of Timothy Fields for

Assistant Administrator of the Office of Solid Waste and Emergency Response

(OSWER) Mr. Fields is a fair-minded and dedicated agency professional.

PMAA is a trade association that represents over 8,000 small business marketers

of petroleum products nationwide. Collectively, these marketers sell nearly half the

gasoline, over 60 percent of the diesel fuel and approximately 85 percent of the

home heating oil consumed in the U.S. annually. Most of the marketers that PMAA

represents operate underground storage tanks regulated under the jurisdiction of 40

CFR 280. Our members are undoubtedly the largest faction regulated by this and

other solid waste programs. As such we feel strongly about quality tank programs

at the Federal level, managed by thoughtful, competent and fair-minded officials.

Over the course of the program the last few years. Mr. Fields has been responsive

to industry concerns about implementation and enforcement of the tank requirements and compliance deadline. Although PMAA is still disappointed with the promulgation of the December 9, 1998 enforcement memorandum and are not always

in full agreement with decisions made by Mr. Fields and other personnel within the

agency, we have been particularly impressed with his willingness to maintain lines

of communication with industry representatives. his serious consideration of indus-
94

try concerns, his high level of accountability, and his ability to draw consensus from

a large number of different parties.

We urge you to move forward with the approval of Timothy Fields as Assistant

Administrator of OSWER. Thank you for your consideration of this very important

manner.

Sincerely yours.

DAN GILLIGAN, President.

KRISTIN MANOS, Esq., Government Affairs Counsel.

ENVIRONMENTAL TECHNOLOGY COUNCIL,

Washington, DC 20005, April 26, 1999.

CHAIRMAN JOHN CHAFEE,

Committee on Environment and Public Works,

U.S. Senate,

Washington, DC 20510

DEAR MR. CHAIRMAN: The Environmental Technology Council, the association representing the hazardous waste treatment and disposal industry, would like to urge

that the Senate to give its advice and consent to the nomination of Timothy Fields,

Jr. as Assistant Administrator for Solid Waste and Emergency Response of the Environmental Protection Agency.

Our trade association is a creation of the Resource Conservation and Recovery

Act, one of the most important programs operated by the Environmental Protection

Agency. We believe having an experienced Assistant Administrator is critical for

this program to run efficiently and to protect the public health and environment.

Mr. Fields has been acting in this position for more than a year. But his experience with the solid waste law is even far more impressive. He helped draft what

became the key to RCRA, Subtitle C, over 25 years ago and his been in the Solid

Waste office since its inception. Throughout his 27-year career, he has proven himself more than capable as he moved up the rungs in supervisory and staff positions

of the Solid Waste Office.

Complimenting his experience in RCRA is his experience in the Superfund program where he held key positions that accelerated the remediation work of that program. It is difficult to imagine that another candidate could bring the wealth of experience to this position that Mr. Fields brings.

We urge the Senate to promptly act on his confirmation.

Very truly yours,

SCOTT SLESINGER, Vice President for Governmental Affairs.
(95)

NOMINATIONS OF RICHARD MESERVE, PAUL

L. HILL, MAJ. GEN. PHILLIP R. ANDERSON,

SAMUEL E. ANGEL, AND BRIG. GEN. ROBERT GRIFFIN

THURSDAY, SEPTEMBER 22, 1999

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to notice, at 3:03 p.m. in room 406,

Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding.

Present: Senators Chafee, Inhofe, Lautenberg, Murkowski and

Crapo.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good afternoon, everyone.

The purpose of today’s hearing is to consider five nominations.

The first nomination is Dr. Paul L. Hill, Jr. to be reappointed as

a member and Chairperson of the Chemical Safety and Hazard Investigation Board. He is to be followed by Dr. Richard Meserve,

nominated for appointment as a member of the Nuclear Regulatory

Commission. The third nomination is that of Major General Phillip

R. Anderson, U.S. Army, to be appointed as President and Member

of the Mississippi River Commission; followed by two nominations

those of Mr. Sam Epstein Angel, and Brigadier General Robert H.

Griffin, U.S. Army, to be appointed as members of the Mississippi

River Commission. All of the nominees, in my judgment, are well

qualified for the positions.

I welcome our five nominees and also welcome Dr. Meserve’s

wife, Marty. We also, of course, welcome Senator Byrd.

The purpose of the Chemical Safety and Hazard Investigation

Board is to investigate chemical accidents and report the facts, circumstances and cause or probable cause of any accident or release

resulting in a fatality, serious injury or substantial property damage.

The President has nominated Dr. Paul L. Hill, Jr. for reappointment as Chairperson and member of the Chemical Safety and Hazard Investigation Board. Dr. Hill has been serving as Chair and

member of the Board since 1994 and has over 20 years of professional experience in chemical safety, regulation, and public policy

development. Prior to his current position, he was President and

CEO of the National Institute for Chemical Studies.
96

He has served the State of West Virginia in several capacities—

Science Advisor the West Virginia Water Resources Board and

Deputy Administrator of the Department of Natural Resources.

He holds B.S. and M.S. Degrees from Marshall University and a

Ph.D. from the University of Louisville.

Now to the Nuclear Regulatory Commission which is an independent regulatory commission responsible for ensuring adequate

protection of the environment, public health and safety, common

defense and security with respect to the use of nuclear materials

for civilian purposes in the U.S.

Dr. Richard Meserve has been nominated by the President to a

member of the NRC. If confirmed, I understand the President intends to designate Dr. Meserve as the new Chairman.

Dr. Meserve is currently a part of the DC law firm of Covington

& Burling, Chairman of the National Academy of Sciences Committee seeking to upgrade the protection of nuclear weapon materials

in Russia. He was formerly a law clerk to Justice Blackmun on the

Supreme Court. Dr. Meserve received a B.A. Degree from Tufts,

J.D. from Harvard Law School, Ph.D. in Physics from Stanford.

Since the flood of 1928, the primary function of the seven-member Mississippi River Commission has been to implement, construct

and operate the Mississippi River and Tributaries Project. This involves the development and execution of flood protection programs

comprised of river dredging, levy construction, and water distribution along the Mississippi River.

The President has nominated Major General Phillip R. Anderson

to be President and Member of the Commission; currently serving

as Commanding General of the U.S. Army Engineer Division, Mississippi Valley, Vicksburg; previously Director of Military Programs, U.S. Army Corps of Engineers and Deputy Commanding

General and Assistant Commandant of the United States Army Engineer Center. He served as leader of our engineering forces in

Haiti in June and November 1995.

He received his B.S. from the Virginia Military Institute; his

M.S. from the University of Chicago of Illinois in Civil Engineering;

his M.A. in International Relations from Salve Regina College in

Rhode Island.

The second Presidential nomination to the Commission is Mr.

Sam Epstein Angel to serve as a member. He was first appointed

to the Commission in 1979 and reappointed in 1980. He is from

Chicot County, he is an Arkansas planter and ginner. He has

served as President of Epstein Land Company, Epstine Gin Company in Lake Village, Arkansas since 1980, as well as the Chicot

Warehouse Inc. in Eudora, Arkansas.

Since 1970, he has been Commissioner of the Chicot County Watershed District. He is a former commissioner of the Chicot County

Rural Development Authority.

Brigadier General Robert H. Griffin is the third nominee to the

Commission. He has served as Commanding General for the United

States Army Corps of Engineers, Northwestern Division, since

1996. Prior to that, he was Commander of the United States Army

Corps of Engineers, Mobile District, Mobile, Alabama. He commanded the 864th Engineer Battalion which included service in

Desert Storm.
97

He receives his B.S. in Mechanical Engineering and M.S. in Civil

Engineering from Auburn University and an M.B.A. from Long Island University, CW Post.

Senator did you have a statement?

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. As Chairman of the Subcommittee on Clean Air,

Property Rights, Wetlands and Nuclear Safety, we have some jurisdiction over all of these appointments. So I am very interested in

these and I have heard a lot of good things.

My major concern is I have had the honor of talking to Dr.

Meserve in my office and we have many mutual friends out there.

He comes very highly recommended. We have a lot of problems

there. We did not offer any oversight for the first 2, maybe 2 1⁄2

years that I chaired this committee but we got into it. Just in the

last year we have had two oversight hearings and we were actually

planning to have one today and did not because we thought he

would need to be on the job for a while before we get into some

of the issues that we are going to be discussing.

I am concerned about the relicensing process and I am pleased

that the NRC is currently on track to process the first two applications within 2 years. However, we are going to have to find some

way, as you and I talked in my office, of streamlining this process

in order to accomplish the relicensing commitments we field in the

next short period of time.

We are interested in the 5-year strategy, are anxious to get that.

We got off to a slower start and I hope you will make that one of

your top priorities.

One of the things I do want to spend some time on and we can

do this during question and answer is something that we addressed

in our committee. We do have a commitment, it is my understanding, that there is going to be a new approach to the fee system so

that the licensees will only be participating in those things from

which they either inure some type of benefit or are subject to jurisdiction.

There is approximately $40 to $50 million of functions that are

performed by the NRC that have nothing to do with industry. I

want to be sure that we have a clear understanding, as you and

I had when we visited in my office, that anything that does not affect the licensee should have to go through the normal appropriations process.

We will have a chance to address this during question and answer time. I am looking forward to these confirmations.

Senator CHAFEE. Thank you very much.

Senator Lautenberg, do you have anything you want to say?

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Yes, Mr. Chairman. Thank you.

I welcome our nominees today. I am happy to see Senator Byrd

here. I am always anxious to hear what he says because what he

says is always supported by knowledge, experience and memory
98

which I am trying to emulate. That is going to be pretty hard unless I am about a 486K or something like that.

Senator CHAFEE. If you stay around this place for 46 years, you

will get it.

Senator LAUTENBERG. I remember all the kings of England, the

periods they served, how they died, starting with 1066 or the establishment of the Roman Senate, and a few other things, Mr. Chairman. I am impressed with the candidates we have for the Nuclear

Regulatory Commission as well as the Chemical Safety and Hazard

Investigation Board. Each of these nominees brings terrific credentials and I am pleased we are going to be hearing from them.

The Chemical Safety and Hazard Investigation Board is of particular interest to me because the chemical industry in New Jersey

is a significant industry, one in which we take pride and one that

we treasure. We also want to be safe. The Board was created to

help assure those operations do meet the standards we set for safe

operations. The Board was authorized by the Clean Air Act in 1990

but not until fiscal year 1998 were funds appropriated. Two days

after the Board was able to open its doors in January 1998, there

was a serious explosion at a factory in Nevada that killed four people and the Board was off to its first investigation.

The recommendations that resulted from that investigation have

been adopted by the State of Nevada in the form of State law. The

report on that investigation and two others completed have been

used by various organizations for training purposes and carefully

studied by industry, government, labor and community groups

alike.

I know the reports on the other investigations that are currently

underway will be solid and make a contribution to the safer manufacture and use, storage, et cetera of chemicals. That is the exact

vision we had for the Board when we created it.

The first concern I do have, Mr. Chairman, is that we are not

allowing the Board to do its job, to grow to the size it needs to be

to adequately carry out its mission. This year, in fact, the Board

had to stop beginning new investigations mid-year. We should not

permit that to happen. The underfunding of the Board may be an

unavoidable consequence of starting an agency from scratch but we

cannot do that much longer. Too much is riding on the work of this

agency.

I look forward, Mr. Chairman, to hearing the testimony of these

witnesses. I thank you for holding this hearing.

Senator CHAFEE. Thank you very much, Senator.

If Dr. Hill and Dr. Meserve would come forward. Senator Byrd,

it is my understanding that you would like to introduce Dr. Hill.

We look forward to your comments.

STATEMENT OF HON. ROBERT C. BYRD,

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

Senator BYRD. Thank you, Mr. Chairman, Senator Inhofe and

Senator Lautenberg.

You are very busy men and I consider a privilege to be here this

afternoon to introduce Dr. Hill. I knew Theodore Green and served

with him, I served with John Pastori, I served with Bob Kerr, A.S.
99

Mike Monroni and you are both very worthy Senators to follow in

their footsteps.

You have made a mistake, Mr. Chairman. You are retiring too

early. I would say the same thing about Senator Lautenberg. I

have been talking to him trying to get him to change his mind.

Nevertheless, that will be a conversation for another day.

I appreciate the opportunity to come here and I thank you and

the members of your committee for your courtesies.

I welcome this opportunity to present to you this afternoon my

constituent, the Honorable Paul L. Hill. I served with Lester Hill

from Alabama, a great Senator. Benjamin Hill was a great Senator.

I did not serve with him; that was before my time. Benjamin Hill

was a great Senator, a great orator and I am confident that Dr.

Hill will be just as illustrious and just as capable in his field as

the two Senators Hill that I mentioned were in theirs.

Dr. Hill is the current Chairman of the U.S. Chemical Safety and

Hazard Investigation Board and has recently been renominated, as

you have pointed out, by the President with my support, to serve

a second term as Chairman.

Dr. Hill holds a PhD from the University of Louisville and B.A.

and M.A. of Science Degrees from Marshall University in West Virginia. I attended Marshall when it was a college, not a university.

I attended one semester. I took eight courses, 22 hours and made

eight As at Marshall University. I was a little late in receiving my

baccalaureate, I received it 5 years ago at the age of 76. My baccalaureate was in political science. I received my law degree in 1963

at the age of 45 but I am proud always to say that I am an alumnus of Marshall University, age 76.

We learn a lot more when we go to school late as I had to do.

So Dr. Hill comes as someone who attended Marshall University.

Dr. Hill, you are not the only man around here who was a great

physics major. I have two grandsons that are physics majors from

the University of Virginia which has a very strong Physics Department. My third grandson, who is the second physics major in my

family, married last Saturday and is off to Hawaii.

Dr. Hill has dedicated 20 years of his career to chemical safety,

regulation and public policy. This includes 7 years as President and

CEO of the National Institute of Chemical Studies located in

Kanawha Valley of West Virginia which is also home to a thriving

chemical industry on which the State and the Nation depend.

Jacob worked 7 years for Rachel and when Jacob went to claim

Rachel after working for Laben for 7 years, the father-in-law did

not give him Rachel, the father-in-law gave him Leah, Rachel’s sister. The Scriptures say that she was weak-eyed. So you worked

there 7 years but these gentlemen are not going to make you work

7 more as Laben did. He required Jacob to work 7 more years before he could finally get Rachel.

It is in this capacity that I am most familiar with Dr. Hill’s abilities. The chemical industry is a critical component of the West Virginia economy but we all know that many chemicals are sensitive

and volatile, and that chemical accidents which pose significant

threats to life and the environment can and do occur. When they

do occur, public outcry for immediate remedy is often at odds with

the viability of the business involved.
100

Dr. Hill established his credibility within the field of chemical

safety by working with government, industry and the public to better manage chemical risks while still sustaining environmentally

responsible economic growth in the industry. Thoughtful, studious

and capable, Dr. Hill has demonstrated calm and effective leadership, not only in more mundane, day-to-day circumstances, but also

in the highly charged emotional atmosphere that accomplishes the

real life nightmare of a chemical accident.

In 1993, when the President began looking for candidates for the

U.S. Chemical Safety and Hazard Investigation Board. I had no

hesitation in bringing Dr. Hill’s interest in serving on the Board to

the Administration’s attention. I was very pleased that the President and this committee also recognized Dr. Hill’s qualifications to

lead this new, independent agency. However, for the first 3 years

of his 5-year term as Chairman, delays in providing funds to initiate the Board’s activities kept that body from serving its appointed

role.

I hope that my colleagues here will look favorably on Dr. Hill’s

nomination to a second term as Chairman of the U.S. Chemical

Safety and Hazard Investigation Board. I believe they will. I know

Senator Chafee is a very tough Chairman but he is fair. I know Mr.

Inhofe is also a man of great courage and is a hard worker. I

served with him on the Armed Services Committee and I have

great respect for him as well. Senator Lautenberg is my colleague

on the Appropriations Committee and I have had the great pleasure and privilege of serving with him on that committee for many

years.

In his year-and-a-half tenure, Dr. Hill has led a board which,

while still in its infancy, has as its mission to ensure the safety of

workers and the public by eliminating chemical accidents. To date,

the Board has investigated 22 chemical accidents and has completed reports on three. The Board’s initial research indicates that

on average, 253 Americans die each year as a result of chemical

accidents. Dr. Hill knows that and he knows this is unacceptable

and that the success of his tenure will be measured by the Board’s

effectiveness in reducing chemical accidents by finding out their

cause and by helping to find solutions to prevent similar accidents

from occurring in the future.

In West Virginia and other States across the country with a high

concentration of chemical plants, the existence of this board provides greater peace of mind both to the people who work in the

plant and to those families living near the highways and railways

that transport the chemicals. Dr. Hill has proven that through diligence, cooperation and forethought, dangerous situations can be

avoided and lives can be protected.

I am proud to introduce a man of Dr. Hill’s caliber because in

doing so, I also put my own name on the line. I hope the committee

will express confidence in his abilities to guide the organization

and its next 5 years by approving his renomination.

Thank you, Mr. Chairman. I thank my colleagues on the committee who serve with you for this opportunity.

Senator CHAFEE. Thank you very much, Senator Byrd. Obviously

your support for Dr. Hill is very beneficial to him, not that he was

in trouble but having your support is a splendid thing.
101

I know you are extremely busy so if you would like to retire now,

that would be acceptable. I don’t think anyone has any questions

of you.

Senator BYRD. Thank you, Mr. Chairman.

I wish you good luck, Dr. Hill.

Mr. HILL. Thank you.

Senator BYRD. I also wish the other gentlemen who are nominees

equally good luck.

Senator CHAFEE. Thank you very much, Senator Byrd.

You each have a statement and all of the statements will be included in the record. Some of the statements are a little lengthy,

so if you can stay in the 5-minute area, that would be helpful. It

would help your cause.

I don’t think there is anyone here to introduce Dr. Meserve is my

understanding.

Mr. MESERVE. That is correct.

Senator CHAFEE. Go ahead, Dr. Hill. Give us your statement.

STATEMENT OF PAUL L. HILL, JR., NOMINATED BY THE PRESIDENT TO BE A MEMBER AND CHAIRPERSON OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Mr. HILL. Thank you, Mr. Chairman and honorable members of

this committee.

It is certainly an honor for me to appear before you today to answer any questions you might have and certainly an honor to have

been introduced by Senator Byrd. As he said, he first recommended

me to the Administration some time ago and indeed, I am honored

to appear before you today to answer any questions you have.

Humble as I am that the President of the United States has

placed his confidence in me by submitting my name again for nomination and confirmation by you, I want to assure the Committee

and the Congress as a whole, that I will continue to dedicate myself as a partner with the Congress in fulfilling the Board’s mandate.

As Senator Byrd pointed out, I have been allowed to serve as

Chairman of the Board only for a short period of time. During the

startup phase, however, much has been accomplished of which I

am very proud. There is much, much more work to do, however, to

live up to the mandates as the Congress pointed out back in 1990.

Although this has not been an easy task by any means and certainly a lot of challenges lie ahead, I look forward to the opportunity to meet these challenges if confirmed for a second term. Further, if the Committee would entertain engaging its oversight function, I would readily participate in the opportunity to explore various issues and challenges relative to improving chemical safety. In

so doing, my approach to implementation of the Congress’ intent

could be aired with those directly involved with the Board’s statutory authorities and indeed, its very existence.

I think this goes along with Senator Lautenberg’s previous comments that there are certain activities that are defined by the statute which obviously in our American society are interpreted by different parties in different ways. Our stakeholders obviously raise

those issues and that is the reason why I think it is good to air

these issues before the Congress so that we can be clear that we
102

are together and on the right track to achieving what the Congress

laid out.

When I appeared before you last, there was no Board. There existed a statute and there were three nominees with the concept of

a new agency and a new task that was considered necessary and

needed. Today, we have a staff. We have four board members and

a staff of 22. If there has ever been a from the ground-up organization, the Chemical Safety Board is it.

After nearly 21 months of existence, the Board could still be

called a virtual agency. We exist in temporary space, we rent our

furniture, we borrow technical expertise from other Federal agencies and we outsource the majority of our administrative functions.

Still, in spite of these hurdles, in 21 months we have done what

no one else can remember doing for a long period of time and that

is create a Federal agency from scratch.

We took on a businesslike approach in what we felt the philosophy of the Congress would be for a 21st century agency, that is to

be lean, to be accountable and to be service-oriented. We have allowed that philosophy to go throughout and pervade every action

that we have taken on at the agency. We have many accomplishments. As I said, I am very proud and some of the figures you have

heard from others present today, including Senator Lautenberg’s

remarks about the Nevada experience where our recommendations

led to a direct impact at the State level to incorporate the new findings into requirements that we think will save lives. Indeed, I am

very proud of that action. We are also investigating eight additional major incidents to date and several other minor incidents

which have resulted in 33 fatalities and nearly 50 injuries in this

country.

Various other accomplishments include our work on Y2K. Working with Senators Bennett and Dodd, at their request, we compiled

information relative to the impact of the Y2K bug, as it is called,

on chemical safety at large industrial facilities. We have tried very

hard to address that issue within our limited capability in the

startup year.

There is clearly much more to do, Senators, but I have placed a

lot of emphasis on results-oriented activities with my staff. I clearly

appear before you today because I want to continue in this capacity

and we are moving forward toward prevention as our number one

goal. We cannot change those events, chemical accidents, but we

can learn from them to increase our preventative capability.

I have mentioned some other things as well, such as an oversight

hearing, perhaps some additional modifications of our legislation

that I think would be helpful in the interest of cost effectiveness

now that we’ve had 21 months of experience.

I am honored to be here today and in closing, let me say that I

certainly appreciate the opportunity to speak to you today, answer

any questions you have and look forward to the opportunity of

working with the committee in the future.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you very much, Dr. Hill.

There are two questions that I will be asking each of the nominees.
103

Are you willing at the request of any duly constituted committee

of Congress to appear in front of it as a witness?

Mr. HILL. Yes, sir.

Senator CHAFEE. Do you know any matters which you may or

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

Mr. HILL. No, I do not, Mr. Chairman.

Senator CHAFEE. It is curious to me how you select which accidents you are going to investigate. You can’t do them all.

Mr. HILL. That’s correct.

Senator CHAFEE. I understand it sounds impossible, but am I

correct in saying there are some 60,000 accidental releases annually in the U.S.?

Mr. HILL. That is the number of reports recorded through other

Federal agencies, through OSHA, the National Response Center,

etc. That is an average number annually where there is a report

of a chemical spill of some type. Some of those are small events;

others are quite large.

Senator CHAFEE. What do you do, you get these coming in obviously and some of them are very minor, as you suggest, but suppose you have three come in a month in which there was at least

one fatality, what do you do? How many can you handle?

Mr. HILL. It is a very difficult situation right now, Mr. Chairman, given that we’re still trying to build the infrastructure to support the agency in its function, but I feel that as we are now approaching that point of having the basic infrastructure in place, I

need to add more investigators. Fully a third of my staff now is

dedicated to technical work on the investigations. I have requested,

through my appropriations process, increasing that number significantly over a period of years.

Back to your original question, how we select those, we began by

looking at the statutory language itself and clearly fatalities are

the first thing that is mentioned by the Congress in the statutory

language. We began by saying if there is a fatality, that is a higher

importance than other types of events.

Clearly, we are not able to address even the ones with multiple

fatalities. We can look at some of those, but we certainly can’t look

at them all. We would like to be able to do so, but resources prevent us from doing so right now.

Other things we look at are the level of significance and the opportunity to learn from these events. If we see safety system failures that are applicable across a broader industry, then we feel we

can provide value added by looking at those types of events.

We are formalizing a process right now where a month from now

we are scheduling a stakeholder group meeting to put together a

more formalized selection criteria process but right now, we’ve been

following the statute.

Senator CHAFEE. Do you find the chemical companies receptive

to your recommendations? Say Company A has a fatality, so you

investigate it and come to a conclusion in some fashion of why it

was caused. Then, I presume you have some system for circulating

this among the chemical industry, so Company B finds out. I don’t

know how you circulate your discovery investigations and your re-
104

sults but presumably you come up with a conclusion that such and

such a procedure was a dangerous one and should be avoided.

Mr. HILL. Yes, sir.

Senator CHAFEE. In a way, you’re sort of like OSHA, I suppose.

Is chemical Company B receptive to your suggestions?

Mr. HILL. Yes, sir. They have been very receptive. In fact, one

of the things the industry has pointed out to us is that the ability

to collect this information under our statutory authorities protected

from some of the liabilities that companies face in sharing their

own information is a big benefit to them. That is, in cases where

say we investigate an accident at a refinery, then the findings can

be shared with all the other refineries in the country and the entire

segment of industry such that they don’t make the same mistakes.

We publish that information on our web site, we distribute the reports very broadly and we contact the trade associations of those

organizations to make sure that information gets out. We share it

with the States and any other potential business that might have

a similar operation where we can provide that learning.

Senator CHAFEE. Thank you.

Senator CHAFEE. Senator Lautenberg?

Senator LAUTENBERG. Thank you, Mr. Chairman.

Dr. Hill, we are pleased to have you with us today. The GAO I

understand has done a review of the committee’s functioning. What

did they find and what has been the response to those findings?

Mr. HILL. After we were in operation for the first 9 months, Senator, GAO did an audit of our startup functions. We had actually

talked to GAO within the first few weeks of our operation. In the

effort, as I indicated earlier, to start a new agency, we were looking

for all the advice and input we could find about how to properly

do that and meet all the Federal requirements and ensure that we

were doing so.

One of the primary findings of GAO dealt with our contracting

services. The indicated in those first 9 months, we had not issued

a written, key emphasis on the word written, document detailing

our contracting procedures. That’s not to say that we had any contract problems or it’s not to say that we were not following Federal

contract procedures. Indeed, we were following the ones at General

Services Administration which was handling that. That was one of

the major findings which we have addressed.

Another finding dealt with their suggestion that we review our

staffing and how those staff positions were allocated. We have done

that. I communicated directly with GAO.

Senator LAUTENBERG. How you were staffing with the budget

that you had or how you might staff if you had the full budget you

needed?

Mr. HILL. It dealt with the staffing that we had, Senator. The

fact that we had staffing allocated to various functions of the agency in order to support it and there were some comparisons between

our agency and NTSB, which is our sister agency.

We felt we had addressed that and indicated that indeed we plan

to grow the agency all in the technical area to do more of that work

in the future now that we have established the basic infrastructure.
105

Senator LAUTENBERG. Do you have any idea of the population of

chemical—I don’t want to say companies as much as sites—around

the country where material that could be hazardous exists? Do you

have any idea how many of those there are?

Mr. HILL. We do not have a precise number, Senator, at this

time. I can tell you that through some of the work that EPA did

on the risk management planning process, which is also contained

in the Act, very near our language, and which we will be reviewing

as directed by the Congress, that EPA had some 66,000 facilities

that are covered by that particular rule. Certainly I don’t think

that’s a comprehensive number because the Congress directed us

to look at all chemical compounds and even make recommendations

about the chemicals that go on the list. I would say it is significantly larger than that.

Senator LAUTENBERG. How many employees might you guess

would be included in that world?

Mr. HILL. You mean employees of the private firms?

Senator LAUTENBERG. yes.

Mr. HILL. Certainly hundreds of thousands.

Senator LAUTENBERG. I was struck by the fact that you said

there 60,000 on average incidents a year, and correct me my recollection is wrong?

Mr. HILL. Those are incidents that are reported to Federal agencies today. Yes, that’s the average number.

Senator LAUTENBERG. So based on the estimate of 66,000 facilities, and you say it’s larger, could there be an incident almost in

every facility—I mean 60,000 incidents over a population of 66,000

facilities is a terrible record.

Mr. HILL. It is a sizable number, Senator, no question about it.

Again, there has to be a significance associated with those but

again, we’re not looking at just facilities that manufacture chemicals, although they are a big player, but we look at, as the Act

says, warehouses, storage facilities, disposal facilities, transportation, there’s a sizable number in that data base that are attributed to transportation.

I have to tell you that the data has some problems with it in that

we have not had a comprehensive assessment at the Federal level

of just some of the figures you’re asking for.

Senator LAUTENBERG. Would you be able to do that if we raised

the funding to the level requested, I think $6.5 million and the request is for $12 million?

Mr. HILL. That’s correct. Yes, sir, one of the things we want to

do is give the Congress a better read on exactly what this problem

looks like, how big, how small, what areas we should invest our resources in and today, as I told my Appropriations Committee in the

House in February, I can’t tell you if warehouses are more of a

problem than refineries or if chemical manufacturers are more of

a problem than warehouses. The information has not been kept in

such a way that allows us to answer those questions. We are proceeding with that very issue by trying to consolidate this information and collect new sources that we can report to the Congress.

Senator LAUTENBERG. Do you have a reliable figure for the number of fatalities or injuries that occur each year?
106

Mr. HILL. Yes, sir. On the average, as Senator Byrd said, there

are 256 I believe is the average number annually that we have associated with chemical spills.

Senator LAUTENBERG. Fatalities?

Mr. HILL. Fatalities, and many, many hundreds of injuries on top

of that, thousands actually.

Senator LAUTENBERG. To wrap up, Dr. Hill, the State of Nevada

adopted the Board’s recommendations?

Mr. HILL. Yes.

Senator LAUTENBERG. Can you briefly tell us what those recommendations or statutes are that resulted from those recommendations?

Mr. HILL. Yes. When we completed our investigation of Sierra

Chemical Company in Nevada last year, we made recommendations to the State—Nevada is a State OSHA plan which has authority for investigations and inspections of those facilities—that

the individuals who conduct those inspections be trained in understanding the chemical safety issues particular to the explosive

chemicals industry. They did not have anyone on staff who knew

that industry well enough to really know what they were looking

at when they went in.

We recommended they improve training for their own workers as

well as increase the frequency of inspections. Some of those facilities, and Nevada has several, are only inspected on a very infrequent basis.

Another recommendation was that the safety information provided to the employees in the plant be provided in their native language. As it turns out, the vast majority of the individuals who

worked at that plant were Hispanic who neither spoke nor read

English. However, all the safety information to warn them of hazards they were working around on a daily basis was all in English.

Therefore, those individuals did not comprehend their risk situation. We recommended that they be trained in their native language and moved through that process.

The State of Nevada legislature, as well as the Governor’s office,

took up those recommendations. The Governor actually acted before the legislature and did an executive order on some of these

items, then the State legislature passed laws that were signed this

spring that incorporated those concepts.

Senator LAUTENBERG. Thank you, Mr. Chairman.

Senator CHAFEE. Thank you.

Senator INHOFE. I have no questions of Dr. Hill.

Senator CHAFEE. Senator Crapo?

Senator CRAPO. I have no questions for Dr. Hill.

Senator CHAFEE. Dr. Hill, thank you very much.

There is a very nice letter in here about your work in Contra

Costa County, California. This is a recently dated letter that they

had a very serious situation and you were helpful?

Mr. HILL. Yes, sir, I was just there last week and held a public

hearing.

Senator CHAFEE. I must say it was a serious situation. She says

in her letter, ‘‘When another even more fatal accident occurred’’—

if it was more fatal than the other one, that was very fatal.
107

Mr. HILL. I think they had one fatality and then the next incident they had four.

Senator CHAFEE. Fine. Thank you very much.

You can be excused.

Dr. Meserve, is your wife here? Did you want to introduce?

Mr. MESERVE. Yes, my wife is here.

Senator CHAFEE. We’d be happy if you want to introduce her.

Mr. MESERVE. I’m joined today by my wife, Marty Meserve, if she

would stand.

Senator CHAFEE. We welcome you here.

I suspect you’re making some sort of sacrifice here. When someone goes from Covington & Burling to a Federal job, some sacrifice

is involved, I suspect. Please go ahead.

STATEMENT OF RICHARD MESERVE, NOMINATED BY THE

PRESIDENT TO BE A MEMBER OF THE NUCLEAR REGULATORY COMMISSION

Mr. MESERVE. Mr. Chairman and members of the committee, I

appreciate the opportunity to appear today at this hearing on my

nomination. As Senator Chafee has indicated, the President has

stated his intention if I am confirmed to designate me as Chairman

of the Nuclear Regulatory Commission.

I have provided a written statement and I will offer now an abbreviated version. Let me just say a few words about myself and

then offer my thoughts as I contemplate the possibility of joining

the NRC.

As Senator Chafee has indicated, I am a partner in the law firm

of Covington & Burling, which I joined as an associate in 1981. I

turned to the practice of law after completing a Ph.D. in Applied

Physics and I have used my scientific training in a legal work. This

has included work on nuclear-related issues.

As an attorney who has worked with the NRC, I have a familiarity both with its procedures and with the substance of its work.

I have also served on a number of committees of the National

Academy of Sciences and the National Academy of Engineering

that have focused on nuclear issues.

I believe that my educational background and my professional

experience will reinforce each other in ways that should be helpful

in the conduct of the Commission’s work.

Rather than take further time here today to discuss my professional career in greater detail, I have submitted my resume as an

attachment to the statement.

Let me turn now to my views as I contemplate the possibility of

joining the NRC. As I am sure this committee is fully aware, we

are in the midst of a significant restructuring of the utility industry. In a growing number of States, the competitive market determines the price for electricity and thus profitability for all forms

of generation is dependent on achieving economically efficient operations. This has important implications for the NRC’s work.

First, and most important, it reinforces the need for the NRC to

fulfill its obligation to demand safe operations by licensees. The

NRC must assure that the pressures to reduce costs do not become

incentives to cut corners on safety. The NRC must ensure that its
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licensees meet the agency’s safety and environmental requirements.

Second, in a time of sensitivity to costs, the NRC has a particular

obligation to regulate efficiently, to regulate in a fashion that imposes the minimum degree of burden consistent with getting the

job done. This implies a judicious approach, both to new regulatory

initiatives, making sure the benefits outweigh the costs, and a willingness to cast a cold appraising eye on existing policies and programs. Moreover, managerial oversight is necessary to make sure

that the policy decisions made in the agency’s conference rooms are

translated into practice at the operational level.

Third, it is incumbent on the NRC to reach decisions in appropriate ways. Decisions must be fair and be perceived to be fair.

They must be appropriate for the particular task at hand and they

must be efficient and timely. For example, if a process is so needlessly time-consuming and inefficient, the delay itself determines

the outcome and the goal of fairness is not being met and the Commission has failed in its obligations.

At the same time, however, there should be no slighting of the

significant role that Congress gave to the public in NRC processes.

Thus, as the NRC carries out its regulatory activities, it must be

conscious of the need to include the affected public in ways that are

meaningful and that contribute to efficient decisionmaking.

Finally, at a time when the Commission has a variety of important matters to which it must attend, I am mindful of the fact that

Congress created the NRC as a multimember commission. Each

member should gain the benefit of the other members’ expertise

and ideas, thereby allowing more informed and thoughtful decisions than any one commissioner could provide alone.

I understand this places a special obligation on the Chairman. In

addition to taking a leadership role, the Chairman has a special responsibility to listen to his or her colleagues and to work for consensus.

I believe the NRC has made progress in all of these areas in recent times and I believe there are grounds for optimism about the

future. I see an agency well aware of its duties to protect the public

health and safety under law. I see an agency that has worked to

improve its communication with members of the public, the regulated industry and with the Congress. I see an agency that is taking advantage of improvements in analytical tools and information

to focus on those aspects of industry operations that are most significant. In short, I see an agency on the right track.

If confirmed, I look forward to working with my colleagues on the

Commission to build on the achievements of the recent past. I

would be pleased to answer your questions.

Senator CHAFEE. Thank you very much.

Senator Inhofe has some scheduling challenges, so Senator, if

you’d like to proceed now?

Senator INHOFE. Thank you very much.

First of all, I’d like to congratulate the NRC in processing the

first two relicensing applications so quickly even though you had

nothing to do with it. We are looking for great things from you too.

I think the hard part is going to be, as you and I discussed, that

you will have at least ten of these to be working at one time.
109

I really believe that it’s going to be necessary to make changes

and streamline the operation in order to do that. Do you agree with

this and do you have any ideas as to where to start with streamlining the operation or the process?

Mr. MESERVE. Senator Inhofe, the relicensing process which is a

very important activity that the NRC has underway. As you indicated, there are two obligations that are in the pipeline now. I

think there are going to be several others, as you indicated, that

will be emerging over the years. Of course the licensees themselves

will determine whether and when to start the relicensing process.

The NRC has to do these efficiently and has to do them in a

timely fashion, as I indicated in my statement. Not having been on

the inside of that process, I don’t come to the job with the knowledge of how to assure that happens, but I understand the importance of making sure such applications go forward.

Senator INHOFE. You and I also talked about the 5-year plan and

the necessity to come up with a real comprehensive 5-year plan

which wasn’t done. I think you are probably aware that the GAO

looked at the first attempt and it was not adequate.

First of all, when do you think you will have a 5-year plan? Have

you talked among your colleagues?

Mr. MESERVE. I am aware of the issue in general but I am not

aware of the schedule for the plan.

Senator INHOFE. You haven’t talked about how long it would

take?

Mr. MESERVE. My understanding is that the Government Performance and Results Act requires a strategic plan and I believe

that is underway. It’s my understanding, and I may be mistaken

about this, that there is some suggestion in draft language in the

House Appropriations Bill about a different kind of plan. I’ve not

seen the specifics of that language and exactly how that relates to

the strategic plan.

Senator INHOFE. It’s my understanding that both plans are trying to get to the same thing. I guess the request I’d make is that

when you do determine when that time would be, say anytime in

the next few weeks, I’d like to have you share with me what your

timing is going to be and also a commitment that we will be advised during the development of this plan with documents so that

we will have an idea of where we are going.

One of the things that I know we don’t like on this committee

and other committees too is to wait and not have any idea of what

is in the making. We like to be kind of a part of the development

in being advised as you move along. Does that sound reasonable?

Mr. MESERVE. Senator Inhofe, I appreciate that the Chairman

and Commissioners have an obligation to keep the Congress informed of their work and I intend to fulfill that obligation.

Senator INHOFE. The other area we talked about when we had

a committee meeting before my subcommittee before we started

some oversight was that we had something I wanted to see terminated and that is the entire funding for the operation of the NRC

coming from the licensees. While there are functions that are performed that do not either inure to the benefit or the regulation of

those licensees and I feel very strongly that amount, which I think

is in the neighborhood of $40 to $50 million, as soon as that is de-
110

termined, should have to go through the normal process and not be

a charge to the licensees.

That’s a very strong feeling that I have and we have talked about

this. Do you agree conceptually that we should do that?

Mr. MESERVE. I agree, conceptually. Obviously I think there is a

fairness issue here. The licensees ought not to be charged fees for

things that do not benefit them directly.

I’ve not been in the middle of this appropriations process, as you

can appreciate. There is also a public interest in making sure there

is sufficient funding for the NRC to fulfill the obligations with

which it is charged. I would hope there is a way that the NRC,

working with the Congress, can find a way to make sure there is

no conflict between those two principles. I don’t think there should

be, but there may be, and I hope to be able to work with you and

your colleagues in the Congress to make sure we can resolve any

such conflict.

Senator INHOFE. You indicate you’re not familiar with the appropriations process. There is a process and that process is to present

your case through that process to the Appropriations Committee or

the appropriate subcommittee, justify your case in making your appeal for the appropriations.

What I don’t want to happen is to assume that we can go along

and if you’re not successful and don’t meet the criteria, and you’re

not successful in getting an appropriation, assuming you can go

right back to business as usual and start assessing the licensees for

those functions to which they have no involvement or interest or

benefit. That’s my concern. Do you agree with that?

Mr. MESERVE. I agree it is certainly a concern. My impression

is—and again I will defer to your greater knowledge on this—that

there may be a difference in view in the Appropriations Committee

with regard to whether funding for those activities which benefit

the public as to whether that should come from the general revenue. I’m not in a position to say how that should be resolved.

That’s something I would hope we could get some help from you

and others in the Congress in trying to make sure that it is resolved.

There are some NRC activities that do not benefit the licensees

in which they have a fair and equitable argument that they

shouldn’t be paying for. That’s not to say that those are not appropriate for the NRC to do. There are some things, like the supervision of the Agreement States, which is an NRC obligation under

the statute, that does require making sure the NRC has the capacity to do the job. Similarly, there are benefits to the United States

I believe from various of the international activities of the NRC.

I hope that we don’t find ourselves in a position where being able

to fulfill all of the obligations properly and efficiently puts such a

crunch in the agency that it can’t do it’s job well.

Senator INHOFE. But you see, during the normal appropriations

process, those things are all considered. One of the major considerations is that it’s something mandated by statute. If it is, obviously

the Appropriations Committee would respond. In fact, everything

you mentioned is something that is a part of the process of going

through that appropriations process.
111

I want to get this started and this is one of the first reforms

when we started our oversight here a couple of years ago that I

wanted to be sure that we were able to achieve. All I want from

you is the commitment that you will try to achieve this and you

will work with us.

What I don’t want to happen is to have you folks go through the

appropriations process and they determine that this something

that should not and does not deserve funding, then assume you can

go right back to the licensees and say, they’re here anyway. That’s

my concern.

Mr. MESERVE. I understand your concern. I look forward to the

opportunity to work with you on it.

Senator INHOFE. Thank you very much.

Senator CHAFEE. Senator Crapo?

Senator CRAPO. Dr. Meserve, the questions I have relate to the

handling of the procedural approach to Yucca Mountain as we set

the various standards for regulation and hope to ultimately open

and operate Yucca Mountain.

It’s my understanding that the EPA’s recently proposed water

quality standards for Yucca Mountain’s project are extremely stringent and beyond that which are reasonable or even what was expected and if they become applicable and law, they could pose a serious problem with regard to the implementation of operations at

Yucca Mountain.

I’m not going to ask you to comment on that conclusion, but I

think there is a very strong question which is one which arose from

the same type of issues with the opening and operation of the

WIPP facility in New Mexico about whether the EPA is the proper

authority to be establishing the regulatory standards for these

types of facilities or whether those standards are more properly the

jurisdiction and expertise of the NRC. Do you have an opinion on

that?

Mr. MESERVE. Certainly they are within the expertise of the

NRC. The NRC has a longstanding involvement with setting radiation related standards and safety standards and great experience

in doing so with very competent and capable staff.

There have been disputes over the years, as I understand it, between EPA and NRC on standard-setting matters. The state of play

is one that Congress created with regard to the Yucca Mountain.

EPA is designated the responsibility, statutory responsibility, to establish standards and then NRC is to fulfill the implementation of

those standards.

It seems to me there is some redundancy but it’s one that Congress created. I would hope if I am confirmed to serve as the Chairman that we would find a way to at least resolve some of the conflicts that have existed over the years with EPA.

Senator CRAPO. Do I understand you to say that if Congress were

to adjust the law or to change the jurisdictional responsibilities,

that the NRC does have the expertise and ability to set, establish

and properly manage these standards?

Mr. MESERVE. I have not obviously served in the position but as

someone on the outside looking at the NRC and having worked

with the NRC on various issues, it’s been my perspective that they

are very capable and competent in the radiation standard area.
112

Senator CRAPO. With regard to the issue of working to address

the redundancy and difficulty to make sure we can move forward

with reasonable standards that are workable for the intended purpose of the facility, do you intend, if confirmed, to take a forceful

role in assuring whether it’s EPA standards or NRC standards or

both that the standards that are adopted are reasonable and workable standards?

Mr. MESERVE. The NRC doesn’t have control over the EPA standards, so that aspect of the standards is the predicate within which

the NRC must operate. It would be my intention—obviously one

commissioner alone does not determine this—to establish standards for Yucca Mountain that are appropriate to the circumstances

and provide adequate protection of the public health, safety and environment. That would be the starting point for what the Congress

has a right to expect from the Commission. It would be my intention to try my best to fulfill that obligation.

Senator CRAPO. Do you have a position on whether the Congress

should leave jurisdiction with the EPA or should move jurisdiction

to the NRC on this issue?

Mr. MESERVE. I don’t have an informed opinion on that, not having served on the NRC and not having worked directly with the

EPA on that issue at this moment. That would be something I

would expect I will be learning if I am confirmed.

Senator CRAPO. I am sure if you are confirmed that this is going

to be an issue we will deal with and very closely.

Thank you very much.

Senator CHAFEE. I have the same two questions for you. Are you

willing at the request of any duly constituted committee of Congress to appear in front of it as a witness?

Mr. MESERVE. Yes, sir.

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

may not have thus far disclosed which might place you in any conflict of interest if you’re confirmed?

Mr. MESERVE. No, I do not.

Senator CHAFEE. This committee has had some hearings on the

NRC wherein the NRC has been criticized by both industry and environmentalists for its regulatory policies. Do you think the NRC

can improve its effectiveness so as to allow efficient industry operations while ensuring public safety? In other words, is safety and

efficiency mutually exclusive?

It does seem to me as somebody watching this that in the United

States there are no new plants under construction. Am I correct in

that?

Mr. MESERVE. That’s correct.

Senator CHAFEE. Part of it is obviously due to the lower price per

kilowatt hour and that’s understandable. It’s a difference of 12

cents for nuclear new construction and 3 cents for gas. Does that

sound right?

Mr. MESERVE. I think it varies from one part of the country to

another.

Senator CHAFEE. You and I discussed this briefly in the office the

other day and it seems to me that the regulations are sort of a

moving target. Anybody would be a bold person I think, any power

company would be quite bold to undertake construction nowadays
113

because it just seems to go on interminably, the regulations and

the difference in cost but that’s not going to be there forever.

So we see what happens in France where more than 50 percent

of the power is generated by nuclear power.

Mr. MESERVE. I think it’s a higher percentage than that.

Senator CHAFEE. And higher than that. Germany likewise, very

substantial. I don’t know what it is but very substantial. Do you

see anything changing this? Obviously you can’t affect the price of

natural gas, but do you think these things are mutually exclusive,

that safety means tremendous delay?

Mr. MESERVE. There are several thoughts I have had as you have

asked the question. I don’t think that safety and efficiency are mutually exclusive. I think that the NRC has started on the process

of trying to adjust its regulatory system so that the most significant risks are addressed to cut out regulation that isn’t serving any

function.

They have been doing this in a process they call risk-informed

regulation and they have some pilots underway that for the most

part, to the extent they have been completed, have worked out

well. They are going to provide the foundation for changing the regulatory system.

These initial pilots are going is something that is going to be

very important in trying to find a way to have the regulatory system operate more efficiently and thereby minimize needless costs

that industry is asked to bear in order to assure safety.

Senator CHAFEE. At the end of the whole thing, you’ve got what

to do with the waste material?

Mr. MESERVE. That’s right.

Senator CHAFEE. Which hasn’t been solved.

You are going into a challenging position and we’re delighted.

You are well prepared for it and I think the President has chosen

widely.

Thank you for your testimony.

General Anderson, Mr. Sam Angel and General Griffin, if you

could come forward, we’d appreciate it.

Gentlemen, we welcome you. I am a great admirer of the Corps

of Engineers. I’ve seen the work you have done around the world,

not only in the U.S. I don’t know whether you gentlemen ever

served in Saudi Arabia?

General ANDERSON. Mr. Chairman, I did. We both did.

Senator CHAFEE. I must say the Saudis are unqualified in their

admiration for the U.S. Corps of Engineers. I guess they have had

some people take advantage of them over there and they look to

the Corps as straight shooters, honest and I’ve heard them give you

tremendous praise. That is just one section of the world and you

have done wonderfully elsewhere.

I hope you knew that you were well received in Saudi Arabia. I

suspect you did.

General ANDERSON. Yes, Mr. Chairman.

Senator CHAFEE. General Anderson, why don’t you proceed with

any comments you have.
114

STATEMENT OF MAJOR GENERAL PHILLIP R. ANDERSON, U.S.

ARMY, NOMINATED BY THE PRESIDENT TO BE PRESIDENT

AND MEMBER OF THE MISSISSIPPI RIVER COMMISSION

General ANDERSON. Mr. Chairman and members of the committee, I’m honored to appear before you as the nominee for president

and member of the Mississippi River Commission. I’d like to make

an abbreviated statement about the Mississippi River Commission,

the Mississippi River and Tributaries Project and my qualifications

for the position for which I’ve been nominated.

The Mississippi River Commission established by act of Congress on June 28, 1879, consists of seven members all of whom are appointed by the President of the United States subject to confirmation by the Senate. Three members are Corps of Engineers officers,

one of whom serves as president; one member is from the National

Oceanic and Atmospheric Administration; and three members are

from the civilian sector, two of whom must be civil engineers. From its inception in 1879, the Commission has been charged with the task of planning and implementing a program of flood

damage reduction projects and navigation improvements on the

Mississippi River. More recently, project purposes have been expanded to include environmental restoration.

As established in 1879, the Commissioners were to serve as advisers in planning and implementing water resource projects and

programs on the Mississippi River between the Head of Passes

below New Orleans to its headwaters. Since 1928, the Commission

has focused on the Mississippi River and Tributaries Project authorized by the Flood Control Act of 1928 to be implemented under

the oversight of the Commission. The MR&&T Project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers

portions of seven States. It receives water from all or portions of

31 States or roughly 41 percent of the contiguous United States.

A major flood on the lower Mississippi River would have catastrophic effects on the inhabitants of the Mississippi Valley and the

economy of the Nation were it not for the protection provided by

the levees and other flood control works along the mainstem of the

Mississippi and the Atchafalaya Rivers.

In addition, the navigation features of the project help to maintain the river for shipping import and export commodities between

inland ports and world markets.

Reorganization of the Corps of Engineers in April 1997 placed

the entire length of the Mississippi River within one division of the

Corps of Engineers. I serve as the Commander of the Mississippi

Valley Division. Command of the division office traditionally has

also included duties as President of the Mississippi River Commission. The reorganization of the Corps now allows management of

the Mississippi River as a single and unified system and enables

the President and members of the Commission to more effectively

serve as advisers to the Chief of Engineers as authorized in the

1879 legislation.

In regard to my personal qualifications, I’d like to mention that

I am a licensed professional engineer in the Commonwealth of Virginia and since July 1997, I have served as Commander of the Mississippi Valley Division and also as President-designee of the Mis-
115

sissippi River Commission. In this position, I have led and managed the Corps’ water resources program in the Mississippi River

Valley.

If confirmed to the position, Mr. Chairman, I would look forward

to playing a key role in the continual improvement of the Mississippi River system and the MR&T Project by applying the most

modern practices in water resources engineering. I would also look

forward to being the president of a commission that not only focuses on the traditional roles of safely passing the Mississippi

River Basin floodwaters to the Gulf of Mexico, plus providing a safe

and dependable navigable waterway, but also incorporates programs and projects for environmental protection and restoration.

This completes my prepared statement and I’d be pleased to respond to any questions.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you very much. You certainly have an

impressive biography. I was looking at it here. We’re delighted that

you’ve been nominated for this position.

I was looking over the names of those who serve on the Commission with you.

Mr. Angel?

STATEMENT OF SAM E. ANGEL, NOMINATED BY THE PRESIDENT TO BE A MEMBER OF THE MISSISSIPPI RIVER COMMISSION

Mr. ANGEL. Mr. Chairman, in the essence of time, and with your

permission, since my statement was almost the same as General

Anderson’s, I would just like to state my qualifications.

Senator CHAFEE. Yes, please do.

Mr. ANGEL. I have served on the Mississippi River Commission

since September 1979. This confirmation will provide my third consecutive 9 year appointment to this vital commission. I firmly believe that my experience since 1979 and partnering with local interests, the local levee boards, and Federal, State and area agencies and organizations justifies my reappointment to the Mississippi River Commission.

I am a native of Lake Village, Arkansas and was reared adjacent

to the Mississippi River. I feel that the many years of living and

working in this area and also being affiliated with the Commission

has given me vast knowledge of the Mississippi River and the various problems associated with it.

It has been my privilege to meet many people over the years,

both in the lower valley and recently in the upper valley to discuss

with them their concerns regarding this powerful river.

I have served as President of Epstein Land Company and Epstein Gin Company in Lake Village, Arkansas since 1980. I am a

commissioner of the Chicot County Watershed District and former

Commissioner of the Chicot County Rural Development Authority

and the Southeast Arkansas Levee District.

I currently serve as director of the Cotton Warehouse Association

and the Southern Cotton Gin Association, along with local, State

and national farming organizations.
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I attended Louisiana State University and the University of Arkansas at Monticello. I served with the Army National Guard from

1957 to 1965, and with the United States Army from 1961 to 1962.

If confirmed to this position, I look forward to continuing to play

a key role in the continual improvement of the Mississippi River

system the MR&T Project by applying the most modern practices

in water resources engineering.

I would also look forward to renewing my membership on the

Commission that not only focuses on the traditional roles of safely

passing the Mississippi River Basin floodwaters to the Gulf of Mexico, plus providing a safe and dependable navigable waterway but

also incorporates program and projects for environmental protection and restoration.

I have attached a complete biography on myself and a current

list of members of the Mississippi River Commission.

This completes my statement. Thank you very much, Mr. Chairman.

Senator CHAFEE. Thank you very much.

Now we will go to General Griffin.

STATEMENT OF BRIGADIER GENERAL ROBERT H. GRIFFIN,

U.S. ARMY, NOMINATED BY THE PRESIDENT TO BE A MEMBER OF THE MISSISSIPPI RIVER COMMISSION

General GRIFFIN. I will also abbreviate my abbreviated statement. I have a written statement for the record as well.

Among my qualifications, I am also a registered professional engineer licensed in Virginia and as a former District Commander in

Mobile District and Chief of Staff for the U.S. Army Corps of Engineers, Headquarters, I believe I’ve gained valuable experience in

the project operation and authorization process.

One important role of the Commission is to consider affects the

tributary basins. As a recent Commander of the Northwestern Division, I was intimately involved in responsibilities for the Missouri

River Basin, one of the major tributaries of the Mississippi River.

I have since moved in the last 2 months and am now the Commander of the Great Lakes and Ohio River Division with responsibilities for the Ohio River. I have been serving as a member-designee in my former capacity for almost 3 years next month. I believe that will bring a unique perspective to the Commission discussions for ongoing and future projects.

Additionally, my time spent in the Pacific Northwest, as Senator

Crapo well knows, although he left, provided great experience for

me in developing projects while considering environmental issues.

If confirmed, I look forward to participating in the continuing operation and improvement of the Mississippi River System.

That concludes my remarks subject to any questions you may

have of me.

Senator CHAFEE. Thank you very much.

I think both General Anderson and Mr. Angel mentioned environmental concerns in connection with all this. What do you say

about the criticisms that the channelization—this is old stuff to you

and I’m sure you’ve got answers to it—of the Mississippi as opposed to not letting it flood into the actual area has been overdone

and there should be greater releases into the swamplands, wet-
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lands. Is that just oversimplification? Do you have any comments

on that, General Anderson?

General ANDERSON. Yes, Mr. Chairman. I would tell you that we

have a balancing act in the Mississippi River Commission of looking at flood control and navigation as well as environmental protection. With respect to our responsibilities for navigation and flood

control, it is necessary in the lower valley to limit the meandering

of the river that has happened in our history so as to reduce the

flooding and keep the river within the leveed system that we have.

We’ve been very successful at that. We’ve invested in the Mississippi River and Tributaries Project $10 billion since the start of

the work but we have received $226 billion in flood damage reduction as a result.

Senator CHAFEE. Are these major floods that have been taken

care of?

General ANDERSON. Yes, sir. With respect to your question about

the levee system and with the revetments to keep the river from

meandering, what about the sediments that traditionally flowed

downstream and helped to build the Delta in the Louisiana area?

Clearly, there has been a loss of wetlands, coastal wetlands in the

Louisiana area. The Commission recognizes that and so we are proceeding with freshwater diversion projects that will take advantage

of the water that’s rich in nutrients and sediments to try to restore

some of these lost wetlands.

We are on the front end of a 10-year study called ‘‘Coastal 2050’’

where we’re looking to do more of these freshwater diversion

projects to protect the coastal wetlands of Louisiana. So it’s a balancing act, Mr. Chairman, and we try to meet our environmental,

navigation and flood control responsibilities together.

Senator CHAFEE. Do you have thoughts on that, Mr. Angel?

Mr. ANGEL. I certainly agree with General Anderson. We take a

balanced view of almost everything we do. We give just as much

attention to the environment, as we do flood control and navigation, but I think you have to incorporate all three in our Commission.

Senator CHAFEE. I’d ask each of you the questions I’ve asked the

others. Are you willing, at the rest of any duly constituted committee of Congress to appear in front of it as a witness?

General ANDERSON. I am, sir.

Mr. ANGEL. I am, sir.

General GRIFFIN. Yes, sir.

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

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

General ANDERSON. No, sir.

Mr. ANGEL. No, sir.

General GRIFFIN. No, sir.

Senator CHAFEE. Obviously you gentlemen have had vast experience in these areas and have impressive backgrounds. I will say

that I am concerned about the environmental aspect you’ve discussed. You’re going to learn something from the study you’re undertaking; that’s the whole purpose. It’s not a delaying action and

so I commend you for that and thank you all for coming this afternoon.
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With that, we will conclude our hearing.

That completes the hearing.

[Whereupon, at 4:25 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM THE STATE OF

CONNECTICUT

Thank you, Mr. Chairman, for holding this important nomination hearing. I look

forward to hearing from the nominees today, and hope that we can move forward

in confirming qualified individuals to positions with the Nuclear Regulatory Commission, the Chemical Safety and Hazard Investigation Board, and the Mississippi

River Commission. These agencies serve critical public roles. For example, the

Chemical Safety and Hazards Investigation Board, serves an essential function providing independent investigation of chemical accidents, and exerting oversight to

prevent future catastrophes. I was a strong supporter of the Board since its inception, and advocated strongly with my colleague Senator Lautenberg for adequate

funding for the Board.

I am particularly interested in hearing from Mr. Richard Meserve, the nominee

for the Nuclear Regulatory Commission. As a supporter of nuclear power, I believe

that a strong NRC is essential to maintaining public confidence in the industry. In

recent years I have worked closely with the Commission to address some serious

concerns that arose after problems at the Millstone nuclear plants in Connecticut.

I was very pleased at the efforts that former Commissioner Dr. Shirley Jackson

made to conduct extensive safety reviews, and to oversee the plants in preparation

for a restart this year. The NRC has played a very important role in ensuring public

health and safety protections are in place at nuclear facilities in my State and

around the country.

I will also be interested to hear Mr. Meserve’s views regarding the NRC’s efforts

to move toward risk-informed regulation. Certainly it seems to make sense to

prioritize safety concerns, and to effectively leverage limited resources. However, I

also view it as essential that the NRC respond to some issues raised by a recent

GAO report, which found that the NRC needs to develop more specifics on how the

Commission will define and implement risk-informed regulation, and improve the

base of knowledge regarding the condition of individual plant conditions and modifications. It is essential to ensure that information sharing in the area of safety does

not suffer as we move to a competitive nuclear industry.

I have several questions I would like to ask the Mr. Meserve in preparation for

his pending nomination, and hope that, if confirmed, Mr. Meserve will continue the

strong leadership that was shown by his predecessor.

Again, I look forward to hearing from all the nominees this morning. Thank you.

STATEMENT OF HON. ROBERT C. BYRD, U.S. SENATOR FROM THE STATE OF WEST

VIRGINIA

Mr. Chairman, Senator Baucus, and Members of the Committee, I thank you for

the opportunity to introduce to you this afternoon my constituent, the Honorable Dr.

Paul L. Hill. Dr. Hill is the current Chairman of the U.S. Chemical Safety and Hazard Investigation Board, and has recently been renominated by the President, with

my support, to serve a second term as Chairman.

Dr. Hill holds a Ph.D. from the University of Louisville and Bachelor of Science

and Master of Science degrees from Marshall University in West Virginia. Dr. Hill

has dedicated 20 years of his career to chemical safety, regulation, and public policy.

This includes 7 years as President and CEO of the National Institute of Chemical

Studies located in the Kanawha Valley of West Virginia, which is also home to a

thriving chemical industry on which the State and the world depend.

It is in this capacity that I am most familiar with Dr. Hill’s abilities. The chemical

industry is a critical component of the West Virginia economy. However, we all

know that many chemicals are sensitive and volatile and that chemical accidents

which pose significant threat to life and the environment can and do occur. When

they do occur, public outcry for immediate remedy is often at odds with the viability

of the business involved. Dr. Hill established his credibility within the field of chemical safety by working with government, industry, and the public to better manage

chemical risks while still sustaining environmentally responsible economic growth

in the industry. Thoughtful, studious, and effective, he has demonstrated calm and
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effective leadership not only in more mundane, day-to-day circumstances, but also

in the highly charged emotional atmosphere that accompanies the real-life nightmare of a chemical accident.

In 1993, when the President began looking for candidates for the U.S. Chemical

Safety and Hazard Investigation Board, I had no hesitation in bringing Dr. Hill’s

interest in serving on the Board to the Administration’s attention. I was very

pleased that the President and this Committee also recognized Dr. Hill’s qualifications to lead this new independent agency. However, for the first 3 years of his 5-

year term as Chairman, delays in providing funds to initiate the Board’s activities

kept that body from serving its appointed role. 1 hope that my colleagues will look

favorably on Dr. Hill’s nomination to a second term as Chairman of the U.S. Chemical Safety and Hazard Investigation Board.

In his year and a half tenure, Dr. Hill has lead a Board which, while still in its

infancy, has as its mission to ensure the safety of workers and the public by eliminating chemical accidents. To date, the Board has investigated 22 chemical accidents, and completed reports on three. The Board’s initial research indicates that

on average, 253 Americans die each year as a result of chemical accidents. Dr. Hill

knows that this is unacceptable and that the success of his tenure will be measured

by the Board’s effectiveness in reducing chemical accidents by finding out their

cause and helping to find solutions to prevent similar accidents from occurring in

the future.

In West Virginia and other States across the country with a high concentration

of chemical plants, the existence of this Board provides greater peace of mind both

to the plant workers and to those families living near the highways and railways

that transport the chemicals. Dr. Hill has proved that, through diligence, cooperation, and forward-thinking, dangerous situations can be avoided, and lives can be

protected.

I am proud to introduce a man of Dr. Hill’s caliber, and I hope that you will express confidence in his abilities to guide this worthy organization in its next 5 years

by approving his renomination.

Thank you again for this opportunity.

STATEMENT OF PAUL L. HILL, JR., NOMINATED BY THE PRESIDENT TO BE CHAIRMAN

OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Chairman Chafee, Senator Baucus. Honorable members of this Committee.

It is an honor for me to appear before you to answer questions by which you may

assess my capability to continue to serve as the Chairman and Chief Executive Officer of the Chemical Safety and Hazard Investigation Board (Board or CSB). I am

further honored that it was Senator Robert C. Byrd, who first recommended me for

this position. Humbled as I am that the President of the United States has placed

faith in me by again submitting my nomination to you for confirmation, I want to

assure you that I will continue to dedicate myself to working as a partner with Congress in fulfilling the Board’s mandate. My goal is to continue to build a 21st Century model of good government.

I have been allowed to serve as Chairman of the Board for only a short period

of time. During this startup phase, however, much has been accomplished for which

I am extremely proud. There is much, much more work to do. Although this has

not been easy and many challenges lie ahead, I look forward to the opportunity to

meet these challenges if confirmed for a second term. Further, if the Committee

would entertain engaging its oversight function, I would readily participate in the

opportunity to explore various issues and challenges relative to chemical safety. In

so doing, my approaches to implementation of Congress’ intent could be aired with

those who were directly involved in creating the Board’s statutory authorities and,

indeed, its very existence.

A SHORT TENURE

In its short 21-month history, the Board has undertaken several major investigations as much to learn and exercise various approaches to conducting investigative

work as to determine cause. These activities have helped to chart the course and

protocols for how investigations and safety programs will be structured in the future. Just last week I chaired a public inquiry into a tragic, fatal incident which

not only cost human lives but also raised serious economic concerns for its impact

on the community, State and Nation through loss of production. Exercises such as

this one have allowed the Board to explore various mechanisms to achieve its safety

mission and fully assess the potential impact of our important work.
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When I appeared before you last, there was no Board. There existed only a statute, three nominees and the concept of a new agency to perform a new and necessary function. For the past 2 years I have guided the Board as it moved from concept to concrete. On January 5, 1998, our initial staff of 4, including one other Board

member and me, opened our doors for business in 4 small offices. By May of last

year, we had hired additional staff and outgrown that space, necessitating a move

to the space we now occupy. Today, the Board has 4 members and 22 full-time staff.

If there has ever been a truly ‘‘from-the-ground-up’ development of a Federal

agency, the Chemical Safety and Hazard Investigation Board is it. After nearly 21

months in existence, the Board could still be called a virtual agency. We exist in

temporary space, rent our furniture, borrow technical expertise from other Federal

agencies and outsource the majority of our administrative functions. When the

members of the House Appropriations subcommittee wished me ‘‘good luck’’ at my

first appropriations hearing in early February 1998, none of us knew the extent of

luck I would need. Still, in spite of the hurdles, in 21 months we have done what

almost no one in government can remember happening: we created a Federal agency

from scratch. Beginning with an exhaustive search, we determined there is no manual, book or ‘‘how to’’ guide for new agencies. Today, we could write one. Fortunately

for me and the other Board members, we attracted a handful of seasoned, senior

Federal employees to the staff. These employees were able to compliment the experience that I and several other members brought from outside the government.

Together, we took a business-like approach to this daunting task, following a plan

and operating philosophy reflecting our belief that Congress expects government in

the 21st Century to be lean, accountable and service oriented. We carefully reviewed

not only the statute authorizing the Board but its extensive legislative history as

well. In developing the agency, we made every attempt to reflect the Congress’

charge to build on capabilities within the government. As the Board continues to

evolve in concert with this mandate, we have signed interagency agreements and

contracts to better utilize Federal resources that are already in place.

MANY ACCOMPLISHMENTS

Although we might be a virtual agency, our impact has been anything but virtual.

Three days after opening our doors we initiated our first investigation that culminated in a report containing recommendations subsequently adopted and codified

in State statute. We have issued reports on three chemical incidents, which caused

7 deaths and 14 injuries. The average time for completion of these reports was less

than 12 months from the date of the incident or about one report for every 7 months

of our existence.

These reports made a total of 28 recommendations to 13 different entities. The

first report, involving the Sierra Chemical Company, resulted in the State of Nevada enacting legislation incorporating CSB’s recommendations addressing bilingual

training requirements, increased frequency of inspections of explosives manufacturing facilities, and piecemeal payment for workers in that industry. Recipients of recommendations resulting from the other 2 investigations (involving Union Carbide

Corporation and Herrig Brothers Inc.) have implemented a number of the recommendations and have notified the CSB that they are considering how to best address the remaining ones. The CSB is currently investigating an additional 8 major

chemical incidents. These incidents, which occurred in 7 different States, caused 33

deaths and approximately 50 injuries.

The CSB has produced investigation reports that are being widely circulated and

have been used nationally and internationally by stakeholders for a variety of chemical safety purposes not originally envisioned. Two examples include: use of a report

by the Bureau of Alcohol, Tobacco and Firearms to train its agents on how to conduct investigations; use of a report by the Safety Officer with the Hagerman, Idaho

Fire Protection District to direct relocation of a potentially dangerous 14,000-gallon

propane tank.

The CSB has garnered positive support from stakeholders as a result of its investigations and the resultant reports. For example, the Herrig Brothers report was

widely praised by the fire and emergency response communities. As a result of its

reports, the CSB has been repeatedly asked to give presentations to various groups,

including the National Governors’ Association.

At the Senate’s behest, the CSB produced a major report on chemical safety preparedness as related to the Y2K computer issue. In connection with this report, the

CSB hosted the first chemical industry workshop on the Y2K problem and its effect

on chemical safety. The workshop involved national experts from industry, labor

unions, and government agencies.
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The CSB has developed a mechanism to provide the Federal Government its first

ever look at the magnitude of reported chemical incidents in the United States. Although other agencies have suggested this was not possible or feasible, the CSB consolidated information from 5 key data bases maintained by other Federal agencies

on reported chemical incidents. The CSB is now in a position to begin to answer

the question of ‘‘how big is the problem?’’ and, ‘‘what impact are Federal agencies

having on reducing the number and severity of chemical incidents?’’ This work also

has given the CSB valuable information for use in deciding how to regulate the reporting of chemical accidents at the law requires us to do.

MUCH MORE TO DO

The CSB is today functioning though a still-developing organization that has implemented mission-critical programs as well as addressed governmentwide administrative requirements. It has relied on its business plan and operating philosophy to

build what is coming to be recognized as an atypical government agency.

It may seem we’ve come a long way in 21 months. But, I can tell the Committee

today something I only suspected when I was confirmed in 1994. Collectively, we

have a long, long, long way to go to achieve what the Congress directed in 1990 be

done. What I also now recognize and have begun to experience over the past 21

months is the enormous number of hurdles or obstacles that are placed, either deliberately or by chance, before us. We now have a better handle on the magnitude of

the problem of reported chemical accidents based on our study of the government’s

own records. We know there are an average of 60,000 events annually involving accidental releases of chemicals, but we don’t know why they occur. We know there

are many Federal laws and regulations in place to prevent chemical incidents, but

we don’t know how effective they are. We know on average 256 people die in the

United States each year in chemical accidents, but we don’t know causes of these

fatalities. We know that the United States has the greatest safety system of standards, rules, technology and worker training in the world, but we don’t know what

the system’s failures are or its most basic trends.

The Board has begun and will continue to work on a variety of fronts to seek answers to these questions. Some have intimated that the Board should only conduct

accident investigations as the sole source of these answers. This is errant thinking

for two reasons. First, the Congress directed the Board to work with a variety of

stakeholders and use a variety of mechanisms to gather, assess, and communicate

safety information. Second, if the Board were to rely on its own investigations as

the sole source of information, it would take either decades of work to build an ‘‘information trust’’ (data base) or enormous numbers of taxpayer dollars to collect information in a more rapid fashion, or both. While no one would question that the

central mission of the Board must be accident investigation, the Agency cannot and

will not make a major contribution to chemical safety without use of other mechanisms for enhancing safety. By assessing the existing government data bases and

providing advances, communications, and tools to industry, policymakers and others

exploring chemical safety, the Board will further expedite progress in chemical safety at a lower cost to the government.

While the CSB’s partners are making a significant contribution, the government

must bear certain unavoidable costs for independent investigations. With its current

resources and small staff, the Board is challenged to conduct enough quality investigations to make a significant contribution to the national ‘‘safety system’’. Certainly, individual cases and issues are being addressed. However, given the sheer

numbers, the technical complexity and the resources required for each case, direct

incident investigation cannot be the sole approach. Should the Board conduct more

investigations than it currently does? Yes. Without question, the Board has only

begun to look at the variety, characteristics and distribution of chemical accidents

in American commercial and industrial facilities. As our resources grow, so too, will

the investigative workload.

I submitted an original business plan to the Congress in late 1997 which projected

a phased approach to enhancing the Board’s investigative capacity. While it ambitiously called for a number of investigations during the startup years, the plan also

recognized it would take both infrastructure development and increased resources

to produce timely, credible and accurate investigation reports. Only now does the

Board have a fledgling infrastructure in place. With 22 staff members, the Board

is poised to add staff and move ahead with focused investigations. My initial projections for both agency accomplishments and investigative products were predicated

on building an infrastructure to support the investigative function. Again, I look forward to the opportunity to discuss accomplishments to date and a strategic plan

with the Committee.
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I have emphasized that communication of results plays a pivotal role in the

Board’s effectiveness. Laws and regulations, while necessary, are not enough. Dry,

technical reports placed on the government’s shelves are not enough. In contrast,

I have placed special emphasis on ‘‘plain English’’ communication. The effectiveness

of all safety information rests on the commitment of industry leaders and facility

operators to ensure that equipment functions properly, employees are well-trained

and supervised, and well designed operating policies and procedures are established

and followed. Only people can make those differences. But in order for people to

take actions that do, indeed, make the desired difference, they must have factual,

timely information made available to them. In recognition of this need, and to ensure that the work of the Board finds its way into the hands of those who bring

about change, I have placed major emphasis on direct and rapid dissemination of

the Board’s findings and recommendations.

Effective communication is especially applicable to chemical workers. Adequate

knowledge of chemical risks and proper equipment operation and maintenance will

prevent accidents. Chemical workers are not dispensable, they are vital to the success of safe chemical management. The Board will continue to pay particular attention to worker safety.

In addition to worker and industrial communication, an equally important aspect

is a focused effort on improving communication between government, industry and

the public. Technical competence is often lost on the public due to the lack of appropriate communication skills. In my experience, the American people want to know

what risk they face from chemicals in plain understandable terms. Likewise technical individuals often cannot comprehend the fears and concerns of a nontechnical

public. While the very issues are technical in nature, they are also often steeped

in basic miscommunication. The Board is already placing practical information and

recommendations not only in the hands of regulators but also in the hands of the

American people so that technical and nontechnical issues are clearly understood.

In light of the positive response we routinely receive in this area, I remain convinced that communication programs are absolutely essential for the Board.

To fulfill our responsibilities, it is critical that the Board establish a collaborative

relationship with many partners in chemical safety. Our website is continuously disseminating new information generated by our work so we can assist our stakeholders and they, in turn, can assist us. By adopting this partnership philosophy, the

Board is leveraging the work of others as Congress encouraged us to do. This allows

us to provide maximum benefits in the shortest time possible, and avoid duplicative

or unnecessary operating and research expenditures.

CONTINUING THE CHALLENGE

Chemical safety is critical to the success of the chemical industry and the communities where chemical facilities are located. The work of this Board, therefore, is vitally important. Understanding the causes of serious chemical releases is necessary

for release prevention efforts to be fully effective. My experience with the chemical

industry and the affected public has been very positive. I am confident that I and

the Board will continue to receive complete cooperation and assistance from all concerned groups, individuals, and government agencies as we continue to evolve as an

organization and implement our statutory mission.

Clearly, I appear before you today because I want to continue in my current capacity. My plans for the direction of the Board remain quite straightforward. All activities must be conducted with chemical release prevention as the goal. The role

of the Board in investigation is not to assign blame but is instead to provide a critical tool for accident prevention. While we, as well as other agencies, will try to anticipate all contingencies, it is impossible to prevent all chemical releases. Determining probable cause of chemical releases is important in order to identify, catalogue

and correct previously unidentified problems. I have directed my staff to conduct as

thorough investigations as available resources will allow and to focus their efforts

on prevention of similar releases in the future. Prevention is a mission I’ve devoted

my career to achieving. I feel very strongly that the Board should continue this pursuit.

COMMITTEE OVERSIGHT

Congress has set a formidable task before the Chemical Safety and Hazard Investigation Board: to make the world of chemicals safer and the world safer from

chemicals. If confirmed, I intend to continue devoting my energies to accomplishing

that task. With your support, I am confident the Board members and staff already

in place will be able to move our Nation toward this worthy goal, and, in the proc-
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ess, build on the emerging recognition and respect for the Board as a credible and

competent chemical accident investigative agency.

I’ve now had nearly 2 years of experience working to implement the Congress’ directives to the CSB contained in the Clean Air Act Amendments of 1990. Today, I

ask that the Committee consider in the near future a few minor modifications to

the Board’s statutory language in the interest of efficiency and cost effectiveness.

I have shared my suggestions with Committee staff and vetted the concepts with

several major stakeholders resulting in broad support for such modifications.

New agencies are not started everyday. It is my desire to keep the Congress directly and adequately informed of my agency’s progress and development as a new

component of the government. While you have entrusted that management charge

to me over the past 2 years, I would welcome the opportunity to provide the Committee greater details, should the Committee confirm me for a second term. An oversight hearing or a meeting to discuss proposed statutory modifications would give

all parties the opportunity to review the intent of Congress as we move forward to

meet that intent.

If confirmed as Chairman, I intend to continue seeking the finest staff available

to assure that the critical safety issues presented by the manufacture and use of

chemicals in this country are properly evaluated, investigated and addressed. The

President, Congress, the chemical industry, the chemical workers and the American

public expect and deserve no less. I am honored to have been nominated by the

President to continue this important work. I pledge to you my total dedication to

successfully managing an efficient and effective agency.

Thank you for permitting me to address this Committee. I welcome the opportunity to answer any questions you may have and look forward to working with you

in the future.
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RESPONSES BY PAUL HILL TO ADDITIONAL QUESTION FROM SENATOR LIEBERMAN

Introduction and question: Since the Chemical Safety and Hazard Investigation Board was created, it took several years to secure funding to ensure a quick and

effective startup of the Board. Some argue that the Board’s functions could be incorporated into OSHA and EPA. With your experience on the Board since 1994, you

no doubt have a clear picture of the historical debate over the role of the Board and

ideas of where it could be most effective in protecting the public.

What is your view of appropriate role of the Chemical Safely and Hazard Investigation Board in terms of coordinating with other agencies?

Response. The CSB coordinates its work during investigations with over Federal,

State and local agencies to the maximum extent possible. We share factual information and, unless an interviewee objects, conduct single interviews with all interested

parties present. Our deliberations on causes and recommendations are not shared,
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however. After the Board Members have approved the final report on a given accident, the full document is made available to all parties.

While interagency coordination is expected and possible, the CSB investigations

and associated reports are work products that cannot be expected from others. The

CSB has been recognized, including by Congress itself in the Clean Air Act (as

amended) legislative history as the only agency that can do the work Congress envisioned when it wrote the legislation. Neither EPA nor OSHA are able to conduct

independent accident investigations akin to the CSB’s. There are a couple of reasons

for this fact.

• First, as the Senate acknowledged, it would be unlikely that these agencies

would be forthcoming when, as a result of an investigations their own programs and

rules could be found at fault. For exactly the same reasons, Congress removed the

NTSB from DOT to ensure there would be completely independent assessment of

the safety systems governing transportation. Congress further segregated both the

NTSB and the CSB from executive branch control by making them independent

agencies answerable to the Congress directly. This is in keeping with our checks and

balances of democracy.

• Second, EPA and OSHA (as well as DOT and FAA), as regulatory agencies,

have a unique role incompatible, in many respects, with accident investigation as

performed by the CSB. Regulations which implement EPA and OSHA’s statutory

authorities are traditionally prescriptive, requiring regulated entities to adhere to

only those standards included in existing rules. In turn, the regulatory agencies

evaluate those entities’ compliance with the specific safety requirements and cite

violations of statute or regulation; however, in the absence of statutory authority to

do so, system failures not covered by regulatory provisions are not cited even when

noted. In contrast, there are no restrictions on what the CSB may examine in the

course of its investigations. The investigations are aimed at determining compliance

with or violation of regulations, but at discovery of all safety system failures, including those which may not have been recognized or could not be addressed by the regulatory agencies in the past. The CSB’s goal is to improve the safety system by looking beyond what may or may not be in place today.

• Third, there is a basic incompatibility between regulatory enforcement and scientific investigation for the purpose of obtaining new knowledge about safety system

failures. New knowledge is predicated upon a thorough understanding of the chemical process and relies upon a non-threatening interactive exchange of information

between the company and the investigative body. EPA and OSHA, because of their

statutory direction to take enforcement action if violations are uncovered, do not

offer any incentive for companies to provide voluntary information, assistance, or cooperation in any way. (A 1995 report by GAO reported that regulatory agencies

could do the job now being done by the CSB only lathe companies cooperated.) By

late 1997 when the Congress funded the CSB, it was common knowledge among

major chemical industries that participating in EPA-OSHA accident investigations

by volunteering information in excess of what was required under current law would

result in potentially more penalties. As the result of this lack of industry cooperation—the investigations and He reports issued by the SPA and OSHA were called

‘‘superficial’’, ‘‘uninformative’’ and deemed to be of little value to anyone. They were

denounced by every major labor union, He environmental community and major industry groups alike.

In contrast to problems faced by EPA and OSHA, the CSB has found industries

to be much more cooperative during the course of CSB investigations and eager to

learn, through CSB’s recommendations, how to improve safety performance. This is

due in no small part to a provision in the legislation barring use of CSB’s findings

in private legal proceedings, directions to the CSB that it is not to affix blame, and

the fact that the CSB is not a regulatory body and, therefore, does not impose penalties or perform any other enforcement function. Beyond making recommendations

to industry, the CSB can identifier shortcomings in regulatory agencies’ programs

and make recommendations to them as well.

The CSB must serve an overarching leadership role in accident investigation. Regulatory agencies still leave their defied role: measuring compliance, identifying violations ant assessing penalties. The CSB will continue to coordinate its investigations with regulatory agencies to ensure each agency is allowed to efficiently and

effectively perform its statutory function. The CSB will continue to share with enforcement agencies the factual information gathered at accident sites. It has signed

interagency agreements with. OSHA and EPA that state (1) this is its policy, (2)

there will be a coordinated Federal approach, led by the CSB, to gather facts, share

information and communicate with the media, and (3) after the facts hare been Wagered the CSB will conduct an independent analysis, broader in scope than inves-
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tigations conducted by to regulatory authorities due to the CSB’s authorities, to determine safer system failures. We have learned over the past 21 months of operation that only through the CSB’s independent, broad scope approach to the conduct of investigations will it be

possible to uncover the causes of and means of preventing accidents and to make

information deemed credible available to all who can benefit from it.

STATEMENT OF RICHARD A. MESERVE, NOMINATED BY THE PRESIDENT TO BE A

MEMBER OF THE NUCLEAR REGULATORY COMMISSION

Mr. Chairman, and members of the Committee, I appreciate the opportunity to

appear today at this hearing on my nomination to be a member of the United States

Nuclear Regulatory Commission (NRC). As I believe you know, the President has

stated his intention, if I am confirmed, to designate me as the Chairman of the

Commission. Let me say a few words about myself and then offer my thoughts as

I contemplate the possibility of joining the NRC.

I am a partner in the law firm of Covington & Burling, in Washington, D.C.,

which I joined as an associate in 1981. I turned to the practice of law after completing a Ph.D. in applied physics, and I have used my scientific training in my legal

work. Over most of my years in private practice, this has included work on nuclearrelated issues. As an attorney who has worked with the Agency, I have a familiarity

both with the procedures of the NRC and with the substance of its work. I have

also served on a number of committees of the National Academy of Sciences (NAS)

and the National Academy of Engineering that have focused on nuclear issues. For

example, I recently served as chairman of a committee that examined the protection

of nuclear weapons materials in Russia and previously, in the aftermath of

Chernobyl accident, I chaired an NAS committee that examined safety issues associated with the DOE reactors. I thus also have experience arising from my pro bono

activities that bear on the NRC’s mission. I believe that my educational background

and my professional experience will reinforce each other in ways that should be

helpful in the conduct of the Commission’s work. Rather than take further time here

today to discuss my professional career in greater detail, however, I have submitted

my curriculum vitae as an attachment to my written statement.

Let me turn now to my views as I contemplate the possibility of joining the NRC.

As I am sure this Committee is fully aware, we are in the midst of a significant

restructuring of the utility industry. In a growing number of States the competitive

market determines the price for electricity and thus profitability for all forms of

electricity generation is dependent on achieving economically efficient operations.

This has important implications for the NRC’s work.

First, and most important, it reinforces the need for the NRC to fulfill its obligation to demand safe operations by licensees. The NRC must assure that the pressures to reduce costs do not become incentives to cut corners on safety. I understand

that the principal statutory responsibility of the Commission is the protection of the

public’s health and safety and of the environment. The NRC must ensure that its

licensees meet the agency’s safety and environmental requirements.

Second, in a time of sensitivity to costs, the NRC has a particular obligation to

regulate efficiently to regulate in a fashion that imposes the minimum degree of

burden consistent with getting the job done. This implies a judicious approach both

to new regulatory initiatives—making sure that the benefits outweigh the costs—

and a willingness to cast a cold, appraising eye on existing policies and programs.

The fact that a given program may have made excellent sense in 1979 or even 1989

does not mean that it still makes sense in 1999. Moreover, managerial oversight is

necessary to make sure that the policy decisions made in the agency’s conference

rooms are translated into practice at the operational level so that the benefits of

informed policy are actually achieved.

Third, it is incumbent on the NRC to reach decisions in appropriate ways. Decisions must be fair, and be perceived to be fair; they must be appropriate for the

particular task at hand; and they must be efficient and timely. For example, if a

process is so needlessly time-consuming and inefficient that delay itself determines

the outcome, then the goal of fairness is not being met and the Commission has

failed in its obligations. Here again, we have to be prepared to adjust processes to

changing needs. At the same time, however, there should be no slighting the significant role that Congress gave to the public in NRC processes. The NRC staff and

the regulated industry benefit from public participation because the public may

often illuminate issues in ways that would otherwise escape scrutiny. Moreover, the

American public will not accept the legitimacy of decisions that derive from processes from which it has been excluded. Thus, as the NRC carries out its regulatory
144

activities, it must be conscious of the need to include the affected public in ways

that are meaningful and that contribute to sound and efficient decisionmaking.

Finally, at a time when the Commission has a variety of important matters to

which it must attend, I am mindful of the fact that Congress created the NRC as

a multi-member Commission. Each member of the Commission should gain the benefit of the other members’ expertise and ideas, thereby allowing more informed and

thoughtful decisions than any one Commissioner could provide alone. I understand

that this places a special obligation on the chairman: in addition to taking a leadership role, the chairman has a special responsibility to listen to his or her colleagues

and to work for consensus and collegiality.

I believe that the NRC has made progress in all these areas in recent times and

I believe that there are grounds for considerable optimism about the future. I see

an agency well aware of its duties to protect the public health and safety under the

law. I see an agency that has worked to improve its communications with members

of the public, the regulated industry, and with the Congress. I see an agency that

is taking advantage of improvements in analytical tools and information to focus on

those aspects of industry operations that are most risk significant. In short, I see

an agency that is on the right track. If confirmed, I look forward to working with

my colleagues on the Commission to build on the achievements of the recent past.

I would be pleased to answer any questions you may have for me. Thank you.
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RICHARD A. MESERVE

Employment Experience

Partner, Covington & Burling, 1981-present (associate through 1984):

Legal practice involving issues with substantial technical content, including environmental and toxic-tort litigation, nuclear licensing, and counseling of scientific societies.

Legal Counsel, Office of Science and Technology Policy, Executive Office of the

President, 1977–81:

Responsibility for policies related to the health of science, industrial innovation,

energy, and space.

Law Clerk, Justice Harry A. Blackmun, U.S. Supreme Court, 1976–77.

Law Clerk, Judge Benjamin Kaplan, Massachusetts Supreme Judicial Court,

1975–76.
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Education

Harvard Law School: J.D., magna cum laude (1975).

Harvard Law Review, editor and senior editor

Ames Moot Court Competition (member of winning team)

Stanford University: Ph.D., Department of Applied Physics (1976).

Tufts University: B.A., magna cum laude (1966).

Phi Beta Kappa

Sigma Xi

Policy Studies

Chairman, National Academy of Sciences, Committee on Balancing Scientific

Openness and National Security (1999-present)

Chairman, National Academy of Sciences, Committee on Protection, Control, and

Accountability of Nuclear Materials in Russia (1998–1999)

Chairman, National Academy of Sciences, Committee on the Cooperative Threat

Reduction Program (1995–1997)

Chairman, National Academy of Sciences, Committee on Declassification of DOE

Information (1994–95)

Chairman, National Academy of Sciences, Committee on Fuel Economy of Automobiles and Light Trucks (1991–92)

Chairman, National Academy of Sciences, Committee to Provide Interim Oversight of the DOE Nuclear Weapons Complex (1988–89)

Chairman, National Academy of Sciences, Committee to Assess Technical and

Safety Issues at DOE Reactors (1986–88)

Member, National Academy of Sciences, Panel on Scientific Responsibility and the

Conduct of Research (1989–92)

Member, National Academy of Sciences, Panel on the Impact of National Security

Controls on International Technology Transfer (1984–86)

Member, National Academy of Sciences, Panel on Scientific Communication and

National Security (1981–82)

Member, Carnegie Commission on Science, Technology, and Government, Task

Force on Judicial and Regulatory Decision Making (1992–93)

Member, Carnegie Commission on Science, Technology, and Government, Task

Force on Nongovernmental Organizations in Science and Technology (1991–92)

Other Professional Activities

Member, Advisory Committee, Court Appointed Scientific Experts (a demonstration project of the American Association for the Advancement of Science) (1999-

present)

Vice-Chairman, National Academy of Sciences, Board on Energy and Environmental Systems (1993-present)

Member, National Academy of Sciences, Commission on Geosciences, Environment

and Resources (1997-present)

Member, Board of Directors, Carnegie Institution of Washington (1992-present)

Member, Secretary of Energy Advisory Board; Chairman, Openness Task Force

(1996-present); Chairman, Task Force on Fusion Energy (1999-present)

Member, Board of Directors, Tech Corps (1995-present)

Member, Council and Executive Committee, American Academy of Arts and

Sciences (1997-present)

Faculty Member, University of Virginia School of Law, Graduate Program for

Judges (1994, 1997)

Chair, American Bar Association, Science and Technology Section, Life and Physical Sciences Division, Physical Sciences (1991-present)

Member, Board of Overseers for the Arts and Sciences, Tufts University (1994-

present)

Chairman, Advisory Council of the Princeton Plasma Physics Laboratory (1989–

1999)

Member, Advisory Board of the MIT Center for Technology, Policy and Industrial

Development (1988-present)

Chairman, AAAS-ABA National Conference of Lawyers and Scientists (1988–94)

Member, The American Physical Society, Panel on Public Affairs (1988–90)

Member, Advisory Board, MIT Lincoln Laboratory (1994–1999)

Honors

Fellow, American Academy of Arts and Sciences (1994)

Fellow, American Association for the Advancement of Science (1989)

Fellow, The American Physical Society (1989)
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RESPONSES OF RICHARD MESERVE TO QUESTIONS FROM SENATOR LIEBERMAN

Question 1. In March of this year, the GAO issued a report that I requested with

Senator Biden, assessing the NRC’s efforts to devise a strategy to advance a riskinformed approach to regulation. The report found that some utilities do not have

current and accurate design information for their plants that is a prerequisite for

a risk-informed safety strategy. I have long advocated for better use and enforcement of design specific safety initiatives.

What steps do you envision the NRC taking to verify that utilities use plant design as the basis for their operating and safety initiatives?

Response. I understand that the NRC has identified the need for additional guidance to licensees both to provide a clear definition of what constitutes design information that must be maintained by licensees as the basis for operations and to clarify how that information should be updated to reflect changes to the facility. That

guidance needs to be completed in a timely manner. As the Commission implements

its new reactor oversight process, it should take steps to focus licensee and NRC

resources on significant plant issues, including, where appropriate, maintenance of

plant design information.

What other major problems with respect to safety do you see that remain?

Response. Various indicators show that the safety performance of the nuclear industry has improved in recent years. But, as I indicated in my testimony before the

Committee, the restructuring of the industry has important implications for the

NRC’s work. It is necessary for the NRC to have effective mechanisms in place so

as to assure that the pressures to reduce costs do not become incentives to cut corners on safety.

Question 2. The NRC recently issued a report finding that a former senior engineer at the Millstone nuclear plant violated Federal safety regulations and willfully

lied to the NRC about it. However, the NRC cannot fine the company because the

5 year statute of limitation expired. While NRC maintained that the report was delayed due to complexities of the issues, the public remains concerned that the NRC

did not conduct a timely investigation, thereby hindering enforcement of safety.

What will the NRC do to improve its track record with investigating and enforcing

serious safety violations?

Response. The NRC should make sure that it focuses on potentially significant

violations or allegations of wrongdoing and gives their resolution priority in the investigative and enforcement process. In the example you mention, simply tracking

the application of the statute of limitations to the violations under investigation

would help investigators and enforcement staff to keep sight of the need for resolution of the investigation and would allow them to take steps to preserve the agency’s

enforcement options.

Question 3. Connecticut is currently in the process of auctioning off its nuclear

generating assets, and Northeast Utilities recently announced that they don’t expect

to bid on the Millstone plants. The citizens of Connecticut have worked hard to correct management and safety problems at the plant over the years. I believe—unlike

others, who have raised concerns that the NRC over regulates—that the NRC plays

a critical role in maintaining public confidence that the plants are safe.

What role would the NRC play in overseeing the transition of ownership of the

Millstone plants? How will NRC ensure that the mistakes of the past are not repeated?

Response. The NRC is required to approve transfers of ownership or control of

plant licenses in accordance with Section 184 of the Atomic Energy Act of 1954, as

amended. The NRC’s regulations provide for an appropriate review of the technical

and financial qualifications of a new owner or operator and also offer opportunities

for public comment or hearing on proposed transfers. In light of the history of the

Millstone plants, I believe that the NRC should seek to ensure that the plants,

whether under existing or new management, sustain improvements in operations

and in the work environment. I understand that both Millstone units are currently

under enhanced monitoring through additional dedicated inspection resources and

close NRC senior regional management oversight.

Question 4. Dr. Jackson took some major actions to make the NRC more responsive to problems raised by whistleblowers at nuclear plants. I believe that the NRC

needs to continue to do more to keep improving safety, taking aggressive enforcement action where appropriate, and holding nuclear plant licensees accountable for

correcting problems in a timely manner.

Do you have any plans for improving NRC’s record protecting workers from suppression of concerns about plant performance and safety?
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Response. I believe it is important for the NRC to intervene promptly if we iden- tify concerns about a worker’s ability to raise issues of plant performance and safety

without fear of retribution. The NRC has identified the existence of a safety-conscious work environment as one of the central elements in its new process for assessment of reactor performance. This should remain a key element of the assessment process.

Do you think that legislative authority is needed to improve whistleblower protections?

Response. I understand that several years ago the NRC identified improvements which could be made to the protections for whistleblowers, including several

changes to the provisions of Section 211 of the Energy Reorganization Act. This section provides for redress by the Department of Labor of retaliatory actions against

employees for raising safety issues with their employers or the NRC. If confirmed,

I will review this matter.

Question 5. As you are aware, the Price-Anderson act is scheduled to be reauthor- ized in 2002. Last year, the NRC submitted a statutorily mandated report to Congress that concluded that the Price-Anderson nuclear insurance statute has proved

to be successful, and should be renewed for another 10 years with other modest, if

any changes. I am interested in your views on the Act, and the role protecting the

public from liability in the event that there is a nuclear accident. Do you generally support the NRC’s conclusions (in the report to Congress on the Price-Anderson nuclear insurance statute)? Do you agree with the NRC’s report conclusion that Price-Anderson has assured that, in the unlikely event of an accident,

the public will be promptly and equitably compensated for any resulting liabilities? Response. I am familiar with the Price-Anderson Act and its purposes and functions, although I am not yet fully conversant in the NRC’s report to Congress on

the Act that was submitted last year. I, thus, cannot address the conclusions or recommendations in that report. I do understand that the Act has established a system

to provide ample and prompt compensation for public liability claims arising from

a nuclear incident.

RESPONSES OF RICHARD MESERVE TO ADDITIONAL QUESTIONS FROM SENATOR

THOMAS

Question 1. Recognizing the continuing fragile state of the domestic uranium recover industry, would you favor Commission policies that seek to limit dual regulation of such facilities?

a. In particular, would you support NRC’s relinquishing jurisdiction over in-situ

leach wellfields since these facilities are adequately regulated by the Environmental

Protection Agency (EPA) and administered by the States?

b. Would you support NRC’s using its Federal preemption authority under the

Atomic Energy Act to move forward with the final disposal of uranium (11e2) byproduct material?

Response. A regulatory agency must always be sensitive to the need to regulate

in a manner that imposes the minimum degree of burden consistent with getting

the job done. Where more than one regulatory agency is involved in the oversight

of an industry, it is important for each agency to ensure that the requirements it

imposes provide needed protection of the public’s health and safety and the environment and, to the maximum extent possible, are not inconsistent with obligations imposed by other agencies.

I understand that the Commission has before it a series of decision documents

laying out various options for addressing the specific questions you have raised, as

well as others, relating to the uranium recovery industry. I am not sufficiently familiar with these issues to provide a specific response at this time as to my own

views. If confirmed, however, I will study these issues carefully. I pledge to work

with my fellow Commissioners to see that the Commission resolves these issues in

a comprehensive manner in an effort to bring consistency, clarity and efficiency to

the requirements governing the uranium recovery industry.

Question 2. Under the current fee system, NRC is required by the Omnibus Budget and Reconciliation Act to recover approximately 100 percent of its fees from licensees. This system requires licensees to pay for agency services they do not benefit from. These services include the following activities: international activities;

agreement state oversight; fee exemption for nonprofit educational institution; licensing and inspection activities associated with other Federal agencies; cost not recovered due to an exemption of or small entities; regulatory support for agreement

States; and others.
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The lack of reasonable relationship between annual fees and services rendered by NRC is exacerbated as more States become Agreement States and more sites are

decommissioned. This situation leaves fewer NRC licensees to bear an even greater

share of the burden. The NRC needs to determine an equitable way of dealing with

this scenario that is already playing out in the uranium recovery area. Would you be willing to support an aggressive request to Congress to resolve the inequities caused by the current fee system?

Response. Although there can be inequities which result from the current requirement for the NRC to recover all of its budget authority through fees, the various

NRC programs are important if the NRC is to fulfill its statutory obligations. As

a result, resources to support them must be found. I have pledged to work with the

Committee to find an appropriate solution to this problem.

STATEMENT OF MAJOR GENERAL PHILLIP R. ANDERSON, NOMINATED BY THE

PRESIDENT TO BE A MEMBER OF THE MISSISSIPPI RIVER COMMISSION

Mr. Chairman and Members of the Committee: I am honored to appear before you

as the nominee for president and member of the Mississippi River Commission.

Mr. Chairman, I would like to make a brief statement about the Mississippi River

Commission, the Mississippi River and Tributaries (MR&T) project, and my qualifications for the position for which I have been nominated.

The Mississippi River Commission, established by Act of Congress on June 28,

1879, consists of seven members, all of whom are appointed by the President of the

United States subject to confirmation by the Senate. Three members are Corps of

Engineers officers, one of whom serves as president; one member is from the National Oceanic and Atmospheric Administration; and three members are from the

civilian sector, two of whom must be civil engineers.

From its inception in 1879, the Commission has been charged with the task of

planning and implementing a program of flood damage reduction projects and navigation improvements on the Mississippi River. More recently, project purposes have

been expanded to include environmental restoration. This task continues to be conducted in concert with the myriad of political institutions, individuals, and public

entities which have major interests in seeing that the water resources needs and

opportunities of the Mississippi Valley are evaluated, planned, designed, constructed, and maintained.

As established in 1879, the Commissioners were to serve as advisers in planning

and implementing water resource projects and programs on the Mississippi River

between the Head of Passes below New Orleans to its headwaters. Since 1928, the

Commission has focused on the Mississippi River and Tributaries project, authorized by the Flood Control Act of May 15, 1928, to be implemented under oversight

of the Commission. The WRIT project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers portions of seven

States. It receives water from all or portions of 31 States and part of two Canadian

provinces, or roughly 41 percent of the contiguous United States. Effective planning,

design, construction, and operation of the widespread and complex MR&T project

have been assisted greatly by the Commission’s active consultation with the public,

particularly on its semiannual lower Mississippi River inspection trips, and by the

high degree of professionalism that has been developed in its staff.

A major flood on the lower Mississippi River would have catastrophic effects on

the inhabitants of the Mississippi Valley and the economy of the Nation were it not

for the protection provided by the levees and other flood control works along the

mainstem of the Mississippi and Atchafalaya Rivers. Many have noted that the comprehensive project on the lower river provided for passage of major floods in 1973,

1983, 1997, and other years without the extensive damage suffered in the upper

river area during the 1993 and 1995 flood events.

In addition, the navigation features of the project help to maintain the river for

shipping import and export commodities between inland ports and world markets.

Reorganization of the Corps of Engineers in April 1997 has placed the entire

length of the Mississippi River within one Division of the Corps of Engineers. I

serve as Commander of this Mississippi Valley Division of the Corps. Command of

the Division office traditionally has also included duties as President of the Mississippi River Commission. The reorganization of the Corps now allows management

of the Mississippi River as a single and unified system and enables the President

and members of the Commission to more effectively serve as advisers to the Chief

of Engineers as authorized in the 1879 legislation.

The Commission members have been active as advisers to the Corps on the Upper

Mississippi River since the reorganization.
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The Commission conducted inspection trips on the Upper Mississippi River in August 1997, 1998, and 1999, holding a series of public meetings in the St. Paul, Rock

Island, and St. Louis Districts each year, in addition to the semiannual inspection

trips and public meetings in the Memphis, Vicksburg, and New Orleans Districts.

In regards to my personal qualifications, I am a graduate of the Virginia Military

Institute, Lexington, Virginia, where I was commissioned in 1970 into the Corps of

Engineers. I hold Master’s degrees in civil engineering from the University of Illinois in Champaign/Urbana and international relations from Salve Regina University in Newport, Rhode Island. I am also a graduate of the U.S. Army Command

and General Staff College and the Naval War College. I am a licensed professional

engineer in the State of Virginia.

Since July 1997, I have served as Commander of the Mississippi Valley Division

and also as president designee of the Mississippi River Commission. In this position,

I have led and managed the Corps’ water resources program in the Mississippi

River Valley. The boundary of the Mississippi Valley Division extends from Canada

to the Gulf of Mexico, includes portions of 12 States, and encompasses 370,000

square miles. The program and activities overseen by the Mississippi Valley Division and Mississippi River Commission are conducted by district offices located in

St. Paul, Rock Island, St. Louis, Memphis, Vicksburg, and New Orleans.

I have served over 28 years in the uniformed military service as an Army Engineer. I have commanded at all levels from platoon through Division. I served as Liaison Officer and Assistant Resident Engineer, Saudi Arabia District, and also as

a project engineer in the Louisville District. I was the Executive Officer for the

Chief of Engineers at the Headquarters office of the Army Corps of Engineers in

Washington, D.C., and Land and Naval Facilities Program Manager, Supreme

Headquarters, Allied Powers Europe.

While assigned to the U.S. Army Engineer School at Fort Leonard Wood, I served

as Director of Training, Chief of Staff, and Deputy Commanding General. Before my

assignment to the Mississippi Valley Division, I served as the Director of Military

Programs at the U.S. Army Corps of Engineers Headquarters.

If confirmed to the position, Mr. Chairman, I would look forward to playing a key

role in the continual improvement of the Mississippi River system and the MR&T

project by applying the most modern practices in water resources engineering. I

would also look forward to being the president of a Commission that focuses not

only on the traditional roles of safely passing the Mississippi River Basin floodwaters to the Gulf of Mexico, plus providing a safe and dependable navigable waterway, but also incorporates programs and projects for environmental protection and

restoration.

Mr. Chairman, for your information, I have attached a complete biography on myself and a current list of members of the Mississippi River Commission.

This completes my prepared statement, and I would be pleased to respond to any

questions.
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1Designated, but not confirmed.

MISSISSIPPI RIVER COMMISSION MEMBERS

MG Phillip R. Anderson 1, President

Mississippi River Commission

P.O. Box 80 Vicksburg, MS 39181–0080

(601) 634–5750/FAX 634–5666

Mr. Sam E. Angel 1

Epstein Gin

P.O. Box 748

Lake Village, AR 71653

(870) 265–5382/5383/FAX 265–5690
173

Mr. R. D. James

Riley Cotton Company

810 Maple Street

New Madrid, MO 63869

(573) 748–5574/5345/FAX 748–2041

Mr. William Clifford Smith

T. Baker Smith 6 Son, Inc.

P.O. Box 2266

Houma, LA 70361

(504) 868–1050/FAX 853–0109

BG Robert H. Griffin 1, Commander U.S. Army Engineer Division, Great Lakes and Ohio River

P.O. Box 1159

Cincinnati, OH 45201–1159

(513) 684–3002/FAX 684–2085

BG Carl A. Strock 1, Commander U.S. Army Engineer Division, Northwestern

P.O. Box 2870

Portland, OR 97208–2870

(503) 808–3701/FAX 808–3706

RADII Nicholas A. Prahl 1, Director

Atlantic and Pacific Marine Centers

National Oceanic and Atmospheric Administration

439 West York Street

Norfolk, VA 23510

(757) 441–6168/FAX 441–6495

(NON-VOTING POSITION)

COL Wm. David Brown, Secretary

Mississippi River Commission

P.O. Box 80

Vicksburg, MS 39181–0080

(601) 634–5752/FAX 634–5666

STATEMENT OF SAM EPSTEIN ANGEL, NOMINATED BY THE PRESIDENT TO BE A

MEMBER OF THE MISSISSIPPI RIVER COMMISSION

Mr. Chairman and Members of the Committee: I am honored to appear before you as the nominee for member of the Mississippi River Commission.

Mr. Chairman, I would like to make a brief statement about the Mississippi River

Commission, the Mississippi River and Tributaries (MR&T) project, and my qualifications for the position for which I have been nominated.

The Mississippi River Commission, established by Act of Congress on June 28,

1879, consists of seven members, all of whom are appointed by the President of the

United States subject to confirmation by the Senate. Three members are Corps of

Engineers officers, one of whom serves as president; one member is from the National Oceanic and Atmospheric Administration; and three members are from the

civilian sector, two of whom must be civil engineers.

From its inception in 1879, the Commission has been charged with the vital task

of planning and implementing a program of flood damage reduction projects and

navigation improvements on the Mississippi River. More recently, project purposes

have been expanded to include environmental restoration. This task continues to be

conducted in concert with the myriad of political institutions, individuals, and public

entities which have major interests in seeing that the water resources needs and

opportunities of the Mississippi Valley are evaluated, planned, designed, constructed, and maintained.

As established in 1879, the Commissioners were to serve as advisers in planning

and implementing water resource projects and programs on the Mississippi River

between the Head of Passes below New Orleans to its headwaters. Since 1928, the

Commission has focused on the Mississippi River and Tributaries project, authorized by the Flood Control Act of May 15, 1928, to be implemented under oversight

of the Commission. The MR&T project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers portions of seven

States. It receives water from all or portions of 31 States and part of two Canadian

provinces, or roughly 41 percent of the contiguous United States. Effective planning,
174

design, construction, and operation of the widespread and complex MR&T project

have been assisted greatly by the Commission’s active consultation with the public,

particularly on its semiannual lower Mississippi River inspection trips, and by the

high degree of professionalism that has been developed in its staff.

The MR&T project is truly of national significance. For example, a major flood on

the lower Mississippi River would have catastrophic effects on the inhabitants of the

Mississippi Valley and the economy of the Nation were it not for the protection provided by the levees and other flood control works throughout the project area. Many

have noted that the comprehensive project on the lower river provided for passage

of major floods in 1973, 1983, 1997, and other years without the extensive damage

suffered in the upper river area during the 1993 and 1995 flood events.

In addition, the navigation features of the project are essential to maintaining the

river for shipping import and export commodities between inland ports and world

markets. In short, the navigation features of the MR&T project are essential in

peace time and vital to our national defense in times of emergency.

Reorganization of the Corps of Engineers in April 1997 has placed the entire

length of the Mississippi River within one Division of the Corps of Engineers. The

Commander of this Mississippi Valley Division of the Corps also serves as President

of the Mississippi River Commission. The reorganization of the Corps now allows

management of the Mississippi River as a single and unified system and enables

the Commissioners to more effectively serve as advisers to the Division Commander

and the Chief of Engineers as authorized in the 1879 legislation.

The Commission members have been active as advisers to the Corps on the Upper

Mississippi River since the reorganization. The Commission conducted inspection

trips on the Upper Mississippi River in August 1997, 1998, and 1999, holding a series of public meetings in the St. Paul, Rock Island, and St. Louis Districts each

year, in addition to the semiannual inspection trips and public meetings in the

Memphis, Vicksburg, and New Orleans Districts.

In regards to my personal qualifications, I have served on the Mississippi River

Commission since September 1979. This confirmation will provide my third consecutive 9-year appointment to this vital Commission. I firmly believe that my experience since 1979 in partnering with local interests, levee boards, and Federal, State,

and area agencies and organizations justifies my reappointment to the Mississippi

River Commission.

I am a native of Lake Village, Arkansas, and was reared adjacent to the Mississippi River. I feel that the many years of living and working in this area and

also being affiliated with the Commission have given me a vast knowledge of the

Mississippi River and the various problems associated with it. It has been my privilege to meet many people over the years, both in the lower valley and recently in

the upper valley, to discuss with them their concerns regarding this powerful river.

I have served as president of Epstein Land Company and Epstein Gin Company

in Lake Village since 1980. I am a commissioner of the Chicot County Watershed

District and former commissioner of the Chicot County Rural Development Authority and Southeast Arkansas Levee District. I currently serve as Director of the Cotton Warehouse Association and Southern Ginners Association, among other local,

State, and national farming organizations.

I attended Louisiana State University and the University of Arkansas at Monticello. I served with the Army National Guard from 1957 to 1965 and the United

States Army from 1961 to 1962.

If confirmed to the position, Mr. Chairman, I would look forward to continuing

to play a key role in the continual improvement of the Mississippi River system and

the MR&T project by applying the most modern practices in water resources engineering. I would also look forward to renewing my membership on a Commission

that focuses not only on the traditional roles of safely passing the Mississippi River

Basin floodwaters to the Gulf of Mexico, plus providing a safe and dependable navigable waterway, but also incorporates programs and projects for environmental protection and restoration.

Mr. Chairman, for your information, I have attached a complete biography on myself and a current list of members of the Mississippi River Commission.

This completes my prepared statement, and I would be pleased to respond to any

questions.
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STATEMENT OF BRIGADIER GENERAL ROBERT H. GRIFFIN, NOMINATED BY THE

PRESIDENT TO BE A MEMBER OF THE MISSISSIPPI RIVER COMMISSION??

Mr. Chairman and Members of the Committee: I am honored to appear before you as the nominee for member of the Mississippi River Commission.

Mr. Chairman, I would like to make a brief statement about the Mississippi River Commission, the Mississippi River and Tributaries (MR&T) project, and my qualifications for the position for which I have been nominated.

The Mississippi River Commission, established by Act of Congress on June 28,

1879, consists of seven members, all of whom are appointed by the President of the

United States subject to confirmation by the Senate. Three members are Corps of

Engineers officers, one of whom serves as president; one member is from the National Oceanic and Atmospheric Administration; and three members are from the

civilian sector, two of whom must be civil engineers.
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From its inception in 1879, the Commission has been charged with the task of planning and implementing a program of flood damage reduction projects and navigation improvements on the Mississippi River. More recently, project purposes have

been expanded to include environmental restoration. This task continues to be conducted in concert with the myriad of political institutions, individuals, and public

entities which have major interests in seeing that the water resources needs and

opportunities of the Mississippi Valley are evaluated, planned, designed, constructed, and maintained.

As established in 1879, the Commissioners were to serve as advisers in planning and implementing water resource projects and programs on the Mississippi River

between the Head of Passes below New Orleans to its headwaters. Since 1928, the

Commission has focused on the Mississippi River and Tributaries project, authorized by the Flood Control Act of May 15, 1928, to be implemented under oversight

of the Commission. The MR&T project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers portions of seven

States. It receives water from all or portions of 31 States and part of two Canadian

provinces, or roughly 41 percent of the contiguous United States. Effective planning,

design, construction, and operation of the widespread and complex MR&T project

have been assisted greatly by the Commission’s active consultation with the public,

particularly on its semiannual lower Mississippi River inspection trips, and by the

high degree of professionalism that has been developed in its staff. A major flood on the lower Mississippi River would have catastrophic effects on the inhabitants of the Mississippi Valley and the economy of the Nation were it not

for the protection provided by the levees and other flood control works along the

mainstem of the Mississippi and Atchafalaya Rivers. Many have noted that the comprehensive project on the lower river provided for passage of major floods in 1973,

1983, 1997, and other years without the extensive damage suffered in the upper

river area during the 1993 and 1995 flood events. In addition, the navigation features of the project help to maintain the river for shipping import and export commodities between inland ports and world markets. Reorganization of the Corps of Engineers in April 1997 has placed the entire length of the Mississippi River within one Division of the Corps of Engineers. The

Commander of this Mississippi Valley Division of the Corps also serves as President

of the Mississippi River Commission. The reorganization of the Corps now allows

management of the Mississippi River as a single and unified system and enables

the Commissioners to more effectively serve as advisers to the Division Commander

and the Chief of Engineers as authorized in the 1879 legislation. The Commission mashers have been active as advisers to the Corps on the Upper

Mississippi River since the reorganization. The Commission conducted inspection

trips on the Upper Mississippi River in August 1997, 1998, and 1999, holding a series of public meetings in the St. Paul, Rock Island, and St. Louis Districts each

year, in addition to the semiannual inspection trips and public meetings in the

Memphis, Vicksburg, and New Orleans Districts.

In regards to my personal qualifications, I earned a Bachelor of Science degree

in Mechanical Engineering and a Master’s degree in Civil Engineering, both from

Auburn University in Alabama. I also hold a second Masters degree in Business Administration from Long Island University in Greenvale, New York. In addition, I am

a graduate of the U.S. Army War College and the U.S. Army Command and General

Staff College. I am a registered professional engineer in the Commonwealth of Virginia.

I have served more than 28 years in the uniformed service as an Army Engineer.

I have served continuously in the U.S. Army Corps of Engineers since 1992 as District Engineer of the Mobile District, U.S. Army Corps of Engineers Headquarters

Chief of Staff, Division Commander for the Northwestern Division in Portland, Oregon, and presently as Division Commander for the Great Lakes and Ohio River Division in Cincinnati, Ohio.

In my previous assignment as Commander of the Northwestern Division from December 1996 until July 1999, I directed all Corps of Engineers water resources activities in an area comprising about one-quarter of the land area of the United

States. Included in this area were water management responsibilities in the Missouri River Basin, a significant tributary of the Mississippi River.

As Commander of the Great Lakes and Ohio River Division, I am tasked with directing all Corps of Engineers water resources activities in the Great Lakes and

Ohio River basins, an area of over 355,300 square miles, including all or parts of

17 States. The program includes planning, construction, and operation of navigation

structures on the Ohio River and Great Lakes system and flood control projects

throughout both basins. This work also includes hydropower, environmental protection and restoration, water conservation, recreation, and disaster assistance.
185

Some of my major command and staff assignments other than within the Corps

of Engineers has included Battalion Commander, 864th Engineer Battalion, Fort

Lewis, Washington, and Dhahran, Saudi Arabia, plus command and staff positions

with engineer units both in the United States and abroad.

If confirmed to the position, Mr. Chairman, I would look forward to playing a key

role in the continual improvement of the Mississippi River system and the MR&T

project by applying the most modern practices in water resources engineering. I

would also look forward to being a member of a Commission that focuses not only

on the traditional roles of safely passing the Mississippi River Basin floodwaters to

the Gulf of Mexico, plus providing a safe and dependable navigable waterway, but

also incorporates programs and projects for environmental protection and restoration.

Mr. Chairman, for your information, I have attached a complete biography on myself and a current list of members of the Mississippi River Commission.

This completes my prepared statement, and I would be pleased to respond to any

questions.
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(195)

NOMINATIONS OF GLENN McCULLOUGH,

SKILA HARRIS AND GERALD V. POJE

WEDNESDAY, OCTOBER 6, 1999

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to notice, at 3:03 p.m., in room

406, Dirksen Senate Office Building, Hon. John H. Chafee (chairman of the committee) presiding.

Present: Senators Chafee, Baucus, and Lautenberg.

Senator CHAFEE. I want to welcome everyone here this afternoon

for the hearings. We have several Senators who will make introductions. In order to accommodate their heavy schedules, I am

going to ask that they proceed first.

Senator Cochran, we welcome you here and look forward to your

testimony.

STATEMENT OF HON. THAD COCHRAN, U.S. SENATOR FROM

THE STATE OF MISSISSIPPI

Senator COCHRAN. Thank you, Mr. Chairman. We appreciate

very much your convening this hearing.

It is my pleasure to recommend and present to the committee

today Glenn McCullough of Tupelo, Mississippi, who has been nominated to serve on the Board of the Tennessee Valley Authority.

With his experience as mayor of the first TVA city, and as director

of the Appalachian Regional Commission Office in Mississippi, and

as a person who has been involved in economic development and

industrial development in our State, Glenn McCullough is very well

suited and qualified to serve on the Board of the Tennessee Valley

Authority. He has good judgment, he is honest, he has proven that

he is a hard worker and can be very effective in public service. I

am looking forward to his serving on the Board because I am confident that he will serve with distinction and be a very effective

and truly outstanding member of this board.

He has credentials and educationally he graduated from Mississippi State University, and Tupelo City Schools. He is someone

who is widely respected and very popular in North Mississippi.

We are very pleased to be here today and to join Senator Lott,

Congressman Wicker, and Congressman Pickering in recommending him to the committee.

Senator CHAFEE. Thank you very much, Senator.

I have no questions. If you have further appointments, please

feel excused if you so choose.
196

Senator COCHRAN. I think I am going to stay here and see what

the Congressmen say to be sure they do it right.

[Laughter.]

Senator CHAFEE. We will now hear from Senator Thompson.

STATEMENT OF HON. FRED THOMPSON, U.S. SENATOR FROM

THE STATE OF TENNESSEE

Senator THOMPSON. Thank you, Mr. Chairman.

I am pleased to be here today to introduce Ms. Skila Harris, who

has been nominated to fill one of the two current vacancies on the

TVA Board.

I want to thank you, Mr. Chairman, for scheduling this hearing

so expeditiously and for allowing me to be here today. I know you

are aware of the critical importance of the Tennessee Valley Authority to my home State of Tennessee and I appreciate your willingness to let Members from the valley participate in this process.

Mr. Chairman, as you know, the TVA Board is comprised of

three directors each serving 9-year terms. However, since May 18

of this year, TVA has had just one sitting board member—one person responsible for running a $7 billion utility. That is not a good

set-up. In fact, I would go so far as to say that it is asking for trouble. For this reason, it is important that we get a full complement

of TVA directors as soon as possible.

Again, I commend you for holding this hearing and I hope we can

do our due diligence as quickly as possible so that we can get two

new board members confirmed before we adjourn for the year.

Mr. Chairman, although she is not a Tennessee native, Skila

Harris is quite familiar with the Volunteer State and with TVA.

She is a native of Bowling Green, Kentucky and she earned an undergraduate degree in Government from Western Kentucky University and a master’s degree in Legislative Affairs from George

Washington University. She lived in Nashville for a number of

years where I met her and her husband, Fred Graham. During this

time she served as vice president for development and compliance

at the Steiner-Leff Iron and Metal Company. From 1993 to 1997,

Ms. Harris served as special assistant to the Vice President and

Chief of Staff to Mrs. Gore.

She also served in the Department of Energy during both the

Carter and Clinton Administrations, most recently as executive director of the Secretary of Energy’s Advisory Board. In that capacity, she oversaw the work of the Tennessee Valley Authority Advisory Committee, a group made up of various stakeholder groups interested in the future of TVA in a competitive electricity market.

I believe that she is a person of intelligence, sensitivity, and common sense and she has done very well in all the jobs she has taken

on to this point.

Mr. Chairman, TVA is facing major challenges as we prepare to

enter the 21st century. The U.S. economy is changing and the way

Americans buy and sell electricity will inevitably change with it. It

may not be this year and it may not be for 5 more years, but

change is coming and TVA must be ready to face that change in

a way that does not leave the people in the Tennessee Valley worse

off.
197

One of the things that TVA must do to prepare for the new millennium is modernize its management policies. Recently I have expressed deep concern about an ongoing dispute between TVA management and the TVA inspector general. But problems go much

deeper than that. TVA needs some new blood and I believe that

Skila Harris and Glenn McCullough will provide it.

I have met with each of these nominees privately and we have

had some very candid exchanges. The good news is that they still

want the job.

[Laughter.]

Senator THOMPSON. I am hopeful that if confirmed they will view

the job of TVA director as a contract with the citizens of the Tennessee Valley—the people TVA was created to serve—and that they

will do their best to return to TVA a focus on this unique mission

of public service.

I look forward to hearing from them and for the opportunity to

ask questions.

Mr. Chairman, thank you again for allowing us to be here today.

Senator CHAFEE. Thank you very much, Senator Thompson.

Again, if you have appointments you would like to leave for now,

that would certainly be understandable.

Senator THOMPSON. I am going to stay awhile.

Senator CHAFEE. You want to check and see what these Representatives are going to say?

[Laughter.]

Senator CHAFEE. Representative Pickering, why don’t you proceed?

STATEMENT OF HON. CHARLES PICKERING, U.S.

REPRESENTATIVE FROM THE STATE OF MISSISSIPPI

Mr. PICKERING. Thank you, Mr. Chairman.

It is a great day to be here and a great day for Glenn

McCullough and his family. I know I join Senator Cochran, Senator

Lott, and Roger in welcoming the McCullough family here—Glenn’s

wife, one of his sons, and his father.

Senator CHAFEE. Is the family here? Please rise so that we can

see you. We are very glad you are here.

[Applause.]

Senator CHAFEE. We are very glad they are here.

Please proceed.

Mr. PICKERING. It has been some time since the President has

appointed a Mississippian—1962, in fact, was the last time Congressman Frank Smith was appointed by President Kennedy. So

this is a day that Mississippians celebrate for the importance that

TVA is and to now have someone on the Board from Mississippi to

bring the balance.

Senator Thompson, I do not know if you are aware, but we made

an agreement in the last Congress—as we looked at the economic

development, the non-TVA and non-power appropriation, and the

debt restructuring, we said that we would do this. But in exchange

for that, Tennessee must give their offensive coordinator to the

University of Mississippi.

[Laughter.]
198

Mr. PICKERING. They have sent him down and he is now leading

us into the top 25. And that they also must give Archie Manning’s

last son to Ole Miss—and that happened as well. There are a few

other agreements, but we will keep that non-public.

[Laughter.]

Mr. PICKERING. But in all seriousness, Glenn McCullough has a

great background and great experience. Working with ARC and

economic development in private business, he is a mayor of one of

the leading communities recognized all over the country for what

they have done as a progressive community in education and infrastructure and economic development. He brings a wealth of experience and great talent and the right vision for TVA to go into the

21st century. We could not be more proud of Glenn McCullough

and to have his leadership and his representation for TVA, for Mississippi, and for the whole valley and the other States in the region. He will do a tremendous job.

It is with great pride that I recommend and encourage the adoption and confirmation by the Senate of Glenn McCullough to the

TVA Board.

Thank you.

Senator CHAFEE. Thank you very much.

Representative Wicker?

STATEMENT OF HON. ROGER WICKER, U.S. REPRESENTATIVE

FROM THE STATE OF MISSISSIPPI

Mr. WICKER. Thank you very much, Mr. Chairman.

Let me just say at the outset that it is a rare and distinct privilege for Congressman Pickering and me to be down at this end of

the Capitol Building to testify before your committee today and I

appreciate the opportunity to come and say a few words of testimony.

It is hard for me to express how delighted I am to see this day

arrive and see my good friend, Glenn McCullough, be nominated

and hopefully confirmed by the U.S. Senate. No doubt there were

significant negotiations which led to this day, but I can only say

that both the Administration and the Senate leadership have done

themselves proud with the nomination of both Skila Harris and

Glenn McCullough. I support them and am glad to be here and

offer this testimony today.

I have a prepared statement, Mr. Chairman, which I ask to be

submitted to the record at this point.

Senator CHAFEE. Without objection, your prepared statement will

appear in the record.

Mr. WICKER. Let me just say that I am here wearing a couple

of hats. I am here as chairman of the Congressional TVA Caucus.

I am also here as a friend of Glenn McCullough, someone who actually graduated from a leadership class in Lee County with Glenn

McCullough back in the early 1980’s. I am his representative in

Congress. He is my mayor. I know him well and can vouch for his

outstanding leadership abilities.

You are going to like Glenn McCullough, Mr. Chairman. I have

seen him work. I have seen him work as mayor, as State director

of the Appalachian Regional Commission, and also just as a community leader and volunteer. You have already met his outstand-
199

ing family. He is going to make us an outstanding member of the

Board.

Glenn McCullough governs through cooperation. He leads by example and by conciliation. He listens to reason. I think he will be

able to help assist in smoothing the waters on the Tennessee Valley Authority Board. You are going to find him to be a fine board

member. He is better known in Mississippi now than he is throughout the rest of the valley. But I can tell you without fear of contradiction that within a year’s time he is going to be quite popular

with people interested in efficiently priced electricity and economic

development and job creation throughout the TVA Region. He is

going to make us an outstanding board member and I appreciate

the opportunity to come before you and endorse him today.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you very much.

We appreciate you all coming here. If you all have further appointments, obviously you are excused now and I thank you for

coming.

Senator Thompson, would you like to come up here and join in

any questions?

Senator THOMPSON. If I may.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. The purpose of today’s hearing, as you can

gather, is to consider three nominations. The first two nominees

are Mayor Glenn McCullough, Jr., and Ms. Skila Harris to be appointed members of the Tennessee Valley Authority. The third

nominee is Dr. Gerald Poje to be reappointed as a member of the

Chemical Safety and Hazard Investigation Board.

After we hear from the nominees, we will have a panel to take

testimony on the TVA and some of the important issues before it.

I welcome our three nominees as well as Senator Lott. I think

Senator Lott is planning to be here—I know that is his intention.

And we are so pleased that Senator Cochran and Senator Thompson, plus Representatives Pickering and Wicker are here today to

introduce Mayor McCullough and Ms. Harris.

The TVA, a wholly owned government corporation, conducts a

unified program of resource development for the advancement of

economic growth in the Tennessee Valley region. The Authority’s

program of activities includes flood control, navigation and development, electric power production, recreation improvement, and forestry and wildlife development.

I am one of the few people around here, I suspect, who is old

enough to remember when TVA was created. I think it was about

1933 and it was the brainchild of President Roosevelt and it was

looked on as extremely visionary and a bold undertaking at the

time dealing with the course of the Tennessee River Valley.

The President has nominated Mayor Glenn L. McCullough for

appointment as a member. Mr. McCullough has served as mayor

of Tupelo since 1997, serves on the executive committee of the Mississippi Municipal League, and Governor’s task force for economic

development planning.
200

Ms. Harris has served in the Department of Energy during both

the Carter and Clinton Administrations and has over 12 years experience in the field of energy. Prior to her current position, she

was executive director of the Secretary of Energy’s Advisory Board

where she managed the work of the Tennessee Valley Advisory

Committee.

The Chemical Safety and Hazardous Investigation Board’s task

is to investigate chemical accidents and report the facts, circumstances, and the cause or probable cause of any accidental release resulting in a fatality, serious injury, or substantial property

damages.

The President has nominated Dr. Gerald V. Poje for reappointment as a member of the Board. He has served as a member since

January 1998 and is a specialist in toxicology and policies dealing

with chemical hazards. He has worked with the Inter-Governmental Forum on Chemical Safety and the Organization for Economic Cooperation and Development. Furthermore, it promotes

global remediation and contingency planning around the Y2K problem.

The final panel this afternoon will focus on TVA policy, on the

TVA Customer Protection Act introduced by Senators McConnell

and Bunning. It has been some time since this committee has held

any TVA hearings, and frankly, they are overdue. There are many

questions to ask of TVA. How does TVA’s mission compare to its

mission in 1933? Is TVA serving its constituency—the ratepayers

in the valley—as fairly and effectively as possible? Is it time for

TVA to undertake some reforms?

I want to commend Senator McConnell for introducing S. 1323,

which in my view offers many common sense suggestions for the

committee’s consideration. Senator Thompson, too, has offered suggestions to his Government Affairs Committee dealing specifically

with the appointment process for TVA’s inspector general.

I look forward to both Senators participation this afternoon.

Now we will hear from Senator Baucus, if you have a statement.

OPENING STATEMENT OF HON. MAX BAUCUS,

U.S. SENATOR FROM THE STATE OF MONTANA

Senator BAUCUS. Mr. Chairman, I join you in welcoming the

nominees. TVA and the Chemical Safety Board are two very important agencies. I congratulate the nominees and families and thank

them in advance for the service they will be providing to our country and look forward to hearing from each of them.

Senator CHAFEE. Thank you, Senator Baucus.

We are delighted to be joined by Senator Lott. We know that this

is a matter of intense concern to you and we appreciate you taking

time from your busy schedule. Should you have some kind of statement, now would be a good time.

STATEMENT OF HON. TRENT LOTT, U.S. SENATOR FROM THE

STATE OF MISSISSIPPI

Senator LOTT. Thank you very much, Mr. Chairman. I would ask

unanimous consent that my entire statement be placed in the

record.
201

Senator CHAFEE. Without objection, your prepared statement will

appear in the record.

Senator LOTT. Mr. Chairman, the Tennessee Valley Authority is

a very important institution in our whole region of the country. It

is important to Mississippi, Tennessee, Kentucky, and Alabama. It

has provided a lot of great service to the people in that region—

not just power—but also very important development and leadership over many, many years. They desperately need now a full

complement of leaders. There are two vacancies on the Board. And

they have a lot of very important decisions that they are going to

have to make in the near future. A lot of the things we will be considering in the not too distant future here in the Congress will require a real aggressive participation and input from the TVA.

Senator Thompson and I had lunch 2 or 3 weeks ago and we

talked about our interest in and our concern about TVA and how

important it is to our State and our whole mid-south part of the

country. So I am glad that you are moving forward expeditiously

with these nominees. I am particularly pleased to be here in support of the nomination of Glenn L. McCullough, Jr., the mayor of

Tupelo, Mississippi, to be one of the new members of the Board.

I congratulate Ms. Harris for her selection. I think the two of

them will bring a breath of experience to the Board and give them

a full three-member board that they need desperately and that this

will be a positive accomplishment.

Glen and I have been good friends for a long time. He is an outstanding young man that has accomplished an awful lot in his relatively young life. He comes from a great family that have perhaps

already been introduced. His father ‘‘Cotton’’—as he is affectionately known—his mother Ms. Lanier McCullough, his sister Sarah,

his sister Mary Conner Adcock, her husband David, and their son

Shaw. Where is Shaw? I want to see Shaw.

[Laughter.]

Senator LOTT. There he is back there. He is a good-looking young

man.

I am glad the whole family is here in support of this very fine

nominee.

Tupelo, in some areas, is better known as the birthplace of Elvis

Presley. In fact, Elvis is actually still there, as you know.

[Laughter.]

Senator LOTT. It is also one of the outstanding small cities in

America and has received a lot of recognition over the years. Under

Mr. McCullough’s administration it has twice won the overall

award for innovations in municipal government from the Stennis

Institute of Government at Mississippi State University. In particular, Tupelo was selected for outstanding performance in community policing and neighborhood revitalization.

In the past, it has been selected as one of the most outstanding

cities in America. In fact, it was selected as one of the ten most

livable all-American cities in the Nation. So this is really an outstanding community. They have had leadership politically, but

more importantly, they have had leadership in their civic community. When Tupelo has a problem, they have a group of people in

that town that will come together and find a solution. They will

just do it.
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This city has been written up at least twice in recent years by

the Wall Street Journal as one of the most dynamic developing

towns in the country. It is now referred to as the Tupelo Model.

But it required outstanding leadership in the mayor’s office and

Glenn has certainly done that. He has been innovative.

Before he went in as mayor, he was the Mississippi director of

the Appalachian Regional Commission. So he worked with the communities throughout that region. He is already familiar with the

region. He has been in every one of those towns. He has worked

on projects of all kinds, economic development, water projects,

highway needs—all of that. He has already been through that on

a regional basis.

So he has the elected experience, the poignant experience there

at ARC, and before that he was a businessman. So I think he has

all the credentials you need to be a real leader at TVA.

Beside that, I found from my own experience that he is a dynamic speaker. He can talk about a vision of what needs to be done

for our State and our country.

I am delighted to be here and support his nomination. He did

have one youthful indiscretion. He went to Mississippi State University—but I must say, so did John Stennis—and seemed to do

quite well with that background. But I know he is going to be an

excellent member of the TVA and I support his nomination.

In fact, I support the nomination of both of these candidates for

TVA. We need them desperately. If this committee will act expeditiously, I can assure the Senators and the Senate that I will make

sure that their nominations are considered expeditiously in the full

Senate.

Good luck to you. I know you will both do an excellent job, as

well as the other nominee here today, too.

Thank you.

Senator CHAFEE. Thank you very much, Senator Lott. I know you

have a busy schedule, so if you have to leave, we will certainly understand.

Let’s start with Mayor McCullough.

STATEMENT OF GLENN L. MCCULLOUGH, JR., NOMINATED BY

THE PRESIDENT TO BE APPOINTED AS MEMBER OF THE

BOARD OF DIRECTORS, TENNESSEE VALLEY AUTHORITY

Mr. MCCULLOUGH. Thank you, Mr. Chairman.

I am humbled by the remarks from our majority leader, Senator

Lott, as well as Senator Cochran and Congressman Wicker and

Pickering.

Mr. Chairman and members of the committee, it is an honor for

me to appear before you as nominee for the Tennessee Valley Authority Board of Directors. I thank the President for this nomination. I am grateful for the support of my sponsors, Mississippi’s

senior Senator Thad Cochran and Senate Majority Leader Trent

Lott. I have been fortunate to have the constant encouragement

and friendship of my Congressman and Chair of TVA’s congressional caucus, Roger Wicker, as well as Congressman Chip Pickering.

I also want to express my thanks to staff members who have assisted in this process.
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As a native of Tupelo, Mississippi, the histories of my family and

TVA are intertwined, just as they are for millions of others all

across the seven-State service area. As it has been mentioned, my

father vividly remembers being among the thousands at Tupelo’s

Robin’s Field in 1934 when President Franklin Roosevelt ceremoniously turned the switch illuminating the first electric light in the

first city in the region to contract with TVA for its power.

Senator CHAFEE. I think Roosevelt was sitting in an open car. I

can remember it clearly. The top was folded down and people didn’t

fully realize at the time how crippled he was, but he sat in the car

the Senator from Tennessee was behind him. He threw some kind

of a switch and everything started.

Mr. MCCULLOUGH. Yes, sir, Mr. Chairman, that is the way it

happened. My father remembers the speech the President delivered

after that event. It was very historic.

My home town of Tupelo became known as the first TVA city and

it is a designation that we still celebrate.

Just as Tupelo takes pride in its relationship with TVA, I take

pride in my role with the TVA family, for I identify with TVA in

its commitment to strong personal relationships, to reliable and affordable electricity, and to dedicated public service.

First, personal relationships. The TVA family prioritizes not only

its internal relationships with employees and distributors, but also

its external relationships with customers and Congress itself. I understand TVA’s valuing personal relationships.

My faith in God is the anchor of my life. I am blessed with a

wonderful family whom I love, and they have been introduced to

you today. I treasure my friendships. Strong relationships require

faith and support to thrive. I believe in the wisdom and feasibility

of the TVA Act. If confirmed, I pledge to honor its principles of environmental stewardship, power generation, and development to

serve the public interest. I respect TVA’s relationships with you

and your colleagues, and I will seek to fortify those relationships

by listening to you and learning from you.

Second, electric power generation. TVA has a great product: reliable electric power generated, sold, and delivered by talented people to the consumer at the lowest feasible cost. Two-thirds of my

professional life has been spent in private business. I know that

the essence of business is producing, selling, and delivering a product which will meet the customers’ needs. I do not have all the answers to the complex and critical issues facing the industry today,

but I will work with you, as TVA’s owners, toward ensuring a

strong TVA for the next century.

Third, public service. The heart of TVA is public service. Certain

obligations accompany this role, including accountability, a basic,

but easily forgotten tenet of leadership.

As mayor of Tupelo and as a member of the Appalachian Regional Commission and the Community Development Foundation,

I have learned how TVA’s development projects have improved our

region so that people, through their own initiative and industry,

can attain a better quality of life. From personal relationships that

serve the public interest to the business of electric power, to a commitment to public service, I am here with optimism and enthusiasm to serve.
204

I agree with one of Mississippi’s most revered statesmen, the late

Senator John C. Stennis, when he said, ‘‘Opportunity will never

chase you around the block. Opportunity will never meet you on

the street and force itself upon you. But opportunity is there for

those who are willing and able to meet it halfway.’’

Mr. Chairman, members of the committee, members of the Senate, I am willing to serve as a director on the TVA Board. And if

you deem me able, we will go to work to make good things happen.

It would be an honor for me to join Skila Harris and Chairman

Crowell on the Board.

Thank you for your consideration.

Senator CHAFEE. Thank you very much, Mayor McCullough.

Ms. Harris?

STATEMENT OF SKILA HARRIS, NOMINATED BY THE PRESIDENT TO BE APPOINTED AS MEMBER OF THE BOARD OF DIRECTORS, TENNESSEE VALLEY AUTHORITY

Ms. HARRIS. Let me begin by thanking Senator Thompson for

taking time to be here this afternoon and for his generous introduction.

I also want to express my appreciation to you, Mr. Chairman,

and the other members, for this opportunity to appear before you.

In preparing for this hearing, I have though about your constitutional responsibility to judge the merit of nominees. I appreciate

and respect the seriousness with which you carry out that responsibility. I can assure you that, if confirmed, my service as a TVA

director will be undertaken with the same devotion to my statutory

responsibilities. I will be a full-time director committed to making

judgments and taking actions consistent with accountable management, fiscal responsibility, smart planning, and conscientious stewardship of natural resources, all in service to the Tennessee Valley.

I want to express my deep appreciation to the President and the

Vice President for the opportunity they have given me to serve.

This nomination is an honor for me and my family. My late father,

Skiles Browning Harris, and my mother, Dorothy Harris—who is

in Bowling Green beaming her support to me as well as my brother—my husband, Fred Graham, and my sister, Linda Harris, are

both here in the audience.

All my entire family was born in the Tennessee Valley. My parents were born before TVA brought power to that region. I was

raised on the vivid hardship stories of what life was like in the valley before electricity. However, the passage of time and my work

in the energy business has added reality to those reminiscings that

I was raised on.

I recognize the challenges facing TVA in many areas, but especially those posed by the emerging era of electric competition. In

fact, I served as staff director—as was mentioned—of the Department of Energy’s Tennessee Valley Electric System Advisory Committee. The committee included representatives from diverse

groups who shared a common and sometimes contentious interest

in TVA’s future in a competitive environment.

I think the inclusive approach used during this process is a good

model for TVA. Decisions made by TVA impact the lives of nearly

8 million citizens in the service area. It is important for TVA to un-
205

derstand that the citizens understand what TVA is doing and TVA

needs to understand the interests and concerns of the citizen.

I see TVA as a corporate public servant dedicated to public good.

In making the transition to a competitive market, the TVA Board

has an obligation to make sure that the benefits of competition accrue to the citizens of the valley and that they have a safe, reliable,

and environmentally sound source of electricity to sustain the economic health of the region and the quality of their lives.

The Board must also fulfill its responsibilities to manage the resources of Tennessee River Valley in a way that provides for flood

prevention, year-round navigation, protection of public health, the

environment, and recreational uses. The philosophy of the TVA Act

dictates a fundamental balance across crucial resource management decisions.

Just as the challenges facing Congress today are different than

those it faced at its beginning, the issues before TVA today are different and perhaps more complex than they were in the 1930’s. The

mission, however, is the same: to serve the region and the Nation

for the greater public good. I hope to have the opportunity to work

along with Chairman Crowell and Mayor McCullough as TVA continues to carry out its mission and meet today’s new challenges.

Thank you very much.

Senator CHAFEE. Thank you very much.

Senator Lautenberg, do you have a statement you would like to

make?

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. I will try to be very brief, Mr. Chairman.

I did want to welcome Dr. Poje to this discussion and I congratulate the other two nominees for TVA. It was an excellent presentation.

I just want to say that during his tenure on the Chemical Safety

and Hazard Investigation Board Dr. Poje has focused especially on

reducing risks of accidents associated with the Y2K computer problems. He has convened an expert workshop on Y2K and chemical

safety and participated in lots of the forums involving leaders from

industry, insurance companies, regulatory agencies, and others. He

has also worked with the Inter-Governmental Forum on Chemical

Safety and Organization for the OECD to promote global remediation and contingency planning around Y2K problems. He has also

been a board member on the scene of two of the Board’s chemical

accident investigations.

As one of the original two board members, I appreciate the work

through the years it has taken to create this Federal agency from

scratch.

Mr. Chairman, the Chemical Safety and Hazard Investigation

Board has done a good job and they are finally getting some momentum because they finally got funding. It is hard to have an

agency or board without any money.

The thing is moving and I am pleased to recommend Dr. Poje

and hope that his confirmation will take place expediently.

Thank you very much.

Senator CHAFEE. Thank you very much.
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We will now hear from Dr. Poje.

STATEMENT OF GERALD V. POJE, NOMINATED BY THE PRESIDENT TO BE REAPPOINTED AS MEMBER OF THE CHEMICAL

SAFETY AND HAZARD INVESTIGATION BOARD

Mr. POJE. Good afternoon, Mr. Chairman and distinguished

members of the committee. Thank you very much, Senator Lautenberg, for that introduction.

I come here requesting your confirmation for my nomination to

serve a full 5-year term on the Chemical Safety Board. Our board

is an independent Federal agency with the important mission of

ensuring the safety of workers and the public by preventing industrial accidents. We are not an enforcement or regulatory body, but

a scientific investigatory organization.

Beyond the investigation of incidents, the Board is charged with

the conduct of safety research. Additionally, the Board can advise

on actions that can be taken to improve safety, and we are asked

to recommend regulatory actions to public agencies, such as the

USEPA and OSHA.

I am a specialist in toxicology, one of the technical qualifications

specified for board membership in CSB’s enabling legislation. I received my doctoral degree from New York University and then conducted research and developed curricula in toxicology and environmental sciences as a professor on the faculty of Miami University

in Ohio.

Prior to joining the Chemical Safety Board, I directed international programs in public health for the National Institute of Environmental Health Sciences, serving as senior adviser to the director of NIEHS and the National Toxicology Program.

A primary function of the Chemical Safety Board is to investigate

significant chemical incidents for the purposes of preventing their

recurrence. I have worked closely with fellow board members and

senior staff to complete three investigative reports: the Sierra

chemical explosion involving a manufacturing institution for explosives, the nitrogen asphyxiation incident at Union Carbide, and the

Herrig Brothers BLEVE, a boiling liquid explosive vapor explosion.

In March 1998 I served as the board member in Louisiana at the

Sonat Exploration explosion and fire that claimed four lives. That

investigation is nearing completion.

I also served as the lead board member on the investigative team

examining the Tosco Refinery incident that killed four workers and

seriously injured a fifth worker earlier this year. Our board has

just completed a board of inquiry and public hearing in Martinez,

California regarding that incident. We are nearing the end of a 30-

day open request for additional evidence, a procedure that occurs

as a prelude to completion of investigations.

While the Board seeks to promote prevention through the primary mechanism of an incident investigation, the Agency is also directed to conduct prevention research toward the same purpose. I

have worked with senior staff and organized a major meeting earlier in 1998, the first major multistakeholder meeting we have had

as a board on the issue of chemical accident prevention research.

Since its inception, I have overseen the Board’s efforts on reducing the risk of incidents associated with the Y2K computer prob-
207

lems. The Y2K problem is significant in the chemical manufacturing and handling sector, posing unique risk to business continuity

and to worker and public health and safety—sometimes out of proportion to the size and staffing of the businesses.

Many facilities have internal and external dependencies on automated equipment. In the past week, leading chemical manufacturers in Charleston, West Virginia—including Rhone-Poulenc, DuPont and Monsanto Co.—announced plans to temporarily halt operations on New Year’s Eve as a precaution against accidents.

At the request of Senators Bennett and Dodd of the U.S. Senate

Special Committee on Y2K, our board convened an expert workshop on chemical safety on this issue. This culminated in the release of the Chemical Safety Board’s first research report and recommendations. As an outgrowth of that endeavor, I have testified

twice in the U.S. Senate regarding chemical safety and Y2K, the

first request for our new board to provide technical safety information to this legislative body.

The Board has worked with EPA and seven trade associations of

chemical handling industries to produce and distribute a special

guidance document for small and mid-sized enterprises to prevent

untoward incidents associated with the Y2K problem.

I have sent copies of our report to the Governors of the States

and territories requesting their attentiveness to this problem. With

the Senate’s special committee, the Board promoted a special focus

on chemical safety at the President’s Council on Y2K. Tomorrow

there will be a press briefing on that effort.

In summary, our board has enormous promise for the health and

safety of Americans, as indicated by the impact over our very brief,

less than 2-year history. I believe that I have made significant contributions the last 2 years, yet much more work remains to be done

over the next 5 years if the CSB is to reach its full potential.

I would consider myself privileged and honored if this committee

concurs with the President’s confidence in my qualifications and allows me to become part of that endeavor.

Thank you.

Senator CHAFEE. Thank you very much.

The two obligatory questions I will ask of all three of you: Are

you willing, at the request of any duly constituted committee of

Congress, to appear in front of it as a witness?

Mr. MCCULLOUGH. Yes, I am, Mr. Chairman.

Ms. HARRIS. Yes, I am, sir.

Mr. POJE. Yes, Mr. Chairman.

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

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

Mr. MCCULLOUGH. No, sir.

Ms. HARRIS. No, Mr. Chairman.

Mr. POJE. No, Mr. Chairman.

Senator CHAFEE. Mayor McCullough, what is the population of

Tupelo?

Mr. MCCULLOUGH. It is 36,000 people, Mr. Chairman.

Senator CHAFEE. And I presume your position as mayor is a fulltime job?

Mr. MCCULLOUGH. It is, yes, sir.
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Senator CHAFEE. If you are confirmed in this position as a member of the TVA Board, will you continue as mayor?

Mr. MCCULLOUGH. If the Senate confirms me, sir, upon taking

the oath of office to serve on the Board of TVA, I would submit a

letter resigning as mayor.

Senator CHAFEE. It is not clear to me whether being a member

of the Board is full-time or not, but I guess it is pretty much a fulltime job.

Mr. MCCULLOUGH. Mr. Chairman, it is. And I would be willing

to devote full-time service.

Senator CHAFEE. How about you, Ms. Harris?

Ms. HARRIS. Yes, sir.

Senator CHAFEE. Last year, this committee learned at the last

minute of a proposal to refinance TVA’s Federal Financing Bank

debt. That proposal was not subject to any hearing or public scrutiny. It was not brought to the attention of this committee, which

has oversight of TVA. Instead, it was inserted into the Omnibus

Appropriation Bill and became law.

As a result of that proposal, TVA will save itself nearly $1 billion

over the next 10 years. The taxpayer, however, will lose nearly $1

billion over the next 10 years.

I must say, as chairman of the committee with jurisdiction over

TVA, I would like some assurance from each of you that TVA will

bring its proposals to this committee for scrutiny. You have both

spent years in public service and understand the importance of following the legislative procedure for the benefit of the public. I hope

you will agree that we should not repeat the process of last October.

I would appreciate your assurances on that.

Mr. MCCULLOUGH. Mr. Chairman, if I am confirmed, I would

make every effort to work with you and the members of this committee and provide all information relevant to TVA in advance.

Senator CHAFEE. Ms. Harris?

Ms. HARRIS. I certainly agree with that, sir. And I think that this

is an important commitment I would be willing to make as a new

board member.

Senator CHAFEE. Thank you.

Last year, the TVA chairman and the TVA inspector general

have engaged in a very public and damaging dispute over certain

credit card charges and who has the authority to do what. The dispute was cataloged in a GAO report issued at the request of Senator Thompson, who I think spoke for all of us when he said that

the matter had been ‘‘badly mishandled’’.

I want to ask both of you the following questions: If confirmed,

will you work to ensure the independence of TVA’s inspector general and support legislation to that end?

Mr. MCCULLOUGH. Mr. Chairman, I support the independence of

the inspector general at TVA. Yes, sir.

Ms. HARRIS. Yes, sir. I think that is an important component to

accountability.

Senator CHAFEE. We have had some difficulty, as I understand

it, with some extravagances down there and $56,000 of private

plane bills and $11,000 of hotel bills that have come to light as a

result of the GAO report. It seems to me that we all must remem-
209

ber—as I think both of you said in your opening statements—that

this is a public service. As public servants, I think all members of

the Authority should act in that fashion.

Mr. MCCULLOUGH. Yes, sir, Mr. Chairman.

Senator CHAFEE. Dr. Poje, I understand there are some 60,000

accidental chemical releases in the United States.

Mr. POJE. That is one estimate that has been given, Mr. Chairman.

Senator CHAFEE. That seems so high, but nonetheless, how do

you prioritize which ones you are going to investigate?

Mr. POJE. That is a crucial issue, Mr. Chairman. The Board has

tackled that issue most recently. In fact, we have a team organized

that had a major meeting yesterday to discuss this very important

issue of how you select your highest priority incidents for investigation.

We anticipate that we will have a draft proposal on that matter

available and subject to a stakeholder discussion. We hope to bring

in representatives from the industry, from labor unions, from environmental organizations, and from regulatory bodies to help us be

guided by the best wisdom possible on utilizing resources that are

insufficient for investigating every fatality or every serious incident. We want to choose the ones that provide us with the greatest

leverage potential for preventing recurrence across the broadest

spectrum of the industry.

The incidents we have examined so far are leading us to the conclusion that we have to have some stronger criteria for the selection process.

Senator CHAFEE. Thank you very much.

Senator Baucus?

Senator BAUCUS. Thank you, Mr. Chairman.

We all wish you well, obviously. But I must say that my impression of TVA over the years is an entity that is a little loose. It is

not of the highest reputation. It is fraught with personnel problems

or management problems or expense problems. It just does not

seem to be a top-flight outfit. That is just my impression.

I am wondering the degree to which any of you have the same

views. Are you aware of the problems that have been in the press

or the GAO reports, et cetera?

Ms. HARRIS. Certainly, as a person interested in the Tennessee

Valley, I am aware of what has been in the public domain. But also

I think what gets less attention is the record of effectiveness that

TVA has in the actual operation of its power industry.

Obviously, there are avenues to improve almost anything. But I

think one of the things TVA needs to do is to make sure that it

is focused on its business, that it demonstrates that it is accountable to the people in the Valley and the people of the Nation. But

I think one thing that generally is recognized is that its actual operations are run well, that it has a good safety record in recent

years. I think that is the most important area.

Senator BAUCUS. Why did you take this job? Is it something you

sought? Did somebody come to you? I am curious what happened

here.

Ms. HARRIS. Sir, I was born and raised in the Tennessee Valley.

I have spent most of my professional career in the energy business.
210

It is very seldom that you have an opportunity to serve a region

that you care very deeply about in a field that you obviously have

a great deal of interest in. It really is an opportunity for me to

marry those two interests in my life. I actually think it is a wonderful opportunity and I am very excited about it.

Senator BAUCUS. I can appreciate that, but given some of the

problems at TVA, what can you say to assure us—other than

words—that a year from now we are not going to hear about these

problems nearly as much as we have?

What are your goals? What do you hope to accomplish there? Is

there some reorganization scheme? Is there something you have in

mind to address TVA so that it is run even more efficiently than

it is—in your judgment—or in my judgment so that it is run efficiently? Other than just noble words, what can you point to?

Ms. HARRIS. I think that if you focus on the mission of the Agency, if you attend to good, sound management practices, if you are

keen on fiscal accountability and responsibility, I think it is just

simple, basic, good business, and sound judgment. I think that is

an important contribution I can make to the organization. I think

it would go miles to help it.

Mr. MCCULLOUGH. Senator, you raise a good point. In response,

I would point out that TVA 2 years ago initiated a 10-year financial

improvement plan and it is already paying off with some results.

Part of that was congressional action to try to work down the debt

that we currently have. It seems to me that that plan has put a

focus on specific measurements and we are more precisely measuring our performance in debt management and reduction. At the

same time, the plan is intended really to lower the rates by 2007.

If we can be that precise in taking a look at the overall management and operation of the Agency at every level, at providing stewardship for the 652-mile Tennessee River, in our outreach to the

communities and economic and community development—just increase the focus—coordinate that with a more effective communication with you and with your colleagues in the Congress. In recent

months, I think it has been very difficult for the Agency to communicate as effectively as we might have if we had had a full board.

Chairman Crowell is one, and he has been stretched awfully thin

trying to direct this agency. I would do what I could to more effectively communicate.

Senator BAUCUS. I do not know the answer to the next question,

but the question is: Do you know whether TVA has a higher nuclear power debt reduction component as a percentage of gross revenue or profits, compared with the private industry average? Do

you have any idea?

I ask the question because I know there are some nuclear power

amortization costs after you pay it off and it reminds me of a similar problem in the northwest—huge costs—where the officials decided to build these big nuclear power plants. The huge cost is

transferred to the taxpayer and the ratepayer.

Frankly, it is a bit irritating because this was a decision by a

public servant unaccountable to anybody, but who made decisions

that reeked havoc upon ratepayers in the region. TVA is basically

a public entity.
211

I am just wondering what the public power administration ratio

of nuclear power amortization costs to gross revenue or profits is

compared with the private sector average.

Mr. MCCULLOUGH. Senator, I do not know a comparative ratio

between TVA’s debt service to the nuclear part of our generation

compared to investor-owned utilities. But I would point out that

since 1959 TVA has not been supported with any taxpayer dollars.

Senator BAUCUS. After $1 billion.

Mr. MCCULLOUGH. The refinancing plan that Congress approved—but other than that, there has not been any congressional

appropriation to fund the power generation part of TVA’s business.

Senator BAUCUS. I appreciate that. But still the ratepayers pay

for the mistakes.

Mr. MCCULLOUGH. You are correct, yes, sir.

Senator BAUCUS. I will stop here, but I encourage you—I can tell

you are very dedicated public servants. But I am encouraging you

to get to the bottom of this thing so that TVA has a stellar reputation.

Thank you.

Senator CHAFEE. Thank you.

Senator Thompson?

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

I thank you again for allowing me to participate here today.

Listening to my colleagues, I sometimes feel like the father of a

child who misbehaves. I know they need a good spanking, but I

hate to see anybody else jump on them.

[Laughter.]

Senator THOMPSON. I think that a couple of the points that have

been made need to be reiterated and maybe put in a little bit of

focus.

You are coming on the Board at a unique time and you are going

to be facing some unique challenges—challenges from the outside

in terms of deregulation and where TVA fits into all this. Congressman Bryant is doing good work over on the House side. He and his

colleagues are coming up with ideas and potential solutions—people who still think the taxpayers are paying for TVA.

While I certainly am sympathetic with going through the regular

process, the problem with last year and the refinancing of the FFB

debt was that the people in the valley were going to be the only

people in America paying for flood control and navigation on major

waterways. The Federal Government does not have any problem

taking care of other parts of the country, but they were going to

step back away from that obligation down in this part of the country and this part of the country alone.

So this refinancing is not something where the money is going

to the ratepayers’ benefit down in the area, it is basically going to

maintain TVA support for the non-power programs which have

been zeroed out up here. And the land and water stewardship programs in other parts of the country the Federal Government seems

to have no problem with.

But that is always going to be there. It has always been there.

The detractors—the people who have legitimate concerns—but recently you have seen in addition to that more criticism concerning
212

the challenges from the inside because there have been some selfinflicted wounds down there.

We have talked about them privately. When people constantly

read about consultants and public relations expenses and foreign

travel and entertainment and all that, you had better well be sure

that they can be justified. TVA in many respects is a unique entity,

but it has less oversight than almost any other entity. Some call

it a governmental entity, some call it a quasi-governmental entity.

The ratepayers really have no control over it. The States certainly

do not. The Federal Government—especially now that we do not

have the purse strings of the non-power funding—seems to have

less and less oversight.

So it makes it even more important that board members are

very, very careful about their responsibilities. It really increases

your responsibilities, I think, because of that situation.

The last controversy down there with respect to the inspector

general—in the scheme of things, maybe that was not a tremendously important thing in a lot of people’s eyes, but it was unseemly and it added on to a lot of other questionable things. The

Board did not acquit itself well there at all.

I hope we have learned that this inspector general needs to be

appointed by the President, not the TVA Board, an inherent conflict of interest there. We have introduced legislation to that effect.

Hopefully, we will get your support with regard to that. The inspector general needs to be removable by the President, not by his boss

or the chairman of the TVA Board.

All those things are going on now and they are up in the air at

a time when you are coming on board. So it makes it even more

important that each of you exercise your own independent judgments. You are both professional people. You are accomplished in

your own histories and your professional lives. I know you have exercised your independence before.

This is no reflection on anyone else, but the tendency has been

in times past to have a strong chairman and a couple of other people who wander in and vote but perhaps did not give it full-time

treatment. This is a full-time job.

I understand both of you realize and understand that it is a fulltime job.

Again, I agree with Mr. Crowell on many things and disagree

with him on some things. It is no reflection on him. But the chairman has no authority that you do not have. He maybe able to do

a few ministerial things, but nothing that amounts to anything—

as I can see—under the Act.

Do you agree with that?

Mr. MCCULLOUGH. Yes, sir.

Ms. HARRIS. Yes, sir.

Senator THOMPSON. You are there as full board members with

equal authority and you need to apply your own good judgment,

business, and common sense to that job.

With regard to the outside challenges, I would be interested in

your vision as to the future of TVA in a deregulated environment.

There seems to be a consensus that there are big problems with

Memphis and Knoxville.
213

Have you all had a chance to look at that? Where do you see us

going there? Where do we need to go with regard to this new environment we are going into, the attempt to reach a consensus and

these people who seem to not be able to become a part of that consensus?

Can each of you comment on that?

Mr. MCCULLOUGH. Senator, I only have a broad understanding

of this title that is now in Congress. I would say that it would be

incumbent upon me to reach out to every distributor throughout

the 80,000 square miles and to see what resources TVA can bring

to bear to make those communities—whether Memphis, Knoxville,

a community in Kentucky, or Alabama, or Mississippi—we must

work with the people at home to create an environment that would

stimulate private capital investment, job growth, and a higher

quality of life.

I think that is our responsibility, to maximize the impact that

the resources of TVA can bring to a community, in addition to having a power rate that is competitive in a world economy. We do not

just compete throughout America. We have to have power rates

that make our products and services competitive with those in Europe or Asia.

So I think we need to take a really broad look at the impact as

far as power rates are concerned, but we must work with the 159

distributors in those communities and bring all the resources we

can to bear to create successful communities throughout the valley.

If we are able to do that—and if we are able to play our role in

progress in those communities—it seems to me that TVA will have

a bright future in the next century.

Ms. HARRIS. I have been pleased by the flexibility that TVA has

expressed for some of its contractual relationships with the distributors. I think that the organization has already recognized that

in a competitive environment it is going to have to have different

types of relationships built on different qualities than in the past.

I think in particular a contribution TVA can make in a competitive environment is that it has a requirement to serve everyone.

We may need a model for how in a competitive environment you

do have universal service. In the airline industry, we have seen

that some communities lost airline service when there was deregulation. We do not have that luxury for electricity.

The American public has come to expect not only electricity, but

reliable, low-cost electricity. So I think that TVA is going to be an

excellent model for the rest of the country to learn from about how

you run a utility in an environment that is competitive, but yet

providing universal service. I think that is another component. I

think we must look at our distributors and over them greater flexibility, but I think it is a great opportunity for TVA to shine in a

competitive environment.

Senator THOMPSON. Both of you have obviously given that substantial consideration. I think you are going to make excellent additions to the Board. It is not only an opportunity for TVA, but it

is an opportunity for you to build a legacy there to kind of turn the

corner here and get this thing back up to where it needs to be.

They are doing a lot of good things in a lot of good areas down

there. We have not sold the positive part of this very well. I think
214

both of you will be Ambassadors for the good news, but also be

willing to face up to the not-so-pleasant news and do something

about it.

I congratulate you and thank you.

Mr. MCCULLOUGH. Thank you, Senator.

Ms. HARRIS. Thank you, Senator.

Senator THOMPSON. Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Senator.

Now it is my intention to have a vote on reporting out these

nominations as soon as reasonably possible, so we will move along

with considerable speed.

Mr. McCullough?

Mr. MCCULLOUGH. Mr. Chairman, if I could ask for 1 minute of

personal privilege, my family has been presented, and Laura, my

wife, is also with us, and our sons Vance Hudson and Glenn Thomas. I just wanted to recognize them.

Senator CHAFEE. We are delighted they are here. We are very,

very pleased. Certainly, they have a lot to be proud of in their father and husband.

Mr. MCCULLOUGH. Thank you, Mr. Chairman??

Senator CHAFEE. Thank you all very much.

That concludes this hearing. We will reconvene in a few minutes

to examine the issues on the TVA addressed in the bill offered by

Senator McConnell.

[NOTE: The proceedings of the hearing held by the Committee on

Environment and Public Works on bill S. 1323 are published separately.]

[Whereupon, at 4:01 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF

OKLAHOMA

Mr. Chairman, I am pleased that we are having today’s nomination hearing for

the TVA positions as well as Dr. Gerry Poje for the Chemical Safety Board. Dr. Poje

testified at my Subcommittee Hearing on Y2K and I am glad he has been reappointed to the Board.

?I am also pleased we are having this hearing on the Tennessee Valley Authority.

TVA is a subject within my Subcommittee, and unfortunately due to so many pressing issues we have been unable to hold an Oversight hearing before now.

Like many in Congress, I believe the monopoly of the TVA is a dinosaur in today’s

electric power business. Due to actions by State legislatures and Congress, the electric marketplace is changing at a rapid pace. While we may not have reached consensus on how best to proceed, action by the States or Congress is going to lead

toward deregulation of the electric industry. With all other aspects of the electric

industry changing, I believe the time has come for TVA to change as well.

In light of the deregulation debate, I believe TVA’s government protected monopoly has outlived it’s usefulness. For too long, problems at TVA have been ignored

or swept under the carpet -although I am not sure how it is possible to ignore a

$28 billion dollar debt. The debt refinancing plan which was attached to last year’s

Omnibus Appropriations Act was wrong and should not have occurred. In bypassing

the committee of jurisdiction, it is estimated that it cost the taxpayers over $1 billion dollars. These actions have simply become too large for Congress or the American people to remain silent. Created during the New Deal when only 15 percent

of rural America enjoyed electricity, it is time for the reign of this bloated bureaucracy to come to an end. I believe the legislation before the committee today is a step

in the right direction and long overdue.
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STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE COMMONWEALTH

OF VIRGINIA

Mr. Chairman, as the only member of the Environment and Public Works Com- mittee who can claim state interest in the Tennessee Valley Authority (TVA), I am

pleased to support Ms. Skila Harris and Mayor Glenn McCullough to the TVA

Board of Directors.

TVA’s importance to Virginia is unmistakable. Fifteen counties in Southwestern Virginia make up a large portion of the Tennessee River Watershed. Virginia is the

home to the headwaters of five tributaries of the Tennessee River. These include the

Powell River, Clinch River, North Folk Holston, South Fork Holston and Beaver

Creek.

The first dam that TVA ever built, Norris Dam, continues to provide flood control

and recreation opportunities in Southwestern Virginia. Both the Clear Creek and

Beaver Creek Dams are located in Washington County, Virginia. Although neither

produces hydropower, they are vital to the community for both flood control and

recreation.

TVA continues to serve Powell Valley Electric Cooperative with wholesale power. Over 7000 consumers enjoy affordable rates throughout Lee and Scott counties. In short, TVA is an important and valued presence in Virginia, hence my interest in assuring quality men and women fill its Board of Directors. I am confident that Ms. Harris and Mayor McCullough will fight to assure that Virginians as well as the 8 million customers being serviced by TVA will continue

to receive quality service at affordable rates. I am pleased to support their nominations.

Thank you, Mr. Chairman.

STATEMENT OF HON. ROGER F. WICKER, U.S. REPRESENTATIVE FROM MISSISSIPPI

Mr. Chairman, members of the Committee, it is my honor to come before you today to speak on behalf of one of my constituents, Mayor Glenn McCullough of Tupelo, Mississippi, and in favor of his nomination to the Board of Directors of the

Tennessee Valley Authority. As Chairman of the Congressional TVA Caucus, I believe Glenn McCullough will make an excellent member of the Board and will have

a dramatic and positive influence on this agency. To me, Glenn McCullough is many things—my friend, my hometown Mayor, my neighbor. I have know Glenn, his wife Laura and his two sons, all of whom are here

today, for many years. He and I have worked closely on a variety of issues and

projects important to our community and the State of Mississippi. His reputation

is unblemished, and he is held in the highest esteem first and foremost for his personal characteristics, his impressive achievements, and ability to work with people

from all walks of life.

Glenn’s experience, background, knowledge, and work ethic make him uniquely qualified for this position. As the Mayor of Tupelo, and formerly Mississippi’s representative to the Appalachian Regional Commission, he has been actively involved

in both the State and Federal legislative processes. In these capacities, Glenn has

worked with TVA and other Federal and State agencies in a bi-partisan manner

which has been both constructive and tremendously effective for this region of the

country. From his service with the Appalachian Regional Commission, Glenn has a

keen understanding of what is required to achieve results in a multistate setting. He understands the role of today’s TVA, its past, and its future, from a public policy perspective as Mayor of the City of Tupelo, which holds the distinction of

being the first city to contract with TVA to supply electricity. Glenn recognizes the

deep-seated relationship between TVA and its wholesale distributors, whether they

be municipalities or electric power associations.

As a businessman, Glenn McCullough knows firsthand the positive effect that af- fordable and reliable energy has on economic development, job growth, and the subsequent benefits to the quality of life for a region which has historically been underdeveloped.

The depth and breadth of Glenn’s experience make him an ideal candidate to lead

TVA in a positive direction. His commitment and dedication will be of invaluable

service to the 8 million customers in the seven-State TVA region. His willingness

to listen and cooperate with Members of Congress from both sides of the aisle will

be increasingly important as the debate over electricity restructuring moves forward.

I wholeheartedly support the nomination of Glenn McCullough, Jr., to the Board

of Directors of the Tennessee Valley Authority, and respectfully urge his swift approval.
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Mr. Chairman, thank you for the opportunity to address this Committee today.

STATEMENT OF HON. BILL FRIST, U.S. SENATOR FROM THE STATE OF TENNESSEE

Mr. Chairman, it is an honor to introduce Ms. Skila Harris to the Environment

and Public Works Committee as a nominee for Director of the Tennessee Valley Authority. I have known Ms. Harris for a number of years, and I have enjoyed the opportunity to work with her when she was an assistant to both the Vice President

and Mrs. Gore, as well as during her tenure at the Department of Energy.

Mr. Chairman, as you well know, the Tennessee Valley Authority has seen its fair

share of controversy over the past several years. Moreover, having only one director

in place over the past several months has placed a strain on TVA’s management.

I am sure that the Committee is well aware of the very public dispute between the

current Chairman and the TVA Inspector General.

Adding two new directors to TVA’s board is essential to TVA, and will increase

the accountability of TVA to the people of the Valley. In addition, I personally believe that expanding the Board from three full-time members to nine part-time

members, and a full time Chief Executive, will better allow the Board to address

TVA’s future, both in terms of accountability and competitiveness.

As you well know, TVA faces serious problems and challenges including over $26

billion in debt, an uncertain future in a deregulated energy market, and continued

challenges in land and water management. As we look to address these problems

and face the issues of the future, operations which are in the best interest of the

rate payers must remain the highest priority.

TVA has met tremendous success over the past, and is viewed as more than just

a benevolent hand providing economic opportunity and security to a once-depressed

region. TVA is now an integral part of the region’s identity. In the minds of Tennesseans, TVA is credited with bringing the region out of poverty, and opening the

Tennessee River system to commercial navigation.

TVA is at a crossroads. TVA needs, and the citizens of the Valley deserve, the

best possible leadership over the next 10 years.

STATEMENT OF GLENN L. MCCULLOUGH, JR., MAYOR, CITY OF TUPELO, MISSISSIPPI,

NOMINATED BY THE PRESIDENT TO BE A MEMBER OF THE TENNESSEE VALLEY AUTHORITY

Mr. Chairman and members of the committee, it is an honor for me to appear

before you as a nominee for the Tennessee Valley Authority Board of Directors.

I thank the President for this nomination. I am grateful for the support of my

sponsors, Mississippi Senior Senator Thad Cochran and Senate Majority Leader

Trent Lott; and I have been fortunate to have the constant encouragement and

friendship of my Congressman and Chair of TVA’s Congressional Caucus, Roger

Wicker, and Congressman Chip Pickering.

As a native of Tupelo, Mississippi, the histories of my family and of TVA are

intertwined—just as they are for millions of others across the seven State TVA service area. My father vividly remembers being among the thousands present at Tupelo’s Robin’s Field in 1934 when President Franklin Roosevelt ceremoniously turned

the switch illuminating the first electric light in the first city in the region to contract with TVA for its power supply.

My hometown of Tupelo became known as the ‘‘First TVA City,’’ a designation we

still celebrate.

And just as Tupelo takes pride in its relationship with TVA, I take pride in my

role in the TVA family; for I identify with TVA in its commitment to strong personal

relationships; reliable, affordable electricity; and dedicated public service.

FIRST . . . . . PERSONAL RELATIONSHIPS

The TVA family prioritizes not only its internal relationships with employees and

distributors, but also its external relationships with customers and Congress itself.

I understand TVA’s valuing personal relationships.

My faith in God is the anchor of my life. I am blessed with a wonderful family

whom I love (introductions).

I treasure my friendships. Strong relationships require faith and support to

thrive. I believe in the wisdom and feasibility of the TVA Act. If confirmed, I pledge

to honor its principles of environmental stewardship, power generation, and development to serve the public interest. I respect TVA’s relationships with you and your
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colleagues, and I will seek to fortify those relationships by listening to you and

learning from you.

SECOND . . . ELECTRIC POWER GENERATION

TVA has a great product: Reliable electric power generated, sold, and delivered

by talented people to the consumer at the lowest feasible cost.

Two-thirds of my professional life has been spent in private business; and I know

that the essence of business is producing, selling, and delivering a product which

will meet the customers’ needs. I don’t have all the answers to the complex and critical issues facing this industry; but I will work with you, as TVA’s owners, towards

ensuring a strong TVA for the twenty-first century.

THIRD . . . . . PUBLIC SERVICE

The core of TVA is public service. Certain obligations accompany this role, including accountability—a basic, but easily forgotten tenet of leadership.

As Mayor of Tupelo and a member of the Appalachian Regional Commission, I

have learned how TVA’s development projects have improved our region so that people, through their own initiative and industry, can attain a better quality of life.

From personal relationships that serve the public interest, to the business of electric power, to a commitment to public service, I am here with optimism and enthusiasm for this opportunity to serve.

I agree with one of Mississippi’s most revered statesmen, the late Senator John

C. Stennis, when he said,

‘‘Opportunity will never chase you around the block. Opportunity will never meet

you on the street and force itself upon you. But opportunity is there for those who

are willing and able to meet it halfway.’’

I am willing to serve as a Director on the TVA Board; and if you deem me able,

we will go to work to make good things happen.

It would be an honor for me to join fellow nominee, Skila Harris, and Chairman

Crowell on the board.

Thank you for your consideration.
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RESPONSES OF GLENN L. MCCULLOUGH TO ADDITIONAL QUESTIONS FROM SENATOR

INHOFE

Question 1: Last year, my subcommittee dealt with the issue of Ozone/Particulate

Matter standards. At that time, TVA Chairman Craven Crowell testified TVA compliance costs would be in the billions. TVA is now close to bringing one nuclear facility on-line, yet still has other—facilities in a dormant state. First, I would like to

know what you intend to do with these clean burning facilities in light of the enormous costs facing TVA?

Response. To respond to this question, I have consulted with the Tennessee Valley

Authority. TVA has informed me that there are no immediate plans to complete any

nuclear facility or to restart Browns Ferry Unit 1. TVA is conducting a study to determine the need for new generation capacity to meet the projected demands of fine
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service area. Part of this study, I am told, will focus on the feasibility of bringing

nuclear generation on line. Obviously, this issue involves billions of dollars, immense resources, as well as en- vironmental considerations. If confirmed as a director of TVA I will work with the

committee to ensure that TVA’s response to this issue reflects prudent logic.

Question 2: Does TVA intend so sell off the entire existing nuclear facilities and apply this to debt reduction? Response. TVA’s management has told me that there are no plans to sell existing nuclear facilities and that the study presently underway should provide information

pertinent to the future of TVA’s nuclear units now idle.

Question 3: In light of the current Congressional debate over nuclear waste and Yucca Mountain, I would like to hear your views of this issue. Response. If confirmed as a TVA Director, I would be responsible to the people

of the Tennessee Valley and to Congress for the cost incurred since 1982 us contributions to the Nuclear Waste Fund, the effect of TVA’s spent final stage or the

ratepayers, as well as proper regard for the environment. I understand that TVA currently maintains spent nuclear fuel pools at three sepa- rate plant locations and that current finite storage capability is a problem for every

nuclear-owning utility in the nation. My view is that the solution to this issue will be determined by Congress, the Ad- ministration, and partner agencies by identifying the location for long-term storage

of fuel. I am advised that Yucca Mountain is the current site under consideration.

If confirmed to the TVA Board, I pledge to work with the Congress and. this com- mittee toward progress or this issue.

Question 4: Last year, the TVA’s debt was restructured through the omnibus Ap- propriations Bills, bypassing this committee. I want both of your assurances that

in the future the TVA Board will work with this commmittee.

Response. If confirmed to the TVA Board, I promise to do my best to work closely with the Environment and Public Works Committee members as you perform your

responsibilities.

Question 5. Standard & Poor’s credit rating agency recently stated that ‘‘were Congress to enact the Administrations restructuring bill, it may be construed as indicative of diminished Congressional support of SOYA debt and could have implications for TVA’s rating.’’ If Congress were to let TVA outside the fence today, without

Congressionally mandated protections and artificial competitive advantages, do you

feel that TVA would survive in a competitive market? Why or why not? If so, do

you believe TVA should operate under the same restrictions as other utilities? Response. TVA exists today and its purpose for the future is to meet the mission as specified in the TVA Act; TVA’s debt is secured in three (3) ways:

1. TVA’s effectiveness in meeting its obligations under the TVA Act;

2. The economic viability and projected growth of the TVA service area; and??

3. Ultimately, the TVA ratepayers as security for the debt.

I believe in any discussion of restructuring the net effect on TVA’s distributors, customers, consumers, the people and the environment of the Tennessee Valley has

to be a primary consideration.

Question 6. Do you support the appointment of an independent Inspector General?

Response. Yes.

Question 7. What specific steps should be taken to bring accountability to TVA

management?

Response.

1. Confirm nominees to the board.

2. Evaluate and measure the performance of TVA’s operations and business activities.

3. Improve internal and external communication processes??

Thank you for your consideration. I am willing to serve on the TVA Board because

I desire to make a positive difference and if confirmed, I look forward to working

with you and the committee members toward this end.

STATEMENT OF SKILA HARRIS, NOMINATED BY THE PRESIDENT TO BE A MEMBER OF

THE TENNESSEE VALLEY AUTHORITY

Thank you, Mr. Chairman, and the other Members of the committee for this opportunity to appear before you.

Preparing for this hearing, I have thought about your Constitutional responsibility to judge the merits of nominees. I appreciate and respect the seriousness with
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which you carry out that responsibility. I can assure you that, if confirmed, my service as a Director of the Tennessee Valley Authority will be undertaken with the

same seriousness and commitment to providing for the power needs of the Tennessee Valley, to promoting economic development and to managing environmental

resources.

I will be a full time Director committed to making judgments and taking actions

consistent with accountable management, fiscal responsibility, smart planning, and

conscientious stewardship of natural resources—all in service to the Tennessee Valley region.

I want to express my deep appreciation to the President and the Vice President

for the opportunity to serve they have given me. This nomination is an honor for

me and my family. My late Grandparents, Jim and Myrtle Lester and Tessie and

Minnie Harris and my late Father, Skiles Browning Harris and my Mother, Dorothy

Lester Harris—who is beaming her support to me from Bowling Green—were born

in the Tennessee Valley before TVA brought electricity to the region. Also a native

of the Valley, I was raised on vivid, hardship stories about life during those early

days.

The passage of time and my work in the energy business have added reality to

those reminiscings. I recognize the challenges facing TVA in many areas but especially those posed by the emerging era of electric competition. In fact, I served as

staff director of the Department of Energy’s Tennessee Valley Electric System Advisory Committee. The committee included representatives from diverse groups who

share a common and sometimes contentious interest in TVA’s future in a competitive environment.

I think that the inclusive approach used during this process is a good model for

TVA. Decisions made by TVA impact the lives of the nearly 8 million citizens in

its service area; it is important for TVA to understand their interests and concerns

and for those citizens to understand and support TVA’s plans and decisions.

I see TVA as a corporate public servant, dedicated to the public good. In making

the transition to a competitive market, the TVA Board has an obligation to make

sure that the benefits of competition accrue to the citizens of the Valley and that

they have a safe, reliable, and environmentally sound source of electricity to sustain

the economic health of the region and the quality of their lives.

The Board also must fulfill its responsibilities to manage the resources of Tennessee River Valley in a way that provides for flood prevention, year-round navigation, protection of public health and the environment, and recreational uses. The

philosophy of the TVA Act dictates a fundamental balance across crucial resource

management decisions: balance in managing TVA’s power program, TVA’s dams and

reservoirs, and the cumulative impact on the environment and the economy.

Just as the challenges facing Congress today are different from those it faced in

its first years, the issues before TVA today are different and perhaps more complex

than they were in the 1930’s. The mission, however, is the same—to serve the region and the nation—for the greater public good.

I hope to have the opportunity to work along with Chairman Crowell and Mayor

McCullough, as TVA continues to carry out its mission and meet today’s new challenges.

Thank you very much.
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RESPONSES OF SKILA HARRIS TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. Last year, my subcommittee dealt with the issue of Ozone/Particulate Matter standards. At that time, TVA Chairman Craven Crowell testified TVA compliance costs would be in the billions. TVA is now close to bringing one nuclear facility on-line, yet still has other facilities in a dormant State. First, I would like to

know what you intend to do with these clean-burning facilities in light of the enormous costs facing TVA?

Response. TVA’s current 10-Year Plan does not envision completion of any of TVA

nuclear facilities or restart of the Browns Ferry Unit 1. However, TVA is undertaking a major study of the need for new generation facilities. The study will include

analysis of the cost-effectiveness of completing or restarting these nuclear units. If

I am confirmed, the results of this study and other business considerations will influence my view of the best options for these facilities.
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Question 2. Does TVA intend to sell off the existing nuclear facilities and apply this to debt reduction?

Response. My understanding is that there are no plans to sell existing nuclear fa- cilities. However, as part of a study to assess new generation needs, TVA is analyzing the cost-effectiveness of starting up nuclear units currently not operating.

Question 3. In light of the current Congressional debate over nuclear waste and Yucca Mountain, I would like to hear your views on this issue. Response. TVA operates five nuclear units located at three separate plant locations in the Tennessee Valley—Browns Ferry, Sequoyah and Watts Bar. In my briefings I learned that spent nuclear fuel from each of these facilities is currently maintained in storage pools located onsite. TVA shares the same problem of every nuclear-owning utility in the nation—on- site storage is finite. I have been told that since 1982, TVA has continuously contributed to the Nuclear Waste Fund, which funds the construction of a permanent

repository for the nation’s nuclear waste at Yucca Mountain. Unless there is some

technological breakthrough or new scientific evidence suggests otherwise, it appears

that Yucca Mountain is the best option for permanent fuel storage.

Question 4. Last year, the TVA’s debt was restructured through the Omnibus?? Appropriations Bills, bypassing this Committee. I want both of your assurances that in the future the TVA Board will work with this Committee.

Response. As I testified during the confirmation hearing, I can assure you that as a TVA Board member I will work closely with the Senate Environment and Public Works Committee as it performs its oversight responsibilities.

RESPONSES OF SKILA HARRIS TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Standard and Poor’s credit rating recently stated that ‘‘were Congress to enact the Administration’s restructuring bill, it may be construed as indicative

of diminished Congressional support of TVA debt and could have implications for

TVA’s rating.’’ If Congress were to let TVA outside the fence today, without Congressionally mandated protections and artificial competitive advantages, do you feel

that TVA would survive in a competitive market? Why or why not? If so, do you

believe TVA should operate under the same restrictions as other utilities?

Response. The issues raised by these questions are extremely important and equally complicated. If I am confirmed, I will work to develop the intimate understanding of TVA’s operating and financial inter-working and market dynamics needed to respond knowledgeably to these questions. As I gain insight into the impact

of different timing and regulatory scenarios on TVA competitiveness, I will share

with the Committee my thoughts on these and other relevant issues.

Question 2. Do you support the appointment of an independent Inspector General? Response. I support greater objectivity and independence for TVA’s Of lice of In- spector General. Based on my experience in the Federal Government, appointment

by the President of the Inspector General increases independence and objectivity.

If confirmed, I will pursue and support this and other steps to enhance accountability, strengthen management, and encourage fiscal responsibility.

Question 3. What specific steps should be taken to bring greater accountability to

TVA management? Response. I believe accountability and openness are closely linked. If confirmed, I will encourage the Board and senior managers to find innovative means to make

more information available. The additional scrutiny invited by greater openness will

encourage accountability and increase understanding of TVA and its missions.

STATEMENT OF GERALD V. POJE, NOMINATED BY THE PRESIDENT TO BE A MEMBER

OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Thank you, Mr. Chairman and distinguished members of the Committee for to- day’s opportunity to appear before the Committee regarding my nomination to serve

a full 5-year term on the Chemical Safety Board. I am Gerald V. Poje, Ph.D., one

of four members currently serving on the U.S. Chemical Safety and Hazard Investigation Board (CSB). Nearly 5 years ago President Clinton nominated me to the

Board, and the U.S. Senate confirmed that nomination on October 7, 1994. The

Board was not funded until November 1997, and therefore I have served less than

2 years as a Board member.

The Chemical Safety Board holds enormous promise for the health and safety of

Americans as indicated by the impact it has had during its very brief operating history. Yet, much more remains to be done over the next 5 years before this new Fed-
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eral agency reaches its full potential. I would consider myself privileged and honored if this Committee concurs with the President’s confidence in my qualifications

and allows me to become part of that endeavor.

The Chemical Safety Board is an independent Federal agency with the important

mission of ensuring the safety of workers and the public by preventing or minimizing the effects of industrial and commercial chemical incidents. Congress modeled

the CSB after the National Transportation Safety Board (NTSB), which investigates

aircraft and other transportation accidents for the purpose of improving safety. The

CSB is not an enforcement or regulatory body. Like the NTSB, the CSB is a scientific investigatory organization with responsibility for finding ways to prevent or

minimize the effects of chemical incidents at commercial and industrial facilities.

Beyond investigation of incidents, the Board is charged with the conduct of safety

research. Additionally, the Board can advise Congress, industry, labor, and others

on actions that can be taken to improve safety, and we are asked to recommend regulatory actions to public agencies such as the U.S. Environmental Protection Agency

and the U.S. Department of Labor.

Qualifications

I am a specialist in toxicology one of the technical qualifications specified for

Board membership in CSB’s enabling legislation. I received my doctoral degree from

New York University, and then conducted research and developed curricula in toxicology and environmental science as a professor on the faculty at Miami University

of Ohio. My research focused on the chronic health impacts of acute chemical exposures on biological systems.

I have extensive knowledge of policies regarding the safe management of chemical

hazards. Prior to joining the Chemical Safety Board, I directed international programs and public health for the National Institute of Environmental Health

Sciences (NIEHS), serving as senior adviser to the director of NIEHS and the National Toxicology Program on disease prevention, health promotion, environmental

justice, and international environmental health research activities. I coordinated minority health programs, and served on departmental and Federal interagency task

forces on environmental justice, migrant health and Brownfields Redevelopment. In

addition, I also served on U.S. delegations to intergovernmental meetings on chemical safety. As a U.S. delegate, I helped forge consensus on contentious issues, such

as endocrine disrupting substances and helped promote the development of international information networks to enhance global understanding of chemical hazards

and their risks.

Prior to joining the Board, I testified before Congress on pollution prevention policy, Clean Air Act legislation, chemical accident prevention, and groundwater protection policies. I am a member of the Collegium Ramazzini, an international society

of distinguished toxicological and safety experts, and a member of the American

Public Health Association. I serve as an adviser to the National Association of City

and (county Health Officials regarding community environmental health assessments. I have lectured on chemical hazards and policies to reduce their risks before

community, labor, business, and government audiences in North America, Latin

America, Europe, and Asia.

I have also served as Vice President for Research at Green Seal where I directed

research investigations into the environmental impacts of consumer products, evaluated life-cycle analyses, wrote criteria for voluntary environmental standards, and

organized and chaired public hearings. As a senior scientist for the National Wildlife

Federation, I managed multiple projects that researched, developed technical reports, and implemented activities regarding the Emergency Planning and Community Right-to-Know Act of 1986, groundwater protection, pesticide risk reduction,

and pollution prevention.

BOARD ACCOMPLISHMENTS

I. Investigation Efforts

A primary function of the Chemical Safety Board is to investigate significant

chemical incidents for the purpose of preventing their recurrence. I have worked

closely with fellow board members and senior technical staff to complete three investigative reports: the Sierra Chemical Explosion, Nitrogen Asphyxiation incident

at Union Carbide, and the Herrig Brothers BLEVE incident. In March 1998, I

served as the Board member on scene near Pitkin, Louisiana at the Sonat Exploration explosion and fire that claimed four lives. That investigation is nearing completion.

I also serve as the lead Board member on the investigative team examining the

Tosco Refinery incident that killed four workers and seriously injured a fifth worker
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in February of this year. Our Board has just completed a Board of Inquiry and public hearing in Martinez, CA regarding that incident. We are nearing the end of a

thirty-day open request for additional evidence, a procedure that occurs as a prelude

to completion of the investigation.

Two important challenges confront the Chemical Safety Board’s investigative efforts: first, the number of incidents demands that we select only the most important

incidents to investigate; second, the unique nature of the work requires that we establish a specific Chemical Safety Board protocol for conducting investigations.

Unfortunately, America experiences a greater number of deadly chemical incidents than the Board is staffed or funded to investigate. I have worked with senior

staff and the lead Board Member who are preparing a draft report on incident selection criteria. The CSB will host a major roundtable discussion with our stakeholders

on November 9, 1999 to finalize our selection procedures.

The CSB’s investigation realm is unique. We are a non-regulatory, scientific and

technical Federal agency whose primary effort is to promote prevention of incidents

in the private sector. While conceived in light of the National Transportation Board

model, CSB lacks parallel authority to conduct preliminary fact-finding by employing relevant technical experts from among the key stakeholders. Other Federal

agencies have developed investigation protocols that are either regulatory driven

(i.e., OSHA and EPA) or are similar to self-investigatory efforts in the private sector

(i.e., DOE and DOD). Neither model is appropriate for the CSB. Consequently, I

have reviewed major investigation protocols from the public and private sector to

find the best practices to employ in the CSB’s protocol. The CSB Board and staff

will be preparing our own investigation protocol, based on elements of these other

protocols and on lessons from our own completed and on-going Board investigations.

II. Research Efforts

While the Board seeks to promote prevention through the primary mechanism of

incident investigation, the agency is also directed to conduct prevention research toward the same purpose. In May, 1998 I worked with senior staff to organize and

convene a Chemical Safety Board meeting on Chemical Accident Prevention Research, as the first multi-stakeholder meeting sponsored by the Board. I represent

the Chemical Safety Board on the White House Committee on Environment and

Natural Resources Subcommittee on Toxics and Risk: an activity that seeks to harmonize Federal research efforts. In addition, I participate in the Chemical Safety

Program Assessment Project that seeks to set and implement national goals for accident prevention though a public-private partnership organized by the Mary Kay

O’Connor Center for Process Safety at Texas A&M University.

Since the Board’s inception, I have overseen the Board’s efforts on reducing the

risks of incidents associated with Year 2000 (Y2K) computer problems. The Y2K

Problem is significant in the chemical manufacturing and handling sector, posing

unique risks to business continuity and worker and public health and safety, sometimes out of proportion to the size and staffing of the business. According to the U.S.

EPA, 85 million Americans live, work, and play within a 5-mile radius of 66,000 facilities that handle regulated amounts of high hazard chemicals. Many of these facilities have internal and external dependencies on automated equipment. In the

past week leading chemical manufacturers in Charleston, WV, including RhonePoulenc, DuPont, Monsanto Co. and Ashland Chemical., announced plans to temporarily halt operations New Year’s Eve as a precaution against toxic accidents when

the calendar turns from 1999 to 2000.

At the request of Senators Bennett and Dodd of the U.S. Senate Special Committee on the Year 2000 Technology Problem, the CSB convened an expert workshop

on Y2K and Chemical Safety. As coordinator of this effort, I involved leaders from

industry, equipment vendors, insurance companies, regulatory agencies, research

agencies, universities, labor organizations, environmental organizations, trade associations, professional engineering associations, and health and safety organizations.

This culminated in the release of the CSB’s first research report and recommendations: The Year 2000 Issues: Technology Problems and Industrial Chemical Safety,

which included the following findings: Large enterprises with sufficient awareness,

leadership, planning, financial and human resources are unlikely to experience catastrophic failures and business continuity problems unless their current progress is

interrupted or there are massive failures of utilities. The situation with small and

mid-sized enterprises is indeterminate, but efforts on the Y2K problem appears to

be less than appropriate based upon expert analysis. While the impact of the Risk

Management Plans should be positive, there are no special emphases or even specific mention of Year 2000 technology hazards in either U.S. Environmental Protection Agency or Occupational Safety and Health
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ADMINISTRATION REGULATIONS REGARDING PROCESS SAFETY

Federal agencies are aware of and involved in Year 2000 technology and chemical

safety issues. However, significant gaps exist, and there do not appear to be specific

plans to address these gaps.

As an outgrowth of this endeavor, I have testified twice in the U.S. Senate regarding chemical safety and Y2K: the first requests for the CSB to provide technical

safety information to this legislative body. The Board worked with the EPA and

seven trade associations of chemical handling industries to produce and distribute

a special guidance document for small and mid-sized enterprises. I transmitted copies of our report to the Governors of States and territories requesting their attentiveness to this problem. In conjunction with the Senate Special Committee, the

Board promoted the initiation of a special focus on chemical safety at the President’s

Council on Y2K. Most recently, I helped develop and promote a Y2K Awareness

Training module for the hazardous materials work force available through the

NIEHS.

In the international arena, I worked with the Intergovernmental Forum on Chemical Safety, the World Health Organization’s International Programme on Chemical

Safety, and the Organization for Economic Cooperation and Development to promote

global awareness, remediation, and contingency planning around Y2K problems. I

continue to interact with these organizations to improve preparedness in the chemical sector.

Summary

In summary, the Chemical Safety Board has enormous promise for the health and

safety of Americans as indicated by the impact over our very brief history. I believe

that I have made significant contributions to the Board over the last 2 years. Yet,

much more work remains to be done over the next 5 years if the CSB is to reach

its full potential. I would consider myself privileged and honored if this Committee

concurs with the President’s confidence in my qualifications and allows me to become part of that endeavor.
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