U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

94–600 PDF 2005

S. HRG. 108–500

NOMINATIONS OF THE 108TH CONGRESS,

SECOND SESSION

HEARING

BEFORE THE

COMMITTEE ON ENVIRONMENT AND

PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

STEPHEN L. JOHNSON, TO BE DEPUTY ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY

ANN R. KLEE, TO BE GENERAL COUNSEL, ENVIRONMENTAL

PROTECTION AGENCY

CHARLES EDWIN JOHNSON, TO BE CHIEF FINANCIAL OFFICER, U.S.

ENVIRONMENTAL PROTECTION AGENCY

BENJAMIN H. GRUMBLES, TO BE ASSISTANT ADMINISTRATOR FOR

WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

GARY L. VISSCHER, TO BE A MEMBER OF THE U.S. CHEMICAL SAFETY

AND HAZARD INVESTIGATION BOARD

MARCH 31, 2004

(

Printed for the use of the Senate Committee on Environment and Public Works
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

JOHN CORNYN, Texas

LISA MURKOWSKI, Alaska

CRAIG THOMAS, Wyoming

WAYNE ALLARD, Colorado

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director
(III)

CONTENTS

Page

MARCH 31, 2004

OPENING STATEMENTS

Bennett, Hon. Robert, U.S. Senator from the State of Utah ............................... 4

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ................. 7

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho ........................... 8

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 3

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

Wyden, Hon. Ron, U.S. Senator from the State of Oregon .................................. 6

WITNESSES

Grumbles, Benjamin H., nominated to be Assistant Administrator for Water,

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

Committee questionnaire ................................................................................. 85

Prepared statement .......................................................................................... 84

Responses by Stephen Johnson to additional questions from:

Senator Inhofe ........................................................................................... 93

Senator Jeffords ......................................................................................... 94

Senator Cornyn .......................................................................................... 107

Senator Lieberman .................................................................................... 107

Johnson, Charles Edwin, nominated to be Chief Financial Officer, U.S. Environmental Protection Agency .............................................................................. 11

Committee questionnaire ................................................................................. 75

Prepared statement .......................................................................................... 73

Johnson, Stephen L., nominated to be Deputy Administrator, U.S. Environmental Protection Agency .................................................................................... 9

Committee questionnaire ................................................................................. 33

Prepared statement .......................................................................................... 31

Responses by Stephen Johnson to additional questions from:

Senator Clinton ......................................................................................... 56

Senator Inhofe ........................................................................................... 51

Senator Jeffords ......................................................................................... 51

Senator Lieberman .................................................................................... 54

Klee, Ann R., nominated to be General Counsel, Environmental Protection

Agency ................................................................................................................... 10

Committee questionnaire ................................................................................. 59

Prepared statement .......................................................................................... 56

Responses by Anne R. Klee to additional questions from Senator Jeffords 72

Visscher, Gary L., nominated to be a member of the U.S. Chemical Safety

and Hazard Investigation Board ......................................................................... 14

Committee questionnaire ................................................................................. 114

Prepared statement .......................................................................................... 112

Letter, U.S. Chemical Safety and Hazard Investigation Board ................... 124

(1)

NOMINATIONS OF THE 108TH CONGRESS,

SECOND SESSION

WEDNESDAY, MARCH 31, 2004

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room 406,

Senate Dirksen Building, Hon. James M. Inhofe (chairman of the

committee) presiding.

Present: Senators Inhofe, Jeffords, Wyden, Thomas, Bond, and

Crapo.

Also present: Senator Bennett.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. The hearing will come to order.

We have a policy of starting on time, and it has just revolutionized things around here. We are delighted to have all of you here.

The purpose of today’s hearing is to consider the President’s nominees for four positions at EPA and one Chemical Safety Board and

Hazard Investigation Board.

The committee is quite familiar with some of the nominees here,

including one who is a former EPW staffer, Ann Klee. It is nice to

have you here. It is nice to know that there is room at the top for

these people here.

Stephen Johnson has been nominated as Deputy Administrator

for the EPA. He has been the Acting Deputy for several months

now. Mr. Johnson is a longtime EPA employee, both in the career

role and a political nominee. Three years ago, this committee reported Mr. Johnson’s nomination to be the Assistant Administrator

for the EPA’s Office of Prevention, Pesticides, and Toxic Substances. We are very familiar with Stephen Johnson.

Ann Klee has been nominated by the President to be the General

Counsel for EPA. Ann is a very familiar face to us.

She has been around for a long time. We are just delighted to

have her here.

Charles Johnson has been nominated to be the Agency’s new

Chief Financial Officer. We have two Johnsons working here, unrelated, I think. Mr. Johnson comes to us from Utah where he has

had a distinguished public and private career. He served as the

Chairman of the Utah Board of Regents and is a member of both

the Economic Development Corporation of Utah and Utah’s Sports

Commission. He was Governor Leavitt’s Chief of Staff in the mid-
2

1990’s, and most recently has been the President of the Huntsman

Cancer Foundation. We welcome you here, Mr. Johnson.

Ben Grumbles has been nominated for the Assistant Administration for the EPA’s Office of Water. He is currently the Acting Assistant Administrator of that office. He has been the Deputy of that

office and was the acting head of the congressional office at EPA

last fall. We have been with each other on the tour of Tar Creek,

which is the most devastated superfund site in America. He took

his life into his hands by going with us to that place. We have his

full commitment to seeing that we get things done.

I also might add that we go way back to the mid-1980’s in the

House Committee. I spent 8 years, as Senator Jeffords and Senator

Wyden did, in the House of Representatives. I was on the Transportation Committee at that time. We got to know each other quite

well.

Gary Lee Visscher is before us as the President’s nominee to be

a member of the U.S. Chemical Safety and Hazard Investigation

Board. Mr. Visscher is currently the Deputy Assistant Secretary at

the Department of Labor at OSHA, and a longtime staffer on the

House side working for Congressman Paul Henry, then as policy

counsel on the committee.

We welcome all of you to this nomination hearing.

[The prepared statement of Senator Inhofe follows:]

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE

STATE OF OKLAHOMA

Good morning. The purpose of today’s hearing is to consider the President’s nominees for four positions at EPA and one for the Chemical Safety Board and Hazard

Investigation Board. The committee is quite familiar with some of the nominees

here, including one who is a former EPW staffer (Ann Klee). I want to extend a welcome to both you and your families here today.

Steve Johnson has been nominated to be the Deputy Administrator for EPA—He

has been the Acting Deputy for several months now. Mr. Johnson is a long-time

EPA employee, both in a career role and as a political appointee. Three years ago,

this committee reported Mr. Johnson’s nomination to be the Assistant Administrator

for EPA’s Office of Prevention, Pesticides and Toxic Substances. He was confirmed

without any opposition. He has strong management experience and a scientific background—both of which should serve him well as Administrator Leavitt’s Deputy.

Ann Klee has been nominated by the President to be the General Counsel for

EPA. Ann is a very familiar face to this committee having been Chief Counsel to

the full committee for both Chairmen Chafee and Smith and prior to that serving

as Senator Kempthorne’s Environment Counsel for EPW. She was a very well respected and well liked member of the EPW family. We lost her 3 years ago when

she left to become Counselor and Special Assistant to the Secretary of Interior. She

has a strong legal background both in the public and private sectors. I am pleased

to welcome her back to the committee today.

Charles Johnson has been nominated to be the Agency’s new Chief Financial Officer. Mr. Johnson comes to us from Utah where he has had a distinguished public

and private career. He has served as the Chairman of the Utah Board of Regents,

and as a member of both the Economic Development Corporation of Utah and the

Utah Sports Commission. He was Governor Leavitt’s Chief of Staff in the mid-90’s

and most recently has been the President of the Huntsman Cancer Foundation. Mr.

Johnson spent the first 30 years of his professional life in the accounting industry,

a very good background to have for a CFO.

Ben Grumbles has been nominated to be the Assistant Administrator for EPA’s

Office of Water. He is currently the Acting Assistant Administrator of that Office.

He has been the Deputy of that office and was the acting head of the congressional

office at EPA last fall. Ben has had the pleasure of accompanying me on a tour a

of Tar Creek—when he joined Administrator Leavitt and myself in northeast Oklahoma last Fall. Prior to EPA, Mr. Grumbles was counsel on the House Transportation and Infrastructure Committee.
3

Gary Lee Visscher is before us as the President’s nominee to be a Member of the

U.S. Chemical Safety and Hazard Investigation Board. Mr. Visscher is currently the

Deputy Assistant Secretary in the Department of Labor at OSHA. Mr. Visscher was

a long-time staffer on the House side working for Congressman Paul Henry and

then as a Policy Counsel on the Committee on Education and Workforce.

Again, I welcome you here today and thank you for your willingness to serve.

Senator INHOFE. Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Thank you, Mr. Chairman. Good morning,

and thank you for all for being here today and for your willingness

to serve our Nation in these very important position at this important time in our history.

The Chemical Safety and Hazard Investigation Board’s mission

of promoting chemical safety has always been an important one.

But in the wake of September 11th, we are looking at our homeland safety and security with heightened scrutiny. The responsibility of the Chemical Safety Board members are challenging. I

look forward to hearing from you, Mr. Visscher, and how you plan

to meet these challenges.

The Environmental Protection Agency has an even broader mission of protecting the environment. As each of you are looking toward assuming these new challenges, I want you to know that

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

with your Agency, and that challenge is access to information. It

is our duty to inquire from time-to-time about the Agency’s conduct

of its mission, the Agency’s expenditures of funds and the Agency’s

implementation of statutes in his purview, including the development of regulations under those statutes.

I have never been encountered with such bizarre reasons for

withholding information from Congress as I have encountered with

this Administration. You may know that I requested information

on Clean Air Act regulations back in 2001 when I was chair of the

committee. After numerous discussions about the request, which

included promises to provide some of the information, the Agency

suddenly sent a letter to me in 2003 claiming that I could not have

the information because I was no longer the committee chair.

This is what I mean by bizarre. A delay of over 2 years, and then

a novel and baseless assertion that my party’s status is the determining factor as to whether I may obtain information from the

committee for my constituents.

Again, I want to thank Chairman Inhofe for joining me in writing to Administrator Leavitt to express our commonly held position

that the Agency is obligated to respond to the requests from the

Chair and Ranking Member, but despite a promise from Administrator Leavitt during the EPA budget hearing in early March, we

have had no response from the Agency to either this letter or the

outstanding request. This is an affront to every member on this

committee.

It is my hope that each of you will help this Senator and the

committee to fulfill our obligations to the American people for complete information regarding the health and safety of our environment.
4

I look forward to working with you as we go forward into an important part of our history in these important areas.

Thank you, Mr. Chairman.

[The prepared statement of Senator Jeffords follows:]

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

STATE OF VERMONT

Good morning, and thank you all for being here today and for your willingness

to serve our country in these important positions.

The Chemical Safety and Hazard Investigation Board’s mission of promoting

chemical safety has always been an important one, but in the wake of September

11th, we are looking at our homeland safety and security with heightened scrutiny.

The responsibilities of the Chemical Safety Board members are challenging and I

look forward to hearing from you, Mr. Visscher, on how you plan to meet those challenges.

The Environmental Protection Agency has an even broader mission—protecting

the environment. As each of you are looking toward assuming these new challenges,

I want you to know that there is a major challenge that I have been faced with in

dealing with your agency, and that challenge is access to information.

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

I have never before encountered such bizarre reasons for withholding information

from Congress as I have encountered from this Administration.

You may know that I requested information on Clean Air Act regulations back

in 2001 when I was Chair of this committee. After numerous discussions about this

request which included promises to provide some of the information, the Agency

suddenly sent a letter to me in 2003 claiming that I could not have the information

because I was no longer a committee Chair. This is what I mean by bizarre a delay

for over 2 years, and then a novel and baseless assertion that my party status is

the determining factor as to whether I may obtain information for this committee

and for my constituents.

Again, I want to thank Chairman Inhofe for joining me in writing to Administrator Leavitt to express our commonly held position that the Agency is obligated

to respond to requests from each the chair and the ranking member. But despite

a promise from Administrator Leavitt during our EPA budget hearing in early

March, we have heard no response from the Agency to either this letter or the outstanding requests. This is an affront to every member on this committee.

It is my hope that each of you will help this Senator and this committee fulfill

our obligations to the American people for complete information regarding the

health and safety of our environment.

I look forward to hearing from you this morning.

Senator INHOFE. Thank you, Senator Jeffords.

I know that Senator Bennett is here and wanted to introduce

Charles Johnson; is that correct, Senator Bennett?

Senator BENNETT. Yes.

Senator INHOFE. I do not know if there will be other opening

statements. If so, we are going to confine them to 3 minutes apiece.

Would you rather wait for that?

Senator BENNETT. I am obviously at your mercy.

Senator INHOFE. That is not what I asked you.

[Laughter.]

Senator INHOFE. Besides that, we know better.

Go ahead and introduce him right now.

STATEMENT OF HON. ROBERT BENNETT, U.S. SENATOR FROM

THE STATE OF UTAH

Senator BENNETT. Mr. Chairman, I appreciate your courtesy and

that of the committee in allowing me to intrude in this fashion.

You have Charlie Johnson’s biography before you. I will not read

through it again and tell you all of the things that he has done.
5

I sat here at this table when Governor Leavitt was nominated to

be the Administrator of EPA and described what an excellent Administrator he was and what a superb Governor he had been. One

of the reasons he was so successful as Governor is because Charlie

Johnson was his Chief of Staff. He brings a calmness, a sense of

maturity, a sense of stability, and an aura of ‘‘We can get this

done. Do not panic, I will take care of it. Yes, we can work this

through.’’ He brings that kind of aura to his position.

He left Governor Leavitt to go to work for the Huntsman Foundation which is one of the leading philanthropic organizations in

the State of Utah, took that same kind of calm, professional, ‘‘We

can get it done,’’ ability with him into that position.

I believe Charlie thought that he was out of the maelstrom of political activity and into the somewhat more tranquil waters of philanthropy and good works when Governor Leavitt decided that he

desperately needed Charlie’s ability and expertise back here in

Washington. Charlie has answered the call and has given up the

tranquillity of that kind of life to be thrown into life here in Washington again to give the kind of stability and wisdom that I think

any Administrator of EPA would be delighted to have at his elbow.

I want to share that with the committee to let you know that this

is not just a very competent man with a strong resume and great

abilities. He brings a particular flavor to public service that I am

sure that Governor Leavitt, now Administrator Leavitt, will very

much appreciate, and that the country will benefit from.

I give this committee my highest personal recommendation to

Charlie’s nomination and ask you to give it every possible consideration in terms of both time, as well as support in getting it through

in an expeditious way as possible.

Senator INHOFE. Thank you very much for that excellent introduction, Senator Bennett. You may be excused if you would like to

be.

Senator BENNETT. I will relinquish my seat.

Senator JEFFORDS. May I just say that I really appreciate the

comments that you have given me, and as my seat-mate for many

years, I have come to know you and admire all you have done. I

now look forward with great enthusiasm to Mr. Johnson being in

that office.

Senator BENNETT. Thank you, Senator Jeffords. I appreciate that

tremendously.

Senator INHOFE. Thank you very much, Senator Bennett.

I am not encouraging opening statements, but if anyone would

like to have an opening statement, confine it to 4 minutes, if you

would. Proper order would be Senator Thomas.

OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR

FROM THE STATE OF WYOMING

Senator THOMAS. Thank you, Mr. Chairman. I can beat the 4

minutes.

I appreciate all of you being here and what you are willing to do.

I have just a couple of general comments.

One, we need to find ways to make this system work more quickly and work better, not necessarily to change the rules, but to be
6

able to accomplish it in less time. I hear that constantly in Wyoming.

We need local input in these decisions, as we do in any other

Federal Government decisions because that is very important. I

think one of the other things that we find often happens is BLM

will make their study and complete their study, and then suddenly

EPA has to do it over again. They ought to be done simultaneously

so that when it is over and there is a decision, all the agencies

ought to be prepared to let that go forward.

Finally, I hope that we do not move into the area of managing

based on threats and lawsuits. Lawsuits are going to be there, but

that should not affect the decisions we make.

As a matter of fact, we have a bill in now that is going to have

something to do with venue shopping. Maybe these lawsuits can be

in the venue where the problem exists. We hope that can happen.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Thomas.

Senator Wyden.

OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR

FROM THE STATE OF OREGON

Senator WYDEN. Thank you, Mr. Chairman.

Mr. Chairman and colleagues, I do not think there are many

tasks around here that are more important than our ability to do

bipartisan, responsible oversight of programs that we have enacted

that we have passed into law.

I regret to say, and it touches on what Senator Jeffords has

talked about, I think the Administration has shut down the capacity to do responsible, bipartisan oversight over the programs at the

Environmental Protection Agency. For several years, the Agency

has claimed that it can ignore requests for information from Senators on the committee unless the information is requested by the

Chairman. Basically it is as if every request has to be made under

the Freedom of Information Act.

I cannot find any precedent for this position. I cannot find any

basis in law for the Agency’s position. In fact, legislative history

makes clear that the Freedom of Information Act was never intended to justify withholding information from Congress. Controlling Court decisions have ruled that all Members of Congress have

constitutionally recognized rights to seek information from executive branch agencies.

I think we are in a very unfortunate position this morning. We

have five nominees. They are all, as far as I can tell, very decent

people. They have loving families.

They are anxious to be able to go on with their business.

But I cannot support the nominees that are here today until we

work this out on a bipartisan basis. I am interested in working

with my friend of almost 20 years, Chairman Inhofe, to get this resolved. Congress cannot do oversight here.

That is just a fact. We have to get to the bottom of this.

We have to find out what the precedent is. I do not believe there

is any. I certainly have not seen anything like this in my time in

serving in both the other body and in this body.
7

I regret to say that I cannot support the nominees that are before us today until we resolve this issue which I believe for all practical purposes has shut down the capacity of this committee to do

bipartisan oversight of Government programs. My constituents do

not want us to pass new laws and new programs. They want us

to take out a sharp pencil and make the programs that are on the

books work. We cannot make programs work if, in effect, we are

getting stonewalled constantly in our requests for information and

basically are in a position of not getting unless anything unless you

file a Freedom of Information Act request.

I want to repeat again, Mr. Chairman, my desire to work with

you so that on a bipartisan basis we get this solved. I asked Ms.

Klee yesterday, who I know to be a very capable person, whether

given her history with Senator Chafee, for example, whether there

was any precedent for this. I cannot find any. I think we have to

address this issue. It cannot be allowed to linger any longer.

I thank you for the opportunity to speak.

Senator INHOFE. Thank you, Senator Wyden. I am sure you will

get any information that you desire that is appropriate.

We will be working together on that.

Senator Bond.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,

U.S. SENATOR FROM THE STATE OF MISSOURI

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

I appreciate your holding the hearing. The President’s nominees

for the EPA’s Deputy Administrator, General Counsel, Chief Financial Officer, and Assistant Administrator for Water, and a member

of the Chemical Safety Board, I think is a fine slate of nominees.

One is a career employee of the EPA since 1979. Two have devoted

their entire career to environmental protection and water quality,

and two others have extensive backgrounds that will assure their

success in their new positions.

I have had the pleasure of working with several of them, talking

about the need for water infrastructure, talking about the whole

range of EPA programs, and knowing that one had the experience

on this committee of shepherding through what would have been

a very productive improvement in the Endangered Species Act, perhaps she can give us some guidance on getting that long overdue

and badly needed job done.

I think the best thing we can do for the environment is to get

these EPA nominees confirmed. The Agency needs the leadership

they can provide and any delay in confirming these will only hurt

the environment.

So I hope my colleagues will join with us to approve the nominations without delay and remove any roadblocks that may be place

and vote to confirm the nominations at the earliest possible time.

I thank you, Mr. Chairman.

[The prepared statement of Senator Bond follows:]

STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR FROM THE

STATE OF MISSOURI

Thank you, Mr. Chairman, for holding this hearing to review the President’s

nominees for EPA’s Deputy Administrator, General Counsel, Chief Financial Officer,

Assistant Administrator for Water, and Member of the Chemical Safety Board.
8

This is a fine slate of nominees. One is a career EPA employee since 1979. Two

have devoted their entire career to environmental protection and water quality. Two

other have extensive backgrounds that will ensure their success in their new positions.

The best thing we can do for the environment is get these nominees confirmed.

EPA needs the leadership it deserves. The environment deserves a fully staffed and

aggressive EPA. Any delay in confirming these nominees will only hurt the environment.

So, I urge my colleagues to approve these nominations without delay, remove any

roadblocks which they may have in place, and vote to confirm these nominations

at the earliest point possible. Thank you.

Senator INHOFE. Senator Crapo.

OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S.

SENATOR FROM THE STATE OF IDAHO

Senator CRAPO. Thank you very much, Mr. Chairman. I will be

brief.

I think we have a very strong and capable group of nominees before us today. I have met with them. They are very capable of

doing the job that the President has asked them to do. I believe it

is important for us to move ahead expeditiously with their nominations and with the confirmation.

I look forward to the hearing today. Thank you.

Senator INHOFE. Thank you, Senator Crapo.

First of all, I know there are families here. Mr. Johnson, I think

your grandson has already gone, but if any of you at this point

would like to introduce your families, you are certainly welcome to

do that.

Mr. STEPHEN JOHNSON. Thank you, Mr. Chairman.

I would like to introduce a number of members of my family who

were able to be here today. My mother-in-law and father-in-law,

John and June Jones; a close family friend for many years, Zona

Chapman; my father, Bill Johnson; my wife, Debbie; our son, Matthew; our daughter Carrie; our son-in-law, Jeremy Jenkins; and, as

you noted, Mr. Chairman, the most important person in our entire

family, our one and only grandchild, our grandson, Carter Paxton

Jenkins.

Senator INHOFE. Good. Thank you very much.

Ann.

Ms. KLEE. Thank you, Mr. Chairman.

Compared with Mr. Johnson, I feel like I have a very small family. I have brought my husband, John Macleod, with me.

Senator INHOFE. Good.

Mr. Charles Johnson.

Mr. CHARLES JOHNSON. Mr. Chairman, I have my wife, Susanna

Johnson. She is my biggest cheerleader, and I am delighted to have

her with me today.

Senator INHOFE. Thank you very much. It is nice to have her

here.

Mr. Grumbles.

Mr. GRUMBLES. Mr. Chairman, my wife, Karen Grumbles, is here

as well.

Senator INHOFE. All right, good.

Mr. Visscher.

Mr. VISSCHER. Mr. Chairman, my family was not able to be here.

Senator INHOFE. I see. All right. That is fine.
9

Let us go ahead and start with opening statements. We would

ask you to try to confine them to 5 minutes. Your entire statement

will be made a part of the record.

We will start with you, Mr. Johnson.

STATEMENT OF STEPHEN L. JOHNSON, NOMINATED TO BE

DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. STEPHEN JOHNSON. Thank you, Mr. Chairman.

It is certainly an honor and a privilege to be here today. I enjoyed the opportunity to meet with many of you over the past number of weeks.

As I introduced my family members, it is always exciting for all

of us and certainly for them to enjoy with me the honor and privilege of being able to be here today.

I want to make a special note of my father who spent over 30

years of public service to the Department of Navy. At the time I

did not realize, but he was instilling in me an important legacy of

the importance and the significance of public service in which I am

eternally grateful. I find myself sitting here, a capstone of my career and our family’s commitment to public service.

These are indeed exciting times at EPA. We are thrilled to have

Administrator Leavitt. We are all excited to work with him as we

deal with the challenges of the Environmental Protection Agency.

As he joined the Agency, he identified four cornerstones toward a

better way of improving environmental protection—that of collaboration, harnessing technology, market incentives, and focusing on

results.

Those cornerstones are all ones that through my experience

through the years, and certainly my own philosophy, that I highly

support.

I believe that by using those cornerstones we can increase the velocity of environmental progress, while maintaining our economic

competitiveness, an important feature.

Having spent 20-plus years both in industry and government, I

think that my experiences make me well suited for this particular

position. My operating philosophy, along with these cornerstones,

includes the importance of sound science, the importance of communication and involvement of all stakeholders in our process, the

importance of building and maintaining relationships, and looking

at our work force, making sure that we have a strong, professional,

and diverse work force at EPA.

Throughout my career and as the Assistant Administration of

the Office of Prevention, Pesticides, and Toxics, I certainly worked

hard to do all of those things. I certainly look forward to working

with you, Mr. Chairman, and members of the committee on a bipartisan basis to advance the mission of protecting the environment on behalf of the American people.

Thank you, Mr. Chairman. I would ask that my full statement

be placed in the record in its entirety.

Senator INHOFE. Without objection, so ordered.

Thank you, Mr. Johnson.

Ms. Klee.
10

STATEMENT OF ANN R. KLEE, NOMINATED TO BE GENERAL

COUNSEL, ENVIRONMENTAL PROTECTION AGENCY

Ms. KLEE. Thank you, Mr. Chairman, Senator Jeffords, and

members of the committee. I want to thank you for providing me

the opportunity to appear before you today. It is a tremendous

honor for me to be here as the President’s nominee for General

Counsel of the Environmental Protection Agency.

On a personal note, it is a great pleasure to be back at Counsel

table.

I know that I will face a daunting set of challenges should I be

confirmed by the Senate. EPA deals with any number of very complex and contentious policy, legal, and practical issues every day.

The Office of General Counsel plays a critical role in fulfilling the

Agency’s mission of protecting human health and safeguarding the

environment by ensuring that its environmental policies and programs are supported by the law and are fully and fairly implemented.

That is an awesome responsibility, and one that I would take

very seriously.

I am looking forward to joining Administrator Leavitt and his

team as he leads the Agency in exciting new directions, using technology, markets and collaborations to get better environmental

progress done more quickly.

I believe that my experience over the past 18 years as an environmental lawyer in private practice, as a staffer on the Hill, and

most recently in the Administration at the Department of Interior,

will allow me to provide Administrator Leavitt and the program offices with sound, unbiased, legal analysis to achieve the Agency’s

mission. Throughout my career I have strived to think independently, respect the rule of law, act in accordance with the highest

ethical standards, and use sound judgment and common sense.

I have represented companies; I have sued polluters; and I have

negotiated complex settlements with multiple parties.

I know from this experience that the issues that we are dealing

with today, and that this committee is dealing with, are complex.

They have nuances. They are not black and white. It pays to listen

to and respect those who have differing views.

Let me give you a couple of examples. My experience on the Hill

underscored for me the importance of collaboration and seeking

consensus-based solutions. I was lucky enough to work on the Safe

Drinking Water Act Amendments while I was staffing Senator

Kempthorne and had an opportunity to work with many of the

staff who are here in the room today.

That bill was passed by the Senate in 1995 by a vote of 99–0,

and signed into law a year later by President Clinton.

That law improved public health; it reduced unnecessary costs;

it encouraged voluntary measures to prevent contamination of

drinking water supplies; and it incorporated, for the first time, benefit cost principles. It was innovative and it addressed real problems. To my mind, that law demonstrated that dialog, partnerships, and innovative thinking are really the path to better environmental protection.
11

If I am confirmed, I would hope to continue a collaborative relationship with the committee and its staff as we work through the

challenging legal issues that we face today.

For the past 3 years, I have had the great pleasure of serving

at the Department of the Interior as Counselor to Secretary Gale

Norton. I saw every day how collaboration and partnerships can

achieve real results on the ground. I was lucky enough to lead the

Department’s Everglades Team, a team to restore the Florida Everglades, and I am particularly proud of what we were able to accomplish in just the past 3 years by working with the State and local

governments, environmental organizations, and the private sectors.

As a result, we now have a legal framework in which to implement individual restoration projects, we acquired and preserved

thousands of acres of Everglades habitat; and we began construction this past year on the first Everglades Restoration Project.

I use these examples from my previous lives because I think they

illustrate how I approach environmental issues. I think that is important for you to understand. I believe strongly in the framework

of our environmental laws and in their enforcement. At the same

time, though, I really believe that we should always look for opportunities to do better, to go beyond what the law requires.

My experience has always been that communities, businesses,

and individuals, if given the chance and a little bit of encouragement, will step up to the plate and come up with a better way of

protecting the environment. My job as a lawyer is to help make

that happen.

Finally, I would like to acknowledge that I know that if I am confirmed I will not be alone in helping advance the Agency’s mission

within the Office of General Counsel. I have only been at EPA a

week, but I have already seen that I will be surrounded by dedicated, talented, and creative lawyers in the office. I look forward

to having the opportunity to working with them, as well as the rest

of the members of Administrator Leavitt’s team.

Thank you, Mr. Chairman, and members of the committee. I

would be happy to answer any questions. I would ask that my full

statement be placed in the record in its entirety.

Senator INHOFE. Without objection, so ordered.

Thank you, Ms. Klee.

Mr. Charles Johnson.

STATEMENT OF CHARLES EDWIN JOHNSON, NOMINATED TO

BE CHIEF FINANCIAL OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. CHARLES JOHNSON. Thank you, Mr. Chairman, Senator Jeffords, and members of the committee. I am delighted to have this

privilege. Let me publicly thank Senator Bennett first, for appearing on my behalf, and thank each of you for allowing me to appear

here today.

I consider this a rare privilege, and if the nomination continues

as set forth by President Bush, it will be a real pleasure for me to

again join Michael Leavitt, the present Administrator, in this position. I am in your hands, and I understand that.

Let me also thank you and your staff. I have had meetings with

each of you, and I have been treated very well.
12

I want you to know that I will reciprocate that if, indeed, my

nomination goes forward and I am confirmed.

The Office of the Chief Financial Officer is a very fundamental

office for the success of the Agency. This is all about trust. It is

about respect. It is about fairness. It is about planning. I consider

the office to be an office that is essential for future planning that

will aid management in any plans that this Agency will set forth.

I have had 31 years in the practice of public accounting.

I served as a member of the Board of Directors of one of the largest CPA firms in the world. I think I have demonstrated my financial capabilities and also my leadership capabilities.

I joined the State of Utah as the Director of the Office of Planning and Budget, and then subsequently as Mike Leavitt’s Chief of

Staff. I have great respect for the role of government and its

functionings in our world.

I have learned much from these past experiences. I think I have

developed my financial skills and leadership abilities from my work

in public accounting. From my time in government, I have learned

that you have to be up-front, you have to provide the information

that you are asked for, and you have to be transparent in your

dealings.

From my service as chair of the Board of Regents in Utah, I have

learned that you must continually put money into projects and into

research and guard against excessive administrative costs. From

my day-to-day dealing with citizens, I have learned that taxpayers

will allow us to use their funds only if they believe that we are

doing it to promote the common good and to help citizens. We are

all taxpayers. We all recognize our accountability to taxpayers.

So the past has been an excellent preparation for appearing before you today. That being said, I know that the broad array of financial issues confronting EPA are more than just complicated financial questions. They are the fundamental questions about the

stewardship of our air, our land, and our water. I believe that our

fiduciary responsibility and that stewardship link hand-in-hand. I

intend to continue to make sure that we link them.

It is clear to me from my short period of time with EPA that we

have some very large and complex financial issues. It is also clear

to me that these issues will not be solved by EPA alone, but it will

take the collaboration of the Administration, the collaboration of

Congress, and the collaboration of EPA to solve these very large financial issues. I want to serve the President, to serve the Administrator, and to serve the American people in a collaborative role. I

want to work with you and your staffs in that collaboration.

I would also like to say what a pleasure it will be to serve with

the men and women that I have met at EPA. They are remarkable.

It has truly been an amazing experience to meet the people. They

are hard working. They are dedicated. They are passionate. This is

a group of people that I want to spend some time with. I am grateful for this opportunity.

In the grand scheme of things this is just a very small moment

in time. But, Mr. Chairman, I have spent a lifetime building trust,

confidence, and respect just for moments like this. I want you to

know that if I am fortunate enough to have this nomination go for-
13

ward, and if I am confirmed, I look forward to serving the people

of the United States.

I again thank you and the members of this committee for this opportunity. I will be happy to answer questions. I would ask that my

full statement be placed in the record in its entirety.

Senator INHOFE. Without objection, so ordered.

Thank you, Mr. Johnson.

Mr. Grumbles.

STATEMENT OF BENJAMIN H. GRUMBLES, NOMINATED TO BE

ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. GRUMBLES. Thank you, Mr. Chairman. As a former committee staffer, I learned early on the wisdom of submitting full and

complete statements for the record. I will briefly summarize the

major points.

The most obvious point is how honored and privileged I am to

be able to appear before you Chairman Inhofe, Senator Jeffords,

and distinguished members of the committee to describe who I am

and talk about the priorities, the opportunities, and the challenges

in serving as Assistant Administrator for the Office of Water.

As you noted, I have a background that begins working on Capitol Hill in water and infrastructure, working on a bipartisan basis,

forging together sustainable solutions—Clean Water Act, the Safe

Drinking Water Act, and the Water Resources Development Act—

all with the goal of protecting the Nation’s waters, providing for infrastructure and jobs, and doing so in a way that protects the competitiveness of this country and also meets the fundamental objective and desire to keep America’s waters clean, safe, and secure.

I joined EPA in February 2002, and what an honor and education that has been so far. I joined as the Deputy Assistant Administrator for the Office of Water. I have been working in that capacity. I did have the opportunity to step in for 4 months and serve

as the Acting Associate Administrator for the Congressional Affairs

Office, which has also been a great experience. Now I am Acting

Assistant Administrator in the Office of Water.

Mr. Chairman, and Senator Jeffords, you all know full well of the

great progress that has occurred on the waterfront, so to speak, in

this country over the last 30 years, and you also know full well the

many challenges that remain. We all know that many of them relate to not so much the low-hanging fruit, but the more complex

issues associated with non-point source pollution associated with

wet weather flows. There is also the objective of providing regulations under the Safe Drinking Act that protect human health, yet

are also affordable and achievable.

I look forward to carrying out Administrator Leavitt’s vision in

his 500-Day Plan which focuses on increased monitoring for water,

ensuring no net loss of wetlands, and restoring impaired watersheds and coastal waters. One area of particular emphasis for me

with respect to conservation is water conservation. I know full well

that EPA does not have the statutory authority, nor does it seek

that authority, to regulate water quantity issues.

But what I am talking about is the ability to provide voluntary

information and leadership to give the tools to help encourage
14

water use efficiency and water conservation to help reduce the infrastructure funding gap when it comes to water and waste water

facilities. One of the areas that gives me great pride and interest

is pursuing a Water Star program modeled on the Energy Star program where we provide, on a voluntary basis, standards for water

efficient plumbing and appliances to help reduce the costs, protect

the environment, and save jobs.

The last thing I would simply say, Mr. Chairman, is that I feel

indebted to my family and friends for all of the support they have

given over the years, and continue to give. Managing water is a

team effort. I really hope that I have the opportunity to serve as

the Assistant Administrator for the Office of Water.

I look forward to any questions you or your colleagues may have.

Thank you. I would ask that my statement be placed in the record

in its entirety.

Senator INHOFE. Without objection, so ordered.

Thank you, Mr. Grumbles. I will look forward to working with

you, as we have done for the last 18 years.

Mr. Visscher.

STATEMENT OF GARY L. VISSCHER, NOMINATED TO BE A

MEMBER OF THE U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

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

members of the committee. I appreciate very much this opportunity

to testify and to appear before your committee today.

If confirmed by the Senate, I look forward to serving on the

Chemical Safety Board. I believe I can help the Board to play an

effective role in the continued improvement of chemical safety in

this country. I believe in the Chemical Safety Board’s mission,

which is to prevent chemical accidents and to save lives through

the thorough investigation of accidental chemical accidents, research into hazards that are related to releases or potential releases, and recommendations and interactions with government

agencies, industry and labor, and others to prevent future individual chemical accidents from occurring.

I might mention the presence in the room today of several people

from the Chemical Safety Board, including Chairperson Carolyn

Merritt, and well as Member John Bresland. I appreciate their

coming.

Since 2001, I have served as Deputy Assistant Secretary for the

Occupational Safety and Health Administration at the U.S. Department of Labor. As Deputy at OSHA, I have been involved in the

full range of occupational safety and health issues that come before

the Agency, including numerous issues involving chemical processing and chemical plant safety.

Prior to my current position, I served as Vice President for Employee Relations at the American Iron and Steel Institute, where

I worked with our member companies on a variety of safety and

health issues.

From 1999 through 2000, I served as one of three Commissioners

on the Occupational Safety and Health Review Commission, for

which I was confirmed by the Senate in 1999. Prior to that, I

worked for about 15 years in congressional staff positions, first as
15

Legislative Director to former U.S. Representative Paul Henry, and

subsequently on the staff of the House Committee on Education

and the Workforce.

As happens to many of us who work in congressional staff positions, my long-term interest and involvement in workplace safety

and health came, to some extent, as a result of the involvement

and expertise of the Member of Congress on whose staff I began

working. Senator Jeffords may particularly recall, because I think

you were instrumental in Congressman Henry assuming the position, Representative Henry served as ranking member on the subcommittee with jurisdiction over workplace safety and health

issues, a position he held from 1987 to the year in which he died

in 1993.

Through helping to prepare him and other subcommittee members and committee members for hearings and working on the

issues that came before the subcommittee, I gained a level of expertise in many of the technical as well as policy issues.

If getting involved in the area came by way of congressional staff

duties, I also have found that working in workplace safety and

health to be both challenging and rewarding, and if confirmed by

the Senate, I look forward to serving on the Chemical Safety Board

in order to continue to contribute in some small way, at least, to

the effort of making our workplaces and our communities safer.

A major role and function of the Chemical Safety Board is the

investigation of chemical releases and incidents in order to identify

what happened and, as much as possible, why it happened, and to

recommend steps that might prevent such accidents from happening again.

To carry out these functions, one must be not only well versed

in the technical and legal aspects of chemical safety but also be fair

and objective. Each of the jobs and positions I have had in the safety and health area has involved oversight and review of workplace

accidents. I believe I have a reputation for being both thorough and

fair. I certainly will carry these values with me in carrying out my

responsibilities on the Chemical Safety Board.

Mr. Chairman, I appreciate very much this opportunity to testify

before you and for your consideration of my nomination. I look forward to answering any questions you may have. I would ask that

my full statement be placed in the record in its entirety.

Senator INHOFE. Without objection, so ordered.

Thank you, Mr. Visscher, for an excellent opening statement.

First, I have two questions to ask each one of you. We will start

with Stephen Johnson and go down individually. These are required.

No. 1, are you willing to appear at the request of any duly constituted Committee of Congress as a witness?

Mr. STEPHEN JOHNSON. Yes.

Ms. KLEE. Yes.

Mr. CHARLES JOHNSON. Yes.

Mr. GRUMBLES. Yes.

Mr. VISSCHER. Yes.

Senator INHOFE. No. 2, do you know of any matters which you

may or may not have thus far disclosed which might place you in

any conflict of interest if you are confirmed to this position?
16

Mr. STEPHEN JOHNSON. No.

Ms. KLEE. No.

Mr. CHARLES JOHNSON. No.

Mr. GRUMBLES. No.

Mr. VISSCHER. No.

Senator INHOFE. Thank you very much.

Mr. Stephen Johnson, as I discussed in our concerns, there are

some concerns that I have. The Spill Prevention Control and Countermeasures Rule that was finalized last year and extended for 18

months, my concern has been for groups such as airports, farmers,

and others, by using the collective amount of fuel being stored. It

is something that has really distressed me. I had occasion to talk

with the American Farm Bureau yesterday. They are also concerned about it.

I guess the question I would have is this. I had sent you a letter

asking: Would you delay the compliance deadline until we can address these problems so that we can work on them?

Mr. STEPHEN JOHNSON. Mr. Chairman, yes, with regard to the

Spill Prevention Control and Countermeasures Rule, in fact today

we are hosting a public meeting with interested parties to get feedback about the issues and discuss the implementation.

We, too, share your concerns, making sure that the affected parties can move in an appropriate way and a time for implementation. We are committed to working with you and other members of

the committee, Senator Jeffords and others, to make that happen.

Senator INHOFE. Or if that could not happen, maybe to consider

a new rulemaking process.

Mr. STEPHEN JOHNSON. Certainly we will take that into consideration. I should note that it is certainly my understanding that an

agreement has been reached. I believe you are certainly aware that

there was a lawsuit and that we have entered into an agreement

with the American Petroleum Institute, the Marathon Oil Company, and the Petroleum Marketers Association of America to resolve all issues, except for one during the litigation. That one remaining issue will continue.

But more importantly, as your question indicated, we are committed to working with you and the major stakeholders to make

sure that it can be done in an effective and appropriate way.

Senator INHOFE. Good. Thank you very much.

Mr. Charles Johnson, you are probably aware, and maybe you

even watched some of the transcript of our hearing that we had

concerning some of the discretionary grants. We really want to look

at those. I would observe that as long as I have been here, and that

is for 10 years on this committee, this subject has come up and

nothing has been done. We made it very clear during this hearing

that we plan to do something.

In looking at the discretionary grants, can we have your assurance and of your full cooperation in helping us resolve these problems that have not been resolved in the last few decades?

Mr. CHARLES JOHNSON. I think there are two issues with grants.

One is the awarding of grants, and the other is the management

of grants after they are awarded. Both need attention. The Chief

Financial Office has been involved more in the management of

grants rather than the awarding of grants. But I think we need a
17

better link between those two functions. It is an item that I have

noted for followup, if indeed I am confirmed.

Senator INHOFE. But one of my concerns is the legal compliance,

which I think has not been adhered to, and also the fact that we

had a commitment in our previous hearing that full disclosure

would be very helpful in two ways: No. 1, in what grants are available, and No. 2, to whom these grants were given and for what

purpose, actually to be displayed on a website. Do you have a problem with that?

Mr. CHARLES JOHNSON. Not a problem. I think the more that we

can be forthcoming and open about process and allow people to

have that privilege, the better off we all are.

Senator INHOFE. That is all I would ask.

Ms. Klee, what, in your background do you have that you think

that you can draw on to help you in this position?

Ms. KLEE. Senator, I think if I were confirmed, I would bring

three qualities to the job. First of all, 18 years of experience as an

environmental lawyer, and because of that experience I feel entirely comfortable thinking independently and expressing my

views. I think anyone who knows me will say that no one has ever

accused me of being a shrinking violet.

I think the second thing is that I understand the importance of

the relationship between Congress and the Administration. We

need to work together. I think I could help on that front as well.

Then third, I would say that my experience has given me a

broader perspective on environmental issues. I have worked on a

number of issues and seen different perspectives and different

views. That has made me a better advocate for my client, which in

this case would be EPA, particularly in a D.C. environment. But

it has also made me more open-minded.

Senator INHOFE. Thank you, Ms. Klee.

Senator Jeffords.

Senator JEFFORDS. Thank you, Mr. Chairman.

Steve Johnson, the United States reportedly is lobbying aggressively against an European Union Chemical proposal that is expected to save thousands of lives each year by addressing the lack

of basic safety data, and about the vast majority of chemicals in

use today.

The U.S. position mirrors the concerns raised by the chemical

manufacturers. You personally voiced some of these concerns during an official visit to Europe in December 2002. In developing the

U.S. position, did EPA evaluate the potential health and environmental benefits of gathering this hazard data?

Mr. STEPHEN JOHNSON. Senator Jeffords, did we do a complete

or thorough evaluation of the potential benefits?

No, we did not. What led me to make the comments that I did

is this. At that point it was called the European White Paper,

which is now referred to as the Reach Regulatory Program for Existing Chemicals.

There were really several aspects of the proposal that were troublesome to those of us in the United States and from a science

standpoint. One was the full reach of the then-called White Paper,

including chemicals such as one of the examples of the polymers

that are in this pen. My concern, both from the United States
18

standpoint, and from a worldwide standpoint, is that we really did

not spend our precious time and energy and resources focusing on

polymers. There were other chemicals that we needed to draw our

attention to. That is just an example of one of the problems.

Since that time, they have corrected and are focusing on what we

believe are the more appropriate chemicals of concern.

The second is that depending upon how you count them, in the

European arena, there are some 64,000 industrial chemicals on the

market. In the United States there is approximately 90,000 industrial chemicals on the market, part of the inventory. We have to

start someplace. What should we focus on?

In the United States we decided to focus on the 2,000 high protection volume chemicals, those that are produced in excess of a

million pounds, as well as those that may have a high exposure to

children, some 20-something. So our principal message was that we

think that worldwide that we need to focus on those high-priority

chemicals. Worldwide companies have already committed to developing these data. We ought to be focusing our worldwide attention

on evaluating those rather than requiring data for such things as

polymers.

So it was really a prioritization on the focus on the world’s limited resources.

Senator JEFFORDS. There was also a comment on the role of the

EPA in developing the U.S. position and the extent to which environmental and public health groups were consulted during this

process.

Mr. STEPHEN JOHNSON. In fact, I did meet both domestically as

well as internationally with several of the public interest groups to

share the same concerns which I have just raised with you, and to

make sure to focus our resources to ensure that we are providing

public health and environmental benefit, and we think focusing on

those that are producing high volumes, those that may have exposure to children, are the right focus of our resources. In fact, we

really did not get any disagreement among the environmental public interest community.

Senator JEFFORDS. Ms. Klee, imagine that you are defending the

EPA in a judicial appeal of a rule. The Petitioner has pointed out

that large chunks of the Agency’s Rulemaking Notice was lifted

verbatim from submission of 2(b) regulated industries, or for that

matter, from the environmental community.

Do you think that the revelation would make your job more difficult?

Ms. KLEE. Senator, that is a very hard hypothetical question to

answer because it would depend largely on the specifics of the situation, whether this was material that was in the administrative

record, to what extent it influenced the scope of the substance of

the rule, to what extent it was otherwise independently supported

or consistent with the direction in which the Agency was going.

It is a very difficult question to answer in the absence of those

kinds of details.

Senator JEFFORDS. Does not that kind of an occurrence make it

look as if the Agency is not independently interpreting its statutory

mandate? Would it not motivate the courts to scrutinize the record

much more carefully?
19

Ms. KLEE. Senator, if I were confirmed, my job in the office of

General Counsel would be to make sure that we evaluate and review rules before they go both to the Federal Register and to litigation. I would hope that we would not have that kind of situation.

We would address those issues before we ever finalized a rule.

Senator JEFFORDS. You are concerned about that development.

What do you plan to do about it, if confirmed?

Ms. KLEE. If confirmed, I would plan to do an excellent job in reviewing rulemakings before they go to the Federal Register. I am

very confident that the EPA General Counsel staff can do that.

Senator JEFFORDS. The Chairman has asked me not to proceed

further.

Senator INHOFE. The gentleman’s time has expired.

Senator Wyden.

Senator WYDEN. Ms. Klee, no hypothetical. The Mercury decision, you look at it, and the proposal has whole paragraphs lifted

from industry’s proposal. Are you bothered by that?

Ms. KLEE. Senator Wyden, I am not familiar with the specifics

of that rule. I have read accounts of some of it in the newspapers,

but that is really the basis of my knowledge.

I have not reviewed the rule. I do not know what the facts are.

Senator WYDEN. Are you bothered by what you read in the

paper? That is not a hypothetical situation. That is a real situation,

where you took the industry stuff and basically it was a cut-andpaste job. That is not hypothetical. Are you bothered by that?

Ms. KLEE. Senator Wyden, my experience has been that newspaper reports frequently do not get facts completely accurate. So I

would not base my evaluation of a situation based on a report in

the Washington Post. Senator WYDEN. Mr. Grumbles, you told me yesterday in the office that when you wrote to Senator Jeffords last October, refusing

to provide the documents that we requested, you did so at the direction of the White House counsel and the Justice Department.

I would like to begin by asking you to tell me who told you to

write the letter on October 27th, claiming that EPA could refuse

to provide documents to a member of the committee by claiming

that they were exempt from disclosure under the Freedom of Information Act?

Mr. GRUMBLES. Senator, I would like to restate what I said.

What I told you was that when we were providing documents and

information, and also claiming privileges for documents that we

could not provide, in my capacity I was asking General Counsel for

their view because I was being told by Counsel’s office, since I am

not an expert on documents or FOIA, or privileges, what is the current situation, of what is the policy and practice that this Administration and prior Administrations have followed.

I was told that was the case. Now what I also said was that the

Department of Justice, they were the key in terms of having a

statement, a 1980 policy, laying that out, and that also CEQ Counsel was involved. We had some conversations and it was primarily

in the context of the President’s nominee was trying to make it

through the process. They were very much on a daily basis being

kept abreast and up-to-speed on any potential issues. This was, as

we all remember, one of the key areas of concern.
20

When I spoke with them, it was in the sense of reaffirming existing policy and that is, when a request is coming from someone

other than the Chairman, then consistent with the 1980 policy

from the Department of Justice, the approach is if exemptions from

FOIA would apply, then you assert those.

Senator WYDEN. Again, who told you from the Justice Department and from the White House to write the letter? You did not

come up with that idea on your own. Who told you to write it?

Mr. GRUMBLES. The letter was my letter.

Senator WYDEN. It was your idea to write the letter?

Mr. GRUMBLES. It was definitely my idea to write the letter.

There were a series of letters. My objective when I came into the

congressional office was twofold. One was to reach out to every

member on the committee and in the Senate and to see what needs

they had and to operate in a full bipartisan fashion.

The second one was to make sure that when sensitive issues or

requests for information were coming, was to make sure that I followed the procedures that were in place and the policies that had

continued to be in place. I do not remember the name, honestly,

Senator, of the person I spoke with at Justice. It was more of staff

working for me consulting Justice and CEQ to confirm that this

was the approach that has been followed in the past.

Senator WYDEN. Well, since it was your idea to write the letter,

and you have said that this is an approach that was followed in

the past, can you provide us a similar letter that was written like

the one that you wrote on October 27th? I cannot find anything

close to this in my experience.

Mr. GRUMBLES. I know I——

Senator WYDEN. If I could finish. I would like for you to give us

a similar letter to the one you wrote on October 27th that came

sometime in the past when Congress tried to do oversight. We cannot find that. Do you have such a letter?

Mr. GRUMBLES. I have sent three letters, I believe. The whole

purpose of the letters was to lay out for the committee and Senator

Jeffords, with a copy to Chairman Inhofe, all of the different things

we were doing. We all felt it was helpful working with the Minority

Staff to have a specific road map to keep track of all the requests,

questions, and also the documents they have.

I sent, I believe, three letters. The basis for each of those, when

we did need to assert a privilege and say that we could not provide

an item to the Senator’s staff based on enforcement-related or attorney-client privilege, was because we were taking the view articulated, and continues to be articulated from the Justice Department, that providing information to Congress, if you are going to

follow the FOIA approach, that applies when the requestor is not

the Chairman of the committee or the subcommittee.

Senator WYDEN. Mr. Chairman, I have asked twice. I will ask it

a third time.

I would like to see somebody who wrote a letter in the past, like

the one you wrote on October 27th. I do not think it exists, Mr.

Grumbles. I am going to oppose your appointment until I see some

evidence that there is precedence for this. I just think it is not

there. I asked you yesterday for it.
21

Mr. GRUMBLES. Senator, I can certainly provide you with lengthy

memos and discussions from the Justice Department articulating

the position, which is the position we followed with respect to enforcement sensitive or other privileged information.

Senator INHOFE. Senator Wyden, we will return to you.

Senator WYDEN. We will have another round?

Senator INHOFE. Yes, you will have another round. You will have

ample opportunity, but I do want to keep regular order here, if you

do not object.

Senator WYDEN. Fine.

Senator INHOFE. I would like to followup on that.

It was suggested I think both by Senator Jeffords and by Senator

Wyden, that perhaps there was language that came from stakeholders or from industry. In the rulemaking process, there are comment periods. You receive comments from many different sources.

I would suggest that there could very well be language that came

from stakeholders, as well as environmentalist groups. Do any of

you think that this is unusual?

Mr. STEPHEN JOHNSON. No.

Ms. KLEE. No.

Mr. CHARLES JOHNSON. No.

Mr. GRUMBLES. No.

Mr. VISSCHER. No.

Senator INHOFE. All right. This brought up something when Senator Jeffords was talking about it and that is I would hope that you

folks in each one of your capacities would not be unduly influenced

by either industry or the environmentalist groups, or as was

brought up by Senator Jeffords, the European Union. I have had

experience there with Margo Waldstrom, the Minister of Environment. I certainly do not think that we should put ourselves in the

position to be overly influenced by anything that comes out of the

EU.

I would like to hear a response to that.

Mr. STEPHEN JOHNSON. Senator Inhofe, I certainly agree with

you. As I said in my opening statement, I also value the input of

all stakeholders. I think we have to have an open ear. I think we

need to hear all of the views, but again we are charged with the

responsibility as EPA, to make an independent assessment following the laws and the regulations to make sure that we are protecting the public health and the environment, and the people of

the United States.

So I certainly agree.

Senator INHOFE. I appreciate that. Are there any other comments

in terms of that position?

[No response.]

Senator INHOFE. Mr. Visscher, I would like to ask you what you

consider to be the most important aspects of this Board for which

you will be hopefully confirmed, and what you bring to the table.

Mr. VISSCHER. Thank you. I think what the Board contributes,

or the role of the Board is to be a transparent entity. It covers

some areas that are also within the jurisdiction of EPA and OSHA.

The Chemical Safety Board is not regulatory. It is not enforcementoriented, and as a result of that, I think it can provide a level of

transparency for investigations to reassure communities and work-
22

ers that things are being thoroughly looked it. Also by its focus on

chemical safety, the Board works not only with the Federal agencies, but often with local governing bodies to take another look at

issues involving chemical safety.

I know that just recently the Board announced some successes in

New York City in getting the City Council to look at building code

issues there. Because the Board has a fairly broad role, it can provide that.

I think what I bring is a long history of experience in the safety

and health area, a long history of evaluating and analyzing accident investigations. I have had accident investigation experience

with the Committee on Education and the Workforce, as well as

the OSHA Review Commission, and currently in my position at

OSHA.

I also have a familiarity with the other agencies and entities involved in safety and health. So I think I can contribute much there.

Senator INHOFE. That’s good. Thank you, Mr. Visscher.

Mr. Grumbles, I would ask you the same question I asked Ms.

Klee. I remember working with you many, many years ago, starting in the middle 1980’s on the House side in the Transportation

Committee. You have an abundance of experience. How do you

think that can best be used?

I might add that you have always been a nonpartisan and bipartisan individual in your past life. I am sure you will continue to

be. What do you think you will bring to the table?

Mr. GRUMBLES. Thank you, Mr. Chairman.

From an expertise standpoint, I have had the pleasure of being

able to be right in the middle of the policy-level discussions, not

only here in the Capitol but the ones that reflect what the State

water managers and local water managers are dealing with. I have

seen the formulation of the policies to implement the Clean Water

Act and the Safe Drinking Water Act.

As you mentioned, I understand very well and appreciate the

critical need for and the sustainability of bipartisan solutions. That

is something that I think that has been a hallmark of my experiences in the water arena and addressing water quality issues.

Senator INHOFE. Thank you, Mr. Grumbles. I have no doubt that

will be the case.

Senator Jeffords.

Senator JEFFORDS. Thank you, Mr. Chairman.

This is a question for Ms. Klee and Mr. Grumbles.

One of EPA’s most important responsibilities is protecting the

Nation’s water supply. Since the Clean Water Act was passed in

1972, we have made much progress. Over 45 percent of the Nation’s waters still are not safe for fishing, swimming, drinking supply, and other uses.

The Clean Water Act’s main program for cleaning up these waters is the Total Maximum Daily Load Program. Do you support

this approach for cleaning up water pollution from point sources

and non-point sources?

Mr. GRUMBLES. Senator, I absolutely support the approach of the

Total Maximum Daily Load Program. That is a program that is a

planning tool to help reduce the amount of loadings to impaired

water bodies.
23

We have seen that the number of TMDLs has gone from only

1,000 or so over the last 6 years to approximately 10,000 today. We

not only support the implementation of that program, but we understand that this is just the beginning developing the pollution

budget.

The key is finding ways to accelerate the progress in cleaning up

those impaired water bodies. That is why we say that, in addition

to implementing the TMDL Program, which addresses point

sources and non-point sources, we need to look for smarter and better ways such as water quality trading, keeping the accountability,

but moving forward on reducing the number of impaired waters.

Senator JEFFORDS. Ms. Klee.

Ms. KLEE. Senator, if I were confirmed, my primary role would

be in ensuring that we were fully and fairly implementing the

TMDL Program, but beyond that is a pure philosophical matter. I

also strongly support it.

Senator JEFFORDS. This is for both of you again.

Would you be willing to develop a protocol concerning the sharing of budget and other financial information with this committee?

Ms. KLEE. Senator, I have only been at EPA for 4 days.

Senator JEFFORDS. I am sorry. That is for Mr. Johnson.

Ms. KLEE. OK. That is well beyond my scope of my knowledge.

[Laughter.]

Senator JEFFORDS. I am sorry for giving you that angst.

Ms. KLEE. That is OK.

Mr. CHARLES JOHNSON. Senator, I think I described my philosophy as being open and forthcoming. I intend to bring that to the

position, if confirmed. I believe that you should set forth protocols

because the anticipation of events and release of information

should be anticipated, not handled one at a time.

It would be my desire to do that. Once information is factual, we

know it is right, we know it is timely, the release of information

as far as I am concerned, if it is within my purview, it will be released promptly.

Senator JEFFORDS. Mr. Grumbles, in 2002 the President signed

into law the Great Lakes and Lake Champlain Act. In this year’s

budget the President asked for a funding increase to implement the

Act. This is the second year in a row that the President has managed to ask for funds to implement the Great Lakes section of this

Act, but has not managed to find any funds for our Lake Champlain.

I extend a permanent invitation to you to come to visit Lake

Champlain and to see the excellent work that is being completed

there by the Lake Champlain Basin Program.

Do you believe that protecting Lake Champlain is a priority? If

so, how would you implement this as Assistant Administration for

Water for EPA?

Mr. GRUMBLES. Senator, I know the importance of Lake Champlain to you, to the region, and to the country. I know that there

is great work that is going on and a number of challenges that are

there. I know there are many great water bodies throughout the

country that do not have specific set-asides or earmarked provisions in the budget or the budget request.
24

I can tell you that I have a great interest in Lake Champlain and

also in other watersheds. We do have in the President’s request

funding of $25 million for a targeted watershed program. We also

have additional funds for State and tribal innovative grants to help

advance environmental restoration. The criteria for that need to be

further developed.

There are various tools and funds in the budget to help get funds

toward important water bodies. I look forward to working with you

and your staff and through the various programs that we have. I

know full well that that is an important water body and the legislative background as well.

Senator JEFFORDS. Thank you.

Mr. Visscher, 2 years after we discovered that Al-Qaeda was interested in targeting U.S. chemical plants, reporters from 60 Minutes were able to wander unimpeded with their cameras into numerous chemical facilities.

If confirmed, would you encourage the Chemical Safety Board to

be more proactive on chemical security concerns? For example, investigating and making recommendations on how to prevent or reduce the threat and consequences of terrorist release in chemical

facilities?

Mr. VISSCHER. The 2004 Appropriations Conference Report calls

on the Chemical Safety Board to enter into an agreement with the

Department of Homeland Security for providing technical assistance and other means of assisting in that effort. I hope that that

agreement would take shape soon, pursuant to congressional direction.

I think that that is the right way to go. I am not sure at this

point what procedures are in place. Obviously it would be necessary for those to be highly confidential in any technical assistance role. But I think pursuant to congressional direction, that the

agreement with the Department of Homeland Security would address those issues. The Board has much technical knowledge about

chemical safety. So I think that would be the way to approach it.

Senator JEFFORDS. Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Jeffords.

Senator Thomas.

Senator THOMAS. Thank you, Mr. Chairman.

Mr. Johnson, obviously there is never enough money for agencies,

but we are faced overall in Government with perhaps better management of our money, as opposed to just more money.

Do you have any ideas? I know you are new at it, but how would

you approach business plans or some kinds of things that perhaps

would make us more efficient with the dollars that are spent?

Mr. CHARLES JOHNSON. I would begin with some of the future

planning, the long-term thinking. It is very obvious to me that

there are funding gaps in several areas. We had better capture that

to see trends and where we are going. I would start with a look

at where we are.

Then second, where do we want to be? How do we get from here

to there? That is a fundamental business plan. But we need to capture this on a longer period of time than 1 year at a time. It would

be my intent to add a great deal of future planning to the Office

of the CFO and to sincerely analyze these potential funding gaps
25

so that we all have the same information—the Administration,

Congress, and the EPA—will have that same information. We can

only address it if we have the facts.

I have always said that where an agency spends its money indicates its true priorities. So we need to make sure that we are

matching priorities with where our funds are being spent.

I think there is a lot of analysis to be done. Again, I do not want

to speak as an expert at this point, but I can tell you philosophically I believe more future planning is very appropriate at this

time.

Senator THOMAS. That is good.

I know it is difficult when implementing the law. It is your responsibility. But there should be priorities, should there not be, as

to what the major efforts ought to be?

Mr. CHARLES JOHNSON. Absolutely. Budgets are all about comparisons. I have never met a budget request that was not valid.

But somebody has to make hard decisions and set priorities. It has

to start with us. Certainly this body is heavily involved in that.

It is a collaborative effort. Priority setting is fundamental to it.

Senator THOMAS. Ms. Klee, do you think there is a possibility of

reducing the legal activity or the court activity by working more

closely with other groups, particularly local groups prior to going

to court?

Ms. KLEE. Senator, I think you got it right in your opening statement. I think we will never get rid of litigation altogether, but if

we do a better job of working in a collaborative way, involving local

communities and local groups, environmental organizations, the

private sector, and industry, we have a better chance at the end

of the day of reducing litigation, but never getting rid of it entirely.

Senator THOMAS. I am sure that is true.

Mr. Stephen Johnson, I am sure that you agree that most of your

decisions have to be based on science. However, there are often a

number of views as to what the science is.

How do you have defensible decisions with regard to science

when there are different views within the scientific community?

Mr. STEPHEN JOHNSON. Well, Senator Thomas I think you have

certainly hit the critical issue of science. The first is that the Agency needs to make sure that our decisions are based on and have

a foundation in sound science. In fact, I am very proud of the dedicated professionals at EPA and the scientific staff. I think we have

some of the world’s leading scientists, both in our regulatory programs and in our research and development office.

I think to help ensure that we find that appropriate foundation,

I think there are a number of steps that we have and expect to continue to take. One is that as we release our scientific analyses, that

they have the appropriate references, that they have the appropriate range of uncertainties that we have identified, and what the

uncertainties are in our science assessment.

And probably one of the most pivotal issues is making sure that

our science is subjected to peer review, both inside the Agency and

inside and across all of the scientific community within the Government, as well as the outside community, and are armed with an

open and transparent science progress, and open with overseeing
26

with peer review. I think that in the end we get the best science

that we have available.

Senator THOMAS. In Wyoming’s case the Department of Environmental Quality can really have jurisdiction. Are you comfortable

with that? Then what do you do? Oversee to see that Federal laws

are enforced but let the State actually do it?

Mr. STEPHEN JOHNSON. Absolutely. For many of our programs at

EPA, these are State-delegated programs. I am certainly supportive

of that. That is the way the legal framework is set about.

But more importantly, my experience across EPA is that it is important in our role to set the national standard. But really when

it comes down to it, we need a neighborhood solution. That is certainly, I would say, a philosophy that Administrator Leavitt from

his own experience as Governor, and certainly my experience at

EPA rings true as well.

Senator THOMAS. I am glad to hear that.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Thomas.

Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

I have a question for you, Mr. Grumbles, and for you Ms. Klee.

The controlling case with respect to the right of Members of Congress to access information is Murphy v. Army Department. This is

a U.S. Court of Appeals case. I want to read it to you. I want to

read you the key findings:

‘‘We find no basis in the statute or in public policy for distinguishing between a congressional committee and a single member

writing in an official capacity. All members have a constitutionally

recognized status entitling them to share in general congressional

powers and responsibilities, many of them requiring access to executive information.’’

So it seems to me what is being done by Mr. Grumbles—and I

want to ask you this, Ms. Klee, because you are going to be counsel—is, in effect, Mr. Grumbles is saying, that some internal Justice Department opinions ought to take precedence over the controlling court case.

Mr. Grumbles, first your response to that. How does it come to

be that some internal Justice Department opinion should take

precedence over the controlling U.S. Court of Appeals case?

Mr. GRUMBLES. First of all, Senator, I do not know if it is internal or not. I know it has been published and provided to agencies

since 1980. Then it was subsequently revised in 1984. Again, I

would just have to say at the outset that I have not read through

the Murphy case. I did not pretend to become, and never came

close to being, a FOIA expert.

Senator WYDEN. You did not read the controlling case before you

issued the October 27th letter?

Mr. GRUMBLES. I read parts of it. I read in detail the Justice Department guidance which went through some level of detail explaining that the position is that the Murphy case is distinguishable in various ways. It laid out arguments.

Senator what I did was to rely on the advice of counsel and the

understanding that the Agency’s position has been, and was in the

previous Administration, that notwithstanding the Murphy case,
27

there was detailed guidance from the Justice Department that

spelled out, ‘‘Well, here are the ways that it is interpreted. This is

what this means and what that does not mean.’’

I never personally became more involved in that issue from that

level. I basically was told and understood that the Murphy case is

distinguishable. The guidance that has been controlling across the

agencies and the Justice Department in 1980 and 1984 is that

when a Member of Congress is seeking information, our approach

at EPA and the congressional office, and not just my personal bias,

but the institutional position toward providing information to

Members of Congress, whether they are a chairman or members at

large, to always be as responsible as possible. And when issues

come up as to potentially sensitive documents, then look to what

the Justice Department guidance is and what the policy is.

That is what I did. It was referenced in my letter to Senator Jeffords and staff as a way to explain the basis upon which the determination was made for not providing all of the information. That

letter also accompanied information that we had been gathering

and had probably a couple dozen people working on to gather airrelated issues and other issues.

Senator WYDEN. Mr. Grumbles, I just find this more and more

curious with each one of your answers. You have told us that this

was your idea, No. 1. You did not read the controlling case, which

is not at all ambiguous. And you seemed to have had some conversations with people at various parts of the executive branch,

whether it is the Justice Department or the White House, but you

are not going to tell us whose name it is.

I just find this exceptionally irresponsible and, in effect, you are

all saying that these various positions from some parts of the executive branch would take precedence over a U.S. Court of Appeals

decision, which is unambiguous.

My question to you is the same one, Ms. Klee. As I told you yesterday, I was going to ask you your opinion of the October 27th letter. I want to give you that opportunity to offer it if you choose to

do so.

But tell me what you think of the practice of saying that a U.S.

Court of Appeals decision that is unambiguous should have less

weight than these various apparently ruminations within the executive branch on giving Members of Congress information?

Ms. KLEE. Senator, let me start by stating that as a former congressional staffer, I understand and appreciate how important the

congressional oversight role is, and in order for this committee, or

any committee to do its oversight function, it has to have access to

documents. So I understand that very important principle and I

support it.

As I mentioned to you last night, I have not reviewed any of the

case law, including the case that you cited, nor have I have had

a chance to review the DOJ guidance documents that are, as I understand it, interpreting those cases. Those guidance documents

have been in place since 1980 and updated periodically. But I have

not reviewed them.

If I were to be confirmed as General Counsel, I would anticipate

that one of my very important functions would be to work through

these issues with the committee to ensure that the committee gets
28

access to the documents that it needs to fulfill its oversight responsibility.

Senator WYDEN. I am not going to belabor this point, but again,

Ms. Klee, I just think that to have no opinion on this issue, which

is unprecedented and never took place when you were doing fine

work for this committee, makes it impossible for me to support

your nomination.

People ought to have opinions. They ought to know at least a

modest amount about the controlling case on an issue that has

clearly dominated this committee over the last couple of weeks. All

members on this side of the aisle have expressed their concern

about it.

I just think that the positions that we have heard today leave me

with many more questions than answers.

Mr. Chairman, I again want to say how important it is that I

think on a bipartisan basis we change this policy of non-cooperation with respect to information requests. I think that is what it

is. I think it will shut down the oversight process. I think it sets

a precedent that will be regrettable for both sides of the aisle.

Senator INHOFE. Senator Wyden, let me suggest something here.

We were going to have another 5-minute round. You are already

three-fifths of the way through the second round.

Go ahead and continue and take yours now.

Senator WYDEN. All right. I appreciate that, Mr. Chairman. I

know that Senator Thomas had a number of questions as well.

I want to ask Mr. Stephen Johnson one additional question.

Mr. Johnson, if I might, for you, we have had extraordinary difficulty getting information about Portland.

My questions that were asked on September 15th to Tracy

Mahan, the responses arrived last night. Basically whenever I have

the good fortune of Chairman Inhofe of scheduling a hearing, there

are months and months of delay, and we get a bit of information.

It somehow goes by the board.

I would like to know whether you are going to change this policy

and if it is going to be possible for us to get answer within 6 or

8 weeks rather than going through what seems to be bureaucratic

water torture to try to get these kinds of documents. What is going

to change on your watch?

Mr. STEPHEN JOHNSON. Senator Wyden, certainly I understand

and share your frustration. I think that we need as an Agency to

be responsive to your needs and to the committee’s needs. We

clearly need to improve.

As we had the opportunity to meet and talk about the Portland

situation, I was not aware of the specifics of it and what was certainly a lack of responsiveness on the Agency’s part. Charlie Johnson and I went back immediately. I know that we have been literally delivering boxes of information, as well as responding to specific questions.

What I intend to change and to work toward is to improve the

responsiveness of the Agency so that you have the kinds of information that you need. That is certainly what I want to work toward.

With regard to the issue that I have been talking with Mr.

Grumbles and Ms. Klee, I think it certainly is important.
29

You certainly have my commitment to work with you, Senator

Jeffords, and Chairman Inhofe to find a path forward. I am certainly not an expert. I have watched this in one sense from afar

through the years. I certainly understand the need of the committee and all committees for oversight. You need to have information to do that. You certainly have my commitment to work with

you, Senator Jeffords, and Chairman Inhofe to try to find a way

forward.

Senator WYDEN. My time is up. I would only say, Mr. Johnson,

it is not just the committee. This is about individual U.S. Senators.

We get election certificates and our constituents expect us to dig

into these programs and to make them work.

I felt that your comment about meeting to improve was constructive. But understand this has to run with respect to individual

members of the Senate.

I thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Wyden.

Let me just announce that it would be the intent a week from

tomorrow for this committee to have a business meeting and hopefully to have a quorum present. We would ask that all followup

questions be submitted by noon tomorrow. I know there will be followup questions from members of the committee.

Without objection, so ordered.

I had to step out while Senator Thomas was presiding and asking questions.

Mr. Johnson, the question he asked about sound science, there

is not a person at the table there or this table here who is not

aware that when I first became Chairman of this Committee that

was one of the things that I said we were going to have to have.

The notion that we will are going to be relying on sound science

is outrageous in some people’s minds.

But nonetheless we are going to do that. I am sure that all of

you would agree with the responses of Mr. Johnson, that that is

not unreasonable to assume.

That goes with your Board that you will be on, too, Mr. Visscher.

Mr. VISSCHER. Certainly.

Senator INHOFE. Good. Senator Jeffords.

Senator JEFFORDS. Thank you, Mr. Chairman.

I would like to talk about a serious problem in the District of Columbia. Mr. Grumbles, yesterday when we met in my office we discussed the Washington, DC. lead contamination issue.

When Administrator Leavitt was here at the budget hearing, I

offered him a drink of water. We have D.C. water.

I would offer you the same, all of you to take a nice sip of this

lead-loaded water. I would ask you this.

[Laughter.]

Senator JEFFORDS. One of the many failures in the Washington,

DC. situation is the complete failure of the public communications

apparatus to accurately and effectively communicate the appropriate level of health risk in this situation. One of the most frustrating for parents and pregnant mothers is the feeling of ‘‘if they

had only known, they would have been able to take action to protect their children.’’
30

Do you feel that this situation has been rectified in Washington,

DC.? How is the Agency ensuring that this event will not happen

again?

Mr. GRUMBLES. Senator, I would say that EPA is fully engaged

in overseeing vigorously the efforts in terms of compliance with the

Safe Drinking Water Act, and also the critically important aspect

you are mentioning, and that is the communications, the public

outreach, and restoring consumer confidence.

The Region 3 administrator is the primary EPA entity that is

overseeing the day-to-day efforts to comply. They are currently

working with the District government to improve the outreach and

have more meetings.

I can tell you from a national perspective, if there is a lesson to

be learned from this experience, it is that across the Nation, as we

look at the 1991 lead and cooper rule, we feel that it is even more

important to emphasize that the communications to the users, the

consumers of water in the communities across the country, get the

most helpful and robust information possible.

One of the items that we are very much engaged in is not just

working with the District on their outreach campaign of communicating to the public directly or indirectly, but it is also to see how

other communities across the country are doing.

You hit it right on the head that a key aspect of consumer confidence under the Safe Drinking Water Act and the lead rule is

that once these exceedances occur, you must shift into high gear

and let people know the risks and what steps they can take to minimize those risks and to completely prevent the risk.

Senator JEFFORDS. I am concerned because of the lack of information that is available. For instance, we are now buying bottled

water, but I find out that no one knows whether the bottled water

has lead in it or not. You cannot find that out.

When can you be sure that the water you are drinking is what

it ought to be?

Mr. GRUMBLES. With respect to the District of Columbia, I think

the key players involved in that, the key agencies and governmental entities, EPA Region 3, the City, and WASA are working

hard on that front. I think it is critically important that the advisory that the Mayor issued was done at the time he did it, to address certain groups such as pregnant moms and parents of young

children, that they should not be drinking water from their taps if

they have lead surface lines.

I know on a daily basis the key is to get the information out to

the public. I think we are very much in the midst of figuring out

and trying to solve the riddle over what contributed to the increase

in the corrosive nature of the water. We have a technical work

group on that front that is reaching conclusions. We have an independent peer group that is reviewing those conclusions to try to

help solve that problem.

But you are right. The key is to be able to say with confidence

that the water is safe to drink. I can say, even though I am not

the primary EPA official involved, that the data that we have received to date, really the Public Health officials’ data, is that this

is not a public health crisis, it is a very important public health
31

concern. We still do not know what has caused it, however and we

do not know the extent of the contamination.

The blood testing for lead levels has not indicated that it is at

levels that some might have thought several weeks ago.

Senator INHOFE. Senator Jeffords, I know you are aware of it,

but some of the rest may not be aware, that we are holding a Subcommittee hearing next week from Thursday on this very subject.

I know many of our other colleagues are equally interested in this.

Senator JEFFORDS. Thank you, Mr. Chairman.

Senator INHOFE. First of all, I thank you very much for your

being here today.

Our meeting is adjourned.

[Whereupon, at 11:04 a.m., the committee was adjourned, to reconvene at the call of the chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF STEPHEN L. JOHNSON NOMINATED TO BE DEPUTY ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman and distinguished members of this committee, I have the honor

and pleasure to appear before you today to seek your confirmation to serve as the

U.S. Environmental Protection Agency’s Deputy Administrator. Since joining the

Administration’s team at EPA, I have had the opportunity to visit with many of you

to discuss your environmental priorities and to share with you my vision for environmental progress. I thank you for your time. It has been an enlightening and rewarding experience, and I hope to continue to work closely with the committee,

should I be confirmed as EPA’s Deputy Administrator.

Now is an exciting time to work at EPA. Administrator Leavitt has quickly demonstrated an extraordinary grasp of today’s leading environmental issues, and his

vision has already become an inspiration for our employees and management team.

I am excited by the prospect of working with Administrator Leavitt in advancing

his four cornerstones toward a ‘‘better way’’ for the environment. They include facilitating collaboration, harnessing technology, creating market incentives—and a commitment to measuring progress, not process. Administrator Leavitt has two emerging themes echoing throughout the agency—increasing the velocity of improvement

and implementing ‘‘a better way.’’ The Administrator is challenging EPA to reach

new levels of environmental progress, and to do it in less time. I am proud to be

nominated by the President to work with Administrator Leavitt at such a pivotal

time in the Agency’s history.

The American people trust EPA to protect their families, communities, and the

land, air, and water where they live. I understand the enormous responsibility that

comes with that trust, and I will do everything in my power to make sure those

responsibilities are met. I have learned that the best way to fulfill our responsibility

is to promote transparency in our work and base our decisions on sound science.

While serving as Assistant Administrator of EPA’s Office of Prevention, Pesticides,

and Toxic Substances (OPPTS), one of my top priorities was implementation of the

landmark Food Quality Protection Act of 1996. The FQPA added new protections

against pesticides, especially for children, and established statutory milestones for

progress. During my 2 years at the helm, EPA met the law’s rigid deadlines for reviewing the safety of existing pesticides. How did we do it? We conducted extensive

outreach to stakeholders to improve our decisionmaking and to ensure broad support. We collaborated to ensure that EPA’s actions not only reduced risks from pesticides, but provided the agricultural community with the products they needed to

control pests. To support the process, we ensured expeditious and scientifically

sound testing and registration of new lower risk pesticides, especially products of

biotechnology. We were able to meet the ambitious goals of FQPA through a powerful combination of extensive collaboration, sound science, and new technology. It is

a success that I believe we can replicate in other programs across the Agency.

In my experience, these approaches can apply to a broad range of environmental

policy. For example, in the area of industrial chemical regulation, I worked to ensure the introduction of safe new chemicals as well as the protection of citizens

against hazards posed by lead, mercury, asbestos, PCBs and other existing pollutants used in industry and homes. We moved the voluntary High Production Volume

Chemical Challenge (HPV) from concept to reality. This program ‘‘challenged’’ chem-
32

ical companies to voluntarily generate and make public for the first time basic

health effects information on the 2,800 industrial chemicals produced in the greatest

quantities in the United States. Today hundreds of companies are submitting that

data, which is posted on EPA’s Web site. The collaboration brought together EPA,

industry and the environmental community in an unprecedented partnership to inform and protect the American public.

As I address these and other priority issues, I want to mention my personal operating philosophy and principles I will follow if confirmed as the Deputy Administrator. They include: advance the best science to support our regulatory decisions;

foster open communication and regular consultation with our stakeholders; build

strong and trusting relationships with all our customers, including Congress, States,

tribes, industry, the scientific community, other government agencies, the international community, and the consumer advocate community; and finally, promote

professionalism, dedication and diversity in the Federal work force.

These principles serve us well for the challenges we know are before us, but serve

even better for challenges we may never imagine. In the wake of September 11,

2001, we were able to focus the efforts of staff from various EPA offices on the additional goal of chemical and food safety from terrorist threats, as well as anthrax

cleanup. EPA staff joined forces with several other Federal agencies and even other

levels of government to effectively decontaminate anthrax at the Senate Hart Office

Building and the Brentwood Post Office in Washington, DC. We were able to quickly

step up to these new challenges precisely because at EPA we have fostered a culture

of collaboration, internally and externally, and we had the existing relationships

and networks necessary to succeed.

The success of our leadership team at EPA is inextricably linked to the productivity and creativity of the Agency’s staff. EPA has an exceptionally talented and

diverse work force. As the designee for Deputy Administrator, I believe I have a responsibility to invest in our people, promote professionalism and diversity, and prepare our work force for the future. This has been a longstanding interest of mine.

In 1998 I became a charter member of EPA’s newly reconstituted Human Resources

Council. I actively participated in the HRC even while serving as Acting Deputy Administrator. Over the years I have remained actively involved in a number of HRCsponsored activities including direct participation in supporting the Senior Executive Service Candidate Development Program. I promoted agency-wide human resources programs such as the Workforce Planning Strategy both in OPPTS and in

the Office of the Administrator. During my tenure at OPPTS, a number of progressive human resource programs were implemented to make OPPTS a ‘‘model’’ employer. For example, OPPTS pioneered an innovative employee rotation program

that allows mid-level employees the opportunity to compete for special assignments

that stretch and develop them professionally. I have been involved in EPA’s effort

to meet the objectives of the President’s Management Agenda, including the Strategic Management of Human Capital.

I would like to close with two personal observations. My family has a strong commitment to public service. My father served in the Department of the Navy for more

than 30 years. In fact, he and other family members are with me today in the audience. I’d like to thank all of them for making the trip to support me. Growing up,

I always admired my father’s government service. During college in the early 1970s,

I began my public service as a GS-4 intern, and I am proud to have worked in public

service for more than 20 years. This experience has led me to have a deep appreciation and abiding respect for the importance of reaching for excellence in government.

On another personal note, I have been fortunate to be able to devote the majority

of my career to environmental protection. For me, serving in the government, with

the goal of helping all Americans and their families, has been a distinct privilege.

When I reflect on my past service and consider the future, I know that I will face

difficult, complex, and serious issues. I have confidence that sound science and collaboration will lead to successful outcomes and best serve the American people. If

confirmed as Deputy Administrator, I pledge to work toward national goals with a

keen sense of the needs and realities of our individual families and communities.

I hope that my service will reflect positively on my children, their everyday choices,

and the community that each of us live in.

I appreciate your consideration of my nomination, and I look forward to working

with you on a bipartisan basis to advance the mission of protecting the environment.
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51

RESPONSE BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTION FROM

SENATOR INHOFE

Question. As OSHA moves forward with a rulemaking on exposure to hexavalent

chromium, will EPA be part of that process and will you commit to cooperating with

OSHA in evaluating the risk from hexavalent chromium in ACC?

Response. Yes, we are cooperating with OSHA regarding the rulemaking for exposure to hexavalent chromium. Through an existing Memorandum of Understanding

between EPA and OSHA, the two agencies have enjoyed many years of strong coordination and cooperation on several issues. In addition, EPA will coordinate this

issue through the OMNE (including EPA, OSHA, NIOSH, and the Mine Safety and

Health Agency) Committee which meets regularly to coordinate on a range of chemical issues that relate to occupational safety and health concerns.

With regard to EPA’s efforts to develop a risk assessment for the hexavalent chromium in acid copper chromate (ACC), we are working closely with OSHA and

NIOSH. OSHA’s Permissible Exposure Level (PEL) for the workplace will be an important consideration in our review of this chemical. In addition, the issue of dermal

sensitization, including as related to hexavalent chromium in ACC, will be presented to an EPA Scientific Advisory Panel (SAP) meeting on May 4–5, 2004. As

part of this process, EPA scientists are working jointly with OSHA and NIOSH scientists who have been invited to participate in the SAP.

RESPONSES BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1a. The High Production Volume Challenge Program, launched by EPA

in 1998, has made important progress in getting chemical manufacturers to voluntarily commit to fill gaps in basic screening-level hazard data for chemicals they

manufacture. Now that this data is beginning to be submitted, how does EPA plan

to use the information?

Response. EPA is already using and plans further to use the data being made

publicly available under the HPV program for a number of purposes. To assist the

Agency, the Office of Pollution Prevention and Toxics established a Federal Advisory

Committee called the National Pollution Prevention and Toxics Advisory Committee

(NPPTAC). We hope to obtain consensus recommendations from the NPPTAC concerning elements in an approach to setting priorities for the assessment of the HPV

Challenge Chemicals. The results of the screening will set priorities for risk management, risk assessment, or additional testing and information development. In addition, opportunities will be explored to integrate the HPV data into OPPT’s Pollution Prevention program through new initiatives based on the wealth of data that

will be acquired on many widely used industrial chemicals. This data will allow

EPA to better assess and manage the chemicals citizens are likely to encounter in

their everyday lives.

This data will also help promote more sustainable approaches to looking at both

the risk management of chemicals and the development of safer alternative chemicals or technologies—this will result in the Agency being better able to produce positive, measurable environmental results, more efficiently. The data will also help

other Federal and State entities and tribes in prioritization and assessment/management activities.

Another significant use of the data will be in Structure Activity Relationships

(SAR). The Agency is a world leader in the development and use of SAR models to

assess chemicals. The wealth of data received under the HPV Challenge program

will allow EPA to evaluate and strengthen the SAR models currently in use, such

as Quantitative SARs for environmental effects, and more importantly to significantly increase the pace of development of health effects SAR models. As SAR capabilities are further developed and expanded, the Agency will be able to more quickly

and reliably screen chemicals for a wide range of health and environmental effects

and environmental fate indicators such as persistence.

Question 1b. Further, when does EPA plan to finalize the December 2000 proposed rule requiring manufacturers of the first set of ‘‘orphan’’ chemicals to develop

hazard data, and when does the Agency plan to issue additional rules for the remaining ‘‘orphan’’ chemicals?

Response. EPA plans to issue the final test rule on the first group of unsponsored

HPV chemicals and hopes to issue a proposed rule for additional unsponsored

chemicals by the end of 2005.

Question 2. EPA recently acknowledged that the wood preservative acid copper

chromate (ACC) has not been evaluated using current safety standards. There is a
52

clear need to ensure that the health risks of ACC, including risks from oral ingestion and dermal absorption, are fully evaluated and subject to all appropriate testing. Will EPA assure us that the pending pesticide registrations for ACC will not

be granted before such a full and detailed evaluation has been completed?

Response. Yes, the Agency is working hard on resolving the outstanding questions

associated with the ACC registration applications. EPA is committed to developing

a solution that ensures that the most economic and environmentally safe woodtreatment products are available for consumers. On January 9, 2004, the Agency

sent letters to the potential manufacturers, Arch Wood Protection, Inc. and Forest

Products Research Laboratory, informing them that the Agency was unable to accurately assess the risks that may be associated with ACC without additional exposure information. The kind of data needed largely relates to how much chromium

people would be exposed to from treated wood. In order to facilitate the generation

of this new data, on March 3 the Agency staff met with the applicants. To date,

the Agency has not received the requested data. Absent of any other new information that would resolve the Agency concerns, EPA needs the information identified

in the January 9 letter before it can accurately and thoroughly assess the potential

risks and reach a decision on the applications.

Question 3a. In your written testimony, you state that the High Production Volume (HPV) program challenged chemical companies ‘‘to voluntarily generate and

make public for the first time basic health effects information on the 2,800 industrial chemicals produced in the greatest quantities in the United States. Today hundreds of companies are submitting that data, which is posted on EPA’s Web site.’’

My understanding is that the data available on EPA’s HPV webpage are summaries

of pre-existing data, as opposed to newly generated data to fill the information gaps.

Is this correct?

Response. Most of the initial data posted on the website was existing data that

had been in company files and had not been publicly available. The Agency wanted

to make that data available as soon as possible. The more recent posting include

newly generated data that has been developed in response to the HPV Challenge

Program.

Question 3b. When does EPA plan to establish a repository data base so that the

new data can be made publicly available?

Response. The Agency plans to have the data base available by early 2005. At the

present time, there is an effort underway to enhance this data base with additional

search capabilities. The Agency is working with some of the NPPTAC members, industry data submitters, environmental organizations, and State representatives to

ensure that the data base is as useful as possible. When available, the relational

data base will house the data previously submitted under the program as well as

all new data.

Question 4. You testified that EPA did not conduct a ‘‘complete or thorough evaluation of the potential benefits’’ of REACH. Please provide a copy of whatever evaluations EPA has conducted to date regarding the public health and environmental

benefits of REACH.

Response. EPA has consistently stated that it supports the goals of the EU’s

REACH proposal. EPA recognizes that the EU has the right to determine the levels

of protection it deems appropriate for its citizenry. In that vein, EPA’s role in the

review of the proposed and revised legislation was with respect to our experience

as regulators of new and existing chemicals and with the workability of the proposal. EPA has had an ongoing dialog with the European Commission regarding the

development of the REACH proposal. It has been a collaborative process where the

EPA has provided technical guidance and feedback to commission staff on various

components of the REACH program, many of which are new elements in the EU’s

regulatory approach to chemicals but for which EPA has had long experience (e.g.,

polymers, intermediates, compensation procedures for sharing testing costs, etc.). At

the request of European Commission staff, the Agency has provided copies of relevant U.S. Federal Register notices and text from the Code of Federal Regulations,

and other information on the approaches and tools we use here in the U.S. to address such matters. The working relationship has been a positive and productive bilateral effort. EPA has not done an analysis of environmental or public health benefits of the REACH proposal.

Question 5a. You testified that you met with public health and environmental organizations to discuss the development of the U.S. position on REACH. Please provide the names of any public health and environmental organizations with whom

you (or senior EPA management) met, the names of the individuals attending, and

the date and location of the meetings to discuss REACH. Please provide the names
53

of any industry or other non-governmental organizations with whom you (or senior

EPA management) met, the names of the individuals attending, and the date and

location of the meeting to discuss REACH.

Response. The following is a list of the majority of meetings held on REACH with

external parties, however the Agency will continue its work to determine if there

are any other such meetings.

January 2002, Arlington, VA Transatlantic Business Dialogue Charles Auer, EPA,

Officials from European Commission, Rob Donkers, Reinhard Schulte-Braucks, industry, and the public

June 13–14, 2002, Paris CEFIC Conference Delivered keynote address on U.S. approaches to chemicals management Steve Johnson, EPA

Sept. 13, 2002, Washington DC Meeting on EU Chemicals Policy with WWF Cliff

Curtis, World Wildlife Fund (WWF), Charlie Auer and Susan Hazen, EPA

Sept. 24, 2002, Washington DC Meeting on EU Chemicals Policy Susan Hazen

and Charles Auer, EPA, met with American Chemistry Council representatives Joe

Mayhew and Mike Walls

Nov. 7–8, 2002, Chicago Transatlantic Business Dialogue Steve Johnson and

Charles Auer, EPA, met with transatlantic officials from Directorate General (DG)

Trade, Enterprise and Environment, business and the public

Sept. 30–Oct. 2, 2002, Brussels Discussions with EC, UK & other countries, industry and ENGO’s, to exchange information on aspects of regulatory programs and

current environmental issues including REACH, POPs, PIC, asbestos, Octa-BDE,

and other issues Susan Hazen and Charles Auer, EPA, met with DG Environment

Catherine Day, Eva Hellsten, Rob Donkers; DG Enterprise Reinhard SchulteBraucks, Countries UK and country representatives to the EC , Industry Alain

Perroy of CEFIC, and other industry representatives, ENGO’s representatives from

WWF, Michael Warhurst; Greenpeace; Jorgo Iwasaki-Riss; and European Environment Bureau, Stephan Schuer

Dec. 2–5, 2002, Brussels Discussions with EC, UK & other countries, industry and

ENGO’s Stephen L. Johnson, Charlie Auer & Breck Milroy, EPA; DG Environment

and Trade Business Roundtable; Country Representatives to the EC; ENGO’s WWF,

Michael Warhurst; and EEB, Stephan Scheuer, Roberto Ferrigno; and Members of

the EU Parliament

Jan. 30, 2003, Washington, DC Trade and Environment Policy Advisory Committee, Co-chaired by USTR and EPA Linda Fisher, EPA, met with members, including several NGO’s among other groups

June 3–5, 2003, Brussels Steve Johnson and Breck Milroy, EPA, met with DG Environment, Health & Enterprise; Italy Rep. to the EC; Business Roundtable and European Environment Bureau

Sept. 15, 2003, Stockholm International Chemical Control Policies Approach to

the Sound Management of Chemicals Susan Hazen, EPA, met with participants and

attendees including DG Environment; Sweden; UK; CEFIC; WWF; academia; etc.

Oct. 6–9, 2003, Brussels Discussions with European commission staff and others

Susan Hazen, Charles Auer, and Breck Milroy, EPA; DG Environment, Members of

European Parliament

Oct. 21, 2003, Washington DC Lowell Center for Sustainable Production Various

EPA staff met with Joel Tickner & Ken Geiser with other European Experts &

ENGO’s

Nov. 5, 2003, Washington, DC Trade and Environment Policy Advisory Committee, Co-chaired by USTR and EPA Judith Ayres, EPA, and members including

several NGO’s among other groups

Question 5b. In the future, what process does EPA, or the REACH interagency

task force of which EPA is a member, intend to use to gather input from the environmental and public health community to ensure that the US position on REACH

reflects a balanced set of views?

Response. EPA remains open to meeting with all interested parties on various

health and environment issues, and will seek input via appropriate means where

necessary to ensure that the Agency understands the range of stakeholder views.

EPA notes that a wide range of views on the REACH issue have been solicited

through various advisory committees established and supported by other agencies.

This is the typical process used for matters that affect U.S. commerce and at least

one of the advisory committees is dedicated to trade and environment interests

while other functional or sectoral committees include representatives of the broader

public, including manufacturers, small business, service providers and environmental, consumer and/or health organizations. EPA notes that the U.S. did encourage all interested parties to comment on the proposed REACH as the European

Commission (EC) conducted an internet consultation process in May to July 2003.
54

In response to this internet consultation, the EC received approximately 6,400 comments from governments, industry, and other organizations worldwide.

Question 5c. Please clarify whether support by environmental and public-health

groups for focusing on high-volume chemicals was in the context of the U.S. HPV

program, or whether such groups also supported restricting the scope of REACH to

focus solely on high-volume chemicals. If the latter, please provide specific details

of which environmental and public-health groups voiced such support.

Response. Environmental and public health groups have supported the focus on

high production volume chemicals in the context of the U.S. HPV program. Recognizing the need to set priorities with such a large number of chemicals, the HPV

priority screen identified a workable first tier.

Question 6. In your testimony, you cited the existence of 90,000 chemicals used

commercially in the U.S. My understanding is that approximately 90,000 chemicals

have been registered with the government, but the true universe of chemicals actually used in commerce is significantly smaller. For example, the number of chemicals reported on the TSCA Inventory (namely, those produced above 10,000 lbs annually aggregated across all producers) is only about 15,000. Is this correct?

Response. There are approximately 90,000 chemicals on the TSCA Inventory and

of these, approximately 20,000 are new chemicals that have been added since the

original inventory. In 1986, EPA promulgated the Inventory Update Rule (IUR), for

the partial updating of the production volume data reported to the Inventory. The

rule required manufacturers of nonpolymeric organic chemical substances included

on the Inventory to report current data on the production volume and the information on these substances if produced or imported at levels of 10,000 pounds or more

per year per site. Based on EPA’s analysis of the IUR data, there are about 13,000

organic chemicals in commerce at or above this level of production. There are an

estimated 2,000 inorganic chemicals that might be produced above 10,000 lbs per

site, resulting in approximately 15,000 non-polymeric chemicals that are of interest

for priority setting purposes.

The 15,000 estimate does not include organic or inorganic chemicals produced

below 10,000 lbs nor does it include polymers and there are approximately 28,000

polymers among the Inventory chemicals.

Question 7. You stated in your testimony that the revised version of REACH now

focuses on the appropriate chemicals of concern. Do you view REACH’s revised provisions as consistent or inconsistent with the express policy statement in section

2(b)(1) of TSCA that ’adequate data should be developed with respect to the effect

of chemical substances and mixtures on health and the environment and that the

development of such data should be the responsibility of those who manufacture [defined to include import] and those who process such chemical substances and mixtures.’? If inconsistent, please explain.

Response. The Agency believes the statement of U.S. policy in section 2(b)(1) of

TSCA that ‘‘adequate data should be developed with respect to the effect of chemical

substances and mixtures on health and the environment and that the development

of such data should be the responsibility of those who manufacture and those who

process such chemical substances and mixtures’’ is consistent with aspects of

REACH addressing the development of data.

RESPONSES BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM

SENATOR LIEBERMAN

Question 1. What steps has EPA undertaken over the last 12 months to step up

its pollution prevention activities?

Response. The Agency remains committed to the goals of pollution prevention and

in the past year alone, has taken dramatic steps. One significant effort is the launch

of an exciting new program—the Green Suppliers Network (GSN)—with industry

aimed at greening the supply chains of major corporations involved in automobile,

aerospace, office furniture and healthcare/pharmaceutical manufacturing sectors.

Working collaboratively with manufacturers, the States, and in partnership with the

Manufacturing Extension Partnership program in the Department of Commerce, the

Agency and the business community are finding numerous pollution prevention (P2)

opportunities within supply chains.

EPA continues to achieve significant Pollution Prevention cooperation with the

Healthcare industry through the voluntary Hospitals for a Health Environment

(H2E) program. To date, there are more than 2,200 health care facilities participating in the program and hundreds of other organizations, including the Dept. of

Veterans Affairs and 14 State governments that have joined the H2E effort to vir-
55

tually eliminate the use of mercury and reduce the overall waste in the health care

industry.

The Agency is also committed to greening the Federal Government and as part

of this effort, this year launched a broad initiative within EPA to make mandatory

the purchasing of green office products and supplies. In addition, the Agency has

established an online directory of environmentally preferable products and services

available for sale under a pre-negotiated blanket purchase agreement (BPA) with

a commercial vendor. EPA believes that leading by example and developing tools

and providing assistance will encourage others in the Federal family to join in this

effort.

The Agency also remains committed to the on-going development of new tools to

be used to further advance pollution prevention. For example, EPA’s Sustainable

Futures program offers powerful chemical screening tools to industry, together with

training, technical assistance, regulatory incentives and assistance to small businesses. EPA helps chemical companies use these tools, generally known as Structure Activity Relationships (SAR), at R&D to compare alternatives for risk-related

considerations, potentially leading to the development of safer chemicals and therefore, P2 outcomes. Already recognized as a world leader in the development and use

of Structure Activity Relationships (SAR), this effort further builds on our commitment to assist industry with prevention tools. Companies participating in Sustainable Futures indicate that the program can significantly reduces product development costs, reduces generation of chemical waste, reduces regulatory uncertainty

and reduces time to market. Industry has conducted over 20,000 analyses using

Sustainable Futures tools in the last 12 months. Other significant efforts in the past

year include: • Design for the Environment (DfE)—partnership a voluntary program with industry that promotes integrating cleaner, cheaper, and smarter solutions into everyday business practices to assist the furniture manufacturing industry with the development of safer fire retardant materials following the voluntary phaseout of a

number of the existing chemicals presently being used. • EPA’s Office of Pollution Prevention and Toxics (OPPT) established a committee

under the Federal Advisory Committee Act (FACA), in part, to provide consensus

recommendations from a balanced group of stakeholders on issues relating to implementation of TSCA and the Pollution Prevention Act. As part of this effort, the National Pollution Prevention and Toxics Committee (NPPTAC) is exploring pollution

prevention areas for potential advice and recommendations to EPA/OPPT focusing

on enhancements and future directions for further integrating pollution prevention

in our programs. The consensus recommendations from this balanced group of

stakeholders will assist in elevating pollution prevention as the first principle in the

hierarchy for protecting human health and the environment. • Major P2 Conference scheduled for April 2004. EPA and the National Pollution

Prevention Roundtable, are co-hosting the National Environmental Assistance Summit 2004. This meeting will bring together over 500 environmental assistance providers and Agency and industry representatives with the goal of developing partnerships and exchanging information that will accelerate the positive environmental

impacts of compliance assistance, pollution prevention and other innovations.

Question 2. What has EPA done to facilitate the development of industrial biotechnology applications that can prevent pollution?

Response. EPA strongly supports finding newer ways to advance the agenda of

environmental protection. Many of EPA’s voluntary programs do just that. Programs

such as the Green Chemistry Challenge, for example, are aimed at encouraging industry to develop and implement pollution preventing technologies in the traditional

chemicals sectors as well as in the biotechnology sectors. Biotechnology offers the

potential for safer product alternatives and lower hazard manufacturing methods

and also the development of technologies for converting renewable resources to energy, fuels, and commodity chemicals. As an incentive, EPA has provided awards

through the Green Chemistry Challenge Program for innovative bio-based products,

including several reduced-risk pesticides.

Question 3. Has EPA undertaken, or is EPA planning to initiate, activities to educate the manufacturing about new biotech and other pollution prevention tools that

are becoming available?

Response. The use or substitution of biotechnology in certain industrial processes

is an example of the newer approaches that can be used to reduce energy inputs

and waste outputs. Because the reduction of energy inputs and waste outputs can

represent monetary savings for companies, the Agency believes that outreach and

education are efficient methods for quickly disseminating knowledge of the potential

benefits of industrial biotechnology throughout industry. As an example of this kind
56

of targeted outreach and education effort, EPA is working with its various partners

in pollution prevention activities to create a workshop on Industrial Sustainability

for the National Environmental Assistance Summit scheduled for April 21, 2004.

The Summit, a joint EPA and National Pollution Prevention Roundtable effort, is

a conference that will attract representatives from States, industry, environmental

assistance providers and many others. The workshop, entitled Industrial Sustainability through Biotechnology, will present and discuss biotechnology as it encompasses the use of biological processes to perform specific manufacturing processes

in the industrial, agricultural, and pharmaceutical sectors. Recent work shows that

biotechnology has tremendous potential to increase sustainability in industry and

reduce pollution, through reducing both energy inputs and waste output.

Additionally, EPA has an innovative partnership with the National Institute of

Standards and Technology’s Manufacturing Extension Partnership (MEP) called the

Green Suppliers Network (GSN). This program utilizes MEP’s State partners to provide assistance that enables large manufacturers to actively engage all levels of

their supply chain in the development of good business approaches to prevent pollution. GSN improves performance, minimizes waste generation and removes institutional roadblocks through its innovative approach to leveraging MEP’s national network of manufacturing technical assistance resources. With GSN support, suppliers

can learn how to improve their products and processes, increase energy efficiency,

identify cost-saving opportunities, and optimize resources and technologies with the

aim of eliminating waste.

Question 4. Would congressional direction assist in accelerating the use of industrial biotechnology in EPA’s Pollution Prevention program?

Response. Because there a number of initiatives presently underway that will increase and promote the integration of biotechnology and pollution prevention, congressional direction is not necessary at this time. The Agency welcomes continued

participation from the Committee on this issue.

RESPONSE BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTION FROM

SENATOR CLINTON

Question 1. As the former Assistant Administrator for OPPTS you are very familiar with the me-too registration process and the science EPA requires to determine

the safety of wood preservative chemicals. On January 9, 2004, Antimicrobial Division Director Frank Sanders set forth an extensive set of data requirements to determine the risks associated with the hexavalent chromium contained in acid copper

chromate (ACC), an old wood preservative chemistry for which a me-too registration

is now being sought. Can you assure this Committee that, under no circumstances,

will EPA grant a me-too registration for ACC prior to receiving and reviewing all

the scientific data requirements set forth in Director Sanders’ January 9, 2004 letter?

Response. Yes, the Agency is working hard on resolving the outstanding questions

associated with the ACC registration applications. EPA is committed to developing

a solution that ensures that the most economic and environmentally safe woodtreatment products are available for consumers. As you mention, on January 9,

2004, the Agency sent letters to the potential manufacturers, Arch Wood Protection,

Inc. and Forest Products Research Laboratory, informing them that the Agency was

unable to accurately assess the risks that may be associated with ACC without additional exposure information. The kind of data needed largely relates to how much

chromium people would be exposed to from treated wood. In order to facilitate the

generation of this new data, on March 3 the Agency staff met with the applicants.

To date, the Agency has not received the requested data. Absent of any other new

information that would resolve the Agency concerns, EPA needs the information

identified in the January 9 letter before it can accurately and thoroughly assess the

potential risks and reach a decision on the applications.

STATEMENT OF ANN R. KLEE, NOMINATED TO BE GENERAL COUNSEL,

ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, members of the Committee: Thank you for providing me with the opportunity to appear before you today. It is a great honor and

privilege to be here today as the President’s nominee to be General Counsel of the

Environmental Protection Agency. On a personal note, as a former Chief Counsel

to this Committee, it is also a pleasure to be back sitting at counsel’s table.
57

The Office of the General Counsel plays an important role in ensuring that our

environmental policies and programs are fully and fairly implemented, supported by

law, and advance the goals of protecting public health and the environment. That

is a significant responsibility and one that I take seriously. I know from my experience as an environmental lawyer that the environmental issues we face today—from

reducing air emissions of hazardous pollutants to controlling nonpoint source pollution to protection of our natural resources—are increasingly complex and contentious. Solving those issues will require that we work together with open minds to

seek creative solutions, encourage partnerships, and emphasize results. If I am confirmed, I pledge to you that I will do everything in my power to work with the dedicated and expert staff in the Office of the General Counsel to provide Administrator

Leavitt and the program offices with sound, unbiased legal analysis to achieve the

Agency’s mission of protecting human health and safeguarding the environment.

And I pledge to work with you and your staff in carrying out our shared goal of

environmental protection.

I have had the privilege over the past 18 years to practice environmental law from

several different perspectives: as an associate and then a partner in private practice,

as a Hill staffer, and most recently, as a senior executive at the Department of the

Interior. I learned firsthand that litigation is only one tool and, usually not the best

one, to solve problems; that bringing parties together to talk through issues often

leads to innovative solutions; and that when Congress and the Administration work

together, they can accomplish tremendous things.

I started my career as a litigator. My most significant case, and certainly one of

the highlights of my career, involved a groundwater contamination problem in

South Florida. Our client was the city of Delray Beach, which was forced to shut

down a number of its drinking water wells after detecting high levels of various industrial solvents. After 2 years of developing the technical case and a 4-week jury

trial, we were able to identify the source of the contamination—a company that had

been dumping used solvents on its property for years—and obtain a $8.7 million verdict under State law on behalf of the City for cleanup costs and future operation

and maintenance of the treatment structures. The City won the lawsuit, but in reality, the litigation did little to achieve real results. To my knowledge, the city of

Delray Beach still has not collected on the judgment.

My experience on the Hill underscored for me the importance of collaboration and

outreach to those with potentially differing viewpoints. During my first week as a

Senate staffer, this Committee reported out the Safe Drinking Water Act Amendments. One year later, the Senate passed the bill (S. 1316) by a vote of 99 to 0,

and it was signed into law a year later by President Clinton. That legislation was

developed with strong bipartisan support and with the active support and engagement of the Administration. It improved public health, reduced unnecessary costs,

encouraged voluntary measures to prevent contamination of water supplies, and incorporated risk assessment principles. To my mind, the Safe Drinking Water Act

Amendments of 1996 demonstrates that dialog, partnerships, and innovative thinking are the path to better environmental protection. The Safe Drinking Water Act

served as a model for me on virtually every legislative project that I worked on

while serving as Chief Counsel of the Environment and Public Works Committee

and to this day. If I am confirmed, I would hope to continue a collaborative relationship with the Committee and its staff as we work through the challenging legal

issues we face today.

For the past 3 years, I have served at the Department of the Interior as Counselor

and Special Assistant to Secretary Gale Norton. I have observed daily how collaboration and partnerships can achieve significant results on the ground. I have

worked with landowners who want to take proactive measures to protect wildlife

and their habitat; I have coordinated Departmental efforts to enhance habitat and

preserve species, while providing water to farmers and cities; and I have led negotiations with States and Tribes to enhance and restore public and private lands. As

Counselor to the Secretary, I led the Department’s efforts to restore the Florida Everglades and am particularly proud of what we were able to accomplish in just the

past 3 years by working with our partners in the State and local governments, environmental organizations, and private sector. As this Committee knows, Everglades

restoration is truly a complex venture, raising difficult legal and practical questions

relating to land management, environmental protection, flood control, and growth

management. The parties are working through these issues together, though. The

result is that we now have a legal framework in which to implement individual restoration projects; we have acquired and preserved thousands of acres of Everglades

habitat; and have begun construction on the first Everglades restoration project.

I use these three examples from my past environmental practice—Delray Beach,

the Safe Drinking Water Act, and Everglades restoration—because I think that they
58

best illustrate how I approach environmental issues. I believe strongly in the framework of our environmental laws and regulations and in the enforcement of those

laws and regulations. Litigation, whether in defense of a regulatory program or in

the context of an enforcement action, remains an important tool for ensuring environmental protection. At the same time, however, I believe that we should always

look for opportunities to go beyond just what the law requires. My experience has

always been that communities, businesses, and individuals, when given the chance

and some encouragement, will step up to the plate and come up with a better way

of protecting and enhancing our environment. My job as a lawyer is to help make

that happen.

Throughout my career, I have strived to think independently, respect the rule of

law, act in accordance with the highest ethical standards, and use sound judgment

and common sense. I try to listen to all sides of an argument, respecting the views

of those with different perspectives, before making a judgment. My goal is to lead

by example and learn from others. I hope to have that opportunity in EPA’s Office

of General Counsel.

Thank you, Mr. Chairman and members of the Committee. I would be happy to

answer any questions that you may have.
59
60
61
62
63
64
65
66
67
68
69
70
71
72

RESPONSES BY ANN R. KLEE TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. As you may know, the POPs Convention will enter into force in May,

but the United States is still not a party. This Committee adopted legislation in

July 2003 amending the Toxic Substances Control Act in order to implement the

POPs Convention. As I understand it, the Administration is raising constitutional

concerns with provisions that require domestic notice and comment when new

chemicals are proposed for control under the POPs Convention.

However, there are currently U.S. laws implementing international agreements

that require executive agencies to act in response to decisions taken by an international body, such as the Clean Air Act provisions that require EPA to issue regulations if the parties to Montreal Protocol agree to hasten the phase-out schedule

for certain substances.

There are similar provisions in the implementing legislation for the Chemical

Weapons Convention and the North American Free Trade Agreement. Do you think

that all of these provisions are unconstitutional, and would you so advise the Administrator?

Response. I am aware that the United States is a signatory to the Convention on

Persistent Organic Pollutants (POPs Convention). I also understand that certain

conforming legislative amendments to the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) and the Toxics Substances Control Act (TSCA) are required

for ratification. I have been told that EPA is working closely with Congressional

staff of the House and Senate committees of jurisdiction to draft mutually agreeable

text for amendments to those statutes in order to ratify the POPs Convention as

soon as possible.

I am not familiar with the constitutional issue that you raise. With regard to constitutional issues raised in the context of legal issues arising at EPA, I would expect, if confirmed, to advance EPA’s interests while coordinating closely with the

Department of Justice. If confirmed, I further pledge to work with the Committee

and staff to resolve any legal issues relating to implementation of the POPs Convention. .

Question 2. Under Section 302(g) of the Clean Air Act, ‘‘the term ‘air pollutant’

means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of

any air pollutant, to the extent the Administrator has identified such precursor or

precursors for the particular purpose for which the term ’air pollutant’ is used.’’

Is carbon dioxide a ‘‘chemical substance’’? Is carbon dioxide ‘‘emitted into the ambient air’’? If carbon dioxide is a ‘‘chemical substance which is emitted into the ambient air,’’ then it seems to fall within the Clean Air Act’s definition of an air pollutant, don’t you agree?

Response. I understand that on August 28, 2003, OGC’s General Counsel, Robert

Fabricant, signed a legal opinion in which he concluded that the CAA does not authorize regulation of carbon dioxide or other greenhouse gases to address climate

change. Based on his belief that the CAA did not authorize regulation to address

climate change, Mr. Fabricant also concluded that carbon dioxide was not an air pollutant under the Clean Air Act’s regulatory provisions.

Given that the Agency has expressed a position on the scope of the applicability

of Section 302(g) of the Clean Air Act with respect to carbon dioxide, I would not

anticipate revisiting that position at this time.

Question 3. It is my understanding that section 112 of the Clean Air Act lists mercury as a hazardous air pollutant subject to regulation. It is also my understanding

that EPA concluded in its published finding in the year 2000 that regulation of mercury from power plants was ‘‘appropriate and necessary’’ within the meaning of section 112. Do you agree that as a matter of law—absent withdrawal of the regulatory

determination which has not occurred—the Agency is therefore obligated under section 112 to regulate mercury emissions from power plants by prescribing the maximum achievable control technology and requiring its installation?

In the 1998 settlement agreement between the Natural Resources Defense Council and the EPA the Agency committed to promulgating a section 112 standard for

mercury emissions from power plants by December 2003. The Agency’s recent proposals related to mercury are not consistent with the Agency’s commitments under

that agreement.

As the official at EPA responsible for signing off on legally binding settlement

agreements, I assume it would be your intention to abide by these agreements according to their terms.
73

Would you expect that the Agency would abide by settlement agreements to which

it is a party even if those agreements were signed by a prior Administration?

Response. I am aware that in January of this year, EPA issued two proposals to

regulate mercury emissions from utilities, including a proposed MACT standard for

mercury emissions. I am not familiar with the legal theories articulated as a basis

for those proposals. I am also unfamiliar with the details of the settlement agreement that you reference addressing mercury emissions. If confirmed, however, I

would expect to review any legal issues raised by the final regulations governing

mercury emissions to ensure compliance with the Clean Air Act and consistency

with the settlement agreement.

As a general matter, if confirmed as General Counsel, I would strongly advise

EPA client offices to abide by the commitments made in either settlement agreements or consent decrees. That advice would not depend on when the commitment

on behalf of the Agency had been made.

Question 4. The EPA General Counsel is responsible for providing legal advice to

the Agency, including alerting top management when options under consideration

involve significant legal risk. On occasion, potential policies are not just risky, but

squarely counter to Federal law. As a Presidential appointee confirmed by the US

Senate to uphold the Constitution and the law of the land, will you commit to forcefully objecting if the Administration wants to pursue policies that are legally indefensible?

Response. As I stated in my confirmation hearing, one of the attributes that I believe that I bring to this job, if confirmed, is that of independent judgment. I agree

that if I were to become the General Counsel, an important aspect of that job is

ensuring that policy decisions are informed by a thorough understanding of the legally available options and of the risks associated with those options. I would not

be hesitant to express those views.

STATEMENT OF CHARLES JOHNSON, NOMINATED TO BE CHIEF FINANCIAL OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, and Members of the Committee, it is a great

privilege to appear before you today as the nominee of President George W. Bush

to serve as Chief Financial Officer (CFO) of the Environmental Protection Agency

(EPA). It is also a privilege to seek concurrence from this Committee that I am

qualified, both by skills and by personal character, to hold this trusted position. If

recommended to and confirmed by the U.S. Senate, it will be a further privilege to

again associate with Michael O. Leavitt, Administrator of the EPA and a man I

deeply respect.

As I begin, let me thank you and your staffs for every courtesy extended to me

in the preparation for this hearing. At all times I was treated respectfully and professionally and, if confirmed, it will be my intention to reciprocate in working with

you and your staffs.

The Office of the Chief Financial Officer at EPA is core to the success of the Environmental Protection Agency. The CFO Office Mission Statement reflects its comprehensive responsibilities for developing, managing, and supporting an Agencywide goals-based system that involves strategic planning and accountability for environmental, fiscal, and managerial results. How an agency spends its money reflects its true priorities. As part of the management team, the CFO oversees budget

formulation, preparation, and execution and is accountable for resources management and financial management functions that include analysis and annual planning, as well as controls and systems for payroll and disbursements. The office of

the CFO is also responsible to look to the future and aid the management team in

long-term thinking.

With 31 years in the practice of public accounting, including service as a member

of the Board of Directors of one of the nation’s largest firms, I believe I have demonstrated the financial competence as well as managerial leadership abilities to assume such a post. As Utah’s Director of the Office of Planning and Budget, and as

then Governor Leavitt’s Chief of Staff, I have demonstrated these same qualities in

the public sector. I take the public accountability very seriously.

I have learned much from my past experiences. I have developed financial skills

from my years in public accounting that will guide me in the fiduciary responsibilities over the Agency’s financial resources. I know from my government experience

of the need to be up-front and open in providing information to constituencies. I

have learned that all budgets are exercises in comparisons and hard choices have

to be made. From my service as Chair of the Utah State Board of Regents, I have

found the continuing need to allocate funds to programs and necessary research and
74

to reduce unnecessary administrative costs. From my day-to-day dealings with citizens, I have found taxpayers willing to give government responsibility over their

taxes only when they believe that spending goes for the common good of the country

and to the benefit of its citizens.

The past has been excellent preparation for the job to which I have been nominated.

That being said, I know the broad array of financial issues confronting EPA are

more than just complicated financial questions. They are, fundamentally, the questions that address EPA’s stewardship of the nation’s air, water, and land. Being true

to the fiduciary responsibilities I mentioned earlier is the best way I know for me

to help EPA fulfill this stewardship role.

It is clear that the EPA has many large and complex issues before it. But it is

also clear that addressing these issues successfully will require the collaboration of

everyone in this room. As Administrator Leavitt said in his confirmation hearing,

‘‘Every significant step of environmental progress . . . has been a product of collaboration.’’ I want to be a catalyst for collaboration. I want to do this to serve the Administration, the Administrator, and the American people.

I also would like to say what a pleasure it will be to be associated with the men

and women that make up the staff of the Office of the CFO. They are a very dedicated group of people, equally focused on their profession and their professionalism.

They care about immediate tasks and ultimate goals in pursuit of EPA’s mission.

I will be proud to serve with each and every one of them.

Mr. Chairman, I have spent a lifetime in building trust, confidence, and respect

for moments such as this and I want you to know that if I am fortunate enough

to be confirmed, I look forward to serving the people of the United States of America

to the best of my ability. I again thank you and the Members and staff of this Committee for every courtesy extended to me and am ready to address any questions

you and the Members of this Committee may have.

Thank you, Mr. Chairman.
75
76
77
78
79
80
81
82
83
84

STATEMENT OF BENJAMIN GRUMBLES, NOMINATED TO BE ASSISTANT ADMINISTRATOR

FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, Members of the Committee, thank you for the

opportunity to testify before you today as the nominee for the position of Assistant

Administrator for Water at the United States Environmental Protection Agency. I

am grateful to President Bush, Administrator Leavitt, and to this Committee for

considering me for this position and its challenging and exciting responsibilities.

Since 1985, I have been blessed with several opportunities to serve in the House

of Representatives as Counsel to the House Transportation and Infrastructure Committee, Subcommittee on Water Resources and Environment, and as Deputy Chief

of Staff and Environmental Counsel for the House Science Committee. Since 2002,

I have been at the U.S. Environmental Protection Agency. While in these positions,

I have poured most of my energy into enacting, overseeing, and now implementing

key pieces of America’s landmark water laws the Clean Water Act, the Safe Drinking Water Act, Ocean Dumping Act, and the Water Resources Development Act.

It is my honor to appear before this Committee because, through it all, you and

your colleagues have articulated the vision, forged the coalitions, and overseen the

progress in protecting the environment, and providing the infrastructure and jobs

to keep America strong and healthy. I aspire to do the same at the Environmental

Protection Agency’s Office of Water, should I be confirmed.

On the waterfront, so to speak, we have seen dramatic progress, but we face complex challenges. Nonpoint source runoff and other ‘‘wet weather flows’’ including

sewer overflows and stormwater discharges, and protective yet affordable drinking

water regulations, will continue to demand attention, innovation, and flexibility.

Administrator Leavitt has articulated a ‘‘better way’’ for the Agency that will accelerate the environmental progress being realized over the past thirty years while

maintaining our national economic competitiveness. Collaboration and innovation

are two of several key components, and the National Water Program will continue

to advance both. Regional collaborations, such as those in the Great Lakes and the

National Estuaries Program, and water quality trading are prime examples. Such

efforts will also continue.

Administrator Leavitt has recently articulated a 500 Day Plan for water that focuses on three key areas: monitoring, wetlands, and coastal watersheds. Since assuming the position of Acting Assistant Administrator for Water in December 2003,

I have also emphasized monitoring, conservation, and restoration. For me, conservation means not only conservation of wetlands but also water use efficiency. I look

forward to progress in sustaining America’s infrastructure through conservation,

full-cost pricing, and other mechanisms including the Agency’s emerging ‘‘Water

Star’’ program, modeled on Energy Star, to encourage voluntary labeling of water

efficient products and appliances. Restoring watersheds and coastal waters is also

a priority of mine particularly when one considers that over half of the country’s

population lives near the coast and one of every six jobs in the U.S. is marine related.

Mr. Chairman, I commit to you and your colleagues my complete energy and enthusiasm in working to keep America’s waters clean, safe, and secure and in the

pursuit of what Administrator Leavitt characterizes as the ‘‘productive middle’’

using collaboration and innovation to achieve sustainable results.

Last, and no doubt most importantly, I want to thank my family and friends,

many of whom include current and former staff, for their support and endurance.

Managing water is truly a team effort.

Mr. Chairman, I look forward to any questions you and your colleagues may have.
85
86
87
88
89
90
91
92
93

RESPONSES BY BENJAMIN H. GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. I would like to get your views on the water infrastructure financing.

You have worked on this issue as both a Committee staffer and an EPA official so

you have a unique perspective to provide. EPA has sent some signals recently that

the Agency believes better management of systems would fill the gap. However, the

greatest contributor to the problem seems to be that these systems are at the end

of their useful life at the same time new requirements are being imposed.

In your view, what is the cause of the funding gap and what do we need to do

to address it? What do you think is the appropriate Federal role in helping towns

and cities meet these costs?

Response. There are several reasons for the funding gap. Our wastewater and

drinking water systems are aging. Treatment plants typically have an expected useful life of 20–50 years before they require expansion or rehabilitation. Also, populations are increasing and shifting geographically and our treatment systems will

need to increase capacity to meet the demands posed by this growth. Last, current

levels of treatment may not be sufficient to address today’s water pollution control

problems. Over the past 20 years communities have spent more than $1 trillion (in 2001 dollars) on drinking water treatment and supply and wastewater treatment and disposal. As a Nation, we will be challenged to ensure that we can keep pace with the

infrastructure needs of the future. Utilities and their local communities must provide the primary sources of funding to meet those needs. While Federal and State

funding can help water utilities meet future needs, other strategies may be appropriate for addressing these challenges, including more targeted operations and

maintenance efforts.

Currently, the Agency is working to implement a sustainable infrastructure strategy to enhance the operating efficiencies of water and wastewater systems. This involves four pillars:

(1) Better Management—Better management practices like asset management,

environmental management systems, consolidation, and public-private partnerships

can offer significant savings for water utilities—both large and small.

(2) Full-Cost Pricing—A key consideration in constructing, operating and maintaining infrastructure is ensuring that there are sufficient revenues in place to support the costs of doing business. Sensible pricing can also have the added benefit

of encouraging efficient water use.

(3) Efficient Water Use—One way to reduce the need for costly infrastructure is

to better manage uses of water. There are many options for enhancing water efficiency including metering, water reuse, water-saving appliances, landscaping and

public education.

(4) Watershed Approaches to Protection—In addressing infrastructure needs for

the purposes of water supply and water quality, it is important to look more broadly

at water resources in a coordinated way. Targeting resources toward highest priorities, permitting on a watershed basis and water quality trading are all means of

ensuring that actions achieve the greatest benefit.

EPA has been working in partnership with municipalities and States to continue

to provide high quality management services to address their wastewater and drinking water needs. The wastewater infrastructure needs of towns and cities are growing and we are collaborating with State and local officials to develop strategies, approaches, and tools to address their environmental needs. The President’s 2005 Budget proposes an annual funding level of $850 million

through 2011 for the Clean Water State Revolving Fund and 2018 for the Drinking

Water State Revolving Fund. I support the President’s budget request as an appropriate Federal contribution to help meet the funding needs of utilities. We are working to encourage a greater State role in providing financial assistance for cost-reasonable technologies to ensure water quality and human health needs are met.

Question 2. EPA has been promoting trading and watershed permits as innovations to assist municipalities in meeting their regulatory obligations while protecting water quality. I am pleased to hear you testify that you will follow Governor

Leavitt’s mission of using collaboration and innovation to achieve sustainable results. As you know, I have a lot of concerns about the costs we are imposing on local

systems and the science behind many of these regulations. The Agency and Congress must continue to pursue different approaches to achieving our water quality

objectives which can be done sensibly without bankrupting local ratepayers.

Will you create an atmosphere in which stakeholders are encouraged and given

the flexibility to use these innovative tools and the writers of these regulations are

encouraged to think outside the box for new, more cost-effective approaches?
94

Response. EPA is promoting trading and watershed permits because the Agency

believes these tools can achieve water quality standards be cost-effective for businesses and municipalities. The Agency is committed to encouraging trading and the

watershed approach throughout the water program. As an example, OW is working

with Regions, States, and permittees to identify and promote case studies of successful watershed-based permitting and water quality trading. Examples of these innovations are being documented and pilot studies have been developed to test different

approaches for implementation in the NPDES and non-point source programs. EPA

believes that developing and issuing NPDES permits on a watershed basis can benefit all watershed stakeholders. In addition to increased environmental results,

many of these benefits involve administrative efficiencies. I wholeheartedly endorse

the approach established by this Administration and intend to continue to promote

the use of innovative and flexible approaches to achieve water quality goals. I am

also interested in other innovative approaches that will help accelerate our progress

in meeting water quality standards.

RESPONSES BY BENJAMIN H. GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. In my home State of Vermont, stormwater runoff is a major source

of pollution in the States’ waterways. Paved surfaces such as parking lots, roads,

and highways are the major contributors of stormwater pollution. Communities in

Vermont struggle daily to find ways to use limited resources to pay for stormwater

protections. Can you describe your perspectives on the magnitude of the stormwater

runoff issue, the comparative size of Federal funding assistance available to States

and communities and the size of the need, and the impact that additional funds

could have on improving water quality by reducing the impacts of stormwater runoff?

Response. EPA compiles data on water quality impairments and sources of impairments consistent with the requirements of Section 305(b) of the Clean Water

Act. The most recent biennial report for which data are available is from calendar

year 2000 (2000 National Water Quality Inventory Report). In that report, EPA presents data independently for three significant types of waterbodies: rivers and

streams, lakes and reservoirs, and coastal resources. The report defines a number

of categories for sources of waterbody impairments. One of the categories is Urban

Runoff/Storm Sewers. Other sources of impairment, such as Hydrologic Modification, are also likely related to storm water. Following is impairment data for each

of the waterbody types:

Rivers and Streams: 39 percent of assessed miles are impaired and Urban Runoff/

Storm Sewers is a source of impairment in 13 percent of the impairments.

Lakes: 45 percent of assessed acres are impaired and Urban Runoff/Storm Sewers

is a source of impairment in 18 percent of the impairments.

Coastal Resources: 51 percent of assessed square miles are impaired and Urban

Runoff/Storm Sewers is a source of impairment in 32 percent of the impairments.

The 2000 Clean Watersheds Needs Survey documented $5.5 billion in storm water

management program needs from 19 States and the District of Columbia. These

needs include the capital costs for developing and implementing municipal storm

water management programs to meet the requirements of Phases I and II of the

National Pollutant Discharge Elimination System storm water regulations. Not all

States submitted storm water management program needs.

The most prominent funding programs that provide money for storm water

projects are the Clean Water State Revolving Fund, Water Quality Cooperative

Agreements (CWA section 104(b)(3)), and Nonpoint Source Implementation Grants

(CWA section 319). EPA does not track funding specifically for storm water management in all grant programs, mainly because of the multi-faceted nature of storm

water management. EPA does have data indicating that between 1991 and 2003,

the Clean Water State Revolving Fund has provided $216 million in loans for Storm

Sewers. This investment excludes the investment in combined sewer overflow (CSO)

and sanitary sewer overflow (SSO) correction. The Clean Water State Revolving

Fund also provided loans totaling over $1.7 billion for nonpoint source projects between 1990 and 2003, many of which addressed storm water runoff from urban and

rural areas. For Section 319 grants, EPA estimates that from FY1994 to FY2002,

at least $100 million was used for urban runoff projects. Additionally, EPA regularly

funds storm water projects under Section 104(b)(3) cooperative agreements and in

recent years has funded more than $5 million in storm water management projects.

EPA will continue to work collaboratively with States and municipalities to reduce/

mitigate the environmental impacts of urban runoff. EPA will continue to encourage
95

municipalities to use the Federal and State funding sources available to achieve the

goals of the Clean Water Act.

Question 2. Much progress has been made since the 1970’s on improving water

quality in this Nation, primarily by focusing on point source pollution. It is generally believed that the next major step forward in improving water quality is reducing non-point source pollution, including the addition of phosphorus to our waters.

However, this is a challenging issue.

In my home State of Vermont, farmers are constantly struggling to do the right

thing by the environment while still meeting their bottom line. In addition, urban

stormwater runoff in Vermont is a major contributor to water quality problems and

in many ways just as difficult to address as agricultural runoff.

Small communities struggle with limited resources to do the right thing for the

environment. What are your ideas about how we can make progress on non-point

source pollution?

Response. Nonpoint source pollution and diffuse point source pollution, such as

urban stormwater, constitute one of the most significant remaining water quality

challenges in the United States. For example, the States have reported that the five

leading sources of impairments to rivers and streams are agriculture, hydrologic

modification, habitat modification, urban runoff/storm sewers, and forestry. For

lakes, the situation is very similar. These sources in many cases contribute excess

sediment, pathogens, nitrogen and phosphorus that can result in impairment of

water quality.

To make progress on nonpoint source pollution, EPA believes that it is important

to use available programs and resources as effectively as possible. Strengthening

States’ implementation of watershed-based approaches to solving water quality

problems will be a key factor in reducing water quality impairments as well as preventing new water quality problems. In accordance with EPA guidelines for the Section 319 nonpoint source grants, beginning in fiscal year 2002, States are devoting

$100 million per year to develop and implement watershed-based plans that identify

the significant sources of water quality impairments and threats; the most effective

measures and practices that will be needed to achieve and maintain water quality

standards; the funding sources and authorities that are available to implement

those effective measures and practices; and a process to work with local governments and citizens to assure implementation. EPA expects that these concerted efforts will result in numerous successful projects that will restore impaired waters

and protect good-quality waters from degradation.

Question 3. In the Administration’s fiscal year 2005 budget, the Clean Water Act

section 319, non-point source program is reduced by almost $30 million from the fiscal year 2004 enacted level of $238 million. In the 2000 National Water Quality Inventory Report, the Agency identifies non-point source pollution as the leading

source of water quality impairment. As Assistant Administrator for Water, what actions will you take to ensure that forward progress is made on non-point source pollution?

Response. EPA is working with the States to strengthen the use of watershedbased planning and implementation to assure that problems are clearly identified

and quantified and that appropriate solutions are then identified and implemented.

In addition, EPA believes that the challenge of solving and preventing nonpoint

source pollution will be successfully addressed only if all stakeholders are actively

engaged in working toward this common goal.

Since agriculture is a leading source of nonpoint source pollution, EPA believe

that effective implementation of the Farm Bill will be a key component of successful

nonpoint source pollution control efforts in virtually every State. EPA is working

closely with USDA, and promoting close cooperation between water quality and agricultural interests at the State and local level, to promote the use of the financial

and technical resources made available by the Farm Bill to restore and protect

water quality. Similar cooperative relationships among EPA and other Federal

agencies, our respective counterparts at the State and local level, private-sector

stakeholders, and local citizens will be necessary to assure that we collectively can

restore and maintain our Nation’s waters.

Federal funds provide approximately $200 million annually in direct support for

nonpoint source control projects. Our Targeted Watershed Grants Programs provide

support for locally driven watershed protection efforts, a significant portion of which

are directed at nonpoint source pollution.

Question 4. Do you believe that the water infrastructure spending gap is real?

Response. Yes, I accept the results of EPA’s September 2002 Clean Water and

Drinking Water Infrastructure Gap Analysis, which highlighted the funding gap
96

that could result in the absence of increases in spending to address future needs.

Our wastewater and drinking water systems are aging and maintenance has been

deferred in many areas. Treatment plants typically have an expected useful life of

20–50 years before they require expansion or rehabilitation. Also, populations are

increasing and shifting geographically and our treatment systems will need to increase capacity to meet the demands posed by this growth. Last, current levels of

treatment may not be sufficient to address today’s water pollution control problems.

However, it is important to note that while the spending gap is real, this does

not mean it is inevitable. The magnitude of the gap can be managed by changes

in business and infrastructure practices. More appropriate pricing of services, competitive practices, asset management, technology innovations and life extension

strategies can all help to reduce the gap in the future. The Agency’s fiscal year 2005

sustainable infrastructure budget initiative is aimed at promoting these and other

practices that will help to address the gap.

Question 5. Do you believe that the water infrastructure spending gap is a water

quality problem?

Response. While we have not projected the potential water quality effects of the

water infrastructure spending gap, we do have estimates of current impact from the

2000 305(b) reports on water quality. Those reports identify municipal point sources

among the sources of impairment for a portion of the waters assessed. For example,

for the almost 700,000 miles of rivers and streams assessed, States identified municipal point sources as a source of impairment for almost 30,000 miles.

Unless we address our aging infrastructure, we can expect to experience a decline

in service quality, which will impact both public health and water quality. The municipalities that are at the forefront of change see that reducing life-cycle costs and

increasing revenues are necessary to maintain and even improve community standards.

Question 6. The President’s Budget proposes over a 30 percent reduction in funds

for the Clean Water SRF. EPA’s own numbers show a huge funding gap for water

infrastructure spending. National opinion polls show that Americans are willing to

pay for Clean Water protections. Why is there such a disconnect between what is

needed and what the administration is requesting?

Response. The Administration understands the value of infrastructure and the

needs facing States and communities. The fiscal year 2004 budget proposed to continue funding the CWSRF through 2011. This extended funding is projected to close

the $21 billion gap between current capital funding levels and future water infrastructure capital needs estimated by EPA. The President’s Budget for fiscal year

2005 continues to reinforce this Federal commitment.

The Agency recognizes that closing the gap also requires actions and innovations

to reduce the demand for infrastructure, including better management, conservation

(or smart water use), and intergovernmental cooperation through the watershed approach.

In the fiscal year 2005 President’s Budget, the Agency is proposing a sustainable

infrastructure initiative where we will work in partnership with States, the water

utility industry, and other stakeholders to ensure sustainability of water and wastewater systems. Funds are also included to continue developing a ‘‘Water Star Program (water efficiency product labeling) to advance voluntary water conservation efforts.

Question 7. As Assistant Administrator for Water, do you intend to focus on management reforms, such as the use of asset management, as a means to achieving

cost savings that will reduce the spending gap? If so, how do you propose to get utilities to adopt these management reforms? What is your estimate of the cost savings

that will result from a single utility and from an industry-wide adoption of management reforms such as asset management and when will they be realized? By how

much will these cost savings reduce the backlog?

Response. We believe that the utilities in this country can be positively influenced

by the improvements and cost savings that are achievable through sustainable management techniques such as environmental management systems and advanced

asset management.

Utilities, as service providers, take pride in their efforts and accomplishments and

do not want to see their ability to provide safe drinking water and high quality

wastewater treatment decline as their infrastructure ages. Within the industry, forward thinking and innovation are making a difference. For example, the Orange

County Sanitation District invested in advanced asset management planning and

reduced the life cycle cost of their capital improvement program at a return of ten

times their investment. Seattle Public Utilities invested in improvements to their
97

infrastructure management and was able to identify savings from the approved

2004 budget of 13 percent for capital improvements and 7 percent for operating expenses. These utilities are not alone. Across the country, many utilities are pursuing

improved, sustainable management techniques. Utilities that have invested in improved practices have begun to see savings within one to 2 years.

While the Agency has not done an official assessment of the costs savings from

such reforms, an assessment of Australia’s advanced asset management practices

suggests that a 20–30 percent savings in life cycle costs is possible for many U.S.

utilities. EPA intends to work collaboratively to encourage utilities to undertake voluntary efforts to adopt management reforms. These efforts, in combination with efficient water use, intergovernmental cooperation through the watershed approach,

full-cost pricing, and the President’s commitment to extend Federal capitalization of

the State Revolving Fund infrastructure financing programs are projected to help

utilities close the gap.

Question 8. Is the Agency reviewing the public education requirements of the lead

and copper rule to determine if they are adequate? If so, please provide the status

of this review, including an expected end date.

Response. In response to the situation in the District’s drinking water, I have

asked my staff to take a wide-ranging look at the implementation of the Lead and

Copper Rule, which will include a review of public education requirements. This review will be carried on throughout 2004 and is expected to include an expert workshop to discuss risk communication and public education requirements of the rule.

Currently my staff is working with Region 3 staff to conduct a review of the DC

Water and Sewer Authority’s public education efforts in order to provide them with

recommendations as to how they can improve public education. As part of that effort, the team is reviewing public education material from systems across the country. In 2002, EPA released an updated version of its Public Education Guidance for

the Lead and Copper Rule. The guidance, while not binding, stresses the importance

of tailoring education material for different audiences, involving the community by

establishing a task force to guide efforts, and effectively using mass media to reach

all consumers. The review we undertake may help us to identify additional practices

and examples of effective public education campaigns that we will be able to promote for use throughout the country.

Question 9. Has the Agency reviewed lead testing results in other areas of the

country to identify any situations similar to the Washington, DC situation? If so,

which areas have been reviewed and what are the results of those reviews? Are

there any other locations where similar problems have emerged?

Response. My staff is currently undertaking an effort to identify whether the high

levels observed in Washington, DC are representative of other areas in the country.

We are reviewing information in our Safe Drinking Water Information System

(SDWIS) and also reviewing Consumer Confidence Reports from a number of utilities. Our analysis is hindered by the fact that data in SDWIS is currently incomplete. Although States could report since 2000, they were only required to report

90th percentile lead levels for all systems serving more than 3,300 staring in 2002.

For the period between 2000 until January 2004, we only have data for 22 percent

of required systems and have no data for 23 States and Puerto Rico.

From data we currently have, only 4 of 199 systems serving more than 50,000

people (2.0 percent) exceeded the action level, one of which was DC. All of these systems except for DC are now back below the action level. For systems serving between 3,300 and 50,000 people, 56 of 1,761 systems (3.2 percent), exceeded the action level, with only 14 reported to exceed the level since 2002. We also reviewed

109 recent Consumer Confidence Reports for systems serving more than 50,000 people that had exceeded the action level in the initial sampling conducted in 1991 and

1992. Only 9 systems reported that they had exceeded the action level in the last

several years—one of these systems was DC and another was a customer of another

system on the list. We are working to determine the current status of these systems,

but know that at least three of them are now testing below the action level.

On March 25, 2004, I sent a letter to Regional Administrators to ask that they

work with State programs to ensure that EPA has complete information on lead levels. As we obtain additional information from States, we will be able to better determine and report on the number of systems that have exceeded the action level.

However, discussions with States and associations representing utilities indicate

that they have not observed high levels nor the rapid increase of lead levels in

drinking water observed in DC.
98

Question 10. Can you describe the major changes that occurred in the Agency’s

drinking water program for lead contamination as a result of the 1991 lead and copper rule?

Response. Unlike most contaminants, lead is not generally introduced to drinking

water supplies from the source water. The primary sources of lead in drinking water

are from lead pipe, lead-based solder used to connect pipe in plumbing systems, and

brass plumbing fixtures that contain lead. An interim standard for lead in drinking

water of 50 micrograms per liter, or parts per billion (ppb), had been established

in 1975, which did not require sampling of customer taps. Setting a standard for

water leaving the treatment plant fails to capture the extent of lead leaching in the

distribution system and household plumbing. In 1988, the Agency proposed revisions to the standard and issued a final standard in 1991 which significantly

changed the regulatory framework.

The rule requires systems to optimize corrosion control to prevent lead and copper

from leaching into drinking water. Large systems serving more than 50,000 people

were required to conduct studies of corrosion control and to install the State-approved optimal corrosion control treatment by January 1, 1997. Small and medium

sized systems are required to optimize corrosion control when monitoring at the consumer taps shows action is necessary.

To assure corrosion control treatment technique requirements are effective in protecting public health, the rule also established an Action Level (AL) of 15 ppb for

lead in drinking water. Systems are required to monitor a specific number of customer taps, according to the size of the system. If lead concentrations exceed 15 ppb

in more than 10 percent of the taps sampled, the system must undertake a number

of additional actions to control corrosion and to inform the public about steps they

should take to protect their health. If a water system, after installing and optimizing corrosion control treatment, continues to fail to meet the lead action level,

it must begin replacing the lead service lines under its ownership.

Question 11. The SDWA definition of ‘‘lead-free’’ fixtures currently allows those

fixtures to contain 8 percent lead. Are there fixtures available that are truly ‘‘leadfree’’? Has the Agency taken any steps to share this information with consumers?

If not, please explain how the Agency anticipates that consumers will obtain information about lead-free fixtures.

Response. The fixtures that meet the ‘‘lead free’’ requirements of the SDWA may

contain a maximum of 8 percent lead. The amount of lead contained in a plumbing

product is usually governed by its manufacturing process and natural impurities in

the alloy. Fixtures containing levels of lead less than 8 percent are manufactured

and are available at a slightly higher cost to consumers.

The Agency has made an effort to inform consumers about the ‘‘lead free’’ requirements of the SDWA. The information is included in Agency outreach material, is

on the Agency website, and is provided through the SDWA Hotline. However, the

Agency does not provide information about the lead content of specific brands of fixtures. NSF International has information on their website about products that meet

the NSF standard. NSF recommends that consumers who are interested in finding

out how much lead is contained in a product contact the manufacturer or the importer/distributor and ask for a certificate of lead content.

Question 12. Has EPA initiated any enforcement actions against WASA with regard to the current lead contamination issue? How many enforcement actions has

the EPA taken under the provisions of the lead and copper rule adopted in 1991?

Please provide a summary of each of those enforcement actions, including the cause

of the action, the public water system involved, and the resolution.

Response. EPA has not yet issued a formal enforcement action against the DC

Water and Sewer Authority (WASA). EPA’s Region 3 office has been conducting an

audit of WASA’s compliance with the Lead and Copper Rule over the past several

weeks. Although the compliance audit is still underway, the Region’s Water Division

Director sent a letter to WASA on March 31, 2004, notifying them that the Region

has identified six potential matters for non-compliance. The letter provides WASA

21 days in which to respond as to whether it disagrees with EPA’s assessment and

to provide additional information in support of their position. On that same date,

the Water Division Director also issued an Information Request pursuant to section

1445(a) of the Safe Drinking Water Act, requesting information that will allow the

Region to further evaluate whether WASA has violated provisions of the regulation.

Depending on the response to the Information Request an Administrative Order

may be issued under Section 1414 of the SDWA.

Since 1991, EPA has taken 11,056 enforcement actions nationally to address Lead

and Copper Rule violations, more than 96 percent of which addressed initial tap

monitoring or reporting violations. Most of those violations occurred early in imple-
99

mentation of the rule. We will provide followup information that gives additional details about the actions, however, the following table summarizes the type and number of violations.

Violation Addressed by Enforcement Action Number

Monitoring and Reporting—Initial Tap Monitoring ................................................................................................. 11,083

Followup or Routine Tap Sampling .......................................................................................................................... 110

Monitoring and Reporting—Initial, Followup or Routine Source Water Treatment ................................................ 7

Optimal Corrosion Control Study ............................................................................................................................. 25

Optimal Corrosion Control Installation or Demonstration ....................................................................................... 21

Noncompliance with Maximum Permissible Level* ................................................................................................. 7

Public Education ...................................................................................................................................................... 40

*set by the primacy agency if the system has lead in its source water and has to install source water treatment

Question 13. EPA established the MCLG for lead in drinking water at zero. Please

explain why the Agency selected zero.

Response. In establishing MCLGs, the Agency seeks to determine the level at

which there are no known or anticipated adverse effects on the health of persons

and which includes an adequate margin of safety. At the time of the rulemaking,

there was a body of scientific evidence that showed that the risk of adverse health

effects was present at increasingly lower blood lead levels and there was uncertainty

that any blood lead level is free from risk of incurring adverse effects in sensitive

subpopulations. The EPA therefore established an MCLG of zero for lead in drinking water because of the difficulty of identifying a low lead exposure level at which

there are no risks of adverse health effects and because Agency policy was that

drinking water should have a minimal contribution to total lead exposure (given

that a substantial portion of the sensitive population already had blood lead levels

that exceeded the level of concern). Finally, lead is classified as a probable human

carcinogen.

Question 14. EPA’s drinking water hotline answers thousands of questions each

year. The recent revelations about lead contamination in the DC water system underscores the importance of accurate and objective drinking water information.

There have been reports, however, that the President’s funding cuts may force EPA

to terminate the drinking water hotline. As Assistant Administrator for Water, what

will you do to ensure that the Agency is able to provide answers to questions about

drinking water from concerned citizens?

Response. The Agency has no intention of terminating the Safe Drinking Water

Hotline, which serves a critical role in EPA’s outreach and public education efforts.

In fact, questions about lead in drinking water are consistently among the most frequently asked of the Hotline. The Hotline is currently available by calling a tollfree number Monday through Friday from 9 a.m. to 5 p.m. and via email. During

fiscal year 2003, the Hotline received close to 25,000 calls from around the country,

an average of 125 inquiries a day. Approximately 13 percent of the requests were

made by email. Within the last month, EPA has directed additional funding to the

Hotline to ensure that they can manage additional calls from District residents who

have questions about lead in their drinking water. Over the past 2 years the Office

of Water has funded the Hotline at approximately $330,000 per year and will likely

maintain this funding level for 2004. While the cost of operating the Hotline is significant, EPA believes that the benefits of being responsive to the public and increasing consumer awareness justifies the costs.

Question 15. In view of the complexity and workload associated with State drinking water programs (which implement all SDWA mandates in 49 of the 50 States)

and, in view of the documented resource gap in State program funds, as Assistant

Administrator for Water, what action would you take to ensure that the Public

Water System Supervision account is adequately funded and administered?

Response. I appreciate the significant efforts that are required and undertaken by

States to implement drinking water programs that ensure provision of safe drinking

water to citizens and am pleased to report that the Bush Administration has already taken action to increase funding for the Public Water System Supervision

grant program to the States. The fiscal year 04 President’s Budget requested $105.1

million for this grant program and Congress appropriated $102 million. This is almost a $10 million increase over the fiscal year 03 level of $92.5 million. The fiscal

year 05 President’s Budget again includes a request of $105.1 million for this grant
100

program. EPA’s financial support to the States through Public Water Supply Supervision grants is critical in light of the significant projected shortfalls in State program resources as well as the States’ continuing need to train new staff due to high

turnover rate, as cited in the Association of State Drinking Water Administrators’

report on the State program management resource gap. Other EPA efforts to support State programs include continually providing guidance, training and technical

assistance on the implementation of drinking water regulations; developing new,

easily accessible tools (e.g. Web-based) to assist States and water systems; and promoting consumer awareness of the quality and safety of drinking water supplies. Together, this financial and technical support is a significant level of assistance to the

States to carry out their primary enforcement authority, or primacy, set forth in the

Safe Drinking Water Act.

Question 16. In December 2003, the Agency announced that the Administration

was dropping plans to rewrite Clean Water Act rules. As part of this announcement,

the Agency stated that EPA would reconsider the January 2003 policy requiring

Federal agencies not to protect particular waters without first getting permission

from EPA or the Corps of Engineers, which leaves many waters at risk. Since then,

what steps have been taken to reconsider and rescind this anti-clean water directive? As Assistant Administrator for Water, what steps will you take to ensure that

our nation’s waters are protected?

Response. On January 15, 2003, EPA and the Corps issued joint legal guidance

that clarified the scope of ‘‘waters of the United States’’ in light of the U.S. Supreme

Court’s decision in Solid Waste Agency of Northern Cook County (SWANCC) and

subsequent judicial decisions. (68 Fed. Reg. 1991, 1995 (January 15, 2003)). The

legal guidance states that field staff may no longer assert jurisdiction over isolated,

intrastate, non-navigable waters based solely on the presence of migratory birds,

and that agency headquarters approval should be obtained prior to asserting jurisdiction over such waters based solely on other types of commerce links. The legal

memorandum emphasizes that field staff should continue asserting jurisdiction over

navigable waters, their tributary systems, and adjacent wetlands. The memorandum

also emphasizes that jurisdictional calls must reflect existing regulations and relevant case law. Consistent with this legal guidance, field staff at both EPA and the

Corps continues to vigorously implement and enforce programs affecting all ‘‘waters

of the United States’’ protected under the CWA after SWANCC.

I do not believe the joint legal guidance ‘‘leaves many waters at risk’’ due to its

requirement that field staff get formal Headquarters approval prior to asserting jurisdiction based solely on links to interstate commerce. The guidance specifically

provides that such concurrence is applicable only to isolated waters that are both

intrastate and non-navigable. Given the rationale and reasoning in SWANCC and

the extensive and varied caselaw since, we believe it is appropriate for Headquarters to play a role before jurisdiction is asserted over such waters on the basis

of commerce clause factors, both to ensure decisions reflect applicable case law and

to foster national consistency on how such issues are approached.

As the question notes, on December 16, 2003, EPA and the Corps of Engineers

jointly announced that we would not issue a new rule on Federal regulatory jurisdiction over isolated wetlands. At the same time, the agencies emphasized we would

continue to monitor implementation of section 404 and other CWA programs to ensure their effectiveness.

As Assistant Administrator for Water, I will encourage EPA and the Corps to continue taking steps to increase consistency, transparency, predictability, and sound

science for section 404. For example,

• The agencies are working together to ensure that information on jurisdictional

calls is collected and shared with the public

• Staff from EPA and Corps Headquarters and field offices are planning joint visits to sites that illustrate difficult issues regarding the scope of waters of the US,

in order to develop a common understanding of the issues

• EPA and the Corps are coordinating to expand and improve the Corps’ permittracking data base, which will be made available to the public through the Corps’

website, providing important access to agency actions

• The agencies are engaging in opportunities to explain to stakeholder groups the

scope of CWA jurisdiction in light of SWANCC, including national and regional conferences and other public forums

• EPA is conducting a scientific review of information on ‘‘isolated waters’’ and

their relationship to the chemical, physical, and biological integrity of ‘‘navigable’’

waters
101

• EPA is co-sponsoring a U.S. Army Engineer Research and Development Center

study on Ordinary High Water Mark indicators for delineating arid streams in the

Southwestern U.S. • EPA, Corps, and DOJ staff continue to have biweekly meetings to discuss jurisdictional issues and questions that arise in the field • EPA is working closely with DOJ and the Corps in litigation, arguing that the

SWANCC decision was focused on isolated waters and did not change CWA protections for tributaries and adjacent wetlands. Since the SWANCC decision, the government has prevailed in 10 of 11 Appellate Circuit decisions.

Question 17. The January 15, 2003 EPA and Army Corps policy directive on Clean

Water Act jurisdiction tells the Federal agencies not to protect certain wetlands,

streams and ponds without first getting permission from EPA or Army Corps of Engineers headquarters. How many miles of stream or acres of wetlands have been

declared no longer subject to Clean Water Act jurisdiction because of the January

2003 policy? Can you give any examples of waters that have been declared no longer

subject to Clean Water Act jurisdiction?

Response. To date, we have received six requests for headquarters approval, plus

an additional six that involved navigable-in-fact isolated waters that do not require

Headquarters approval. Of those six being reviewed in Headquarters, we are seeking additional information on three, found one to be jurisdictional, expect to find another one jurisdictional, and one not to be jurisdictional. The one found not jurisdictional was an isolated, intrastate, and non-navigable wetland. The sole basis proposed for asserting CWA jurisdiction was the potential use by interstate visitors—

a conclusion not supported by the record. It is our understanding that the request

for a jurisdictional determination in this case was to inform development of a planning document and not prompted by a proposal to develop the wetland.

With respect to other steps that EPA and the Corps are taking to gather data

on the aquatic resource impacts of SWANCC, the Corps Districts are systematically

collecting information on findings of no-jurisdiction over waters deemed isolated,

intrastate, and non-navigable. The information will be compiled in a common format

that includes information on wetland acreage and stream mileage impacted. The

Corps plans to make this information publicly available via the Internet. EPA is

working with the Corps to implement the recommendations in the recent GAO report, ‘‘Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction.’’ These recommendations include surveying Corps offices to identify significant differences in jurisdictional practices,

evaluating whether and how these differences might be resolved, and better documenting jurisdictional practices and making information publicly available.

Question 18. Is the Army Corps conferring with EPA before declaring certain wetlands, streams, or ponds to be outside of the scope of the Clean Water Act? What

is EPA doing to track the fate of the types of waters subject to this policy? As Assistant Administrator for Water, would you seek to change either the interaction

with the Army Corps or the EPA’s tracking system for waters affected by the guidance?

Response. The Corps and EPA have undertaken a variety of actions to increase

coordination on the section 404 program implementation and jurisdictional determinations. EPA and Corps headquarters coordinate on requests from the field, in

accordance with the January 2003 guidance, for formal approval of jurisdictional

calls involving isolated intrastate non-navigable waters based solely on commerce

links other than those in the migratory bird rule. Furthermore, a number of EPA

Regions and Corps districts currently coordinate in advance on jurisdictional calls

that raise challenging issues. And, EPA, Corps, and DOJ staff continue to have biweekly meetings to discuss jurisdictional issues and questions that arise in the field.

Corps practice has generally been to consider as jurisdictional without further analysis those waters that have been subject to other CWA provisions, such as 402

water permits or 311 oil spills.

As EPA and the Corps jointly implement the scope of ‘‘waters of the United

States’’ protected by the Clean Water Act after SWANCC, a variety of issues have

arisen due to the differences in climate, geology, and geography throughout the

country. The current regulations establish a useful framework that provides consistency for applying best professional judgment on a case-by-case basis. EPA is committed to working with the Corps to ensure that approaches and results are consistent for similar aquatic resources, consistent with Clean Water Act goals, and legally defensible. Headquarters and field office staff will selectively conduct joint visits to sites that may involve complex jurisdictional determinations regarding the

scope of the waters of the United States, in order to work toward a common understanding of jurisdictional issues and potential approaches.
102

The agencies have agreed to coordinate and share jurisdictional data. The Corps

routinely collects information on jurisdictional calls and has agreed to collect and

share information on district jurisdictional calls with EPA and the general public,

including findings of no-jurisdiction. The Corps and EPA also are coordinating to expand and improve the utility of the Corps’ OMBIL Regulatory Module (ORM), the

permit-tracking data base currently being installed in all Corps districts. In addition, the Corps and EPA are working together on a Corps-initiated project to make

Corps data available for water quality and watershed managers by integrating it

with other information systems.

As this coordination continues, I am committed to ensuring that enough information is available to make sound decisions regarding jurisdiction under the CWA, and

if information is lacking, to pursue additional mechanisms with the Corps to rectify

any shortfalls.

Question 19. What is the status of the Agency’s review of the stormwater Phase

II regulation and its applicability to small oil and gas constructionsites? As Assistant Administrator, when will you have this review completed?

Response. EPA has started conducting an in-depth analysis of all potential economic impacts relating to oil & gas industry compliance with the Phase II

stormwater regulations. We expect preliminary information this summer and a completed analysis by the fall. We will then determine if a rulemaking is necessary and

publish a FR notice documenting the Agency’s decision prior to March 10, 2005.

Question 20. It is imperative that our nation’s water and wastewater infrastructure be adequately protected from potential terrorist attack or other event. As Assistant Administrator for Water, please describe how you would approach this issue,

with particular focus on the relationship between the EPA and the Department of

Homeland Security.

Response. Protecting critical infrastructure is a vital and challenging component

of EPA’s mission. An integral part of our water security efforts must involve a close

collaborative relationship with the Department of Homeland Security (DHS) to ensure that we leverage our respective resources to maximize protection of the water

sector. In general, EPA possesses expertise in understanding the water sector and

enjoys long established relationships with water utilities, water-related government

entities, and associations. DHS has expertise in the form of intelligence analysis and

general security issues that can be used together with EPA’s proficiencies in order

to deliver the most robust, comprehensive assistance to the water sector.

Such a collaborative approach is in fact mandated in Homeland Security Presidential Directives (HSPD)–7 and 9. HSPD–7 designates EPA as the Sector Specific

Agency responsible, with guidance from DHS, for improving water security. HSPD–

9 directs DHS to develop a plan in consultation with EPA for establishing a nationwide surveillance and laboratory program for water. In response to these directives

and to the threats confronting the water sector, EPA, with support whenever appropriate from DHS, must continue to provide an array of assistance to the water sector that includes training for preparedness, developing voluntary best security practices, enhancing contaminant information tools, and evaluating detection technologies. For example, in 2004 we will renew efforts with DHS’s Office of Domestic

Preparedness to provide emergency response training to water systems and emergency responders.

In addition, EPA and DHS must continue to identify security concerns that

present the greatest risks to the water sector. Our collective efforts should improve

the capability of the water sector, and others that support or rely on the sector, to

not only understand security threats and vulnerabilities, but also have access to the

tools and assistance necessary to reduce security risks.

Question 21. In your current work at the Agency, please describe your experiences

with the water and wastewater security program and how you would or would not

seek to modify if as Assistant Administrator for Water.

Response. Promoting the security of the Nation’s water infrastructure is one of the

most significant undertakings and responsibilities of the Agency in a post-September 11 world. An attack, or even a credible threat of an attack, on water infrastructure could seriously jeopardize the public health and economic vitality of a community. A key practical objective of our security efforts must be to provide the tools

and assistance that drinking water and wastewater systems need to prevent, detect,

and respond effectively to such a threat or incident. EPA also needs to continue to

provide programs that forge critical links between the water sector and those who

support or could support the sector in detecting and responding to threats and incidents, such as local law enforcement and public health departments. In 2003, we

established the Water Security Division within the Office of Water to emphasize and
103

implement EPA’s commitment to protect the safety and security of the Nation’s

drinking water supply.

While in prior years EPA’s water security work focused on supporting assessment

of vulnerabilities and creating a baseline of security-related information, future efforts will involve providing the tools and assistance that drinking water and wastewater systems need to address these vulnerabilities including the identification of

the most up-to-date security enhancements, sharing information on threats and contaminants, and training on emergency response.

In my experience, we have developed a water security program at EPA that fulfills expectations expressed in Homeland Security Presidential Directive–7, which

assigns to EPA a pivotal role in coordinating and facilitating the protection of the

Nation’s drinking water and wastewater systems. EPA has produced a broad array

of tools and assistance that the water sector is using to assess its vulnerabilities

and to develop emergency response plans. As a result of our efforts, drinking water

systems collectively serving over 150 million people have submitted vulnerability assessments. EPA has also reached out to important partners beyond the sector to ensure that the sector receives the support necessary in the event of a threat or an

attack.

Question 22. Is training for water system contamination events being incorporated

into water system operator and first responder training protocols? Please provide a

complete description of what is being done to ensure that the initial response to contamination of a water system is effective. Please include a description of how your

work is being coordinated.

Response. One of the most effective and efficient means to enhance the safety of

the water sector involves incorporating security principles into business-as-usual.

For example, EPA has awarded a grant to the Association of Boards of Certification

to develop voluntary State drinking water and wastewater security-related operator

certification examination questions. These questions will be shared with all State

operator certification programs and will be available for use by the end of this year.

With respect to emergency responders, EPA, in partnership with the Department

of Homeland Security, is in the process of developing a 30 city training program for

water operators and all sector first responders. The training will foster an understanding of the Federal, State and Local emergency response planning and coordination requirements. In addition to the training, table-top exercises will be conducted

to capture real life contamination events. Also, EPA is collaborating with the American Water Works Association and the Centers for Disease Control and Prevention

to provide a 2-day training seminar for water utilities, public health and other first

responders on the protocol for responding to contamination events. EPA also provides financial assistance to the States for efforts to assist in emergency response

and recovery preparedness. Among the emergency response and recovery plan implementation activities being undertaken are table-top workshops, exercises, drills,

response protocols and other activities focusing on improving the readiness of individuals and groups involved in first response at a drinking water system.

Aside from these activities, EPA has longstanding capabilities in its core programs that are directed to homeland security and emergency response. In the last

2 years, we have been called upon to respond to domestic incidents and to enhance

our role in several areas. For example, EPA conducted sampling at over 30 facilities

potentially contaminated during the anthrax incidents. After September 11 and the

following anthrax responses, EPA’s Administrator issued a new National Approach

to Response to ensure that all of our resources are being prepared and used in a

coordinated manner to address Nationally Significant Incidents.

EPA’s response to emergencies are implemented through our 10 Regional offices,

and are characterized by a system that includes Federal, State, and local cooperation. The strength of our program is that our On-Scene Coordinators are experienced responders who bring with them delegated authorities, strong relationships

with State and local responders, backed up by a national network and both Federal

response assets and contractor capabilities, including access to commercial laboratories. Our On-Scene Coordinators are accustomed to working in the Incident Command System now being implemented as the National Incident Management System. In addition, the National Oil and Hazardous Substances Pollution Contingency

Plan (the NCP) is the foundation upon which the capabilities and response structure

for not just EPA’s hazardous materials responders, but also for local, State, and

other Federal responders involved in responding to these incidents. All of the efforts

described above address multi-media contamination scenarios, including water, and

adopt an all-hazards approach to ensure that preparedness of the water and other

sectors extends to cover the full array of threats and to invoke the entire breadth

of the Nation’s emergency response capabilities.
104

Question 23. An ongoing issue for the clean water program has been the failure

to adequately enforce the conditions of NPDES permits and the adequacy of existing

data to determine the progress on improving enforcement. Can you describe what

actions you will take as Assistant Administrator for Water to ensure that the Clean

Water Act is enforced and that data systems supporting this function have necessary capabilities? What actions will you take as Assistant Administrator for Water

to ensure that the Safe Drinking Water Act is enforced?

Response. EPA is committed to vigorous enforcement of each of the environmental

statutes. We recognize that a strong and balanced program of compliance assistance

and enforcement is an essential complement to the work that EPA, the States and

municipalities have undertaken over the last 3 decades to implement the Clean

Water Act. The Office of Enforcement and Compliance Assurance (OECA) is responsible for the Agency’s enforcement and compliance assistance programs, including

those for the Clean Water Act. As the Assistant Administrator for the Office of

Water (OW), I will continue to work closely with the Assistant Administrator for the

Office of Enforcement and Compliance Assurance (OECA) to ensure that the Clean

Water Act and the Safe Drinking Water Act are appropriately enforced. OW and

OECA work together to ensure that regulations and permits are enforceable and

achieve compliance with the statutes.

An important element of the enforcement effort is the effective operation of data

systems. The Office of Water and OECA have been collaborating on improvements

to the main national data system for CWA compliance, the Permit Compliance System (PCS). PCS supports the regional and State implementation of the NPDES program.

Some of EPA’s national data systems are relatively old and need to be updated

to meet the evolving business needs of the Agency’s programs and the expectations

of users for current technology. The current PCS Legacy system has little or no data

for major new NPDES requirements, such as Concentrated Animal Feeding Operations (CAFO’s), storm water, and Combined Sewer Overflows (CSOs). PCS is being

modernized to address these serious data gaps, as well as provide for easy use of

and access to the system, use of current information technology, support of the

Agency’s initiative for data integration, and to promote the exchange and sharing

of data with our State partners.

To address these concerns, OECA initiated the phased development of an innovative and integrated data system: the Integrated Compliance Information System

(ICIS). ICIS Phase I, the core multi media Federal enforcement program component

of the system, was implemented in June 2002. The Permit Compliance System

(PCS) Modernization, or ICIS—Phase II, is the modernization of the PCS system,

the official EPA national system for management of the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program.

The availability of more comprehensive data in a modernized PCS will enhance

the Agency’s ability to more effectively manage the CWA NPDES program. The systematic tracking of discharge monitoring data for existing and new NPDES program

areas will provide the Agency the capability to determine national compliance rates

and emissions for program areas such as CAFOs. Similarly, the capability to determine national compliance rates for wet weather events, which has been identified

as a major environmental problem, will also be possible. PCS modernization is also

the key to the Agency’s ability to comply with the Government Performance and Results Act through the tracking of environmental results to show environmental improvements (e.g., improved water quality), as well as a major step toward the Agency’s efforts to provide the States with the ability to exchange environmental and

compliance information with EPA.

Question 24. Please provide a summary of all of the enforcement actions taken

under all provisions of the Safe Drinking Water Act since 1995.

Response. EPA and States have the authority to carry out enforcement actions to

address violations of the Safe Drinking Water Act and relevant regulations. All

States, with the exception of Wyoming, have primary enforcement responsibility for

national primary drinking water regulations. EPA has primary enforcement authority for those rules that have not yet been adopted in a State and for programs it

directly implements (e.g., D.C., Wyoming, Indian Tribes). EPA can also take an enforcement action as needed to supplement State activity. Actions can be informal

or formal. Generally, a State or EPA will initiate an informal action and then escalate to formal action if the system fails to respond. However, depending on the seriousness of the violation, a State or EPA can move directly to a formal action. Based

on a preliminary analysis of the numbers, EPA and States have issued more than

693,000 informal actions and 177,000 formal actions between 1995 and 2003. The

table below summarizes the actions:
105

Type of Action EPA States

Informal Actions ...................................................................................... 3,904

(64 percent notice of

violation, 19 percent

public notification)

689,593

(41 percent notice of

violation, 43 percent

public notification)

Formal Actions ........................................................................................ 11,458 165,753

Formal Notices of Violation .................................................................... 7,059 154,216

Final Administrative Orders without Penalty .......................................... 4,227 6,811

Administrative Orders with a Penalty .................................................... 145 4,176

EPA civil referrals to the Department of Justice (EPA) or Attorney

General (State) ................................................................................... 27 550

Question 25. What is the status of the TMDL rule and when does he expect the

Agency to put the new proposal on the table?

Response. A staff draft of the Watershed Rule was sent to the Office of Management and Budget (OMB) for informal review in January 2003. At this time there

has been no decision whether to go forward with a formal submission to OMB.

States and EPA continue to implement the existing regulations. EPA and the

States have made considerable progress in establishing TMDLs. As reported in the

Agency’s Annual Report for fiscal year 03 more than 9,000 TMDLs have been established since 1999. These, added to the TMDLs established in prior years, brings the

total to more than 10,000 TMDLs. In addition EPA, with the States’ help, continues

to meet deadlines established in court orders covering 22 States.

In addition, EPA has been working with the States to make the TMDL program

more effective and to facilitate incorporation of TMDLs into watershed planning

processes:

EPA has issued guidance to improve the assessment and impaired water listing

process and increase the scientific rigor of water quality standards attainment determinations. The guidance:

Combines two separate statutory requirements to provide an integrated and

comprehensive picture of the status of a State’s water quality the integrated report.

Asks the States to develop and make public their water quality assessment

methodologies.

Clarifies that waters do not have to be listed as needing a TMDL where other

programs designed to achieve water quality standards are in place and being

implemented.

Finally, EPA has issued guidance for use of CWA section 319 funding to ensure

that funds are used to develop and implement watershed plans that incorporate

completed TMDLs.

Question 26. The administration has proposed 20 million in additional funding for

water quality monitoring. How can he assure that the funds go toward actual, on

the ground, improvements to water monitoring programs in the States.

Response. These funds will help with what the States have identified as a $100–

150 million annual shortfall in funds States need to collect and analyze data essential for documenting the condition of waters, making day-to-day decisions about the

best way to protect water quality, and evaluating progress and effectiveness of programs. These funds will also provide essential monitoring data to support local and

regional watershed protection efforts.

To improve water quality monitoring, EPA is focusing on four major areas:

strengthening State programs; using the most cost-effective combination of tools to

gather data on water quality; expanding the use and accessibility of data; and using

partnerships to maximize use of monitoring resources.

The administration has proposed that $17 million of the requested funds be used

for State grants under section 106 of the Clean Water Act. The remaining $3 million

would be used by EPA to support water quality monitoring activities, particularly

to enhance data management systems to ensure easier access to and use of monitoring data. These funds constitute an incremental step in reducing the $100–150

million annual shortfall identified by States.

States are now developing comprehensive State monitoring strategies, as recommended by EPA in its March 2003 guidance, ‘‘Elements of a State Monitoring

and Assessment Program.’’ These funds will help States implement their monitoring

strategies and provide improved data and information for State water quality standards, NPDES permits and nonpoint source pollution controls, completion of State In-
106

tegrated Reports (Clean Water Act sections 305(b) and 303(d)), and establishment

of Total Maximum Daily Loads to achieve water quality standards. EPA is now

working with States to determine how best to ensure that these funds are used to

enhance existing State monitoring efforts. Our intention is to track progress through

implementation of the State monitoring strategies and State workplans under the

section 106 grants.

Question 27. EPA is working with a number of national and international groups

to promote the institutionalization of the annual World Water Monitoring Day. As

the Assistant Administrator, what do you see as EPA’s continuing contribution to

this effort to engage the worldwide public in this citizen education and involvement

event?

Response. EPA will continue to promote and support World Water Monitoring Day

by hosting and participating in events that educate the public about the importance

of water monitoring and what citizens can do to protect water quality. EPA cosponsored National Water Monitoring Day in 2002, in which more than 75,000 Americans participated. In 2003, EPA worked with American’s Clean Water Foundation,

the International Water Association, and other Federal partners, State and interstate agencies, watershed organizations and individuals throughout the world to

promote personal stewardship and individual responsibility for the integrity of our

world water. The goal was to involve people throughout the world in this annual

event.

Our headquarters and regional offices will continue to develop and share educational materials and expertise with interested organizations here in the United

States and around the globe in celebration of World Water Monitoring Day.

Question 28. In a hearing before the House Water Resources and the Environment

Subcommittee on March 30, 2004, you responded to questions regarding activities

that drain wetlands and other waters by stating that as long as material used to

excavate ditches in waters of the United States was trucked offsite, no Clean Water

Act Section 404 permit was required.

This statement is inconsistent with the law. In January 2001 EPA and the Army

Corps modified the Clean Water Act regulatory definition of ‘‘Discharge of Dredged

Material.’’ That rule includes a statement that, ‘‘The Corps and EPA regard the use

of mechanized earth-moving equipment to conduct land clearing, ditching, channelization, in-stream mining or other earthmoving activity in waters of the United

States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback.’’ (40 CFR Chapter

I.§ 232.2 (2)(i)). Can you explain how your interpretation of the dredged material

rule and your understanding of how the EPA and Corps are implementing it with

regard to ditching activities fits with the rule that is currently in force? Is the EPA

enforcing the regulation against those who conduct drainage, excavation, or mining

activities in waters of the U.S. without a permit? Please explain what types of activities you consider exempt under the current rules?

Response. I believe the House hearing questions regarding discharge of dredged

material were answered by Mr. John Paul Woodley, Assistant Secretary of the Army

for Civil Works. However, I am pleased to provide some background on the January

2001 rule and my perspective on when a section 404 or other CWA permit is required for ditching and dredging activities.

In 1993, EPA and the Corps promulgated the original rule (commonly known as

the ‘‘Tulloch Rule,’’ after the name of associated litigation). That rule defined ‘‘discharge of dredged material’’ to include ‘‘any redeposit’’ of dredged material associated with landclearing and excavation activities, including small volume redeposits

that incidentally occur during such activities. In 1998, the D.C. Circuit Court of Appeals upheld a lower court’s invalidation of the Tulloch Rule in National Mining Association v. Corps of Engineers (NMA). In NMA, the Tulloch rule was held to exceed

statutory authority because some redeposits, specifically ‘‘incidental fallback’’ (material that basically falls back during excavation) is not an ‘‘addition.’’ Agencies were

enjoined from applying or enforcing the rule. EPA and the Corps promulgated a conforming regulation excluding ‘‘incidental fallback’’ and the word ‘‘any’’ from the definition of ‘‘discharge of dredged material.’’ 64 Fed. Reg. 25120 (May 10, 1999).

As noted in the question, in January 2001 EPA and the Corps modified the regulatory definition of ‘‘discharge of dredged material’’ to indicate that the agencies regard the use of mechanized earth-moving equipment as resulting in a discharge of

dredged material unless project-specific evidence indicates that only incidental fallback will result. ‘‘Incidental fallback’’ was defined, consistent with the NMA decision, as ‘‘the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to

substantially the same place as the initial removal.’’ Examples of incidental fallback
107

include soil that is disturbed when dirt is shoveled and back-spill that comes off a

bucket when such small volume of soil or dirt falls into substantially the same place

from which it was initially removed. The 2001 definitional changes created no presumption, however, and instead reflected the view that mechanized earth-moving

equipment typically results in a regulable discharge, while leaving the door open to

the facts of a particular case showing otherwise.

As a result, a section 404 permit is required for mechanized land clearing, ditching, or other activities in wetlands that result in more than ‘‘incidental fallback.’’

If a project proponent can complete activities in wetlands without discharging more

than incidental fallback, however, consistent with the NMA decision and subsequent

rules, a section 404 permit would not be required.

OW works closely with the Office of Enforcement and Compliance Assurance

(OECA) to ensure the enforcement of all CWA programs, including section 404. EPA

is actively enforcing regulations, requiring a section 404 permit for discharges of

dredged material in wetlands in amounts greater than incidental fallback. It is important to note that, even where an activity in wetlands might not result in a

regulable discharge of dredged material, it may be subject to other CWA provisions

such as the section 402(p) stormwater program where wet weather flows are increased due to a project. Attached is an OECA publication, ‘‘EPA Takes Enforcement Actions Against Violators Who Ditch Wetlands and Channelize Streams,’’ explaining the link between ditching activities in wetlands and stormwater requirements.

RESPONSE BY BENJAMIN H. GRUMBLES TO ADDITIONAL QUESTION FROM

SENATOR CORNYN

Question. I have been contacted by the Texas Commission on Environmental

Quality (TCEQ) and the Texas Rural Water Association regarding the use of the

Drinking Water State Revolving Fund’s 10 percent State set aside for chemical sampling collection for public water systems. It is my understanding that you have been

part of the negotiations on determining whether these funds can be used for this

purpose. Can you give me an update on these discussions from your perspective?

Response. I have recently participated in very productive discussions with the

Texas Commission on Environmental Quality (TCEQ) and the Texas Rural Water

Association and am pleased to report that I believe we are reaching agreement with

the parties regarding how to address this issue. Although the Safe Drinking Water

Act prohibits use of the 10 percent State program management set-aside for routine

operations and maintenance expenses, such as routine sampling costs, there is another set-aside category to which this statutory prohibition does not apply. I believe

that all parties understand that the 15 percent set-aside for local assistance, which

includes capacity development assistance for public water systems, is a more appropriate source of funding for the monitoring in question at this time.

However, because we believe that the use of set-aside funds for routine monitoring

is inconsistent with the overall statutory focus on water system capacity development, we issued a policy indicating that use of the funds for that purpose should

stop by January 1, 2005. To be responsive to Texas and other States with biennial

legislatures, I am extending the time period for States to transition from use of this

set-aside to January 1, 2006 (with provisions for individual States facing exceptional

circumstances to negotiate additional time with their EPA Regional Office). In the

specific case of Texas, this provides the TCEQ additional time to work with the

State Legislature to determine how best to fund chemical sample collection costs in

the long-term. We will continue to work closely with the National and Texas Rural

Water Associations and TCEQ on ways to address the unique monitoring issues in

Texas and am confident we can reach agreement on a long-term approach for public

water system chemical sampling in Texas.

RESPONSES BY BENJAMIN H. GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR LIEBERMAN

Question 1. On June 6, 2002, you testified before the Subcommittee on Clean Air,

Wetlands, and Climate Change on behalf of the administration about the impacts

of the EPA’s and Army Corps of Engineers’ revisions to the Clean Water Act regulatory definition of ‘‘fill material’’ with respect to mountaintop removal coal mining.

In your testimony before the subcommittee, which I chaired at the time, you assured me and other Senators on the subcommittee that the EPA and Corps’ rule

change would ‘‘result in more effective regulation of activities under the [Clean

Water Act], leading to a reduction in environmental impacts’’ from mountaintop removal coal mining. You answered our concerns that changing the Corps’ definition

of ‘‘fill material’’ especially as it applied to mountaintop removal coal mining and
108

associated filling of valley streams would not be significant because the Clean Water

Act 404 permitting process:

‘‘ . . . carefully screens proposed discharges and applies the 404(b)(1) Guidelines,

which provide a comprehensive means of evaluating whether any discharge of fill,

regardless of its purpose, is environmentally acceptable. First, a discharge is categorically prohibited if it would significantly degrade a water of the United States.

In addition, no discharge may be allowed if there is a less environmentally damaging practicable alternative to placing the material in waters of the United States.

Finally, where there is no other alternative, the discharge may be allowed if the permit applicant has taken all practicable steps to minimize the amount of material

discharged, and compensate for the remaining, unavoidable impacts through mitigation.’’

Additionally, you assured the subcommittee that Clean Water Act permit authorizations:

‘‘ . . . would have to be conveyed either through compliance with a Corps nationwide Permit or Regional General Permit, the terms and conditions of which are designed to ensure that impacts are no more than minimal, or through an individual

permit process in which the effects are individually assessed.’’

In evaluating your nomination to be the head of EPA’s Office of Water, I would

appreciate your answers to some questions about how your commitments to me and

the subcommittee have been fulfilled by EPA in exercising its oversight role for ensuring the implementation of the Clean Water Act’s requirements since the rule

change was adopted. I understand that section 404 permits are issued by the Corps

of Engineers, not EPA. Nonetheless, EPA has significant responsibilities under the

law for ensuring that section 404 permits are properly granted and has the ability

under the statute to veto permits that do not comply with the statute of EPA’s section 404(b)(1) guidelines.

Since the change in the definition of ‘‘fill material’’ took effect, how many Clean

Water Act authorizations for valley fills for surface coal mining have been approved?

How many miles of streams and of wetlands and other waters have been permitted

under the Clean Water Act to be filled by coal mining overburden waste material

from surface coal mining, including mountaintop removal mining?

Response. This question and related questions that follow regarding the agencies’

implementation of the May 2002 ‘‘Fill Rule,’’ appear to be based on the premise that

this rulemaking changes the fundamental manner in which certain coal mining activities (i.e., discharges of coal overburden/excess spoil in valley fills) are regulated

under the Clean Water Act (CWA). It is important to emphasize that, as the agencies State in their Preamble to the final rule, we do not believe that the revised regulation alters, as a general matter, the manner in which discharges to waters of the

US, have historically been regulated, a conclusion that is applicable to the regulation of valley fills. We also recognized that the May 2002 rule adopted EPA’s longstanding effects based standard for defining fill material contained in EPA’s regulations since 1978. It is our view that the single definition ensures proper, consistent,

and more effective regulation under the CWA. In addition, since 1998, Department

of Justice briefs filed in response to challenges of the Corps’ authority to regulate

valley fills, clearly recognize that coal overburden/excess spoil is properly subject to

regulation as fill material under CWA Section 404, a position upheld by the United

States Court of Appeals for the Fourth Circuit. The Fourth Circuit specifically concluded that valley fills constructed in waters of the U.S. were properly regulated

under the agencies’ previous CWA Section 404 regulations, i.e., under regulations

that existed prior to the 2002 rulemaking.

In providing the permitting data being requested, it is the agencies’ view that the

Section 404 program’s regulation of coal mining activities, including valley fills, was

not generally affected by the 2002 fill rule. As a result, we do not believe that these

data would reflect significant changes caused by that rulemaking. In response to

your request for information on Clean Water Act authorizations for valley fills and

associated environmental impacts, EPA has requested the Corps to provide this information and we will provide this data to you as soon as we receive it. The Corps

has indicated, however, that as a general matter, the extent of stream impacts associated with surface coal mining activities has trended downward in recent years.

Question 2. How has EPA ensured the implementation and enforcement of the

Clean Water Act’s protections for waters since the change in the definition of ‘‘fill

material’’ took effect? Specifically, you stated to the subcommittee that the discharge

of waste material that buries streams or other waters ‘‘would not be authorized

without a thorough review of their potential impacts on the environment, as well

as other aspects of the public interest.’’ Please describe in detail how you have implemented this ‘‘thorough review’’ of the impacts of mountaintop removal valley fills
109

on the environment and the public interest for each of the valley fills approved

under the revised Clean Water Act rules since June 2002.

Response. It is the agencies’ view that neither Clean Water Act permitting nor

enforcement of surface coal mining activities in waters of the U.S. was generally affected by the EPA/Corps May 2002 fill rule. EPA Regional program offices are involved in the review of Pre-Construction Notifications for General Permits and Public Notices for individual permit applications issued by the Corps of Engineers under

the CWA Section 404 permit program. EPA review of applications for authorization

of coal mining activities in waters of the U.S. focuses on ensuring that potential adverse environmental impacts are avoided and minimized to the maximum practicable extent and that remaining impacts are effectively mitigated. We are compiling EPA comments on all individual permit applications filed since June 2002

and will forward those to you as soon as they are collected. Specific enforcement information is provided in response to the enforcement question below.

Question 3. Of the applications for mountaintop removal valley fill authorizations

applied for since the new definition of ‘‘fill material’’ took effect, how many miles

of streams and acres of wetlands and other waters have the coal mining companies

sought to fill with mining waste?

Response. It is the agencies view that Clean Water Act permitting of surface coal

mining activities in waters of the U.S. was not generally affected by the EPA/Corps

2002 fill rule. We have requested data from the Corps to respond to your questions

about the number of CWA authorizations applied for since May 2002 for discharges

of mining waste (i.e., coal slurry) and associated stream impacts, and we will provide this data as soon as we receive it. The Corps has indicated, however, that the

extent of stream impacts associated with coal mining activities in waters of the U.S.

has trended downward in recent years.

Question 3a. Of the valley fill applications made since June 2002, what is the total

of miles of streams fills and acres of wetland fills applications that were denied because the discharge ‘‘is categorically prohibited’’ because ‘‘it would significantly degrade a water of the United States?’’ Similarly, what is the total of miles of streams

fills and acres of wetland fills protected because authorizations were denied on the

basis that there was ‘‘a less environmentally damaging practicable alternative to

placing the material in waters of the United States?’’

Response. EPA has requested that the Corps provide the permitting data you requested regarding the number of permits for surface coal mining activities denied

based on a finding that the discharge would significantly degrade a water of the

U.S. or on the basis that a less damaging practicable alternative was available. We

will provide this data as soon as we receive it. The Corps has initially indicated that

the rate of permit denial associated with proposed surface coal mining activities is

likely to be similar to the National average rate of permit denial for all activities

under CWA Section 404. The Corps National denial rate for all CWA section 404

permits is approximately 1 percent.

Question 3b. What is the total of miles of streams fills and acres of wetland fills

protected (i.e. not filled) when authorizations were approved where the permit applicant took ‘‘all practicable steps to minimize the amount of material discharged, and

compensate for the remaining, unavoidable impacts through mitigation.’’

Response. The Corps has indicated to EPA that avoidance and minimization data

have generally not been tracked historically in the CWA 404 permit program. The

Corps is working more recently to collect this data for all authorizations as part of

implementing their updated permit-tracking data base. The Corps has stated, however, that the extent of stream impacts associated with authorized surface coal mining discharges in waters of the U.S. has generally decreased in recent years. With

respect to compensatory mitigation, the Corps has taken steps to improve compensatory mitigation provisions associated with authorizations for surface coal mining

activities. For example, the latest National reauthorization of nationwide Permit 21

now includes a requirement for mitigation for the first time. Applicants for authorization under this nationwide permit must include a mitigation plan to ensure all

practicable steps have been taken to offset permitted impacts to waters of the U.S.

The Corps is also putting in place a ‘‘stream protocol’’ in each State in Appalachia

to ensure applicants are collecting stream-specific environmental data so that environmental impacts can be more effectively assessed and those impacts can be better

mitigated.

Question 3c. If you are unable to provide stream mile and wetland acres figures

for the impacts on waters where fills were prohibited, avoided, minimized or mitigated, then please provide all information addressing these concerns that you do

have, including all information about particular mining operations authorized since

June 2002 that demonstrate how the revised definition of ‘‘fill material’’ has been
110

implemented since it took effect, providing specific examples. If you cannot provide

summarized information, then please provide all permit applications applied for and

subsequent authorizations applied for and received for mountaintop removal operations since June 2002.

Response. It is the agencies view that Clean Water Act permitting of surface coal

mining activities in waters of the U.S. was not generally affected by the EPA/Corps

2002 fill rule. Preliminary information from the Corps indicates, however, that impacts to waters of the US associated with surface coal mining activities since the

May 2002 rule is trending downward. We have requested specific data from the

Corps in response to your question and we will provide it to you as soon as we receive it.

Question 4. Of the fills that have been permitted in waters of the U.S. since the

‘‘fill’’ rule change took effect, how many have been authorized under nationwide Permits and how many have been authorized under individual permits?

Response. As a general matter, more individual permit applications for surface

coal mining activities have been submitted in recent years than ever before. The

Corps has indicated, however, that the majority of coal mining related discharges

in wasters of the U.S. continue to be authorized under the nationwide permit program. We have requested permitting statistics from the Corps in response to your

question and will provide those data as soon as we receive it.

Question 5. In response to questions from the subcommittee, your written response stated that, in response to concerns raised, that:

‘‘[T]his Administration is working to improve regulation of valley fills. For example, the settlement agreement for the court case Bragg v. Robertson generally limited the use of NWP 21 in West Virginia by setting an impact threshold of 250 acres

(valley fills extending to that point where the stream drained more than 250 acres

generally require an individual permit). Under this Administration, the five Corps

districts listed above will be placing three special conditions on NWP 21 which: (1)

set the aforementioned 250 acre threshold for all valley fills not just those in West

Virginia (until additional information is obtained via the Corps Stream Assessment

Protocols), (2) evaluate cumulative impacts to aquatic resources as part of the application process and (3) require appropriate mitigation, over and above any that may

be required under SMCRA or other State authorities, for all permanent fills.

While these conditions do not suffice to replace the stream protections provided

by the 1977 rule repealed by this administration in May 2002 that forbade the permitting of waste materials to fill waters of the U.S., nonetheless I would like to

know how this ‘‘improved regulation of valley fills’’ we were told about have been

implemented since June 2002.

Please identify which of the Corps’ five districts referenced in your response have

adopted the conditions identified in your response to the Subcommittee specifically,

please list which of these five districts has adopted the ‘‘impact threshold of 250

acres’’ limiting the use of nationwide general permits for valley fills greater than

250 acres. Also, please describe and provide documentation showing how all of these

districts are evaluating cumulative impacts and are requiring mitigation for destroyed streams.

Response. We have requested that the Corps provide EPA with the specific information that responds to this question. We will provide this information to the Committee as soon as we receive it.

Question 6. Another of the concerns I expressed at the time of the Subcommittee’s

hearing on the Clean Water Act rule change is that no Environmental Impact Statement on the change on the definition of ‘‘fill material’’ had been conducted. In partial answer to this concern, in your joint EPA/Corps response to written questions,

you responded that:

‘‘[D]eterminations related to the need for an EIS should be conducted at the point

where the new definition of the term ’fill material’ is actually applied in a permit

situation, when actual environmental effects are reasonably predictable.’’

Since June 2002, how many EIS’s have been conducted ‘‘at the point where the

new definition of the term ’fill material’ had been applied in a permit situation?’’

Please list all of the circumstances in which it has been determined that an EIS

is required before an authorization for a valley fill applied for by a mining operation

has been approved.

Response. An Environmental Assessment under the National Environmental Policy Act is prepared by the Corps as part of the record for every individual permit

evaluation associated with proposed surface coal mining activities in waters of the

U.S. In addition to the programmatic Environmental Impact Statement evaluating

the regulation of surface coal mining activities in waters of the U.S. currently under
111

development, EPA is aware of one other EIS being prepared. The Corps is currently

writing a draft Environmental Impact Statement on the Spruce Fork Mine Project

proposed by Arch Coal in West Virginia.

Question 7. Since the Subcommittee’s 2002 hearing, the administration’s programmatic draft Environmental Impact Statement (DEIS) was released for public

comment. The DEIS consists of 5000 pages of scientific, technical and economic

studies on the environmental consequences of mountaintop removal coal mining.

These studies confirm in detail—and quite unequivocally—that the environmental

effects of decapitating mountains and burying streams are detrimental and largely

irreversible. Among the study’s findings are that over 1200 miles of streams have

already been polluted or destroyed by mountaintop removal valley fills. Perhaps

most startling are the results of the cumulative impact study, which found that

without additional environmental restrictions, another 1000 miles of streams will be

buried over the next decade.

Under the Clean Water Act, nationwide general permits can only be granted for

activities that have no more than a minimal environmental effect on waters and related natural resources, either individually or cumulatively.

In light of the data compiled in preparing this DEIS, what is your view of whether

this level of stream destruction is ‘‘minimal’ for individual mines or for mountaintop

removal mines approved collectively under nationwide permits?

Do you consider this level of stream destruction identified in the DEIS to be

‘‘minimal’’? Have your views on this subject changed from the time you testified before the Committee on this subject in June 2002 in light on the information released

as part of the DEIS?

Response. EPA and the other cooperating agencies undertook preparation of the

programmatic EIS to develop better scientific and technical information on which

to base improvements to the environmental review of proposed surface coal mining

activities under the Clean Water Act, Surface Mining Control and Reclamation Act,

and Endangered Species Act. While we have not completed our review of the 83,000

public comments received on the DEIS, the information collected is already being

put to use in evaluating proposed permits.

With regard to your questions about impacts being authorized under nationwide

Permit 21, that issue is specifically being raised in the context of ongoing litigation

in Federal District Court. Because this matter is currently the subject of ongoing

litigation, it would not be appropriate to respond at this time.

Question 8. Last year, EPA and other Federal regulators found, in a preliminary

review, that hundreds of coal mining operators were burying streams without any

Clean Water Act permit at all. In response, EPA proposed to create and implement

a ‘‘Mountaintop Mining Self-reporting Program.’’ After this coal industry ‘‘self-audit’’

program was announced and reported in the press, it seemingly was dropped.

What is the status of this Self-reporting’’ plan? Is it EPA’s responsibility to enforce the Clean Water Act when a company discharges pollutants without a permit?

If so, what specifically do you plan to do about these violations, and when?

Regardless of whether ‘‘Mountaintop Mining Self-reporting Program’’ has been

adopted, please provide the list of coal mining operations EPA and other agencies

identified as filling waters without permits. If any of these coal companies been

fined or have had any enforcement actions initiated by EPA of the Department of

Justice since these Clean Water Act violations that were identified last year, please

provide this information either by identifying the mines or, if you refuse to provide

this specific information, provide it in summary form.

How many of these violators have been fined by EPA or the Corps? Is the Department of Justice pursuing civil or criminal actions against any of these mines?

Response. In early 2003, the Army Corps of Engineers informed EPA that it was

becoming increasingly aware of circumstances in Kentucky, West Virginia, and Ohio

involving coal mining operations that may be discharging dredged or fill material

in waters of the United States without current CWA authorization or a permit application to the Corps of Engineers. The Agencies worked on several fronts to address this information to attempt to ensure compliance with the requirements of

CWA Section 404. The Corps worked to clarify the need for coal operators to apply

for reauthorization under the recently issued nationwide permit 21 for their ongoing

mining related discharges previously approved under permits that expired in February 2003. The Corps’ compliance assistance efforts included mailing information

letters to mining companies that encouraged them to contact EPA or the Corps for

information and advice, as well as conducting a number of Corps-sponsored workshops for the coal mining industry to assist operators in ensuring that their activities fully comply with the requirements of CWA 404. The Corps has reassessed its
112

original estimates of unauthorized mining activities and believes there are far fewer

than originally thought.

Based on a number of factors, including the Corps’ reassessment and recent litigation, EPA determined that it is best not to proceed with the proposed self-reporting

program for mountaintop mining at this time. Mining companies are encouraged to

self report CWA violations and discussions involving settlement would take voluntary reporting into consideration.

The respective enforcement roles of EPA and the Corps are outlined in a 1986

Memorandum of Understanding between the two agencies. Normally, if an

unpermitted discharge warrants an enforcement action, EPA will issue an administrative order or file a complaint. If a discharge in violation of an issued permit warrants an enforcement action, the Corps will issue an administrative order or file a

complaint.

EPA has been conducting an enforcement review of the mountaintop mining area

and is working to define the nature, scope and location of CWA violations. We will

take timely and appropriate enforcement actions as violations are identified.

EPA’s Region 4 (Atlanta) office has initiated administrative enforcement actions

for CWA violations against three coal mine operators working in Kentucky. These

cases were referred to EPA by the Corps’ Louisville District. Because these cases

involve ongoing EPA investigations, Region 4 may not disclose any additional information. EPA cannot provide information on other matters currently under investigation. No enforcement cases have yet been concluded and there have been no monetary penalties assessed. As yet, no cases have been referred to the Department of

Justice.

Question 9. On January 7, 2004, the Bush Administration proposed to repeal a

Reagan-era rule known as the ‘‘buffer zone rule’’ that prohibits coal-mining activities

from disturbing areas within 100 feet of streams. This is a regulation adopted under

the coal strip mining law, the 1977 Surface Mining Control and Reclamation Act

(SMCRA).

What is your opinion of whether the January 7, 2004 proposed changes to the

Stream Buffer Zone rule comply with the Clean Water Act?

Do you believe that EPA is obliged to comment on the effect of this rule change

on water quality? Is the Office of Surface Mining required by statute to consult with

EPA on rule changes that could effect water quality? Has the EPA Office of Water

submitted comments on this proposed ‘‘Buffer Zone’’ rule change? If so, please provide those comments to the Committee.

If the EPA has not yet commented on this proposed rule change the comment period expires next week on April 7 can you describe what steps you are taking to

review the environmental effects of this proposed rule change? Does the Office of

Water plan to formally comment on this rule change? Will you provide EPA’s comments on this proposed rule change to this committee?

Response. The Office of Surface Mining (OSM) is currently seeking public comment on their proposed revisions to the Buffer Zone Rule. EPA staff are reviewing

the proposed rule and preparing written comments, which we expect to provide to

OSM. EPA has also met with OSM staff during the comment period to obtain additional clarification about provisions in the proposed rule. Office of Water staff are

also coordinating internally with staff from other Headquarters’ offices as well as

EPA Regional offices in the preparation of Agency comments. We would be pleased

to provide a copy of any comments to the Committee as they are submitted to OSM.

STATEMENT OF GARY L. VISSCHER, NOMINATED TO BE A MEMBER OF THE U.S.

CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

Mr. Chairman and Members of the Committee: I am grateful for and honored by

the President’s nomination to serve as a member of the Chemical Safety and Hazard

Investigation Board, and I appreciate this opportunity to appear before your Committee today.

If confirmed by the Senate, I look forward to serving on the Chemical Safety

Board and believe I can help the Board play an effective role in the continued improvement of chemical safety in this country. I believe in the Chemical Safety

Board’s mission, which is to prevent chemical accidents and save lives through the

thorough investigation of chemical accidents, research into hazards that are related

to releases or potential releases, and recommendations and interactions with government agencies, industry and labor, and others to prevent future industrial chemical accidents from occurring.

Since 2001 I have served as Deputy Assistant Secretary for the Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor. As Deputy
113

at OSHA, I have been involved in the full range of occupational safety and health

issues that have come before the agency, including issues involving chemical processing and chemical plant safety. I also directly oversee the agency’s offices responsible for standards and guidance documents; compliance assistance, training and cooperative programs; and technical support and analysis. Included in the products

and programs from these offices during my tenure as Deputy Assistant Secretary

have been a several dealing with chemical safety, including most recently an initiative to improve compliance with OSHA’s Hazard Communication Standard on which

the Assistant Secretary for OSHA, John Henshaw, testified before the Committee

on Health, Education, Labor and Pensions last week.

Prior to my current position I served as Vice President for Employee Relations

at the American Iron and Steel Institute. A large part of my responsibility at the

Institute was working with the member steel companies on safety and health issues

in the steel industry.

From 1999 through 2000, I served as one of three Commissioners on the Occupational Safety and Health Review Commission. The Review Commission is an independent agency which adjudicates contested OSHA citations and penalties.

Prior to my confirmation by the Senate in May, 1999 to be a Commissioner on

the Occupational Safety and Health Review Commission, I worked for 14 ° years

in congressional staff positions, first as Legislative Director to former U.S. Representative Paul B. Henry (R-Michigan) and subsequently on the staff of the House

Committee on Education and the Workforce.

As happens to many of us who work in congressional staff positions, my long term

interest and involvement in workplace safety and health was to some extent a result

of the involvement and expertise of the Member of Congress on whose staff I began

working. Congressman Henry served as the Ranking Member of the House Subcommittee with jurisdiction of workplace safety and health issues for several years,

from 1987 to the year he died, in 1993. Through helping to prepare him and the

other Subcommittee Members for hearings and reviewing the issues that came before the Subcommittee, I gained a level of expertise in many of the technical as well

as the legal and policy questions and issues in the safety and health area.

In fact, one of the very first oversight issues I worked on after joining the Committee staff in 1989 was the explosion and fire and subsequent investigation of the

Phillips 66 Company’s Houston Chemical Complex facility in Texas in which 23 people died, and which was one of the incidents that helped trigger support for the creation of the Chemical Safety Board in the Clean Air Act Amendments.

But having initially become involved with these issues by way of my congressional

staff duties, I also have found working in occupational safety and health to be challenging as well as rewarding. Certainly, as Assistant Secretary Henshaw often reminds us and the staff at OSHA, ‘‘there can be no work more rewarding and no job

more fulfilling than helping to protect the lives and well-being of the working men

and women who keep our Nation strong.’’ If confirmed by the Senate, I look forward

to serving on the Chemical Safety Board in order to continue to contribute to the

effort of making workplaces and communities safer.

A major role and function of the Chemical Safety Board is the investigation of

chemical releases and incidents in order to identify what happened, and, as much

as possible, why it happened, and to recommend steps that might prevent such accidents from happening again. To carry out these functions, one must be not only

well-versed in the technical and legal aspects of chemical safety, but also be fair and

objective. Each of the jobs and positions I have held in the safety and health area

has involved oversight and review of workplace accidents and investigations and responsibility for understanding, evaluating, and analyzing the technical, the legal,

and the human issues involved. I believe I have a reputation for being thorough as

well as fair minded, and if I am confirmed by the Senate, I will certainly carry those

values with me in carrying out my responsibilities as a member of Chemical Safety

Board.

Mr. Chairman, I appreciate this opportunity to testify before you and your consideration of my nomination. I would be happy to answer any questions you may have.
114
115
116
117
118
119
120
121
122
123
124
125

Æ